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Lobbyist seeks to vacate ethics ruling, saying his conduct preceded 2001 law

Bruce C. Bereano's lawyer told a Howard County judge yesterday that the State Ethics Commission's decision to punish the well-known lobbyist was unjustified and illegally applied to conduct that took place before Maryland's landmark 2001 ethics law took effect.

Attorney Timothy F. Maloney presented Circuit Judge Raymond J. Kane Jr. with a laundry list of reasons to vacate the ethics commission's decision last year to suspend his client's right to lobby for 10 months for operating under a contract it found to be illegal.

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Steven M. Sullivan, a lawyer for the state attorney general's office, urged Kane to uphold the commission's finding that Bereano had entered into an illegal contingency contract and its determination that the 2001 law gave it the power to punish him for such a violation.

The civil case is one of the first two court tests of the 2001 law. It was heard in Ellicott City because all the Circuit Court judges in Anne Arundel County, where the lobbyist has long-standing associations with the judiciary, recused themselves.

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Another case challenging a commission decision to punish a lobbyist under the law was brought by Gerard E. Evans, whose case is now before the Court of Appeals. The commission has appealed an Anne Arundel County judge's decision that the commission acted illegally when it permanently barred him from lobbying as a result of a 2000 conviction on federal fraud charges.

Like Bereano, Evans has continued to do business under a provision of the 2001 law that gives a lobbyist an automatic stay of punishment until the matter has been fully litigated.

Maloney argued that Kane should hold off a decision on Bereano's appeal until the state's highest court issues a decision in the Evans case, in which arguments were heard last month. But Sullivan opposed that suggestion, arguing that the facts in the two cases were different enough that the Bereano sanctions could be upheld even if Evans were to win.

The ethics commission ruled in July that Bereano had violated state ethics law by entering into a contingency contract, in which his earnings would be based on a percentage of the business he gained for his client, with Mercer Ventures Inc. It imposed the suspension and a $5,000 fine.

Maloney, a former Prince George's County legislator, told Kane that the agreement did not fit the definition of a contingency contract to lobby the executive branch.

But even if the agreement were found to be a contingency contract, Maloney argued that the commission did not have the power to punish Bereano because the agreement was signed in September 2001 while the law went into effect Nov. 1 of that year.

Maloney said there could be no retroactive application of the law unless that power was expressly spelled out by the General Assembly.

Sullivan told Kane the law requires him to give deference to the judgment of the ethics commission in its findings on both the facts and the law of the case.

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Contingency contracts for lobbying state government have been illegal since 1979, said Sullivan. He said that to prevail, Bereano would have to prove the General Assembly intended to "grandfather" immunity from penalties for violations committed before the law took effect.

Kane said he would rule on Bereano's challenge after he has finished reading the extensive written record in the case.


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