In hiring probe, lawyers wage war of words

THE BALTIMORE SUN

They sign their letters "Very truly yours," but there's nothing dear about the correspondence between Jervis S. Finney and Ward B. Coe III.

"With respect to your January 10th letter, I disagree with a number of your characterizations of events but, at least, they are consistent with your self-professed position as advocate for the Governor," Coe, counsel to the special committee investigating Gov. Robert L. Ehrlich Jr.'s personnel practices, writes in a Jan. 18 letter to Finney, Ehrlich's legal adviser.

Smackdown! It seems that Finney - known for his fierce loyalty to Ehrlich, disdain for what he calls the "so-called special committee" and verbal quirks (he uses da da, da da, da da where Jerry Seinfeld would probably prefer yada yada yada) - has met his legal match in Coe, the Baltimore attorney who signed on late last fall to advise the committee.

Since Coe took the job, he and Finney have carried on and on and on in these letters. The central matter of their most recent exchanges is whether Finney, whom Coe addresses by his nickname "Jerve" (pronounced Jer-vee), will relinquish the remaining personnel documents and e-mail messages requested by the special committee, which is seeking to determine whether state workers were fired for political reasons.

Finney is contending that some of the documents are protected by executive privilege and others by employee privacy rights. The committee is taking this month off in the hopes that the lawyers can quietly resolve the document request before the panel reconvenes for three full days of hearings in March. Coe, a partner with the firm Whiteford, Taylor & Preston LLP, has expressed a willingness to go to court if Finney digs in his heels.

Despite the seriousness of the task at hand, the lawyers' banter often sounds more like that of instant-messaging teenagers than pedigreed attorneys.

"Whatever ... " proclaims Finney, 73, in a Nov. 23 letter to Coe about why Coe's document request is too broad.

Finney, a former U.S. attorney who writes in winding, multiclaused sentences, is known for duking it out via the written word with reporters as well as Democrats seeking information. Coe has illustrated in their latest rounds, however, that he knows how to talk in the most Finney-esque fashion.

"I do not understand your 'poker game' or 'jack-in-the-box' references," Coe writes to Finney on Jan. 5. " ... I do not understand your 'smash-mouth talk' reference. Once again, I view my job as getting the facts to the Committee."

And so it goes. Coe likens the exchanges to fencing - thrust and parry.

In an e-mail to The Sun, Finney defended his approach and rationale.

"The executive privilege doctrine has been upheld as necessary for better government, confirmed by the highest courts for the federal and all states' governments," Finney writes. (He declined to be interviewed for this article.) "Since the so-called special committee operates in such secrecy, it obviously relies on the doctrine for its own purposes."

On behalf of the committee, Coe, 60, is seeking e-mails to and from Joseph F. Steffen Jr., the Ehrlich aide who has said he was dispatched by the administration to state agencies in part to target workers to be fired. Finney is withholding or redacting about 16 Steffen-related documents, according to the letters, as well as other documents from the governor's appointments office and pertaining to other state employees who appear to have had responsibilities similar to Steffen's.

Lawmakers on the committee have said they want to read these documents before hearing testimony from high-level administration officials and central figures in the investigation, such as Steffen.

Among the questions they have said they want answered: Who ordered the firings of state workers with Democratic ties or to make way for Ehrlich loyalists? Was Ehrlich's appointments office involved? What, if anything, did the governor know about who was targeted and why?

Sen. Brian E. Frosh, a Montgomery County Democrat who sits on the special committee, said the committee's subpoena power trumps the administration's argument that executive privilege allows the documents to be withheld.

"I think the claim of executive privilege is bogus," Frosh said. "They don't want to give them up because they're damaging, and that's the only reason."

Coe hopes cooler heads prevail so that legal action can be avoided.

"If we believe that documents are being withheld that are pertinent to the investigation, and they're not being held for a legally justifiable reason, we would subpoena them and seek to enforce the subpoena," Coe said in a recent interview. "We're not there yet."

Administration officials have promised from the start of the committee's hearings last summer that they would cooperate in full. Approximately 18,000 documents have been released, according to Finney.

At the same time, spokespeople for the governor have chided the committee for launching what they say is a partisan, election-year smear campaign against Ehrlich. They say that the law allows the administration to hire and fire any of the 6,000 or so individuals who fall within a certain state employment category, called at-will, regardless of their performance and for any reason or no reason at all.

The last high-profile case in which executive privilege was questioned involved The Washington Post and then-Gov. Parris N. Glendening. To determine whether Glendening was making political calls on state time and to learn more about the inner workings of the governor's office, the newspaper requested Glendening's phone records, which the governor's office refused to provide. A court essentially found in the paper's favor, asserting, among other arguments, that calls made from an office or state-funded cell phone are a matter of public record.

Robert Zarnoch, an assistant attorney general and counsel to the General Assembly, said that under the state provision, executive privilege is not absolute. When examining factual situations - such as employees being moved to different departments or the existence of a phone call - courts are inclined to rule for openness, Zarnoch said.

"The purpose of executive privilege is to promote the ability of the governor to receive advice from his staff," Zarnoch said.

For his part, Finney repeatedly promises that the governor's office will cooperate with the investigation. See his Jan. 27 letter to Coe, paragraph one:

"This letter further manifests the Ehrlich's [sic] Administration full, overwhelming cooperation with your Committee's (illegitimate) investigation," Finney writes.

jennifer.skalka@baltsun.com

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