"There's no question in my mind that what was done was completely unethical," said Gov. Larry Hogan, speaking at a news conference on Del. Dan Morhaim.
The way Del. Dan Morhaim handled his dual roles as a legislator and a consultant for a company seeking medical marijuana licenses in Maryland was clearly wrong. He was not completely honest about it in his conversations with the legislature's ethics counsel, on his financial disclosure forms, in his conversations with fellow lawmakers or in his appearances before the state medical marijuana licensing commission. Though he went to great lengths to justify himself in a three-page "apology" in which he insisted that he "did nothing wrong" and blamed the entire matter on the media, he conducted himself in a way that dishonored the legislature and irrevocably diminished his own ability to act as an effective representative of his constituents, at least on this issue, if not altogether.
Here are the simple facts, as uncovered by the Joint Committee on Legislative Ethics.
After Maryland legalized medical marijuana, an issue on which Dr. Morhaim had been a leading advocate for years, a number of potential applicants for Maryland medical marijuana licenses contacted the delegate with inquiries about whether he might consult for them. In May of 2015, he asked the state ethics council whether such an arrangement would be proper. Based on the parameters he provided — for example, that he would not represent his client before government entities and that while his name might be included in his client's application, his General Assembly affiliation would not — he was advised that it would be permissible but that he should consult further with ethics staff on required disclosures after he formalized any such employment.
The next month, he met with representatives of a firm called Doctors Orders about the possibility that he could become its national medical director, should it succeed in securing a Maryland medical cannabis license. He entered into a formal consulting agreement with the company in July. He received an initial payment that the ethics committee dubbed "substantial." He contacted the state ethics counsel two weeks later and informed her that he had been retained by a license applicant but did not say that he had begun work, that had been paid or that he continued to communicate with the marijuana licensure commission about policy issues.
Despite the fact that he had already been paid and begun work, including providing advice to the firm about where to set up growing locations and other matters, Dr. Morhaim wrote on an ethics disclosure form only that he "may do medical consulting and/or treatment" on issues including "medical cannabis." Dr. Morhaim claims to have told the then-director of the medical marijuana commission that he was working for an applicant, but she says he only told her that he was considering doing so. Meanwhile, Dr. Morhaim continued to appear before the licensure commission and to communicate with its members about assorted issues related to the program; throughout, he was afforded a level of access because of his position in the legislature that others were not. Both he and Doctors Orders insisted to the ethics committee that his testimony was not coordinated with the company and in fact ran counter to its interests, but the committee concluded that on at least one issue, he advocated a position that "was in his financial interest (and the financial interest of Doctors Orders)."
On Friday, the House of Delegates voted 138-0 in accordance with the ethics committee's recommendation to reprimand Dr. Morhaim over the incident. Gov. Larry Hogan has suggested that he should have been expelled and that anything less is evidence that the legislature can't police itself. His remarks do a disservice to the members of the Joint Ethics Committee — six Democrats and four Republicans who spent months on the matter, retained the help of outside counsel and produced a thorough, thoughtful 22-page report, and they ignore the relevant parameters of state law. Even Governor Hogan's legislation proposing to hand such investigations to the state Ethics Commission rather than the Joint Committee on Legislative Ethics would not change the fact that punishment for ethical misdeeds of legislators can only be meted out by the General Assembly. Anything else would be an unconstitutional breach of the separation of powers.
As to whether a reprimand is the right punishment, rather than a more serious censure or even expulsion, the case has to be put into context. In 2012, the Senate voted to censure but not expel Sen. Ulysses Currie, a Prince George's County Democrat who failed altogether to disclose a multi-year, quarter-million-dollar consulting job with a grocery chain in which he directly and clearly used the prestige of his position to lobby state agencies on his client's behalf. In 2013, the House voted to reprimand — not censure — Del. Tony McConkey, an Anne Arundel Republican who aggressively pursued legislation that would have affected only about seven people in the state, him included. It would have saved him thousands of dollars and helped him regain his real estate license. We would have preferred harsher punishment in both cases, but they nonetheless remain relevant precedents.
The key question for the ethics committee in Delegate Morhaim's case, as set out in state law, was whether he intentionally acted to benefit himself (as Senator Currie and Delegate McConkey clearly did) or whether he was acting in continuation of his long-standing advocacy on the issue. Based on the evidence, the committee was unable to conclude for certain which was the case.
Delegate Morhaim objected in his letter that he was being punished for violating the spirit rather than the letter of state ethics law. We believe the legislature must have the ability to act in such situations because the law can never anticipate every way in which a lawmaker might exercise bad judgment. But it can and should act to remove any ambiguity about disclosure and recusal requirements in future cases like this. House Speaker Michael E. Busch this week introduced legislation to change the ethics laws to cover testimony before government entities like the medical marijuana commission and situations in which a lawmaker has negotiated or pre-arranged employment. We urge the legislature to enact it.