REPORT
OF
THE
FISCAL YEAR 2003
Office of the State Prosecutor
Telephone: 410.321.4067
1.800.695.4058
Fax: 410.321.3851
October,
2003
SUMMARY
(FY2003)
The past fiscal year included a Gubernatorial Election which usually generates a great deal of activity in the State Prosecutor’s Office. State and local candidates for office expect the Office to ensure that the Election Law is strictly enforced. Allegations of perceived misconduct seem to surface move readily in a politically charged atmosphere. It is in such an environment that an independent prosecutor’s office can perform a valuable public service.
This report discusses eleven cases made public by either State Prosecutor reports, charges or news releases. In some cases the subjects or complainants released the information. Seven of the eleven cases involved alleged election law violations, or were allegations involving candidates. The subjects included:
3 legislators
1 county executive
1 county commissioner
1 sheriff
1 deputy sheriff
1 county planning commissioner
1 case involving three subjects accused of walk-around money violations
1 complaint involving twelve entities accused of making excessive campaign
contributions
1 case involving petitions to place a candidate on the ballot
In addition there were 33 non-publicized cases involving 16 elected officials and 17 appointed officials, sworn officers and private citizens. Twenty-one of the 33 complaints involved corruption allegations and 12 involved election law violations. Among the 16 elected officials were:
3 state senators
4 delegates
3 State’s Attorneys
1 sheriff
1 county executive
1 clerk of court
1 town councilperson
1 town mayor
1 town mayor (complainant - anonymous campaign literature)
The non-publicized cases involved allegations of bribery, misconduct in office, theft, illegal electronic surveillance and various election law violations such as over-contributions, failure to disclose contributions, failure to register as a committee and the lack of authority lines on campaign literature.
Four of the publicized cases seemed to attract a great deal of attention by persons in particular jurisdictions. They involved the three persons charged with “walking around money” violations during the 2002 election, the Harford County Sheriff who resigned amid allegations of sexual harassment by an employee, the Carroll County Commissioner accused of misconduct and the St. Mary’s Sheriff’s Department’s loss of large amounts of expensive construction materials seized in 1999 raids.
SIGNIFICANT INVESTIGATIONS
The 40 corruption and 92 election law complaints received in FY03 generated 11 significant and publicized investigations that were closed by the end of the fiscal year. Most of them required hundreds of investigative hours resulting in either reports released to the public and/or charges. They were as follows:
1. President
of the Senate
The president was accused of improperly attempting to influence judges of the Court of Appeals in their deliberation and findings concerning the redistricting of legislative districts pursuant to the 2000 Census. The investigation included interviews with the appellate judges and legislators involved. A report disclosed two calls made by the President to judges that were found to be inappropriate, but not criminal. The State Prosecutor found no “direct and unambiguous evidence of a threat, promise, coercion, persuasion or direction to the judge showing an attempt to influence.” In addition, there was no evidence that indicated a concerted effort on the part of the President, four senators and one delegate to influence the appellate judges.
An analysis of all of the contacts
made by the legislators found no evidence of collusion among them. Although one senator called a judge at the
President’s suggestion, the judge immediately terminated the call when the
senator asked if it was appropriate to discuss redistricting. The State Prosecutor concluded that the one
telephone call offered “slim and unpersuasive” evidence that the President “was
orchestrating an attempt to influence judges.”
However, the Prosecutor noted in his report that the President, who is an
attorney, knew or should have known that any contacts with a judge on a pending
case are improper.
2. Speaker
of the House of Delegates
During his campaign for reelection the Speaker was accused of improperly using a state trooper assigned for protective services for political purposes. Although the alleged assignment was relatively minor, the case generated considerable interest in the Speaker’s district due to the contentious campaign.
The
inquiry determined that the Speaker was scheduled to attend a “meet the
candidates” event in Flintstone,
When the staff member, an office assistant in his district office, arrived at the Rocky Gap resort to pick up campaign materials, the Speaker learned that there could be a disturbance at the meeting from a vocal group apposing a race track proposal. Sensing that the staff member was apprehensive about appearing at the meeting, the Speaker asked the state trooper assigned to him for protection to accompany the staff member to the meeting in Flintstone, a distance of approximately six miles from Rocky Gap.
The meeting was held without incident, but some attendees noticed the state trooper accompanying the Speaker’s aide. Their complaints ultimately were reported in the media and a complaint was filed with our office concerning that use of a state trooper and his vehicle for political purposes.
Prior to our inquiry the Speaker had reimbursed the state police for $94.00 of the trooper’s time and use of his vehicle. Interviews of the Speaker, his office aide, the trooper and persons present at the meeting confirmed that; the aide was not paid to attend the meeting; the trooper did not distribute campaign materials and the Speaker readily admitted that he had made a mistake and that he should not have used the trooper to transport the aide and campaign materials.
Based on our inquiry, which also included a review of the aide’s time records, we found no corrupt motive on the part of the Speaker to use state employees for political purposes. Our report stated that the law does not punish public officers for making mistakes or errors in judgment when performing discretionary acts and that the use of the state trooper was de minimus.
3. Sheriff
of
In February 2003 the State Prosecutor initiated an investigation of alleged misconduct by the recently re-elected Sheriff of Harford County. The allegation of misconduct involved alleged sexual harassment of a female employee during duty hours. This was the first investigation undertaken by the State Prosecutor that involved sexual harassment by a public official in the performance of his duties.
The investigation had been referred to the Howard County Police Department by the Sheriff’s office in order to avoid a conflict of interest. When the State Prosecutor’s Office began its investigation, the Howard County Police deferred their inquiry pending the results of the State Prosecutor’s investigation. The attorney for the employee also deferred civil proceedings pending the result of the criminal investigation.
Following a three-month investigation grand jury subpoenas were issued to six witnesses. However, the grand jury hearing was postponed in order for the Sheriff’s attorneys to make inquiries as to whether the Sheriff’s offer to resign would cause the State Prosecutor to terminate the criminal investigation.
It is noteworthy that a Sheriff is a constitutional officer who cannot be removed from office except upon conviction of a felony or a misdemeanor related to his public duties that involves moral turpitude. However, the conviction only operates to suspend the elected official until the conviction becomes final after judicial review, which can take months or even years. In the meantime the Office of the Sheriff, who in this case is the chief law enforcement officer of the county, may suffer from the uncertainties of an extended trial and appellate review.
Primarily
for the above reason and the fact that the Sheriff had a good record, the State
Prosecutor agreed to terminate the investigation on condition that the Sheriff resign effective
4. Commissioner
of
The
State’s Attorney, a contractor and citizens of
In
Unfortunately, the contractor and the daughter engaged in a heated argument about the timing of the installation during the holiday season and the alleged interference with the contract erupted into a major case before the County Ethics Board. Due to a dispute between the newly elected county commissioners and the Ethics Board, the case was referred to the State Prosecutor.
The final results were that the County Ethics Code did not apply in this case since the daughter was not a “dependent child” and there was no evidence of criminal conduct on the part of the Commissioner. All other allegations were dismissed as non-criminal matters.
5. Violations
of Election Law Prohibitions Concerning “Walk-Around Money” on Election Day
A
twenty-three year old statute prohibited the payments of money for
electioneering while the polls were open on Election Day. There were exceptions for campaign staff
workers, meals and transportation expenses.
On Election Day 2002 the Office received complaints of violations of the
statute in
Three
persons were indicted for the offenses, but the cases were dismissed in April
2003 when a
6. St.
Mary’s County Sheriff’s Office - Missing Property
In July 2002 the Sheriff of St. Mary’s County requested that our office conduct an investigation of missing construction material valued in excess of $20,000 seized in a theft investigation in 1999. The materials were seized pursuant to search warrants and the Sheriff suspected that some of his deputies were involved in the theft of the seized materials. An extensive investigation revealed that the property was released without authorization by a ranking officer of the Sheriff’s Office to a personal friend and a relative. We recovered large amounts of the property and reported our findings to the Sheriff. We also advised the State’s Attorney concerning a prosecution for theft since we have no jurisdiction to prosecute theft unless it is multi-jurisdictional. The officers involved are awaiting disciplinary action by the newly elected Sheriff.
There was insufficient evidence produced in the investigation to charge the officer with conspiring with the recipients of the stolen property since the co-conspirators asserted their rights not to testify and the object of the conspiracy had been attained. An evidentiary rule prevents the State from using hearsay statements of co-conspirators after the object of the conspiracy, in this case the theft, has been completed. Only statements made by the co-conspirators during the course of and in furtherance of the conspiracy are admissible.
7.
Early D. Monroe, Jr., a former Frederick County planning commissioner pleaded guilty in March 2003 to using his office for personal gain. Our investigation revealed that he solicited money from land developers and business owners for nonexistent charities. The Court suspended a six-month jail sentence and placed him on probation for one year on condition of rendering 100 hours of community service.
8. Kent County Petitions In State’s Attorney Election
The
9.
A
An
investigation revealed that the County had no claim to the property due to
errors in the deed made in transferring the land between the county and a land
trust in the 1990’s. The use of a quick
claim deed rather than using specific procedures in the
10. Over-Contributions
In
Common
Cause of Maryland filed 13 complaints with the Office concerning the 2002
election for
As of the end of FY03 all but four of the complaints had been closed. The closed cases either involved the contributors obtaining refunds, or that they were not in violation. Due to the difficulty in proving intent, over-contributors, after obtaining refunds, are notified that further violations will be deemed intentional and that they will be prosecuted. The Statute makes only contributors liable for prosecution.
11. State
Senator
An
investigation of a State Senator’s solicitation of an undisclosed $10,000 loan
from a
SIGNIFICANT INVESTIGATIONS - NOT PUBLICIZED
The 33 significant investigations which cannot be revealed due to confidentiality provisions of the State Prosecutor Statute (State Government Article, Section 9-1201 et seq.) involved 16 elected and 17 non-elected subjects. General comments that do not identify the subjects are:
Four of the investigations involving elected officials were serious allegations; two dealing with bribery and two dealing with anonymous campaign literature affecting election results. One bribery accusation was closed after an extensive evaluation of financial records and other investigative tactics failed to corroborate the anonymous source. The source claimed to be a witness to an official’s demand for money in exchange for a favorable vote. The official who allegedly demanded the bribe was the “tie-breaker” in a close vote on a development issue. The other bribery accusation was deferred when we learned that a federal agency had developed better source information.
The remaining 14 investigations involving elected officials concerned allegations of misconduct in office and election law violations.
It is noted that the Maryland Election Law does not provide criminal sanctions for false statements in campaign literature unless there is no authority line. Such literature is usually anonymous or attributed to fake persons or groups. If we discover the author(s) of the material, we can prosecute for lack of an authority line and failure to register as a committee, but not for making false statements against a candidate. The candidate’s recourse is a suit for defamation, if the facts justify such action.
In one of the two investigations involving anonymous campaign material the candidate’s relative paid for and issued a “flyer” purporting to be a committee. The flyer had no authority line but contained a disclosure that it was not authorized by any candidate. The candidate knew about the flyer but did not authorize or pay for it. He advised his relative that it would have to contain a disclaimer and authority line, but failed to inform him that he and his associate would have to register as a committee. The flyer did not contain false statements but criticized the incumbent’s record. Under the circumstances we declined to prosecute and advised the relative and his associate to register as a committee and file campaign reports. They have complied with our advice.
In the other anonymous campaign material case we were not able to trace the authorship since it was printed on an unknown computer. None of the opposing candidates nor their staff admitted any knowledge of the flyer that contained false information. The records at the local election board did not reveal any information pointing to suspects who would have likely obtained voting lists. In addition, the flyer was mailed using individual postage stamps rather than a bulk-mailing permit which could be traced. The election produced a close vote resulting in the defeat of the encumbent mayor who was the target of accusations in the flyer.
The remaining elected officials involved in confidential investigations included three delegates, one state senator, one county executive, three state’s attorneys, one sheriff, one clerk of the court, one town mayor and one delegation in the House of Delegates. None of the accusations resulted in prosecutions following our inquiries.
The ten non-elected subjects accused in various complaints of official corruption included one assistant state’s attorney, four state and county administrators, four sworn officers and one private citizen. These complaints did not produce sufficient evidence for prosecution following investigations.
Four of the 44 significant investigations were open at the conclusion of the fiscal year and carried over into fiscal year 2004. Two of them involve bribery and misconduct in office allegations.
NON-SIGNIFICANT
INVESTIGATIONS
The above 44 cases (publicized and non-publicized) accounted for most of the Office workload. They are deemed significant cases because they either involved a major expenditure of investigative and prosecutorial hours; or, they required more than routine processing due to their sensitive nature or complexity. The remaining 90 complaints deemed non-significant in terms of workload were those that were either disposed in less than 15 workdays or required routine processing such as failure to file accurate or timely campaign reports by political committees.
MANAGING FOR RESULTS PROGRAM
The State has mandated a program which measures the performance of all agencies in accordance with agreed standards. The performance measurements are used for budgetary purposes when an agency’s requests for appropriations are reviewed each year by the Department of Budget and Management and the legislative budget committees.
The State Prosecutor’s work units have been identified by three types of complaints; corruption complaints that include allegations of misconduct in office and bribery, election law complaints involving alleged violations of the state election law and other complaints involving cases that are multi-jurisdictional. Appropriate dispositions are measured by whether the State achieved a satisfactory and timely result of its investigation.
Most prosecutors’ offices measure their success by conviction rates. Convictions are deemed to be successful dispositions, regardless of whether they are the results of plea bargains, and acquittals are considered to be unsuccessful or unsatisfactory conclusions to prosecutions.
Measuring an agency such as the State Prosecutor’s Office in which investigations account for approximately 85% of its work, by conviction rates would be meaningless. Corruption investigations that take months to investigate and that seldom result in court trials are not conducive to measurement by quantitative units. Therefore, we established the following results as indicators of satisfactory or unsatisfactory conclusions:
1. Charges are filed;
2. Restitution is made and there is nothing to be gained by filing a criminal charge;
3. Resignation - the subject agrees to resign his/her office and there is nothing to be gained by filing a criminal charge. This removes an official accused of improper conduct without a prolonged prosecution that may adversely affect a government agency and that is not in the public’s interest;
4. Cessation of questionable activity - the subject agrees to cease marginal criminal activity that may be difficult to prove as a criminal violation;
5. De Minimus - the offense is too trivial to warrant filing criminal charges;
6. Cooperation with the State - the subject agrees to give evidence in a more serious case;
7. Referral - the complaint is referred to an appropriate agency with regulatory powers and jurisdiction in the matter;
8. Compliance - this usually involves nonfeasance in office and the subject agrees to comply with statutory requirements;
9. Prosecutorial Discretion - a technical violation of the law exists, but the prosecutor exercises discretion not to prosecute;
10. Statute of Limitations - the complaint was not received or discovered in time to toll the statute of limitations which is two years for misconduct in office and one year for a misdemeanor;
11. No Jurisdiction - the Office lacks jurisdiction to investigate a complaint that is not connected with the duties of a public official; or does not involve a crime enumerated in the State Prosecutor statute;
12. No Criminal Activity - the complaint does not involve a violation of criminal law;
13. Civil Remedy - the complaint can be better addressed in the civil courts such as a violation of civil rights;
14. Innocence - the investigation reveals that the subject is not criminally liable;
15. Missing Critical Evidence - evidence for a successful prosecution is unobtainable due to loss, destruction or privilege;
16. Insufficient Evidence - the cumulative evidence is insufficient to prove an offense;
17. Legal Insufficiency - key evidence is legally inadmissible such as hearsay;
18. Lack of Resources - financial costs and expenditure of the State’s resources do not justify a prosecution.
Unsatisfactory conclusions are any of the following:
1. The State allows the statute of limitations to lapse when at least one year remained after receipt of the complaint or discovery of the offense;
2. The State terminates the investigation because it cannot prove the case beyond a reasonable doubt after all efforts have been made to obtain sufficient evidence;
3. The State commits error in the investigation or prosecution of the complaint;
4. The subject is charged, but is acquitted of all charges;
5. The investigation proves too costly and time consuming and is closed so that resources can be diverted to other cases.
Timely disposition of complaints and investigations have been established and measured for performance as follows:
Corruption Cases - One year from receipt of complaint or discovery of an offense within the jurisdiction of the Office.
Election Law Violations - Six months from receipt of complaint or discovery of a violation.
Other Complaints - One year from receipt of complaint or discovery of a violation.
Each case is measured for both satisfactory disposition and timeliness of the investigation. The Office is expected to reach satisfactory conclusions in 75% of its corruption investigations, 90% in election law violations and 75% in all other complaints. The results and statistics for Fiscal Years 2002 and 2003 were as follows:
FY FY
Performance Measures 2002 2003
Corruption Complaints Received 32 40
Corruption Complaints Closed 26 33
Satisfactory Dispositions 100% 100%
Timely Dispositions 100% 91%
Election Law Complaints Received 146 92
Election Law Complaints Closed 117 61
Satisfactory Dispositions 99% 100%
Timely Dispositions 96% 93%
Other Complaints Received 11 3
Other Complaints Closed 10 2
Satisfactory Dispositions 100% 100%
Timely Dispositions 100% 100%
Judicial Dispositions
Number of Person Charged 17 6
Number of Cases Disposed 17 3
Satisfactory Conclusions 17 1
Percentage of Appropriate
Conclusions 100% 33%
FISCAL
YEAR 2003 COMPLAINANTS SURVEY
Each fiscal year, as part of the Managing For Results Program, we mail a questionnaire to all complainants who furnished us with their addresses. Some complainants prefer to remain anonymous and we do not press them for identification.
The questionnaire, that was initiated in Fiscal Year 1999, is designed to determine whether the complainant was satisfied with his/her contact with the Office. Although the number of responses each year has been disappointing and cannot be considered to be statistically reliable, the effort seems to be useful. The comments on the Office from those who take the time to respond seem to be sincere and they are helpful in many cases.
The State Board of Elections, which refers most of the election law complaints, is treated as one complainant. That explains the difference between the total number of complaints received each year and the number of questionnaires mailed.
The survey results in each fiscal year since FY99 are as follows:
FY99 FY00 FY01 FY02 FY03
No. of Questionnaires 45 54 48 32 48
No. of Responses 26 23 23 16 18
Percentage of Responses
Indicating Satisfaction
With Office 73% 74% 87% 63% 78%
Copies of the letter and questionnaire sent to each complainant and the results of the FY03 Survey are attached to this report as Exhibits 1, 2 and 3.
ADMINISTRATION
Turnover of Personnel
The work of the Office was severely hampered in FY03 due to turnovers in one of the Senior Assistant State Prosecutor positions. A senior prosecutor hired in FY02 resigned in February 2003 in order to work for a private law firm. Her replacement was not hired until April 2003 and he resigned three months later to take a higher paying position with the Attorney General’s Office. His other reasons for his abrupt departure were the threatened reduction in personnel due to the State’s financial crisis and the more secure position with the Attorney General.
The Office has had relatively low turnovers in staff in past years and the departures of two attorneys created difficult problems. It resulted in the Office having only two experienced prosecutors available for most of the fiscal year, the State Prosecutor and a Senior Assistant. It also became apparent that it has become increasingly difficult to attract experienced prosecutors for a small state agency with relatively low salaries and vulnerable to budget cuts in poor economic conditions.
There were 47 applicants for the last vacancy, but only two had the requisite investigative experience that includes a working knowledge of financial transactions, search and seizure, electronic surveillance and other sophisticated investigative techniques. Both of these highly trained and experienced prosecutors rejected our offers; primarily due to the inadequate salary and impending budget cuts looming in Fiscal Years 2004 and 2005.
Change of
Address
At
the expiration of our lease in the
management. The security of the premises was of primary consideration
due to the sensitivity and confidentiality of our work.
Office
Personnel
Name Classification MO/YR of Employment
Stephen Montanarelli State Prosecutor May/84
Thomas M. (Mike) Senior Assistant September/84
McDonough State Prosecutor
Steven L. Trostle Senior Assistant October/03
State Prosecutor
James I. Cabezas Chief Investigator July/86
John C. Poliks Special Agent August/96
John R. Draa Investigative Auditor May/98
Brandi M. Wright Paralegal April/01
Cynthia A. (Cindi) Personnel Officer November/94
Lewis
Deborah A. (Debbie) Administrative Aide January/87
Amig
Legal Intern
Name
Amye Rosa
BUDGETS
FY2003 FY2004 FY2005
(Actual) (Appropriation) (Request)
General Funds $874,000 $865,888 $865,888
Staff Positions
Authorized 9 9 9
Contractual
2
1
1
11 10 10
Confidential
Re: Questionnaire
Dear :
The State has mandated that all agencies attempt to
determine whether or not they are achieving desirable results with their
services. One of the ways in which we
try to determine this is asking people who contact us to rate our services at
the end of each budgetary year.
Please take a moment to answer the enclosed five
questions and insert your answers in the enclosed self-addressed envelope. We would appreciate a reply by
When
rating us we remind you that our office has limited jurisdiction. We can only investigate and prosecute the
crimes of bribery, misconduct in office, and violations of the State’s Election
and Ethics laws. At the request of the
Governor, Attorney General, General Assembly, or a State’s Attorney we may
investigate crimes that cross jurisdictional lines. Therefore, when we tell complainants that we
cannot investigate their complaints, it is usually due to the fact that their
complaints do not fall within our jurisdiction.
In such cases, we try to refer them to another agency or offer some
helpful advice.
This
is an anonymous survey. Your name
will not be revealed to anyone outside this Office during your participation in
this program. Therefore, there is no
need for you to identify yourself in this survey unless you care to do so. I will personally read your comments if
any. Your suggestions or criticism may
help to improve our office.
Sincerely,
STEPHEN
MONTANARELLI
State
Prosecutor
SM:bmw
Enclosures
Questionnaire
Envelope
FISCAL YEAR 2003 COMPLAINANT SURVEY
Please
indicate your level of satisfaction to the following questions by checking the
appropriate block:
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Satisfied |
Unsatisfied |
Not Applicable |
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1. Was your complaint/inquiry answered in a timely manner? |
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2. Did you feel that the staff member with whom you spoke listened to
your complaint/inquiry and offered a knowledgeable response? |
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3. Did we clearly explain the reasons for what we did or did not do? |
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4. If our office could not assist you, did we refer you to an
appropriate agency or offer helpful advice? |
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5. How would you rate your overall experience with this office? |
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Yes |
No |
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6. Would you contact our office again if you have another complaint? |
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Please
add any additional comments you have regarding the office in the space provided
below:
FISCAL
YEAR 2003
COMPLAINANT SURVEY RESULTS
QuestionAire
Summary
Not Not
Satisfied Satisfied Applicable
1. Was your complaint/inquiry answered in a
timely manner? 89% 11% N/A
2. Did you feel that the staff member with
whom you spoke listened
to your
complaint/inquiry and offered a knowledgeable response? 78% 22% N/A
3. Did we clearly explain the reasons for
what we did or did not do? 72% 22% 6%
4. If our office could not assist you, did we
refer you to an
appropriate
agency or offer helpful advice? 28% 16% 56%
5 How would you rate your overall experience
with this office? 78%
22% N/A
Yes
No
6. Would you contact our office again if you
have another complaint? 78% 22%