Opinion: System Needed for When, How to Remove Officials When Necessary

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During the Health Holly scandal many asked why wasn’t then-Baltimore Mayor Catherine Pugh removed from office?

Under the Maryland Constitution, state and local elected officials are removed from office once convicted of a crime. While the state constitution expressly states that the state legislature has the power to impeach and remove the governor, the lieutenant governor and judges, it is silent on lawmakers’ ability to impeach and remove other elected officials. Finally, local governments can remove their officials if and only if their jurisdiction’s respective charters explicitly provide said power.

Former mayor Pugh did not plead guilty to any crime until months after her resignation. Further, the ability of the state to remove her from office via the state legislature’s impeachment and removal power was a questionable matter that could have sparked a lengthy and uncertain judicial appeal process to resolve.

Many Maryland localities have charters, which allow for the removal of individual officials. Baltimore City’s charter defined certain officials that were removable. Unfortunately, that definition did not include the mayor. Significant political capital and energy were required to force a resignation. Both resources were better served to address other issues and needs of the citizenry.

Until the mayor resigned, the city experienced a scandal without certainty as to when it would end. Further fueling this uncertainty was the city’s lack of apparent legal power to address the crisis on terms that were best for Baltimoreans.

Baltimore risked being led by someone who lost the required moral authority. Concurrently, the possibility existed that one could hold the privileges of office despite violating the oath of that office. Collectively, this eroded public trust and respect in the city government.

Those who govern only do so with the consent of the governed. That consent comes democratically. The ability to revoke said consent, then, must be democratized. The concepts of impeachment and removal exist to provide such as a democratized process.

When systems of governance fail to provide clear and comprehensive guidance on revoking this consent, then the very premise of democracy is compromised. Currently, many question the legitimacy of our nation’s institutions. Society has a sacred duty to strengthen democracy through the process and the rule of law.

Attempting the removal of former mayor Pugh generated a crisis within Baltimore and Annapolis that was preventable and more manageable through improved legal clarity. All it takes is one bad actor to undermine faith in government and create a similar crisis in any jurisdiction.

Some examples include state delegates who violated campaign financing laws, to mayors and county executives caught in corruption scandals, to members of county commissions who provide publicly racist commentary while their respective county champions racial equity and justice initiatives.

The ideal time to address such crises is in advance through evaluating and improving the systems of checks and balances defined by state law and local charters. Governments exist to provide for the collective social welfare while protecting and advancing the fundamental and inalienable rights of we the people in a fair, just and ethical manner.

Unfortunately, individuals exist who use the power of office to abusively advance personal agendas. Uncertainty and lack of clarity in accountability in the face of these actions compromise governmental legitimacy. Further clarity and strengthening of checks and balances are necessary.

At the state level, conversations about the scope of the state legislature’s removal power are necessary. Additionally, local governments are state creations governed by charters. The state should provide legal background rules to guide how localities can remove local officials absent explicit provisions in their respective charters.

Fundamentally, local citizens select their officials via a democratically accountable process. Thus, they, either directly or through their other elected representatives, should be empowered to determine one’s fitness for office and revoke governing consent.

Many localities have provisions in place currently that allow for recall petitions that trigger recall elections for officials. Some counties have procedures to remove an executive from office if they have been unable to perform the office’s duties for 180 days or more — with no requirement to prove malfeasance. However, there are times when the conduct of an official requires a more rapid response due to more egregious behavior.

If a jurisdiction’s charter does not provide additional guidance beyond this, then it does so while subjecting the jurisdiction’s citizens to a significant amount of time addressing unnecessary political quagmires due to inefficient and unclear procedures.

Another county has a charter provision to allow for the removal of a county executive by the county council only when there is a question of physical or mental fitness. Narrowly tailored clauses like this significantly take for granted the existence of other reasons that justify removal from office. Examples, which have occurred in other jurisdictions include corruption and fraud. On its own, this provision is incomplete.

Localities must utilize their charter review processes to evaluate and strengthen their enumerated checks and balances. The goal should be to create a comprehensive system of accountability and guidance for when and how to remove officials, both elected and appointed, from office.

Many believe that the state’s conviction requirement provides for proper due process protections for elected officials that are compromised through further localization and democratization. Beyond questions of systemic efficiency, this argument is normatively flawed on two additional grounds.

Due process exists to protect one’s fundamental and inalienable rights to their life, their liberty and their property. Holding public office is neither a fundamental nor inalienable right. Instead, it is an electorally granted privilege.

Thus, the decision to remove one from office is a question of their fitness to handle the responsibilities and not abuse the privileges that office bestows. That decision must be localized democratized and not solely judicialized.

Second, localized and democratized accountability and procedural and substantive due process are not mutually exclusive. One counter example is when city and county councils conduct hearings. Rules and guidelines govern these hearings. Another counter example is the current electoral process.

Procedures can be defined in charters and state law to regulate the removal processes and proceedings. Charters can provide expressly enumerated bases for removal. Collectively, the protection of process for an ambitious individual can exist without sacrificing society’s collective right to hold their elected officials accountable.

As the state and its localities move review charters and state law, they must review and strengthen the safeguards that serve to protect the legitimacy of the democracy. Legally open-ended questions and purposeless statutory ambiguity that undermines the existence of accountable government are problematic.

The opportune time is now to close them. Marylanders must have the courage and initiative to make the most of this moment.

— RONALD E. STUBBLEFIELD

The writer is an attorney in Baltimore.

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