Retired Baltimore City Solicitor and former U.S. Appeals Court Judge Andre M. Davis has issued a sharp rebuke to his successor’s claim that the Maryland Public Information Act (MPIA) restricts the Office of Inspector General’s direct access to city records.

Stepping into the legal battle waged between the current solicitor, Ebony M. Thompson, and Inspector General Isabel Mercedes Cumming, Davis called the city’s position a “novel and extraordinary assertion” of the law that was never raised – or thought applicable – during his term in office between 2017 and 2020.

“Had such a proposition been advanced during my time as City Solicitor, the CLD [City Law Department] would have done absolutely everything within its authority to rebut such an assertion and confirm that direct access by the OIG is entirely consistent with disclosure requirements and mandatory exemptions and exceptions contained in the Maryland Public Information Act,” he said, in an affidavit filed Friday in Baltimore Circuit Court.

“From the very beginning of my tenure,” Davis continued, “the CLD and the OIG under the leadership of Inspector General Cumming worked collaboratively but independently, each in its own sphere. The OIG had plenary access to all sources of information necessary to conduct and timely conclude its investigations.”

At issue is Thompson’s claim that the MPIA law restricts the fraud watchdog from examining medical, financial and personnel records, with the law department acting as determiner of what material the office can see.

Given his 30 years as a state and federal judge, Davis’ sworn statement adds legal heft to Cumming’s lawsuit seeking full financial and personnel records, including for the SideStep Youth Diversion program whose redacted records set off the confrontation between the two offices last January.

Thompson and Cumming will face off tomorrow morning through their lawyers at a hearing before Baltimore Circuit Court Judge Pamela J. White.

The city is calling for dismissal of the lawsuit, while Cumming wants the court to affirm the OIG’s authority to obtain records and enforce subpoenas without administration interference.

Asked to comment today on Davis’ statement, the mayor’s press office stated, “As this matter is the subject of active litigation, we will reserve our comments for the appropriate judicial forum.”

“Cooperative and worry-free”

Davis paints the working relationship between the law department and Cumming during his tenure as “seamless, cooperative and worry-free.”

“The OIG operated with the full understanding that whatever access to digital information from any source whatsoever within City government was to be provided directly to the Office of Inspector General and then, as now, the City’s information technology policies were and are clear in this regard,” he said.

Davis said he was responsible for hiring Cumming after a long period when the watchdog office was moribund, its chief, Robert H. Pearre, forced to resign by then-Mayor Stephanie Rawlings-Blake after he refused to halt an investigation of her top information officer.

The Brew covered the issue in depth (here and here), with Pearre telling The Brew afterwards that the OIG was stymied by “a lack of independence from political influence.” The same assertion was echoed by then-City Solicitor George Nilson, who was also forced to resign.

Out of this mess, Davis, a retired senior appeals judge at the U.S. Fourth Circuit Court, took over as city solicitor in September 2017.

With the support of incoming Mayor Catherine Pugh, “I conducted a nationwide search for an Inspector General,” Davis said in his affidavit to Judge White.

“I received numerous applications from around the country from persons of varied backgrounds and experiences. I interviewed approximately three or four candidates. One candidate stood head and shoulders above all the others: Isabel M. Cumming, Esq. Ms. Cumming had demonstrated through many years of experience as a prosecutor, certified Inspector General, certified Fraud Examiner, and Deputy Inspector General of the District of Columbia Metro system, an outstanding record of competence, integrity, professionalism, and a decades-long commitment to public service. I hired her to commence in or about January 2018.”

Davis said his office and the OIG worked together during “the events that rocked City Hall in the spring of 2019,” when Pugh resigned following the “Healthy Holly” book scandal and her subsequent plea deal to federal wire fraud and tax evasion charges.

He said Cumming assisted the law department “in connection with an investigation of the then-mayor, followed shortly thereafter by an FBI investigation into the hacking attack that effectively shut down critical City services for many weeks. The OIG’s contributions to those efforts were little known but deeply consequential.”

“I can recall no instance in which any lawyer brought to my attention a concern regarding the capacity and the authority of the Inspector General to access any and all information reasonably necessary to the conduct of an investigation”  – Andre Davis.

Saying he was “emphatic” that the OIG must be free of interference from the mayor’s office or, if a conflict arose, the law department, Davis said he worked with the City Council to get a charter amendment on the ballot that placed the OIG as an independent agency with the authority to enforce subpoenas in court.

“This decisive break from the prior regime (wherein the permission of the City Solicitor was required for the OIG to seek judicial enforcement of its subpoenas) was absolutely critical to the City Council resolution and the Charter Amendment [Question F],” he said.

The amendment passed with 79% of the vote in November 2018.

During his 2½ years as city solicitor, “I can recall no instance in which any lawyer in the [law department] brought to my attention a concern regarding the capacity and the authority of the Inspector General to access any and all information that was reasonably necessary to the conduct of an investigation by the OIG,” Davis said.

Nor was he aware of “any state statutory law nor any common law or statutory privilege doctrines” presented “as a legitimate impediment to the OIG’s access to information in the possession of City government.”

This led him to his conclusion that the city’s position that the MPIA “somehow impedes the City’s effort to enhance the work of the independent OIG is a novel and extraordinary assertion.”

Thompson Changes the Rules

The assertion of the restrictive nature of the MPIA was first made in internal law department documents not long after Ebony Thompson was named city solicitor by Mayor Brandon Scott in 2024.

Thompson was a junior litigator at the Venable law firm when James L. Shea, her former Venable boss, appointed her deputy city solicitor in 2022.

After Shea resigned in 2023,  Thompson was named in his place. But because she had less than 10 years of experience as a licensed lawyer, she had to serve as acting city solicitor for a year before assuming the city’s top legal post on January 29, 2024.

Earlier this year, Thompson formally announced that, based on what she called “an official legal opinion” issued by the Maryland Attorney General – AG Anthony Brown later clarified to The Brew that it was actually an “advice letter” that “could have been written by a second-year law student” – the OIG had to comply with the 15-year-old Shropshire court ruling that restricted the Montgomery County inspector general’s access to a police officer’s internal affairs investigative files.

In order to comply with this new interpretation of state law, Thompson said the Scott administration was withholding the OIG’s direct access to records, files and digital communications, including the Workday system, that contain such “protected” information.

“These measures will not weaken the OIG,” Thompson said in a news release.

A month later, Cumming and two members of the OIG Citizens Advisory Board filed the lawsuit to enforce the right to subpoena information needed for fraud, waste and abuse investigations.

Attorney-Client Privilege

In addition to asserting that the MPIA restricts certain records from Cumming and her investigators, Thompson says that attorney-client privilege restricts access to additional information generated within the law department.

In his affidavit, Davis sharply disputes this point, noting that “no issue of attorney-client privilege or work product ever arose or was ever thought to arise because both the CLD and the OIG were jointly concerned at all junctures with combating fraud, waste and abuse in City government.”

Davis said access to such information is currently granted to non-attorneys in the law department, including summer interns, law clerks, secretaries and paralegals.

“All this elides the whole question of what is actually protected by attorney-client privilege in the context of municipal corporations,” he stated. “In my tenure as Solicitor, many requests to City lawyers from elected and appointed officials seek political, human resources, business-related, or other kinds of advice well outside the boundary of attorney-client privilege.”

“No issue of attorney-client privilege or work product ever arose because both the CLD and the OIG were jointly concerned with combating fraud, waste and abuse in City government”  – Andre Davis.

Finally, he dismisses the concern that the release of public information after an OIG investigation is completed might make the city liable for a lawsuit.

Before the release of any report to the public, the original detailed report is redacted and a summary report released to the public, he pointed out.

And every report is first delivered to the mayor’s office, city administrator and agency head for review in advance of any public release, giving those discussed in the report the opportunity to respond to the report “in confidence” and to correct any factual or other errors.

“In sum,” Davis concluded, “it is nonsensical to suggest, if any such suggestion might be made, that the possibility of third-party liability is a reason not to investigate alleged fraud, waste, and abuse. The very idea collapses in on itself.”