Baltimore County government has a reputation for its lack of transparency and for manipulating information that is released to the public to place county officials, especially the county executive, in the best possible light.

It is living up to that reputation in its response to the controversy that erupted after the surprise decision by County Executive Kathy Klausmeier not to reappoint Inspector General Kelly Madigan to a second and final term and to conduct an “open search process” to select someone for the position.

First of all, one thing is crystal clear:

Klausmeier, who was appointed by the County Council to fill out the remaining term of Johnny Olszewski, has full authority to appoint Madigan to a second term subject only to confirmation by the council.

She chose not to do so. Instead, she decided to conduct a search process to keep open the option of selecting a new inspector general to replace Madigan.

I believe that the county executive’s office has been deliberately ambiguous about her legal authority in an effort to blunt attacks on Klausmeier for not reappointing Madigan. While the ambiguity may have persuaded at least one council member that legislation to clarify the county executive’s authority may be necessary, it was not successful in diminishing the public outcry over Klausmeier’s decision.

Klausmeier informed Madigan in a May 12 letter that she is required by Section 3-14-103 of the County Code to conduct an open search process to fill the position of inspector general that Madigan has been occupying in a “holdover capacity” since January and that, if she wishes a second term, Madigan must reapply for the position and compete against other applicants.

The letter implied that the open search process is compelled by law, and that Klausmeier does not have the legal authority to simply appoint Madigan to a second term. The Banner reported that a spokesperson for Klausmeier stated that Klausmeier and her staff interpreted the ordinance as requiring the county executive to conduct “an open search for a new inspector general,” implying that Klausmeier lacked authority to do anything else.

When asked by WYPR if Klausmeier received legal advice from the County Office of Law about whether she could reappoint Madigan, the county executive’s office chose its words a little more carefully. It said in a statement, “The county executive has the authority under section 3-14-103 of the Baltimore County Code to conduct an open search process, and this is how she has opted to proceed.”

The statement is true as far as it goes and “opted” is the appropriate term. But a more forthcoming response would have added “. . . instead of opting to appoint the current inspector general to a second term subject to confirmation of the appointment by the County Council, which she also has the authority to do.”

Then again, if the statement was completely forthcoming, we’d forget which county we were in.

What The Law Says

Klausmeier’s letter refers to Section 3-14-103 of the County Code, which was superseded by provisions of Section 1014 of the County Charter, approved by county voters in 2024. The relevant provisions of Section 3-14-103 of the Code and Section 1014 of the Charter are identical, so I will refer to the ordinance for the sake of simplicity.

Section 3-14-103(b)(2) provides that an inspector general serving his or her first term “shall be subject to appointment for a second term in accordance with the provisions of subsection (a)(1) of this Section.”

Subsection (a) of Section 3-14-103 is divided into two paragraphs, (a)(1) and (a)(2). Paragraph (a)(1) states that the inspector general shall be “appointed by the County Executive and confirmed by the County Council.”

Paragraph (a)(2) requires a county executive to conduct an “open search process” before making the initial appointment of an inspector general.

Under the rules of statutory construction, the reference to paragraph (a)(1) and the omission of (a)(2) in the section are presumed to be deliberate.

That means that paragraph (a)(1), the requirement for confirmation by the Council, applies to the appointment of an incumbent inspector general to a second term. Paragraph (a)(2), the requirement for an open search process, does not.

The result of the “technical” analysis of the language comports with the obvious, commonsense intent of the charter provision, which is that a county executive may appoint an inspector general to a second term who does a good job during his or her first term.

In short, this is a very easy call.

County Attorney’s Role

The application of Section 3-14-103(b)(2) of the Code to an incumbent inspector general is what lawyers call a “case of first impression,” meaning that it is without precedent in the county.

It would be shocking, and raise an entirely different set of questions, if Klausmeier did not consult County Attorney James R. Benjamin Jr. on her duties and responsibilities under that ordinance before making a decision of the magnitude of the one set forth in her May 12 letter.

It would be equally shocking that, if consulted, he did not explain to her the two options described above, including the option to reappoint Madigan to a second term subject only to confirmation by the Council.

Any advice he gave her should have been in writing. Putting legal advice of this nature in writing, with the reasoning behind the advice fully explained, is a “good government” practice that eliminates later disputes over the substance of the advice. It is key to holding county lawyers accountable for how well they perform their pivotal role in county government.

Knowing how and why decisions are made is essential to transparent and accountable governance. That includes the public’s right to judge for itself the quality of legal advice on which decisions are based – and whether decisions by county officials conform to that advice.

The principle is so important that it is protected by the County Charter, which allows the withholding of written legal advice from public disclosure only if “prepared by or for use of counsel in actions or proceedings to which the county is a party or for use in any investigation authorized by or under this Charter.”

Neither applies to advice to the county executive on her authority under Section 3-14-103(b)(2) of the County Code.

Cover of Secrecy

If Benjamin gave Klausmeier written advice before she wrote the May 12 letter, we have yet to see it.

So far, neither Klausmeier nor Benjamin have made any public comments on her decision – or made themselves available for interviews.

When a group of citizens went to the Historic Courthouse in Towson on Friday to present a 260-signature petition in support of Madigan, they were informed that the county executive was out of town at the International Council of Shopping Centers convention and the Maryland Party in Las Vegas.

Klausmeier may have failed to recognize the extent to which many residents mistrust county government and view Madigan as the lone county official who is on their side, willing to take on the powers-that-be. These residents consider an attack on Madigan to be an attack on them.

The county executive can undo some of the damage by reversing course and appointing Madigan to a second term. Short of that, she must go before the public to explain and answer questions about her decision.

Anything less than that will be seen by her constituents as adding insult to injury.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: dplymyer@comcast.net and Twitter @dplymyer.