Legislative Immunity Goes Local: The Defense Was Just Used in an Ethics Matter in Baltimore

It had to happen soon:  a legislative immunity defense has been used in a local government ethics matter, albeit in a city where violations are criminally prosecuted. I happened upon it in my research on my last blog entry, about the Baltimore mayor's defenses of her taking gifts from a city developer when she was president of the city council.

Besides the defenses I discussed, the mayor's lawyers, in a motion to dismiss filed on April 2, made a rather weakly argued legislative immunity case, confusing constitutional and common-law legislative immunity. But if accepted, it could wipe out the prosecutor's proof that the mayor knew that the developer was doing business with the city, evidence necessary because of the criminal nature of the charges (yet another reason why ethics matters should not be criminalized).

The legislative immunity argument is that the prosecutor should not have been able to enter evidence before the grand jury of the then council president's legislative activity, which is where she heard about the developer's relations with the city. More humorously, the defense objects to evidence of her involvement in revising the city's ethics code, which made her cognizant of its provisions.

The principal case upon which the defense depends for its legislative immunity argument is Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (1990). This was a case of age discrimination not really brought against the council, but which would require council members to testify. The court found that they could not be compelled to testify. In other words, it was not an ethics case, it was not brought against a legislator, and it did not involve evidence of legislative activity. In fact, the decision focuses on the wrongness of asking legislators about their motives. That too is not an issue in the current matter.

But distinguishing cases does not lessen the importance of the use of the legislative immunity defense in this Baltimore case, even though I don't think that this defense will work here. As I argued in my recent blog entry on the Nevada case, institutional waiver is meaningful where legislative immunity is based on the common law rather than a constitutional provision. Therefore, the city council's passage of and revisions to the city's ethics code waives the right of its members to employ a legislative immunity defense with respect to the ethics code.

But this is a big city, and there is a prosecutor who is determined to see this case through. In smaller local governments, where funds and egos are in less supply, a legislative immunity defense, or even the threat of one, might be just enough to keep an ethics commission from acting. This is especially true if court decisions in state cases keep going for the legislators, and if the government ethics community does nothing to educate local ethics commission about legislative immunity.

Robert Wechsler
Director of Research-Retired, City Ethics

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