By Adam Pagnucco.
Part Two recounted the allegations made by former planning director Gwen Wright against Park and Planning and former planning board member Partap Verma and her quest to get text messages through the Maryland Public Information Act (MPIA). What happened next?
On April 13, Park and Planning filed a motion for summary judgment on the grounds that “no genuine dispute of material fact exists and the Commission is entitled to judgment as a matter of law.” The commission stated, “After an adequate search which included a determination that the resigned commissioners had not been provided Commission-issued cell phones during their time as members of the Planning Board, the Commission timely responded to the MPIA request and notified Ms. Wright that it had no responsive records to produce… The Commission did not withhold any public records and cannot, as a matter of law, be enjoined from withholding what it does not have.”
Park and Planning further commented:
Plaintiff has failed to allege any material evidence demonstrating that the resigned commissioners transacted public business through text messages on their personal cell phones during their time as members of the Planning Board. Even assuming that the text messages on the private, personal cell phones of the resigned commissioners contain public records, Plaintiff cannot demonstrate that such records are within the custody or control of the Commission when, at the time of Plaintiff’s MPIA request, the four resigned commissioners were no longer employed by the Commission.
Given that the MPIA neither authorizes nor compels an agency to search a former employee’s personal cell phone, the Commission fully complied with its obligations under the MPIA to conduct an adequate and reasonable search by contacting the former commissioners to request an identification of text messages on their personal cell phones that might constitute “public records” within the meaning of the MPIA. That this search did not produce the records that Plaintiff believes exist does not entitle her to any of the relief she seeks under the MPIA. Nor is Plaintiff’s belief in the existence of additional records sufficient to defeat summary judgment. Accordingly, the Commission is entitled to judgment in its favor.
The agency specifically commented on each of the resigned planning board members. Verma and Carol Rubin said they had no agency-issued phones and did not use their personal phones to send or receive text messages in connection with the transaction of commission business. Gerald Cichy and Tina Patterson did not return the agency’s phone calls.
The motion for summary judgment awaits a decision by Judge James A. Bonifant. Those are the facts of the case at this writing.
Now for a few opinions.
The issue of public officials using private phones to conduct official business through texts and other means is a thorny one. If the court grants summary judgment to Park and Planning on this matter, it would be allowing a huge loophole in the MPIA. Why wouldn’t public officials rely on their private devices for official business if they know that their contents will be undiscoverable under state law?
Next come the implications of Wright’s claims. Her current suit is not an employment action. It’s simply an effort to acquire public information. If she gets that information, what would she do with it? An experienced attorney like Timothy Maloney is not ad libbing. He has a game plan. What would that plan mean for the agency and the former planning board members who terminated Wright? If I were them, I would not want to find out.
Finally, I am baffled as to why Wright’s situation continues to be unresolved more than six months after she was fired. My source network has a sweeping consensus that Wright’s firing was an injustice. It spread shock across the agency and caused staffers to wonder who would be fired next. And it was the key event that prompted the council to push through the resignations of the entire former board.
Wright deserves a public apology and compensation. In fact, it’s in Park and Planning’s own interest to make her whole because if Wright and Maloney haul them into court, they could wind up paying much more. (These are taxpayer funds, folks!) Media coverage of testimony concerning Wright’s allegations could also cause incalculable damage to the agency’s reputation. Let’s remember the critical nature of the agency’s work and its absolute need for public trust.
With an independent investigation commissioned by Park and Planning finding no evidence of a toxic work environment, it’s time for the agency to wrap up this matter once and for all. That includes settling with the award-winning former planning director who should never have been fired last fall.