Anne Arundel County Ethics Commission v. Dvorak

HOLLANDER, Judge. This appeal arises from a seemingly endless battle between the Anne Arundel County Ethics Commission (the “Commission”), appellant, and Phillip Scheibe, Esquire and Robert Dvorak, appellees, who are former senior level employees of Anne Arundel County (the “County”). 1 The appeal concerns ⁵⁰ appellees’ involvement, after they left County employment, in class action litigation instituted against the County by various property owners, pertaining to the County’s development impact fees. To some extent, the issues are muddled because we have two judicial trains running largely on parallel tracks, with different engineers. As we shall see, however, in this matter the tracks have crossed.

On June 4, 2004, the County Executive of Anne Arundel County filed a Complaint with the Commission against appellees, claiming that they violated Public Ethics Law, Article 9, § 5-105 (“ § 9-5-105”) of the Anne Arundel County Code (the predecessor to § 7-5-105 of the County Code). 2 Following a hearing that began in November 2005, the Commission found in the County’s favor. It issued an Order on March 13, 2006 (the “Order”), requiring appellees to cease their participation in the litigation against the County and to accept no further compensation for their work. The circuit court subsequently affirmed (Harris, Jr., J.). However, in related litigation, the circuit court (Caroom, J.) denied the County’s motion to disqualify Scheibe from his role as counsel for the plaintiffs.

Because appellees allegedly failed to comply with the Commission’s Order, the Commission filed in the circuit court a “Petition for Permanent Injunctive Relief, Imposition of Fines and Other Appropriate Relief’ (the “Petition”). At issue here ⁵¹ is the circuit court’s ruling on December 28, 2007, denying the Petition (Harris, Jr., J.). Appellant presents three questions for our review, which we quote: I. Did the circuit court err by applying traditional equitable principles in a case involving a statutory injunction?

II

Did the circuit court err by reconsidering and relying upon matters that are barred by res judicata?

III

Did the circuit court abuse its discretion or err as a matter of law by relying on laches, hardship to private litigants, the failure of the Ethics Commission to pursue alternative remedies through the Attorney Grievance Commission, and other factors set forth in its decision? For the reasons that follow, we shall reverse in part, vacate in part, and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND 3 Scheibe and Dvorak each worked for the County for many years, in various capacities. Among other positions, Scheibe served as County Attorney for three years, beginning in 1967, and again from December 1994 until May 1999, when he retired.

Dvorak worked for the County for about 23 years, including service as the Director of the Department of Planning and Code Enforcement. He also served as the Chief Administrative Officer from 1994 until his retirement in 1997. The underlying matter is rooted in the case of Halle Development, Inc., et al. v. Anne Arundel County, Case No. C-2001-69418-AA, a class action suit. Suit was filed on February 21, 2001, in the Circuit Court for Anne Arundel County, by Greiber & Scheibe, the law firm in which Scheibe is a principal (sometimes referred to as the “Halle litigation” or “the impact ⁵² fee” litigation). 4 Scheibe entered his appearance as co-counsel for the Halle plaintiffs on December 13, 2002.

The suit alleged that, between 1988 and 1996, Anne Arundel County mishandled and unlawfully used the development impact fees it collected. Greiber & Scheibe hired Dvorak in 2000, before filing the impact fee suit, to examine the County’s public financial records. See Dvorak, 400 Md. at 447-48, 929 A.2d 185 . On December 15, 2006, in the Halle case, the circuit court entered judgment against the County in the amount of $4,719,359, with five percent interest, measured from the date of payment of each fee.

The circuit court also awarded attorneys’ fees, equal to thirty percent of the total recovery. On June 4, 2004, some three years after the Halle case began, and about eighteen months after Scheibe entered his appearance, the County Executive, Janet Owens, filed an ethics complaint with the Commission (the “Complaint”), 5 alleging violations of Public Ethics Law § 9-5-105 of the County Code, based on appellees’ participation in the Halle litigation. Owens averred: In my opinion, the actions of former County Attorney Phillip F. Scheibe and former Chief Administrative Officer and Director of Planning & Code Enforcement Robert Dvorak in assisting and representing plaintiffs in certain cases against the County, constitute violations of the Anne Arundel County Public Ethics Law. While employed by the county, [appellees] participated substantially in matters that are now the subject of the litigation, and both had informa ⁵³ tion not generally available to the public when they undertook the assistance and the representation of the plaintiffs [6] Section 9-5-105, on which Owens relied, provided, in part: § 5-105.

Representation by former employees. (a) A former employee may not assist or represent a party other than the County in a case, contract, or other specific matter for compensation if the matter involves the County and: (1) the former employee participated significantly in the matter as an employee; or (2) the former employee had information not generally available to the public when the former employee undertook the assistance or representation. Notably, § 9-5-105 became effective on November 5, 2008, after appellees had retired from County service. 7 However, it replaced § 9-3-109 of the County’s Public Ethics Law, which was in effect during the time that appellees were employed by the County. Section 9-3-109 provided, in part: § 3-109.

Representation by former employees. (a) A former employee may not assist or represent a person in connection with a specific matter in which the former employee, as a County employee: (1) acted on behalf of or represented the County in a matter involving substantial responsibility on the part of the employee; or ⁵⁴ (2) with reference to which the former employee acquired information not generally available to the public when the former employee undertakes the assistance or representation. Based on the ethics Complaint, the Agency issued subpoenas duces tecum to appellees, requiring them to appear for a deposition and produce documents. Scheibe and Dvorak responded with a “Motion for Protective Order” on August 20, 2004, claiming, inter alia, that the Commission lacked jurisdiction over them and that it sought information relating to attorney work product that was “not subject to discovery.” The Commission denied the motion on August 23, 2004.

Thereafter, on August 26, 2004, the Agency filed in the circuit court a “Petition to Enforce a Subpoena.” On August 30, 2004, appellees filed a “Petition For Appeal” in the circuit court, challenging the Commission’s denial of their motion for protective order. They argued that Dvorak was hired “for the sole purpose of examining and reporting his findings only as regards the financial records of Anne Arundel County, which are public records and are readily available to any citizen”; that thjfe Complaint “as it relates to Phillip F. Scheibe [was] spacious”; and that the Complaint was “politically motivated.” Following a hearing on March 3, 2005, the court (Lemer, J.) issued an Order of that date, granting the Agency’s petition to enforce the subpoenas and directing appellees to comply. When appellees failed to appear, the Agency filed a “Petition for Civil Contempt.” By Order dated June 16, 2005, the court (Hackner, J.) found Scheibe and Dvorak in constructive civil contempt of the Order of March 3, 2005. As to the ethics Complaint, Dvorak and Scheibe filed a motion with the Commission on November 10, 2005, seeking its dismissal.

They argued that the documents on which the Complaint was based are public and are not “privileged or confidential.” They also averred that “it was not possible for them to receive a fair and impartial hearing before the Commission”; that the Commission lacked jurisdiction over matters of professional misconduct applicable to Scheibe; and that ⁵⁵ § 9-5-105 is “vague, arbitrary and capacious [sic] in that it is devoid of any reasonable provisions that limit the amount of time the Commission may exercise its jurisdiction [after] a former employee’s departure from County service.... ” The Commission held an evidentiary hearing over the course of several days in November 2005, December 2005, and January 2006, pursuant to the County’s Public Ethics Law, Article 9, § 4-102(d) (stating that “the Commission shall proceed to a hearing on the complaint, conducted in accordance with this title”). James Cannelli, an employee of the Planning and Zoning Department; Yolanda Takesian, a former Planning and Zoning Department employee; Gregory Nourse, a former Budget Office employee; and Raymond Elwell, the assistant Budget Officer who worked with Dvorak on the capital budget when Dvorak became Chief Administrative Officer, testified regarding Dvorak’s work with the County and his involvement in the impact fee program. In addition, Robert Pollock, Assistant County Attorney, testified that when Scheibe was County Attorney, he asked Pollock to research and present him with a written opinion concerning the County’s impact fee law. The parties also introduced numerous exhibits.

At the conclusion of the hearing, the Commission asked the parties to submit proposed findings of fact and conclusions of law. Although the Agency submitted proposed findings, appellees failed to do so. Instead, on March 7, 2006, appellees’ counsel filed a “Supplemental Motion for Dismissal,” claiming, inter alia, that appellees could not “be charged for ethics violations of law or applicable standards which were nonexistent [sic] during their terms of employment with the County, nor can the Commission assume jurisdiction over [them] for charges based upon laws and standards that were recently enacted subsequent to their retirement.” On March 13, 2006, the Commission issued its “Findings of Fact and Conclusions of Law” (“Findings”), a 35-page document that addressed numerous issues. It determined that it had jurisdiction to consider whether appellees’ involvement in ⁵⁶ the Halle litigation “violated any provision of the current Public Ethics Law, notwithstanding the fact that [appellees] left County employment before 2003____” Moreover, it found, inter alia, that appellees did not “establish any substantive differences between the law that was applicable to [appellees] prior to 2003 [i.e., § 9-3-109] and the law that is applicable to them afterwards [i.e., § 9-5-105]” ... because “[t]he 2003 amendments did not remove the restrictions placed on the [appellees’] post-employment activities by the earlier Public Ethics Law.” 8 The Commission reasoned: The introductory language of prior § 3-109(a), “A former employee may not assist or represent a person in connection with a specific matter ...,” was changed to “A former employee may not assist or represent a party other than the county in a case, contract, or other specific matter for compensation ----” (Emphasis added.) “Person” was merely clarified to mean “party other than the county,” and ... the addition of the terms “case” and “contract” provides more fact scenarios to which post-employment restrictions apply.

By contrast the addition of “for compensation” narrows the overall applicability of the provision ... for purposes of this proceeding the Commission finds these changes have no substantive effect on this case. [9] In addition, the Commission found that Dvorak was a former employee of the County within the meaning of § 9-5-105, as well as former § 9-3-109, and that he had been paid “about $2500 to date for his assistance in the [Halle] case.” Further, it determined that Dvorak possessed knowledge of the County’s impact fee program, gathered from his “various capacities as the director of the Department of Inspections and Permits, the Planning and Zoning Officer, the Director of Planning and Code Enforcement, and as the Chief Administrative Officer of the County----” It also determined that, as a ⁵⁷ County employee, Dvorak had acquired information not available to the public, within the meaning of both § 9-5-105(a)(2) and former § 9-3-109(a)(2). 10 Thus, the Commission found that he “participated ‘significantly in’ (within the meaning of present § 5-105) and had ‘substantial responsibility for’ (within the meaning of former § 3-109) the specific matter at issue [in the Halle case], i.e., the County’s administration of the impact fee program, while he was an employee of the County.” The Commission also stated: In the present case, the factual findings support the conclusion that Mr. Dvorak significantly participated on a regular basis in the administration of the impact fee program. His participation involved precisely the same matters that are involved in the [Halle] case____ Mr. Dvorak’s participation in the administration of the impact fee program encompassed several years of regular managerial decision-making. ... As to Scheibe, the Commission found that when he was the County Attorney, he asked Assistant County Attorney Robert Pollock to “review the County’s impact fee law to determine if in fact the County could use impact fees ... for renovation of existing facilities in the County’s existing school buildings.” Mr. Pollock submitted a written opinion to Scheibe on the ⁵⁸ subject. Based on this testimony, the Commission determined that “Mr. Scheibe participated ‘significantly in’ (within the meaning of present § 5-105) and had ‘substantial responsibility for’ (within the meaning of former § 3-109) the specific matter, i.e., the County’s administration of impact fees, as an employee of the county.” It said: Mr. Scheibe’s participation was more limited [than that of Mr. Dvorak], but equally significant.

Mr. Scheibe’s solicitation of a legal opinion from Mr. Pollock effectively constituted a review of an important legal issue in the [Halle] case. While Mr. Scheibe claims that his involvement was at best “inaction,” the legal conclusion of the memo provided “assistance” in the formulation of the allegations in the [Halle] complaint that the County misused impact fee money for renovation and remodeling. The Commission also found that appellees were in positions of responsibility with the County, they were decision makers with access to other decision makers, and they both participated in the resolution of impact fees issues. They had information, albeit not necessarily documentary, that was not generally available to the public when, in 2002, they undertook to assist and represent the plaintiffs in [the Halle litigation] ...

As long-time, experienced County employees, Mr. Dvorak and Mr. Scheibe should have been aware of the post-employment restrictions and other provisions of the Public Ethics Law, part of the County Code that they were obliged to uphold. The Commission concluded that appellees “violated § 5-105 of the Public Ethics Law with regard to their participation and assistance rendered in the [Halle] case.” Notably, it also said: “To the extent it may be applicable here to actions prior to 2003, we reach the same conclusion under former § 3-109.” On the same date (March 13, 2006), the Commission issued an “Order of Compliance.” It directed Scheibe “to terminate his participation and assistance to the plaintiffs” in the Halle litigation, and “to accept no further compensation for the assistance he has already provided to the plaintiffs____” As ⁵⁹ to Dvorak, the Commission recognized that he “may have concluded the bulk of his assistance to the plaintiffs,” but ordered him “to terminate his participation and assistance to the plaintiffs,” and not to accept any further compensation. Scheibe and Dvorak subsequently sought judicial review of the Commission’s Findings and Order, pursuant to Code, § 7-4-105. They argued that the Commission lacked jurisdiction because § 9-5-105 was not in effect during their employment with the County, and the Agency “failed to produce sufficient evidence to demonstrate the existence of possible violations of the Anne Arundel County Ethics laws.” 11 In their “Memorandum Pursuant to Rule 7-207,” appellees asked the circuit court to reverse the Commission’s “Findings.” They argued that counsel for the County in the Halle case, Linda Schuett, admitted at the hearing before the Commission that, “from day one,” she knew of appellees’ “alleged prior involvement in impact fees” and yet “brought no such evidence” to the attention of the court during the class certification hearing in 2003 (Davis-Loomis, J.).

As a result of Ms. Schuett’s “inaction,” claimed appellees, the Commission was foreclosed by waiver. Further, appellees averred that they were not afforded due process because the County Executive, who initiated the ethics Complaint, appointed the members of the Commission and asked them to resolve a dispute in which the County Executive had a vested interest. In its response, the Agency argued, inter alia, that the Commission had jurisdiction over appellees under both § 9-5-105 and its predecessor, § 9-3-109, and that, in any event, any changes in the law were “purely stylistic” and “insubstantial.” If anything, claimed the Agency, the current provision “impos ⁶⁰ es a more onerous burden of proof on complainants.” The Agency also insisted that appellees “could not have relied in good faith on the inactivity of the County in pursuing ethical misconduct” because, as cabinet level officers in County government, knowledge of the ethics law was imputed to them. In the meantime, on May 8, 2006 (almost two months after the Commission issued its Order of March 13, 2006, and while the judicial review action was pending), the County filed in the Halle litigation a “Motion to Disqualify” Scheibe and his law firm as counsel for the plaintiffs, pursuant to the Maryland Lawyers’.

Rules of Professional Conduct (“MRPC”). See MRPC 1.9, “Duties to Former Clients”; MRPC 1.11, “Special Conflicts of Interest For Former and Current Government Officers and Employees.” 12 In opposition, Scheibe argued that the County had waived any right to disqualification because of its inordinate delay, measured from the institution of suit in 2001 to the filing of the motion to disqualify in 2006. The circuit court heard the motion to disqualify before it ruled on appellee’s petition for judicial review of the Commission’s Order of March 13, 2006. Because the appeal of the Commission’s Order had not yet been decided, the County did not ask the judge in the impact fee matter “to apply the Commission’s Order.” Anne Arundel County v. Halle, supra, No. 2552, slip op. at 33.

On June 5, 2006, in the Halle case, the circuit court (Ca-room, J.) denied the County’s motion to disqualify Scheibe and his law firm. The court reasoned: [T]he County chose to delay this filing more than five years until 2006. The Ethics Commission investigation and opinion added little to the motion’s factual basis. Even if the Ethics Commission investigation were construed as an appropriate and necessary first step for the filing of the motion, there is no sufficient explanation of why that investigation was delayed for three years ⁶¹ ...

This Court finds that the County waived its right to ask for the removal of Plaintiffs [sic] counsel due to the inordinate delay in seeking this drastic remedy [of disqualifying counsel]. The court also noted that it had to “consider additional factors embodied in the Rules and case law which were not considered by the Ethics Commission” and that appellees “may contest the Commission’s fact finding in that separate litigation.” As noted, the circuit court awarded a judgment of $4,719,359 against the County in the Halle litigation, as well as attorneys’ fees to counsel for the plaintiffs. In its appeal from that judgment, the County challenged, inter alia, the circuit court’s denial of its motion to disqualify Scheibe. In an unreported opinion, a panel of this Court stated: “We find no reversible error on the part of the circuit court in its denial of disqualification____” 13 See Anne Arundel County v. Halle, No. 2552, supra, slip op. at 37.

Writing for the panel, Judge Rodowsky explained, id. at 36: [T]he circuit court focused on the acknowledgment by the County Attorney in her affidavit that she was aware that the files in her office contained documents relating to impact fees that had been addressed to Scheibe or on which he was copied. It found no explanation why the County had not earlier initiated its investigation by examining its own files or by interviewing holdover staff. In addition, the circuit court placed heavy emphasis on the factor of prejudice to Owners. It said: “There can be no question that, as this case draws nearer to its conclusion, after dozens of dispositive motions, thousands of pages of transcripts, two interlocutory appeals, etc., that obtaining new Plaintiffs’ counsel for this class action would be difficult, costly, and very time consuming.” Based on its consideration of all of the factors stated above, the court found that, due to inordinate delay ⁶² on its part, the County had waived its right to seek disqualification.

The panel reasoned, slip op. at 87: We find no reversible error on the part of the circuit court in its denial of disqualification sought under the MRPCs. First, we do not interpret the court’s reference to ruling as a matter of law to mean that the court believed that it lacked discretion to grant the motion. Indeed, in a footnote to its opinion, the circuit court observed that if the motion had been filed promptly in 2001 “the result likely would have been the opposite.” ... We hold ... that the procedure followed by the trial court was, in effect, governed by Maryland Rule 2-502.n Disqualification was a separate issue that was decided under Rule 2-502, which permits the court to draw inferences from the facts presented.

The finding of inordinate delay was not clearly erroneous. Substitution of new counsel for Owners, in litigation that has been pending for almost seven years, that has produced eight file boxes of court records, undoubtedly even more volume for the files of Counsel, and 6,568 pages of record extract, would have extended the delay in the resolution of this matter, increased expense, and further reduced the fund to be distributed to Owners. Any violation by Counsel ... of the MRPCs can be addressed by Bar Counsel. [14] ⁶³ With respect to enforcement of the Commission’s order, however, the above analysis is inapplicable. The Commission ordered Scheibe to terminate representation of Owners and to accept no further compensation.

Scheibe’s unsuccessful efforts to overturn that order have been exhausted. To the extent that Scheibe continued to participate in this litigation after that order was entered, he took the risk that there would be no reversal [of the Commission’s Order]. The circuit court had no discretion or power to decline to enforce, on waiver grounds, the Commission’s order. Accordingly, on remand, the circuit court must reconsider its award of counsel fees.

On remand, the circuit court may hear argument and, if it so chooses, take testimony on the question of an appropriate manner of enforcing the Commission’s order. (Emphasis added.) [15] Of import here, Judge Rodowsky also said: “[T]he reasonableness of legal fees is a question for the court.” Id., slip op. at 51. In connection with the remand, the Court said: “The [circuit] court then, in its discretion, should consider, in light of this opinion and its further findings, whether to adjust, up or down, the provisional fee to Counsel, without reflecting Scheibe’s disqualification.” The panel also suggested application of a formula that the Court included at the end of the opinion, “as a possible method of implementing our holding on disqualification____” Id., slip op. at 52. Thereafter, in the ethics litigation, the circuit court (Harris, Jr., J.) issued an “Opinion and Order” on August 30, 2006 (filed September 6, 2006), affirming the Commission’s Find ⁶⁴ ings of March 13, 2006.

Noting that appellees had the burden to “show by clear and satisfactory evidence that the Commission’s decision is illegal or unreasonable,” Judge Harris said: “It is not this court’s role to substitute its judgment for the expertise of the [Commission] in reviewing the Commission’s Findings....” On September 11, 2006, appellees filed a “Motion to Alter, Amend” the Order of August 30, 2006, arguing that the court failed to consider numerous issues that they had raised in their May 25, 2006 memorandum. The court denied the motion on October 4, 2006. Appellees appealed the circuit court’s ruling in the ethics case to this Court on October 16, 2006. Before this Court considered the matter, the Court of Appeals granted certiorari, 397 Md. 396 , 918 A.2d 468 (2007).

But, the Court subsequently dismissed the appeal, for lack of appellate jurisdiction. See Dvorak, supra, 400 Md. 446 , 929 A.2d 185 . In its opinion of July 31, 2007, the Court of Appeals pointed to Md.Code (2006 Repl.Vol.), § 12-302(a) of the Courts and Judicial Proceedings Article, which states: “Unless a right to appeal is expressly granted by law, § 12-301 of this subtitle does not permit an appeal from a final judgment of a court entered ... in reviewing the decision of the District Court, an administrative agency, or a local legislative body.” The Court explained that there is “no provision of Anne Arundel County law that confers a right of appeal to the Court of Special Appeals in this kind of case____” Id. at 459, 929 A.2d 185 . Moreover, it stated that Dvorak and Scheibe “failed to raise any question concerning the Circuit Court’s jurisdiction ‘to sit in review of such a judgment____’” Id. at 459, 929 A.2d 185 (citation omitted).

On September 10, 2007, pursuant to County Code § 7-8-101 and § 7-8-102, 16 the Agency filed in circuit court a “Petition ⁶⁵ for Permanent Injunctive Relief, Imposition of Fines, and Other Appropriate Relief’ (the “Petition”), to “compel compliance” with the Commission’s Order of March 13, 2006. In its Petition, the Agency averred: Dvorak and Scheibe have been in violation of the ethics law on a continuous basis beginning on February 1, 2001 and continuing through the present time, for a minimum total of approximately 2040 days, with each day constituting a separate violation of the law ... The [appellees] are continuing to assist and represent the plaintiffs in the Halle case as evidenced by [an] affidavit ... and [other] accompanying documents. The Agency asked the court to permanently enjoin appellees “from continuing to assist and/or represent the plaintiffs in the Halle case”; enjoin them from accepting any compensation from or on behalf of the plaintiffs; require them to “disgorge any and all compensation received to date” from the Halle case; and to impose a civil fine of an “appropriate amount up to $1,000.00 for each day the violation occurred.” Appellees moved to dismiss the Petition on September 24, 2007.

They argued, inter alia, that the court lacked subject matter and personal jurisdiction, and claimed that the request violated Articles 17, 19, and 24 of the Maryland Declaration of Rights. Appellees also claimed that the Commission’s Order of March 13, 2006, was “barred under the doctrines of waiver, judicial estoppel, and preclusion,” and was “mooted” by Judge Caroom’s Order of June 5, 2006, denying the County’s motion to disqualify Scheibe. ⁶⁶ On December 18, 2007, the circuit court (Harris, Jr., J.) held a motion hearing. The following colloquy is pertinent: THE COURT: [Bjecause the County was so long in filing to get this whole thing started Judge Caroom, I believe, ruled that it would be prejudicial to the Plaintiffs [in the Halle litigation] to toss their attorneys out 80 percent into the case. [APPELLANT’S COUNSEL]: Yes, Your Honor, but what he said was that the County had waived its right to pursue any conflict of interest. We are not the County.

We were not party to the case. We had no chance to argue that case. The ethics law was not a question in that case. The ethics law was not even involved in that case.

We weren’t party to that case. THE COURT: [H]ere is the problem I am having. If I were to go ahead and grant your injunction, which you may be entitled to, quite frankly because this [ethics] case has run its course. It went up [to] the Appellate Court ... it went to the highest Appellate Court and they said that the appeal was dismissed.

So my decision stands in that regard, but if I were to grant your injunction, wouldn’t that undermine what Judge Caroom already has in the works? [APPELLANT’S COUNSEL]: No, Your Honor, because Judge Caroom’s decision [to deny the motion to disqualify] was based on waiver and waiver only applies to the government when it’s a corporate decision. Appellant’s counsel acknowledged that “after four years it doesn’t seem to have much value to impose an injunction ... it doesn’t have any practical purpose ... The [Halle] case is almost over.” She indicated that appellant’s primary concern was that appellees “aren’t unjustly enriched because of this egregious violation,” asserting: Now they have, knowing since 2004 that this was a problem, continued to participate in this case. To me, if they are getting attorney’s fees and expert witness fees, it would be totally inappropriate.

They have violated the ethics law. If ⁶⁷ you look at the findings of fact and conclusions of law, which you affirmed, those violations are egregious, absolutely phenomenally so. For them to receive profit as a result of those actions, would absolutely make the ethics law worthless. The court asked if appellant meant for it to be an “all-or-nothing proposition,” by which appellees would get no compensation for their work on the Halle litigation.

Appellant’s counsel responded: That’s right and they should not have started this work. I daresay Mr. Scheibe, having been a former County attorney and Mr. Dvorak, having been a cabinet member should have known darn well that they were not legally permitted to get involved in this kind of situation. Now the fact that they chose to ignore the law and they chose to fight us for the last four years, does not mean that it is okay for them now, because they have worked so hard, to get their attorney’s fees and their witness fees for this. They have been perpetuating the wrong that they have started in—that Mr. Scheibe and Mr. Dvorak got involved in less than two years after they left the County government.

They knew what they were getting into and they have been wrong from the get go. Appearing pro se, Scheibe argued, in part: I don’t believe this Court has the right to grant the [appellant’s] request for relief and there are two salient reasons in particular as to why this request for permanent injunctive relief must be denied. The first centers on the legal effect of Judge Caroom’s opinion and order of June the 5th of 2006, which if the relief sought is granted would effectively render Judge Caroom’s opinion and order null and void. Anne Arundel County, the government of Anne Arundel County, elected in the Halle class action litigation to file a motion to disqualify counsel for participating in the litigation based exclusively upon the Ethics Commission’s administrative findings.

There were no other facts---- ⁶⁸ [O]f course you know the Court rejected that. The [appellant] now argues they are not bound by the doctrines of res judicata or judicial estoppel or preclusion because the [appellant] is not a party to the Halle case, but if it may please the Court, how is it possible that they are not a party to the Halle case? Isn’t the Anne Arundel County Ethics Commission a part of the Anne Arundel County government? Isn’t the Halle class action case against the same County government? * * * The Ethics Commission is a political body that is appointed by the County executive and the County executive was Janet Owens and it was she who filed the ethics charges against the [appellees]---- She was filing ethics charges on behalf of the Anne Arundel County government, not anybody else — •1* H' ^ So now the question before the Court is, can the Anne Arundel County’s Ethics Commission administrative decision take precedence over Judge Caroom’s order and opinion of June the 5th of 2006.

Bear in mind, the Ethics Commission findings were dated March 13, 2006____ Secondly, under what theory of law may this Court claim it has the jurisdictional authority to grant injunctive relief which would effectively discipline an officer of this Court by preventing him from engaging in pending litigation, which has been granted by another Circuit Court judge. • Scheibe accused appellant’s counsel of asking the court to “back door it” by having Judge Harris tell Judge Caroom that appellees can no longer participate in the Halle case. Scheibe also reiterated arguments advanced in his earlier submissions regarding jurisdiction, ex post facto application of the County Code provisions, the availability of information to the public, and the lack of due process. Counsel for Dvorak stated, in part: [W]hat we are looking at is the ability to file the Ethics complaint four years later, in July of 2004 unless they have ⁶⁹ waived that right and that is what Judge Caroom said. That is cutting to the chase.

That is exactly what he said. We come back and on January of 2003 and 4, before another member of this bench there was a class action certification hearing. An amazing thing occurred there, Mr. Scheibe voir dire [sic] and qualified Mr. Dvorak and the County was present, no objection---- Did one of your counterparts, an associate Judge of this bench, Nancy Davis-Loomis address that issue? She sure did.

In her opinion she said as follows, “The qualifications of Plaintiffs counsel are fully outlined in the motion for class certification and the subsequent response: they are more than adequate. The County does not dispute the ability or the experience of Plaintiffs attorneys.” She said this too in the body of her opinion, “The Court is directed to look for an absence of conflict of interest as well as vigor, experience and diligence of counsel. No conflict of interest has been brought to the attention of this court.” Noting that the County Executive did not file her ethics Complaint until after the circuit court ruled on the liability of the County in the Halle litigation, 17 Dvorak’s counsel argued: They said, “Hey file an ethics complaint. We will bootstrap that to a later motion to disqualify and we will get rid of everybody,” but they got sidetracked a little bit because Judge Caroom wouldn’t buy that.

He asked the same thing, “Why, when you had in your files from day one and you admit knowledge of day one, did you not look at it, did you not call somebody?” * * * ⁷⁰ It is the Plaintiffs who suffer in [the Halle] case. Because of what? Because of the County’s inability to bring this timely. They have waived it.

They are estopped. Whether you look at an issue preclusion, judicial preclusion, they simply have no ability to bring the ethics complaint in the first instance. Dvorak’s counsel acknowledged the court’s comment that perhaps Scheibe and Dvorak should have realized that their involvement in the Halle case might be problematic. But, he argued: “Why did not the County object when they first knew of their employment in that case? ...

You can’t simply sit by, draw somebody in and after the liability hammer drops, come out and say “We are now offended by your participation in the case.’ ” In response, appellant’s counsel maintained that the Commission is an independent body, separate from the County, pursuant to Article X, § 1001 of the Anne Arundel County Charter. 18 She also averred that the Commission merely responded to a Complaint, stating: The Ethics Commission received this complaint in 2004, which was scarcely two years after Mr. Scheibe says he entered his appearance for Halle. Under a statute of limitations that would be under three years. Under laches that would be less than three years. The Ethics Commission responded to a complaint it received.

By law, that is all the Commission can do. It must take a complaint. It must investigate it and it must pursue it. That is what the Ethics Commission did.

The Ethics Commission was not a party to Halle. They were not sued by Mr. Scheibe or Mr. Dvorak. They were not privy to any of the pleadings filed in that case. The fact of the matter is the Ethics Commission did not know that case was going on.

God help us if we are responsible to ⁷¹ know every County action that is going on without being told. In addition, appellant’s counsel pointed out that Judge Harris had affirmed the Commission’s decision that appellees had “violated the ethics law, that they had participated significantly as employees, turned around and sued the County and that they had information not available to the public when they did so.” Further, she argued that the Commission cannot go to the AGC and complain about Scheibe’s conduct because the Commission’s job is not to enforce the Professional Rules of Conduct. Rather, its job is to enforce the post-employment provisions of the County’s ethics law. The following ensued: THE COURT: Think about who is going to be harmed by this. [APPELLANT’S COUNSEL]: The citizens of the County Your Honor.

THE COURT: [The Halle] Plaintiffs, [appellees’] clients are going to be harmed by it. [APPELLANT’S COUNSEL]: And so are the citizens of the County. If these Respondents receive their attorney’s fees. If the citizens of this County are told “Well yeah, they violated the ethics law, but you know they have been working on this case so long they ought to get paid for it.” What does that tell the County citizens? That’s okay, charge them with an ethics law violation, but let’s get real here, that doesn’t matter____ The following exchange is also noteworthy: THE COURT: ...

When you calculated th[e] amount of days that you want me to sanction them on, are you going back to the period of time where they first started representing their clients in this case? [APPELLANT’S COUNSEL]: Yes, I am. THE COURT: [E]ven when your client was lax in pursuing this? That is like sitting back and waiting for someone to do all the work and then coming in at the last minute and pulling the rug out from under them. It makes no sense. ⁷² [APPELLANT’S COUNSEL]: The Anne Arundel County executive is not our client.

THE COURT: Well, who is your client? [APPELLANT’S COUNSEL]: The people of Anne Arundel County, the citizens. * * * THE COURT: There has already been a decision all of the way up the ladder that they are in violation. That’s not— [APPELLANT’S COUNSEL]: So what you are saying is that Yes, they have been working so long in this, you know, how can I deny them all of this money they earned even though they violated the ethics law clearly. You know that is no big deal.’ That is what you will be saying if you don’t sanction them in some significant way. You will be saying that their unethical conduct pales in comparison to the work they put into this lawsuit and the fees that they should be earning____ That certainly is not what the ethics law is about.

Dvorak’s counsel asserted: Again, to me the salient issue, if I were sitting in your position is, does her client, the County executive on behalf of the County have the ability to initiate the complaint and she clearly did not because Judge Caroom said: ‘You waived that right.” You have to initiate your response from day one. You can’t just sit idly by and wait to see how things shake down and that is exactly what they did. At the close of the hearing, Judge Harris delivered an oral ruling, stating: My involvement, I thought stopped at the point the Court of Appeals, the highest Appellate Court had basically dismissed the appeal. Now I am being asked today to, in effect, punish the Petitioners in this case and the punishment that the County or the Ethics Commission is asking is a rather Draconian punishment quite frankly, to make them forfeit all of their prior compensation that they may have earned. ⁷³ I am sure this case was taken on some sort of a contingency fee.

For them not to participate in the litigation while there is a case pending in our appellate courts right now and then the bitterness that has gone back and forth in this case between the people I am seeing today I think has compromised the true victims in this case and that is their clients, the litigants. Whether it is Mr. Scheibe and Mr. Dvorak or another attorney and someone else pursuing this case, they, in all probability, would have prevailed but you are asking me to issue an injunction that quite frankly I am not inclined to do. I am not inclined to do it for several reasons.... I feel, that if I were to go ahead, and grant your relief today that in effect I would be interfering with progress with Judge’s Caroom’s case because I think both of our orders would be in direct conflict with each other.

Maybe I would think differently if this case were just starting. You know, if this whole thing had—because I think timeliness is something that permeates this entire case. Everything that has happened of any significant consequence seems to have been done in an untimely fashion and that includes the involvement when the ethics complaint was first filed, but that is something that I don’t have to concern myself with today. There are innocent litigants in this case and I think if I were to grant your relief and the injunction, it would undermine everything that has progressed up to this point.

I don’t know whether Mr. Scheibe and Mr. Dvorak are going to eventually get paid in this case. I don’t know what other mechanism there would be to block their compensation, but up until the last ten minutes of this argument, the whole thing has been going through my mind is the issue of the Attorney Grievance. (Emphasis added.) The court also said: “The fines I think is [sic] a very unreasonable request when it is in line with also asking them to forfeit their compensation that they may have already earned in this case.... This is a Court of equity and I just don’t think that is the