Bereano v. State Ethics Commission

HARRELL, J. With apologies to the actual dialogue snippet of the character of Captain 1 in the movie COOL HAND LUKE, “What we have here is [a] failure to [agree completely as to reasoning].” This case results .in three opinions with the members of the Court strewn across that landscape. Nonetheless, the views shared by myself and Judges Greene, Karwacki, and Wenner, joined in part by Judge Rodowsky (as explained in his concurrence), result in a majority opinion and judgment of the Court. Petitioner, Bruce C. Bereano, raised two questions in his petition for writ of certiorari: I. Whether the enforcement provisions of the Maryland state ethics laws may be applied retroactively to an agreement that was executed two months before the statute was enacted?

II

Whether the “missing witness rule” should be applica- . ble to administrative agency proceedings in Maryland, and even if it can be, did the Commission commit reversible error by misapplying the rule by violating petitioner’s due process rights to notice and an opportunity to be heard, shifting the burden of proof to petitioner, and ignoring the “peculiar control” requirement? The Court is unanimous in its disposition of the first issue as explicated in Part I of this opinion. We part company, however, as to the disposition of the second issue. Part II of the Court’s opinion is joined in its entirety by myself and Judges Greene, Karwacki, and Wenner.

In a concurrence, ⁷²³ Judge Rodowsky explains what portion of Part II he joins, as well as why he joins the judgment. A dissent by Judge Theime, joined by Judge Getty, reveals why they are unable to subscribe to Part II of the Court’s opinion or the judgment. The result is that the judgment of the Court of Special Appeals shall be reversed and the matter remanded to that Court with directions to reverse the judgment of the Circuit Court for Howard County and further remand the case to the Circuit Court with directions that it reverse the final decision of the State Ethics Commission and remand the case to the Commission for further proceedings not in consistent with this opinion. I. FACTS Petitioner Bereano failed to convince the State Ethics Commission (the “Commission”), 2 the Circuit Court for Howard County, and the Court of Special Appeals that he did not knowingly and willingly violate Maryland Code (1984, 2004 RephVol.), § 15-713(1) of the State Government Article.

He now solicits this Court to find error in the determination that he was engaged for lobbying purposes for compensation contingent upon executive or legislative action. 3 A. The material facts in large measure are undisputed, although their consequences are not. In September of 2001, Bereano, an experienced lobbyist of many years, entered into an agreement to provide lobbying and consulting services to Mercer Venture, Inc., d/b/a Social Work Associates (Mercer). ⁷²⁴ The terms of this agreement were set forth in a letter from Bereano to Mike Traína of Mercer, dated 1 September 2001. This was signed by Traína on 13 September 2001. The letter began with a reference to “our discussions,” and, in its first paragraph, stated: I propose to represent Mercer Ventures in the State of Maryland in a lobbying, political consulting, and strategy development capacity relative to the Company’s plans to develop and obtain contracts and arrangements with various county, municipal, and State government agencies and departments in order to provide and perform on a privatized basis staffing agencies and case management functions.

In addition, I would be willing and able to assist your company with any business development and activities in other states and jurisdictions outside of Maryland. Paragraph two provided: I propose commencing the month of September 1, 2001, a monthly retainer fee of $2,000.00 plus reimbursement for any necessary and reasonable expenses such as postage, duplicating costs, long distance telephone calls, mileage, fax expense, and legislative meals' and entertainment. Any significant or unusual expenses would have to be approved and authorized by you before being incurred. These fees and expenses would be paid and continue on a regular basis once your company attains a financial cash flow, and ability to do so.

(Emphasis supplied.) Paragraphs three and four amplified the services to be provided: The nature and scope of my services for the monthly retainer would include and encompass performing lobbying services, giving advice, consultation, strategy and be a resource concerning legislative and political and government matters at both the State and local levels, attending and participating in all necessary and required meetings, monitoring and watchdogging on behalf of the Company, and providing information to your companies as to matters of ⁷²⁵ concern and importance with its work and relationships with the State of Maryland, as well as any political subdivision in the State and generally performing any and all other such similar and related services and activities as you may request of me. In this regard, I also would register as a lobbyist and fully comply and conform with the State’s applicable law. It is further understood and agreed that in addition to and separate and apart from payment of the aforementioned monthly fee retainer fee and any further increase thereof, Mercer Ventures will compensate and further pay me one percent (1 %) of the first year receivable for continuing representation and services be performed, provided, and made available when and after each separate facility and/or site or location that is opened in which I was involved in securing and participated in obtaining, and/or any contract and performance of services which is entered into by your company with any government entity, unit or agency in the State of Maryland or any other state or jurisdiction in which I worked on the matter. Next, Bereano addressed the subject of relationships with non-governmental entities: As to and concerning any private contracts and business which I assist and help on obtaining for your company it is understood and agreed upon that separate from and in addition to any monthly fee arrangement as set forth herein I also will receive and be paid a monthly agreed upon bonus and reward for each such private contract or business.

As summarized by the Court of Special Appeals in its reported opinion in this case, the following resulted from the signing of this document: On November 13, 2001, Bereano filed a lobbying registration form with the Commission, declaring, under oath, his intention to perform executive and legislative action lobbying on behalf of Social Work Associates, a subsidiary of Mercer. Bereano indicated that the effective date for lobbying on behalf of Social Work Associates for “any and all ⁷²⁶ legislative and executive matters concerning staffing and case management foster care, children and social services issues” was November 1, 2001 to October 31, 2002. Later, on December 1, 2001, Bereano sent an invoice to Mercer requesting a $2,000 retainer for the months of September, October, November, and December. He also requested payment for expenses that included long distance phone calls, mileage, duplicating, and $393.34 in “Legislative Meals [and] Expenses.” Again, in an invoice dated January 16, 2002, Bereano requested payment in the amount of $24,000 for “professional [s]ervices [r]endered,” and a $2,000 retainer for January.

He also sought reimbursement for expenses, including $454.39 in “legislative meals and expenses.” Bereano sent similar invoices to Mercer billing for his monthly retainer fee and seeking reimbursement of “legislative expenses,” meals and entertainment, mileage, duplicating, and long distance telephone calls on February 6, 2002, March 1, 2002, April 1, 2002, May 1, 2002, and June 1, 2002. Traína sent Bereano a letter dated May 17, 2002, detailing Mercer’s recent projects. The letter was accompanied by an “Organizational Capability” statement, listing among Mercer’s “major clients” the following State Agencies: the Department of Public Safety and Correctional Services; the Department of Assessments and Taxation; the Department of Health and Mental Hygiene; the Department of Business and Economic Development; and the Department of Human Resources. Bereano v. State Ethics Commission, 174 Md.App. 146, 156 , 920 A.2d 1137, 1143 (2007). 4 On 12 June 2002, Traína wrote to Bereano that he had learned of an investigation by the press into whether paragraph 4 of their agreement was a prohibited contingency fee. ⁷²⁷ Although Traina told Bereano he considered this a “misinterpretation,” he requested that their contract be amended to delete that language.

Bereano agreed. In addition, Bereano filed with the Commission an amended report on his lobbying activities on behalf of Mercer. In his initial report, dated 31 May 2002, he listed compensation for lobbying activities during the period of 1 November 2001 through 30 April 2002 as $139,379.46. On 13 June 2002, he changed that figure to $17,579.46.

In a later report, filed on 2 December 2002, Bereano stated that he had performed lobbying activities on behalf of Traina’s business from 1 May 2002 through 31 October 2002, for which he had received a total o f $10,000.00. The Commission’s staff initiated a complaint against Bereano on 19 September 2002. A hearing on the merits began on 25 June 2003. Throughout his testimony, Bereano insisted that paragraph 4 of the 1 September 2001 letter agreement did not create a contingency agreement.

He stated repeatedly that he was an experienced lobbyist and legislative draftsman who knew of the longstanding prohibition against contingency fees. He explained the intent of this paragraph as follows: If—what is in the separate arrangement here is that by providing further services, in other words working, continuing representation and services to be performed, I would be paid for additional work and services, not a success fee, not a bonus, not an outcome situation. In other words, the language in here for continuing representation and services to be performed, I would have to work for that; and that is why those words are in there. Now, this has never come to be, but just in discussing it in answering your question, Madam Commissioner, those words are there and were intended to be there to mean that you’re not going just to get something and not do anything or what have you.

You’re going to have to continue working and provide services. ⁷²⁸ As long as, and that’s why this language is in here, I continued to perform work and services. As clear as the nose that I have on my face, I have known from day one, Madam Commissioner, I swear to you, that you can’t have contingencies, and to me contingencies are a bonus, a success fee, here’s something and you’re finished. The intent of this document and the drafting of this document was in compensation for continuing work and it was phrased by saying continuing representation and services to be performed. That is a condition precedent and a continuing condition to the receipt of additional compensation, which, respectfully, in the drafting of this I did not consider to be a contingency arrangement.

I would just say finally, and I mean this sincerely, hindsight, you know, in hindsight could be drafted better, no question. No question. Hindsight is wonderful for everybody. And I say that sincerely.

I’m not saying that just as I’m sitting here on a witness stand under oath. I know it looks that way, but everybody that knows me knows that I have never done a contingency in my life, and I’ve told people you can’t have it. In addition, Bereano testified that it was not he, but his client, who wrote paragraph four: This letter is on my stationery and I did type up and send this letter to Mr. Traína and I am not trying to walk away from it. The truth of the matter is that this language was Mr. Traina’s language.

I’m not making excuses, I’m not walking away from this. It’s on my—I typed it and I signed it. He signed it too. But he gave me this language and I know if he were here under oath he would say that to you as well....

Bereano further testified that Traína never asked him for his assistance with work from State agencies, although he acknowledged that he tried to find opportunities for Mercer in the private sector and at the county and local levels of government. He denied performing any services for Mercer that could be considered lobbying and detailed his work on ⁷²⁹ business development with private entities. He explained that he registered as Mercer’s lobbyist out of an abundance of caution, as previous legal problems had convinced him always to make the fullest possible disclosure. When confronted with his bills to Mercer for “legislative meals and expenses,” after 1 November 2001, under paragraph 2 of the 1 September 2001 letter of agreement, Bereano gave several accounts of what had happened during meetings with legislators.

He denied that the terms used in these bills meant he had been lobbying: It was related to meetings that Mr. Traína and I had with legislators that he knows that were social in nature. There was no discussion of any bills or any policies or any actions or anything of that nature. Mr. Traína from a previous job came to know a number of state legislators, so whenever we had social time periods with those legislators, that’s what these charges related to. He also stated that he had not billed Mercer for “social time,” Subsequently, he elaborated: Q. But you testified that you didn’t speak to any public officials with regard to Mr. Traína— A. On lobbying matters.

They were all social. Mr. Traína has known from a previous employment a number of legislators in the Baltimore area. And on social occasions, there was no issues, no lobbying, no bills, nothing. Q. If it is a, if it’s purely a social meal or social dinner, why is it being billed?

You mean to tell me you don’t discuss business with these legislators? A. No, no, there’s nothing to discuss. Q. Then why is it billed as an expense if it’s not related? A. Because Mr. Traína under our agreement is going to reimburse me for my expenses.

Sometimes I would pick up not only my meal but his meal and then bill him back. In explaining his billing practices, however, Bereano noted that personal relationships were an advantage to his clients: ⁷³⁰ [I]in lobbying you can spend a few moments talking to a public official and it’s very valuable to your client. Because you’ve had immediate access or you have a foundation of relationship for that conversation, you can get a quick result or action or decision or clarification. The value of that is far greater than maybe 15 minutes of an hourly billing or something of that nature.

So the' clients understand that, the lobbyist understands that. (Emphasis added). B. THE STATUTE Bereano concedes that Maryland law has long prohibited contingency fees for lobbying. Prior to 1 November 2001, this prohibition was codified in § 5-706 of the State Government Article, which provided: A regulated lobbyist may not be engaged for lobbying purposes for compensation that is dependent in any manner on: (1) (i) the enactment or defeat of legislation; or (ii)any other contingency related to legislative action; or (2) (i)the outcome of any executive action relating to the solicitation or securing of a procurement contract; or (ii) any other contingency related to executive action.

Although the prohibition existed, a sanction did not. A Study Commission on Lobbyist Ethics, established in 1999, recommended the adoption of sanctions. (H.J.R. 20, Chapter 3, Acts of 1999 and S.J.R. 3, Chapter 2, Acts of 1999). In response, the General Assembly adopted the following legislation, which became effective on 1 November 2001, codified as § 15-405: (d) If the Ethics Commission determines that a respondent has violated Subtitle 7 of this title, the Ethics Commission may: ⁷³¹ (1) require a respondent who is a regulated lobbyist to file any additional reports or information that reasonably relates to information required under §§ 15-703 and 15-704 of this title; (2) impose a fine not exceeding $5,000 for each violation; or (3) subject to subsection (e) of this section, suspend the registration of a regulated lobbyist.

(e)(1) If the Ethics Commission determines it necessary to protect the public interest and the integrity of the governmental process, the Ethics Commission may issue an order to: (1) suspend the registration of an individual regulated lobbyist if the Ethics Commission determines that the individual regulated lobbyist: 1. has knowingly and willfully violated Subtitle 7 of this title; or 2. has been convicted of a criminal offense arising from lobbying activities; or (ii) revoke the registration of an individual regulated lobbyist if the Ethics Commission determines that, based on acts arising from lobbying activities, the individual regulated lobbyist has been convicted of bribery, theft, or other crime involving moral turpitude. (2) If the Commission suspends the registration of an individual regulated lobbyist under paragraph (1) of this subsection, the individual regulated lobbyist may not engage in lobbying for compensation for a period, not to exceed 3 years, that the Commission determines as to that individual regulated lobbyist is necessary to satisfy the purposes of this subsection. (3) If the Commission revokes the registration of an individual regulated lobbyist under paragraph (1) of this subsection, the individual regulated lobbyist may not engage in lobbying for compensation. ⁷³² C. STANDARD OF REVIEW Our review of the Commission’s fact-finding does not permit us to engage in an independent analysis of the evidence. Anderson v. Dep’t of Pub.

Safety & Corr. Servs., 330 Md. 187, 212 , 623 A.2d 198, 210 (1993). Under no circumstances may we substitute our judgment for that of the agency. Id. “That is to say, a reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test to the final decisions of an administrative agency----” Balt.

Lutheran High Sch. Ass’n., Inc. v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985); Anderson, 330 Md. at 212 , 623 A.2d at 210 ; Bulluck v. Pelham Wood Apts., 283 Md. 505, 513 , 390 A.2d 1119, 1125 (1978); Moseman v. County Council of Prince George’s County, 99 Md.App. 258, 262 , 636 A.2d 499 . 501 (1994). In this context, “ ‘substantial evidence,’ as the test for reviewing factual findings of administrative agencies, has been defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion____’ ” Bulluck, 283 Md. at 512 , 390 A.2d at 1123 (quoting Snowden v. Mayor of Balt., 224 Md. 443, 448 , 168 A.2d 390, 392 (1961)). We are also obligated to view “the agency’s decision in the light most favorable to the agency, since its decisions are prima facie correct and carry with them the presumption of validity.” Anderson, 330 Md. at 213 , 623 A.2d at 210 ; Bulluck, 283 Md. at 513 , 390 A.2d at 1119 .

D. “engaged for lobbying purposes” Bereano commences by contending that he was not subject to any sanction because he was not “engaged for lobbying purposes” on behalf of Mercer on or after 1 November 2001, the date when the legislation took effect. At the threshold, we agree with Bereano on the question of whether the sanction provision of § 15-405 may be applied retrospec ⁷³³ tively. In general, statutes are presumed to operate prospectively unless a contrary intent appears. A statute will be given retrospective effect if that is the legislative intent, but not if this would impair vested rights, deny due process, or violate the prohibition against ex post facto laws.

A statute governing procedure or remedy is applied to cases pending in court only when the statute becomes effective. Allstate Ins. Co. v. Kim, 376 Md. 276, 289 , 829 A.2d 611, 618 (2003). In State Ethics Commission v. Evans, 382 Md. 370 , 855 A.2d 364 (2004), we applied these principles to the statute in question in the instant case.

Evans was a registered lobbyist who was convicted of wire and mail fraud in the United States District Court for the District of Maryland as a result of his lobbying activities. Evans, 382 Md. at 373 , 855 A.2d at 365 . He completed his sentence in 2000, before § 15-405 took effect. Id.

In 2002, after that section had been in effect for several months, Evans attempted to return to lobbying and the Commission immediately attempted to sanction him under its newly granted authority. Evans, 382 Md. at 373 , 855 A.2d at 366 . We held that § 15-405 was unavailable as the basis for sanctions unless the improper conduct occurred when that statute was in effect. Evans, 382 Md. at 388 , 855 A.2d at 374 .

Bereano submits that his plight is indistinguishable from that of Evans. He classifies any improper conduct as the inclusion of a prohibited contingency clause in the agreement by which he was retained, a discrete act that occurred prior to 1 November 2001, the effective date of § 15-405. Bereano testified that he did not fulfill the agreement by lobbying on behalf of Mercer after 1 November 2001. For diverse reasons, we disagree.

First, under the applicable standard of review, the Commission was empowered to resolve conflicts in the evidence, based upon its conclusions concerning its determination of the credibility of the testimony and evidence presented. Faced with conflicting evidence in the form of Bereano’s 13 November 2001 registration as a lobbyist on behalf of Mercer, his bills to Mercer for legislative “expenses,” as well as meals, the fact that he filed ⁷³⁴ official documents showing lobbying activities after 1 November 2001, and its evaluation of Bereano’s demeanor and credibility while testifying, the Commission found uncredible his claim to have done nothing other than socialize with legislators: We find the Respondent’s testimony to be less than credible and incongruous with the plain language of the documents submitted into evidence. Respondent’s fee letter of September 1, 2001 to Mr. Traína recites that he was “following up our discussions.” Respondent proposes to “represent Mercer Ventures in the State of Maryland” in a “lobbying” capacity relating to the company plans “to develop and obtain contracts and arrangements with various county, municipal, and State government agencies and departments” (emphasis added). The lobbying services would include “government matters at both the State and local levels” and Respondent would provide information to the company “as to matters of concern and importance with its work and relationship with the State of Maryland.” Respondent also indicates that he “would register as a lobbyist.” A reader of the September 1, 2001 letter has to go five paragraphs into the letter before the words “private contracts and businesses” appear.

Respondent was being hired to obtain State contracts in Maryland and his testimony that it was not until nine months after the fee agreement that he became aware that Mr. Traína had some existing contracts with State agencies, is not credible. Respondent testified that he did “nothing at the State level.” Yet he registered as a lobbyist on November 13, 2001 for the period November 1, 2001 through October 31, 2002 (Staff Counsel Exhibit No. 1, Respondent Mercer Venture Exhibit 2). On June 12, 2002 Respondent filed an “Amended and Revised” General Lobbying Activity Report under oath and on behalf of Social Work Associates for the period November 1, 2001 through April 30, 2002. (Staff Counsel Exhibit No. 4).

Respondent reported compensation and expenses related to “any and all legislative and executive matters concerning staffing and case manage ⁷³⁵ ment, and social services issues.” Included in the report is $200 for “gifts to or for officials or employees or their immediate families.” [footnote omitted] At the hearing Respondent could not explain the gift disclosure and denied making any gifts to officials on behalf of Mercer Ventures. During the same time period, Respondent was submitting invoices to Mr. Traína that included statements for “legislative expenses” and “legislative expenses and meals.” Respondent testified that he kept detailed time records on all his activities on behalf of his clients. Yet Respondent did not produce records at the hearing showing his activities on behalf of Mr. Traína and Mercer Ventures. We will not second-guess its assessment of that evidence.

What the Court of Special Appeals observed, in another case in the context of declaring a mistrial, is equally appropriate here: [The trial court’s] reviewing stand was, after all, far better situated than our own. He had shared firsthand the entire course of the trial; had observed the demeanor and reactions of witnesses, lawyers, and jurors alike; was privy to the vital non-verbal communication; and was in the right position to sense the vibrations that never surface in a typewritten record. DeLuca v. State, 78 Md.App. 395, 435 , 553 A.2d 730, 750 (1989). In the case at bar, we accept all of the Commission’s first level factual findings that Bereano took actions that constituted lobbying after 1 November 2001.

We next will review the Commission’s interpretation of the law as it applies to the facts actually found, not to the facts envisioned, especially when the Commission’s decision turns on its assessment of a party’s credibility. Having done so, we must “determine if the administrative decision is premised upon an erroneous conclusion of law.” Aviation Admin, v. Noland, 386 Md. 556 , 573 n. 3, 873 A.2d 1145 , 1155 n. 3 (2005) (quoting United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994)). For the reasons that follow, we conclude that the ⁷³⁶ facts found by the Commission correctly interpreted Maryland Code (1984, 2004 RepLVol.), § 15-713(1) of the State Government Article and the law was not applied retrospectively. The Commission found: The plain language of the agreement drafted by the Respondent clearly contemplated the lobbying of various county, municipal and State government agencies and departments in Maryland, for a flat fee plus the 1% contingency fee.

A fair reading of the focus of the agreement was that Respondent was going to lobby in Maryland and as a side thought, the fee agreement would also apply if Respondent was successful in other States---- The facts indicate that Respondent did not file his lobbying registration on behalf of Mercer Ventures d/b/a Social Work Associates with the Commission until November 13, 2001. As such, Respondent is subject to the provisions of the law in effect as of that date, which includes the new sanctions contained in HB2. Additionally, the contingency fee restrictions contained in the Ethics Law date back to the inception of the law in 1979 and have not changed in substance since 1994. Moreover, the fee agreement at issue here was in effect until June 12, 2002 when the contingent fee provision was terminated by letter.

Respondent billed Mercer Ventures pursuant to this agreement and submitted Lobbying Activity Reports in reference to this agreement, well past the November 1, 2001 effective date of HB2. As a result, Respondent’s agreement and continuing relationship with Mercer Ventures is properly subject to the sanctions introduced by HB2. Accordingly, we do not believe the present complaint is a retroactive application of the law and we have authority to impose fines and suspension if appropriate____ Respondent continues to lobby and is currently registered on behalf of Mercer Venture, Inc. and on behalf of the tobacco industry on matters concerning the “wholesale and retail business of tobacco”; the welfare system on matters concerning “Welfare Pilot Program, privatization issues, welfare eligibility, supplemental benefits and medical man ⁷³⁷ agement care and child support collection programs”; and the professional liability insurance industry on matters concerning “professional malpractice insurance issues for physicians and other healthcare providers, negligence and tort law issues,” among other clients. As pointed out by the Court of Special Appeals: According to the Commission, the fact that Bereano may not have actually secured contracts for Mercer or have been compensated pursuant to the terms of the contingency clause of the Fee Agreement was “irrelevant” because S.G. § 15-713(1) proscribes a registered lobbyist from “being engaged for lobbying purposes” for compensation that is contingent upon legislative or executive action. 174 Md.App. at 161 , 920 A.2d at 1146 .

And further: Despite Bereano’s explanations of the intentions of the parties, the plain language of the Fee Agreement supports the Commission’s interpretation that Bereano was “engaged for lobbying purposes” on behalf of Mercer “to develop and obtain contracts and arrangements with ... State government agencies and departments.” For his success in obtaining “contract[s] and performance of services with any government entity, unit or agency in the State of Maryland,” he was to be compensated one percent of the first year receivable in addition to the $2,000 monthly retainer. (Emphasis added.) In effect, the securing of government contracts was such an integral part of the Fee Agreement that all of the provisions of the Fee Agreement were subject to modification “except for the provision and understanding ... to compensate [Bereano] when and after any contract is entered into [with] a government unit.” Even if the percentage of the first year receivable was intended as a flat fee for continuing services, the contract still provides for compensation that is contingent upon the executive action. 174 Md.App. at 172-73 , 920 A.2d at 1152-53 . Bereano argues that he simply signed the agreement but did absolutely nothing to execute it.

As the Court of Special ⁷³⁸ Appeals stated, “We are persuaded that the legislative intent as expressed in the language of the statute supports an interpretation that entering into a contract for ‘lobbying purposes’ for compensation is an ‘engage[ment]’ and that the ‘engage[ment]’ continues for so long as the contract remains in effect.” 174 Md.App. at 168 , 920 A.2d at 1150 . The crucial element is not that an agreement was signed by the parties. To the contrary it is that the agreement gave Mercer a claim upon Bereano’s time and lobbying services. There is no requirement that services actually be rendered, as the benefit to Traína begins and continues for as long as Bereano is “on call.” Thus, the agreement entitled Mercer to expect that Bereano would take actions to protect and advance its interests and would refrain from taking actions that would have an undesirable effect.

For example, had unfavorable legislation been introduced during the term of the agreement and had Bereano done nothing to thwart it, Mercer might have legal recourse for Bereano’s failure to fulfill his lobbying obligations. In this regard, there is a kinship to a lawyer’s “engagement fee” or “availability fee,” in which the service purchased by the client is the attorney’s availability to render service if and as needed as long as the agreement continued. In re Gray’s Run Technologies, Inc., 217 B.R. 48, 53 (Bkrtcy. M.D.Pa.1997).

Bereano’s engagement as Mercer’s lobbyist commenced, but did not terminate, on the day the agreement was signed. Despite his protestations, the Commission found that Bereano “engaged in” the lobbying activities for which he was “engaged by” Mercer, making himself available for, and engaging in, lobbying purposes after 1 November 2001, the effective date of the statute. We agree.

II

In his concluding assignment' of error, Bereano confronts the authority of the Commission to infer that his failure to call Traína as a witness indicates that Traina’s testimony would be unfavorable. The “missing witness rule,” or “empty chair ⁷³⁹ doctrine,” permits an “adverse inference to be drawn from a party’s failure to call a material witness, when the circumstances are such that the party should naturally have called the missing witness.” JOSEPH J. MURPHY, JR., MARYLAND EVIDENCE HANDBOOK § 409(B), at 142 (3d ed.1999). The implicated portion of the Commission’s Final Decision and Order of concern is as follows: At the hearing Respondent testified that the language in the fee agreement related to “1% of the first year receivables” was added to the agreement at Mr. Traina’s request and that Mr. Traína had sent him the language. The records provided at the hearing indicate that Respondent billed Mr. Traína for “Legislative expenses” and “Legislative expenses and meals.” He testified that the “Legislative meals” were costs associated with his and Mr. Traina’s personal meals with legislators who were personal friends and acquaintances.

Mr. Traína was on the Respondent’s witness list submitted to the Commission as part of the prehearing requirement pursuant to our regulations at CO-MAR 19A.01.03.09.A(2). Because Mr. Traína did not appear and testify, we make the inference pursuant to the “missing witness rule” that his testimony would not have supported Respondent’s testimony particularly in view of Respondent’s incongruous testimony. A. Some background is appropriate on the rules governing administrative adjudications by the Commission to illustrate why reliance on the missing witness rule to support the agency decision in the present case is problematic. In a contested administrative hearing under the State Administrative Procedure Act (APA), each party “shall offer all of the evidence that the party wishes to have made part of the record.” Maryland Code (1984, 2004 RepLVol.), State Govern ⁷⁴⁰ ment Article, § 10—213(a)(1). 5 Similarly, if “the agency has any evidence that the agency wishes to use in adjudicating the contested case, the agency shall make the evidence part of the record.” § 10—213(a)(2).

It is clear that the Commission, in reaching its final decision, is limited to the facts presented on the record. 6 MD. CODE REGS. 19A.01.03.10(E)(4)(d) provides that [ejxcept as set forth in § E(4)(e) [taking official notice of a fact] and (f) [inadmissibility of settlement offers] of this regulation, all evidence, including records and documents in the possession of the Commission, of which the Commission desires to avail itself, shall be offered and made a part of the record in the case. Other factual information or evidence may not be considered in the determination of the case. There are sound policy reasons for the requirement that agencies are limited to the record in deciding a given case.

In addition to satisfying constitutional due process requirements, the rule that agency decisions are limited to the record ensures that the agencies “observe the basic rules of fairness as to parties appearing before them.” Fairchild Hiller Corp. v. Supervisor of Assessments for Wash. County, 267 Md. 519, 524 , 298 A.2d 148, 150 (1973). B. The missing witness rule was misapplied here. The vital passage in American law regarding the missing witness rule comes from Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 (1893): ⁷⁴¹ The rule ... is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.

A pivotal issue in the present case for proper application of the rule is whether Traína was “peculiarly” available to Bereano, but not to the Commission or its staff counsel. The dissent here compares the issue regarding the missing witness inference to another issue addressed in the Commission’s decision. During the same time period, [Bereano] was submitting invoices to Mr. Traína that included statements for ‘legislative expenses’ and ‘legislative expenses and meals.’ [Bereano] testified that he kept detailed time records on all his activities on behalf of his clients. Yet [Bereano] did not produce records at the hearing showing his activities on behalf of Mr. Traína and Mercer Ventures.

I see no appreciable difference between this inference and the one that followed in the next paragraph, i.e., the missing witness inference regarding Traína. Dissent op. at 759-760. Contrary to this view, there is an appreciable difference between the drawing of a permissible adverse inference in the two situations. As McCormick’s treatise recognizes, the cases fall into two groups.

In the first, an adverse inference may be drawn against a party for failure to produce a witness reasonably assumed to be favorably disposed to the party. In the second, the inference may be drawn against a party who has exclusive control over a material witness but fails to produce him or her, without regard to any possible favorable disposition of the witness toward the party. 2 Kenneth S. Broun et al„ Mccormick on Evidence § 264 (6th ed.2006). Documentary records regarding Bereano’s activities on behalf of Mercer presumably were in Bereano’s file cabinet in ⁷⁴² his office at .the time of the Commission’s hearing. Bereano maintained exclusive control over those documents.

Traina, however, was not under Bereano’s lock and key. Prior to the evidentiary hearing before the Commission, Traina made himself available for an interview at the Commission’s offices, responded to all document requests, and invited staff counsel to call him if further assistance was desired. It may not be contended reasonably that Traina was physically unavailable to staff counsel. See United States v. Young, 468 F.2d 934 , 943 n. 15 (D.C.Cir.1972) (noting that a witness is unavailable where one party has a “better opportunity to ascertain his testimony in advance of taking the stand”).

Traina was not peculiarly available to Bereano. 7 Before a missing witness inference may be drawn, it must be demonstrated that “the missing witness was peculiarly within the adversary’s power to produce by showing either that the witness is physically available only to the opponent or that the witness has the type of relationship with the opposing party thát pragmatically renders his testimony unavailable to the opposing party.” Chi. Coll, of Osteopathic Med. v. George A Fuller Co., 719 F.2d 1335 , 1353 (7th Cir.1983). There is no contention, nor could there be, that Traina was not physically available to both parties. Therefore, the issue turns on whether Traina was demonstrated to have the type of relationship with Bereano that would render Traina unavailable to the Commission’s staff counsel as a practical matter.

The dissent finds that the professional and contractual relationship between Traina and Bereano made Traina unavailable to Commission staff counsel. Such appellate fact-finding is contrary to Maryland appellate jurisprudence in deciding whether the tribunal’s action under review correctly applied the missing witness rule. “A reviewing court may not make its own findings of fact or supply factual findings that were not made by the agency.” Md. Sec. Comm’r v. U.S. Sec. ⁷⁴³ Corp., 122 Md.App. 574, 586 , 716 A.2d 290, 296-97 (1998) (citations omitted). Fact-finding and argument about the propriety of applying the missing witness rule occurs in the first instance before the case is appealed. See Patterson v. State, 356 Md. 677, 688 , 741 A.2d 1119, 1124 (1999) (“The missing witness inference may arise in one of two contexts.

A party may request that a trial judge instruct the jury on the operation and availability of the inference where all the elements of the rule are present. Additionally, a party may wish to call the jury’s attention to this inference directly during closing arguments.”). The Commission made no finding that the relationship between Bereano and Traína created a bias on the part of Traína in favor of Bereano. The nature of the relationship between the two, or the possibility of application of the missing witness inference, were not argued by anyone before the Commission.

The dissent finds in a record devoid of any hostility between Traína and the staff counsel that Traína was so biased against the staff counsel that he was unavailable as a practical matter. See Maryland Code (1984, 2004 RepLVol.), State Government Article § 10-222(f)(l) (“Judicial review of disputed issues of fact shall be confined to the record----”). Yet, for a witness so slanted in favor of Bereano, Traína cooperated freely with the staff counsel’s requests leading up to the hearing. Had there been any discussion of this issue on the record in front of the Commission, perhaps the dissent would be justified in upholding such a finding.

As the record stands before us, however, at no point before the Commission was there anything approaching an allegation that Traína was unduly biased in favor of Bereano or that he could not be relied upon by staff counsel to give full and truthful testimony. See United Steelworkers of Am. AFL-CIO, Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 679-80 , 472 A.2d 62, 69 (1984) (“ ‘The courts may not accept appellate counsel’s post hoc rationalizations for agency action ....’” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 , 83 S.Ct. 239, 246 , 9 L.Ed.2d 207 (1962))). ⁷⁴⁴ “What is meant by ‘equal availability’ in this context is not merely that a witness is subject to compulsory process, and thus available in a descriptive sense, but that he is of equal avail to both parties in the sense that he is not presumptively interested in the outcome.” Tyler v. White, 811 F.2d 1204, 1207 (8th Cir.1987). This is a difficult showing to make.

See Hayes v. State, 57 Md.App. 489, 499 , 470 A.2d 1301, 1306 (1984) (noting the “stringent requirement that the witness be peculiarly within the control of the party”). The mere possibility that a witness personally may favor one side over the other does not make that witness peculiarly unavailable to the other side. See Woodland v. State, 62 Md.App. 503, 510 , 490 A.2d 286, 290 (1985) (“The inference to be drawn from the failure to call a witness will arise only if the relationship between the defendant and the witness is one of interest or affection.”); United States v. Knox, 68 F.3d 990, 1001 (7th Cir.1995) (holding that the