Recently, I had the challenging experience of mediating a civil case which directly involved an examination and reconciliation of the economic, legal, political, social and financial consequences of the unique “Pay to Play” scheme developed with precision, but not a lot of subtlety, by former Prince George’s County Executive Jack B. Johnson and others. The “others” know who they are without further acknowledgement by this writer. Mr. Johnson is now a convicted felon (as a result of his Guilty Plea) and will shortly begin serving his 7+ year sentence.
Before going any further, a necessary disclaimer, ? Nothing that I write here or even reference in this column constitutes or is derived from a “mediation communication” in any case that I have mediated. Rather, the opinions expressed result from reading and reflecting on the pleadings and the court’s formal actions on those pleadings before the mediation. All of these were then and still are all matters of public record. The case I mediated was settled and is therefore no longer pending.
My opinion expressed in this space also result from reviewing pertinent parts of parts of the “Government’s Sentencing Memorandum for Defendant, Jack Bruce Johnson” in United States of America vs. Jack Bruce Johnson” found on the Internet, as well as some other articles and opinion pieces on the subject of “corruption” in both the private and public sectors. My thoughts based thereon follow:
Despite its notoriety and extensive coverage by the electronic and print media whenever reporters, commentators and talking heads think they spot it corruption is not easily defined or proscribed by the criminal and civil justice systems in our country and our state. Witness the ultimately unsuccessful attempts by federal prosecutors to prosecute both public officials and corporate officers for “depriving citizens of honest services.”
The trial court convictions which resulted from federal juries being convinced that the federal criminal statute prohibiting the “depriving citizens of honest services” were ultimately reversed whenever they were appealed by Federal Circuit Appellate Courts and The Supreme Court who found that the “Honest Services” Statute was not sufficiently and therefore, not constitutionally clear about what actions were prohibited and what the term “honest services” meant in the context of the application of the statute to the particular facts in the cases brought to their attention. The use of this Federal Criminal Statute, as a prosecutorial “catch-all”, when the defendant’s actions could not otherwise be classified as crimes using the more traditional and conventional criminal statutes prohibiting bribery, fraud, extortion, etc. simply failed to meet constitutional muster.
Civil practitioners and legal scholars who have attempted to accurately describe factually “Pay to Play” in a manner which sufficiently delineates the behavior which will be deemed actionable civilly have faced similar difficulties. In the civil case that I mediated, the plaintiff’s attorney in his “Complaint for Damages” described in writing, a process whereby Plaintiff was “informed that in Prince George’s County”… if he wanted to construct and develop a project, he should contact County Executive Johnson and other elected officials for “advice and counsel” and that he “needed to hire the right professionals” to “assist in the process”. The Complaint then further alleged that “shortly thereafter, certain individuals began contacting Mr.(Plaintiff’s name), advising that they had been directed to do so by either Defendant Johnson or certain County Council Members”. These “professionals” requested fees for assisting Plaintiff with his project. This process continued in connection with the various stages of the development project as time (years) went on with an ever expanding cast of “professionals” and “lobbyists” as well as at least two “attorneys” participating profitably.
Counsel for the aggrieved developer in the case that I ultimately mediated then attempted to plug this “Pay to Play” factual scenario and all of its nuances into a couple of traditional civil causes of action, labeling these facts alternatively and sequentially as a “Breach of Contract”, “Fraudulent Misrepresentation”, “Negligent Misrepresentation”, “Intentional Interference with Contract”, “Intentional Interference with Business Relations”, “Respondent Superior/Agency Liability”, “Breach of License Agreement”, “Due Process/Equal Protection – Maryland Declaration of Rights, Article 24”, and Civil Conspiracy”.
Most of these were dismissed for legal reasons by the Trial Court upon motion. The difficulty for Plaintiff and his counsel finding and sustaining an established civil cause of action that legally encompassed the “The Pay to Play” scheme described earlier in his Complaint was clearly evident. This of course, reduced the likelihood of success and the negotiating leverage of the Plaintiffs and with it the financial accountability civilly of the Defendants.
Retired Court of Appeals Judge, Alan Wilner, then writing as The Chief Judge of the Court of Special Appeals, said in Baker v. State, 89 Md. App. 564 (1991) that:
“The English language, blending and building upon the vocabulary of its
Latin and Germanic roots is a marvelous and omnificent language
offering a rich variety of words and expressions to describe a single thought”.
It apparently is not, however, to this date in its legalese mode capable of delineating one of the most blatant and venal forms of corruption seen on the political horizon in many years. Supreme Court Justice Potter Stewart once said about pornography, “We can’t easily define it, but we know it when we see it”. That is apparently also the case with corruption. It needs to change because as Aldous Huxley said ominously in this case – “Facts do not cease to exist because they are ignored”. The ”fact” of corruption will continue to cast a dark cloud over the operation of our government and financial institutions if we can’t define it enough to control it.