State’s attorney Charlie Smith ignores clear ethics violation by former commissioner Paul Smith

Former county commissioner Paul Smith

Former County Commissioner Paul Smith

It took one year and two months for me to learn – yet again – how difficult it can be to enforce ethics in Frederick County. That’s when I learned that the ethics complaint that I filed against former County Commissioner C. Paul Smith for failing to disclose his ex parte conversations about the Monrovia Town Center (MTC) would go unpunished.

As reported in the Frederick News-Post (FNP) on August 15, 2016, the complaint was dismissed by Frederick County State’s Attorney Charlie Smith for “insufficient evidence to warrant a criminal prosecution.”

Before I address that conclusion, let me first remind the readers what this is all about.

In the last hour of the last night of the MTC hearings, former County Commissioner Blaine Young read into the record a letter purportedly from the Frederick Area Committee on Transportation (FACT).


(Click on the image to open a larger version.)

The letter supporting the proposed development was touted by Young as he read it into the record, and Rand Weinberg, the lawyer for the MTC developers, called it an important piece of evidence from an “objective” group of transportation experts.

Two minute video.

There was only one problem. The transportation group never saw the letter. As reported in the FNP on June 3, 2014, the letter was written by only two people – Michael Proffitt and Michael Smariga – based on a suggestion from Commissioner Smith. Smith made his suggestion at an April 14, 2014 FACT meeting and, according to the FNP, had continued discussions with Michael Smariga after the meeting. The FNP also reported that Smith reviewed a draft of the letter prepared by Smariga and Proffitt, prior to its presentation to the BOCC.

Circuit Court Judge William R. Nicklas found that Smith commented on the MTC case at the FACT meeting and then failed to disclose those comments, as required by State law. Judge Nicklas took this violation so seriously, in fact, that it was the basis for his unprecedented action in remanding the MTC case back to the County Council.

This should have been a slam dunk ethics violation and perhaps, in some place other than Frederick County, it would have been. So how could the State’s Attorney conclude that there was “insufficient evidence”? The reason is simple – Charlie Smith doesn’t like the law. I attended the County Council meeting on November 3, 2015 when the State’s Attorney commented on the State Public Ethics Law concerning ex parte communications. He talked about his “displeasure … in prosecuting someone for discussing a pending application … in a public forum.” He went on to cite his opinion that the intent of the ethics law was to criminalize “nefarious back room talks with interested parties where perhaps there’s some sort of financial interest at stake.”

In our form of government, the Legislature creates laws and people like Charlie Smith are supposed to enforce them. He is not supposed to pick and choose what he enforces based on his personal preferences. The law clearly required Commissioner Smith to report his conversations and he failed to do so. Not only did he fail to report his comments during the FACT meeting, he also failed to report his subsequent discussion with Smariga and his review of the draft letter, both of which, according to the FNP, occurred after the FACT meeting.

Even if the State’s Attorney was inclined to ignore the State’s reporting law as it related to Smith’s comments at the FACT meeting, how could he ignore Smith’s continuing interaction with Smariga? In fact, wasn’t this a prime example of the kind of “nefarious back room talks with interested parties” that the State’s Attorney claimed should be prosecuted?

State’s Attorney Charlie Smith

State’s Attorney Charlie Smith

I think the answer is a resounding yes and it is why I believe State’s Attorney Charlie Smith was grossly irresponsible in turning a blind eye to this matter. You see, Michael Smariga is the co-founder of Harris & Smariga, Associates, the engineering firm working on the MTC development. Although I believe Smariga is now retired, his association with the firm is listed in the official minutes of the April 14 FACT meeting.

Not only that, but he is also the father of Chris Smariga, the lead engineer on the MTC project. In my opinion, that absolutely makes Michael Smariga an interested party to the MTC case and Commissioner Smith’s failure to report his multiple interactions with him represented a clear violation of the State’s ex parte communications law – even under Charlie Smith’s arbitrary and narrow interpretation.

I don’t fault the Ethics Commission in this matter. They did what they should have done when they referred the case to the State’s Attorney. Charlie Smith’s first mistake was in not referring it to another jurisdiction. When a case involves a local politician, the standard of practice to avoid potential conflicts of interest should be to have a State’s Attorney from another county investigate the case. Smith’s next mistake was in ignoring the clear evidence of the ethics violation handed to him on a silver platter by Judge Nicklas. But Charlie Smith’s biggest mistake was in failing to hold Commissioner Smith accountable for his actions in the MTC case.

In my opinion, the letter was clearly intended to influence the MTC case record and its weak transportation findings. This was the State’s Attorney’s opportunity – and responsibility – to hold Commissioner Smith responsible for his actions and he failed miserably.

This was also published here today.

Envision Frederick County
RALE subpoenas Paul Smith and two others about unauthorized “FACT” letter
January 20, 2015
by Steven McKay

Envision Frederick County
FACT-Gate and Monrovia Town Center
March 7, 2015
by Steven McKay

Envision Frederick County
FACT meeting ignores the elephant in the room
June 9, 2014
by Kai Hagen

Envision Frederick County
Monrovia Town Center – When is a FACT NOT a Fact?
June 5, 2014
by Steven McKay

More information

The complete letter from FACT

RALEpressreleaseaboutFACTletterPress Release from Residents Against Landsdale Expansion


(click the small image to open a larger, readable version):

Frederick News Post
FACT to discuss Monrovia letter
June 9, 2014

Frederick News Post Editorial
Misrepresenting the FACT: Strong response needed from transportation group for misuse of its authority
June 6, 2014

Frederick News Post
FACT letter supporting Monrovia Town Center sent without group vote
June 3, 2014

Frederick News Post
Group calls for investigation of Monrovia transportation letter
May 31, 2014

Frederick News Post (with the Rand Weinberg quote)
County OKs Monrovia Town Center
April 24, 2014