Lawyers claim Sun ban affects 225 top officials

Ehrlich's attorneys clarify memo at judge's request

February 05, 2005|By Stephen Kiehl | Stephen Kiehl,SUN STAFF

Lawyers for Gov. Robert L. Ehrlich Jr. appear to have sharply limited the scope of an administration order banning state employees from speaking with two writers for The Sun. About 225 senior state officials are covered by the ban, the lawyers indicated in a memo filed in U.S. District Court in Baltimore.

The original Nov. 18 order said that "no one in the Executive Department or Agencies" was to talk to Sun State House bureau chief David Nitkin or columnist Michael Olesker.

But Ehrlich's lawyers wrote yesterday, "Secretaries of principal departments, deputy secretaries, public information officers and members of the Governor's staff and the Executive Department ... may be directed by the Governor not to speak to certain members of the press."

The memo said the original order "on its face does not apply" to every state employee. The memo was filed at the request of U.S. District Judge William D. Quarles Jr., who asked the state last week to clarify who was subject to the order.

The Sun filed a federal lawsuit in December asking that the order be lifted. The newspaper has until Wednesday to respond to the state's memo, and Quarles could then issue a ruling.

Sun lawyers have argued that the original banning order has had a chilling effect on virtually all state employees and violated the First Amendment rights of the two Sun journalists by denying them the same opportunities to seek information as other news organizations and citizens.

The original order was sent by e-mail to 25 department heads, 65 public information officers and 135 employees on the governor's State House staff. Yesterday's memo suggested only they are subject to it.

Sun editor Timothy A. Franklin called the state's memo "legal mumbo-jumbo. It's a tortured definition of who works in the executive branch that is so convoluted that it's understandable how any state employee could interpret the ban as applying to him or her."

Franklin said the ban was unconstitutional because it was retaliatory. It came after The Sun had published articles about the state's plan to sell 836 acres of preserved forestland in St. Mary's County to Willard Hackerman, a politically connected construction company owner, in a transaction that could have netted him millions in tax breaks.

The original directive said it was barring contact with the journalists because they were "failing to objectively report" on the administration. Ehrlich's legal counsel, Jervis S. Finney, declined to comment last night because the litigation is under the court's consideration.

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