With five of the seven members of Maryland's highest court on the sideline, attorneys representing Annapolis lobbyist Bruce C. Bereano and the state Ethics Commission clashed yesterday over the agency's decision to suspend his license.
The commission sanctioned Bereano in 2003, saying he had violated state law by entering into a "contingency contract" with Pennsylvania-based Mercer Ventures Inc., which was vying for government contracts for foster care services. The commission said the company agreed to pay Bereano 1 percent of the first year's payments for any work he helped the company secure.
Bereano's attorney, Timothy F. Maloney, urged the Court of Appeals to overturn two lower court rulings, arguing that the Ethics Commission improperly drew inferences when Bereano's client, Michael Traina of Mercer Ventures, didn't testify on his behalf at a 2003 hearing.
Steven Sullivan, an assistant attorney general representing the Ethics Commission, said the agency "acted well within its discretion" when it inferred that Bereano's failure to call Traina as a witness meant that he would not have backed up Bereano's denials of wrongdoing.
All but two judges, Glenn T. Harrell Jr. and Clayton Greene Jr., recused themselves from yesterday's oral arguments. They did not offer reasons.
Judge Lynne A. Battaglia was U.S. attorney when Bereano was convicted of mail fraud charges in 1994 related to a scheme to funnel illegal campaign contributions to Maryland politicians.
Chief Judge Robert M. Bell didn't return a message seeking comment. The other judges who recused themselves were Alan M. Wilner, Irma S. Raker and Dale R. Cathell.
The Court of Appeals appointed retired Court of Special Appeals Judge James Getty and four retired appellate judges - William W. Wenner, Lawrence F. Rodowsky, Robert L. Karwacki and Raymond G. Thieme Jr. - to hear yesterday's oral arguments. They replaced the sitting judges after a brief recess yesterday.
When Bereano initially appealed the Ethics Commission's decision, the case was moved from Anne Arundel County to Howard County because all of the Circuit Court judges in Anne Arundel recused themselves. The lobbyist has long-standing associations with the judiciary in Anne Arundel.
In 1999, five of the seven Court of Appeals judges also recused themselves when Bereano unsuccessfully fought to keep his law license. At the time, Bell said through a spokesman only that the court members had discussed the case and had decided they should not participate.
In 2001, the General Assembly gave the Ethics Commission the power to enforce a law prohibiting contingency contracts by fining lobbyists and suspending their licenses.
Maloney told the high court that Bereano entered into the contract with Mercer Ventures in September 2001, two months before the new law took effect. He said Bereano never "knowingly and willfully" violated ethics law, and that the commission can't apply the law retroactively.
But Sullivan said Bereano is being sanctioned because the contingency contract with Mercer Ventures didn't end until June 2002.
In addition to suspending Bereano's license for 10 months, the commission fined him $5,000.
Those sanctions have been on hold because of Bereano's legal appeals. Bereano has dozens of lobbying clients, and said in a recent interview that he is eager for a special session that Gov. Martin O'Malley wants next month to tackle the state's budget shortfall.
"I love the challenge," Bereano said. "I love the process."
O'Malley said during the fall campaign that he wouldn't meet with any lobbyists who are convicted felons, an apparent swipe at Bereano, who backed Republican Gov. Robert L. Ehrlich Jr.
The Ethics Commission began an investigation of Bereano's lobbying practices in 2002, after articles in The Sun raised questions about his lobbying agreement with Mercer Ventures.
Mercer Ventures became Bereano's most lucrative employer for a time, paying him $139,379 from November 2001 to June 2002, according to documents filed with the Ethics Commission.