William M. Barry
4204 Elsrode Ave.
Baltimore, MD
21214
Plaintiff


VS.

Board of Estimates, a
Department of the Mayor & City
Council of Baltimore, a municipal corporation
Serve On: City Solicitor
City Hall, Baltimore, MD
21202
Defendant

(In the Circuit Court for Baltimore City, Filed September 29, 2004. Case #24-C-04-007331)

A Taxpayer’s Complaint
Declaratory Judgment and Injunctive Relief

To The Honorable Judges of Said Court:

Now Comes William M. Barry, the Plaintiff, by William Hughes, Pro Bono Publico Counsel, and sues the Defendant, the Board of Estimates, a Department of the Mayor & City Council of Baltimore, a Municipal Corporation, and states:

1. This is an action for Declaratory Judgment and Injunctive Relief pursuant to Section 3-401 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland for the purposes of determining a question of actual controversy, and for other matters between the parties, as fully appears hereinafter.

2. The Plaintiff, William M. Barry, is a citizen, resident and taxpayer of Baltimore City.

3. The Defendant, Board of Estimates, is an Executive Department by virtue of Art. VI of the Charter of Baltimore City of the Mayor & City Council of Baltimore, a municipal corporation. The Board of Estimates’ powers, as the fiscal policy makers of the City of Baltimore, are more fully set out in said Art. VI of the Baltimore City Charter.

4. At the times of the wrongs complained of in this suit, Dec. 10, 2003, as set out more fully later in this Complaint, the five membered Board of Estimates, an Executive Department, was made up of the following individuals: the Mayor of Baltimore, Martin O’Malley; Sheila Dixon, the President of the Board, who is also the President of the City Council; Joan M. Pratt, the City Comptroller; George Winfield, Director of Public Works; and the then City Solicitor of Baltimore City, Thurman W. Zollicoffer, Jr.

5. After Dec. 10, 2003, Mr. Zollicoffer resigned as City Solicitor and his office was filled by Ralph S. Tyler, Esq. All five members of the Board of Estimates serve by virtue of their public offices, whether elected or appointed, pursuant to the powers granted to them as public trustees and fiduciaries under the applicable provisions of the Baltimore City Charter.

6. As public trustees and fiduciaries, the members of the Board of Estimates, acting as a Board, are held to the highest standards of public service. They are mandated by law to always conduct the public’s business for the good of the general welfare of the people, that they have sworn a solemn oath to serve.

7. On Dec. 10, 2003, the Board of Estimates, in a public session, approved pursuant to written requests of the then City Solicitor, Thurman W. Zollicoffer, Jr., two agreements, via two Resolutions, (which are attached hereto as “Exhibit A” and “Exhibit B,” and are prayed to be made a part hereof), to engage outside private criminal defense lawyers, to represent individual members of the Baltimore City Council, including the City Council President, Sheila Dixon, with respect to a “current investigation concerning the council members,” by a Grand Jury of the U.S. District, acting under the auspices of the U.S. District Attorney for Maryland. City Solicitor Zollicoffer further indicated that the Federal Grand Jury probe for supposed criminal wrongdoing dealt with “certain financial documents” concerning “Baltimore City Council Members, and possibly other City personnel.”

8. According to published reports, (Baltimore Sun, 12/11/03), which the Plaintiff respectfully requests this Honorable Court to take judicial notice of, the Board of Estimates did in fact hire two prominent criminal defense attorneys to advise City Council members during a “wide-ranging federal probe into their official and personal finances. The board’s decision yesterday authorized the lawyers - Neal M. Janey and Larry A. Nathans - to charge up to $230,000 in legal costs and expenses related to U.S. Attorney Thomas M. DiBiagio’s investigation into the Council.”

9. A Grand Jury, unlike a regular jury, is a large group of citizens, usually 23 in number, who serve as an investigatory arm of a particular State or Federal prosecutor. Generally, the primary purpose of the Grand Jury is to investigate, based on ex parte evidence, whether or not a crime has been committed, and whether or not an individual or individuals should be indicted. The Plaintiff takes no position on the merits of the ongoing criminal probe of the Baltimore City Council by the U.S. Attorney’s Office.

10. The Plaintiff, however, is aggrieved, injured and harmed, as a citizen and taxpayer of Baltimore City, and on behalf of himself, as are other taxpayers of Baltimore City, similarly situated, that the Board of Estimates had authorized, on Dec. 10, 2003, and will continue to authorize in the future, unless stopped by this Honorable Court, the expenditure of hundreds of thousands of dollars of public funds for a private purpose, or purposes, that has nothing whatsoever to do with the official, lawful and legal duties of any elected City Council member and/or wasn’t within the lawful province and scope of the powers of the Board of Estimates to legally grant. The Board’s Resolutions of Dec. 10, 2003, will increase the burden of taxation for the Plaintiff and the other aggrieved citizens and taxpayers of Baltimore.

11. City Council members are elected public officials. At the moment, as stated beforehand, some or all 19 of them, are suspected by a Federal Grand Jury of criminal wrongdoing, that may be connected to the corrupt use of their public office. Under no circumstances, should the taxpayers of Baltimore City be responsible for the expenses incurred by said City Council members associated with their defense of a Federal Grand Jury criminal inquiry, whether that Federal Grand Jury criminal inquiry turns out to be meritorious or not and/or leads to criminal indictments.

12. As President of the City Council, and also as President of the Board of Estimates, Sheila Dixon, should have recused herself from voting on the Resolutions of Dec. 10, 2003, since said votes were on their face, an apparent conflict of interest. Exhibits (A) and (B) are silent as to whether Ms. Dixon recused herself from said votes or not. In the absence of any dissent, the assumption is that the votes of the Board were unanimous.

13. The Plaintiff avers and alleges that the action of the Board of Estimates, on Dec. 10, 2003, approving the expenditure of hundreds of thousands of dollars of public funds, for outside criminal defense lawyers to represent individual members of the Baltimore City Council in an ongoing federal criminal probe, (see particulars above), was null and void, illegal, unlawful, an ultra vires act and contrary to public policy.

Wherefore, the Plaintiff prays this Honorable Court to:

A. Declare null and void the Resolutions of the Board of Estimates of Dec. 10, 2003.

B. Restrain the Board of Estimates from making any future payments with respect to said illegal and unlawful Resolutions.

C. Order the Board of Estimates to take such lawful steps to recover the hundreds of thousands of dollars already expended pursuant to said unlawful and ultra vires Resolutions.

D. And for the Defendant, Board of Estimates, to pay the costs of these proceedings.

E. And for such other further relief, declaratory or injunctive, that the Plaintiff, in law and in justice may be entitled to in these proceedings.


________________________ William Hughes, Esq.
Pro Bono Publico Counsel
___________________________
William M. Barry
Plaintiff
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Press Release of Citizens For Barry

Contact: Bill Barry (billbarry-AT-verizon.net)
PRESS CONFERENCE
WEDNESDAY SEPTEMBER 29, 2004
3:00 p.m.

IN FRONT OF THE BALTIMORE CITY CIRCUIT COURTHOUSE at the corner of EAST CALVERT and FAYETTE STREETS.

Bill Barry, the Green Party candidate for the Baltimore City Council in the 3rd District, is announcing a Taxpayer's lawsuit to be filed with the Baltimore City Circuit Court. The suit attempts to block payments by the Board of Estimates of legal fees for City Council members being investigated by the federal prosecutor for possible corruption.

The lawsuit, which Barry is filing as a private citizen and taxpayer, demands that the Board of Estimates: Stop paying private attorneys to defend City Council Members, and Return moneys already spent to the City Treasurer.

In December 2003, the Board of Estimates voted to allocate up to $ 230,000.00 to hire private attorneys to represent City Council members. Barry called it “outrageous” to hire private attorneys - and at a rate of $ 350.00/hour.

The issue of a legal defense for City Council members arose in 2003, when U.S. Attorney Thomas DiBaggio issued subpoenas to all 19 City Council members asking for “all documents” over the previous five years concerning their financial, political and professional dealings. These subpoenas were based, in part, on articles in The Baltimore Sun in 2003, which described Council members' hiring of relatives and accepting free parking passes and other gifts from corporations doing business with the city. A federal grand jury investigation continues to probe City Council practices.

William Hughes, a former Associate City Solicitor, will handle the Pro Bono Publico suit, to be filed Wednesday afternoon.

Barry stated, “I believe that the Council has no legal right to use public moneys to hire private attorneys for such an investigation. Taking alleged freebies and favors is not part of a Council person’s official job duties, so the Council members should hire—and pay for—their own lawyers. We expect that the Circuit Court will agree and will order the repayment of all money spent on private lawyers.

“Beyond the legality,” Barry continued,” We as taxpayers need to look at how the City Council spends our money. Unfortunately, the Council members have been unchallenged for so long that they feel my tax money belongs to them. A recent newspaper article described many public schools without school nurses, putting our children at risk. How many school nurses could we maintain with $ 230,000.00?  It is clear that the Council has backward priorities—putting themselves before the health and safety of our school children.”

Barry pointed out a similar situation involving former Indiana University basketball coach, Bobby Knight. Knight was sued for shoving a former assistant coach and settled recently out of court. Knight then tried to get the University of Indiana to cover his legal expenses but university administration refused, claiming that the incident did not fall within the scope of Knight’s official responsibilities.

“Unless the alleged hiring of family members and taking freebies from city contractors is part of the official duties of a Baltimore City Council member,” Barry concluded, “there is no basis to expect the taxpayers to pick up the tab. Let Bobby Knight be a lesson.”

Since Barry is filing this lawsuit as a citizen and taxpayer, he said that the legal action will continue, no matter the results of the November 2nd election. “As a candidate, however, I feel strongly that the Board of Estimates and the City Council need to abide by ethical principles in this matter.”

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