The Baltimore County Council recently approved spending $4.55 million on a private law firm to continue litigating a three-year-old case over how county jail inmates who worked at the county recycling center should be paid.

It’s the fourth time the council has approved increasing the fees to Nelson Mullins Riley & Scarborough, and one of several times this year that County Attorney James Benjamin has asked the council for more funds to hire private legal firms to represent the county. While county officials said the 36-attorney law office handles the majority of county business, a few cases are “complex” and “unique” and “have required the county to obtain outside counsel.”

This year, the council approved Benjamin’s requests for nearly $7 million in outside legal fees: it has never denied a request.

In addition to the county jail labor case, the expenditures include:

• $975,000 to the McGuireWoods law firm for a fight over a County Council redistricting map.
• $281,607 to Scates Legal Group for legal work related to the Baltimore County Department of Aging.
• $640,000 to Harris Jones Malone for negotiating labor contracts with county unions.
• $550,000 to Baker Donelson to handle a public information act lawsuit from former county administrator Fred Homan.

Many cities and counties will hire outside counsel on occasion for complex cases in which they may lack expertise, but the amount that Baltimore County is spending has raised eyebrows.

Council Chair Izzy Patoka voted for all of this year’s expenditures, but in a recent interview, he expressed reservations about the increasing tab.

“I think we’ve definitely got to rein that in a little bit. I’m concerned that we’re a little bit too quick to go to outside counsel,” said Patoka, a Democrat who plans to run for county executive in 2026.

Retroactive procurement

In 2021, inmates at the Baltimore County Detention Center who participated in a voluntary work program sorting recycling sued the county in federal court, arguing that they were employees entitled to the minimum wage. The federal minimum wage has been $7.25 per hour since 2009.

The county quickly hired outside counsel, but the first contract was not to exceed $450,000. A second legal contract went to $1.2 million, the third added $50,000.

The legal fees kept growing as the case was at first dismissed and then revived by a federal appeals court. Most recently, the county filed a petition asking the U.S. Supreme Court to review the appellate court ruling.

Last month, the council approved spending the nearly $4.6 million after the law office asked for retroactive approval for money it had already spent.

Such retroactive requests conflict with the state’s procurement practices, said Peta Richkus, who served as secretary of the Department of General Services under former Gov. Parris Glendening.

“The whole issue of the county’s hiring of outside counsel is not serving the interest of the taxpayers,” Richkus said. “Whenever they spend money like this, it has to come from somewhere, so the taxpayers aren’t getting something.”

County spokeswoman Erica Palmisano, who answered questions on behalf of the law office, said retroactive procurement is rare, and it should be stopping.

“There have been very few — approximately two or three — contracts over the course of the last few years where retroactive approval was requested by the Office,” she said in an email. “That said, the Office of Law now has systems in place to more effectively monitor contracts and does not anticipate the few unintended oversights that required retroactive approval being an issue moving forward.”

Richkus was one of the organizers of the Baltimore County Fair Maps Coalition that fought against the 2021 redistricting map. Using Public Information Act requests, she tracks what the county has paid McGuireWoods in that case. The council lost the first round and had to redraw the maps.

She believes the council could have saved taxpayers a lot of money if it had been open to compromise.

Inmates earning money, or workers earning wages?

The costly labor case hinges on whether the 550 jail inmates were contract workers or employees based on the hours they spent and the jobs they did at a Cockeysville recycling facility. As inmate workers, they earned $20 a day; paid workers in similar jobs earned minimum wage or more.

In general, paying workers less for the same jobs is a violation of the Fair Labor Standards Act, the statute under which Michael Scott, who served a short sentence at the detention center, and his fellow inmates sued.

The county, through its private attorneys, won in federal court in 2023. The judge ruled that the Fair Labor Standards Act’s purpose is to guarantee minimum living standards, which the inmates already received at the jail. The judge further deemed that the inmates’ work at the recycling facility served both economic and rehabilitative purposes.

Scott’s lawyers, the Hoffman Employment Law group, appealed the ruling to the 4th Circuit Court, where Scott prevailed, with the judges questioning both the rehabilitativeelement of the job training and whether he and his fellow inmates should have been classified as employees. The appeals court sent the case back to the lower court to determine whether the primary purpose of the program was rehabilitation and job training.

“Congress may well not have had workers like Scott in mind when it enacted the Fair Labor Standards Act,” the judges wrote. “But ... it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

The county filed a petition seeking to have the nation’s highest court review the 4th Circuit’s decision. Stakes are high: If it loses, the county must pay back wages for the 550 workers in the program. The county discontinued the program as a result of the litigation.

“It’s striking that the county is now willing to spend $4.5 million of taxpayer money to deny fair wages to people inside who are actually making money for the county,” said Deborah A. Jeon, legal director for the ACLU of Maryland.

Jeon, also a plaintiff in the redistricting case, filed a friend-of-the-court brief in the inmate case on behalf of several ACLU chapters that represent families suffering from having an incarcerated loved one. Denying equal wages, she said, “is not a position to be proud of.”

The matter could become even more protracted and costly because the county is insisting that it can represent an employee who has since departed. Michael Beichler, who headed the county’s Bureau of Solid Waste Management, retired after he refused to endorse a plan to build a private solid waste transfer station that would benefit a large campaign contributor for County Executive Johnny Olszewski Jr., according to reporting by The Baltimore Sun and The Baltimore Brew.

Beichler went public with the plans, and the county eventually scrapped the project. But county officials then asked the police department to investigate Beichler for alleged trespassing and theft after he went to his old office and left with a box. The investigation was dropped without charges.

Given the animosity between the parties, the Hoffman Employment Law group asked a judge to rule that Beichler needs his own counsel. A judge has yet to rule.

‘I don’t like it’

County Councilman Julian Jones, a Democrat, said the case is important because it will decide how, and whether, inmates can work and be paid. Many former inmates become employees of the recycling facility; they’re hired because they have valuable job training.

“We need to fight that with all we have,” Jones said, “because it has broad implications across the state.”

Asked about the escalating legal fees, Councilman Todd Crandell, a Dundalk Republican, said: “I don’t like it.”

However, he added, the county had to mount its best defense in the inmate case.

“Our exposure was huge,” he said. “When we get sued, we have to defend ourselves.”

For many years, former county officials said, the law office defended itself and rarely contracted out work. That changed in 2017, when the county faced four federal lawsuits under the Religious Land Use and Institutionalized Persons Act, a specialized area of law.

Then, five University of Maryland, Baltimore County students sued their university and the county for allegedly mishandling their sexual assault claims. Former county officials found experienced outside counsel because if the county lost, it would have to pay plaintiffs’ attorneys’ fees. A judge dismissed the UMBC lawsuit in 2019.

‘My gut is no’

But Jones doesn’t agree that all the mounting legal fees are necessary.

In July, Benjamin asked to increase from $200,000 to $550,000 the amount that the county was paying Baker, Donelson, Bearman, Caldwell & Berkowitz to fight a public-information lawsuit filed by Homan, the former county administrative officer. A few months earlier, a judge ruled that the county needed to turn over all of the documents that Homan had requested. Homan said he’s seen about half of them.

By June, the county already had spent $315,000 on the Homan litigation and needed to pay those fees, plus likely more for post-trial motions.

Palmisano, in her written answers, explained that Benjamin and former budget director Ed Blades were named as defendants in Homan’s lawsuit, and that required outside counsel to avoid a real or apparent conflict of interest.

Homan attends council meetings every other week to speak at the public comment session and urge the council to stop fighting the lawsuit and push for open information.

“My gut is no,” Jones said of spending more money to defend the Homan lawsuit. “I don’t know what we’re holding back.”

Crandell said county attorneys told the council that the information Homan wants are confidential personnel records. However, he said, “I don’t know if there is a temperature on the council to continue to pay for this” without resolving why these records are being withheld.

Jones agrees that all the legal fees need to be watched closely.

“I am always concerned when we’re spending money that I hope we could save,” he said. “But we didn’t ask for these things to happen.”

Clarification: This article has been updated to clarify Peta Richkus' role in the redistricting case.