2016 End of Session Wrap Up: Government Liability & Courts

This post summarizes the status of various government liability and courts bills that MACo took a position on for the 2016 Regular Session.

LGTCA – Repeal of Notice Requirement: SB 356 repeals the 1 year notice requirement under the Local Government Tort Claims Act (LGTCA) and the Maryland Tort Claims Act (MTCA). Under the MTCA, the bill also provides that when a cause of action accrues in favor of a minor or mental incompetent, the claimant shall file an action within 3 years after the disability is removed (which for a minor would mean up until they turn 21).

MACo Position: MACo opposed the bill, arguing that it would limit the ability of the State or a local government facing a lawsuit to receive timely notice to correct a deficiency and prepare an adequate defense. MACo also noted that the bill upset a compromise from the 2015 Session where both the LGTCA damage caps and notice requirements had been increased.

FINAL STATUS: The Senate passed SB 356 with amendments that removed the notice repeal for both the LGTCA and MTCA and added the minor/mental incompetent language to the LGTCA provisions. The House passed the bill with a further amendment limiting the bill to cases involving the ingestion of lead paint. The Senate refused to concur and the bill died on Sine Die.

MACo testimony on SB 356

LGTCA – Exception to Notice Requirement: HB 637 / SB 934 waives the notice requirement of the LGTCA for an alleged employment discrimination case filed with the Maryland Commission of Civil Rights.

MACo Position: MACo opposed the bill, citing the precedent it would establish to allow for the adoption of other, more broad notice exceptions, increased costs to local governments, and the fact that the General Assembly had just increased the LGTCA notice requirement from 6 months to 1 year in the 2015 Session.

FINAL STATUS: The House passed HB 637 with amendments applying the notice waiver to any discrimination or retaliation claim where a claimant is required to file an administrative charge or complaint before filing a civil action. The Senate passed HB 637 and SB 934 with amendments stripping out the original language of each bill and added new amendments that had not been previously subject to debate. The new amendments inverted an existing good cause/lack of prejudice test for waiving notice and required that “unless the defendant can affirmatively shore that its defense has been prejudiced by lack of required notice, upon motion the court shall entertain the suit even though the required notice was not given.”

MACo strongly opposed the new language. A conference committee met and amended HB 637 and SB 934 so that notice under the LGTCA is only waived if “within 1 year after the injury, the defendant local government has actual or constructive notice of: (1) the claimant’s injury; or (2) the defect or circumstances giving rise to the claimant’s injury.” MACo accepted the conference committee language and HB 637 passed the General Assembly with the conference committee amendments. SB 934 did not pass out of the House before Sine Die.

MACo testimony on HB 637

MACo testimony on SB 934

LGTCA – Regional Development Councils: SB 1097 includes regional development under the definition of “local government” for inclusion in the LGTCA. (Under current law, the Baltimore Metropolitan Council is explicitly included and the other five regional councils were assumed to be included until recently.)

MACo Position: MACo supported SB 1097, noting that the bill would acknowledge the important role regional development councils play as extensions of local governments and follow existing statutory precedent in providing them coverage under the LGTCA.

FINAL STATUS: The Senate passed SB 1097 without amendments. However, the House amended SB 1097 to exclude the Tri-County Council for Southern Maryland and the Tri-County Council for Western Maryland as they already had immunity from claims under separate sections of the law. The Senate refused to concur and the conference committee instead repealed the immunity provisions for the Southern Maryland and Western Maryland Tri-County Councils and included all regional councils under the LGTCA. The General Assembly passed SB 1097 with the conference committee amendments.

MACo testimony on SB 1097

Attorney’s Fees for Constitutional Violations: HB 393 / SB 362 authorizes a court to award a prevailing party attorney’s fees in a civil action against the Stater or a local government for a violation of a right secured by the Maryland Constitution or Declaration of Rights. A court may only award attorney’s fees to a prevailing defendant if the court finds the action brought by the plaintiff was maintained in bad faith or without substantial justification. Any award of attorney’s fees does count against the LGTCA liability caps.

MACo Position: MACo opposed the bill, citing concerns over increased litigation, incentivizing plaintiff’s attorneys to push cases rather than settle, unequal treatment of plaintiffs and defendants, lack of certain defendant protections found at the federal level, and increased costs to local governments.

FINAL STATUS: The House passed HB 393 but the Senate Judicial Proceedings Committee took no action on the bill. The Judicial Proceedings Committee heard SB 362 but took no further action on the bill.

MACo testimony on HB 393

MACo testimony on SB 362

Liability Insurance for Police Officers: HB 856 prohibits the Maryland Police Training Commission from certifying an individual as a police officer until the individual provides proof of professional liability insurance that meets the damage cap limits under the LGTCA ($400,000 per individual claim and $800,000 per all claims arising from the same incident) or the MTCA. The insurance must cover tortious and malicious acts or omissions. The police officer must maintain the coverage for as long as he or she remains employed in the state. A law enforcement agency employing the officer may reimburse the officer for the base rate of the policy but the officer is responsible for any additional premium cost due to claim history. The State or local government may not indemnify a police officer for a judgment against the officer that is greater than the caps contained in the LGTCA or MTCA unless the officer’s professional liability insurance is exhausted first.

MACo Position: MACo opposed the bill, noting that the liability insurance required in the bill was not commericially available in the United States and even if made available would have an extraordinarily high cost. This would severely limit the ability of counties to recruit new officers.

FINAL STATUS: HB 856 was withdrawn by the bill’s sponsor.

MACo testimony on HB 856

Speed Cameras & Red Light Cameras – Repeal: HB 436/ SB 468 repeals red light camera programs, local speed camera programs, and the State’s work zone speed camera program.

MACo Position: MACo opposed the bill, arguing that both red light camera and speed camera programs have been shown to be effective in altering driver behavior and increasing public safety. MACo also noted that in counties with older speed camera programs, tickets and revenue have declined over time and additional safeguards and necessary clarifications were made to the speed camera program in 2014 (HB 929 and SB 350).

FINAL STATUS: The House Environment and Transportation Committee gave HB 436 an unfavorable report. The Senate Judicial Proceedings Committee gave SB 468 an unfavorable report.

MACo testimony on HB 436

MACo testimony on SB 468

Speed Cameras & Red Light Cameras – Automated Audits: Several bills were introduced this Session requiring the use of automated audits of speed cameras and red light cameras by software algorithms. HB 1052 / SB 961 requires a speed camera to be subject to an automated, real-time audit. The audit may not be done by an employee or representative of the contractor. The results of the audit shall remain in the custody and be property of the local jurisdiction and be admitted as evidence in any court proceeding for a violation that is the subject of the audit.

SB 769 requires red light cameras and speed cameras to have a continuous auditing system (real-time review and verification of the camera’s functions) administered and monitored by an independent contractor selected by the agency responsible for the system. The contractor must be unaffiliated with the manufacturer of the camera system. Records of the audit must be kept on file and be admitted as evidence in any court proceeding.

MACo Position: MACo opposed HB 1052/SB 961 and SB 769, noting that: (1) there appeared to currently be only one provider of the services described in the bills and that provider was located in Great Britain; (2) speed camera reform legislation adopted in 2014 added many safeguards to speed camera programs and it was questionable about how much additional performance improvement the computer algorithms would provide; and (3) since the passage of the 2014 legislation there have be no reported systemic issues regarding the use of speed cameras.

FINAL STATUS: The House Environment and Transportation Committee heard HB 1052 but took no further action on the bill. SB 961 was withdrawn by the bill’s sponsor. The Senate Education, Health, and Environmental Affairs Committee heard SB 769 but took no further action on the bill.

MACo testimony on HB 1052

MACo testimony on SB 769

Speed Cameras – Calibration Checks: HB 863 requires speed cameras to undergo a quarterly calibration check performed by an independent laboratory. (Current law requires an annual calibration check.) The quarterly checks must be published online by the local government. A check must also be performed when the software of the speed camera is upgraded. The bill also requires a local government to annually publish online the information it must submit to the Maryland Police Training Commission about its speed camera program, including those records used to compile the information.

MACo Position: MACo opposed the bill, noting that a calibration check was a weeks-long process involving shipping, dismantling, and reassembly of the camera by the laboratory and that such a requirement would essentially remove the camera from use for significant amounts of time. MACo also noted that the General Assembly has rejected the idea of a quarterly calibration check multiple times in favor of an annual calibration check.

FINAL STATUS: HB 863 was withdrawn by the bill’s sponsor.

Workers’ Compensation – Compensation for Permanent Partial Disability: MACo considered two opposing bills that would modify the calculation for permanent partial disability payments. HB 504 / SB 186 provides that if an award of permanent partial disability compensation is reversed or modified by the Workers’ Compensation Commission (WCC) or a court on appeal, the payment of any new compensation awarded shall be subject to a monetary credit for compensation previously awarded and paid.

HB 693 / SB 534 provides that if a covered employee is awarded compensation for less than 75 weeks (permanent partial disability) for a claim arising from events occurring on or after January 1, 2017 , the employer or insurer shall pay the covered employee compensation that equals the lesser of 1/3 of the employee’s average weekly wage or $114. (This bill essentially resets the payout level to a previous level that was in place for incidents occurring on or after January 1, 2000. This level was later increased in statute to the lesser of 1/3 of the employee’s average weekly wage or the 16.7% of the State’s average weekly wage (which equals $172 for 2016.)

MACo Position: MACo opposed HB 504/SB 186, citing the likely significant increase in costs to counties and their insurers due to the high number of worsening of condition cases. MACo also noted that the Maryland Court of Appeals had previously held in 2014 that a reopened case due to worsening of condition is a different situation than a modification on appeal and should be treated differently in terms of how credits are handled.

MACo supported HB 693/SB 534, noting that the bill would result in substantial savings to the State, local governments, and private sector employers. The bill would also provide some level of certainty about the costs they might face for potential injures so they can ensure appropriate budgeting and risk management practices are in place.

FINAL STATUS: The House Economic Matters Committee gave HB 504 an unfavorable report. The Senate Finance Committee heard SB 186 but took no further action on the bill. The House Economic Matters Committee gave HB 693 an unfavorable report. The Senate Finance Committee heard SB 534 but took no further action on the bill. 

MACo testimony on HB 504

MACo testimony on SB 186

MACo testimony on HB 693

MACo testimony on SB 534

Workers’ Compensation – Location of Hearings Involving Governmental Agencies: HB 1053 / SB 174 alters the hearing location provisions for workers’ compensation claims against government agencies. The bill provides that the WCC may conduct a hearing at an alternative location only if a covered employee demonstrates through a detailed medical report a medical necessity to hold a hearing at an alternative location.

MACo Position: MACo supported the bill, arguing that it would strike a reasonable balance between county workers’ compensation attorneys being able to attend WCC hearings and the need of a covered employee to have the hearing at an alternative location because of medical needs.

FINAL STATUS: HB 1053 and SB 174 were withdrawn by their respective bill sponsors.

MACo testimony on SB 174