Supreme Court Considers Hearing Legislative Prayer Issue

The United States Supreme Court is considering whether to hear a case regarding legislative prayer that would resolve a federal court of appeals circuit split. The case, Lund v. Rowan County addresses whether the Establishment Clause is violated when legislative prayers are offered exclusively by members of a local legislative body. As previously reported on Conduit Street, the Supreme Court upheld the right of a legislative body to have sectarian payers at their public meetings in the case of Town of Greece v. Galloway. Rowan County deals with whether an otherwise appropriate sectarian prayer can solely be offered by legislators.

While the United States Court of Appeals for the Fourth Circuit ultimately found on July 14, 2017, that the Establishment Clause was violated in Rowan County, the Court of Appeals for the Sixth Circuit decided the opposite in a very similar case, Bormuth v. Jackson County, on September 6, 2017. Given the split, the Supreme Court may decide to hear the Rowan County case to provide clarity on the issue.

Useful Links

US Court of Appeals Opinion in Lund v. Rowan County

US Court of Appeals Opinion in Bormuth v. Jackson County

Conduit Street Article on Town of Greece v. Galloway Case

 

Supreme Court Declines Maryland Marijuana Stop & Frisk Appeal

A Daily Record article (2017-10-02) reported that the United States Supreme Court declined to review a Maryland Court of Appeals holding that simply smelling unsmoked marijuana in a vehicle does not allow police officers to frisk a passenger for weapons. In Joseph Norman Jr. v. State of Maryland (March 27, 2017), the Court of Appeals found that in order to conduct a weapons frisk, a police officer must have “reasonable articulable suspicion” that a passenger may be armed and dangerous. This suspicion is based on the “totality of the circumstances” and must include more than smelling marijuana in a car. In declining to hear Maryland’s appeal, the Supreme Court essentially upheld the Court of Appeals holding and dismissed the argument of Maryland Attorney General Brian Frosh. From the article:

“By withholding authority to frisk the occupants of a car that an officer already has probable cause to search, and by retreating from the widely recognized association of drugs and guns particularly in the circumstances of drug trafficking or transport on the nation’s roads, the decision below makes constitutionally unreasonable the educated instincts that keep traffic officers alive,” Frosh wrote in Maryland’s petition for review. “This should not be.” …

In a responsive filing, Maryland Public Defender Paul B. DeWolfe countered that the Maryland court’s decision did not merit the justices’ review as it correctly interpreted the Fourth Amendment.

“As an initial matter, the rule proposed by the state is breathtaking in its scope, and adoption of it would permit pat-downs of passengers in a staggering number of situations, including stops in which the police have probable cause to believe the car contains evidence of very minor crimes, such as shoplifting,” DeWolfe wrote in the brief to the justices… .

The article also noted that DeWolfe cited the legalization or de-criminalization of small amounts of marijuana by more than 20 states as further evidence that simply having small amounts of marijuana is not viewed as dangerous behavior.

Useful Links

Court of Appeals Case – Joseph Norman Jr. v. State of Maryland

 

Baltimore City Sewer Agreement Challenged In Federal Court

 

 

 

 

 

 

A Bay Journal article (2017-09-20) reported that environmental group Blue Water Baltimore has launched a federal court challenge against a Baltimore City plan to upgrade its aging sewer system. As previously reported in Conduit Street, the City, the Maryland Department of the Environment (MDE) and the United States Environmental Protection Agency (EPA) reached a consent decree agreement in 2016 requiring the City to commit $1.2 billion to sewer system repairs through 2030. However, the agreement was criticized by some environmental and affected neighborhood groups. According to the article, the agreement has since been further revised in response to the criticisms, including the addition of reporting, transparency, and sewage backup mitigation requirements. From the article:

Both [EPA] and [MDE], which have been overseeing the city’s sewer overhaul, urged the court to accept the latest plan. Ben Grumbles, Maryland’s environment secretary, called it “a better contract for clean water and environmental justice.” The state also pledged to provide $300 million in low-interest loans to the city and suburban Baltimore County to help cover costs to repair the sewer system that handles waste from both jurisdictions. …

On Wednesday, Blue Water Baltimore took its objections to court. Previously granted the right to intervene in the case, the group filed a motion in federal court contending that despite some improvements, the agreement has been seriously compromised by a previously undisclosed provision. The provision prohibits the state or the EPA from using the stream monitoring data to order additional repairs by the city if the planned upgrades are not having the promised result of reducing bacteria levels and making the water safer for human contact.

The environmental group filed a motion Wednesday in opposition to the consent decree, asking the court to deny approval unless that provision is removed.

Useful Links

Prior Conduit Street Coverage of Baltimore City Consent Decree

Blue Water Baltimore Website

Gov. Hogan Terminates Funding for Baltimore Crime Panel

Governor Larry Hogan on Friday announced he is terminating state funding for the Criminal Justice Coordinating Council, a panel formed in 1999 to tackle issues affecting criminal justice in Baltimore, initially focusing on streamlining the processing of criminal cases by coordinating the efforts of criminal justice system participants. The Council is fully funded through a state grant of about $272,000.

In a letter to the council’s chairman, V. Glenn Fueston Jr., the governor’s designee on the CJCC, says “the inability to deliver solutions in support of the governor’s initiatives forces the termination of the CJCC’s grant.”

According to WBAL,

The letter states that the CJCC mission is not being carried out: “Its goals to reduce violent crime are not being met. Continuing to fund the CJCC is simply not a responsible use of taxpayer dollars.”

The letter states that the funding will instead go to the Mayor’s Office of Criminal Justice — an office, the letter stated, “we are confident will not seek to evade the responsibility of providing the timely and actionable strategies to appropriately respond to this critical issue.”

Read the full article for more information.

Town of Chevy Chase Ordered to Pay Attorney Fees in Purple Line PIA Request

A Bethesda Beat article (2017-09-12) reported on a follow-up court decision that required the Town of Chevy Chase to pay $92,000 in attorneys’ fees in a Maryland Public Information Act (PIA) case. The legal dispute centered around a request for information on the Purple Line by the pro-Purple Line group Action Committee for Transit (ACT). Originally, the Town was opposed to the Purple Line.

ACT member Ben Ross sought information on the Town’s lobbying efforts against the Purple Line and the group brought a lawsuit in 2015 over the Town’s charging PIA fees of $879 prior to beginning to search for the documents. ACT argued that the fees should have been waived based on public interest. While the Town prevailed in circuit court, the Court of Special Appeals found for ACT. From the article:

In 2016, three appeals court judges ruled the town should have waived the fees and provided the information being sought because Ross is a writer and blogger on transportation issues who should have been considered a member of the media who was seeking documents in the public interest. The Maryland Public Information Act states governments may waive fees for the release of information considered to be in the public interest.

The Court of Special Appeals was unswayed by the Town’s argument that the fee waiver was unwarranted as ACT and Ross had previously made false statements against the Town and found that PIA fees could not be imposed based on the content of a requester’s previous speech. The Court remanded the case to the circuit court to determine whether attorney fees should be awarded to ACT’s pro bono attorneys, the firm of Baker Hostetler. The circuit court ultimately granted ACT $92,000 in attorney fees, roughly halved from the attorney request of $198,000.

 

 

Eliot Feldman, an attorney with Baker Hostetler, said Tuesday the ruling was precedent setting. He said governments in Maryland, whether large or small, must not use fee waivers as leverage to prevent public information from being released.

“You can’t use fees as a barrier to access to information, particularly against those who are entitled to information such as journalists and nonprofit organizations,” Feldman said.

The Town of Chevy Chase had not yet reviewed the circuit court holding and was unable to provide a comment for the article.

Useful Links

Court of Special Appeals Holding – ACT v. Town of Chevy Chase

 

He said there is no plan to appeal the ruling to seek greater attorneys’ fees.

Ross said the transit group gleaned new information about the town’s lobbying efforts against the light-rail project after receiving the information. For example, he said, the group determined the town was employing the public relations group Xenophon Strategies to oppose the project.

The group also received documents related to the town’s contracts with the lobbying firms Buchanan Ingersoll & Rooney; Chambers Conlon & Harwell; and Alexander & Cleaver. The town spent tens of thousands of dollars paying the firms to oppose the light-rail project, according to court records.

Ronit Dancis, ACT’s president, said Tuesday the court rulings in favor of the transit group and its attorneys “set an important precedent for the public’s right to know in the state of Maryland.”

The town stopped opposing the light-rail project in the summer of 2015 and shifted to a strategy focused on mitigating the line’s impact on town residents. The town has never been part of the ongoing federal lawsuit brought by two Town of Chevy Chase residents and the trail group Friends of the Capital Crescent Trail that is now being considered in the U.S. Court of Appeals in Washington, D.C.

Purple Line construction began last month after the state signed a $900 million grant agreement with the federal government. Prior to that, the D.C. appeals court reinstated the project’s federal approval, which allowed construction to proceed as it considers the ongoing lawsuit that now hinges on whether a new environmental study is needed to determine if Metro’s ridership decline and safety issues would affect Purple Line ridership.

If completed, the Purple Line will stretch from downtown Bethesda to New Carrollton in Prince George’s County.

Learn All Things Public Finance With MDGFOA

The Maryland Government Finance Officers Association (MDGFOA) has announced their fall educational offerings.

The MDGFOA Fall Conference takes places on October 27, 2017 at the BWI Marriott in Linthicum. Presentations include:

  • The Latest in Government Fraud, with Adam Lippe, State’s Attorney’s Office, Baltimore County;
  • Continuity of Operations Planning (COOP) Overview, with Eric Oddo, Continuity Program Director, University of Maryland Center for Health and Homeland Security;
  • Maryland’s Fiscal Health, with Eileen Norcross, Senior Research Fellow, Mercatus Center at George Mason University;
  • Maryland Revenue Update, with Andrew M. Schaufele, Director, Bureau of Revenue Estimates;
  • GASB Update and Actuary Insights, with Jennifer Diercksen, First Vice President, Davenport & Company LLC, and David Boomershine, EA, MAAA, FCA, MSPA, President, Boomershine Consulting Group; and
  • Best Practices- Risk-Based Reserve Policy, with Bob Cenname, Deputy Budget Director, City of Baltimore. 

Registration is available on MDGFOA’s website.

In addition, MDGFOA is offering a Review of the Government Accounting, Auditing & Financial Reporting Exam on November 2-3, 2017, and an Intermediate Governmental Accounting Seminar (IGAS) November 8-10, 2017.

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Governor Requests Legal Action For Noisy Planes

plane-50893_1920Governor Larry Hogan wrote Attorney General Brian Frosh a letter requesting that he sue the Federal Aviation Administration (FAA) and Administrator Michael Huerta over new flight patterns which have resulted in a flurry of noise complaints by Maryland residents.

The Next Generation Air Transportation System is a $35 billion system implemented at airports across the country, intended to cut down on delays and carbon emissions, reports The Baltimore Sun. The initiative has resulted in a number of changes at BWI Thurgood Marshall Airport and at nearby Reagan National Airport.

But the new system has resulted in planes flying much closer to the ground near residential neighborhoods, according to a number of complaints raised by elected officials, community groups, and others.

The Anne Arundel County Council passed Resolution 31-17 last week urging FAA to modify flight paths and elevations imposed by the new system to where they were before, and to place warnings in the Automated Terminal Information System to ensure pilots comply.

The Baltimore Sun reports that the Attorney General has not yet indicated whether he will bring the lawsuit.  The paper quotes the Governor’s letter:

We have heard from countless Marylanders, including many community leaders and elected officials, about this continuing problem. This program has made many Maryland families miserable in their own homes with louder and more frequent flights which now rattle windows and doors…. As elected leaders of this state, we cannot allow this situation to stand.

 

Prince George’s Case Addresses What Constitutes “Claim” Under LGTCA

A recent unreported Maryland Court of Special Appeals holding, Prince George’s County v. Troublefield (August 15, 2017), examined what constitutes a “claim” under the Local Government Tort Claims Act (LGTCA).* Prince George’s County had appealed a lower court jury award to Troublefield against the County based on the actions of two County police officers. The County maintained that Troublefield had only asserted “one set of aggregate operative facts” (i.e., one claim subject to LGTCA damage caps) while Troublefield argued that since each police officer was found liable under separate legal theories, they constituted separate claims, each with its own damage cap. The Court ultimately found that the claims were not separate but based on one set of facts and that Troublefield’s entire judgment was limited under the LGTCA damage cap as a single claim.

From the opinion:

This case presents us with an opportunity to interpret the Local Government Tort Claims Act (the “Act”), which contains limits for recovery associated with “individual claim” and the “same occurrence”: “[T]he liability of a local government may not exceed $200,000 per individual claim, and $500,000 per total claims that arise from the same occurrence . . . .” Section 5-303(a) of the Act. In the present case, the issue is queued up by the awards, after a jury trial, of $250,000 against Officer John Paddy of the Prince George’s County Police Department (which was subsequently vacated), and $350,000 against Officer Philchrist Tossou, Appellant, of the Prince George’s County Police Department, for having committed a battery, initiating a malicious prosecution, initiating a false arrest, committing false imprisonment, and violations of Article 24 of the Maryland Declaration of Rights, as well as against Prince George’s County, also an Appellant, for acts that occurred when Erskine Troublefield, Appellee, was arrested on July 11, 2012. …

In the present case, Mr. Troublefield has alleged only “one set of aggregate, operative facts,” amounting to one “individual claim” under the Act, regardless of whether he asserted “[d]ifferent legal theories for the same recovery” against multiple officers acting in concert. See Beall v. Halloway-Johnson, 446 Md. 48, 70 (2016). Although Mr. Troublefield asserted multiple causes of action, they all arose from the same set of facts, and, as a result, his recovery is limited to the individual claim amount of $200,000 against the County.

*Note: Per Maryland Rule 1-104, unreported opinions may not be cited in any paper, brief, motion, or other document filed in a Maryland Court as precedent or persuasive authority. However, unreported opinions can offer some indication of a Court’s mindset towards a particular subject or issue.

 

Frosh Highlights Recent Efforts in Herald Mail Interview

In an interview with The Herald Mail, Maryland Attorney General Brian Frosh mused on his recent efforts to take on opioids, price gauging, and on asserting new litigation authority against the federal government.

In regards to opioids, Frosh believes more needs to be done to help stem the epidemic including expanding the number of treatment beds. He has focused his efforts on prosecuting “pill mill” doctors, major drug dealers, and now drug manufacturers:

Some manufacturers have claimed their opioids aren’t addictive, he said. Patients have been prescribed more than they need, have become addicted and found they can’t afford the opioids, and switched to heroin. The result has been an upsurge in overdoses and deaths. Frosh said nearly all states are now investigating, some in collaboration with other states and some on their own.

The interview also covered his litigation efforts against the federal government — an authority that was expanded during the past general assembly session. So far Frosh has pursued litigation against the “muslim ban”, withholding cost-share payments through the Affordable Care Act, repealing the Borrower Defense Rule, and loosening of environmental regulations.

Read The Herald Mail to learn more.

Public Safety Hiring Best Practices at 2017 #MACoCon

A panel of county public safety experts discussed the hiring and retention challenges faced by public safety services on August 18 at the 2017 MACo Summer Conference. The panel was titled “The Key to Public Safety: Locking Down Your Hiring Process” and was moderated by Maryland Senator Cheryl Kagan.

From Left to Right: Anna Sierra, Cheryl Kagan, Lisa Myers, and Timothy Cameron

Captain Lisa Myers, Howard County Police Department Human Resources Bureau, focused on the broad challenges facing law enforcement personnel, including: (1) social media expectations; (2) cell phone and body camera video prevalence; and (3) proper training. Myers noted that millennials have different workplace expectations than previous generations, including a better work/life balance.

St. Mary’s County Sheriff Timothy Cameron expanded on the millennial issue for both law enforcement and corrections officers, noting that millennials like to be in charge/have independent authority, and offer and receive immediate feedback. Cameron noted that his department has worked to revise interview practices and forms . Cameron stated that while the number of employment applications for the St. Mary’s County Sheriff’s Department have increased, the number of high quality candidates has actually decreased to about 1 in 100.

Dorchester Emergency Services Director Anna Sierra discussed the issue from a 9-1-1 center perspective, noting the significant skill set differential between call taking and dispatching. Sierra noted that even with a computerized aptitude test, the required background check and polygraph test can create a long application process.

The speakers also discussed retention strategies, including: (1) access to upgraded technology; (2) new training and career growth opportunities; (3) government support, such as through tax credits; (4) assignment rotation; and (5) recognition for performing well.