Government Liability and Courts

Opening Up To The Open Meetings Act

Barbara Zektick Government Liability and Courts, Summer Conference

MACo Summer Conference attendees opened up on Wednesday, August 16 to one of the most important meetings at the conference: the Academy for Excellence in Local Governance’s Open Meetings course.  John S. Mathias, County Attorney, Frederick County delivered the course, and the Honorable Chris Trumbauer, Council Member, Anne Arundel County served as moderator (and simultaneously earned his final credits for the Academy of Excellence’s accreditation!)

During the 2017 Session, the Maryland General Assembly passed and Governor Larry Hogan signed into law new Open Meetings Act training requirements for public bodies (HB 880 / SB 450). Public bodies have until October 1, 2017, to comply with the new training requirements. Click here for everything you need to know about that. This session fullfilled the training requirement for many; the session enjoyed a packed room of public body members and other interested attendees.

Unpaid State Officials Sue Treasurer, State

Barbara Zektick Employee Benefits and Relations, General Assembly News, Government Liability and Courts, State Budget and Fiscal Issues

Dennis Schrader and Wendi Peters, Governor Larry Hogan’s secretaries for Health and Planning, respectively, have filed suit in Anne Arundel County Circuit Court against State Treasurer Nancy Kopp and the State of Maryland seeking a declaratory judgment on their right to receive their paychecks, reports Bryan Sears for the Daily Record.

Governor Larry Hogan withdrew his appointees’ nominations during the legislative session, preventing the State Senate from voting on their confirmations. The General Assembly passed budget language that prohibits the use of State budget funds to pay the salaries of certain secretaries and other high-ranking officials who did not receive Senate confirmation during the 2017 session. In response to the budget language, State Treasurer Nancy Kopp announced last month that should would not pay the secretaries at the start of fiscal 2018 year on July 1.

The Daily Record  quotes Governor Hogan:

The attorney general gave both the legislature and our office the opinion that they’re legally serving in their positions so it would be illegal for us not to pay them.

Sears further reports:

The attorney general, in two different advisories, said Hogan could legally reappoint secretaries whose names he withdrew before a vote. But in a separate advisory, the office said that the language in the budget barring the payment of Schrader and Peters was also legal under the Maryland Constitution.

From the Letter To Senator Ferguson from the Office of the Attorney General (June 27, 2017):

The reappointment of Ms. Peters and Mr. Shrader after the close of session raises significant constitutional concerns because the practice of making recess reappointments of withdrawn nominees tends to circumvent the Senate’s constitutional confirmation role. But in the absence of any constitutional provision addressing the practice, our Office’s position has been that a governor may reappoint a withdrawn nominee after session so long as the nominee was not rejected by the full Senate. As for the budgetary restriction, I believe it is a constitutionally permissible exercise of the Legislature’s power to impose conditions on the expenditure of appropriated money, particularly as applied to the positions of Secretary and Acting Secretary.

Although a reviewing court might disagree with one or both of these conclusions, it likely would not resolve the reappointment and budgetary issues in a way that would allow a governor to systematically circumvent the Senate’s confirmation role. Instead, it would either invalidate the reappointment of the withdrawn nominees, or, more likely, conclude that the budgetary restriction is a constitutionally valid means of ensuring the integrity of the Senate confirmation process. Thus, even if Ms. Peters and Mr. Shrader were valid recess appointments, they may not receive a salary as Secretary, Acting Secretary, Deputy Secretary, or Assistant Secretary as of the budgetary restriction’s July 1 effective date.

Useful Links

Montgomery Pesticide Ban Struck Down as Preempted

Michael Sanderson Environment, Government Liability and Courts, Intergovernmental Relations

Montgomery County’s ban on a wide range of pesticide use has been struck down in Circuit Court. The Judge, Terrence McGann, opined that state laws governing pesticide use effectively occupy the field, and that local restrictions are not allowable.

From coverage in Bethesda Beat:

The county law, set to go into effect in January, would have banned residents from using certain pesticides on private property. It was intended to limit the overuse of pesticides that have been the subject of studies showing a general harm to the people, animals and the environment. However, McGann ordered that the law not go into effect as scheduled.

“By generally banning the use of registered pesticides, the ordinance prohibits and frustrates activity that is intended to be permitted by state law, which conflicts with and is thus preempted by state law,” McGann ruled. “The county’s ordinance flouts decades of state primacy in ensuring safe and proper pesticide use, undermines the state’s system of comprehensive and uniform product approval and regulation, and prohibits products and conduct that have been affirmatively approved and licensed by the state.”

The Bethesda Beat writer has also posted the full opinion to a Scribd site online.

The county government has not announced a decision on whether it plans to appeal the finding.

Quill, Brick & Mortar and Sales Tax

Barbara Zektick County News, Government Liability and Courts, Taxes and Revenues

The Supreme Court might take up the issue of whether states and local governments can require retailers to collect sales tax when they do not maintain a local physical presence – and it might might do so within the next year. According to the National League of Cities’ publication, Citiesspeak:

The billion-dollar question for local governments is whether the Supreme Court will take a case where it is asked to overturn Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. In Direct Marketing Association v. Brohl (2015), Justice Kennedy stated that the “legal system should find an appropriate case for this court to reexamine Quill.” South Dakota passed a law requiring remote vendors to collect sales tax, which is currently being litigated in state court. If the South Dakota Supreme Court strikes down this law by the end of August, it is possible the Supreme Court could decide this question by June 2018.

Read about other potential Supreme Court cases of consequence to local governments in the article, 2018 Supreme Court Preview for Local Governments.

Best Practices for Public Safety Hires at #MACoCon

Les Knapp Government Liability and Courts, Public Safety and Corrections, Summer Conference

Hear about the challenges and best practices related to hiring local public safety officials (law enforcement officers, correctional officers, and 9-1-1 operators) at the 2017 MACo Summer Conference.

The Key to Public Safety: Locking Down Your Hiring Process

Description

Law enforcement and correctional officers form the backbone of our public safety system. These jobs are both challenging and demanding, and properly vetting potential candidates during the interview process is critical. Carefully chosen candidates not only protect citizens but also reduce the risk of liability and human resource issues in the future. Speakers will discuss how to structure the interview and candidate search process, the best way to interview for a public safety position, and lessons learned from a human resources perspective.

Speakers

  • Timothy Cameron, Sheriff, St. Mary’s County
  • Captain Lisa Myers, Human Resources Bureau, Howard County Police Department
  • Anna Sierra, Director of Emergency Services, Dorchester County

Moderator: The Honorable Cheryl Kagan, Maryland Senate

Date & Time: Friday, August 18, 1:00 PM – 2:00 PM

Learn more about MACo’s Summer Conference:

Hogan Administration Plans to Sue EPA Over Air Pollution From Other States

Les Knapp Environment, Government Liability and Courts

An Associated Press article (2017-07-20) reported that Maryland Governor Lawrence “Larry” Hogan has announced plans to sue the United States Environmental Protection Agency (EPA) under the federal Clean Air Act over air pollution generated by power plants in neighboring states. As previously reported on Conduit Street, Hogan had requested that the EPA require certain coal plants in mid-western states to use pollution-control technology during the months of May through September. The Maryland Department of the Environment has estimated that nearly 70 percent of Maryland’s air pollution comes from “upwind” sources located outside of the state. From the article:

Ben Grumbles, secretary of the Maryland Department of the Environment, notified the agency of the state’s plans in a letter to EPA Administrator Scott Pruitt.

“We need the EPA to step in to ensure that these power plants run their pollution controls on a daily basis,” Grumbles said in an interview. “We’re in discussions with the states. We need EPA to step in and help. We have the data, and it’s clear, and the pollution is coming from these power plants.”

Maryland petitioned the EPA in November for a finding that 36 power plant units in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia are emitting air pollution affecting the state’s air quality in violation of the law known as the “good neighbor provision.” In January, the EPA issued a six-month extension to act, setting a July 15 deadline that has expired without required EPA action.

The Chesapeake Bay Foundation, a conservation group, indicated it also planned to sue the EPA over the issue. The foundation noted that the state had forecast a Code Red Air Quality Alert on Thursday for Baltimore.

“We join and wholeheartedly support Maryland in its effort to protect the health of its residents and the Chesapeake Bay against upwind, out-of-state power plants which choose to make higher profits rather than turn on their pollution controls during hot summer months,” said Jon Mueller, vice president of litigation at the foundation.

Useful Links

Prior Conduit Street Article on Hogan’s EPA Request

Red Line Civil Rights Case Closed “Without Finding”

Barbara Zektick Government Liability and Courts, Transportation and Public Works

The U.S. Department of Transportation (DOT) has closed its investigation into whether the cancellation of the Red Line Light Rail Project in Baltimore City compromised Baltimore residents’ civil rights – “without finding.”

In 2015, the NAACP Legal Defense Fund and American Civil Liberties Union filed a complaint with U.S. DOT alleging that the project’s cancellation has a violative disparate impact on African-Americans in Baltimore. The Obama Administration extended the investigation to look more broadly into the Maryland Department of Transportation’s compliance with the Civil Rights Act.

This week, the U.S. DOT sent the Hogan Administration a letter explaining that “the appropriate course of action is to administratively close the complaint, without finding.” According to The Baltimore Sun:

The letter did not explain why the case was closed. …

Maryland Transportation Secretary Pete K. Rahn described the letter from the federal department as “self-explanatory.”

“If there are any issues in the compliance review, USDOT will discuss those with us,” he said in a statement.

Rep. Elijah E. Cummings, a Baltimore Democrat, said he was “deeply disappointed” by the decision.

“The complaint … raised critical questions about this decision’s impact on Baltimore’s residents — particularly African-American residents,” Cummings said in a statement. “I am deeply disappointed that the U.S. Department of Transportation is summarily closing the complaint without issuing any findings.”

A separate investigation, opened on the final day of President Barack Obama’s administration, will continue. That review looks more broadly at whether decisions by the state transportation department have violated the Civil Rights Act.

But that broader review will not likely be as thorough as the investigation that would have taken place if the department followed through on the complaint.

Md. Cybersecurity Council Releases Biennial Report

Kevin Kinnally County News, Economic Development, Government Liability and Courts, Intergovernmental Relations, Public Information and Ethics

The Maryland Cybersecurity Council, created by law in 2014, issued a biennial report highlighting legislation enacted to protect consumers and the development of a “Cybersecurity Breach Portal,” a one-stop portal housing resources and best practices to help prevent and address cybersecurity infrastructure attacks.

The report from the council is discussed on the Maryland Attorney General’s website:

Maryland Attorney General Brian E. Frosh, Chair of the Maryland Cybersecurity Council, today announced the release of its Biennial Report, outlining the Council’s activities and updated recommendations based on its findings over the last 12 months. The report follows up on its Preliminary Report issued in July 2016, in which several of the Council’s recommendations have been implemented. The recommendations include enactment of several bills that expand protections for consumers, the creation of a portal to house best practices and additional resources to protect Maryland’s critical infrastructure. “The Council has made progress in its first year, but much remains to be done to protect against threats to Maryland’s citizens, critical infrastructure and state operations,” said Attorney General Frosh. “The recommendations developed by the Council provide a solid roadmap for addressing cyber security issues.”

In Fiscal Year 2016, the Office of Attorney General reported that there were 564 data breaches affecting more than 600,000 Maryland residents. According to the report, these breaches were due to phishing, retail malware, lost or stolen laptops or other devices, unauthorized access, and inadvertent administrative error, such as mistakenly sending personal identifying information to third parties not authorized to have it. In response, in the 2017 legislative session, at the recommendation of the Council, the Maryland General Assembly enacted bills to expand the protections under the Maryland Personal Information Protection Act (SB 525/HB 974) and to waive data breach victims’ fees for a credit freeze (SB 270/HB 212), effective January 1, 2018 and October 1, 2017, respectively.

In an effort to assist small and medium-sized enterprises that do not have the deep financial  and professional cybersecurity resources of much larger organizations, the Council developed, in partnership with the Maryland Department of Information Technology (DoIT), a one-stop portal housing resources and best practices to help prevent and address cybersecurity infrastructure attacks. The portal will be available in the fall of 2017, and can be found on the Office of Attorney General and the Maryland Cybersecurity Council websites.

The Biennial report also outlined updates on the recommendations the Council provided in its Preliminary Report from July 2016 to advance Maryland’s cybersecurity. The progress and full summary of each of the recommendations are detailed in the full report.

Useful Links

Previous Conduit Street Coverage: MD Cybersecurity Council Calls for “Cyber First Responders”

The full biennial report is available online from the Attorney General’s Office

City Officials, Cycling Advocates Reach Settlement on Baltimore Bike Line

Kevin Kinnally County News, Government Liability and Courts, Transportation and Public Works

The Potomac Street protected bike lane will remain in place after cycling advocates and Baltimore officials reached a settlement agreement on Tuesday evening.

According to The Baltimore Sun,

Bikemore, a leading advocacy group, had sued the city after officials announced plans to tear out the cycle track after hearing residents’ concerns that it would make it harder for emergency vehicles to travel down the street.

Anthony McCarthy, a spokesman for Mayor Catherine Pugh, confirmed the settlement but declined to comment further.

Bikemore won a temporary restraining order this month preventing the city from demolishing the protected bike lane. The matter was set to go to court on Wednesday. Instead, bike advocates said they would be outside the courthouse Wednesday morning handing out coffee and donuts to supporters to thank them.

Bikemore members said on their website that they would sit down with city officials to help hammer out a modified plan. That plan would then be released to the public for a two-week comment period.

…

The suit came as Pugh ordered a review of all bike lanes and parking spaces. Cyclists and their advocates fear a rollback of what they see as gains in making Baltimore more bike friendly. They also point out that millions of dollars in planning and construction money would be wasted.

Bikemore had previously alleged in court the city’s decision “reversed five years of extensive planning and public input” and was “arbitrary and capricious.”

But neighbors near some of the bike lanes say they actually make streets more dangerous due to bad design. They argue the design encourages crashes, eliminates parking spaces and prevents emergency vehicles from traveling.

Useful Links

Previous Conduit Street Coverage: Judge Protects Baltimore Bike Lane

Read the full article from The Baltimore Sun

Will You Throw the First Pitch?

Robin Clark Eilenberg Business Affairs, County Budgets, County News, Economic Development, Education, Elections, Employee Benefits and Relations, Environment, Finance and Procurement, Government Liability and Courts, Health and Human Services, Housing and Community Development, Human Resources, Information Technology, Intergovernmental Relations, Planning and Zoning, Public Information and Ethics, Public Safety and Corrections, Summer Conference, Taxes and Revenues, Transportation and Public Works
Screenshot 2017-06-26 15.05.44
Step up and share your county’s IT needs at MACo’s Summer Conference.

This year’s MACo Conference offers attendees an opportunity to voice county government information technology interests directly to private sector providers in an informal, informational format.

Share challenges & discover capabilities in this new Tech Wednesday offering.

SWITCH PITCH” IGNITE! — Meet Your Match: Solutions to County IT Challenges

Wednesday, August 16, 2017

11:30 am – 12:30 pm

Gain quick insight into what tech can do for county governments in this fast-paced session. County IT and management professionals will state their needs, and vendors in the Tech Expo Tradeshow will respond with their pitch for solving the top tech issues. Attendees will get a chance to learn a little about a lot of vendors in a short period of time. Listen and learn!

Example County Pitches

  1. How do I empower employees to work from home in a secure and productive manner at minimal cost to the County?
  2. There are so many mobile apps in the market. Other than reading through the reviews, how can one determine the overall quality of a mobile app?  Is there a standard to check an app’s quality? What is it?
  3. What and where have been some of the more successful public/private partnerships providing broadband to unserved rural areas?

SIGN UP HERE TO BE A PART OF THIS SESSION Space is limited – Reply by July 19.

Have a pitch, but you are not attending this session?  Contact Robin Clark Eilenberg at MACo.

Tech Wednesday Vendor List

  • AVI-SPL, Inc
  • CDW-G
  • Comcast
  • Commvault
  • Cybersecurity Association of Maryland, Inc.
  • Data Networks of America
  • ePlus Technology Inc.
  • Esri
  • Freedom Broadband
  • Fujitsu America, Inc.
  • GovDeals, Inc.
  • Juniper Networks
  • Lenovo
  • Maryland Department of Natural Resources
  • Maryland Libraries
  • Maryland Relay
  • Motorola Solutions, Inc.
  • Musco Sports Lighting
  • NIC Maryland
  • Phillips Office Solutions
  • Presidio
  • Prosys Information Systems
  • Regent Development Consulting, Inc. (RDC)
  • Ricoh USA, Inc.
  • Rimkus Consulting Group, Inc.
  • Rudolph’s Office & Computer Supply, Inc.
  • SAIC
  • ShoreScan Solutions
  • Splunk
  • Sprint
  • Supply Solutions, LLC
  • Tomi Environmental Solutions

Learn more about MACo’s Summer Conference: