This post summarizes the status of various government liability and courts bills that MACo took a position on for the 2017 Regular Session.

Attorney’s Fees for Constitutional Violations: HB 903 / SB 705 authorizes a court to award a prevailing party attorney’s fees in a civil action against the State 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 towards the Local Government Tort Claims Act 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 903. The Senate Judicial Proceedings Committee heard HB 903 but took no further action on the bill. The Senate Judicial Proceedings Committee gave a report of favorable with amendments to SB 705, listing which constitutional and Declaration of Rights claims the bill affected. MACo engaged in a floor fight to stop SB 705 from moving out of the Senate The Senate adopted the amendments and moved the bill to third reader but ultimately recommitted the bill to Judicial Proceedings after continued resistance by MACo. The Judicial Proceedings Committee moved the bill out again with two additional amendments that: (1) explicitly stated that attorney fees did count against the Local Government Tort Claims Act liability caps; and (2) removed Article 19 of the Maryland Declaration of Rights (remedy for injury to person or property) from the bill. The bill was special ordered until Sine Die with no further action taken on the Senate floor.

MACo Testimony on HB 903

MACo Testimony on SB 705

Workers’ Compensation – Disability Benefits and Offsets: HB 344 / SB 751 would: (1) remove the current offset for an ordinary disability (non-line of duty) injury where an individual is receiving both a disability retirement benefit and a workers’ compensation benefit; and (2) shifts the costs of paying for an accidental or special disability (line of duty) injury from the State Retirement and Pension System to workers’ compensation.

The bill was introduced partly in response to a Maryland Court of Special Appeals holding, Zakwiewa v. Baltimore County Board of Education, 2492 Md. (2017), which reaffirmed the offset for ordinary disability benefits.

MACo Position: MACo opposed the bill based on the potentially significant costs the bill would place on local governments through their workers’ compensation policies and the “double-dipping” policy the bill would allow (being compensated twice for the same injury).

FINAL STATUS: HB 344 was withdrawn by the bill’s sponsor. The Senate Budget and Taxation Committee heard SB 751 but took no further action on the bill.

MACo Testimony on HB 344

MACo Testimony on SB 751

Workers’ Compensation – Average Weekly Wage for Volunteer Firefighters: HB 1267 would alter the wages used to calculate the average weekly wage for a covered employee who is a member of a volunteer fire and rescue company, setting the minimum calculation amount at 2/3 of the State average weekly wage. (The State average weekly wage is determined by the Department of Labor, Licensing, and Regulation annually and for 2017 the wage is $1,052.)

MACo Position: MACo opposed the bill, arguing that for a volunteer firefighter who has no prior work history, it would “create” a salary where one never existed, undermining a basic premise of the State’s workers’ compensation system. MACo also noted that the bill could create an inequitable situation where a volunteer firefighter with no work history could earn more in workers’ compensation than a salaried professional firefighter first year cadet.

FINAL STATUS: The House Economic Matters Committee gave HB 1267 an unfavorable report.

MACo Testimony on HB 1267

Local Government Tort Claims Act – Liability for Artificial & Synthetic Turf Fields: HB 1353 would exempt injury claims caused by artificial or synthetic turf playing fields from the 1-year notice requirement and damage caps under the Local Government Tort Claims Act (LGTCA). The bill also creates similar exceptions for the State under the Maryland Tort Claims Act.

MACo Position: MACo opposed the bill, arguing that the LGTCA’s notice and damage caps acknowledge the unique role local governments play in providing important services to their residents and that creating an exception to the notice and damage caps would establish a precedent for the creation of other exceptions in the future. MACo also cited the increased financial risk and uncertainty the bill would create for county governments and that current research has countered claims that artificial or synthetic fields increase the risk of injuries or other health concerns.

FINAL STATUS: The House Judiciary Committee gave HB 1353 an unfavorable report.

MACo Testimony on HB 1353

Speed Cameras & Red Light Cameras – Repeal: HB 536 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 536 an unfavorable report.

MACo Testimony on HB 536

Collective Bargaining – Time Limits on Actions for Agreement Violations & Breach of Duty of Fair Representation: HB 852 and SB 1027 (identical but not cross-filed bills) alter the time limit in which a complainant must bring an action for injunctive relief or damages for a violation of a collective bargaining agreement or a breach of duty of fair representation of an employee of the State or a political subdivision. The action must be commenced within six months after the later of: (1) the date on which the claim accrued; or (2) the date on which the complainant knew or should reasonably have known of the breach.

MACo Position: MACo initially opposed the bills out of concern that the bill’s setting the threshold to the date on which the complainant knew or should reasonably have known of the breach could create a more open-ended standard that could ultimately increase litigation over the current law (3 years to bring an action). After further research and input from stakeholders, MACo dropped its opposition after being convinced that a court would likely apply the “knew or should reasonably have known” standard to the existing time limits.

FINAL STATUS: The General Assembly passed HB 852 and SB 1027 with clarifying amendments acceptable to MACo. As amended, the bills alter the time limit in which a complainant must bring an action for injunctive relief or damages for a violation of a collective bargaining agreement or a breach by an exclusive representative of the duty of fair representation owed to an employee of the State or a political subdivision. The action must be commenced within six months after the later of: (1) the date on which the claim accrued; or (2) the date on which the complainant knew or should reasonably have known of the breach.

MACo Testimony on HB 852

NOTE: There is no MACo written testimony on SB 1027

Click here for a round-up of the wrap-ups for all policy areas

SB 705, legislation providing plaintiff attorneys fees on numerous constitutional claims against governments, has been passed again by the Senate Judicial Proceedings Committee, and will be debated in the days ahead on the Senate floor.

Local governments have opposed the bill, citing its effects far beyond the stated desire to provide “access to justice” for non-monetary cases. The fiscal note suggests the bill would have a substantial fiscal cost to state and local governments, as it would trigger more expensive lawsuits and does not contain numerous balancing provisions that exist in federal courts.

The bill will be on “second reader” and open to amendments for the Thursday morning session.

Update: Following another motion to delay consideration of the bill, it will be on the Senate floor agenda again for Monday, April 10 – the last day of session.

Following nearly two weeks of floor debate, involving multiple delays and subsequent amendments, SB 705 was re-referred back to the Senate Judicial Proceedings Committee. Local governments had opposed the bill, citing its potential to trigger a wave of costly lawsuits against governments, far beyond the proponents’ stated goals of affording access to justice for non-monetary claims.

MACo had testified against the bill in Committee, but was surprised when the bill passed in a voting session – following four straight years of defeat before the same committee. Citing deep concerns over the unintended consequences from the bill’s broad language, local governments aggressively reached out to Senators across the State, seeking assistance in fending off the costly legislation.

MACo and MML’s final “floor paper” distributed on Tuesday, March 28, urged Senators to recommit the bill to Committee, with a final urging: “Bring it back when it’s truly a compromise!”

The Committee may convene a working group before the end of session to seek a compromise. MACo, MML, and local government attorneys have expressed willingness to engage in a productive resolution – with an opportunity to withdraw opposition to a more focused proposal without the same wide unintended consequences.

Throughout this week, SB 705 has been stalled on the Senate floor, with a variety of questions and objections delaying its passage. MACo, MML, and individual local governments have raised objections to the costly and unfair nature of the pending bill. On Thursday, the bill — currently on “third reader” and awaiting its final Senate up-or-down vote – was delayed until Monday for its further consideration.

Proponents argue that the bill seeks to expand access to the judicial system for multiple claims, but governmental attorneys have illustrated many scenarios where the bill would simply add costs to existing litigation, reduce the likelihood of reasonable early settlements, and trigger more lawsuits in search of easy payouts. Counties have pointed out numerous ways that SB 705 fails to create a true parallel with federal law – one of the stated goals of the bill’s proponents. Rather, the bill creates an easier avenue to attorney fee recovery, without other balancing elements present in federal litigation.

The effort on the Senate floor is atypical, as a very small share of items that pass from Committee become similarly entangled.

Read MACo’s testimony on SB 705.

For a discussion of the bill’s policy and fiscal effects, read the DLS fiscal note.