City Officials, Cycling Advocates Reach Settlement on Baltimore Bike Line

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?

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:

Not-So-Deep Pockets: Lawsuits Are Bankrupting Counties

It’s not uncommon for lawsuits to bankrupt local governments, according to a recent article in Governing – and there is little a county can do to protect itself, aside from maintain healthy reserve funds. While only 54 local governments have filed for bankruptcy since 1980, legal judgments played a factor in nearly 30 percent of those.

Governing reports on Nebraska’s rural Gage County, where a federal jury awarded $28.1 million in damages plus attorney’s fees last year to six people wrongfully convicted of rape and murder. With 22,000 residents and an insurance carrier which declines to cover the liability, there is little more Gage can do.

“No county could prepare for that,” Myron Dorn, chairman of the county Board of Supervisors, said in an interview.

Increasing taxes to cover the judgment would be difficult, because Nebraska’s property tax cap limits the county from raising taxes by more than about $3.7 million. Residents could theoretically vote to exceed the state-imposed limit, but that is unlikely.

The county has appealed the verdict and is awaiting a decision; in the meantime, officials have hired bankruptcy attorneys to explore their options in case they lose the appeal.

Boise County, Idaho filed for bankruptcy six years ago after receiving a judgment of $5.4 million for a Fair Housing Act violation. It managed to stay solvent after paying the judgment using bond proceeds and receiving state legislative approval to raise property taxes so it could repay the bond. Governing provides a number of other examples in its article here.

MACo engaged in a contentious battle last session to protect counties against a bill which would have increased counties’ exposure to litigation by making it easier for courts to award attorney’s fees to prevailing plaintiffs for Maryland constitutional law violations. HB 903 / SB 705 died in the Senate, but only after coming to the floor, getting recommitted to the Senate Judicial Proceedings Committee, and returning to the floor again. Read about it in MACo’s 2017 End of Session Wrap-Up: Government Liability & Courts.

Judge Protects Baltimore Bike Lane

A Baltimore City Circuit Court judge has issued a restraining order – to protect a bike lane.

The Baltimore City Department of Transportation (DOT) had already begun construction on a protected bike lane, called a cycletrack, on Potomac Street, when the City announced it intended to take the project out and start all over. Residents had expressed concerns that emergency vehicles could not pass along the street because the bike lane brought the width of the street to less than 20 feet, whereas international safety standards generally call for streets to maintain widths of at least 20 feet.

In response, Jim Smith, Chief of Strategic Alliances for Mayor Catherine Pugh (and MACo Past President), sent the Potomac Street residents a letter indicating that DOT would completely remove the new infrastructure and “restart the infrastructure design process,” to “ensure that residents, advocates, and emergency management professionals have an opportunity for input on the Potomac Street bike design.”

Bikemore, a bicyclist advocacy group, sued the City, alleging that the decision “reversed five years of extensive planning and public input” and was “arbitrary and capricious.” On Friday, Judge Althea Handy issued an order temporarily halting the City’s plan to demolish what it had already built. From The Baltimore Sun

The litigation said the project was slated to cost $775,000, of which $150,000 would be drawn from city funds.

The decision by Pugh’s administration came in response to neighbor complaints that the bike lane would make Potomac Street too narrow to support certain emergency vehicles. The lawsuit says the city already made accommodations to the plan and that it consulted with the Fire Department.

“Our elected leaders and civil servants have worked tirelessly to attract federal and state funding for this project,” Mark Edelson, an attorney for Bikemore, said in a statement. “Unfortunately, the city’s short-sighted decision put this funding and efforts at risk. Our city was already once forced to walk away from federal funding for transit and improved mobility. We will not allow that to happen again.”

 

Baltimore Joins Localities Nationwide Alleging Water Treatment Chemical Conspiracy

Following years of investigations by the FBI and federal prosecutors into alleged antitrust violations committed by manufacturers of the municipal water treatment chemical alum, the City of Baltimore is suing 18 such manufacturers, alleging that they colluded to divvy up customers and drive up alum’s cost. The lawsuit seeks $5 million in damages. Some company executives have already admitted involvement in the scheme to stifle competition.

Baltimore City is not the only local government to file suit over the alleged conspiracy – at least 68 other suits have been filed throughout the country over the same potential antitrust activity, reports The Baltimore SunFrom that article:

Alum, or aluminum sulfate, is used to force impurities in water to settle so they can be removed. For years, the city bought the chemical from Delta [Chemical Corp., a local company]. The lawsuit alleges that even though GEO Specialty Chemicals had an alum plant in Maryland it never bid for the city’s business. Neither did USALCO, [an alum manufacturer based in Wagner’s Point in South Baltimore,] until it acquired Delta [in 2011], the suit alleges.

If a member of the conspiracy inadvertently won business they weren’t supposed to, the company would withdraw its bid, federal prosecutors say.

GEO pleaded guilty in the criminal case last year and was fined $5 million.

The result of the scheme, the city says, is that its annual costs for alum almost doubled in the 10 years up to 2009, from $1.2 million to more than $2.2 million.

The president of Delta told the city that it needed to dramatically hike prices because of an increase in the cost of raw materials for alum, according to the suit. But the city alleges that’s untrue and that the raw materials actually got much cheaper.

Supreme Court: Exonerated Defendants Deserve a Refund

The Supreme Court ruled 7-1 in the case of Nelson v. Colorado that individuals who have had wrongful convictions overturned are entitled to a refund of fees, court costs and restitution from the state.

As reported on Governing:

“They are entitled to be presumed innocent” once their convictions are thrown out, said Justice Ruth Bader Ginsburg, and the state “has zero claim” to their money.

The 7-1 decision orders the state of Colorado to refund several thousand dollars to two defendants, a woman and a man, who were convicted of sex crimes but had their convictions reversed. Shannon Nelson, who was charged with abusing her children, was acquitted in a retrial, and the prostitution-related charges against Louis Madden were dropped.

In both instances, the state insisted on keeping the restitution they had paid.

Colorado had adopted an Exoneration Act that allowed “an innocent person who was wrongly convicted” to file a civil suit to seek refunds, but only if they could prove they were innocent of the crime. Most states allowed exonerated people to file a motion with a trial judge seeking a refund.

Ginsburg said Colorado’s scheme violates the 14th Amendment’s protection for due process of law because it presumes the exonerated defendants are still guilty.

For more information:

Wrongfully Convicted Entitled to Refunds, Rules Supreme Court (Governing)

Supreme Court Voids Colorado’s ‘Presumption of Guilt’ (Washington Post)

Opinion Analysis: States Can’t Keep Money They Collect Pursuant to Subsequently Overturned Convictions (SCOTUS Blog)

 

2017 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 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 PositioPush Icons-DEFEATEDn: 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.

Push Icons-DEFEATEDMACo 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.)

Push Icons-DEFEATEDMACo 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.

Push Icons-DEFEATEDMACo 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.

Push Icons-DEFEATEDMACo 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

2017 MSBA Land Use Institute Tackles Takings, Medical Cannabis, Recent Land Use Case Law

The Real Property Section of the Maryland State Bar Association (MSBA) is hosting its 2017 Land Use Institute on May 5, from 8:15 AM – 4:15 PM at the Columbia Sheraton (10207, Wincopin Circle, Columbia, MD 21044). From the event webpage:

8:15 a.m. – 9:00 a.m.
Check-in and Continental Breakfast

9:00 a.m.
Opening & Welcome

9:10 a.m.
Discussion of Recent Maryland Land Use Appellate Opinions
Hon. Glenn T. Harrell, Jr., Maryland Court of Appeals, (ret.)
Hon. Lynne A. Battaglia, Maryland Court of Appeals, (ret.)
Hon. James A. Kenney, III, Maryland Court of Special Appeals, (ret.)
Hon. Donald E. Beachley, Maryland Court of Special Appeals

10:05 a.m.
Q & A with the Judges panel

10:15 a.m.
Break

10:30 a.m.
Challenging or Defending Land Use Related Decisions, Development Rights and Responsibilities Agreements after Cleanwater Linganore v. Frederick County
Sagar Williams, Esq., Law Office of Sager A. Williams, Jr.
William Wantz, Esq.
Joseph Stevens, Esq., Stevens Palmer, LLC

11:30 a.m.
Greatest Hits From the Supremes: New Takings and Wetlands Cases in the Supreme Court
Gus Bauman, Esq., Beveridge & Diamond, PC

12:20 p.m.
Lunch

1:30 p.m.
Tales from the Swamp – New State Environmental Initiatives and Issues Important to Land Use
Ben Grumbles, Secretary of Maryland Department of the Environment

2:00 p.m.
The Latest in Subdivision and Other Very Scary Tales
Jeffrey Zyontz, Esq., Senior Legislative Analyst, Montgomery County Council

3:00 p.m.
Break

3:15 p.m.
Land Use Regulation of Medical Canabis
Joseph A. Stevens, Esq., Stevens Palmer, LLC
Joseph F. Devlin, Esq., Director, Council, Baradel, Kosmerl & Nolan, P.A.
Stan Kosick, Senior Planner for Queen Anne’s County

3:45 p.m.
Legislative Roundup – Summary of Land Use Legislation in 2017 Legislative Session
Lori Graf, CEO, Maryland Building Industry Association

4:15 p.m.
Adjourn

CLE credits will be offered for both attorneys and planners. Non-MSBA members are welcome to participate. Depending on your MSBA membership status and whether you want a hard-copy of the materials, attendance costs range from $185 to $255.

Useful Links

2017 Land Use Institute Webpage

Attorney’s Fee Bill Back To Senate Floor

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.

Attorney’s Fee Bill Sent Back to Committee

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.