MACo Legal and Policy Counsel Les Knapp offered sponsor-friendly amendments to local ethics commission legislation before the Senate Education, Health, and Environmental Affairs Committee on February 8, 2018. SB 474, sponsored by Senator Joanne Benson, would would require a local ethics commission (or the appropriate entity) to meet at least three times a year
and file an annual report with the local governing body and members of the General Assembly who represent that jurisdiction. The reports must provide an overview of the local ethics law and the
activities of the local ethics commission.
From MACo’s testimony:
MACo believes the annual reporting requirements further local government transparency and openness and would not place an undue fiscal or administrative strain on the local ethics commission. However, MACo would offer an amendment to require the ethics commission to meet at least once a year instead of three times a year.
Unless a jurisdiction is facing an ethics issues or considering changing its ethics laws, there may be no need for a local commission to meet more than once a year. Requiring additional meetings that may not be required is both inefficient and wasteful. MACo has worked with the bill’s sponsor and believes the sponsor is supportive of this amendment.
Senator Benson indicated her support for the amendment, offering the language as a sponsor amendment. Maryland Municipal League Governmental Relations Director Candace Donoho also testified in support of the amendment but noted some reservations with the bill’s reporting requirement.
MACo Legal and Policy Counsel Les Knapp testified in opposition to SB 167 before the Senate Judicial Proceedings Committee on January 25, 2018. The bill, sponsored by Senator Brian Feldman, would prohibit a governmental unit from filing suit against a person who has requested to inspect a record under the Maryland Public Information Act (PIA).
In his testimony, Feldman cited instances in other states where record custodians preemptively sued a PIA records requestor upon receiving a request. Political blogger Ryan Miner also testified in support of the bill.
Knapp argued in his testimony that the bill was unnecessary and caused several additional consequences to existing PIA law. From MACo’s testimony:
To the best of MACo’s knowledge, no state agency, county, or municipality has ever filed a suit in Maryland against a records requestor as an immediate response to a PIA request. Such an action is simply not contemplated by county record custodians.
The Office of the Attorney General recently released a comprehensive report on the PIA after a thorough 2-year process that included surveying both record requestors and custodians and allowing public comment. Despite comprehensively reviewing requestor and custodian interactions, the issue of preemptive lawsuits against requestors was never raised. See Final Report of the Office of the Attorney General on the Implementation of the Public Information Act (December 2017). The issue does not exist in Maryland and if it ever did become an issue, MACo would work with all involved stakeholders to remedy the situation.
The bill’s language would also create several additional consequences for the PIA. Maryland’s PIA law is designed to ensure the release of records that are in the public interest without unduly burdening a records requestor. There are numerous mechanisms in place to ensure this result, including: a Public Access Ombudsman, the Public Information Act Compliance Board, administrative appeals, and finally the courts. However, these mechanisms are also designed to protect custodians from abusive or bad faith requests and allow them to keep certain information confidential where required by law.
There are occasionally situations where a custodian needs to bring suit to resolve a request that may involve confidential information where the custodian would be legally liable if the information was to be released or to determine whether a request is abusive in nature (such as where a requestor makes numerous small records requests instead of one large request to try to avoid paying reasonable research costs). SB 167 removes this needed balance.
The bill’s vague language may also override existing PIA law that allows a custodian to temporarily deny access to records while seeking a court determination to determine if the release of the record would cause substantial injury to the public interest. Finally, a clever plaintiff could take advantage of the bill’s language to potentially stave off a lawsuit by a government by filing a PIA request for the relevant information and then claiming that any subsequent government lawsuit is based on the PIA request, rather than the truly central matter.
Committee Chair Robert (Bobby) Zirkin noted that the Office of the Attorney General had submitted a letter of concern that raised many of the same issues cited in the MACo testimony.
The cross-file of SB 167 is HB 387, which is scheduled for a hearing before the House Health and Government Operations Committee on February 8.
MACo Legal and Policy Counsel Les Knapp testified in opposition to Senate Bill 167, “Public Information Act – Suits Filed by Custodians – Prohibition”. SB 167 would prohibit a governmental unit from filing suit against a person who has requested to inspect a record under the PIA. The intent of the bill is to prevent a custodian from invoking a lawsuit as a first response to a records request. However, the bill seeks to solve a problem that has yet to exist in any tangible capacity in the state of Maryland.
To the best of MACo’s knowledge, no state agency, county, or municipality has ever filed a suit in Maryland against a records requestor as an immediate response to a PIA request. Such an action is simply not contemplated by county record custodians.”
Follow MACo’s advocacy efforts during the 2018 legislative session here.
A Washington Post article (2018-01-13) reported that the state of Hawaii issued an emergency alert on January 13, 2018, that warned of an incoming ballistic missile attack. The alert turned out to be a false alarm but briefly caused a public panic until the alert was retracted 38 minutes after it was sent. While it was ultimately determined that the alert was caused by human error and failures in Hawaii’s emergency alert procedures, initial speculation raised the possibility that Hawaii’s emergency alert contact lists had been hacked or compromised.
MACo will examine the Hawaii alert situation and discuss how it is relevant to both Maryland and its counties in a two part blog article. Part 1 (this part) will discuss what happened and highlight the importance of protecting the contact information of residents. Part 2 will explore the shortcomings in Hawaii’s emergency alert system and provide lessons learned for Maryland’s local governments.
The article noted that at approximately 8:07 am, the Hawaii Emergency Management Agency sent the following cellphone alert: “BALLISTIC MISSILE THREAT INBOUND TO HAWAII. SEEK IMMEDIATE SHELTER. THIS IS NOT A DRILL.” The alert appeared to have been accidentally activated by an Agency employee during a shift change. While the Agency tweeted that there was no actual missile threat at 8:20 am, a second text alert retracting the previous alert was not sent until 8:45 am. The article stated that the message caused a brief panic in some residents and tourists while others appeared to have no idea what was happening. From the article:
“I literally sent out ‘I love you’ texts to as many family members as I could. It was all kind of surreal at that point,” [Honolulu resident Noah] Tom, 48, told The Washington Post. He made the difficult decision of turning the car toward home, where his two youngest children were. “I figured it was the largest grouping of my family.” …
Back on shore, there was no panic, just vacationers and others wondering why there was no immediate coverage on restaurant televisions or local radio.
Unsurprisingly the false alarm resulted in calls for a thorough investigation from both state and local Hawaii officials. The article indicated that the Federal Communications Commission (FCC) also plans to conduct an investigation. Both the Agency and other emergency management agencies throughout the United States plan on reviewing their alert procedures and if necessary making changes to avoid a similar situation. Part 2 of this series will examine the procedural and communication lessons the Hawaii incident poses to county emergency management agencies.
PROTECTING EMERGENCY ALERT CONTACT INFORMATION
While the cause in this particular incident was human error, it is also critical for states and local governments to protect their emergency contact information. As part of their 2018 legislative initiatives, both MACo and the Maryland Municipal League are introducing legislation to prohibit the release of an individual’s personal contact information (street address, email address, or telephone number) under the Maryland Public Information Act where that information was solely provided or gathered to create an alert, notice, or news distribution list. This prevents residents from being spammed with unwanted messages, or worse, false alerts that are made to look like official notices. MACo believes this makes sense from both a security and privacy perspective.
MABE says it supports accountability, but that local school boards are already held accountable to their communities. And, according to MABE, the Protect Our Schools Act makes sense, because it is in line with federal law.
The Protect Our Students Act
The Governor announced he will submit emergency legislation – the Protect Our Students Act of 2018 – which will require academic performance to be counted as 80 percent of a school’s composite score, aligning Maryland with the national average.
The Accountability in Education Act
The Governor announced he will introduce the Accountability in Education Act of 2018 to create an Office of the State Education Investigator General, which will be an independent unit within the Maryland State Department of Education. The Investigator General will be selected by a commission consisting of appointees by the Senate President, Speaker of the House, and the governor, and will be charged with investigating complaints of unethical, unprofessional, or illegal conduct relating to procurement, education assets, graduation requirements, grading, education facilities, and school budgets.
MABE supports strong accountability for school systems, both in terms of academic success for students and sound management of school finances and facilities.
Local Boards Are Already Held Accountable
Local boards are fundamentally locally accountable to their communities, through public meetings, public and transparent policy and budget debates and decisions, and local elections.
Accountability for student performance and success is the responsibility of each local board. However, this accountability is monitored, overseen, and enforced by the Maryland State Department of Education, through the actions of the State Superintendent and State Board of Education.
School boards are held accountable for sound financial management through multiple annual audits and routine, comprehensive legislative audits. School systems not complying with state requirements can have state funding withheld by the State Superintendent.
The Protect Our Schools Act Makes Sense
The Protect Our Schools Act of 2017 set guidelines for how Maryland measures student growth and school improvement under ESSA; and how the State Board can and should respond with resources to support improvements – but cannot order a school system to convert a school to a charter school, private school or voucher program.
The Protect Our Schools Act also requires that student performance results, called academic indicators, account for 65% of the overall accountability system. This is what ESSA intends when it requires that academic indicators are given “much greater weight” than any other measures of school performance.
School Employees Can Also Hold School Systems Accountable
The Public School Employee Whistleblower Protection Act (HB 1145) was enacted in 2017 in order to allow school employees to freely report illegal activities within their schools or school systems without fear of retaliation on the job.
The Whistleblower Protection Act increases school system accountability by protecting employees who report violations of law, regulation, or policy. The new law also protects any employee who objects to or refuses to participate in any activity, policy, or practice in violation of a law, rule, or regulation.
The new law protects any school employee who reports (1) an abuse of authority, gross mismanagement, or gross waste of money; (2) a substantial and specific danger to public health or safety; or (3) a violation of law. Finally, the employee must report the employer’s acts to a supervisor or administrator in writing and provide the employer with a reasonable opportunity to correct the situation.
County officials received updates on pending state and federal legal issues on December 6 at the 2017 MACo Winter Conference. The panel was called “From the Bench: A Federal and State Legal Update” and was moderated by Maryland Delegate William Folden.
National Association of Counties (NACo) Associate Legislative Director Jack Peterson discussed several cases before the United States Supreme Court that would address: (1) whether banning political apparel at polling places violates the first amendment ; (2) how and when states can remove individuals from their voter rolls; (3) whether comments made at a public meeting must relate to the topic under consideration; and (4) whether states and local governments can collect sales tax from online retailers regardless of whether they have a physical presence within their jurisdiction.
Peterson discussed several regulatory issues, including the recent definitional change to the federal “Waters of the United States” rule. Peterson noted that the issue would likely remain a top legislative priority for NACo. Peterson also discussed NACo’s efforts to improve the “integrated planning” option under the Clean Water Act that in theory simplifies how local governments can meet federal and state mandates for water quality.
Finally, Peterson discussed several pending federal legislative issues, including extension of the current federal budget so that the government does not run out of money and current tax reform efforts. On tax reform, key local issues included losing the deduction for local income taxes and some property taxes and the removal of the ability to refinance local municipal bonds. Peterson stated that tax reform would probably be done by the end of the year.
AquaLaw Attorney Oschenhirt discussed the permitting process and current litigation for Maryland counties subject to a Phase I or Phase II Municipal Separate Storm Sewer System (MS4) permit. Oschenhirt stated that Phase I controversies included: (1) whether the permit applied across the entire county or just to those areas of a county that have stormwater systems; (2) whether the proposed permits go beyond the “maximum extent practicable” standard; and (3) whether nutrient credit trading will be included or not.
Oschenhirt also noted that MACo, the Maryland Municipal League, and the Maryland Municipal Stormwater Association submitted joint comments on the new Phase II MS4 permit proposed by the Maryland Department of the Environment (MDE). The comments raised concerns over who should be included in the permit, the geographic scope of the permit, the 20% treatment retrofit burden, and the lack of nutrient trading authority.
Oschenhirt also touched on the pending regulations for nutrient trading, staffing and program funding issues within the United States Environmental Protection Agency, the Chesapeake Bay Total Maximum Daily Load Mid-Point Assessment, tax sales, and state legislation regarding non-flushable wipes.
Maryland State Archivist and Commissioner of Land Patents Timothy Baker highlighted an optional program that is being set up by the Maryland State Archives to encourage county governments to appoint a records officer. The records officer would liaison with State Archives regarding document retention policies and infrastructure.
Representatives from MACo and the ACLU of Maryland meet on November 27, 2017, to discuss their respective legislative initiatives for the 2018 Session. A 2018 Session Priorities Handout provided by ACLU Maryland identified six key issues that the organization will focus on:
Election Day Registration (allow voters to register and vote on the same day)
Pre-Trial Justice (preserve existing judicial rules that disfavors cash bail, prohibits unaffordable bail requirements, and prevents bail from being used for public safety)
Taking the Politics Out of Parole (remove the Governor’s role in the parole determination process)
Solitary Confinement (“Restrictive Housing”) Reform (reform the usage and duration of administrative or disciplinary segregation of inmates and mentally ill detainees)
Criminal Justice Reporting (create a task force, including local government representation, that would standardize how race and ethnicity is reported in public safety situations)
Public Funding of Private and Religious Schools (restrict the use of public monies for funding private schools)
The sheet listed a number of secondary issues, such as access to justice and transparency, where the ACLU of Maryland will be active during the 2018 Session. The ACLU of Maryland will certainly take a position on MACo’s Public Information Act (PIA) reform initiative. The group opposed MACo’s PIA body camera initiative in 2016 and 2017 but has worked with MACo on other issues.
MACo’s Winter Conference will focus on intergovernmental cooperation and ways that counties can partner with entities in the public and private sector to achieve the best results for Maryland’s residents. Sessions will highlight collaboration across county lines and service areas to address priorities like the opioid epidemic, Next Gen 9-1-1, and the environment, along with other important topics like mutual aid agreements and cooperative purchasing.
On the latest episode of the Conduit Street Podcast, Kevin Kinnally and Michael Sanderson discuss the MACo Winter Conference and its focus on reviewing timely issues that will be relevant during the upcoming Maryland General Assembly Session.
MACo has made the podcast available through both iTunes and Google Play by searching Conduit Street Podcast. You can also listen on our Conduit Street blog with a recap and link to the podcast.
States have significantly fewer auditors and inspectors general on payrolls than before the Great Recession, reports Governing.
Governing identified an aggregate decline in filled staff positions reported by the National Association of State Auditors, Comptrollers and Treasurers of 7 percent over the decade ending in fiscal 2017. Thirty of 47 agencies reported that their staff was smaller than in 2007.
Those left have seen their budgets dwindle. From their coverage:
At a time when governments are trying to get a better grip on their finances, many states have cut funds for auditing and oversight. Such positions were sometimes among the first casualties in the aftermath of the recession. “I find it interesting that there is this nationwide trend of cutting back on the independent watchdog’s budget,” says Pennsylvania Auditor General Eugene DePasquale. “I’ve yet to find a taxpayer or a legislator who doesn’t want less waste, fraud and abuse in state government.”
Closer to home, the U.S. Senate Committee on Homeland Security and Governmental Affairs just wrote WMATA General Manager Paul J. Wiedefeld a letter suggesting that “the transit agency’s inspector general lacks the necessary independence to perform its oversight duties and keep the public informed of the results,” according to The Washington Post. The Committee requests a briefing from Wiedefeld on how the authority “oversees its own overseer.”
Delegate Marc Korman from Montgomery County tweeted thoughts on funding for WMATA’s inspector general:
And why the operating budget for next year must include the IG’s requested budget increases.
A Baltimore Sun article (2017-10-09) reported that two Baltimore County Council Members, Todd Crandell and Wade Kach, have introduced a resolution urging the Maryland General Assembly to consider a statewide policy to clarify when the public should have police body camera video footage under the Maryland Public Information Act (PIA). The resolution calls for protecting individual privacy rights while maintaining law enforcement transparency. As previously reported on Conduit Street, the County recently announced the adoption of body cameras for 1,400 of its police officers. The resolution proposal follows that announcement.
The article noted that State’s Attorney Scott Shellenberger planned to testify in support of the resolution while the ACLU of Maryland opposed the measure. From the article:
“This is simply about a layer of protection for innocent victims and bystanders for their privacy,” said Councilman Todd Crandell of Dundalk, who is sponsoring the measure with Councilman Wade Kach of Cockeysville. …
American Civil Liberties Union attorney David Rocah called the resolution “unnecessary and deeply misguided.” …
Crandell said the resolution was inspired not by any specific incident, but by a constituent concern about privacy. The concern, he said, is that police are often called to people’s homes, and “anybody who wants to request that footage can then see inside of your home.”
Proponents of new limits on the public release of police body camera video come at the issue from a variety of perspectives. Some are concerned that video showing victims of alleged domestic or sexual assault could become public, thus leading to stigmatization of those who are already vulnerable. Others worry that videos could show embarrassing or private details of one’s home — footage of dirty dishes in the sink, or a homeowner’s collection of firearms, as some legislators mused during hearings on the topic this year. And representatives of local governments in particular are worried that they will be slammed with overly broad requests for video that will prove expensive and time consuming. …
MACo’s Winter Conference, The Power of Partnership, on December 6-8, 2017 will have two sessions focusing on the Public Information Act. The Academy for Excellence’s Core Course, Public Information Act, is an excellent overview of the requirements for county governments. The conference closing session, “The Path to Success,” will involve strategic discussions around MACo’s 2018 Initative to modernize the PIA. Read more about both sessions in the Registration Brochure.