Maryland State and Local Government Law Blog

Virtual Law Day Set for June 2

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The Section will be holding the annual Law Institute on June 2, and will host the event virtually. While we hope in future years to resume in-person events, especially for the Law Institute, the Section Council also recognizes that a virtual event does offer a measure of convenience for everyone, anywhere in the state. We have scheduled four sessions, running about an hour each.

Topics include an appellate court update as well as a report on the General Assembly session for this year. Additionally, there will be an update and panel review of the cannabis legislation enacted based on the voters’ decision in November to allow recreational marijuana use; highlighted in the conversation will be the expected impact on employment laws as well as policing. Finally, we will host a panel discussion on the challenges involved in advising an elected chief executive, such as a mayor, governor, or county executive, who may have vastly different political and personal preferences, varying levels of authority, and also have had to react to major crises – such as the COVID-19 pandemic.

Welcome to a New Year With Our Section!

By Amanda Conn
General Counsel
WSSC Water

Happy spring to all the members of the State and Local Government Law section. For those of us that worry about winter weather that affects our government clients, it was an easy winter.

I want to encourage our Section members to consider serving on the Section Council. Each year, we have several current section Council members stepping off because they are at the end of their terms. (Two terms of three years each is the normal limit unless the member serves a partial term to fill out an unexpired term, or the Section Council grants an exception.)

Agencies Don’t Have to Fully Wait to Terminate

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

Everyone working for the State knows it takes a while before someone can be fired. A major reason for that is COMAR 17.04.05.03(A), which requires that an employee whose performance is deemed unsatisfactory on an annual appraisal must be given 180 days to try to improve. The reality is, though, that sometimes it becomes obvious during that six-month period that the person isn’t improving and shouldn’t keep the job. When can the termination process start?

The recent Appellate Court decision in Lavetta Jackson v. Md. Dep’t of Housing and Community Development provides some guidance. There, a Maryland Department of Housing and Community Development employee’s unsatisfactory review occurred on July 3, 2019, giving her until December 30 of that year to get a satisfactory review. With two weeks to go, however, on December 17, her supervisor could tell what was coming, and emailed the division director stating that another unsatisfactory appraisal was on the way and recommending termination.

In Zoning, Know the Steps to Accept an Exception

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

It’s never a bad time for a little appellate reminder on how a local zoning authority should document a variance decision, especially when it also serves as the coda to the nine-year saga of the Wal-Mart Superstore in Clinton. For those who haven’t been tracking Grant v. County Council of Prince George’s County, here’s the gist: When the county established a new setback requirement, Wal-Mart was allowed to have its current setback grandfathered in, but when the company wanted to expand the whole building it needed to either comply with the new setback or a variance. Not surprisingly, Wal-Mart opted for the variance.

A bunch of procedural questions popped up along the way about the County’s use of staff attorneys, compliance with the Open Meetings Act, and relationship with its zoning hearing examiner, all of which the former Court of Appeals would love to tell you about in its 2019 opinion at 465 Md. 496. At the end of the day, however, the case returned to the County to fix how it evaluated the variance request. Other zoning authorities should pay attention so it can learn from those mistakes.

City Charters that Curtail Claims are Subject to Preemption

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

Local government attorneys are well-familiar with the Local Government Tort Claims Act, especially its requirement that a plaintiff provide a year’s notice before suing. But they might not expect that the notice requirement would preempt provisions of municipal charters. So although unreported, the recent Appellate Court case of Bozarth v. Rams Head Tavern is worth some attention.

The case began after the plaintiff was walking on the sidewalk in Annapolis and tripped on a hatch cover. In compliance with the LGTCA — specifically at § 5-304(b)(1) of the Court and Judicial Proceedings Article — she gave notice in writing within a year that she had a negligence claim for the City’s failure to protect the public by warning of the sidewalk condition and then covering and repairing it. At trial, however, the City received a directed verdict based on a separate notice provision in its charter: Pursuant to Article IX, § 9, the City isn’t liable for personal injury or property damage based on the condition, defects, or acts or omissions in the maintenance or repair of public property, unless a few conditions are satisfied.

Zoning Laws Can Be Useful Without Stating Uses

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

An effective zoning scheme will be crafted with the realization that it’s not possible to list everything people might want to do with their property. If owners request permission for an activity that’s not precisely provided for, it’s important if there are other provisions informing employees, appeals boards, and courts as to how that should be handled. Those guiding principles can help protect a governmental decision to allow a use when the text of the law is ambiguous — just take a look at In the Matter of Laurell A. Aiton.

The case involved a forested lot in Waldorf zoned for “agricultural conservation” upon which the owner, Woodville Pines, wanted to build a lodge that would be rented out as an event venue. There wasn’t a special exception to the zoning classification for event venues, but there was for “social, fraternal clubs and lodges, union halls, meeting halls and similar uses.” Woodville Pines applied for the exception as a “similar use” to those and the Charles County Board of Appeals granted it, finding that “social assembly” was such a “similar use.”

Position Reclassification Needs Rules and Record

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

As we are all fully aware, unreported opinions can’t be cited in any way, shape, or form in Maryland courts, but that doesn’t mean they aren’t useful to keep on top of. For one, they can offer a lot of practical guidance on handling frequent, not-particularly-earth-shattering issues that come up in a practice. Specifically for governments, unreported opinions capture a lot of administrative appeals of routine decisions — especially in the personnel context.

Take, for example, a government’s reclassification of a position. Sometimes the employee is happy when that happens, sometimes not. In the Matter of Parviz Izadjoo, App. Ct. of Md., Sept. Term 2021, No. 1795 (January 20, 2023), is an instance of the latter, after the Maryland National Capital Park and Planning Commission Merit Systems Board changed Mr. Izadjoo’s job from “building maintenance supervisor” to “senior construction representative,” which didn’t come with a salary bump.

Open Meetings Act Forum Tentatively Set For February 6

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The Section will sponsor a virtual Open Meetings Act lunch forum, to include Assistant Attorney General Rachel Simmonsen, who advises the Open Meetings Compliance Board, Section Chair Amanda Conn, who teaches about the Open Meetings Act at George Washington Law School, and Frank Johnson, who has been a certified trainer on the Open Meetings Act since 2017. The tentative date is February 6, and the panel discussion will include a discussion on key Open Meetings issues facing towns, cities, counties, and school boards, including the required steps to close meetings, how emails can be subject to Open Meetings Act requirements, how deliberation of public officials is so important that public observation is typically required, and specific reasons identified by the Act to allow closure, as well as training requirements and resources for assistance. In addition to the panel discussion, as time permits the panelists will entertain questions, so watch for the announcement and be sure to join us!

Limits On The Constitutional Amendment’s Legalization Of Marijuana And The Impact On Public Policy

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

Roughly two-thirds of Maryland voters approved Question 4, which provides that after July 1, 2023, a person “who is at least 21 years old may use and possess” marijuana (legally referred to as “cannabis”), but Question 4 included a second section making legalization subject to the General Assembly’s passage of legislation providing for the “use, distribution, possession, regulation and taxation of cannabis within the state” in what will launch the cannabis industry in a major way. So, the amendment did not remove all restrictions on use, sale, and possession.

The legislation leading to Question 4 was included in House Bill 1 in the 2022 General Assembly, which also passed House Bill 837, entitled “Cannabis Reform. ” This bill took effect on January 1, 2023.

Maryland Court Of Appeals Becomes the Supreme Court

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

One of the constitutional amendments approved by the voters was to change the name of Maryland’s appellate courts. The approved changes are to both the Court of Appeals and the Court of Special Appeals, neither of which will use their former names. Instead, the current higher court will be called the Supreme Court of Maryland, and the intermediate appellate court will be called the Appellate Court of Maryland.

The name Court of Appeals was handed down from Great Britain and adopted by approval of the Maryland Constitution in 1776. At that time, the Court consisted of six chief judges of the state’s judicial districts, and in 1851 the Court become unified as the highest court. While the number of judges has varied, from 4 to 5 to 8, Senate Bill 7 proposed the current number of 7 in 1960, which the voters approved.

The Court of Special Appeals was created by an approved constitutional amendment in 1966 to address an increase in litigation and appeals that the Court of Appeals struggled to address. The number of judges has increased from 5, originally, to 15 as changed by statute in 2013.