Meeting Announcements and Handouts
Information from the May 6, 2021 virtual membership meeting
The Thursday, May 6, 2021 MMAA meeting was held virtually, using “Zoom,” for the fifth virtual meeting. The meeting convened at Noon and Lynn Board, President, called the meeting to order at that time, noted we have much on the agenda, and welcomed everyone. Minutes of the February 11, 2021 virtual meeting were unanimously approved, on motion by Todd Pounds which was seconded by Jason DeLoach. Jason DeLoach, Treasurer, gave a summary of our account balance and said annual dues bills would go out July 1. Lynn said it raised the question of reducing dues for the year or waiving them. He said he’d check on tax advice and could discuss at the next meeting perhaps in June or July, which would be in time before the invoices.
Lynn noted that in the virtual online voting last Wednesday and Thursday (April 28 and 29), all officers were re-elected and will go into effect with the end of June. She noted this included herself, Lynn Board for President, Todd Pounds for Vice-President, Jason DeLoach for Treasurer, Frank Johnson for Secretary, E.J. (Skip) Cornbroooks as MMAA’s MML Legislative Committee representative, and Elissa Levan as MMAA’s MML Board of Directors representative. She noted this will be her third and final year as President, and noted officers and MML Board representatives were re-elected.
Gerry Lederer, partner with Best, Best and Krieger, gave us an update on the FCC and small cells, cable franchises and federal legislation. His written analysis of the court case details can be viewed here. He first noted the small cell appeal was not a total victory in the 9th Circuit, as most of the FCC order was upheld, but the court did specify that local governments do not have to treat small cell providers in rights of way like everyone else, which is an important distinction. Gerry said this allows regulation of small cells within the rights of way more extensively than for other utilities. He noted the group of local governments did file a petition of certiorari with the Supreme Court last month; it has been listed as “one to watch,” but cannot predict how the Court will react beyond that. He said he was also grateful that IMLA and State and Local Legal Center filed Amicus briefs.
As to another case, City of Eugene v. FCC, the cable-in-kind FCC order appeal, he said April 15, 2021 was the hearing date. Gerry said local governments didn’t seem to get much traction on the argument that in-kind obligations should not be subject to the 5% cap, but the court did challenge the FCC counsel on the issue of profits. Gerry said that even if we lose on the 5% limit issue for in-kind, if such costs are considered at actual cost and not including profit, it could result in an effective “win” for local governments, as the courtesy bypass for PEG channels is already built into the fees and there may be limited or no additional charge for such services. He said the court was also critical of pre-empting local authority over other unrelated services. Gerry said a decision is expected before the year is out.
Gerry also noted they are working with the FCC to examine how both the small cell and cable orders could be revisited once the President appoints a third Democrat (as the FCC is now split 2 to 2). He said the third appeal concerned the 6409 concealment order, which provided for co-locations not substantially changing the size or attributes of the tower. He said at one time there was a requirement that the co-location be consistent with prior requirements, which could include concealment, but the FCC order changed that provision. He said the FCC has agreed to postpone argument before the court to allow them to re-examine this order. Gerry advised municipalities to review local codes to address Sec. 6409 and to ensure concealment and the permission of the local government is required. He also said such locations could otherwise be allowed to grow with co-locations with very little control. He emphasized especially the need for concealment requirements to be in place.
At the FCC, Gerry said the FCC in late December issued an order allowing expansion of any cell tower site outside of the right of way by 30 feet on either side, which includes cabinets within those 30 feet. He said the local government group is asking for reconsideration; but he also noted that even with a regulatory right, that cannot be considered a transfer of real estate rights or ownership, especially important if the municipality owns the site. He noted that other FCC action concerns broadband funding, where there is now $10 billion available for connectivity. He said many states, including Maryland, have also created broadband funds. Gerry said the $10 billion federal funds is not infrastructure funds but subsidy funding for eligible households. He noted both Verizon and Comcast are providing this service and it is a way to connect those who would otherwise not be connected. He future funding may also be available for outside expansion through schools and libraries. He also said some limited “e-rate” emergency funding could be used to support a local network. Gerry also reported that general revenue sharing provided to local governments directly (or to small municipalities via the state) as part of the American Rescue Plan could be used for this purpose. He also said additional funding may be provided with a future infrastructure bill, if and when that is passed, and that he may also provide a seminar on funding availability.
Gerry finally noted the FCC issued two orders making state and local governments subject to the robo-call rules, especially concerning emergency management; he said they are easy to follow but that local officials need to be aware that they exist and that they do apply. One question was as to the current makeup of the FCC and whether they may modify orders to be more friendly to local government. He said he expected the FCC would be willing to do so, noting the 2 democrats now on the 4-member committee both dissented from the orders which are now being appealed. He said there is a fifth member to be appointed by President Biden and thus he expects the orders will be revised with the 5th appointment and hopes that appointment will be made soon. Gery said he expected at that time the net neutrality issue would also be readdressed. Another question was whether 6409 applied to local government-owned poles; Gerry said it is partly correct, as 6409 could apply but the City as the landlord gets the extra right to say “no.” Thus, the rule applies but the local government remains in control as the owner. He also advised that this right needs to be specifically reserved in ordinances or regulations, as well as in the lease agreements with the providers. At core, he said to be especially sure not to allow co-locations in agreements without the local government’s permission.
Sara Klemm, Assistant Attorney General, represents Public Information Ombudsman and the Public Information Act Compliance Board, and presented information on recently passed General Assembly legislation. She provided a brief report on the details, available here. Sara said there was a handful of legislation introduced but only 3 bills passed, and 2 of those will create changes under the PIA affecting local governments. She first focused on Senate Bill 178, which she said addresses the exemption for police misconduct files, including IAD files. She said that bill was amended to include no-knock warrants. She said the Governor vetoed it, but the veto was immediately overridden and the bill will take effect in October of this year. She said currently the PIA would prohibit access, as personnel records, for any such files except for the officer themselves. The bill, however, removes those investigation records from the definition of otherwise private personnel records, and now characterizes them under a discretionary exemption under Sec. 4-331. Sara said a technical infraction not involving interaction with the public, supervision or public concern still remains a personnel record, but all other investigatory records now fall within the discretionary exemption. Sara said that means the custodian can deny a request, but that discretion is limited only to the extent inspection is contrary to the public interest, and the custodian would have the burden to explain how such a release would be contrary to the public interest. She said the bill includes limitations on that discretion as well, noting there is no discretion to deny if the request is from the state’s attorney or attorney general, for example. If released, she said the custodian would need to redact any private medical information or personal contact information of the person in interest or witnesses, as well as related to the family of the witness. Sara also noted the custodian must also notify the officer when the records are inspected, but the officer has no right to know who inspected the records. Sara said these changes could lead to a larger volume of requests. While the bill did not allow denial of records related to unfounded or unsubstantiated claims against an officer, Sara noted that of the seven factors to be considered, the right of the accused to get a fair trial and the unwarranted invasion of privacy could both be implicated by unsubstantiated claims and thus could lead to denial in that case.
House Bill 183 was the second bill leading to major changes, as it relates to enforcement of the PIA and the Board. She said that a PIA claimant can now file an action in Circuit Court or go to the Public Information Act Compliance Board for a fee dispute, or the Ombudsman for other disputes. She said the Board has limited jurisdiction and focuses only on fees, while the Ombudsman handles other disputes, but is entirely voluntary. She said House Bill 183, which will take effect in July of 2022, will create new enforcement rights. She said the bill will allow either the person requesting or the custodian to take their complaint to the Ombudsman for resolution, who will have 90 days to resolve it, or, if not resolved, can then go the Board. In that case, the Ombudsman will certify the dispute is unresolved and either party can file a complaint to the Board. Sara said the Board will hear disputes on fees, denials, redaction, failure to respond, or a custodian request to find the PIA request as frivolous. She noted the complaint has to be filed with the Board 30 days after the Ombudsman’s certification that the dispute could not be resolved. The Board, she noted, has 150 days to issue an order, and in the meantime can ask for an informal conference, ask the custodian for more information or even inspect the records (except where prohibited by federal law). Sara reported that the Board will have authority to require inspection or a response, and while not authorized to review fee waiver, will be able to require, for an improper delay, waiver of all or part of a fee, and can require a response to the request, as well. She said an appeal from the Board decision can be filed to the Circuit Court which also stays the Compliance Board decision. She finally noted this bill also contains “proactive disclosure” provisions, requiring proactive disclosure of some documents, such as on the website or prior disclosures after PIA requests as well, as part of an annual PIA report. She finally reported that the third bill that passed, House Bill 23, will affects MVA records and federal requests regarding immigration enforcement. She notes this is interesting primarily as this is the only provision focusing on the purpose of the PIA request, which is normally not part of any PIA response.
From MML, Angelica Bailey, the Director of Government Relations, and Bill Jorch, the Manager of Government Relations and Research, offered a quick update on the General Assembly session and MML’s priorities. Bill said two pieces of broadband legislation were passed to expand opportunities. First, House Bill 97 creates a new Office of Digital Inclusion with some funding to assist municipalities seeking to expand the broadband reach in their jurisdiction, but Bill noted the new fund will not impact or restrict the rural broadband fund in any way. Second, is House Bill 1328 affects right of way trenching and coordination of work in rights of ways when multiple utilities and other users are involved. He said the bill pertains to broadband providers but incentivizes them to install infrastructure at the same time they disturb a right of way for any reason. He noted it is up to the municipality to alert other providers of cost-sharing chances for such multiple installations.
Angelica spoke on Highway User Revenues, and noted that while a funding bill sought by MML passed the Senate, it did not pass the House this year. She said restored funding is in place until 2024, and MML will plan to focus on that again next year. She said one climate change bill did not pass, which would have required net-zero greenhouse gases, energy life cycle costs for all new buildings after 2022 and other steps but will probably be considered next year. She said House Bill 991 did pass regarding forest conservation, with reforestation credit maximums and a ratio for mitigation down to 2 to 1, but said this will be an ongoing conversation. Finally, she noted that police reform was a major issue. She said the houses took different approaches, several bills were considered, and House Bill 670 will have the most major impact. She said the aspect of the bill which MML focused on concerned the increased government liability caps for police activity, which was raised from $400,000 per incident to $800,000, but the increase will be limited to intentional constitutional violations, which LGIT has reported will have a less dramatic impact. Finally, she noted that police body camera usage was mandated for County police departments, but cautioned this could be easily changed to impact municipalities and very well might be changed in the future.
Lynn noted the MML convention this year won’t be able to accommodate lunch meetings such as the MMAA, and membership by municipalities will be limited due to the safety concerns. She asked if members were interested in having a virtual meeting or an in person meeting, and five members indicated they would be present. Lynn indicated the executive committee would decide whether to set an in person or virtual meeting and let everyone know as part of the meeting announcement. Frank provided a brief update on the MSBA State and Local Government Section Council, noting the Annual Meeting will be set virtually at noon on May 26, 2021 and Tom Yeager noted the MSBA will be meeting virtually this year for its annual meeting in June. With nothing further for the good of the order, Lynn adjourned the meeting at 1:20 p.m.
Information from the February 11, 2021 virtual membership meeting
The Thursday, February 11, 2021 MMAA meeting was held virtually, using “Zoom,” for the fourth virtual meeting. Scott Hancock, MML Executive Director, thanked municipal attorneys for their help to municipalities during the pandemic and said it could not have been accomplished without such help. He specifically thanked Lynn Board, President, for her assistance; also thanked Elissa Levan, the MML Board Rep, for her help. He also thanked Skip Cornbrooks for his assistance as the MMAA liaison to the MML Legislative Committee, especially in an unusual legislative session due to the pandemic. Karen Kruger, who assists the Maryland Chiefs and Sheriffs Association with the police reform legislation this year, provided an update on those bills. She noted much pressure to repeal the LEOBR (Law Enforcement Officers Bill of Rights) or repeal and replace it, and said there are so many specifics that it can be difficult to summarize. She said the Chiefs and Sheriffs have easy access to all of the bills, and the Legal Advisors Committee (part of the Chiefs and Sheriffs Association) is also monitoring the bills. A major concern, she noted, is that many bills are imposing severe restrictions as to when an officer can act, and can be difficult to understand by anyone. She said legislation will impact all police agencies, will cause the need for substantial training, and may limit the ability to act. Lynn asked MML and the MMAA liaison, Skip Cornbrooks, to focus on MML priorities and state legislative updates. Skip noted he had sent a letter to MMAA members (click here) and would be happy to answer any questions. Otherwise he thanked MML staff in their preparation for the Legislative Committee in such a difficult year. Angelica Bailey, MML’s Director of Government Relations, began with an introduction on how the General Assembly is operating this year. Angelica said all testimony in both chambers is virtual only, and that everyone is aware of the safety concerns. Links are available on the General Assembly website for the committees, and those testifying must create an account which allows written testimony as well. She also noted they are requiring signing up and providing written testimony two to three days before the hearing, which is in some cases almost impossible without a clear final version of bill text.
Information from the November 12, 2020 virtual meeting, which was held as a joint meeting with the MACo County Attorneys
The Thursday, November 12, 2020 MMAA meeting was held virtually, using “Zoom,” for the third virtual meeting; this was also the third annual joint city-county attorney meeting. The meeting convened at Noon and Lynn Board, President, called the meeting to order at that time and welcomed everyone. Maryland Court of Appeals Judges Brynja Booth and Joseph Getty presented nine key cases to the members. Judge Booth said the 2019 term was very interesting with a number of cases, including common-law breach of fiduciary duty; recognizing tortious interference with bequests; and adopting the Daubert standard for expert testimony. As to local government, they selected several cases to review. The joint meeting also had a legislative update from Angelica Bailey, Director of Government Relations for MML, who serves in the role from which Candace Donoho recently retired, and Bill Jorch, MML’s Manager of Government Relations and Research, who noted the priority for the 2021 General Assembly session is to eliminate the current HUR funding sunset in 2024 which would lead to a major decline in revenue. Natasha Mehu, Legislative Director for MACo spoke briefly about their 4 priorities, including County budget security and the need to prepare for the worst; split election funding between states and counties and ensure proper local input involving county funding; building out broadband access; and focus on protecting funding for public health. She also noted police reform efforts will be a key issue, especially body camera footage under the PIA and the Local Government Tort Claims Act limits on torts committed by police officers.
Information from the July 16, 2020 virtual meeting (in place of the normal meeting at the MML Summer Convention in June)
The Thursday, July 17, 2020, MMAA meeting was held virtually, using “Zoom,” for the second virtual meeting (May 7 being the first), The meeting convened at Noon Lynn Board, President, called the meeting to order at about 12:17 p.m., based on a minor problem with the Go To link, and welcomed everyone. Lynn noted there is no speaker but wanted to handle this as a round-table discussion on reopenings, and to see what issues attorneys were finding. According to the clerks, she said, most municipalities are using virtual meeting platforms such as online. She didn’t know if anyone is having personal protective equipment (PPE) or CARES Act problems, and opens up the forum for any questions or discussion. One attorney noted someone in a municipality who was vulnerable but working from home; now needs to conduct inspections but is refusing to come back to work because she is vulnerable. Debra Daniel noted Rockville is using virtual inspections, but not all municipalities are doing so. As to reopening, another attorney said has two towns he serves who have not opened their Town Halls; he asked if any others have not reopened. As to planning for MMAA’s joint meeting with counties, Lynn said MMAA will plan on November, noted it probably will be virtual, and expects that Court of Appeals Judge (and former MMAA President) Brynja Booth will present to the group. With nothing further for the good of the order, Lynn adjourned the meeting at 12:58 p.m.
Information from the May 7, 2020 virtual meeting (in place of our normal spring meeting at Fisherman’s Inn at Kent Narrows)
The Thursday, May 7, MMAA meeting was held virtually, using "Gotomeeting," for the first time at Noon Lynn noted the elections for officers for FY 2021 were held electronically, and updated that the officers were elected with 20 votes electronically for FY 2021. Officers elected included Lynn Board for President, Todd Pounds for Vice-President, Jason DeLoach for Treasurer, Frank Johnson for Secretary, Debra Daniel for the MML Legislative Committee and Elissa Levan for the MML Board of Directors (where Debra and Elissa will serve as MMAA representatives respectively).
Lynn noted there is no speaker but as an update, said the Governor is opening up some allowances for outside exercise and doctor appointments. She noted that some are planning to partially return to work on May 18; asked what others are doing or what questions they may have. Jason noted some are permitting people to work from home. He said persons who are coming in, including him, are wearing masks, and he is trying to work on virtual notifications and other processes. He said municipalities are leaving it up to employees to return, and they must certify they are healthy and no one in their family has been diagnosed or is under quarantine. As to other updates, Bill Jorge, Manager of Government Relations and Research from MML, notes they are planning the virtual summer conference and working out a two-day program from roughly 10:00 a.m. until 3:00 p.m., with learning labs and workshops, He said they will handle Board elections virtually the week before. Bill said State legislative leaders but have left the idea open for a second legislative session later in the year but nothing is final.
Information from the February 6, 2020 meeting at Carrol’s Creek Cafe, 410 Severn Avenue in Annapolis
The Thursday, February 6, 2020 MMAA meeting was held at Carrol’s Creek Café, 410 Severn Avenue in Annapolis. Debra Daniels, MMAA’s representative to the MML Legislative Committee and Justin Fiore, MML’s Manager of Government Relations, made a brief presentation on the General Assembly. Justin noted that the key MML priority was highway user revenues. Ann MacNeille and April Ishak spoke about the Open Meetings Act, the Compliance Board, and the recent Talbot County decision which imposed restrictions on certain uses of email by public bodies. Ann is the Assistant Attorney General who serves as counsel to the Board, and April, an MMAA member, serves as the Chair. April first noted that the Board is seeking no major bills in General Assembly and welcomed the opportunity to speak with MMAA members. She also noted information is available on the Attorney General’s website, including the PIA Manual and sample forms. She said the Talbot County case, decided in July 2019, was very fact specific. While she understands concern with that decision, she emphasized there were several facts leading the Board to their conclusion regarding email communications. For example, she noted that in response to a simultaneous PIA request the County had withheld information based on the argument the emails were deliberation, which she concluded in many ways conceded the Open Meetings point. She finally highlighted two key issues that often lead to violations: first, members who are not in their regular meeting place and time, and second, when members are told there is a “rush.”
Information from Thursday, October 17, 2019 joint meeting with MACo County Attorneys at Chiapparelli’s in Baltimore
The Thursday, October 17, 2019 MMAA meeting was held at Chiapparelli’s Restaurant on South High Street in Little Italy in Baltimore, Maryland and was the second and now annual joint city-county attorney meeting. Lynn reported that a Task Force for pro bono attorneys has been created for local government attorneys. She explained it is understood that we may be limited by our day jobs, and so the Task Force is looking at how that can be accomplished. She said she is on the Task Force and that the Chair of the Task Force is Robert Anbinder who is an attorney for Baltimore City. She noted they will be reaching out to get creative ideas for pro bono service opportunities for local government attorneys. Lynn also reported that the University of Baltimore, with the Schaefer Center for Public Policy wants to develop public attorney training with a focus on state, county, municipal and local attorneys. She asked everyone to watch for a survey to get feedback on training everyone would be interested in, and reactions we might have to options for future training, such online, in person, etc.
Bill Jorch, MML’s Manager of Government Relations and Research, reported on legislative priorities adopted at the MML Fall Conference earlier this week. He noted this includes restoration of Highway User Revenue funding, as the 2018 bill only provided increased funding through FY 2024; the intent would be to prevent going back to the minimal funding and extend or eliminate that sunset while working on possible increases in the funding level as well. Les Knapp for MACo noted that MACo is limited to four key initiatives by its bylaws. Their first priority is school funding (and making sure any Kirwan funding goes to local government). He notes many expect a push to legalize cannabis and that there is strong progress for school construction; apparently HB 1 will be the key school construction bill. Lynn introduced Jonathan Novak from the Fears, Nachawati firm in Dallas, Texas which is handling part of the opioid litigation for local governments, including 19 in Maryland as one of the most active states. His advice is that local governments not take action to opt out of the class action cases. He concluded that everyone could end up settling with manufacturer and distributors over time; but does not expect all to settle, and said litigation is and will be going on. He said his firm is still taking new clients and advised local governments not to opt out but to stay in the litigation.
Information from the Monday, June 24, 2019 MMAA meeting at the MML Summer Convention
The Monday, June 24, 2019 MMAA meeting was held at the MML Summer Convention, in Room 210 at the Convention Center in Ocean City, Maryland. MML President-Elect Ryan Spiegel presented changes recently approved by the MML Board of Directors to the MML Litigation Participation (Amicus Brief) policy, which he took a lead role in drafting. A copy of the redline showing changes made can be found here. He first noted that municipalities had raised concerns that the existing policy was a bit stale, in establishing a long procedure to appoint a review committee and require a Board vote; even when, as we are seeing increasingly over the last few years, MML is only being asked to sign onto or add our name to existing briefs. In that case the Board of Directors felt it was unnecessary to go through the entire process, which could also make it difficult to meet deadlines if, for example, a request for our support for an existing brief was made a short time before the filing deadline. Ryan explained that the main changes separate out a request which simply involves signing on to an existing brief from a request requiring MML to write its own Amicus Brief. Under Section D of the new policy, the two scenarios are separated. In the discussion Ryan also noted no significant change to the fee structure; Subsection (g)(2) does specify that review panel members can be compensated with an overall cap of $2500 overall, but also that review can be handled on a pro bono basis. He finally noted that Subsection (J) covers the actual cost for the Amicus Brief, capping that also at $10,000.
Candace Donoho, MML’s Government Relations Director, noted there has been little legislative action to convene the small cell/5G task force. She noted that could be because cities and towns are working with providers and providers are reaching out to everyone; she expressed some hope that will be effective and eliminate the need for prohibitive state legislation. She notes we were the only state with state legislation proposed after the FCC Order, and that also may have made a difference. Lynn notes that as to FCC Cable franchising, FCC proposing to allow providers to deduct all “costs” from their franchise fees, including provision of any required PEG channels, which could reduce franchise revenues. For upcoming meetings, Lynn noted the County Attorneys are interested in a joint fall meeting this year as we did last year, and members supported taking part with no objections.
Information from the Thursday, May 9, 2019 MMAA meeting at Fisherman’s Inn
The Thursday, May 9, 2019 MMAA meeting was held at Fisherman’s Inn at Kent’s Narrows, Maryland. Judge Brynja Booth, who had been serving as President, called the meeting to order at 12:22 p.m. Shewelcomed everyone, but noted for the record that, with her appointment as Judge to the Court of Appeals and her service having started on April 18, she has formally resigned as an MMAA member and thus as President of MMAA. She noted Lynn Board has been nominated to serve as President for the next year starting at the MML convention in June andas Vice President will now be serving in that role on an acting basis until that time. She said she has enjoyed being part of MMAA and that we will always be close to her heart. At that point, on behalf of members, MMAA Secretary Frank Johnson presented a plaque a plaque to Brynja to recognize her contributions as former MMAA President and in serving MML and municipal attorneys through hertraining presentations over the years. Lynn Board, MMAA Vice President and Acting President, then assumed presiding overthe meeting, and also welcomed everyone. She asked everyone to briefly introduce themselves.
We received a legislative update from MML staff (Justin Fiore, Director of GovernmentRelations and Bill Jorch, Manager of Government Relations and Research) as well as Eliot Schaefer, MMAA’s representative on the MML Legislative Committee. Judge Booth introduced Judge Christopher Kehoe, who has served on the Court of Special Appeals for a decade and before then had been town attorney for Easton for about 25 years. She noted he was a mentor ofhers and has a wealth of knowledge about municipal law. Judge Kehoe noted a listing of cases he found interesting from the local government point of view, and highlighted details ofa few for us. He first noted the case holding in Wilfredo Rosales v. State of Maryland, in which the Court of Appeal sheld that the 30-day appeal deadline is no longer a jurisdictional time limit but a deadline subject to waiver by the court or based on actions of the parties. He also noted the Court of Appeals decision in Town of Forest Heights v. MNCPPC, in which the Court found that a change in assessment of properties in the 1970’s did not, based onlegislative research, also mean a change in the annexation consent requirement or that owners of public or nontaxable land were now to be included in the 25% consent requirement.
Information from the Thursday, February 7, 2019 MMAA annual legislative meeting at Harry Browne’s in Annapolis
The Thursday, February 7 MMAA meeting was held at Harry Browne’s Restaurant on State Circle in Annapolis, Maryland. Brynja Booth, President, introduced Bill Jorch from MML. He noted three main legislative issues had, so far, been apparent. The first was regarding small cells. He indicated that MML was part of a meeting yesterday with Delegate Dereck Davis, who is Chair of the House of Delegates Economic Matters Committee. As to the two other key issues, Bill noted that the issue of attorney’s fees being award in constitutional claims had arisen again, as it has year after year. The third upcoming issue will involve a proposal to substitute comparative negligence for contributory negligence. Brynja next introduced Gerard (Gerry) Lederer with Best, Best and Krieger, who has been leading litigation on Federal Communications Committee (FCC) and small cell issues, especially involving local zoning authority and local authority to regulate rights of way. Gerry first complimented MML and local officials in their efforts to educate and inform local officials as to why local authority is needed to protect communities. He outlined 4 main elements of the FCC order and as to the current status, Gerry first noted that Maryland has been extremely helpful and that Lynn Board has helped provide leadership in addressing these issues both in Maryland and nationwide. Gerry also noted that as to cable TV, the FCC is saying providers can offset the market value of any non-cash benefits, such as PEG, from their fees. Thus, free services to schools and communities would cost the fees.
Information from the Thursday, November 8, 2018 joint MMAA/MACo Civil County Attorneys meeting in Annapolis.
The Thursday, November 9, 2018 MMAA meeting was held at HarryBrowne’s Restaurant on State Circle in Annapolis, Maryland. Lynn Board, Vice-President, standing noted this was the first joint city-countyand thanked Les Knapp, Maryland Association of Counties (MACo) Legal and PolicyCounsel for having the idea and pursuing it. John Breads, Director of Legal Services and Matt Peters from the Local Government Insurance Trust(LGIT) gave a presentation on police liability and personnel matters. As to police misconduct claims, John noted the issues are similar regardless of the size of the jurisdiction. He said these often involve Taser use and qualified immunity. As to qualified immunity, John reported that in multiple 4thCircuit cases, it’s become clear that the courts are looking for some effort to resolve the issues and de-escalate the dispute before police use the Taser, and that when it is used repeatedly, it can lead to removal of immunity –especially if the person against whom it’s being used is mentally deficient in some way. Matt Peter spoke to personnel and employment cases. He also said it’s better for local government to contact LGIT with the first claim so that LGIT can coordinate the initial response and defense from that point. MACo and MML legislative staff gave an update on small cell issues. As many know, the Federal Communications Commission (FCC) issued an order in September and state legislation is expected to arise again. And as to statewide issues, the small cell issue is MML’s only legislative priority. As a final item, members present endorsed the idea of establishing an annual joint meeting betweenmunicipal and county attorneys, perhaps in the fall, and the groups will planfor the next year accordingly.
Information from the Monday, June 11, 2018 MMAA meeting at the MML Summer Convention.
The Monday, June 11 2018 summer meeting was held at the MML Summer Convention, on the second floor of the Roland Powell Convention Center. Brynja Booth, President, noted the next meeting is planned as a joint municipal/county attorney meeting, as we’ve previously agreed, and will be on Thursday, November 8, most likely at Harry Browne’s in Annapolis.
Brynja presented information on the Waterman Family Limited Partnership, et al. v. Kathleen Boomer, et al. case involving the County’s density waiver regarding an annexation. She handled this case for the Town of Queenstown at the Circuit Court level and then before the Court of Appeals after they granted certiorari. In this case, she explained the area annexed had been included in the Town’s Master Plan growth area for at least 10 years, and that the County Planning Commission and Commissioners had granted the waiver. The issue on appeal was whether that reversal was valid. Brynja argued that the Town’s right was effectively vested with the County’s grant of a waiver, as with the annexation proceeding, all zoning authority and control passed to the municipality - which was indeed the point of the annexation. But the Court of Appeals disregarded the Town’s vesting, focusing instead on the fact that the developer’s rights have not yet vested, as no building permits had been issued nor, therefore, any substantial construction on the site. As such, the Court found that common law grants local governments the right to reconsider and reverse their decisions, and thus they can rescind even a resolution granting the 5-year waiver in this case. She explained that, effectively, that decision eliminates the waiver provision, but imposes a 5-year hold on any increase in density in annexed land, at least beyond the 50% limit allowed by the prior county zoning.
Information from Thursday, May 3 MMAA meeting at Fisherman’s Inn at Kent Narrows.
The Thursday, May 3, 2017 MMAA meeting was held at Fisherman’s Inn at Kent Narrows. Brynja Booth, President, called the meeting to order and asked everyone to briefly introduce themselves. President Brynja Booth noted we are planning a joint municipal/county attorney meeting, with support from MML and the Maryland Association of Counties (MACo) staff, including Les Knapp. Tom Yeagher, who serves several municipalities and as County Attorney for Kent County, and is current President of the MACo attorneys chapter, suggested the fall meeting in November would probably be a good time, and that a location around Annapolis could be best. John Markovs, Deputy County Attorney for Montgomery County, made a 4-part presentation on contracting and procurement policies for local governments. He first noted the goal of such processes is to ensure both the best price and goods and services, but also to ensure competitive bidding is in place. He recommended ensuring that procurement requirements are consistently satisfied, ensuring adequate review rather than sole decision makers, as well as multiple approval steps. , and also establishing procurement policies and review processes that don’t delay the contracting system, which will encourage local staff to try to find a way to avoid them entirely.
Information from Thursday, February 8 MMAA meeting at Harry Browne’s in Annapolis.
Approved minutes (PDF)
The Thursday, February 8, 2018 MMAA meeting was held at Harry Browne’s Restaurant on State Circle in Annapolis, Maryland. Lynn Board, Vice-President, standing in for President Brynja Booth, called the meeting to order. She noted Les and Natasha from MACo had attended to follow through on a prior discussion with MMAA officers regarding a possible joint annual meeting between MMAA and MACo’s County Attorney affiliate, which members approved for further planning. For the MML Legislative Update, Candace Donoho noted that with Highway User Revenue (HUR) having been cut 8 years ago by the Board of Public Works, it seems possible some permanent restoration of those lost funds may be approved this year. She also noted the second MML priority, protecting personal data (including email addresses of residents) from PIA disclosure was also proceeding, in partnership with MACo which is supporting a similar bill. Finally, she noted that while she’s advised that an industry bill on “small cells,” enhancing coverage for wireless devices with antennas on private and public property, but primarily in rights of way, will be introduced. It is expected to be sponsored by Sen. Middleton and Del. Derick Davis, but even so, passage isn’t expected this year. That said, she noted it will still be important to oppose the bill and for municipalities to take steps to enact ordinances and pass regulations which govern right of way and, as needed, other installations, such as on poles and buildings, of small cell or distributed-antenna systems. After lunch, Lynn introduced the panel discussion on “small cell” or distributed-antenna systems, including Victor Tervala, Baltimore City Solicitor, on the overall background, herself as Gaithersburg City Attorney on steps in Maryland to address the issue, and Gerard Lederer of Best, Best and Krieger on FCC action.
Information from Thursday, October 26, 2017 MMAA meeting at Clyde’s in Columbia.
Approved minutes (PDF)
The Thursday, October 26, 2017 MMAA meeting was held at Clyde’s Restaurant in Columbia. Candace Donoho, MML Director of Government Relations noted the MML legislative priorities for the 2018 General Assembly session included restoration of Highway User Revenues and to amend the Public Information Act to provide clear authority to not release email addresses and phone numbers of residents, which may be provided for local newsletters or emergency alerts. She also noted MML will work to protect the right to assert local control over the siting and installation of wireless poles and antennas, and to impose a fee for permit review and lease of right of way space.
Brynja asked for any suggestions for future speakers, to allow us to plan ahead for future meetings. After lunch, Brynja introduced Ann MacNeille, Assistant Attorney General with the Opinions and Advise Division and who serves as counsel to the Open Meetings Compliance Board. Ann first noted a few recent changes to the Open Meetings Act, including adding a requirement that agendas be provided reasonably in advance, specifying closed meeting processes, and requiring more training. As to training, Ann said boards and commissions all need to designate a member in order to have the option to close a meeting.
Information from the Monday, June 26, 2017 MMAA meeting at the MML Summer Convention.
Approved minutes (PDF)
The Monday, June 26, 2017 MMAA meeting was held at the MML Summer Convention, in Room 210 at the Convention Center in Ocean City, Maryland. Meredith Mishaga, Director of Foreclosure Administration with the State’s Office of the Commissioner of Financial Regulation gave us an update on recent changes in Maryland law related to the registry. Margaret Witherup, Member of Gordon Feinblatt, LLC which has represented local governments on stormwater and environmental issues, gave a presentation on Phase 2 of the MS 4 stormwater management permits which the Maryland Department of the Environment is now issuing. As a brief legislative update, Lynn Board, MMAA’s Legislative Committee representative, noting that with changes to the State Ethics Law this year - which were targeted to General Assembly members - similar changes could be required to local ethics laws based on the “substantially equivalent” requirement. She reported that MML and MACo provided letters to the State Ethics Commission asking that changes not be required, given the focus on the General Assembly, and several also attended the June 15, 2017 meeting of the State Ethics Commission where it did seem members will consider local concerns.
Information from the Thursday, May 4, 2017 meeting at Fisherman’s Inn at Kent Narrows.
Approved minutes (PDF)
The Thursday, May 4, 2017 MMAA meeting was held at Fisherman’s Inn at Kent Narrows. We had a presentation on the Public Information Act, by Lisa Kershner, Ombudsman and Karen Federman-Henry, Assistant Attorney General who serves as the PIA Compliance Board counsel as well as counsel to the Ombudsman. Karen noted the Ombudsman had a broad ability to mediate disputes on request from the person asking for records or the custodian, and that the Ombudsman can mediate on any PIA issue. However, the Board’s jurisdiction is more limited to fees. Lisa as Public Access Ombudsman distributed a report for the first 12 months, from April 1, 2016 through March 31, 2017, which is available here (PDF). Karen has also made available a PowerPoint presentation she made on her work to the MSBA State and Local Government Section at their Law Day on May 5, 2017, and it is available here (PDF). On MMAA issues, Bylaws amendments making a few clarifications were unanimously approved and will be presented to the MML Board of Directors for their review and final approval. Also, members unanimously approved officers for 2017/2018: Brynja Booth for President, Lynn Board for Vice President, Frank Johnson for Secretary and Jason DeLoach for Treasurer. We also received an update on legislative issues from Candace Donoho, MML’s Director of Government Relations and Lynn Board, MMAA’s Legislative Committee representative.
Information from Thursday, February 9 meeting at Harry Browne’s in Annapolis.
Approved minutes (PDF)
The Thursday, February 9, 2017 MMAA lunch meeting was held at Harry Browne’s, 66 State Circle in Annapolis.
The meeting included updates on legislation and MML priorities, as well as a report by Lynn Board on the creation of the Coalition on Small Cell Facilities regarding the FCC rulemaking proposal on small cell and wireless facility installations. The meeting presentation was a discussion on transgender rights in Maryland by attorney Miriam Sievers of Silber, Perlman, Sigman and Tilev, P.A. and Patrick Paschall, Executive Director of Free State Justice in Maryland, with a focus on terminology, federal law, including Title VII of the Civil Rights Act (employment), Title IX (schools), the Fair Housing Act, Affordable Care Act, the Prisoner’s Rape Elimination Act of 2012, and the Violence Against Women Act, and for Maryland, the Fairness for All Marylanders Act of 2014.
Information from Thursday, September 15, 2016 Joint Meeting with the Municipal Clerks Association
At the Kentlands Mansion, 320 Kent Square Road, Gaithersburg, Maryland 20878
Approved minutes (PDF)
The Thursday, September 15, 2016 MMAA meeting was held at the Kentlands Mansion in the City of Gaithersburg, 320 Kent Square Road, and was a joint meeting with the Maryland Municipal Clerks Association. The meeting was conducted under a joint agenda including introductions, a report from both the Clerks and Attorneys, and presentations by MMAA members. Several noted that they believe this may have been the first joint meeting, and expressed the hope that the groups would continue periodic joint meetings.
Frederick City Attorney Saundra Nichols and Assistant City Attorney Rachel Depo (also MMAA Vice-President) made a presentation on the Open Meetings Act. Their PowerPoint presentation can be accessed here (PDF).
Information from Monday, June 27, 2016 MMAA Meeting at the MML Summer Convention in Ocean City.
Approved minutes (PDF)
Information from Thursday, May 5, 2016 MMAA Spring Meeting at Fisherman’s Inn at Kent Narrows.
Approved minutes (PDF)
Judges Dale Cathell and Glenn Harrell of the Maryland Court of Appeals provided members with a review of several recent Court of Appeals decisions, as well as a 27-page summary of all decisions relevant to municipalities which was distributed and is available (PDF).
Information from Wednesday, March 16, 2016 MMAA Telephone Conference on Small Cell and Distributed Antenna Systems (DAS).
A group of members joined in a telephone conference to discuss new changes in telecommunications, largely to accommodate the widespread use of smart phones and similar devices. We thank Kimberly Min, MMAA member and Whiteford, Taylor and Preston for hosting the conference call.
The issue of telecommunications is now a major local issue, after changes in technology and the law. Municipalities are increasing being approached by providers and infrastructure firms for permission to install small cell facilities and larger DAS facilities, often on rights of way. Sometimes they will seek to install these items on buildings, on pole, on street lights, or next to other antennas. These represent relatively new technological advances that broaden the wireless cell coverage. And a relatively recent FCC order mandates, in most cases, that local governments allow installations that will expand coverage in this way.
During the discussion, led by Victor Tervala, Baltimore City Chief Solicitor, John Lyons, Anne Arundel County Cable Administrator, and Frank Johnson, Gaithersburg Assistant City Attorney, speakers pointed out how the new FCC "shot clocks" or permit deadlines of 60, 90 or 150 days apply, but also how these timelines do not apply until a completed application has been submitted. Detailed notes on the discussion (PDF). Generally, with changes in technology, municipalities should expect to hear from a provider or infrastructure provider. Some can be aggressive, even though most are willing to work with municipalities - but it is always important to know your rights.
In most cases, a first step will be entering a contract, either a franchise agreement or right of way agreement - or both. Part of that agreement will include allowable fees, and the municipalities preference for use of public land or public facilities, such as City or Town street lights. A recent Baltimore City ordinance laying out franchise fee requirements for these facilities.
Permit denials are in most cases limited, but safety, appearance and specific placement (if a workable alternative is offered) can all be considerations. In addition to a contract or agreement, as discussed during the conference, municipalities do need to ensure they have zoning in place to allow these installations - as well as impose reasonable restrictions. Municipalities also need to have a permitting process in place to accommodate the deadlines and ensure applicants receive communication as quickly as possible. View a sample draft highlighting recent zoning ordinance and permitting changes (PDF) for the City of Gaithersburg.
We expect this will be an ongoing issue, especially as technology continues to change, and this conference and these materials highlight some key steps municipalities can and should take.
Information from the Thursday, March 3, 2016 MMAA Meeting at Harry Browne’s in Annapolis
Approved minutes (PDF).
Tiffany Harvey, Deputy Counsel for Civil Rights and Legislative Affairs for the Office of the Attorney General, spoke about Attorney General Brian Frosh’s legislative initiatives but emphasized the August 2015 Guidance on preventing discriminatory profiling for law enforcement agencies. She said that the Attorney General took the initiative to develop uniform state standards as a guide for all police agencies in Maryland to follow - making Maryland the first state to follow similar guidance put in place by U.S. Attorney General Eric Holder in 2014. The Guidelines are on the Attorney General’s website but you can also view a copy (PDF).
Information from the Thursday, October 8, 2015 MMAA meeting at the Café Deluxe Restaurant in Gaithersburg,
Approved minutes (PDF)
Information from the June 29, 2015 MMAA Meeting at the MML Convention
Approved minutes (PDF)
The Monday, June 29, 2015 MMAA meeting was held at the Ocean City Convention Center in Room 210. Meredith Mishaga, Director of Foreclosure Administration with the Commissioner of Financial Regulation (part of the Maryland Department of Labor, Licensing and Regulation/DLLR), gave us a powerpoint about the Maryland Foreclosed Property Registry, which was created by the General Assembly in 2012 to provide local jurisdictions with information on current ownership of foreclosed homes.
Information from the May 21, 2015 MMAA Meeting
The Thursday, May 21, 2015 meeting was held at the Fisherman’s Inn, Kent Narrows, and had several speakers.
Adam Snyder, Chief Council, Opinions and Advice for the Maryland Attorney General, spoke about several upcoming changes in the Public Information Act after the General Assembly. Changes include creation of a Public Information Act Board, with limited jurisdiction (only to address fees in excess of $350) but broad power to order fee reductions; an Ombudsman in the Attorney General’s office with broad oversight to address any issues of concern raised by either a person requesting records or the local government, but no formal authority to order any solution. He also noted fees will be limited to actual costs, and that the requesting party’s ability to pay can be a separate waiver consideration. Other changes include the requirement of a 10-working-days response if responding takes longer, with an estimated time for completion and a cost estimate, and the need for local governments to identify a contact for all requests, which can also be divided by department. Local governments also must note, at least on their website, which (if any) documents are available on demand. Overall, Mr. Snyder advised reaching out to requestors with a response or update, as soon as possible.
Tim Ailsworth of LGIT also spoke on the impact of Local Government Tort Claims Act changes, in which awards and permitted claim times were all doubled (awards from $200,000 to $400,000, and each occurrence from $400,000 to $800,000, with the time allowed to file a claim increasing from 6 months from date of occurrence to one year). He indicated this will result in an increase of costs by about 5% for municipalities self-ensured through LGIT.
Tom Curtin, MML’s Government Relations and Research Associate, also spoke about the General Assembly, noting two MML priorities were approved, including the Governor’s proposal for Highway User Revenues, granting municipalities $19 million out of $25 million added by the budget and the land use bill clarifying that legislative bodies can amend Master Plan recommendations from their Planning Commissions, but must hold a public hearing if such changes are made. He also noted the bill regarding double taxation was passed as a local bill for Frederick County rather than statewide, but would require a resolution and could serve as a sample for future statewide legislation.
Officer elections, to start with the new MML Board of Directors (at the MML Convention next month) were also held, and those nominated were unanimously approved. Thus John Barr will continue serving as President; Brynja Booth will serve as Vice-President; Jason DeLoach will continue as Treasurer; and Frank Johnson will serve as Secretary. Elissa Levan indicated she wished to continue serving as MMAA representative on the MML Board of Directors, and Lynn Board wishes to remain on the MML Legislative Committee, and members also unanimously supported their continuation.
Information from Winter/Early Spring 2015 MMAA Meeting
The Wednesday, April 1st, 2015 meeting was held in Annapolis. Karen Kruger, partner with Funk and Bolton PA who also serves as counsel for the Maryland Police Chiefs and Sheriffs Association, spoke on the issues and impacts related to the use of police body-worn cameras. She noted several bills had been filed in the General Assembly this year which would not mandate the use of such cameras but would impose a number of requirements on their use. Issues with police body-worn cameras include privacy, safety and the costs of retaining the data. Additionally, the costs of reviewing and organizing the data can also be substantial. And in many cases, the cameras themselves are not always dependable, and even when they are, the actual recording can be difficult to follow. LGIT has establishing a pilot testing project and several jurisdictions are making initial use of these cameras, so we will all have the chance to learn from their experience. Even so, it’s clear the privacy, safety and cost concerns will continue.
Click here for an article on police body-worn cameras (PDF) entitled "Lessons from the Early Adopters," which Karen handed out at the meeting.
Lynn Board, MMAA’s representative on the MML Legislative Committee, also updated members. As to MML priorities, the $19 million of HUR funding for municipalities, which the Governor included in his budget proposal, is likely to be retained with approval from both houses; the land use bill clarifying legislative authority to approve and amend master plan recommendations appears likely to pass; and a financial disclosure bill was not favorably reported. Otherwise, public information act amendments are likely to be approved, establishing a Public Information Compliance Board, requiring responses within 10 days and allowing Board review of fees over $350, after several amendments proposed by MML.
In MMAA business, no further nominations for 2015-2016 officers were received and membership voting will, per the Bylaws, be completed at the May meeting. Persons nominated for each of the positions are John Barr for President, Brynja Booth for Vice President, Jason DeLoach for Treasurer, and Frank Johnson for Secretary. Additionally, Elissa Levan has indicated she wishes to remain as the MML Board of Directors representative, and Lynn Board wishes to remain as the MML Legislative Committee representative.
Information from the MMAA 2014 Fall Meeting:
The December 4, 2014 meeting, held in Annapolis, included an update from Candace Donoho, MML’s Government Relations Director, on MML’s legislative priorities for the 2015 General Assembly session, including restoring Highway User Revenues (HUR), clarifying the approval process for municipal master plans and protecting some ethics disclosures (particularly involving spouses and dependent children) from public disclosure. approval issue (as to whether legislative bodies have final approval authority and can amend a planning commission recommendation) and required ethics disclosures. MML has adopted both as part of its legislative priorities for clarifications and/or corrections.
Lynn Board, MMAA’s representative on the MML legislative committee, Debra Daniel, City Attorney for Rockville, and Tom McCarron, Mt. Airy’s town attorney, who a few years ago filed a request for an AG opinion in 2012 on the master plan approval issue, discussed the question of whether Maryland’s Land Use Article allows legislative bodies to amend or remand a master plan recommendation from the planning commission, or simply require either outright approval or rejection. Click here for materials the Panel prepared (PDF), which includes:
* A copy of the relevant Maryland Annotated Code sections (both the current Land Use Article and prior Article 66B);
* The June 13, 2014 letter from the Department of Planning to the City of Rockville; and
* The November 18, 2014 Attorney General opinion to the Town of Mount Airy.
Information from the MMAA Spring 2014 Meeting:
At the May 8, 2014 MMAA Spring meeting at Fisherman’s Inn at Kent Narrows, Judge Glenn T. Harrell, Jr. and returned Judge Dale R. Cathell joined us to discuss notable cases. Click here for Judge Harrell’s summary of recent decisions which he discussed at the meeting. Court Summary for MMAA Spring Meeting (PDF)