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Public-private partnership bill advances in House of Delegates

ANNAPOLIS — Legislation providing rules to govern public-private partnership awards was given preliminary approval in the House of Delegates Saturday, following a heated debate punctuated by the House Speaker lecturing an Eastern Shore Republican for “disparaging” House members.

The administration bill, which would take effect retroactively if passed in its current form in both chambers, was amended in a workgroup composed of members from the Environmental Matters, Appropriations and Health and Government Operations committees to allow for the loser of past public-private partnership lawsuits to skip the circuit court and go directly to Maryland’s Court of Appeals, expediting the legal process.

The appellate court would have to hear the appeal within 60 days of its filing and would be forced to render a decision within 150 days.

Public-private partnerships have been involved in two high-profile lawsuits recently. State Center, a proposed downtown Baltimore transit-oriented development, has been the subject a lawsuit concerning whether the state followed proper procedure in awarding the contract. This month, losers of a bid to renovate two Interstate 95 travel plazas promised to continue the fight the contract award in court.

The Maryland State Bar Association opposed the amendment. In a letter representing its 24,000 members, the MSBA expressed “grave concerns” about the amendment’s retroactive clause, which it said could disrupt standing contractual agreements. The bar association also wrote that there was no justification for an expedited appeals process.

The amendment also drew the ire of a Montgomery County Democrat and several House Republicans, but their attempts to defeat it on the floor failed resoundingly.

Del. Luiz R. S. Simmons, D-Montgomery, said the committee amendment had the effect of giving preferential legal treatment to large businesses bidding on P3s, because it allowed those businesses to skip a return to the circuit court.

What started out as a good bill delivered by the administration was made into one that protects special interests, Simmons said.

“I believe this bill has been transformed into a Trojan Horse … What we are about to do is become legislators in a banana republic in which the wealthy are given preferential treatment, Simmons said.

He also called the amendment a “sweetheart deal” for “P3 fat cats,” who ought to be held to the same legal standard as any other citizen wishing to contest a court’s ruling following a retroactive change in law.

“If you give it to them … you ought to give it to anyone,” Simmons said.

‘Time is money in development’

Del. Maggie McIntosh, D-Baltimore, chair of the House panel that made the amendment, said that to interest businesses in applying for public-private partnerships, expediting the legal process was necessary.

“Time is money in development,” she said. “Time is money when you’re trying to get a business into Maryland … We don’t want our environmental regulations to, in effect, drive out business from the state.”

There is also nothing unusual about the legislation being made retroactive – that is, affecting cases that have been completed and are also currently in progress, she said.

“What we did we have done before,” McIntosh said. “And we will probably do it again.”

Del. Michael D. Smigiel, R-Cecil, said he was reminded of a painting he had outside of his office of Lady Justice, wearing a blindfold and holding a scale in one hand.

“What you’re asking that justice to do is peek out behind that blindfold,” Smigiel said.

The most vociferous opposition came from Del. Michael A. McDermott, R-Wicomico and Worcester, who said the House was yielding to the will of high-paid lobbyists.

The House is not allowed to do “a wink and a nod” on legislation and should “look at things equitably,” he said, drawing an immediate admonition from House Speaker Michael E. Busch, D-Anne Arundel.

“With all due respect, we all take our job very seriously and vote our conscience,” Busch said, before McDermott interrupted the chamber, moved to near silence for the first time Saturday, by asking, “And your point being, Mr. Speaker?”

“The point is, you’re disparaging” members of the House, Busch said.

The bill could be given final approval in the House next week, but would still need approval from the Senate before being sent to Gov. Martin O’Malley.