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Cities, towns face myriad legal challenges

OCEAN CITY — Local governments can stop homeowners from displaying certain signage on their property, most government information is public, and panhandlers have free reign on town and city streets.

Those and other municipal legal issues were detailed on Wednesday, the final day of the Maryland Municipal League’s annual convention at the Roland E. Powell Convention Center.

In a panel discussion led by Del. Jeffrey D. Waldstreicher, a Montgomery County Democrat and lawyer, a gathering of local officials was also advised how to legally deal with unpaid interns, pregnant employees seeking accommodations and the liability of local police officers’ actions when out of uniform.

Several officials, however, were somewhat disheartened to hear from attorneys at Annapolis-based Council, Baradel, Kosmerl & Nolan P.A. that it may not be possible to curb panhandling in public areas of towns and cities.

Suellen M. Ferguson, an attorney at the firm, cited Clatterbuck v. City of Charlotte, a case decided by the 4th U.S. Circuit Court of Appeals this year, which said a city ordinance outlawing soliciting an “immediate donation” on the city’s downtown mall violated the First Amendment.

“Begging is First Amendment speech,” Ferguson said. “You can regulate speech in a public forum, but can’t do it in a way that picks on an activity you don’t like.”

Because the city ordinance was content-specific, it was struck down. But local zoning laws can restrict some speech, Ferguson said, citing another 4th Circuit case, Brown v. Town of Cary, in which a resident expressed disappointment that the local government would not pay for property allegedly damaged by a public works project by painting: “Screwed by the Town of Cary” across the side of his house in fluorescent orange paint.

A town ordinance regulated the size and color of residential signs, and because the ordinance was content-neutral — it did not matter what the sign said — it was upheld as constitutional by the court.

Ferguson also said when towns and cities were drafting legislation, including the intent of that local ordinance in a “whereas” clause could be helpful in court, when a plaintiff charges that an ordinance was written for some insidious purpose rather than for the public good.

“It’s helpful to use the ‘whereas’ clause … if you have one you anticipate, at least, is going to be controversial,” Ferguson said, echoing a sentiment expressed by Frederick C. Sussman — also an attorney at Council, Baradel, Kosmerl & Nolan — who suggested being proactive to avoid lawsuits or to aid in defense.

That includes making sure unpaid interns are well aware they won’t be compensated for their work, before they show up and expect to receive a paycheck. Local governments and nonprofits may soon be subjected to a test applied to private businesses, he said, which determines whether interns must be paid for the scope of their work.

Waldstreicher finished the session by addressing one of MML’s most pressing legislative priorities last year — allowing municipalities to post legal notices on their town websites, rather than buying advertising space in local newspapers.

Legislation sponsored by Waldstreicher was panned by the General Assembly this year in part due to the impact cutting that advertising would have on newspapers. The Daily Record is among the papers that would potentially be affected by such legislation.

The Montgomery County Democrat said he’d like to push the legislation again next year, but was looking for support from municipal leaders in attendance.

“I represent municipalities where that’s a high cost,” he said.