Steve Lash//March 25, 2022
//March 25, 2022
Maryland’s top court will consider whether local residents can challenge in court a county commission’s zoning decision that they allege was unlawfully reached based on the vote of a commissioner who had a personal stake in the outcome.
The Court of Appeals on Friday agreed to review lower court decisions that the Calvert County residents’ lawsuit must be dismissed because the county’s ethics law provides no cause of action for alleged conflicts of interest. The lower courts also held that the separation of governmental powers generally bars judges from hearing disputes involving legislators’ motives for casting votes.
In their lawsuit, the four residents allege that commissioner Kelly D. McConkey should have been barred from voting in 2019 on the county’s comprehensive zoning plan because he owned two parcels which would be affected by proposals under consideration. McConkey abstained from the first vote but not the second, which essentially broke a 2-2 tie.
The four residents sued, seeking a court order invalidating the zoning decision as having been reached on a vote cast by a commissioner otherwise required to recuse himself under the county’s conflict-of-interest law. But the Calvert County Circuit Court and the intermediate Court of Special Appeals said the residents’ lawsuit was barred because the county ordinance provided no cause of action for claims against a duly elected commissioner acting in his legislative capacity.
The residents, in their successful bid for Court of Appeals review, stated through counsel that the state’s ethics law and its county equivalents would be rendered meaningless if the people they were designed to protect lacked standing to challenge a commission’s decision allegedly aided by a commissioner’s self-interest.
Denying residents standing would “reduce the risk to the elected officials who disregard the prohibition against voting on matters in which the particular elected official has an interest,” wrote attorneys G. Macy Nelson and Grant A. Giel, of the Law Office of G. Macy Nelson LLC in Towson. “By reviewing the present case, this Court (of Appeals) will therefore impact all counties in Maryland by determining whether the construction of the State Ethics Law and all subordinate county-level ethics ordinances permits for citizen suits so as to assure government accountability even if a government employee tries to trivialize the enforcement capacity of their ethics commission.”
In its failed request that the high court deny review, Calvert County responded that judges “may not invalidate legislation, or even engage in a review, for a conflict of interest” because of the separation of powers.
Calvert County Attorney John Mattingly cited the Court of Appeals’ statement in its 2016 decision Kenwood Gardens Condominiums Inc. v. Whalen Properties LLC that “the judicial reluctance to review legislative action for bias or conflicts of interest stems from a concern for the separation of powers and manifests itself in the traditional rule that a court will not inquire into legislators’ motives.”
The Court of Appeals is expected to hear arguments in the case in September and issue its decision by August 31, 2023. The case is docketed at the high court as Susan Dzurec et al. v. Board of County Commissioners of Calvert County, Md., et al., No. 1 September Term 2022.
In addition to Dzurec, the residents suing the county are Myra Gowans, Michael King and Phyllis Sherkus.
In a separate proceeding, the Calvert County Ethics Commission found in December 2020 that McConkey had violated the county’s ethics ordinance and issued him a letter of censure. But the Calvert County Circuit Court reversed the commission’s ruling in August 2021.
The ethics commission’s appeal of that reversal is pending in the Court of Special Appeals, where the case is docketed as In the Matter of Kelly D. McConkey, No. 954, September Term 2021.i