Md. high court finds no private cause of action in county ethics case

The constitutional separation of governmental powers generally bars local residents from challenging in court a county commission’s zoning decision they allege was unlawfully reached based on the vote of a commissioner with a personal stake in the outcome, a unanimous Maryland Supreme Court ruled Wednesday.

The court, however, left unanswered whether a law could be drafted that enables residents to bring a court challenge despite the general prohibition.

“Under Maryland common law, ordinarily courts will not consider the motives of legislators or public officials when undertaking purely legislative acts,” Justice Brynja M. Booth wrote for the court. “Under the common law, the judiciary ordinarily will not void legislation based upon what it perceives is improper legislative motivation.”

In its 7-0 decision, the high court upheld the dismissal of a lawsuit four Calvert County residents brought alleging commissioner Kelly D. McConkey should have been barred from voting in 2019 on the county’s comprehensive zoning plan.

McConkey abstained from the first vote but not the second, in which he broke a 2-2 tie to approve the expansion of Huntingtown Town Center to include two parcels he owned.

The residents sought 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.

The Calvert County Circuit Court and the Appellate Court cited the separation of powers and the absence of a provision giving residents a private cause of action in the county’s ethics code as reasons for dismissal.

The Supreme Court agreed.

However, the court said it found no private cause of action only after “assuming, without deciding” that county lawmakers had the legal authority to establish such a right.

The justices said the county’s ethics law neither expressly nor impliedly enables residents to challenge the casting of a vote based on a commissioner’s personal interest. Rather, the law merely states that “people have a right to be assured that the impartiality and independent judgment of public officials will be maintained” and that the code be “liberally construed,” the court added.

“In other words, there is no unique language in the Calvert County Ethics Code that evidences an intent on the part of the county commissioners to create an implied right of action that authorizes taxpayers to obtain a judicial remedy invalidating a legislative enactment based upon a commissioner’s participation in the matter where it is determined that the commissioner had a conflict of interest,” Booth wrote.

G. Macy Nelson, the residents’ attorney, said the justices’ decision that courts cannot prevent a conflicted commissioner from voting — despite an ethics law designed to protect the public — may foster corruption.

“The (court’s) narrow reading does not advance good governance,” said Nelson, of the Law Office of G. Macy Nelson LLC in Towson.

“It gives freedom to local government officials to act contrary to the local ethics ordinance,” he added. “They can act contrary to the ethics ordinance, and there’s nothing a citizen can do about it. That’s the lesson of this case.”

Nelson said the only option now would be legislation clearly providing residents a private cause of action.

Calvert County Attorney John A. Mattingly Jr. said the county is “very pleased with the decision,” particularly the court’s affirmation of the separation of powers.

“That’s the issue that carried the day,” Mattingly said.

The Supreme Court rendered its decision in 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 were 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.

The Calvert County Circuit Court reversed the commission’s ruling in August 2021, but it was reinstated by the Appellate Court last year.