MUNICIPAL HOT BUTTON ISSUES

MARYLAND MUNICIPAL LEAGUE

SUMMER CONFERENCE

JUNE 27, 2016

Presented by:

Suellen M. Ferguson
ferguson@councilbaradel.com

Frederick C. Sussman
fsussman @councilbaradel.com

COUNCIL
BARA[]EL
ATTORNEYS AT LAW

councilbaradel.com

125 West St., 4th Floor, Annapolis, MD 21401

Annapolis: 410.268.6600 Baltimore: 410.269.6190 Washington: 301.261.2247

 TABLE OF CASES

PAGE

Andon, LLC v. City ofNewport News,.................................................. ..... 1

813 F.3d 510 (2016)

Anne Arundel County v. Bell, ................................................................. 1

442 Md. 539 (2015)

Anne Arundel County v. Harwood Civic Ass 'n, ............................................. 2

442 Md. 595 (2015)

Clough v. Mayor & City Council ofHurlock, .............................................. 3

445 Md. 367 (2015)

Cooper v. Rodriquez, .......................................................................... 4

443 Md. 680, 118 A.3d 829 (2015)

Evenwel, et al. v. Abbott, Governor ofTexas, et al., ........... .............................. 4

578 US _ (2016)

F O.P. v. Montgomery County, ............................................................... 5

_Md._(2016)

G.G. ex reI. Grimm v. Gloucester Cty. Sch. Bd, No. 15-2056 ............................. 6
(4th Cir. Apr. 19,2016)

Glenn v. MDHMH.............................................................................. 7

Heffirnan v. City ofPaterson, ............................................................... 8

578 U.S. _ (2016)

Gail B. Litz v. Maryland Department ofthe Environment, et aI., ......................... 8

446 Md. 254 (2016)

Manger v. Fraternal Order ofPolice, Montgomery County Lodge 35, Inc., ............ 9
227 Md. App. 141 (2016)

Montgomery County, Maryland v. Ajay Bhatt, ............................................. 10

446 Md. 79 (2016)

Peninsula Regional Medical Center v. Tracey L. Adkins, ....... .......................... 10

_ Md. _ (2016)

Toms v. Calvary Assembly ofGod,... ........................................................ 11

446 Md. 543 (2016)

Williams v. Prince Williams County, ........................................................ 12

_ Fed.Appx. _ (2016)
 CASES OF INTEREST TO MUNICIPAL OFFICIALS

Andon, LLC v. City ofNewport News, 813 F.3d 510 (2016)

REAL PROPERTY- Challenge under the Religious Land Use and Institutionalized Persons Act

Plaintiff, property owner and religious group, brought an action against the city,
alleging that the city violated the Religious Land Use and Institutionalized Persons Act
(RLUIPA) by denying their application for a zoning variance to pennit property to be used
as a church facility. The property did not satisfy the ordinance which would allow a
property zoned for commercial use to be used for a "community facility" including a
"place of worship." Specifically, the property did not satisfy the requirement that it not be
within 100 feet of any side or rear property line zoned single-family residential. Plaintiffs
filed an application with the Board of Zoning Appeals (BZA) requesting a variance from
the setback requirement. The City Codes and Compliance Department subsequently filed
a report with the BZA concerning the variance request, stating that BZA must fmd, among
others that strict application of the ordinance would produce an undue hardship relating to
the property not shared generally by other properties.

BZA eventually denied the variance request under the Department's

recommendation that the property could be used for other purposes without a variance and
the denial of a variance would not cause Plaintiffs to suffer a hardship unique among other
commercial property owners in the vicinity. Plaintiffs argued that the denial of the
variance imposed a substantial burden on their religious exercise. Specifically, under
RLUIPA, the congregation has been unable to fmd a suitable location in the City for
worship, and the Plaintiffs have suffered "delay, expense, and uncertainty" in establishing
a church location. The District Court dismissed the case and the Court of Appeals
affirmed, for the complaint failed to state a substantial burden claim under RLUIPA.

In its reasoning, the Court stated that because the Plaintiffs knowingly entered
into a contingent lease agreement for a non-conforming property, the alleged burdens
sustained were not imposed by BZA' s action denying the variance, but were self-imposed
hardships. The Court goes on to note that a self-imposed hardship will not support a
substantial burden claim under RLUIP A because the hardship was not imposed by
governmental action altering a legitimate, pre-existing expectation that a property could be
obtained for a particular land use.

Anne Arundel County v. Bell, 442 Md. 539 (2015)

STANDING- Taxpayer and Property Owner Standing in challenge to zoning ordinance

Plaintiffs challenged the adoption, in 20 II by the County Council for Anne

Arundel County, of a comprehensive zoning ordinance for a large portion of Anne
Arundel County. Bill 12-11 changed the previous zoning classifications of265 parcels or
lots and maintained essentially the pre-existing zoning of the rest of the 59,045 individual
parcels or lots. The citizens challenged the rezoning of multiple parcels of land, alleging

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that the County engaged in illegal spot and contract zoning with regard to the rezoning,
and failed to provide the public with the required notice of the proposed zoning changes.

The Circuit Court dismissed the complaint for lack of standing. On direct appeal,
the Court of Special appeals disagreed and concluded that the citizens enjoyed property
owner standing to challenge the Bill. The Court of Appeals eventually reversed.

The Court of Appeals held that Plaintiffs, wishing to challenge in Maryland courts
the legislative action of adopting a comprehensive zoning ordinance, are required to
demonstrate taxpayer standing, a standing doctrine required for challenges to legislation.
The doctrine of property owner standing is not the appropriate basis on which a judicial
challenge to a comprehensive zoning legislative action may be maintained. The Court
examined the two standing doctrines available by which they might maintain suits
regarding land use actions. The Court determined that the doctrine of property owner
standing may apply to administrative land use decisions and other land use actions
undertaken as executive functions. However, the Court noted that it has not applied the
doctrine to purely legislative processes and actions, nor does the Court's body of case law
on the subject warrant applying the doctrine to judicial challenges to legislative acts
reached through solely legislative process. Such an expansion to the property owner
standing doctrine to the purely legislative process and acts of comprehensive zoning
would be ill-advised.

The Court proceeded to discuss the doctrine of taxpayer standing, which the Court
identified as the standing doctrine that challengers to comprehensive zoning ordinances
must satisfy. The Court discussed some of the instances in which taxpayer standing
applies, including cases pertaining to executive, administrative, or quasi-land use actions
as well as challenges to legislation generally. In light of the requirements of taxpayer
standing, the Court analyzed the Citizens' suit and found that the Citizens did not satisfy
the requirements of taxpayer standing. Even though at least two citizens were taxpayers
and the citizens alleged that the actions taken by the County in adopting the zoning
reclassifications in Bill 12-11 were illegal, they did not allege that the illegal action would
result in a pecuniary loss or an increase in taxes. Because the Citizens did not allege
properly that they would suffer the requisite harm, the Court did not determine whether
the Citizens alleged sufficiently that their suit was brought on behalf of all other taxpayers
similarly situated.

Anne Arundel County v. Harwood Civic Ass 'n, 442 Md. 595 (2015)
STANDING- Taxpayer and Property Owner Standing in challenge to zoning ordinance

After an initial declaratory judgment complaint was dismissed with leave to

amend, community organizations and property owners filed an amended complaint for
declaratory judgment and equitable relief against the County, challenging Bill 44-11 , a
comprehensive rezoning ordinance adopted in 2011 by the County Council for Anne
Arundel County. Plaintiffs sought a declaration that certain provisions of Bill 44-11 were
void because they granted illegal spot zoning and were inconsistent with the
recommendations of the County's comprehensive land use master plan. Individual
property owners each alleged that they owned property and resided near or adjacent to one

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of the properties rezoned by Bill 44-11 and that the value of their property and enjoyment
thereof would be reduced substantially as a result of the rezoning. The Circuit Court
dismissed the complaint for lack of standing and failure to state a claim. The Court of
Special Appeals concluded that Plaintiffs did state a claim upon which relief could be
granted and remanded the case for further proceedings. The County and several
Defendants petitioned for a writ of certiorari and the Court of Appeals reversed.

In Anne Arundel County v. Bell (filed immediately prior to the opinion in the
present case), the Court of Appeals concluded that the doctrine of property owner standing
is not the appropriate test for a judicial challenge to a comprehensive zoning action.
Rather, plaintiffs wishing to challenge in Maryland courts the legislative process and final
action adopting a comprehensive zoning are required to demonstrate taxpayer standing.
The Court found that the Plaintiffs did not satisfy the requirements of the taxpayer
standing doctrine and waived any arguments they may have had to that effect. At no point
did any Plaintiff assert that he, she, or it enjoyed taxpayer standing or satisfied the
requirements thereof. Thus, reversing the decision below, the Court never considered
whether any Plaintiff alleged sufficiently that the suit was brought on behalf of all other
taxpayers similarly situated, or if it was alleged sufficiently a nexus between the
challenged illegal or ultra vires act and pecuniary loss suffered by her.

Clough v. Mayor & City Council ofHurlock, 445 Md. 367 (2015)
EMPLOYMENT-Employment agreement inconsistent with Charter

Former town Clerk-Treasurer brought an action against the mayor and town
council to recover for a violation of an employment agreement, where the town terminated
her appointment before the expiration of her four-year term. Plaintiff was terminated
without cause with approximately 18 months remaining of the four-year term. The Circuit
Court dismissed the complaint and the Court of Special Appeals affirmed, reasoning that it
was inconsistent with the Hurlock Charter for the Town to enter into an employment
agreement that conferred a term of years on the Clerk-Treasure. The Court of Appeals also
affirmed.

The Court of Appeals found the Charter, which stated that "[a]ll office,
department, and agency heads shall serve at the pleasure of the Mayor," precluded the
Town from entering into an employment agreement with the Clerk-Treasurer for a fixed
term of years. The Court reasoned that the phrase "serve at the pleasure of' is understood
commonly to refer to at-will employment. Further, the Court noted that the Hurlock
Charter reflected a public policy that a mayor should have the ability to assemble and
retain key personnel and that Plaintiff's interpretation contradicted that public policy.

The Court concluded that neither Plaintiff nor the city council had authority to
enter into a four-year employment agreement, and because municipalities are not bound
by contracts entered into by agents who exceed their authority, the employment agreement
was void and unenforceable.

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Cooper v. Rodriquez, 443 Md. 680, 118 A.3d 829 (2015)
IMMUNITY- Gross Negligence is an exception to Public Official Immunity

Parents of an inmate murdered by a fellow inmate on a prison transport bus filed

suit against the State, individual correctional officers who staffed the bus, and others,
asserting wrongful death and other claims. An inmate was choked two separate times and
eventually killed with a smuggled razor blade in plain sight of other inmates and
correctional officers while they were traveling together on a transport bus. The two-part
attack occurred approximately seven feet from where the Officer in Charge was seated in
a rear elevated officers cage. The Officer in Charge, who is required to be alert and
observant at all times, claimed not to have witnessed the attacks.

At the Circuit Court level, the jury found the Officer in Charge grossly negligent
and that the combined negligence was the proximate cause of the inmate's death, but the
Court would eventually strike the verdict reasoning that correctional officers were immune
from liability under common law public official immunity and the Maryland Tort Claims
Act ("MTCA"). On initial appeal, the Court of Special Appeals held that the Circuit Court
erred in striking the jury's fmding and in concluding the officers were immune from
liability. The Court of Appeals affirmed the reversal.

The Court of Appeals made it clear that when there is a finding of gross
negligence, there is no immunity under the MTCA and gross negligence is an exception to
the common law public official immunity. The Court went on to say that it had the
authority under the Maryland Constitution to change the common law and thus, held that
gross negligence as an exception to common law public official immunity neither ran
afoul of the Maryland Constitution nor invaded the province of the General Assembly.

Evenwel, et aL v. Abbott, Governor o/Texas, et aL, 578 US _ (2016)

GOVERNMENT- Elections: One person, one vote principle, state and local jurisdictions
could measure equalization by total population oflegislative districts

Plaintiffs, registered Texas voters, brought an action against Texas Governor and
Secretary of State, seeking permanent injunction barring use of existing state Senate map
in favor of map equalizing voter population in each district. Plaintiffs claim that the new
districts do not adhere to the "one person, one vote" principle, which the Supreme Court
had previously held exists in the Equal Protection Clause of the Fourteenth Amendment,
because they were appointed based on total population rather than registered voter
population, and while the new districts were relatively equal in terms of total population,
they varied wildly in relation to total voter population. The district court granted the
defendants' motion to dismiss and held that the Plaintiffs failed to state a claim on Equal
Protection Clause jurisprudence, which allows total population to be the basis for district
apportionment.

The Supreme Court of the United States determined whether the Equal Protection
Clause of the Fourteenth Amendment requires that districting take into account the
number of voters rather than the total population, and held that States may use total
population in drawing legislative districts. The "one person, one vote" principle for the

Page 4
Equal Protection Clause allows a state to design its legislative districts based on total
population. The Court reasoned that constitutional history, judicial precedent, and
consistent state practice all demonstrate that apportioning legislative districts based on
total population is permissible. In cases in which the Court has evaluated whether
districting maps violated the Equal Protection Clause, the Court has consistently looked at
total population figures to determine whether maps impermissibly deviate from perfect
population equality. The total population approach has been used by all states and many
local jurisdictions, and there is no reason to upset this accepted practice.

F.O.P. v. Montgomery County, __ Md. __ (2016)

GOVERNMENT-Campaign Financing

The Montgomery County Code authorizes the County to bargain collectively

with the certified representative of police officers below the rank of lieutenant, the
Fraternal Order of Police, Lodge 35 (FOP). In addition to the usual mandatory items
specified for collective bargaining such as wages, benefits, hours, and working conditions,
the County code also included the right of "the effect on employees of the employer's
exercise of [management] rights listed in [the collective bargaining law]" a mandatory
subject of collective bargaining. The management rights listed in the Code included,
among others, transferring and assigning employees, determining the organizational
structure of the police force, making job classifications, and setting the overall budget and
mission of the police force. On belief that the provision hampered the ability of the police
department to make an implement management directives, the County Council passed a
bill limiting "effect" bargaining to situations where the county's exercise of its
management rights causes a loss of jobs in the bargaining unit.

The FOP organized a successful effort to petition the ordinance to referendum,

which had the effect of suspending the law pending the result of the vote. Both sides
vigorously advocated to encourage voters to either pass or deny the bill. FOP objected to
the County's advocacy on behalf of the ordinance, specifically the use of County funds
and personnel in an effort to encourage voters to uphold the law. The County Executive
authorized the use of up to $200,000 from appropriated funds for such things as bus ads,
posters, and bumper stickers, ads in local media, fliers, and mass mailings.

FOP filed a law suit in the Circuit Court for Montgomery County, asserting that
County Officials and employees lack authority to engage in electioneering and
campaigning and that that the County violated the campaign fmance provisions of the
State Election Law and provisions of the County Code and Local Government Article of
the Md. Code restricting on-the-job political activities of government employees. Circuit
Court awarded declaratory and injunctive relief and concluded that the County Executive
and the Director of Public Information lacked authority to engage in electioneering. The
Court of Special Appeals reversed, concluding that the doctrine of "government speech"
authorized the activities that County officials were not required to comply with the
campaign finance provisions of the State Election Law and the Local Government Article
did not prohibit those activities. The Court of Appeals affirmed that decision.

Page 5
 The Court of Appeals reasoned that "government speech" permits a government
entity to inform the public of its views regarding legislative measures that may affect
significantly its operations or programs, including ballot questions, provided that there are
no clear and specific prohibitions under applicable State or federal law. The County
expended appropriately funds to inform voters of the impact of nullifYing the law and how
the law would improve the welfare of the County. Thus, the County engaged appropriately
in "government speech" because it provided information on a ballot question that would
affect County operations and did so without violating any prohibitions under applicable
law.

Notably, it is cautioned that this case did not involve a partisan political cause,
such as the election of particular candidates to office or a politically-tainted ballot measure
involving issues of social policy that would neither hamper nor enhance the operations or
programs of County government.

G.G. a rel Grimm v. Gloucester Cly. Sch. Btl., No. 15-2056 (4th Cir. Apr. 19, 2016)
EDUCATION- Title IX Requires Schools to Allow Transgender Students to Use
Bathrooms Based on Gender Identity

Gloucester High School in Virginia had allowed a transgender student, upon

request, to use the boys' bathroom despite having been born female. Seven weeks later,
the Gloucester County School Board, acting on community pressure, passed a resolution
requiring use of biologically-based bathrooms and directing separate bathrooms for
"students with gender issues." The student challenged the board under Title IX (of the
Education Amendments Act of 1972) and on Equal Protection grounds, seeking a
preliminary injunction on the new policy.

Ruling in favor of the student, the Fourth Circuit looked into whether Title IX
requires schools to provide transgender students access to restrooms congruent with their
gender identity. The Court held that read plainly, Title IX permits schools to provide
separate toilet, locker room, and shower facilities to its male and female students and by
implication, permits schools to exclude males from the female facilities and vice versa.
However, it can be argued as to how a school should determine whether a transgender
individual is a male or a female for the purposes of access to sex-segregated bathrooms.

Specifically, the Department of Education (DOE) regulation, on which the

Board's resolution was based, provided for "separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for students of one sex shall be
comparable to such facilities provided for students of the other sex." The Court eventually
found the regulation to be ambiguous, that is, the regulation is susceptible to more than
one plausible reading because it permits both the Board's interpretation in passing the
resolution, determining sex with reference exclusively to genitalia, as well as DOE's own
interpretation, determining sex with reference to gender identity. As a result, the Court
required that a DOE opinion letter be given deference. The DOE opinion letter, dated
January 2015, stated that "[w]hen a school elects to separate or treat students differently
on the basis of sex ... a school generally must treat transgender students consistent with

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their gender identity." Therefore, Auer required that the DOE opinion letter be given
deference, and gender identity is to be used to determine access to bathrooms.

Glenn v. MDHMH
PUBLIC INFORMATION- Maryland Public Information Act allows certain redactions

Requestor sought records of all applications seeking to establish surgical abortion

facilities. The Department of Health and Mental Hygiene provided copies of applications
but redacted names and e-mail address of individuals who were listed as owners,
administrators, and medical directors. The Department filed a petition seeking judicial
confirmation for continued denial of the information. The Circuit Court granted the
petition. The Court of Appeals held that the redaction was proper under the catch-all
provision of Public Information Act allowing a custodian to exempt information to avoid
substantial injury to the public.

Requestor contended that the decision undermines the Public Information Act and
grants discretion to government agencies to keep information hidden from public scrutiny.
The Public Information Act provides a general right to information where "[a]ll persons
are entitled to have access to information about the affairs of government and the official
acts of public officials and employees." However, the Court points out that there are
numerous exemptions where the Legislature contemplated specific information could be
excluded from public reach. Specifically, there is a provision which states whenever the
official custodian believes an inspection would cause substantial injury to the public
interest, they may deny inspection temporarily, and if a court fmds that it would cause
substantial injury, the court may issue an appropriate order authorizing the continuing
denial.

The Court found that here, the threat does not create merely a greater risk because
the threat to the public interest is more than speculative, it is well know that there is
widespread hostility towards abortion and abortion providers. In its reasoning, the Court
noted that the Department provided all of the basic information about the facilities and
business entities, if any, in the applications, as well as any accreditation under which the
facility would operate. This information, even with redaction of names is helpful in
"public policing" of the Department's action on the applications for the surgical abortion
facilities. Further, a woman contemplating a procedure at one of the facilities would be
able to review the same information and conduct research on the business entities
proposing to operate the facilities. Because of the history nationally of harassment and
violence associated with abortions, there is a basis for concern that releasing the redacted
information would jeopardize medical professionals from practicing, which would deter
ultimately access to women who seek an abortion in Maryland. The risk of violence is not
speculative and is based on the ample evidence presented.

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Heffernan v. City o/Paterson, 578 U.S. _ (2016)
EMPLOYMENT-Mistaken belief protected under First Amendment

Petitioner Heffernan, a police officer, sued the City of Patterson, claiming that
the city had violated his First Amendment rights to freedom of speech and association. A
fellow police officer had observed Heffernan picking up a campaign sign for the mayoral
candidate running against the incumbent. When a supervisor confronted him, Heffernan
claimed that he was picking up the sign on behalf of his mother. The next day, Heffernan
was demoted from detective to patrol officer as punishment for his "overt involvement" in
political activities.

The district court granted the city's motion for summary judgment because
there was no evidence Heffernan associated himself with the political candidate at issue.
Heffernan admitted himself that he was not associated and therefore there was no evidence
of a violation of his right to freedom of association. The U.S. Court of Appeals for the
Third Circuit affirmed.

The Supreme Court reversed, ruling that the intention of the demotion was to
prevent Heffernan's speech, and therefore was protected under the First Amendment. The
Court held that a government employee who is demoted because of a perceived
involvement in protected political activity is entitled to challenge his demotion under the
First Amendment even if the demotion was based on a factual mistake. When an employer
demotes an employee out of a desire to prevent or punish the employee from engaging in
protected speech, that action violates the First Amendment, even if the employer made a
factual mistake and no protected speech occurred. The Court also held that this rule tracks
the language of the First Amendment because it focuses on the harm the government actor
committed, which is the same whether or not true, and does not alter the burden that an
employee claiming a First Amendment violation must meet, which is to prove that the
defendant had an improper motive.

Gail B. Litz v. Maryland Department o/the Environment, et aL, 446 Md. 254 (2016)
REAL PROPERTY- Inverse condemnation for inaction

A resident of the Town of Goldsboro, Caroline County, Maryland brought an

action against the Maryland Department of the Environment (MDE), the Town and
County alleging, among others, inverse condemnation for contamination of her lake from
failed septic systems. The resident owned and operated a popular lake front recreational
campground in Caroline County, Maryland, and because of the contamination, was unable
to operate the campground, ultimately losing the property through foreclosure by the bank
holding the mortgage. After a complicated web of procedural history, the Court of Special
Appeals eventually affirmed the dismissal of the State and its agencies from the case,
specifically finding that Plaintiff failed to state a cause of action for inverse condemnation
against the State government. On appeal, the Court of Appeals affirmed in part and
reversed in part, fmding that Plaintiff did in fact state adequately a facial claim for inverse
condemnation.

Page 8
 In reaching its conclusion, the Court was faced with the difficult task of
detennining the distinction between an affinnative action and an inaction for an inverse
condemnation claim. For an inverse condemnation claim (taking of property without
fonnal condemnation proceedings being instituted) a plaintiff must allege facts showing
ordinarily that the government action constituted a taking. Plaintiff's claim of a "taking"
focused predominantly on the inaction of the State, that is, its failure to correct the
contamination problem, rather than an affinnative action. Because there was no
controlling Maryland law as to a distinction, the Court of Appeals looked to other states
for guidance. The Court of Appeals found that it was appropriate and, in this case, fair and
equitable, at least at the pleading state of litigation to recognize an inverse condemnation
claim based on inaction when one or more of the defendants may have an affinnative duty
to act under the circumstances. Especially with the fact of a County administrative consent
order from 1996 which admitted the problem and attempted to make changes to help fix
the problem.

Although questions of which defendants had statutory or legal duties with

regard to abatement of the contamination are open in the proceeding as far as it has
advanced, the Court of Appeals concluded that it was not frivolous to hypothesize that
state, county, and municipal agencies may have duties to step in to protect public health.

Manger v. Fraternal Order ofPolice, Montgomery County Lodge 35, Inc.,

227 Md. App. 141 (2016).

POLICE - Videotaping police officer interrogation

In late 2014, the Montgomery County Policy Department altered its

interrogation policy to utilize video recording technology to keep a complete record of
interrogations of officers. When three officers were notified that they had been scheduled
for interrogation, the Fraternal Order of Police, Lodge 35 (FOP), filed a show cause
petition on behalf of the officers in the Circuit Court for Montgomery County to enjoin the
Department fonn keeping a video record of the interrogations. The Circuit Court found in
favor of the FOP and ordered the interrogations to proceed without video recording, and
issued an injunction prohibiting video recording of other officer interrogations. The Court
of Special Appeals reversed.

In deciding the case, the Court of Special Appeals determined whether the Law
Enforcement Officers' Bill of Rights (LEOBR) requirement that a law enforcement
agency keep a "complete record" of its interrogation of a law enforcement officer, which
"may be written, taped, or transcribed," limited the law enforcement agency to using audio
tapes and forbid the use of video tapes to record. The Court held that it does not prohibit
videotaping, and therefore interrogations conducted pursuant to LEOBR may be visually
recorded to keep a complete record.

The Court of Special Appeals reasoned that because keeping a record includes
more than just unadorned words uttered during the interrogation, such as the description of
an action taken or sounds of emotion during an audiotape, the process defmed in LEOBR
(written, taped, or transcribed) does not demand the narrow interpretation of only the

Page 9
spoken word. The emphasis of such law is on keeping a complete record and not on the
means used to create that record.

Montgomery County, Maryland v. Ajay Bhatt, 446 Md. 79 (2016)

RAILROADS- Adverse possession and Abandonment of Right-of-Way

Plaintiff challenges a civil citation asserting a violation of the Montgomery County

Code which prohibits a property owner from erecting or placing any structure, fence, post,
rock, or other object in a public right-of-way. The factual predicate of the claimed
violation was the placement and maintenance of a fence and shed within the former rail
line right-of-way without a permit. The District Court found the Plaintiff guilty of a
violation and ordered him to remove the fence and shed encroaching upon the County's
right of way. The Circuit Court vacated and dismissed the citation because it concluded
that the County did not have a right of way easement over the former rail line, but rather
had been conveyed a fee simple interest, and therefore the Plaintiff had a credible claim
for adverse possession. The Circuit Court also did not conduct any abandonment analysis
because the land was granted in fee simple, and cannot reasonably be defined as a
right-of-way under federal, state, or local laws.

The Court of Appeals eventually reversed stating that railroad lines, even if
privately owned, have been treated as equivalent to public highways, and thus a railroad
line reserved for public use is not subject to a claim of adverse possession. Adverse
possession does not lie against lands devoted to public use and owned by State or local
government, except where abandonment ofthe public use is clear.

The Court went on to state that there was nothing to show abandonment and
therefore, there was no adverse possession. Accordingly, the Court found the shed and
fence in violation of the County Code. Abandonment of a railroad line requires an intent to
abandon and an act that demonstrates unequivocally that intent. The interim use of a
former railroad line's right-of-way for a hikerlbiker trail as an interim use, under the
Federal National Trails System Act, does not demonstrate an intent to abandon the public
use right-of-way, especially where a new ultimate use of the right-of-way as a commuter
rail line is intended.

Peninsula Regional Medical Center v. Tracey L. Adkins, _ Md. _ (2016)

EMPLOYMENT LAW - Maryland Fair Employment Practices act, failure to accommodate

Plaintiff was an employee at a medical center when she suffered an injury causing
her to take leave. After the leave expired, Plaintiff was terminated from employment.
Plaintiff brought suit alleging intentional disability discrimination based on actual
disability, intentional disability discrimination based on being regarded as having a
disability, and failure to accommodate. The Circuit Court found for the employer. On
appeal, the Court of Special Appeals reversed the ruling as to disability discrimination
based on actual disability and failure to accommodate. The Court of Appeals affirmed the
reversal.

Page 10
 The main issue that the Court tackled was whether Plaintiff was a "qualified
individual with a disability" under Maryland's anti-discrimination laws relating to persons
with disabilities. In order to be considered a "qualified individual," it must be shown that a
plaintiff with a disability is able to perform essential job functions whether or not an
accommodation is provided. An individualized assessment is necessary to determine if the
employee is able to perform the essential duties of their current position, or a vacant
position, with or without reasonable accommodations. The Court determined that a jury is
best in deciding whether a given function is essential, and if the function can be performed
with or without an accommodation.

The Court specifically noted that a reasonable accommodation can include a

transfer or reassignment to a vacant position, or leave. If an employee is able to perform
the essential job functions of a vacant position with or without reasonable
accommodations, the employee would be considered a "qualified individual." Once an
employee can demonstrate that an accommodation is possible and essential functions can
be performed, the employer must participate in the process of accommodating the
employee. However, the employer must only provide a reasonable accommodation and
not the accommodation of the employee's choice.

Toms v. Calvary Assembly of God, 446 Md. 543 (2016)

STRICT LIABILITY- Lawful fireworks display not an inherently dangerous activity

Plaintiff, operator of a dairy farm, filed strict liability and other claims against a
church and professional fireworks company in connection with church-sponsored
fireworks display on an adjacent property that allegedly caused a stampede inside the
dairy barn resulting in death of four dairy cows, property damage, disposal costs, and lost
milk revenue. Plaintiff argued that the noise produced by the fireworks discharge was
abnormally dangerous to livestock. The District Court did not agree and found no basis for
liability. The Circuit Court and Court of Appeals went on to affirm.

The Court of Appeals held that lawful fireworks displays are not an abnormally
dangerous activity because the statutory scheme regulating the use of fireworks reduces
significantly the risk of harm associated with the discharge of fireworks. The Court
considered all characteristics and risks associated with discharging fireworks, not just the
noise as complained, and in applying the multi factor test for strict liability for an
abnormally dangerous activity, determined that all the factors weight against the
application of no-fault liability. There was a proper permit obtained to discharge
fireworks, there were no violations of any of the conditions of the permit, and all
applicable laws and regulations were complied with.

The Maryland General Assembly enacted codes under the Public Safety Article
to implement sufficient precautions so as to ensure lawful fireworks displays can be a safe
and enjoyable activity. A lawful fireworks display does not pose a high degree of risk,
because the statutory scheme is designed to mitigate the risks associated with fireworks,
namely mishandling, misfires, and malfunctions. The Court went on to point out that the
Public Safety Article does not regulate the audible effects of display fireworks, but
recognizes that other authorities may further regulate this field. Frederick County,

Page 11
however, does not have a noise ordinance regulating the decibel level of fIreworks. If it
had, respondents would be obliged to comply with the regulations, in addition to
applicable state laws. The Court concluded that it is not for the Judiciary, but rather, the
Legislature to determine zoning classifIcations and enact noise ordinances that would
further regulate the use of fIreworks.

Williams v. Prince Williams County, _ Fed.Appx. _ (2016)

EMPLOYMENT-Standards of for assessing employment retaliation

Plaintiff brought an action against her employer, Prince William County,

Virginia, alleging she was sexually harassed and discriminated and retaliated against, in
violation of Title VII of the Civil Rights Act of 1964. The district court dismissed the
retaliation claim but the Court of Appeals for the Fourth Circuit reversed, for it determined
the lower court applied the wrong standard for assessing adverse employment action in the
context of a retaliation.

The Court held that the district court was wrong in applying the same reasoning
to both Plaintiff's discrimination and retaliation claim when deciding to dismiss. Unlike a
substantive discrimination claim, the adverse action component of Title VII's anti
retaliation provision is not limited to discriminatory actions that affect the terms and
conditions of employment. Instead, the Court notes, the adverse action component can be
satisfIed by showing that the employer took materially adverse action in response to an
employee engaging in a protected activity, which in the current context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.

The Court also stated that in the context of job reassignment, although not
automatically actionable, the reassignment may be materially adverse depending upon the
circumstances of the particular case. All circumstances indicating that an action was
harmful and materially adverse to the employee, such as changes in terms, conditions, or
benefIts, should be considered. The Court concluded that it was error to dispose of the
retaliation claim without considering the allegations about the unfavorable circumstances
experienced after Plaintiff had fIled her complaint. It was at least plausible that such
actions would have dissuaded a reasonable employee from making or supporting a charge
of discrimination.

We would like to acknowledge reference to the materials supplied by the Honorable

Judges Dale Cathell and Glenn Harrell as part of a recent program of the Maryland
Municipal Attorneys Association in the preparation ofthis presentation.

Page 12
EMPLOYMENT OF CONTRACT OR TEMPORARY WORKERS
POSSmLE JOINT EMPLOYER LIABILITY

Based recent developments in labor relations law (Browning-Ferris Industries, 326 NLRB
No. 186, 2015) and in government regulation (OSHA Temporary Worker Initiative) the
issue of whether a government is found to be a joint employer has become more
important. Trends at the federal level routinely impact local governments. Many
jurisdictions hire temporary workers for various tasks, such as leaf removal and snow
clearing, through an outside company. These relationships may have been ongoing for
many years, with no current written contract setting out the rights and obligations of the
parties. Employees may seek to have a municipality determined to be a joint employer,
along with the outside company, to increase their ability to bargain about contract terms or
to receive benefits.

If a municipality is found to be a joint employer, it may be liable under laws such as the
following:

Fair Labor Standards Act

Title VII of the Civil Rights Act
Maryland Occupational Safety and Health Act

If you do not have a written agreement with outside labor providers, it is recommended
that you obtain one. If you have not reviewed your agreement recently, you should do so.

Recommended terms for any agreement with third parties to provide employee services:

1. Draft an agreement with these concerns in mind. State that the outside company is
an independent contractor and that the agreement does not create a joint employment
relationship.
2. Exclusive control of employees should be exercised by the outside company.
Specifically recognize that hiring, wages, training and supervision are the
responsibility of the outside company.
3. Place only reasonable standards on right to control working conditions for third
party employees. Do not require the ability to terminate an outside employee for any
reason.
4. While you can include quality-control measures, such as safety or production
requirements, the responsibility for administering these requirements should be the
third party employer's.
5. While you may include overall minimum wage requirements, do not include
specific job wage requirements or hiring requirements.
6. Work within the terms of the agreement.

7. Do not become involved in hiring, training etc. Do not try to place candidates for
employment with the third party contractor.

Page 13
 FAIR LABOR STANDARDS ACT

On December 1, 2016, the minimum salary threshold for an employee to be

considered exempt will double, from $23,660.00 to $47,476.00. As a result,
employees in low level "management" positions may be disqualified from being
exempt from FLSA standards such as overtime exemption.

Page 14
 SIGNIFICANT STATE LEGISLATION FROM 2016, COURTESY
MML - FULL LIST TO BE FOUND ON MML WEBSITE.

SB 17 (Chapter 329)IHB 984 (Chapter 330) Open Meetings Act -

Retention of Minutes and Recordings - Revision

This bill increases the number of years - from one to five - that a public body is
required to retain a copy of its minutes or recordings of open sessions. However, a
public body may keep a copy of its minutes (not solely written minutes, as is required
of under current law) of each session and any recording (not solely a tape recording,
as is required under current law) to satisfy this requirement. To the extent practicable,
a public body must post the minutes or recordings online. The bill makes several
conforming changes to incorporate the added flexibility relating to the formats in
which minutes and recordings may be made.

HB 217 (Chapter 255) Open Meetings Act - Requirements for Agendas

This bill requires a public body to make an agenda available to the public prior to
meeting in an open session, subject to specified conditions. The agenda must contain
known items of business or topics to be discussed at the meeting and must indicate
whether the public body expects to close any portion of the meeting. The agenda does
not have to contain any information pertaining to the closed portion of a meeting. The
bill establishes provisions regarding when and how an agenda must be made publicly
available. An agenda may be altered after it has been made available to the public.

HB 852 (Chapter 280) Local Government - Municipal Elections - Tie Votes

This bill requires municipalities to fill a vacancy that resulted from a tie vote in an
election for a municipal office within 90 days after the date of the election.

SB 481 (Chapter 556)IHB 1003 (Chapter 557) Labor and Employment-

Equal Pay for Equal Work

This bill expands the Equal Pay for Equal Work law to prohibit wage discrimination
based on gender identity, among other provisions relating to the Equal Pay for Equal
Work law. Additionally, an employer may not provide less favorable employment
opportunities based on sex or gender identity. Moreover, an employer may not
prohibit an employee from inquiring about, discussing, or disclosing the wages of the
employee or another employee or requesting that the employer provide a reason for
why the employee's wages are a condition of employment. The bill applies only
prospectively and may not be interpreted to apply or have any effect on or application
to any cause of action arising before the bill's October 1,2016 effective date.