On April 30, The Frederick News-Post reported about the County Council’s decision to revisit “one portion of the Monrovia Town Center case.” On June 9, the council will hold a public hearing that is supposed to be their response to Circuit Judge William R. Nicklas Jr.’s remand of the case. There is only one problem — the council is ignoring the judge’s remand order.
Nicklas remanded the case for the council to conduct additional proceedings, including taking testimony, to resolve the issues identified by the court. So what issues did the court identify? First and foremost, the court made two definitive findings — former Commissioner Paul Smith discussed the pending Monrovia Town Center case with the Frederick Area Committee on Transportation, and Smith failed to report those communications as required under the state’s ex parte communications laws applicable to Frederick County. This is highly suggestive of an ethics violation, one that carries potential criminal penalties. Is the council addressing these issues? No.
Nicklas also found that the letter from FACT incorporated Smith’s observations and that the letter was intended to influence the pending vote. Lastly, he found that it was highly suggestive that the Board of County Commissioners relied on the letter. He specifically called out former Commissioners President Blaine Young in his conclusions.
To summarize — a sitting commissioner used an outside organization to help influence the vote on a pending zoning application before him. This is an important issue in the judge’s remand order and it leads to questions. Were other commissioners involved? After all, the former commissioners rarely seemed to do anything this significant without Young’s awareness and approval. Was the developer or members of his team involved? One of the reported letter writers is closely linked to the developer. We know that he took great interest in FACT’s conflict of interest because it was being paid by the BoCC. I imagine he would take equal — if not greater — interest in the letter writer’s conflict of interest with the developer’s team. Is the council addressing any of these issues? No.
If not addressing these issues that were actually raised by Nicklas, what exactly is the council trying to do? Based on the motion put forth by Councilman Tony Chmelik, and then passed by the council, they are trying to read minds. They are trying to determine whether the FACT letter had a major impact on the commissioners’ approval of the case. How can they do that, you might wonder? How can they really know what the commissioners were thinking and how much (or how little) weight they put on the letter? The simple answer is — they can’t. In fact, nobody can. It’s objectively impossible to prove one way or another.
Oh, they’ll try. They’ll take affidavits from Smith, Young and former Commissioner David Gray. I’m sure Smith and Young will solemnly swear that the letter meant nothing to them, but what good will these self-serving affidavits really be? Plus, why not ask councilmen Billy Shreve and Kirby Delauter for affidavits? Based on the council’s approach, Shreve and Delauter should also render affidavits, then — and this is key — they should recuse themselves from voting on the matter. How can Shreve and Delauter vote as council members on an issue revolving around an opinion about their prior decision? This is an inherently biased and flawed approach.
Since the council will probably follow this approach despite my objections, let’s consider one last point. Let’s say you believe that the commissioners were going to approve the case and that the FACT letter didn’t matter. Ask yourself this question — why did they do it? Why go through all the trouble of having the FACT letter ginned up like this, including potentially putting Smith’s law license at risk, if they didn’t have a reason?
I believe there was a reason. I believe they were worried about the case record on Md. 75. Safety and congestion issues were never resolved during all 13 nights of hearings. Md. 75 remained a central weakness in the commissioners’ approval. I believe they wanted to strengthen the case record and provide a public justification for their approval and what better way than with a showy display of a letter from a group of supposedly “neutral” transportation experts?
That is how I think the FACT letter influenced the approval of the Monrovia Town Center case. By providing justification and rationalization for their decision, the letter had a clear and material impact on the approval. Considering this point, and the picture of covert influence painted very clearly by Nicklas, the County Council has a clear responsibility to do more to correct these injustices. The council should reopen the case for a full, open and untainted set of new hearings.
is president of Residents Against Landsdale Expansion. He writes from Monrovia.