75-80 Properties v. Rale, Inc.

75-80 Properties, LLC et al. v. Rale, Inc. et al., No. 1689, Sept. Term, 2017. Opinion by Arthur, J. STATUTORY INTERPERTATION – EX PARTE COMMUNICATIONS Md. Code (2014), § 5-859(b) of the General Provisions Article requires a member of Frederick County’s governing body who “communicates ex parte with an individual concerning a pending application during the pendency of that application” to disclose the communication. This statute requires the disclosure of any ex parte communication with an individual, regardless of whether the individual is an applicant. Even if the communication occurs during a public meeting, this statute requires disclosure when a member of the governing body initiates a discussion with persons interested in a proceeding, outside the record of the proceeding itself, and the comments reappear without attribution in a document that is submitted as evidence in the matter before the governing body.

CONSTITUTIONAL RIGHTS – FIRST AMENDMENT A statute restricting ex parte communications with quasi-judicial decisionmakers does not violate the First Amendment right to free speech. Restricting ex parte communications between a quasi-judicial decisionmaker and an individual serves an important public purpose of fostering public confidence in the fairness and integrity of the decision- making process by ensuring that all interested persons have equal access to the information on which the decision is based. ADMINISTRATIVE LAW – EXTREME CIRCUMSTANCES A finding of fraud or extreme circumstances in administrative proceedings is relevant only when a party seeks to obtain discovery of an administrative decisionmaker’s mental processes in an action for judicial review. ADMINISTRATIVE LAW – CHANGE OF MIND DOCTRINE An administrative agency is typically prohibited from reversing an earlier decision solely based on a “change of mind.” An administrative agency has discretion to decide how to proceed when the circuit court’s remand order does not presume to determine what proceedings were required by the agency.

Circuit Court for Frederick County Case No. 10-C-14-001899 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1689 September Term, 2017 ______________________________________ 75-80 PROPERTIES, LLC, ET AL. v. RALE, INC., ET AL. ______________________________________ Meredith, Arthur, Beachley, JJ.* ______________________________________ Opinion by Arthur, J. ______________________________________ Filed: August 29, 2019 * Judge Andrea M. Leahy did not participate in the Court’s decision to designate this opinion for publication pursuant to Md. Rule 8-605.1 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-01-16 09:03-05:00 Suzanne C. Johnson, Clerk Under a special statutory regime that governs certain administrative decisions affecting land use in Frederick County, a member of the County’s governing body must disclose ex parte communications with any “individual” concerning a pending application, during the pendency of the application. If a court finds that a member of the governing body failed to disclose such a communication, the court must remand the case to the governing body for reconsideration. In this complex and unusual case, the Circuit Court for Frederick County found that a former member of the Board of County Commissioners had engaged in an undisclosed ex parte communication regarding a pending application to rezone approximately 400 acres of land during the pendency of the application. The court remanded the case to the governing body, the new Frederick County Council, for reconsideration.

On reconsideration, the County Council decided to require the applicants to recommence the process of applying for a change in zoning. When the applicants refused to submit a new application, the County Council asked the court to take such action as it deemed necessary to permit a new application to be heard. The court granted the Council’s request, vacated the prior approvals, and remanded the case to the Council. The applicants appealed.

We shall affirm. BACKGROUND FACTS In November 2012, Payne Investments LLC and 75-80 Properties LLC (collectively, the “Developers”) filed an application for a zoning map amendment for more than 400 acres of land near the community of Monrovia in southeastern Frederick County. The application requested that the land, which was zoned for agricultural purposes, be rezoned to permit a planned unit development or “PUD” with 1500 residential units. The development was to be called “Monrovia Town Center.” When they applied for the zoning map amendment, the Developers filed an application for a Development Rights and Responsibilities Agreement or “DRRA,” under which the PUD zoning would remain in place notwithstanding any subsequent changes in the laws, regulations, or policies regarding the use of the real property or the density or intensity of the development on it.

See Maryland Code (2012), § 7-304(a) of the Land Use Article. In addition, the Developers requested an Adequate Public Facilities Ordinance Letter of Understanding (“APFO LOU”), which would define the public facilities (such as road improvements and sewer facilities) that they would be required to construct to satisfy the requirements of Frederick County’s Adequate Public Facilities Ordinance. In November 2013, the Frederick County Planning Commission recommended the approval of the PUD and found that the draft DRRA was consistent with the County’s Comprehensive Plan. After three public hearings in January 2014, the Board of County Commissioners approved the PUD, subject to a number of conditions.

The Developers accepted the conditions, and on March 28, 2014, the Planning Commission recommended the approval of a revised plan. In April 2014, the Board of County Commissioners held a total of four public hearings concerning the PUD, the DRRA, and the APFO LOU for Monrovia Town 2 Center. There was considerable public opposition to the proposed development, much of it focused on traffic safety and the adequacy of the local roadways. On April 14, 2014, before the fourth and final hearing, Commissioner C. Paul Smith attended a public meeting of an organization called Frederick Area Committee for Transportation or “FACT.” FACT was composed of members of the Frederick County business community and representatives of local government.

It was formed to facilitate, support, and encourage transportation improvements in Frederick County. Commissioner Smith was the Board of County Commissioners’ representative on FACT’s Advisory Board. FACT’s directors included Michael Smariga, a retired principal of the civil engineering firm that the Developers had engaged to pursue the application; Mr. Smariga’s son was involved in pursuing the Developers’ application. At the FACT meeting, Commissioner Smith argued that the Developers’ proposed improvements to the nearby highways (Routes 75 and 80) would benefit all residents in that area of the County.

The Commissioner’s arguments later reappeared, without attribution, in a letter, on FACT letterhead, that was signed by FACT’s secretary and sent to the Board of County Commissioners. The Board of County Commissioners received the FACT letter by email at 2:41 p.m. on April 23, 2014, a little more than three hours before the beginning of the final public hearing on the Developers’ application. The email, from an employee of the Office of the County Manager, described the letter as “FACT’s opinion.” Toward the end of the ensuing hearing, after 140 pages of testimony, the President of the Board of County Commissioners, Blaine Young, read the FACT letter into the 3 record and named its signatory (FACT’s secretary, Michael Proffitt). The President then read the names of each of the FACT directors (though not the names of the members of the Advisory Board, which included Commissioner Smith).

When Commissioner David Gray asked whether each of FACT’s directors had signed the letter, the President responded that they had not, but that they had given their authority for the letter to be signed. Although the FACT letter reiterated the arguments that Commissioner Smith had made at the FACT meeting nine days earlier, the Commissioner did not disclose that those arguments had originated with him. Counsel for RALE, Inc., an organization that opposed the Developers’ application, asked for an opportunity to cross-examine a representative of FACT. The President responded that FACT was “not testifying,” but was “submitting a letter.” He accepted the letter into evidence over RALE’s objection.

When the hearing continued, the Developers presented their rebuttal case. As part of that case, the Developers argued that “FACT might be the most apolitical organization in Frederick County,” that “FACT doesn’t care where or when land gets developed,” and that “FACT cares strictly and solely about funding for transportation.” At the end of the hearing, the Board of County Commissioners voted to approve the PUD, the DRRA, and the APFO LOU by a vote of 4-1. The Commissioners signed the operative documents on May 29, 2014. On June 3, 2014, a few days after the PUD, the DRRA, and the APFO LOU took effect, a local newspaper reported that most of the FACT members, including its 4 president, had not seen the letter before it was sent; that Commissioner Smith had continued to discuss his arguments with Mr. Smariga after the FACT meeting ended; that two of FACT’s directors drafted the letter at Commissioner Smith’s request; that Commissioner Smith said that he had seen a draft version of the letter; and that the members of FACT did not vote on the correspondence or discuss its contents as a group.

At about the same time, FACT submitted a second letter in which it backed away from the earlier letter, labelling it “public comment” that was “not to be considered evidence.” RALE and others filed a petition for judicial review of the approval of the PUD. In one argument in support of its petition, RALE pointed to some of the reported irregularities surrounding the FACT letter. In addition, RALE subpoenaed Commissioner Smith, Mr. Proffitt (the signatory of the FACT letter), and Ronald Burns (the County’s traffic engineer) to testify at the hearing on the petition. The County and the Developers moved to quash the subpoenas.

At a hearing on the motion to quash on January 26, 2015, RALE argued that under Public Service Comm’n v. Patuxent Valley Conservation League, 300 Md. 200, 214 (1984), it may take testimony about an administrative decisionmaker’s mental processes if it can make a strong showing of fraud or extreme circumstances that occurred outside the scope of the administrative record. RALE also argued, among other things, that Commissioner Smith had “orchestrated” the creation of the FACT letter – i.e., that he had participated in the creation of evidence in an administrative proceeding in which he was one of the quasi-judicial decisionmakers. In an order dated January 27, 2015, the circuit 5 court granted the motion to quash the subpoenas on Mr. Proffitt and Mr. Burns, but denied the motion to quash the subpoena on Commissioner Smith. The County, the Developers, and Commissioner Smith moved the court to reconsider the order denying the motion to quash, while RALE moved the court to remand the case to the newly constituted Frederick County Council.1 In support of its motion to remand, RALE relied on Md. Code (2014), §§ 5-857 to -862 of the General Provisions Article (“GP”), the special provisions for Frederick County in the Maryland Public Ethics Law.

In particular, RALE argued that Commissioner Smith had engaged in undisclosed ex parte communications concerning the Developers’ application, in violation of GP § 5-859(b).2 Consequently, RALE argued, the court was required to “remand the case to the governing body for reconsideration.” GP § 5-862(b). After a hearing on March 10, 2015, the circuit court issued an order in which it remanded the Developers’ application and the related approvals to the County Council. The court based its order on the following findings: 1 Frederick County became a charter county, with a County Executive and a County Council rather than a Board of County Commissioners, on December 1, 2014. 2 At the time of the communication, the governing statute was actually Md. Code (1984, 2009 Repl. Vol.), § 15-855(b) of the State Government Article, which provided that “[a] Board member who communicates ex parte with an individual concerning a pending application during the pendency of the application shall file with the County Manager a separate disclosure for each communication within the later of 7 days after the communication was made or received.” As of December 1, 2014, the prohibition on certain undisclosed ex parte communications, and other, related measures pertaining to Frederick County, were transferred without substantive change to the General Provisions Article.

Because the Frederick County Council has now replaced the Board of County Commissioners, GP § 5-859(b) currently requires “[a] member of the governing body” to disclose certain ex parte communications. 6 1) That Commissioner Smith attended the April 14, 2014 FACT Committee meeting; 2) That Commissioner Smith commented on [the Developers’] pending zoning application, as reflected in the April 14, 2014 FACT Committee Meeting Minutes; 3) That [GP § 5-859(b)] states: “A member of the governing body who communicates ex parte with an individual concerning a pending application during the pendency of the application shall file with the Chief Administrative Officer a separate disclosure for each communication within the later of 7 days after the communication was made or received,” and therefore requires disclosure of such communications; 4) That pursuant to the Public Ethics 2014 Annual Report to the Frederick County Ethics Commission, wherein the [Board of County Commissioners] discloses ex parte communications, Commissioner Smith’s comments were not disclosed; 5) That the FACT committee incorporated the information from Commissioner Smith into its April 23, 2014 letter to the [Board of County Commissioners]; 6) That the FACT letter was presented to the Commissioners with the intent to influence the pending vote; 7) That the FACT letter was read into the record at the end of testimony by [Board of County Commissioners] President, Blaine Young, which is highly suggestive that the [Board] relied on it. The court went on to say that it could not make a judgment about whether the record supported the decision to approve the PUD, because the FACT letter, its timing, and the potential that the Board members had relied on it “form[ed] an integral part of the record.” The court remanded the matter to the County Council, as the successor to the Board of County Commissioners, “for further proceedings, including testimony, to resolve the issues raised in [its] Opinion.” At the same time, the court quashed the 7 subpoena on Commissioner Smith, presumably because no further circuit court proceedings were in the offing. The court did not dismiss the case.3 On remand, the Council asked former Commissioners Smith, Young, and Gray to submit affidavits regarding “their position on the significance of the FACT correspondence on the case.” Commissioner Gray, who cast the sole vote against the application in 2014, wrote that the letter “with the letterhead of FACT had no affect [sic] on [his] vote” and that “[i]ts source was suspect and its validity in question.” Commissioner Young, on the other hand, stated that he would have voted to approve the application even if the FACT letter had not been introduced. Similarly, the two councilmembers who had also been County Commissioners in 2014 told their new colleagues that the FACT letter did not affect their decision.

Commissioner Smith declined the Council’s request that he submit an affidavit concerning the significance of the FACT letter. Citing the threat of criminal 3 In its brief, RALE points out that at a hearing on May 29, 2014, when the Board of County Commissioners signed the rezoning approval for the Monrovia Town Center site, Commissioner Smith publicly acknowledged that he “did request” that FACT “weigh in on this” and that he “was glad they did.” At another point, the Commissioner stated: “[C]omments were made at the hearing of how important the letter was, and I was glad that it was there, and I requested it.” The hearing of May 29, 2014, including Commissioner Smith’s comments, was recorded on video and is available on Frederick County’s website. See https://frederick.granicus.com/MediaPlayer.php?view_id=8&clip _id=4363 (beginning at 44:24). For reasons that are not apparent, no one appears to have informed the circuit court of Commissioner Smith’s public admission that he asked FACT, or a FACT representative, to create “important” evidence in a case in which he himself was one of the decisionmakers.

The proceedings of the Board of County Commissioners are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Md. Rule 5-201(b)(2). Consequently, we can and do take judicial notice of Commissioner Smith’s public comments about the origins of the FACT letter. 8 prosecution,4 Commissioner Smith instead submitted a five-page letter in which he refrained from denying any of the factual allegations concerning the provenance of the FACT letter, but argued that a restriction on ex parte communications by a quasi-judicial decisionmaker would violate his First Amendment rights. Commissioner Smith proceeded to address, at some length, other issues that the Council had not asked him to address. The Council held two public hearings in June 2015.

In connection with the hearings, the Council received lengthy written submissions from RALE and from the attorneys for the Developers. Additionally, the Council heard from members of the public, some of whom reiterated the published reports that former Commissioner Smith had asked one or two of the FACT directors to submit the letter on FACT’s behalf and that the directors of FACT had not authorized the letter (notwithstanding the representation by the Board President at the hearing at which the PUD was approved). Perhaps because of limitations on the Council’s subpoena power,5 it did not compel testimony from Commissioner Smith, Mr. Smariga, Mr. Proffitt, FACT’s president, or 4 Under GP § 5-862(b)(1), a knowing and willful violation of the restriction on ex parte communications is a misdemeanor. 5 Section 211 of the Frederick County Charter states that, in investigating “the affairs of the County and the conduct and performance of any Agency,” the Council may issue a subpoena “to any current County employee, County agency or department, or contractor doing business with the County upon the affirmative vote of at least six council members.” Assuming that the remand entailed an investigation of “the affairs of the County,” the Council still could not issue a subpoena without the approval of a supermajority of its members (six of seven). Even then, it appears that the Council could issue a subpoena only to current employees, agencies, or departments, or to contractors doing business with the County. 9 other persons who might have personal knowledge of how the FACT letter came about.

None of those persons came forward voluntarily to explain how Commissioner Smith’s arguments coincidentally reappeared in a letter that was presented as FACT’s opinion, or to explain why FACT backed away from that characterization after the PUD was approved.6 On September 1, 2015, Councilmember Keegan-Ayer “moved to send the entire matter back to the Frederick County Planning Commission (PC) to begin again, because at this time it is not possible to reconcile the affidavits and statements made and submitting to the Council with respect to [the FACT letter] and its alleged influence on the previous Board of County Commissioners’ decision with the actions, statements, and behavior surrounding the letter; its inception; its creation; its phraseology; its timing and its introduction and handling once it was introduced[.]” The motion envisioned that the Planning Commission would report back in six months or less and that, if possible, the Developers’ fees would be waived. The motion passed by a vote of 4-3. The Developers declined to begin the process anew and to return to the Planning Commission, contending that they had vested rights in the prior approvals. Consequently, on February 7, 2017, the County Council, in a 4-3 vote, adopted what it 6 Again, no one appears to have informed the County Council of Commissioner Smith’s public acknowledgement, at a meeting of the Board of County Commissioners on May 29, 2014, that he “did request” that FACT “weigh in on” the Developers’ application and that he “was glad they did.” See supra n.3.

The two councilmembers who had been Commissioners in 2014 would, however, have witnessed Commissioner Smith’s acknowledgment. 10 called its “Post Remand Conclusions.” The substantive portion of the resolution began with the following conclusions: Other than the statements submitted by the former County Commissioners, the testimony and exhibits presented to the County Council during the hearings were consistent with [the circuit court’s] findings regarding former Commissioner Smith’s ex parte activities: attending the April 14, 2014, Frederick Area Committee for Transportation (FACT) Committee meeting; commenting during that meeting about the [Monrovia Town Center] pending applications; [and] failing to disclose those ex parte communications as required by law; which led to the preparation of the FACT letter dated April 23, 2014, and its presentation to the Board of County Commissioners (BOCC) near the conclusion of its hearing with the intention to influence the upcoming vote; [and] the reading into the record of the letter by the then Board President at the end of the testimony. The Council also concluded that “[t]he aggregate of information reveals extreme irregularity surrounding the FACT letter.” In support of that conclusion, the Council cited “the timing of its presentation,” its “handling by the BOCC President during the hearing, and the emphasis placed on this ‘last minute’ document during the applicant’s rebuttal” case. The Council added that at the time of the hearing “the FACT committee had been viewed as knowledgeable and influential in the area of Frederick County transportation matters.” But although “[i]t was represented by the BOCC President during the hearing that the whole FACT committee had approved the letter,” it was later “revealed that the FACT letter had been generated by only two of the Committee members, one of whose son and former company represented and performed services for the [Monrovia Town Center] applicants before and during the BOCC hearings.” Furthermore, the Council observed that Commissioner Smith “did not testify during the Council hearings nor did he submit sworn testimony,” as he had been requested to do. 11 For purposes of determining how to proceed on remand, the Council remarked that the testimony “revealed additional inconsistencies and irregularities relating to the crucial issue of the adequacy of the transportation network in the area.” County law, the Council wrote, requires findings on that issue. Because the Developers had declined to return to the Planning Commission and had said that they would oppose any effort to reconsider the approval of the PUD, the DRRA, and the APFO LOU, the Council concluded that it had “done what it can to fully comply with the Remand Order.” It asked the circuit court to “take such action as it deems necessary and appropriate so that the County Council may rehear the [Monrovia Town Center] application.”7 After hearing legal argument, the circuit court issued an order on September 29, 2017, in which it vacated the approval of the PUD and the two agreements whose viability depended upon the PUD – the DRRA and the APFO LOU.

In the accompanying opinion, the court found, again, that Commissioner Smith had engaged in an undisclosed ex parte communication, in violation of § 5-859(b). “[B]ecause of its timing,” the court wrote, the ex parte communication was “deceitful to the Government 7 In their brief, the Developers argue that the County lacks standing to participate in an action for judicial review of a determination by its quasi-judicial decisionmakers. The Developers, however, do not appear to have raised that objection when the County asked the circuit court to vacate the PUD and to require to the Developers to return to the Planning Commission. In any event, in the unusual procedural posture of this case, in which the County Council on remand was unable to enforce its determination that the Developers should begin the process anew, the County was effectively required to intervene in the proceedings in order to ask the court to end the administrative stand-off. 12 as well as the public.” In the court’s view, the Commissioner’s “breach of ethics” could “not be overlooked.” The court concluded that the FACT letter, which was engendered by the ex parte communication, was a substantial factor in the approval of the PUD: In analyzing the FACT letter’s significance, it is necessary to discuss the mission of FACT as well as the contents and timing of the letter. FACT is devoted to advocating for major transportation issues in Frederick County.

FACT’s opinion is relied upon by various governing bodies in Frederick County, including the Board of Commissioners[,] as a neutral, unbiased agency. Commissioner Smith inserted his opinion into FACT’s decision making process and subsequently failed to disclose his involvement. FACT’s use of Commissioner Smith’s opinion without attribution tainted its assessment. Furthermore, transportation concerns remained a major issue during various meetings pending approval of the [PUD].

The FACT letter, as read into the Board of Commissioners’ hearing record, addresses the potential traffic issues. The letter also argues [for] the ‘large benefits from the approval of the [PUD].” By citing only positive outcomes of approval of the project, the FACT letter was introduced to sway the Commissioners’ votes toward approval of the project and dissuade the community’s fears of the pending project.[8] The court added that the timing of the letter “increase[d] its propensity to influence a Commissioner’s vote.” “[T]he lack of attribution in the FACT letter,” the court said again, “was intended to deceive not only members of the Board but the public at large.” “The deception surrounding the FACT letter,” the court wrote, “is not remedied by [the] two affidavits” from the former Commissioners. Because the record remained incomplete even after the remand, the court could not definitively assess the true impact of the FACT letter. Thus, finding itself unable to 8 The context suggests that the court may have meant that the letter was introduced to “allay” or “assuage” the community’s fears. 13 determine whether the commissioners had acted properly in approving the PUD, the court relied on People’s Counsel for Baltimore Cnty. v. Country Ridge Shopping Center, 144 Md. App. 580, 593 (2002), for the proposition that, it “should remand to the agency for further proceedings.” The Developers opposed a remand that would require them to begin the application process again before the Planning Commission.

They argued that they had vested rights in the DRRA. The court rejected that argument, reasoning that the governing body’s violation of the rules of ethics in GP § 5-859 “prevents the enforcement of the DRRA.” In an accompanying order, the court remanded the case to the County Council and vacated the PUD, the DRRA, and the APFO LOU. The Developers appealed, as did Commissioner Smith.9 9 It is unclear how Commissioner Smith has the right to be heard in this appeal. In the court below, the action for judicial review entailed RALE’s challenge to the approval of the PUD and, after the County Council’s decision on remand, its request that the court take such action as it deemed necessary and appropriate to permit the Council to re-hear the application.

Commissioner Smith was never a party to any facet of that proceeding, except in regard to his ultimately successful effort to quash a subpoena for his testimony (which is not a point he argues in his brief in this Court). Nonetheless, neither RALE nor the County have challenged Commissioner Smith’s right to file a brief. Nor did they notice that he failed to file a notice of appeal until November 6, 2017, 34 days after the entry of the final judgment. See Rosales v. State, 463 Md. 552, 568 (2019) (holding that Rule 8-202(a)’s 30-day deadline for noting an appeal is not jurisdictional and that an appellee may waive the right to object to an untimely notice of appeal).

In fact, the County appears to have taken advantage of Commissioner Smith’s appeal to file two briefs and thus to exceed the number of words that would otherwise be allotted to it under Rule 8-503(d). In these circumstances, we shall consider the Commissioner’s arguments as if they were those of an amicus. 14 QUESTIONS PRESENTED The Developers present two questions, which we have rephrased slightly for concision: 1. Did the circuit court err in finding that Commissioner Smith’s appearance at a public meeting was an ex parte communication that had to be noted on a log pursuant to GP § 5-859(b)? 2. On petitions for judicial review, did the circuit court err in failing to consider the entirety of the record?10 Commissioner Smith presents three questions, which we have also rephrased for concision: 1.

Did § 5-859 require Commissioner Smith to file a disclosure of public statements made at a public meeting before a quasi-public organization at County headquarters? 2. Does § 5-859, as applied by the circuit court, violate Commissioner Smith’s First Amendment rights? 3. Did the circuit court erroneously conclude that Commissioner Smith’s conduct constituted “extreme circumstances”?11 10 The Developers formulated their questions as follows: I. Whether the circuit court erred in finding that Commissioner Smith’s appearance at a public meeting was an ex parte communication that had to be noted on a log pursuant to Maryland Code, General Provisions Section 5-859(b)?

II

Whether, on petitions for judicial review, the circuit court erred in failing to consider the entirety of the record? 11 Commissioner Smith formulated his questions as follows: I. Whether Section 5-859 required Commissioner Smith to file a disclosure of public statements made at a public meeting before a quasi-public organization at County headquarters? 15 For the reasons discussed below, we see no error or abuse of discretion. Consequently, we shall affirm the judgment below. DISCUSSION I. Did Commissioner Smith Engage in an Ex Parte Communication? Both the Developers and Commissioner Smith challenge the circuit court’s conclusion that the Commissioner engaged in an ex parte communication that he was required to disclose under GP § 5-859(b).

Their challenge involves a question of statutory interpretation. Whether the circuit court correctly interpreted a statute is a question of law that we review de novo. See Beall v. Holloway-Johnson, 446 Md. 48, 76 (2016). “When we construe a statute, we search for legislative intent.” Bell v. Chance, 460 Md. 28, 53 (2018). “Consideration of the statutory text in context is our primary guide.” Id. “‘Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity.’” Blue v. Prince George’s County, 434 Md. 681, 689 (2013) (quoting Town of Oxford v. Koste, 204 Md. App. 578, 585-86 (2012), aff’d, 431 Md. 14 (2013)) (further citations omitted). Where the words of the statute are clear and II.

Whether, as applied by the Circuit Court, Section 5-859 violates Commissioner Smith’s First Amendment rights?

III

Whether the circuit court erroneously concluded that Commissioner Smith’s conduct constituted “extreme circumstances.” 16 unambiguous, there usually is no need to go further in construing it. See, e.g., Harris v. State, 331 Md. 137, 145-46 (1993). At various points, the Developers argue that the circuit court erroneously interpreted § 5-859(b) to mean that Commissioner Smith engaged in an ex parte communication merely because he attended the FACT meeting. We disagree that the court read the statute so broadly.

In ordering the initial remand, the court observed that Commissioner Smith not only attended the meeting, but also that he “commented” on the pending application; that his comments somehow found their way into the FACT letter, which was presented to the Commissioners “with the intent to influence the pending votes”; that he did not disclose that his comments had engendered the FACT letter; and that the Board’s President read the letter into evidence at the end of the testimony, which suggested that the Board relied upon it. Moreover, in vacating the PUD approval and the related approvals, the court specifically stated that it did not take issue with Commissioner Smith’s mere attendance at the meeting or his participation in it. The court did not confuse “attendance” with “communication.” In a variant on the Developers’ argument, Commissioner Smith asserts that he could not have engaged in an ex parte communication at the FACT meeting, because the meeting was open to the public. We disagree.

Commissioner Smith’s communications with FACT were ex parte because they concerned a pending quasi-judicial proceeding in which he was one of the decisionmakers, but were not part of the record of that proceeding. See 5 U.S.C. § 551 (14) (generally defining the term “ex parte communication,” in the Administrative Procedure Act, to mean “an oral or written 17 communication not on the public record with respect to which reasonable prior notice to all parties is not given”). The Developers’ adversaries had no notice that Commissioner Smith would use the meeting as an opportunity to express his views about the proceeding and, one can infer, to elicit support from FACT. The Developers’ adversaries certainly had no notice that the Commissioner’s views would reappear in a letter on FACT letterhead, which came into evidence in the proceeding itself.

On the other hand, at least one member of FACT was associated with the Developers. In these circumstances, the public nature of the proceeding did not absolve Commissioner Smith’s communications of their ex parte character. Commissioner Smith cites cases from other jurisdictions, which, he says, stand for the proposition that statements at a public meeting are not ex parte communications. The cases do not support that proposition.

In North v. United States Dep’t of Justice, 17 F. Supp. 3d 1, 3-4 (D.D.C. 2013), the court reached the uncontroversial conclusion that it itself did not engage in an ex parte communication when it issued a public order directing one party to address flaws or deficiencies in its filings. In Citizens of the State of Florida v. Wilson, 569 So.2d 1268, 1269 (Fla. 1990), the court held that, when an agency’s staff members made recommendations at a public hearing before the very agency that was charged with deciding an administrative proceeding, they did not violate a statutory prohibition on engaging in ex parte communications with a hearing officer about a recommended order. Finally, in City of Hollywood v. Hakanson, 866 So.2d 106, 107 (Fla. Dist.

Ct. App. 2004), the court held that an administrative decisionmaker did not have a statutory duty to disclose ex parte communications merely because he had 18 attended a public meeting at which a participant had made critical comment about the plaintiff. These cases do not exempt a quasi-judicial decisionmaker from a restriction on ex parte communications when he initiates a discussion with persons interested in a proceeding before him, outside the record of the proceeding itself, and his comments reappear (without attribution) in a document that is submitted as evidence in the case