Carroll County Ethics Commission v. Lennon

SONNER, Judge. After an investigation and an administrative hearing, appellant, the Carroll County Ethics Commission (Ethics Commission), determined that appellee, attorney Robert H. Lennon, violated provisions of the Carroll County Ethics Ordinance when he represented clients who had business before the county agency of which he was a member. Appellee then filed a complaint for injunctive and declaratory relief in the Circuit Court for Carroll County, claiming, among other things, that appellant erred as a matter of law in its interpretation of the Ethics Ordinance. On October 29, 1996, the Circuit Court for Anne Arundel County 1 (Lerner, J.) granted summary judgment in favor of appellant, and dismissed appellee’s claims with prejudice.

On appellee’s motion for reconsideration, however, the court reversed itself and granted summary judgment in favor of Lennon, finding, as a matter of law, that he did not violate the Ethics Ordinance. We must decide three issues in this appeal. 1. Whether the Ethics Commission, an administrative agency, is precluded as a matter of law from appealing the trial court’s ruling. ⁵³ 2. Whether appellee’s voluntary cessation of the challenged conduct and subsequent resignation from the administrative agency render the case moot. 3.

Whether the lower court was legally correct in concluding that appellee did not violate the Ethics Ordinance. With respect to the preliminary issues, we find that a live controversy exists and that the Ethics Commission has standing to maintain the appeal. As to the merits, we find that the lower court erred in concluding that appellee did not violate the Ethics Ordinance and, accordingly, reverse. I. This case addresses a delicate and important issue in the área of conflicts of interest.

Specifically, we are asked to decide when, if ever, it is permissible for an attorney simultaneously to represent a client and serve on a local administrative body, when the client has business before that administrative body. Appellee, Robert Lennon, was a member of the Carroll County Planning and Zoning Commission (Planning Commission) from January 1994 to May 1997. During those same years, Lennon also maintained a private law practice in Carroll County, specializing in the area of real property law. Beginning in late 1994, in his capacity as a private attorney, Lennon represented Samuel and Linda Battaglia (the Battaglias) in connection with a parcel of real property owned by the Battaglias in Carroll County.

Specifically, Lennon prepared an “off-conveyance” application for the Battaglia property. 2 While there is some question as to when the representation ceased, the parties do not dispute that an attorney-client ⁵⁴ relationship existed between Lennon and the Battaglias with respect to the off-conveyance application. Around the same time in 1994, the Battaglias sought to amend the Carroll County Water and Sewerage Master Plan to extend water and sewer service to their property. Although Lennon did not provide any legal services to the Battaglias with respect to the water and sewer request, that request is, nevertheless, an important aspect of the case because it falls under the jurisdiction of the Planning Commission, the agency on which Lennon sat at the time. On December 21, 1994, the Battaglias’ request to extend water service came before the Planning Commission for the first time.

Lennon recused himself from the proceedings and took no part in the consideration of the request. On March 6, 1995, Lennon filed the Battaglias’ off-conveyance application with the Department of Permits and Regulations. The application was approved on March 9, 1995, and in April Lennon prepared the necessary deeds for the Battaglias’ off-conveyance. The key date that eventually gave rise to the Ethics Commission’s inquiry is March 21, 1995, on which the Planning Commission met and voted on the Battaglias’ proposed amendments to the water and sewer plan.

At this meeting, according to the record, Lennon “participated in the discussion of the ... Battaglia plan, moved for approval of the Battaglia plan, and voted to approve the Battaglia plan.” By letter dated April 8, 1996, the Carroll County Ethics Commission notified Lennon that his representation of the Battaglias may have constituted a violation of the Carroll County Ethics Ordinance §§ 3.a, 3.e, and 3.d. The Ethics Commission wrote that it was considering “whether [Lennon’s] legal representation of clients with business before the Planning Commission ... may constitute a violation of [the Ethics Ordinance],” and invited a written response from Lennon. Lennon’s response a month later did not directly address the merits of the Ethics Commission’s inquiry, but rather attacked the validity of the Ethics Ordinance and the ⁵⁵ “lack of substantive or procedural due process” provided for by the Ordinance.

On May 15, 1996, the Ethics Commission heard oral comments from Lennon. On July 10,1996, the Ethics Commission issued a memorandum opinion, finding that Lennon violated §§ 3.c and 3.d of the Carroll County Ethics Ordinance by handling the Battaglias’ off-conveyance application while the Battaglias’ water and sewer request was before the Planning Commission, and by handling off-conveyance applications for the Battaglias and other clients. The ethics law provides, in pertinent part: SECTION 3 CONFLICTS OF INTEREST Carroll County officials and employees who are subject to this Ordinance shall not: * * * $ c. be employed by a business entity that: has or is negotiating a contract of more than $3,500.00 with the County or is regulated by their agency; except as exempted by this Commission pursuant to Section 6 of this Ordinance. d. hold any outside employment relationship that would impair impartiality or independence of judgment. The Ethics Commission found that “Mr. Lennon, as a private attorney, was clearly employed by the Battaglias and the Battaglias, insofar as the extension of water service to their property is concerned, were regulated by the Commission of which Mr. Lennon is a member.” In addition, the Ethics Commission found that Lennon’s handling of off-conveyance applications for the Battaglias and a “number of [other] clients,” while not as “blatant” as his involvement in the Battaglias’ water and sewerage proposal, “nevertheless constitute^] outside employment in violation of § 3.c____” In reaching the second finding, the Ethics Commission reasoned that, although off-conveyance applications are initially filed with the Bureau of Development Review, rather than the Planning Commission, “records reflect that off-conveyance ⁵⁶ applications do occasionally give rise to issues which are determined by the Planning & Zoning Commission.” The Ethics Commission added: The fact that a particular application for an off-conveyance is not likely to come before the Planning Commission does not negate the fact that the applicant is regulated by the agency of which Mr. Lennon is a member.

Moreover, the fact that the application is considered in the first instance by the Bureau of Development Review does not change the authority of the Planning Commission over the issue. The Ethics Commission directed Lennon to refrain from any such representation in the future, but took no further action. Later that month, however, the Carroll County Commissioners held a hearing concerning Lennon’s conduct in which they determined that Lennon’s actions constituted “malfeasance in office” and removed Lennon from the Planning Commission. Lennon then brought an action against the Ethics Commission and the County Commissioners in the Circuit Court for Carroll County, which was later transferred to the Circuit Court for Anne Arundel County.

The Ethics Commission moved to dismiss Lennon’s suit. The trial court granted the Ethics Commission’s motion, and dismissed Lennon’s claims with prejudice. Lennon then filed a motion to amend the judgment of the trial court, which the court granted in November 1996. The court heard argument on the merits and granted summary judgment in favor of Lennon, thereby reversing the Ethics Commission’s finding that Lennon violated the Ethics Ordinance.

The trial court granted Lennon declaratory relief, finding “no violation of Carroll County Ethics Law No. 37,” and enjoined the County Commissioners from “interfering with [Lennon’s] duties as a member of the Planning Commission of Carroll County for the balance of his term.” Lennon subsequently resigned from the Planning Commission on May 20, 1997. The Ethics Commission noted this appeal. 3 We must first decide whether a live controversy ⁵⁷ still exists and, if so, whether the Ethics Commission is entitled to appeal the trial court’s ruling.

II

Lennon first argues that the appeal should be dismissed because the case is now moot. Specifically, Lennon says that the assurance he made to the Carroll County Commissioners to “refrain from such outside employment in the future,” coupled with his subsequent resignation from the Planning Commission, moots the original controversy between the parties. Appeals may indeed be dismissed for mootness under Md. Rule 8-602(a)(10). The Court of Appeals has articulated the test for mootness as whether “a case presents a controversy between the parties for which, by way of resolution, the court can fashion an effective remedy.” Adkins v. State, 324 Md. 641, 646 , 598 A.2d 194, 197 (1991) (citing Robinson v. Lee, 317 Md. 371, 375 , 564 A.2d 395, 397 (1989)); Attorney General v. Anne Arundel County School Bus Contractors Ass’n, 286 Md. 324, 327 , 407 A.2d 749, 752 (1979).

Unlike the Article III constitutional constraints on the federal courts, however, our mootness doctrine is based entirely on prudential considerations. Reyes v. Prince George’s County, 281 Md. 279, 296-97 , 380 A.2d 12, 22 (1977); See also State v. Peterson, 315 Md. 73, 82 , 553 A.2d 672, 677 (1989) (“[T]here is no constitutional prohibition which bars [our courts] from expressing its views on the merits of a case which becomes moot during appellate proceedings.” (Emphasis added)). As a result, we may decide a case, even though it is moot, “where there is an imperative and manifest urgency to establish a rule of future conduct in matters of important public concern____” Anne Arundel County School Bus, 286 Md. at 328 , 407 A.2d 749 . Moreover, there are other exceptions to the mootness doctrine that allow a court to pass on questions that may, technically, be moot, such as, where one party voluntarily ⁵⁸ withdraws from the challenged conduct.

For the reasons discussed below, we find that a live controversy exists and, therefore, hold that this case is not moot. In arguing that this case is moot, Lennon overlooks the critical distinction between the two remedies he requested in his lawsuit: an injunction and a declaratory judgment. The distinction is obvious in the definitions of the two forms of relief. Injunctive relief is relief “prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury ... [generally it is a preventive and protective remedy, aimed at future acts, and it is not intended to redress past wrongs.” Black’s Law Dictionary 784 (6th ed.1990) (emphasis added).

Declaratory relief, by contrast, is a “remedy for the determination of a justiciable controversy where the plaintiff is in doubt as to his legal rights.” Id. at 409 . The Maryland Uniform Declaratory Judgments Act, Md.Code Ann., Cts. & Jud. Proc., § 3-409(a) (1973), provides that a court may grant a declaratory judgment ... “if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between the parties ... [and] (3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.” Interpreting the Federal Declaratory Judgment Act, 28 U.S.C. § 2201 , the Supreme Court has stated that “different considerations enter into a federal court’s decision as to declaratory relief, on the one hand, and injunctive relief, on the other.” Steffel v. Thompson, 415 U.S. 452, 469 , 94 S.Ct. 1209, 1221 , 39 L.Ed.2d 505 (1974) (quoting Roe v. Wade, 410 U.S. 113, 166 , 93 S.Ct. 705, 733 , 35 L.Ed.2d 147 (1973) (citations omitted) (emphasis in Stejfel )). 4 In light of this difference, the Court noted that, while a resolution between the parties may moot the claim for injunctive relief, ⁵⁹ courts have a “duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.” Zwickler v. Koota, 389 U.S. 241, 254 , 88 S.Ct. 391, 399 , 19 L.Ed.2d 444 (1967); see Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121 , 94 S.Ct. 1694, 1697 , 40 L.Ed.2d 1 (1974). Super Tire involved a labor dispute in which the employers of the striking workers brought an action for injunctive and declaratory relief, claiming that the regulations according benefits to the striking workers were invalid because they interfered with the policy of free collective bargaining.

Before the case was tried, the labor dispute was settled, and the strike ended. The District Court heard the case on the merits, rejecting the mootness claim. The Third Circuit remanded the case to the District Court with instructions to dismiss for mootness. The Supreme Court reversed, holding that, “even though the case for an injunction dissolved with the subsequent settlement of the strike and the strikers’ return to work, the parties to the principal controversy ... may still retain sufficient interests and injury as to justify the award of declaratory relief.” Super Tire, 416 U.S. at 121-22 , 94 S.Ct. at 1698 (emphasis added).

Likewise, in the case at bar, the principal controversy as to whether Lennon’s activities fall within the ambit of the Carroll County Ethics Ordinance is very much “alive” and in need of resolution. There is no doubt that Lennon’s claim for injunctive relief became moot upon Lennon’s resignation from the Planning Commission on May 20, 1997, prior to pur consideration. Lennon could not further violate the Carroll County Ethics Ordinance if he was no longer a member of the Carroll County Planning Commission. Indeed, as between Lennon and the Ethics Commission, the trial court did not even grant injunctive relief because Lennon had already assured the Ethics Commission that he would refrain from the challenged conduct.

In reversing the Ethics Commission’s opinion, however, the trial court granted declaratory relief in favor of Lennon, finding that he did not violate §§ 3.c or 3.d of the Ethics Ordinance. That finding is still very much in dispute. ⁶⁰ Again, the key question is whether, “at the time [the case] is before the court, ... there is [still] an existing controversy between the parties ...,” Anne Arundel School Bus, 286 Md. at 327 , 407 A.2d 749 , and whether the parties continue to assert adverse legal positions in which they maintain a concrete interest. Md.Code Ann., Cts. & Jud. Proc., § 3-409(a)(3).

Plainly, the Ethics Commission has a concrete interest in the resolution of the instant litigation. The Ethics Commission is endowed with the power to “process and make determinations as to complaints filed by any person alleging violations of [the Ethics Ordinance].” Carroll County Ordinance No.37 § 2(c). The Ethics Commission has been aggrieved by the lower court’s decision in this case, particularly since the lower court’s summary reversal of the agency’s decision provides very little in the way of interpretive guidance. We find, therefore, that the Commission’s ability to carry out its statutory obligations would be hampered without the benefit of appellate review.

Moreover, even if we were to find that this case is moot, which we do not, we would decide the issue on the merits because it “involves matters of public importance that are likely to recur if not decided now.” Anne Arundel County Professional Firefighters Association v. Anne Arundel County, 114 Md.App. 446, 455 , 690 A.2d 549, 553 (1997). Although moot cases should be decided only in “rare instances,” Reyes, 281 Md. at 297 , 380 A.2d 12 , this case meets all of the requisites for decision. As the Court of Appeals has consistently held, appellate courts may decide moot cases if the public interest clearly will be hurt if the question is not immediately decided, if the matter involved is likely to recur frequently, and its recurrence will involve a relationship between the government and its citizens, or a duty of government, and upon any recurrence, the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision. Mercy Hospital, Inc. v. Jackson, 306 Md. 556, 563 , 510 A.2d 562, 565 (1986) (quoting Lloyd v. Supervisors of Election, 206 Md. 36, 43 , 111 A.2d 379 (1954)). ⁶¹ We can think of few issues more important than the public’s confidence in government officials.

In ferreting out alleged ethical violations, the Carroll County Ethics Commission performs an essential public function. The issue is perhaps even more acute when it occurs, as in this case, at the local government level, where the government and its citizens have greater contact with one another. Particularly in the smaller counties of our State, attorneys regularly serve on local government agencies in the same jurisdiction in which they practice. Consequently, the question regarding the extent to which attorneys may simultaneously “wear the hat” of both attorney and government official is bound to recur frequently, and attorneys who find themselves in this situation are entitled to know what conduct is in accordance with the statutory provisions.

In addition, as we stated above, the Ethics Commission, whose obligation it is to “process and make determinations as to ... alleg[ed] violations of the [the Ethics Ordinance],” would be disabled in its efforts to carry out its obligation were the lower court’s ruling insulated from appellate review. Finally, we cannot accept Lennon’s argument that his voluntary cessation of the challenged conduct serves to moot the case. If that were so, appellate review could consistently be foreclosed in cases like this as long as the putative violator resigns from his position or even simply promises to refrain from the challenged conduct. Indeed, the Supreme Court has consistently held that “voluntary cessation of a challenged practice does not deprive a [court] of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 , 102 S.Ct. 1070, 1074 , 71 L.Ed.2d 152 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632 , 73 S.Ct. 894, 897 , 97 L.Ed. 1303 (1953). 5 According ⁶² ly, even assuming that the case is moot, we will decide this appeal.

III

The next preliminary issue is whether the Carroll County Ethics Commission is entitled, as a matter of law, to appeal the trial court’s decision. Lennon argues that the Ethics Commission’s enabling statute does not give the Commission the power to appeal and it is “ ‘well established’ in Maryland that an administrative agency acting in a quasi-judicial capacity cannot take an appeal in the absence of statutory authority.” Lennon relies on Board of Zoning Appeals v. McKinney, 174 Md. 551 , 199 A. 540 (1938) and Maryland Board of Pharmacy v. Peco, 234 Md. 200 , 198 A.2d 273 (1964). The Ethics Commission does not dispute that certain quasi-judicial agencies are precluded from taking appeals, but argues that the Ethics Commission, because of its broad executive powers, is not a quasi-judicial agency. We agree with the Ethics Commission and hold, as a matter of law, that it has standing to appeal.

In McKinney, 174 Md. at 558 , 199 A. 540 , the Court found that the Board of Zoning Appeals of Baltimore City was a quasi-judicial agency, existing by virtue of statute, whose primary responsibility was hearing and deciding appeals from the Buildings Engineer. The Court further found that the Board of Zoning Appeals had “no executive duties ... and it formulate[d] no policies.” Id. at 560 , 199 A. 540 . Rather, the Board’s function was “merely to find facts, to apply to those facts rules of law prescribed by the legislature, and to announce the result.” Id. at 560-61 , 199 A. 540 . The Court concluded that since the Board has no interest [in the case] different from that which any judicial or quasi judicial agency would have, which is to decide the cases coming before it fairly and impartially, is in no sense aggrieved by the [lower court’s decision], and has ⁶³ no statutory right of appeal, it had no power to take this appeal, and the appeal must be dismissed.

Id. at 564 , 199 A. 540 . (Emphasis in original). Some twenty-five years later, McKinney was reaffirmed in Maryland Board of Pharmacy v. Peco, 234 Md. 200 , 198 A.2d 273 (1964). There, the Court found that the Maryland Board of Pharmacy, because it merely acted on the pharmacy permit applications submitted before it, was a quasi-judicial agency as defined by McKinney , and thus could not appeal an adverse trial court ruling.

Just one year ago, however, the Court of