Dzurec v. Bd. Of Cty. Comm'rs Calvert Cty.

Susan Dzurec, et al. v. Board of County Commissioners of Calvert County, Maryland, et al., No. 1, September Term, 2022, Opinion by Booth, J. PUBLIC ETHICS LAW—CONFLICTS OF INTEREST—RIGHT TO DECLARATORY RELIEF The Calvert County Ethics Code prohibits local elected officials from participating in matters in which they have a conflict of interest. Petitioners filed a complaint in the Circuit Court for Calvert County seeking a declaratory judgment that the Calvert County Comprehensive Plan was “illegally passed” and was “therefore void” because one member of the Board of County Commissioners of Calvert County had a conflict of interest in the legislation and did not recuse himself. The circuit court granted Calvert County’s motion for summary judgment, which was affirmed by the Appellate Court of Maryland. The Supreme Court of Maryland affirmed the circuit court’s judgment.

The Supreme Court of Maryland held that Petitioners were not entitled to the relief sought. Under Maryland common law, ordinarily courts will not consider the motives of legislators or public officials when undertaking purely legislative acts. The common law principle arises from separation of powers concerns under Article 8 of the Maryland Declaration of Rights. The Supreme Court also rejected the Petitioners’ assertion that the County Commissioners created an implied right of action that would entitle Petitioners to the remedy they sought.

Assuming, without deciding, that the County Commissioners had the legal authority to establish such a right, there was no evidence that the County Commissioners intended to create such a private right of action. Circuit Court for Calvert County Case No.: C-04-CV-19-000574 Argued: September 12, 2022 IN THE SUPREME COURT OF MARYLAND* No. 1 September Term, 2022 SUSAN DZUREC, et al. v. BOARD OF COUNTY COMMISSIONERS OF CALVERT COUNTY, MARYLAND, et al. Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. Opinion by Booth, J. Filed: January 25, 2023 * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this amendment changing the name of the Court of document is authentic. Appeals of Maryland to the Supreme Court of 2023-01-25 10:30-05:00 Maryland.

The name change took effect on December 14, 2022. Gregory Hilton, Clerk In this case, we must determine whether the Petitioners, four Calvert County residents, Susan Dzurec, Myra Gowans, Michael King, and Phyllis Sherkus (collectively, “Dzurec”), may bring an action against the Board of County Commissioners of Calvert County, Maryland (the “County Commissioners” or “Commissioners”) and Calvert County, Maryland (“the County”), seeking a declaratory judgment that the Calvert County Comprehensive Plan was “illegally passed” and is “therefore void” because one of the Commissioners, Kelly D. McConkey, had a conflict of interest in the legislation and did not recuse himself. Dzurec filed her action against the County1 in the Circuit Court for Calvert County, requesting that the circuit court void the Comprehensive Plan in light of Commissioner McConkey’s conflict. Following a hearing, the circuit court granted the County’s motion for summary judgment.

Dzurec filed a timely appeal to the Appellate Court of Maryland (at that time named the Court of Special Appeals of Maryland),2 which affirmed the judgment of the circuit court in an unreported opinion. Dzurec v. Bd. of County Comm’rs, No. 29, Sept. Term, 2021, 2021 WL 6111666 (Dec. 27, 2021). 1 We will collectively refer to the County and the County Commissioners as “the County.” 2 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland. The name change took effect on December 14, 2022. Dzurec petitioned this Court for a writ of certiorari, which we granted to consider the following question:3 Whether the circuit court erred in granting the County’s motion for summary judgment where Dzurec sought a declaratory judgment that the adoption of the Calvert County Comprehensive Plan—a legislative enactment by the County Commissioners—is void because one Commissioner’s vote on the legislative action violated the conflicts of interest provisions of the Calvert County Ethics Code.

For the reasons set forth below, we answer the question “no” and affirm the judgment of the circuit court. I Statutory and Local Law Framework Before we turn to the facts and procedural history in this matter, it is useful to discuss some of the statutes and local laws that form the backdrop for the dispute between the parties—specifically: the Maryland Public Ethics Law,4 which mandates that local governments adopt and enforce local ethics ordinances; the Calvert County Ethics Code that has been adopted pursuant to the requirements under the Maryland Public Ethics Law; 3 The petition requested that we answer the following questions, which we consolidated and rephrased into one question: 1. Whether Commissioner McConkey’s vote to enact the Comprehensive Plan was ultra vires where he voted in violation of the Calvert County Ethics Ordinance, and where that vote was the deciding vote. 2. Whether the Calvert County Ethics Ordinance includes an implied cause of action for citizens with standing. 4 Md. Code (2019 Repl.

Vol., 2022 Supp.), General Provisions (“GP”), Title 5. 2 and the legislative requirements set forth in Title 3 of the Land Use Article,5 which mandate that local governments having planning and zoning authority adopt a comprehensive plan. State Law Requirements for the Establishment of Local Public Ethics Laws The General Assembly has enacted a comprehensive State ethics law, the Maryland Public Ethics Law, which is codified in Maryland Code, Title 5 of the General Provisions (“GP”) Article. The substantive provisions of that law cover three areas—conflicts of interest (subtitle 5), financial disclosure (subtitle 6), and lobbying (subtitle 7). Seipp v. Balt.

City Bd. of Elections, 377 Md. 362 , 364–65 (2003). These “provisions apply to officials and employees of the State government and to persons who engage in lobbying activities with the legislative or executive branches of the State government.” Id. at 365 . Administration of the law is vested in the State Ethics Commission, which is created and provided for in subtitle 2. As this Court explained in Seipp, “[m]any of the substantive provisions in those subtitles deal specifically with or have particular relevance to State agencies and to people who do business with State agencies, thus making their direct application to local governments and officials impractical.” Id.

That said, “[t]he General Assembly clearly desired that local officials and employees be subject to a comparable code[.]” Id. Instead of attempting to legislate a single code of ethics, or separate codes, for the wide variety of county and municipal officials, the Legislature opted to mandate that: (1) each local government enact a local public ethics law to govern the public ethics of local officials relating to conflicts of interest, financial disclosures, and lobbying; and 5 Md. Code (2012 Repl. Vol., 2022 Supp.), Land Use (“LU”), Title 3. 3 (2) the local legislation be similar to the State requirements. Id.; GP §§ 5-807–5-810.

GP § 5-807(a) sets forth the general requirement that each county and municipal corporation “enact provisions to govern the public ethics of local officials relating to: (1) conflicts of interest; (2) financial disclosure; and (3) lobbying.” With respect to conflicts of interest provisions, State law requires that the local ethics law be “similar to the provisions of Subtitle 5” of the Maryland Public Ethics Law, but the local law “may be modified to the extent necessary to make the provisions relevant to the prevention of conflicts of interest in that jurisdiction.” GP § 5-808(a). The General Assembly has delegated to the State Ethics Commission the authority to promulgate regulations and perform oversight of local jurisdictions to ensure that local public ethics laws are consistent with the Maryland Public Ethics Law. GP §§ 5-205, 5-206, 5-812. Specifically, the State Ethics Commission is required to “adopt by regulation model provisions for local governments” on conflicts of interest, financial disclosure, and regulation of lobbying.

GP § 5-205(b)(1). Consistent with this legislative directive, the State Ethics Commission has created two “model local ethics laws”—one as a guide for larger counties and municipalities, and another for smaller counties and municipalities. COMAR 19A.04.04.01–.02. These model local ethics laws serve as a template for local legislation—enabling the legislative body to enact a modified version of the model law that addresses the needs of the particular jurisdiction, while at the same time ensuring that it is “similar to” the Maryland Public Ethics Law.

The model local ethics laws contemplate that the local public ethics law will be enforced at the local level by a local ethics commission established for that 4 purpose. COMAR 19A.04 Appendices A and B. Ultimately, each jurisdiction is required to submit its local public ethics law to the State Public Ethics Commission for its review and approval, thereby ensuring that all local governments comply with the requirements under State law. COMAR 19A.04.03.02B. Calvert County Ethics Ordinance Calvert County’s local public ethics law is codified as Chapter 41 of the Calvert County Code (“Calvert County Ethics Code” or “CCC”).

The Calvert County Ethics Code is, for the most part, substantially the same as the model local ethics laws contained in the regulations promulgated by the State Ethics Commission, except for formatting and nomenclature changes to make it consistent with the County’s particular local government structure. Among other things, the Calvert County Ethics Code: (1) describes the individuals who are subject to its provisions; (2) sets forth conflict of interest, financial disclosure, and lobbying requirements; and (3) establishes the Calvert County Ethics Commission (“Ethics Commission”), including its powers and duties. The Calvert County Ethics Code establishes a process for the investigation and enforcement of complaints alleging a violation of its provisions. Specifically, a complainant who believes that an individual has violated the Calvert County Ethics Code may file a complaint with the Ethics Commission.

CCC § 41-12.A. The Ethics Commission has the authority to investigate the complaint and to conduct an adjudicatory hearing to determine whether a violation has occurred. CCC § 41-12.C. The Code describes the Ethics Commission’s enforcement authority as follows: Based upon the evidence submitted to the Commission, the Commission has 5 the authority to do one or more of the following: (1) Dismiss the complaint; (2) Issue a cease-and-desist order and/or a recommendation for corrective action; (3) Issue a reprimand or censure; (4) Recommend disciplinary action; and (5) Make written findings of fact and conclusions based on the evidence. The Commission shall send its written findings to the complainant and the respondent. An ethics violation does not exist until a determination of a violation is made by the Commission.

CCC § 41-12.G. In addition, if the Ethics Commission finds, when considering a complaint, “that there are reasonable grounds to believe that the respondent may have committed a criminal offense, the Commission shall promptly refer the matter to an appropriate prosecuting authority.” CCC § 41-12.I. A person who is the subject of a decision or action by the Commission “may seek judicial review of that decision in the Circuit Court for Calvert County in the manner prescribed by” Maryland Rule 7-201, et seq. CCC § 41-12.J. The ethics violation that forms the basis for Dzurec’s complaint in this case arises from the County Commissioners’ adoption of the Calvert County Comprehensive Plan. We turn next to the provisions of State law that govern a local government’s adoption of a comprehensive plan. State Law Requirements for the Adoption of a Comprehensive Plan In Maryland, counties and municipal corporations having planning and zoning authority are required to adopt a “comprehensive plan.” Md. Code (2012 Repl.

Vol., 2022 6 Supp.), Land Use (“LU”) §§ 1-405, 3-101. “Plans are developed to guide the implementation of land use controls and zoning in a rational way that is beneficial to the public.” County Council of Prince George’s County v. Zimmer Dev. Co., 444 Md. 490, 520 (2015) (citations omitted). A comprehensive plan generally applies to a substantial area and is the product of years of long study and public input. Id. at 520–21.

Under State law, the comprehensive plan must include certain elements, including community facilities, land use, sensitive areas, water resources, and transportation elements. See LU §§ 1-406(a), 3-102(a). The preparation of a comprehensive plan is undertaken by the planning commission of the local jurisdiction and presented to the local legislature for adoption. See LU §§ 1-406(a)(1), 1-415(b), 3-102(a), 3-202(a).

The legislative body is required to adopt a comprehensive plan by legislative act. Once a local jurisdiction adopts a comprehensive plan, it may then adopt zoning, development, and subdivision regulations to implement the plan. See LU §§ 1-415(b), 3-303(b). The local jurisdiction is also required to review its comprehensive plan “[a]t least once every 10 years . . . and, if necessary, revise or amend” the plan to ensure that it includes the elements and visions required under State law.

LU §§ 1-416(a), 3-301(a). As we will discuss below, Dzurec contends that the County Commissioners’ adoption of the Calvert County Comprehensive Plan violated the Calvert County Ethics Code and sought a judicial declaration from the circuit court that its adoption was ultra vires and therefore void. 7 II Factual Background Adoption of the Calvert County Comprehensive Plan In 2015, the Calvert County Planning Commission (“Planning Commission”) determined that it was necessary to update the existing Calvert County Comprehensive Plan. Over the course of several years, the Planning Commission held public meetings and workshops, and obtained input from the public, adjoining jurisdictions, and state and local governmental agencies. During these meetings, there was considerable discussion concerning the County’s “Town Centers”—or primary designated growth areas.6 One such designated growth area, known as the “Huntingtown Town Center,” was the subject of discussion and debate.

On April 4, 2019, the Planning Commission adopted a resolution forwarding a new draft of the Calvert County Comprehensive Plan to the County Commissioners. In connection with the preparation of the draft Comprehensive Plan, the Planning 6 The Calvert County Comprehensive Plan describes “Town Centers” as the “county’s primary designated growth areas” and as “areas where [transferable development rights] can be used to increase density to a maximum consistent with the approved Town Center zoning.” The Comprehensive Plan further states that Town Centers are the focus of the county’s commercial and employment activities. These places are designated for the higher intensity and greater variety of commercial and residential development within the plan boundaries. . . . Directing commercial, retail, and housing development to Town Centers is a central element in strengthening economic vitality in Calvert County and an important counterpart to policies designed to preserve the county’s rural land.

In addition, Town Centers are designated as Priority Funding Areas for state funding purposes related to public infrastructure. 8 Commission presented the County Commissioners with two options regarding a potential expansion of the Huntingtown Town Center, which were described as “Option A” and “Option B.” Under Option A, the Huntingtown Town Center would be expanded from its current boundaries to include Huntingtown High School. Under Option B, the Huntingtown Town Center would be expanded to include not only the high school, but also additional properties adjacent to Cox Road along Route 2 and Route 4, consisting of approximately one-fourth of a square mile of additional land. Commissioner McConkey owned real property in the area encompassed by Option B. The County Commissioners conducted public hearings on the Comprehensive Plan in June and July 2019. At a meeting on June 25, 2019, the Commissioners discussed the Plan, including the two options for the expansion of the Huntingtown Town Center.

The Commissioners voted on a motion to adopt and incorporate Option B into the draft Comprehensive Plan. Commissioner McConkey abstained. The remaining Commissioners were equally divided: two voted in favor, and two voted against. The motion failed, and Commissioners tabled the matter for further discussion.

The Commissioners considered Option B once again on August 6, 2019. Commissioner McConkey voted in favor of it. The motion to adopt Option B passed by a 3-2 vote. At the same hearing, the Commissioners voted on Ordinance 24-19—the legislation to adopt the Comprehensive Plan that included Option B. The motion to adopt the Plan passed by a 3-2 vote. 9 Proceedings Before the Calvert County Ethics Commission After the County Commissioners voted to adopt the Comprehensive Plan, the Calvert County Ethics Commission received two complaints from citizens alleging that Commissioner McConkey violated the conflicts of interest provisions of the Calvert County Ethics Code by participating in the Commissioners’ August 6 vote to adopt and incorporate Option B into the draft Comprehensive Plan.

The Ethics Commission scheduled an administrative proceeding to consider the alleged violations. Commissioner McConkey moved to recuse Jennifer Mazur, one of the Ethics Commission members, from participating in the proceeding. The Ethics Commission determined that Ms. Mazur was not required to recuse herself. After an administrative hearing on the matters contained in the complaints, the Ethics Commission found that Commissioner McConkey violated the conflicts of interest provisions of the Calvert County Ethics Code by voting on Option B and the Comprehensive Plan.

The Ethics Commission prepared written findings of fact and conclusions, and a letter titled “Letter of Censure and Cease and Desist,” dated December 15, 2020. The Ethics Commission determined that Commissioner McConkey “improperly participated in a matter in which [he] ha[d] an economic interest or, alternatively, which would have a direct or indirect impact on [him], as distinguished from the public generally.” The Ethics Commission further concluded that Commissioner McConkey was not “required by law to act” in the matter, which would permit him to participate pursuant 10 to CCC § 41-13.A(2)(b) despite the conflict.7 Based upon its finding of the violation of the Calvert County Ethics Code, the December 15 letter advised Commissioner McConkey that the Ethics Commission hereby issues this LETTER OF CENSURE and orders you to CEASE AND DESIST from any further violations of Section 41-13. Pursuant to Section 41-22, should you violate this Cease and Desist order, the Ethics Commission will seek enforcement of the order in the Circuit Court to include a fine or civil penalty of up to $2,500 per violation, as well as other injunctive relief. The Ethics Commission advised Commissioner McConkey of his right to appeal its decision to the Circuit Court for Calvert County in the manner prescribed by Maryland Rule 7-201, et seq.

Thereafter, Commissioner McConkey only sought judicial review of the Ethics Commission’s conclusion that its member, Ms. Mazur, was not required to recuse herself from participating in the administrative proceeding. Commissioner McConkey did not petition for judicial review of the Ethics Commission’s determination that his vote on 7 CCC § 41-13.A(2) permits a person to participate in a matter in certain circumstances where the person would be otherwise disqualified because of a conflict of interest if: (a) The disqualification leaves a body with less than a quorum capable of acting within a reasonable time; (b) The disqualified elected official . . . is required by law to act; or (c) The disqualified elected official . . . is the only person authorized to act. 11 Option B and the Comprehensive Plan violated the conflicts of interest provisions of the Calvert County Ethics Code.8 III Procedural History In December 2019, Dzurec filed a complaint against the County. Thereafter, Dzurec filed a “Second Amended Complaint for Declaratory Judgment,” which is the operative complaint. The complaint alleges that: (1) Commissioner McConkey’s action in voting for Option B and the Comprehensive Plan violated the County’s ethics law9 because he had a material interest in the inclusion of the Huntingtown Town Center expansion; (2) Commissioner McConkey’s vote in violation of the County’s ethics law is therefore illegal; and (3) Commissioner McConkey’s vote provided the necessary majority for 8 During the pendency of this matter, the Appellate Court of Maryland issued its decision in In re McConkey, No. 0954, Sept. Term, 2021, 2022 WL 3446226 (Aug. 17, 2022).

The Appellate Court determined that the Ethics Commission correctly concluded that Ms. Mazur was not required to recuse herself, reversed the circuit court’s determination that her recusal was required, and affirmed the decision of the Ethics Commission. Id. at ⁸–9. This Court denied Commissioner McConkey’s petition for writ of certiorari on December 19, 2022. 9 Dzurec alleges that Commissioner McConkey’s action in voting for Option B and the Comprehensive Plan violated both the Maryland Public Ethics Law, as well as the Calvert County Ethics Code. As discussed supra, the substantive provisions of the Maryland Public Ethics Law do not apply to local government officials.

Instead, local governments are required to adopt their own local ethics laws. See GP § 5-807(a). Additionally, as discussed herein, Commissioner McConkey did not seek judicial review of the Ethics Commission’s determination that his participation in the legislative matters that were the subject to the ethics complaint violated the conflicts of interest provisions of the Calvert County Ethics Code. Given that there was no appeal of that issue, the Ethics Commission’s determination is a final decision. 12 passage of the Comprehensive Plan, “and therefore the Plan would not have been enacted into law but for this refusal to recuse himself.” On this basis, Dzurec sought a “declaration that the Calvert County Comprehensive Plan was illegally passed because its deciding voter should have recused himself, and it is therefore void.”10 In December 2020, the County filed a motion for summary judgment.

After a hearing, the circuit court entered an order under the Maryland Uniform Declaratory Judgments Act, Md. Code (2020 Repl. Vol., 2022 Supp.), Courts and Judicial Proceedings (“CJ”) § 3-401, et seq., declaring, in pertinent part, that the adoption of the Comprehensive Plan “was legally passed and implemented” and denied Dzurec’s requested declaratory relief. Separately, the circuit court entered an order ruling that there was no dispute of material fact and that the County was entitled to judgment as a matter of law. Dzurec filed an appeal to the Appellate Court of Maryland.

On appeal, the Appellate Court considered whether the circuit court erred in determining that the Commissioners legally adopted the Comprehensive Plan despite Commissioner McConkey’s conflict of interest. Dzurec v. Bd. of County Comm’rs, No. 29, Sept. Term, 2021, 2021 WL 6111666 (Dec. 27, 2021). Before that court, Dzurec argued that the Calvert County Ethics Code gives her an implied right of action to seek relief in the form of a declaration that the Comprehensive Plan was void because Commissioner 10 The complaint also included a second count seeking a declaration that the Comprehensive Plan “was illegally implemented because the [Commissioners] did not conform to the requirements of Maryland law regarding notice, amendments, or timely conveyance of the draft plans to state authorities.” The circuit court granted summary judgment in favor of the County, and no appeal was taken from that decision with respect to this count. 13 McConkey’s act in voting for the Plan, given his conflict of interest, constituted an ultra vires act. She asserted that, because the proper remedy under this private right of action was for the circuit court to invalidate any legislation that was passed, the circuit court erred in failing to invalidate the Comprehensive Plan.

The intermediate appellate court rejected Dzurec’s argument and affirmed the circuit court’s judgment. It held that the Calvert County Ethics Code does not create an implied private right of action and that, under the common law, the Comprehensive Plan was not void because a conflict of interest does not make a legislative act ultra vires. Dzurec, 2021 WL 6111666 at ⁴-6. As discussed below, we agree with the Appellate Court and affirm the circuit court’s judgment.

IV Discussion On a review of an order granting summary judgment, we begin our analysis with a “determination of whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.” D’Aoust v. Diamond, 424 Md. 549, 574 (2012) (cleaned up). “If no genuine dispute of material fact exists, this Court determines whether the circuit court correctly entered summary judgment as a matter of law.” Koste v. Town of Oxford, 431 Md. 14, 25 (2013) (cleaned up). “Thus, the standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” Id. (cleaned up). There are no disputes of material fact present in this case. Rather, the parties’ disagreement revolves solely around a question of law—whether Dzurec may seek relief 14 in the form of a declaratory judgment invalidating the