Sugarloaf Citizens Ass'n, Inc. v. Gudis

• Decision Date: 01 September 1988
• Docket Number: No. 986,986
• Citation: Sugarloaf Citizens Ass'n, Inc. v. Gudis, 554 A.2d 434, 78 Md.App. 550 (Md. App. 1988)
• Parties: SUGARLOAF CITIZENS ASSOCIATION, INC., et al. v. Michael GUDIS, et al. ,
• Court: Court of Special Appeals of Maryland

Page 550

78 Md.App. 550

554 A.2d 434

SUGARLOAF CITIZENS ASSOCIATION, INC., et al. v. Michael GUDIS, et al.

No. 986, Sept. Term, 1988.

Court of Special Appeals of Maryland.

March 6, 1989.

Ralph Gordon (Gordon & Simmons, on the brief), Frederick, for appellants.

Marc P. Hansen, S. Asst. Co. Atty. (Clyde H. Sorrell, Co. Atty. and Daniel P. Rigternik, Asst. Co. Atty., on the brief), Rockville, for appellees.

Argued before ALPERT, KARWACKI and POLLITT, JJ.

ALPERT, Judge.

We are called upon to decide whether a vote cast in alleged breach of the Montgomery County Ethics Code can cause the abrogation of legislation which was the subject of that controversial vote. The Sugarloaf Citizens Association, Lynn Lipp, and Beverly Thomas (hereinafter referred to collectively as "Sugarloaf"), appellants, filed an amended complaint against the County Council of Montgomery County and Michael Gudis, an individual county council member, in the Circuit Court for Montgomery County. This case is before us as a result of an order by the circuit court granting appellee's motion to dismiss the amended complaint. We affirm, although we do not reach the substantive issues decided by the lower court.

FACTS

Sugarloaf's complaint alleges that Montgomery County Council Resolution 11-382, promulgated to implement an earlier vote to site a resource recovery facility (RRF) near Potomac Electric Power Company ("PEPCO") property at Dickerson in Montgomery County, should be rendered void under section 19A-22(b) of the Montgomery County Code. According to Sugarloaf, the preliminary vote in the County Council to choose between two possible sites for the facility resulted in a 4-3 vote in favor of the Dickerson site. Gudis, who voted in favor of the Dickerson site, owns stock in PEPCO. Sugarloaf contends that such a siting decision will result in the county's purchase or lease of PEPCO property, as well as require the use of PEPCO railroad facilities and electrical power generated by PEPCO. Sugarloaf argues that Gudis' vote violated section 19A-7 of the Montgomery County Code because of a conflict of interest between Gudis' stock ownership of PEPCO and his position as a county councilmember.

The appellees launched a multi-faceted attack on Sugarloaf's complaint, alleging that Sugarloaf had no standing to sue under section 19A-22(b), that Gudis voted pursuant to a valid waiver under section 19A-6, that Sugarloaf had not exhausted its administrative remedies, and that Gudis' vote, even if invalid, had no effect on the adoption of the challenged resolution. The circuit court granted the County Council's motion to dismiss the complaint on the basis that the waiver issued by the Montgomery County Ethics Commission was valid. On appeal, appellees further argue that the appeal should be dismissed because the point is now moot.

MOOTNESS

Appellees argue that Sugarloaf's appeal should be dismissed pursuant to Maryland Rule 8-602(a)(10) because the County Council subsequently voted 5-2 to approve a notice of intent to proceed with construction forwarded to it by the Northeast Maryland Waste Disposal Authority (NEA). The thrust of appellees' argument is that the 5-2 vote reaffirmed Council Resolution 11-382, and because "Gudis' vote is clearly no longer necessary to support the Council's decision to site the RRF at Dickerson," the issue is moot.

Without examining the validity of appellees' premise that an individual's vote rendered invalid due to a conflict of interest will not void the action taken unless that person's vote was a necessary ingredient to the majority vote to take such action, see Murach v. Planning & Zoning Comm'n, 196 Conn. 192, 491 A.2d 1058 (1985); Waikiki Resort Hotel v. City of Honolulu, 63 Haw. 222, 624 P.2d 1353 (1981); Anderson v. City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972); Singewald v. Minneapolis Gas Co., 274 Minn. 556, 142 N.W.2d 739 (1966), we hold that the issue has not been rendered moot.

A moot question has been defined as one where "there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." City of College Park v. Cotter, 309 Md. 573, 580, 525 A.2d 1059 (1987); Attorney General v. Anne Arundel County School Bus Contractors Ass'n, 286 Md. 324, 327, 407 A.2d 749 (1979). The primary flaw in appellees' reasoning is their failure to consider that the vote on the notice of intent to begin building would be rendered a nullity if this court were to rule in Sugarloaf's favor as to the validity of Resolution 11-382. The Council's notice of intent vote to allow NEA to proceed with construction at Dickerson is wholly dependent on the vote siting the proposed RRF at Dickerson and the subsequent resolution. Further, the purposes of the two votes are different. Unlike the siting vote, the notice of intent vote was not intended to determine or redetermine siting for the resource recovery facility. The vote was merely a necessary subsequent procedural step towards implementation of the Council's plan pursuant to Resolution 11-382 to build an RRF at Dickerson. ¹ We will not presume that the Council would subsequently proceed in the same manner and reach the same conclusions by the same vote if we were to declare the siting vote and, consequently, Resolution 11-382, void. See Hayman v. St. Martin's Evangelical Lutheran Church, 227 Md. 338, 343, 176 A.2d 772 (1962). Therefore, Sugarloaf's contentions are clearly not rendered moot by the subsequent notice of intent vote.

Standing

Examining Sugarloaf's complaint, it is clear to us that the genesis for its cause of action is the Montgomery County Ethics Law. ² In its complaint, Sugarloaf cites to section 19A-1-2(b) as its authority in seeking to have the siting vote and Resolution 11-382 (in part incorporating the siting vote) rendered void because of the alleged conflict of interest.

The current Montgomery County Public Ethics Law was enacted in 1983 pursuant to chapter 513 of the Maryland Public Ethics Law, which required the local counties to adopt "similar" conflict of interest provisions. See Md.Ann. Code art. 40A, § 6-101(a), (b) (1986). The provision upon which Sugarloaf's standing for the present suit rests is § 19A-22. In pertinent part, § 19A-22 provides:

Petition for injunctive or other relief; cease and desist orders; voiding official actions.

(a) Upon direction by the commission or at the initiative of the county attorney, the county attorney may file a petition for injunction or any other appropriate relief in the circuit court for Montgomery County, or in any other court having proper venue, for the purpose of requiring compliance with the provisions of this chapter.

(b) In addition, the court may issue an order to cease and desist from the violation, and can void an official action taken by an official or employee with a conflict of interest prohibited by this chapter when the action arose from or concerned the subject matter of the conflict and the legal action was brought within ninety (90) days of the occurrence of the official action, if the court deems voiding the action to be in the best of interest of the public.

Id., § 19A-22(a), (b) (emphasis added). Subsection (a) provides that the county attorney may file a petition for injunctive relief. Subsection (b) sets forth the remedies available to the court in addition to granting an injunction; one possible remedy is voiding the "official action taken." Neither subsection expressly provides for a private cause of action.

The question then becomes whether the Montgomery County Public Ethics Law, specifically § 19A-22(b), gives rise to an implied right of private action. Although our examination of Maryland case law reveals a dearth of concrete analysis in this regard, the issue has repeatedly arisen in the Supreme Court under various federal statutes. The primary focus in resolving such a question is the legislative intent. Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 535-36, 104 S.Ct. 831, 838, 78 L.Ed.2d 645; Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378, 102 S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n 453 U.S. 1, 13, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981). In determining legislative intent, various factors are examined:

including the legislative history and purposes of the statute, the identity of the class for whose particular benefit the statute was passed, the existence of express statutory remedies to serve the legislative purpose, and the traditional role of the states in affording the relief claimed. ³

Daily Income Fund, Inc., supra, 464 U.S. at 536, 104 S.Ct. at 838. We set out to examine these factors to ascertain the legislative intent behind § 19A-22(b).

Legislative History

As may be expected, the legislative history behind this county enactment is sketchy. Our examination reveals that the only discussion of whether the ethics law should contain a private cause of action came up in the context of § 19A-24. (Legislative Session, 7-2-82, p. 4010-11). That section provides that a county taxpayer may initiate an action on behalf of the county to recover the value of anything received by a person for violating the county ethics laws, provided that written demand is made to the county and it fails to initiate suit within sixty days thereafter. The remainder of the legislative history is silent in regard to implied private rights of action.

Where the legislative history does not indicate any discussion whatsoever as to whether a statute gives rise to such a right, the fact that the ordinance is silent would weigh heavily against an intent by the council to create a private cause of action. See Touche Ross & Co. v. Redington, 442 U.S. 560, 576, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979), where the court held:

[T]he legislative history of the 1934 Act simply does not speak to the issue of private remedies under § 17(a)....