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,

(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,

(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,

(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,

(2016).

“When we construe a statute, we search for legislative intent.” Bell v. Chance,

(2018). “Consideration of the statutory text in context is our primary

guide.”

“‘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,

(2013) (quoting Town of Oxford v. Koste,

(2012), aff’d,

(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,

(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

(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,

(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,

(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,

(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 that

he is to decide.12

The Developers go on to argue that Commissioner Smith did not engage in an ex

parte communication, within the meaning of the statute, because he did not communicate

with a party to the proceeding before him or with a party’s representative. Similarly,

Commissioner Smith argues that the statute applies only to communications with an

“applicant” for quasi-judicial relief. Both the Developers and the Commissioner have

read the statute too narrowly.

By its terms, § 5-859(b) requires the disclosure of ex parte communications “with

an individual concerning a pending application.” (Emphasis added.) Had the General

Assembly intended to confine the statute’s scope to communications with an “applicant”

or a “party,” it could have done so, as it has in another instance. See, e.g., GP § 5-836(a)

(requiring the disclosure of an “ex parte communication concerning a pending application

between an applicant or applicant’s agent and a member [of the Prince George’s County

12 Commissioner Smith also cites an unpublished decision from a federal trial court, Theriot v. Bates, No. 2:12-CV-200,

(W.D. Mich. June 29, 2012). It is, however, “the policy of this Court in its opinions not to cite for persuasive value any unreported federal or state court opinion.” Kendall v. Howard County,

, 445 n.1 (2012), aff’d,

(2013); accord Margolis v. Sandy Spring Bank,

, 718 n.10 (2015).

19 Council] or the [Prince George’s] County Executive”) (emphasis added). Because the

General Assembly unambiguously chose not to limit the Frederick County ethics law to

ex parte communications with “applicants” or “parties,” we reject the contention that the

statute did not apply to Commissioner Smith’s communications with other “individuals,”

such as FACT’s representatives.13

The Developers and Commissioner Smith cite the legislative history of the

Frederick County ethics law to argue that it was intended only to protect against quid pro

quo corruption – a concern that, they say, is inapplicable in this case. Ordinarily, we do

not consider legislative history when the language of a statute itself is unambiguous, as it

is here. See, e.g., State v. Bey,

(2017). But even if we considered the

two aspects of legislative history that the Developers and Commissioner Smith have

cited, our conclusion would not change.

The Developers and Commissioner Smith first cite a letter dated May 4, 2007, in

which the Attorney General wrote to the Governor about the constitutionality of one

provision of the legislation that became the Frederick County ethics law – the provision,

in what became GP § 5-858(b), that prohibited a board member from voting or

13 The Developers cite the definition of “ex parte” in Black’s Law Dictionary 697 (10th ed. 2014): “[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest[.]” On the basis of that definition, they argue that an ex parte communication “generally requires a communication with a party,” which did not occur in this case. We agree that the Black’s definition accurately describes one type of ex parte communication. We disagree, however, that the Black’s definition exhausts the universe of ex parte communications that are covered by § 5-859(b). By its literal terms, § 5-859(b) restricts ex parte communications with “individual[s],” including individuals who may be interested in the outcome of the proceeding, but who are not parties themselves.

20 participating in the proceedings concerning an application if the member or the member’s

political action committee had received a contribution from the applicant during the

pendency of the application. In concluding that the proposed legislation did not violate

the free speech guarantees of the federal or state constitutions, the Attorney General

reasoned that it “serve[d] a substantial government interest by taking aim at a discreet

[sic] class of contributors whose political activity raises concerns of quid pro quo

corruption (or its appearance) and conflicts of interest on the part of incumbent office

holders/zoning decision-makers.”

Citing the reference to “quid pro quo corruption (or its appearance) and conflicts

of interest” in the Attorney General’s letter, the Developers argue that it would not

further the objectives of § 5-859 to conclude that Commissioner Smith’s communications

fell within the scope of the statute. The short answer to that contention is the Attorney

General’s letter addressed only one provision of the proposed legislation: it did not

address the restriction on ex parte communications with “individual[s],” and it neither

stated nor implied that the sole purpose of the legislation as a whole was to address the

problem of “quid pro quo corruption (or its appearance) and conflicts of interest.”14

In a second appeal to legislative history, the Developers and Commissioner Smith

cite the Department of Legislative Services’ fiscal note to the 2007 legislation that

became the Frederick County ethics law. According to the fiscal note, the legislation

14 In any event, a quasi-judicial decisionmaker arguably would have a species of “conflict of interest” if, through an ex parte communication, he procured evidence in case that he was called to upon to decide.

21 “require[s] disclosure of ex parte communications between a Frederick County

Commissioner and an applicant while an application is pending.”

https://perma.cc/2ZXH-3XW3 (emphasis added); https://perma.cc/QT4P-X8ZM

(emphasis added). The Department of Legislative Services, however, has no power to

amend legislation to make it mean something other than what it literally says. See, e.g.,

Duffy v. CBS Corp.,

(2018) (“resort to legislative history . . . is not

undertaken to seek contradiction of the plain meaning of the statute”) (further citation and

quotation marks omitted). The legislation in this case pertains to communications

between a commissioner and an individual, and not merely an applicant. To the extent

that the Department of Legislative Services interpreted the statute otherwise, it was

wrong.

In summary, the circuit court did not err in concluding that the statutory restriction

on certain ex parte communications applied to Commissioner Smith’s interactions with

FACT.

II. Does GP § 5-859(b) Violate the First Amendment?

Commissioner Smith contends that, in prohibiting him from engaging in

undisclosed ex parte communications concerning a zoning application in which he was

involved as a quasi-judicial decisionmaker, § 5-859(b) violated his First Amendment

right to freedom of speech. The Developers endorse his contention. The circuit court

rejected that contention. Applying a de novo standard of review (see, e.g., Schisler v.

State,

(2006)), so do we.

22 Restrictions on ex parte communications with judges and quasi-judicial

decisionmakers are common in Maryland15 and throughout the United States.16 Yet

Commissioner Smith can cite no case in which any court has held that the First

Amendment prohibits such a restriction. In fact, our research has disclosed no case in

which a judge or quasi-judicial decisionmaker has had the temerity to argue that he or she

has a First Amendment right to engage in undisclosed ex parte communications

concerning a pending matter. The reason is obvious: restrictions on ex parte

communications by judges and quasi-judicial decisionmakers serve the important public

purpose of fostering public confidence in the fairness and integrity of the decisional

15 See, e.g., Md. Rule 18-102.9(a) (generally prohibiting a judge from initiating, permitting, or considering ex parte communications or from considering communications made to the judge out of the presence of the parties or their attorneys, concerning a pending or impending matter); Md. Code (1984, 2014 Repl. Vol.), § 10-219(a)(1) of the State Government Article (generally prohibiting a presiding officer in a proceeding under the Maryland Administrative Procedure Act from communicating ex parte regarding the merits of any issue in the case, while the case is pending, with a party, a party’s representative, or a party’s attorney, or any person who presided at a previous stage of the case); GP § 5-836 (generally requiring disclosure of certain ex parte communications with the Prince George’s County Executive or members of the Prince George’s County Council concerning a pending application for a change in rules governing the use of a property); see also Md. Rule 19-303.5(a)(7) (generally prohibiting an attorney from communicating ex parte about an adversary proceeding with the judge or other official before whom the proceeding is pending). 16 See, e.g., ABA Model Rule of Judicial Conduct 2.9(A) (generally prohibiting a judge from initiating, permitting, or considering ex parte communications or from considering communications made to the judge out of the presence of the parties or their attorneys, concerning a pending or impending matter); 8A McQuillin on Municipal Corporations, § 25.284 (3d ed. July 2018 update) (collecting authorities regarding restrictions on ex parte communications with quasi-judicial decisionmakers); see also ABA Model Rule of Professional Conduct 3.5 (generally prohibiting an attorney from communicating ex parte about an adversary proceeding with the judge or other official before whom the proceeding is pending).

23 process by ensuring that all interested persons have equal access to the information on

which the decision is based. Those restrictions do not violate the First Amendment. Cf.

Schoenbohm v. FCC,

(D.C. Cir. 2000) (holding that an agency’s

prohibition on ex parte communications did not violate a litigant’s First Amendment right

to urge others to communicate off-the-record with the agency); Iowa Supreme Court Att’y

Disc. Bd. v. Doe,

(Iowa 2016) (holding that the First Amendment

did not protect ex parte communications to a judge in which an attorney allegedly

violated disciplinary rules by making false and unreasonable allegations of unethical

conduct); In re McCool,

(La. 2015) (holding that the First

Amendment did not protect a lawyer from sanctions for waging an online campaign in

which she encouraged others to engage in ex parte communications with the judges

presiding over her client’s case).

In contending that the statute violates the First Amendment, Commissioner Smith

asserts that, as a legislator, he had a right and duty to speak on legislative matters. Of

course, the statute did not actually prohibit the Commissioner from speaking about

anything: it merely required him to disclose ex parte communications concerning certain

land-use disputes that were pending before him as a quasi-judicial decisionmaker. In any

event, in stressing his rights and duties as a legislator, the Commissioner misapprehends

his role in considering the Developers’ application.

Although Commissioner Smith was an elected member of what was then the

County’s legislative and executive body, he and his fellow commissioners were

functioning as quasi-judicial decisionmakers when they considered the Developers’

24 application to rezone its property. Maryland Overpak Corp. v. Mayor & City Council of

Baltimore,

(2006) (“proceedings or acts that scrutinize individual parcels

or assemblages for the consideration of property-specific proposed uses, at the owner’s or

developer’s initiative, ordinarily suggest a quasi-judicial process or act”); see also Mayor

and Council of Rockville v. Woodmont Country Club,

(1998) (holding

that, “where the Council was holding a hearing, receiving written and oral testimony, and

considering evidence to determine the specific amount of special benefit to a particular

piece of property, the Council at that point was acting in a quasi-judicial capacity”);

Armstrong v. Mayor & City Council of Baltimore,

(2006)

(holding that an ordinance authorizing a conditional use was “adjudicative in nature”

because “[t]he focus of the hearing was on a single piece of property and the effect of its

development on surrounding properties”); compare Kenwood Gardens Condos., Inc. v.

Whalen Props., LLC,

(2016) (holding that the passage of a resolution

that allowed for the continued review of a PUD proposal was a legislative act because it

was “premised on a threadbare recital of relevant facts as submitted by the developer and

evaluated on general, policy-based grounds”). Accordingly, § 5-859(b) did not impinge

upon the Commissioner’s rights and duties as a legislator.

Finally, Commissioner Smith argues that § 5-859(b), as construed by the circuit

court, is unconstitutionally vague. He asserts that if public statements at public meetings

are ex parte communications, then any communication could be an ex parte

communication. In this case, however, the court did not find that Commissioner engaged

in undisclosed ex parte communications solely because he made public statements at a

25 public meeting. Rather, the court found that he engaged in undisclosed ex parte

communications because he made arguments in favor of an application that was currently

pending before him as a quasi-judicial decisionmaker; because his arguments were

repackaged, without attribution, in a letter that was then submitted as evidence in the very

case that he was to participate in deciding; because he thereby inserted himself into the

decisional processes of a supposedly neutral expert board; and because he did not

disclose that the arguments originated with him.

In our judgment, persons of ordinary intelligence could discern that § 5-859(b)

required them to disclose that they had engaged in such communications. Therefore, the

statute is not unconstitutionally vague. See, e.g., Grayned v. City of Rockford,

(1972).

III. Is There an Adequate Factual Basis for the Vacatur Order?

The Developers argue that the vacatur order – the order by which the court vacated

the PUD and the related agreements – is unsupported by record evidence. In reviewing

that argument, “[o]ur task is limited to deciding whether the circuit court’s factual

findings were supported by substantial evidence in the record.” L.W. Wolfe Enters., Inc.

v. Maryland Nat’l Golf, L.P.

(2005). In deciding whether the

findings are supported by substantial evidence, we must view the evidence in a light most

favorable to the prevailing party.

“‘If there is any competent and material evidence to

support the factual findings of the trial court, those findings cannot be held to be clearly

erroneous.”

(quoting Yivo Institute for Jewish Research v. Zaleski,

(2005)).

26 Under this forgiving standard, we cannot conclude that the circuit court lacked an

adequate factual basis for the findings on which it based the vacatur order. There is no

serious question that Commissioner Smith attended the FACT meeting and deployed a

number of arguments in favor of the Developers’ application; that his argument

mysteriously reappeared, without attribution, in a letter from FACT; and that he failed to

disclose that the arguments in the letter, from a board of supposedly neutral experts, had

originated with him. The Commissioner’s invocation of his Fifth Amendment privilege

against self-incrimination and his refusal to cooperate with the Council’s investigation

provide further inferential support for a finding that the FACT letter was the product of

an ex parte communication. See Whitaker v. Prince George’s County,

(1986).

In view of these facts, it would not be unreasonable to infer that Commissioner

Smith had procured evidence in a proceeding that was pending before him as a quasi-

judicial decisionmaker.17 The circuit court, therefore, was by no means clearly erroneous

in concluding that “the lack of attribution in the FACT letter was intended to deceive not

only members of the Board, but the public at large.”

The Developers complain that the court did not adequately explain why the timing

of the FACT letter was significant. We think that the significance is self-evident. The

FACT letter materialized hours before the final public hearing on a hotly contested

zoning application. The letter was deployed near the end of the hearing, after the

17 In fact, because of Commissioner Smith’s public comments outside the record in this case, we know that he asked for the letter. See supra n.3.

27 opponents of the application had closed their case. The opponents were not permitted to

question the letter’s author or a representative of FACT. The Board’s President assured a

dubious colleague that the letter had been authorized by each of the FACT directors, yet

FACT later distanced itself from the letter, asserting that it was not intended as evidence.

Meanwhile, in rebuttal, the Developers’ attorney touted the letter as evidence from an

unbiased, apolitical expert board. The court was not clearly erroneous in concluding that

“the FACT letter’s timing increase[d] its propensity to influence a Commissioner’s vote.”

The Developers also complain that the court ignored the statements of several

Commissioners that the letter had no effect on their votes and that the court “baldly

concluded” that “[t]he deception surrounding FACT letter is not remedied by two

affidavits” from two former Commissioners. The Developers have not accurately

characterized the court’s opinion. From our reading of the opinion, it is apparent that the

court struggled with the difficult question of how to reconcile the assertions that the

FACT letter had no impact on the Board’s decision with its recognition that the decision

came immediately after the last-minute introduction of key evidence that was secretly

procured by one of the decisionmakers himself. In concluding that the FACT letter was

“a substantial factor” in the Commissioners’ decision, the court appears to have been

searching for a diplomatic way to say that it did not completely credit the testimony of

some of the former Commissioners – i.e., to say that they had an incentive to minimize

the import of the FACT letter because they did not want their decision to be reconsidered,

and possibly changed. The court was not required to credit the former Commissioners’

testimony.

28 IV. Was There an Adequate Factual Basis for the Initial Remand?

Proceeding in reverse chronological order, the Developers argue next that the

circuit court erred in ordering the initial remand in 2015. Under the deferential scope of

review that we are required to employ (see supra Section III), we reject their argument.

Citing Montgomery County v. Stevens,

(1995), the Developers

begin by arguing that the court erred in remanding the case because, they say, RALE did

not make “a strong showing of fraud or extreme circumstances outside of the

administrative record.” The Developers misapprehend the basis for the remand. The

requirement of “fraud or extreme circumstances outside of the administrative record”

applies only when a party seeks to obtain discovery of an administrative decisionmaker’s

mental processes in an action for judicial review. See

A court, however, need not

find “fraud or extreme circumstances outside of the administrative record” before

ordering a remand under the Frederick County ethics law. Instead, under GP § 5-

862(a)(2), “the court shall remand the case” if it finds a violation of the ethics law, such

as an undisclosed ex parte communication. The circuit court did what the statute required

it to do.18

The Developers also argue that, in advocating for the initial remand, RALE relied

on inadmissible hearsay in the form of a newspaper article concerning Commissioner

Smith’s role in the genesis of the FACT letter. Of course, it is unsurprising that RALE

18 RALE did attempt to obtain testimony from Commissioner Smith in connection with the action for judicial review, and the court initially indicated that it would permit RALE to do so when it denied the Commissioner’s motion to quash. After remanding the case, however, the court reconsidered its decision and granted the motion to quash.

29 would have to resort to hearsay, because RALE was precluded from cross-examining a

FACT representative when the letter first surfaced at the public hearing, and because the

questions about the letter’s provenance did not come to light until after the administrative

record was closed. Nonetheless, the circuit court specifically stated that it would not rely

on hearsay (i.e., that it was “not trying the case of the newspaper”). Furthermore, the

court’s findings make no mention of the hearsay allegations. In our judgment, therefore,

the complaints about hearsay have no basis.

Finally, the Developers challenge the court’s conclusion, in the initial remand

order, that the “FACT committee incorporated the information from Commissioner Smith

into its April 23, 2014 letter.” According to the Developers, Commissioner Smith’s

arguments (as recorded in the minutes of the FACT meeting) are similar to the arguments

in the FACT letter because the minutes and the letter were both authored by the same

person – FACT’s secretary, Mr. Proffitt. In our view, however, the Developers have

posited one explanation, but not the sole explanation, for the similarity between the

Commissioner’s arguments and the arguments in the FACT letter. The court was not

required to accept the Developers’ explanation; nor was the court clearly erroneous in

finding that explanation unpersuasive. See Bricker v. Warch,

(2003). Because of FACT’s failure to attribute its arguments to Commissioner Smith and

because of the Commissioner’s failure to identify the arguments as his own when they

reappeared in the FACT letter, the court could reasonably infer that the letter was the

30 product of a covert effort to recast a partisan argument in the guise of a neutral, expert

opinion.19

V. Was There an Adequate Factual Basis for the Council’s Conclusions?

The Developers argue that the circuit court erred in considering the County

Council’s conclusions on remand, because, they say, those conclusions are unsupported

by record evidence. Applying the forgiving standard of review for the adequacy of

factual findings by an administrative agency (Kenwood Gardens Condos., Inc. v. Whalen

Props., LLC,

(2016)), we disagree.

The Developers attack the Council’s conclusion that, during the hearings before

the Board of County Commissioners in 2014, there were “[s]erious challenges” to the

scope of the traffic study, including whether the study included all appropriate

intersections. In support of that argument, the Developers cite their expert’s testimony

about the study and RALE’s evidence (including expert testimony) about the subject. In

light of the Developers’ argument, it appears that there were challenges to the scope of

the traffic study and that the only question is whether the challenges can accurately be

described as “serious.” The Council was not clearly erroneous because of a disagreement

about its choice of an adjective.20

19 In their challenge to the initial decision to remand the case, the Developers complain that the court conducted its own judicial fact-finding. The complaint has no merit, because § 5-862(a)(2) requires a court make a finding as to whether a violation of the ethics law has occurred. 20 The Developers also attack the Council’s conclusion that the testimony and exhibits before it “revealed additional inconsistencies and irregularities relating to the crucial question of the adequacy of the transportation network.” Read in context, the

31 The Developers go on to attack the Council’s finding of “extreme irregularity

surrounding the FACT letter.” Their argument repeats a number of assertions that we

have already found inadequate to undermine the circuit court’s findings concerning the

unusual provenance of the FACT letter: Commissioner Smith was merely performing his

duty as the liaison to FACT when he attended the meeting; the FACT letter is consistent

with the organization’s mission to improve traffic conditions in Frederick County; and a

majority of the Commissioners said that the FACT letter did not affect their vote. We

reject these arguments for the same reasons that we have previously rejected the earlier

variants of them.21

The Developers close with an attack on the Council’s decision to ask them to

recommence the application process before the Planning Commission. They say that it

was “illogical” to require them to return to the Planning Commission, because that

Commission had approved the PUD before the FACT letter came into existence.

In our view, the Developers appear not to fully appreciate the difficult choices that

the Council had to make. The Council resolved that the matter should return to the

Council was not referring to a problem relating to the transportation network in addition to the one concerning the adequacy of the traffic study. The “inconsistencies and irregularities” pertaining to traffic were in addition to other “inconsistencies and irregularities” relating to the origins of the FACT letter, which the Council had just discussed. The Council attributed the “additional inconsistencies and irregularities” to the County’s expert’s unavailability at one point in the proceeding when the scope of the traffic study was challenged. 21 In addition, we note that, as an administrative agency, the County Council was not categorically prohibited from relying on hearsay. See, e.g., Travers v. Baltimore Police Dep’t,

(1997).

32 Planning Commission because it was unable to reconcile the assertions that the letter had

no impact on the Board’s approval of the PUD with the considerable amount of evidence

that the letter was not only intended to have some kind of impact, but probably did. As

we read the Council’s resolution, it is apparent that the Council wanted to ensure an

untainted process. That approach was not illogical.

VI. Did the Council Exceed the Scope of the Remand?

In remanding the case to the new County Council in 2015, the circuit court wrote

that, based on the record before it, it could not make a judgment on the petition for

judicial review, because questions about the origins of the FACT letter, the timing of the

letter, and the potential for reliance on it would form an integral part of the decision. The

court remanded the case “for further proceedings, including testimony, to resolve” those

issues. The Developers argue that the Council exceeded the scope of the remand by

commenting on the record that it had generated and by reaching new conclusions about

traffic and the FACT letter.22

The court remanded the case pursuant to GP § 5-862(a)(2), which envisions that

the governing body will reconsider its decision. The court directed the Council to

address the FACT letter and its impact, but imposed no other restrictions on how the

Council would be required to go about that task. In these circumstances, it is

22 In support of that argument, the Developers cite Hickory Hills Ltd. P’ship v. Sec’y of State,

(1990). Hickory Hills holds that if a court orders an agency to take additional evidence under what is now § 10-222(f) of the State Government Article, the order is not immediately appealable. The case does not support the conclusion that the Council exceeded the scope of the remand in this case.

33 understandable that the Council would reach conclusions about the FACT letter. It is

also understandable that the Council would comment about its conclusions, and

particularly about the challenge of evaluating the impact of the FACT letter and about the

appropriate way to proceed. And although the question of traffic adequacy is arguably a

bit afield from the FACT letter, we are reluctant to conclude that it is beyond the scope of

reconsideration, given that the FACT letter itself concerned traffic and road

improvements. For these reasons, we disagree that the Council exceeded the scope of

remand.23

VII. Did the Court Err in Not Considering the Broader Agency Record?

The Developers argue that, when the case returned to the circuit court after the

initial remand, the court was required to consider whether the agency record supported

the approval of the PUD. We disagree. When the case returned to the circuit court, the

focus was still on whether an undisclosed ex parte communication had occurred and, if

so, what should happen next. With the benefit of the Council’s work on remand, the

court reiterated and expanded upon its prior conclusion that an undisclosed ex parte

23 The Developers argue, briefly, that the Council violated the doctrine of separation of powers by reevaluating the agency record while petitions for judicial review were pending. The difficulty with that argument is that, in accordance with GP § 5- 862(a)(2), the court required the Council to reconsider or reevaluate the record in some respect. It is hard to see how the Council usurped the court’s essential powers by complying with the court’s direction. The Council did not, for example, claim the ability to do something at the core of the judicial power, such as to render a final judgment that adjudicates a party’s rights. See Dan Friedman, The Maryland State Constitution 35 (2011) (citing Shell Oil Co. v. Supervisor of Assessments,

(1975)). In fact, the Council had to ask the court to intervene because it was powerless to require the Developers to comply with its conception of how the case should proceed.

34 communication had occurred. In view of that conclusion, GP § 5-862(a)(2) left the court

with no choice other than to order a remand.

VIII. Did the Council Use the Remand as a Pretext to Reverse the Prior Approval?

The Developers assert that, after the circuit court found that Commissioner Smith

had engaged in an undisclosed ex parte communication and remanded the case for further

proceedings, the County Council used the remand as a “pretext” to reevaluate the Board

of County Commissioners’ decision. They cite a number of cases that generally prohibit

an administrative agency from reversing an earlier decision solely because of a “change

of mind.” See, e.g., Schultze v. Montgomery County Planning Bd.,

(1962) (holding that, in the absence of a statute concerning reconsideration, an agency

may reconsider a prior decision only because of fraud, surprise, mistake or inadvertence,

and not because of a mere change in mind); Kay Constr. Co. v. County Council for

Montgomery County,

(1962) (holding that the substitution of one

councilmember of one conviction for another councilmember of another conviction did

not satisfy the statutory requirement of “good cause” for reconsideration of a zoning

decision); see also Calvert County Planning Comm’n v. Howlin Realty Mgmt., Inc.,

(2001) (holding that an agency could reconsider a decision because it had

been misled, but not because of a mere change of mind).

The County responds that the “change-of-mind” rule comes into play only when

an agency reconsiders a decision on the basis of a ground that it is not authorized to

employ. By contrast, once a court has ordered an agency to reconsider a matter, as the

circuit court did in this case, the agency has no choice but to decide whether to change its

35 mind. Because the circuit court’s remand order “did not presume to determine what

‘proceedings’ were required” (People’s Counsel for Baltimore County v. Country Ridge

Shopping Center, Inc.,

(2002)), the agency – in this case, the

newly constituted County Council – had the discretion to decide how to proceed. See

In its discretion, the Council could decide to proceed de novo, with an entirely

new hearing, as it did. See

We see no basis to conclude that the Council abused its

discretion in concluding that because it could not reconcile the conflicting information

before it about the impact of the FACT letter and the adequacy of the transportation

network, the reconsideration of the rezoning application required that the process begin

anew before the Planning Commission.

IX. Does It Matter Whether There Were “Extreme Circumstances”?

In ordering the remand, the circuit court cited Montgomery County v. Stevens,

(1995), for the proposition that a remand was necessary because “‘extreme

circumstances [. . . ] occurred outside the scope of the administrative record.’” Later, in

vacating the decisions approving the PUD, the DRRA, and the APFO LOU, the court

briefly referred again to the “extreme” nature of Commissioner Smith’s failure to disclose

that the substance of the FACT letter originated with him.

Both the Developers and Commissioner Smith challenge the factual basis for a

conclusion of “extreme circumstances.” We need not consider that challenge, however,

because the question of “extreme circumstances” was relevant only to the court’s

decision to permit a deposition of Commissioner Smith, not to its subsequent decisions to

36 remand the case to permit the County Council to conduct further proceedings or to vacate

the PUD, the DRRA, and the APFO LOU.

In Montgomery County v. Stevens,

, the Court of Appeals quoted

Public Service Comm’n v. Patuxent Valley Conservation League,

(1984), for the proposition that “‘a party challenging agency action is ordinarily

forbidden from inquiring into the mental processes of an administrative official.’”

Accord Maryland Bd. of Physicians v. Geier,

(2015). “Departure

from this fundamental principle,” the Court said, “is extremely rare.” Montgomery

County v. Stevens,

. Nonetheless, “if the party challenging the agency

action could make a ‘strong showing’ of, as opposed to a mere allegation of, the

existence of fraud or extreme circumstances which occurred outside the scope of the

administrative record, a deposition of the administrative decision maker might be

permissible.”

In other words, the question of “extreme circumstances” pertains to

whether a party may obtain discovery from a quasi-judicial decisionmaker in an action

for judicial review.

In this case, the question of “extreme circumstances” was relevant to the decision

to permit RALE to depose Commissioner Smith – a decision that the circuit court made

on January 27, 2015, before it remanded the case to the County Council. The issue of

“extreme circumstances” was not relevant to the court’s other decisions. Under GP § 5-

862(a)(2), the court was required to remand the case to the County Council when it found

a violation of the restriction on undisclosed ex parte communications: it did not matter

whether the violation was or was not “extreme.”

37 In short, in the context of the opinion that remanded the proceeding to the Council

and the opinion that vacated the PUD, DRRA, and APFO LOU, the references to

“extreme circumstances” or the extreme nature of Commissioner Smith’s conduct were

surplusage – unnecessary statements that had no legal effect.

CONCLUSION

We affirm the judgment of the circuit court. The court correctly concluded that

Commissioner Smith engaged in an undisclosed ex parte communication, in violation of

GP § 5-859(b), when he surreptitiously procured a piece of evidence that was used in a

quasi-judicial proceeding in which he himself was one of the decisionmakers. Contrary

to Commissioner Smith’s arguments, the prohibition on undisclosed ex parte

communications in GP § 5-859(b) does not violate a quasi-judicial decisionmaker’s First

Amendment rights. The circuit court’s findings have support in the record, as do the

findings of the Frederick County Council. In view of its findings, GP § 5-862(b) required

the court to remand the case to the County Council for reconsideration. Once the County

Council, on reconsideration, had elected to require the Developers to recommence the

application process, the circuit court did not err in implementing the Council’s decision.

JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANTS PAYNE INVESTMENTS LLC AND 75-80 PROPERTIES LLC.

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