|Latest News: Referendum Issue
Delegate Kelly has asked us to support his referendum bill. I offer the following detailed response.
After reviewing the draft bill entitled Western Maryland Code Home Rule Counties-Police Departments-Local Referendum Required I had several questions and concerns. I was troubled by provisions of the draft legislation and even though I was comfortable with my understanding of the content I chose to seek the Attorney General’s opinion on several of my concerns.
My understanding of the bill is that:
Majority vote for the referendum would uphold the actions of the Commissioners to create the Bureau of Police and to transfer road patrol duties from Sheriff’s office to the Bureau of Police effective on the 30th day following the official canvass of the votes.
Majority vote against the referendum would invalidate the actions of the Commissioners to create the Bureau of Police and to transfer road patrol duties from Sheriff’s office to the Bureau of Police, and would transfer road patrol duties back to Sheriff’s office from the Bureau of Police.
One provision of the bill would return road patrol to the sheriff on July 1, 2010 before a vote could even be held on the referendum bill in the November 2, 2010 election.
Therefore, I sent a letter to the Office of the Attorney General to seek answers to the following questions:
Question 1. Would the legislation, proposed bill 01r0846, Kelly Referendum Bill, precludes the Allegany County Commissioners (or any other Western MD classification that adopts code home rule) from taking any action to create, expand, or transfer police duties or to appoint individuals with law enforcement duties without first submitting the action to referendum?
Assistant Attorney General’s Reply: Legislation precludes the Allegany County Commissioners (or any other Western MD county that would adopt code home rule) from taking any action to create, expand, or transfer police duties or to appoint individuals with law enforcement duties without first submitting the action to referendum.
It would also prevent any future action by the Commissioners in any Western Maryland classification county that adopts code home rule to expand the number of police officers without a referendum. (Not one individual with law enforcement duties could be hired in Allegany County by the Commissioners for any purpose without a referendum to approve the action.
Question 2. If a majority of the voters are against the referendum are all actions taken by the County Commissioners in the matter of the Bureau of Police prior to July 1, 2010 null and void? If so, what happens? Would the Bureau of Police be required to shut down? Subsequently, what happens to the officers currently employed by the Bureau of Police?
Assistant Attorney General’s Reply: Under the proposed legislation (Kelly bill) a referendum on the police bureau that is already in existence, would take place at the general election in 2010. If a majority of the voters are against the referred law, is of no effect and void. It is my view, however, it become void only upon the official canvass of votes for the referendum. As of that date, there would be no legal authority for the Bureau of Police and it would be required to cease operations. No provisions are made for the current employees of the Bureau of Police, who would then be unemployed.
So if a majority of the votes cast on the question are against the referendum all provisions of any ordinance or resolution relating to the creation or expansion of a police bureau, unit or department, and all authority granted to the County Commissioners relating thereto, the Bureau of Police and all authority currently held by the County Commissioners to designate and appoint individuals with full law enforcement duties are null and void.
The bill requires that anything relating to police powers and duties that have been enacted by any County Commissioners in Western Maryland Class prior to July 1, 2010 to be submitted for a local referendum in the 2010 election.
If the majority of voters are against the referred law then the Bureau of Police would cease to exist and everyone currently working with law enforcement powers by action taken by the County Commissions would be out of a job. This would invalidate the agreement the Commissioner just entered into with Westernport.
The bill does not have any provisions to clarify what happens to the employees and their duties and responsibilities if this happens. Nothing in the bill would require the Sheriff to re-employ any of the officers.
Question 3. The proposed bill would give the Sheriff’s office responsibility for road patrol with vehicles under the control of the Sheriff’s office. As set forth in the proposed legislation, will the provisions of Courts and Judicial Proceedings S 2-309 (b)(8)(i) become law if the bill passes irrespective of the election, or is this section triggered by rejection of the referred law?
Answer: The changes to Courts and Judicial Proceedings S 2-309, which apply only in Allegany County, are not subject to the referendum provisions of Article 25B, S 13C, which relate only to creation and expansion of local police forces.
If Delegate Kelly’s bill would become law, on the effective date the Sheriff would be given full responsibility for highway and road patrol duties throughout the county by the operation of vehicles under the control of the Sheriff’s office, and given complete authority for operation and security for the detention center as of January 1, 2010, regardless of the outcome of any referendum.
In other words the road patrol duties would be transferred back to the sheriff from the Bureau of Police even before the people would have an opportunity to vote on the proposed referendum. It would not make any difference how the vote turns out. This bill, if passed into law would give full authority for these functions to the Sheriff’s Office.
Question 4. Though there are provisions that would give the Sheriff’s office further duties, or return certain duties to the Sheriff’s office, there is no mention of any funding requirements by the County Commissioners. Will the Commissioners be required to fund more than five deputies as set forth below to provide for road patrol? Will the Commissioners be required to provide the vehicles? In short, will this proposed legislation impose any further funding requirements outside of what is already established in the pertinent parts of Article 25 and the Courts and Judicial Proceedings Article, § 2-309?
Answer: Since the proposed legislation simply maintains the responsibility of the sheriff for the operation and security for the detention center at current levels, that portion of the bill should not add to the funding requirements imposed on the county.
Highway and road patrol duties raise different questions… The Court of Appeals has noted, however, that there is a degree of local control over the operation of the sheriff’s office in each county, resulting in the provisions of State law requiring county funding of sheriffs’ offices and salaries.
Whether this addition to the law adds to the overall costs will depend on whether they choose to transfer funds now going to the Bureau of Police for highway and road patrol. In addition, the determination of whether available funding is sufficient to allow the sheriff to “adequately discharge the prescribed duties may well be affected by whether or not similar services were provide by the Bureau of Police.
Position on Referendum Bill Request
Before announcing my decision on this issue I desire to elaborate on the reasons why I am taking the position I am about to take on this referendum issue.
Delegate Kelly defends his referendum bill with following email statements: “As a side note, the two individuals who were instrumental in drafting this Referendum Legislation were an extremely well respected Assistant Attorney General, long time, permanently assigned as Counsel to the General Assembly and an extremely well respected attorney, who is a long time Senior Bill Drafter with the Department of Legislative Services. Over a period of fourteen (14) months this Requested Referendum Legislation was extensively / exhaustedly researched, drafted and re – drafted. All the while George and LeRoy kept proclaiming such a Referendum initiative was Illegal and unconstitutional. While I am diligently putting forth my best efforts to afford the DECEIVED Allegany County citizenry a Legal / Constitutional / Democratic Referendum vote on the Sheriff / BOP ongoing controversy George and Leroy consistently pursued the undermining of my said Referendum efforts.” - Kelly quote
Another Kelly quote: “As you are aware “MY” Referendum Legislation was the product of fourteen (14) months of extensive research, more research, drafting and redrafting. Those directly involved in the preparation of this Referendum Initiative were Assistant Attorney General, Kathryn Rowe, and Senior Bill Drafter, Michael Volk. Kathy Rowe is an extremely well respected, long time, permanently assigned, Counsel to the General Assembly. Mike Volk is an extremely well respected attorney, who is a long time, Senior Bill Drafter with the Department of Legislative Services, Maryland General Assembly. “MY” Referendum Legislation is a finely crafted proposal. The slightest “tinkering” will sabotage the Referendum Initiative causing it to be unconstitutional, thereby resulting in the Referendum Initiative not receiving favorable General Assembly passage.”
The opinion that I have before me is from Assistant Attorney General, Kathryn Rowe and I am of the opinion that this Kelly bill needs more than tinkering.
The Kelly quotes continue: “So how can you, George, LeRoy and Wendell justify denying the DECEIVED citizenry a Legal / Constitutional / Democratic Sheriff / BOP Referendum. By such a Referendum the honest, hard working, tax paying, voting citizens can democratically / directly decide whether they want their tax payer funded countywide law enforcement protection provided by the ELECTED Office of Sheriff or by (as GEORGE, LeRoy and I acknowledge) the DECEITFULLY created BOP. Remember, It’s possible the citizens may vote for countywide police protection to be provided by the BOP.”
Another Kelly quote: “As publicly announced, I’m filing “MY” Referendum initiative the first day of the Legislative Session. If you want to sincerely support same (and do not intend to work against the initiative behind closed doors) your said support and co-sponsorship is welcome. However, if it’s your intention to undermine “MY” Referendum Initiative then, in that event, I will very outspokenly publicize same.”
A final Kelly quote: “Now the three of you know that if the four of us legitimately supported introduction and passage of this Legal / Constitutional Referendum Legislation it would sail through the Assembly with “Local Courtesy,” provided none of you worked behind the scenes to sabotage / defeat the legislation. In support of the Legislation I would bring at the minimum a bus load of Allegany County “Vocal” supporters, the Maryland Sheriff’s Association, The Maryland State Fraternal Order of Police, AFSCME, the Western Maryland Central Labor Council, The Western Maryland Building an Construction Trades Council and numerous others. The only way this legislation would fail is if you undermined / sabotaged the initiative.”
Simply put, Kevin, you have no interest in putting in the legislation for the referendum for the pure purpose of “letting the people decide.” You intend to use all of your influence and energy to get the results that you desire from the election should it get to a position to be voted on during the November 2, 2010 election.
As drafted, if the Kelly bill passes, road duties would be given to the sheriff on July 1, 2010 well before the election is even held.
If people vote against the referred measure in November all actions of the Commissioners prior to July 1, 2010 regarding police powers or duties becomes null and void, including the creation of the Bureau of Police and the agreement sign with the town of Westernport. Every person working with official police power duties in the County not under the control of the Sheriff is out of a job.
So if we agree to support the Kelly referendum bill as written and it becomes law road patrol would be returned to the sheriff before the people can vote on the issue. If the people then vote for the referendum, which supports the Commissioners actions the duties would be returned to the Commissioners. This really creates mass confusion in for a four month period.
I, Delegate Wendell R. Beitzel, District 1A, hereby announce that I will not support the Delegate Kevin Kelly referendum proposal and will seek to prevent its passage in the Maryland General Assembly. Furthermore, due to the continuous barrage of disrespectful, offensive, intimidating and derisive emails and press releases originating from Delegate Kelly it is clear that a straightforward, simple up-and-down, yes-or-no referendum on the issue would not satisfy those that seek political and personal gain or benefit from this dispute. It would be hard if not impossible to craft legislation that will satisfy all members of the delegation and those that stand to gain or lose from the measure.
Furthermore, this dispute did not originate from this delegation, was not caused by this delegation and will not be solved by this delegation. This dispute is between the Allegany County Sheriff and the Allegany County Commissioners. Allegany County is a code home rule county, which grants more authority for local officials to make decisions and to govern locally. I have not been presented with any evidence that the Allegany County Commissioner acted outside of the authority granted to them by the County code. To the contrary, court decisions and settlement agreements confirm that the Commissioners possessed the proper legal authority to govern over these matters.
Additionally, in the David A. Goad, et al Plaintiff vs. Board of County Commissioners Court Case the Plaintiffs agreed in settlement in part as follows:
The Plaintiffs will not further pursue a referendum through the Court or through legislation.
The Sheriff’s Office will not be doing road patrol except when called as back-up or in emergencies.
Therefore, the citizens of Allegany County can show or demonstrate where they stand on this issue by voting in the next election on November 2, 2010. If the citizens are unhappy with the actions taken by either party to this dispute they can demonstrate their displeasure by voting them from office.
Let the record show that I vote not to support the Kelly referendum proposal.