The Montgomery County Council may have violated state law by allowing the swearing in of members of the Planning Board prior to the county executive’s 30-day veto window, according to a letter from the state Attorney General obtained by MoCo360.
The letter was sent by Sandra Benson Brantley, the attorney general’s counsel to the General Assembly, to state Sen. Ben Kramer (D-Dist. 19) on May 15.
A spokesperson for Montgomery Planning confirmed that Planning Board members Shawn Bartley, James Hedrick and Mitra Pedoeem were sworn in by the Clerk of the Circuit Court on March 6, just six days after they were appointed on Feb. 28.
County Executive Marc Elrich then vetoed Hedrick’s appointment in March just prior to the end of the 30-day veto period. However, the County Council unanimously overturned the veto.
The council this week voted to appoint Artie Harris as Planning Board chair and Josh Linden as commissioner.
According to Brantley’s letter, it violates state law if the Montgomery County Council appoints, swears-in and seats its appointees to the Maryland-National Capital Park and Planning Commission before the 30-day veto period expires.
“It is my understanding that the longstanding practice—at least until 2019—has been to swear in the new appointment after the process is complete,” Brantley wrote.
She cited examples of previous Planning Board appointments.
“Nevertheless, there is an argument that the Council’s appointment may serve in a temporary, acting capacity (i.e., not sworn in) where there is no holdover … At the same time, there is no express authority for the Council to make interim appointments, thus the authority of the Council to do so here is not entirely clear. Even if authorized, where the temporary appointment serves ‘on more than a short-term basis, the legal basis seems uncertain at best,’” Brantley wrote. “Accordingly, in my view, to avoid a circumvention of the County Executive’s authority to approve or disapprove all appointees, if the County Executive disapproves a selection, the Council should act promptly to act under [state law] or to send a new name.”
Elrich said during a press briefing Wednesday afternoon that his office advised the council not to swear in members prior to the end of the 30-day period.
“They were told they were violating [the law] and they still did it,” Elrich said. “This is not the way things are supposed to work.”
A spokesperson for the council said the county’s legal team said it was OK to start swearing in Planning Board members prior to the 30 days elapsing.
“After multiple consultations with the County’s legal team about Planning Board appointments and the need to ensure continuity of operations at the organization on behalf of Montgomery County residents, it was determined that Planning Board appointees could be sworn in and start their duties prior to the 30 days elapsing. Moreover, all Planning Board members appointed by the Council in February have either been approved by the County Executive or have been approved by the Council by overriding the Executive’s disapproval,” Sonya Healy, legislative information officer for the council, wrote in an email to MoCo360.
Healy said the council is aware of Brantley’s advice letter to Kramer.
“This is a non-issue for appointees Artie Harris and Josh Linden because there is a 30-day period before they are scheduled to begin their service on the Montgomery County Planning Board. They were appointed on May 16, and their terms begin on June 15. Also, the Clerk of the Court swears in Planning Board members not the Council,” Healy wrote.
Kramer was unable to be reached for comment as he is out of the country, a member of his office told MoCo360.
On Wednesday, Elrich said he does not plan to veto Harris and Linden’s appointments, but still wants the chance to interview them.