The County Council’s Planning, Housing and Parks (PHP) Committee recently declined to fund the Office of the People’s Counsel, which operated between 1999 and 2008 but has remained unfunded since then.
County Executive Elrich’s FY23 and FY24 budgets proposed refunding the agency, which represents the public interest (but not parties) in land use proceedings and provides technical assistance to residents.
The council failed to fund the OPC last year, and recently, Council Vice President Andrew Friedson proposed Bill 18-32 to remove the current OPC statute from the county code and replace the OPC with a toothless technical assistance agency. The Montgomery County Civic Federation opposes Bill 18-23 and supports funding the OPC to support the needs and rights of residents.
Residents testifying at an April 18 council hearing on Bill 18-23 strongly agreed with us. Of the 11 who testified, 10 argued for rejecting the bill and permanently funding the OPC. The only supporter, a former lobbyist for the developer-funded Coalition for Smarter Growth, opposed the right of residents to obtain legal information from the county on zoning and their land use rights.
The OPC’s role is to protect the public interest, to promote full and fair administrative proceedings, and to help produce sound land use decisions. It also helps level the playing field between developers and ordinary residents, who don’t stand a chance against wealthy financial interests with expert attorneys on retainer.
The committee’s resistance to the OPC is troubling because of their recent unanimous passage (10/22) of Thrive Montgomery 2050, the county’s controversial new 30-year general plan, rushed through by the previous County Council before the last election.
Thrive Montgomery creates the foundation for a myriad of new planning initiatives related to housing, transit, and the environment, which will affect most residents and require thoughtful and comprehensive analyses of prospective changes to communities throughout the county.
Now, more than ever, residents would benefit from the technical assistance and advocacy provided by the Office of the People’s Counsel.
Montgomery County residents will need informed legal advice to negotiate the complex new landscape Thrive is likely to create. Montgomery County Civic Federation members were encouraged that the at-large members of the County Council: Albornoz, Glass, Jawando and Sayles, all expressed support for the Office of the People’s Council at our online candidate forum last spring.
Although OPC’s two-person staff operated only between 1999 and 2008, it accomplished a great deal. From 2002 to 2007, the OPC participated in 267 land use proceedings and provides 18,281 instances of technical assistance on 135 different subjects, as well as 47 mediation sessions at a cost ranging from $104,000 to $246,375 per year (the most recent budget request for FY 24). Martin Klauber, the first People’s Counsel, prided himself on deescalating conflicts and solving problems amicably. “I really believe people can sit down and negotiate their differences.”
In a 2008 report from the Office of Legislative Oversight (OLO), the OPC received considerable praise. Most government respondents supported continuing the OPC as a neutral party that represents the public interest. They praised the OPC’s explanations of the land use decision process in advance of hearings, which better prepared residents to participate, to present relevant and legally significant testimony, and even to develop suggestions that may influence the final design or conditions placed on land use approvals.
Land use attorneys complimented the People’s Counsel’s success in promoting a complete record, his moderating influence on hearing participants, and success in making proceedings go more smoothly. Some respondents urged expanding the OPC’s role to represent individuals rather than the public interest as now defined by the law.
The OPC gives low-income and minority residents access to needed help. A recent racial equity/social justice (RESJ) analysis of the bill by the Office of Legislative Oversight (4/19/23) stated: “As advocates for the public’s interest in land use decisions, Office of the People’s Counsel can be uniquely positioned to advocate for the interests of BIPOC and low-income constituents not typically represented in land use decisions.” OLO urged fully funding the OPC and requiring RESJ reviews for all land use proposals. Because the law now requires RESJ analyses of all new laws and ZTAs, a funded OPC could help the county avoid challenges and even lawsuits over perceived civil rights violations.
The OLO report made several recommendations for the Council to pursue: (1) to revisit the purpose, duties, and structure of OPC as outlined in County law; and (2) postpone the personnel decision regarding reappointment of the OPC until the Council completes that review. The report did not suggest eliminating or defunding the OPC.
Council Opposition: So why do some council members want to make the OPC a toothless technical information office with no legal powers? Most arguments for this viewpoint are meritless.
First, the OPC’s proposed FY 24 funding is negligible—$246,375 or.0004% of the FY 23 budget. Yes, there is a budget crunch. But councilmembers recently proposed to spend $315,000 further media outreach, on top of the council’s $25M media budget and up to $300K on canvassing, when current agencies such as the Planning Board (with a $25.4M budget last year) have millions to spend on outreach. So why is the currently unfunded OPC not a priority?
Second, although the OLO report repeatedly charged the council with addressing their modest recommendations, the Council chose not to comply for 15 years. Yet because Elrich has recently requested OPC funding, the council is blaming him for not proposing language to modify the OPC statute as recommended in the OLO report. At a recent Planning, Housing, and Parks Committee meeting (43:48), committee members took turns chastising Elrich’s land use expert, despite her willingness to work with them on the issue. The goal of this tactic is clear—to avoid responsibility for an unpopular effort to defund an agency that helps their constituents.
Third, The OLO report undercuts critics’ claims that OPC would favor residents at the expense of other parties. The OPC’s charge, as the statue makes clear, is to serve the public interest—not the County nor petitioners nor residents involved in the process. A report from 2007 cited by OLO showed the OPC “most often appeared in support of an application or remained neutral” (p. 21). Therefore, fears of OPC working on behalf of residents who want to “stop projects” are baseless.
Finally, and most important, is the argument (recently voiced by developer lobbyists) that “government funds must not be used to advocate for residents.” By that logic, we would not have a robust Montgomery County Office of Consumer Protection, ethics commissions, inspectors general, or Federal agencies such as the FTC, the SEC, and the EEOC to protect residents’ rights. Do the bill’s sponsors (both of whom have accepted significant developer donations) really want to oppose the needs and rights of their constituents after last year’s bitter conflicts about Thrive and the forced resignation of the Planning Board? Democrats (the party of all council members) seek to promote the greatest good for the greatest number. So why would the council intensify the crisis of trust they have created by seeking to eliminate this successful agency?
As the Civic Federation has argued for two years, there is no excuse for not funding the Office of the People’s Counsel. They should address OLO’s recommendations and fund the OPC immediately.
Attorney Alan Bowser, president of the Montgomery County Civic Federation and contributor to many civic organizations, lives in Silver Spring.
Second Vice President Elizabeth Joyce, a member of the Maryland Legislative Agenda for Women Board, also lives in Silver Spring.
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