The Gazette article references a letter from the attorney general's office which county officials say supports their position that the contract is legal. The letter in question, addressed to a Delegate from Montgomery County and dated March 5th, 2008, was signed by the Council to the General Assembly Dan Friedman, (not Attorney General Gansler, as the article states).
"On review, of the facts as I understand them, I concur with
’s position that it, not the contractor, “operates” the speed monitoring system and that, therefore, the prohibition against contingent-based pricing does not apply. Of course if the facts are different than I have understood them, a reviewing court may well come to the opposite conclusion." Montgomery County
The letter goes on to reference MD. TRANS. CODE ANN., §21-809
which specifies the following:
(5) “Speed monitoring system” means a device with one or more motor vehicle sensors producing recorded images of motor vehicles traveling at speeds at least 10 miles per hour above the posted speed limit.
(6) “Speed monitoring system operator” means an individual who operates a speed monitoring system.
The letter then states : "Thus, it is the person who operates the cameras who “operates” the “system” in this statutory scheme. I understand from my conversations with"[name deleted]" that while the contractor supplies the cameras and vehicles, the equipment is physically operated by county employees"
The Gazette article quotes a spokesman for the county executive as saying: "Basically, they [ACS] take the pictures, but we're the ones who figure out who gets ticketed." This seems to conflict with the way the county described ACS's role in the OAG letter.
The Gazette article notes that the cameras "generated net revenue of about $6 million, which must be used for public safety and pedestrian programs." In fact, the proposed 2008 senate bill which would have authorized statewide speed cameras would have eliminated the requirement that funds be spent on public safety. The 2008 legislation would also have modified the definition of a "Speed monitoring system operator" to be "a representative of an agency or contractor that operates..." It is unclear to this writer who proposed those changes, and whether it was intended to grandfather in this contract arrangement, or negated the ability of the accused to request the physical operator testify in court. What is clear is that this legislation was voted on AFTER the referenced letter from the attorney general's office was sent to members of the Montgomery County delegation to the general assembly.
The use of hedging language would not be expected in a formal OAG opinion which went through proper review, and it would be expected to appear in the official list of OAG opinions and advice letters rather than just quietly passed to the county and given to reporters and citizens who ask too many questions. But if it had gone through that review, it would made this issue publicly known at a time when the governor was attempting to push statewide speed cameras through the General Assembly.
So did Montgomery County ask the OAG for a "get out of jail free card" they could use until their plan to change the law to allow statewide speed cameras with per-ticket bounties succeeded?
The Gazette article states that the county is renegotiating its contract. However the city of
in August 2008 just voted to extend its rider on the 2008 contract "through FY 2009". Residents of Gaithersburg , as well as Gaithersburg and Rockville Chevy Chase, might wish to ask their local representatives why they not only previously approved, but periodically re-approve participation in this contract, 5 months after the legal and ethical questions about this contract were made public.