Saturday, February 13, 2010

More Information On Montgomery County Class Action Suit

UPDATED 02/25/2010

As mentioned in our earlier posting, a class action suit against the speed camera programs of Montgomery County, Rockville, Gaithersburg, and Chevy Chase is scheduled to go to court on July 12th, 2010. At issue is whether the contract's contingent fee payments violate a provision of state law. However the local government’s liability is limited by a state law called the Local Government Tort Claims Act. Because of this, if you wish to receive a portion of any settlement you need to notify the local government of your intent to make a claim within 180 days of receiving the citation(s).

One of the attorney's in the case, Stephen Ring, has created a streamlined process to make this easier for you. Simply fax a copy of your speed camera citations to their office at 301-563-9639 and they will send them to the county in bundles without you needing to do anything else.
Class Action counsels are bound to respect privacy of this information and it will not be used for any purpose outside this litigation.

Alternatively, if you prefer you can send the letters yourself. StopBigBrotherMD has prepared a sample letter along with mailing information and instructions: Sample letter for individual ticket recipients. You do not need to copy the attorneys in the case, or StopBigBrotherMD, on these letters.

Also note that you will still need to either pay your citation or challenge it in court, since failing to either pay a citation or request a court hearing could result in a suspended vehicle registration or additional fees being tacked on. Sending these letters does NOT guarantee you will receive a complete refund for your citations. This only reserves your right to receive a portion of any judgment against these local governments if and when the suit succeeds.

If you pay the citation, you may wish to include a note stating that "I am paying the citation to avoid disproportionate penalties and costs, however I do not admit guilt or liability. I do not accept the wording on the citation that paying is an admission of liability to be legally binding on me." Send that either attached to your payment, or as a separate email or letter. The sample letter above includes this statement. If you have already paid the citations do not worry about it, this is an optional additional step you can take "just to be on he safe side".

Sending these notices is an excellent way to protest the speed camera system and the way it is being implemented. Montgomery County officials (including Ike Leggett) promised several times in 2008 that they would eliminate the per ticket bounties from their contract. Had they followed through on their promises they would not face this liability today. Because the Montgomery County Executive and the members of the Montgomery County Council apparently believe the county government is above the law, this lawsuit is now the only way to force them into compliance. Your sending these letters helps give that lawsuit enough ‘teeth’ to discourage other local governments from violating the law in the future.

Despite the county’s claims to the contrary, this is not merely a semantic issue of which creative definition of the word ‘operate’ they use for an unmanned system. This is a meaningful issue of the real corruption of our justice system by giving a profit motive to a company which has substantial control over many elements of the program : from deploying and maintaining cameras to processing violations and providing evidence to court hearings. Other types of contract arrangements are possible -- Montgomery County simply decided that this option is the best way to make money off the program. This is a matter of the county selling out your legal rights in order to generate more revenue.

We believe it is particularly important for out of state drivers to send the claim notification letters because making individual court challenges is completely impractical for them; this may be your only way to protest the county's speed cameras. Local residents who wanted to challenge citations but saw it as impractical should also take this opportunity for collective action instead.

For more details about this suit, contact Steve Ring of 'Ring Law Offices', Bill Askinazi of 'Askinazi Law', or 'Byrd and Byrd LLC'.

Disclaimer: StopBigBrotherMD.org provides no warranties for the information provided here or in the referenced documents. This information should not be considered as legal advice or a substitute for legal counsel. This information is for your convenience only. StopBigBrotherMD.org is NOT a party to this lawsuit and receives no compensation from the parties involved. Nothing on this website should be interpreted to mean that that sending these notices is a substitute for paying the fine or requesting an individual court hearing.

============================================
Update 8/11/2010: On June 15, 2010, less than a month before the scheduled jury trial, a judge ruled to dismiss this lawsuit on a technicality. This incorrect decision, which conflicts with an earlier circuit court judge's ruling made months prior based on exactly the same arguments and evidence, is being appealed. That process will take at least several months. Because of a limitations to the liability of local governments which require claimants to notify the potential defendant within 180 days, we recommend that ticket recipients still take the action described above
as a way to protest your ticket and to preserve your right to participate in a future settlement after the people's right to a jury trial on this matter has been restored.

Wednesday, February 10, 2010

Riverdale Park Speed Camera Program Kicks Off and Fumbles

UPDATE!!!!!  Read about charges of FORGERY AND FRAUD by Riverdale Park's Speed Camera Program!!
 
Riverdale Park has now been issuing citations to drivers for over a month under their fledgling speed camera program. The town council voted to authorize the use of speed cameras on October25, then approved a contract with Optotraffic/Sigma Space on November 3rd.

Under the contract, Optotraffic is paid a 39.0% ($15.60) cut of each paid citation. The town hoped to circumvent the provision in state law which states “If a contractor operates a speed monitoring system on behalf of a local jurisdiction, the contractor’s fee may not be contingent on the number of citations issued or paid” by spelling out that the city “operates” the cameras. The ‘don’t use the O word’ defense is the loophole which all of the other governments’ contracts which pay contingent fees rely on (this is being challenged in court in Montgomery County). Riverdale Park’s contract does not spell out what it means to “operate” these “highly automated unmanned” cameras. Optotraffic still owns the cameras, processes and mails violations from the cameras, and is responsible for ensuring that the machines annual calibration tests performed. It also seems unlikely that anyone other than Optotraffic would know how to perform all of the required maintenance on the devices, and we previously obtained photos of Optotraffic employees performing work on New Carrollton’s systems which are the same type and are under an extremely similar cont. However the ordinance which authorized the use of speed cameras in the town, which was passed several weeks before the contract was approved, contains a Freudian slip: “THE TOWN MAY CONTRACT WITH A SPEED MONITORING SYSTEM OPERATOR TO OPERATE A SPEED MONITORING SYSTEM IN THE TOWN”. OOPSIE!!

This same ordinance authorizing the cameras creates a long list of new school zones shown as the roads highlighted in pink in this map:
Each of these zones does fall within the ½ mile radius circles (shown above) around the specified schools which encompass most of Riverdale Park; although in the case of some of them the school is not adjacent to the selected roads. In the case of the school zone for William Wirt Middle School on SH201 the road only barely comes within 1/2mile for a short distance. Notice that low-traffic roads between this major highway and the school, even those directly around the school, were not designated as school zones by this ordinance. Such local roads would be used mostly by residents who can vote for town council members, rather than by out of town drivers who cannot.

Several of these roads are on state highways: Kennilworth Avenue(201) and East West Highway(410). The SHA has authority to designate school zones on state highways or approve the use of speed cameras there, according to SHA publications. A member of StopBigBrotherMD.org contacted the SHA and was told in a letter that the SHA had no record of school zones existing in the specified locations on SH201, or US1(which is also under SHA jurisdiction). Only one location on SH410 was a designated school zone according to the SHA and it was a much smaller area than the one called out in the Riverdale Park ordinance (highlighted in blue in the above map). As of early January the SHA was still waiting on information from Riverdale Park to consider their request.

The Riverdale Park contract called out the first location for the use of speed cameras to be 5415 Kenilworth Ave (which was apparently a previously designated red light camera location). However a Riverdale Park official has stated that they are currently using the cameras on Good Luck Road (a local road which did have a pre-existing school zone), so it appears that their plan to use them on these state highways was temporarily stalled. Under the contract locations can be changed every 15 or more days, but that “Optotraffic reserves the right to decline a request to change a service location which in Optotraffic’s opinion is technically or economically infeasible.

We’ve also been informed that Optotraffic has devised a mechanism to increase their ‘cut’ of each ticket: anyone paying the $40 fee through their online payment system will be billed an additional $3.50 service charge, essentially increasing the contractor’s cut to $19.10.

Sunday, February 7, 2010

New Carrollton Police Chief Lies to Press

The Montgomery County Gazette did a story on the reaction of local governments to the lawsuit against Montgomery County’s contingent fee contract. The story points out how several other governments actually followed Montgomery County’s lead by signing contracts which pay the contractor based on the number of tickets issued. The governments doing so include Baltimore City and New Carrolton. Strangely enough their claims as to why their respective deals are legal are almost the same as the arguments Montgomery County makes, just as their contracts are very much the same as Montgomery County’s contract (paying a cut of each ticket to a vendor who owns, maintains, and processes violations from the cameras). So it appears that what they have learned from the Montgomery County lawsuit is a) that it takes years for a plaintiff to bring such a case to trial b) that even if they are found to be in violation they will be allowed to keep most of the loot.

In that article New Carrollton Police Chief David Rice make s a very specific claim: "We operate it ourselves," he said of the program. "[The contractor] isn't allowed to touch [the cameras]." Now that is very interesting, because we have obtained both a copy of New Carrollton’s contract, which pays Optotraffic a 40.5% cut of the paid ticket revenue (or $16.20 per ticket). That contract states “Optotraffic will perform routine maintenance on its equipment”. Optotraffic also arrange to have the annual calibration checks performed on the devices. So they do that without touching the cameras? And more to the point, this website had already obtained and previously posted a photo of two technicians who identified themselves as Optotraffic Employees, driving a vehicle which was apparently not county or city owned, but clearly performing work on an active speed camera without a city representative present.

So why is Police Chief David Rice telling the media and the public a BOLDFACED LIE that their contractor never touches the cameras?

We do not make a habit of criticizing police for following orders. We do support strict enforcement of traffic laws by humans, and we also have it on good information that many police officers do not like speed cameras. But police chiefs are political appointees, beholding to local elected officials. Under Police Chief Rice’s watch New Carrolton used red light cameras to systematically ticket drivers who came to a full stop at intersections. Even though a district court rejected by throwing out many of these tickets, the new Carrollton PD’s websites states in its FAQ that they still engage in this practice: “Q: I received a Red Light Camera ticket in the mail, but I am sure I stopped for the light. Why did I receive this? A:In addition to vehicles which proceed through the intersection while the light is in the red phase, red light camera violations are also triggered by vehicles which pass the clearly marked "stop line" or enter the pedestrian crosswalk. “ And New Carrollton was one of the first locations in the state to being the practice of creating new school zones solely for the purpose of putting up speed cameras. In this case, one does begin to see a pattern.

This would not be the first time a government official has lied about the contingent fee issue. Just before the truth about Montgomery County's contract came out, County Executive Legget told the public "Under the contract, we pay a flat fee". The county had also previously promised AAA that there would be no per-ticket contracts. After the story broke Montgomery County officials made statements no less than three times in 2008 that the per ticket payments would be eliminated, but instead the contract was renewed in early 2009.

So if some officials becomes overzealous about perverting our justice system into a revenue generating venture, enough so to lie to the public about it, is that their fault or the fault of the state lawmakers who voted to enable this with statewide speed cameras and put every out of town driver at the mercy of the state’s most corrupt local governments?

Tuesday, February 2, 2010

Montgomery County Speed Camera Lawsuit Progresses

On Friday January 29, 2010 a Montgomery County Circuit Court Judge approved class certification in the lawsuit against Montgomery County's contingent fee speed camera contract with ACS State and Local Solutions. This is a significant step forwards in the case which was originally filed in May 2008. A jury trial is scheduled for July 12th, 2010.

The lawsuit alleges that because the county pays ACS a $16.25 cut of each ticket it violates a provision of the state’s speed camera law which specifies that "If a contractor operates a speed monitoring system on behalf of a local jurisdiction, the contractor’s fee may not be contingent on the number of citations issued or paid." Montgomery County claims that the provision does not apply because they assert that the county rather than ACS "operate" the cameras. ACS has substantial control over the system with their own press releases stating that "ACS processes violations; generates and mails notices; schedules adjudication and appeals appointments; provides document imaging and correspondence management; provides walk-in customer service; maintains camera equipment; and provides pay-by-web, pay-by-phone, and integrated voice response systems."

The State Attorney General's office issued a Letter of Advice supporting the county's position in March 2008. That letter of advice a) is not an official attorney General's opinion and did not go though the same extensive review process (read about the difference on the OAG website) b) nullifies itself with the hedging language "if the facts are different than I have understood them, a reviewing court may well come to the opposite conclusion.", and c) was written a full year after the contract was in effect at a time when the governor was trying to push statewide speed cameras through the 2008 General Assembly.

Per-ticket payment contracts are preferred because they can guarantee the programs will make money for the government. However they also give the contractor an incentive to try to maximize the number of tickets issued, and may be seen as a legal conflict of interest because the contractor who gathers and processes evidence for court cases has a financial stake in finding defendants guilty.

Montgomery County officials publicly stated several times in 2008 that they would eliminate the per-ticket payments from their contract, including in statements to the Gazette, in an online forum held by County Executive Leggett, and in a letter from Police Chief Manger to AAA. Instead the county quietly renewed the current per-ticket agreement in early 2009.

The governments which are defendants in this case have issued a total of over 1.3million citations to drivers under their contracts with ACS since they started in 2007. Montgomery County expects to reach $62million in net revenue by June of 2010.

If the jury rules against the County, many of the tickets issued under the contract might need to be refunded, however the Local Tort Claims Act may to some extent allow the county to dodge liability for having broken the law. The cities of Rockville, Gaithersburg, and Chevy Chase Village are also defendants in the case. A judgment is unlikely to end the county's program since alternative contract arrangements such as flat monthly fees, time and materials, or purchasing cameras outright are still possible. Many other local governments have signed similar contingent fee contracts within the past year, including (but not limited to) Baltimore City, Bowie, New Carrollton, and Riverdale Park. Those cities would not automatically be forced to refund any tickets if Montgomery County loses its case, however they could be forced to change their contracts and/or be held liable in another lawsuit should the court decide against Montgomery County.

The case will also decide a very important principal: is the government required to obey the law, or are they allowed to interpret any inconvenient restriction out of existence, or simply break them, if it is expedient to do so?

Recipients of tickets issued by Montgomery County, Gaithersburg, Rockville, or Chevy Chase Village who wish to join this suit should send a letter to the respective local government stating that they will be making a claim against them regarding their citation. Under the circuit court ruling, a requirement of the Local Tort Claims Act may limit the case to those ticket recipients who notify the government issuing the citation within 180 days of the alleged violation about their intent to make a claim. We will provide more details on this and a sample letter in the near future so please check back.
========================
Additional coverage in the Montgomery County Gazette