Wednesday, September 24, 2014

Will Montgomery County Seek To Reinstate "Squealer Provision"?

We previously reported that the court has ruled it is an explicitly permitted defense under Maryland law if the recipient of a speed camera ticket ticket is not the driver, and moreover that this does not require the person to identify and incriminate the person who was driving.  The language on citations implies to ticket recipients that the only option is to "transfer liability" which applies "If you, as the registered owner, were not operating the vehicle at the time of this infraction and you choose to identify the person who was".  The circuit court ruled that a change made to the law in 2009 deleted the requirement to identify the driver, and district court judges in Montgomery County have upheld this twice since then.

However Montgomery County has refused to change the language which appears on their citations.  Furthermore, the head of Montgomery County's speed camera program has indicated that the believe that the specifically authorized affirmative defense is a "loophole" created by an ill informed legislature, and raised the possibility that Montgomery County could seek to negate the court decision in the future by restoring to state law the requirement to incriminate another person in order to exonerate yourself.

The reply was in response to a letter from a member of the National Motorists Association (a national motorist rights organization) to Captain Tom Didone (the head of Montgomery County's speed camera program), who was confronting the county about the issue of language about "transfer of liability" on a sample affidavit on their website, and discussed the paragraph which was deleted from the law in 2009.  Captain Didone replied in an email dated August 26th, regarding his feelings that the defense, which the Circuit Court had already ruled on, was not the intent of state law:
"I believe that there is no harm in mentioning that people can always choose to identify the driver if they want to.  This requirement was initially included into the law because the law requires rear photography only so that the driver’s identity could not be told.  The fundamental concept that was understood was that the owner was responsible for his or her vehicle unless otherwise notified.

The Legislature removed the paragraph and created the loophole in the law in 2009 (when I was not assigned her in Traffic and not able to provide testimony).  It is a loophole that you are working to promote and advertize and not the intent of the law.

Time will tell if the Legislature will close the loophole once they receive the appropriate information..
"

Captain Didone has testified before legislative committees in opposition to positions held by the Maryland Drivers Alliance, at the expense of Montgomery County taxpayers, in each of the past three years.

Captain Didone continued his explanation in a follow-up email dated  August 27, 2014(after members of the county council had been copied) to indicate his view that the 2009 change to the law was somehow invalid because he was not personally involved in its writing.
"When the General Assembly revised the law in 2009, they removed the paragraph that required the owner to identify the driver, if they wished to transfer the liability.  This provision was a mandate in the law that passed the 2006 General Assembly when Montgomery County was authorized to operate the first speed cameras in the State. This is why I used the phrase “Loophole” because by removing the paragraph, an issue was created that was not previously experienced. Last year, when I worked on the Speed Camera Reform legislation workgroup, I was informed by staff that legislators voted to remove the “Squealer provision” as it was referred to when they revised the law in 2009.  It is my personal opinion that the legislators took this action without being fully informed of the consequences because they did not have the same workgroups as they did last year.  The “loophole” issue was not in the forefront of our minds so the matter was not raised in last year’s work group. The County has not decided if we are going to take this matter forward with the General Assembly.  The provision has not had a significant impact on our ability to change behavior and most owners are accepting responsibility for their vehicles.  If this changes, I hope that the County would work to address the issue."
The County Executive and members of the County Council had been copied on these emails, but did not respond.

These emails were forwarded to the Maryland Drivers Allaince, and the chairman of The Maryland Drivers Alliance replied to Didone's email by asking him about the "work group" he participated in.  In that reply we asked for the agendas, minutes and participants of the "speed camera reform work group" under the Open Meetings Act.  Didone did not respond.  An amendment to Maryland's speed camera law was passed in 2014 based primarily on input from local governments, and was drafted by an apparently "secret" legislative workgroup.  The Maryland Drivers Alliance has so far been unable to find any public notices for the meetings of the "workgroup" which wrote it or a list of participants.

Despite Didone's opinion on the Court's decision and the intent of slate law, the fact that legislators referred to the deleted requirement as a "Squealer Provision" seems to indicate that lawmakers knew precisely what the effect of the previous requirement was, and that deleting it removed the requirement to incriminate another person,  In other words it seems to support that the legislative intent was to remove the obligation to name the driver.

County Executive Ike Leggett
Elected Officials are the ones who set county policy
Since Didone's response indicated that the county MIGHT seek to restore the "Squealer Provision" in the future, we asked the County Executive and County council their position by email on whether they would seek to restore the requirement.  We additionally asked the county council and county executive their position on the county holding secret meetings, such as the Speed Camera Symposium which Captain Tom Didone banned critics of speed cameras from observing last year, and asked whether they .  Neither the County Executive nor any member of the County Council responded to our questions.

The Chairman of the Maryland Drivers Alliance identified himself as a resident of Council President Craig Rice's district, and specifically asked Council President Craig Rice:
- Will Montgomery County ask the state legislature restore the "Squealer Provision" to Maryland's law as Didone has suggested? 
Montgomery County Council President Craig Rice
Elected Officials are the ones who set county policy
- Do you believe that Montgomery County Speed Camera Citations and the Montgomery County Safe Speed website should be modified to correctly state that it is a defense under Maryland law if you were not driving and that there is no requirement to identify the driver?
- Do you believe it is acceptable for the Safe Speed program to organize secret meetings like last year's "Speed camera symposium," which exclude th public and the press at the absolute discretion of county employees, or to be involved in secret legislative meetings like this "speed camera work group" ?
- Are you willing to support legislation requiring the county to disclose all taxpayer funded lobbying conducted by county employees?

Craig Rice has not responded to any of our questions.

Craig Rice has had his own issues with traffic tickets in the Past.  Last year it was reported that Rice had run up over a thousand dollars in unpaid parking and traffic ticket fines in DC and Maryland, Those tickets were paid shortly after Mr Rice was contacted about them by the press.

Since the incumbent elected officials will not answer questions, the public is left to wonder whether they will use taxpayer resources to lobby for limiting the People's legal rights in the future in secret legislative meetings.  We are also left wondering whether elected officials in Montgomery County would ever be willing to reveal to the public that their tax dollars are being used to lobby for legislative changes which some taxpayers oppose.