Tuesday, May 26, 2015

Lawsuit Challenges "Ombudsman's" Qualifications

Attorney Paul Layer has filed suit in Montgomery County Circuit Court, alleging that the Local Designee (aka "Ombudsman") selected for Montgomery County's speed camera program failed to comply with a transparency requirement of state law and furthermore does not meet the requirements to hold the position.

The "Local Designee" position was created in 2014 under a bill which amended the state's speed camera law.  Among the requirements of the position was that records of complaints be kept on file and be made available to inspection.  On February 20, 2014, Mr Layer requested access to such complaints issued during the month of January 2015.  "Local Designee" David McBain responded that they had received 14 requests for citation review.  "However, on April 6, 2015, Local Designee McBain again contacted Petitioner, by telephone and e-mail, informing Petitioner that Assistant Montgomery County Attorney, David  Stevenson, instructed him NOT to provide the 14 requests previously identified by Local Designee McBain as responsive to Petitioner’s request. " wrote Layer in his petition to the court.  Layer had specifically agreed to the redaction of any identifiable information from the records.    The county responded that they would only provide the documents if Layer re-entered his request under the Public Information Act.  This would have, among other things, allowed the county an additional 30 days to delay providing the documents even though more than a month had already elapsed, and permitted them to charge fees or claim specific exemptions to disclosure under the MPIA.  The petition requests the court provide a "writ of mandamus" requiring that McBain release the documents under article 21-809(b)(1)(ix)5.

Layer further noted in his petition to the court that the state law provided that “[a] local designee may not be employed by a speed monitoring system contractor or have been involved in any review of a speed monitoring system citation, other than a review of a citation under this subparagraph.”  David McBain is the Deputy Director of the Montgomery County Traffic Division, and is second in command to Captain Tom Didone who runs the Traffic Division and thus the automated traffic enforcement division.  McBain thus has supervisory control over the automated traffic enforcement division whenever Captain Didone is unavailable.  The complain alleged that McBain thus does not meet the qualifications to serve as local designee because a supervisory role necessarily makes him involved in the review of citations: "Upon information and belief, and as provable after further discovery, Local Designee McBain has been, and continues to be, “involved in any review of a speed monitoring system citation, other than a review of a citation under [MD TRAN 21-809(b)(1)(ix)].”  Consequently, Local Designee McBain’s designation as Montgomery County’s “local designee” violates MD TRAN 21-809(b)(1)(ix)3." stated the complaint.  The petition requests the court provide a "writ of mandamus" requiring that McBain be removed from the role of local designee.

David McBain and his superior Captain Tom Didone were personally involved in the informal "workgroup" which wrote the reform bill creating the "Local Designee" position, having affirmed that Delegate James Malone called them into meetings to discuss the legislation (to which opponents of speed cameras were not invited). In testimony to the legislature Captain Didone used the term "Ombudsman" to describe the position, a term which implies a degree of independence.  The Maryland Drivers Alliance has been critical of the so called "reform" measure, with our position being that what was required was OUTSIDE oversight and/or scrutiny, and that local governments would merely assign the "ombudsman" role to an existing employee within the program who would act to defend the agency's policies rather than scrutinizing them,  Since the act went into effect, Montgomery County has disavowed the use of the term "ombudsman" in writing several times.