Judge denies county request to dismiss Question B lawsuit -- Gazette.Net


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This story was updated on May 14, 2013.

A judge has denied Montgomery County’s motion to end a lawsuit challenging the county’s campaign for Question B last fall, likely sending the case to trial.

Fraternal Order of Police Lodge 35 sued the county on Nov. 5, 2012, claiming the county was acting illegally when its spent taxpayer money to advocate for “yes” votes on ballot Question B. They also alleged that some of the information produced by the county misrepresented facts.

Question B asked voters if they wanted to affirm a 2011 bill that changed the way police bargain the effects of management decisions, a move the county supported but the FOP contested.

The lawsuit specifically names County Executive Isiah Leggett (D) and Public Information Director Patrick Lacefield. The union is seeking to have Leggett and Lacefield reimburse taxpayers for the money spent, which according to county figures totals $122,000.

In February, the county petitioned the court to have the case dismissed and for immediate decisions on some counts in the complaint.

The Gazette obtained a transcript from the April 18 hearing where Montgomery County Circuit Court Judge Ronald B. Rubin heard arguments on the county’s motion.

In considering whether to dismiss the case, the judge questioned what the county was asking him to rule.

“Let me understand,” Rubin said according to the hearing transcript. “You want me to hold government officials on government time using government money can lie to the public about a pending thing they’re voting on, and it’s OK with the judges? Because that’s what you’re asking me to do.”

Edward B. Lattner, chief of the Division of Human Resources and Appeals in the County Attorney’s office, argued that the veracity of the campaign was not the issue before the court.

“The truthfulness is not at issue. This is not a libel case,” he said, according to the transcript.

“Either this is protected government speech, which is not limited by these provisions, you know, it is permissible or it is not permissible,” Lattner went on to argue. “There is no law that requires, you know, truthfulness from elected leaders, I’m sorry to say.”

Rubin was not convinced and ended the hearing by denying the county’s motion, saying, “I have an unanswered question.”

Denying the motion to dismiss sends the case forward. A status hearing is scheduled for Aug. 16 at 8:30 a.m. and a trial is scheduled for Jan. 6 at 9:30 a.m.

Marc Zifcak, immediate past president of Lodge 35, said he has learned to not have expectations in cases like these.

“We filed the suit believing the county has broken the law, and we’re even more disturbed by the claims of the county attorney at the hearing,” Zifcak said. “Now this is going to have its day in court.”

At the time the lawsuit was filed, Leggett brushed it off, saying the issue of the county campaigning for a ballot measure has come up during previous elections.

Leggett said the issue was investigated in 2010, when a proposed fee for ambulance services was being debated. The county, with permission from the Attorney General’s Office, advocated for the ambulance fee, spending about $12,000 in county funds to do so.

“This is just the latest side note of an endless array of attention-grabbing techniques to try to confuse voters,” Leggett said in November. “... I’m certainly not impressed with what they’re doing.”

During its Question B campaign, Montgomery County used taxpayer funds to buy such items as bumper stickers for county vehicles and signs for Ride On buses, as well as to hire poll workers.

Lacefield said in an email the county spent, $54,465.34 on printing, $54,464.91 on postage, $6,000 bus advertising, $550 on other advertising, $2,005.92 on unspecified “other” materials and $4,864 on the “field” for early voting and election day.

In total the county spent $122,350.17.

Voters supported Question B in the Nov. 6, 2012, election with about 58 percent voting to have the effects bargaining repeal become law.

The lawsuit was the union’s last attempt to have the county’s publicly financed campaign declared illegal.

The union previously requested that the Maryland State Prosecutor investigate the county’s action and the U.S. Attorney for the District of Maryland investigate if federal dollars have been expended. Maryland Attorney General Douglas F. Gansler also had been asked to weigh in on the issue by the state prosecutor.

kalexander@gazette.net