A headline on this story was corrected on March 27, 2014, to accurately reflect what each side said about the court decision.
Montgomery County acted illegally when it spent taxpayer money to campaign for votes on a 2012 ballot question, a circuit court judge has ruled.
But while Judge Ronald B. Rubin found the county in the wrong, he did not order County Executive Isiah Leggett (D) or spokesman Patrick Lacefield to repay county coffers or pay damages to the police union, Fraternal Order of Police Lodge 35, which brought the suit.
Lacefield called the ruling a “split decision,” adding that the county disagrees with the court on the legality of the campaign.
“This is clearly a victory,” said Marc Zifcak, immediate past president of Lodge 35. “We said it was illegal. The court agrees it was illegal. They do not have the authority to do this.”
At issue in the case was the $122,315 of public money, plus paid staff time, that the county spent on everything from bus ads and bumper stickers to poll workers and consultants persuading voters to vote “yes” on Question B in the 2012 general election. Question B asked voters if they wanted to uphold a 2011 law that repealed a long-standing bargaining right for the police union. The law removed the right of the union to bargain the effects of management decisions. Voters upheld the law.
On Nov. 5, 2012, the union filed suit in Montgomery County Circuit Court, asking a judge to declare the county’s actions illegal and make Leggett and Lacefield repay the taxpayers for the campaign as well as repay the union for its expenses in the campaign and in court.
On March 19, the court found the campaign illegal, but denied damages.
Zifcak said Lodge 35 spent $169,619 responding to the county’s campaign and trying to persuade voters to reject the ballot question.
Zifcak called the county’s actions a power grab.
“It was a win-at-all-costs strategy by Isiah Leggett using taxpayer money so he didn’t have to use [political action committee] money,” he said. “This could have been anyone, a [homeowners association], a community group, anyone trying to challenge a county council bill only to find the county executive using their own money against them. And that is unconscionable.”
As a consequence of the county’s actions, Rubin wrote that Lodge 35 spent more than it otherwise would have on its campaign.
But the court did not agree that Leggett and Lacefield should repay the union.
“What [Rubin] said was that in fact, the county had told the truth, and that both myself and Ike, because we acted in good faith on the advice of state and county attorneys, we are not liable for any damages,” Lacefield said.
Lacefield said he and Leggett acted on the advice of County Attorney Marc P. Hansen, who said the campaign was legal and a 2010 opinion from the Maryland Attorney General’s Office that said the campaign was not subject to campaign finance law.
In its decision, the court ruled that the county may use taxpayer money to inform the public, but not to campaign politically.
When a ballot question deals with repealing a law, it’s hard to be informational without telling voters what voting for and voting against the question means, Lacefield said.
But Montgomery County did not simply tell the voters what a yes or a no vote meant; rather, it “manifestly engaged in electioneering and conducted a political campaign advocating how voters of this county should vote on Question B,” Rubin wrote.
The county argued that providing the government’s position on the issue was in the public’s interest and that such “government speech” is authorized under the Maryland’s Home Rule Amendment, Hansen said.
The court disagreed.
“Engaging in political electioneering simply is not ‘essential or indispensable’ to running a municipal government,” Rubin wrote. “Under the Home Rule Amendment, absent an express grant of authority from the General Assembly, the County may not do so.”
Rubin also wrote that the county’s “proposed application of the government speech doctrine would turn democracy, as well as the doctrine, on its head.”
The doctrine, he said, was created by the Supreme Court to analyze and reject First Amendment challenges to government action. It does not sanction or make it a right for county government to advocate or spend public money on political campaigns, he continued.
“In no case has the Supreme Court or any appellate court applied the ‘government speech’ doctrine to sanction what the County proposes: the unlimited spending of public funds by a governmental entity to influence a contested election,” Rubin wrote.
Neither Hansen nor Zifcak would say if their side would appeal the decision.
Because neither side got entirely what it wanted, both could appeal, Hansen said.