Dzurec v. Bd. Of Cty. Comm'rs Calvert Cty. , 482 Md. 544 ( 2023 )

Susan Dzurec, et al. v. Board of County Commissioners of Calvert County, Maryland, et
al., No. 1, September Term, 2022, Opinion by Booth, J.
PUBLIC ETHICS LAW—CONFLICTS OF INTEREST—RIGHT TO
DECLARATORY RELIEF
The Calvert County Ethics Code prohibits local elected officials from participating in
matters in which they have a conflict of interest. Petitioners filed a complaint in the Circuit
Court for Calvert County seeking a declaratory judgment that the Calvert County
Comprehensive Plan was “illegally passed” and was “therefore void” because one member
of the Board of County Commissioners of Calvert County had a conflict of interest in the
legislation and did not recuse himself. The circuit court granted Calvert County’s motion
for summary judgment, which was affirmed by the Appellate Court of Maryland. The
Supreme Court of Maryland affirmed the circuit court’s judgment.
The Supreme Court of Maryland held that Petitioners were not entitled to the relief sought.
Under Maryland common law, ordinarily courts will not consider the motives of legislators
or public officials when undertaking purely legislative acts. The common law principle
arises from separation of powers concerns under Article 8 of the Maryland Declaration of
Rights.
The Supreme Court also rejected the Petitioners’ assertion that the County Commissioners
created an implied right of action that would entitle Petitioners to the remedy they sought.
Assuming, without deciding, that the County Commissioners had the legal authority to
establish such a right, there was no evidence that the County Commissioners intended to
create such a private right of action.
Circuit Court for Calvert County
Case No.: C-04-CV-19-000574
Argued: September 12, 2022
IN THE SUPREME COURT
OF MARYLAND*
No. 1
September Term, 2022
SUSAN DZUREC, et al.
v.
BOARD OF COUNTY COMMISSIONERS
OF CALVERT COUNTY, MARYLAND, et al.
Fader, C.J.,
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Opinion by Booth, J.
Filed: January 25, 2023
* At the November 8, 2022 general election, the
voters of Maryland ratified a constitutional
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
amendment changing the name of the Court of
document is authentic. Appeals of Maryland to the Supreme Court of
2023-01-25 10:30-05:00
Maryland. The name change took effect on
December 14, 2022.
Gregory Hilton, Clerk
In this case, we must determine whether the Petitioners, four Calvert County
residents, Susan Dzurec, Myra Gowans, Michael King, and Phyllis Sherkus (collectively,
“Dzurec”), may bring an action against the Board of County Commissioners of Calvert
County, Maryland (the “County Commissioners” or “Commissioners”) and Calvert
County, Maryland (“the County”), seeking a declaratory judgment that the Calvert County
Comprehensive Plan was “illegally passed” and is “therefore void” because one of the
Commissioners, Kelly D. McConkey, had a conflict of interest in the legislation and did
not recuse himself. Dzurec filed her action against the County1 in the Circuit Court for
Calvert County, requesting that the circuit court void the Comprehensive Plan in light of
Commissioner McConkey’s conflict. Following a hearing, the circuit court granted the
County’s motion for summary judgment. Dzurec filed a timely appeal to the Appellate
Court of Maryland (at that time named the Court of Special Appeals of Maryland),2 which
affirmed the judgment of the circuit court in an unreported opinion. Dzurec v. Bd. of
County Comm’rs, No. 29, Sept. Term, 2021, 2021 WL 6111666 (Dec. 27, 2021).
1
We will collectively refer to the County and the County Commissioners as “the
County.”
2
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
Dzurec petitioned this Court for a writ of certiorari, which we granted to consider
the following question:3
Whether the circuit court erred in granting the County’s motion for summary
judgment where Dzurec sought a declaratory judgment that the adoption of
the Calvert County Comprehensive Plan—a legislative enactment by the
County Commissioners—is void because one Commissioner’s vote on the
legislative action violated the conflicts of interest provisions of the Calvert
County Ethics Code.
For the reasons set forth below, we answer the question “no” and affirm the
judgment of the circuit court.
I
Statutory and Local Law Framework
Before we turn to the facts and procedural history in this matter, it is useful to
discuss some of the statutes and local laws that form the backdrop for the dispute between
the parties—specifically: the Maryland Public Ethics Law,4 which mandates that local
governments adopt and enforce local ethics ordinances; the Calvert County Ethics Code
that has been adopted pursuant to the requirements under the Maryland Public Ethics Law;
3
The petition requested that we answer the following questions, which we
consolidated and rephrased into one question:
1. Whether Commissioner McConkey’s vote to enact the Comprehensive
Plan was ultra vires where he voted in violation of the Calvert County
Ethics Ordinance, and where that vote was the deciding vote.
2. Whether the Calvert County Ethics Ordinance includes an implied cause
of action for citizens with standing.
4
Md. Code (2019 Repl. Vol., 2022 Supp.), General Provisions (“GP”), Title 5.
2
and the legislative requirements set forth in Title 3 of the Land Use Article,5 which mandate
that local governments having planning and zoning authority adopt a comprehensive plan.
State Law Requirements for the Establishment of Local Public Ethics Laws
The General Assembly has enacted a comprehensive State ethics law, the Maryland
Public Ethics Law, which is codified in Maryland Code, Title 5 of the General Provisions
(“GP”) Article. The substantive provisions of that law cover three areas—conflicts of
interest (subtitle 5), financial disclosure (subtitle 6), and lobbying (subtitle 7). Seipp v.
Balt. City Bd. of Elections, 377 Md. 362, 364–65 (2003). These “provisions apply to
officials and employees of the State government and to persons who engage in lobbying
activities with the legislative or executive branches of the State government.” Id. at 365.
Administration of the law is vested in the State Ethics Commission, which is created and
provided for in subtitle 2. As this Court explained in Seipp, “[m]any of the substantive
provisions in those subtitles deal specifically with or have particular relevance to State
agencies and to people who do business with State agencies, thus making their direct
application to local governments and officials impractical.” Id. That said, “[t]he General
Assembly clearly desired that local officials and employees be subject to a comparable
code[.]” Id. Instead of attempting to legislate a single code of ethics, or separate codes,
for the wide variety of county and municipal officials, the Legislature opted to mandate
that: (1) each local government enact a local public ethics law to govern the public ethics
of local officials relating to conflicts of interest, financial disclosures, and lobbying; and
5
Md. Code (2012 Repl. Vol., 2022 Supp.), Land Use (“LU”), Title 3.
3
(2) the local legislation be similar to the State requirements. Id.; GP §§ 5-807–5-810.
GP § 5-807(a) sets forth the general requirement that each county and municipal
corporation “enact provisions to govern the public ethics of local officials relating to:
(1) conflicts of interest; (2) financial disclosure; and (3) lobbying.” With respect to
conflicts of interest provisions, State law requires that the local ethics law be “similar to
the provisions of Subtitle 5” of the Maryland Public Ethics Law, but the local law “may be
modified to the extent necessary to make the provisions relevant to the prevention of
conflicts of interest in that jurisdiction.” GP § 5-808(a).
The General Assembly has delegated to the State Ethics Commission the
authority to promulgate regulations and perform oversight of local jurisdictions to
ensure that local public ethics laws are consistent with the Maryland Public Ethics Law.
GP §§ 5-205, 5-206, 5-812. Specifically, the State Ethics Commission is required to
“adopt by regulation model provisions for local governments” on conflicts of interest,
financial disclosure, and regulation of lobbying. GP § 5-205(b)(1). Consistent with
this legislative directive, the State Ethics Commission has created two “model local
ethics laws”—one as a guide for larger counties and municipalities, and another for
smaller counties and municipalities. COMAR 19A.04.04.01–.02. These model local
ethics laws serve as a template for local legislation—enabling the legislative body to
enact a modified version of the model law that addresses the needs of the particular
jurisdiction, while at the same time ensuring that it is “similar to” the Maryland Public
Ethics Law. The model local ethics laws contemplate that the local public ethics law
will be enforced at the local level by a local ethics commission established for that
4
purpose. COMAR 19A.04 Appendices A and B. Ultimately, each jurisdiction is
required to submit its local public ethics law to the State Public Ethics Commission for
its review and approval, thereby ensuring that all local governments comply with the
requirements under State law. COMAR 19A.04.03.02B.
Calvert County Ethics Ordinance
Calvert County’s local public ethics law is codified as Chapter 41 of the Calvert
County Code (“Calvert County Ethics Code” or “CCC”). The Calvert County Ethics Code
is, for the most part, substantially the same as the model local ethics laws contained in the
regulations promulgated by the State Ethics Commission, except for formatting and
nomenclature changes to make it consistent with the County’s particular local government
structure. Among other things, the Calvert County Ethics Code: (1) describes the
individuals who are subject to its provisions; (2) sets forth conflict of interest, financial
disclosure, and lobbying requirements; and (3) establishes the Calvert County Ethics
Commission (“Ethics Commission”), including its powers and duties.
The Calvert County Ethics Code establishes a process for the investigation and
enforcement of complaints alleging a violation of its provisions. Specifically, a
complainant who believes that an individual has violated the Calvert County Ethics Code
may file a complaint with the Ethics Commission. CCC § 41-12.A. The Ethics
Commission has the authority to investigate the complaint and to conduct an adjudicatory
hearing to determine whether a violation has occurred. CCC § 41-12.C. The Code
describes the Ethics Commission’s enforcement authority as follows:
Based upon the evidence submitted to the Commission, the Commission has
5
the authority to do one or more of the following:
(1) Dismiss the complaint;
(2) Issue a cease-and-desist order and/or a recommendation for corrective
action;
(3) Issue a reprimand or censure;
(4) Recommend disciplinary action; and
(5) Make written findings of fact and conclusions based on the evidence.
The Commission shall send its written findings to the complainant and
the respondent. An ethics violation does not exist until a
determination of a violation is made by the Commission.
CCC § 41-12.G. In addition, if the Ethics Commission finds, when considering a
complaint, “that there are reasonable grounds to believe that the respondent may have
committed a criminal offense, the Commission shall promptly refer the matter to an
appropriate prosecuting authority.” CCC § 41-12.I. A person who is the subject of a
decision or action by the Commission “may seek judicial review of that decision in the
Circuit Court for Calvert County in the manner prescribed by” Maryland Rule 7-201,
et seq. CCC § 41-12.J.
The ethics violation that forms the basis for Dzurec’s complaint in this case arises
from the County Commissioners’ adoption of the Calvert County Comprehensive Plan.
We turn next to the provisions of State law that govern a local government’s adoption of a
comprehensive plan.
State Law Requirements for the Adoption of a Comprehensive Plan
In Maryland, counties and municipal corporations having planning and zoning
authority are required to adopt a “comprehensive plan.” Md. Code (2012 Repl. Vol., 2022
6
Supp.), Land Use (“LU”) §§ 1-405, 3-101. “Plans are developed to guide the
implementation of land use controls and zoning in a rational way that is beneficial to the
public.” County Council of Prince George’s County v. Zimmer Dev. Co., 444 Md. 490,
520 (2015) (citations omitted). A comprehensive plan generally applies to a substantial
area and is the product of years of long study and public input. Id. at 520–21. Under State
law, the comprehensive plan must include certain elements, including community
facilities, land use, sensitive areas, water resources, and transportation elements. See LU
§§ 1-406(a), 3-102(a). The preparation of a comprehensive plan is undertaken by the
planning commission of the local jurisdiction and presented to the local legislature for
adoption. See LU §§ 1-406(a)(1), 1-415(b), 3-102(a), 3-202(a). The legislative body is
required to adopt a comprehensive plan by legislative act. Once a local jurisdiction adopts
a comprehensive plan, it may then adopt zoning, development, and subdivision regulations
to implement the plan. See LU §§ 1-415(b), 3-303(b). The local jurisdiction is also
required to review its comprehensive plan “[a]t least once every 10 years . . . and, if
necessary, revise or amend” the plan to ensure that it includes the elements and visions
required under State law. LU §§ 1-416(a), 3-301(a).
As we will discuss below, Dzurec contends that the County Commissioners’
adoption of the Calvert County Comprehensive Plan violated the Calvert County Ethics
Code and sought a judicial declaration from the circuit court that its adoption was ultra
vires and therefore void.
7
II
Factual Background
Adoption of the Calvert County Comprehensive Plan
In 2015, the Calvert County Planning Commission (“Planning Commission”)
determined that it was necessary to update the existing Calvert County Comprehensive
Plan. Over the course of several years, the Planning Commission held public meetings and
workshops, and obtained input from the public, adjoining jurisdictions, and state and local
governmental agencies. During these meetings, there was considerable discussion
concerning the County’s “Town Centers”—or primary designated growth areas.6 One such
designated growth area, known as the “Huntingtown Town Center,” was the subject of
discussion and debate.
On April 4, 2019, the Planning Commission adopted a resolution forwarding a new
draft of the Calvert County Comprehensive Plan to the County Commissioners. In
connection with the preparation of the draft Comprehensive Plan, the Planning
6
The Calvert County Comprehensive Plan describes “Town Centers” as the
“county’s primary designated growth areas” and as “areas where [transferable development
rights] can be used to increase density to a maximum consistent with the approved Town
Center zoning.” The Comprehensive Plan further states that Town Centers
are the focus of the county’s commercial and employment activities. These
places are designated for the higher intensity and greater variety of
commercial and residential development within the plan boundaries. . . .
Directing commercial, retail, and housing development to Town Centers is a
central element in strengthening economic vitality in Calvert County and an
important counterpart to policies designed to preserve the county’s rural land.
In addition, Town Centers are designated as Priority Funding Areas for state funding
purposes related to public infrastructure.
8
Commission presented the County Commissioners with two options regarding a potential
expansion of the Huntingtown Town Center, which were described as “Option A” and
“Option B.” Under Option A, the Huntingtown Town Center would be expanded from its
current boundaries to include Huntingtown High School. Under Option B, the
Huntingtown Town Center would be expanded to include not only the high school, but also
additional properties adjacent to Cox Road along Route 2 and Route 4, consisting of
approximately one-fourth of a square mile of additional land. Commissioner McConkey
owned real property in the area encompassed by Option B.
The County Commissioners conducted public hearings on the Comprehensive Plan
in June and July 2019. At a meeting on June 25, 2019, the Commissioners discussed the
Plan, including the two options for the expansion of the Huntingtown Town Center. The
Commissioners voted on a motion to adopt and incorporate Option B into the draft
Comprehensive Plan. Commissioner McConkey abstained. The remaining Commissioners
were equally divided: two voted in favor, and two voted against. The motion failed, and
Commissioners tabled the matter for further discussion.
The Commissioners considered Option B once again on August 6, 2019.
Commissioner McConkey voted in favor of it. The motion to adopt Option B passed by a
3-2 vote. At the same hearing, the Commissioners voted on Ordinance 24-19—the
legislation to adopt the Comprehensive Plan that included Option B. The motion to adopt
the Plan passed by a 3-2 vote.
9
Proceedings Before the Calvert County Ethics Commission
After the County Commissioners voted to adopt the Comprehensive Plan, the
Calvert County Ethics Commission received two complaints from citizens alleging that
Commissioner McConkey violated the conflicts of interest provisions of the Calvert
County Ethics Code by participating in the Commissioners’ August 6 vote to adopt and
incorporate Option B into the draft Comprehensive Plan.
The Ethics Commission scheduled an administrative proceeding to consider the
alleged violations. Commissioner McConkey moved to recuse Jennifer Mazur, one of the
Ethics Commission members, from participating in the proceeding. The Ethics
Commission determined that Ms. Mazur was not required to recuse herself.
After an administrative hearing on the matters contained in the complaints, the
Ethics Commission found that Commissioner McConkey violated the conflicts of interest
provisions of the Calvert County Ethics Code by voting on Option B and the
Comprehensive Plan. The Ethics Commission prepared written findings of fact and
conclusions, and a letter titled “Letter of Censure and Cease and Desist,” dated December
15, 2020. The Ethics Commission determined that Commissioner McConkey “improperly
participated in a matter in which [he] ha[d] an economic interest or, alternatively, which
would have a direct or indirect impact on [him], as distinguished from the public
generally.” The Ethics Commission further concluded that Commissioner McConkey was
not “required by law to act” in the matter, which would permit him to participate pursuant
10
to CCC § 41-13.A(2)(b) despite the conflict.7 Based upon its finding of the violation of
the Calvert County Ethics Code, the December 15 letter advised Commissioner McConkey
that the Ethics Commission
hereby issues this LETTER OF CENSURE and orders you to CEASE
AND DESIST from any further violations of Section 41-13. Pursuant to
Section 41-22, should you violate this Cease and Desist order, the Ethics
Commission will seek enforcement of the order in the Circuit Court to
include a fine or civil penalty of up to $2,500 per violation, as well as other
injunctive relief.
The Ethics Commission advised Commissioner McConkey of his right to appeal its
decision to the Circuit Court for Calvert County in the manner prescribed by Maryland
Rule 7-201, et seq.
Thereafter, Commissioner McConkey only sought judicial review of the Ethics
Commission’s conclusion that its member, Ms. Mazur, was not required to recuse herself
from participating in the administrative proceeding. Commissioner McConkey did not
petition for judicial review of the Ethics Commission’s determination that his vote on
7
CCC § 41-13.A(2) permits a person to participate in a matter in certain
circumstances where the person would be otherwise disqualified because of a conflict of
interest if:
(a) The disqualification leaves a body with less than a quorum capable of
acting within a reasonable time;
(b) The disqualified elected official . . . is required by law to act; or
(c) The disqualified elected official . . . is the only person authorized to
act.
11
Option B and the Comprehensive Plan violated the conflicts of interest provisions of the
Calvert County Ethics Code.8
III
Procedural History
In December 2019, Dzurec filed a complaint against the County. Thereafter, Dzurec
filed a “Second Amended Complaint for Declaratory Judgment,” which is the operative
complaint. The complaint alleges that: (1) Commissioner McConkey’s action in voting for
Option B and the Comprehensive Plan violated the County’s ethics law9 because he had a
material interest in the inclusion of the Huntingtown Town Center expansion;
(2) Commissioner McConkey’s vote in violation of the County’s ethics law is therefore
illegal; and (3) Commissioner McConkey’s vote provided the necessary majority for
8
During the pendency of this matter, the Appellate Court of Maryland issued its
decision in In re McConkey, No. 0954, Sept. Term, 2021, 2022 WL 3446226 (Aug. 17,
2022). The Appellate Court determined that the Ethics Commission correctly concluded
that Ms. Mazur was not required to recuse herself, reversed the circuit court’s
determination that her recusal was required, and affirmed the decision of the Ethics
Commission. Id. at *8–9. This Court denied Commissioner McConkey’s petition for writ
of certiorari on December 19, 2022.
9
Dzurec alleges that Commissioner McConkey’s action in voting for Option B and
the Comprehensive Plan violated both the Maryland Public Ethics Law, as well as the
Calvert County Ethics Code. As discussed supra, the substantive provisions of the
Maryland Public Ethics Law do not apply to local government officials. Instead, local
governments are required to adopt their own local ethics laws. See GP § 5-807(a).
Additionally, as discussed herein, Commissioner McConkey did not seek judicial
review of the Ethics Commission’s determination that his participation in the legislative
matters that were the subject to the ethics complaint violated the conflicts of interest
provisions of the Calvert County Ethics Code. Given that there was no appeal of that issue,
the Ethics Commission’s determination is a final decision.
12
passage of the Comprehensive Plan, “and therefore the Plan would not have been enacted
into law but for this refusal to recuse himself.” On this basis, Dzurec sought a “declaration
that the Calvert County Comprehensive Plan was illegally passed because its deciding
voter should have recused himself, and it is therefore void.”10
In December 2020, the County filed a motion for summary judgment. After a
hearing, the circuit court entered an order under the Maryland Uniform Declaratory
Judgments Act, Md. Code (2020 Repl. Vol., 2022 Supp.), Courts and Judicial Proceedings
(“CJ”) § 3-401, et seq., declaring, in pertinent part, that the adoption of the Comprehensive
Plan “was legally passed and implemented” and denied Dzurec’s requested declaratory
relief. Separately, the circuit court entered an order ruling that there was no dispute of
material fact and that the County was entitled to judgment as a matter of law. Dzurec filed
an appeal to the Appellate Court of Maryland.
On appeal, the Appellate Court considered whether the circuit court erred in
determining that the Commissioners legally adopted the Comprehensive Plan despite
Commissioner McConkey’s conflict of interest. Dzurec v. Bd. of County Comm’rs, No. 29,
Sept. Term, 2021, 2021 WL 6111666 (Dec. 27, 2021). Before that court, Dzurec argued
that the Calvert County Ethics Code gives her an implied right of action to seek relief in
the form of a declaration that the Comprehensive Plan was void because Commissioner
10
The complaint also included a second count seeking a declaration that the
Comprehensive Plan “was illegally implemented because the [Commissioners] did not
conform to the requirements of Maryland law regarding notice, amendments, or timely
conveyance of the draft plans to state authorities.” The circuit court granted summary
judgment in favor of the County, and no appeal was taken from that decision with respect
to this count.
13
McConkey’s act in voting for the Plan, given his conflict of interest, constituted an ultra
vires act. She asserted that, because the proper remedy under this private right of action
was for the circuit court to invalidate any legislation that was passed, the circuit court erred
in failing to invalidate the Comprehensive Plan.
The intermediate appellate court rejected Dzurec’s argument and affirmed the
circuit court’s judgment. It held that the Calvert County Ethics Code does not create an
implied private right of action and that, under the common law, the Comprehensive Plan
was not void because a conflict of interest does not make a legislative act ultra vires.
Dzurec, 2021 WL 6111666 at *4-6. As discussed below, we agree with the Appellate Court
and affirm the circuit court’s judgment.
IV
Discussion
On a review of an order granting summary judgment, we begin our analysis with a
“determination of whether a genuine dispute of material fact exists; only in the absence of
such a dispute will we review questions of law.” D’Aoust v. Diamond, 424 Md. 549, 574
(2012) (cleaned up). “If no genuine dispute of material fact exists, this Court determines
whether the circuit court correctly entered summary judgment as a matter of law.” Koste
v. Town of Oxford, 431 Md. 14, 25 (2013) (cleaned up). “Thus, the standard of review of
a trial court’s grant of a motion for summary judgment on the law is de novo, that is,
whether the trial court’s legal conclusions were legally correct.” Id. (cleaned up).
There are no disputes of material fact present in this case. Rather, the parties’
disagreement revolves solely around a question of law—whether Dzurec may seek relief
14
in the form of a declaratory judgment invalidating the County Commissioners’ legislative
enactment of the Comprehensive Plan where a Commissioner’s action in voting for the
Plan violated the conflicts of interest provisions of the Calvert County Ethics Code.
Accordingly, our review is de novo. See Schisler v. State, 394 Md. 519, 535 (2006) (where
“the question before the Court involves the interpretation and application of Maryland
constitutional, statutory and case law,” we review the case under a de novo standard of
review).
Dzurec contends that she has a right to seek her requested relief on two grounds.
First, she contends that she has taxpayer standing to maintain a common law action to
challenge Commissioner McConkey’s act in voting to adopt the Plan in violation of the
Calvert County Ethics Code. She points out that “[t]he common law taxpayer standing
doctrine permits taxpayers to seek the aid of courts . . . to enjoin illegal and ultra vires acts
of public officials where those acts are reasonably likely to result in pecuniary loss to the
taxpayer.” See State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 538 (2014).
She asserts that the common law taxpayer standing doctrine permits her to seek relief in
the form of a judicial declaration that the Board’s adoption of the Comprehensive Plan is
void because Commissioner McConkey’s vote was in violation of the conflicts of interest
provisions of the County Ethics Code and is therefore ultra vires. Second, she asserts that
the Calvert County Ethics Code establishes an implied right of action by local law that
entitles her to the same remedy—a judicial declaration that the Comprehensive Plan is void
because of Commissioner McConkey’s conflict of interest.
15
For its part, the County asserts that the judicial remedy sought by Dzurec, whether
arising under a common law action, or an implied right of action created by local law, is
inconsistent with this Court’s holdings in Sugarloaf Citizens Association, Inc. v. Gudis,
319 Md. 558 (1990), and Kenwood Gardens Condominiums, Inc. v. Whalen Properties,
449 Md. 313 (2016). The County argues that our case law clearly establishes that a court
will not invalidate legislative action based upon an assertion of a Commissioner’s conflict
of interest because such a judicial determination would violate the common law rule against
inquiry into legislative motivation, and also implicates separation of powers concerns
under Article 8 of the Declaration of Rights.11
For the reasons discussed below, we agree with the County and hold that Dzurec is
not entitled to the declaratory relief she seeks. Under Maryland common law, ordinarily
courts will not consider the motives of legislators or public officials when undertaking
purely legislative acts. The common law principle—that a court will not review legislative
action for bias or conflicts of interest—stems from separation of powers principles arising
under Article 8 of the Declaration of Rights. Concerning Dzurec’s assertion that the
County Commissioners created an implied right of action, assuming, without deciding, that
the County Commissioners had the legal authority to establish such a right, there is no
evidence that the County Commissioners intended to create such a private cause of action.
11
Article 8 of the Maryland Declaration of Rights states:
[T]he Legislative, Executive and Judicial powers of Government ought to be
forever separate and distinct from each other; and no person exercising the
functions of one of said Departments shall assume or discharge the duties of
any other.
16
The Declaratory Relief Sought by Dzurec Is Not Permitted Under Maryland
Common Law
In the Sugarloaf and Kenwood Gardens cases, this Court considered issues similar
to the issue here—namely, whether the petitioners in those cases were entitled to a judicial
declaration invalidating legislative acts undertaken by the county legislative body based on
allegations that a particular councilmember had a conflict of interest concerning the subject
matter of the legislative act.
In Sugarloaf, this Court was asked to invalidate a legislative act of the Montgomery
County Council that selected a particular site for the construction of a solid waste mass-
burn facility. 319 Md. at 561–63. Petitioners, the Sugarloaf Citizens Association, Inc.,
and two Montgomery County taxpayers (collectively, “Sugarloaf”) sued the County
Council and one of its councilmembers, Councilman Gudis, in circuit court, asking the
court to “void the action of the Council” in approving the site and in adopting the
resolution. Id. at 563. Sugarloaf contended that Gudis had a “financial interest” by virtue
of his stockholdings in the company that owned the site, and that his vote—which was the
deciding vote cast on the legislative resolution—violated the Montgomery County Ethics
Code. Id. at 566. In support of its requested remedy, Sugarloaf relied on a provision in the
Montgomery County Ethics Code—Section 19A-22(b)—which permitted a court to
void an official action taken by an official or employee with a conflict of
interest prohibited by [the Montgomery County ethics law] when the action
arose from or concerned the subject matter of the conflict . . . if the court
deems voiding the action to be in the best . . . interest of the public.
Id. at 568 (emphasis added in Sugarloaf).
17
The circuit court granted the County’s motion to dismiss. After the intermediate
appellate court affirmed the judgment of the circuit court, we considered whether the circuit
court erred in granting the County’s motion. We determined that Sugarloaf was not entitled
to the relief sought in the complaint and affirmed the judgment of the circuit court.
In considering this question, we assumed that Sugarloaf had common law standing
to bring the action. Sugarloaf, 319 Md. at 568. We held that the provision of the
Montgomery County Ethics Law, § 19A-22(b)—which purported to authorize a court to
void an official action by a public official with a prohibited conflict of interest “if the
court deems voiding the action to be in the best . . . interest of the public”—was
unconstitutional. Id. We determined that the Montgomery County Code provision
“impermissibly attempts to vest in the court a nonjudicial power” in violation of Article
8 of the Maryland Declaration of Rights. Id. We observed that “[c]ourts can invalidate
legislation on grounds of unconstitutionality[,]” and that “[c]ertain local action may be
invalidated if the enacting body failed to comply with enabling legislation requirements
or otherwise acted ultra vires.” Id. at 568–69 (citations omitted). We explained,
however, that courts cannot invalidate legislation “because a judge thinks that to void the
legislation is in some fashion in the best interest of the public. To permit a court to act
on that basis is to permit it to perform a nonjudicial function.” Id. at 569 (cleaned up).
We stated that, under our case law, “that sort of unguided discretion, involving, as it does,
questions of policy and expediency, is legislative, not judicial, discretion. It is the sort
of discretion that may not, consistent with Article 8 of the Declaration of Rights, be vested
in a court.” Id. at 572. Accordingly, we held that Section 19A-22(b) was
18
unconstitutional,12 but that it was severable from the remainder of the Montgomery
County Ethics Code. Id. at 573.
Our analysis did not end there. We proceeded to determine whether, in the absence
of the unconstitutional code provision, Sugarloaf would nonetheless be entitled under the
common law to the remedy sought—namely, a court order striking down legislative action
if the Court assumed that Gudis’s vote violated the conflicts of interest provisions of the
Montgomery County Ethics Law. Sugarloaf, 319 Md. at 577. We stated that “[w]hile we
have assumed that Sugarloaf has Maryland common law standing to bring this action, there
is ordinarily no common law remedy that permits invalidation of legislative action because
of a legislator’s improper motivation. Courts usually do not inquire into legislative
motivation as a basis for setting aside legislation.” Id. (emphasis added).
We revisited these principles in Kenwood Gardens. In that case, an adjacent
property owner challenged the Baltimore County Council’s vote on a planned unit
development (“PUD”) application because the property owner alleged that the developer
12
We note that the language in the Montgomery County Code that was held to be
unconstitutional in Sugarloaf is identical to the language that remains in the current model
ethics laws that are set forth in COMAR 19A.04 Appendices A and B. See Model Ethics
Law A, § 9(b)(2)(i)(B) permitting a court to
void an official action taken by an official or an employee with a conflict of
interest . . . when the action arises from or concerns the subject matter of the
conflict . . . if the court deems voiding the action to be in the best interest of
the public.
See also Model Ethics Law B § 9(c)(2)(i)(B) (same). The State Ethics Commission may
want to revise its model ethics laws to conform them to this Court’s holding in Sugarloaf
to ensure that local governments, when drafting local ordinances or amendments thereto,
do not rely upon a provision that this Court has held to be unconstitutional.
19
had made campaign contributions to the county councilman who introduced and ultimately
voted to adopt the resolution that approved the PUD. Kenwood Gardens, 449 Md. at 318–
20. We were asked to determine whether the alleged appearance of impropriety arising
from illegal campaign contributions operated to invalidate the resolution. Id. at 324.
We first determined that the introduction and passage of the legislation approving
the PUD constituted a legislative act, rather than a quasi-judicial one. Id. at 332–38.
Having made this determination, we noted that “legislative or quasi-legislative decisions
of local legislative bodies are not subject to ordinary judicial review; instead that they are
subject to very limited review by the courts.” Id. at 338 (cleaned up). We stated that
“judicial scrutiny of legislative action under the court’s ordinary jurisdiction ‘is limited to
assessing whether a government body was acting within its legal boundaries.’” Id. (quoting
Talbot County v. Miles Point Prop., LLC, 415 Md. 372, 393 (2010)) (cleaned up). We
“decline[d] to apply the conflicts of interest review” urged by the adjacent property owner
and used by a minority of states. Id. at 341 (cleaned up). We noted that under Maryland
law, “‘when the judiciary reviews a statute or other governmental enactment, either for
validity or to determine the legal effect of the enactment in a particular situation, the
judiciary is ordinarily not concerned with whatever may have motivated the legislative
body or other governmental actor.’” Id. (quoting Workers’ Comp. Comm’n v. Driver, 336
Md. 105, 118 (1994)). We observed that one commentator has explained that:
Judge-made “appearance of fairness” doctrines and special due process
standards governing conflicts of interest and bias in adjudicative zoning
proceedings generally are not applied to members of a legislative body when
engaged in purely legislative zoning actions. The judicial reluctance to
review legislative action for bias or conflicts of interest, stems from a concern
20
for the separation of powers and manifests itself in the traditional rule that a
court will not inquire into legislators’ motives.
Id. at 342 (quoting 2 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning
§ 32:15 (4th ed. rev. 1994)).
We concluded that the introduction and passage of the resolution were legislative
actions, and the motivation behind the votes was “not subject to review for the appearance
of impropriety.” Kenwood Gardens, 449 Md. at 344. Accordingly, we held that the alleged
appearance of impropriety generated by the councilman’s action in introducing and voting
on the resolution to approve the PUD did not invalidate his or the Council’s legislative
actions. Id.Turning to Dzurec’s complaint filed in this matter, for the reasons articulated by this
Court in Sugarloaf and Kenwood Gardens, we similarly conclude that she is not entitled to
the relief she seeks—a judicial “declaration that the Calvert County Comprehensive Plan
was illegally passed because its deciding voter should have recused himself, and it is
therefore void.” In order to explain our reasoning—like the petitioner in Sugarloaf—we
will assume that Dzurec has standing to bring a common law action.
It is undisputed that the County Commissioners’ actions in voting to adopt Option
B, and the resolution adopting the Comprehensive Plan, were legislative acts. The sole
basis for Dzurec’s requested declaratory relief arises from Commissioner McConkey’s
vote on legislative matters where he had a conflict of interest. As discussed in the
Sugarloaf and Kenwood Gardens cases, a petitioner may not ordinarily seek relief from
the courts in the form a judicial declaration that a legislative act is void or invalid based
21
upon the motives of a public official, such as whether the official had a conflict of interest,
when undertaking purely legislative acts. Sugarloaf, 319 Md. at 577 (“[T]here is
ordinarily no common law remedy that permits invalidation of legislative action because
of a legislator’s improper motivation. Courts usually do not inquire into legislative
motivation as a basis for setting aside legislation.” (citations omitted)); Kenwood
Gardens, 499 Md. at 341 (declining to apply a conflict of interest review in connection
with legislative acts used by a minority of states because those cases are inconsistent with
Maryland law). The Maryland common law principle—that a court ordinarily13 will not
review legislative action for bias or conflicts of interest—stems from separation of
powers principles arising under Article 8 of the Declaration of Rights. Simply put, we
observe no daylight between the remedy sought by Dzurec in this case and the remedies
sought by petitioners in Sugarloaf and Kenwood Gardens, which we rejected as being
inconsistent with Maryland common law. At bottom, Dzurec is seeking the same relief
as the relief sought by the petitioners in Sugarloaf and Kenwood Gardens—a judicial
declaration that the Calvert County Comprehensive Plan is void because one of the
Commissioners may have been motivated by self-interest when casting his vote in favor
13
In Sugarloaf, we stated that courts “usually do not” inquire into legislative
motivation, and that there is “ordinarily no common law remedy that permits invalidation
of legislative action because of a legislator’s motivation.” 319 Md. at 577 (emphasis
added). Although we will not say that a court would never review a public official’s
motivation in matters involving legislative action, we determine that there is no reason to
deviate from the general common law rule in this case, particularly given the separation of
powers concerns that are the foundation of the common law principle.
22
of the legislation. Under the common law, the judiciary ordinarily will not void
legislation based upon what it perceives is improper legislative motivation.
Dzurec argues that her cause of action is different from that of the petitioners in
Sugarloaf because she has filed her action pursuant to the common law taxpayer standing
doctrine, which permits her to seek the authority of the court “to enjoin illegal and ultra
vires acts of public officials where those acts are reasonably likely to result in pecuniary
loss to the taxpayer.” State Ctr., LLC, 438 Md. at 538 (citation omitted); see also Inlet
Assocs. v. Assateague House Condo. Ass’n, 313 Md. 413, 440–41 (1988). Dzurec asserts
that Commissioner McConkey’s participation in the Commission’s vote on the
Comprehensive Plan was ultra vires. We disagree.
To be sure, a court may invalidate local legislation if the local government did not
comply with the enabling legislation requirements or acted ultra vires. Sugarloaf, 319 Md.
at 569 (citing Walker v. Talbot County, 208 Md. 72, 86 (1955)). An act is ultra vires when
it is “beyond the scope of power allowed or granted . . . by law.” Ultra Vires, Black’s Law
Dictionary (11th ed. 2019). However, Dzurec’s claim does not fall within the type of cases
where this Court has invalidated a legislative act because the local official or body acted
ultra vires by exceeding the scope of authority authorized by statute or charter. See, e.g.,
K. Hovnanian Homes of Md., LLC v. Mayor and City Council of Havre de Grace, 472 Md.
267, 305–06 (2021) (invalidating a recoupment agreement on the basis that it was not
adopted by an ordinance of the city as required by State law and was, therefore, ultra vires
and unenforceable against the city); River Walk Apartments, LLC v. Twigg, 396 Md. 527,
548–49 (2007) (holding that an agreement signed only by the mayor and not authorized by
23
the legislative body was ultra vires and unenforceable against the city where the enabling
statute required legislative authorization); Inlet Assocs., 313 Md. at 432–34 (invalidating a
city’s action in entering into contracts for the transfer of property interests where the
applicable statute required the adoption of an ordinance, rather than a resolution). In such
cases, the legislative act in question was undertaken in a manner inconsistent with the
authority granted by the enabling statute.
Here, there is no assertion before this Court14 that the adoption of the
Comprehensive Plan was inconsistent with the requirements of the Land Use Article or a
procedural requirement under the County Charter or Code for the adoption of a legislative
act of the County Commissioners. Rather, Dzurec’s sole basis for seeking judicial relief
arises from Commissioner McConkey’s conflict of interest and his action in casting votes
on the legislative matters which concerned the subject matter of the conflict. We have
found no cases in which this Court has held that participation in a legislative matter where
a conflict of interest is determined to exist constitutes an ultra vires act, which would permit
a court to void it. To the contrary, such a holding would be directly at odds with this
Court’s holdings in Sugarloaf and Kenwood Gardens.
14
As discussed supra, Dzurec’s complaint included a second count asking the
circuit court to declare that the Comprehensive Plan was void because the County did not
adopt it pursuant to the requirements under the Land Use Article. After the court’s entry
of summary judgment in favor of the County on all counts, Dzurec did not challenge the
entry of summary judgment on that count, and it is not before us.
24
Dzurec Has No Implied Right of Action Under the Calvert County Ethics Code
We are similarly unpersuaded by Dzurec’s argument that she has an implied right
of action under the Calvert County Ethics Code that would entitle her to seek and obtain a
declaratory judgment that invalidates the Calvert County Comprehensive Plan.
First, assuming, for purposes of discussion, that Calvert County has the authority to
enact a local law that modifies the common law to create such a such a judicial remedy,15
we find that there is no such intention expressed here. As our case law clearly establishes,
a “‘private cause of action in favor of a particular plaintiff or class of plaintiffs does not
exist simply because a claim is framed that a statute was violated and a plaintiff or class of
plaintiffs was harmed by it.’” Aleti v. Metro. Balt., LLC, 479 Md. 696, 723 (2022) (quoting
15
As we recently reiterated in Aleti v. Metropolitan Baltimore, LLC, “the creation
of new causes of action in the courts has traditionally been done either by the General
Assembly or by this Court under its authority to modify the common law of this State.”
479 Md. 696, 718 (2022) (quoting McCrory Corp. v. Fowler, 319 Md. 12, 20 (1990),
superseded by statute as stated in Wash. Suburban Sanitary Comm’n v. Phillips, 413 Md.
606, 627–29 (2010)). “Indeed, a local government . . . which derives its authority from the
Home Rule Amendment, Article XI-A of the Maryland Constitution, may establish a
judicial cause of action pursuant to a local law on a matter of purely local concern, only
where the General Assembly gives a local government the authority to do so pursuant to
the express powers granted to the local government.” Id. (emphasis in original) (citation
omitted).
In Sugarloaf, we determined that the issue of whether Section 19A-22(b) of the
Montgomery County Ethics Law created “an implied or express private cause of action
[was] not critical to our decision and [was] a question we d[id] not address.” 319 Md.
at 566–67. Nor did “we consider whether a chartered county may constitutionally create a
cause of action of the sort arguably involved here.” Id. at 567 n.5 (citing McCrory Corp.,
319 Md. at 24). That said, we held that § 19A-22(b) was unconstitutional because the
General Assembly could not transfer powers to a charter county, pursuant to Article XI-A,
that it did not possess. Id. at 573. We determined that “[s]ince the General Assembly
cannot confer nonjudicial powers on a court, neither can a chartered county[, and] [a]s a
consequence, § 19A-22(b) is unconstitutional.” Id.
25
Baker v. Montgomery County, 427 Md. 691, 708–09 (2012)). “Rather, the issue is a matter
of statutory construction.” Baker, 427 Md. at 709 (citations omitted). “In determining
whether a state statute contains an implied private right of action, we have adopted the
same test applied to federal statutes by the Supreme Court” as articulated in Cort v. Ash,
422 U.S. 66, 78 (1975). Aleti, 479 Md. at 723–24 (citations omitted). That test requires
that we consider the following relevant factors:
(1) Is the plaintiff one of the class for whose special benefit the statute
was enacted?
(2) Is there any indication of legislative intent, explicit or implicit, either
to create such a remedy or to deny one?
(3) Is it consistent with the underlying purposes of the legislative scheme
to imply such a remedy for the plaintiff?
Id. at 724 (citations omitted).
Focusing on the second factor,16 Dzurec argues that the preamble of the Calvert
County Ethics Code demonstrates the County Commissioners’ legislative intent to create
an implied right of action that would permit a taxpayer to obtain a remedy in the form of a
judicial declaration invalidating a legislative enactment in circumstances in which a
Commissioner’s vote on a legislative action violates the conflicts of interest provisions
contained in the County Ethics Code. We disagree.
As discussed above, aside from stylistic and formatting differences, the Calvert
County Ethics Code is substantially the same as the model local ethics laws created by the
16
In Baker v. Montgomery County, 427 Md. 691, 710 (2012), we noted that “[t]he
central inquiry remains whether the [legislative body] intended to create, either expressly,
or by implication, a private [right] of action.”
26
State Ethics Commission pursuant to its rulemaking authority. Moreover, the language in
the preamble in the Calvert County Ethics Code is the same as the language in the General
Assembly’s legislative findings in the Maryland Public Ethics Law (see GP § 5-102), the
preamble of the Montgomery Ethics Code as discussed in Sugarloaf (see Montgomery
County Code § 19A-2), and the model ethics laws established by the State Ethics
Commission (see COMAR 19.A.04 Appendix A). The preambles contained in the above-
referenced statute, local laws, and regulations of each state, with minor variations, that the
“people have a right to be assured that the impartiality and independent judgment of public
officials and employees will be maintained” and that the applicable law should be “liberally
construed.” Id. In other words, there is no unique language in the Calvert County Ethics
Code that evidences an intent on the part of the County Commissioners to create an implied
right of action that authorizes taxpayers to obtain a judicial remedy invalidating a
legislative enactment based upon a Commissioner’s participation in the matter where it is
determined that the Commissioner had a conflict of interest. Moreover, Dzurec has not
directed us to any legislative history to support her claim that the County Commissioners
intended to create such a private right of action. Indeed, as noted above, the provisions of
the Calvert County Ethics Code are substantially similar to the model ethics laws
established by the State Ethics Commission.17
17
Given the lack of any legislative intent by the County Commissioners to create
such a private right of action in either the plain language of the Code or the legislative
history, we do not consider the remaining Cort v. Ash factors. See Baker, 427 Md. at 710–
11 (explaining that “[i]n a case in which neither the statute nor the legislative history
reveals a [legislative] intent to create a private right of action for the benefit of the plaintiff,
we need not carry the Cort v. Ash inquiry further”).
27
V
Conclusion
For the reasons set forth above, we hold that the circuit court correctly entered
summary judgment in favor of the County. The relief sought by Dzurec in her complaint—
a declaratory judgment invalidating the Calvert County Comprehensive Plan based upon
Commissioner McConkey’s violation of the conflicts of interest provisions of the Calvert
County Ethics Code—falls squarely within the common law principles articulated in
Sugarloaf and Kenwood Gardens. Under Maryland common law, ordinarily courts will
not consider the motives of legislators or public officials when they undertake purely
legislative acts. The common law principle—that a court will not review legislative action
for bias or conflicts of interest—stems from separation of powers concerns arising under
Article 8 of the Declaration of Rights. As for Dzurec’s assertion that the County
Commissioners created an implied right of action—assuming, without deciding, that the
County Commissioners had the legal authority to establish such a right—there is no
evidence that the County Commissioners intended to create such a private right of action.
JUDGMENT OF THE APPELLATE
COURT OF MARYLAND AFFIRMED.
COSTS IN THIS COURT TO BE PAID BY
PETITIONERS, SUSAN DZUREC, MYRA
GOWANS, MICHAEL KING, AND
PHYLLIS SHERKUS.
28