FACT-Gate and Monrovia Town Center

On January 26, 2015, Circuit Court Judge William Nicklas ruled in favor of allowing the subpoena of former Commissioner Paul Smith, as part of an appeal filed by Residents Against Landsdale Expansion (RALE), to remain in effect. That decision made during the first Circuit Court hearing on Monrovia Town Center (MTC) was a major milestone in the fight against this development and it is worth exploring why it is so significant. To do this, let’s first remember what this is all about – the FACT Letter.

On April 23, 2014, on the last night of the MTC hearings before the Board of County Commissioners (BoCC), after all public comment was finished and with no opportunity for cross-examination, former Commissioner Blaine Young pulled out a letter from the Frederick Area Committee on Transportation (FACT). Mr. Young proceeded to read the letter into the record, word for word, listing each of the FACT Board members as if they had personally endorsed the letter. In response to a question from former Commissioner David Gray on that very point, Mr. Young stated that the FACT Board members had authorized the letter.

BYreadsFACTletter

The letter from this supposedly unbiased group of transportation experts laid out an argument in favor of approving the proposed Monrovia Town Center development. It talked about the improvements to MD 75 that the developers would make and made broad assertions about how the development would be a catalyst for further improvements to the challenges along that roadway. The letter went so far as to speculate on broader benefits to the County that would follow from the approval of the MTC development.

Following Mr. Young’s reading of the letter, the developers had their rebuttal time. The developer’s lead attorney Mr. Rand Weinberg spent half of his speaking time discussing how significant the FACT Letter was to the proceedings. He highlighted how “a-political” and “unbiased” the FACT group is, lending utmost credibility to their recommendation to approve MTC.

In an April 24th article discussing the approval of MTC, the Frederick News Post quoted Rand Weinberg, attorney for the developer team, as saying that “the letter was a significant piece of evidence that spoke to residents’ concerns about road safety.”


Two minute video.

There was only one problem with these grandiose sentiments about this letter from this supposedly august body – as reported in the Frederick News-Post (FNP) on June 3, 2014, the FACT Committee never read or approved the letter.

FACTletter

You can also download the original letter here.

According to FACT meeting minutes, Mr. Smith did attend a FACT meeting on April 14 (9 days prior to the final MTC hearing) and recommend they take a position on MTC, but the group as a whole never took action. Rather, according to the FNP article, two individuals – Michael Proffitt (FACT Secretary) and Michael Smariga (FACT member) – drafted the letter. Further, Mr. Smith acknowledged in the FNP article that he reviewed a draft of the letter prior to its submission to the BoCC.

With that as a back drop, let’s review the issues associated with this letter. First, there are serious conflicts of interest in play between both FACT and the BoCC, and between FACT and the developers. Second, Mr. Smith is also heavily conflicted between his role as an “objective” decision maker, and his effort to create evidence for the record. Third, according to FNP news reports and public records, Mr. Smith engaged in ex parte communications related to the FACT Letter that he failed to disclose. If true, failing to disclose these types of ex parte communications carries potential criminal penalties under state law.

So what are the conflicts of interest?

During the Circuit Court hearing, RALE’s attorney Michele Rosenfeld detailed how FACT, rather than being an unbiased organization, was actually being paid by the BoCC to lobby on transportation issues. Frankly, the FACT Letter urging approval of the MTC project based on transportation issues could easily be viewed as part of their lobbying charter. Further, at the time the letter was authored and presented, FACT was also seeking additional funding from the BoCC. Therefore, the possibility of a quid pro quo existed – i.e., if FACT helps the BoCC on MTC, then the BoCC might look favorably on additional funds for FACT. In his closing comments at the Circuit Court hearing, Judge Nicklas stated that he found the potential conflicts of interest concerning these points to be “intriguing” and “compelling.”

There is another potential conflict of interest that is equally disturbing and one that wasn’t discussed at the court hearing.

harrissmarigalogoAccording to the FNP’s investigation, the letter was co-authored by Michael Smariga. Mr. Smariga is the co-founder of Harris, Smariga and Associates, a local engineering firm. It is believed that Mr. Smariga is now retired, however, he is still listed as the Resident Agent for the firm in the Maryland Department of Assessments and Taxation database. It is therefore reasonable to question whether Mr. Smariga still has financial ties to the firm by way of a retirement account, some form of company equity, and/or compensation for his status as Resident Agent. Further, Mr. Smariga’s son Chris Smariga is currently President of the firm.

So how does this relate to the proposed development?

Harris, Smariga & Associates is the lead engineering firm on the MTC development. Chris Smariga appeared at the applicant’s table and testified on behalf of the developer numerous times during the MTC public hearings. Harris, Smariga & Associates, including Chris Smariga, had a clear vested interest in the approval of MTC. Therefore, Michael Smariga may also have had a vested interest in seeing MTC approved. The prospect of financial gain for his son and, potentially, for his own financial gain based on revenue the firm earns from the MTC developer, meant that Mr. Smariga was anything but an “unbiased” transportation expert. In fact, Mr. Smariga had a clear conflict of interest in his role as reported co-author of the letter.

paulsmith250wFormer Commissioner Paul Smith also had a clear conflict of interest between his roles as a supposedly “unbiased” decision maker in the MTC hearings, and as BoCC liaison to FACT. As a Commissioner, Mr. Smith had an obligation to serve as an unbiased decision maker in the MTC proceedings – not to help develop evidence for the record. The minutes of the April 14, 2014 FACT meeting clearly show that Mr. Smith encouraged the Committee to help “educate the public” on the benefits of MTC.

Further, according to the June 3 FNP investigative article, Mr. Smith had additional conversations with FACT members about MTC, and even reviewed a draft of the letter that was eventually submitted into the record. Mr. Smith acknowledged none of this as the letter was read into the record. Mr. Smith was silent when Mr. Gray asked if the entire Board of FACT had approved the letter, and Mr. Young said that they had. To be clear, Mr. Smith’s name was on the FACT letterhead. His role as a liaison for the BoCC was known. What wasn’t known, however, was how important his role was in the creation of the letter and its introduction into evidence.

Beyond his conflict of interest position, Mr. Smith may have another, more serious, issue in these proceedings. According to the published minutes of the FACT meeting and by his own admissions in the FNP article, Mr. Smith had multiple conversations about the pending MTC application. Maryland’s ethics laws require an official to report ex parte communications about a pending application, such as MTC. The County’s “Public Ethics 2014 Annual Report to the Frederick County Ethics Commission” contains the final listing of reported ex parte communications. There are none that can be attributed to Mr. Smith’s interactions with FACT in the reported time period. If these facts as reported are true, then there is the potential for criminal penalties.

So why does any of this matter?

Some people will say that the Commissioners were going to approve the development anyway, and the FACT letter wasn’t a factor in their decision. To those individuals we say that this is a matter of due process. It is fundamentally a matter of fairness in these quasi-judicial development hearings. The public was entitled to a fair and unbiased hearing on Monrovia Town Center. The manufacture and use of the FACT Letter in the MTC hearings as reported reflects a cynical abuse of power and an abuse of due process.

RALEverticalaerialroute75Looking past the moral outrage, we can now address why we think it was done. The reason is very simple – MD 75. Throughout the hearings, concern about safety and congestion on MD 75 was a central theme. It was also a central weakness in the record supporting the approval of MTC. In order to approve the rezoning, the BoCC needed to find that “the transportation system is or would be made adequate.” They didn’t. They couldn’t. This represented a weakness in the factual record and, therefore, posed a weakness during any subsequent judicial appeal. We believe that Mr. Smith – and possibly other Commissioners – recognized this weakness and saw an opportunity through a letter from FACT to help shore it up.

So where do we go from here?

On March 10, the Circuit Court is scheduled to hear arguments on the various motions from the County, the developers, Mr. Smith, and RALE. With the exception of RALE, all of the other parties argue that the judge should reconsider and quash the subpoena of Mr. Smith. For all of the reasons discussed here, we can understand why they don’t want him to take the stand … who knows what he might say? Personally, I really hope he does because transparency in this process is long overdue.

RALE has asked the Judge to remand the case to the County Council for reconsideration. The County also has asked for a remand, but the scope of that remand is unclear. So what does it mean to remand? The County Council gets to decide the case again. And if the case is remanded then we go back to work again. We’ll be asking you to spend your time and energy once more to attend public hearings. At least this time – we hope – the deck won’t be stacked against us like last time. This Council is nothing like the former BoCC. We’ll be able to have a reasonable discussion with decision makers that will listen objectively. More on this topic later.

For now, let’s see what happens in Circuit Court on March 10!


More information

EDITED to add this link to Steve’s Letter to the Editor in the Frederick News Post, Sunday, March 8th: FACT letter a ‘cynical abuse of power and due process’

RALE subpoenas Paul Smith and two others about unauthorized “FACT” letter
January 20, 2015
By Steve McKay

Monrovia Town Center – When is a FACT NOT a Fact?
By Steve McKay
June 5, 2014

FACT meeting ignores the elephant in the room
By Kai Hagen
June 9, 2014

The complete letter from FACT

RALEpressreleaseaboutFACTletterPress Release from Residents Against Landsdale Expansion

“RALE CALLS FOR STATE PROSECUTOR TO INVESTIGATE FREDERICK AREA COMMITTEE FOR TRANSPORTATION LETTER”

(click the small image to open a larger, readable version):

Frederick News Post
FACT letter supporting Monrovia Town Center sent without group vote
June 3, 2014

Frederick News Post
Group calls for investigation of Monrovia transportation letter
May 31, 2014

Frederick News Post (with the Rand Weinberg quote)
County OKs Monrovia Town Center
April 24, 2014

EXCERPT:

Rand Weinberg, an attorney for the developer, said the letter was a significant piece of evidence that spoke to residents’ concerns about road safety.

“FACT cares strictly and solely about funding for transportation,” Weinberg said. “If you want to fix … the existing problems in this corridor, it’s got to happen by way of private sector contribution.”

Video of the letter being read into the record by Blaine Young (beginning at 04:11:45 in this link):
http://frederick.granicus.com/MediaPlayer.php?view_id=5&clip_id=4365

Video of the FACT candidates forum, with comments on MD 75 (beginning at 01:35):
http://frederick.granicus.com/MediaPlayer.php?view_id=5&clip_id=4337