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(a) Subject to the approval of the Council, the Board may adopt rules of procedure to govern its proceedings. The Board’s rules may govern filing fees, the conduct of meetings and hearings, and other procedures necessary to hear and decide cases. This Article and other laws, ordinances, rules and regulations under which the Board exercises authority control in any conflict with any rule adopted by the Board.
(b) The Board, and the Hearing Examiner in cases referred by the Board, must allow each party a reasonable opportunity to cross-examine each witness not called by that party on matters within the scope of that witness' direct testimony.
(c) The Board must decide any matter referred to it only after notice and opportunity for hearing and on the basis of the record before it. However, the Board may decide any matter that the Board referred to a Hearing Examiner solely on the basis of the Hearing Examiner's report and recommendation.
(d) All hearings held by the Board or the Hearing Examiner must be open to the public. (Mont. Co. Code 1965, § 2-91; 1967 L.M.C., ch. 13, § 1; 1976 L.M.C., ch. 44, § 1; 1988 L.M.C., ch. 27, § 1; 1997 L.M.C., ch. 24, § 1; 2001 L.M.C., ch. 30 § 1.)
Editor's note-Section 2-113 [formerly §2-91] is cited in Cohen v. Willett, 269 Md. 194, 304 A.2d 824 (1973). In Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A.2d 294 (1966), it was held that it was a denial of due process for the Board of Appeals to refuse to permit aggrieved parties to cross-examine witnesses at a hearing on the grant of a special exception.
Cross reference-Rules of procedure, app. C.
(a) The Board may, by vote of 3 members, refer any matter pending before it to be heard by a hearing examiner in the Office of Zoning and Administrative Hearings. The Office must conduct the hearing under the Office’s rules of procedure or, if the Office’s rules do not apply to that type of hearing, the Board’s rules of procedure. The hearing examiner must submit a written report and recommendation to the Board.
(b) Within 10 days after transmittal of the hearing examiner's report and recommendation, any person who, or association which, appeared and testified in person or by counsel at the hearing before the examiner may request, in writing, an opportunity to present oral argument to the Board before it issues a decision. Any request for oral argument must explicitly state the issues to be presented at the oral argument. If oral argument is granted, the party who sought the oral argument must be limited to the issues stated in the request and any other issue specified in the order allowing oral argument. The Board may, in its discretion, grant or deny a request for oral argument.
(c) The Board must, after oral argument if argument is allowed:
(1) decide the matter on the basis of the evidence of record and the hearing examiner’s report and recommendation, or
(2) remand the matter to the hearing examiner for clarification or taking additional evidence, as appropriate. (1976, L.M.C., ch. 44, § 1; 2001 L.M.C., ch. 30, § 1.)
(a) If a party in a matter adjudicated by the Board of Appeals is aggrieved by a final decision of the Board in the matter, the party may seek judicial review of the decision in the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. A party aggrieved by the decision of the Circuit Court may appeal that decision to the Court of Special Appeals.
(b) Unless the court reviewing the Board’s decision orders a stay, the decision remains in effect pending a final decision of the court. (Mont. Co. Code 1965, § 2-92; 1971 L.M.C., ch. 10, § 3; 2011 L.M.C., ch. 17, § 1.)
Editor's note-In Cohen v. Willet, 269 Md. 194, 304 A.2d 824 (1973), it was held that the Circuit Court cannot remand an appeal from the denial of a special exception for additional consideration unless it finds that the action of the Board of Appeals was not in accordance with law. In the Maryland-National Capital Park and Planning Commission v. Montgomery County, Maryland, 267 Md. 82, 296 A.2d 692 (1972), it was held that such Commission had no right under the above section's predecessor to appeal from a decision of the Board of Appeals granting a special exception. In Hertilendy v. Montgomery County Board of Appeals, 245 Md. 554, 226 A.2d 672 (1967), it was held that a landowner who had sent a letter to the Board protesting the granting of a variance, but who had not appeared personally before the Board was an aggrieved person entitled to appeal. In Bayer v. Siskind, 247 Md. 116, 230 A.2d 316 (1967), it was held that the right to appeal on grounds that cross-examination of witnesses was denied in hearings before the Board of Appeals is waived if an objection to being denied cross-examination is not made at the hearing. In Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 230 A.2d 289 (1967), it was held that an "owner of property immediately contiguous or in close proximity" to property being
rezoned is an aggrieved party with the right to appear and be heard by the Board of Appeals and appeal the board's decision in the courts. In Baxter v. Montgomery County Board of Appeals, 248 Md. 111, 235 A.2d 536 (1967), it was held that persons who sign a petition in opposition to the grant of a special exception are parties aggrieved for the purpose of an appeal from the grant of a special exception. In Montgomery County Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1965), it was held that a member of the County Board of Appeals was justified in disqualifying himself from a case where he had vigorously opposed a previous rezoning request made by the same parties and had thereafter continuously been legal counsel for a company owned by one of the applicants. Such case also held that the Board was also a party to an appeal to the courts. Section 2-114 [formerly §2-92] is cited in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A.2d 294 (1966). Section 2- 114 [formerly §2-83] is quoted in part in Symonds v. Bucklin, 197 F.Supp. 682 (D.Md. 1961).
2011 L.M.C., ch. 17, §§ 2 and 3, state:
Sec. 2. Transition. This Act does not apply to any appeal to the Board of Appeals that was filed before this Act took effect.
Sec. 3. Regulations. Regulations 6-06AM and 7-06AM remain in effect, notwithstanding any amendment to the County Code in Section 1 of this Act, except for any provision of the National Fire Code that authorizes or refers to an appeal to the Board of Appeals.
There may be appointed and assigned to the county board of appeals such employees, and the chief administrative officer shall make available to the board such services and facilities of the county, as are necessary or appropriate for the proper performance of its duties, and the county attorney shall serve as counsel to the board. (Mont. Co. Code 1965, § 2-94; 1969 L.M.C., ch. 34, § 22.)
*Editor's note—See Editor’s note to § 2-119 concerning timetable and transition details of 2003 L.M.C., ch. 20.
Former Article VI, §§ 2-117 — 2-123, relating to public defenders, derived from Ord. No. 6-59 and 1969 L.M.C., ch. 35, §§ 23-25, was repealed by 1986 L.M.C., ch. 37, § 4.
The County Council finds that:
(a) State law requires the County to establish or designate a local management board to ensure the implementation of a local, interagency service delivery system for children, youth, and families.
(b) Under State law, the County may designate a quasi-public, nonprofit corporation that is not an instrumentality of the County to act as the County’s local management board.
(c) Designating a quasi-public, nonprofit corporation as the local management board will best enable the County to implement a local, interagency service delivery system for children, youth, and families. (2003, L.M.C., ch. 20, § 1.)
The primary functions of the local management board are to:
(a) administer state funds for certain children’s services, and plan and coordinate those state- funded services;
(b) participate in community planning for children’s services related to the state-funded programs; and
(c) apply for and administer funds for children’s programs, as provided in Section 2-122. (2003, L.M.C., ch. 20, § 1.)
(a) The County Council may designate, by resolution approved by the County Executive, a nonprofit corporation which complies with all requirements of this Article as the County’s local management board. If the County Executive disapproves the resolution within 10 days after receiving it, the Council may readopt the resolution with at least 6 affirmative votes.
(b) Each designation expires 3 years after the resolution is adopted unless the Council extends it by adopting another resolution under this Section.
(c) A corporation must comply, through its articles of incorporation and bylaws, with all requirements of this Article to continue as the County’s local management board.
(d) In this Chapter, local management board means the corporation that the County has designated to implement a local, interagency service delivery system for children, youth, and families. (2003, L.M.C., ch. 20, § 1.)
Editor's note—2003 L.M.C., ch. 20, § 2, states: Timetable; transition.
(a) The first resolution adopted under Section 2-119(a), inserted by Section 1 of this Act, must take effect on July 1, 2004. Any corporation that seeks to be designated as the local management board must submit proposed articles of incorporation and bylaws to the County Executive and County Council for review and comment by May 1, 2004.
(b) By February 1, 2004, the Director of the Department of Health and Human Services must submit to the Executive and Council a local management board transition plan to address such issues as financial oversight during a transition; modification of service contracts to assure that services to children and families are not disrupted; and transition of affected employees.
(c) Notwithstanding any inconsistent provision of County Code Section 19A-13, a person employed by the Department of Health and Human Services before July 1, 2004, may be employed by a corporation after it is designated as the local management board, and if so employed may immediately work on any matter that the person significantly participated in as a Department employee.
(a) Appointment and confirmation. For a corporation to qualify as a quasi-public corporation, the corporation’s board of directors must be appointed by the County Executive and confirmed by the County Council. The board of directors must have 21 voting members, allocated as specified in this Section.
(b) Public members. The County Executive must appoint 12 members from the public sector, including:
(1) a designee of the President of the County Council;
(2) a designee of the President of the Board of Education;
(3) a designee of the Superintendent of Montgomery County Public Schools;
(4) the Director of the Department of Health and Human Services, or the Director’s designee;
(5) the Director of either the Department of Finance or the Office of Management and Budget, or either Director’s designee;
(6) the Director of the Core Service Agency, or the Director’s designee;
(7) the Regional Director of the state Department of Juvenile Services, or the Director’s designee;
(8) the County Health Officer, or the Officer’s designee; and
(9) a County employee who provides direct client social services to children, youth, or families.
Each member appointed from the public sector represents the public interest, and is not precluded from participating in a matter as a board member if that member’s government employer is a party to the matter.
(c) Private members. The County Executive must appoint 9 members from the private sector, who may include:
(1) advocates for services to children, youth, and families;
(2) providers of services to children, youth, and families;
(3) parents of children who are receiving or recently received services of the type funded by the local management board;
(4) individuals between 18 and 25 years of age;
(5) business owners and managers;
(6) leaders of civic and community service organizations; and
(7) leaders of religious organizations.
However, the Executive must not appoint more than 2 persons who are members of a governing board of, and must not appoint any employee of, any organization that receives County funds, or state funds directed through the local management board, for children’s services.
(d) Representation. In selecting public and private sector board members, the Executive must strive to achieve broad representation from various geographic areas and socio-economic and ethnic groups.
(e) Term; Removal.
(1) Each board member must be appointed for a term of 3 years. However, when the board is first appointed, the Executive must appoint of the members to 1- or 2- year terms.
(2) The Executive may reappoint a member, but a private sector member must not serve more than 2 consecutive full terms, not including any portion of an unexpired term.
(3) The Executive may remove a member for violation of law or other good cause specified in the bylaws of the corporation, after giving the Council at least 15 days’ notice of the proposed removal.
(f) Duties. The board of directors must direct all aspects of the corporation’s program, management, and finances.
(g) Compensation; Relation to County retirement system.
(1) A member of the board serves without compensation. However, the corporation may reimburse a private sector member for expenses incurred in attending meetings or carrying out other official duties.
(2) A member is not eligible to receive benefits under any County retirement system for services rendered as a board member. (2003, L.M.C., ch. 20, § 1.)
(a) For a corporation to qualify as a quasi-public corporation, its articles of incorporation must provide that the corporation is:
(1) nonprofit;
(2) not an instrumentality of the County; and
(3) incorporated for the sole purpose of serving as the County’s local management board.
(b) The corporation’s bylaws may contain any provision, not inconsistent with laws or the articles of incorporation, to govern and manage the corporation.
(c) The corporation’s by laws must:
(1) prohibit conflict of interest, self-dealing, collusive practices, or similar impropriety by any member of the board of directors or employee, in a way that is at least as stringent as the conflict of interest provisions of the County ethics law; require the annual disclosure of a financial or similar interest of any director or officer in any matter that may come before the corporation; establish conditions under which a director or employee must not participate in corporation actions when there is a conflict between the person’s official duties and private interests; and include appropriate remedies for violations of these and other ethical standards, including removal or termination;
(2) require the board of directors to comply with the state open meetings law as if the corporation were a public body and each action by the board were a quasi-legislative functions;
(3) require competitive procurement for goods and services after reasonable public notice;
(4) require a surety bond or similar instrument to protect against misappropriation of funds by directors and employees;
(5) require a copy of each agreement with any state or federal agency to be sent to the Executive and Council within 14 days after the agreement is executed;
(6) require an annual audit by an independent accounting firm, a copy of which must be sent to the Executive and Council within 14 days after receipt and made available to the public on request;
(7) require quarterly and annual financial reports, reflecting funds received from all sources, to be submitted to the Executive, Council, and Board of Education;
(8) require the corporation to publish a detailed annual report of its operations and accomplishments, including initiatives undertaken, outcomes, objectives, performance measures, and evaluation of effectiveness, which must be submitted promptly to the Executive, Council, and Board of Education;
(9) require the corporation to publish an annual programmatic report to the public in an easily readable format;
(10) require each contract the corporation enters into to provide that the County government may assume the rights and obligations of the corporation under the contract if its designation as the local management board is suspended or revoked;
(11) require minutes of board meetings to be maintained on file and available for public inspection for at least 6 years; and
(12) require all contract files to be maintained for at least 6 years after the date of final payment.
(d) The board of directors must submit any proposed amendment to the articles of incorporation or bylaws to the Executive and Council for review and comment at least 60 days before the board takes final action on the amendment. The board must submit a copy of each adopted amendment to the Executive and Council within 5 days after adoption. (2003, L.M.C., ch. 20, § 1.)
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