GAITHERSBURG – Residents are questioning the legality of a vote to annex the Johnson property after a weak majority approved it last month following the departure of an angered council member who wanted a full council to decide the matter.
The Johnson property is an area near the intersection of Darnestown Road and Quince Orchard Boulevard that has been slated for mixed zone use development.
City resident Steve Lawrence testified before Mayor Jud Ashman and the City Council on Tuesday night.
“I am here today to express my support for a February vote on the Johnson Annexation with a full quorum,” Lawrence said. “This is much too important an issue to not follow due procedures. I apologize to you and the well-paid Johnson team for the time this topic has consumed, but I apologize even more to the 600-plus families who have spent thousands of hours working, wrestling, and grappling with this topic. We are trying desperately to get the attention of our elected officials and have them vote to represent the people.”
Lawrence, who testified against the annexation last year, also said that he had written a letter to the state’s Open Meetings Compliance Board, arguing that the city’s passage of the resolution with a two-person vote and Council member Ryan Spiegel’s failure to disclose his conflict of interest until shortly before the vote violated Maryland’s Open Meetings Act, which establishes guidelines for municipalities to pass legislation.
Earlier this month, Board issued a statement outlining the city’s rationale for passing the resolutions.
“Resolutions are not subject to the same formalities for approval as are ordinances as they do not create laws,” Board said. “State law, §§4-401 et seq. of the Local Government Article of the Annotated Code of Maryland, provides that annexations by municipalities are to be to be approved via an annexation resolution. Annexation resolutions are subject to introduction and public hearing after notice requirements, which are delineated by state law instead of the City Code. Annexation resolutions are not subject to the Mayor’s veto powers. The City Code, at Sec. 9, does address what constitutes a quorum of the Council, stating, ‘A majority of the members of the council shall constitute a quorum for the transaction of business …’ This definition is in accordance with Robert’s Rules of Order, which provide that a quorum is a majority of the entire membership of a body. As a result, a quorum of the council is present when three or more of the Council members are present.
“Robert’s Rules further clarifies that a quorum refers to the number of members present, not the number actually voting on a particular question. As a result, for the City Council, the quorum requirement is met if three Council members are present, regardless of how many Council members vote on particular agenda items.”
The Gaithersburg City Council was scheduled to vote on two resolutions on Dec. 19, one authorizing the long-planned annexation of the Johnson property into the city and a second authorizing City Manager Tony Tomasello to execute an agreement for the property’s annexation and development.
Council member Robert Wu argued that the vote should be postponed until February, after the Council had selected and sworn in a new member to serve the balance of late Council member Henry F. Marraffa’s final term. When this proposal received no support, Wu walked out of the meeting, depriving the Council of the necessary quorum to conduct a vote on the issue. Wu said that the annexation was opposed by significant sections of the nearby communities and that he felt that it should be passed by a vote of the full Council rather than a weak majority.
Spiegel, who was absent due to illness, drove to City Hall and announced that he was recusing himself from the discussion and vote because his employer, the Bethesda-based law firm Paley Rothman, had a business relationship with one of the property’s developers. According to City Attorney Lynn Board, Spiegel’s presence re-stablished the necessary quorum, and Council Vice President Neil Harris and Council member Michael Sesma voted in favor of the resolution, passing it 2-0.