McCarthy Backs Down from Challenge to Animal Law as Legal Questions Raised on Cecil County Council Amendment Powers
A tempest over Cecil Countyâs animal control ordinance, and an attempt by Councilor Alan McCarthy (R-1) to change two provisions as an amendment to legislation proposed by the county executive, has highlighted a test of legal powers between the two branches of county government.
But under pressure from the county administration, McCarthy said Friday that he was prepared to back down from his challenge and not go forward next week with two amendments that would have eliminated the âhobby kennelsâ provision of the animal code and ended a provision that penalizes people who âharborââor feedâa stray animal for three or more days.
Apart from issues involving the countyâs controversial animal ordinance, the dispute highlights limitations on the Councilâs powers under Charter and the still evolving role of the Council in the countyâs decision-making process. And despite McCarthyâs initial willingness to use the amendment process to seek a policy change, the balance of power appears to be tilting toward the county executive.
County Executive Tari Moore proposed legislation in early December to give herself the power to change animal licensing fees and the regulatory forms used by applicants for various licenses under the animal law, such as commercial kennels, boarding kennels, and a controversial âhobby kennelâ provision affecting people with as few as ten pets.
At first, several Council members were upset with Mooreâs proposal to reserve to herself the power to set fees unilaterally, without the Council having a say.
Then Moore agreed to an amendment that would specify that any changes in animal fees she might propose would have to go to the Council for membersâ approval. But her bill still reserved to the executive the power to make other non-fee changes regarding kennels.
Mooreâs legislative proposal, cast as a revision of the animal ordinance itself, opened up the possibility to amend her bill to include other changes to the animal law. McCarthy, who is a veterinarian and has long been critical of the animal law that was adopted before he joined the Council, took the opportunity of the panelâs review of the legislation at a Tuesday worksession to do just that.
He proposed two areas of revision but included several line-by-line references to the animal law itself in which the phrases âhobby kennelâ and âharborâ were used in the ordinance.
McCarthy said a provision of the animal law tries to penalize a person who might show âcompassionâ by putting out food for a stray cat or dog in the neighborhood, especially in bad weather. The law states that âthe act of feeding or sheltering an animal for three or more consecutive days or parts of daysâ amounts to âharboringâ an animal, and makes the person who does so legally responsible for the animal, including licensing and vaccination requirements. In addition, a âharboredâ animal could then not be considered a stray that the countyâs animal control contractor would be required to pick up and shelter.
He also proposed deleting the âhobby kennelâ provisions, which the ordinance defines as someone who âowns or houses no less than 10 and no more than 20â dogs, and which the law limits to two litters of puppies a year that can be sold. (His proposal did not make any changes to the âcommercial kennelâ section of the law, which applies to sales of three or more litters a year.) The hobby kennel provisions have been opposed by many members of sporting and hunting groups, who have questioned to propriety of having to open their homes to inspections, fees, and mandated âexerciseâ plans.
In late October, Moore unilaterally imposed a delay on enforcement of all the kennel licensing regulations, until the Animal Care and Control Oversight Commission (ACCO) could propose changes. At that time, the executive said proposed changes would be presented to the County Council for their legislative review. [SEE Cecil Times report here: http://ceciltimes.com/2013/10/cecil-coungty-exec-delays-new-kennel-license-regs-animal-control-oversight-panel-questions-buddies-dog-housing-at-shelter/ ]
But instead, in early December Moore presented a bill giving her the authority to change the licensing rules and forms used to apply for licenses. (Mooreâs bill came as a âsurpriseâ to Lyn Yelton, chair of the ACCO, who told Cecil Times the panel was not advised of it in advance. That panel has been working on several revisions to âappendicesâ to the ordinance, she said.)
Councilor Diana Broomell (R-4), a frequent critic of Moore, did not dispute the executiveâs request for expanded authority and turned her ire at McCarthy, saying his proposed amendments were an attempt to âsneak it throughâ and âI donât think itâs proper.â
Councilor Michael Dunn (R-3) spoke up to accuse McCarthy of trying to ârailroadâ changes by offering amendments to Mooreâs legislation.
McCarthy had not given Councilors an advance copy of his amendments but distributed copies at the worksession.
Council President Robert Hodge (R-5)âwho had originally scheduled an afternoon âworkshopâ meeting of the Council âif neededâ on the animal control issue– challenged the number of McCarthyâs amendments, saying he thought there were too many.
âHow can you deny me the right to offer amendments,â McCarthy declared. But he then said he would simplify his proposals to the two core issues: deleting all references to âhobby kennelsâ and âharboringâ of animals in the animal law.
âThatâs a major change,â Broomell said, and âshould not be permitted.â
Hodge and Broomell said they thought McCarthyâs amendments should be put out to a public hearing, although the underlying Moore bill had already been put out to a public hearing a week ago.
After much back and forth, the Council eventually voted, 3-2, to allow McCarthy to offer his two amendments at its upcoming legislative session Tuesday evening 2/21/14. Broomell and Dunn voted no, while McCarthy, Hodge and Councilor Joyce Bowlsbey (R-2) voted yes.
But Hodge qualified his support by saying he would seek a legal opinion from the county attorney about the propriety of McCarthyâs amendments and whether a separate public hearing would be required.
In an interview with Cecil Times, Jason Allison, the county attorney who also serves as the legal adviser to the County Council, said he could not disclose the specific advice he provided to his clients on the issue. But, speaking in general terms, he cited a provision of the charter that deals with Council amendments to legislation.
Section 304 provides that âin the event a bill is amended before enactment, and the amendment or amendments constitute a change of substance, the bill, as amended shall not be enacted into law until the bill meets the public hearing notice and publications requirements of a newly introduced bill.â
The Charter does not specify who decides what constitutes âa change of substance.â Nor does the charter state that Councilors may only offer minor or non-substantive amendments.
The Charter also specifies that if the Council does not act on a bill within 65 days after its introduction, the bill dies. Mooreâs bill is set to reach its expiration date by 2/6/14. Allison said that he believed that if a bill is amended, but not yet enacted, the clock would start ticking all over again from the date the amendments were added.
In an interview with Cecil Times, McCarthy said he was not trying to obstruct the county executive and that he had been told she was operating under a âdeadlineâ to get her proposal approved. (When she delayed enforcement of the kennel rules, Moore had said she wanted to begin enforcing them in May, 2014.)
So the Councilor said he planned to withdraw his proposed amendments from the Moore bill but would seek a broad overhaul of the animal ordinance in the future. âThat law is just insanity,â he said.
McCarthyâs proposed amendments mark only the second time since Charter government began a year ago that the Council has challenged the County Executive on a substantive issue. The first challenge was on her proposal for significant increases in sewer hook-up fees, which the Council scaled back significantly. The Council also imposed a several month delay in implementation to allow some developers to obtain services at the older, lower rate.