Fitzgerald is finished.

Joel Fitzgerald is finished as a suitable candidate to be Baltimore’s next police commissioner. The last thing that a police department desperately in need of reform needs is a person with a reputation as a liar. The department needs someone who is a role model for honesty and integrity.

I will start with the following observation: Lying was an essential ingredient in the formula that produced the corruption and unconstitutional policing that destroyed the Baltimore Police Department as an effective law enforcement agency. Lying by commanders and supervisors about the actions of their subordinates. Lying by rank-and-file officers to supervisors and internal affairs investigators about the actions of their peers. Lying about overtime.

Then of course there was the lying on arrest warrants and search warrants. Lying on police reports and lying in court. Lying, lying and more lying. It seems to be a police department full of liars. How do you change a culture of lying by putting an alleged liar in charge?

The long road back to respectability and public confidence for the BPD requires a police commissioner whose reputation for truthfulness is beyond reproach. The citizens must be able to trust that, whatever happens in the department, they are getting the unvarnished truth from the commissioner. I don’t know how a commissioner who apparently shaded the truth to get the job could possibly fulfill that requirement.

If reports in the media are correct, the Fort Worth, Texas police chief was guilty of grossly inflating his resume. According to those reports, at least two of the claims were outright misrepresentations of the facts: Mr. Fitzgerald’s claim that he initiated “the largest active Body Worn Camera program in Texas” while chief of the Fort Worth police department and “the first active Body Camera program in Pennsylvania” while chief of the Allentown police department.

It doesn’t matter whether these putative achievements were relevant to Fitzgerald’s selection. It matters whether he told the truth about them.

To make matters worse, Mr. Fitzgerald initially resisted public disclosure of his resume. In retrospect, one could conclude that he was concerned about what scrutiny of that resume would reveal. Is the city really going to hire a commissioner who apparently tried to pull the wool over the eyes of the mayor and city council about his achievements?

If Diogenes held a lantern to the face of Mr. Fitzgerald, what would he see? For one thing, I doubt that he would see the face of the next Baltimore police commissioner. I expect Mr. Fitzgerald’s name to be withdrawn from consideration by the close of business on Monday. What a sad, sad chain of events for the City of Baltimore.

To dream the impossible dream…about an amendment to the Md Public Information Act.

Few things in life are a bigger waste of time for an ordinary citizen than to send, unsolicited, a proposed bill to the Governor of the State of Maryland and ask him to support it.  But that is what I did.  For good measure, I sent copies to the President of the Maryland Senate and the Speaker of the House of Delegates.

Below is the cover letter that I sent and the memorandum that contains a proposed amendment to the Maryland Public Information Act that would allow public inspection of certain police disciplinary records.  HB 402 introduced in the 2016 session of the General Assembly was the last serious effort to pass such a bill.

I supported that bill as best I could, but I wasn’t happy with the way it was drafted.  Not that its drafting made any difference, because the bill lacked any real support and went down to ignominious defeat.  So, this year I had some time and drafted what I believe to be a better bill. Why not?

The cover letter explains why I believe that this legislation is so important, especially to the City of Baltimore:   Restoring the trust of the citizens in their police department is essential, and there will be no trust until there is some transparency in the disciplinary process.

The cover letter

December 8, 2018

The Hon. Lawrence J. Hogan, Jr.
Governor of the State of Maryland
100 State Circle
Annapolis, Maryland 21401-1925

SUBJ: Proposed amendment to the Maryland Public Information Act (MPIA)

Dear Governor Hogan:

The City of Baltimore needs your help in bringing its epidemic of murder and other violent crime under control. That epidemic is about to enter its fifth year. It is an unbelievable tragedy for both the city and the state.

The Baltimore Police Department (BPD) has two separate but related problems. It currently lacks an effective strategy for reducing the violence. It also has lost control of the conduct of its officers, the extent of which is still unfolding.

Hopefully, the year 2019 will find Baltimore with a new, permanent police commissioner. In my opinion, and in the opinion of most experts in the field, the new commissioner will have to employ an aggressive, proactive approach to policing to reduce violence.

Such an approach will be a tough sell to the citizens of Baltimore – as well it should be, given the history of abuses by the BPD – without concomitant assurances that discipline within the department is sufficient to keep such policing within constitutional limits. I am proposing that you support one small measure in the 2019 session of the General Assembly that will begin the process of restoring public trust in the BPD, trust that is essential to its effectiveness.

The proposal is to carve a narrow exception to the MPIA that allows public inspection of certain police disciplinary records. Police chiefs, police commissioners and sheriffs must be accountable to the citizens of their jurisdictions for the discipline of their departments. The only way to achieve that is through the transparency of critical disciplinary actions.

I’ve attached a copy of a memorandum that includes a proposed bill. I am perfectly aware that such proposals from ordinary citizens generally have little value in the political arena. Submitting the proposal, however, makes me feel better because at least I have tried to do something to help.

Merry Christmas, Governor, and a Happy New Year.


                                    David A. Plymyer

Cc: Hon. Thomas V. Miller, Jr.
Hon. Michael E. Busch

The bill and explanatory memorandum

SUBJECT:            Proposed amendment to the Maryland Public Information Act regarding                                inspection of police disciplinary records

PREPARED BY: David A. Plymyer

DATE:                  December 8, 2018



To amend the Maryland Public Information Act (MPIA) to allow the inspection of police disciplinary records that result from complaints alleging the following conduct arising out of or occurring in the course of a police officer’s duties: 1) dishonesty or untruthfulness; and 2) the verbal or physical abuse of a citizen, including the use of excessive force or brutality.


The current provisions of the MPIA categorically exempt a “personnel record” of an individual from public disclosure. Although the statute gives some examples (application, performance rating, and scholastic achievement information) there is no definition of “personnel record” in the MPIA. The General Assembly left it to the courts to flesh out a definition.

In Montgomery County v. Shropshire, 420 Md. 362 (2011), the Court referred to its earlier decision in Governor v. Washington Post, 360 Md. 520 (2000) that held that “personnel records were those [records] relating to hiring, discipline, promotion, dismissal, or any matter involving an employee’s status.” The Court went on to hold in Shropshire that the record of an internal affairs investigation into an alleged violation of administrative rules by a police officer was a “personnel record” of that officer and could not be disclosed.

In my proposed bill, I codify the Court’s decision that the General Assembly generally intended to exempt the “disciplinary records” of public employees from disclosure under the MPIA by adding a new section to the MPIA specifically addressing disciplinary records. I then spell out a limited exception to that prohibition. In my opinion, this is a far cleaner and much less confusing approach than the alternative, which would be to create an “exception to the exception” under § 4-311 of the General Provisions Article. Section 4-311 is the section that declares “personnel records” to be exempt from disclosure under the MPIA.

I chose to limit the exceptions to police officers for the obvious reasons: Police officers, unlike other public employees, have the power to use force to place citizens under arrest and restrain their liberty. Their testimony can result in the search of citizens’ homes and send citizens to prison for years.

I further limited the exceptions to the two types of conduct that I believe are most relevant to citizens’ interests in holding leaders of police departments accountable for ensuring that their officers perform their duties fairly and justly: Dishonesty and untruthfulness, and abuse of citizens, physical or verbal.

To avoid confusion, I use language that makes clear that, as the term is used in the MPIA, a “record” refers to a discrete document or set of documents – not to a list such as an individual’s driving record, criminal record, or “disciplinary record.” Therefore, as applied to a given disciplinary action, disciplinary “record” refers to the documents and other materials specific to that action, not to a listing of the discipline imposed on an individual during the entirety of the individual’s employment.


Proposed bill

Annotated Code of Maryland – General Provisions Article

[new] § 4-328. Disciplinary records

(a) “Police officer” defined. — In this section, “police officer” has the meaning described in § 3-201(f) of the Public Safety Article.

(b) Included as disciplinary record. – – For purposes of this section, a disciplinary record includes a record of:

(1) the allegations or complaint that initiated consideration of possible disciplinary action against an employee by the individual’s employer;

(2) the investigation of the allegations or complaint conducted by or on behalf of the individual’s employer, including any findings and recommendations;

(3) for an individual subject to the Maryland Law Enforcement Officers’ Bill of Rights, the proceedings, outcome, findings of fact, and recommendations of a hearing board constituted under § 3-107 of the Public Safety Article; and

(4) the final decision by an individual’s employer on whether to impose disciplinary action, the disciplinary action imposed, and any explanation of the decision.

(c) In general. — Except as provided in subsection (d), a custodian shall deny inspection of a disciplinary record of an individual.

(d) Inspection of disciplinary record of police officer. — Subject to subsections (e) and (f), a custodian shall allow inspection of a disciplinary record of a police officer resulting from an allegation or complaint of the following conduct arising out of or occurring in the performance of the officer’s duty:

(1) Dishonesty or untruthfulness; or

(2) Verbal or physical abuse of a citizen, including the use of excessive force or brutality.

(e) Temporary denial. — A custodian may deny inspection of the record of an investigation governed by § 3-104 of the Public Safety Article until a hearing board constituted under § 3-107 of the Public Safety Article issues its decision.

(f) Expunged record. – A custodian shall deny inspection of a record expunged under § 3-110 of the Public Safety Article.


Explanation of provisions

4-328(a). I incorporated the definition of “police officer” from § 3-201(f) of the Public Safety Article rather than use the definition of “law enforcement officer” from the provisions of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR). The reason for my decision is that using the Public Safety Article definition does not categorically exclude the disciplinary records of probationary police officers.

Under the LEOBR, “law enforcement officer” is defined as excluding a probationary officer except when there is an allegation of brutality. Using the definition of “police officer” set forth in § 3-201(f) means that a disciplinary complaint against a probationary officer alleging dishonesty, untruthfulness or verbal abuse of a citizen, although not subject to the LEOBR, will be subject to inspection.

4-328(b). This section specifies the recorded information that is within the scope of a “disciplinary record.” It is intended to be comprehensive and include everything from the initial complaint to the final decision. It includes the records of the proceedings of a police disciplinary hearing board constituted under the LEOBR.

4-328(c). Provides that, except as described in subsection (d), inspection of a disciplinary record of a public employee shall be denied.

4-328(d). Specifies the alleged conduct by a police officer for which inspection of a disciplinary record must be permitted. The alleged conduct must have arisen out of or occurred in the performance of the officer’s duty.

I included “verbal abuse” because such conduct can be a precursor to physical abuse. Citizens have the right to know how a police department is responding to known “red flags” to prevent misconduct from escalating from verbal to physical abuse.

“Arising out of” has a somewhat broader meaning than “occurring in” the performance of an officer’s duties, but still requires a nexus between the duties and the conduct. Under analogous circumstances courts have held that criminal or deliberate tortious conduct lies outside the scope of a police officer’s duties. See, e.g., Wolfe v. Anne Arundel County, 374 Md. 20 (2003). “Arising out of” is intended to include criminal or deliberate conduct that may not have been part of an officer’s duties but was related to (arose from) those duties in some manner.

4-328(e). Allows the custodian to delay inspection of the record of an investigation governed by the LEOBR until a police disciplinary hearing board issues its decision. Intended to protect the integrity of the investigation and the hearing process.

4-328(f). The LEOBR allows the expungement of a disciplinary complaint against a law enforcement officer three years after a final disposition of the complaint that exonerates the officer. This provision would prohibit a custodian from allowing inspection of a record expunged under the LEOBR.

I have been told that there is some interest in resurrecting the effort to amend the MPIA to allow limited inspection of police disciplinary records, and I passed the above proposal along to the person who told me that.  Do I have any great hope that my or any other proposal will go anywhere in the 2019 session?  No, but at least I tried to do something to move the police reform ball forward.  Which is more than most state officials can say.


Not all change is good when it comes to the words of hymns.

My reflection on this Pearl Harbor Remembrance Day is on the “Battle Hymn of the Republic” as sung by the parish choir of St. Martin’s Episcopal Church in Houston at yesterday’s funeral service for former president George H.W. Bush. The arrangement and singing were beautiful. In my opinion, there was just one problem: The lyrics in the fifth stanza.

Here are the lyrics as written by Julia Ward Howe in 1861 and first published in 1862:

“In the beauty of the lilies Christ was born across the sea,
With a glory in His bosom that transfigures you and me;
As He died to make men holy, let us die to make men free!
While God is marching on.”

Here is the third line of the stanza as sung by the St. Martin choir:

“As He died to make men holy, let us live to make men free!”

Let me make clear that I do not blame the choir or the church for the change; I am informed that “live” appears in many modern hymnals. The accepted history is that the change dates to 1959 when it appeared in a recording released by the Mormon Tabernacle Choir.

The modification gained a foothold as churches became more self-conscious about the hymn’s celebration of American militancy and the glorification of war as a purported instrument of God’s will. I understand the concern, but the change strips the most powerful passage in the song of the historical context that gives the passage its power. And it misses the larger, most important point of the original lyrics.

Julia Ward Howe was an ardent abolitionist who chafed at her own inability to make a direct contribution to the Union cause. When she wrote “let us die to make men free” she was referring to a willingness to die for that cause, quite literally. She wrote the hymn at the beginning of a war that would claim the lives of approximately 360,000 Union soldiers.

The larger point is, of course, the righteousness of sacrificing oneself, if necessary, for the freedom of others. The original language of the stanza is rightfully considered one of the most brilliant and stirring passages in American music.

As a boy, I sang the hymn countless times at Advent Lutheran Church in West Lawn, Pa.    I understood what Julia Ward Howe meant by the words, although I may not have fully appreciated their gravity until later. But Pastor Ernest Weber did. Gassed with chlorine gas on the fields of France in World War I, he preached with a raspy voice barely louder than a whisper.

And the many veterans of World War II and Korea sitting in the pews, including my father, got it. And, so did the widows, including Helen Frey, one of my mother’s best friends, who lost her husband in Korea.

There were older men and women in the congregation, including my grandmother, whose grandfathers had fought for the Union in the Civil War. They understood the meaning of those words, as well.  They sang that hymn from their heart, and it feels disrespectful to suggest that the words that they sang were somehow inappropriate, or unChristian.

I don’t believe in glorifying war. But the hymn reminds Christians that there are some things worth fighting and even dying for, and that the freedom of black men, women and children held as slaves on American soil was one of them. It seems to me that message is no less important today than it was in 1861.

If you don’t believe me that we need to continue to celebrate the righteousness of sacrificing, if necessary, for a cause greater than ourselves, then ask Cadet Bone Spurs.

On second thought. . .

The neighbors of the Chabad House of Towson are victimized once again.

Well, it looks like the neighbors of the Chabad House of Towson and Goucher in Towson are being victimized again, this time by accusations of religious prejudice for pursuing their legal remedies to have the 6,614 square-foot community center torn down. The accusations, attributed to a group called Friends of Towson Chabad, were reported last week in a front-page story in the Baltimore Sun captioned “Jewish group in Towson claims court order to raze Chabad center is case of religious discrimination.”

The Chabad House is a Jewish community center located about a block from the Towson University campus in a residential subdivision of Baltimore County known as Aigburth Manor. Rabbi Menachem Rivkin directs the center on behalf of the Chabad-Lubavitch movement. The deed to the property describes the owner as Friends of Lubavitch, Inc.

In 2017, the Circuit Court for Baltimore County held that the building located at 14 Aigburth Road violated private setback covenants applicable to the property and would have to be razed as a result of a suit brought by neighbors and the Aigburth Manor community association. The required building setback is 115 feet from the road and the structure is less than 60 feet from the road. The county is not a party to the case.

In a separate case in 2017, the Baltimore County Board of Appeals ruled that the building permit for the structure had been procured “dishonestly.” The county did nothing about the unlawful structure as a result of the board’s decision, an inexplicable failure to act discussed below. The board’s decision, however, has no direct bearing on the legal action brought by the neighbors to enforce the private covenants.

The Board of Appeals held that Friends of Lubavitch had “acted in bad faith” by misrepresenting the purpose of the structure on the permit application as a “residential” addition to an existing 2,200 square-foot home occupied by Rabbi Rivkin. Rabbi Rivkin, who according to the Sun currently is expecting his sixth child, claimed that the 6,614 square-foot addition was necessary to accommodate his expanding family.

The Board of Appeals found that, from the beginning, the purpose of the building was to serve as a community center, a use not permitted as a matter of right under the zoning applicable to the property. The Board concluded that the permit therefore had been obtained by deception and misrepresentation.

In its opinion, the Board of Appeals referred to the testimony of the owner of the neighboring property, Robin Zoll. According to Mrs. Zoll, when she confronted Rabbi Rivkin about the manner in which the building permit had been obtained his response was: “I was as honest as I could be to get my permit.” The board called it a “stunning admission.”

In summary, Friends of Lubavitch, Inc. obtained the building permit for the structure in 2016 through what the Board of Appeals deemed to be misrepresentation and dishonesty. As if that wasn’t enough, Friends of Lubavitch built the community center in 2017 in violation of private covenants applicable to the property, effectively forcing the neighbors to act because the county had not.

In my experience, no neighbors would have taken this travesty lying down if they had the resources to fight it. For one thing, a structure like this can cause the property values of surrounding homes to plummet; the Board of Appeals noted that the building caused the assessed value of the neighboring property to drop from $408,000 to $341,500. For another, if you don’t enforce private covenants consistently and uniformly, you can lose your right to enforce them at all.

Now supporters of the Chabad House, including Rabbi Rivkin, are accusing its neighbors of anti-Semitism for asking the court to enforce the private covenants. You’re beginning to get a picture of who the real victims in this saga are. The neighbors are in this position only because the Baltimore County government failed to do its job.

In addition to the story in the Baltimore Sun describing the allegations of religious prejudice, there is another reason to review the history of the Towson Chabad House now. As Baltimore County begins the transition to his administration, County Executive Johnny Olszewski, Jr. and his transition team should review the Chabad House scandal to decide if this is how they believe that county government should treat its citizens. I know that this post is a long read, but there is no other way to appreciate the abuse that the neighbors of Chabad House have been forced to endure other than to understand the history.

Even though this post is long, it does not capture all of the relevant events. The Baltimore Sun recently did a timeline, with links to previous stories, that you can consult if you want additional detail.

By my count, the Aigburth Manor neighbors have been victimized at least three times. Twice by the Baltimore County government, and once by the friends of Towson Chabad aided and abetted by the Baltimore Sun.

The Chabad House of Towson and Goucher

Chabad House is approximately 6,614 square feet in size and is attached to the 2,200 square-foot pre-existing house by a breezeway. For all practical purposes, it is a separate, freestanding structure. There was no attempt to harmonize the institutional design of the addition to the house. The three-story building is seven feet higher than the neighboring three-story home.

The first floor of Chabad House has a dining room that can seat over 120, with a cloak room and men’s and women’s powder rooms to serve it; it is small banquet hall. The kitchen is commercially outfitted and far larger than necessary to serve Rabbi Rivkin’s family and friends. The building has rooms for a library, conference room, synagogue and student lounge.

There are two apartments on the second floor that have outside entrances. According to the findings of the Board, Rabbi Rivkin told members of the community that one of the apartments was for visitors and the other was for a caretaker. Neighbors say that the student center is open 24 hours a day and is illuminated all night.

Here is how the mission of Chabad House is described on its website: “Chabad at Towson provides a sense of Judaism though living and learning to the students at the University. We offer educational, ritual, and social activities to all students regarding the Jewish heritage and culture. We also provide Shabbat and holiday services and dinners, and meals that are prepared Glatt Kosher.”

Chabad House is a Jewish community center that serves both Towson and Goucher students. Even the group alleging that the ordered demolition is discriminatory refers to the building as a “religious hospitality center.” No one claims any longer that is nothing more than a residential addition to a single-family home to accommodate Rabbi Rivkin’s family. That pretext seems to be forgotten.


The Department of Permits, Approvals and Inspections ignored an opportunity to nip this travesty in the bud. Proper action by the county would have saved everyone, including Friends of Lubavitch, a lot of time, money and agony. Why the county failed to act at this stage, and at the next, are questions that deserved a lot more attention than they got.

There are four legal and administrative proceedings described herein. Two of them, the case in the Circuit Court for Baltimore County brought by the neighbors and the hearing before the Baltimore County Board of Appeals, took place after construction of Chabad House had been completed.

The other two, the review of the building permit application by the county Department Permits, Approvals and Inspections an and an administrative hearing before a county administrative law judge, took place before construction began. The Department of Permits, Approvals and Inspections had ample grounds upon which to deny the building permit, however.

If you don’t believe me about that, read what the Board of Appeals had to say about what the department knew when it was reviewing the permit application. You need to be aware that Lubavitch re-submitted plans for a “residential additional” after identical plans for a parsonage were rejected by the county Department of Permits, Approvals and Inspections to understand the board’s reference to the “new” plans.

The following comment by the county Board of Appeals may be the single most telling comment by anyone about the county’s attitude toward Chabad House:

“It is probably the case that no one in [county] officialdom actually believed that those new plans . . . were for a mere residential addition designed to help Rabbi Rivkin’s burgeoning family. And while it is reasonable to believe that few in county government believed the Lubavitch claim, no one in county government felt empowered to take steps to block construction.”

The Board of Appeals may have believed that no one in county government felt “empowered” to take steps to block construction. In my opinion, it is more likely that no one in county government felt inclined to take steps to block construction.

Here’s one step that the county could and should have “felt empowered” to take: Deny the permit. In my opinion, the Department of Permits, Approvals and Inspections knew or should have known from the plans and other information submitted to it that the permit being sought was not for a residential addition; there was ample evidence to support denial of the permit. If Friends of Lubavitch disagreed with the permit denial, let them appeal the decision to the Board of Appeals. Give Rabbi Rivkin and any other representatives of Friends of Lubavitch the opportunity to testify and be cross-examined under oath about the purpose of the addition.

The failure by the county to deny the application for a building permit for Chabad House was problematic and troublesome. There are other actions and inactions by the county that are even more suspicious.

As noted above, Lubavitch first sought a building permit for a “parsonage.” That application was denied by the county because a parsonage is allowed only as an accessory use to a synagogue, church or other house of worship, and even houses of worship are not allowed in the zoning applicable to the neighborhood.

According to testimony before Baltimore County Administrative Law Judge John Beverungen it appears that, after a discussion between Lubavitch lawyer Timothy Kotroco and Director of Permits, Approvals and Inspections Arnold Jablon, the application was changed to label the proposed structure simply as an “addition” to the existing residence. There were no material changes to the proposed structure.

The application was re-submitted with the proposed structure relabeled.  Based on the transcript from the hearing before Judge Beverungen, Mr. Jablon informed Mr. Kotroco that he would not issue a permit, however, until after the neighbors had a chance to be heard.

As a consequence, a “special hearing” was held. This is Mr. Kotroco’s account to Judge Beverungen at that hearing of his discussion with Mr. Jablon that led to the special hearing:

“[Mr. Jablon] said ‘I’m not going to give you a building permit for the house. I want you to have a hearing. . . because I’m not going to give you a building permit until you have a hearing and at least give an opportunity for the neighbors to come in . . . I want you to have a hearing so they know, public disclosure, and they know what it is you’re doing out there.’”

Mr. Kotroco is a former Baltimore County Zoning Commissioner and Administrative Law Judge, but he didn’t know what type of “hearing” Mr. Jablon was referring to. Mr. Kotroco continued his explanation to Judge Beverungen as follows:

“And I said [to Mr. Jablon] ‘Okay. But I’m not sure what to ask for.’ And I asked for a special hearing. I came up with the language that you see on the special hearing application. I took it back in to Mr. Jablon. I said ‘Well, here’s what I’m filing. Are you comfortable with that? I’m going to go in. We’ll have a public hearing. Whoever wants to come in and take a look at what we’re doing and ask any questions about this addition, that’d be great. I’m going to file it.’

And [Mr. Jablon said, ‘That’s what I want you to do.’ So that’s what I filed. And that’s why we’re here.”

Why were they there before an Administrative Law Judge? In retrospect the purpose of the so-called “special hearing” is not clear at all. The neighbors protesting the application for the permit certainly thought that they were there for an opportunity to persuade Judge Beverungen to block issuance of the permit because the proposed structure was not in fact a residential addition to an existing single-family home.

Was such definitive action by Judge Beverungen ever in the cards, however? At the conclusion of the hearing, Judge Beverungen ruled that the question placed before him was one that went to the ultimate use of the structure that could only be resolved once the structure was completed and put to use.

Judge Beverungen stated that he could do more than rule that Lubavitch had the right to construct an addition to the house for residential use – a fact that no one disputed. If the addition was used for something other than residential use upon completion, it was a problem for the county’s zoning enforcement officials to address if and when such improper use occurred, according to Judge Beverungen. In other words, the entire hearing was a waste of time.

Was the special hearing ever intended as anything more than a “show hearing” intended to appease the neighbors? Or perhaps intended to burn up the resources of the neighbors and the Aigburth Manor community association in a pointless proceeding by wasting the money that the neighbors and their community association paid to a lawyer to represent them during the hearing?

Undaunted, the neighbors and their community association appealed Judge Beverungen’s non-decision to the county Board of Appeals. In the meantime, the Department of Permits, Approvals and Inspections issued the building permit to Lubavitch and construction began.

The Board of Appeals decision

The Board of Appeals overruled Judge Beverungen in a 2-1 decision. As noted above, the structure had been completed and put to use as a community center by the time the Board of Appeals got the case. Nevertheless, the dissenting board member opined that the “wiser course” would be to deny the neighbors’ request to declare the structure unlawful and leave the matter to zoning enforcement officials. Another profile in courage from a county official who wanted to push the problem off on someone else.

As far as I can tell, board members Joseph Evans and Meryl Rosen were the only county officials to acquit themselves well throughout this entire debacle. The two wrote in the Board’s decision:

“Sadly, Lubavitch has achieved its goals by manipulating both the administrative system as well as everyone’s natural inclination to defer to religious organizations. In the end, Lubavitch has left [the Board of Appeals] with very few options, but leaving the neighbors stranded cannot be one of them.”

The decision concluded that Lubavitch “acted in bad faith in obtaining the building permit and constructing the addition.” It declared that Lubavitch “is and has been using the property at 14 Aigburth Road as a community center without having obtained the necessary approvals or complying with the necessary regulations.”

The decision set the stage for the Department of Permits, Approvals and Inspections to revoke the permit and file suit to have the addition removed. The Board of Appeals may have been unwilling to leave the neighbors stranded, but the Department of Permits, Approvals and Inspections wasn’t. The department refused to join the fight to have the unlawful structure removed.


There is evidence to suggest that the decision by the Board of Appeals upset a plan by the county to give the neighbors their “day in court” and then issue the building permit. As documented in her letter to Mr. Jablon dated January 17, 2018, Mrs. Zoll claims that she and others were told by Mr. Jablon during a meeting in September 2016 that he “needed a final order from the Board of Appeals before taking the action to stop the construction, then underway, and enforce the zoning laws with respect to the [Chabad House] property.”

The county, however, did nothing about the Chabad House when the order became final on September 5, 2017 and continues to do nothing. Mrs. Zoll pressed her argument with county officials that because of the ruling by the Board of Appeals it was the county’s responsibility to have the building torn down. The county did not concur:

“We disagree with [Mrs. Zoll’s] interpretation that the County must require the addition to be removed,” county spokeswoman Ellen Kobler wrote in an email, according to the Sun in a story published in March of this year. “The Board’s issue was the use, not the size of the building.”

First of all, Ms. Kobler’s characterization of the board’s decision was not accurate. The board determined that the building permit was obtained by a bad faith misrepresentation of the purpose of the structure and that the permit would not have been issued if the true purpose had been disclosed. Chabad House was up and operating by the time of the board’s decision, and the board found that it was a non-residential structure; specifically, a community center.

As described by the Board of Appeals, the result of the construction under the permit was an outsized structure unsuitable for residential use. The board cited a witness who testified that “it is unimaginable that a normal home buyer would ever dream of purchasing this so-called house were Lubavitch to decide to sell it.”

The permit was issued for a residential structure. Friends of Lubavitch built a community center, which is a non-residential structure. The size of the structure has no bearing on the lawfulness of the construction. It is an unlawful, non-residential structure.

Ms. Kobler’s interpretation of the county’s responsibility under the law for removal of the building also was 100% wrong. The permit was based on material misrepresentations of fact by the applicant and may be “voided as if it had never been issued” by the Department of Permits, Approvals and Inspections. The county should have acted to return the property to its pre-existing condition. The following is from the Baltimore County Building Code:


The law hardly could be any clearer and applies whether there has been construction done under the permit or not. Revocation of a permit obtained by a misrepresentation of fact is the first step in the legal process for a county to have construction done under a permit demolished. See Permanent Financial Corp. v. Montgomery County, 308 Md. 239 (1986).

The county lost its first opportunity to do the right thing when it did not deny the building permit for Chabad House. Even if you accept the proposition that the county was “powerless” to deny the permit (I certainly don’t), it had no excuse for its failure to revoke the permit and move to have the building torn down after the Board of Appeals issued its decision.

On March 29, 2018, after reading Ms. Kobler’s “explanation,” I wrote a piece posted on my blog that reproduced the language of the county building code described above. County officials thereafter stopped claiming that the law did not allow it to act to remove the building and, incredibly, instead began disputing the facts as adjudicated by their own Board of Appeals.

On April 9, 2018, Sun reporter Libby Solomon picked up my point about the law in a story about Chabad House. The following is an excerpt from her story:

According to the Baltimore County building code, the county can revoke a building permit if there is a “false statement or misrepresentation of fact in the application or on the plans on which the permit or approval was based.”

But Arnold Jablon, county director of permits, approvals and inspections, said the county has no plans to revoke the permit, saying in an email sent through spokeswoman Ellen Kobler that it was “legally applied for and secured,” and was not acquired under false pretenses.

“If I say I will use my home as a residence but use one room for a home office, is that a false statement?” Jablon wrote. “What if the property owner at the time he applied for a bldg. permit believed his intentions were permitted as residential uses?”

[Emphasis added.]

Let’s get this straight: After hearing hours and hours of testimony and legal argument documented in a 17-page opinion, the Baltimore County Board of Appeals concluded that the building permit was “dishonestly obtained” by Lubavitch based on misrepresentations of fact by Lubavitch and Rabbi Rivkin about the purpose of the structure – i.e., the permit was obtained under false pretenses. But Mr. Jablon, who according to the Board of Appeals apparently felt powerless to deny issuance of the permit, now feels empowered to disregard a decision by the county’s Board of Appeals and decide for the county that the permit was “legally applied for and secured”?

Who the hell is Arnold Jablon to second-guess the findings of fact and decision made by the Baltimore County Board of Appeals after a contested-case, quasi-judicial hearing? The Board of Appeals was established by the county charter so that citizens have some protection from decisions made by bureaucrats like Mr. Jablon.

In summary, the county, through Ms. Kobler, first tried to argue that the county had no power to act under the law. When confronted by me and then by Ms. Solomon with the relevant provisions of the county building code, the county, through Mr. Jablon, changed tack to argue that the building permit was lawfully obtained, despite the finding by the county’s own Board of Appeals.

I mentioned above that I believe that there may have been a plan by the county to railroad the permit through. You will recall the statements made to Judge Beverungen by Mr. Kotroco, Lubavitch’s lawyer, recounted above. Here is that same line of inquiry when the case was appealed to the Board of Appeals, in the form of questions by Mr. Kotroco to a surveyor employed by Lubavitch that he called as a witness:

Mr. Kotroco: You’re aware that Mr. Jablon told us to file the special hearing, and I’ll give you the permit. Is that what you’re aware of?

Witness: Yeah. More or less that was what I was aware of, you know, secondhand. But, yes.

Mr. Kotroco: “Give the neighbors the notice, file the hearing, have the hearing, I’ll give you the permit”?  [Emphasis added.]

Witness: Notice was – – that seemed like the key issue.

Mr. Kotroco: Okay.

“Give the neighbors the notice, file the hearing, have the hearing, I’ll give you the permit.” If that is an accurate account of what Mr. Jablon said, then it sounds like the hearing was intended to be nothing more than a charade.

Did two members of a three-member panel of the Board of Appeals upset the apple cart by what they described as their refusal to leave the neighbors stranded, and by declaring the structure unlawful? If so, no problem: Mr. Jablon now says that he disagrees with the Board of Appeals, and he still refuses to act.

To recap the sequence of events: Mr. Jablon proposes that the issue of whether Friends of Lubavitch is entitled to obtain a building permit for what the neighbors claim is a community center, not a residential addition, be submitted to an administrative law judge for determination. The administrative law judge, however, rules that the issue is not ripe for decision until the building is completed and in use.

The neighbors exercise their right of appeal to the county Board of Appeals. While the appeal is pending, Mr. Jablon issues the building permit and construction begins. By the time of the hearing before the Board of Appeals, construction is completed.

The Board of Appeals finds that the building permit was obtained by deception and should not have been issued: The building was, from the beginning, intended to be a community center and that is what it is and how it is being used. The neighbors were right. The building is a community center, not a residence.

And then, after all the hours and hours spent in hearings by the neighbors, and the money spent on lawyers, Mr. Jablon decides that he no longer cares what the Board of Appeals has to say. As far as he is concerned, the building permit was “legally applied for and secured” and that the permit was not acquired under false pretenses.

What kind of county allows its public officials to treat citizens like that? Answer: Baltimore County.


According to the Sun, organizers of a group called Friends of Towson Chabad likened the opposition to the center and the court rulings to Kristallnacht, the name given to two days in 1938 when German Nazis torched synagogues and vandalized Jewish homes, killing nearly 100 Jews. Rabbi Rivkin is identified in the story as a member of the Friends of Towson Chabad.

“Eighty years after Kristallnacht, a rabbi’s home and a home for thousands of Jewish students is slated for destruction,” the organizers stated, according to the Sun. “For a clearly discriminatory ruling like this to be administered in the 21st century is chilling.”

The record of the Board of Appeals indicates that the neighbors of Chabad House bent over backwards to accommodate the use of the Rivkin residence as a student center before the addition was constructed. They tolerated the traffic and noise attendant to the comings and goings of students to Rabbi Rivkin’s residence in the spirit of being good neighbors.

It was not until Lubavitch decided to build an outsized institutional structure more than 55 feet inside the required front setback from the street that the neighbors acted. Imagine how the neighbors felt reading these highly-damaging accusations on the front page of the Baltimore Sun. Here is what Mrs. Zoll told the Sun:

“I’ve lived in this community for more than 50 years, and I have a very good reputation, and I am not an anti-Semite or an anti-anything,” she said. “It’s an absolute besmirchment of everything that I am.”

In my opinion, the Baltimore Sun did the neighbors a further injustice by running the story captioned “Jewish group in Towson claims court order to raze Chabad center is case of religious discrimination” on the front page of the newspaper. From the paper’s coverage of the long-running dispute the Sun’s reporters and editors knew or should have known that the claims of anti-Semitism were suspect at best.

So why put them on the front page? I view the decision to give the accusations front-page coverage as cheesy sensationalism unbecoming a paper like the Sun.

The text of the article isn’t much better. It lumps the Chabad House controversy in with a series of cases brought against the county under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

That comparison gives the allegations more credence than they deserve. For one thing, the county isn’t involved in the suit that resulted in what the Friends of Towson Chabad call a “clearly discriminatory ruling.” It is a private action brought to enforce a private contract. Nothing in the facts of that dispute supports a RLUIPA action, in my opinion.  Indeed, the story does not describe the factual underpinnings of the group’s claim of discrimination – if there are any.

Also, the story buries an important part of the history of this matter on the second page and even then, understates it. The story states only that the Board of Appeals found Friends of Lubavitch to be “insincere” in describing the proposed building as a residence.

As we know, the language of the board’s decision was a lot stronger than that. The decision stated that Lubavitch “acted in bad faith in obtaining the building permit and constructing the addition,” and described much of Rabbi Rivkin’s testimony at the hearing as “coy and disingenuous” and as “not particularly credible on contested points.” The board concluded that the permit had been “dishonestly procured.”

The board’s decision referred to Rabbi Rivkin’s demeanor at the hearing as “self-interested and combative.” Even the dissenting member on the panel noted that he agreed with the majority that Rabbi Rivkin’s testimony was “evasive and truculent.” It must have been quite a performance.

Judge Susan Souder of the Circuit Court for Baltimore Court wrote the Memorandum Opinion finding that the setback covenant applicable to the Chabad House property was valid and that the community center violated it. Judge Souder apparently was also unimpressed with Rabbi Rivkin’s testimony, noting that his “demeanor was evasive and aggressive during questioning.” She stated: “Thus, where his testimony differed from that of Robin Zoll, whom the Court found credible, the Court credited Ms. Zoll’s testimony.”

Judge Souder also noted that a neighbor brought the existence of the setback covenant, a matter of public record, to the personal attention of Rabbi Rivkin while the site was still being excavated, before actual construction had begun. Friends of Lukavich elected to continue with construction despite the risk of it being found to violate the setback requirement.

Why was information that undermined the credibility of the accusers buried toward the end of the story? And why was it understated?  In my opinion, the Sun’s story took a very serious allegation out of its context and placed it on the front page where it would draw the most attention and do the most damage to ordinary citizens trying to enforce their contractual rights.


Baltimore County left the neighbors of Chabad House and the Aigburth Manor community association to fend for themselves in what has become extremely expensive litigation to try to get a building torn down that the county never should have allowed to be built. The county failed to act even after the county Board of Appeals determined that the structure was unlawful. The refusal of the county to step up to its responsibilities in this matter is, in my opinion, base and borderline immoral.

Mrs. Zoll, her neighbors, and the members of the Aigburth Manor Association, Inc. who stood up for their rights are heroes in my book. Their efforts opened a window for the rest of us to see how Baltimore County government operates.  Can you imagine how the county treats residents who don’t have the resources to fight back?  It is unfortunate that in addition to mistreatment by their own county government these citizens also had to endure personal attacks plastered on the front page of the Baltimore Sun.

I hope that Mr. Olsewski and his transition team take a close look at the Chabad House debacle and at the Department of Permits, Approvals and Inspections. Something that one hears throughout the county is that county government needs a “housecleaning.” Based on what I found when looking into the Chabad House controversy, I believe that the housecleaning done in the Department of Permits, Approvals and Inspections should be an especially thorough one.

The Baltimore City Council bill that never was.

It is a bill that was not introduced at last Monday’s meeting of the Baltimore City Council that could be the most important bill drafted for the council this year. It is the bill that may have encouraged Lodge 3 of the Fraternal Order of Police (the FOP) to reach agreement with the city on a new collective bargaining agreement.

On October 29th I received an email from the city’s Department of Legislative Reference that included the draft of a bill. The author of the email said the bill was “inspired” by a piece that I wrote published in the Baltimore Brew on October 17th, and that the member of the city council who had requested that the Department of Legislative Reference draft the bill wanted me to review it.

My guest commentary in the Baltimore Brew chastised the city council for not acting to break the years-long impasse over the FOP’s reluctance to give up the 4×10 shift schedule by withdrawing the issue of shift schedules from the scope of collective bargaining. I made the same argument in an op-ed published earlier this year by the Baltimore Sun.

The bill withdrew the subject of “the structuring and scheduling of shifts” from the scope of collective bargaining between the city and employee unions as I had proposed. I reviewed the bill as requested and made some suggested changes.

Here is a link to the bill:

On November 3rd the FOP issued a notice to its members that a tentative agreement had been reached with the city. The agreement included a return to a 5×8 shift schedule for patrol officers as well as the addition of civilian members to hearing boards constituted under the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR).

The initial reaction to the proposed agreement by FOP members was overwhelmingly negative. I am informed that union president Sgt. Michael Mancuso worked long and hard to explain the agreement to his members.

On November 13th FOP members voted to ratify the agreement. Sgt. Mancuso said the following in a press release:

“While our members agreed that this proposal was less than ideal, the alternative to acceptance was dismal, at best. Instead they made the hard choice to preserve our contractual rights, going forward.”

To what “alternative to acceptance” was Sgt. Mancuso referring, and why was that alternative “dismal, at best”? And why was it necessary for the FOP to accept the city’s proposal “to preserve our contractual rights”?

Was Sgt. Mancuso referring to the bill that had been drafted and was ready for introduction? I don’t know for sure, but the timing of the drafting of the bill and the reluctant acceptance by the union of a “less than ideal” proposal seems like more than a coincidence. If the draft bill was a shot over the bow of the FOP by legislators, it wouldn’t be the first time such a thing was done.

My guess is that Sgt. Mancuso was telling his members that they better get the best deal possible before they lost the right to negotiate over shift schedules entirely. And he probably was right. I was informed last week that there is no plan to introduce the bill stripping the union of that right at this time – probably because the draft bill had accomplished its purpose of inducing the FOP to soften its hardline stance.

The bill I reviewed made no mention of civilians on police hearing boards. In the Baltimore Sun op-ed mentioned above, however, I also pointed out how Assistant Attorney General Kathryn Rowe had basically provided the city a road map on how to put civilians on the hearing boards without the consent of the FOP.

As it happens, State Senator Nathaniel McFadden had solicited Ms. Rowe’s advice after he read another op-ed by me reaching the same conclusion in July 2016. So, my other guess is that the next bill to be drafted was a bill following Ms. Rowe’s road map to put civilians on hearing boards.

Why is any of this worth mentioning? For only one reason, and that is if it helps to debunk the myth that the Baltimore City Council is powerless to influence the course of events in the Baltimore Police Department.

Members of the council perpetrate this myth, and it is one of my major pet peeves because it is intended to mislead the public. The myth serves to protect council members from being held accountable by the voters, and it gives them an excuse for not making politically-fraught decisions.

Council members tend to wring their hands and point their fingers when it comes to the Baltimore Police Department. They have less of a tendency to do anything worthwhile, especially when it comes to legislation.

I don’t know the identity of the council member who initiated the drafting of the bill that was sent to me, but I give credit to whomever it was for taking a step in the right direction. I believe that he or she gave the negotiations between the city and the FOP the push that they needed.

And please don’t accuse the council member who initiated the bill of “union-busting.” It is the job of the City Council under the City Charter to put reasonable limits on collective bargaining by identifying those management decisions on agency operations that should not be subject to negotiation, and then legislating accordingly. At the end of the day the Baltimore City Council must put the interests of the citizens of the city first, even if council members occasionally have to be reminded of that.

And credit also to Sgt. Mancuso. He not only did the right thing, he did the smart thing. Collective bargaining rights for public employees are not written into the state or federal constitutions. Lodge 3 would not have been the first public employee union to overplay its hand, winning a battle or two and then losing the war.

City officials touted the new collective bargaining agreement as a “win” for both police officers and the city. In my opinion, whether or not it constituted a “win” is not the point. It was a fair and reasonable deal for both sides, and that is the applicable standard.

The Baltimore City Council is entitled to access to the report on the background check done on Joel Fitzgerald, the mayor’s nominee to be the next police commissioner.

Baltimore City Solicitor Andre Davis reportedly informed members of the Baltimore City Council that they will not be given access to the report on the background check done on Joel Fitzgerald, Mayor Catherine Pugh’s nominee to be the city’s next police commissioner. Mr. Davis described the report of the background check as a “personnel record” protected from disclosure under the Maryland Public Information Act (MPIA).

In my opinion, Mr. Davis has interpreted the prohibition against disclosure of personnel records too narrowly. I believe that the report of the background check may be provided to members of the council under the guidance issued by the Maryland Attorney General on access to personnel records.

The language of the statute itself is indeed restrictive. Under the law, the only person given the explicit right of access to an individual’s personnel records is the “elected or appointed official who supervises the work of the individual.”

Mr. Davis is correct that the report on the background check is a personnel record protected by the MPIA. In Kirwan v. The Diamondback, 352 Md. 74 (1998), the Maryland Court of Appeals held that “personnel records were those relating to hiring, discipline, promotion, dismissal, or any matter involving an employee’s status.” The background check certainly is related to the proposed hiring of Mr. Fitzgerald.

A too-literal interpretation of the statute, however, would lead to absurd results inconsistent with the law’s intent. For example, it would preclude the staff of a city or county human resources office from reviewing and screening application materials submitted by individuals seeking employment with the city or county.

The Maryland Attorney General long has recognized that this provision of the MPIA must be construed in the context of its purpose and intent. Persons other than an individual’s supervisor (whatever that means for a person who has not yet been hired) must have access to personnel records to do their jobs. In the latest edition of the Public Information Act Manual, the Attorney General states:

“It is implicit in the personnel records exemption that another agency charged with responsibilities related to personnel administration may have access to those records to the extent necessary to carry out its duties.” [MPIA Manual, p. 3-9.]

This principle first was described by the Attorney General in 86 Opinions of the Attorney General 94, 108-109 (2001). In that 2001 opinion, the Attorney General stated that the agency seeking access to the personnel records must be performing a “personnel function.”  In my experience, the Attorney General’s interpretation of the law has been widely embraced throughout state and local government.

Under Section 16-5 of the Code of Public Local Laws of Baltimore City, the appointment of a police commissioner by the mayor is “subject to confirmation by the City Council by a majority vote of its members.” In my opinion, the responsibility of the council to confirm the mayor’s selection of a police commissioner clearly is an integral part of the process of hiring the commissioner and therefore is a “personnel function” within the scope of the Attorney General’s guidance.

And I have no doubt that access to the report of the background check done on a police commissioner whose appointment the council is being asked to confirm should be considered necessary to carry out the council’s duty.  There may be something in Mr. Fitzgerald’s background that is acceptable to the mayor but not to a majority of the members of the council. If the report on Mr. Fitzgerald was available for consideration by the mayor, then it should be available for consideration by the council.

Mr. Davis expressed concern that if the report on the background check is provided to the council it will end up in the hands of the public. I get his concern, even though giving access to members of the council entitled to inspect it as part of their duties does not make the report “public” under the law.

I propose a practical precaution: I’d allow members of council to review the report, but not give them copies. No offense, council members, but city government leaks like a sieve and Mr. Fitzgerald’s privacy interests are entitled to reasonable protection, just like everyone else’s.

Also, I’d warn council members that, if they leak the contents of the report, they can be criminally prosecuted for violation of the MPIA. And a deliberate violation of the MPIA would constitute misconduct in office subjecting a member to further penalties including removal from office.

In conclusion, there’s a legally-acceptable resolution of the apparent impasse over the city council’s access to the report on the background check of Mr. Fitzgerald. In fairness to Mr. Fitzgerald, he should have been told all of this before applying for the job – what the process would entail, who would have access to his application information and under what conditions, etc. If he is unhappy with the council’s access, he has the option of withdrawing his candidacy for the position.  In any case, the city needs to get past the usual chaos and dysfunction that acccompanies city actions and get to the business at hand.

Olszewski’s campaign promise may make a difficult job impossible.

There are financial challenges ahead for Baltimore County Executive-elect Johnny Olszewski, Jr. He has made surmounting those challenges all the more difficult by his campaign promise not to increase taxes. First, let’s take a look at the situation that he inherits.

The Kamenetz-Homan “legacy”

The announcement that Baltimore County Administrative Officer Fred Homan will retire on December 3rd at the request of Mr. Olszewski was met with a widespread sigh of relief – if not glee – by many county residents. Mr. Homan became the face of an administration that cared little about openness, transparency and accountability and at times was openly hostile toward community groups that dared to disagree with its policies or positions.

I have no desire to dwell in the past, especially not Mr. Homan’s. I believe, however, that there is one aspect of Mr. Homan’s legacy that needs to be discussed because it bears upon the future of the county. That aspect is the myth that Mr. Homan was a good steward of the county’s finances. In my opinion, the myth promotes a misleading view of the county’s financial health and the daunting problems that Mr. Homan will leave behind.

In a letter sent to all county employees, outgoing County Executive Don Mohler, appointed after the death of former County Executive Kevin Kamenetz, wrote:

“Through good times and bad, Fred has been the chief architect of a fiscal policy that has allowed us to invest in education, public safety and our aging infrastructure, while maintaining the county’s triple A bond rating.”

I am not saying that Mr. Homan was dishonest or that he lacked considerable skills in managing a complex county budget but, in my opinion, there is more to stewardship of a county’s finances than that. There is the need for vision and for a fiscal policy sustainable well into the future.

I believe that the county has fallen far short in that area. If he was the “chief architect” of the county’s fiscal policy over the past 12 years or so as described by Mr. Mohler, then Mr. Homan must accept his share of the responsibility for the problems facing the county.

I have written about those problems a number of times in the past. In summary, Mr. Olszewski will take office facing crumbling infrastructure and revenue streams inadequate to repair or replace roads, schools, storm water management facilities, and government buildings. The quality of life for county citizens is at stake, as Mr. Homan himself admitted last week.

Mr. Homan was a master at robbing Peter to pay Paul to avoid tax increases, and too often Peter was the mundane things that the county needs to run properly. The county is short of personnel in key regulatory areas, the county’s IT infrastructure dates to the last century, and that is just the beginning.

Earlier this year it dawned on the county’s Spending Affordability Committee that the day of financial reckoning was close at hand because the county is running up against the limits on how much money it can borrow. Councilman Tom Quirk, a member of the committee, wrote in its report:

“The county’s financial outlook presents immense challenges that the next administration and council will be forced to address.”

Mr. Quirk groused that the Kamenetz administration refused to provide a long-term plan to pay for all the county’s school construction projects and for health care for retirees, among other things. In fact, the desperate need for a long-term financial plan for the county, especially a capital improvement plan, was one issue on which Mr. Olszewski and his Republican opponent, Al Redmer, Jr., agreed.

A word on the county’s AAA bond rating touted by county officials. It is important because it reduces the cost of borrowing money. But it is, in effect, a relatively short-term measure of the county’s creditworthiness, not a judgment on the county’s long-term financial well-being – the fact that the absence of a long-term county financial plan has not affected the rating is an indication of that.

Ironically, an important factor supporting the high rating is the legal availability of additional revenue if needed to pay the county’s debts. Unlike some other counties, Baltimore County has no legal cap on its property tax rate and also has room to increase the local income tax surcharge.

Appearing at his last meeting of the County Council as County Administrative Officer, Mr. Homan spoke briefly to warn council members about the financial difficulties ahead.

“What you face now going forward is going to make a very significant difference in not only the fiscal situation of the county, but the lives of citizens of the county,” Homan said. “I wish you the best.”

Yeah, good luck to us. And thanks a lot.

The challenge ahead

The “immense challenge” referred to by Mr. Quirk can be summed up as follows: Many unmet needs and looming expenses with a revenue stream inadequate to pay for them. Mr. Homan is by no means responsible for the principal limitation on that revenue stream: An aversion to tax increases in Baltimore County that approaches religious fervor. Additional revenue may be legally available, but political availability is another story.

The past refusal to consider increases in the county property tax rate or local income tax surcharge, coupled with the absence of development impact fees, accelerated the decline in the financial health of the county. New development was necessary to provide the property tax revenue to meet the needs of existing development because the property taxes collected from existing development were insufficient to do so.

As I have previously described, the failure by the county to impose development impact fees or excise taxes decades ago, when all other major metropolitan counties in the state were doing so, was a catastrophic mistake. Because of the absence of development impact fees imposed on new development, revenue from existing development had to be used to expand public facilities to accommodate the new development, dramatically reducing the overall financial benefit of the new development to the county.

That meant that the new development needed to proceed at a pace and intensity far greater than many citizens wanted just to keep the Ponzi scheme afloat. It made Baltimore County a developer’s paradise, but it helped create the fiscal mess that the county is in today as the pace of new development necessarily slows down.

In my opinion, the situation suited the outgoing administration. The fast pace and intensity of development kept the developer friends of Mr. Kamenetz happy and they in turn kept his political war chest filled to the brim. And it seems to me that is exactly the situation that most citizens of Baltimore County want changed.

The incoming county executive, Johnny Olszewski, Jr., has pledged not to increase county taxes. So how he is he going to meet the “immense challenges” described by Mr. Quirk and emphasized by Mr. Homan? Thanks in part to Mr. Homan, there is not a lot of fat left to cut in the county budget; some agencies already have been cut into the bone. And if there is not enough money now, when the economy is humming away, what happens when the inevitable downturn occurs?

So what else can Mr. Olszewski do to assure the county’s future financial health if he is unwilling to consider ways of increasing county revenues through fees or taxes? Nothing, except cut back on existing programs and activities. And that will be an exceedingly unpopular task for an ambitious politician.

Dear City Council: Stop making up excuses and fix the disastrous police contract.

BY DAVID A. PLYMYER 1:26 PM   OCT 17, 2018

Council members have chosen the interests of city labor unions over the safety and financial well-being of the city, a retired government lawyer argues. [OP-ED]

For the last two years, members of the Baltimore City Council have been grousing about the high cost of the shift schedule adopted by the Police Department, while maintaining that they lack the power to do anything about it.

Finally, a member of the Council acknowledged last week that they can do something about it.

Councilman Ryan Dorsey’s admission in a Twitter exchange (see below) proves that it is not an absence of legal authority, but rather a lack of political will that prevents Baltimore’s elected officials from solving this enormous drag on the city’s resources.

Costly Failure

In 2015, the standard shift schedule (normal work week) of the BPD was changed from five eight-hour days (5×8) to four 10-hour days on duty followed by three days off (4×10).

Former Police Commissioner Anthony Batts claimed the change would put more officers on the streets at the most needed times, cut overtime spending and give officers more time off.

He was wrong.

The change boomeranged into a costly failure mainly because the BPD has been unable to recruit and retain enough officers to fill assignments under the 4×10 schedule.

The Rawlings-Blake administration then compounded the error by agreeing to hardwire the 4×10 schedule into the collective bargaining agreement between the city and Lodge 3 of the Fraternal Order of Police (FOP), which represents officers in the rank of lieutenant and below.

Most critically, the contract took away the ability of the police commissioner to adjust the schedules of officers to accommodate changing demands on the department.

The 4×10 schedule has meant millions of dollars in overtime, adding to the excessive overtime that has characterized the department in recent years. To date, the FOP has not agreed to an alternative schedule.

While quick to blame Batts and the FOP for the problem, Council members have refused to accept responsibility for fixing it.

But there has been some progress in that regard. Councilman Dorsey’s admission (couched in rather obscure syntax) that the City Council can enact legislation removing shift schedules from the scope of collective bargaining is an important step toward clarity on this matter.

The legislation referred to by Dorsey would have the effect of giving the Police Commissioner authority to schedule shifts in the manner that best suits the need of the department. The Councilman apparently has been told by city lawyers, however, that such legislation could not apply to only one union.

As Dorsey tweeted, “State law does not permit the City to limit the collective bargaining rights of the Police Department unless it is done by limiting all collective bargaining rights of all unions.”

He then said he was reluctant to introduce such legislation because he supports the rights of city unions “to represent their workers’ conditions.” He then added this:

“As much as I think FOP has been allowed to run amok, it’s not the fault of all workers. It’s a manifestation of weak political will and the FOP acting like a protection racket.”

Making a Choice

The admission by the vice chair of the City Council’s Public Safety Committee sheds light on the real reason why the city has not extricated itself from the costly shift schedule:

Namely, a refusal by the Council to do anything that upsets the labor unions that represent city employees – or at least labor unions other than the FOP.

Governance involves choices. Dorsey and like-minded members of the Council have chosen the interests of city labor unions over the safety and financial well-being of the city.

Dorsey’s admission was a long time coming. What follows is the backstory about the lengths to which politicians will go to disavow responsibility for a politically unpleasant task.

Getting to the Truth

My first discussion on the 4×10 shift issue was with Brandon M. Scott, currently the chairman of the Public Safety Committee.

His voice has been the loudest about the body’s “lack of control” over the BPD and the purported need for Gov. Larry Hogan to return control of the department to the city.

After an exchange with Scott on Twitter in April 2017, I had a telephone conversation with him. I said that, if it wished, the Council could remove the subject of shift schedules from the scope of collective bargaining. Scott did not agree with me, and our discussions ended.

In June 2017, Council President Jack Young wrote a letter to the editor of the Baltimore Sun excoriating the FOP for refusing to agree to go back to the 5×8 shift schedule.

Young went so far as to imply that the FOP’s refusal to concede on the issue was partially responsible for the city’s spike in violent crime.

While I am no big fan of the FOP, Young had no right to tell the FOP what its bargaining position should be, especially when the 4×10 schedule was the city’s idea, not the FOP’s.

I sent a letter dated June 29, 2017 to Young and other members of the Council describing their legal options – options that I suspect their own lawyers had already explained to them. Here are the relevant parts of that letter:

 The City Council has the power under §55 of the City Charter to limit the scope of collective bargaining by placing certain subjects off limits as exclusive management rights. Excluding management decisions regarding the structure and scheduling of shifts from the scope of collective bargaining is consistent with the state law that governs binding arbitration used to resolve impasses in bargaining with the BPD.

State law limits binding arbitration to matters of ‘direct compensation’ and §16-8A(b)(3) of the Code of Public Local Laws of Baltimore City explicitly provides that issues regarding deployment and scheduling are not “direct compensation” issues. “Direct compensation” is defined to mean “wages, salaries, longevity, shift differential [pay], bonuses if applicable, and leave with monetary value.”

Nothing came of that letter. The next member of the Council to lash out at the FOP was Dorsey.

In April 2018, he denounced the union for its continuing refusal to agree to abandon the 4×10 shift schedule, while also describing the BPD as “really just occupying mercenaries.” He dismissed my arguments that he and his colleagues could intervene by tweeting that “City Council is in no way part of collective bargaining.”

This time I responded with an op-ed in the Sunmaking public the explanation of the law that I had provided to the Council a year earlier.

Whether that did the trick, I don’t know, but six months later Dorsey is now admitting that City Council has the authority to place limits on the scope of collective bargaining.

Needed Now: Political Courage

Baltimore’s labor and police commissioners never should have bargained away the commissioner’s authority to adjust shift schedules to accommodate the changing needs of the city. Nor should they have hard-wired a specific shift schedule into a labor contract.

But done is done, and the subject of shift schedules is now a subject of collective bargaining, at least until the City Council legislates otherwise.

There is nothing unusual about a legislative body having to clean up a mess created by the executive branch in the course of interpreting and administering a law. The City Council is, after all, the primary policymaker for Baltimore.

If the Council doesn’t want the city to have to negotiate with the FOP over shift schedules, then the Council should do something about it by passing an ordinance.

(Of course, Mayor Catherine Pugh could take it on herself to propose such an ordinance, but she has so far shown no more appetite to take on city employee unions than have members of the Council.)

The fact that the ordinance would have to apply to other city agencies and unions is not an obstacle.

Making it an exclusive management right to decide on appropriate shift schedules is a common and fair allocation of power between management and labor.

Namely, that management decides on the shift schedule that best meets the needs of the organization, and then it negotiates with unions on how to compensate employees for working that shift schedule.

It is especially important for the head of a public safety agency to be able to adjust shift schedules. If a shift schedule must be changed during the term of a labor contract, a “re-opener” clause in the contract can allow the negotiation of the accompanying changes in compensation.

This is not “union busting,” as Councilman Dorsey implies. This is the city regaining a reasonable measure of control over governmental operations.

The problems caused by the 4×10 shift schedule should (but likely will not) get resolved any time soon.

But, at least, we can be spared from the spectacle of elected officials proclaiming their “helplessness” in resolving ballooning police overtime and the poor deployment of officers in this time of public angst about crime.
David A. Plymyer retired as Anne Arundel County Attorney after 31 years in its office of law. His work included advising county management on the content and negotiation of contracts with public safety unions.

[Published as an op-ed by the Baltimore Brew on October 17, 2018 but not posted to my blog until November 17, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Gov. Hogan, where are state regulatory agencies when the citizens of Baltimore County need them?

According to the polls, Maryland Governor Larry Hogan is very popular in Baltimore County. Surely, that popularity is not based on the recent failures by two state agencies under his control to fulfill their regulatory responsibilities over actions taken by the Baltimore County government. The performances of the state agencies in these matters have been disgraceful.

I will begin with “Treegate.” By now, the facts of that travesty are well known to the citizens of Baltimore County. What appears to be the final chapter in the matter, written by the Maryland Department of Natural Resources (DNR), is as disappointing as the rest of the story.

The second matter is less well-known, but of much greater long-term consequence. It involves the adequacy of public wastewater facilities in the “Jones Falls Sewershed.” Wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville, collecting sewage that flows through the City of Baltimore to the Back River Wastewater Treatment Plant.

Serious questions have arisen as to whether the Baltimore County Department of Public Works (DPW) has been forthcoming about the adequacy of those facilities to manage the planned development in that area of the county without continuing or even increasing the sewage overflows that have occurred for decades in the city and county. To date, the Maryland Department of the Environment (MDE) has been unhelpful in getting answers to those questions.

DNR’s sham investigation into “Treegate”

On November 14, 2017, I filed a complaint with DNR requesting that it exercise its authority under the state’s Forest Conservation Act (FCA) to investigate whether actions taken by Baltimore County during “Treegate” violated state or county forest conservation law. Treegate took place on April 1, 2017.

On that date, acting on orders from Baltimore County Administrative Officer Fred Homan, a county contractor removed 30 trees, including six specimen trees, from the future site of the Towson Station development. Mr. Homan stated that the trees were cut down to facilitate the sale of the property from the county to a private developer who had a contract with the county to buy the property. The removal of the trees defied a resolution passed by the County Council conditioning development of the site on the retention of the trees and relieved the private developer from what undoubtedly would have been a futile attempt to justify the removal of the trees under the FCA.

After a seven-month “investigation,” DNR Secretary Mark Belton informed me that his agency was persuaded by the county’s argument that removal of the trees was justified because it was done as part of a county “capital improvement project.” Describing the removal of trees from a site to prepare it for sale to a third party as a capital project is utter and complete nonsense, and DNR knows it.

Under limited circumstances, the county may remove trees from the site of a capital improvement project (aka a capital project) without submitting a full Forest Conservation Plan. A capital project is defined by the Baltimore County Charter as “any physical public betterment or improvement and the acquisition of property of a permanent nature for public use.” [Emphasis added.]

The capital project exception is intended to allow the removal of trees from county property if necessary to do so to construct some type of county building or other permanent improvement on the property. The removal of trees to prepare it for sale, and especially for private use, is not a capital project.

The facts are not in dispute: The county cut down the trees to help the contract purchaser evade restrictions on the removal of trees that would have applied when the purchaser developed the property for private use. That is not a county “capital project” under anyone’s definition.

Also, the county did not pay for the removal of trees using money from its capital budget. It used money from its operating budget appropriated for routine park maintenance, such as lawn mowing. Using money appropriated for routine maintenance to prepare a site for private development by cutting down trees was of doubtful legality in and of itself.

Moreover, even if trees must be removed as part of a county capital project, county forest conservation law requires the agency in charge of the capital project to submit a “project plan” describing the proposed tree removal to the county Department of Environmental Protection and Sustainability for approval. No project plan was submitted or approved for “Treegate.”

Secretary Belton informed me of DNR’s decision by letter dated June 19, 2018. Last month, Larry Fogelson obtained a copy of DNR’s investigation through a Public Information Act request. The sum total of the investigation was a single two-page letter from an Assistant County Attorney explaining that the purpose of the alleged capital project was to make the property “more attractive” to a private developer.

A seven-month “investigation” and that is the best that DNR could do? DNR’s actions in this matter were shameful.

Thirty trees may not seem like a lot of trees. Degradation of the environment generally occurs incrementally, however, through the accumulation of many “minor” violations. Competent regulators are aware of that and strive to enforce regulations uniformly and consistently. That certainly was not done in the case of Treegate.

MDE’s “oops”

Baltimore County’s dubious management of public wastewater facilities within what is known as the “Jones Falls Sewershed” is a much more complicated story. The story is still evolving because it has been extraordinarily difficult to get the relevant information out of the Baltimore County DPW.

What we do know is attributable to the persistence of a group of ordinary citizens led by Tom McCord. The information obtained by these citizens ultimately piqued the interest of MDE, which in turn called upon Baltimore County officials to answer some important questions.

The issues are too complex to describe in detail here, but there is a common thread throughout all of the questions: The apparent unreasonableness and inconsistency of the data used by DPW to project future demands on key sewerage infrastructure within the Jones Falls Sewershed, including the Lake Roland, Jones Falls and Towson Run interceptor sewers.

Mr. McCord and his group discovered that DPW used out-of-date population and land use data for purposes of preparing a report on the deficiencies in the sewerage infrastructure within the sewershed. The sewershed tracks the Jones Falls and the wastewater facilities in the sewershed collect sewage that is sent through the city to the Back River Wastewater Treatment Plant. Public wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville.

The report in question was required under the 2005 consent decree between the county and the United States Environmental Protection Agency (EPA) and MDE. The consent decree is intended to eliminate the sewage overflows that have polluted the Jones Falls for decades. The city agreed to a similar decree with the EPA in 2002.

Understating increases in sewage projected from increases in development and population density has the effect, in turn, of overstating the adequacy of downstream infrastructure to manage future sewage flows. A report that identifies deficiencies in and presents a plan for repair, replacement, or rehabilitation of that infrastructure is a mandatory component of the consent decree.

The information available to date also indicates that DPW may have used differing projections of future sewage flows – one for the consent decree report and the other to justify the construction of the Towson Run Relief Sewer. Mr. McCord and his group have raised legitimate questions as to whether DPW, which understated future sewage flows for purpose of the consent decree, used more current projections to justify construction of the Towson Run Relief Sewer. If so, was the inconsistency inadvertent or deliberate?

The Towson Run Relief Sewer was necessary to handle increased sewage from Towson Row and other planned development in Towson, including new construction at Towson University. DPW was under pressure to move forward with the Towson Run Relief Sewer. The relief sewer was an integral part of the “It’s Towson’s Time” vision of former county executive Kevin Kamenetz.

Mr. Kamenetz wanted to make Towson “a regional destination, even better than Bethesda, even better than Silver Spring.”  Such high-density development posed a challenge for DPW, already contending with failing wastewater infrastructure in the Jones Falls Sewershed.

MDE has a legal interest in enforcing the county’s compliance with the consent decree with EPA because it is a party to the decree. MDE also has regulatory responsibility for approving the triennial review of the county’s Water Supply and Sewerage Plan; the triennial review is MDE’s opportunity to ensure the adequacy of the county’s plan to manage its sewage system.

Mr. McCord and others, including members of Green Towson Alliance, met with MDE Secretary Ben Grumbles and members of his staff on May 25, 2018. Secretary Grumbles asked his staff at the meeting if he could delay approval of the county’s 2017 triennial review until he had a subsequent meeting with Mr. McCord and his group that also included DPW.

Secretary Grumbles was told that he could do so. The clear implication was that Secretary Grumbles wanted to use the follow-up meeting to satisfy himself and members of Mr. McCord’s group about the accuracy of the information that DPW had provided before approving the 2017 triennial review.

The subsequent meeting took place on August 23, 2017. Mr. McCord and his group learned at the meeting that MDE had already approved the county’s 2017 triennial review. They later were informed that Secretary Grumbles also was unaware until the meeting that his agency had approved the county’s triennial review. In other words, an “oops” by MDE.

The first 45-day extension of the time within which MDE had to act on the county’s triennial review under state law expired on August 13th. The follow-up meeting initially was scheduled for August 8th but was postponed until August 23rd at DPW’s request.

Did MDE get played by DPW? Was there a miscommunication within MDE? Or, perhaps someone in MDE did not want to go to the trouble of a second, “supplemental” 45-day extension. In any event, MDE’s immediate leverage over DPW was lost and the questions raised about the information provided by DPW remain unanswered almost two months later.

There is what looks like a pattern here, and it is the old regulatory slow-walk: Drag out an investigation or inquiry as long as possible before producing an unsatisfactory result in the hopes of outlasting the interest or energy of concerned citizens.

What’s next?

The moral of the above story is this: The citizens of Baltimore County are on their own when it comes to dealing with county agencies. Don’t expect the cavalry to arrive in the form of state regulatory agencies, even when the state agencies have clear regulatory responsibility for actions taken by county agencies.

Treegate may be in the past, but the problems with the adequacy of public wastewater facilities in the Jones Falls Sewershed are not. The stakes for county finances, land development and the environment are extremely high.

Sewerage infrastructure is, like a chain, only as strong as its weakest link. For example, the Towson Run Relief Sewer may prevent overflows in Towson only to send sewage downstream to overflow elsewhere in the county or city; Lake Roland is a likely destination. The massive new development in Towson should not proceed until the entire system is adequate. At this point, it seems clear that citizens jaded by their experiences with the county are not going to be satisfied unless that determination of adequacy is made by a creditable independent expert.

Among the first orders of business for the next county executive should be an open and transparent review of the adequacy of public wastewater facilities in the Jones Falls Sewershed. He can do that by ordering his planners and public works officials to make all relevant documents available to the public, and then scheduling one or more public hearings at which his planners and public works officials testify and answer questions in a comprehensive, forthcoming manner. What a refreshing change that would be in Baltimore County.

– David A. Plymyer

David A. Plymyer retired as the County Attorney for Anne Arundel County in 2014. He also served five years as an Assistant State’s Attorney for Anne Arundel County. He now writes on matters of law and local government from his home in Catonsville, Maryland. His email address is, and his website is at

[Published as an op-ed by The Baltimore Post on October 9, 2018 but not posted to my blog until November 9, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore County police and prosecutors need to respond to rape cover-up allegations.


Unlike UMBC, the county is reacting with stony silence to claims in a lawsuit by sexual assault victims that are too serious to ignore OP-ED

 There are shocking allegations in the federal class-action lawsuit filed last month by two former students at the University of Maryland Baltimore County.

They include charges that the women were discouraged from – and, in one case, threatened with arrest for – going to the police and pursuing criminal complaints against men who sexually assaulted them.

The former students, Anna Borkowski and Katelyn Frank, describe in detail a pattern of failing to properly investigate and prosecute complaints of sexual assault – a pattern that extends both to UMBC and to Baltimore County police and prosecutors.

But the contrast in the defendants’ reactions after the story broke is striking.

UMBC president Freeman A. Hrabowski III met with students, accepted responsibility for the school’s inadequate response to the problem of sexual assaults and promised an outside investigation and reform.

“No comment,” meanwhile, was the response by Baltimore County Chief of Police Terrence B. Sheridan and State’s Attorney Scott D. Shellenberger.

Yes, the events described in the lawsuit and recounted below remain mere allegations until proved.

But please don’t give me the line that you can’t discuss the matter while it is litigation. You can, despite what some county lawyer may be telling you. (I know – I am one.)

The truth will come out in the lawsuit, but it is important that county residents hear the answer now, not a year or more from now.

History of Problems

One reason these officials should speak up about the most troubling claims in the lawsuit: Baltimore County’s poor track record on this issue gives citizens reason to believe them.

A scathing 2016 story in BuzzFeed documented an astoundingly high number of rape complaints classified as “unfounded” by county police.  That story led to a review by a panel consisting of a retired circuit court judge and the director of the Maryland Coalition Against Sexual Assault.

Its recommendations were implemented, Baltimore County Executive Don Mohler recently said, responding to the class action suit. But the disturbing events that Borkowski described in the complaint took place on and after October 20, 2017 – well after these reforms were supposedly put in place.

The chronology, despite Mohler’s assurances, suggests Baltimore County still does not take accusations of sexual assault seriously.

Borkowski’s Allegations

Borkowski claims that she and an unnamed classmate were raped in the classmate’s Towson apartment on October 20, 2017 by three UMBC students, all members of the school’s baseball team.

The two women were encouraged by the men to drink from a bottle of vodka. She said the men pretended to drink but did not.

Borkowski believes that a drug had been added to the vodka. She says she became incapacitated, blacked out, and had only fragmentary memories of being gang-raped by the three men and of watching the men rape her classmate while her classmate was at various times unconscious or semi-conscious and asking them to stop.

Borkowski awoke later on the day of the incident and reported to police that she had been raped. She was taken to the Greater Baltimore Medical Center.

A sexual assault forensic exam (SAFE) confirmed that she had suffered “vaginal tearing,” an injury “consistent with sexual assault.” The Baltimore County Police Department was responsible for investigating the alleged rape. It did what can only be described as a cursory investigation.

Lame Response

According to the complaint, the apartment was never visited by police, much less searched.

Evidence including blood-stained bed clothing and the vodka bottle was never collected and analyzed, despite the fact that the men allegedly admitted to police that they poured the remaining contents of the bottle over the apartment balcony.

No analysis of the sexual assault evidence kit collected at the hospital was done, according to the complaint. And then there’s this:

The complaint says the three men accused by Borkowski were interviewed together by detectives at a Chick-fil-A.

The men allegedly admitted to having sex with the two severely intoxicated women. They described it as consensual and told the detectives that they did not understand what the issue was, the lawsuit says. The case was closed by the police and no charges were filed.

I don’t expect Sheridan to publicly defend the entirety of what appears to be a shoddy investigation. There is one question that he can answer, however, that could tell us all that we need to know about the seriousness with which his department took Borkowski’s accusations: 

  • Chief Sheridan, did your detectives interview the suspects together at Chick-fil-A? If so, explain to the public how interviewing gang-rape suspects in a group at a fast-food restaurant is consistent with sound investigatory practices.

I can tell you, as a prosecutor, it is not.

 Dismissing the Charges

Even more disturbing are the events described in the lawsuit that occurred after the state decided not to proceed with criminal charges against the three alleged attackers.

Borkowski decided to pursue the matter on her own by applying to court commissioner John Robey for a statement of charges.

Instead of making his own determination of probable cause, Robey contacted a detective and a prosecutor involved in the case. Instructed by them, Robey refused to issue charges, according to the complaint.

Undeterred, Borkowski tried again before a different commissioner, Colleen Ellingson.

Ellingson made her own determination of probable cause and charged the three men with crimes including first degree rape.

When he found out about the statements of charges, Baltimore County State’s Attorney Scott Shellenberger ordered police not to serve the summonses on the defendants, the lawsuit says. Assistant State’s Attorney Lisa Dever had the charges dismissed.

County police then opened an investigation into Borkowski.

Threatening the Accuser

Dever obtained a grand jury subpoena seeking the affidavit that Borkowski submitted to Robey describing the alleged rape.

Shellenberger and Dever allegedly then told detectives “to tell Ms. Borkowski that she has to stop bringing these additional charges or they will file criminal abuse of process charges against her.”

In my opinion, this was a hollow threat. For one thing, there is no crime of “abuse of process.”

The grand jury subpoena suggests that police and prosecutors were searching for inconsistencies in the affidavits submitted by Borkowski to the two different court commissioners. In other words, they were investigating Borkowski for perjury.

The hollowness of his threat didn’t stop Shellenberger from allegedly sending three police officers to Borkowski’s home in Baltimore to deliver it.

Police and prosecutors expended more time and effort trying to get Borkowski to back off than they did investigating her complaint.

Again, I don’t expect Shellenberger to be willing to go into detail about the actions of his office. But there is one question that he can answer that could tell us all that we need to know about his attitude toward alleged victims of sexual assault: 

  • State’s Attorney Shellenberger, did you send two detectives accompanied by a uniformed officer to Ms. Borkowski’s home to warn her against bringing any more charges against her alleged attackers? If so, on what legal basis did you do that, and what did you tell the officers to say to her?

If the assistant attorney general representing you in the lawsuit advises you to not to answer this question, politely refuse the advice.

Explain to him that it is more important to assure citizens that their state’s attorney does not believe in harassing the alleged victims of sexual assault. Assuming, of course, that it is true.


I don’t mean to suggest in this analysis that UMBC students should rest assured the school will change its ways.  UMBC has its own history of mishandling of sexual assault reports, ineffective sexual assault prevention education and inadequate support for survivors, as UMBC doctoral student Aliya Webermann recently pointed out.

Webermann recounted her own frustration as an activist on the issue and cited a 2016 campus survey in which one in five students reported experiencing sexual assault.

Emotions ran high at a campus “listening session” held at UMBC after two women sued the school saying it mishandled their reported sexual assault and others.

Still, there is some cause for hope about progress in addressing sexual assault on the school’s campus.

Off campus, there is little reason amid the silence and absence of accountability to be optimistic that anything will change soon.
David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the County Office of Law. His work included defending police officers in civil cases and advising on police disciplinary matters. He also served as a prosecutor in the Anne Arundel County State’s Attorney Office.

[Published as guest commentary by the Baltimore Brew on October 5, 2018 but not posted to my blog until November 5, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]