Grim prognosis on the future of youth and scholastic football.

Count me among those who believe that the end is in sight for organized tackle football as we now know it on the youth and scholastic levels. Participation has been trending downward for years for both youth-level and high school teams, and that trend will accelerate once parental attitudes about the dangers of the sport arising from head trauma reach the tipping point.

In my opinion, it no longer is a matter of if, it is a matter of when. As a football fan for as long as I remember, I hope that I am wrong – but only if it can be established with reasonable certainty that the risks to children can be reduced to insignificant levels.

My belief that organized youth and scholastic football is doomed is based on a confluence of factors, at the center of which is, of course, the evolving research on the dangers of long-term sub-concussive head trauma. As applied to youth and scholastic players, the research on long-term effects remains inconclusive. What we do know with reasonable certainty, however, is that there is only a “window” of safety. It’s dangerous for a child to start playing too early, and it’s dangerous if a child continues playing for too long into his adult years.

Neuroscientists warn that the undeveloped brains of younger children are much more likely to be damaged by repetitive head trauma than adolescents. At the other end of spectrum, there is no doubt that NFL players – and very probably college players who have played football from a young age – are at much higher risk than the general population for developing chronic traumatic encephalopathy (CTE), a devastating and degenerative brain disease.

These therefore are the questions facing parents: When can my child play football without compromising his or her long-term health? How many blows to the head are too many? In no other extra-curricular activity must a parent worry about a child getting too successful and wanting to continue the activity when entering high school or college. In other words, this isn’t like deciding when Johnny should start piano lessons.

There appears to be an emerging consensus that children should not play tackle football before the age of 14, while a majority still believe that tackle football is safe for high school students. A recent Washington Post/UMass Lowell Center for Public Opinion poll found that 53 percent of adults surveyed believe that tackle football is not a safe activity for kids before they are in high school. Fifty-seven percent believe that high school football is a safe activity. These numbers are getting close to what I believe will be the tipping point.

I read a compelling article by Luke O’Neil of Esquire, in which described his experiences playing youth football and his concerns about the effects on his own future. He began by recalling one Thanksgiving Day game in particular:

“Everything turned yellow on Thanksgiving. I don’t remember much else from that day, now over 20 years ago, but a shift in the world’s color palette tends to stay with you. . . You can hit people so hard that long after they beat you, they remember you were there. You can hit so hard that you knock yourself out and wake up confused and distraught on the sideline, seeing yellow, and no one thinks to check if it was anything serious. I remember crying on the bench as the hitting continued on without me. For years, I thought they were only tears of frustration.”

In his article, O’Neil cited evidence that attitudes toward football are beginning to change rather quickly. The link between football and chronic brain damage was not on the national consciousness until after Dr. Bennet Omalu of Pittsburgh published his landmark article on Chronic Traumatic Encephalopathy (CTE) in the journal Neurosurgery in 2005.

Predictably, the NFL – and its committee of medical experts – fought back vigorously against Dr. Omalu and his findings. In 2009, the NFL finally admitted that its own determined its former players were suffering from memory-related diseases at a higher rate than the normal population, which it attributed to histories of concussions.

By 2013, an HBO/Marist poll found that 33 percent of Americans said the link between brain injuries and football would make them less likely to allow their sons to take part. Three years later, the same poll found that number had increased to 40 percent.

It would not be until 2016 that the NFL formally admitted the link between playing football and CTE, and conceded that permanent impairment may not be limited to the effects of multiple concussions. Since then, concerns about the effects of repetitive sub-concussive trauma have taken center stage.

Fear of football-related brain injuries is having a significant impact on participation at the high school level, even in states with a rich tradition of scholastic football. The Ohio High School Athletic Association reported that the number of high school football players in Ohio last year was 42,490. That’s down more than 23 percent from a peak of 55,392 in 2009, when the NFL first admitted that there was a problem. we

The effects of multiple concussions on young players has been well-established. As noted above, it is the long-term consequences of repetitive sub-concussive trauma that are less clear.

There is significant evidence, however, that even moderate exposure to the head trauma associated with football by players younger than twelve can have devastating long-term effects. Robert Stern, a senior author on a recent study done by Boston University’s Chronic Traumatic Encephalopathy (CTE) Center told the Boston Globe last month:

“I’m at a point where I feel comfortable saying that, based on logic and common sense and the growing totality of the research, I don’t think kids should be playing tackle football.”

The overwhelming consensus among experts is that more research needs to be done.  That does not mean, however, that there have not been worrisome findings. An important study in North Carolina documented changes to the brains of a high school football team over the course of a season through brain-imaging scans.

None of the players studied suffered concussions. Certain changes were associated with linear acceleration – the head moving forward or back within a helmet. Other changes were associated with rotational impact.  The study followed earlier studies identifying measurable changes in brain chemistry associated with brain damage from participation in high school football.

The studies have not yet established whether the changes are permanent and, if so, what effects they have on memory, behavior, cognition, etc. Again, there remain more questions than answers on long-term effects, but one of those questions for parents is whether to allow their children to play football until there is proof positive about the danger to their brain health posed by playing football. How much risk is tolerable if it involves compromising your kid’s future?

Last year the Centers for Disease Control decided to undertake a “rigorous evaluation of the risks of tackling in youth football,” and called on experts to submit research proposals to identify what age groups are at most risk of sustaining head injuries. It is possible that better answers to the outstanding questions will be the result. It also is possible that the research could take many years to complete, as players are studied over time.

My guess is that, no matter how much research is done, scientists are never going to come up with a “bright line” test for determining how much head trauma is safe, and how much isn’t. The susceptibility to and recovery from brain injury varies by individual. I would expect the CDC eventually to come up with recommendations for things like routine neuropsychological testing and scans: First to get a baseline on players, and then to determine if changes are taking place. It won’t be cheap, and it may not be reassuring.

In the meantime, what happens?  Attitudes can take a long time to change, even in the digital age. But one’s attitude about allowing a child to play tackle football is different, because it implicates the good parent/bad parent continuum, and therefore is susceptible to powerful emotional forces, including social pressure.

If the idea takes hold that only “bad” parents allow their children to play football the idea will dominate social media, and parents who do allow their children to play football will be unable to escape it. When the accepted wisdom among parents is that allowing children to play tackle football is tantamount to being indifferent to their health, the tipping point will have been reached and it will only be a matter of time before participation in youth football declines even more dramatically.

Some of the factors mitigating against the long-term survival of youth and scholastic football are based on more practical issues: Even if is deemed “safe” for a child to begin playing tackle football at age 14, what parent wants to be placed in the position of trying to persuade his or her child that it is not safe to continue playing it after age 18? Better to never start down the path than to have to convince an 18-year-old, who believes that he is invincible, to give up football before it’s too late.

There also is a major question about the effect of playing flag football at the youth level on the general popularity of the sport, and on the transition to tackle football at the high school level. The two sports are similar, but not identical, and players that flourish at one may not flourish at or even like the other.

I see the arrangement as increasing the exodus from football to the other football, soccer, which has continued to increase in popularity in this country. Ann Coulter aside, soccer no longer is viewed as a “foreign” sport for youngsters who can’t play football.

Finally, there is the issue that is implicated by poll findings showing that college-educated Americans are more likely than their less-educated peers to believe that football is unsafe.  Could football go the way of boxing, which gradually lost acceptance by the educated middle-class as a safe and responsible sport, particularly for children? I think it could. It also is possible that youth and scholastic football could become a regional phenomenon, more likely to survive in the south and southwest than in the northeast and elsewhere.

The initiatives underway to make the game safer for players of all ages are admirable and important, but I believe that they are no more than rear-guard actions that will do little to slow the decline in participation. There is only so much that can be done to change the nature of the game before it no longer is football as we know it and the bottom drops out of its popularity. Will the decline in participation in youth and scholastic football flatten out? I tend to doubt it.

In his story, Esquire’s O’Neil recounts an interview in 2015 by Bryant Gumbel of HBO with legendary NFL player and coach Mike Ditka. I attended graduate school at the University of Pittsburgh, where Ditka played. The son of a welder, he was raised in nearby Aliquippa, a steel town with a population of no more than about 11,000 where two other Pitt and NFL players of some note, Tony Dorsett and Darrelle Revis, also grew up.

Ditka asked Gumbel: “If you had an 8-year-old kid now, would you tell him you want him to play football?” Gumbel said that he wouldn’t, and in turn asked Ditka: “Would you?” “Nope,” Ditka replied. “That’s sad. I wouldn’t. And my whole life was football. I think the risk is worse than the reward. I really do.”

Ditka would never be mistaken for a neuroscientist and is prone to saying things without giving them a lot of thought. On the other hand, he was one of the game’s iconic tough guys and nor would he be confused with a bleeding-heart liberal.

Ditka cut the issue down to its essence: Balancing the risks against the benefits. As more and more players have made similar statements, it has become increasingly clear to those football fans who would prefer to live in a state of denial about a sport they enjoy that the problem is a real one that they may have to confront as parents.

I admit that I also see this issue in another context, which is my lingering feeling that scholastic and especially major collegiate football have outgrown their proper roles. We are the only country in which the feeder programs for the country’s most popular sport are its academic institutions, a relationship that does not entirely make sense and produces inevitable tensions – to describe the football programs at places like Alabama and Ohio State as anything more than revenue-producing adjuncts to their academic programs is disingenuous. Try persuading anyone that the tail doesn’t wag the dog after the Sandusky child sexual abuse scandal at Penn State.

I touched on the role of intercollegiate sports in a piece that I posted last year on Pearl Harbor Day on the Navy’s decision to allow Naval Academy graduate Keenan Reynolds to forego his military obligation to try out with the Baltimore Ravens. I thought that it sent the entirely wrong message about priorities, and the head trauma issue is also about priorities: Is football so important that academic institutions are willing to expose their students to the possibility of mental impairment? It is not only parents who have something to think about.

I’m not sure exactly why I felt strongly enough about this subject to write about it now. Maybe it is because of my general malaise over the current direction of our country and my belief that a lot of our priorities have become misaligned. Or maybe it is because the Pitt Panthers lost another game yesterday and are on their way, yet again, to a disappointing season.

October 8, 2017

 

Circling the wagons in Baltimore County.

No one circles the wagons more quickly and tightly than Baltimore County government officials. Ann Constantino of the Baltimore Post found that out last week when she tried to review the files in the Baltimore County Department of Environmental Protection and Sustainability to which I referred in my post “The Culture of Soft Corruption in Baltimore County.”

Long story short, the contents of those files are likely to disclose the legal justification – if any – for the decision by the Kamenetz administration to cut down 30 perimeter trees on the site of the proposed development known as Towson Station (formerly known as Towson Gateway) in contravention of a condition placed on the development by the County Council that the trees be preserved. The information in those files, required by State and County forest conservation laws, is critical to determining whether one or more County officials violated forest conservation laws.

We know that County officials violated the legislated will of the County Council as memorialized in Resolution No. 113-16 by cutting down the trees. If they did so while also violating State and County forest conservation laws the problem gets even more serious, and we could then be talking about possible criminal charges.

I am not going to try to describe the runaround that Ms. Constantino received from various County employees when she made a simple request to review the files, which are open to public inspection as a matter of law. You must read about it in her story – and see it in a video posted with the story – to believe it. It is even humorous, if you can find humor in an obvious attempt by county officials to frustrate access to files that Ms. Constantino had the right to inspect. [“Elusive Towson Gateway Records Key to Legal Dilemma,” The Baltimore Post, October 3, 2017.]

One other thing that also comes through in her story is that there are rank-and-file employees in Baltimore County government who try to do the right thing, perhaps at the risk of offending their superiors. If these employees are thinking about their futures after Messrs. Kamenetz and Homan leave County government, then that probably is a good idea.

The reputation of the current administration for its opaqueness and hostility to anyone who gets in its way has become widespread throughout the County, and employees deemed to be part of that problem may encounter problems hanging onto their jobs when the administration changes in 2018 – depending, of course, on who is elected County Executive. Time for employees to be thinking about their own reputations.

Finding out anything from Baltimore County officials that they are reticent to disclose can be like the Hunt for Red October.  I had my most recent frustrating experience with a County official when I tried to contact the County Auditor her to ask her if her office is auditing the now-defunct Executive Benefit Policy.

The Office of the County Auditor is an independent agency in the Legislative Branch of County government. The County Auditor is appointed by and serves at the pleasure of the County Council, not the County Executive. The County Council, however, is equally adept at circling the wagons and stonewalling the public and media. Council Chairman Tom Quirk was singularly unhelpful when I began my inquiry into the remarkably generous Baltimore County Executive Benefit Policy that was rescinded by County Executive Kevin Kamenetz not long after an op ed that I wrote about it appeared in the Baltimore Sun.

The County Auditor is Lauren Smelkinson, although you would not know that from the website of the Office of County Auditor, which for some reason does not list her by name. After trying to reach her by telephone and email without success, I think I may know why – she doesn’t appear to like to answer questions, at least not mine. Maybe she just likes to keep a low profile.

In any case, she has an extremely important job with the County, charged by law with ensuring that taxpayers’ money is spent in compliance with the law and only for the purposes for which it was appropriated. As of 2016 she was paid an annual salary of $176,904 to serve as the County’s fiscal watchdog.

I acknowledge the possibility that Ms. Smelkinson’s reluctance to return my telephone calls could have something to do with personal dislike for me, although I don’t know that because we’ve never spoken. After the County Executive rescinded the Executive Benefit Policy, the County Council also rescinded the Legislative Branch Benefits Policy. The Legislative Branch Benefits Policy conferred benefits on appointed officials in the Legislative Branch, including Ms. Smelkinson, that were similar to benefits under the Executive Benefit Policy.

The benefits under both policies included “severance pay” for officials who left County employment. For Ms. Smelkinson, that would have amounted to a lump-sum payment of about $39,000, in addition to any pension benefit that she may have earned by her service with the County. If Ms. Smelkinson is upset with me about the loss of that benefit, then all that I can do is assure her that it was nothing personal.

I have no doubt that Ms. Smelkinson is an honest and competent professional. I’d sure like to see her change her attitude, however, about answering simple questions from members of the public. To be blunt, I believe she is compensated well enough to be a little more responsive to County citizens such as myself.

The County Auditor needs to do an audit to determine whether an admitted irregularity in the administration of vacation leave under the Executive Benefit Policy resulted in the misappropriation of County money. It is a point that I made in a prior post and explained in a recent memorandum, Memo, grounds for audit 9 21 17 .  I’ve pressed members of the County Council (including Mr. Quirk) without success to use the Council’s power under the County Charter to direct an audit.

Two weeks ago, I left two telephone messages with Ms. Smelkinson and, when she didn’t return the calls, I followed them up with an email. I had a simple question. I know that the County Council has not ordered an audit, but I wanted to know if she had initiated an audit of the Executive Benefit Policy on her own volition. All I needed was a “yes” or a “no.”

In my opinion, there is no legitimate reason for her not to answer the question. Compliance audits of the type we are talking about need not be done in secret, and involve the review of existing personnel, payroll and financial records kept by the County in the ordinary course of its business. So why not answer a simple question? When folks circle the wagons, they generally are trying to protect someone or something, and I am starting to get suspicious.

Last week I got a little more forceful, sending Ms. Smelkinson an email stating that if she continued refusing to answer my question I would be forced to write about her refusal to answer my question, rather than about the information that I was seeking from her. She responded with an email on September 27th stating: “There was no refusal on my part to respond to you. I will be responding to your request.”

Well, I give her credit for parsing language – failing to answer my question is not necessarily refusing to answer it. On the other hand, here we are a week later and she still hasn’t answered it, so at this point I am considering her failure to answer my question to be a refusal to do so. Ms. Smelkinson and I may just have to agree to disagree on what constitutes a “refusal” to respond.

I am hoping the next County Executive ushers in a new era of openness and transparency in the Executive Branch of Baltimore County government, and appoints department heads who don’t hide from the media and consider ordinary members of the public to be the enemy. And maybe the members of the County Council who take office next year will find a County Auditor who is a little more forthcoming with concerned citizens.

PS. Ms. Smelkinson, I’d still like an answer to my question: Are you doing an audit of the Executive Benefit Policy, or aren’t you?  I thank you in advance for your assistance.

October 4, 2017

 

 

Moratorium on bumper-sticker patriotism.

If there is one thing that we Americans have proved, it is that right now we can’t handle symbolism responsibly. If we can’t do any better than we have been doing during the past couple of weeks maybe we need a one-year moratorium on playing the national anthem before sporting events, and even on such things as flying the United States flag at Fourth of Judy parades.

During the moratorium we can commit ourselves to relearning what our flag, and this country, represent. Perhaps with a little study and reflection we can restore the status of the flag to the symbol of unity and common purpose that it is intended to be, and get past being so upset when someone decides to kneel during the playing of the National Anthem.

The nastiness surrounding the decision by many NFL players to kneel during the playing of the National Anthem before NFL games two weeks ago to protest racially-motivated policing and other racial inequities in this country was troubling. Of course, one of the primary reasons that it was troubling was because it was provoked by the President of the United States, who turned a minor protest by a handful of black players into a major racial controversy by calling the protesters sons of bitches who should be fired by team owners.

Another reason that it was troubling was because of the tendency of those who object to the form of the protest to see it as an attack on the flag that is celebrated by the National Anthem, and therefore an attack on the country itself. Was the protest intended to be a criticism of this country? Of course, but since when is criticism tantamount to disloyalty?

Why have some Americans taken personal offense at other Americans who allegedly “disrespect” the United States flag by refusing to stand up when the National Anthem is played?  The answer is that those who find offense are too focused on the flag as symbol and, in my opinion, have lost sight of what that symbol represents.

The Vietnam War changed forever my feelings about patriotic symbols, including the flag. In 1968, there was a highly-publicized flag burning in New York’s Central Park in protest of the Vietnam War. I, like most others, was appalled. Years later, I learned that at about the same time as the flag-burning protest in Central Park, American military leaders and politicians were concluding that the Vietnam War could not be won. Nevertheless, another 27,000 service members were sent to their deaths in Vietnam.

You tell me where the greater sin lay. I’ve never viewed flag burning in the same way, and have a hard time worrying about whether symbols of anything are being treated with the proper respect. It just seems to me that there are more important things to worry about than symbolism – like the lives of American soldiers, sailors and airmen.

As any psychologist or anthropologist will attest, symbols can evoke powerful emotions, and can be very powerful tools. The power of a symbol like a flag comes from the fact that it does not convey an explicit message – the flag is a blank slate and it stands for whatever the individual believes that it stands for.  It is a empty vessel generally filled more with emotion than with ideas – or ideals.

Consequently, both white people who hate black people and black people who hate white people can “love” the flag. People of disparate points of view can rally around the flag, each believing that the flag represents his or her own point of view. Try rallying people around the concept of the First Amendment, however, and you get what you have now with the anthem kneeling: An ugly, racially-tinged division of opinion. A person’s emotional response to the flag is not diluted by critical thinking, which is why it can be so powerful.

Ask people what the flag means to them, and they usually will come up with what appear to be reasonable answers. “Freedom” is the most common response.

It is when you dig a little deeper that things get ambiguous. Freedom for whom and from what? The freedom of same sex couples to marry? The freedom of African-Americans from racial discrimination? The freedom of transgender females to use the women’s bathroom? It is the emotional charge attached to the word, just like the emotional charge attached to the flag, that matters – you can’t get yourself all fired up when you’re engaged in thought about what life, liberty, and the pursuit of happiness really means.

I have developed an especial disgust for bumper-sticker patriotism: All sizzle and no steak, a mile wide and an inch deep – worthless. You can cheat on your taxes, dodge the draft, and never do one damn thing for the common good of the people of this country, but if you stand when the National Anthem is played, you’re a patriot? I don’t think so. That’s not an adequate standard.

Not everyone who objects to football players kneeling during the National Anthem is a bumper-stick patriot, but more than a few are, including President Donald Trump. This man doesn’t give a rat’s ass about anything the flag stands for, and he is going to lead the charge by “true Americans” against anthem-kneelers? Terrific.

And where did the nonsense come from that kneeling during the National Anthem dishonors members of the military and law enforcement officers? I am a veteran, and the grandson, son, son-in-law, nephew, brother, cousin, father and father-in-law of veterans. I don’t take offense, and I say this to veterans and active-duty military: Don’t let yourself be used. Those NFL players who knelt during the National Anthem, many of whom have beloved relatives who have served or are serving in the military, respect you. None of us have any special claim on the flag, and this isn’t about you or me.

As for law enforcement officers, if you treat citizens the same regardless of color, then this isn’t about you, either. If, on the other hand, you are a bigot and mistreat citizens because of their skin color – and there are still far too many police officers in this country who do so – then the protest is about you. If it stings a bit, good.  Maybe that will help motivate you to change.

I love the reaction by NFL fans who object to the protests because “they go to games to be entertained, not to be subjected to players’ political opinions.”  So they prefer that protests take place where they can readily be ignored?  At least they’re being honest.

There is nothing new about protests in this country, nor is there anything new about people being offended by those protests, sometimes vehemently. What is worrisome about the current situation is that it is being exploited by a president to promote racial animus and to deepen racial divisions in this country as a way of reinforcing the loyalty to him of his alt-right base. I believe that we need to immunize ourselves from the virus of hatred that he is trying to spread with the recognition that the flag was never intended to be an object of worship and that, when divorced in our minds from the principles and values that it represents, it is nothing more than a piece of cloth.

The flag, above all else, is a symbol of national unity. Black football players kneeling during the anthem are trying to tell the rest of us that we are not as united as we need to be, and that we are being driven apart by racially-biased policing.

We don’t have to believe that either their message or their manner of delivering it is correct, but we at least should pay enough attention to determine for ourselves whether these players are identifying a problem in this country that needs fixing. Getting all worked up because of the manner of their protest, and allowing ourselves to be duped into a racial war-of-words (or worse) by our draft-dodging, blowhard president, isn’t the answer and solves absolutely nothing.

October 2, 2017

Scared cops.

An incident earlier this month serves as an example of a phenomenon that is not being given enough attention during the continuing debate over police shootings. The phenomenon is scared cops. There are good cops, bad cops, racist cops, and scared cops, sometimes in various combinations of those characteristics. It appears that Deputy Sheriff Jake Shaw of Clark County, Ohio was an otherwise good cop who feared being shot.

The incident in Ohio allows us to look at the problem free of racial connotations because both Shaw and the man he shot, local newspaper photographer Andy Grimm, are white. In fact, the two men considered each other friends, and Grimm could be heard on Shaw’s body camera audio telling Shaw “I don’t want you to lose your job for this” while Grimm was lying on the ground writhing in pain. Fortunately, Grimm survived.

Grimm got out of his car to set up his camera to photograph an electrical storm near to where Shaw had made a traffic stop. Grimm was under a street lamp in plain view of Shaw, and waved in the direction of Shaw, believing that Shaw would recognize him. As Grimm was setting up his tripod, Shaw fired two shots at Grimm, striking him once in the abdomen.

Shaw himself can be heard on the audio explaining what happened: “Andy, I thought it was a friggin’ gun, dude. Stay strong with me. I love you, brother.” Whatever else the investigation of the shooting discloses, it will confirm that Shaw was frightened of being shot when he shot Grimm.

Fear is an equal-opportunity emotion. In July, Justine Damond, an émigré from Australia living in Minneapolis, was shot by a Somali-American policeman, Mohamed Noor, under circumstances still far from clear. The officer was black and the victim was white.  There is no doubt in my mind that fear in the mind of the officer who shot her will be part of the chain of causation. Her tragic death was a consequence of what the proliferation of handguns has done to policing – and life – in the United States and, again, it will not be the last of its kind.

The rise to national prominence of the Black Lives Matter movement in 2014 drew our attention to the very real problem of young black men dying at the hands of police officers acting based on racial stereotypes, if not overt racism. As it happens it was a shooting that occurred in North Miami, Florida on the first day of the Republican National Convention in 2016 that first persuaded me that there is another, more pervasive problem than racist cops: Scared cops.

A North Miami officer shot a mental health therapist attempting to calm an autistic patient. The officer fired three shots at the patient, one of which struck the therapist and none of which hit the patient. The officer was over 50 yards away and mistook a silver toy truck in the hands of the patient for a handgun. The victim survived and the officer subsequently was charged with attempted manslaughter. Were his actions grossly negligent? Probably. Were they motivated by fear? Undoubtedly.

Fear in combination with racial stereotyping, conscious or unconscious, is particularly deadly.  Better screening and training of officers, and more effective disciplinary action against those officers unfit to be given the power over life and death, will help. But cops are human beings, and it is human nature to be afraid in situations that we perceive as dangerous. Racial stereotyping was not a factor in the shooting of an unarmed 40-year-old white woman dressed in her pajamas. Apprehension of harm to the officer or his partner was.

The widespread availability of handguns has exponentially increased the number of potentially dangerous situations to which officers are exposed. Incidents like those in Clark County, Ohio, Minneapolis and North Miami will continue for as long as every criminal, terrorist, gang banger, and troubled individual who wants a handgun can get one. Officers know that they have only a split second to act if a person has a gun and intends to use it to shoot them. Tragic mistakes are inevitable.

Will some officers falsely claim fear for their lives to persuade jurors that their actions were justified? Of course. Another facet of human nature is that, faced with prison or other serious consequences, there are people who will lie to evade the consequences of their actions, police officers included. That doesn’t obscure the fact that there is real fear out there and that it affects the judgment and behavior of police officers.

Want to get an idea of the fear that always lies just beneath the surface? Listen to the terror in the voice of the partner of New York City police officer Miosotis Familia as he reported over the radio that she had been ambushed and shot to death while sitting next to him in a patrol car in July.

Yes, police officers fear things besides guns, as demonstrated by the shooting last week of the troubled president of a gay and transgender student group who allegedly was threatening campus police officers with a small knife outside a dormitory at Georgia Tech. But guns are different.

A friend of mine from Edinburgh retired from the Police Service of Scotland. He attributes the difference between policing in the United States and policing in the United Kingdom to one thing: Handguns. “Guns change everything.” Yes, they do and, when it comes to the landscape of policing in America, not for the better.

What can we do? Some empathy may help. Don’t accept racism or other bad behavior from cops but don’t jump to conclusions, either. Try to understand what it’s like to decide between shooting or being shot in less than a heartbeat. Unless we somehow can find a way to end the ready access to handguns by people who should not have them, the only other thing that we can do is get used to officers shooting people who didn’t need to be shot.

September 23, 2017

The consent decree with the DOJ is a glorified half-assed attempt to fix the BPD.

Anyone who has worked with me for any length of time knows that I have a special antipathy toward half-assed actions by government. The consent decree negotiated between the City of Baltimore and the United States Department of Justice (DOJ) over the management of the Baltimore Police Department (BPD) is a half-assed attempt to fix what ails the department, an imperfect and costly measure that only obliquely addresses the core of the problem with the BPD. Just because an action is expensive doesn’t mean it isn’t half-assed.

As the city and the DOJ cobble together a proposed team to monitor compliance with the consent decree, there are three things to keep in mind: The consent decree is adding another layer of bureaucracy, it will be extraordinarily expensive, and there is no guarantee of long-term success. There is in fact a fourth thing: The consent decree could have been avoided had the State of Maryland acted when it should have to assert control over what by the end of 2014 was obviously a rapidly deteriorating situation with the BPD.

By design, the monitoring team will not take control of the BPD; the team will generally hover above department management to make sure that those in control do what is necessary to reduce the incidence of unconstitutional police practices. It is a balancing act that, according to reports around the country, some monitors have done better than others.

Compliance monitoring is an intrusive process, demanding time and attention from police commanders – an inevitable distraction from the other tasks at hand. A lot of time (and money) will be spent gathering and processing information. In the end, there is no guarantee of success, in part because the monitoring team itself has no direct power to make the type of structural changes to departmental governance and labor relations necessary to effect long-term change to departmental culture, a point that I have made ad nauseam.

Another factor to consider is that, as far as I can tell, no other police department has had to go through the compliance process while also trying to cope with an out-of-control epidemic of violent crime of the type being experienced in Baltimore. The compliance process tends to slow down operational decisions within a department, and in the case of the consent decree in Baltimore will certainly moderate any thought by police commanders that more proactive police tactics are necessary. Risk-taking, and therefore innovation, will not be encouraged while the decree is in effect.

To be considered a success under the circumstances applicable to Baltimore, the consent decree cannot simply result in fewer violations of citizens’ constitutional rights.  It must do so while allowing the BPD to take the actions necessary to help reduce the rate of violent crime.  That is a big challenge.

Also, a comment as to police morale. I admit to some cynicism, having never participated in labor negotiations with a public safety union in which the union didn’t begin with the complaint that “morale is at an all-time low” because of actions management took or failed to take to support union members. On the other hand, I recognize the vital importance of having police officers believe that they have the support of police management when it comes to actions taken in the course of their duties, especially in a tough-to-police place like Baltimore.

A precondition to that type of trust is a very clear set of rules, and a very clear set of consequences. The commissioner must be able to say to the officers on the street:

“If you are doing your job, even if you make an honest mistake, I have your back. But if you intentionally break the rules – use force when it obviously isn’t necessary or deliberately violate someone’s 4th Amendment rights – you’re gone. And, supervisors, if you can’t keep your subordinates from breaking the rules, you’re gone, too.”

Will the Police Commissioner be able to establish that type of relationship with officers while the department is under the consent decree? I have my doubts. Not only will the monitor be looking over his shoulder, it also appears that the new City Solicitor will be doing so as well; there is no way of getting around the fact that the commissioner will be on a shorter leash when it comes to his responses to the conduct of his officers.

We will see how this affects the willingness of the commissioner to act decisively when controversies arise. I believe that the tightrope that a commissioner always must walk will get a lot higher and scarier under the consent decree.

∞ ∞ ∞

This costly and cumbersome process could have been avoided had former mayor Stephanie Rawlings-Blake turned to the State of Maryland for help, rather than put all her eggs in the federal basket. Of course, the State of Maryland, in the person of former governor Martin O’Malley and current governor Larry Hogan, would have had to be willing to do what was necessary.  It would have required the mayor and governor working in concert to overcome the political hurdles.

What am I talking about? I am talking about the type of receivership that some states employ to take over failing law enforcement agencies and even entire municipalities. The irony is that the legal foundation for such action regarding the BPD already exists, because the General Assembly has retained legislative authority over the BPD since taking it back from the city in 1860. The notable exception to the plenary authority of the state lies in some aspects of labor relations with BPD officers, and the City Council has done its best to make a hash of that.

In one fell swoop, the General Assembly could have passed a law that effectively placed the BPD in receivership, and gave the governor the authority to appoint a board with complete power over the BPD, including the power to hire and fire the Police Commissioner. To be effective, any such law also would have had to exempt the BPD from the Law Enforcement Officers’ Bill of Rights and from city and state labor and personnel laws that currently render the department ungovernable, and have resulted in the slow, painful deterioration of the department. I have long believed that the core problem behind the long, painful deterioration of the BPD is the gradual dilution of the authority of the Police Commissioner to run the department.

One good commissioner, answerable only to a panel of bona fide experts and ultimately to the General Assembly (and allowed to build a management team of his or her own choosing) would be able to right the BPD ship more quickly and less expensively than will be possible under the consent decree. Just as importantly, the commissioner would be free from the second-guessing of federal monitors, and therefore able to adjust police tactics more rapidly as circumstances required.

The only reason that the “receivership” model is worth mentioning at this late date is that it still may turn out to be the best way forward. At some point the monitor will have to confront the barriers posed to compliance by the structural governance issues described above, and receivership will be the cleanest and most effective way to overcome those obstacles.

The consent decree sets ambitious goals and objectives, and there will be nothing half-hearted about the efforts of the monitoring team.  Moreover, it appears that little effort or expense will be spared toward achieving compliance. At the end of the day, however, the consent decree is a glorified half-assed attempt to fix problems that the city and state have lacked the political will to fix in the most effective and efficient way. I hope it works, but half-assed measures seldom do.

September 16, 2017

With the City of Baltimore, be careful about reporting a legal opinion as a fact.

There are many discouraging things about the manner in which the City of Baltimore goes about its business, but right up there near the top of my list is the feckless way that the city manages its relationship with Lodge No. 3 of the Fraternal Order of Police (FOP). The FOP represents the sworn officers of the Baltimore Police Department (BPD) up to and including the rank of lieutenant. I’ve done many pieces on the destructive consequences of the failure of the City Council to use its power under the City Charter to limit the scope of collective bargaining with the FOP and rein in the inordinate power of the union over the governance of the BPD.

A prime example of the city’s fecklessness is the extended controversy over placing up to two voting or nonvoting civilian members on the hearing boards impaneled to hear disciplinary charges against BPD officers as authorized by a change to Maryland law passed by the General Assembly in 2016.  The city has been attempting for nearly a year to get the FOP to agree to placing civilians on hearing boards as part of the labor agreement intended to replace the one that expired on June 30, 2016; the city and FOP have been operating without a signed agreement since that time.

I thought I read a few days ago that Mayor Catherine Pugh had decided to abandon the efforts to place civilians on hearing boards through negotiation, and to focus on getting a state law passed that eliminated the alleged need to secure the approval of the FOP to placing civilian members on the boards through negotiation. I couldn’t find the story after a brief search, and I am too tired of this issue to look any further. In any event, I read in a story printed in today’s Baltimore Sun that Mayor Pugh plans to continue to push for inclusion of civilians on hearing boards as part of the ongoing negotiations with the FOP.

The story, written by Kevin Rector and Justin Fenton, also parroted the city’s apparent position that “state law prohibits the city from putting civilians on the boards without the union’s consent.” Just to be clear, gentlemen, that statement is an expression of an opinion, not a fact. And, by the way, it is not the opinion of Assistant Attorney General Kathryn Rowe as described in her letter of advice to State Senator Nathaniel McFadden dated November 4, 2016.

I found Ms. Rowe’s letter after I had a conversation in April with City Councilman Brandon Scott. As I understood the description of his position, it was that the City Council lacked the authority to authorize the Police Commissioner to appoint civilian members of hearing boards because the General Assembly retained control of the Baltimore Police Department (BPD).  Mr. Scott told me that this position was based on advice received from the Attorney General.

Mr. Scott said that he would provide me a copy of the advice if it was reduced to writing and he could locate it. I never received anything further from him, so I went looking for the advice myself, and after some effort found Ms. Rowe’s letter. Her advice may not be the same advice to which Mr. Scott referred, because it is different than what he told me.

According to Ms. Rowe’s letter, Senator McFadden requested the AG’s advice based on an op-ed that I wrote in July 2016 urging the City Council to act on the issue. To my knowledge, neither the request nor the letter of advice became a matter of public knowledge – I certainly did not know about the request or letter until I found the letter six months after it was written.

In her letter of advice, Assistant Attorney General Rowe drew the city a road map on how to place civilians on hearing boards without gaining approval to do so from the FOP through negotiation. First, the City Council would have to enact an ordinance authorizing the Police Commissioner to place up to two voting or non-voting civilians on BPD hearing boards under the authority of Section 3-107(c)(3)(ii) of the Public Safety Article, which is a provision of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR).

Thereafter, the Labor Commissioner could simply refuse to negotiate the issue with the FOP, and the Police Commissioner would be free to exercise his authority to appoint civilian members as authorized by the city ordinance. The authority to appoint civilian members would flow from the ordinance, not from the labor agreement, which would be silent on the issue.

(Skip to the last paragraph on page 5 of Ms. Rowe’s letter if you are not interested in the detailed analysis.)

Of course, there may be another legal opinion out there that I am not aware of. Even if the City disagrees with Ms. Rowe and is queasy about its authority to pass an ordinance as described by Section 3-107(c)(3)(ii) of the Public Safety Article, however, the Mayor should not have gone to the General Assembly this year with the request that she did in the form of SB545/HB1023.

If she had doubts about the accuracy of Ms. Rowe’s conclusions, Mayor Pugh should have asked the General Assembly to clarify that the City Council had the power under the 2016 changes to the LEOBR to decide whether to authorize the Police Commissioner to appoint civilians to BPD hearing boards, and whether to withdraw the subject of civilian participation from collective bargaining. Instead, Mayor Pugh asked the General Assembly to make those decisions for the City Council. It was, to be blunt, a chicken-shit request on the part of the mayor and it was dead on arrival.

By asking the General Assembly to remove the subject of hearing board composition from the scope of collective bargaining rather than empowering the City Council to do so, she was asking state legislators to take on a political fight with the FOP that she and city legislators have no stomach for – and that is never going to happen. The mayor had been informed in no uncertain terms before the 2017 session by an influential state senator not to expect the General Assembly to rescue the city from its inability to solve its own labor relations problems, and SB545/HB1023 went nowhere.

Maybe someone can ask the Mayor and members of the City Council whether they agree with the advice given by Assistant Attorney General Kathryn Rowe and, if so, why they haven’t acted on it. It would be interesting to know whether the city is holding back because of genuine legal concerns, or because of the usual trepidation by city officials about offending the FOP. Given the nature of the legislation requested during the 2017 session of the General Assembly by Mayor Pugh, my money is on the latter explanation.

September 12, 2017

An admission of defeat by the State’s Attorney and Police Commissioner?

I, along with many others, read Justin Fenton’s account of his interview with Baltimore State’s Attorney Marilyn Mosby and Police Commissioner Kevin Davis with a sense of despair. I heard Ms. Mosby and Commissioner Davis say many things, but above all I heard them trying to tamp down expectations of reducing violent crime any time soon to try to save their reputations, and their jobs.

I must admit that I’ve long since written off State’s Attorney Marilyn Mosby, and have no expectations that she will say much of anything worthwhile, let alone admit any shortcomings in her approach to her job. The good thing about having low expectations is that you’re seldom disappointed, at least when it comes to public officials in Baltimore.

The claim by Commissioner Davis that the style of policing that resulted in a reduction to fewer than 200 homicides in 2011 also produced the civil unrest that followed the death of Freddie Gray was, however, disappointing in its intellectual dishonesty. What Commissioner Davis left out is much more significant than the nugget of truth in his statement. It was not the tactics employed that produced the collateral damage to the relationship between the Baltimore Police Department and city residents, it was that they too frequently were applied in an undisciplined and abusive manner. It is a difference with a critical distinction.

The distinction is that the answer lies in improving the discipline and quality of the department, not in abandoning the type of tactics necessary to gain some semblance of control over what has been happening on the streets of Baltimore for the better part of the past three years. Because Commissioner Davis has condemned the tactics of his predecessors he has wedded himself to his own version of history, a version that is not entirely accurate and that tends to absolve him of any responsibility for the continuing epidemic of murder and other violent crime in the city.

As Peter Moskos  pointed out this week in a post to his blog, the numbers certainly indicate that “discouraging proactive legal discretionary policing allowed violent criminals to be more violent” beginning in about 2015. Professor Moskos is one name on a fairly long list of critics of the abandonment of proactive policing in the city that includes former United States Attorney for the District of Maryland (and current U.S. Deputy Attorney General) Rod Rosenstein, former State’s Attorney Gregg Bernstein, and former Deputy Police Commissioner Anthony Barksdale.

I have been a vocal advocate for improving the discipline and quality of the Baltimore Police Department (BPD), and the Baltimore Sun has published a number of my op-eds on the subject over the past several years. Re-reading the most recent, “Baltimore police officer is a tough job, treat it as such” (I don’t write the captions), I realize that it has a bit of a desperate, it’s-now-or-never feel to it. Well, it should, because that feeling reflects reality.

Professor Moskos expressed his concern that “Baltimore is transitioning from a city with failures to a failed city.” I agree with him. Baltimore is near a tipping point, and if passes that point years of decline will be inevitable. In fact, the BPD and the city may already have reached the tipping point; I wrote (another) pessimistic commentary four months ago in which I opined that the BPD was in more serious trouble than city and state elected officials seemed to realize.

I’ve always believed that improving the discipline of the BPD is a means to a specific end, in the sense that the nature of violent crime in Baltimore, particularly gun crime, requires an aggressive, proactive approach. It is axiomatic that the closer policing is pushed to its constitutional limits, the more well-trained and disciplined a force must be to avoid transgressing those limits. I believe that it also is true that, by 2014, there was an accumulation of evidence demonstrating that there needed to be a re-set in the culture of the BPD; there were too many rogue officers and the BPD was destroying its relationship with the community it is intended to serve.

The appropriate response, in my opinion, was to try to turn the disciplinary situation around as quickly as possible. That certainly required some re-training, but it also required some fundamental changes to the governance of the department restoring full power to run the department to the commissioner and his top commanders. Maybe it required a temporary stand down as applied to certain tactics, but it certainly did not include permanently hard-wiring the abandonment of lawful “stop and frisks” into the consent decree with the DOJ, as was done by Mayor Catherine Pugh and Commissioner Davis.

There is no doubt in my mind that, if done properly, a more proactive policing style would be welcomed by the vast majority of city residents. Citizens don’t need any explanation about the crisis at hand, but I believe that the city leadership would have to get behind the Police Commissioner and “sell” the program to the public – the public needs to understand the reason for the approach and be assured that, although innocent toes are going to get stepped on from time to time, the BPD command is committed to minimizing and controlling any abuses. Old school police officers didn’t believe in the need to explain anything to anyone (no one in authority did), but times have changed and so has policing.

Nothing is going as I had hoped; what little change there has been has come too slowly, and the Mayor and Police Commissioner now almost seem to accept the level of violent crime in the city as inevitable. One of the former public officials referenced above encouraged me earlier this year not to abandon the efforts to push the BPD to reinvigorate its style of policing; I must say, however, that I am becoming increasingly convinced that trying to persuade the group currently in power in the city to change their minds on anything is a monumental waste of time.

August 29, 2017

The culture of soft corruption in Baltimore County.

In my opinion, the ill-considered course of conduct by the administration of Baltimore County Executive Kevin Kamenetz regarding the proposed development known as “Towson Station” located on property currently owned by the county is a prime example of the culture of soft corruption that pervades the Baltimore County government. In its haste to conclude the sale to the prospective developer, the Kamenetz administration trampled the due process rights of citizens opposed to the proposed development and then thumbed its nose at a condition placed on the proposed development by the County Council. And that may just be the beginning.

The proposed site of Towson Station is a 5.8-acre parcel of land at the intersection of York Road and Bosley Avenue that has been under a contract of sale with Caves Valley Partners since 2013. The County’s first errant step was to create an inherent conflict of interest between its proprietary interests and it regulatory duties by giving itself a financial stake in the outcome of the application by Caves Valley for approval by the County of a form of development known as a planned unit development (PUD).

I described the flawed way in which the County structured the transaction in a prior post. [“The Towson Station fiasco – a process flawed from the start,” August 12, 2017.] This post is an updated version of the previous one, as information slowly continues to come out.

When the County put the property up for sale it solicited proposals that included the purchase prices offered and the types of development proposed by the prospective buyers. Caves Valley offered the most money, $8.3 million, which was $2.2 million more than the next-highest offer.

The hitch was that the development proposed by Caves Valley included a Royal Farms gas station and convenience store. The zoning classification applicable to the property does not permit the property to be used for a gas station. Instead of rejecting the proposal out of hand, the County decided to strike a deal: It signed a contract of sale for the property contingent on Caves Valley gaining approval of a PUD. The County Council approved the contract in December 2013. Property that is developed under a PUD may include a use that is otherwise prohibited by the zoning classification of the property.

The process that resulted in the contract between the County and Caves Valley took place in secret. County Executive Kevin Kamenetz defended the secrecy, stating that the county had to be tight-lipped to protect the committee responsible for the selection from “outside influence.”

County officials claimed that, in reviewing proposals, the committee considered “how the [proposed] developments would fit into the community” in addition to the amounts offered for the properties. It seems that the “outside influence” that county officials were determined to avoid consisted of the views of citizens who lived or owned businesses in Towson. The deal with Caves Valley was controversial from the start because of widespread opposition to placing a gas station on the property, often described as part of the “gateway” to Towson.

An important feature of a PUD is that, because it is used to allow a parcel of land to be developed in a different way than permitted by the zoning classification and general zoning regulations applicable to the parcel, it triggers due process rights in nearby property owners who object to the “non-standard” development of the parcel. Consequently, the County is obliged to evaluate an application for a PUD in a fair and impartial manner that respects the rights of opponents. That obligation went by the boards as soon as the deal with Caves Valley was struck.

The property goes to settlement – and the County only gets its $8.3 million – if the PUD allowing the gas station is approved by the County. Does that sound like a formula for a fair and impartial evaluation of the PUD by the County? Of course not. Opponents of the project were at a disadvantage from the beginning because the County gave itself an economic incentive to approve the PUD.

Things went downhill from there. In December 2016, the County Council adopted Resolution No. 113-16 giving preliminary approval to the Towson Station PUD. Under intense pressure from citizens the County Council added conditions to the PUD, including the requirement that “existing mature trees that surround the site are protected.”

It appears that requirement may not have pleased Caves Valley. On April 1, 2017, without prior notice even to Councilman David Marks, who represents the district where the property is located and sponsored Resolution No. 113-16, a contractor for the County cut down 30 trees. Gone were seven “specimen” trees – trees having a diameter of 30 inches or more, and gone were the trees on the perimeter of the property ostensibly protected by Resolution No. 113-16.

On April 3, 2017, County Administrative Officer Fred Homan appeared before the County Council to explain the administration’s actions. Councilman Marks pointed out to Mr. Homan that Resolution No. 113-16 conditioned the approval of the PUD on the preservation of the perimeter trees.

Mr. Homan responded: “That has nothing directly to do with the fact that the county owns the properties, Sir. That would be at the point that the property would transfer.” That was Mr. Homan’s way of pointing out that, technically, conditions placed on the PUD applied only to the developer, not to the County; the developer itself couldn’t cut down the trees to facilitate its development but the County could do so for the developer. In others, Councilman Marks, “gotcha.”

If there was any doubt about the reason that the County administration removed the trees Mr. Homan eliminated it by further explaining:

“And quite frankly, the County is currently moving to accelerate the settlement on the property so the County can receive the 8 million dollars that it’s currently had to forward finance through the sale of debt. That keeps the revenue as a receivable, which does not help. The County needs the cash from the sale of the property. So, the County is trying to accelerate the close of the property. That’s what’s going on at this point in time.” [Emphasis added.]

The implication of his statement was that the requirement to preserve the perimeter trees was an impediment to closing the sale of the property to Caves Valley, and the County administration removed the impediment. Maybe Mr. Homan thought that the administration was being clever by exploiting what he believed to be a technicality; if so, I’m not so sure that he will think that it was such a good idea by the time that this is over.

First, the removal of the trees may ultimately doom approval of the PUD, which must survive both administrative appeal and judicial review. A gas station is a much more “intensive” use of the property than permitted by the underlying zoning, generating considerably more traffic and noise and a less appealing visual impact.

The County Council conditioned approval of the PUD with its gas station on the retention of the mature trees that would have partially screened the gas station from surrounding properties and from the vehicular and pedestrian traffic that passes by the property. Regardless of whether the County acted at the behest of the developer in removing the trees or acted solely on its own volition, the screening and treed buffer upon which approval of a gas station on the property was conditioned is now gone. How can the PUD survive a serious legal challenge under that circumstance?

Second, the sheer brazenness and arrogance of the removal of the 30 trees, and the explanation given for it by Mr. Homan, will continue to resonate. It symbolizes the attitude of the Kamenetz administration toward its citizens, and even toward members of the County Council when they step out of line. It tends to reinforce the belief that Mr. Kamenetz’s infamous comment “it’s my job to talk, your job to listen right now” was more than an ill-tempered response to a heckler; it reflects a style of governance.

Could it possibly get any worse? Maybe. We will find out the answer to that question once we have a chance to review the “project plan” and Forest Conservation Plan submitted to and approved by the County’s Department of Environmental Protection and Sustainability (DEPS) before the trees were removed were removed from the property – if those documents exist.

I have tried without success to have officials with DEPS, and the attorney who advises them, to confirm the existence of an approved project plan that I could review. The project plan necessarily includes a Forest Conservation Plan, among other documents. It is a question that would take a DEPS employee with access to the department’s database less than two minutes to answer. They spent more time jerking me around than it would have taken to confirm existence of the records. In his email to me, an Assistant County Attorney informed me that “we produce documents, not confirm information.” As you can tell, there is not always a citizen-friendly approach to the way that the County does business.

A point relevant to the county’s removal of the trees is that there are detailed provisions of State and County law that limit the rights of persons who seek to develop, improve or clear property to remove existing trees on the property. As it happens, my last paying job as a lawyer was to review compliance by the City of Annapolis with the Maryland Forest Conservation Act.

I spent hours reviewing various documents required by the Forest Conservation Act: Forest Stand Delineations, Preliminary and Final Forest Conservation Plans, etc. In my opinion, it would have been a challenge for Caves Valley to gain approval to remove all 30 of the trees taken down by the County, especially the specimen trees, under a properly reviewed Forest Conservation Plan. The approved Forest Conservation Plan for a PUD is a component of the administrative decision approving a PUD and can be contested as part of an appeal of that decision.

The County administration may consider itself “exempt” from the conditions placed on the PUD by the County Council, but it is not exempt from the provisions of the Forest Conservation Act when clearing trees from its own property. Under the County’s Forest Conservation Regulations, the County was required to submit a “Project Plan” before removing the trees on April 1st because the tree cutting took place on an area of 40,000 square feet or greater.

To gain approval for cutting down the trees the County had to go through the same steps as a private developer, including submitting a Forest Stand Delineation and a Forest Conservation Plan. Both documents must be prepared by a qualified professional and adhere to the detailed guidance of the County’s Forest Conservation Technical Manual, which tracks the requirements set forth in the State Forest Conservation Manual.

In general, a Forest Conservation Plan must be crafted to “protect existed forested areas and specimen trees to the fullest extent possible before, during and after construction.” I believe that the Forest Conservation approved by DEPS will tell us quite a bit about the nature of the County’s actions in removing the trees. What justification could the County give for cutting down 30 trees, including seven specimen trees, other than facilitating the sale of the property by preparing it for development by Caves Valley? I predict that the legal house of cards will collapse when the contents of the Project Plan and Forest Conservation Plan are made public, for reasons I describe later.

All of this took place in the context of what State Senator Jim Brochin and others refer to as the “pay-to-play” environment of Baltimore County. A recent story by Ann Constantino of The Baltimore Post is well worth reading. She describes how Caves Valley and other developers virtually drown elected officials in Baltimore County, including members of the County Council, in campaign contributions.

According to Ms. Constantino, data found in the government database on Caves Valley, its partners and affiliates, and Royal Farms, shows contributions to the County Executive, a slate formed by the County Executive called “A Better Baltimore County Slate,” and all seven members of the County Council, from 2010 to 2017. The contributions, including personal contributions from executives of Caves Valley and Royal Farms, exceeded $100,000 during that period. Little wonder the citizens who oppose the Towson Station project are so cynical.

Speaking of members of the County Council, it is not as if they have covered themselves in glory regarding the Towson Station project. The County Council approved the contract of sale in 2013 and unanimously adopting Resolution No. 113-16 giving preliminary approval to the PUD despite the questionable structure of the transaction.

When Mr. Homan appeared before the County Council two days after the trees were cut down, only Councilman Marks challenged Mr. Homan, albeit weakly – Councilman Marks admonished Mr. Homan only for the fact that Mr. Homan had not called him before the trees were cut down. A County administrative official tells you that, even though the County Council unanimously decided that the trees must stay, he or his boss decided that the trees must go and therefore had them cut down, and the best that you can manage is a complaint about not getting a heads up?

Of course, the other members of the County Council didn’t do any better, sitting by like timid mice. It was a revealing, pathetic turn of events.

In July, Councilman Marks introduced Resolution No. 68-17 which, if adopted, would have rescinded preliminary approval of the PUD. The resolution was tabled on a 4-3 vote that followed party lines, with all four Democrats voting in favor of tabling the resolution indefinitely.

After the resolution was tabled, Mr. Kamenetz gave citizen groups and the developer 30 days to try to come up with a new proposal for the site that did not include a gas station. He acknowledged that dropping the gas station from the project likely would require renegotiating the sales price.

There is no doubt in my mind that Mr. Kamenetz will not allow the Towson Station PUD to proceed with a gas station as part of the development, regardless of what it costs the County financially. He wants this situation to go away, and I am sure that he wishes it never happened.

Even by Baltimore County standards, the way that he and his administration handled this project was particularly imperious and offensive. It caused citizens of the County to take a hard look at the way the County does business, and what they saw was not very flattering to Mr. Kamenetz. The longer this controversy continues, and the more scrutiny that the actions by the administration receive, the worse it gets for Mr. Kamenetz.

Mr. Kamenetz wants to close on the sale of property before any more political damage is done and in hopes that, once a compromise is reached and the property is sold, citizens and other public officials will lose interest in digging any further into what his administration did. There is a distinct M.O. to how the County operates, which I learned when inquiring into “severance pay” controversy.

The County’s first tactic is to stonewall as long as possible, doing its best to keep the public and media from getting relevant information. If that fails, the administration acts quickly to try to resolve the controversy. With both tactics, the overall strategy is the same: Rely on the media and public to have a short attention span and lose interest in a matter once it appears “resolved.”

With the severance pay issue, the County Executive pulled the plug on the controversial “Executive Benefit Policy” two months after I made the policy public in an op-ed published by the Baltimore Sun. Since then, his allies on the County Council have balked at initiating an audit into the administration of the policy, even though an apparent irregularity in that administration may have cost the County tens of thousands of dollars. They guessed correctly, at least to his point, that the media would lose interest in the policy and move on to the next story.

Mr. Kamenetz is pushing a “compromise” that eliminates the gas station from Towson Station. Once that is achieved he will press ahead for final approval of the PUD by the County to end the immediate controversy. He hopes that, true to form, the media and public will lose interest in the issue of whether his administration violated the Forest Conservation Act in removing the trees from the property and, if so, why.

__________________

When I refer to a culture of “soft corruption,” I am not referring to conduct that is criminal in nature. I am referring to patterns of behavior that, although legal, work against the public interest. In his recent book, former New Jersey state legislator and reform advocate William Schluter states that soft corruption occurs when “individuals manipulate government functions for reasons of greed, personal advancement, or political advantage.” According to Mr. Schluter, soft corruption is “part of a political culture in which certain people behave as if the system exists to facilitate their personal gain, not to do the greatest good for the community.” [Soft Corruption: How Unethical Conduct Undermines Good Government and What to Do About It, p. 4.]

I will repeat what I said in my earlier post on this subject: I have found no evidence that Caves Valley did anything wrong. For example, it would have violated no laws for Caves Valley to express its displeasure to the Kamenetz administration upon the condition added to Resolution No. 113-16 requiring preservation of the perimeter trees. If that occurred, the responsibility fell upon Mr. Kamenetz and Mr. Homan to inform Caves Valley that it was the duty of executive branch of County government to carry out the policy established by the County Council, not to thwart it by whatever means necessary.

Although I am not accusing anyone in the County of criminal misconduct, that could change. To begin with, the action by the administration in removing the trees protected by the condition imposed on the development of the property by the County Council places whoever ordered the removal on thin legal ice. In my opinion, it was unscrupulous for an official in the executive branch of County government to undermine the intent of Resolution No. 113-16 by ordering the removal of the trees. Whoever ordered the trees removed figuratively spit in the face of the County Council and, so far, has gotten away with it.

As I described above, there should be an approved Forest Conservation Plan in the files of DEPS authorizing the removal of the 30 trees. If there is not, then we are in the territory where an investigation of possible misconduct in office (malfeasance) comes into play. It was one thing to defy the legislated will of the County Council; it would kick it up another notch if the defiance was done in a way that also blatantly violated the County’s forest conservation ordinances and regulations.

If there is a Forest Conservation Plan, but if it was done so incompetently that it is obvious that the preparer had no intention of complying with State and County law requiring, for example, the preservation of specimen trees, then misconduct in office (misfeasance) remains in play.  And if there is a Forest Conservation Plan, the most interesting question is on what “project” is it based?

Forest Conservation Plans cannot be done in a vacuum, and are based on the proposed design and site plan for a specific project. Because there is no proposed County construction project involved, it appears that the Forest Conservation Plan must be based on the site plan for the development proposed by Caves Valley.

And if it is based on the PUD proposed by Caves Valley, who prepared and paid for the Forest Conservation Plan? If the Forest Conservation Plan used by the County was based on Caves Valley’s proposed site plan for Towson Station – and especially if the plan was provided or paid for by Caves Valley – the County has created a relationship in which a hearing officer or court could conclude that the County was acting on behalf of Caves Valley when it removed the trees. In any case, it would create an uncomfortably messy situation when it came time for Caves Valley and County lawyers to persuade a hearing officer or judge that the PUD did not violate the conditions imposed by Resolution No. 113-16.

Don’t get me wrong; I am not saying that parties should not reach a compromise on the Towson Station that reasonably satisfies the interests of the citizens, Caves Valley and the County.  They should.  The trees are gone, and the parties now need to make the best of an unfortunate situation.  I am confident that will occur.

Regardless of whether the County achieves a reasonable compromise on the Towson Station project, however, there must be an investigation into the circumstances attendant to the removal of the perimeter trees. Were the actions by the administration merely sneaky and contemptuous of the County Council and the citizens opposed to Towson Station, or was there more to it than that? It is time for the proper agencies to pay attention to what goes on in Baltimore County.

August 25, 2017

From bad to a whole lot worse – the mental deterioration of the President.

A few days before the tragic events in Charlottesville, Virginia, I posted on this blog my observation that President Donald Trump’s behavior was becoming more erratic, and that there was an increasing likelihood that he would decompensate to the point where action under the 25th Amendment is necessary.  Things just got a lot worse.

Today he has been sending out tweets accusing the mainstream media (“fake news”) of misrepresenting his position on the Charleston violence to the public. It would be one thing if his effort was simply tactical, trying to blunt some of the extraordinarily negative public reaction to statements from Mr. Trump that failed to acknowledge that Nazism, anti-Semitism, and racial bigotry are evil, while opposition to those beliefs is not.

The thing is, his effort is not simply tactical; it reflects his increasingly tenuous grip on reality. Mr. Trump has always tended to believe that he can create his own reality, but in this case, he is so completely out-of-touch that it is pathological: Members of the public have listened to every word of Mr. Trump’s various statements on Charleston and formed their own opinions. This isn’t about “fake news.”

Yes, commentators can help shape opinions, but we have seen the derision with which a handful of right-wing commentators have been met when trying to defend Mr. Trump’s remarks. Plus, elected officials of all stripes, business leaders, and everyone else you can think of have joined the chorus of voices condemning the President for failing to denounce fascists and bigots in unambiguous language; it’s hard to find someone rational who hasn’t. For Mr. Trump to see this as just another round in his fight with the New York Times, Washington Post, CNN, etc. is delusional – there is no other word for it.

No president has ever been this ostracized for his behavior. I doubt that he can psychological withstand the pressure without cracking completely. What exact form his deterioration would take, I don’t know, but I believe that he first will try to find refuge in people who reinforce his aberrant social views and prop up his fragile ego – that would be a typical coping mechanism as he tries to hang onto the delusion that, destructive as it may be, helps give order to his view of the world. In other words, he is going to be vulnerable to folks like Steve Bannon. And Bannon, with a nose like a vulture for decay, knows it. That’s bad.

I am not rejoicing in what I see happening to the President, by any means. Mr. Trump is unlikely to go down without a fight, even if it becomes obvious to Vice President Mike Pence and the cabinet – as well as to Mr. Trump’s family – that Mr. Trump must be removed. Resistance by Mr. Trump would be accompanied by civil disorder instigated by his supporters, and the United States would be in a very vulnerable position as the attempt at a transition of power played out. Messy doesn’t even come close.

Plus, I am not enthusiastic about the ultimate outcome of removal – replacement of Mr. Trump with Mr. Pence. If you want a sense of what I think about Mr. Pence, read the article that recently appeared in La Civiltà Cattolica, generally considered a Vatican house organ. More disciplined and less psychologically imbalanced than Mr. Trump, Mr. Pence poses a greater danger of successfully advancing the destructive agenda of the unholy alliance between secular bigots and nativists and hard-right Christians that brought Mr. Trump to power. Of course, we will only have to worry about that problem if we survive the one at hand.

August 17, 2017

 

 

 

The Towson Station fiasco – a process flawed from the start.

To date the controversy in Baltimore County over the land development project known as Towson Station proposed by Caves Valley Partners for 5.8 acres of county-owned property at the corner of York Road and Bosley Avenue in Towson has focused on whether putting a gas station and convenience store on the site is an appropriate use of the property. A deeper controversy lies in the way that Baltimore County handled the disposition of this property from the beginning, because that is the reason that the county is in such a nasty, messy situation.

Baltimore County never should have structured the disposition of the property in a way that gave the county a financial stake in the outcome of a regulatory process that is supposed to be conducted in an independent, objective manner. The county created a fundamental conflict of interest between its proprietary interests and its regulatory responsibilities that appears to place citizens who object to the proposed development at a serious disadvantage.  Those citizens realize that, and they are not happy.

The relevant history.

The county solicited proposals from developers interested in purchasing the property, the site of a former fire station and public works facility. The proposals included the price offered to the county for the property and the nature of the proposed development of the property.  Clearly, those two elements of a proposal were related to one another, because the nature of a development determines the revenue to be earned from it. Generally, higher the revenue-producing capacity of a property, the higher the price.

The county announced in 2013 that Caves Valley had submitted the successful proposal, offering $8.3 million for the property.  The development proposal accompanying the offer included 10,000 square feet of retail and a 4,200-square-foot space that could be a restaurant or bank, and a Royal Farms gas station and convenience store, even though a gas station is not permitted by the zoning classification of the property.

The contract of sale between the county and Caves Valley, which was approved by the County Council that same year, is contingent on the county formally approving the development proposed by Caves Valley for the property through the process set forth in the county code.  In other words, the county’s ability to realize the purchase price of $8.3 million was contingent on the county approving the construction of a gas station not permitted by the property’s zoning.

To compound the problem, the county excluded the public from the process that resulted in the award of the contract to Caves Valley, even though the process included proposals for the type of development on the property. Baltimore County, being Baltimore County, conducted the process that resulted in the solicitation and acceptance of proposals for the sale of several county-owned properties in 2013, including the proposed site of Towson Station, in secret. Mr. Kamenetz defended the secrecy, stating that the county had to be tight-lipped to protect the committee responsible for the selection from “outside influence.”

County officials claimed that, in reviewing proposals, the committee considered “how the [proposed] developments would fit into the community” in addition to the amounts offered for the properties. It was a questionable claim, at least as applied to the Towson property. It seems like the “outside influence” that county officials were determined to avoid consisted of the views of citizens who lived in the affected communities.

In summary, the county administration, without inviting community participation or seeking community buy-in, attempted to maximize its profit from the sale of the Towson property by accepting a bid for the property tied to a development proposal calling for a more intense use of the property than is permitted by the zoning of the property; specifically, a gas station. Consequently, residents and business owners in Towson who oppose the gas station understandably believe that they were sold out by the county in favor of the highest bidder.

Questions about the planned unit development (PUD) process.

The fly in the ointment with the Caves Valley proposal was the fact that a gas station is not a permitted use on the property under the zoning classification applicable to the property. In zoning parlance, a gas station is a more “intense” use of this property than allowed by its zoning. How to overcome that impediment?

Requiring Caves Valley to seek and obtain an administrative rezoning of the property to a classification permitting gas stations was not a practical solution to the problem, if only because there are strict standards applicable to administrative rezoning and this property would not meet them. There was only one practical way to solve the problem: A planned unit development (PUD). Property developed under a PUD may include a more intense use on the property than otherwise would be permitted by the applicable zoning classification of the property.

There are many legitimate PUDs that allow more intense uses than otherwise would be permitted under the zoning classifications of the properties on which the PUDs are located. In those PUDs developers are allowed more intense uses than permitted by the underlying zoning because the development provides some benefit to the community that the community would not receive if the property was developed under standard zoning rules.

For example, a developer may get to include a more intense use on a site in exchange for less dense development than otherwise would be permitted on the site, allowing the developer to create a significant buffer of undeveloped property around the more intense use. Both planners and the neighboring community might consider that a net benefit to the community, preferring a use like an office building buffered by distance and trees nearby, rather than a permitted use like another row of townhouses right across the street. There are many variations on the theme. A PUD is almost always expected to have higher design standards than “conventional” development.

The Baltimore County Code, in keeping with the county’s tradition of “zoning by courtesy,” requires a developer to send the application for approval of a site for a PUD to the County Council member in whose district the site is located. A community meeting must be held to explain the PUD to members of the affected communities so that they can provide their feedback to the County Council.

Before the PUD can move forward for further administrative review the County Council must pass a resolution finding that the proposed PUD “will achieve a development of substantially higher quality than a conventional development would achieve” and satisfies certain other criteria. The County Council approved the Towson Station PUD last December by Resolution No. 113-16 introduced by Councilman David Marks, in whose district the property is located.

The process of administrative review concludes with a final recommendation from the Department of Planning to an administrative law judge (ALJ) from the county’s Office of Administrative Hearings. The role of the Department of Planning, which also provides a preliminary review of the PUD to the County Council, is a highly influential one because it is the agency where the county’s planning and zoning expertise resides. The ALJ approves or disapproves the PUD based on whether it satisfies the requirements of county law and the decision of the ALJ is appealable to the county’s Board of Appeals.

An intriguing question, given the history of this project and the detailed, sequential process for approving a PUD, is whether the county administration got out in front of that regulatory process by committing itself to supporting a PUD before an application to approve the PUD had even been filed with the County Council by Caves Valley. If so, it is grist for the litigation mill because the integrity of the process was compromised. It is a matter that warrants investigation.

One of the many interesting “quirks” of Baltimore County law is found at §32-4-245(c)(5) of the County Code. A standard requirement for PUDs throughout the state is that they comply with the applicable master or sector plan used to guide development where the PUD is located. Baltimore County law adds a loophole – the PUD must comply with the recommendations of the master or sector plan or the recommendation of the Department of Planning. It is a loophole big enough to drive the proverbial truck through, and suggests that a PUD need not be consistent with the applicable plans if the Department of Planning says it doesn’t.

As I described above, the flexibility of a PUD is a useful tool that can result in a higher quality of land development in an area. A PUD also can serve as little more than a backdoor means for up-zoning a parcel, and that is particularly true when the benefits and amenities offered by the developer are not intrinsic to the site of the development.

Without going into the history of PUDs, suffice it to say that when first used, developers were expected to develop the site in a manner that incorporated the additional benefits and amenities into the site plan, such as the example given above. Another example would be for the approving authority to allow a denser development on one part of the property than permitted by the underlying zoning in exchange for some amenity on another part of the property, such as a recreational facility or open space.

As time went on, it became more common for the amenities and benefits offered by the developer as part of a PUD to be things that bore little if any direct relationship to the site of the development.  Yet again, Baltimore County law is quite liberal, and allows the benefits on which a PUD is based to be capital improvements to a “nearby” county-owned or state-owned facility. You tell me what “nearby” means. At worst in such situations, developers are essentially purchasing an up-zoning by throwing in some off-site improvements and benefits, and the PUD process becomes antithetical to the plan of development for an area and does not result in higher-quality development on the site.

I am not saying that is the case with the Towson Station PUD approved by the County Council by Resolution 113-16. As critical as I may be of the process employed by the county in this case, I am not familiar enough with the site plan, the master and sector plans, or the nearby community itself to pass judgment on the merits of the development contemplated by the PUD. That is something for county planners and community members who are have pored over the master, sector and site plans, and who are familiar with the community in which the property is located, to debate.

I am saying, however, that there are red flags. The $50,000 worth of community benefits on which the Towson Station PUD is based include improving the West Towson Trail, planting trees in West Towson and installing solar-powered speed display signs on Stevenson Road, west of York Road, and on Stevenson Lane, east of York Road. Those amenities are not on or directly related to the subject property. Again, given the way in which the county has proceeded, it is easy to understand the concerns of the opponents of the PUD.

Can the residents and business owners of Towson be confident that the Towson Station PUD will be approved or disapproved on its merits? Or will they be suspicious that the county’s pecuniary interests will influence the decision-making process? I do not mean to impugn the integrity of the county’s professional planners and hearing officers, but the fact that questions like these are being raised is precisely the reason that the county should have avoided tying the sale price of the property to its approval of a PUD, and doing so while excluding the public from the process.

If you had any doubt that there is a relationship between the financial return to the county and the approval of the PUD, it should have been removed by the statement from County Executive Kevin Kamenetz on Friday. Finally yielding to public pressure, he announced that he had given Caves Valley 30 days to meet with community representatives and come up with a new plan for the project, preferably one that did not include a gas station. The announcement included an acknowledgement by Mr. Kamenetz that Caves Valley likely would seek to lower the sale price of $8.3 million if the gas station is dropped from the plan.

Why did the county choose to take such a brazen, ill-fated course of action? In my opinion, the county administration believed, based on past experience, that it would be able to railroad the deal through the County Council with what the Baltimore Sun editorial board referred to sarcastically as the council’s customary “efficiency” – very little discussion and perfunctory opposition, if any. The Kamenetz administration still might succeed, but the last-minute decision by Councilman David Marks to throw himself on the tracks by attempting to withdraw approval of the PUD has sent the project back to the drawing boards for now.

In my opinion, there is a pattern in the way that Baltimore County government operates, and it includes self-dealing among county officials, little concern with obvious conflicts of interest, an obsessive concern with secrecy, and an aversion to public participation in decision-making processes. I certainly saw evidence of those things in my inquiries into the now-notorious Executive Benefit Policy and the issue of severance pay for highly-compensated county employees. Unless ordinary citizens are willing to get more involved, as they now are doing with the Towson Station project, they should not expect their interests to be taken seriously by the powers-that-be in the Baltimore County government.

I want to emphasize that my criticism is not directed at Caves Valley Partners; as far as I can tell, they did what the county asked them to do. In my career, I saw developers and ordinary citizens harmed by poor governmental decisions in about equal measure.

I also feel compelled to address comments made on Friday by Council Chairman Tom Quirk, who was asked by Mr. Kamenetz to act as a “mediator” between Caves Valley and representatives of the Towson community. Mr. Quirk, channeling feelings previously expressly by Mr. Kamenetz’s chief of staff, blasted Mr. Marks for introducing a resolution to rescind approval of the Towson Station PUD. Mr. Quirk stated that “I’m coming in from the outside trying to clean up David Marks’ incompetent mess.”

Mr. Chairman, this mess is on you as much as it is on anyone else. Even if he did so only because he got political cold feet, Mr. Marks eventually stepped up to try to stop a process that was flawed from the outset from doing harm to the community that he represents. Better late than never, and Mr. Quirk remains in the never category.

From the time that the council approved the contract of sale in 2013 to its approval of the PUD last year, all members of the County Council knew or should have known that the process was improperly skewed against the opponents of the project. Mr. Quirk and his three Democratic colleagues on the council voted to table Resolution No. 68-17, which had been introduced by Mr. Marks to rescind approval of the PUD.

Mr. Marks and his two Republican colleagues voted against tabling the measure. This should not be a partisan political issue but the hard fact is that, at least for now, the “good government” elected officials in Towson do not sit on the Democratic side of the aisle.

I am sure that Mr. Kamenetz hopes that he can salvage something from his deal with Caves Valley, even if it means accepting less money for the property. The last thing that he wants is a failed deal on his hands with people looking too closely at the causes of the failure.

August 12, 2017