The Towson Row bailout.

Baltimore County Executive Kevin Kamenetz has asked the County Council to approve what, in my opinion, can only be described as a $43 million bailout of the prospective developers of Towson Row. Towson Row is a massive but stalled project lying in the heart of Towson. The bailout is scheduled to be discussed at a work session of the County Council on Tuesday, December 12th, with a vote planned for the Council meeting on Monday, December 18th.

The proposed bailout was presented to the County Council on December 4th. Is sixteen days sufficient time for the County Council to review and approve such an extraordinary, unprecedented measure? Of course not.  Haste is particularly foolhardy in the matter at hand.

To her credit, Pamela Wood of the Baltimore Sun obtained copies of the “County Funding Agreement” and “Development Agreement” that the County Council is being asked to approve, and posted them online on December 8th. I have reproduced below a copy of the email that I sent to members of the County Council yesterday raising some issues that I believe that they must consider before voting to approve the agreements.

Am I confident that the members of the County Council will read and understand the two agreements, or read my email, before they vote on December 18th? No, but one can always hope.

Before I get to the email, let’s get the obvious out of the way: Mr. Kamenetz’s primary motivation for proposing this bailout is, in my opinion, to heal a potentially-fatal political wound. Mr. Kamenetz is an announced candidate for governor, and he can ill afford to go into next year’s elections with Towson Row consisting of nothing more than it is now: A cratered eyesore in downtown Towson.

In a podcast reported yesterday in the Baltimore Business Journal, Mr. Kamenetz stated that he would try to separate himself from the other Democratic candidates on the issue of economic development by touting his success in projects like Towson Row. In the podcast, he pointed to the redevelopment of Sparrows Point and the Owings Mills Mall. The debacle over Towson Station and the potential failure of Towson Row threaten to undermine that campaign theme.

Mr. Kamenetz isn’t going to win the governor’s race on the strength of his less-than-charming personality. He already is going to have to live during his campaign with the infamous video of him telling Mays Chapel residents that “it is my job to talk, your job to listen right now.”

Mr. Kamenetz is going to have to try to sell himself to the voters of the state as a goal-oriented and successful, if occasionally arrogant and abrasive, leader. A montage of images that includes the episode in Mays Chapel as a representation of his temperament, and a photo of the large empty patch of dirt where Towson Row is supposed to be as a symbol of his failed economic development policies, would doom his chances to be elected governor. In my opinion, Mr. Kamenetz is desperate to get construction underway on Towson Row.

Caves Valley Partners, a developer with close political ties to County Executive Kevin Kamenetz, unveiled its plans for Towson Row in 2013. The project is a mixed-use development sitting on approximately five acres bounded by York Road, Towsontown Boulevard, and Washington and Chesapeake Avenues. The ambitious plans announced in 2013 called for office buildings, a hotel, apartments, student housing, and retail shops anchored by a Whole Foods grocery store. The project consisted of 1.2 million square feet of space on five acres of land, with a price tag of $350 million.

Four years later, there is nothing but a large hole in the ground in the heart of Towson. The project faltered, with Arthur Adler, one of the Caves Valley partners, explaining that the construction of the planned parking garage under the Whole Foods grocery story “became too costly due to the rock presence as well as other construction costs.” Mr. Adler later clarified that Caves Valley was aware of the presence of rock, but that the cost to remove the rock was greater than expected.

In May of this year, the Owings Mills development firm Greenberg Gibbons Commercial Corporation announced that it would work with Caves Valley as “co-developers” of Towson Row. Brian Gibbons, chairman and CEO of Greenberg Gibbons, said that his company would bring expertise as well as $100 million in additional investment to the project, which would be “jointly controlled” by Greenberg Gibbons and Caves Valley.

Mr. Gibbons stated that his company had been working “in the background” with Caves Valley for 18 months on a redesign of the project. “We’ve simplified the design,” Mr. Gibbons said. “We now have a project that is feasible to build.”

There was no mention at the time of any need for an infusion of County money, at least not publicly.  The subject of County grants did not come up in public until last month.

Earlier this month, Mr. Gibbons told the Sun that receiving the County’s financial help is “essential” to making Towson Row work. He stated that the County’s contribution is needed to finalize financing with a California pension fund that is investing in the project. The nearly $43 million in up-front help from the County represents “the minimum threshold we needed with our partners.”

Mr. Gibbons informed the Baltimore Business Journal that he expected to break ground with the construction of the Whole Foods grocery store at Towson Row in mid-2018. It now appears that he meant that he expected to break ground in mid-2018 if the County comes up with the money that the developers have requested.

The conventional wisdom in Baltimore County is that the developers have the Baltimore County Executive and County Council over a barrel with the developers’ insistence that they now need $43 million in County grants to make the development of Towson Row economically feasible. If it is true that the County Executive and County Council are over a barrel, it is only because County Executive Kevin Kamenetz and his cohorts on the County Council recklessly placed themselves in that position, and remain there by their own choice.

The tale of Towson Row is the story of all that is wrong with the development policy of the Kamenetz administration. Like the Towson Station saga, one thing comes through loud and clear when you look back at the history of the project, in my opinion: The primary focus of the Kamenetz administration is on helping the developers succeed, rather than on protecting the interests of the County and its taxpayers.

Soon after Caves Valley Partners unveiled its plans for the Towson Row project in 2013, the County began falling all over itself to clear the path for the development. Pamela Wood of the Sun recounted the history in an article last week.

One issue that Ms. Wood did not mention is the continuing questions surrounding construction of the so-called Towson relief sewer, a $1,262,626 project intended to increase sewerage capacity to accommodate the growth of Towson University and the future development of Towson Row. One of those questions is whether the developers of Towson Row will be expected to pay anything toward the construction of sewerage adequate to serve the development.

State Senator Jim Brochin, who represents the senatorial district in which Towson Row is located, estimated a year ago that the County had spent between $30 to $40 million on infrastructure to support development of Towson Row. The County already is in deep. The question becomes whether the County should dive in any deeper.

There is more invested in Towson Row than the County’s money. There is the political capital that has been invested by Mr. Kamenetz in securing the zoning concessions and taking other actions to promote the development. His reputation is at stake.

Mr. Kamenetz has touted Towson Row as a transformative project, the key to an initiative that he called “It’s Towson’s Time.” In October 2015, the following appeared on the County’s “Baltimore County News” website:

“Towson Row will transform the Towson skyline and become a focal point for residents, workers and visitors,” said Baltimore County Executive Kevin Kamenetz. “You can clearly see Towson Row’s footprint as you walk through downtown Towson. It’s exciting to see so much site activity [sic] as this significant private investment moves forward.”

“Towson Row will reaffirm Towson as a preeminent destination in Maryland, now and well into the future,” said Arthur Adler, partner of Caves Valley Partners. “We are completely reimagining the shopping, working, dining, entertainment, and green streetscape experience for Towson residents and visitors.”

The County Council could deny approval of the grant funding. That would send the developers back to the drawing boards to design a project that they could build without additional County financing. A redesign of that magnitude would produce a far less grandiose development than promised by Mr. Kamenetz, and could push the beginning of the construction beyond 2018 – outcomes unacceptable to Mr. Kamenetz.

An interesting confrontation looms. Councilman David Marks, who represents the Towson area and is in much the same political position as Mr. Kamenetz in terms of needing to get construction started on Towson Row, appears to be leaning toward approving the grants. Council Chairman Tom Quirk and Councilman Julian Jones, Jr., who almost always vote that way that Mr. Kamenetz wants them to vote, have already stated that they support the funding. (If they are your councilmen, feel free to ask them if they have even read the agreements.) The County Executive only needs one more vote.

The County Council does not allow public testimony at its evening legislative sessions. The County Council only allows public testimony at its work sessions, and schedules the work sessions during the middle of the day, when it is least convenient for most people to attend. Nevertheless, today’s work session is likely to be much more lively than usual because of the strong public opposition to the County financing of the controversial Towson Row project.

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It is a story for another day, but Baltimore County has become a developer’s paradise, with developers enjoying favored treatment by the County. An example of that favored treatment is the absence of development impact fees or development excise taxes. (There are legal differences between the two, but they serve the same purpose.)

There is a shabbiness to the public infrastructure in Baltimore County that you do not see in its neighbors to the west and south, Howard County and Anne Arundel County. Some of that has to do with the relative affluence of the three counties. The main reason, however, is that Baltimore County, alone among all metropolitan counties in the state, does not collect development impact fees or excise taxes.

Impact fees or development excise taxes are imposed on the builders of new residential and commercial structures to offset the costs of expanding facilities such as streets and roads, water supply and sewerage, libraries, fire and police stations, schools, etc. to accommodate the new structures. If a county doesn’t collect impact fees or development excise taxes from builders, the costs of expanding facilities to accommodate the new development fall on existing property owners.

That is what happens in Baltimore County. If the streets in your community are crumbling and public buildings (like schools) in poor condition, it is primarily because property and income tax revenues are being siphoned away to pay for the expansions in infrastructure needed to support new developments like Towson Row.

Let’s put this in perspective. Anne Arundel and Howard Counties have a combined population of about 877,600. Baltimore County has a population of about 831,000. In fiscal year 2017, Anne Arundel and Howard County collected a total of about $29.7 million in impact fees (Anne Arundel County) and development excise taxes (Howard County). That’s $29.7 million in property and income tax revenue that they didn’t have to spend to expand the capacity of infrastructure to support new development, and that therefore could be used to do things like repair and replace existing roads, schools, and other infrastructure.

The county closest in population to Baltimore County is Prince George’s County, with a population of about 909,500. Prince George’s County collected about $32.2 million in impact fees in fiscal year 2017. If you are from communities like Catonsville, Dundalk, Pikesville, or Towson, take a trip to Prince George’s County and tell me which county does a better job of keeping its streets and other governmental facilities in repair.

I bring up impact fees and development excise taxes only because it is worth considering that the builders of Towson Row will not pay them, despite the enormous impact that the development will have on public facilities, including streets and roads. Guess who will pay for expanding the capacity of those facilities to accommodate Towson Row? That’s right, the same people paying for the grants.

My email to the Council.

Members of the County Council:

I will spare you my opinion on the wisdom and propriety of the proposal to award grants totaling $43,016,785 to the developers of Towson Row. I will, however, make some suggestions, comments and questions based on my reading of the Community Funding Agreement and the Development Agreement.

What is the legal authority for the grants?

The County Council should insist that the County Attorney, preferably in a formal legal opinion, confirm that the County Council has the legal authority to approve the expenditure of County funds for the grants contemplated by the “County Funding Agreement.” Although the agreement describes them as “tax credit advances” and “hotel tax advances,” that language is nothing more than window dressing, in my opinion. The only relationship to tax credits and hotel taxes is that the amount of the grants is, for no reason that I can ascertain, determined by the projected amounts of certain tax credits and hotel tax payments, and the developers would forego claiming certain tax credits to which they would be entitled.

The disbursements of County funds scheduled under the agreement are grants, pure and simple. The recipient of the grants under the agreement is identified as TR Development Corporation.

The Baltimore County Council has no inherent power to make grants to private for-profit businesses on an ad hoc basis; grants of public money for private purposes must be explicitly authorized by state statutes or county ordinances. The Baltimore County Code does have provisions for economic development grants set forth in Title 10 of Article 10, which establishes the Economic Development Revolving Financing Fund.

County law specifies a process for applying for an economic development grant or loan, and requires an application conforming to the requirements of § 10-10-105 of the County Code. Was that process followed? If not, under what legal authority are these grants being made to TR Development Corporation?

There were two red flags in the agreement that caught my attention. The first is that the authority for the funding is not included in the Recitals, as customarily is done, at least in my experience. The second is that the agreement includes representations by TR Development Corporation that it has the full power and authority to enter into the agreement, and that the agreement is valid and does not violate any of the corporation’s organizational documents. The agreement contains no parallel representations on the part of the County.

In my opinion, the omissions are odd, but may not signify anything other than casual draftsmanship. In context, however, they support my opinion that the legality of the County Council’s action in approving the grants must be confirmed.

Why is confirmation important? There is widespread and vehement opposition to the proposed grants. Unless the County Attorney can render a persuasive opinion that there is sound legal authority for the grants – and that the required process for approving such grants was followed – a taxpayer’s suit challenging the grants is almost inevitable. A successful suit would all but guarantee that Towson Row remains nothing more than a hole in the ground for the foreseeable future.

Conversion of the sale of County-owned property into a gift.

There is another provision of the County Funding Agreement that is, well, innovative. In effect, it converts the sale of three County-owned parcels to the developers of Towson Row into what is tantamount to a gift.

The County previously has contracted to sell three County-owned parcels within the development site to the developers for a total purchase price of $2,335,825. Under the agreement, that amount will be “reinvested” by the County in the Towson Row project upon receipt.

The “reinvestment” clause provides that the money realized from the sale of the properties will be applied to the first scheduled “tax credit advance” under the agreement. Once so applied, the “income” from the sale will reduce the total amount of the tax advances to which the County is obligated to disburse to the developers in the form of grants by the amount of the sales price of $2,335,825. In other words, it will reduce the total amount of the grants from $43,016,785 to $40,680,960.

The effect is that the County realizes no money from the sale of the properties; it simply gets a reduction in the total amount of the grant funds that the County has voluntarily obligated itself to award to the developers! As I said, I give credit to the drafter of the agreement for being creative, although I am uncertain of the benefit to the County.

In my experience, it is one of those provisions that you see in a proposed contract to which your first reaction is “you have to be kidding.” The County Council should at least be aware that the agreement foregoes the $2,335,825 in revenue anticipated from the sale of the three properties, and converts it into a “grant” (or gift) to the developers.

Why isn’t Towson Row Statutory Trust a party to the County Funding Agreement, and what protections are afforded to the County under the County Funding Agreement if TR Development Corporation goes bankrupt?

The agreements before the County Council for approval include the County Funding Agreement referenced above, and a Development Agreement. Kudos to Pamela Wood of the Baltimore Sun for obtaining copies of the documents and posting them online.

The parties to the County Funding Agreement are the County and TR Development Corporation, which is named in the agreement as the “Recipient.” The agreement is signed on behalf of the Recipient by Arthur Adler, identified as the president of TR Development Corporation.

The County Funding Agreement also imposes obligations on the “Developer,” identified as Towson Row Statutory Trust. Towson Row Statutory Trust is not a party to the agreement. Mr. Adler, however, also signed the agreement on behalf of Towson Row Statutory Trust as an “authorized person,” under the following statement: “Towson Row Statutory Trust executes this Agreement to acknowledge its consent to the obligations of the Developer contained herein.”

The parties to the Development Agreement are the County and the Towson Row Statutory Trust. Towson Row Statutory Trust is identified as the owner or contract purchaser of the parcels of land to be developed as Towson Row. The agreement is signed on behalf of the Towson Row Statutory Trust by Mr. Adler as an “authorized person.” Mr. Adler is a partner with Caves Valley Partners. Neither agreement is signed by a representative of Greenberg Gibbons Commercial Corporation, which became a “co-developer” of Towson Row in May.

The almost universal rule-of-thumb is that persons or entities intended to be bound by the terms and conditions of a contract are made parties to the contract, with their respective rights and obligations set forth in the contract. Why isn’t Towson Row Statutory Trust a party to the County Funding Agreement?

The County Council also should ascertain what if any protections are afforded to the County under the County Funding Agreement if TR Development Corporation goes bankrupt. In other words, what status would the future property and hotel tax revenues anticipated to “repay” the County for the tax credit and hotel tax advances have under such a bankruptcy filing?

Exactly whose interests are being protected by these grants?

According to news accounts, Greenberg Gibbons Commercial Corporation announced in May that it formed a joint venture with Caves Valley Partners to be a “co-developer” of Towson Row, and that it would bring additional investors to the project. Caves Valley Partners reportedly faltered when the costs of removing rock from the proposed site of a parking garage were greater than expected, and the project stalled.

Whose investment in Towson Row is at risk if this project doesn’t get the grants, or doesn’t go forward for some other reason? Or if the project fails for some reason, such as changing market or economic conditions? One would suspect that Greenberg Gibbons protected itself and its investors as much as possible in return for coming aboard. I believe that the public has the right to know whose financial interests are being protected by these grants, especially in light of the controversy around the size of the campaign contributions  made by Caves Valley Partners.

Where is the Fiscal Note from the County Auditor?

As of this afternoon, it still had not been posted. A proposal to award $43M in grants with no Fiscal Note? In an ideal world – and nothing about Baltimore County government resembles an ideal world – that Fiscal Note should have been posted at least 7-10 days ago so that people attending the work session tomorrow could read it for purposes of preparing their testimony. (Not to mention that members of the Council might want to ask knowledgeable questions about it at the work session.)

Does the analysis from Sage Policy Group state that the infusion of $43 million in County funds is necessary to make the project work?

If the entire report has been made available, I can’t find it. I have read statements attributed to the Kamenetz administration that the report concludes that the $43 million in grants are “justified” by the ultimate benefits in revenue, jobs, etc. Even assuming that is correct, it answers the wrong question. Does the report also state that the $43 million in grants are necessary to make the project work? Was Sage even asked to address that question?

If not, on whose word is the County Council relying that there is a need for these grants? I point out that, under Section 10-10-105(c) of the County Code, an application for assistance from the Economic Development Revolving Financing Fund is evaluated on the basis of “need” and the “financial ability of the applicant,” among other factors. $43 million is a whole lot of money to be ponied up without some independent professional determination that, considering the financial resources of the applicants, the applicants need this money to make the project work.

I understand that this proposal was presented by the County Executive to the County Council on Dec 4th. Mr. Kamenetz must have remarkable faith in the acumen of the members of the County Council to believe that they will be ready to approve such an extraordinary undertaking by December 18th.

Good luck, and thank you for considering my suggestion, comments and questions.

David A. Plymyer
Catonsville

 

 

 

The State Prosecutor must investigate the Towson Station scandal.

It is time for the Office of the State Prosecutor to investigate the Towson Station project to determine if one or more officials in the administration of Baltimore County Executive Kevin Kamenetz have committed misconduct in office or other crimes in the way in which the project has been handled. Towson Station, formerly known as Towson Gateway, is the name given to the Planned Unit Development (PUD) that a private developer, Caves Valley, proposes to build on approximately 5.8 acres of land currently owned by the County at the intersection of York Road and Bosley Avenue in Towson.

Under County law, the County administration has a duty to review and approve a PUD in accordance with an objective and arm’s-length process intended to protect the due process rights of nearby property owners who may object to the PUD. There is reason to believe that the County administration may have violated that duty, and other State and County laws, during the review process. Some of the possible violations may be criminal.

At this point, I accuse no one of criminal wrongdoing. If, however, I smelled the odor of something burning coming from the Old Courthouse in Towson, the seat of County government, I’d call the Fire Department. Considering the nature of the odor arising from the facts and circumstances described below, my call goes to the State Prosecutor.

Background.

In 2012, the administration of County Executive Kevin Kamenetz decided that it wanted to sell approximately 5.8 acres of County-owned land at the corner of York Road and Bosley Avenue in Towson on which a fire station was located. The sale was part of a plan to reshuffle the location of County facilities, and then sell the surplus land. The reason given for the plan was to raise money to install air-conditioners in existing County schools.

The process designed to identify a buyer for the fire station property was marked by its secrecy. Prospective buyers were asked to submit their financial offers as well as their plans for development of the property. The declared intent was that the proposals would be evaluated on factors that considered the amounts offered to purchase the property as well as the quality and compatibility of the development plans with the surrounding neighborhoods.

The five-member panel of County employees put together by Mr. Kamenetz to evaluate the proposals was charged with considering the needs of the surrounding communities, but the panel included no representatives of those communities. Mr. Kamenetz stated that concerns about “confidentiality” prevented the inclusion of citizens on the panel. In my opinion, that was a bogus reason for categorically excluding citizens, and was a warning sign of problems to come.

The outcome of the process was as inexplicable as the process itself. The panel initially recommended that the County select a proposal submitted by developer Mark Sapperstein. The Sapperstein proposal later was disqualified by County purchasing officials for reasons that both Towson residents and the Baltimore Post found questionable.

The County then turned to a proposal submitted by Caves Valley Partners, which included a purchase price of $8.3 million. At its meeting on December 3, 2013, the County Council approved the contract of sale for the property to Caves Valley (dba CVP-TF, LLC) over the strenuous objections of most of the community organizations in Towson. The objections were directed at Caves Valley’s proposal to use the site to build a gas station and convenience store, uses not permitted under the zoning of the property. The community had been thrown a curve ball.

The flawed structure of the contract of sale between the County and Caves Valley for the property.

Even more troublesome than the secrecy of the selection process, the disqualification of the Sapperstein proposal, and the selection of a proposal inconsistent with the zoning of the property was the way that the County structured the deal with Caves Valley. The selection of the Caves Valley proposal created a practical problem. The problem was that the proposal included the construction of a Royal Farms gas station and convenience store on the site, a use of the property not allowed by the existing zoning classification of the property.

The “solution” to the problem was making the sale contingent upon the County approving a Planned Unit Development (PUD) for the site. A PUD may be used to allow uses not permitted under the applicable zoning of the property as a matter of right. Because a PUD allows exceptions to the zoning classification and regulations generally applicable to a site, the process for approving a PUD confers due process rights on other property owners who may be affected by and object to the exceptions. Therein lies the rub.

By structuring the contract of sale in the manner that it did, the County placed its pecuniary interests and regulatory responsibilities in conflict, an issue that I discussed in my first post on this project. Because the sale is contingent on the County’s approval of a PUD, the County gave itself a financial incentive to approve the PUD; the County doesn’t realize the $8.3 million from the sale unless it approves the PUD and transfers the property to Caves Valley.

A PUD is supposed to be reviewed and approved in an objective, arm’s length manner that protects the rights of persons opposed to the PUD. The conflict of interest built into the contract was more than a potential one, it was an actual one because of the intense opposition in the community to putting a gas station on the property.

The County never should have structured the contract of sale in a manner that fatally compromised the integrity of its regulatory role. It was a mistake that sowed the seeds of the scandal that some people in Baltimore County refer to as Tree-gate, and was another warning sign that something was amiss.

The alleged threats against Councilman David Marks.

On or about March 16, 2016, Caves Valley submitted its application for approval of a PUD as a contract purchaser of the property. The PUD is identified by the County as PUD-2016-00002.

Section 32-4-242 of the County Code requires that “an application for approval of a site for a Planned Unit Development shall be submitted to the County Council member in whose district the PUD is proposed to be located.” The Council is required to hold a “post-submission community meeting” to solicit public comment on the proposed PUD, and to submit the application to the Department of Permits, Approvals and Inspections for review by the applicable County agencies. The reviewing County agencies submit a preliminary evaluation of the application to the Council. Both of those steps were accomplished.

Section 32-4-242 of the County Code further provides that, after considering the information from the post-submission community meeting and the preliminary agency review, the County Council “by adoption of a resolution, may approve the continued review of the Planned Unit Development in accordance with the procedures of this title and the requirements of the zoning regulation.” The resolution, however, must be based on a finding by the County Council “that the proposed Planned Unit Development will achieve a development of substantially higher quality than a conventional development would achieve.”  [Emphasis added.]

“Conventional development” of the site would not have included a gas station and convenience store, because they are not permitted by the zoning classification of the site. Is there any wonder why the citizens of Towson were outraged by the prospect of the PUD being approved by the Council?

Council Resolution No. 113-16 was drafted to approve the continued review of the PUD. By practice, the Council member to whom the application was submitted also is expected to introduce the resolution approving the continued review of the PUD. Councilman David Marks represents the Fifth District, the district in which the proposed site of Towson Station is located.

Mr. Marks initially balked at introducing Resolution No. 113-16 because of the opposition of his constituents. Mr. Marks told the Towson Flyer in a report posted on September 29, 2016 that he heard from many constituents who do not want the gas station, but he said he also heard from the Kamenetz administration:

“Senior members of the administration have made it clear that at least $8 million will be cut from the Fifth District if the resolution is not introduced to review the Towson Gateway Planned Unit Development. The $8 million could affect road resurfacing, flood control in east Towson, and school projects miles away from the Towson Gateway site.”

The Flyer reported the response to the statement by Mr. Marks from Don Mohler, chief of staff for Mr. Kamenetz:

“The allegation of a threat is simply not true. A PUD is totally at the discretion of the council. In terms of the County Executive, he spent 16 years on the council and he does not weigh in or invade their turf.”

Mr. Mohler’s assertion that Mr. Kamenetz “does not weigh in or invade [the Council’s] turf” was called into question by a recent story in the Baltimore PostAnn Constantino of the Post reported allegations that a threat by Mr. Kamenetz to punish Mr. Marks’ constituents if he failed to introduce the resolution was relayed to Mr. Marks by Steven Sibel on Mr. Sibel’s cell phone. Mr. Sibel is one of the partners of Caves Valley. Mr. Marks told the Post:

“I was at a meeting where Mr. Sibel showed me his cell phone and there was a message from the county executive claiming that $8 million would be cut from my district if the Planned Unit Development resolution did not advance.”

Ms. Constantino reported that three independent sources confirmed Mr. Marks’ account. According to Ms. Constantino, neither Mr. Kamenetz nor Mr. Sibel responded to her request for comments. A grand jury taking testimony under oath should be able to sort out who is lying, and who is not.

The County Council performs a key administrative function as part of the regulatory process for approving an application for a PUD. The PUD does not go forward unless the Council makes the necessary findings of fact and gives the PUD preliminary approval.

If Mr. Kamenetz put his thumb on the scale at the front end of the process, he compromised the integrity of the process as much as if he tried to pressure the Board of Appeals at the back end of the process. Whether he realizes it or not, Mr. Marks has made very serious allegations against the County Executive that, standing alone, would merit investigation by the State Prosecutor.

Mr. Marks introduced Resolution No. 113-16 on October 3, 2016. It was passed by the County Council on December 19, 2016.  The resolution placed a condition on the approval of the PUD discussed below.

The removal of the trees.

The Towson Station PUD, like other developments, is subject to State and County forest conservation laws. In May 2016, a consultant, Eco-Science Professionals, Inc., applied on behalf of Caves Valley for approval of a Forest Conservation Special Variance that would allow removal of six “specimen” trees from the property. The consultant claimed that retention of the six specimen trees was incompatible with the proposed design of the project. Specimen trees generally are larger and more mature trees, and merit special protection under State and local forest conservation laws.

The application for the Special Variance in May 2016 drew immediate flak from community groups, particularly from the Green Towson Alliance, a large and active environmental advocacy group. The six specimen trees were among 30 trees that rimmed the northern part of the property and screened the buildings on the site from York Road and Bosley Avenue. The application for the variance to cut down the trees was withdrawn, apparently because of the pressure from the community groups.

The County Council unanimously passed Resolution No. 113-16 on December 19, 2016. The Council, responding to community concerns, placed a condition on the PUD requiring “that existing mature trees that surround the site are protected.”

On April 1, 2017 (a Saturday), a contractor for the County cut down the 30 trees that surrounded the property, including the six specimen trees.  All the trees that were subject to the condition placed on the PUD by Resolution No. 113-16 were gone.  Needless to say, there was a public uproar, and about 50 protesters picketed the site a few days later.

There was no notice given of the tree removal either to the County Council or the public. County Attorney Michael Field told Ann Constantino of the Post that it was County Administrative Officer Fred Homan who ordered the trees removed.

On April 3, 2017, Mr. Homan was at a meeting of the County Council, and he was asked by Councilman David Marks why the trees were cut down in defiance of the conditions placed on the PUD by the Council resolution. Mr. Homan’s response:

“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.”

By that statement, Mr. Homan staked out his position that it was Caves Valley that would be bound by the conditions of the PUD once Caves Valley owned the property, and that conditions placed on the Towson Station PUD by the Council technically were not binding on the County administration while the County still owned the property. Mr. Homan went on to explain:

“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 going on at this point in time.

The only rational inference from Mr. Homan’s explanation is that he was trying to speed the process along by “simplifying” the Forest Stand Delineation and Forest Conservation Plan for the PUD that Caves Valley were required to submit. Review by the County’s Department of Environmental Protection and Sustainability (DEPS) of a Forest Conservation Plan submitted by a developer is the regulatory process required by the State Forest Conservation Act as the means to determine which trees must stay and which may go as part of any site design.

DEPS has a legal duty to make sure that the Forest Conservation Plan submitted by Caves Valley represents Caves Valley’s best efforts to harmonize its site plan with the protection of mature trees mandated by the County and with State and County forest conservation laws. In one high-handed action, Mr. Homan appears to have defied both the will of the County Council and State regulatory requirements.

The use of County funds to cut down the trees.

The trees were cut down by a contractor, Excel Tree Expert Co., Inc., working under a County contract administered by the Property Management Division of the County’s Office of Budget and Finance. The exact amount of County money expended to remove the 30 trees cannot be determined from the documents that have been made available by the County, although an estimate appears to put the amount around $24,500.

No expenditure of County funds, however, was justified because the contract of sale calls for the property to be transferred from the County to Caves Valley “as is.” There was absolutely no duty imposed by the contract on the County to prepare the site for development by cutting down trees.

Even if the contract called for the removal of the trees, the money used to do so would have to be appropriated for that purpose. It was not.

The funds used to pay Excel Tree Expert Co., were appropriated by the County Council for the use by the Property Management Division in its Grounds Maintenance Program, described in the budget as having the purpose “to provide grounds maintenance for all County facilities to the citizens of Baltimore County so that they can participate in leisure activities in recreation facilities in a safe and clean environment.” The services provided by the program are listed as “including grass maintenance, ball diamond grooming, turf management, and general landscaping.” Removing 30 trees to prepare a site for development is not “general landscaping,” and it is not “maintenance.”

Using County funds for a purpose for which they were not appropriated is a violation of Section 715 of the County Charter for which the offending official may be removed from office. It can also subject a violator to criminal penalties if the misuse is deemed theft or misconduct in office.

Non-compliance with State and County forest conservation laws.

My allegations that the County violated State and County forest conservation laws when it removed the trees are described in a complaint that I filed with the Maryland Department of Natural Resources (DNR). That complaint is now under investigation. A copy is appended below.

I won’t repeat the details of the complaint here. Suffice it to say that I believe that, for purposes of forest conservation laws, the County administration in effect acted as an arm of the prospective developer, Caves Valley, in removing the trees from the development site.

Even when the County engages in “tree cutting activity” on its own property for its own purposes, it generally is subject to its own forest conservation regulations if the size of the tract of land is 40.000 square feet or greater. There are limited exceptions, but in my opinion, none of them applied to the removal of six specimen trees to prepare the site for future development by a private developer.

In summary, it appears that Mr. Homan used County funds appropriated for something else to have the trees removed from the County-owned property for the sole purpose of preparing the site for development by the contract purchaser, Caves Valley. In doing so, he rendered impossible the performance of a condition placed by his own County Council on the Towson Station PUD, and short-circuited the legally-mandated process for approving a Forest Conservation Plan for the development. Depending on the determination by DNR, he may also have violated State and County forest conservation laws along the way. Standing alone, these circumstances would merit investigation by the State Prosecutor.

I find it hard to believe that Mr. Homan’s immediate purpose in removing the trees was to “accelerate” the closing of the sale of the property, as he indicated during his testimony before the County Council on April 3, 2017. The reason that I find it hard to believe is because of something that occurred three-and-a-half months after he gave that testimony, and was hidden from public view.

The secret extension of the contract of sale.

On July 26, 2017, Mr. Homan signed an amendment to the contract of sale with Caves Valley that extended the Closing Date for the sale of the property from December 31, 2018 to December 31, 2023. The body of the contract provides that, if settlement does not take place on or before the Closing Date, the contract is terminated.

In April, Mr. Homan stated that he was in a big hurry to get to settlement, but in July he delayed it by up to five years? That requires an explanation and, so far, there has been none.

The extension was secreted from both the County Council and the public. It also was secreted from the Greater Towson Council of Community Associations (GTCCA) when Mr. Kamenetz asked the group on August 11, 2017 to negotiate with Caves Valley over a possible substitute development plan that did not include a gas station. The extension only came to light when it was discovered in a file reviewed by Ann Constantino of the Post under a Public Information Act request.

The extension takes all time pressure off Caves Valley to complete the deal. It also put Caves Valley in the catbird seat in its negotiations with the GTCCA. When Mr. Kamenetz announced that he wanted the GTCCA and Caves Valley to sit down and talk, he gave them 30 days to come up with a compromise. Thirty days seemed like a reasonable deadline if settlement had to occur by December 31, 2018.

Caves Valley knew, however, that the 30 days was a phony deadline; the GTCCA did not.  I don’t know how the failure by the County Executive to inform GTCCA of a material change to a key provision of the contract of sale can be described as anything but bad faith.

Caves Valley is now in the position that, if it can’t get an acceptable compromise with the GTCCA, it can simply sit on the deal for the next several years. The extension functions as a safety valve for Caves Valley. Caves Valley may even choose to wait to close on the sale until the Council does the next comprehensive rezoning of the Towson area, and hope that it can use its political muscle to persuade the Council to rezone the property to allow more intense uses such as gas stations as a matter of right.

If the contract of sale had expired on December 31, 2018, it would have been up to the next County Executive and County Council to decide what to do about the sale and development of the property, with no further obligation to Caves Valley. There is sentiment among the opponents of Towson Station that most responsible recourse for the County, fiscally, legally and in terms of the nature of the development, would be to start over. That option has largely been foreclosed by the extension.

Now the next Executive and Council are pretty much stuck dealing with Caves Valley. If that was the intent of the extension, it again raises the question of whose interests are being represented by the Kamenetz administration.

The GTCCA now also is stuck dealing with Caves Valley in trying to work out some sort of compromise. My guess is that County Executive Kevin Kamenetz wants this controversy to go away as quickly as possible because he hopes that an “amicable” resolution of Caves Valley’s development plan will end the scrutiny of the controversy.

I predict that to achieve that goal he will encourage Caves Valley and the GTCCA to agree to a substitute development plan that does not include a gas station, in return for which Mr. Kamenetz will agree to a substantial reduction in the purchase price for the property. In other words, the taxpayers will take the financial hit necessary to provide political cover for the County Executive. In my opinion, increasing the pressure on GTCCA to reach a compromise with Caves Valley was one of the primary reasons for the extension.

Five years is an extraordinarily long period of time for any contract of sale for real property of this nature to be extended in one fell swoop. That is especially true in this case, considering that the contract provides that “time is of the essence” for performance, and Mr. Homan’s claim that the County wanted to “accelerate” the Closing Date because it needed the money.

Why would the County agree to such a lengthy, unqualified extension? Nothing in the contract provides any compensation to the County for the loss of the use of the revenue from the sale of the property attributable to the delay in settlement. Nor is there any provision for an upward adjustment in the purchase price because of any appreciation in the value of the property. The offer of $8.3 million for the property was made in 2013. Will the value be the same in 2023?

The language of the contract itself leaves the County vulnerable to a slow-down by Caves Valley, making the length of the extension even harder to comprehend. There are no intermediate benchmarks that Caves Valley must achieve, such as deadlines for submitting the various documents required during development review, that would allow termination of the contract before December 31, 2023 if it appears that Caves Valley no longer is diligently pursuing approval of the PUD.

The only risk to Caves Valley if it fails to go to settlement on or before December 31, 2023 is the loss of the “earnest money” that it deposited in 2013: $83,000, a paltry one percent of the purchase price. Until Mr. Kamenetz gives a full and plausible explanation of why the five-year extension was in the best interests of the County, a very dark cloud hangs over the Old Courthouse.

If the evidence gathered by the State Prosecutor shows that the Kamenetz administration had its thumb on the scale during the regulatory process attendant to review of the Towson Station PUD, that it violated State and County laws in removing trees to facilitate development of the site of the PUD by Caves Valley, and that it extended the Closing Date in the contract for reasons primarily benefiting Caves Valley, what would have been the motive? That’s next.

The Caves Valley connection.

County Executive Kevin Kamenetz has a longstanding and well-documented political relationship with the Caves Valley partners and their representatives and affiliates. Mr. Kamenetz was involved in a relatively minor ethical dust-up involving Caves Valley and Mr. Sibel (and other developers) in 2012. It is the amount of money lavished by Caves Valley on campaign contributions to Mr. Kamenetz and other elected officials in the County, however, that is eye-popping.

According to another story written by Ann Constantino of the Post, Caves Valley, and entities and persons that the Post found to be associated with Caves Valley, contributed a total of approximately $84,600 to Mr. Kamenetz and all seven members of the County Council between 2010 and 2017; $42,000 was contributed to Mr. Kamenetz alone. Of the $84,600 total, $44,500 was contributed between 2013, when the Council approved the sale to Caves Valley, and 2017.

The Post reported that another $20,000 was contributed to “A Better Baltimore County,” all between 2013 and 2017. “A Better Baltimore Slate” is a “slate fund” under the control of Mr. Kamenetz that he uses to support the campaigns of political allies, and to oppose the campaigns of political opponents.

In 2014, Allison Knezevich of the Baltimore Sun reported that “A Better Baltimore County” was funded by Mr. Kamenetz and seven other donors, all of whom had ties to Caves Valley. She reported that Mr. Kamenetz transferred $100,000 from his own campaign account into the slate fund, and the other seven donors contributed $23,000.

Ms. Knezevich noted that, at the time of the contributions, Caves Valley was awaiting County approvals to proceed with major development projects. She also pointed out that in 2013 the Council approved a no-bid lease for Caves Valley to rent a former government office building on Washington Avenue to be redeveloped as part of a large Caves Valley project called Towson Row.

The no-bid lease was criticized not only by a real  estate company that had offered to purchase the building, but also by Councilwoman Vicki Almond, who said the deal wasn’t “transparent.”  As if anything that the Baltimore County government ever does is transparent.

Jennifer Bevan-Dangel, executive director of Common Cause Maryland, had this to say to the Sun in 2014 about the contributions to “A Better Baltimore County”:

“The voters need to sit up and pay attention. Certainly, if the developers and the county executive are working so very closely … they have an agenda, and the voters have to decide whether that’s the agenda they want to see or not.”

In declining to comment about the slate fund or Caves Valley’s contributions to it, Mr. Kamenetz displayed his customary patience and candor:

“I’m really not going to discuss campaign strategy with a reporter,” he told Ms. Knezevich in 2014. The point was not, of course, about campaign strategy, it was about the potential for undue influence by a developer on the political and regulatory processes of the County.

There is nothing unlawful in Maryland about the use of campaign contributions by developers and other special interests to gain influence with (euphemistically called “access to”) elected officials. The issue is whether those elected officials bend or even break the rules because of that influence. It is the issue at the heart of the Towson Station controversy.

There is no doubt about the extraordinary influence of the development community (developers and their lawyers) in Baltimore County. State Senator Jim Brochin of Baltimore County, a candidate for County Executive in 2018, has referred to the “pay-to-play” culture in Baltimore County government. I refer to it as the “culture of soft corruption.” Take your pick.

A prickly exchange between Mr. Brochin and Councilman David Marks relevant to the Towson Station matter captured by the Towson Flyer illustrates the sordid, developer-dominated culture of the County government. Mr. Brochin represents the senatorial district in which the proposed development was located.  He described the Royal Farms project as “an abomination” and urged Mr. Marks not to introduce the PUD despite any threats that he had received from the County Executive to withhold funds from Mr. Marks’ district, as described above.

“David needs to stop being the Cowardly Lion and develop some courage and do the right thing. That’s what the job is about,” Brochin said. “It’s insane that anyone could support this [project] unless they’ve been influenced by campaign contributions.”

Mr. Marks told the Flyer that, as a county councilman, “I’m the one who has to deliver funding for important local projects. Sen. Brochin can take the popular position every time, with few repercussions. And with all due respect to the Senator’s insults, maybe he was in the Land of Oz when I was taking on developers and the Kamenetz administration during the last rezoning cycle.”

Four days after the above exchange was reported in the Flyer, Mr. Marks introduced the resolution giving the Council’s approval to the Towson Station PUD. Did Mr. Marks introduce the resolution because he believed the findings recited in the resolution that the PUD “will achieve a development of substantially higher quality than a conventional development would achieve,” or did he do it because of a threat from the County Executive to punish his constituents by withholding funding for important projects? The citizens of Baltimore County deserve an answer to that and many other questions about the Towson Station project.

***********

The Towson Station fiasco reeks of scandal.  The cumulative weight of the facts and circumstances is overwhelming:

The secrecy of the process used to select the buyer; the questions surrounding the disqualification of the Sapperstein proposal; the selection of a proposed development not permitted by the zoning of property and vehemently opposed by the community; the allegations of threats by the County Executive against a county councilman relayed by a Caves Valley partner; the willingness of the County to structure a deal with Caves Valley that placed its regulatory role in conflict with its pecuniary interests; the removal of 30 trees by the Kamenetz administration in defiance of a County Council resolution to relieve Caves Valley of the “burden” of accommodating its site plan and construction activity to the retention of the trees by using money appropriated for some other purpose; and, finally, a secret, five-year extension of the closing date in the contract of sale that primarily benefits Caves Valley, not the County, and that belied the statement by the County Administrative Officer several months earlier that the County wanted to “accelerate” the sale of the property in order to realize the income from the sale.

If these facts and circumstances do not attract the attention of the State Prosecutor, I am not sure what would.

November 19, 2017

 

The bigger scandal in Baltimore County.

There are two controversies brewing in Towson.  One is at the headquarters of the Baltimore County Public Schools.  The bigger one is up the road at the Old Courthouse.

Below is a copy of the complaint that I filed yesterday with the Maryland Department of Natural Resources alleging that Baltimore County violated State and County forest conservation laws when, on April 1, 2017, it precipitously cut down 30 trees on County property to prepare the site for a private development on the site known as Towson Station planned by Caves Valley Partners, the contract purchaser of the property.

The trees included six “specimen” trees that enjoy special protection under forest conservation law. Technical non-compliance with forest conservation law is, however,  the least serious of the issues arising from this evolving scandal.

To summarize the controversy, County Administrative Officer Fred Homan ordered 30 trees cut down from the property while it remained order County ownership to thwart a condition placed by the County Council on the future development of the property by Caves Valley. The County Council had given preliminary approval to the development plan submitted by Caves Valley, but conditioned its approval on retention of the mature trees that rimmed the property and screened it from the street. It was a condition to which Caves Valley objected.

When Mr. Homan appeared before the County Council two days after the trees were cut down, he told the Council that the County administration technically was not bound by conditions placed by the Council on development by a prospective owner and developer of the property, because those conditions applied only after the property was sold to the developer. Mr. Homans also stated that he cut down the trees to accelerate the sale of the property because the County needed the money from the sale.

The County had no responsibility for site development under the contract of sale, which called for sale of the property “as is.”  Moreover, Mr. Homans used money to remove the trees that was appropriated for maintenance of County parks and other properties, not for preparing sites for development.

About three and ½ months after the trees were cut down, Mr. Homan signed a five-year extension of the closing date of the contract of sale from December 31, 2018 to December 31, 2023. The extension was secreted from both the County Council and the public until it was discovered in a file by Baltimore Post reporter Ann Constantino through a Public Information Act request.

In April, Mr. Homan was in such a hurry to sell the property that he ordered the trees cut down in defiance of the wishes of the County Council by using money appropriated for another purpose, but in July he signed a five-year extension of the closing date? I can’t wait for Mr. Homan to try to explain the benefit to the County of agreeing to such a lengthy extension, especially considering that the extension provides no compensation to the County for the loss of the use of the revenue from the sale because of the delay.

All of the above occurred in the context of a history of large campaign contributions from Caves Valley Partners and affiliated persons and entities to Mr. Kamenetz described in a previous story by Ms. Constantino. It is little wonder that citizens are beginning to detect an unpleasant odor emerging from the Old Courthouse in Towson.

An interesting question is why this evolving scandal is not getting the same coverage from the local mainstream media as given to the alleged ethical lapses of the current interim superintendent and the former superintendent of the Baltimore County Public Schools. At least at this point, it seems to me that the much more serious concerns are not at school headquarters, but rather up the road at the Old Courthouse.

I have my thoughts on why the disparity in coverage, which I will share in future commentary.  In the meantime, the formal complaint on the alleged violation of forest conservation laws:

November 14, 2017

Hon. Mark J. Belton, Secretary
Maryland Department of Natural Resources
Tawes State Office Building
580 Taylor Avenue
Annapolis, Maryland 21401-2397

RE: Complaint of violation of Maryland Forest Conservation Act by Baltimore County, Maryland

Dear Secretary Belton:

I am filing this complaint based on evidence that Baltimore County, Maryland violated State and Baltimore County forest conservation laws and regulations when it removed approximately 30 trees, including six specimen trees, on County-owned property consisting of approximately 5.8 acres located at 800 York Road in Towson, Maryland.

I request that the Department exercise its authority under §§ 5-1608 and 5-1612 of the Natural Resources Article of the State Code to investigate the complaint and, if appropriate, impose sanctions on the County. I also request, based on the evidence, that the Department perform a review under § 5-1603(e) to determine if Baltimore County’s administration of its local forest conservation program is deficient and requires remedial action initiated by the Department.

Summary of allegations.

On or about April 1, 2017, a County contractor, Excel Tree Expert Co., Inc., acting at the direction of the County, removed approximately 30 trees and stumps from County-owned property at 800 York Road in Towson, Maryland. The trees removed included six specimen trees. The purpose of the tree removal was to prepare the site for a development now known as Towson Station by an entity identified as CVP-TF, LLC (herein referred to as “Caves Valley Partners”).

At the time the trees were removed, Caves Valley was the contract purchaser of the property, and pursuing approval of a Forest Conservation Plan, which had not occurred. The County remained the owner. The County removed the trees without complying with its own or State forest conservation laws and regulations.

In 2013, the County and Caves Valley had entered into a contract of sale for the property, with the closing of the sale contingent upon approval by the County of a Planned Unit Development (PUD) that would allow a gas station to be built on the site; gas stations are not permitted uses under the zoning classification of the site.

In March 2016, Caves Valley, acting as contract purchaser, applied for approval of PUD No. 2016-00002.

On or about May 6, 2016, a consultant, Eco-Science Professionals, Inc., applied on behalf of Caves Valley for approval of a Forest Conservation Special Variance allowing removal of the six specimen trees that ultimately were removed by the County. The consultant claimed that retention of the six specimen trees was incompatible with the proposed design of the project. The application was withdrawn, apparently because of pressure from community groups that wanted the trees retained.

In December 2016, the PUD was given preliminary approval by the Baltimore County Council by the adoption of Council Resolution No. 113-16, as required by County law. As a condition of the Council’s approval, Resolution No. 113-16 required that the design of the PUD ensure “that existing mature trees that surround the site are protected.”

The requirement placed on development by Resolution No. 113-16 was legally separate from any condition that may ultimately have been placed on approval of the Forest Conservation Plan for the PUD by the County, although the Forest Conservation Plan certainly would have had to accommodate the requirement. The trees that were removed by the County on April 1, 2017 included the “existing mature trees that surround the site” that were subject to protection under Resolution No. 113-16.

On March 22, 2017, the County Department of Environmental Protection and Sustainability (DEPS), charged with the duty of administering the County’s forest conservation program, disapproved the Simplified Forest Stand Delineation submitted by the consultant for Caves Valley. Although agreeing with the consultant that there was “no existing forest onsite,” DEPS disagreed with the consultant’s assessment of the condition of two of the specimen trees that ultimately were removed, and directed that the Simplified FSD be revised accordingly.

On April 1, 2017, a Saturday, without notice to the Baltimore County Council or the public, the County contractor removed the trees from the site. No permits, plans, or other forms of approval of the work have been located.

Additional facts.

1. The Contract of Sale between the County and Caves Valley calls for delivery of the property on the Closing Date in an “as is” condition. There was no duty imposed by the contract on the County to remove the trees. Although the closing of the sale is contingent on the approval by the County of a PUD approving the gas station, nothing in the contract can or does relieve the County from the duty to objectively review and approve the PUD in accordance with State and County law; that is not to say that the conflict between the County’s financial interests and its regulatory duties is not problematic.

2. Subject to enumerated exceptions, an agency of Baltimore County is required by Title 6 (Forest Conservation) of Article 33 of the County Code to submit a “project plan” for “a construction, tree cutting, clearing, grubbing, grading, or erosion and sediment control activity on an area of 40,000 square feet or greater that is not subject to the review and approval process specified in a construction, tree cutting, clearing, grubbing, grading, or erosion and sediment control activity on an area of 40,000 square feet or greater for a project that is not subject to the review and approval process specified in Article 32, Title 4, Subtitle 2 of the Code.” The review and approval process specified in Article 32, Title 4, Subtitle 2 of the Code applies to “development plans” for subdivisions, PUDs, and other development activities, such as the plans submitted by Caves Valley for its PUD.

3. None of the exceptions enumerated in Title 6 of the County Code appear to apply to the tree cutting activity that took place on April 1, 2017. Section 33-6-103(b)(22) of the County Code exempts County capital improvement projects that do “not result in the cumulative cutting, clearing, or grading of more than 40,000 square feet of forest.” There was no capital improvement project for this property, and the funds used to cut down the trees were appropriated from the County’s general fund to an item in the County’s budget intended to pay for routine maintenance of County parks and other property.

4. Even if the tree cutting was within the scope of some exception as a “County” project, any attempt by the County to assert that exception would be a pretense that must be rejected: The trees were not cut in furtherance of any County project, but to relieve the prospective developer from having to preserve the trees under an approved Forest Conservation Plan. The site development/tree removal was not part of a County project; it was part of Caves Valley’s project.

5. Section 33-6-105 of the County Code requires that a project plan submitted by a County agency be accompanied by a Forest Stand Delineation and a Forest Conservation Plan. The agency responsible for tree cutting activity, the Property Management Division of the County’s Office of Budget and Finance, submitted no project plan, Forest Stand Delineation, or Forest Conservation Plan for the tree cutting activity.

6. According to the Baltimore Post, County Attorney Michael Fields told reporter Ann Constantino that it was County Administrative Fred Homan who ordered the trees cut down. [http://thebaltimorepost.com/homan-spends-county-cash-developer-caves-valley] At a meeting of the County Council on April 3, 2017, Mr. Homan was asked why the trees were cut down in defiance of the conditions placed on the PUD by the Council resolution. His response:

“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.”

Mr. Homan was making the point that it was Caves Valley that would be bound by the conditions of the PUD once Caves Valley owned the property, and that conditions placed on the Towson Station PUD did not bind the County while it owned the property. Mr. Homan went on to explain:

“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 going on at this point in time.”

7. Mr. Homan’s statement that the trees were cut down to “accelerate” the sale of the property because the County needed the “cash” was cast into doubt 3 ½ months later. On July 26, 2017, without notice to the County Council or the public, he approved a five-year extension of the Closing Date for the sale from December 31, 2018 to December 31, 2018. So, in April he was accelerating the sale, but in July he was decelerating it?

8. The tree cutting on April 1, 2017 was performed by Excel Tree Expert Co., Inc. Excel was retained on a contract administered by the Property Management Division of the County’s Office of Budget and Finance as part of its Grounds Maintenance Program for County parks and other properties. Under the contract, the obligation to secure any necessary forest conservation program approvals remains with the County. As the contract administrator for the County, the Property Management Division was responsible for submitting a project plan for the tree cutting activity.

Conclusion.

Baltimore County chose to enter into a contract of sale for surplus County property with terms and conditions placing the County’s pecuniary and regulatory interests in conflict. Because the sale is contingent on its approval of a PUD, the County gave itself a financial incentive to approve the PUD, which is supposed to be reviewed and approved in an objective, arm’s length manner that protects the rights of persons opposed to the PUD.

The only rational inference from the facts is that the County ordered the 30 trees, including six specimen trees, removed from the site to facilitate the design of the development proposed by the contract purchaser, Caves Valley. Eleven months before the trees were removed, Caves Valley applied for a Forest Conservation Special Variance to remove the six specimen trees as part of its PUD. Caves Valley withdrew the application, apparently because of public objection. What was not accomplished through the front door by Caves Valley, however, was accomplished through the back door when the County cut down the trees.

Having joined its interests with Caves Valley by the way it structured the contract of sale, the County in effect acted as an arm of the developer by removing the trees. Assuming the Forest Conservation Plan for the PUD is finally approved, it will have been shaped by the joint action of the County and Caves Valley, with the County removing trees on behalf of the developer that the developer did not wish to retain under a Forest Conservation Plan. That violates both the letter and the spirit of State and County forest conservation laws and regulations.

The removal of the trees served no other purpose for the County other than facilitating the development plan proposed by Caves Valley. Even if the tree cutting activity on April 1, 2017 is viewed as a standalone County project – which it clearly was not – the County violated its own law by failing to submit its own Forest Conservation Plan before removing the trees.

I believe that the removal of the trees on April 1, 2017 was a violation of State and County law that merits imposition of a penalty. In my opinion, the cynical way in which the violation took place also calls into question Baltimore County’s stewardship of its local forest conservation program.

Some of the documents referenced above are attached; others were inspected but not copied. The originals of course are available from Baltimore County.

Sincerely,

/s/

David A. Plymyer

A begrudging step forward in Baltimore County?

At least for the moment, I believe that my efforts at promoting openness, transparency, and accountability in local and state government have produced some results, extremely modest though they may be. The Baltimore County Charter Review Commission released its report and recommendations last week, and one of its recommendations represents progress in introducing some semblance of accountability for the compensation paid to high-ranked County employees.

The final recommendation of the Commission was that the Baltimore County Charter be amended to require the Baltimore Council to do its job and adopt a “system” to govern the compensation of department heads and other County employees in the exempt (non-merit) service. Currently, there is no system, and the County Executive pays those employees pretty much what he pleases.

The recommendation by the Commission was the culmination of a chain of events that began with a story in March by Alison Knezevich of the Sun, who reported that a “severance package” of $117,00 was being paid to former Police Chief Jim Johnson upon his retirement. The story piqued my interest, and I used the Public Information Act to obtain a copy of the Executive Benefit Policy on which the purported entitlement to severance pay was based. The policy had never been approved by ordinance of the County Council, or made public.

In May, the Sun published an op ed that I wrote describing the Executive Benefit Policy. I pointed out that the $117,000 paid to Mr. Johnson was in addition to a pension that, using publicly-available information, I estimated to be about $19,200 per month – that’s right, per month.

I also pointed out the County Administrative Officer Fred Homan, who stood to benefit from the severance pay provisions, was the official who had approved the latest version of the policy. I later learned and made public that Mr. Homan approved a change to the policy in 2015 that increased his own entitlement to severance pay by about $26,300.

Thereafter, events took off at a serious pace, with Mr. Homan first amending the policy to remove himself from its coverage, and County Executive Kevin Kamenetz then deciding to eliminate the policy entirely. The County Council quickly followed suit, rescinding a similar policy that it had adopted (also in secret) for its own employees. And now, there is the proposed charter amendment.

When the Charter Review Commission refers to a “system” in the proposed amendment the Commission presumably is referring to a pay scale, with positions assigned to pay grades that have specific salary ranges. Currently there is nothing that controls the discretion of the County Executive in deciding upon the salaries of his appointees, even though the responsibility for establishing the compensation of all employees in the exempt service is imposed by the Charter on the County Council, not on the County Executive.

Members of the County Council are trying to spin the proposed amendment as giving the Council an oversight role that it now lacks – in other words, as if the severance pay and other abuses by the County Executive and County Administrative Officer were not the Council’s fault. It is a common tactic by politicians: Pretend the problem is the existing law, not their failure to apply it properly. Then, create a smokescreen by enacting a new law that “fixes” the problem.

It boils down to this: The Council should have enacted a pay plan for department heads and other high-ranking employees long ago; the Council had the power to do so, but it just didn’t. The proposed amendment would require the Council to do so.

The Commission was a bit vague in its report, and left enough wiggle room in its explanation of the amendment for Council members to spin it in the way most flattering to them.  [Ps. A-6 and A-7 of report, linked above.] This was Baltimore County after all, where wagons are circled better than anywhere else, one washes the other, and everyone gets their stories straight before talking to the public. All’s well that ends well, however, and what matters most is that the Council votes to put the resolution on the ballot, and that the voters approve this small step in the right direction.

I sent a letter to the Council supporting the amendment. I also suggested, however, that it is important to be honest with the voters, a novel concept in Baltimore County. Therefore, the Council should swallow hard, and make it clear that the amendment would not give the Council a “new” power – rather, it would force the Council to exercise an existing power in a reasonable way to protect the interests of the taxpayers. For once, the Council should try being straight with the citizens of the County. A link to my letter appears below.

Many a slip twixt the cup and the lip, and things can still go wrong, but I am going to count the proposed charter amendment as a small victory in Baltimore County. Lest anyone think that I am bragging, I readily admit that, in almost three years of writing on issues of openness, transparency, and accountability in the city, I have not moved the ball forward one inch, as far as I can tell.

Also, the matter of the now-defunct Executive Benefit Policy will not be closed until the County Auditor does an audit of the administration of the policy in light of an admitted irregularity in the way it was administered before it was terminated.  That irregularity could have cost the County tens or even hundreds of thousands of dollars; we’ll never know until an audit is done.

Predictably, the Council has refused to date to approve an audit, so stay tuned.  A link to my memo summarizing the need for an audit also appears below.

November 15, 2017

Ltr Balt County Council 11 12 17

Memo, grounds for audit 9 21 17

 

Where the hell is Sam Abed?

I usually don’t waste pity on elected officials or on police commissioners earning $205 K per year, especially if I believe that they are, in part, the architect of their own sorrows. In the case of juvenile crime in the City of Baltimore, however, I am going to make a limited exception for Mayor Catherine Pugh and Police Commissioner Kevin Davis. I feel sorry that they appear to be out there all alone in dealing with the current spike in violent juvenile crime.

A little over six months, I noted in a post my concern that a reprise of the wave of juvenile violence that swept the Inner Harbor for several months in 2012 could send the tourism industry in the city into a death spiral. In the past several weeks, it appears that my worst fears are being realized, but the spike in violent juvenile crime in the city is not limited to the Inner Harbor. You can’t pick up the newspaper or turn on the television without reading or hearing about another incident somewhere in the city.

“Out of control” is a phrase you hear repeatedly. Assaults, carjackings, and other violent crimes committed by juveniles not only are turning away potential visitors to the city, they are making residents of some neighborhoods afraid to leave their homes.

The Mayor and Police Commissioner are under increasing pressure to do something about the crisis. I have one question, however, and it is not directed to the Mayor or Police Commissioner.

My question is: Where the hell is Sam Abed, Secretary of the Maryland Department of Juvenile Services?

It would be nice to hear what the State’s experts on juvenile justice have to say about possible solutions to the problem, and how they can help the police in the city. Do they have any thoughts on what policies may need to be changed? Do they believe that the youthful offenders who commit these crimes are amenable to treatment within the juvenile system? Just say something so that we know you are there and care about what is happening in Baltimore.

One of the first rules that you learn in government is that, paraphrasing President John F. Kennedy’s observation about the invasion of the Bay of Pigs, success has a thousand fathers, but failure is an orphan. In my opinion, Governor Larry Hogan and the members of his cabinet are engaging in a form of duck and cover: They are trying to avoid the political fall-out from the disaster unfolding in the city.

Governor Hogan does not want his face or name, or the face or name of one of his cabinet secretaries, associated with what is happening in Baltimore. If the governor or Secretary Abed look like they are trying to help solve the problem, people might hold them accountable for the results. “It’s not my problem, and it’s not my fault” appears to be the mantra.

The State needs to jump in with both feet, however, and it needs to do so quickly. And I am not, of course, talking only about juvenile crime. In 2012, there were 217 murders in the city. This year there already are 303.

There are political risks for the governor if commits money and other resources to the city and is unable to achieve results; it may come as a surprise to some in Baltimore that there are plenty of folks in Maryland outside of the city who believe that spending more money on the city is like pouring it down a rat hole. On the other hand, the risks to the city are enormous if the Governor does not step up his efforts to help it.

November 9, 2017

Baltimore City Council President Jack Young opens mouth, inserts foot.

Baltimore City Council President Bernard C. “Jack” Young again stuck his foot in his mouth, and this time it was particularly offensive. Mr. Young, angered that the officers of the Baltimore Police Department (BPD) represented by the Fraternal Order of Police (FOP) refused to ratify the collective bargaining agreement proposed by the city, accused police officers who live outside of the city of “raping the city” by not living in Baltimore. Only about 20 percent of officers live in the city.

Mr. Young later clarified his remarks, stating he was referring to the negative effect on the city’s tax base by having employees living and paying taxes elsewhere. Taking him at his word, his use of the term “raping” nevertheless had an unnecessarily harsh connotation, implying that the officers are doing something wrong by choosing to live outside of the city.

In fact, they are not. They are doing what many current residents of the city would like to do: Living in communities that are safer, and where taxes are lower and public schools and other services are far better.

It would be interesting to know the percentage of officers who live in the city when hired, and then move out of the city later. I’m guessing it is higher than the percentage who live outside of the city when hired, and then move into the city later.

The starting salary for a BPD officer is about $49,000. That’s not bad, but it is not enough to afford to live in Guilford, Roland Park or Homeland. Are there are other wonderful neighborhoods in Baltimore? Yes, there are, but for young officers thinking about raising a family, the number of desirable places in the city is, unfortunately, relatively limited. Millennials attracted to communities like Federal Hill and Fells Point tend to go back to the suburbs when children are on their way.

Do you wonder how many families at the lower end of the economic spectrum, black or white, would jump at the chance to move out of the city to Baltimore, Howard, or Anne Arundel County if they had the means to do so? A lot. Why would police officers, including those who grew up in the city, be any different?

I hope that someday soon Baltimore will become a more attractive place for middle class families to raise children, but the harsh reality is that right now it just isn’t. And the absolute last thing that the BPD needs is for the city to use its officers for some sort of social experiment, by trying to force them to live in the city and then see what happens.

The BPD is struggling to recruit officers in adequate numbers, continues to have serious disciplinary problems, and arguably is failing at its primary job of preserving public safety. With all that going on, I can’t imagine why anyone in a position of authority in the city is preoccupied with the loss of tax revenues attributable to officers living outside of the city. The BPD already has gone from the frying pan into the fire. I don’t know where it goes next if the strains on officers are increased even further.

It is a commonly-held theory that, on balance, police officers who live in the jurisdiction in which they work have a better “feel” for the jurisdiction, and a greater personal investment in the quality of their work. Let’s assume that theory is correct, and let’s assume that Mr. Young has a legitimate concern about municipal employees paying taxes to jurisdictions other than the city. The fact remains that now is not the time to do anything that might it harder for the BPD to hire and retain good, qualified officers.

It just seems that the city generally has a difficult time getting its priorities straight, and this is one of those instances. I have no problem with measures intended to entice officers to live in the city, such as tax credits, but coercive measures are just out of question at this point and may never make any sense.

Finally, Councilman Ryan Dorsey did more harm than good by coming to Mr. Young’s defense.  This is the councilman who in July made the same point as Mr. Young about the loss of revenues, adding that officers who live outside of the city “siphon” city taxpayers’ money and “beat, abuse, and kill the people who actually live here.”

Mr. Dorsey has no concept of the damage that he does to the city (and its taxpayers) by his immature and inflammatory rhetoric. Mr. Young would be well-advised not to follow suit by causing even more backs – including the backs of prospective police officers – to be turned toward Baltimore. Never say things can’t get any worse.

October 19, 2017

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