Exactly what kind of nation are we?

The outcome of the battle to repeal and replace the Affordable Care Act (ACA) will go a long way toward determining just what kind of nation we have become.  The late Senator Hubert Humphrey of Minnesota observed “that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”

The Congressional Budget Office reports that the Republican plan on the table to replace the ACA, known as the American Health Care Act (AHCA), would lead to 14 million fewer Americans with health insurance by 2018 and 24 million fewer by 2026.  If the bill passes tomorrow there will be no doubt what kind of nation we have become and how well our government fares on its moral test.  In my opinion only a morally-bankrupt government would do what the AHCA is likely to do to those citizens in the shadows of life.

I believe that the debate over this bill also is exposing a religious divide in this country that to date has not received a lot of attention in the mainstream news media – the widening gulf between the Christian right, especially evangelical Protestants, and other Christians.  The stark reality is that critical support for repealing the ACA and replacing it with a program that will make life harder for the poor and chronically ill is coming from evangelical Protestants.

In recent weeks the bill proposing the AHCA has gone from bad to worse under pressure from Republicans in the so-called “Freedom Caucus” of the House of Representatives.  For them the provisions of the bill as initially drafted were too generous with federal money and the support of health care by the federal government needed to be reduced even further.

The most dramatic change to the bill involves replacing the current formulas for the federal funding of Medicaid with block grants.  Although this change is being portrayed by Republicans as bestowing “flexibility” on the states the reality is much different:  It will put the squeeze on states that now rely upon the expansion of Medicaid funding under the ACA to provide health care to their poorest citizens.  States will have the “flexibility” to try to do more with less.

It will not only be the less affluent states and their citizens that get hurt.  The universal health care program introduced in Massachusetts by Governor Mitt Romney in 2006 that pre-dated the ACA employed a structure similar to the ACA, requiring everyone to purchase insurance and subsidizing those who couldn’t afford to do so.  The funding for the subsidies, however, came largely from the federal government in the form of additional Medicaid funds that were made available to Massachusetts.  A reduction in Medicaid funding by the federal government would require Massachusetts to find other sources for funding to reinstate its own version of universal health care; poorer states could be left high and dry.  In the rush to pass a bill – any bill – repealing the ACA some of the most important questions regarding how health care for our poorest citizens apparently will be left unanswered.

I never had any doubt that the “wonderful” replacement for the ACA promised by President Trump would not be so wonderful for the states.  The temptation to duck the tough fiscal and policy decisions by pushing those decisions down to state governments simply was too great, and that appears to be what congressional Republicans are doing.

If there was an obvious, “wonderful” replacement for the ACA there never would have been the ACA in the first place.  The ACA was an imperfect compromise that falls somewhere between a single-payer system like Medicare and an open, voluntary private insurance market.  Coming up with a program that makes health care available to anyone who needs it but is not either a single-payer insurance program such as Medicare or a government-run health care program like the one run by the Veterans Administration is not going to be easy.

The task is simple enough to describe:  Creation of a health care system that makes adequate health care available to persons who cannot afford to pay for it out of pocket and for whom private health care insurance is too expensive or completely unavailable because of preexisting conditions.  Accomplishing that task is another matter.

If you want a system based entirely on the private insurance market you have to come up with a method to spread the insurance risk:  You either have to require healthy persons to participate or the government will have to subsidize the private insurers for insuring the sickest persons.  Without a mandate or a subsidy for covering the highest risk persons the private health care insurance market cannot provide insurance at a reasonable price, if at all.

The AHCA will retain the provision of the ACA that prohibits insurers from denying coverage to persons with preexisting conditions.  Therein lies the rub.  The private insurance market works great if all of the insureds are reasonably healthy or at least don’t suffer from catastrophically-expensive medical conditions.  It doesn’t work at all if insurers have to raise rates too high in order to pay for the sickest insureds.  That tends to price both sick and healthy people out of the market and is why private insurers came up with the exclusion for preexisting conditions in the first place.

On the other hand, the ACHA will get rid of the mandate that everyone must purchase insurance and Republicans were not going adopt to a single-payer system.  So how does that work without driving up premiums?  Without the mandate younger and healthier people will choose not to purchase health care insurance especially as it becomes more expensive, even if faced with the possibility that they may not be able to purchase it after becoming ill.  Maybe someone can explain to me how making coverage available to people with preexisting conditions but also eliminating the mandate that requires everyone to purchase insurance can be done without providing massive governmental subsidies to prop up the private insurance market.  Unless something changes in the bill it will be up to the states to figure out a way to pay for the health care for people forced out of the private health care insurance market by rising premiums.

There are reports that President Trump and the House leadership have agreed with conservative Republicans at the last minute to remove from the bill the requirement that insurance policies include specified “essential health benefits” in order to secure the votes necessary to pass the bill.  The requirement is a holdover from the ACA and requires policies to cover services including maternity care, prescription drugs, and mental health treatment.  Eliminating one or more of the essential health benefits will reduce costs, but it will do so at the expense of comprehensive health care coverage.

A “wonderful” byproduct of our federal system is that allows legislators in Washington to claim credit for policies and programs without the concomitant responsibility to pay for them.  During the great wave of social policy and environmental legislation in the second half of the last century the concept of the “unfunded mandate” became anathema to state and local governments.  My prediction at this point is that Republicans in congress want to claim credit for adhering to the principle that everyone who requires health care should be able to obtain it without coming up with a realistic way to pay for it.  Maybe the Republicans simply are hoping that the 2018 mid-term elections will come and go before the scheme collapses.

The ACA may have been an imperfect compromise, but it was the product of an important goal upon which a sufficient number of the members of Congress agreed at the time of its enactment in 2010:  That goal was the provision of adequate health care to all those in the country who need it and it was based on the principle that all citizens of the United States are entitled to adequate health care regardless of their ability to pay for it.  The ACA did not change the hodgepodge of programs that constitute our “system” of health care but it did plug major gaps in the system by making health care insurance affordable for the working poor and available to those with pre-existing conditions for whom coverage had been denied in the past.

For many of us the enactment of the ACA was a milestone both in policy and in morality.  It ended a long period of time when the United States stood virtually alone among developed countries in treating health care as a privilege rather than a right.  Most right-thinking Americans viewed that as a stain on our reputation that had to be removed; citizens of this country were suffering and dying in unacceptable numbers because of inadequate health care.  Treating health care as a right recognizes that health care is a basic human need, like nutrition and shelter; a self-respecting society would no sooner allow a person to die of from an untreated illness than it would allow a person to starve or die from exposure.

What I am saying is that the policy of our government toward health care is as much, if not more, a moral issue as it is a political or economic one.  Do we believe in universal health care or don’t we?  Like it or not when we talk about moral issues in this country we have to talk about religion, and in this case we have to talk about evangelical Protestants, especially white evangelical Protestants.

There no longer is any doubt that we are fighting a war with President Trump and Steve Bannon for the soul of this country.  What happens in Congress with the proposed repeal and replacement of the ACA will be a major battle in that war.  There are very good reasons for avoiding arguments about the propriety of someone else’s religious beliefs but things have gone way too far to worry about hurt feelings.  Religious values, like all other values, inform our beliefs about the role of government, including the role of government in helping the poor.

In my case, before giving the matter much attention I had the naïve assumption for many years that all true Christians found it troubling that the United States stood virtually alone among developed countries in not providing adequate health care to each one of its citizens who needed it without regard to the ability of a citizen to pay for that care.  I found the absence of universal health care in the United States particularly baffling in light of the fact that the United States has by far the greatest number of people professing to be Christians in the world, with about 60% of the population claiming to be members of the congregation of a Christian church.

My assumption undoubtedly was based on the fact that I grew up attending a Lutheran Church in which pastors and Sunday school teachers emphasized that Christians had an unqualified duty to care for the poor and less fortunate.   As it turns out, my assumption was not entirely correct – some Christians are much more troubled by absence of universal health care than others.

Well before the most recent presidential campaign began affecting the results polls showed that opposition to the ACA was considerably higher among evangelical Protestants than among any other religious group, with white evangelical Protestants being the most opposed.  A poll taken before the Supreme Court ruling on the ACA in 2012 showed that a majority (52%) of white evangelical Protestants favored the Supreme Court overturning the ACA while only 36% of all Roman Catholics and 44% of all mainline Protestants were in favor of overturning it.

That is a significant difference, particularly between Catholics and evangelical Protestants.  What explains the difference?

Certainly many white evangelicals recognized the same flaws in the ACA that everyone else did, but that would not explain the difference.  Exit polls taken after the election showed that 80% of white evangelicals voted for Donald Trump, but that support generally was attributed to anti-abortion sentiment and, to a lesser extent, on the opposition to gay marriage.  The ACA is “abortion neutral” – it had to be in order to get through Congress.  Some policies available under the ACA exchanges pay for elective abortions but they are not required to do so because abortion is not one of the ten “essential health benefits” under the ACA and no federal tax credits or subsidies may be used to pay for abortions under the Hyde Amendment.  The provision of insurance coverage to same-sex couples was a matter of other law, not the ACA.

There is something else going on and that something else has to do with theology and disparate views on what the duty of Christian charity encompasses.  Evangelical Protestants tend to have a more constrained view of the duty of Christian charity than other denominations.  I hasten to add that such a statement suffers from the weakness inherent in all generalizations in that there are evangelical Protestants who have an expansive view of the duty to help others and who are among the most generous people in the world.  My observation has to do with institutional beliefs, not individual behavior, and there simply is no doubt that evangelical Protestantism puts less emphasis on “good works” than, for example, Roman Catholicism.

One of the most quoted and debated passages in the New Testament is Matthew 25: 31-46, known as “the Judgment of the Nations” and sometimes referred to as the parable of the sheep and the goats, even though it is not actually a parable.  I won’t quote all of it, but this is from verses 35 through 40 in the New American Standard Bible and begins with Jesus describing God as God addresses the righteous (the “sheep”):

“‘For I was hungry, and you gave Me something to eat; I was thirsty, and you gave Me something to drink; I was a stranger, and you invited Me in; naked, and you clothed Me; I was sick, and you visited Me; I was in prison, and you came to Me.’  Then the righteous will answer Him, ‘Lord, when did we see You hungry, and feed You, or thirsty, and give You something to drink?  And when did we see You a stranger, and invite You in, or naked, and clothe You? When did we see You sick, or in prison, and come to You?’  The King will answer and say to them, ‘Truly I say to you, to the extent that you did it to one of these brothers of Mine, even the least of them, you did it to Me.’”

God tells the sheep that they will be given eternal life.  In the remainder of the passage God speaks to the “goats” – those who did not feed or clothe the least of his brothers – and tells them that they will be consigned to eternal punishment.

There are two debates that spring from the passage.  The first debate is the extent to which Jesus was stating that good works – rather than grace alone – are required for salvation.  The second is the question of whom Jesus meant by his reference to “these brothers of Mine.”

I have absolutely no credentials as a biblical scholar but when you review the literature on the passage you can see that the arguments seem to follow denominational lines, with Roman Catholics at one end of the spectrum and evangelical Protestants at the other.  Interpretation of the Judgment of Nations is sort of a litmus test for evaluating a Christian’s view on his or duty to help the less fortunate.

Pope Francis leaves no doubt about what he believes is the proper construction of the Judgment of Nations, the parable of the Good Samaritan, and similar passages:

“Let us ask ourselves: is our faith fertile? Does it produce good works? Or is it rather sterile, and so more dead than alive? Do I make neighbors, or do I just pass by?” Francis asked during an Angelus address last year, adding that these questions would be good to ask ourselves often, since in the end “we will be judged on the works of mercy.”

In the same address he warned against a narrow interpretation of a Christian’s duty, cautioning that Christians must not “catalogue others to decide who is my neighbor and who isn’t” and should adopt the same attitude as the Good Samaritan toward the people that they meet who need help, “even if they are a stranger or even hostile.”

Evangelical Protestant theologians tend toward the less expansive view of to whom Jesus was referring as “these brothers of Mine,” arguing that in the Judgment of Nations Jesus was referring only to his disciples and other missionaries who suffered because of their work and that Jesus was not imploring his followers to help just anyone.  They also caution against reading into the passage any suggestion that a Christian needs to earn his or her way into heaven as contrary to the principle that salvation comes from grace alone.  There is a subtle but definite lack of emphasis on “good works” as these writers focus on the priority to be given to the expansion of the church and the salvation of souls.  There is an insular, self-absorbed quality to the theology that I personally find unacceptable – in the words of Pope Francis, more dead than alive.

Donald Trump would not have won the election but for an unholy alliance between the Christian right and the alt-right.  As part of the deal the Christian right gets the potential opportunity to take away the right of women to terminate pregnancies within the limits set forth in Roe v. Wade and the right of same-sex couples to marry.  The alt-right gets to promote a white nationalist agenda that includes suppressing immigration in general and the immigration of Muslims in particular.  It looks like the poor just get forgotten.

March 23, 2017

Keeping those eyes and ears open; the Jim Johnson severance package in Baltimore County.

The article by Alison Knezevich of The Baltimore Sun on the “severance package” being paid to former Baltimore County Police Chief Jim Johnson is a reminder of the vital role played by traditional daily newspapers in keeping an eye on state and local governments.  The administration of President Donald Trump has drawn a lot of attention to the watchdog role played at the federal level by national newspapers such as the New York Times and the Washington Post.

The part played by local newspapers and regional newspapers like the Sun in holding state and local governments to account, however, should not be overlooked.  It is state and local government that has the most direct effect on our daily lives.  A whole lot of mischief can go on in the halls of state and local government, and one thing that I can tell with certainty after nearly 40 years of experience in government is that you would never know about that mischief if most elected officials had their way.

Which brings me to the severance package approved by Baltimore County Executive Kevin Kamenetz for former Police Chief Jim Johnson, who Mr. Kamenetz asked to retire at the end of January.  According to the information that Ms. Knezevich was able to obtain Mr. Johnson will receive $45,954 because he is being kept on the payroll until the end of this month, even though he left his position at the end of January.  There is no indication that any work is expected of Mr. Johnson in return for the county paying him at the same rate he was being before he retired as police chief, about $254,000 per year ($21,167 per month); to the contrary, a spokesman for Mr. Kamenetz explained that the money being paid to Mr. Johnson is for services already rendered: “As a show of gratitude for, and in honor of, his decades of service as a leader in the Baltimore County Police Department.”

When the paychecks stop Mr. Johnson will be paid an additional $117,000, equivalent to another 120 days of pay.  At least some of that $117,000 is payment for unused annual leave; how much is unknown because the county refused to give Ms. Knezevich a copy of the severance agreement signed by Mr. Johnson and the County Executive, describing it as a “personnel matter” protected from disclosure under the Maryland Public Information Act.  Pay-outs for unused annual (“vacation”) leave for classified employees of the county are governed by county law, and the amount of unused leave for which a retiring classified employee may be paid is limited by Personnel Rule 21.07.  Hopefully Mr. Kamenetz will explain to the county council and members of the public to what rule he referred when deciding upon the pay-out to Mr. Johnson for unused vacation time.

Something else will happen when the paychecks stop:  Mr. Johnson’s county pension begins.  More on that later, because it puts the severance package in the proper perspective.

Ms. Knezevich had the right to get a copy of the severance agreement.  One of the liberating things about not being a professional journalist, and not writing this post for publication in one of the traditional newspapers to which I referred, is that I can use the term that I believe best describes the position taken by Baltimore County regarding release of the severance agreement – bullshit.  The refusal of the county to release the agreement is bullshit, pure and simple.  A severance agreement is in the nature of an employment agreement setting forth the terms and conditions governing an employment relationship and the receipt of compensation arising from that employment, even if limited in scope to the terms and conditions governing compensation paid at the end of that relationship.

In University System of Maryland v. The Baltimore Sun Co., 381 Md. 79 (2004), the Maryland Court of Appeals held that the employment contracts of coaches employed by the University of Maryland involved the transaction of state business and governed the payment of public funds, and that “any document evidencing the employment arrangement and how the state-funded salary is earned” must be made available for public scrutiny.  The court held that disclosure of the salary paid to a coach alone was insufficient to place the compensation in a useful context, especially in light of the other emoluments to which the coach may be entitled under the contract such as a car allowance, country club memberships, use of state-owned resources for clinics and camps, etc.  I believe that it is virtually certain that a court would apply the same reasoning to require release of an agreement that sets forth the quid pro quo under which “severance” payments are made with public money.

A reasonable assumption to be made when a document like the severance agreement with Mr. Johnson is withheld for dubious reasons is that it contains something controversial or embarrassing to the withholding party.  In this case my guess, and I emphasize that it is a guess, would be a non-disparagement clause; in other words, a provision that prohibits Mr. Johnson from criticizing Mr. Kamenetz.  Such provisions are highly controversial when they involve public officials, not only because of their implications under the First Amendment but also because they involve the use of tax money to purchase silence.  Until Mr. Kamenetz releases the document that he should already have released it is reasonable to assume that it contains something that Mr. Kamenetz would prefer to hide from the public.

Refusing to release a copy of the severance agreement is not the only thing that is of dubious legality in this situation.  There is well-established body of Maryland case law supporting the proposition that the compensation paid to a public official is limited to that set forth in law – and set forth in law means written down for everyone to see.  Do you have any question about the beneficent public purpose that lies behind that case law?  If you do, you haven’t lived in Maryland long enough.

The ignorance expressed by the members of the Baltimore County Council interviewed for the story about the existence of a severance package tells you all you need to know about the existence of any county law authorizing the payment of a severance allowance.   In a statement the Kamenetz administration said that a severance package “is standard practice for members of the County’s Executive Pay Plan with 30 or more years of service.”  I’ve seen many “standard practices” uncovered in government that had nothing to do with the law.  That explanation is not good enough.

Even the idea that Baltimore County has had two police chiefs on the payroll for the past two months is of questionable legality.  Where is the authority for that?

Council Chairman Tom Quirk told Ms. Knezevich that a severance agreement for a police chief is “ultimately the county executive’s decision.” Mr. Quirk added that “it’s not uncommon for different executives” to receive a severance package and “I would defer to the county executive on that.”

I am going to have to disagree with Mr. Quirk on two counts.  First of all, the matter of severance compensation should be governed by legislation enacted by the county council or at least by personnel rule approved by the county council, not left entirely to the discretion of the county executive.  Secondly, his statement that it is not uncommon for “different executives” to receive a severance package may generally be true, but is not true in the context of this situation.

The following fact places both of my objections to what Mr. Quirk said in context:  Upon retirement Mr. Johnson immediately becomes eligible for a pension from Baltimore County that I estimate to be approximately $240,000 per year – that’s right, $240,000 per year.  The amount of a pension paid to a public official in Maryland is confidential under Maryland law but the formula for calculating Mr. Johnson’s pension is set forth in Section 5-1-206 of the Baltimore County Code.  Using information reported by the Sun that described Mr. Johnson’s 38 years of service with the police department and his final salary of $254,000 it is possible to estimate his pension with reasonable accuracy.

Stated another way, if Mr. Johnson had retired in January he would have received a regular pay check for that month in the amount of $21,167 and a pension check for the following month in the amount of $20,000.  The pension and and any leave pay-out to which Mr. Johnson is entitled as a matter of law is Mr. Johnson’s remuneration for service faithfully and honorably rendered and nothing else is necessary or justified.

Mr. Quirk, you know the people of Arbutus and Catonsville far better than I do but do you believe that if this matter had been the subject of legislation your constituents would have shown up at the public hearing to support the idea of giving Mr. Johnson even more money than the $20,000 per month pension benefit in the form of a “severance package”?  With an income of $240,000 per year from his pension alone that means that Mr. Johnson’s household income will be greater than about 98% of the households in your district, including those with two members of the household still working.  The point here is not whether Mr. Johnson deserves that level of compensation for past service; it is whether he deserves even more.

I add that Mr. Johnson is not eligible for social security because neither he nor the county paid into social security during his service, something the law allowed for police officers covered by another government pension plan.  Nevertheless, the benefits to which Mr. Johnson is entitled as a retired Baltimore County police officer are extraordinarily generous, far more generous than the retirement benefits available to military retirees or even to members of Congress, for example.

Of course, at only 58 years of age Mr. Johnson can find other work, continue to receive his full county pension, and earn some social security benefits, if he wishes to do so.  Also, if HB 100 passes the General Assembly and is enacted into law, as appears likely, Mr. Johnson will be able to reduce the income upon which he pays state income tax by $15,000, which should help offset the absence of income from social security.

I also want to add that I am not criticizing Mr. Johnson.  In my opinion he was one of the finest police chiefs in the State of Maryland, if not the finest, and I am by no means alone in that belief.  My sole point in all of this is one of process:  When you are talking about the compensation of public employees at these stratospheric levels the process by which such compensation is determined has to be open and transparent, and based on explicit provisions of law.  Anything else erodes the trust of citizens in their government, to the extent that such trust still exists.

As I was putting the finishing touches on this post I read an excellent letter published in today’s Sun from a Mr. Bruce Knauff of Towson about the severance package being paid to Mr. Johnson.  Mr. Knauff called for the county council to censure Mr. Kamenetz if any severance payment to Mr. Johnson not required by law cannot be rescinded.  The letter was captioned, probably by an editor, as “Cronyism lives in Baltimore County.”

I have to say that among all metropolitan counties Baltimore County government has a bit of a reputation as being dominated by a good old boys’ network, and what appears at least on the surface to be a backroom deal does nothing to mitigate that reputation.  Even if the severance agreement is indeed a “personnel matter” as alleged by the Kamenetz administration then the subject of that matter, Mr. Johnson, is free to approve a release of the agreement.  I would urge Mr. Johnson to do so to help protect his own well-known reputation for openness and integrity.

When I retired as County Attorney for Anne Arundel County in 2014 I began to write on the subject of openness and transparency in government because I know first-hand just how important it is.  The one issue that drew me back into a legal and political controversy involving the county for which I had worked for 31 years, something that I swore I would avoid doing once I retired, was an attempt last year by the administration of County Executive Steve Schuh to amend the county charter in a way that would have foreclosed public access to certain types of information.

Five of the seven members of the Anne Arundel County Council asked me to provide a legal opinion on the proposed amendment, which I did without asking for a fee.  The attempt to change the charter ultimately proved unsuccessful and I earned the enmity of Mr. Schuh for my role in helping to derail it; his spokesperson threatened to file a grievance against me with the Maryland Attorney Grievance Commission.  I never could figure out what would have been the basis for such a grievance – maybe it was because I did the legal work free of charge?  Among some of my cohorts that is considered a sin, although I don’t believe that it is a violation of the formal rules of professional responsibility.

In any case the point of that story is that when you get involved in issues like these you can’t expect elected officials to like you for it; controlling the flow of information and protecting their public images is so important to elected officials because it is so closely connected to a matter that generally matters the most to them – getting re-elected or elected to a higher office.  As a citizen you have to be willing to take some heat if you believe that the issue is important enough, and few issues are as important as openness and transparency at all levels of government.

Having said that, I recently moved to Baltimore County and I guess I should be willing to step up and antagonize elected officials here as well, if necessary.  I am going to prepare my own Public Information Act request seeking a copy of the severance agreement.  I will take it one step at a time, but I still pay the fees necessary to retain my license to practice law.  Another thing I told myself when I retired was that my avocation in retirement was not going to include going to court; I wanted to try something different after nearly four decades.  I enjoy writing, but on occasion sitting at a desk is not quite enough.  Maybe it’s the roar of the greasepaint and the smell of the crowd; whatever it is, sometimes I miss it. I can find my way to the courthouse in Towson if I have to.

◊           ◊           ◊

I am going to finish where I started, and that is with the role played by The Baltimore Sun.  The existence of the severance package paid to Mr. Johnson by the county never would have come to light except for the skilled reporting of Ms. Knezevich; even the members of the county council were kept in the dark.  We will rue the day that the Sun and newspapers like it no longer have the resources to send reporters to cover stories like this.

When I began as an Assistant State’s Attorney in Anne Arundel County in 1978 the independent daily newspaper in Annapolis then known as the The Evening Capital had separate reporters assigned to the courthouse, the crime beat, the education beat, and the city and county government beats, in addition to reporters assigned to specific geographic areas throughout Anne Arundel County.  The reporters tended to be young, underpaid and inexperienced and the editor, Ed Casey, had his foibles, but the important issues got covered.

Sometimes the coverage was a bit rough around the edges, but the job got done and it was a whole lot better than no coverage at all in keeping government officials on their toes.  The paper, now known as The Capital and part of the Baltimore Sun Media Group, is a shadow of its former self, and I mean that with no disrespect to the current editor and reporters who do the best they possibly can with what they have.  My concern is more than nostalgia for the past; it is knowledge that there is as of yet no adequate substitute for newspaper reporters who are there on the ground and asking the right questions.

There was something else in today’s Sun that caught my eye:  An op ed reminding readers (including me) that this week is “Sunshine Week” as declared by the American Society of News Editors.  I agree that open access to the proceedings and records of state and local government is critical, but it is not enough:  There have to professionally-trained and supervised news reporters with the time to look and with the expertise necessary to know what to look for and, once they find it, to know what they are looking at and how to bring the relevant facts to the attention of the public.

Consequently, here’s my advice:  Buy a subscription to The Baltimore Sun in addition to a subscription to either the New York Times or the Washington Post.  Yes, the Sun has published a number of my op eds over the past two years, but that is another activity for which I don’t get paid and I therefore have no financial interest in the Sun’s circulation; if the Sun chooses to publish one of my op eds I get paid precisely the same amount regardless of the number of papers sold – nothing.

Look at the subscriptions as your investment in good government.  These newspapers are your eyes and ears, and now more than ever you need to keep your eyes and ears in good health, and open.

March 18, 2017

Baltimore youth fund off to a rough start.

Baltimore Children and Youth Fund project already tainted by politics and racially charged rhetoric.

It will be easy to spend the money from the Baltimore Children and Youth Fund established last year by an amendment to the city charter. It will be a challenge, however, to spend it in a manner that achieves the fund’s goal of materially improving the lives of young people in the city’s poorer neighborhoods — particularly through a process already tainted by politics and racially charged rhetoric.

Each fiscal year the city now is required to place at least $0.03 for every $100 of assessable property value in the fund “to be used exclusively for purposes of establishing new and augmenting existing programs for and services to the children and youth of this city.” In the coming fiscal year the fund will have about $12 million to spend. Much of that money will be disbursed in the form of grants to community and social service organizations.

Former Mayor Stephanie Rawlings-Blake warned about the pitfalls of creating “earmarked” sources of funds for this type of purpose. Whatever else she may have been wrong about, she was right about that. A major risk is that the city will end up funding a hodgepodge of activities that fail to make any real dent in the problem of at-risk children.

More than anything else, Baltimore needs to develop and implement a comprehensive plan focused like a laser on identifying and delivering those programs and services to children and families that are most likely to reduce the likelihood that children will turn to a life of crime. “Nice to have” programs and services are a luxury. Funds must be applied in a strategic manner; the “transformation zones” program begun by the city is an excellent example. Strategic funding is harder to achieve when the decision-making process is reactive rather than proactive because it is driven by grant proposals rather than by a specific plan.

The size of the task force convened by City Council President Bernard C. “Jack” Young to design the administrative process is a bad omen. A 34-member task force is unwieldy and means only one thing: Mr. Young wanted to bring on board as many of the “stakeholder” community groups as possible for political support. If a politicized approach is carried forward into the administration of the fund, there will be an emphasis on spreading the wealth as broadly as possible rather than as wisely as possible.

Task force co-chairman Adam Jackson said his goal “is to make sure grassroots, black-led organizations are positioned to get the funding.” He explained that if the task force “is serious about addressing systemic racism and poverty, the only response is investing in people and black-led organizations.”

First of all, the focus by Mr. Jackson on who gets the money rather than how the money is spent is another sign that the process is in danger of being hijacked by politics. Secondly, nothing in the language of the charter amendment refers to addressing “systemic racism,” and the use of such language can become a serious liability. His comment arises from the same mindset that led to the attacks by Councilman Ryan Dorsey and others on Kevin Plank for his Point Covington development as an alleged example of white supremacy and privilege.

Let’s assume for the moment that the city’s economic and social problems are indeed artifacts of systemic racism and white supremacy. How would that fact inform the concrete solutions to city problems? It would not, and the tiresome, racially-charged rhetoric can do significant damage. The city is dependent for its survival on the goodwill of people who live elsewhere in Maryland, like Mr. Plank, and language that accomplishes nothing more than offending people whose support is needed is, in a word, stupid. Don’t make the job of persuading white people to give up more of their tax money to help the city harder than it already is.

Hopefully Council President Young and his task force will do better as work progresses on recommendations for implementing the Children and Youth Fund. If not the mayor and City Council would do well to discard those recommendations and apply the $12 million to the transformation zones program, which holds real promise for helping the young people of Baltimore.

March 9, 2017

[Published as an op ed by The Baltimore Sun on March 9, 2017 but not posted to my blog until May 18, 2017.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Anthony Batts was right about the continuing cycle of scandal and corruption in the BPD.

Dan Rodricks posed a question in a column that appeared Monday in the Baltimore Sun.  Referring to the alleged conduct of the seven members of the Baltimore Police Department (BPD) Gun Trace Task Force indicted on federal racketeering charges Rodricks asked how come no one in the department noticed what was going on.  The United States Attorney made a point of stating that the information that led to the investigation came was learned by DEA agents during the investigation into a drug ring, not from the BPD.

The answer to Rodricks’ question that the culture of the BPD has not fundamentally changed from the culture described in the report of the Department of Justice on the BPD.  The supervision of rank-and-file officers by sergeants and lieutenants is lackadaisical and the blue wall of silence has not come down.  The code requires officers to hear no evil, see no evil and speak no evil of fellow officers, even if they are your subordinates.

The problem with supervision is especially acute at the rank of sergeant, if only because there are so many more sergeants than lieutenants and the sergeants are most familiar with what is happening on the street.  The situation with Sgt. Wayne Jenkins, one of the indicted examples, serves as a perfect example.  Assuming that he did not personally participate in any of the alleged wrongdoing it is impossible for me to believe that he did not have a good idea what the other six officers in his unit were doing.  Jenkins earned $168,700 last year of which $83,300 was overtime.  It isn’t as if he wasn’t around the unit enough to see what was going on.

The reason that the culture has not changed is that the Police Commissioner cannot get rid of problem officers fast enough to get ahead of the curve.  That handicap is most damaging as it applies to the sergeants and lieutenants who are the front line supervisors of the department.  The front line supervisors serve as the guardians of the culture of the department and pass that culture along to the next generation of officers entering the department.

Lousy attitudes and bad habits by supervisors beget lousy attitudes and bad habits by the officers they supervise.  The good intentions of the Commissioner are not making it down to the street.  It is a cycle that must be broken, and I certainly am not the first person to say so.

In 2014 The Sun published its eye-opening report titled “Undue Force” describing how Baltimore had paid about $5.7 million since 2011 over lawsuits claiming that its police officers brazenly beat up alleged suspects.  Former Police Commissioner Anthony Batts responded to the report with a remark describing the basic problem that he was having in his attempts to change the culture of the department: He bemoaned the fact that his hands were tied by the Law Enforcement Officers’ Bill of Rights (LEOBR) and he simply could not act fast enough to discipline officers.

Under the LEOBR a police chief lacks the power to unilaterally impose discipline; before discipline may be imposed an officer has to found guilty of a disciplinary infraction by an independent hearing board, an uncertain process that can take many months to complete.  Batts initially stated that he would seek changes to the LEOBR by the Maryland General Assembly but ultimately backed down under pressure from the FOP.

By June of 2015 Batts was under fire for his handling of the riots that followed the death of Freddy Gray in April and for a spike in the city’s murder rate, and he probably knew that his days as commissioner were numbered; in July he was gone.  In June 2015 he wrote an op ed  published by The Sun that sounded a lot like a parting shot, getting some unfinished business off of his chest.

In his op ed Batts stated that when he arrived at the BPD in 2012 he found a “cycle of scandal, corruption and malfeasance” that “seemed to be continuing without abatement.”  He admitted that the problem had not been solved and predicted:

“Our reform efforts will very likely see more police officers arrested. We will have more officers who are forced out because their outdated, outmoded views of policing do not match the standards the community expects and demands.”

Batts was accused of melodrama and disloyalty to his officers because of his 2015 op ed. One thing he can’t be accused of was being wrong.

Ironically, in recounting the history of scandal and corruption in the BPD over the past decade in his op ed Batts referred to the cases of former BPD detectives William King and Antonio Murray who in 2006 were sentenced to hundreds of years in federal prison for robbing drug suspects.  The scope of the activity for which King and Murray were convicted pales in insignificance to the scope of the crimes alleged in the indictments handed down last week.

(If you are interested in the history of scandal and corruption in the BPD to which Batts referred there was a recap of it done by Edward Erikson, Jr. in the City Paper in 2015.)

I have been writing about the deficiencies in the front line supervision in the BPD for two years, as I reviewed in my blog post on Sunday.  One of my proposals was that the Baltimore city delegation get together with the city council and the Legislative Black Caucus to persuade the General Assembly to pass a public local law that would have the effect of removing BPD sergeants and lieutenants from the LEOBR and therefore allow the Commissioner to move more quickly in replacing inadequate supervisors with adequate ones.  A bill like that affecting only the city might have a chance of getting passed.  Instead, city and state officials have gone off in various futile directions.

If you are cynical enough you can even see the little political dance that goes on.  Councilman Brandon Scott and other members of the city council persuaded Del. Curt Anderson to introduce a bill this year that would have made the BPD a city rather than a state agency, which would have solved absolutely nothing.  The bill has been withdrawn, but Scott gets to tell the voters when he runs for higher office that “I tried.”

Mayor Pugh went to Annapolis this year to ask the General Assembly to pass a bill obviating the need for the city council to confront the FOP over the FOP’s reluctance to agree to placing civilians on police disciplinary hearing boards. Knowledgeable observers know that she is asking the General Assembly to do something that the city should do for itself; when the bill fails, however, Mayor Pugh will get to tell the citizens who strongly support civilian participation in the police disciplinary process that “I tried.”

These officials have “tried” alright – they’ve tried to persuade citizens that they are actually interested in solving the problems with the BPD when the reality is that they don’t really want to do the tough work and take on the FOP and its allies.  It’s all political bullshit.

In the meantime Commissioner Kevin Davis is coping as best he can.  He demoted the commander of the division of which the Gun Trace Task Force was a part, reducing him in rank from Chief to Lieutenant.  The commissioner can demote a chief without going through the LEOBR but because of the Baltimore civil service system he can only reduce him to the rank of lieutenant – which is of course a supervisory position.  Problem solved?

The commissioner also decided to eliminate another semi-autonomous unit, the plainclothes enforcement unit.  Although the commissioner may have doubts about the utility of the unit the move also clearly reflects his recognition of the major problem that he has with command and control – he simply does not have enough reliable supervisors to deal with any more moving parts within the department than absolutely necessary.  Davis is trying to reduce the department’s exposure to bad supervision by reducing the number of separate units that have to be supervised.  I don’t think that is going to be enough.

If I have one criticism of the commissioner it is that he is not pressing the case strongly enough on the need to give him more authority to get rid of bad officers, particularly in the supervisory ranks of sergeant and lieutenant.  Governor Larry Hogan has expressed his admiration for Davis; maybe it is time for Davis to sit down with the governor and ask for his support in making the necessary changes to state law.

The indictment of the seven officers should serve as a wake-up call that the “cycle of scandal, corruption and malfeasance” identified by Batts has not been broken.  Indeed, if the allegations in the indictment are true it is the worst scandal in the BPD in recent decades.

Although the Majestic Auto Body kickback scheme involved far more officers the crimes committed in that scandal were child’s play compared to what allegedly went on in the Gun Trace Task Force. The task force allegedly engaged in the type of violent criminal enterprise usually found only in third world countries.  Making things even more unsettling is the fact that some of the activity described in the indictment occurred after the BPD had come under heightened scrutiny following the death of Freddy Gray, underscoring the brazenness of the alleged conduct.

It appears to me that Davis is trying to deal with the BPD’s problems without ruffling too many feathers.  I don’t believe that strategy will work.

March 8, 2017

Drug dealers know more about what is going on in the BPD than police supervisors.

I will start with the customary caveat that the seven officers of the Baltimore Police Department (BPD) indicted on federal racketeering charges this week are innocent until proven guilty.  If they committed half the crimes with which they are charged, however, it is a disappointing indication that little progress has been made in fixing the problem with front line supervision in the BPD since my op ed on that problem was published in the Baltimore Sun on August 18, 2015.

The accusations against the seven officers are especially troubling, even for the BPD.  The officers, who were members of the “elite” Gun Trace Task Force, allegedly operated in a manner no different from one of Baltimore’s many violent criminal gangs.  The United States Attorney for Maryland, Rod Rosenstein, described them as armed robbers in police uniforms.

The officers indicted included a supervisor, Sgt. Wayne Jenkins.  The fact that a police sergeant was allegedly involved in the wrongdoing is hardly surprising.  The number of incidents involving sergeants or lieutenants in the BPD over the past four or five years forms a pattern, and the inadequacy of the supervision of the rank-and-file is the crippling weakness of the department.  Nothing in the BPD will improve until the front line supervision improves.

Brazen crimes committed by police officers like those described in the indictments do not happen unless the perpetrators believe that they will not get caught.  In the BPD part of that equation is the deficiency in front line supervision:  Officers are emboldened by the belief that their sergeants are too inattentive or dim-witted to figure out what the officers are doing or, if the sergeants do figure out what they are doing, that the sergeants will turn the other way.  It goes without saying that there is even less deterrent if a sergeant is an active participant in the wrongdoing.

There is a rather remarkable and telling finding that appears on page 135 of the report on the BPD by the Department of Justice (DOJ).  I’ve mentioned it before, and it is worth repeating.  Keep in mind that the DOJ uncovered a widespread pattern and practice of unconstitutional stops and arrests.

“A number of supervisors informed us that they view their role as ‘documenting’ activity rather than assessing whether the activity conformed to policy, or that they believe internal affairs—not direct supervision—is the appropriate vehicle for assessing whether an enforcement action meets policy or constitutional requirements. Indeed, our review did not identify a single stop, search, or arrest that a front line supervisor found to violate constitutional standards—even though numerous incident reports for these activities describe facially unlawful police action.”  (Emphasis added.)

In other words, many supervisors in the BPD don’t bother supervising.  Needless to say the information that led to the investigation of the seven indicted officers did not come from their supervisors or even from the BPD internal affairs section; it came from information learned by DEA agents during an investigation of a drug ring in the city.  Here is what that means, unfortunately:  Drug dealers are a better source of information about what is really going on in the BPD than the department’s supervisors or internal affairs investigators.

In addition to the violent crimes described in the indictments there are allegations of systematic overtime fraud involving tens of thousands of dollars; the numbers are so egregious that someone should have taken notice.  The most important safeguards against such abuse are the integrity and diligence of the immediate supervisors who approve the overtime. Therefore, don’t be surprised if the audit ordered by the mayor uncovers a much more widespread problem with overtime abuse.

A year after my first op ed on the subject I returned to subject of improving the quality of the front line supervision in the BPD with an op ed published by The Sun on August 17, 2016.  By then it was clear to me that it was necessary for the BPD to pick up the pace in its efforts to get rid of the “bad apples” among the supervisory ranks.  I recommended that Section 16-7 of the Code of Public Laws of Baltimore City be amended to take sergeants and lieutenants outside of the extraordinary protections of the Law Enforcement Officers’ Bill of Rights (LEOBR) so that the Police Commissioner could act more quickly to replace incompetent supervisors with competent ones.

That idea, along with the idea of getting sergeants and lieutenants out of the same union as the rank-and-file officers that they supervise, went nowhere. The Commissioner’s proposal for better training for new supervisors and re-training current ones, endorsed in the consent decress, is a great idea but is not going to change the culture fast enough.  The Commissioner cannot rely on attrition alone for the opportunity to replace bad supervisors with good ones.

It is likely that the pay differential between sergeants and lieutenants and the officers that they supervise must be increased in order to attract the best and the brightest in the rank-and-file to apply for promotions.  If the force has to be shrunk a bit to pay for that, so be it.  Comparing the needs of cities is complicated, but Baltimore is the 26th largest city in the country by population and has the 8th largest police department.  I don’t think I am going out on a limb by saying that the city might be better served by a slightly smaller but higher quality department.

I see in this situation what I see with so many problems in the city regarding public safety and the criminal justice system:  An absolute lack of urgency.  I am not talking about hysteria or doing things in a heated rush, but there has to be some sense that effective solutions need to be instituted as soon as possible.

The city has an appalling rate of murder and other violent crime, a State’s Attorney’s Office of questionable functionality, and a deeply troubled police department.  The problems with the police and prosecutors are so extensive that another issue that merits scrutiny, inconsistent and ineffective sentences imposed by judges, gets crowded out of the spotlight.  It does not take Nostradamus to predict that things could get even worse unless changes are made fairly quickly.

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As a follow-up to my post two days ago I can report that on the same day of the post Del. Curt Anderson announced that he was likely to withdraw his bill transferring operational control of the BPD from the state to the city.  He gave as a reason an Attorney General opinion that expressed concern that changing the governance at this point could jeopardize the pending consent decree with the DOJ and that warned that if a change was made the BPD would lose the sovereign immunity defense that protects it from tort claims based on violations of the state constitution. State constitutional torts have become a significant source of potential liability for Maryland local governments over the past 20 years.

The issue of interference with the consent decree that the city negotiated with the DOJ might not have been immediately apparent, but the impact on the sovereign immunity defense was something that every member of the city council knew or should have known when the council passed a resolution supporting Del. Anderson’s bill, HB 1504.  The lack of awareness shows just how ill-considered this bill was.  I will avoid speculating on how many members of the city council knew about the BPD’s sovereign immunity from suit, or bothered to ask.  Trust me; there is not a single lawyer in the city solicitor’s office unaware of the issue.

Councilman Brandon Scott, chair of the council’s Public Safety Committee, was the leading proponent of HB 1504.  He expressed his disappointment over the bill’s fate with a statement that included the following passage:

“Allowing the functions of the police department to continue as they are today represents a clear example of a broken governance structure. The unchecked and unbalanced power within the oversight structure of the Baltimore Police Department is not representative of true American democracy and is dangerous to its core values.”

Councilman Scott not only has a gift for hyperbole, he has designs on higher office.  After the indictment of the seven BPD officers was announced Councilman Scott raced off a letter to the Police Commissioner demanding a review of police overtime, a letter that Councilman Scott also gave to the media.  His haste was evident from the lack of proofreading, with the first sentence of his letter stating that the financial misconduct of BPD officers was “frequently” coming under scrutiny “far too often.”  I suppose a little redundancy never hurt anything.

Councilman Scott was in a hurry to upstage the mayor, who was in the process of making her own announcement ordering an audit of police overtime.  I bring this up only as it bears on the main theme of Friday’s post, which was the leadership vacuum in the city.  Mayor Pugh has enough challenges in the leadership department without contending with things like Councilman Scott’s jockeying for political advantage or the tendency of Council President Jack Young to grandstand and run his own game.  These three powerful city officials have to pull together if the city has any hope of fixing what ails it.

Mayor Pugh seems like a decent person truly committed to the welfare of the city.  She does not have a massive ego and prides herself on her ability to work on a collegial basis and on her willingness to compromise when appropriate.  She certainly is not going to overwhelm anyone with her oratory or her charisma, but that is okay – decisive leadership comes in many forms and actions speak louder than words, etc.  I believe, however, that she has to learn to assert herself more and demonstrate that she is unafraid of confrontation when it becomes necessary.  She will get walked all over if she can’t do that.

I am pulling for Mayor Pugh to succeed – we all should be doing so, because the success of the city depends on it.  If that means calling out a council person or two for getting in the way of the success of the mayor, so be it.  In my opinion the mayor still has a lot to prove but she should be given a chance to prove it.

March 5, 2017

No leadership or political courage evident during the debate over control of the BPD.

The things going on at the moment regarding control of the Baltimore Police Department (BPD) are beyond comprehension.  They are a reflection of a complete lack of leadership from the mayor and a complete lack of spine from members of the city council.  There is one thing not absent on the part of city officials in this situation, and that is chutzpah.

Members of the Baltimore City Council are clamoring for more control of the Baltimore Police Department (BPD) even though they have abrogated the responsibility that they do have for a critical component of the BPD – its disciplinary system.  Council members are urging members of the General Assembly to pass HB 1054, which would transfer operational control of the BPD from the state to the city.

Members of the council are seeking this additional authority at the same time that the mayor is asking the General Assembly to enact a statute that gets around the unwillingness of the city council to pass an ordinance allowing civilians to serve as members of police hearing boards over the objection of the police union.  Basically, the city council wants more power to boss around the Police Commissioner but has more or less admitted it lacks the guts to deal with his employees.  In other words, the council only wants the power to do the easy stuff.

HB 1504 would have no effect on labor relations and collective bargaining between the city and BPD employees over the terms and conditions of employment.  The city council has sufficient control in that area to place civilians on hearing boards.  In the aftermath of the Freddie Gray tragedy and the Department of Justice (DOJ) report concluding the process employed by the BPD to maintain the discipline of its police officers was ineffective the mayor and many members of the city council stated during their campaigns that they would do everything possible to place civilian members on the hearing boards convened to adjudicate disciplinary charges against BPD officers.

The mayor and members of the council stated that placing civilians the boards would improve discipline and restore the faith of city residents in the process.  The city council approved a consent decree with the DOJ that calls for putting civilians on hearing boards.

The city council has it within its power to place civilians on police hearing powers as described in an op ed that I wrote last year published in The Baltimore Sun.  The problem is that members of the council are afraid to exercise that power because doing so will alienate the Fraternal Order of Police (FOP).  Question for the city council:  How the hell do you have the nerve to ask for more power over the police department when you are unwilling to exercise the power that you already have in order do something about the department that you have committed yourself to do?

What makes this situation stranger – and even more pathetic – is that Mayor Catherine Pugh has been before the General Assembly urging members to pass SB 545/HB 1023.  The bill, introduced by members of the Baltimore City delegation at the request of the mayor, is an attempt to get around the fact that city law currently requires the city to bargain with the FOP over the composition of hearing boards convened under the Law Enforcement Officers’ Bill of Rights (LEOBR) to adjudicate disciplinary charges against officers of the BPD.  In other words she is asking the state to do something that the city lacks the guts to do for itself:  Stand up to the FOP.

The composition of the boards has become a major issue because of the FOP’s reluctance to agree to allow civilians to serve as members of boards in the city.  In the op ed described above I urged the city council to withdraw the subject of the composition of the hearing boards from the scope of collective bargaining which then would allow the council to make its own decision on who should sit on the hearing boards as provided under state law.  If city officials want to put civilians on hearing boards, then put civilians on hearing boards.

Rather than ask the city council to change city law, however, Mayor Pugh went to the General Assembly to ask them to supersede city law with a statute prohibiting the city from submitting the subject of the composition of hearing boards to collective bargaining.  It takes a lot of gall for the mayor just to ask the General Assembly to relieve her and the city council of the burden of taking on the FOP.  When you add in the fact that members of the city council are simultaneously trying to persuade the General Assembly that they can be trusted with more control over the police department, however, her request is nothing less than ridiculous.  I don’t think that point is lost on members of the General Assembly.

When the mayor began discussing what is now SB 545/HB 1023 a few months after my op ed was published I posted a comment to my blog in which I quoted a WBAL interview with Senator Bobby Zirkin during which he tried to convey the message in no uncertain terms that the city should solve its own problems over collective bargaining with the FOP.      Senator Zirkin’s comments two weeks ago about SB545/HB1023 reported in a tweet from Sun reporter Ian Duncan indicate that his mind has not been changed, and Senator Zirkin is the chairman of the committee that will decide the fate of SB 545.

I hasten to add that the mayor does not seem to support HB 1504.  She voiced concerns about transferring full operation control to the city similar to those raised in an op ed by former City Solicitor George Nilson.   One of the things that Mr. Nilson was concerned about was that a change in the legal status of the department at this point in time could complicate or even disrupt the process of getting the consent decree with the DOJ approved and implemented.  Maybe in her heart of hearts the mayor knows that the city council can’t be trusted with any more control over the BPD; there was some indication in his op ed that Mr. Nilson may feel the same way, and he speaks from experience.

In summary, we have the mayor and members of the city council pulling in opposite directions, with neither demonstrating any real vision, leadership or political courage.  They do seem to concur in the matter of taking on the FOP over putting civilians on hearing boards; the mayor and council believe it is a good idea – if someone else does it. The city needs help, but it needs to learn to help itself as well, and part of that includes taking some political risks in the course of doing the hard work of governing.

If the indictment on Wednesday of seven officers of the BPD on federal racketeering charges demonstrates anything it demonstrates that there is plenty of work still to be done on achieving an acceptable level of discipline within the BPD.  I am not saying that putting civilians on hearing boards is a panacea for all of the disciplinary problems – not even close.  Indeed, I have my own doubts that it will make much difference at all, and there are plenty of other steps that must be taken.  Regardless, the mayor and city council have committed themselves to the idea, and it would be encouraging to see them actually get one thing done intended to improve the quality of the BPD.

Incidentally, the indictment also helped set the tone for this post:  It drives me nuts to read about members of the council blithering on about wanting more power to do truly important things like redrawing police district lines when it is obvious that there are serious issues that need to be tackled.

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As sort of an addendum to this post I am going to set forth the legal framework of description of the power of the city council over collective bargaining and the composition of police hearing boards.  I have never heard city officials deny that the council has the power to put civilians on hearing boards, but nor have I heard them confirm it – they seem to want to ignore the issue.  One problem has been that members of the media do not press the mayor or members of the city council on the point, perhaps because they are not fully aware of the law.  In any event, here is my breakdown of the relevant law:

  1. The BPD is governed by three different types of laws. The General Assembly enacts both “public general laws” of statewide applicability and “public local laws” applicable only to Baltimore.  The city council enacts ordinances within the scope of the powers granted to it by the General Assembly.
  1. The composition of hearing boards convened to adjudicate disciplinary charges against police officers across the state is the subject of a public general law, the LEOBR. The LEOBR was amended in 2016 to allow the city or any other local government to pass an ordinance requiring that there be up to two civilian members on a hearing board, appointed by the police chief.  The ordinance can provide that the civilians be either voting or non-voting members.  [State Code, Public Safety Article, § 3-107.]
  1. Under the LEOBR a local government can either pass an ordinance dictating the method of selecting the members of a hearing board or it can make the method of selection subject to collective bargaining and binding arbitration; the LEOBR makes it clear that collective bargaining of the method of selection is not required:                                                                                                                                                                                         “A law enforcement agency or the agency’s superior government that has recognized and certified an exclusive collective bargaining representative MAY negotiate with the representative an alternative method of forming a hearing board . . . IF authorized by local law this paragraph [the paragraph authorizing negotiation of an alternative method of selection] is subject to binding arbitration.” [State Code, Public Safety Article, § 3-107(5).]  (Emphasis added.)
  1. The General Assembly has provided by public local law that, except as provided in that public law, the provisions of the Municipal Labor Relations Article of the Baltimore City Code enacted by the city council apply to labor relations and collective bargaining between the city and the uniformed and civilian employees of the BPD. [Code of Public Local Laws, § 16-8A(a).]
  1. The public local enacted by the General Assembly for the city does not allow matters other than “direct compensation” from being submitted to binding arbitration if the city and the officers’ union are unable to reach agreement on the matters. “Direct compensation” specifically excludes issues pertaining to “disciplinary procedures, investigations and actions.”  [Code of Public Local Laws, § 16-8A(b)(3).]  In other words, even under current law, the FOP can negotiate with the Baltimore Police and Labor Commissioners over the method of selecting members of hearing boards but at the end of the day it is the city council that makes the final decision on the method of selection if the parties can’t agree.
  1. As described above, the LEOBR does not require a local government to negotiate with its police employees over the method of selecting members of hearing boards. The decision whether or not to do so is governed by the law of the local government.  Although the public local law enacted for Baltimore by the General Assembly requires the city to negotiate with the police union about issues of direct compensation, nothing in that public local law takes away the authority of the city council under the city charter and code to carve out certain exclusive management rights not involving direct compensation in order to exclude those management rights from the scope of collective bargaining
  1. The city charter gives the city council broad power to define the rights of employers and employees vis a vis collective bargaining. [City Charter, § 55(a).]  Enacting pursuant to that power the city council has carved out certain exclusive management (employer) rights.  [Baltimore City Code, Art. 12, § 3-2(a).]  The council can expand those exclusive management rights to include the right to determine the method of selecting members of hearing boards.

The most recent contracts between the city and the FOP expired on June 30, 2016.  The parties have bargained for over a year about the method of selecting members of hearings without reaching an agreement.  It is past time for the city council to act to resolve the impasse.

The council needs to pass one ordinance removing the method of selecting members of hearing boards from the scope of collecting bargaining and another ordinance that sets forth the method of selection as a matter of law.  What is the FOP going to do?  If the FOP argues state law applies then it is absolutely clear that they have no right under state law to submit the method of selection to binding arbitration.  If the FOP argues city law applies then it is absolutely clear that the city council has the right under the city charter to limit the scope of collective bargaining by establishing exclusive employer rights.  Both arguments lead to the same result:  The city council makes the final decision on the method of selection.  The city council needs to stop dithering and get to it.

Here is the flaw in what I have proposed:  It would require the mayor and city council to work together and to act decisively in the face of opposition from the FOP.  That will never happen; the political courage simply isn’t there.  The FOP continues to run the city.  The tail wags the dog in Baltimore and nothing much has changed since my op ed on that subject was published in August 2015.

March 3, 2017