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

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