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

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

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

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

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

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

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

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

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

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

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

August 29, 2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

__________________

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

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

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

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

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

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

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

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

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

August 25, 2017

The hasty decision by Maryland’s State House Trust to remove the statue of Roger B. Taney from the grounds of the State House in Annapolis was an opportunity lost. The three members of the trust’s board who voted by email in favor of removing the statue missed the chance for something becoming exceedingly rare in politics at all levels of government: An informed and civil discourse that enlightens rather than polarizes, and that promotes the sense that a decision is based on something other than raw emotion or politics.

Taney’s personal life and career as a jurist presented the perfect opportunity for a discussion on the standards by which we judge historical figures. The consensus historical view of the Calvert County native was that he was a decent and distinguished man who, if he was guilty of anything, was guilty as the chief justice of the United States of an egregious failure to rise above the prevailing legal view on the rights of African-Americans under the United States Constitution when he authored the majority decision in Dred Scott v. Sandford.

Behind much of the contemporary criticism of Taney by white Americans is a profound conceit: The notion that, if born 240 years ago in a slave-holding state, we somehow would have been nobler and more heroic than Taney when it came time to decide Dred Scott.

Taney was not an evil man; vilifying him for Dred Scott is an exercise in self-deception, an attempt to dismiss the decision, and the attitudes that it represented, as an aberration. The hard truth is that otherwise good men and women of all colors helped perpetuate the institution of human slavery. It is not an easy truth to face for whites or blacks.

Taney, who grew up on a tobacco plantation in Calvert County, was a devout Roman Catholic who considered slavery to be evil. He freed his own slaves soon after he inherited them from his father, giving pensions to those too old to work. Thirty-eight years before he wrote the opinion in Dred Scott he argued to a jury in Frederick County that slavery “is a blot on our national character. . . that must be gradually wiped away.”

As a chief justice, however, he stood firmly on the side of states’ rights and against the arrogation of power by the federal government, including the power of Congress to restrict slavery in the western territories. His record includes personal courage represented by his ruling in Ex Parte Merryman and occasional brilliance, as evidenced by his opinion in Ableman v. Booth.

His record as a jurist, however, also includes Dred Scott, decided in 1857 and widely viewed as the most toxic decision in the history of the Supreme Court. The court held that slaves were not citizens for purposes of the rights secured by the United States Constitution. Taney rendered the decision in particularly harsh language, and unnecessarily included his view that states that had abolished slavery were not entitled to free slaves “owned” by citizens of other states.

Taney’s apologists point out that Taney undoubtedly hoped that a definitive statement on the limits of federal power over the slavery question would prevent a civil war; if that was his hope, it was futile one. His opinion contains a clear indication that his own views on the “class of persons who had been imported as slaves” were not the same as the views held by the framers of the Constitution whose intention he was obliged to apply. Regardless of his intent and the content of his heart, however, the decision that he wrote in Dred Scott is an indelible stain on Taney’s reputation.

Any thoughtful discourse on removing Taney’s statue would have included a discussion of the futility and historical inaccuracy of “blaming” specific individuals for the general evil of slavery. To get past that discussion, we first must have it.

I agree with Senate President Mike Miller (D) that it was the absence of a deliberative process preceding the removal of Taney’s statue that is troublesome. I would not have been bothered at all if the outcome of such a process had resulted in a decision that the presence of the statue did more harm than good, and that the statue should be removed. At least we might have learned something from the debate that allows us to stop dwelling in the past, and move forward. What we learned instead from the email vote was that we remain incapable of a meaningful discussion about race and the legacy of slavery in Maryland.

[Published as guest commentary by Maryland Matters on August 21, 2017, but not posted to my blog until January 8, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

 

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

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

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

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

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

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

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

August 17, 2017

 

 

 

The task of persuading jurors in the City of Baltimore that they can rely on the veracity of officers of the Baltimore Police Department recently has gone from difficult to nearly impossible because reform of the department is not moving fast enough. Only dramatic changes are going to fix the problems, and only dramatic changes are going to restore the trustworthiness of BPD officers in the minds of city residents.  Meanwhile, the hole the BPD is digging for itself keeps getting deeper.

The acquittal of Richard Gibbs Jr. in June on charges including felony possession of a handgun was a warning that the lack of credibility of BPD officers was approaching crisis proportions. Two BPD officers testified that, after Mr. Gibbs was pulled over for driving with an “obliterated” license plate, they saw him reach down to the floor for a gun and then saw a gun fly onto the hood of the car. His DNA was found on the gun.

Yet the jury acquitted Mr. Gibbs after only three hours of deliberation, apparently convinced by defense arguments that the defendant’s DNA was planted on the gun and the gun planted on the scene. The president of the city’s Fraternal Order of Police said he was “stunned” by the acquittal. Experienced courtroom observers were not.

With the release in July of body-worn camera video appearing to show, depending on whom you believe, officers either fabricating or “re-enacting” the discovery of illegal drugs in a soup can, the credibility crisis officially arrived. Considering the BPD’s already tarnished reputation, the damage done by the video to the prosecution of crime in Baltimore is inestimable. Prosecutors now will be expected by jurors to prove that evidence has not been planted by police.

In March, a federal grand jury indicted seven members of the BPD’s “elite” Gun Trace Task Force on charges that were especially troubling. The United States attorney for Maryland at the time characterized the officers as nothing more than armed robbers with police badges — one more violent gang in a city saturated with violent gangs. As icing on the cake, the officers allegedly lied with impunity on their time sheets. Don’t tell me that adequate progress is being made on changing the culture at the BPD.

Too much faith is being placed in the consent decree between the city police department and the U.S. Department of Justice. While the consent decree is meant to reform the BPD after federal officials found officers engaged in a “pattern and practice” of constitutional violations, it will not accomplish structural changes that must be made. Believing that the consent decree will fix what ails the BPD is an exercise in magical thinking.

City and state officials must begin by recognizing that being a police officer in Baltimore is by far the most difficult law enforcement job in the state, and they must commit to the goal of making the officers of the BPD the best paid, trained and disciplined in Maryland. The goal is attainable if the political will exists.

City and state laws have rendered the BPD ungovernable, and those laws must be revisited to restore the authority to run the department to the police commissioner. Give the commissioner the power to enforce discipline. The Law Enforcement Officers’ Bill of Rights enacted by the General Assembly may work fine where the challenges of policing are not as great, but it has been an abject failure in the city.

The department must build up an adequate core of competent sergeants and lieutenants capable of resetting departmental culture. It is first-line supervisors who set the tone for what happens on the street, and the weakness of the department’s cadre of sergeants and lieutenants has been a problem for years. Take sergeants and lieutenants out of the same union as the officers they supervise, pay them more and hold them accountable for the performance of their subordinates.

Limit the scope of collective bargaining to compensation and benefits. Negotiating over matters of police discipline, personnel policy, assignments and the deployment of police resources has been disastrous.

Enacting the necessary reforms will be contentious. If city and state officials continue to pussyfoot around with half measures, however, don’t expect the situation to improve.

[Published as an op ed by The Baltimore Sun on August 16, 2017 but not posted to my blog until January 8, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

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

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

The relevant history.

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

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

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

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

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

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

Questions about the planned unit development (PUD) process.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 12, 2017

It is time to take the mental condition of President Donald Trump a lot more seriously. Always having what appears to be only a tenuous grasp of reality, the president is showing signs of mental and emotional deterioration at a most dangerous time. Dust off the 25th Amendment, and ask the American Psychiatric Association and the American Psychological Association to put together a panel of their best and brightest to issue an opinion to Vice President Mike Pence and the cabinet on whether the president is mentally able to “discharge the powers and duties of his office.”

I have done a variety of things in my life, from working in an underground iron ore mine and in a cardboard box factory, to serving in the Army and then practicing law. The most useful part of my career, however, for understanding what is going on in Washington, D.C. (or at Mar a Lago, as the case may be) was the time that I spent as a psychiatric social worker, trained at the University of Pittsburgh.

For years I screened psychiatric patients brought to the emergency room or mental health clinic at Ft. Meade, Maryland. I saw plenty of psychotic patients in my work there, listening to them describe various types of bizarre ideation. Sometimes the signs are subtler than others, and some patients are more guarded than others, and then you must listen carefully until a patient begins to describe what is obviously a delusion around which a patient has organized a part of his or her life. With President Donald Trump, the signs are right out in the open.

Like almost everyone else familiar with psychopathology, I believe that our president has narcissistic personality disorder. John Gartner, Ph.D, a psychologist who taught at the Johns Hopkins University School of Medicine for 20 years, has described Mr. Trump’s condition as “malignant narcissism” and believes that it renders him dangerous and unfit to be president. It is a condition that could worsen if dementia begins to affect the president, who is 71 years old and has a family history that includes Alzheimer’s Disease.

Many other mental health professionals have joined Dr. Gartner in recommending that Mr. Trump be removed from office under the 25th Amendment, warning that his condition makes it almost impossible for him to distinguish reality from fancy and to control his impulses. Dr. Gartner describes Mr. Trump’s condition as lying in the grey area between sanity and insanity. Dr. Gartner is a serious clinician and scholar. Read his article in USA Today if you want to feel a chill run down your spine.

Today’s tweets from the president indicate that the president may be decompensating – i.e., his mental state going from bad to worse, to the edge of psychosis. The first tweet goading Senate Majority Leader Mitch McConnell to “try harder” on repealing and replacing the Affordable Care Act was bad enough, displaying profound naivete and an abysmal lack of judgment.

The second tweet doubling down on his threats against North Korean dictator Kim Jong Un was well over the edge. Throw in his statement at a press conference thanking Russian President Vladimir Putin for helping Mr. Trump trim the payroll by throwing 755 U.S. diplomats out of Russia and you are starting to build a pretty good case that the president is going off his rocker.

The apparent failure of Mr. Trump’s first threat to intimidate North Korea apparently was more than Mr. Trump’s ego could withstand. After Mr. Trump warned North Korea that further threats to attack the United States would be met with “fire and fury” the regime turned right around and threatened to launch a strike on Guam, describing the fire and fury comments from the president as a “load of nonsense.” Mr. Trump responded by doubling down on his threat, tweeting today that perhaps his first threat was not “tough enough,” and making clear that the door remains open for a preemptive strike by the United States.

No rational person would have believed that, given the apparent failure of his first threat to end the bellicose language from North Korea, the logical thing to do was to try to make an even bigger, more ominous threat. Mr. Trump truly believes that can lie, bully or bluster his way out of every situation. Mr. Trump’s reflex in almost every situation is to up the rhetorical ante. In this case not only is it irrational, it is highly dangerous.

The biggest threat of a nuclear war comes from a perception by Kim Jong Un that a preemptive nuclear attack on his country is imminent. There is nothing to indicate that the dictator is suicidal and the Chinese certainly have told him in no uncertain terms, if his sycophants have not, that precipitating a nuclear exchange with the U.S. would lead to the devastation of North Korea. There is, however, a very real danger that the young and unstable Kim Jong Un could panic if he believes that all is about to be lost and initiate a nuclear attack – what diplomats euphemistically refer to as a “miscalculation.”

Mr. Trump’s joking reference to the expulsion of U.S. diplomats was almost as bizarre. There is of course his persistent reluctance to criticize Russia and Putin, but making light of what is not a humorous situation was inappropriate, and almost pathologically so. The attempt by Russia to interfere in our election, and their disproportionate response to our sanctions, are not funny. Mr. Trump displayed an almost fawning weakness in the face of Russian hostility on one hand, and an exaggerated, overaggressive reaction to North Korean rhetoric on the other. Something is wrong.

The so-called Goldwater Rule has discouraged psychiatrists from joining other mental health professionals in speaking out about Mr. Trump’s mental illness. The Goldwater Rule was promulgated as an ethical principle by the American Psychiatric Association in 1973 in response to concerns about liberal psychiatrists being asked to render their opinions on the mental fitness of conservative presidential candidate Barry Goldwater in 1964. In general, the principle prohibits psychiatrists from rendering public opinions on patients that they have not examined and who have not authorized them to make such statements.

The rule was recently challenged by the American Psychoanalytic Association, which stated that it no longer considered its members bound by the restriction. The American Psychiatric Association, however, tightened the rule in March, clarifying that the rule is broken by an analysis of behavior even if no diagnostic label is used. Regardless, I think we are going to see more psychiatrists speaking out, under what mental health professionals refer to as the “duty to warn.”

Barry Goldwater was a perfectly sane man who lived a very normal life, but who happened to have political views that were out of the mainstream at the time. It was an abuse by politically-motivated psychiatrists to allow themselves to be drawn into an attempt to question his mental stability.

This is different. President Trump is not normal, and one could argue that experts with knowledge in human behavior have a duty to share their concerns with members of the public, and especially with those persons who have the power to remove the president from office.  And to do so before it’s too late.

August 10, 2017

Baltimore County Councilwoman Vicki Almond, who has been on the County Council since December 2010, has announced that she will introduce a bill that eliminates a controversial provision of Baltimore County pension law dating back to May 2010.  Why now?  In my opinion, the bill is a big fat red herring intended to distract attention from unfinished business involving the Executive Benefit Policy, a policy made public for the first time in my op ed that appeared in the Baltimore Sun on May 16^th.

Since the publication of the policy, and especially since the subsequent publication by the Sun of an editorial calling for the practice of severance pay to be ended, Baltimore County politicians running for office in 2018 have fallen all over themselves with expressions of concern about the way in which backroom deals have been used to boost the benefits of high-ranking officials already receiving handsome salaries and entitled to extremely generous pensions.  The Sun’s recent editorial also referred to the 2010 sweetheart pension deal addressed, perhaps not coincidentally, by Ms. Almond’s bill.

County Administrative Officer Fred Homan revised the Executive Benefit Policy on July 21^st and Mr. Kamenetz scrapped it entirely less than a week later, on July 26^th.  On July 27^th the County Council amended the Legislative Benefits Policy, a similar policy applicable to legislative branch employees, to eliminate severance pay.  Those were the easy things to do.  The final thing that needs to done may end up being more painful.

The unfinished business with the Executive Benefit Policy is an audit of the administration of the Executive Benefit Policy before it was terminated.  A change made to the policy by Mr. Homan on July 21^st was a tacit admission that one or more department heads in the administration of County Executive Kevin Kamenetz are accruing vacation leave in violation of a provision of the policy that has been in effect since 1995.

That is significant, in part because the prohibition against department heads earning and accruing leave was used as one of the justifications for awarding severance pay to those department heads; allowing department heads to accrue leave despite the prohibition would put the lie to that justification.  Employees are paid for unused vacation leave at the time they terminate County employment, and such payments constitute compensation for County service requiring approval by law.

It also is significant because, if any department heads were paid for unused leave accrued in violation of the policy, a misappropriation of County funds has taken place and a criminal investigation will be necessary.  When you consider that just one wrongful payout of unused vacation leave to a veteran County official is likely to cost the County tens of thousands of dollars you realize that we are not dealing with chump change.      

Even in Baltimore County it is a crime to put taxpayer’s money in the pocket of a County official not entitled to it.  I have included a more detailed explanation of the issue at the bottom of this post.

We won’t know the extent of the problem until an audit is done.  Remember, the Executive Benefit Policy was drafted and administered out of public view for decades.  In my experience, “exceptions” to such informal, secretive policies are like termites – if you find one, there are likely to be more.  What are the chances that in the 22 years since the accrual of unused vacation leave was banned there has been only one “exception” (i.e., violation) allowing a department to earn and accrue vacation leave?

It is patently obvious that some members of the County Council are afraid to dig too deeply into this matter.  They know that they share the responsibility for whatever is found because they abrogated their duty under the County Charter to regulate the compensation of all County employees by allowing important components of that compensation for high-ranking officials to be decided by the County Administrative Officer through the now-defunct Executive Benefit Policy.

The County Council has the power under the County Charter to pass a resolution directing the County Auditor to perform an audit.  Some people, including the County Executive and his allies on the County Council, apparently don’t want an audit done.  I was informed by a Council staffer that opposition to the audit follows party lines, with Democrats on the County Council reluctant to do anything that could embarrass Mr. Kamenetz, a Democrat who is entertaining the idea of running for governor next year.  Ms. Almond is a Democrat.  She can prove me wrong by introducing a resolution directing an audit.

Why am I suspicious about Ms. Almond’s motives?  This is why:

Councilwoman Almond’s bill would undo provisions of County Council Bill No. 30-10, a bill approved by members of a County Council that included Mr. Kamenetz.  She touted her bill to the Sun by pointing out how County Executive Kamenetz will benefit from the provisions that he helped to enact.  The following appeared in the Sun article:  

“Almond’s office has estimated that once Kamenetz finishes his second term as county executive next year, he will be eligible for a $48,000 annual pension from his 16 years on the County Council, a $70,000 annual pension from his eight years as county executive, and a lump-sum payout of at least $384,000 that represents his “banked” council pension while he was executive.”

Here is the thing about that:  Ms. Almond waited too long to do anything about the windfall for Mr. Kamenetz, and she must know that.  Her bill won’t do a thing to change the County Executive’s benefit, because it can’t.

Mr. Kamenetz is already legally vested in both pensions.  Under County law he vested in the second pension that he is earning as County Executive as soon as he finished his first term of office in December 2014.  You’re three years too late, Councilwoman Almond, and there’s no excuse.

The Executive Benefit Policy was successfully kept out of public view until I obtained it through a Public Information Act request.  The controversial provisions of Bill No. 30-10 at issue in Ms. Almond’s bill may have been snuck through by being added at the last minute to a large pension “reform” bill, but they certainly did not escape public notice. In fact, seldom has any measure in Baltimore County attracted as much negative attention in recent years, once people figured out what the County Council had done.

The Sun ran an editorial in 2011 urging its repeal, and followed that with another editorial in 2012 critical of Mr. Kamenetz that referred to the deal.  Former Baltimore County Attorney Virginia Barnhart wrote a scathing letter to the editor in 2011 questioning the legality of the “sweetheart pension deal” and calling on the new County Council – which included Ms. Almond – to repeal it.  I’ve also included a more detailed description of the controversial provisions of Bill No. 30-10 at the end of this post.

Where have you been, Councilwoman Almond?  If you had acted before December 2014 you would have been able to do something about the County Executive’s benefit, about which you can now only complain.

Ms. Almond expresses new-found concern about the “behind closed doors” way in which Baltimore County tends to operate, citing the Executive Benefit Policy as an example.  She doesn’t, however, deny knowledge of the policy, which has been in effect since long before she took office in 2010.  In fact, since at least 1997 there has been a parallel policy called the Legislative Benefits Policy for appointed employees of the legislative branch, also approved behind closed doors.

Ms. Almond also expresses concern about the legality of placing control over who can “double dip” under the provisions of Bill No. 30-10 in the hands of the County Administrative Officer – six years after a former Baltimore County Attorney brought the issue to her attention.  C’mon, Ms. Almond, we weren’t born yesterday, even though that is about when you apparently began paying attention to the way Baltimore County has been doing business for decades.

There’s a very old trick used by politicians at all levels of government when they feel the need to create the appearance of doing something about a problem, but don’t want to upset the apple cart by doing what is necessary to solve the problem.  In my opinion, that is what is going on here with the bill proposed by Ms. Almond.  It appears that Ms. Almond and other members of the County Council are willing to make noise, but then stop short of doing anything of substance that gets them on the wrong side of Mr. Kamenetz.  Again, I’d love to see them prove me wrong.

A lot of people deserve credit for pushing the Baltimore County Council to start moving in the right direction.  Alison Knezevich of the Sun deserves credit for getting the ball rolling by reporting on the “severance package” paid to former Police Chief Jim Johnson, as does Pam Wood for continuing to report on the issue.  I deserve credit only for having both time on my hands and a cynicism that moved me to obtain the Executive Benefit Policy and the Legislative Benefits Policy through Public Information Act requests.  It wasn’t the first time I’d come across policies of dubious legality and inconsistent application; they get easier to sniff out with experience.

The Sun editorial board gets its share of the credit, and a lot of credit goes to the Baltimore County Progressive Democrats Club, which sent a letter to the County Council and County Executive urging them to act on the severance pay issue.  And, of course, there is Lodge #4 of the Fraternal Order of Police (FOP), the union that represents rank-and-file members of the Baltimore County Police Department and has been treated rather roughly by Messrs. Homan and Kamenetz over the years.

The FOP was instrumental in bringing the sweetheart pension deal hidden in Bill No. 30-10 to the attention of the public in 2010, and it has filed its own Public Information Act requests in the current matter.  The County knew that the severance pay provisions of both the Executive Benefit Policy and the Legislative Benefits Policy had legal feet of clay, and in my opinion both were jettisoned under the threat of litigation and political embarrassment – not out of any random “good government” impulses.

The Baltimore County Council, on the other hand, deserves credit for nothing at all until it finishes its business with the Executive Benefit Policy by ordering an audit.  Until it does that there will be a cloud hanging over the head of Council members.

I’m convinced that, at least at this point, some members of the County Council are going to do everything they can to avoid an audit to protect both themselves and the County Executive from embarrassment. Ms. Almond’s bill is a useful distraction.  Another member of the Council told me that the Council needs a “few months” to talk about an audit. Why?  In the hope that the idea will just go away?  What’s there to talk about?

I am not accusing anyone of impropriety in this particular matter, but I will tell you what can happen when audits are delayed.  Evidence disappears and statutes of limitation run out.  Just get it done, Baltimore County Council – order an audit, an action which, under the circumstances, would be a no-brainer in every other charter county in this state.

________________

Here is a more detailed explanation of why I believe that an audit of the Executive Benefit Policy as it was administered until its date of termination is necessary.

Under criticism for approving a policy of which he was one of the beneficiaries, County Administrative Officer Fred Homan issued a revised Executive Benefit on July 21, 2017.  In addition to removing his own position from the scope of the policy he also added language removing any “appointed department head who accrues vacation leave, notwithstanding the change in policy provided for under the heading ‘Vacation, Personal and Compensatory Leave’ of this Executive Benefit Policy.”

Here’s the significance of that:  There isn’t supposed to be an appointed department head who accrues vacation leave.  It was the first time that any reference had been made in the policy to department heads accruing vacation leave “notwithstanding” the prohibition against doing so that had been in the policy for 22 years.

The “change in policy” described in the “Vacation, Personal and Compensatory” paragraph occurred in 1995 and ended the accrual of vacation leave by department heads as of the end of 1994.  The change made by Mr. Homan was a tacit admission that one or more department heads have continued to earn and accrue vacation leave despite the fact the policy expressly prohibits it, and has prohibited it since 1995.  It was a stunning revelation.

Why else would he add that language other than to acknowledge that the policy had been violated?  I am not suggesting that he was responsible for allowing any violations of the policy to occur but it does appear that he was aware of the problem – and maybe he wanted to get out ahead of it before it was discovered in some other manner.  We won’t know until an audit is done.  No one is talking at this point.

It’s bad enough if current department heads are accruing leave with the intent that they would be able to cash it out upon leaving County employment. If, however, any former department head received cash for leave earned after 1994, there is a very serious problem indeed, because then we are talking about the misappropriation of taxpayer money by whomever approved such a payout.  If that occurred, it would require that a criminal investigation follow the audit.

I prepared a lengthy analysis of the historical relationship in the Executive Benefit Policy between payouts for unused vacation leave and the eligibility for and amount of severance pay.  At one point in time, the two were directly related in the policy.  A link to my memo appears below.  The discontinuance of the accrual of unused vacation leave in 1995 has been used as one justification for awarding department heads severance pay when they leave County government.

Less than a week after Mr. Homan revised the policy, Mr. Kamenetz scrapped it entirely.  I suspect that Mr. Kamenetz recognized the implications of Mr. Homan’s admission that one or more department heads are accruing vacation leave, and that Mr. Kamenetz wants this whole thing to go away.  It won’t.                                                                                    ___________________

The following is more detail on the provisions of Bill No. 30-10 referred to by the Sun (and many others) as a “sweetheart pension deal.”

In May 2010, the Baltimore County Council approved Bill No. 30-10.  An amendment added at the final hearing allows employees of the County who have retired from County service to return to service and, if approved by the County Administrative Officer, continue to receive the pension benefits from their initial retirements while collecting the salaries for their new positions.

Pension payments from the first retirement are not paid to an employee during his or her second period of employment with the County but are “banked” in a “deferral account” where, if treated in the manner as the County’s Deferred Retirement Option Plan (DROP), they earn interest at the rate of 5%.  Upon the employee’s second retirement from the County the money in the deferral account is paid to the employee in a lump sun.

But that is not the end of it.  What distinguishes this benefit from the typical DROP benefit (and DROP programs generally are limited in most jurisdictions to uniformed public safety employees, and are not available to other employees) is that the employee is eligible to earn a second pension based on the employee’s service in his or her new position, and therefore receive two pensions upon final retirement from County service.  In other words, the employee receives a lump sum payout from the deferral account, payments from his or her first pension resume, and the employee also receives a second pension based on his or her second period of service with the County.

The provision is a red-headed Eskimo, among other things.  It is limited to employees hired before July 1, 2007, and to employees who return to positions other than the positions from which they retired; in other words, it was ideally suited for sitting members of the County Council in 2010 who might end up in positions in the Executive Branch during the next administration.  Indeed, four of the Council members who voted for the sweetheart deal in 2010 stood to benefit from it: Kevin Kamenetz, elected County Executive later that year; Sam Moxley, a legislative aide to Kamenetz; Vince Gardina, now the county’s top environmental official; and Johnny Olszewski Sr., who worked for the county recreation department after leaving the council.

Councilwoman Almond estimates that when Mr. Kamenetz finishes his second term as County Executive next year, he will be eligible for a $48,000 annual pension from his 16 years on the County Council, a $70,000 annual pension from his eight years as County Executive and a lump-sum payout of at least $384,000 that represents the amount of his Council pension that was “banked” in a deferral account while he was County Executive.  Although a lump-sum payout of $384,000 and an annual pension of $118,000 pales by comparison to the pensions to which County Administrative Officer Fred Homan and other high-ranking officials of the Kamenetz administration will be entitled, it is not a bad return for 24 years of work, 16 of which were part-time.

August 2, 2017

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