As The Sun’s Alison Knezevich reported, a coalition of civil rights groups is raising concerns about police departments — including Baltimore city’s and county’s — that allow officers to review recordings from body-worn cameras prior to writing incident reports, pointing to studies that claim “watching video replays can easily change people’s memories, often subconsciously.”

I have no problem with the science cited by the coalition. I do have a problem, however, with the message the group is sending, which is that officers cannot be trusted to use body cameras in a constructive and truth-seeking manner.

This is about more than managing the use of technology. This is about managing people. Police officers, like the rest of us, want and deserve to be treated by their employers and others as if they are reliable and honest until proven otherwise. The consequences of treating employees as if they are inherently untrustworthy can destroy the morale of any organization, including a police department.

I have been a strong advocate for the accountability of public servants, including police officers. Lying is especially offensive, and there is nothing as worthless as a police officer who lacks credibility. The first deliberate misstatement on a report, affidavit for search warrant, etc., and an officer should be terminated. Immediately.

On the other hand, routinely pitting an officer’s memory-based report against camera footage in a purported quest for objective truth has a distinct gotcha feel to it, as if the object is to trip up the officer. The purpose of a body-worn camera is to assist an officer in recording and reporting facts. If an officer uses footage to refresh or correct his or her memory about the details of an incident, and notes that use in the report, so be it.

The vagaries of memory and eyewitness testimony are well-known, even for trained and experienced officers. We should encourage officers to use cameras as tools to compensate for those vagaries, rather than promote the use of cameras as weapons to turn against officers at trial, tearing down their credibility — which is exactly what civil rights advocates did two years ago, through a recommendation to prohibit officers from viewing recordings before writing reports.

It is a defense attorney’s dream to catch a discrepancy in an officer’s report, and use it when cross-examining the officer at trial. One innocent mistake, and the officer’s credibility on all other matters is called into question, fairness and justice notwithstanding.

The so-called “clean reporting” system now being recommended — in which an officer prepares one report before viewing footage, and another report after viewing footage — is no better. It would, however, be a boon to a defense attorney too lazy to prepare his or her own cross-examination, because the officer will already have laid it out in writing.

The policies and procedures adopted by the Baltimore Police Department strike a reasonable balance between respecting an officer’s trustworthiness and scrutinizing an officer’s actions when necessary to do so. An officer may use camera footage for assistance when preparing a report on a routine incident. If an officer is under criminal investigation or is involved in an in-custody death or serious use-of-force incident, however, the balance shifts, and the officer cannot view the footage before preparing a report.

I have great respect for organizations in the coalition like the American Civil Liberties Union and the NAACP Legal Defense Fund. The reality, however, is that they generally find themselves in an adversarial relationship with law enforcement, and their recommendations reflect that. It would be a serious mistake to replicate that adversarial relationship in the management of police departments.

The path back to credibility and trust will be a long one for departments like Baltimore’s and requires building relationships of mutual respect between officers and their commanders. To achieve that, departments cannot treat officers who have done no wrong as no more reliable or truthful than the criminals that they help take off the streets.

[Published as an op ed by The Baltimore Sun on November 28, 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.]

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

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

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

Background.

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

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

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

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

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

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

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

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

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

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

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

The alleged threats against Councilman David Marks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The removal of the trees.

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

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

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

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

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

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

“That has nothing directly to do with the fact that the county owns the properties, Sir. That would be at the point that the property would transfer.”

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

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

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

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

The use of County funds to cut down the trees.

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

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

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

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

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

Non-compliance with State and County forest conservation laws.

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

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

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

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

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

The secret extension of the contract of sale.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Caves Valley connection.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

***********

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

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

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

November 19, 2017

 

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

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

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

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

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

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

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

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

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

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

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

November 14, 2017

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

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

Dear Secretary Belton:

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

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

Summary of allegations.

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

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

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

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

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

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

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

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

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

Additional facts.

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

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

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

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

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

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

“That has nothing directly to do with the fact that the county owns the properties, Sir. That would be at the point that the property would transfer.”

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

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

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

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

Conclusion.

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

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

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

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

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

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

Sincerely,

/s/

David A. Plymyer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 15, 2017

Ltr Balt County Council 11 12 17

Memo, grounds for audit 9 21 17

 

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

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

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

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

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

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

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

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

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

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

November 9, 2017