Without changing more than the commissioner, the BPD will remain on course for a rendezvous with an iceberg.

I wish the absolute best of luck to newly-appointed Baltimore Police Commissioner Darryl De Sousa. What a blessing it would be for Baltimore to once again be a safe city to live in, visit, and enjoy. It would lift a terrible cloud over a great city. On the other hand, as I am often reminded: This is Baltimore, hon. It pays not to be too optimistic.

Far be it from me to throw cold water on the enthusiasm over his appointment to replace Kevin Davis, but here is the note of realism that I hope to interject: If nothing is done other than change the captain of the ship, the Baltimore Police Department (BPD) will remain on course for its rendezvous with an iceberg.

I am not talking about a change in police strategy or tactics, per se. It remains to be seen exactly what De Sousa will do differently, but I am willing to assume that there will be the return to more focused, proactive policing that many in the law enforcement community have urged. It sounds as if the new commissioner starts off with the confidence of his officers, and that is a positive development.

What I am talking about is altering the culture of corruption and mediocrity that has gripped the BPD for a long time.  It grated on the nerves of Mr. Davis when I and others complained about the ineffectiveness of discipline and qualitative performance management within his department. In his final interview as commissioner, he complained that “the whole notion that accountability is not underway is crap.”

At the same time, however, Mr. Davis admitted that the BPD “is a dysfunctional police department.”  Davis added:  “I’m telling you as a person who has seen what a healthy organization looks like. This is not one of them.” He also said that the BPD has a “culture that looks at accountability as a four-letter word.”

Ironically, the language used by Mr. Davis in his final days was remarkably like language used by his predecessor, Anthony Batts, in his last days as commissioner. Shortly before he was fired in 2015, Mr. Batts lamented that when he came to the BPD as commissioner in 2012 “the cycle of scandal, corruption and malfeasance [within the department] seemed to be continuing without abatement.” He predicted that his reform efforts would see more officers arrested or forced out.

My fear is that Commissioner De Sousa made the same mistake made by his predecessor.  To my knowledge, Mr. Davis did not insist, as a condition of taking the job as commissioner in July 2015, that he be given the tools necessary to turn the department around in a timely fashion. By not doing so, the failure of Mr. Davis as police commissioner was pre-ordained. Individual personalities and skills make a difference, but not enough to overcome structural deficiencies so profound that any commissioner lacks definitive influence over the culture of the department – and it is the culture that must be changed.

So, if Commissioner De Sousa didn’t make it clear to city officials, I will say it for him: Don’t expect him to make enough of a difference to really matter unless he is given adequate authority to run the department.  By run the department, I mean to be fully in charge of who stays, who goes, and who does what within the department.

There are two primary impediments to restoring to whomever is the Baltimore police commissioner the power to control his or her own department, and the hurdles are interrelated: The first impediment is a statewide Law Enforcement Officers’ Bill of Rights (LEOBR) that is generally considered the most restrictive in the country. By restrictive, I mean that the Maryland LEOBR poses the highest bar to the imposition of discipline by a police chief. By design, it slows the disciplinary process to a crawl and assures that only the very worst officers get terminated.

The last line in a story by Justin Fenton of the Baltimore Sun makes a key point. In trying to answer the question why officers against whom allegations of misconduct had been made nevertheless were named to initiatives such as the now-infamous gun trace task force, a former internal affairs supervisor observed: “The [internal affairs] system was slower than the movement of the rest of the agency.” That is another way of saying that the disciplinary process takes so long that it is almost irrelevant to management of the department.

The second impediment is the inordinate influence asserted by the both statewide and local police unions. On the state level, the Fraternal Order of Police (FOP) and other representatives of law enforcement officers have fought changes to the LEOBR. On the local level, the mayor and city council are so cowed by Lodge No. 3 of the FOP that they have subjected far too much control over the operations of the BPD to collective bargaining.

The editorial statement by the Maryland Daily Record in January 2016 that the BPD could not be reformed unless someone managed to “dismantle the police union’s grip on city government” is as true now as it was then. The grip is as tight as ever.

I’ve been through the following litany of things that must be done so many times that it bores even me to repeat it: Scrap the Law Enforcement Officers’ Bill of Rights (LEOBR) as currently written, at least as it applies to the BPD; give the commissioner the sole power to decide, in the first instance, whether an officer’s actions or inactions merit discipline and, if so, what that discipline should be.

To anyone who says that the LEOBR is not a problem for the BPD, I say this: You either are a cop with an agenda or you have no idea what you are talking about, or both. It’s not the only problem, but it is the problem that makes solving all the others too hard.  If the internal disciplinary system isn’t fixed, the commissioner will continue to have to rely on the FBI and the United States Attorney to address misconduct within the BPD.

Something else that needs to be done is to get sergeants and lieutenants out of the same union as the rank-and-file officers they supervise. Increase their pay significantly and, in return, make them at-will employees subject to being fired with or without cause by the commissioner.

I’ve gone on ad nauseam about the fatal weakness of the department at the level of sergeant and lieutenant. I first suggested the idea that the commissioner needed the power to clean up the mess at the front-line supervisory level in an op-ed published in August, 2015. It was a point I emphasized again a year later in another op-ed. Both were published well before the United States Attorney for the District of Maryland announced the indictment of members of the BPD’s “elite” gun trace task force in March, 2017.

What is the most jarring phenomenon that emerged from the saga of the gun trace task force, probably the biggest single scandal in the modern history of the BPD? For me, it is the role played by Sergeants Thomas Allers and Wayne Jenkins, supervisors of the unit.

These were the men expected to keep their subordinates within the bounds of the law. As I described in one of the op eds referenced above, sergeants are the guardians of the culture of the BPD. In the case of the gun trace task force, they were the ringleaders of a ruthless, organized criminal enterprise.

How can a police force function with supervisors like Sergeants Allers and Jenkins? Answer: It can’t. Those two may be the worst of the worst, but on what basis would you conclude that two sergeants in a hand-picked “elite” unit are the only examples of a structural weakness in the department? Read the DOJ report about the quality of the field-level supervision within the BPD.

The focus of this post is on the task of reducing corruption and other abuses within the BPD. There is of course another monumental task at hand: Reducing the rate of murder and other violent crime in the city. Make no mistake about it, the two tasks are related.

Mr. Davis announced the general end of plainclothes units after the gun trace task force indictments, stating that they were doing more harm than good. Although his claim that uniformed teams can be equally effective at performing certain tasks is debatable, it is hard to fault his concern over what he described as a “cutting-corners mindset.”

Current and former members of the BPD tend to look back on the now-defunct Violent Crimes Impact Division, or VCID, with a certain degree of nostalgia. The plainclothes unit is widely credited with helping reduce homicides to their lowest level in decades under former Commissioner Fred Bealefeld in 2011. Even assuming that is true, it is also true that the VCID had its own history of running amok.

It is axiomatic that the more aggressive the tactics used by police, the better trained and supervised the officers need to be to stay within constitutional limits on their powers; the closer you get to the line, the more discipline and self-control that you need to avoid stepping over it. And herein lies a problem right now for the BPD: There aren’t enough sergeants and lieutenants that can be trusted with the responsibility for supervising officers under those circumstances.

Commissioner DeSousa and his commanders need the power to run the rule over all the current sergeants and lieutenants, deciding which to keep and which to force out. Is that a draconian measure? Yes, but it is a necessary one. It is the only way to cut out the cancer before it is too late.

Mr. Davis certainly was correct about the unhealthiness of the department, but here is where Mr. Davis was wrong about accountability in the department: Accountability may be “underway,” but it is not underway quickly or comprehensively enough to get ahead of the corruption curve. The sickness of the culture has been spreading faster than either he or his predecessor could get rid of it.

To me the most telling sign of the diseased culture is the ubiquitous lying. Officers lying on the stand, lying on statements of charges and search warrant affidavits, lying on time sheets, lying about evidence depicted on body cameras, and lying about each other’s conduct.

A story reported the other day by the Sun’s Kevin Rector was another revealing one. He described testimony by an officer that was shown to be false upon cross-examination. What struck me was the casual and careless nature of the officer’s claim that he had seen the defendant frequent a location during a time when he should have known that the defendant was in prison.

My point is not the officers should be more careful when lying. My point is that spewing falsehoods almost seems like second nature, with little regard for the consequences. Mr. Davis may be right that accountability is a four-letter word. The duty of candor, on the other hand, seems to be regarded as joke.

Commissioner De Sousa needs to target the mendacity that pervades the BPD directly and immediately. At this point, there is only one way to do that before the department self-destructs completely: Zero tolerance for lying. Establish a duty of candor for all officers toward their superiors and other elements of the criminal justice system, and get rid of officers who violate it.

The appointment of Commissioner De Sousa is an opportunity for positive change. It also poses risks, one of which is that city and state leaders assume that Commissioner De Sousa can succeed where Mr. Davis failed without giving Commissioner De Sousa the tools that they should have given to Mr. Davis.

Ironically, that risk could be made worse by a downtown in the murder rate. That doesn’t mean that I wouldn’t welcome such a development; it does mean, however, that we should recognize two things. The first is that murder rates generally are cyclical, and Baltimore’s is statistically unlikely to trend consistently upward, regardless of the quality of the policing. In other words, we could have a downturn that is welcome, but serendipitous.  If that happens, we can’t let it fool us into believing that the problems with the BPD have been solved.

The second is that, if the city and state do not fix the structural deficiencies that underlie the dysfunctional culture of the BPD, the corruption that has plagued the department for decades will continue. If the changes are not made and Commissioner De Sousa fails, his failure will be a collective one, shared by the mayor and city council and the General Assembly – just like the failure of Mr. Davis.

January 22, 2018

Will Towson Row funding come back to haunt Baltimore Co.?

In December, the Baltimore County Council tried to kickstart the stalled Towson Row development project. The council, by a 4-3 vote, approved a package of financial assistance to the private developers of the project by ratifying a “County Funding Agreement” signed by County Administrative Officer Fred Homan. The package included a $16.5 million grant (styled a “hotel tax advance”) and a $26.5 million loan (styled a “tax credit advance”).

County Executive Kevin Kamenetz pushed the measure through the council in a heated rush. He gave the proposal to the council on December 4th and the council approved it on December 18th. The problem with the package of financial assistance approved by the council is that, in its haste, the county took a shortcut around a provision of the County Code. Whether that will come back to haunt the county – and the developers – remains to be seen.

Brian Gibbons, chairman and CEO of Greenberg Gibbons, one of the developers, told the council that the county financing was necessary to attract investment from a California pension fund and make the project work. Towson Row would remain dormant without the money.

The crater in the heart of Towson where Towson Row is supposed to be became a political crisis for Mr. Kamenetz, a candidate for governor. He had touted the massive 1.2 million square foot development as the centerpiece of his “It’s Towson’s Time” initiative, and representative of his success in redeveloping existing communities.

Mr. Kamenetz scarcely could afford to have a barren construction site become a symbol of his gubernatorial campaign. Time was of the essence; the county needed to move quickly – apparently too quickly to follow the process set forth in county law.

Title 10 of Article 10 of the Baltimore County Code establishes the Economic Development Revolving Financing Fund. The title confers broad authority on the county to promote economic development through grants and loans. The grants and loans may be used to finance the purchase of land and construction of buildings.

The law requires the submission of an application including information on the need for the county assistance, the financial ability of the applicant, proposed costs and expenditure, and, in the case of a loan, sources of repayment and security for the transaction. Under the law, the county’s Director of Economic and Workforce Development “shall review financial assistance applications for need and financial ability of the applicant; and . . . may approve a financial assistance application up to the amount requested, if sufficient monies exist in the fund.”


PIA request

In response to my request under the Maryland Public Information Act, Will Anderson, the Director of Economic and Workforce Development, confirmed that no application was submitted under Title 10 by the developers of Towson Row. Mr. Anderson prepared no report on the “need and financial ability of the applicants.” In other words, the request for and approval of the financial assistance took place outside of the legal process enacted for that very purpose.

The legality of the financing package rises or falls on whether the Baltimore County administrative officer has the authority to contractually bind the county to make grants and loans to real estate developers independent of the process set forth in Title 10 of Article 10 of the County Code. If he has such authority, I can’t find it anywhere in state or county law. County Attorney Michael Field has ignored my invitations to point out the authority to me.

The council did not ratify the agreement by enacting a law approving it; the agreement was not approved by either an ordinance or resolution. Instead, the council used an informal administrative procedure that it uses to approve contracts to purchase goods and services. If the execution of the funding agreement by the county administrative officer was ultra vires, the ratification by administrative action of the council cannot save it.

In Tuxedo Cheverly Volunteer Fire Co., Inc. v. Prince George’s County, 39 Md. App. 322 (1978), the Maryland Court of Special Appeals cited “McQuillin on Municipal Corporations” for the following principle:

“The mode of contracting, as prescribed by law, is the measure of the municipality’s power to contract, and is exclusive. A specific designation of the manner in which contracts by municipal corporations shall be made operates as a limitation upon any general contractual power which is conferred.”

The Baltimore County Code prescribes a detailed process for approving grant and loan agreements to assure that the interests of the county and its taxpayers are protected. What made this county executive and county council believe that they could bypass that process?

There was widespread and vehement citizen opposition to the county financing package for Towson Row. Time will tell whether the financing package is challenged by a taxpayer’s suit. If it is, Mr. Kamenetz may come to regret the haste with which he proceeded.

[Published as an op ed by The Daily Record on January 18, 2018 but not posted to my blog until June 1, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore youth fund bill lacks oversight provisions.

The residents of Baltimore need the Children and Youth Fund to succeed. Dependent on financial help from outside the city, the city government needs to demonstrate to its state, federal and private benefactors that it is a good steward of taxpayers’ money. For either of those two things to occur, the Baltimore City Council must do better than Council Bill 17-0163, passed on Dec.7th.

Absent from the bill are requirements for openness, transparency and accountability in the distribution of money from the fund. Nothing in the bill makes the entities responsible for deciding which organizations will receive grants from the fund subject to the Open Meetings Act, Public Information Act or city auditing requirements. That must be fixed.

The Children and Youth Fund was approved by city voters as a charter amendment in 2016. It earmarks at least $0.03 for every $100 of assessable property value in the city “to be used exclusively for purposes of establishing new and augmenting existing programs for and services to the children and youth of this city.” Currently, that comes to about $12 million each year.

Bill 17-0163 provides that an “interim fiscal agent,” expected to be Associated Black Charities, will administer the distribution of money for the next year or two. A “permanent intermediary” will manage distribution on a long-term basis.

Lester Davis, deputy chief of staff for Council President Bernard C. “Jack” Young, assured me that issues such as openness and transparency will be addressed in a memorandum of understanding. I believe him, but those requirements should be in the law, not subject to negotiation.

It is the provisions in the bill regarding the permanent intermediary that are most problematic, if only because they are so vague. The bill states little more than that the interim fiscal agent will “establish” the permanent intermediary, whatever that means. No mention is made of approval by the mayor and City Council of the organizational structure established by the interim fiscal agent.

Material prepared for the council by Adam Jackson, co-chairman of the task force on the bill convened by Mr. Young, suggests that the permanent intermediary should be an “independent organization” with an “independent governing body” that “will be appointed via the Executive Nominations process of the City Council.” The bill itself is silent on the nature of the permanent intermediary.

Mr. Davis told me that the structure of the permanent intermediary is a work in progress that will “evolve” as the interim fiscal agent does its work. My suggestion is that, before things evolve too far, the idea of an independent organization doling out property tax revenues deposited into the Children and Youth Fund be scrapped.

The permanent intermediary will have its hands full. Under the proposed grant-making criteria described to the council in material prepared by John Brothers, the other co-chairman of the task force, grants can fund “once-off, pilot or seed projects and/or programs.” Grants may be awarded to organizations that serve “an area as small as one block, a census tract or any neighborhood or community that they can outline.”

That’s fine, but dividing grant money among smaller, grassroots organizations without proven track records exponentially increases the effort necessary to make sure money is properly spent. It requires more vetting at the front end and more auditing at the back end, and compounds the task of evaluating the success of the grant-funded programs and services.

Mr. Jackson stated at a forum at Johns Hopkins University in April that the intent was to upend the conventional strategy of directing funding through “big-box, white-corporate institutions” not necessarily focused on “helping black people find their own destinies.” Mr. Davis acknowledged at the same forum that “we didn’t want to do business as usual.”

At least doing business as usual within city government involves checks and balances on expenditure decisions. In my opinion, the permanent intermediary can be creative without freeing it from measures intended to make its decision-making process open, transparent and accountable.

The mayor and City Council should revisit the law and make the permanent intermediary an instrumentality of the city subject to the state Open Meetings Act and Public Information Act, and to other fiscal controls that the city deems appropriate. An advisory board can be appointed to promote innovation, but final decisions on grants should be made by city officials answerable directly to the mayor and City Council — who answer directly to the taxpayers. A healthy tension between creativity and fiscal responsibility is the best way to make sure that the Children and Youth Fund achieves its ambitious goals.

[Published as an op ed by The Baltimore Sun on January 7, 2018 but not posted to my blog until June 1, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]