The Baltimore City Council bill that never was.

It is a bill that was not introduced at last Monday’s meeting of the Baltimore City Council that could be the most important bill drafted for the council this year. It is the bill that may have encouraged Lodge 3 of the Fraternal Order of Police (the FOP) to reach agreement with the city on a new collective bargaining agreement.

On October 29th I received an email from the city’s Department of Legislative Reference that included the draft of a bill. The author of the email said the bill was “inspired” by a piece that I wrote published in the Baltimore Brew on October 17th, and that the member of the city council who had requested that the Department of Legislative Reference draft the bill wanted me to review it.

My guest commentary in the Baltimore Brew chastised the city council for not acting to break the years-long impasse over the FOP’s reluctance to give up the 4×10 shift schedule by withdrawing the issue of shift schedules from the scope of collective bargaining. I made the same argument in an op-ed published earlier this year by the Baltimore Sun.

The bill withdrew the subject of “the structuring and scheduling of shifts” from the scope of collective bargaining between the city and employee unions as I had proposed. I reviewed the bill as requested and made some suggested changes.

Here is a link to the bill:  https://davidplymyerdotcom.files.wordpress.com/2018/11/munic-labor-relations-scope-bill-11-20-18.pdf

On November 3rd the FOP issued a notice to its members that a tentative agreement had been reached with the city. The agreement included a return to a 5×8 shift schedule for patrol officers as well as the addition of civilian members to hearing boards constituted under the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR).

The initial reaction to the proposed agreement by FOP members was overwhelmingly negative. I am informed that union president Sgt. Michael Mancuso worked long and hard to explain the agreement to his members.

On November 13th FOP members voted to ratify the agreement. Sgt. Mancuso said the following in a press release:

“While our members agreed that this proposal was less than ideal, the alternative to acceptance was dismal, at best. Instead they made the hard choice to preserve our contractual rights, going forward.”

To what “alternative to acceptance” was Sgt. Mancuso referring, and why was that alternative “dismal, at best”? And why was it necessary for the FOP to accept the city’s proposal “to preserve our contractual rights”?

Was Sgt. Mancuso referring to the bill that had been drafted and was ready for introduction? I don’t know for sure, but the timing of the drafting of the bill and the reluctant acceptance by the union of a “less than ideal” proposal seems like more than a coincidence. If the draft bill was a shot over the bow of the FOP by legislators, it wouldn’t be the first time such a thing was done.

My guess is that Sgt. Mancuso was telling his members that they better get the best deal possible before they lost the right to negotiate over shift schedules entirely. And he probably was right. I was informed last week that there is no plan to introduce the bill stripping the union of that right at this time – probably because the draft bill had accomplished its purpose of inducing the FOP to soften its hardline stance.

The bill I reviewed made no mention of civilians on police hearing boards. In the Baltimore Sun op-ed mentioned above, however, I also pointed out how Assistant Attorney General Kathryn Rowe had basically provided the city a road map on how to put civilians on the hearing boards without the consent of the FOP.

As it happens, State Senator Nathaniel McFadden had solicited Ms. Rowe’s advice after he read another op-ed by me reaching the same conclusion in July 2016. So, my other guess is that the next bill to be drafted was a bill following Ms. Rowe’s road map to put civilians on hearing boards.

Why is any of this worth mentioning? For only one reason, and that is if it helps to debunk the myth that the Baltimore City Council is powerless to influence the course of events in the Baltimore Police Department.

Members of the council perpetrate this myth, and it is one of my major pet peeves because it is intended to mislead the public. The myth serves to protect council members from being held accountable by the voters, and it gives them an excuse for not making politically-fraught decisions.

Council members tend to wring their hands and point their fingers when it comes to the Baltimore Police Department. They have less of a tendency to do anything worthwhile, especially when it comes to legislation.

I don’t know the identity of the council member who initiated the drafting of the bill that was sent to me, but I give credit to whomever it was for taking a step in the right direction. I believe that he or she gave the negotiations between the city and the FOP the push that they needed.

And please don’t accuse the council member who initiated the bill of “union-busting.” It is the job of the City Council under the City Charter to put reasonable limits on collective bargaining by identifying those management decisions on agency operations that should not be subject to negotiation, and then legislating accordingly. At the end of the day the Baltimore City Council must put the interests of the citizens of the city first, even if council members occasionally have to be reminded of that.

And credit also to Sgt. Mancuso. He not only did the right thing, he did the smart thing. Collective bargaining rights for public employees are not written into the state or federal constitutions. Lodge 3 would not have been the first public employee union to overplay its hand, winning a battle or two and then losing the war.

City officials touted the new collective bargaining agreement as a “win” for both police officers and the city. In my opinion, whether or not it constituted a “win” is not the point. It was a fair and reasonable deal for both sides, and that is the applicable standard.

The Baltimore City Council is entitled to access to the report on the background check done on Joel Fitzgerald, the mayor’s nominee to be the next police commissioner.

Baltimore City Solicitor Andre Davis reportedly informed members of the Baltimore City Council that they will not be given access to the report on the background check done on Joel Fitzgerald, Mayor Catherine Pugh’s nominee to be the city’s next police commissioner. Mr. Davis described the report of the background check as a “personnel record” protected from disclosure under the Maryland Public Information Act (MPIA).

In my opinion, Mr. Davis has interpreted the prohibition against disclosure of personnel records too narrowly. I believe that the report of the background check may be provided to members of the council under the guidance issued by the Maryland Attorney General on access to personnel records.

The language of the statute itself is indeed restrictive. Under the law, the only person given the explicit right of access to an individual’s personnel records is the “elected or appointed official who supervises the work of the individual.”

Mr. Davis is correct that the report on the background check is a personnel record protected by the MPIA. In Kirwan v. The Diamondback, 352 Md. 74 (1998), the Maryland Court of Appeals held that “personnel records were those relating to hiring, discipline, promotion, dismissal, or any matter involving an employee’s status.” The background check certainly is related to the proposed hiring of Mr. Fitzgerald.

A too-literal interpretation of the statute, however, would lead to absurd results inconsistent with the law’s intent. For example, it would preclude the staff of a city or county human resources office from reviewing and screening application materials submitted by individuals seeking employment with the city or county.

The Maryland Attorney General long has recognized that this provision of the MPIA must be construed in the context of its purpose and intent. Persons other than an individual’s supervisor (whatever that means for a person who has not yet been hired) must have access to personnel records to do their jobs. In the latest edition of the Public Information Act Manual, the Attorney General states:

“It is implicit in the personnel records exemption that another agency charged with responsibilities related to personnel administration may have access to those records to the extent necessary to carry out its duties.” [MPIA Manual, p. 3-9.]

This principle first was described by the Attorney General in 86 Opinions of the Attorney General 94, 108-109 (2001). In that 2001 opinion, the Attorney General stated that the agency seeking access to the personnel records must be performing a “personnel function.”  In my experience, the Attorney General’s interpretation of the law has been widely embraced throughout state and local government.

Under Section 16-5 of the Code of Public Local Laws of Baltimore City, the appointment of a police commissioner by the mayor is “subject to confirmation by the City Council by a majority vote of its members.” In my opinion, the responsibility of the council to confirm the mayor’s selection of a police commissioner clearly is an integral part of the process of hiring the commissioner and therefore is a “personnel function” within the scope of the Attorney General’s guidance.

And I have no doubt that access to the report of the background check done on a police commissioner whose appointment the council is being asked to confirm should be considered necessary to carry out the council’s duty.  There may be something in Mr. Fitzgerald’s background that is acceptable to the mayor but not to a majority of the members of the council. If the report on Mr. Fitzgerald was available for consideration by the mayor, then it should be available for consideration by the council.

Mr. Davis expressed concern that if the report on the background check is provided to the council it will end up in the hands of the public. I get his concern, even though giving access to members of the council entitled to inspect it as part of their duties does not make the report “public” under the law.

I propose a practical precaution: I’d allow members of council to review the report, but not give them copies. No offense, council members, but city government leaks like a sieve and Mr. Fitzgerald’s privacy interests are entitled to reasonable protection, just like everyone else’s.

Also, I’d warn council members that, if they leak the contents of the report, they can be criminally prosecuted for violation of the MPIA. And a deliberate violation of the MPIA would constitute misconduct in office subjecting a member to further penalties including removal from office.

In conclusion, there’s a legally-acceptable resolution of the apparent impasse over the city council’s access to the report on the background check of Mr. Fitzgerald. In fairness to Mr. Fitzgerald, he should have been told all of this before applying for the job – what the process would entail, who would have access to his application information and under what conditions, etc. If he is unhappy with the council’s access, he has the option of withdrawing his candidacy for the position.  In any case, the city needs to get past the usual chaos and dysfunction that acccompanies city actions and get to the business at hand.

Olszewski’s campaign promise may make a difficult job impossible.

There are financial challenges ahead for Baltimore County Executive-elect Johnny Olszewski, Jr. He has made surmounting those challenges all the more difficult by his campaign promise not to increase taxes. First, let’s take a look at the situation that he inherits.

The Kamenetz-Homan “legacy”

The announcement that Baltimore County Administrative Officer Fred Homan will retire on December 3rd at the request of Mr. Olszewski was met with a widespread sigh of relief – if not glee – by many county residents. Mr. Homan became the face of an administration that cared little about openness, transparency and accountability and at times was openly hostile toward community groups that dared to disagree with its policies or positions.

I have no desire to dwell in the past, especially not Mr. Homan’s. I believe, however, that there is one aspect of Mr. Homan’s legacy that needs to be discussed because it bears upon the future of the county. That aspect is the myth that Mr. Homan was a good steward of the county’s finances. In my opinion, the myth promotes a misleading view of the county’s financial health and the daunting problems that Mr. Homan will leave behind.

In a letter sent to all county employees, outgoing County Executive Don Mohler, appointed after the death of former County Executive Kevin Kamenetz, wrote:

“Through good times and bad, Fred has been the chief architect of a fiscal policy that has allowed us to invest in education, public safety and our aging infrastructure, while maintaining the county’s triple A bond rating.”

I am not saying that Mr. Homan was dishonest or that he lacked considerable skills in managing a complex county budget but, in my opinion, there is more to stewardship of a county’s finances than that. There is the need for vision and for a fiscal policy sustainable well into the future.

I believe that the county has fallen far short in that area. If he was the “chief architect” of the county’s fiscal policy over the past 12 years or so as described by Mr. Mohler, then Mr. Homan must accept his share of the responsibility for the problems facing the county.

I have written about those problems a number of times in the past. In summary, Mr. Olszewski will take office facing crumbling infrastructure and revenue streams inadequate to repair or replace roads, schools, storm water management facilities, and government buildings. The quality of life for county citizens is at stake, as Mr. Homan himself admitted last week.

Mr. Homan was a master at robbing Peter to pay Paul to avoid tax increases, and too often Peter was the mundane things that the county needs to run properly. The county is short of personnel in key regulatory areas, the county’s IT infrastructure dates to the last century, and that is just the beginning.

Earlier this year it dawned on the county’s Spending Affordability Committee that the day of financial reckoning was close at hand because the county is running up against the limits on how much money it can borrow. Councilman Tom Quirk, a member of the committee, wrote in its report:

“The county’s financial outlook presents immense challenges that the next administration and council will be forced to address.”

Mr. Quirk groused that the Kamenetz administration refused to provide a long-term plan to pay for all the county’s school construction projects and for health care for retirees, among other things. In fact, the desperate need for a long-term financial plan for the county, especially a capital improvement plan, was one issue on which Mr. Olszewski and his Republican opponent, Al Redmer, Jr., agreed.

A word on the county’s AAA bond rating touted by county officials. It is important because it reduces the cost of borrowing money. But it is, in effect, a relatively short-term measure of the county’s creditworthiness, not a judgment on the county’s long-term financial well-being – the fact that the absence of a long-term county financial plan has not affected the rating is an indication of that.

Ironically, an important factor supporting the high rating is the legal availability of additional revenue if needed to pay the county’s debts. Unlike some other counties, Baltimore County has no legal cap on its property tax rate and also has room to increase the local income tax surcharge.

Appearing at his last meeting of the County Council as County Administrative Officer, Mr. Homan spoke briefly to warn council members about the financial difficulties ahead.

“What you face now going forward is going to make a very significant difference in not only the fiscal situation of the county, but the lives of citizens of the county,” Homan said. “I wish you the best.”

Yeah, good luck to us. And thanks a lot.

The challenge ahead

The “immense challenge” referred to by Mr. Quirk can be summed up as follows: Many unmet needs and looming expenses with a revenue stream inadequate to pay for them. Mr. Homan is by no means responsible for the principal limitation on that revenue stream: An aversion to tax increases in Baltimore County that approaches religious fervor. Additional revenue may be legally available, but political availability is another story.

The past refusal to consider increases in the county property tax rate or local income tax surcharge, coupled with the absence of development impact fees, accelerated the decline in the financial health of the county. New development was necessary to provide the property tax revenue to meet the needs of existing development because the property taxes collected from existing development were insufficient to do so.

As I have previously described, the failure by the county to impose development impact fees or excise taxes decades ago, when all other major metropolitan counties in the state were doing so, was a catastrophic mistake. Because of the absence of development impact fees imposed on new development, revenue from existing development had to be used to expand public facilities to accommodate the new development, dramatically reducing the overall financial benefit of the new development to the county.

That meant that the new development needed to proceed at a pace and intensity far greater than many citizens wanted just to keep the Ponzi scheme afloat. It made Baltimore County a developer’s paradise, but it helped create the fiscal mess that the county is in today as the pace of new development necessarily slows down.

In my opinion, the situation suited the outgoing administration. The fast pace and intensity of development kept the developer friends of Mr. Kamenetz happy and they in turn kept his political war chest filled to the brim. And it seems to me that is exactly the situation that most citizens of Baltimore County want changed.

The incoming county executive, Johnny Olszewski, Jr., has pledged not to increase county taxes. So how he is he going to meet the “immense challenges” described by Mr. Quirk and emphasized by Mr. Homan? Thanks in part to Mr. Homan, there is not a lot of fat left to cut in the county budget; some agencies already have been cut into the bone. And if there is not enough money now, when the economy is humming away, what happens when the inevitable downturn occurs?

So what else can Mr. Olszewski do to assure the county’s future financial health if he is unwilling to consider ways of increasing county revenues through fees or taxes? Nothing, except cut back on existing programs and activities. And that will be an exceedingly unpopular task for an ambitious politician.

Dear City Council: Stop making up excuses and fix the disastrous police contract.

BY DAVID A. PLYMYER 1:26 PM   OCT 17, 2018

Council members have chosen the interests of city labor unions over the safety and financial well-being of the city, a retired government lawyer argues. [OP-ED]

For the last two years, members of the Baltimore City Council have been grousing about the high cost of the shift schedule adopted by the Police Department, while maintaining that they lack the power to do anything about it.

Finally, a member of the Council acknowledged last week that they can do something about it.

Councilman Ryan Dorsey’s admission in a Twitter exchange (see below) proves that it is not an absence of legal authority, but rather a lack of political will that prevents Baltimore’s elected officials from solving this enormous drag on the city’s resources.

Costly Failure

In 2015, the standard shift schedule (normal work week) of the BPD was changed from five eight-hour days (5×8) to four 10-hour days on duty followed by three days off (4×10).

Former Police Commissioner Anthony Batts claimed the change would put more officers on the streets at the most needed times, cut overtime spending and give officers more time off.

He was wrong.

The change boomeranged into a costly failure mainly because the BPD has been unable to recruit and retain enough officers to fill assignments under the 4×10 schedule.

The Rawlings-Blake administration then compounded the error by agreeing to hardwire the 4×10 schedule into the collective bargaining agreement between the city and Lodge 3 of the Fraternal Order of Police (FOP), which represents officers in the rank of lieutenant and below.

Most critically, the contract took away the ability of the police commissioner to adjust the schedules of officers to accommodate changing demands on the department.

The 4×10 schedule has meant millions of dollars in overtime, adding to the excessive overtime that has characterized the department in recent years. To date, the FOP has not agreed to an alternative schedule.

While quick to blame Batts and the FOP for the problem, Council members have refused to accept responsibility for fixing it.

But there has been some progress in that regard. Councilman Dorsey’s admission (couched in rather obscure syntax) that the City Council can enact legislation removing shift schedules from the scope of collective bargaining is an important step toward clarity on this matter.

The legislation referred to by Dorsey would have the effect of giving the Police Commissioner authority to schedule shifts in the manner that best suits the need of the department. The Councilman apparently has been told by city lawyers, however, that such legislation could not apply to only one union.

As Dorsey tweeted, “State law does not permit the City to limit the collective bargaining rights of the Police Department unless it is done by limiting all collective bargaining rights of all unions.”

He then said he was reluctant to introduce such legislation because he supports the rights of city unions “to represent their workers’ conditions.” He then added this:

“As much as I think FOP has been allowed to run amok, it’s not the fault of all workers. It’s a manifestation of weak political will and the FOP acting like a protection racket.”

Making a Choice

The admission by the vice chair of the City Council’s Public Safety Committee sheds light on the real reason why the city has not extricated itself from the costly shift schedule:

Namely, a refusal by the Council to do anything that upsets the labor unions that represent city employees – or at least labor unions other than the FOP.

Governance involves choices. Dorsey and like-minded members of the Council have chosen the interests of city labor unions over the safety and financial well-being of the city.

Dorsey’s admission was a long time coming. What follows is the backstory about the lengths to which politicians will go to disavow responsibility for a politically unpleasant task.

Getting to the Truth

My first discussion on the 4×10 shift issue was with Brandon M. Scott, currently the chairman of the Public Safety Committee.

His voice has been the loudest about the body’s “lack of control” over the BPD and the purported need for Gov. Larry Hogan to return control of the department to the city.

After an exchange with Scott on Twitter in April 2017, I had a telephone conversation with him. I said that, if it wished, the Council could remove the subject of shift schedules from the scope of collective bargaining. Scott did not agree with me, and our discussions ended.

In June 2017, Council President Jack Young wrote a letter to the editor of the Baltimore Sun excoriating the FOP for refusing to agree to go back to the 5×8 shift schedule.

Young went so far as to imply that the FOP’s refusal to concede on the issue was partially responsible for the city’s spike in violent crime.

While I am no big fan of the FOP, Young had no right to tell the FOP what its bargaining position should be, especially when the 4×10 schedule was the city’s idea, not the FOP’s.

I sent a letter dated June 29, 2017 to Young and other members of the Council describing their legal options – options that I suspect their own lawyers had already explained to them. Here are the relevant parts of that letter:

 The City Council has the power under §55 of the City Charter to limit the scope of collective bargaining by placing certain subjects off limits as exclusive management rights. Excluding management decisions regarding the structure and scheduling of shifts from the scope of collective bargaining is consistent with the state law that governs binding arbitration used to resolve impasses in bargaining with the BPD.

State law limits binding arbitration to matters of ‘direct compensation’ and §16-8A(b)(3) of the Code of Public Local Laws of Baltimore City explicitly provides that issues regarding deployment and scheduling are not “direct compensation” issues. “Direct compensation” is defined to mean “wages, salaries, longevity, shift differential [pay], bonuses if applicable, and leave with monetary value.”

Nothing came of that letter. The next member of the Council to lash out at the FOP was Dorsey.

In April 2018, he denounced the union for its continuing refusal to agree to abandon the 4×10 shift schedule, while also describing the BPD as “really just occupying mercenaries.” He dismissed my arguments that he and his colleagues could intervene by tweeting that “City Council is in no way part of collective bargaining.”

This time I responded with an op-ed in the Sunmaking public the explanation of the law that I had provided to the Council a year earlier.

Whether that did the trick, I don’t know, but six months later Dorsey is now admitting that City Council has the authority to place limits on the scope of collective bargaining.

Needed Now: Political Courage

Baltimore’s labor and police commissioners never should have bargained away the commissioner’s authority to adjust shift schedules to accommodate the changing needs of the city. Nor should they have hard-wired a specific shift schedule into a labor contract.

But done is done, and the subject of shift schedules is now a subject of collective bargaining, at least until the City Council legislates otherwise.

There is nothing unusual about a legislative body having to clean up a mess created by the executive branch in the course of interpreting and administering a law. The City Council is, after all, the primary policymaker for Baltimore.

If the Council doesn’t want the city to have to negotiate with the FOP over shift schedules, then the Council should do something about it by passing an ordinance.

(Of course, Mayor Catherine Pugh could take it on herself to propose such an ordinance, but she has so far shown no more appetite to take on city employee unions than have members of the Council.)

The fact that the ordinance would have to apply to other city agencies and unions is not an obstacle.

Making it an exclusive management right to decide on appropriate shift schedules is a common and fair allocation of power between management and labor.

Namely, that management decides on the shift schedule that best meets the needs of the organization, and then it negotiates with unions on how to compensate employees for working that shift schedule.

It is especially important for the head of a public safety agency to be able to adjust shift schedules. If a shift schedule must be changed during the term of a labor contract, a “re-opener” clause in the contract can allow the negotiation of the accompanying changes in compensation.

This is not “union busting,” as Councilman Dorsey implies. This is the city regaining a reasonable measure of control over governmental operations.

The problems caused by the 4×10 shift schedule should (but likely will not) get resolved any time soon.

But, at least, we can be spared from the spectacle of elected officials proclaiming their “helplessness” in resolving ballooning police overtime and the poor deployment of officers in this time of public angst about crime.
_________________________
David A. Plymyer retired as Anne Arundel County Attorney after 31 years in its office of law. His work included advising county management on the content and negotiation of contracts with public safety unions.

[Published as an op-ed by the Baltimore Brew on October 17, 2018 but not posted to my blog until November 17, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Gov. Hogan, where are state regulatory agencies when the citizens of Baltimore County need them?

According to the polls, Maryland Governor Larry Hogan is very popular in Baltimore County. Surely, that popularity is not based on the recent failures by two state agencies under his control to fulfill their regulatory responsibilities over actions taken by the Baltimore County government. The performances of the state agencies in these matters have been disgraceful.

I will begin with “Treegate.” By now, the facts of that travesty are well known to the citizens of Baltimore County. What appears to be the final chapter in the matter, written by the Maryland Department of Natural Resources (DNR), is as disappointing as the rest of the story.

The second matter is less well-known, but of much greater long-term consequence. It involves the adequacy of public wastewater facilities in the “Jones Falls Sewershed.” Wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville, collecting sewage that flows through the City of Baltimore to the Back River Wastewater Treatment Plant.

Serious questions have arisen as to whether the Baltimore County Department of Public Works (DPW) has been forthcoming about the adequacy of those facilities to manage the planned development in that area of the county without continuing or even increasing the sewage overflows that have occurred for decades in the city and county. To date, the Maryland Department of the Environment (MDE) has been unhelpful in getting answers to those questions.

DNR’s sham investigation into “Treegate”

On November 14, 2017, I filed a complaint with DNR requesting that it exercise its authority under the state’s Forest Conservation Act (FCA) to investigate whether actions taken by Baltimore County during “Treegate” violated state or county forest conservation law. Treegate took place on April 1, 2017.

On that date, acting on orders from Baltimore County Administrative Officer Fred Homan, a county contractor removed 30 trees, including six specimen trees, from the future site of the Towson Station development. Mr. Homan stated that the trees were cut down to facilitate the sale of the property from the county to a private developer who had a contract with the county to buy the property. The removal of the trees defied a resolution passed by the County Council conditioning development of the site on the retention of the trees and relieved the private developer from what undoubtedly would have been a futile attempt to justify the removal of the trees under the FCA.

After a seven-month “investigation,” DNR Secretary Mark Belton informed me that his agency was persuaded by the county’s argument that removal of the trees was justified because it was done as part of a county “capital improvement project.” Describing the removal of trees from a site to prepare it for sale to a third party as a capital project is utter and complete nonsense, and DNR knows it.

Under limited circumstances, the county may remove trees from the site of a capital improvement project (aka a capital project) without submitting a full Forest Conservation Plan. A capital project is defined by the Baltimore County Charter as “any physical public betterment or improvement and the acquisition of property of a permanent nature for public use.” [Emphasis added.]

The capital project exception is intended to allow the removal of trees from county property if necessary to do so to construct some type of county building or other permanent improvement on the property. The removal of trees to prepare it for sale, and especially for private use, is not a capital project.

The facts are not in dispute: The county cut down the trees to help the contract purchaser evade restrictions on the removal of trees that would have applied when the purchaser developed the property for private use. That is not a county “capital project” under anyone’s definition.

Also, the county did not pay for the removal of trees using money from its capital budget. It used money from its operating budget appropriated for routine park maintenance, such as lawn mowing. Using money appropriated for routine maintenance to prepare a site for private development by cutting down trees was of doubtful legality in and of itself.

Moreover, even if trees must be removed as part of a county capital project, county forest conservation law requires the agency in charge of the capital project to submit a “project plan” describing the proposed tree removal to the county Department of Environmental Protection and Sustainability for approval. No project plan was submitted or approved for “Treegate.”

Secretary Belton informed me of DNR’s decision by letter dated June 19, 2018. Last month, Larry Fogelson obtained a copy of DNR’s investigation through a Public Information Act request. The sum total of the investigation was a single two-page letter from an Assistant County Attorney explaining that the purpose of the alleged capital project was to make the property “more attractive” to a private developer.

A seven-month “investigation” and that is the best that DNR could do? DNR’s actions in this matter were shameful.

Thirty trees may not seem like a lot of trees. Degradation of the environment generally occurs incrementally, however, through the accumulation of many “minor” violations. Competent regulators are aware of that and strive to enforce regulations uniformly and consistently. That certainly was not done in the case of Treegate.

MDE’s “oops”

Baltimore County’s dubious management of public wastewater facilities within what is known as the “Jones Falls Sewershed” is a much more complicated story. The story is still evolving because it has been extraordinarily difficult to get the relevant information out of the Baltimore County DPW.

What we do know is attributable to the persistence of a group of ordinary citizens led by Tom McCord. The information obtained by these citizens ultimately piqued the interest of MDE, which in turn called upon Baltimore County officials to answer some important questions.

The issues are too complex to describe in detail here, but there is a common thread throughout all of the questions: The apparent unreasonableness and inconsistency of the data used by DPW to project future demands on key sewerage infrastructure within the Jones Falls Sewershed, including the Lake Roland, Jones Falls and Towson Run interceptor sewers.

Mr. McCord and his group discovered that DPW used out-of-date population and land use data for purposes of preparing a report on the deficiencies in the sewerage infrastructure within the sewershed. The sewershed tracks the Jones Falls and the wastewater facilities in the sewershed collect sewage that is sent through the city to the Back River Wastewater Treatment Plant. Public wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville.

The report in question was required under the 2005 consent decree between the county and the United States Environmental Protection Agency (EPA) and MDE. The consent decree is intended to eliminate the sewage overflows that have polluted the Jones Falls for decades. The city agreed to a similar decree with the EPA in 2002.

Understating increases in sewage projected from increases in development and population density has the effect, in turn, of overstating the adequacy of downstream infrastructure to manage future sewage flows. A report that identifies deficiencies in and presents a plan for repair, replacement, or rehabilitation of that infrastructure is a mandatory component of the consent decree.

The information available to date also indicates that DPW may have used differing projections of future sewage flows – one for the consent decree report and the other to justify the construction of the Towson Run Relief Sewer. Mr. McCord and his group have raised legitimate questions as to whether DPW, which understated future sewage flows for purpose of the consent decree, used more current projections to justify construction of the Towson Run Relief Sewer. If so, was the inconsistency inadvertent or deliberate?

The Towson Run Relief Sewer was necessary to handle increased sewage from Towson Row and other planned development in Towson, including new construction at Towson University. DPW was under pressure to move forward with the Towson Run Relief Sewer. The relief sewer was an integral part of the “It’s Towson’s Time” vision of former county executive Kevin Kamenetz.

Mr. Kamenetz wanted to make Towson “a regional destination, even better than Bethesda, even better than Silver Spring.”  Such high-density development posed a challenge for DPW, already contending with failing wastewater infrastructure in the Jones Falls Sewershed.

MDE has a legal interest in enforcing the county’s compliance with the consent decree with EPA because it is a party to the decree. MDE also has regulatory responsibility for approving the triennial review of the county’s Water Supply and Sewerage Plan; the triennial review is MDE’s opportunity to ensure the adequacy of the county’s plan to manage its sewage system.

Mr. McCord and others, including members of Green Towson Alliance, met with MDE Secretary Ben Grumbles and members of his staff on May 25, 2018. Secretary Grumbles asked his staff at the meeting if he could delay approval of the county’s 2017 triennial review until he had a subsequent meeting with Mr. McCord and his group that also included DPW.

Secretary Grumbles was told that he could do so. The clear implication was that Secretary Grumbles wanted to use the follow-up meeting to satisfy himself and members of Mr. McCord’s group about the accuracy of the information that DPW had provided before approving the 2017 triennial review.

The subsequent meeting took place on August 23, 2017. Mr. McCord and his group learned at the meeting that MDE had already approved the county’s 2017 triennial review. They later were informed that Secretary Grumbles also was unaware until the meeting that his agency had approved the county’s triennial review. In other words, an “oops” by MDE.

The first 45-day extension of the time within which MDE had to act on the county’s triennial review under state law expired on August 13th. The follow-up meeting initially was scheduled for August 8th but was postponed until August 23rd at DPW’s request.

Did MDE get played by DPW? Was there a miscommunication within MDE? Or, perhaps someone in MDE did not want to go to the trouble of a second, “supplemental” 45-day extension. In any event, MDE’s immediate leverage over DPW was lost and the questions raised about the information provided by DPW remain unanswered almost two months later.

There is what looks like a pattern here, and it is the old regulatory slow-walk: Drag out an investigation or inquiry as long as possible before producing an unsatisfactory result in the hopes of outlasting the interest or energy of concerned citizens.

What’s next?

The moral of the above story is this: The citizens of Baltimore County are on their own when it comes to dealing with county agencies. Don’t expect the cavalry to arrive in the form of state regulatory agencies, even when the state agencies have clear regulatory responsibility for actions taken by county agencies.

Treegate may be in the past, but the problems with the adequacy of public wastewater facilities in the Jones Falls Sewershed are not. The stakes for county finances, land development and the environment are extremely high.

Sewerage infrastructure is, like a chain, only as strong as its weakest link. For example, the Towson Run Relief Sewer may prevent overflows in Towson only to send sewage downstream to overflow elsewhere in the county or city; Lake Roland is a likely destination. The massive new development in Towson should not proceed until the entire system is adequate. At this point, it seems clear that citizens jaded by their experiences with the county are not going to be satisfied unless that determination of adequacy is made by a creditable independent expert.

Among the first orders of business for the next county executive should be an open and transparent review of the adequacy of public wastewater facilities in the Jones Falls Sewershed. He can do that by ordering his planners and public works officials to make all relevant documents available to the public, and then scheduling one or more public hearings at which his planners and public works officials testify and answer questions in a comprehensive, forthcoming manner. What a refreshing change that would be in Baltimore County.

– David A. Plymyer

David A. Plymyer retired as the County Attorney for Anne Arundel County in 2014. He also served five years as an Assistant State’s Attorney for Anne Arundel County. He now writes on matters of law and local government from his home in Catonsville, Maryland. His email address is dplymyer@comcast.net, and his website is at https://davidplymyer.com/.

[Published as an op-ed by The Baltimore Post on October 9, 2018 but not posted to my blog until November 9, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore County police and prosecutors need to respond to rape cover-up allegations.

CRIME & JUSTICE BY DAVID A. PLYMYER 9:01 AM  OCT 5, 2018

Unlike UMBC, the county is reacting with stony silence to claims in a lawsuit by sexual assault victims that are too serious to ignore OP-ED

 There are shocking allegations in the federal class-action lawsuit filed last month by two former students at the University of Maryland Baltimore County.

They include charges that the women were discouraged from – and, in one case, threatened with arrest for – going to the police and pursuing criminal complaints against men who sexually assaulted them.

The former students, Anna Borkowski and Katelyn Frank, describe in detail a pattern of failing to properly investigate and prosecute complaints of sexual assault – a pattern that extends both to UMBC and to Baltimore County police and prosecutors.

But the contrast in the defendants’ reactions after the story broke is striking.

UMBC president Freeman A. Hrabowski III met with students, accepted responsibility for the school’s inadequate response to the problem of sexual assaults and promised an outside investigation and reform.

“No comment,” meanwhile, was the response by Baltimore County Chief of Police Terrence B. Sheridan and State’s Attorney Scott D. Shellenberger.

Yes, the events described in the lawsuit and recounted below remain mere allegations until proved.

But please don’t give me the line that you can’t discuss the matter while it is litigation. You can, despite what some county lawyer may be telling you. (I know – I am one.)

The truth will come out in the lawsuit, but it is important that county residents hear the answer now, not a year or more from now.

History of Problems

One reason these officials should speak up about the most troubling claims in the lawsuit: Baltimore County’s poor track record on this issue gives citizens reason to believe them.

A scathing 2016 story in BuzzFeed documented an astoundingly high number of rape complaints classified as “unfounded” by county police.  That story led to a review by a panel consisting of a retired circuit court judge and the director of the Maryland Coalition Against Sexual Assault.

Its recommendations were implemented, Baltimore County Executive Don Mohler recently said, responding to the class action suit. But the disturbing events that Borkowski described in the complaint took place on and after October 20, 2017 – well after these reforms were supposedly put in place.

The chronology, despite Mohler’s assurances, suggests Baltimore County still does not take accusations of sexual assault seriously.

Borkowski’s Allegations

Borkowski claims that she and an unnamed classmate were raped in the classmate’s Towson apartment on October 20, 2017 by three UMBC students, all members of the school’s baseball team.

The two women were encouraged by the men to drink from a bottle of vodka. She said the men pretended to drink but did not.

Borkowski believes that a drug had been added to the vodka. She says she became incapacitated, blacked out, and had only fragmentary memories of being gang-raped by the three men and of watching the men rape her classmate while her classmate was at various times unconscious or semi-conscious and asking them to stop.

Borkowski awoke later on the day of the incident and reported to police that she had been raped. She was taken to the Greater Baltimore Medical Center.

A sexual assault forensic exam (SAFE) confirmed that she had suffered “vaginal tearing,” an injury “consistent with sexual assault.” The Baltimore County Police Department was responsible for investigating the alleged rape. It did what can only be described as a cursory investigation.

Lame Response

According to the complaint, the apartment was never visited by police, much less searched.

Evidence including blood-stained bed clothing and the vodka bottle was never collected and analyzed, despite the fact that the men allegedly admitted to police that they poured the remaining contents of the bottle over the apartment balcony.

No analysis of the sexual assault evidence kit collected at the hospital was done, according to the complaint. And then there’s this:

The complaint says the three men accused by Borkowski were interviewed together by detectives at a Chick-fil-A.

The men allegedly admitted to having sex with the two severely intoxicated women. They described it as consensual and told the detectives that they did not understand what the issue was, the lawsuit says. The case was closed by the police and no charges were filed.

I don’t expect Sheridan to publicly defend the entirety of what appears to be a shoddy investigation. There is one question that he can answer, however, that could tell us all that we need to know about the seriousness with which his department took Borkowski’s accusations: 

  • Chief Sheridan, did your detectives interview the suspects together at Chick-fil-A? If so, explain to the public how interviewing gang-rape suspects in a group at a fast-food restaurant is consistent with sound investigatory practices.

I can tell you, as a prosecutor, it is not.

 Dismissing the Charges

Even more disturbing are the events described in the lawsuit that occurred after the state decided not to proceed with criminal charges against the three alleged attackers.

Borkowski decided to pursue the matter on her own by applying to court commissioner John Robey for a statement of charges.

Instead of making his own determination of probable cause, Robey contacted a detective and a prosecutor involved in the case. Instructed by them, Robey refused to issue charges, according to the complaint.

Undeterred, Borkowski tried again before a different commissioner, Colleen Ellingson.

Ellingson made her own determination of probable cause and charged the three men with crimes including first degree rape.

When he found out about the statements of charges, Baltimore County State’s Attorney Scott Shellenberger ordered police not to serve the summonses on the defendants, the lawsuit says. Assistant State’s Attorney Lisa Dever had the charges dismissed.

County police then opened an investigation into Borkowski.

Threatening the Accuser

Dever obtained a grand jury subpoena seeking the affidavit that Borkowski submitted to Robey describing the alleged rape.

Shellenberger and Dever allegedly then told detectives “to tell Ms. Borkowski that she has to stop bringing these additional charges or they will file criminal abuse of process charges against her.”

In my opinion, this was a hollow threat. For one thing, there is no crime of “abuse of process.”

The grand jury subpoena suggests that police and prosecutors were searching for inconsistencies in the affidavits submitted by Borkowski to the two different court commissioners. In other words, they were investigating Borkowski for perjury.

The hollowness of his threat didn’t stop Shellenberger from allegedly sending three police officers to Borkowski’s home in Baltimore to deliver it.

Police and prosecutors expended more time and effort trying to get Borkowski to back off than they did investigating her complaint.

Again, I don’t expect Shellenberger to be willing to go into detail about the actions of his office. But there is one question that he can answer that could tell us all that we need to know about his attitude toward alleged victims of sexual assault: 

  • State’s Attorney Shellenberger, did you send two detectives accompanied by a uniformed officer to Ms. Borkowski’s home to warn her against bringing any more charges against her alleged attackers? If so, on what legal basis did you do that, and what did you tell the officers to say to her?

If the assistant attorney general representing you in the lawsuit advises you to not to answer this question, politely refuse the advice.

Explain to him that it is more important to assure citizens that their state’s attorney does not believe in harassing the alleged victims of sexual assault. Assuming, of course, that it is true.

One-in-Five

I don’t mean to suggest in this analysis that UMBC students should rest assured the school will change its ways.  UMBC has its own history of mishandling of sexual assault reports, ineffective sexual assault prevention education and inadequate support for survivors, as UMBC doctoral student Aliya Webermann recently pointed out.

Webermann recounted her own frustration as an activist on the issue and cited a 2016 campus survey in which one in five students reported experiencing sexual assault.

Emotions ran high at a campus “listening session” held at UMBC after two women sued the school saying it mishandled their reported sexual assault and others.

Still, there is some cause for hope about progress in addressing sexual assault on the school’s campus.

Off campus, there is little reason amid the silence and absence of accountability to be optimistic that anything will change soon.
___________________________
David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the County Office of Law. His work included defending police officers in civil cases and advising on police disciplinary matters. He also served as a prosecutor in the Anne Arundel County State’s Attorney Office.

[Published as guest commentary by the Baltimore Brew on October 5, 2018 but not posted to my blog until November 5, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]