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.

The case for an independent police force at Johns Hopkins.

The Johns Hopkins University wants to create its own police force in Baltimore. The legislation to create this force already has the backing of several Baltimore lawmakers. Universities like Morgan State University and Coppin State University also have their own police forces.

By:  David A. Plymyer

Johns Hopkins officials recently announced plans to hold a series of community forums through the end of the year in an effort to renew its push to establish an independent police department to protect the university and medical campuses and surrounding areas of Baltimore. A prior attempt this year failed to gain legislator approval because of resistance from the community and the Baltimore City Council.

If common sense had anything to do with this, community and council members would embrace the proposal. If they need convincing, I suggest that they take the two-hour drive up I-95 to Philadelphia to study the impact of the University of Pennsylvania Police Department (UPPD).

Both Hopkins and the University of Pennsylvania are private institutions with facilities located in challenging urban neighborhoods. The UPPD, founded in 1973, has about 120 sworn officers, including 13 detectives; it is a fully-accredited law enforcement agency committed to community-oriented policing. The university’s vice president for public safety is the department’s superintendent, and she is a civilian. The footprint of the University of Pennsylvania is considerably larger than Hopkins’ and the “Penn patrol zone” policed by the UPPD is roughly 4 square miles.

For 12 consecutive years, Security Magazine has ranked the UPPD the best program in the nation in the “Education (University)” category. Ask Philadelphia Mayor Jim Kenney, members of the Philadelphia city council and Penn’s neighbors if Philadelphia would be better off without the UPPD.

Johns Hopkins University wants its own police department. What would that mean for Baltimore?

There is no reason that Johns Hopkins could not emulate the success of the University of Pennsylvania in standing up a police department that is an asset to the city. No reason, that is, other than the peculiar world of Baltimore politics in which common sense often is in short supply.

I don’t blame community members for their general suspicion of police officers, given their experiences with the Baltimore Police Department and the city’s well-documented history of structural racism. Many members of the community embrace an ideology in which the city’s criminals are seen primarily as victims of the poverty and family disintegration resulting from structural racism. These citizens view arrests and prosecution as treating the symptoms rather than the disease and are skeptical of any law enforcement solutions to Baltimore’s crime problem.

I understand. But keep in mind that the effects of structural racism are going to take a long time to fix. Letting the city bleed to death in the meantime helps no one. Sometimes you have to manage the symptoms before you can cure the disease. Effective law enforcement is needed right now to make sure that the city survives until the longer-term goals of racial and economic equity can be achieved.

Moreover, the principal goal of a campus police department is not to arrest people, but to deter crime. Ask ordinary residents of Baltimore neighborhoods now under siege if they’d welcome a larger police presence.

Members of the City Council claimed that they were left out of the loop in crafting the initial proposal for a Hopkins police department. It is fine to want to be in the loop. It is not fine if the council tries to hold the proposal hostage until concessions of political value to members of the council are extracted — something that the council is prone to do.

If the proposal is revived and the council helps defeat it, the council would accomplish two things.

First, it would weaken the ability of the city’s largest private employer to protect the safety of its students, staff, patients and neighbors. The destinies of Hopkins and Baltimore are intertwined. With about 45,000 employees, Hopkins is a bulwark against inner-city poverty becoming even worse.

Second, it would feed the narrative that the council is a poor steward of the city’s resources. Hopkins wants to assume the financial burden of policing its campuses and nearby areas of the city. Staring a gift horse in the mouth is the last image that the council wants to convey to a governor and General Assembly already wary of committing more money to the cash-strapped city.

I hope that Johns Hopkins goes back to the legislature next year to seek approval of its proposal to establish its own police department. If so, I hope that the Baltimore City Council is kept in the loop, restrains its worst political impulses and does what it can to make the proposal succeed. It’s a chance to help both the university and the city.

David A. Plymyer retired as Anne Arundel County attorney in 2014 and also served for five years as an assistant state’s attorney for Anne Arundel County. His email is dplymyer@comcast.net; Twitter: @dplymyer.

[Published as an op-ed by The Baltimore Sun on November 19, 2018 but not posted to my blog until January 31, 2019. The date of posting that appears above was backdated to put all posts in the order in which they were written.]

UMD Board of Regents fell short in its duties.

Guest Commentary -November 13, 2018

A suggestion to Maryland Gov. Larry Hogan: When you appoint people to positions of great responsibility in the future, pay more attention to their qualifications and expertise than to their personal and political loyalties. Appointments have consequences.

Seldom is there a consensus on an issue such as there is on the attempt by the Board of Regents of the University System of Maryland to pressure the president of the University of Maryland at College Park, Wallace Loh, to retain now-fired head football coach D.J. Durkin. That consensus is that the board’s action was ham-handed and indefensible and has long-term negative consequences for the state’s flagship university.

Sometimes governing bodies make bad decisions, and there is nothing more to it. In this case, however, I believe there is more to it. The Board of Regents fell so far short of fulfilling its role as the guardian of the institutional mission and values that it raises questions about the qualifications of the individual regents. And those questions directly implicate Gov. Hogan.

Dr. Loh has presided over the continuing ascent of the university into the top tier of public research universities. Mr. Durkin, according to the report of the independent commission appointed to investigate the football program, oversaw an environment in which insults and humiliation were primary motivational tools. The commission found that the strength and conditioning coach hired by Mr. Durkin verbally and physically abused players.

The commission found no direct link between the culture of the football program and the tragic death of Terrapin player Jordan McNair. Mr. McNair died because of the negligence of the training staff assigned to care for the football players, according to a separate inquiry. That finding, however, was hardly an endorsement of Mr. Durkin’s stewardship of the football program.

Not only did the board overstep its bounds by trying to block Dr. Loh from firing Mr. Durkin, it apparently did so in the interests of winning more football games. According to a story in The Baltimore Sun, board members succumbed to the blandishments of Mr. Durkin, who told them that his team was on the verge of being able to beat teams like Ohio State and Penn State.

The university’s strategic plan states that, although “athletics play a serious role in the life of the university” by encouraging student growth, athletics lie “outside the academic enterprise” of the institution. The board made the unforgivable mistake of choosing the promise of success on the gridiron over the integrity of the university’s “academic enterprise.”

In my opinion, the most likely explanation for the error is that there were too many regents with no appreciation for a first-class university and how it should be run. Too many regents who should never been appointed to the board in the first place.

Thirteen of the 17 regents on the board when it voted to retain Mr. Durkin over the objections of Dr. Loh, and to show Dr. Loh the door, were appointed by Gov. Hogan. If there is a problem with the backgrounds and predilections of the individual regents, Gov. Hogan owns it.

Questions have risen about the quality of Gov. Hogan’s political appointments in the past. A nominee for the state school board withdrew after questions arose about the nominee’s personal finances and legal record. The state Senate refused to confirm Wendi Peters as secretary of the Department of Planning, with lawmakers citing her lack of relevant experience. The Senate also declined to confirm the nomination of Dennis Schrader to be secretary of the Department of Health.

In a letter earlier this year to The Sun, Del. Clarence Lam echoed complaints that I have heard from many quarters of state government. Del. Lam accused Gov. Hogan of introducing political partisanship into the hiring of new state employees and in the promotions of current state employees for non-political at-will positions in grade 18 or higher. Those traditionally non-political positions provide the expertise and institutional knowledge essential to state agencies.

Del. Lam obtained notes from a senior staff meeting at the state health department at which a new hiring process was described. The process placed “greater emphasis on using the Governor’s Appointments Office.”

According to the notes, hiring for technical positions such as laboratory scientists or doctors would proceed as before. The appointments office, however, would have “first crack” at filling positions such as legislative liaisons, communications officers and executive associates. The department would run a “parallel process” with the appointments office for positions including program managers.

The General Assembly’s Joint Committee on Fair Practices and State Personnel Oversight recently opened an investigation into Del. Lam’s allegations. Del. Adrienne A. Jones, House chairwoman of the joint committee, expressed concerns that applicants were being vetted for political affiliations rather than for merit. Those concerns are reminiscent of those raised during the administration of former governor Robert L. Ehrlich Jr. – when Gov. Hogan was Mr. Ehrlich’s appointments secretary.

The impact of leadership focused more on politics than on an organization’s mission generally is not immediate. The effect is slow and corrosive, like the effect of corrosion on a bridge.

Everything looks fine from the outside until there is a catastrophic failure — a failure like the ill-fated decision by the Board of Regents of the University System of Maryland.

— DAVID A. PLYMYER

The writer is a former county attorney in Anne Arundel County. He can be reached at dplymyer@comcast.net. Twitter: @dplymyer

[Published as guest commentary by Maryland Matters on November 13, 2018 but not posted to my blog until January 31, 2019.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Police overtime spending violates Baltimore’s charter.

The City Council shouldn’t sanction a practice that’s “tantamount to cooking the books,” says a veteran government lawyer.

At its next meeting on November 19, the City Council will take a final vote on whether to approve a “supplementary appropriation” of $21 million to the Baltimore Police Department.

Monday’s preliminary vote in favor of the appropriation was a disappointing exercise by a Council that had once showed promise as a reform-minded body.

The supplementary appropriation in question covers the costs of police overtime during FY (fiscal year) 2018 that were in excess of the costs for police overtime appropriated in the city’s budget for FY18, which ended on June 30.

The money used to fund the appropriation would come from transfer and recordation tax revenues in FY18 that exceeded the estimates of such revenues used in the preparation of the budget.

Those “excess” revenues otherwise would be available for other purposes (inside or outside the police department) in the current year, FY19, which began on July 1.

Here is the problem: What was done last year is done. The money for police overtime has already been spent. There is nothing the Council can now do to change this fact – except try to hide it from public view.

The use of supplementary appropriations to cloak over-expenditures stretches the law to the breaking point even when the appropriations are approved during the same fiscal year in which the over-expenditures happened.

For the city to reach back in time to try to “fix” an over-expenditure that took place in a prior fiscal year stretches the law past the breaking point.

CALLING OUT THIS PRACTICE COULD BRING REAL ACCOUNTABILITY TO CITY GOVERNMENT.

In other words, final approval on November 19 of $21 million in police overtime will not correct the violation of the city charter that took place when the BPD overspent its money for overtime during FY18.

In my opinion, the whole exercise is tantamount to cooking the books. It gives the impression that the city did not spend more than it was authorized to spend – when, in fact, that’s exactly what it did.

How it Should Work

When a legislative body appropriates money, it is approving the expenditure of a specific sum of money for a specific purpose.

It reflects the principle that the legislature has the power of the purse and sets limits on expenditures by the government for any given purpose.

No official or agency may make a purchase or create a financial obligation on the part of the government unless there is an appropriation sufficient to pay for the purchase or meet the obligation.

The appropriation must precede the expenditure. That is a proposition generally understood by managers at every level of government.

Spending money before there is a sufficient appropriation may be justified in actual emergencies, such as hurricanes or blizzards.

The recurring over-expenditure by Baltimore Police of its overtime budget is not such an emergency.

MIA: Transparency

One reason why this happens is that Baltimore’s “city charter,” or constitution, lacks teeth in the area of appropriation control.

In neighboring jurisdictions, there is tighter oversight. The Howard County Charter, for example, provides that no local agency can “expend, or contract to expend, any money or incur any liability, or enter into any contract. . . in excess of the amounts appropriated or allotted” in the budget for that fiscal year.

The charter goes on to say that “if any officer, agent or employee of the County shall knowingly violate this provision, he or she shall be personally liable and such action shall be cause, after public hearing, for his or her removal from office by the Executive or by majority vote of the Council.”

The charters of Anne Arundel and Prince George’s counties contain substantially the same language.

If Baltimore’s charter contained a similar provision, perhaps the police department would be more cautious about approving overtime for which no money has been appropriated.

Similarly, if the city’s outside auditor gave an adverse finding in Baltimore’s Comprehensive Annual Financial Report (CAFR) that is required for federal grant funding, perhaps Mayor Catherine Pugh would take notice.

Taking a Stand

These, of course, are conjectures. What now stands solidly before Baltimore’s legislative body is Bill 18-0265, the supplementary appropriation for police overtime.

If the Council votes down the bill on final reader on November 19, the Pugh administration will be forced to acknowledge that it spent more money than was appropriated last year.

That’s a major violation of Baltimore’s charter. Calling out this practice could bring real accountability to city government.
__________________________
David A. Plymyer retired as County Attorney for Anne Arundel County in 2014 after 31 years in the county office of law. He previously served five years as an assistant state’s attorney.

[Published as guest commentary by The Baltimore Brew on November 2, 2018 but not posted to my blog until January 31, 2019.  The date of posting that appears above was backdated to put all posts in the order in which they were written.]