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.
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.]