To dream the impossible dream…about an amendment to the Md Public Information Act.

Few things in life are a bigger waste of time for an ordinary citizen than to send, unsolicited, a proposed bill to the Governor of the State of Maryland and ask him to support it.  But that is what I did.  For good measure, I sent copies to the President of the Maryland Senate and the Speaker of the House of Delegates.

Below is the cover letter that I sent and the memorandum that contains a proposed amendment to the Maryland Public Information Act that would allow public inspection of certain police disciplinary records.  HB 402 introduced in the 2016 session of the General Assembly was the last serious effort to pass such a bill.

I supported that bill as best I could, but I wasn’t happy with the way it was drafted.  Not that its drafting made any difference, because the bill lacked any real support and went down to ignominious defeat.  So, this year I had some time and drafted what I believe to be a better bill. Why not?

The cover letter explains why I believe that this legislation is so important, especially to the City of Baltimore:   Restoring the trust of the citizens in their police department is essential, and there will be no trust until there is some transparency in the disciplinary process.


The cover letter

December 8, 2018

The Hon. Lawrence J. Hogan, Jr.
Governor of the State of Maryland
100 State Circle
Annapolis, Maryland 21401-1925

SUBJ: Proposed amendment to the Maryland Public Information Act (MPIA)

Dear Governor Hogan:

The City of Baltimore needs your help in bringing its epidemic of murder and other violent crime under control. That epidemic is about to enter its fifth year. It is an unbelievable tragedy for both the city and the state.

The Baltimore Police Department (BPD) has two separate but related problems. It currently lacks an effective strategy for reducing the violence. It also has lost control of the conduct of its officers, the extent of which is still unfolding.

Hopefully, the year 2019 will find Baltimore with a new, permanent police commissioner. In my opinion, and in the opinion of most experts in the field, the new commissioner will have to employ an aggressive, proactive approach to policing to reduce violence.

Such an approach will be a tough sell to the citizens of Baltimore – as well it should be, given the history of abuses by the BPD – without concomitant assurances that discipline within the department is sufficient to keep such policing within constitutional limits. I am proposing that you support one small measure in the 2019 session of the General Assembly that will begin the process of restoring public trust in the BPD, trust that is essential to its effectiveness.

The proposal is to carve a narrow exception to the MPIA that allows public inspection of certain police disciplinary records. Police chiefs, police commissioners and sheriffs must be accountable to the citizens of their jurisdictions for the discipline of their departments. The only way to achieve that is through the transparency of critical disciplinary actions.

I’ve attached a copy of a memorandum that includes a proposed bill. I am perfectly aware that such proposals from ordinary citizens generally have little value in the political arena. Submitting the proposal, however, makes me feel better because at least I have tried to do something to help.

Merry Christmas, Governor, and a Happy New Year.

                      Sincerely,

                                    David A. Plymyer

Cc: Hon. Thomas V. Miller, Jr.
Hon. Michael E. Busch


The bill and explanatory memorandum

SUBJECT:            Proposed amendment to the Maryland Public Information Act regarding                                inspection of police disciplinary records

PREPARED BY: David A. Plymyer

DATE:                  December 8, 2018

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Purpose

To amend the Maryland Public Information Act (MPIA) to allow the inspection of police disciplinary records that result from complaints alleging the following conduct arising out of or occurring in the course of a police officer’s duties: 1) dishonesty or untruthfulness; and 2) the verbal or physical abuse of a citizen, including the use of excessive force or brutality.

Background

The current provisions of the MPIA categorically exempt a “personnel record” of an individual from public disclosure. Although the statute gives some examples (application, performance rating, and scholastic achievement information) there is no definition of “personnel record” in the MPIA. The General Assembly left it to the courts to flesh out a definition.

In Montgomery County v. Shropshire, 420 Md. 362 (2011), the Court referred to its earlier decision in Governor v. Washington Post, 360 Md. 520 (2000) that held that “personnel records were those [records] relating to hiring, discipline, promotion, dismissal, or any matter involving an employee’s status.” The Court went on to hold in Shropshire that the record of an internal affairs investigation into an alleged violation of administrative rules by a police officer was a “personnel record” of that officer and could not be disclosed.

In my proposed bill, I codify the Court’s decision that the General Assembly generally intended to exempt the “disciplinary records” of public employees from disclosure under the MPIA by adding a new section to the MPIA specifically addressing disciplinary records. I then spell out a limited exception to that prohibition. In my opinion, this is a far cleaner and much less confusing approach than the alternative, which would be to create an “exception to the exception” under § 4-311 of the General Provisions Article. Section 4-311 is the section that declares “personnel records” to be exempt from disclosure under the MPIA.

I chose to limit the exceptions to police officers for the obvious reasons: Police officers, unlike other public employees, have the power to use force to place citizens under arrest and restrain their liberty. Their testimony can result in the search of citizens’ homes and send citizens to prison for years.

I further limited the exceptions to the two types of conduct that I believe are most relevant to citizens’ interests in holding leaders of police departments accountable for ensuring that their officers perform their duties fairly and justly: Dishonesty and untruthfulness, and abuse of citizens, physical or verbal.

To avoid confusion, I use language that makes clear that, as the term is used in the MPIA, a “record” refers to a discrete document or set of documents – not to a list such as an individual’s driving record, criminal record, or “disciplinary record.” Therefore, as applied to a given disciplinary action, disciplinary “record” refers to the documents and other materials specific to that action, not to a listing of the discipline imposed on an individual during the entirety of the individual’s employment.

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Proposed bill

Annotated Code of Maryland – General Provisions Article

[new] § 4-328. Disciplinary records

(a) “Police officer” defined. — In this section, “police officer” has the meaning described in § 3-201(f) of the Public Safety Article.

(b) Included as disciplinary record. – – For purposes of this section, a disciplinary record includes a record of:

(1) the allegations or complaint that initiated consideration of possible disciplinary action against an employee by the individual’s employer;

(2) the investigation of the allegations or complaint conducted by or on behalf of the individual’s employer, including any findings and recommendations;

(3) for an individual subject to the Maryland Law Enforcement Officers’ Bill of Rights, the proceedings, outcome, findings of fact, and recommendations of a hearing board constituted under § 3-107 of the Public Safety Article; and

(4) the final decision by an individual’s employer on whether to impose disciplinary action, the disciplinary action imposed, and any explanation of the decision.

(c) In general. — Except as provided in subsection (d), a custodian shall deny inspection of a disciplinary record of an individual.

(d) Inspection of disciplinary record of police officer. — Subject to subsections (e) and (f), a custodian shall allow inspection of a disciplinary record of a police officer resulting from an allegation or complaint of the following conduct arising out of or occurring in the performance of the officer’s duty:

(1) Dishonesty or untruthfulness; or

(2) Verbal or physical abuse of a citizen, including the use of excessive force or brutality.

(e) Temporary denial. — A custodian may deny inspection of the record of an investigation governed by § 3-104 of the Public Safety Article until a hearing board constituted under § 3-107 of the Public Safety Article issues its decision.

(f) Expunged record. – A custodian shall deny inspection of a record expunged under § 3-110 of the Public Safety Article.

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Explanation of provisions

4-328(a). I incorporated the definition of “police officer” from § 3-201(f) of the Public Safety Article rather than use the definition of “law enforcement officer” from the provisions of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR). The reason for my decision is that using the Public Safety Article definition does not categorically exclude the disciplinary records of probationary police officers.

Under the LEOBR, “law enforcement officer” is defined as excluding a probationary officer except when there is an allegation of brutality. Using the definition of “police officer” set forth in § 3-201(f) means that a disciplinary complaint against a probationary officer alleging dishonesty, untruthfulness or verbal abuse of a citizen, although not subject to the LEOBR, will be subject to inspection.

4-328(b). This section specifies the recorded information that is within the scope of a “disciplinary record.” It is intended to be comprehensive and include everything from the initial complaint to the final decision. It includes the records of the proceedings of a police disciplinary hearing board constituted under the LEOBR.

4-328(c). Provides that, except as described in subsection (d), inspection of a disciplinary record of a public employee shall be denied.

4-328(d). Specifies the alleged conduct by a police officer for which inspection of a disciplinary record must be permitted. The alleged conduct must have arisen out of or occurred in the performance of the officer’s duty.

I included “verbal abuse” because such conduct can be a precursor to physical abuse. Citizens have the right to know how a police department is responding to known “red flags” to prevent misconduct from escalating from verbal to physical abuse.

“Arising out of” has a somewhat broader meaning than “occurring in” the performance of an officer’s duties, but still requires a nexus between the duties and the conduct. Under analogous circumstances courts have held that criminal or deliberate tortious conduct lies outside the scope of a police officer’s duties. See, e.g., Wolfe v. Anne Arundel County, 374 Md. 20 (2003). “Arising out of” is intended to include criminal or deliberate conduct that may not have been part of an officer’s duties but was related to (arose from) those duties in some manner.

4-328(e). Allows the custodian to delay inspection of the record of an investigation governed by the LEOBR until a police disciplinary hearing board issues its decision. Intended to protect the integrity of the investigation and the hearing process.

4-328(f). The LEOBR allows the expungement of a disciplinary complaint against a law enforcement officer three years after a final disposition of the complaint that exonerates the officer. This provision would prohibit a custodian from allowing inspection of a record expunged under the LEOBR.


I have been told that there is some interest in resurrecting the effort to amend the MPIA to allow limited inspection of police disciplinary records, and I passed the above proposal along to the person who told me that.  Do I have any great hope that my or any other proposal will go anywhere in the 2019 session?  No, but at least I tried to do something to move the police reform ball forward.  Which is more than most state officials can say.

 

Not all change is good when it comes to the words of hymns.

My reflection on this Pearl Harbor Remembrance Day is on the “Battle Hymn of the Republic” as sung by the parish choir of St. Martin’s Episcopal Church in Houston at yesterday’s funeral service for former president George H.W. Bush. The arrangement and singing were beautiful. In my opinion, there was just one problem: The lyrics in the fifth stanza.

Here are the lyrics as written by Julia Ward Howe in 1861 and first published in 1862:

“In the beauty of the lilies Christ was born across the sea,
With a glory in His bosom that transfigures you and me;
As He died to make men holy, let us die to make men free!
While God is marching on.”

Here is the third line of the stanza as sung by the St. Martin choir:

“As He died to make men holy, let us live to make men free!”

Let me make clear that I do not blame the choir or the church for the change; I am informed that “live” appears in many modern hymnals. The accepted history is that the change dates to 1959 when it appeared in a recording released by the Mormon Tabernacle Choir.

The modification gained a foothold as churches became more self-conscious about the hymn’s celebration of American militancy and the glorification of war as a purported instrument of God’s will. I understand the concern, but the change strips the most powerful passage in the song of the historical context that gives the passage its power. And it misses the larger, most important point of the original lyrics.

Julia Ward Howe was an ardent abolitionist who chafed at her own inability to make a direct contribution to the Union cause. When she wrote “let us die to make men free” she was referring to a willingness to die for that cause, quite literally. She wrote the hymn at the beginning of a war that would claim the lives of approximately 360,000 Union soldiers.

The larger point is, of course, the righteousness of sacrificing oneself, if necessary, for the freedom of others. The original language of the stanza is rightfully considered one of the most brilliant and stirring passages in American music.

As a boy, I sang the hymn countless times at Advent Lutheran Church in West Lawn, Pa.    I understood what Julia Ward Howe meant by the words, although I may not have fully appreciated their gravity until later. But Pastor Ernest Weber did. Gassed with chlorine gas on the fields of France in World War I, he preached with a raspy voice barely louder than a whisper.

And the many veterans of World War II and Korea sitting in the pews, including my father, got it. And, so did the widows, including Helen Frey, one of my mother’s best friends, who lost her husband in Korea.

There were older men and women in the congregation, including my grandmother, whose grandfathers had fought for the Union in the Civil War. They understood the meaning of those words, as well.  They sang that hymn from their heart, and it feels disrespectful to suggest that the words that they sang were somehow inappropriate, or unChristian.

I don’t believe in glorifying war. But the hymn reminds Christians that there are some things worth fighting and even dying for, and that the freedom of black men, women and children held as slaves on American soil was one of them. It seems to me that message is no less important today than it was in 1861.

If you don’t believe me that we need to continue to celebrate the righteousness of sacrificing, if necessary, for a cause greater than ourselves, then ask Cadet Bone Spurs.

On second thought. . .

The neighbors of the Chabad House of Towson are victimized once again.

Well, it looks like the neighbors of the Chabad House of Towson and Goucher in Towson are being victimized again, this time by accusations of religious prejudice for pursuing their legal remedies to have the 6,614 square-foot community center torn down. The accusations, attributed to a group called Friends of Towson Chabad, were reported last week in a front-page story in the Baltimore Sun captioned “Jewish group in Towson claims court order to raze Chabad center is case of religious discrimination.”

The Chabad House is a Jewish community center located about a block from the Towson University campus in a residential subdivision of Baltimore County known as Aigburth Manor. Rabbi Menachem Rivkin directs the center on behalf of the Chabad-Lubavitch movement. The deed to the property describes the owner as Friends of Lubavitch, Inc.

In 2017, the Circuit Court for Baltimore County held that the building located at 14 Aigburth Road violated private setback covenants applicable to the property and would have to be razed as a result of a suit brought by neighbors and the Aigburth Manor community association. The required building setback is 115 feet from the road and the structure is less than 60 feet from the road. The county is not a party to the case.

In a separate case in 2017, the Baltimore County Board of Appeals ruled that the building permit for the structure had been procured “dishonestly.” The county did nothing about the unlawful structure as a result of the board’s decision, an inexplicable failure to act discussed below. The board’s decision, however, has no direct bearing on the legal action brought by the neighbors to enforce the private covenants.

The Board of Appeals held that Friends of Lubavitch had “acted in bad faith” by misrepresenting the purpose of the structure on the permit application as a “residential” addition to an existing 2,200 square-foot home occupied by Rabbi Rivkin. Rabbi Rivkin, who according to the Sun currently is expecting his sixth child, claimed that the 6,614 square-foot addition was necessary to accommodate his expanding family.

The Board of Appeals found that, from the beginning, the purpose of the building was to serve as a community center, a use not permitted as a matter of right under the zoning applicable to the property. The Board concluded that the permit therefore had been obtained by deception and misrepresentation.

In its opinion, the Board of Appeals referred to the testimony of the owner of the neighboring property, Robin Zoll. According to Mrs. Zoll, when she confronted Rabbi Rivkin about the manner in which the building permit had been obtained his response was: “I was as honest as I could be to get my permit.” The board called it a “stunning admission.”

In summary, Friends of Lubavitch, Inc. obtained the building permit for the structure in 2016 through what the Board of Appeals deemed to be misrepresentation and dishonesty. As if that wasn’t enough, Friends of Lubavitch built the community center in 2017 in violation of private covenants applicable to the property, effectively forcing the neighbors to act because the county had not.

In my experience, no neighbors would have taken this travesty lying down if they had the resources to fight it. For one thing, a structure like this can cause the property values of surrounding homes to plummet; the Board of Appeals noted that the building caused the assessed value of the neighboring property to drop from $408,000 to $341,500. For another, if you don’t enforce private covenants consistently and uniformly, you can lose your right to enforce them at all.

Now supporters of the Chabad House, including Rabbi Rivkin, are accusing its neighbors of anti-Semitism for asking the court to enforce the private covenants. You’re beginning to get a picture of who the real victims in this saga are. The neighbors are in this position only because the Baltimore County government failed to do its job.

In addition to the story in the Baltimore Sun describing the allegations of religious prejudice, there is another reason to review the history of the Towson Chabad House now. As Baltimore County begins the transition to his administration, County Executive Johnny Olszewski, Jr. and his transition team should review the Chabad House scandal to decide if this is how they believe that county government should treat its citizens. I know that this post is a long read, but there is no other way to appreciate the abuse that the neighbors of Chabad House have been forced to endure other than to understand the history.

Even though this post is long, it does not capture all of the relevant events. The Baltimore Sun recently did a timeline, with links to previous stories, that you can consult if you want additional detail.

By my count, the Aigburth Manor neighbors have been victimized at least three times. Twice by the Baltimore County government, and once by the friends of Towson Chabad aided and abetted by the Baltimore Sun.

The Chabad House of Towson and Goucher

Chabad House is approximately 6,614 square feet in size and is attached to the 2,200 square-foot pre-existing house by a breezeway. For all practical purposes, it is a separate, freestanding structure. There was no attempt to harmonize the institutional design of the addition to the house. The three-story building is seven feet higher than the neighboring three-story home.

The first floor of Chabad House has a dining room that can seat over 120, with a cloak room and men’s and women’s powder rooms to serve it; it is small banquet hall. The kitchen is commercially outfitted and far larger than necessary to serve Rabbi Rivkin’s family and friends. The building has rooms for a library, conference room, synagogue and student lounge.

There are two apartments on the second floor that have outside entrances. According to the findings of the Board, Rabbi Rivkin told members of the community that one of the apartments was for visitors and the other was for a caretaker. Neighbors say that the student center is open 24 hours a day and is illuminated all night.

Here is how the mission of Chabad House is described on its website: “Chabad at Towson provides a sense of Judaism though living and learning to the students at the University. We offer educational, ritual, and social activities to all students regarding the Jewish heritage and culture. We also provide Shabbat and holiday services and dinners, and meals that are prepared Glatt Kosher.”

Chabad House is a Jewish community center that serves both Towson and Goucher students. Even the group alleging that the ordered demolition is discriminatory refers to the building as a “religious hospitality center.” No one claims any longer that is nothing more than a residential addition to a single-family home to accommodate Rabbi Rivkin’s family. That pretext seems to be forgotten.

I. THE BUILDING PERMIT FOR CHABAD HOUSE NEVER SHOULD HAVE BEEN ISSUED BY THE BALTIMORE COUNTY DEPARTMENT OF PERMITS, APPROVALS AND INSPECTIONS.

The Department of Permits, Approvals and Inspections ignored an opportunity to nip this travesty in the bud. Proper action by the county would have saved everyone, including Friends of Lubavitch, a lot of time, money and agony. Why the county failed to act at this stage, and at the next, are questions that deserved a lot more attention than they got.

There are four legal and administrative proceedings described herein. Two of them, the case in the Circuit Court for Baltimore County brought by the neighbors and the hearing before the Baltimore County Board of Appeals, took place after construction of Chabad House had been completed.

The other two, the review of the building permit application by the county Department Permits, Approvals and Inspections an and an administrative hearing before a county administrative law judge, took place before construction began. The Department of Permits, Approvals and Inspections had ample grounds upon which to deny the building permit, however.

If you don’t believe me about that, read what the Board of Appeals had to say about what the department knew when it was reviewing the permit application. You need to be aware that Lubavitch re-submitted plans for a “residential additional” after identical plans for a parsonage were rejected by the county Department of Permits, Approvals and Inspections to understand the board’s reference to the “new” plans.

The following comment by the county Board of Appeals may be the single most telling comment by anyone about the county’s attitude toward Chabad House:

“It is probably the case that no one in [county] officialdom actually believed that those new plans . . . were for a mere residential addition designed to help Rabbi Rivkin’s burgeoning family. And while it is reasonable to believe that few in county government believed the Lubavitch claim, no one in county government felt empowered to take steps to block construction.”

The Board of Appeals may have believed that no one in county government felt “empowered” to take steps to block construction. In my opinion, it is more likely that no one in county government felt inclined to take steps to block construction.

Here’s one step that the county could and should have “felt empowered” to take: Deny the permit. In my opinion, the Department of Permits, Approvals and Inspections knew or should have known from the plans and other information submitted to it that the permit being sought was not for a residential addition; there was ample evidence to support denial of the permit. If Friends of Lubavitch disagreed with the permit denial, let them appeal the decision to the Board of Appeals. Give Rabbi Rivkin and any other representatives of Friends of Lubavitch the opportunity to testify and be cross-examined under oath about the purpose of the addition.

The failure by the county to deny the application for a building permit for Chabad House was problematic and troublesome. There are other actions and inactions by the county that are even more suspicious.

As noted above, Lubavitch first sought a building permit for a “parsonage.” That application was denied by the county because a parsonage is allowed only as an accessory use to a synagogue, church or other house of worship, and even houses of worship are not allowed in the zoning applicable to the neighborhood.

According to testimony before Baltimore County Administrative Law Judge John Beverungen it appears that, after a discussion between Lubavitch lawyer Timothy Kotroco and Director of Permits, Approvals and Inspections Arnold Jablon, the application was changed to label the proposed structure simply as an “addition” to the existing residence. There were no material changes to the proposed structure.

The application was re-submitted with the proposed structure relabeled.  Based on the transcript from the hearing before Judge Beverungen, Mr. Jablon informed Mr. Kotroco that he would not issue a permit, however, until after the neighbors had a chance to be heard.

As a consequence, a “special hearing” was held. This is Mr. Kotroco’s account to Judge Beverungen at that hearing of his discussion with Mr. Jablon that led to the special hearing:

“[Mr. Jablon] said ‘I’m not going to give you a building permit for the house. I want you to have a hearing. . . because I’m not going to give you a building permit until you have a hearing and at least give an opportunity for the neighbors to come in . . . I want you to have a hearing so they know, public disclosure, and they know what it is you’re doing out there.’”

Mr. Kotroco is a former Baltimore County Zoning Commissioner and Administrative Law Judge, but he didn’t know what type of “hearing” Mr. Jablon was referring to. Mr. Kotroco continued his explanation to Judge Beverungen as follows:

“And I said [to Mr. Jablon] ‘Okay. But I’m not sure what to ask for.’ And I asked for a special hearing. I came up with the language that you see on the special hearing application. I took it back in to Mr. Jablon. I said ‘Well, here’s what I’m filing. Are you comfortable with that? I’m going to go in. We’ll have a public hearing. Whoever wants to come in and take a look at what we’re doing and ask any questions about this addition, that’d be great. I’m going to file it.’

And [Mr. Jablon said, ‘That’s what I want you to do.’ So that’s what I filed. And that’s why we’re here.”

Why were they there before an Administrative Law Judge? In retrospect the purpose of the so-called “special hearing” is not clear at all. The neighbors protesting the application for the permit certainly thought that they were there for an opportunity to persuade Judge Beverungen to block issuance of the permit because the proposed structure was not in fact a residential addition to an existing single-family home.

Was such definitive action by Judge Beverungen ever in the cards, however? At the conclusion of the hearing, Judge Beverungen ruled that the question placed before him was one that went to the ultimate use of the structure that could only be resolved once the structure was completed and put to use.

Judge Beverungen stated that he could do more than rule that Lubavitch had the right to construct an addition to the house for residential use – a fact that no one disputed. If the addition was used for something other than residential use upon completion, it was a problem for the county’s zoning enforcement officials to address if and when such improper use occurred, according to Judge Beverungen. In other words, the entire hearing was a waste of time.

Was the special hearing ever intended as anything more than a “show hearing” intended to appease the neighbors? Or perhaps intended to burn up the resources of the neighbors and the Aigburth Manor community association in a pointless proceeding by wasting the money that the neighbors and their community association paid to a lawyer to represent them during the hearing?

Undaunted, the neighbors and their community association appealed Judge Beverungen’s non-decision to the county Board of Appeals. In the meantime, the Department of Permits, Approvals and Inspections issued the building permit to Lubavitch and construction began.

The Board of Appeals decision

The Board of Appeals overruled Judge Beverungen in a 2-1 decision. As noted above, the structure had been completed and put to use as a community center by the time the Board of Appeals got the case. Nevertheless, the dissenting board member opined that the “wiser course” would be to deny the neighbors’ request to declare the structure unlawful and leave the matter to zoning enforcement officials. Another profile in courage from a county official who wanted to push the problem off on someone else.

As far as I can tell, board members Joseph Evans and Meryl Rosen were the only county officials to acquit themselves well throughout this entire debacle. The two wrote in the Board’s decision:

“Sadly, Lubavitch has achieved its goals by manipulating both the administrative system as well as everyone’s natural inclination to defer to religious organizations. In the end, Lubavitch has left [the Board of Appeals] with very few options, but leaving the neighbors stranded cannot be one of them.”

The decision concluded that Lubavitch “acted in bad faith in obtaining the building permit and constructing the addition.” It declared that Lubavitch “is and has been using the property at 14 Aigburth Road as a community center without having obtained the necessary approvals or complying with the necessary regulations.”

The decision set the stage for the Department of Permits, Approvals and Inspections to revoke the permit and file suit to have the addition removed. The Board of Appeals may have been unwilling to leave the neighbors stranded, but the Department of Permits, Approvals and Inspections wasn’t. The department refused to join the fight to have the unlawful structure removed.

II. THE BUILDING PERMIT SHOULD HAVE BEEN REVOKED AND LEGAL ACTION INSTITUTED BY THE COUNTY TO REMOVE THE UNLAWFUL STRUCTURE ONCE IT WAS DETERMINED BY THE BOARD OF APPEALS THAT THE BUILDING PERMIT HAD BEEN OBTAINED BY MISREPRESENTING THE PURPOSE OF THE STRUCTURE.

There is evidence to suggest that the decision by the Board of Appeals upset a plan by the county to give the neighbors their “day in court” and then issue the building permit. As documented in her letter to Mr. Jablon dated January 17, 2018, Mrs. Zoll claims that she and others were told by Mr. Jablon during a meeting in September 2016 that he “needed a final order from the Board of Appeals before taking the action to stop the construction, then underway, and enforce the zoning laws with respect to the [Chabad House] property.”

The county, however, did nothing about the Chabad House when the order became final on September 5, 2017 and continues to do nothing. Mrs. Zoll pressed her argument with county officials that because of the ruling by the Board of Appeals it was the county’s responsibility to have the building torn down. The county did not concur:

“We disagree with [Mrs. Zoll’s] interpretation that the County must require the addition to be removed,” county spokeswoman Ellen Kobler wrote in an email, according to the Sun in a story published in March of this year. “The Board’s issue was the use, not the size of the building.”

First of all, Ms. Kobler’s characterization of the board’s decision was not accurate. The board determined that the building permit was obtained by a bad faith misrepresentation of the purpose of the structure and that the permit would not have been issued if the true purpose had been disclosed. Chabad House was up and operating by the time of the board’s decision, and the board found that it was a non-residential structure; specifically, a community center.

As described by the Board of Appeals, the result of the construction under the permit was an outsized structure unsuitable for residential use. The board cited a witness who testified that “it is unimaginable that a normal home buyer would ever dream of purchasing this so-called house were Lubavitch to decide to sell it.”

The permit was issued for a residential structure. Friends of Lubavitch built a community center, which is a non-residential structure. The size of the structure has no bearing on the lawfulness of the construction. It is an unlawful, non-residential structure.

Ms. Kobler’s interpretation of the county’s responsibility under the law for removal of the building also was 100% wrong. The permit was based on material misrepresentations of fact by the applicant and may be “voided as if it had never been issued” by the Department of Permits, Approvals and Inspections. The county should have acted to return the property to its pre-existing condition. The following is from the Baltimore County Building Code:

PART 112.6 REVOCATION OF PERMITS. THE BUILDING OFFICIAL MAY REVOKE A PERMIT OR APPROVAL ISSUED UNDER THE PROVISIONS OF THIS CODE IN THE CASE OF ANY FALSE STATEMENT OR MISREPRESENTATION OF FACT IN THE APPLICATION OR ON THE PLANS ON WHICH THE PERMIT OR APPROVAL WAS BASED. IF ANY PERMIT IS ISSUED IN VIOLATION OF THE PROVISIONS OF THIS CODE OR OTHER LAWS, RESOLUTIONS AND REGULATIONS OF BALTIMORE COUNTY, OR LAWS OF THE STATE OF MARYLAND, OR WITHOUT PROPER AUTHORITY, IT MAY BE VOIDED AS IF IT HAD NEVER BEEN ISSUED.

The law hardly could be any clearer and applies whether there has been construction done under the permit or not. Revocation of a permit obtained by a misrepresentation of fact is the first step in the legal process for a county to have construction done under a permit demolished. See Permanent Financial Corp. v. Montgomery County, 308 Md. 239 (1986).

The county lost its first opportunity to do the right thing when it did not deny the building permit for Chabad House. Even if you accept the proposition that the county was “powerless” to deny the permit (I certainly don’t), it had no excuse for its failure to revoke the permit and move to have the building torn down after the Board of Appeals issued its decision.

On March 29, 2018, after reading Ms. Kobler’s “explanation,” I wrote a piece posted on my blog that reproduced the language of the county building code described above. County officials thereafter stopped claiming that the law did not allow it to act to remove the building and, incredibly, instead began disputing the facts as adjudicated by their own Board of Appeals.

On April 9, 2018, Sun reporter Libby Solomon picked up my point about the law in a story about Chabad House. The following is an excerpt from her story:

According to the Baltimore County building code, the county can revoke a building permit if there is a “false statement or misrepresentation of fact in the application or on the plans on which the permit or approval was based.”

But Arnold Jablon, county director of permits, approvals and inspections, said the county has no plans to revoke the permit, saying in an email sent through spokeswoman Ellen Kobler that it was “legally applied for and secured,” and was not acquired under false pretenses.

“If I say I will use my home as a residence but use one room for a home office, is that a false statement?” Jablon wrote. “What if the property owner at the time he applied for a bldg. permit believed his intentions were permitted as residential uses?”

[Emphasis added.]

Let’s get this straight: After hearing hours and hours of testimony and legal argument documented in a 17-page opinion, the Baltimore County Board of Appeals concluded that the building permit was “dishonestly obtained” by Lubavitch based on misrepresentations of fact by Lubavitch and Rabbi Rivkin about the purpose of the structure – i.e., the permit was obtained under false pretenses. But Mr. Jablon, who according to the Board of Appeals apparently felt powerless to deny issuance of the permit, now feels empowered to disregard a decision by the county’s Board of Appeals and decide for the county that the permit was “legally applied for and secured”?

Who the hell is Arnold Jablon to second-guess the findings of fact and decision made by the Baltimore County Board of Appeals after a contested-case, quasi-judicial hearing? The Board of Appeals was established by the county charter so that citizens have some protection from decisions made by bureaucrats like Mr. Jablon.

In summary, the county, through Ms. Kobler, first tried to argue that the county had no power to act under the law. When confronted by me and then by Ms. Solomon with the relevant provisions of the county building code, the county, through Mr. Jablon, changed tack to argue that the building permit was lawfully obtained, despite the finding by the county’s own Board of Appeals.

I mentioned above that I believe that there may have been a plan by the county to railroad the permit through. You will recall the statements made to Judge Beverungen by Mr. Kotroco, Lubavitch’s lawyer, recounted above. Here is that same line of inquiry when the case was appealed to the Board of Appeals, in the form of questions by Mr. Kotroco to a surveyor employed by Lubavitch that he called as a witness:

Mr. Kotroco: You’re aware that Mr. Jablon told us to file the special hearing, and I’ll give you the permit. Is that what you’re aware of?

Witness: Yeah. More or less that was what I was aware of, you know, secondhand. But, yes.

Mr. Kotroco: “Give the neighbors the notice, file the hearing, have the hearing, I’ll give you the permit”?  [Emphasis added.]

Witness: Notice was – – that seemed like the key issue.

Mr. Kotroco: Okay.

“Give the neighbors the notice, file the hearing, have the hearing, I’ll give you the permit.” If that is an accurate account of what Mr. Jablon said, then it sounds like the hearing was intended to be nothing more than a charade.

Did two members of a three-member panel of the Board of Appeals upset the apple cart by what they described as their refusal to leave the neighbors stranded, and by declaring the structure unlawful? If so, no problem: Mr. Jablon now says that he disagrees with the Board of Appeals, and he still refuses to act.

To recap the sequence of events: Mr. Jablon proposes that the issue of whether Friends of Lubavitch is entitled to obtain a building permit for what the neighbors claim is a community center, not a residential addition, be submitted to an administrative law judge for determination. The administrative law judge, however, rules that the issue is not ripe for decision until the building is completed and in use.

The neighbors exercise their right of appeal to the county Board of Appeals. While the appeal is pending, Mr. Jablon issues the building permit and construction begins. By the time of the hearing before the Board of Appeals, construction is completed.

The Board of Appeals finds that the building permit was obtained by deception and should not have been issued: The building was, from the beginning, intended to be a community center and that is what it is and how it is being used. The neighbors were right. The building is a community center, not a residence.

And then, after all the hours and hours spent in hearings by the neighbors, and the money spent on lawyers, Mr. Jablon decides that he no longer cares what the Board of Appeals has to say. As far as he is concerned, the building permit was “legally applied for and secured” and that the permit was not acquired under false pretenses.

What kind of county allows its public officials to treat citizens like that? Answer: Baltimore County.

III. THE ACCUSATIONS OF ANTI-SEMITISM MADE AGAINST THE NEIGHBORS OF CHABAD HOUSE FOR TRYING TO VINDICATE THEIR LEGAL RIGHTS WERE SCURRILOUS, AND SHOULD NOT HAVE BEEN PUBLISHED ON THE FRONT PAGE OF THE BALTIMORE SUN.

According to the Sun, organizers of a group called Friends of Towson Chabad likened the opposition to the center and the court rulings to Kristallnacht, the name given to two days in 1938 when German Nazis torched synagogues and vandalized Jewish homes, killing nearly 100 Jews. Rabbi Rivkin is identified in the story as a member of the Friends of Towson Chabad.

“Eighty years after Kristallnacht, a rabbi’s home and a home for thousands of Jewish students is slated for destruction,” the organizers stated, according to the Sun. “For a clearly discriminatory ruling like this to be administered in the 21st century is chilling.”

The record of the Board of Appeals indicates that the neighbors of Chabad House bent over backwards to accommodate the use of the Rivkin residence as a student center before the addition was constructed. They tolerated the traffic and noise attendant to the comings and goings of students to Rabbi Rivkin’s residence in the spirit of being good neighbors.

It was not until Lubavitch decided to build an outsized institutional structure more than 55 feet inside the required front setback from the street that the neighbors acted. Imagine how the neighbors felt reading these highly-damaging accusations on the front page of the Baltimore Sun. Here is what Mrs. Zoll told the Sun:

“I’ve lived in this community for more than 50 years, and I have a very good reputation, and I am not an anti-Semite or an anti-anything,” she said. “It’s an absolute besmirchment of everything that I am.”

In my opinion, the Baltimore Sun did the neighbors a further injustice by running the story captioned “Jewish group in Towson claims court order to raze Chabad center is case of religious discrimination” on the front page of the newspaper. From the paper’s coverage of the long-running dispute the Sun’s reporters and editors knew or should have known that the claims of anti-Semitism were suspect at best.

So why put them on the front page? I view the decision to give the accusations front-page coverage as cheesy sensationalism unbecoming a paper like the Sun.

The text of the article isn’t much better. It lumps the Chabad House controversy in with a series of cases brought against the county under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

That comparison gives the allegations more credence than they deserve. For one thing, the county isn’t involved in the suit that resulted in what the Friends of Towson Chabad call a “clearly discriminatory ruling.” It is a private action brought to enforce a private contract. Nothing in the facts of that dispute supports a RLUIPA action, in my opinion.  Indeed, the story does not describe the factual underpinnings of the group’s claim of discrimination – if there are any.

Also, the story buries an important part of the history of this matter on the second page and even then, understates it. The story states only that the Board of Appeals found Friends of Lubavitch to be “insincere” in describing the proposed building as a residence.

As we know, the language of the board’s decision was a lot stronger than that. The decision stated that Lubavitch “acted in bad faith in obtaining the building permit and constructing the addition,” and described much of Rabbi Rivkin’s testimony at the hearing as “coy and disingenuous” and as “not particularly credible on contested points.” The board concluded that the permit had been “dishonestly procured.”

The board’s decision referred to Rabbi Rivkin’s demeanor at the hearing as “self-interested and combative.” Even the dissenting member on the panel noted that he agreed with the majority that Rabbi Rivkin’s testimony was “evasive and truculent.” It must have been quite a performance.

Judge Susan Souder of the Circuit Court for Baltimore Court wrote the Memorandum Opinion finding that the setback covenant applicable to the Chabad House property was valid and that the community center violated it. Judge Souder apparently was also unimpressed with Rabbi Rivkin’s testimony, noting that his “demeanor was evasive and aggressive during questioning.” She stated: “Thus, where his testimony differed from that of Robin Zoll, whom the Court found credible, the Court credited Ms. Zoll’s testimony.”

Judge Souder also noted that a neighbor brought the existence of the setback covenant, a matter of public record, to the personal attention of Rabbi Rivkin while the site was still being excavated, before actual construction had begun. Friends of Lukavich elected to continue with construction despite the risk of it being found to violate the setback requirement.

Why was information that undermined the credibility of the accusers buried toward the end of the story? And why was it understated?  In my opinion, the Sun’s story took a very serious allegation out of its context and placed it on the front page where it would draw the most attention and do the most damage to ordinary citizens trying to enforce their contractual rights.

CONCLUSION

Baltimore County left the neighbors of Chabad House and the Aigburth Manor community association to fend for themselves in what has become extremely expensive litigation to try to get a building torn down that the county never should have allowed to be built. The county failed to act even after the county Board of Appeals determined that the structure was unlawful. The refusal of the county to step up to its responsibilities in this matter is, in my opinion, base and borderline immoral.

Mrs. Zoll, her neighbors, and the members of the Aigburth Manor Association, Inc. who stood up for their rights are heroes in my book. Their efforts opened a window for the rest of us to see how Baltimore County government operates.  Can you imagine how the county treats residents who don’t have the resources to fight back?  It is unfortunate that in addition to mistreatment by their own county government these citizens also had to endure personal attacks plastered on the front page of the Baltimore Sun.

I hope that Mr. Olsewski and his transition team take a close look at the Chabad House debacle and at the Department of Permits, Approvals and Inspections. Something that one hears throughout the county is that county government needs a “housecleaning.” Based on what I found when looking into the Chabad House controversy, I believe that the housecleaning done in the Department of Permits, Approvals and Inspections should be an especially thorough one.