A Civil War plaque that honors both sides should stay where it is

 

Union and Confederate veterans shaking hands at reunion to commemorate the 50th anniversary of the battle of Gettysburg in 1913. (Library of Congress, Prints & Photographs Division)

For a legislator known as a consensus-builder and expected to try to mend deep rifts in Maryland politics, proposing to remove a plaque memorializing Marylanders who fought in the Civil War — from both sides — was a curious first step for Adrienne A. Jones (D-Baltimore County), the newly elected speaker of the Maryland House of Delegates.

As a Northerner transplanted to Maryland, I agree with her that the preamble inscribed on a plaque the Maryland Civil War Centennial Commission placed on a wall of the Maryland State House in 1964 is troublesome.

The preamble notes that the commission “did not attempt to decide who was right and who was wrong.” Well, the commission did not have to decide who was right and who was wrong. History had already done so. Any equivocation on the subject was misguided.

I disagree, however, with Jones’s position that it is improper to “memorialize” Marylanders who fought for the Confederacy. It is wrong to legitimize their cause. But remembrance of the thousands of who fought for the South serves a purpose — forgiveness and reconciliation — that is as important today as ever.

Jones is the first woman and the first African American to serve as speaker. The speaker serves as an ex officio member of the State House Trust, which oversees changes to the State Capitol. In her first action as a member of the trust, Jones proposed removing the 1964 plaque. That would be a mistake.

The plaque states that it is intended as “evidence for [Maryland’s] remembrance of her nearly 63,000 native sons who served in the Union forces and the more than 22,000 in those of the Confederacy in the War Between the States,” observing that they “tried to do their duty as they saw it.” By 1964, the last veteran of the Civil War had died, and the language of the plaque correctly reflected the fact that the time for judging individuals by the side they chose had long since passed.

A photograph of my great-great-grandfather Alexander Frantz hangs in my living room. He was from the Harrisburg, Pa., area and served with the 46th Regiment of the Pennsylvania Volunteer Infantry.

Like many Marylanders who fought for the South, he was a poor, uneducated farmer. He undoubtedly spent little time studying the issues before deciding to enlist in the Union Army. Had he grown up 40 miles to the south, he may have decided differently. Does that matter anymore?

I am sure Jones has taken the short journey up the road from her home in Baltimore County to the Gettysburg National Military Park. I’d urge her, however, to take a special trip to visit the State of Maryland monument, dedicated in 1994.

The monument is a bronze statue on a granite base depicting two wounded Marylanders, one Union and one Confederate, helping each other on the battlefield. The inscription reads: “Brothers again, Marylanders all.”

It is the same sentiment that the State House plaque attempts to convey, perhaps less artfully than if written today. There is no need to throw the baby out with the bathwater, and Jones’s position that it is inappropriate to memorialize men who fought and died for the Confederacy threatens to make the racial and political divisions in Maryland even worse.

An iconic photograph from the 50th reunion of the Battle of Gettysburg in 1913 shows Union and Confederate veterans of the battle shaking hands across the stone wall at the Angle, the area targeted by Pickett’s Charge and the high-water mark of the Confederacy.

The men on one side of the wall had not forgotten that the men on the other side once tried to kill them. But they understood at a level few of us can appreciate that the path to healing is through forgiveness and reconciliation, not through bitterness and condemnation.

The Civil War was fought over the institution of slavery. The wounds of slavery, including its legacy of systemic racism, have not healed. They will not heal until we abandon our obsession with revisiting the past in search of people to blame for problems that can be solved only in the present. And revisiting the past is what Jones’s proposal feels like.

We should let Confederate veterans rest in peace and let their descendants remember them with dignity. That can be done without glorifying their cause and will allow us to learn from the past without unnecessarily refighting old battles and reopening old wounds.

[Published as an op ed by the Washington Post on June 21, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Do Builders and Developers Still Control Baltimore County?

Builders, developers and their lawyers dominated Baltimore County politics and government during the administrations of former county executives Jim Smith and Kevin Kamenetz. Although the focal point of their influence may have shifted from the county executive’s office to County Council chambers with the election of current County Executive Johnny Olszewski Jr., they still wield enormous power in county affairs.

The most recent manifestation of that power came in the form of the watered-down impact fee bill passed by the Council. Once again ordinary taxpayers came out on the losing end in a contest with builders and developers in Baltimore County. This latest setback could have significant political repercussions because of the way that taxpayers got whipsawed by the County Council.

Taxpayers will see the county income tax rate go from 2.83 percent to 3.3 percent to help eliminate an $81 million budget deficit. The rate increase is expected to yield an additional $33 million in revenue each year.

To ensure that the entire burden of erasing the deficit did not fall upon ordinary taxpayers and that builders and developers paid their fair share, Olszewski proposed Bill No. 23-19. The bill would have produced revenue estimated at $7.7 million per year through an excise tax on new construction.

As it turns out, however, only ordinary taxpayers will be required to uphold their end of the bargain. The council rejected Bill No. 23-19 and passed an alternative bill introduced by Councilmember David Marks, Bill No. 16-19, that was amended practically to death at the urging of builders and developers. Business as usual in Baltimore County.

Political skullduggery vs. ordinary ineptitude

Sometimes in Baltimore County it is difficult to distinguish between political skullduggery and ordinary legislative and legal ineptitude. Bill No. 16-19, as amended and passed by the county council, appears to be a combination of both.

Initial county estimates were that it would generate about $5.7 million per year. The county will not see a full year of revenue from the bill until 2023 because of last-minute amendments to the bill delaying its implementation.

Also, county revenue estimates did not include the effect of numerous credits and exemptions added by those last-minute amendments. The amount of developable land excluded from the scope of the development impact surcharge imposed by the bill alone is so great that the revenue could be far less than $5.7 million per year.

One of the oddest things about Bill No. 16-19 is that it imposes an excise tax and a development impact fee on new construction, depending on the type of construction. The excise tax, called the “development impact surcharge,” is imposed on industrial and commercial construction, including multi-family dwellings. The development impact fee applies to new residential construction, including single-family homes.

Why did the council reject the county executive’s straightforward proposal to impose a development excise tax on both types of construction, residential and non-residential? Certainly at least part of the reason was politics, but there may also have been some confusion at work.

Development impact fees vs. development excise taxes

Senate Bill 451 was sponsored by Sen. Chris West of Baltimore County and enacted into law by the General Assembly this year as Chapter 658 of the 2019 Laws of Maryland. The bill authorizes Baltimore County to adopt a development impact fee.

It is not entirely clear why Mr. West, a Republican, chose to introduce a bill to authorize an impact fee when the county already has the authority to impose a charge on new construction as an excise tax under § 11-1-102(a) of the County Code, a provision enacted by the General Assembly as a public local law for the county in 1953. In 1994, the Maryland Court of Appeals held in a case called Waters Landing v. Montgomery County held that Montgomery County could use similar authority to impose an excise tax on development.

An impact fee is not the same as a development excise tax. Adding to possible confusion is a tendency to refer to the two generically as “impact fees.”

While both are intended to defray the costs of expanding public facilities to accommodate the effect (“impact”) of new construction on those facilities, there are important differences. For the reader interested in a more detailed description of the differences, one is included in the Fiscal and Policy Note prepared for SB 451.

Crafting a charge on new construction as an impact fee rather than as an excise tax has significant legal consequences. A fee system carries substantial administrative burdens and creates opportunities for litigation that simply add costs. Moreover, nothing can be done by imposing the charge as a fee that cannot be done by using a tax.

In fact, there is a technical legal term to describe the decision to use a fee structure when taxing authority is available: That term is foolish. Having said that, if I were a builder or developer, I would prefer a fee because the calculation of a fee is much more vulnerable to challenge in the courts.

The rich get richer

The County Council made a number of dubious decisions in the course of enacting Bill No. 16-19. The one that I am most curious about is suspending the imposition of both the excise tax and the impact fee until Jan. 1, 2021 for development on “land used as a country club for which a concept plan has been submitted and which is located inside the urban-rural demarcation line.” Can I assume that Council members had a particular country club in mind?

The Council also decided to greatly expand the exemptions from the fee and tax. Construction in Enterprise Zones was exempt under the bill proposed by the county executive, but Bill No. 16-19 also exempts construction in Commercial Revitalization Districts and Maryland Opportunity Zones. It is worth noting the developers get property tax credits for construction in revitalization districts and federal tax deductions for construction in opportunity zones.

That means that persons who develop property in those areas will get two tax breaks instead of one. They will get property tax credits or federal tax deductions and receive exemptions from development impact fees and excise taxes.

No evidence was presented that the absence of such exemptions would discourage development in revitalization districts and opportunity zones. That’s another object lesson in how the rich get richer, especially in Baltimore County.

Flawed process leads to flawed result

The amendments that substantially rewrote Bill No. 16-19 were negotiated in a backroom and introduced in the form of a single package to be voted on up or down by the county council. Council rules allowed the Council to vote on the amendments before giving the public a chance to read them, and the amendments and the final bill were passed on the same night that the amendments were made public. So much for openness and transparency.

Council members called the amended bill a “compromise.” A spokesperson for the Maryland Building Industry Association, which long has opposed impact fees, said that “the bill as passed is definitely more balanced and more fair.”

The hastily written amendments are full of loopholes and ambiguities. In my opinion, the amended bill was more of a hatchet job than a compromise. And I don’t believe that the bill was either balanced or fair – at least to ordinary taxpayers.

[Published as guest commentary by Maryland Matters on June 20, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Union attacks on Baltimore police commissioner damage department

The “open” letter recently sent to members of Lodge 3 of the Fraternal Order of Police (FOP) by FOP president Mike Mancuso criticizing Baltimore police commissioner Michael Harrison was a bad idea. The last thing that Baltimore needs right now is the FOP leader picking a public fight with the police commissioner.

The letter castigated Mr. Harrison for the absence of a crime-reduction plan and for failing to recognize the gravity of the disturbance at the Inner Harbor over the Memorial Day weekend. It denounced him for the news conference announcing criminal charges against Sgt. Ethan Newberg.

But it is one sentence that tells us what the letter was really about. Addressing his membership, Mr. Mancuso stated that “to this day [Mr. Harrison] has said very little about what he plans to do for you.”

Give Baltimore Police Commissioner Harrison time to develop a crime plan
The FOP represents officers of the Baltimore Police Department (BPD) in the ranks of lieutenant and below. The FOP has made positive contributions; some of the recommendations it made in 2016 for reform of the BPD were excellent. But too often it has fomented animosity between rank-and-file officers and police management, trying to intimidate commissioners by exploiting the “us vs. them” mentality that helped destroy the department.

The letter was not about a crime plan or a news conference. It was about power and the attitude of FOP leaders that public officials are either with them or against them. In their worldview, if the police commissioner doesn’t support the FOP unconditionally, he is against them.

You can date the end of the honeymoon between the FOP and Mr. Harrison to March 15, 2019, when Mr. Harrison went to Annapolis to dissuade the city delegation to the General Assembly from supporting House Bill 1251. According to Mr. Mancuso, Mr. Harrison’s testimony turned the tide against the bill, which never made it out of committee.

H.B. 1251 was introduced at the request of the FOP. The FOP was stung by what it saw as strong-arm tactics in November 2018 when members of the City Council threatened to pare down the scope of collective bargaining if the union refused to sign a new collective bargaining agreement containing changes to shift schedules. The threat worked, and the FOP approved the agreement.

As it happens, H.B. 1251 was a terrible bill. It would have superseded the authority of the City Council and allowed the union to take all disputed terms and conditions of employment to binding arbitration, removing considerable authority over departmental policies from the commissioner at the worst possible time.

The immediate object of Mr. Mancuso’s wrath after defeat of the bill was city solicitor Andre Davis, to whom he sent another “open” letter. Among other things Mr. Mancuso accused Mr. Davis of “blessing” Mr. Harrison’s testimony against the bill. If Mr. Mancuso’s letter about Mr. Harrison was petulant, his letter to Mr. Davis was vituperative.

The letter to Mr. Davis was written when Mr. Davis’ boss, former mayor Catherine Pugh, had one foot out the door because of the “Healthy Holly” scandal. Smelling blood, Mr. Mancuso seized the opportunity to go after the city solicitor. He is now signaling that he is willing to do the same to punish the police commissioner for defying the union.

Mr. Mancuso knows that this is a vulnerable time for Mr. Harrison, who is under increasing pressure to produce results. It was inevitable, given the carnage wrought by an unrelenting epidemic of violent crime, that city residents and officials would grow impatient with the time required to stand up an effective, law-abiding police force.

It also is a vulnerable time for the city, however, given that Mr. Harrison is the last best hope to save the BPD. Mr. Mancuso has a responsibility not to make his job even harder by whipping up personal animosity by his members toward the commissioner.

City and state leaders must make it clear that there will be consequences if Mr. Mancuso fails to live up to that responsibility. Those consequences include following through on the threat to impose reasonable limits on the scope of collective bargaining between the city and the police union which, by the way, would be an excellent idea.

Mr. Mancuso and other FOP leaders can advance the legitimate interests of their members without publicly criticizing the commissioner when they don’t get their way.

[Published as an op ed by the Baltimore Sun on June 18, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Public corruption in Maryland: It’s no accident

Healthy Holly wasn’t an aberration. Corruption is baked into Maryland’s political system because its leaders refuse to correct glaring deficiencies. Here are six of them.

Catherine Pugh is the latest in a long line of state and local elected officials in Maryland to leave office in disgrace.

And, undoubtedly, the former mayor of Baltimore will not be the last because we live in a state that seems perfectly content with a high rate of public corruption.

Disabuse yourself of the notion that this embarrassing legacy is an accident of history. The recurring corruption is the direct consequence of a combination of weak laws and insufficient resources committed to detecting, punishing and, most importantly, deterring corruption.

Nearly 20 years ago, U.S. District Court Judge J. Frederick Motz referred to a “culture of corruption that has been tolerated by lobbyists, legislators and the citizens of Maryland.”
The judge’s words are as true today as they were then.

Simply put, if the governor and members of the General Assembly were unhappy with the extent of the corruption, they would do something about it.

A high incidence of corruption is baked into the system of governance in Maryland because state leaders have refused to adopt tried-and-true measures to reduce it.

Here are six glaring deficiencies:

1 – Loophole-Ridden Ethics Laws

Had there not been a loophole specifically crafted for legislators, the “Healthy Holly” scandal may never have come to pass, at least not while Ms. Pugh was a state senator.

State ethics rules generally prohibit an official from participating in a matter involving a corporation in which the official is an officer or director. Sounds like a simple common-sense rule, right? Well, the rule does not apply to members of the General Assembly.

A senator or delegate is not categorically prohibited from voting on issues affecting a corporation for which the legislator is an unpaid member of the board of directors or trustees.

Pugh had been a member of the board of trustees of the University of Maryland Medical System (UMMS) when she was elected to the state senate in 2006 and assigned to the Finance Committee. UMMS placed its first book order five years later in 2011.

Do you believe that UMMS would have lavished hundreds of thousands of dollars for books that didn’t align with its medical mission if Pugh had been barred by law from voting on matters affecting UMMS in the General Assembly?

It was Ms. Pugh’s membership on the board and her long-term cozy relationship with UMMS management that emboldened her to propose the book deal, and it was her influence as a state senator that sealed the deal. Alter any of that context, and the “Healthy Holly” debacle probably never happens.

2 – Understaffed State Prosecutor

The General Assembly established the Office of the State Prosecutor in 1976, a year after federal prosecutors indicted Maryland Gov. Marvin Mandel.

(Mandel was convicted of 18 mail fraud and racketeering charges in 1977 and sent to federal prison before his sentence was commuted by President Ronald Reagan in 1981.)

In setting up the new office, the General Assembly was careful to do just enough to make it appear that it cared about political corruption without making it too much of a “nuisance.”

Most significantly, the state prosecutor was not given the same powers as a state’s attorney to issue subpoenas for records until 2008 or to compel witnesses to testify in exchange for “derivative use” immunity until 2014.

Three years ago, the office lost its computer forensics laboratory to budget cuts.

The current budget for the state prosecutor allows for 13 lawyers, investigators and support staff. That’s not enough resources to cover Baltimore County, let alone the entire state.

As a consequence, the office can investigate and prosecute only a limited number of cases and, by necessity, it goes after low-hanging fruit.

3 – No Statewide IG

Perversely, the absence of an Inspector General is tailor-made to the small size of the Office of State Prosecutor. Fraud and other misconduct go undetected in state agencies because there is no “watchdog” agency looking for it. Corruption that isn’t detected can’t be prosecuted.

A few state agencies have their own inspector generals empowered to investigate fraud, waste and abuse. But some agencies, such as the Department of Transportation and the Department of Information Technology, do not. These two agencies alone are responsible for awarding and administering hundreds of millions of dollars in state contracts for goods and services each year.

Government procurement is particularly susceptible to abuse. A federal bribery case is scheduled to go trial next year against Isabel FitzGerald, ex-Gov. Martin O’Malley’s secretary of Information Technology.

She is accused of steering $32 million of contracts to an Indiana company while working at another state agency, splitting the profits with a “close personal friend” through an elaborate ruse of shell companies.

Increase the level of scrutiny, and the allegations against Ms. FitzGerald may prove to be the tip of the iceberg with state contracts.

The recent flurry of activity by Isabel Mercedes Cumming, Baltimore’s new Inspector General, illustrates how an adequately staffed independent watchdog, empowered to subpoena witnesses and documents, can begin to change the landscape.

This year, at the request of Gov. Larry Hogan, the General Assembly established an inspector general responsible for investigating fraud, waste and abuse in local school districts.

What about other state agencies and the state government itself? Tired of its own legacy of corruption, Pennsylvania created a statewide Office of Inspector General in 2017. If our less affluent neighbor to the north can take a step in the right direction, so can we.

4 – Susceptible SAOs

Another area of vulnerability in Maryland are the 24 independent state’s attorney offices (SAOs) and the same number of sheriff’s offices.

Each of these offices is run by an elected official subject to almost no oversight under the Maryland Constitution. The mix of considerable power, large budgets, political campaign donations and “no one minding the store” is a recipe for trouble.

5 – Toothless MPIA

Former Supreme Court Justice Louis Brandeis famously observed that “sunlight is said to be the best of disinfectants.” As we learned with Healthy Holly, access to public records by the media and members of the public is an indispensable tool in the fight against corruption.

One can debate whether or not the Maryland Public Information Act (MPIA) should be amended to allow inspection of additional categories of information. But what’s beyond debate is that the law must be modified to deal with increasing governmental resistance to complying with the law.

Currently, the only recourse for someone whose request for information is denied is to sue.

Lawsuits are an expensive proposition. Government officials are well aware that alternative news sites and even traditional newspapers do not have the resources to routinely contest denials. The suit brought against Baltimore City Schools by the Sinclair Broadcast Group (Fox 45) is a case in point.

Sinclair reported that it spent a whopping $150,000 in legal fees to gain access to school records.

In March, a Baltimore Circuit Court judge held that the school system’s denial of access was so egregious that Sinclair was entitled to a reimbursement of its legal fees in the amount of $122,000. Such an award is rare – and government agencies count on that.

The recent failure by Maryland Attorney General Brian Frosh to recommend changes to the role of the MPIA ombudsman has been a major disappointment.

Until the ombudsman can go beyond mediation and is empowered to sue an agency to compel compliance, the effectiveness of that office is limited.

6 – Limited Contract Data

The MPIA is not the only mechanism for promoting transparency.

The General Assembly has required five county school districts to publish payment data for contracts in searchable databases. The five districts are Anne Arundel, Baltimore, Howard, Montgomery and Prince George’s.

Why not the other 19 school districts, including Baltimore City Schools? And why not the state government as a whole?

How Things Could Change

Maryland’s ruling class has grown accustomed to the media, watchdog agencies and citizens not looking too closely over their shoulders.

They like it that way. The antipathy of state and local leaders toward transparency and accountability is, if not part of the culture of corruption, its antecedent.

Only pressure from the electorate will change that.

Nothing defers wrongdoing more than a realistic fear by potential wrongdoers that they will be caught and punished.

The hidden costs of Maryland’s one-hand-washes-the-other political culture are incalculable, sapping both our financial resources and confidence in government.

The tragedy is that, right now, there appears to be so little interest in changing that culture.

[Published as guest commentary by the Baltimore Brew on June 7, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]