If 2019 proved anything in Baltimore, it proved that the city cannot pull itself out of its death spiral without more help from the state, and I’m not just talking about money. The Maryland General Assembly should create a new entity to address Baltimore’s long-term economic and social problems. The entity should be tasked with adopting a comprehensive recovery plan for Baltimore and empowered to approve projects and programs for implementing that plan.

No matter who it is, the winner of next year’s mayoral election cannot save Baltimore without changes to the city’s governance. The job of developing and implementing a long-term recovery plan while restoring competence and integrity to the day-to-day operations of city government is too big for one person.

The gravity of the situation makes the odds of a “savior” being elected mayor too long on which to gamble the future of the city; even a reincarnation of iconic former mayor William Donald Schaefer would be in over his head. And remember, Schaefer himself did little to eliminate the phenomenon of “two Baltimores,” one affluent and predominantly white, the other impoverished and largely black.

The mayor and city council will have their hands full dealing with political corruption, dysfunctional city agencies, bad schools and an unrelenting epidemic of violent crime. While they work on the short-term goal of restoring an efficient and effective municipal government, the new entity could put together and implement a plan for undoing the consequences of a history of structural racism and intergenerational poverty through economic and social projects and programs.

The new entity is needed to do work that city government has proved incapable of doing. Post reporter Erin Cox described in heartbreaking detail the failure of efforts galvanized by the riots following the death of Freddie Gray in April 2015.

The city-led efforts to tackle Baltimore’s deep-seated problems got off to a promising start. Within two years, it had collapsed. Why? The key reason was that there was no entity capable of sustaining the initial progress made by an organization called “OneBaltimore.”

Stephanie Rawlings-Blake was Baltimore’s mayor in 2015. She announced the creation of OneBaltimore 10 days after the riots. The objective of OneBaltimore was “to create a multidisciplinary, public-private sector operational structure for the purpose of coordinating resources, collecting data and information, facilitating implementation partnerships, and promoting policies and solutions focused on closing health, economic, education, and civic disparities in Baltimore City.”

The idea was sound, but OneBaltimore lacked two essential ingredients: Legal authority and institutional permanence. By March 2017, Rawlings-Blake and OneBaltimore were gone.

Projects and programs come and go in Baltimore, and even successful ones get discarded when city leadership changes. The lack of consistency and continuity is the product of shortsighted politics, a malady in Baltimore not likely to be cured in the foreseeable future.

Baltimore needs a OneBaltimore with teeth. Only the General Assembly can make that happen. A state entity also would bring fiscal credibility. The infusion of state and other money that the city needs is unlikely to occur without assurances that the investment won’t be squandered.

The pay-to-play culture exposed by the Healthy Holly book scandal did not enhance the city’s reputation as a steward of taxpayers’ money. Nor does the history of Baltimore’s Children and Youth Fund, a post-Freddie Gray initiative. Beginning in 2017, approximately $12 million in the annual city budget has been earmarked for services to improve the lives of young people.

The fund was set up as a grant program administered outside of normal city financial controls under a no-bid contract given to a local nonprofit. The nonprofit has been slow to award the available funds. It became ensnared in the Healthy Holly controversy as one of the purchasers of books from former mayor Catherine Pugh.

Although an audit done as a result of the controversy found that the nonprofit failed to document that it consistently awarded grants in a “fair and transparent” manner, it remains in charge of the fund. And so it goes in Baltimore: One step forward, two steps back.

The new oversight body should be free of control by the city government, not free of the influence of Baltimoreans. There is a wealth of talent in and around the city, including in the region’s superb universities, that can help plot the course to Baltimore’s recovery. Baltimore’s problems can be solved over time if resources are prudently and consistently applied, which means the application must be guided by expertise rather than by politics. It’s time to try something new.

[Published as an op-ed by the Washington Post on January 12, 2020 but not posted to my blog until August 25, 2020. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Rejecting calls for leniency from members of the Maryland General Assembly, U.S. District Court judge Theodore Chuang sentenced former Del. Tawanna Gaines to six months in prison after she pleaded guilty to one count of wire fraud for taking money from her campaign finance account to pay for personal expenses.

I’m sure the sentence gave Chuang no joy; the idea of a 67-year-old grandmother who otherwise lived a productive and even exemplary life going to prison is sad beyond words.

But the judge did the right thing. It was a message that had to be sent to current and future state legislators, who need a serious attitude adjustment before we can expect them to stop trading their legislative seats for prison cells.

For example, my heart sank last month when I read The Daily Record’s story about the federal wire fraud and bribery charges filed against former state Del. Cheryl Glenn.  No, it didn’t sink because of the charges themselves — you get accustomed to criminal charges against members of the Maryland General Assembly. As described by retired political science professor Matthew Crenson to The Daily Record, it is something of a Maryland tradition.

Rather, my heart sank because of the reaction by Del. Darryl Barnes, chair of the Legislative Black Caucus. He made Glenn sound like a victim of circumstance.

Barnes attributed the motive for the crimes allegedly committed by Ms. Glenn to the fact that a delegate’s state salary ($50,330) is too low. “If she accepted money, then obviously she’s not making enough money to make ends meet,” he said. Mr. Barnes explained that state legislators should be compensated “just like the federal government where they pay them handsomely and other benefits where it prevents them from taking money from outside their salary.”

If Barnes believes that a handsome pay and benefit package “prevents” employees from accepting bribes, embezzling money, etc., then he has a lot to learn about political corruption, other white-collar crime, and greed in general. Nevertheless, if he deems the concept of part-time legislators being paid part-time salaries obsolete, he can argue for a change.

In the meantime, however, please don’t equate solicitation of bribery by a state delegate to a crime of poverty. It’s insulting to our intelligence and damaging to efforts to distinguish crimes that are crimes of poverty.

Praise at sentencing

I felt no better later in the week after reading about the letters from Gaines’ former colleagues urging Chuang to impose a lenient sentence despite the serious allegations. Federal prosecutors accused Gaines of stealing more than $22,500 from her campaign finance account over a period of about three years to pay for various personal items.

Del. Wendell Beitzel asked Chuang to consider Gaines’ full career and character when imposing sentence, noting that “she has received countless awards for her public service and good deeds.” House Speaker Adrienne Jones praised Gaines for being “always willing to go the extra mile for her Prince George’s County constituents.” Sen. Addie Eckardt commended Gaines for “her sensitivity to all sides of an issue.” And so on.

There’s something to be said for the loyalty of friends and colleagues, but there’s more to be said for not excusing or minimizing the gravity of political corruption. The victims are members of the public, not the legislators who fall prey to temptation. It was a point not lost on Chuang.

The judge explained that the sentence was intended to reflect the seriousness of the breach of public trust and deter other officials from corruption. “So now more than ever, those in public service must carry out their duties in a way that validates and builds the public trust in our system of government,” he said. “And stealing from your campaign fund, like any public corruption, does the opposite.”

Gaines expressed remorse for her crime but told reporters that she objected to the severity of the sentence and to Huang making an example of her. She stated that she wished the judge had given more weight to her record of public service and that she didn’t like “being used as an example for anyone unless it’s for good.”

Well, some of us believe that the example set by the sentence was “for good.” For the good of ending the dismal Maryland tradition of corrupt state legislators.

[Published as a guest commentary by the Maryland Daily Record on January 9, 2020,  but not posted to my blog until August 20, 2020. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Maryland Gov. Larry Hogan should put aside his disdain for Baltimore State’s Attorney Marilyn Mosby, stop the political posturing and work with her as best he can to stem the epidemic of murder and other violent crime in Baltimore that is entering its sixth year and destroying the city. The stakes are too high for the tit-for-tat nonsense going on between the governor and the state’s attorney to continue.

Mr. Hogan and Ms. Mosby appear intent to inflict political harm on each other as they jockey to avoid blame for the continuing crisis in Baltimore. Regardless of which of them is prevailing when it comes to public opinion, it is the people who live in the city who are suffering because of their inability to resolve upon solutions to the crime problem in Baltimore.

Mr. Hogan’s recent proposal to add more than two dozen prosecutors and staff to the office of the attorney general to prosecute violent crime in Baltimore met immediate resistance from Ms. Mosby, and for good reason. Prosecuting street crime in Baltimore is her job. Having prosecutors with jurisdiction over the same crimes committed by the same criminals arrested by the same police department, but who answer to separate bosses, is a recipe for confusion and conflict.

Mr. Hogan knows that his proposal is a non-starter. He could have offered state money to Ms. Mosby to hire more prosecutors. Instead, he proposed action conveying his lack of confidence in the city’s elected chief prosecutor, the latest salvo in a running political battle between him and Ms. Mosby.

The two are at opposite ends of the political spectrum, especially when it comes to law enforcement. In September, Mr. Hogan publicly criticized Ms. Mosby for being soft on repeat offenders and making “excessively lenient plea deals.” In turn, Ms. Mosby accused Mr. Hogan of offering too little support, financial and otherwise, to the fight against crime in Baltimore, claiming that he refused to meet with her to discuss “real solutions” to the problem.

In fairness to Mr. Hogan, Ms. Mosby is not what I would describe as the consummate team player. Every move she makes appears calibrated to achieve maximum political benefit, and she is obsessed with burnishing her reputation on the national stage as a “progressive” prosecutor.

On the other hand, Mr. Hogan has not exactly demonstrated an overwhelming commitment to help Baltimore, especially when it comes to spending state money. He has expressed little if any support for the police reforms necessary to rebuild public trust in the Baltimore Police Department — trust necessary to restore the effectiveness of the department.

The spat has become personal, with a distinct element of childishness. It is the absolute last thing that the city and state need at a time when it is critical that state and city agencies work in concert to target violent offenders and get them off the streets.

The staffing plan just unveiled by Police Commissioner Michael Harrison is an opportunity for a fresh start. The plan includes worthwhile goals such as increasing the number of officers assigned to street patrol, expediting internal investigations and establishing a specialized unit of highly trained officers to focus on offenders who commit violent crimes.

Mr. Hogan and Ms. Mosby should meet with Mr. Harrison to talk about how those goals can be implemented, and then move to a general discussion on what they can do to reduce violent crime in Baltimore. Maybe they can even compromise on a few points and refrain from press releases after the meeting attacking each other for their ignorance and recalcitrance.

One of the most discouraging things over the past five years has been the lack of a sense of urgency and the failure by public officials to recognize that Baltimore is in a crisis. A crisis sometimes causes people to suspend petty disputes and suppress personality clashes while they pursue a shared interest in resolving the crisis. What a godsend it would be if Mr. Hogan and Ms. Mosby did that for the sake of the Baltimore.

History will judge Mr. Hogan and Ms. Mosby unkindly if they continue to place their own political ambitions above the interests of the citizens of Baltimore. They need to stop the bickering and get down to work.

[Published as an op-ed by the Baltimore Sun on December 16, 2019 but not posted to my blog until August 20, 2020. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

The mayor’s odd statements are embarrassing, but his vow to not enforce the “gag order” ban is outrageous – and a reason to vote him out in 2020.

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The buffoonish statements Mayor Jack Young has made since taking office last May have raised a question about the 2020 mayoral candidate: Is he fit for the job?

Thanks to his recent announcement that he will not comply with City Council Bill 19-0409 – now a law – we have a definitive answer to that question:

No, Young is not fit to be mayor.

In the broadest sense, he lacks the judgment to be an effective mayor at a time when Baltimore needs one the most.

Bill 19-0409 was passed on a 15-0 vote by the Council and enacted into law on December 2. Its provisions make it unlawful to require victims of police misconduct to agree to refrain from publicly discussing the facts or circumstances of their claims as a condition of receiving a monetary settlement from the city.

While Young’s oddball pronouncements have made him an object of public ridicule, his decision to defy a duly-passed law banning the use of non-disparagement clauses has brought him serious scorn.

If there is a silver lining in this cloud, it’s that city voters are learning how poorly suited Young is for the job of mayor before next year’s election rather than, in the case of his disgraced predecessor, Catherine Pugh, after it.

Tone deaf and Baffling

As another year closes with more than 300 murders, the unremitting epidemic of violent crime in Baltimore clearly has Young flummoxed.

His silly remarks are unmistakable signs that he is cracking under the pressure.

In June, Young suggested that disputes on the streets could be kept from evolving into gun violence by having the antagonists resolve their differences in boxing matches at Royal Farms Arena.

He wasn’t kidding. “[May] the best man win, and the beef should be over,” Young explained. “Those are some kinds of things I’m thinking about and hoping that we can get these people to put these guns down.”

Last month, Young said that he hoped a cold winter would keep gang members off the streets.

“As you know, it’s like planting a flower. In the winter, it dies, and it comes back,” he said. “I’m hoping with the colder weather, they will stay inside, watch TV and help kids with homework.”

Yes, he actually said that. And, as far as I can tell, he believed it.

Less than two weeks later, he made another statement that will live in infamy in Baltimore for its whiny, tone-deaf failure to grasp what it means to be the mayor.

“I’m not committing the murders, and that’s what people need to understand,” Young said at his weekly press conference. “How can you fault leadership? This has been five years of 300-plus murders. I don’t see it as a lack of leadership.”

Not exactly what citizens desperate for someone to lead the city back from edge of the abyss wanted to hear.

Spreading Facebook Gossip

In an apparent case of damage control gone wrong, Young sought to affirm his commitment to the crime fight – only to end up with arguably his worst gaffe yet.

In a television interview, he warned the public about people in a white van “snatching” young girls to sell their organs.

“We’re getting reports of somebody in a white van trying to snatch up young girls for human trafficking and for selling body parts, I’m told,” he said. “So, we have to be careful because there’s so much evil going on, not just in the city of Baltimore, but around the country. It’s all over Facebook.”

“JACK YOUNG HASN’T LOST HIS WAY AS MAYOR; HE NEVER FOUND IT.”

It may have been “all over” social media, but neither the Baltimore Police Department nor the FBI had received any reports of this “snatching.”

It was Mayor Young doing his best “Chicken Little” imitation in a city that is already frightened enough.

Experts lectured him about panicking the public and distracting from legitimate efforts to combat human trafficking. Needless to say, the ridicule of Young on both traditional and social media was intense.

• A Facebook rumor about white vans is spreading fear across America (CNN 12/4/19)

Refusal to Enforce a Law

It is one thing to make buffoonish statements. It is quite another to make inexcusably bad decisions, such as Young’s refusal to comply with the new law resulting from Bill 19-0409.

The use of non-disparagement clauses (sometimes referred to as “gag orders”) in settlement agreements with the alleged victims of police conduct became increasingly controversial in the city as the full scope of the problems within the Baltimore Police Department became known.

The concept of protecting the reputations of officers whose misdeeds resulted in the monetary settlements was bad enough. Even worse was the fact that the clauses promoted the secrecy that allowed corruption and abuse in the department to flourish.

The city was urged by many to abandon the practice of using non-disparagement agreements as antithetical to the goal of restoring public trust in the BPD.

It refused to do so, but in July the United States Court of Appeals for the Fourth Circuit spoke with authority, striking down the use of the clauses by the city as unenforceable waivers of victims’ First Amendment rights.

According to City Solicitor Andre Davis, the city already had revised its non-disparagement policy by the time the court issued its opinion. He claimed that the new policy did not violate victims’ rights. The ACLU, one of the parties to the lawsuit against the city, disagreed, portending the possibility of more litigation.

Twelve members of the council responded by co-sponsoring Bill 19-0409 to put the issue to rest once and for all.

The bill became law, but Young and Davis had other ideas.

Flawed Arguments

Young stated that he will not abide by the law on Davis’ advice.

Davis contends the ordinance violates state and city law based primarily on two arguments. The first is that the Council lacks the power to interfere with the operation of the BPD, a state agency.

This argument is absurd. The ordinance places a condition on the expenditure of city funds used to settle claims that has no effect on the operation of the department itself. The decision to use such funds to settle claims against the BPD rests with the city, not the BPD.

Suffice it to say that curtailing the right of a victim of police misconduct to speak freely about the misconduct is not a law enforcement matter committed by state law to the sole discretion of the Police Commissioner.

The second argument is that the ordinance intrudes upon the sole authority given to the city solicitor over the “preparation and trial” of lawsuits to which the city is a party.

The gigantic flaw in that argument is that, while the solicitor controls how legal proceedings are conducted, he has absolutely no authority to approve the payment of city money to settle a suit.

The city charter confers that authority on the Board of Estimates and allows the City Council to place conditions on its exercise by legislation such as Bill 19-0409.

“WHY WOULD THE MAYOR MAKE THAT CHOICE? THE ANSWER IS THAT HIS JUDGMENT IS DREADFUL.”

Further muddying the administration’s position on the matter were Young’s statements on the radio.

He confirmed that he didn’t plan to sign the bill banning gag orders, but also said he doesn’t like them. (“I don’t think nobody should have a gag order,” Young said, adding without explanation: “I’m in the process of fixing that right now.”)

“Lost ball in high grass”

Young chose to infuriate citizens and members of the Council by ignoring a law that enjoys broad public support. He did so to protect the city solicitor’s unfettered right to include non-disparagement clauses in settlement agreements – a prerogative that only the solicitor seems to care about.

Even if the solicitor’s legal arguments were stronger, why would Young make that choice? The answer is that his judgment is dreadful. Part of being a mayor is knowing which advice to accept, and which to reject.

Former state senator Harry McGuirk famously referred to then-gubernatorial candidate Harry Hughes as “a lost ball in high grass.” That description of Hughes, as it turned out, was not apt. The metaphor, however, does apply to Young.

At this critical juncture in its history, Baltimore needs someone who is more than at best “well meaning” or “just okay.” Young hasn’t lost his way as mayor; he never found it.

If that sounds harsh, so be it. Harking back to Young’s boxing ring idea, this is no time to be pulling punches; the stakes are far too high.

Baltimore cannot afford four more years with Jack Young as mayor, and the sooner people realize that the better.

[Published as an op-ed by the Baltimore Brew on December 11, 2019 but not posted to my blog until August 20, 2020. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

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The buffoonish statements Mayor Jack Young has made since taking office last May have raised a question about the 2020 mayoral candidate: Is he fit for the job? Thanks to his recent announcement that he will not comply with City Council Bill 19-0409 – now a law – we have a definitive answer to that question:

The Maryland General Assembly will be asked during its upcoming session to place a $375 million bet on the future of horse racing in Maryland. And it will be asked to do so at a time when the odds of horse racing surviving as a viable industry are dropping rapidly.

The City of Baltimore and The Stronach Group announced last month that they had reached a deal that would keep the Preakness Stakes in Baltimore. Stronach owns Pimlico Race Course in the city, Laurel Park in Anne Arundel County, and the right to run the Preakness.

Amid the rejoicing by politicians and editorial boards over the prospect of the second jewel of horse racing’s triple crown staying in the city was nary a mention that horse racing faces not one but two existential threats. Ignoring the threats will be at the taxpayers’ peril.

The deal to keep the Preakness in Baltimore calls for the state to invest $375 million in racetrack construction. About $200 million would be used to rebuild Pimlico Race Course and about $175 million would go toward renovating Laurel Park in Anne Arundel County.

The Stronach Group would continue to own Laurel, but ownership of Pimlico would be transferred to the city or state, which would lease it back to Stronach for the Preakness. About $27 million of the $375 million would come from money in the state’s Racetrack Facilities Renewal Fund. The rest, $348 million, would be raised by the sale of bonds issued by the Maryland Stadium Authority and repaid by the state over a period of 30 years.

The problem is that no one knows whether horse racing will survive as anything other than a niche industry for the next five years, let alone the next 30.

Two factors have caused the strength of the headwinds facing the industry to increase dramatically. One is competition from legalized sports betting. The other is the growing sentiment that horse racing is inhumane and should be banned.

Competition from legalized sports betting

In 2018, the Supreme Court sent shockwaves through the horse racing industry when it struck down a federal law that banned commercial gambling on sports other than horse racing, dog racing, and jai alai in most states. Some states, including New Jersey, Pennsylvania and West Virginia, already have responded to the decision by legalizing sports betting, including online betting. The Maryland General Assembly is poised to take up the issue in the upcoming session.

The consensus is that legalized sports betting will have a negative impact on horse racing revenues by reducing track attendance and betting handles, although it is too early to tell how significant the impact will be.

The effect in Maryland would depend on which land-based facilities (casinos, racetracks, off-track betting locations) are permitted to offer sports betting, and whether online betting is approved.

Even optimists within the industry acknowledge that it will have to change to survive, believing, for example, that pari-mutuel wagering will have to give way to fixed odds wagering to compete with sports betting. There is no doubt that horse racing in Maryland faces major challenges to its financial model if sports betting is legalized in the state.

Public concern over the mistreatment of racehorses

Even if horse racing can withstand the competition from legalized sports betting, there is a darker cloud on the horizon: An anti-horse racing movement that is gaining momentum.

For anyone concerned about the future of horse racing, the headline of ESPN’s story about the marquee race of the Breeder’s Cup in California earlier this month was ominous: “Breeders’ Cup ends with death of 37th horse at Santa Anita.” ABC captioned its account of the race “Breeders’ Cup, the Super Bowl of racing, marred by another horse’s death at Santa Anita.”

It was the rash of equine fatalities during the 2019 racing season at Santa Anita, owned by Stronach, that propelled animal cruelty accusations into the mainstream media. In April, Sports Illustrated published a story by one of the country’s most prominent sports journalists, Tim Layden. He described the deaths as horse racing’s “biggest problem.” Layden observed that, although there have been “surges of awareness” in the past about the sport’s toll on horses, “this does not feel like a blip.”

In May, National Geographic ran a story titled “Why horse racing is so dangerous.” Ironically, the story featured a photograph of horses running at the 2017 Preakness. There have been many similar stories, and even The New York Times weighed in with a piece captioned “Horse Racing Deaths Threaten the Racing Industry. Is the Sport Obsolete?”

Although the deaths at Santa Anita drew the most attention, it is hardly the only racetrack where they occur. Last month, USA Today reported that its research revealed that an average of more than 600 thoroughbreds a year died because of racing over the past decade.

And then there are the slaughterhouses. USA Today also pointed out that an estimated 7,500 thoroughbreds end up in slaughterhouses in Canada and Mexico after their racing careers are over, with the horse meat shipped to Europe and Asia for human consumption. A previous study calculated that 70% of thoroughbreds bred in the United States end up in slaughterhouses.

The thoroughbred industry, led by Stronach’s president, Belinda Stronach, has been working to burnish the sport’s public image by making it more humane. It may be too little, too late.

Animal rights protests now routinely accompany racing events even in Kentucky, the de facto capital of horse racing in the United States. If anti-racing sentiment reaches a flash point on social media it will only be a matter of time before its impact on the industry becomes catastrophic.

Stop and think

There is a story about an exchange that took place during the first meeting of the Board of Public Works presided over by newly elected governor William Donald Schaefer. Schaefer favored quick action on an agenda item, explaining that as mayor of Baltimore he had a saying, “do it now.”

The state comptroller, the venerable Louis L. Goldstein from Calvert County, replied that in Southern Maryland they had another saying, “stop and think.” This is a stop-and-think moment for the General Assembly.

The threats to horse racing posed by legalized sports betting and the perceived mistreatment of racehorses could accelerate the decades-long decline in the popularity of horse racing. Attendance at racetracks is becoming increasingly geriatric. Suffice to say that the availability of online sports betting and a reputation for animal mistreatment will do nothing to attract a younger crowd.

The deal allows Stronach to divest itself of Pimlico, a derelict racetrack that it doesn’t want. The state would take on the responsibility for building, operating, and maintaining a new Pimlico. The state also would assume the risk of the rebuilt racecourse becoming an expensive white elephant if horse racing revenues tank, putting enormous pressure on the state to increase industry subsidies to protect its investment.

I am not saying that the above concerns necessarily make the proposed deal a bad one. I am saying that it would be absolutely reckless of the General Assembly not to consider them in the course of ensuring that the deal is an investment rather than just a gamble.

[Published as guest commentary by Maryland Matters on November 15, 2019 but not posted to my blog until December 19, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Many reports done by agencies in the executive branch of state government at the request of the Maryland General Assembly are perfunctory and of limited value. That is not the case with the preliminary report on the Maryland Public Information Act (PIA) by the Public Access Ombudsman and Public Information Act Compliance Board. Their report, issued Nov. 6th, is thorough and thoughtful, detailing shortcomings by state and local government agencies in complying with the PIA.

The report makes two excellent recommendations that should be enacted into law at the upcoming session of the General Assembly. The first is authorizing the compliance board to issue binding decisions on PIA disputes that are not resolved after mediation or attempted mediation with the ombudsman.

That would give persons seeking public records a much quicker and far less expensive remedy than filing lawsuits when requests are denied by records custodians. Under current law a requester may ask for mediation of a dispute but has no recourse to compel compliance with the PIA other than going to court.

The ombudsman and board observed that many routine PIA disputes involve simple fact patterns and the application of a limited body of law not requiring complex judicial proceedings to resolve. They also believed that over time the board’s decisions would lead to a body of published opinions serving as guidance to both requesters and agencies that could reduce the number of disputes.

Based on my experience inside and outside of government, I am confident that implementation of this recommendation by the General Assembly would go a long way toward combating an unfortunate tendency by some state and local agencies to slow-walk and even deny appropriate requests for records. Delay or denial too often is used to protect agencies from public scrutiny. Agencies, backed by taxpayer-funded attorneys, are well aware that the expense of lawsuits can deter even established news organizations from pursuing access to records through the courts.

The second recommendation is that state and local agencies be required to adopt a uniform self-tracking and reporting system to monitor the timeliness of their compliance with the PIA. About 20% of the mediation caseload involves long overdue or missing responses. Based on that experience and on survey data from state and local agencies, the ombudsman and board concluded that many agencies are not adequately tracking PIA requests, leading to tardy responses and other compliance issues.

It may be that sanctions ultimately will have to be added to the law to get some agencies to respond to requests in a timely manner. It makes eminent sense, however, to first gather reliable data on the scope of the problem. Also, the prospect of having to record and disclose their non-compliance alone is likely to induce agencies to improve their performance — a prediction based on the beneficent effect of sunshine illuminating the internal workings of government and a principle at the core of the PIA.

It is important to keep in mind that access to public records is a means to an end, not an end in itself. The goal of the PIA is not simply to satisfy someone’s idle curiosity; it is to enable citizens to gather the information necessary to hold government agencies accountable.

It’s a simple proposition: Without a properly functioning PIA, there is no public accountability. And the absence of public accountability is an invitation to mediocrity and corruption in government.

There is more good news: The compliance board projects that if given the authority to issue binding decisions on PIA disputes it can handle the increased workload by adding only two employees. That is an incredible bargain when considering the savings in time and money not only to citizens and the members of the news media but also to government agencies from a streamlined mechanism for resolving PIA disputes.

On one more positive note, it is gratifying to see the interests of the general public taken so seriously by the ombudsman and the PIA compliance board. Suffice it to say that not all state and local agencies share their commitment to the goals of open and transparent government.

I trust that the final report issued by the ombudsman and compliance board will include the two recommendations described above. If it does, I urge the General Assembly to implement them as quickly as possible.

[Published as an op ed by the Baltimore Sun on November 13, 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.]

The appointment of James R. Benjamin, Jr. by Baltimore County Executive Johnny Olszewski to be the new County Attorney is subject to confirmation by an affirmative vote of at least four of the seven members of the County Council. If fewer than four members vote in favor of confirmation the appointment is rejected. The council has scheduled a public hearing on the proposed appointment of Mr. Benjamin on November 12th and a vote on November 18th.

It is absolutely essential that the County Council interview Mr. Benjamin at the hearing on November 12th and exercise its independent judgment when it votes whether or not to confirm his appointment on November 18th. I couldn’t agree more with the sentiment expressed by Councilman David Marks.

Mr. Marks told the Baltimore Sun that he expects the council to put “more scrutiny” on this appointment than seen with other appointments, because the county attorney sometimes will find himself in the middle of disputes between the county executive and county council on how an issue should be handled. According to Mr. Marks: “It is somewhat unique that he is the legal advisor to both the council and the executive, and for that reason I believe there will be some in depth discussion about his appointment.”

The position of county attorney is unique. The county attorney is the legal advisor to both the county executive and the county council. The requirement that the county attorney provide objective legal advice to both branches of county government is one of the checks and balances on executive and legislative power built into the county charter.

The Baltimore County Charter, like most county charters in Maryland, specifies that with limited exceptions “no office, department, board, commission or other agency or branch of the county government shall have any authority or power to employ or retain any legal counsel other than the county attorney.” The intent of the charter is that all county officials get the benefit of the best possible legal advice the county has to offer, and that the county attorney serves as an honest broker when there are legal squabbles among agencies and officials.

There are times when a county attorney must opine on whether a proposal by one branch or the other of county government exceeds its authority. The accuracy of such an opinion is an essential check on governmental power, and the credibility of the opinion depends on the reputation of the county attorney for impartiality and objectivity.

A principle that is sound in theory, but challenging in practice

The concept of getting legal advice from a single, competent source is sound in theory. While there is a place for the adversary system of justice, it is not within the internal workings of local government. Two things, however, are required for the principle to work in practice: A county executive who understands and accepts the proper role of the county attorney and, more importantly, a county attorney with the integrity to adhere to that role under pressure.

The county and its agencies are the clients of the county attorney, not the individual county officials through which the county acts. When rendering advice and issuing opinions as required by Section 508 of the county charter to those officials who act in various capacities on behalf of the county, the county attorney is under an ethical duty in each instance to “exercise independent professional judgment and render candid advice” as set forth in the Maryland Attorneys’ Rules of Professional Conduct.

To Mr. Marks and other members of the County Council:

Ask Mr. Benjamin at his confirmation hearing if he understands and accepts the role described above. Would he be willing to tell the council when a measure proposed by the county executive is outside the limits of the law? Does he concur that he would have an ethical duty to render candid advice to the council even if the county executive disapproves of the advice?

Yes, the county attorney is under a duty of candor as a matter of law, but it is important to hear him acknowledge it in his own words, on the record. Let there be no doubt of Mr. Benjamin’s personal commitment to the requirements of the job, the most important of which is integrity.

To Mr. Benjamin:

Don’t take the job unless the county executive assures you that he understands and accepts the role of the county attorney as described above. And, even if given such assurance, refuse the position unless you’re willing to adhere to that role in the event that he changes his mind.

Yes, the job is a good one and the salary, $225,000, is attractive. But for the sake of the citizens of Baltimore County walk away from the job unless you are prepared to give advice to one branch of government that the other branch of government doesn’t want to hear.

To Mr. Olszewski:

Please tell both Mr. Benjamin and the county council that you expect Mr. Benjamin to be as candid in his advice to the county council as he is in his advice to you. Tell them that you don’t expect personal loyalty from Mr. Benjamin; you expect him to be loyal to the duties of his position and the ethical tenets of his profession.

Yes, there may be a time or two when his candor with the council throws cold water on something that you want to do. But in the long run having a county attorney with a reputation for integrity and independence of judgment will inure not only to your benefit, but also to the benefit of county citizens.

[Published as guest commentary by Forward Baltimore on November 5, 2019 but not posted to my blog until November 5, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Two months ago, I wrote that a sewage spill at Lake Roland posed an important test of incoming Baltimore County Executive Johnny Olszewski’s commitment to the protection of the environment – and to clean government.

I believe an investigation should be conducted to determine if the spill resulted from deliberate wrongdoing by county officials. That belief was strengthened by the recent decision on the development project known as Bluestem Village.

The sanitary sewage overflow (SSO) at manhole 6883 – discovered by the Green Towson Alliance and reported in The Brew – appeared to confirm a 2012 warning by the county’s engineering consultant.

The consultant, RK&K, determined that the old “interceptor” sewer that runs under Lake Roland needed to be supplemented by a relief sewer to accommodate increased sewage volume from the Towson area to avoid more sanitary sewer overflows or SSOs.

The consultant’s recommendation, however, was never followed by the county’s Department of Public Works.

Environmentalists now fear, with good reason, that SSO “blow outs” are likely to become more extensive as the massive development underway in the Towson area is connected to county sewers.

The RK&K report was not made public until 2018, a fact that raises suspicions that county officials buried the RK&K report so that construction could proceed in Towson.

This a serious allegation that should not be ignored by Olszewski, who has repeatedly pledged to protect the environment, or by the County Council, which approved a basic services map that a veteran Administrative Law Judge has deemed untrustworthy.

These issues came into focus when ALJ John Beverungen issued an opinion disapproving Bluestem Village, an apartment-retail complex proposed in the Bare Hills community adjacent to Lake Roland.

The testimony and decision in the case not only highlight the consequences of disregarding RK&K’s recommendation, they suggest that county officials had an improper motive for doing so.

Systemic Problems

Randy Grachek, a civil engineer with experience designing and evaluating large sewer projects, testified before Beverungen on behalf of opponents of the project.

Armed with the RK&K report, Grachek stated that the county sewers that would serve the project already were overcapacity and “the systemic problems identified [with the sewers] do not warrant additional sewage being added to the systemic problem, even if it were just a little bit.”

Engineers with the county DPW periodically review the adequacy of public wastewater facilities. Their calculations are used to create the basic services map, which is then reviewed and approved by the Baltimore County Council.

Areas where public wastewater facilities are not adequate to support additional development are labeled as “deficient.”

The site of the proposed Bluestem Village project was not identified as deficient on the most recent map.

“Sham” Services Map

Judge Beverungen nevertheless disapproved the development plan based on his conclusion that the wastewater facilities were inadequate to support the proposed project. He wrote:

“In this case I am persuaded by Mr. Grachek’s testimony and the findings of the County’s own consultant that the sewer system serving the subject property is woefully inadequate to handle existing demand, much less the additional inputs from recently approved development in the Towson area. As such, I believe the fact that the property is not identified on the basic services map [as deficient] is plainly contradicted by the findings of the County’s consultant.”

Beverungen’s refusal to embrace the position that a Council-approved basic services map is the final word on the adequacy of public sewerage was deemed rare if not unprecedented by local lawyers.

Even if his refusal to do so is overturned on appeal, the county will be left with the unrebutted finding by one of its own that the basic services map is factually inadequate – in other words, a sham

The judge, who retired after the case, was a longtime county employee, beginning his career as an assistant county attorney and spending the last nine years as an administrative law judge. He had an insider’s understanding of the culture within county agencies. Consequently, something else he said in his opinion was striking:

“And it is certainly understandable why the County would be reticent to include a property on one of the basic services maps [as deficient]. The effect of such inclusion is a legislative moratorium, during which the county is expected to undertake the necessary repairs to the deficient infrastructure. Should this state of affairs persist for longer than 18 months, it is likely a court would find the owner’s property had been ‘taken,’ which requires the payment of just compensation under the state and federal constitutions. This is yet another reason why I do not believe the maps are dispositive in any given case.” (Emphasis added.)

“Towson’s Time”

Beverungen, in short, believed that the county had a motive to refrain from identifying properties as deficient even if they were.

That’s quite a commentary on the integrity of county officials. A government employee who doctored a map to allow a development project to proceed could be prosecuted for misconduct in office.

There was another possible motive for not identifying properties as deficient despite the RK&K report. As described in my prior commentary, there was tremendous momentum – and money – behind the “It’s Towson’s Time” vision of former County Executive Kevin Kamenetz.

It would have been a blow to Kamenetz’s ambitions if the soaring development he wanted for Towson were halted because of inadequate piping below the ground.

Prying Free a Report

The county’s attempt to conceal the 2012 RK&K report heightens suspicions that the Kamenetz administration acted improperly by neither building the relief sewer nor identifying the area served by the Lake Roland interceptor sewer as deficient on the basic services map.

It was only through the dogged efforts of a citizens’ task force formed under the auspices of the Green Towson Alliance that the report was even discovered.

The task force learned of the report’s existence during a casual conversation with a DPW employee in June 2016 and formally requested a copy the following month. The task force didn’t receive the report until February 2018, fully 18 months later.

The task force may never have obtained the report but for the intervention of Delegate Dana Stein (D, 11th), who is vice chair of the House Environment and Transportation Committee. Stein asked the Maryland Department of the Environment (MDE) to assist the task force in getting answers to its questions.

Stonewalling the State

Even MDE, however, met with resistance from the county DPW.

The agency declined the initial invitation to meet with state officials about the task force’s questions in November 2017, explaining to MDE that DPW had already addressed the task force’s concerns. The task force disagreed, and MDE persisted.

State law requires MDE to review and approve the county’s Water Supply and Sewerage Master Plan every three years. As it happens, the county’s plan was up for review in early 2018. It appears to have been a purposeful delay by MDE in approving the plan that finally pressured the county into releasing the RK&K report to the task force in February 2018.

Why did DPW appear so determined to withhold the report from the task force?

It now appears likely that DPW feared that the fate that befell the Bluestem Village project would have befallen other projects had the RK&K report gotten into the hands of community groups.

How many projects were spared from disapproval based on the inadequacy of the county’s sewage system because the 2012 report wasn’t made public in a timely manner?

That’s something we may never know.

A Pattern of Shortcuts

Inaccurate basic services map and a hidden RK&K report are not the only indications that the county had been willing to take “shortcuts” to keep development in Towson on the fast track.

The county entered a consent decree with the U.S. Environmental Protection Agency (EPA) and MDE aimed at eliminating the frequent SSOs in the county.

The task force came across evidence that DPW used out-of-date land use and population data and projections for purposes of preparing a report on deficiencies in the sewerage infrastructure and corrective actions required by the consent decree. What’s more, the report was never updated.

County’s Response So Far

Olszewski’s press office issued this statement to The Brew in response to the sewage issues at Lake Roland:

“The County is sensitive to the Lake Roland area and to the environment. The Department of Public Works has worked consistently with the Green Towson Alliance over several years to address concerns in an attempt to resolved issues – providing full disclosure of data and meeting with alliance members, the state representative and the district councilman on several occasions.”

By under-reporting increases in population density and employment, DPW overstated the adequacy of the sewerage infrastructure to manage future needs, according to the task force.

At the same time, DPW apparently used more current, higher projections to justify its construction of the Towson Run Relief Sewer.

That project will increase the sewage capacity for the immediate Towson area only to funnel the waste downstream into the inadequate Lake Roland interceptor pipe.

The end result is predictable – the high likelihood of more SSOs in and around Lake Roland Park as occurred in August at manhole 6883.

(Baltimore City, of course, has its own problems with SSOs, in part because the sewage from the Lake Roland interceptor goes directly into the city’s own antiquated system, which spills untreated waste into the Jones Falls and, hence, to the Inner Harbor during heavy rainstorms.)

Unanswered Questions

It’s been nearly two years since the RK&K report was made public, and DPW still has not explained why it chose not to implement the consultant’s recommendation to build a relief line at Lake Roland.

As recently as October 9, at a meeting with representatives of Green Towson Alliance, DPW director Steven A. Walsh declined to give a direct answer to the question whether his agency concurred with RK&K’s findings.

Olszewski has tasked former state Delegate Stephen W. Lafferty – recently named the county’s chief sustainability officer – with the task of sorting out the issues pertaining to the adequacy of the county’s sewage system.

This can’t be properly done until we find out why RK&K’s findings were disregarded and then concealed for more than five years.

We also need to to know if county employees manipulated the basic service map to favor development, the concern expressed by Judge Beverungen.

Only a thorough investigation will ensure the public that a valid plan to elminate SSOs exists and that the opaque and dubious culture that pervaded the last county administration is gone.

The time to act is now, Johnny O.

[Published as guest commentary by the Baltimore Brew on October 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.]