CBF and Critical Areas Commission used the Little Island fight to change Maryland law

Let’s make one thing clear about the painfully long history of the house built without permits by Daryl Wagner on Little Dobbins Island in the Magothy River.

The primary reason that it has taken so long to resolve this matter was the refusal by the Maryland Critical Area Commission to recognize and apply settled Maryland law. The commission used the infamous white house with a faux lighthouse as the poster child for its campaign to change state critical area law.

When Wagner built the house in 2002 it was the law in Anne Arundel County (and elsewhere in Maryland) that the owner of a house or other structure built without permits had the right to seek retroactive approval of the house or structure, subject to specified sanctions.

Wagner was no hero for his unlawful actions, but you don’t have to be a hero to enjoy rights under the law.

The Critical Area Commission, supported by the Chesapeake Bay Foundation, engaged in a protracted legal battle to try to deny Wagner his right to seek retroactive approval of the house. In my opinion, they did so for reasons that had nothing to do with the effect of the house on the environment.

If concern for the Magothy River had been the primary goal, they would have encouraged prompt removal of the 3,325 square feet of impervious surface and the 3-to-1 replacement of unlawfully disturbed vegetated buffer required as conditions of the retroactive approval. That environmental remediation still has not occurred, stalled by litigation that began 15 years ago.

I believe that the commission and foundation pursued the litigation to exploit the public’s outrage and create a cause célèbre to promote changes to Maryland critical area law by the General Assembly. It is a motivation that they didn’t deny, and they achieved their goal.

In 2008, the General Assembly enacted comprehensive amendments to the law, greatly expanding the power of the Critical Area Commission. In 2014, Jon Mueller, Chesapeake Bay Foundation vice president for litigation, told The Capital that those amendments might not have happened if the private non-profit organization hadn’t fought approval of Wagner’s house.

He probably was right.

Even its success with the General Assembly in 2008 wasn’t enough for the Critical Area Commission, however. It attempted to use the 2008 changes to divest Wagner of his right to seek retroactive approval of a critical area variance.

It was another piece of litigation destined for futility, because the General Assembly had expressly provided that the changes applied only to critical area violations occurring on or after July 1, 2008.

As recounted in a 2014 story in The Capital, the Critical Area Commission and Chesapeake Bay Foundation lost every legal battle. That didn’t seem to matter, as long as they kept the controversial house in the public eye.

It is possible that they thought that they eventually could wear Wagner down by exhausting his financial capacity to fight back, forcing him to tear down the house. If they thought that, it appears that they were wrong.

The Chesapeake Bay Foundation is a private non-profit organization, but the Critical Area Commission is a state regulatory agency. They are held to different standards.

The 2008 changes to critical area law strengthened protections of the Chesapeake Bay and its tributaries. Did the commission’s strategy of using Wagner’s house as the poster child for its campaign to amend critical area laws justify the pursuit of litigation that it knew or should have known would not succeed?

How you answer that question depends on how you view the proper role of regulatory agencies, and the extent to which you believe that ends may be used to justify means.

As for my view, I believe that regulatory agencies should confine litigation to enforcement of the law and find other ways to achieve legislative goals.

[Published as an op ed by the Annapolis Capital Gazette on July 6, 2018 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.]

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.]

 

 

Judicial discipline breaks down in Md.

I thought that the police disciplinary process in Baltimore moved at a glacial pace. But that was before I learned the history of the disciplinary action taken against Baltimore District Court Judge Devy Patterson Russell.

Disciplinary charges were filed against her on Jan. 16, 2018, alleging she had violated provisions of the Maryland Code of Judicial Conduct governing demeanor and comportment. A hearing with 21 witnesses (15 of them also judges) was held over multiple days that fall before the Maryland Commission on Judicial Disabilities, and a report was issued Nov. 30 saying Judge Russell should immediately be suspended from the bench for six months.

Instead, she was temporarily reassigned to Anne Arundel County District Court, where, nearly three months later, she was still on the bench and able to deny Tyrique Hudson’s request for a peace order against his downstairs neighbor in a Glen Burnie apartment building. And she was still on the bench two months after that, on April 15, 2019, when Mr. Hudson was killed outside his apartment with a shotgun. Police charged the neighbor, who reportedly confessed, with his murder.

In fairness, none of the disciplinary charges against Judge Russell involved how she handled cases before her. And, based on the transcript, her denial of the peace order request may have been questionable, but was not obviously out of bounds.

Both considerations, however, are beside the point. A man was killed, and his family and friends are justifiably angry that his fate may have been in the hands of a judge facing a six-month suspension because she had been found to be “volatile and unpredictable” by the Maryland Commission on Judicial Disabilities. It was a situation that never should have been allowed to occur.

According to testimony during her fall hearing, the chief judge of the Maryland District Court questioned Judge Russell’s “mental well-being.” She interrupted another judge’s trial in progress to ask two attorneys at the trial table to get out their calendars to schedule a case assigned to her. She insulted other judges, and yelled and screamed at them and other employees in numerous and various contexts.

The report recommending her suspension found Judge Russell to be “volatile, unpredictable, and responsible for the enormously difficult work environment in the Baltimore City District Court.” It concluded that “the comments and behaviors of Judge Russell were undignified, uncooperative, discourteous, demeaning, and clearly demonstrate a pattern of serious violations . . . that strike at the very heart of the integrity of the judiciary and the public’s confidence in such integrity.”

But the commission’s report isn’t the final word on discipline when it comes to judges. That belongs with the Court of Appeals. The court’s rules require it to schedule an expedited hearing on discipline recommended by the commission.

That hearing was held on March 4, 2019 – 90 days after the commission’s report and 412 days after the commission’s counsel filed disciplinary charges. Those 412 days do not include the months it took to investigate the complaints made against Judge Russell before charges were filed.

The Court of Appeals still has not issued its decision.

Taking the time to be fair to a judge facing discipline is important. But so, as the commission’s report noted, is preserving public confidence in the integrity of the judiciary. A system that allows a matter to go unresolved as long as this one has is farcical.

[Published as an op ed by the Baltimore Sun on May 15, 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.]

Mr. Mayor: Call a press conference and lay the cards on the table.

I’m not big on optics, but as it turned out it probably would have been better for Mayor Jack Young to return to Baltimore from Detroit upon learning of Catherine Pugh’s resignation on Thursday. Friday’s bloodbath in Baltimore put an exclamation point on the city’s need for a mayor who is on the ground and fully-engaged in the battle against the violence.

There have been many bad days in Baltimore over the past four odd years, but few worse than yesterday, Mayor Young’s first full day on the job. Two infants, a one year old and a two year, were among the twelve shooting victims in Baltimore on Friday. Fortunately, the infants survived. Three other victims did not.

You’re coming back tomorrow, Mr. Young, and my first unsolicited piece of advice to you is to have an honest conversation with the people of Baltimore as soon as possible. Talk with your police commissioner and schedule a press conference with him in the next few weeks. Ask Mr. Harrison to lay out his plan, in as much detail as possible, on how he is deploying the men and women of the Baltimore Police Department (BPD) to reduce the rate of deadly and non-deadly shootings in the city.

For example, is he going to use special-purpose units like the TIGER (Tactical Intelligence Gathering and Enforcement Response) unit that he used in New Orleans? What is he going to do to get the known or suspected trigger-pullers off the streets?

It may be that Mr. Harrison lacks confidence in his commanders and supervisors at this point and does not believe that the BPD is ready to employ more proactive policing, leery of a repeat of the days of the GTTF and other abuses by the BPD. If so, how long is it going to take to get the BPD up to speed?

I believe it is time for honesty, if nothing else. If the citizens can expect more days like yesterday, tell them that, and explain why. If the new mayor and the relatively new police commissioner want to retain the trust and confidence of the people, they must talk to them and tell them what they are doing about the carnage on the streets of their city. If the mayor and police commissioner want people to be patient, they are going to have to ask for that patience and explain why.

And, finally, Mr. Mayor, I’d like to see you do this: Acknowledge to citizens that controlling the violence is going to require the return of more aggressive policing, and that it will not make everyone happy. And declare your support for the commissioner and the BPD in rolling out such tactics. That will take more political courage than you’ve displayed in the past, but the problems of the city are not going to be solved without its leaders taking some political risks to which they are not accustomed.

You’re dealing with killers in Baltimore who have no compunction about shooting babies. I think most citizens understand that requires bolder action than we saw under your predecessor.

Fees, taxes, surcharges and other sources of confusion in Baltimore County.

I’ve used the expression “time for the gloves to come off” a lot recently. Maybe it’s just me, but it seems that the time for equivocating on any number of political issues confronting us on the local, state and national levels has passed.

Of all such issues, the debate in Baltimore County between the “development impact surcharge” proposed by County Executive Johnny Olszewski (Bill No. 23-19) and the “development impact fee” proposed by Councilman David Marks (Bill No. 16-19) is a small one indeed. Nevertheless, it is important enough to the county to make the following point, and to do so without equivocation:

It would be absolutely foolish for any county, if it had the option, to impose a development impact fee rather than a development excise tax. Spend the money on needed infrastructure, not on lawyers and economists.

(The “development impact surcharge” proposed by Bill No. 23-19 is, under state law, a development excise tax. My educated guess is that the bill refers to it as a “surcharge” because it is an easier word for politicians to get past their lips than “tax.”)

Anne Arundel County had a development impact fee rather than a development excise tax while I worked in the Anne Arundel County Office of Law; the county didn’t have the legal authority to impose a development excise tax. Long story short, while the “rational nexus” principles governing the fee approach sound fine in theory, in practice they are little more than a significant administrative burden and expense that contribute nothing to the general welfare of the county. The fee approach does guarantee plenty of work for lawyers and economists – i.e., transactional costs that provide no benefit to residents.

I, and others familiar with local government law, contribute to the confusion between development impact fees and development excise taxes by occasionally referring to both generically as “impact fees.” In any event, here is a brief explanation of the differences by the General Assembly’s Department of Legislative Services:

Differences Between Impact Fee and Excise Tax

A development impact fee is a regulatory measure designed to fund facilities specifically required by new development projects in order to mitigate the impact of such development on infrastructure or public facilities. However, there must be a reasonable connection between the amount of the impact fee imposed and the actual cost of providing facilities to the properties assessed. In order to justify the imposition of an impact fee, a jurisdiction must conduct a study that measures the effects that new development will have on public facilities. The amount of an impact fee is subject to judicial review. Moreover, the revenue from the fee must be dedicated to substantially benefit the assessed properties. Thus, a county cannot collect an impact fee in one geographic area and spend the funds in another area. [Emphasis added.]

A building excise tax is another means of raising revenue from new development. Unlike a regulatory impact fee, the amount of an excise tax does not have to be closely related to the actual cost of providing public facilities to serve new development. In addition, excise tax revenues do not have to be spent to specifically benefit the properties that are taxed but can generally be spent throughout the county.

As it happens, Baltimore County has the authority to adopt a development excise tax under § 11-1-102(a) of the County Code, which was enacted by the General Assembly as Chapter 769 of the 1953 Laws of Maryland. In a case called Waters Landing v. Montgomery County, 337 Md. 15 (1994), the Maryland Court of Appeals held that Montgomery County could use similar authority to impose an excise tax on development. As I recall, Montgomery County and Baltimore County are the only two counties to which the General Assembly has delegated this general taxing power.

Here is a general observation:  Better to give the county executive and county council the flexibility to impose the tax and spend the revenues as they deem appropriate through the budget process, and hold them accountable for their actions, rather than try to micromanage the results through laws and regulations. For one thing, the latter approach doesn’t work very well, and, for another, it furnishes plenty of grist for the litigation mill. Baltimore County already spends an inordinate amount of money on litigation that, with a little foresight, could have been avoided.

Over the years, I have become a firm devotee of the KISS principle. Elected officials, sometimes in the sincere belief that they are “fine tuning” the law, instead make things too complex. Government becomes byzantine, balkanized, and ultimately FUBAR when the KISS principle is ignored.

If Baltimore County had imposed a development excise tax (or impact fee) 25 years ago, it would have avoided the present need for an increase in the local income tax. In that sense, Bill No. 23-19 (development excise tax) is many days and many dollars short, although better late than never. Nor does Bill No. 16-19 (development impact fee) come close to making up for current revenue shortfalls, but it would add needless costs to administering the expenditure of the revenues that Bill No. 23-19 would not.

[My commentary on the suggestion by Mr. Marks that his development impact fee bill is a substitute for the increase in the county income tax rate proposed by Mr. Olszewski will be for another time. Suffice it to say that when he votes on the county budget next month his vote likely will be the pivotal one. And when Mr. Marks votes, we’ll know whether he is more concerned about his own political future than the future of the county. He’s been a part of the problem in the past; this may be his last best chance to become part of the solution.]

Olszewski Just Might Be the Leader to Turn Baltimore County Around

Before Baltimore County Executive Johnny Olszewski Jr. announced the proposed county budget for the next fiscal year, I had my doubts what kind of county executive he was going to be. I was worried that he would be an amicable play-it-safe politician with one eye on the governor’s mansion rather than a genuine leader intent on turning around a county showing serious signs of decay.

The budget includes a 37-cent increase in the local income rate, the addition of a development impact fee and small increases in other taxes. It demonstrates that Mr. Olszewski has the political courage to increase revenues to back up his campaign promises to preserve the quality of public facilities and services, especially schools. And that’s a big deal, especially in Baltimore County. Good for you, Johnny O.

There has been no increase in the county property tax rate since 1988 and in the local income tax rate since 1992. Without an increase in at least one of the rates the county faces a grim financial future. It already has begun the descent into mediocrity.

Make no mistake about it, Mr. Olszewski inherited a financial crisis. The county’s current revenue stream is inadequate to repair or replace aging and deteriorating infrastructure and to meet unfunded liabilities. Early last year the county’s own Spending Affordability Committee warned that the storm clouds already had gathered.

Committee members criticized the late county executive Kevin Kamenetz for failing to put together a long-term plan for funding needed capital improvements, retiree health care, and upgrades to the county’s sewer system necessary to comply with a federal consent decree. I share the cynical view that the absence of such a plan was deliberate, to try to obscure from voters the unsustainable path that the county was on. And, to be perfectly blunt, waiting until Mr. Kamenetz was at the end of his eight-year tenure in office to sound the alarm said little about the bravery of committee members.

Collapse of the Ponzi scheme

For years, the county relied on new development to generate additional property tax revenue. Unlike comparable counties, however, Baltimore County lacks a development impact fee imposed on new construction to offset the costs of expanding the capacity of infrastructure such as schools, roads, and water and wastewater facilities to handle the demands of the new construction. Consequently, general tax revenues are used to pay for the expansion.

That leaves less money for other purposes, including routine repair and replacement of existing facilities. The result is a fiscal Ponzi scheme. That scheme, which strongly favored builders and developers, is now collapsing and the full weight of paying for unmet needs will fall on ordinary taxpayers.

Digging out of a deep hole

Financial crises tend to compound themselves for both individuals and governments. As the county approaches the limit on money that it may borrow to pay for capital improvements, it faces a potential downgrade of its bond rating as concerns grow about its creditworthiness.

A reduction in bond rating means that the county would have to pay more interest to lenders. That increases the costs to the county of borrowing money and means fewer capital projects. To avoid that, the county must rely more heavily on “pay-go” financing; in other words, paying for improvements from current revenues. As of now, the revenue to do that is not there.

There was never a chance that Mr. Olszewski would find enough money by scrubbing the county budget for possible savings. Former county administrative officer Fred Homan was a master at robbing Peter to pay Paul within the county budget. Many county services have been cut to the bone, and maintenance and other expenses already deferred far too long.

County public schools are vulnerable. Middling teacher salaries and overcrowded classrooms in deteriorating buildings eventually will trigger an educational death spiral in which talented teachers and principals leave for greener pastures.

In December, Mr. Homan appeared at his last meeting of the Baltimore County Council after serving 29 years first as the county’s budget chief and then as county administrative officer. He warned council members about the financial difficulties ahead.

“What you face now going forward is going to make a very significant difference in not only the fiscal situation of the county, but the lives of citizens of the county,” Homan said. “I wish you the best.”

Gee, Mr. Homan, thanks a lot.

The least painful way to proceed

Increasing the local income tax rate is the least painful way to proceed. Increasing the local income tax rate has little if any effect on low-income residents, including seniors on fixed incomes who own their own homes. Instead, it shifts the burden of a tax increase to wage-earners more likely to have children in the public schools. That’s only fair, because spending on education consumes about 51 percent of the county’s operating budget.

County citizens share some of the blame

A succession of Baltimore County politicians mortgaged the future of the county to protect their own political ambitions. While county executives like Mr. Kamenetz bear most of the blame, the shortsightedness of an electorate with an anti-tax sentiment approaching religious fervor has been a big part of the problem. Those citizens can take the short ride into the city if they want to see what happens when a jurisdiction allows infrastructure to degrade too far.

The choices about the way forward are stark, with the trajectory of the county’s financial health and quality of life trending sharply downward. At least we now know that Mr. Olszewski has the guts to try to dig Baltimore County out of the hole dug by his predecessors.

The ball is now in the court of the county council. How many profiles in courage will we find there?

[Published as guest commentary by Maryland Matters on April 16, 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.]

Police union has stranglehold on some city politicians

A small but important drama escaped notice because of the hubbub surrounding Baltimore Mayor Catherine Pugh’s “Healthy Holly” book deals. Two days after the deals first made the news, newly appointed Baltimore Police Commissioner Michael Harrison traveled to Annapolis in a last-ditch and ultimately successful effort to persuade members of the Baltimore’s delegation to the Maryland General Assembly not to approve House Bill 1251.

HB 1251 was introduced at the request of the union that represents BPD officers in the ranks of lieutenant and below, Lodge 3 of the Fraternal Order of Police. The bill attracted little attention despite the fact that it would have hindered compliance with the consent decree between the BPD and the United States Department of Justice.

The most astonishing part of the bill was that it was co-sponsored by six members of the city delegation. It is beyond me why six delegates from the city believed that it was a good idea to make reform of the BPD harder than it already is.

In 2016, an Editorial Advisory Board opinion in this newspaper lamented that the BPD could not be reformed unless someone managed to “dismantle the police union’s grip on city government.” Extend that statement to include the union’s grip on members of the General Assembly from the city and that statement is as true now as it was then.

Law and the consent decree

Under current law, the only terms and conditions of employment that may be submitted to binding arbitration, if the city and FOP fail to agree on them, involve “direct compensation” (salaries, shift differential pay, etc.). Also, the Baltimore City Council may exclude from collective bargaining terms and conditions of employment, other than those involving direct compensation, that the council believes should be left to the sole discretion of the police commissioner.

HB 1251 would have given the FOP the right to submit all terms and conditions of employment to binding arbitration and stripped the city council of the power to limit the scope of collective bargaining. The terms and conditions subject to arbitration under the bill were those now expressly excluded from binding arbitration, including job security, disciplinary procedures, investigations, promotions, scheduling, and eligibility for and assignment to details and positions.

In other words, an extraordinary amount of control over the BPD would have been transferred from the police commissioner to a panel of three independent labor arbitrators with no particular expertise in running police departments. It also would have given BPD officers collective bargaining rights beyond the reach of the consent decree and the court.

The consent decree provides that it “does not alter or affect current CBAs [collective bargaining agreements] or collective bargaining rights, or state law.” In the event that a provision of a CBA impedes implementation of the decree, the decree states that the “city and BPD will use its best efforts to advocate to change the … collective bargaining provision.”

The decree provides, however, that “if the City and BPD are unable to eliminate conflicts between the provisions of this Agreement and law(s), ordinance(s), or collecting bargaining provision(s),” they need only comply with the provisions of the decree “to the extent permissible.” Consequently, labor arbitrators accountable to no one for their decisions would have been given the power to block reforms involving disciplinary procedures, investigations, promotions, assignments, etc.

Defeating the bill

Led by City Solicitor Andre Davis, the city waged an intense campaign against the bill. Harrison was dispatched to Annapolis on March 15 in one final effort to defeat the bill. The bill was never brought to a vote and died in committee, largely because of Harrison’s testimony.

Harrison’s testimony apparently marked the end of his brief honeymoon with the FOP, which tweeted: “PC Harrison chose to testify against our proposed legislation at a time that his support of our membership is greatly needed.” The FOP was unhappy with Harrison, but it was furious with Mr. Davis. On April 3, the FOP sent a blistering “open letter” to Davis.

The letter blamed Davis for sending Harrison to Annapolis to kill a bill that was before the General Assembly this year, HB 1251: “The Police Commissioner, with the blessing of both you and Mayor, testified in opposition to [HB 1251], causing the City Delegation to forego a vote which would have gone in favor of the FOP.”

And the worst part is that I believe the union is correct: But for Harrison’s pleas, the city delegation would have passed a bill intended, at least in part, to stymie reform of the BPD. HB 1251 was a testament to the continuing stranglehold that the FOP has on certain city politicians and how close the city can come to grief when the public is not paying attention.

[Published as guest commentary by the Daily Record on April 11, 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.]