There are many discouraging things about the manner in which the City of Baltimore goes about its business, but right up there near the top of my list is the feckless way that the city manages its relationship with Lodge No. 3 of the Fraternal Order of Police (FOP). The FOP represents the sworn officers of the Baltimore Police Department (BPD) up to and including the rank of lieutenant. I’ve done many pieces on the destructive consequences of the failure of the City Council to use its power under the City Charter to limit the scope of collective bargaining with the FOP and rein in the inordinate power of the union over the governance of the BPD.

A prime example of the city’s fecklessness is the extended controversy over placing up to two voting or nonvoting civilian members on the hearing boards impaneled to hear disciplinary charges against BPD officers as authorized by a change to Maryland law passed by the General Assembly in 2016.  The city has been attempting for nearly a year to get the FOP to agree to placing civilians on hearing boards as part of the labor agreement intended to replace the one that expired on June 30, 2016; the city and FOP have been operating without a signed agreement since that time.

I thought I read a few days ago that Mayor Catherine Pugh had decided to abandon the efforts to place civilians on hearing boards through negotiation, and to focus on getting a state law passed that eliminated the alleged need to secure the approval of the FOP to placing civilian members on the boards through negotiation. I couldn’t find the story after a brief search, and I am too tired of this issue to look any further. In any event, I read in a story printed in today’s Baltimore Sun that Mayor Pugh plans to continue to push for inclusion of civilians on hearing boards as part of the ongoing negotiations with the FOP.

The story, written by Kevin Rector and Justin Fenton, also parroted the city’s apparent position that “state law prohibits the city from putting civilians on the boards without the union’s consent.” Just to be clear, gentlemen, that statement is an expression of an opinion, not a fact. And, by the way, it is not the opinion of Assistant Attorney General Kathryn Rowe as described in her letter of advice to State Senator Nathaniel McFadden dated November 4, 2016.

I found Ms. Rowe’s letter after I had a conversation in April with City Councilman Brandon Scott. As I understood the description of his position, it was that the City Council lacked the authority to authorize the Police Commissioner to appoint civilian members of hearing boards because the General Assembly retained control of the Baltimore Police Department (BPD).  Mr. Scott told me that this position was based on advice received from the Attorney General.

Mr. Scott said that he would provide me a copy of the advice if it was reduced to writing and he could locate it. I never received anything further from him, so I went looking for the advice myself, and after some effort found Ms. Rowe’s letter. Her advice may not be the same advice to which Mr. Scott referred, because it is different than what he told me.

According to Ms. Rowe’s letter, Senator McFadden requested the AG’s advice based on an op-ed that I wrote in July 2016 urging the City Council to act on the issue. To my knowledge, neither the request nor the letter of advice became a matter of public knowledge – I certainly did not know about the request or letter until I found the letter six months after it was written.

In her letter of advice, Assistant Attorney General Rowe drew the city a road map on how to place civilians on hearing boards without gaining approval to do so from the FOP through negotiation. First, the City Council would have to enact an ordinance authorizing the Police Commissioner to place up to two voting or non-voting civilians on BPD hearing boards under the authority of Section 3-107(c)(3)(ii) of the Public Safety Article, which is a provision of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR).

Thereafter, the Labor Commissioner could simply refuse to negotiate the issue with the FOP, and the Police Commissioner would be free to exercise his authority to appoint civilian members as authorized by the city ordinance. The authority to appoint civilian members would flow from the ordinance, not from the labor agreement, which would be silent on the issue.

(Skip to the last paragraph on page 5 of Ms. Rowe’s letter if you are not interested in the detailed analysis.)

Of course, there may be another legal opinion out there that I am not aware of. Even if the City disagrees with Ms. Rowe and is queasy about its authority to pass an ordinance as described by Section 3-107(c)(3)(ii) of the Public Safety Article, however, the Mayor should not have gone to the General Assembly this year with the request that she did in the form of SB545/HB1023.

If she had doubts about the accuracy of Ms. Rowe’s conclusions, Mayor Pugh should have asked the General Assembly to clarify that the City Council had the power under the 2016 changes to the LEOBR to decide whether to authorize the Police Commissioner to appoint civilians to BPD hearing boards, and whether to withdraw the subject of civilian participation from collective bargaining. Instead, Mayor Pugh asked the General Assembly to make those decisions for the City Council. It was, to be blunt, a chicken-shit request on the part of the mayor and it was dead on arrival.

By asking the General Assembly to remove the subject of hearing board composition from the scope of collective bargaining rather than empowering the City Council to do so, she was asking state legislators to take on a political fight with the FOP that she and city legislators have no stomach for – and that is never going to happen. The mayor had been informed in no uncertain terms before the 2017 session by an influential state senator not to expect the General Assembly to rescue the city from its inability to solve its own labor relations problems, and SB545/HB1023 went nowhere.

Maybe someone can ask the Mayor and members of the City Council whether they agree with the advice given by Assistant Attorney General Kathryn Rowe and, if so, why they haven’t acted on it. It would be interesting to know whether the city is holding back because of genuine legal concerns, or because of the usual trepidation by city officials about offending the FOP. Given the nature of the legislation requested during the 2017 session of the General Assembly by Mayor Pugh, my money is on the latter explanation.

September 12, 2017

I, along with many others, read Justin Fenton’s account of his interview with Baltimore State’s Attorney Marilyn Mosby and Police Commissioner Kevin Davis with a sense of despair. I heard Ms. Mosby and Commissioner Davis say many things, but above all I heard them trying to tamp down expectations of reducing violent crime any time soon to try to save their reputations, and their jobs.

I must admit that I’ve long since written off State’s Attorney Marilyn Mosby, and have no expectations that she will say much of anything worthwhile, let alone admit any shortcomings in her approach to her job. The good thing about having low expectations is that you’re seldom disappointed, at least when it comes to public officials in Baltimore.

The claim by Commissioner Davis that the style of policing that resulted in a reduction to fewer than 200 homicides in 2011 also produced the civil unrest that followed the death of Freddie Gray was, however, disappointing in its intellectual dishonesty. What Commissioner Davis left out is much more significant than the nugget of truth in his statement. It was not the tactics employed that produced the collateral damage to the relationship between the Baltimore Police Department and city residents, it was that they too frequently were applied in an undisciplined and abusive manner. It is a difference with a critical distinction.

The distinction is that the answer lies in improving the discipline and quality of the department, not in abandoning the type of tactics necessary to gain some semblance of control over what has been happening on the streets of Baltimore for the better part of the past three years. Because Commissioner Davis has condemned the tactics of his predecessors he has wedded himself to his own version of history, a version that is not entirely accurate and that tends to absolve him of any responsibility for the continuing epidemic of murder and other violent crime in the city.

As Peter Moskos  pointed out this week in a post to his blog, the numbers certainly indicate that “discouraging proactive legal discretionary policing allowed violent criminals to be more violent” beginning in about 2015. Professor Moskos is one name on a fairly long list of critics of the abandonment of proactive policing in the city that includes former United States Attorney for the District of Maryland (and current U.S. Deputy Attorney General) Rod Rosenstein, former State’s Attorney Gregg Bernstein, and former Deputy Police Commissioner Anthony Barksdale.

I have been a vocal advocate for improving the discipline and quality of the Baltimore Police Department (BPD), and the Baltimore Sun has published a number of my op-eds on the subject over the past several years. Re-reading the most recent, “Baltimore police officer is a tough job, treat it as such” (I don’t write the captions), I realize that it has a bit of a desperate, it’s-now-or-never feel to it. Well, it should, because that feeling reflects reality.

Professor Moskos expressed his concern that “Baltimore is transitioning from a city with failures to a failed city.” I agree with him. Baltimore is near a tipping point, and if passes that point years of decline will be inevitable. In fact, the BPD and the city may already have reached the tipping point; I wrote (another) pessimistic commentary four months ago in which I opined that the BPD was in more serious trouble than city and state elected officials seemed to realize.

I’ve always believed that improving the discipline of the BPD is a means to a specific end, in the sense that the nature of violent crime in Baltimore, particularly gun crime, requires an aggressive, proactive approach. It is axiomatic that the closer policing is pushed to its constitutional limits, the more well-trained and disciplined a force must be to avoid transgressing those limits. I believe that it also is true that, by 2014, there was an accumulation of evidence demonstrating that there needed to be a re-set in the culture of the BPD; there were too many rogue officers and the BPD was destroying its relationship with the community it is intended to serve.

The appropriate response, in my opinion, was to try to turn the disciplinary situation around as quickly as possible. That certainly required some re-training, but it also required some fundamental changes to the governance of the department restoring full power to run the department to the commissioner and his top commanders. Maybe it required a temporary stand down as applied to certain tactics, but it certainly did not include permanently hard-wiring the abandonment of lawful “stop and frisks” into the consent decree with the DOJ, as was done by Mayor Catherine Pugh and Commissioner Davis.

There is no doubt in my mind that, if done properly, a more proactive policing style would be welcomed by the vast majority of city residents. Citizens don’t need any explanation about the crisis at hand, but I believe that the city leadership would have to get behind the Police Commissioner and “sell” the program to the public – the public needs to understand the reason for the approach and be assured that, although innocent toes are going to get stepped on from time to time, the BPD command is committed to minimizing and controlling any abuses. Old school police officers didn’t believe in the need to explain anything to anyone (no one in authority did), but times have changed and so has policing.

Nothing is going as I had hoped; what little change there has been has come too slowly, and the Mayor and Police Commissioner now almost seem to accept the level of violent crime in the city as inevitable. One of the former public officials referenced above encouraged me earlier this year not to abandon the efforts to push the BPD to reinvigorate its style of policing; I must say, however, that I am becoming increasingly convinced that trying to persuade the group currently in power in the city to change their minds on anything is a monumental waste of time.

August 29, 2017

In my opinion, the ill-considered course of conduct by the administration of Baltimore County Executive Kevin Kamenetz regarding the proposed development known as “Towson Station” located on property currently owned by the county is a prime example of the culture of soft corruption that pervades the Baltimore County government. In its haste to conclude the sale to the prospective developer, the Kamenetz administration trampled the due process rights of citizens opposed to the proposed development and then thumbed its nose at a condition placed on the proposed development by the County Council. And that may just be the beginning.

The proposed site of Towson Station is a 5.8-acre parcel of land at the intersection of York Road and Bosley Avenue that has been under a contract of sale with Caves Valley Partners since 2013. The County’s first errant step was to create an inherent conflict of interest between its proprietary interests and it regulatory duties by giving itself a financial stake in the outcome of the application by Caves Valley for approval by the County of a form of development known as a planned unit development (PUD).

I described the flawed way in which the County structured the transaction in a prior post. [“The Towson Station fiasco – a process flawed from the start,” August 12, 2017.] This post is an updated version of the previous one, as information slowly continues to come out.

When the County put the property up for sale it solicited proposals that included the purchase prices offered and the types of development proposed by the prospective buyers. Caves Valley offered the most money, $8.3 million, which was $2.2 million more than the next-highest offer.

The hitch was that the development proposed by Caves Valley included a Royal Farms gas station and convenience store. The zoning classification applicable to the property does not permit the property to be used for a gas station. Instead of rejecting the proposal out of hand, the County decided to strike a deal: It signed a contract of sale for the property contingent on Caves Valley gaining approval of a PUD. The County Council approved the contract in December 2013. Property that is developed under a PUD may include a use that is otherwise prohibited by the zoning classification of the property.

The process that resulted in the contract between the County and Caves Valley took place in secret. County Executive Kevin Kamenetz defended the secrecy, stating that the county had to be tight-lipped to protect the committee responsible for the selection from “outside influence.”

County officials claimed that, in reviewing proposals, the committee considered “how the [proposed] developments would fit into the community” in addition to the amounts offered for the properties. It seems that the “outside influence” that county officials were determined to avoid consisted of the views of citizens who lived or owned businesses in Towson. The deal with Caves Valley was controversial from the start because of widespread opposition to placing a gas station on the property, often described as part of the “gateway” to Towson.

An important feature of a PUD is that, because it is used to allow a parcel of land to be developed in a different way than permitted by the zoning classification and general zoning regulations applicable to the parcel, it triggers due process rights in nearby property owners who object to the “non-standard” development of the parcel. Consequently, the County is obliged to evaluate an application for a PUD in a fair and impartial manner that respects the rights of opponents. That obligation went by the boards as soon as the deal with Caves Valley was struck.

The property goes to settlement – and the County only gets its $8.3 million – if the PUD allowing the gas station is approved by the County. Does that sound like a formula for a fair and impartial evaluation of the PUD by the County? Of course not. Opponents of the project were at a disadvantage from the beginning because the County gave itself an economic incentive to approve the PUD.

Things went downhill from there. In December 2016, the County Council adopted Resolution No. 113-16 giving preliminary approval to the Towson Station PUD. Under intense pressure from citizens the County Council added conditions to the PUD, including the requirement that “existing mature trees that surround the site are protected.”

It appears that requirement may not have pleased Caves Valley. On April 1, 2017, without prior notice even to Councilman David Marks, who represents the district where the property is located and sponsored Resolution No. 113-16, a contractor for the County cut down 30 trees. Gone were seven “specimen” trees – trees having a diameter of 30 inches or more, and gone were the trees on the perimeter of the property ostensibly protected by Resolution No. 113-16.

On April 3, 2017, County Administrative Officer Fred Homan appeared before the County Council to explain the administration’s actions. Councilman Marks pointed out to Mr. Homan that Resolution No. 113-16 conditioned the approval of the PUD on the preservation of the perimeter trees.

Mr. Homan responded: “That has nothing directly to do with the fact that the county owns the properties, Sir. That would be at the point that the property would transfer.” That was Mr. Homan’s way of pointing out that, technically, conditions placed on the PUD applied only to the developer, not to the County; the developer itself couldn’t cut down the trees to facilitate its development but the County could do so for the developer. In others, Councilman Marks, “gotcha.”

If there was any doubt about the reason that the County administration removed the trees Mr. Homan eliminated it by further explaining:

“And quite frankly, the County is currently moving to accelerate the settlement on the property so the County can receive the 8 million dollars that it’s currently had to forward finance through the sale of debt. That keeps the revenue as a receivable, which does not help. The County needs the cash from the sale of the property. So, the County is trying to accelerate the close of the property. That’s what’s going on at this point in time.” [Emphasis added.]

The implication of his statement was that the requirement to preserve the perimeter trees was an impediment to closing the sale of the property to Caves Valley, and the County administration removed the impediment. Maybe Mr. Homan thought that the administration was being clever by exploiting what he believed to be a technicality; if so, I’m not so sure that he will think that it was such a good idea by the time that this is over.

First, the removal of the trees may ultimately doom approval of the PUD, which must survive both administrative appeal and judicial review. A gas station is a much more “intensive” use of the property than permitted by the underlying zoning, generating considerably more traffic and noise and a less appealing visual impact.

The County Council conditioned approval of the PUD with its gas station on the retention of the mature trees that would have partially screened the gas station from surrounding properties and from the vehicular and pedestrian traffic that passes by the property. Regardless of whether the County acted at the behest of the developer in removing the trees or acted solely on its own volition, the screening and treed buffer upon which approval of a gas station on the property was conditioned is now gone. How can the PUD survive a serious legal challenge under that circumstance?

Second, the sheer brazenness and arrogance of the removal of the 30 trees, and the explanation given for it by Mr. Homan, will continue to resonate. It symbolizes the attitude of the Kamenetz administration toward its citizens, and even toward members of the County Council when they step out of line. It tends to reinforce the belief that Mr. Kamenetz’s infamous comment “it’s my job to talk, your job to listen right now” was more than an ill-tempered response to a heckler; it reflects a style of governance.

Could it possibly get any worse? Maybe. We will find out the answer to that question once we have a chance to review the “project plan” and Forest Conservation Plan submitted to and approved by the County’s Department of Environmental Protection and Sustainability (DEPS) before the trees were removed were removed from the property – if those documents exist.

I have tried without success to have officials with DEPS, and the attorney who advises them, to confirm the existence of an approved project plan that I could review. The project plan necessarily includes a Forest Conservation Plan, among other documents. It is a question that would take a DEPS employee with access to the department’s database less than two minutes to answer. They spent more time jerking me around than it would have taken to confirm existence of the records. In his email to me, an Assistant County Attorney informed me that “we produce documents, not confirm information.” As you can tell, there is not always a citizen-friendly approach to the way that the County does business.

A point relevant to the county’s removal of the trees is that there are detailed provisions of State and County law that limit the rights of persons who seek to develop, improve or clear property to remove existing trees on the property. As it happens, my last paying job as a lawyer was to review compliance by the City of Annapolis with the Maryland Forest Conservation Act.

I spent hours reviewing various documents required by the Forest Conservation Act: Forest Stand Delineations, Preliminary and Final Forest Conservation Plans, etc. In my opinion, it would have been a challenge for Caves Valley to gain approval to remove all 30 of the trees taken down by the County, especially the specimen trees, under a properly reviewed Forest Conservation Plan. The approved Forest Conservation Plan for a PUD is a component of the administrative decision approving a PUD and can be contested as part of an appeal of that decision.

The County administration may consider itself “exempt” from the conditions placed on the PUD by the County Council, but it is not exempt from the provisions of the Forest Conservation Act when clearing trees from its own property. Under the County’s Forest Conservation Regulations, the County was required to submit a “Project Plan” before removing the trees on April 1st because the tree cutting took place on an area of 40,000 square feet or greater.

To gain approval for cutting down the trees the County had to go through the same steps as a private developer, including submitting a Forest Stand Delineation and a Forest Conservation Plan. Both documents must be prepared by a qualified professional and adhere to the detailed guidance of the County’s Forest Conservation Technical Manual, which tracks the requirements set forth in the State Forest Conservation Manual.

In general, a Forest Conservation Plan must be crafted to “protect existed forested areas and specimen trees to the fullest extent possible before, during and after construction.” I believe that the Forest Conservation approved by DEPS will tell us quite a bit about the nature of the County’s actions in removing the trees. What justification could the County give for cutting down 30 trees, including seven specimen trees, other than facilitating the sale of the property by preparing it for development by Caves Valley? I predict that the legal house of cards will collapse when the contents of the Project Plan and Forest Conservation Plan are made public, for reasons I describe later.

All of this took place in the context of what State Senator Jim Brochin and others refer to as the “pay-to-play” environment of Baltimore County. A recent story by Ann Constantino of The Baltimore Post is well worth reading. She describes how Caves Valley and other developers virtually drown elected officials in Baltimore County, including members of the County Council, in campaign contributions.

According to Ms. Constantino, data found in the government database on Caves Valley, its partners and affiliates, and Royal Farms, shows contributions to the County Executive, a slate formed by the County Executive called “A Better Baltimore County Slate,” and all seven members of the County Council, from 2010 to 2017. The contributions, including personal contributions from executives of Caves Valley and Royal Farms, exceeded $100,000 during that period. Little wonder the citizens who oppose the Towson Station project are so cynical.

Speaking of members of the County Council, it is not as if they have covered themselves in glory regarding the Towson Station project. The County Council approved the contract of sale in 2013 and unanimously adopting Resolution No. 113-16 giving preliminary approval to the PUD despite the questionable structure of the transaction.

When Mr. Homan appeared before the County Council two days after the trees were cut down, only Councilman Marks challenged Mr. Homan, albeit weakly – Councilman Marks admonished Mr. Homan only for the fact that Mr. Homan had not called him before the trees were cut down. A County administrative official tells you that, even though the County Council unanimously decided that the trees must stay, he or his boss decided that the trees must go and therefore had them cut down, and the best that you can manage is a complaint about not getting a heads up?

Of course, the other members of the County Council didn’t do any better, sitting by like timid mice. It was a revealing, pathetic turn of events.

In July, Councilman Marks introduced Resolution No. 68-17 which, if adopted, would have rescinded preliminary approval of the PUD. The resolution was tabled on a 4-3 vote that followed party lines, with all four Democrats voting in favor of tabling the resolution indefinitely.

After the resolution was tabled, Mr. Kamenetz gave citizen groups and the developer 30 days to try to come up with a new proposal for the site that did not include a gas station. He acknowledged that dropping the gas station from the project likely would require renegotiating the sales price.

There is no doubt in my mind that Mr. Kamenetz will not allow the Towson Station PUD to proceed with a gas station as part of the development, regardless of what it costs the County financially. He wants this situation to go away, and I am sure that he wishes it never happened.

Even by Baltimore County standards, the way that he and his administration handled this project was particularly imperious and offensive. It caused citizens of the County to take a hard look at the way the County does business, and what they saw was not very flattering to Mr. Kamenetz. The longer this controversy continues, and the more scrutiny that the actions by the administration receive, the worse it gets for Mr. Kamenetz.

Mr. Kamenetz wants to close on the sale of property before any more political damage is done and in hopes that, once a compromise is reached and the property is sold, citizens and other public officials will lose interest in digging any further into what his administration did. There is a distinct M.O. to how the County operates, which I learned when inquiring into “severance pay” controversy.

The County’s first tactic is to stonewall as long as possible, doing its best to keep the public and media from getting relevant information. If that fails, the administration acts quickly to try to resolve the controversy. With both tactics, the overall strategy is the same: Rely on the media and public to have a short attention span and lose interest in a matter once it appears “resolved.”

With the severance pay issue, the County Executive pulled the plug on the controversial “Executive Benefit Policy” two months after I made the policy public in an op-ed published by the Baltimore Sun. Since then, his allies on the County Council have balked at initiating an audit into the administration of the policy, even though an apparent irregularity in that administration may have cost the County tens of thousands of dollars. They guessed correctly, at least to his point, that the media would lose interest in the policy and move on to the next story.

Mr. Kamenetz is pushing a “compromise” that eliminates the gas station from Towson Station. Once that is achieved he will press ahead for final approval of the PUD by the County to end the immediate controversy. He hopes that, true to form, the media and public will lose interest in the issue of whether his administration violated the Forest Conservation Act in removing the trees from the property and, if so, why.

__________________

When I refer to a culture of “soft corruption,” I am not referring to conduct that is criminal in nature. I am referring to patterns of behavior that, although legal, work against the public interest. In his recent book, former New Jersey state legislator and reform advocate William Schluter states that soft corruption occurs when “individuals manipulate government functions for reasons of greed, personal advancement, or political advantage.” According to Mr. Schluter, soft corruption is “part of a political culture in which certain people behave as if the system exists to facilitate their personal gain, not to do the greatest good for the community.” [Soft Corruption: How Unethical Conduct Undermines Good Government and What to Do About It, p. 4.]

I will repeat what I said in my earlier post on this subject: I have found no evidence that Caves Valley did anything wrong. For example, it would have violated no laws for Caves Valley to express its displeasure to the Kamenetz administration upon the condition added to Resolution No. 113-16 requiring preservation of the perimeter trees. If that occurred, the responsibility fell upon Mr. Kamenetz and Mr. Homan to inform Caves Valley that it was the duty of executive branch of County government to carry out the policy established by the County Council, not to thwart it by whatever means necessary.

Although I am not accusing anyone in the County of criminal misconduct, that could change. To begin with, the action by the administration in removing the trees protected by the condition imposed on the development of the property by the County Council places whoever ordered the removal on thin legal ice. In my opinion, it was unscrupulous for an official in the executive branch of County government to undermine the intent of Resolution No. 113-16 by ordering the removal of the trees. Whoever ordered the trees removed figuratively spit in the face of the County Council and, so far, has gotten away with it.

As I described above, there should be an approved Forest Conservation Plan in the files of DEPS authorizing the removal of the 30 trees. If there is not, then we are in the territory where an investigation of possible misconduct in office (malfeasance) comes into play. It was one thing to defy the legislated will of the County Council; it would kick it up another notch if the defiance was done in a way that also blatantly violated the County’s forest conservation ordinances and regulations.

If there is a Forest Conservation Plan, but if it was done so incompetently that it is obvious that the preparer had no intention of complying with State and County law requiring, for example, the preservation of specimen trees, then misconduct in office (misfeasance) remains in play.  And if there is a Forest Conservation Plan, the most interesting question is on what “project” is it based?

Forest Conservation Plans cannot be done in a vacuum, and are based on the proposed design and site plan for a specific project. Because there is no proposed County construction project involved, it appears that the Forest Conservation Plan must be based on the site plan for the development proposed by Caves Valley.

And if it is based on the PUD proposed by Caves Valley, who prepared and paid for the Forest Conservation Plan? If the Forest Conservation Plan used by the County was based on Caves Valley’s proposed site plan for Towson Station – and especially if the plan was provided or paid for by Caves Valley – the County has created a relationship in which a hearing officer or court could conclude that the County was acting on behalf of Caves Valley when it removed the trees. In any case, it would create an uncomfortably messy situation when it came time for Caves Valley and County lawyers to persuade a hearing officer or judge that the PUD did not violate the conditions imposed by Resolution No. 113-16.

Don’t get me wrong; I am not saying that parties should not reach a compromise on the Towson Station that reasonably satisfies the interests of the citizens, Caves Valley and the County.  They should.  The trees are gone, and the parties now need to make the best of an unfortunate situation.  I am confident that will occur.

Regardless of whether the County achieves a reasonable compromise on the Towson Station project, however, there must be an investigation into the circumstances attendant to the removal of the perimeter trees. Were the actions by the administration merely sneaky and contemptuous of the County Council and the citizens opposed to Towson Station, or was there more to it than that? It is time for the proper agencies to pay attention to what goes on in Baltimore County.

August 25, 2017

A few days before the tragic events in Charlottesville, Virginia, I posted on this blog my observation that President Donald Trump’s behavior was becoming more erratic, and that there was an increasing likelihood that he would decompensate to the point where action under the 25th Amendment is necessary.  Things just got a lot worse.

Today he has been sending out tweets accusing the mainstream media (“fake news”) of misrepresenting his position on the Charleston violence to the public. It would be one thing if his effort was simply tactical, trying to blunt some of the extraordinarily negative public reaction to statements from Mr. Trump that failed to acknowledge that Nazism, anti-Semitism, and racial bigotry are evil, while opposition to those beliefs is not.

The thing is, his effort is not simply tactical; it reflects his increasingly tenuous grip on reality. Mr. Trump has always tended to believe that he can create his own reality, but in this case, he is so completely out-of-touch that it is pathological: Members of the public have listened to every word of Mr. Trump’s various statements on Charleston and formed their own opinions. This isn’t about “fake news.”

Yes, commentators can help shape opinions, but we have seen the derision with which a handful of right-wing commentators have been met when trying to defend Mr. Trump’s remarks. Plus, elected officials of all stripes, business leaders, and everyone else you can think of have joined the chorus of voices condemning the President for failing to denounce fascists and bigots in unambiguous language; it’s hard to find someone rational who hasn’t. For Mr. Trump to see this as just another round in his fight with the New York Times, Washington Post, CNN, etc. is delusional – there is no other word for it.

No president has ever been this ostracized for his behavior. I doubt that he can psychological withstand the pressure without cracking completely. What exact form his deterioration would take, I don’t know, but I believe that he first will try to find refuge in people who reinforce his aberrant social views and prop up his fragile ego – that would be a typical coping mechanism as he tries to hang onto the delusion that, destructive as it may be, helps give order to his view of the world. In other words, he is going to be vulnerable to folks like Steve Bannon. And Bannon, with a nose like a vulture for decay, knows it. That’s bad.

I am not rejoicing in what I see happening to the President, by any means. Mr. Trump is unlikely to go down without a fight, even if it becomes obvious to Vice President Mike Pence and the cabinet – as well as to Mr. Trump’s family – that Mr. Trump must be removed. Resistance by Mr. Trump would be accompanied by civil disorder instigated by his supporters, and the United States would be in a very vulnerable position as the attempt at a transition of power played out. Messy doesn’t even come close.

Plus, I am not enthusiastic about the ultimate outcome of removal – replacement of Mr. Trump with Mr. Pence. If you want a sense of what I think about Mr. Pence, read the article that recently appeared in La Civiltà Cattolica, generally considered a Vatican house organ. More disciplined and less psychologically imbalanced than Mr. Trump, Mr. Pence poses a greater danger of successfully advancing the destructive agenda of the unholy alliance between secular bigots and nativists and hard-right Christians that brought Mr. Trump to power. Of course, we will only have to worry about that problem if we survive the one at hand.

August 17, 2017

To date the controversy in Baltimore County over the land development project known as Towson Station proposed by Caves Valley Partners for 5.8 acres of county-owned property at the corner of York Road and Bosley Avenue in Towson has focused on whether putting a gas station and convenience store on the site is an appropriate use of the property. A deeper controversy lies in the way that Baltimore County handled the disposition of this property from the beginning, because that is the reason that the county is in such a nasty, messy situation.

Baltimore County never should have structured the disposition of the property in a way that gave the county a financial stake in the outcome of a regulatory process that is supposed to be conducted in an independent, objective manner. The county created a fundamental conflict of interest between its proprietary interests and its regulatory responsibilities that appears to place citizens who object to the proposed development at a serious disadvantage.  Those citizens realize that, and they are not happy.

The relevant history.

The county solicited proposals from developers interested in purchasing the property, the site of a former fire station and public works facility. The proposals included the price offered to the county for the property and the nature of the proposed development of the property.  Clearly, those two elements of a proposal were related to one another, because the nature of a development determines the revenue to be earned from it. Generally, higher the revenue-producing capacity of a property, the higher the price.

The county announced in 2013 that Caves Valley had submitted the successful proposal, offering $8.3 million for the property.  The development proposal accompanying the offer included 10,000 square feet of retail and a 4,200-square-foot space that could be a restaurant or bank, and a Royal Farms gas station and convenience store, even though a gas station is not permitted by the zoning classification of the property.

The contract of sale between the county and Caves Valley, which was approved by the County Council that same year, is contingent on the county formally approving the development proposed by Caves Valley for the property through the process set forth in the county code.  In other words, the county’s ability to realize the purchase price of $8.3 million was contingent on the county approving the construction of a gas station not permitted by the property’s zoning.

To compound the problem, the county excluded the public from the process that resulted in the award of the contract to Caves Valley, even though the process included proposals for the type of development on the property. Baltimore County, being Baltimore County, conducted the process that resulted in the solicitation and acceptance of proposals for the sale of several county-owned properties in 2013, including the proposed site of Towson Station, in secret. Mr. Kamenetz defended the secrecy, stating that the county had to be tight-lipped to protect the committee responsible for the selection from “outside influence.”

County officials claimed that, in reviewing proposals, the committee considered “how the [proposed] developments would fit into the community” in addition to the amounts offered for the properties. It was a questionable claim, at least as applied to the Towson property. It seems like the “outside influence” that county officials were determined to avoid consisted of the views of citizens who lived in the affected communities.

In summary, the county administration, without inviting community participation or seeking community buy-in, attempted to maximize its profit from the sale of the Towson property by accepting a bid for the property tied to a development proposal calling for a more intense use of the property than is permitted by the zoning of the property; specifically, a gas station. Consequently, residents and business owners in Towson who oppose the gas station understandably believe that they were sold out by the county in favor of the highest bidder.

Questions about the planned unit development (PUD) process.

The fly in the ointment with the Caves Valley proposal was the fact that a gas station is not a permitted use on the property under the zoning classification applicable to the property. In zoning parlance, a gas station is a more “intense” use of this property than allowed by its zoning. How to overcome that impediment?

Requiring Caves Valley to seek and obtain an administrative rezoning of the property to a classification permitting gas stations was not a practical solution to the problem, if only because there are strict standards applicable to administrative rezoning and this property would not meet them. There was only one practical way to solve the problem: A planned unit development (PUD). Property developed under a PUD may include a more intense use on the property than otherwise would be permitted by the applicable zoning classification of the property.

There are many legitimate PUDs that allow more intense uses than otherwise would be permitted under the zoning classifications of the properties on which the PUDs are located. In those PUDs developers are allowed more intense uses than permitted by the underlying zoning because the development provides some benefit to the community that the community would not receive if the property was developed under standard zoning rules.

For example, a developer may get to include a more intense use on a site in exchange for less dense development than otherwise would be permitted on the site, allowing the developer to create a significant buffer of undeveloped property around the more intense use. Both planners and the neighboring community might consider that a net benefit to the community, preferring a use like an office building buffered by distance and trees nearby, rather than a permitted use like another row of townhouses right across the street. There are many variations on the theme. A PUD is almost always expected to have higher design standards than “conventional” development.

The Baltimore County Code, in keeping with the county’s tradition of “zoning by courtesy,” requires a developer to send the application for approval of a site for a PUD to the County Council member in whose district the site is located. A community meeting must be held to explain the PUD to members of the affected communities so that they can provide their feedback to the County Council.

Before the PUD can move forward for further administrative review the County Council must pass a resolution finding that the proposed PUD “will achieve a development of substantially higher quality than a conventional development would achieve” and satisfies certain other criteria. The County Council approved the Towson Station PUD last December by Resolution No. 113-16 introduced by Councilman David Marks, in whose district the property is located.

The process of administrative review concludes with a final recommendation from the Department of Planning to an administrative law judge (ALJ) from the county’s Office of Administrative Hearings. The role of the Department of Planning, which also provides a preliminary review of the PUD to the County Council, is a highly influential one because it is the agency where the county’s planning and zoning expertise resides. The ALJ approves or disapproves the PUD based on whether it satisfies the requirements of county law and the decision of the ALJ is appealable to the county’s Board of Appeals.

An intriguing question, given the history of this project and the detailed, sequential process for approving a PUD, is whether the county administration got out in front of that regulatory process by committing itself to supporting a PUD before an application to approve the PUD had even been filed with the County Council by Caves Valley. If so, it is grist for the litigation mill because the integrity of the process was compromised. It is a matter that warrants investigation.

One of the many interesting “quirks” of Baltimore County law is found at §32-4-245(c)(5) of the County Code. A standard requirement for PUDs throughout the state is that they comply with the applicable master or sector plan used to guide development where the PUD is located. Baltimore County law adds a loophole – the PUD must comply with the recommendations of the master or sector plan or the recommendation of the Department of Planning. It is a loophole big enough to drive the proverbial truck through, and suggests that a PUD need not be consistent with the applicable plans if the Department of Planning says it doesn’t.

As I described above, the flexibility of a PUD is a useful tool that can result in a higher quality of land development in an area. A PUD also can serve as little more than a backdoor means for up-zoning a parcel, and that is particularly true when the benefits and amenities offered by the developer are not intrinsic to the site of the development.

Without going into the history of PUDs, suffice it to say that when first used, developers were expected to develop the site in a manner that incorporated the additional benefits and amenities into the site plan, such as the example given above. Another example would be for the approving authority to allow a denser development on one part of the property than permitted by the underlying zoning in exchange for some amenity on another part of the property, such as a recreational facility or open space.

As time went on, it became more common for the amenities and benefits offered by the developer as part of a PUD to be things that bore little if any direct relationship to the site of the development.  Yet again, Baltimore County law is quite liberal, and allows the benefits on which a PUD is based to be capital improvements to a “nearby” county-owned or state-owned facility. You tell me what “nearby” means. At worst in such situations, developers are essentially purchasing an up-zoning by throwing in some off-site improvements and benefits, and the PUD process becomes antithetical to the plan of development for an area and does not result in higher-quality development on the site.

I am not saying that is the case with the Towson Station PUD approved by the County Council by Resolution 113-16. As critical as I may be of the process employed by the county in this case, I am not familiar enough with the site plan, the master and sector plans, or the nearby community itself to pass judgment on the merits of the development contemplated by the PUD. That is something for county planners and community members who are have pored over the master, sector and site plans, and who are familiar with the community in which the property is located, to debate.

I am saying, however, that there are red flags. The $50,000 worth of community benefits on which the Towson Station PUD is based include improving the West Towson Trail, planting trees in West Towson and installing solar-powered speed display signs on Stevenson Road, west of York Road, and on Stevenson Lane, east of York Road. Those amenities are not on or directly related to the subject property. Again, given the way in which the county has proceeded, it is easy to understand the concerns of the opponents of the PUD.

Can the residents and business owners of Towson be confident that the Towson Station PUD will be approved or disapproved on its merits? Or will they be suspicious that the county’s pecuniary interests will influence the decision-making process? I do not mean to impugn the integrity of the county’s professional planners and hearing officers, but the fact that questions like these are being raised is precisely the reason that the county should have avoided tying the sale price of the property to its approval of a PUD, and doing so while excluding the public from the process.

If you had any doubt that there is a relationship between the financial return to the county and the approval of the PUD, it should have been removed by the statement from County Executive Kevin Kamenetz on Friday. Finally yielding to public pressure, he announced that he had given Caves Valley 30 days to meet with community representatives and come up with a new plan for the project, preferably one that did not include a gas station. The announcement included an acknowledgement by Mr. Kamenetz that Caves Valley likely would seek to lower the sale price of $8.3 million if the gas station is dropped from the plan.

Why did the county choose to take such a brazen, ill-fated course of action? In my opinion, the county administration believed, based on past experience, that it would be able to railroad the deal through the County Council with what the Baltimore Sun editorial board referred to sarcastically as the council’s customary “efficiency” – very little discussion and perfunctory opposition, if any. The Kamenetz administration still might succeed, but the last-minute decision by Councilman David Marks to throw himself on the tracks by attempting to withdraw approval of the PUD has sent the project back to the drawing boards for now.

In my opinion, there is a pattern in the way that Baltimore County government operates, and it includes self-dealing among county officials, little concern with obvious conflicts of interest, an obsessive concern with secrecy, and an aversion to public participation in decision-making processes. I certainly saw evidence of those things in my inquiries into the now-notorious Executive Benefit Policy and the issue of severance pay for highly-compensated county employees. Unless ordinary citizens are willing to get more involved, as they now are doing with the Towson Station project, they should not expect their interests to be taken seriously by the powers-that-be in the Baltimore County government.

I want to emphasize that my criticism is not directed at Caves Valley Partners; as far as I can tell, they did what the county asked them to do. In my career, I saw developers and ordinary citizens harmed by poor governmental decisions in about equal measure.

I also feel compelled to address comments made on Friday by Council Chairman Tom Quirk, who was asked by Mr. Kamenetz to act as a “mediator” between Caves Valley and representatives of the Towson community. Mr. Quirk, channeling feelings previously expressly by Mr. Kamenetz’s chief of staff, blasted Mr. Marks for introducing a resolution to rescind approval of the Towson Station PUD. Mr. Quirk stated that “I’m coming in from the outside trying to clean up David Marks’ incompetent mess.”

Mr. Chairman, this mess is on you as much as it is on anyone else. Even if he did so only because he got political cold feet, Mr. Marks eventually stepped up to try to stop a process that was flawed from the outset from doing harm to the community that he represents. Better late than never, and Mr. Quirk remains in the never category.

From the time that the council approved the contract of sale in 2013 to its approval of the PUD last year, all members of the County Council knew or should have known that the process was improperly skewed against the opponents of the project. Mr. Quirk and his three Democratic colleagues on the council voted to table Resolution No. 68-17, which had been introduced by Mr. Marks to rescind approval of the PUD.

Mr. Marks and his two Republican colleagues voted against tabling the measure. This should not be a partisan political issue but the hard fact is that, at least for now, the “good government” elected officials in Towson do not sit on the Democratic side of the aisle.

I am sure that Mr. Kamenetz hopes that he can salvage something from his deal with Caves Valley, even if it means accepting less money for the property. The last thing that he wants is a failed deal on his hands with people looking too closely at the causes of the failure.

August 12, 2017

Baltimore County Councilwoman Vicki Almond, who has been on the County Council since December 2010, has announced that she will introduce a bill that eliminates a controversial provision of Baltimore County pension law dating back to May 2010.  Why now?  In my opinion, the bill is a big fat red herring intended to distract attention from unfinished business involving the Executive Benefit Policy, a policy made public for the first time in my op ed that appeared in the Baltimore Sun on May 16^th.

Since the publication of the policy, and especially since the subsequent publication by the Sun of an editorial calling for the practice of severance pay to be ended, Baltimore County politicians running for office in 2018 have fallen all over themselves with expressions of concern about the way in which backroom deals have been used to boost the benefits of high-ranking officials already receiving handsome salaries and entitled to extremely generous pensions.  The Sun’s recent editorial also referred to the 2010 sweetheart pension deal addressed, perhaps not coincidentally, by Ms. Almond’s bill.

County Administrative Officer Fred Homan revised the Executive Benefit Policy on July 21^st and Mr. Kamenetz scrapped it entirely less than a week later, on July 26^th.  On July 27^th the County Council amended the Legislative Benefits Policy, a similar policy applicable to legislative branch employees, to eliminate severance pay.  Those were the easy things to do.  The final thing that needs to done may end up being more painful.

The unfinished business with the Executive Benefit Policy is an audit of the administration of the Executive Benefit Policy before it was terminated.  A change made to the policy by Mr. Homan on July 21^st was a tacit admission that one or more department heads in the administration of County Executive Kevin Kamenetz are accruing vacation leave in violation of a provision of the policy that has been in effect since 1995.

That is significant, in part because the prohibition against department heads earning and accruing leave was used as one of the justifications for awarding severance pay to those department heads; allowing department heads to accrue leave despite the prohibition would put the lie to that justification.  Employees are paid for unused vacation leave at the time they terminate County employment, and such payments constitute compensation for County service requiring approval by law.

It also is significant because, if any department heads were paid for unused leave accrued in violation of the policy, a misappropriation of County funds has taken place and a criminal investigation will be necessary.  When you consider that just one wrongful payout of unused vacation leave to a veteran County official is likely to cost the County tens of thousands of dollars you realize that we are not dealing with chump change.      

Even in Baltimore County it is a crime to put taxpayer’s money in the pocket of a County official not entitled to it.  I have included a more detailed explanation of the issue at the bottom of this post.

We won’t know the extent of the problem until an audit is done.  Remember, the Executive Benefit Policy was drafted and administered out of public view for decades.  In my experience, “exceptions” to such informal, secretive policies are like termites – if you find one, there are likely to be more.  What are the chances that in the 22 years since the accrual of unused vacation leave was banned there has been only one “exception” (i.e., violation) allowing a department to earn and accrue vacation leave?

It is patently obvious that some members of the County Council are afraid to dig too deeply into this matter.  They know that they share the responsibility for whatever is found because they abrogated their duty under the County Charter to regulate the compensation of all County employees by allowing important components of that compensation for high-ranking officials to be decided by the County Administrative Officer through the now-defunct Executive Benefit Policy.

The County Council has the power under the County Charter to pass a resolution directing the County Auditor to perform an audit.  Some people, including the County Executive and his allies on the County Council, apparently don’t want an audit done.  I was informed by a Council staffer that opposition to the audit follows party lines, with Democrats on the County Council reluctant to do anything that could embarrass Mr. Kamenetz, a Democrat who is entertaining the idea of running for governor next year.  Ms. Almond is a Democrat.  She can prove me wrong by introducing a resolution directing an audit.

Why am I suspicious about Ms. Almond’s motives?  This is why:

Councilwoman Almond’s bill would undo provisions of County Council Bill No. 30-10, a bill approved by members of a County Council that included Mr. Kamenetz.  She touted her bill to the Sun by pointing out how County Executive Kamenetz will benefit from the provisions that he helped to enact.  The following appeared in the Sun article:  

“Almond’s office has estimated that once Kamenetz finishes his second term as county executive next year, he will be eligible for a $48,000 annual pension from his 16 years on the County Council, a $70,000 annual pension from his eight years as county executive, and a lump-sum payout of at least $384,000 that represents his “banked” council pension while he was executive.”

Here is the thing about that:  Ms. Almond waited too long to do anything about the windfall for Mr. Kamenetz, and she must know that.  Her bill won’t do a thing to change the County Executive’s benefit, because it can’t.

Mr. Kamenetz is already legally vested in both pensions.  Under County law he vested in the second pension that he is earning as County Executive as soon as he finished his first term of office in December 2014.  You’re three years too late, Councilwoman Almond, and there’s no excuse.

The Executive Benefit Policy was successfully kept out of public view until I obtained it through a Public Information Act request.  The controversial provisions of Bill No. 30-10 at issue in Ms. Almond’s bill may have been snuck through by being added at the last minute to a large pension “reform” bill, but they certainly did not escape public notice. In fact, seldom has any measure in Baltimore County attracted as much negative attention in recent years, once people figured out what the County Council had done.

The Sun ran an editorial in 2011 urging its repeal, and followed that with another editorial in 2012 critical of Mr. Kamenetz that referred to the deal.  Former Baltimore County Attorney Virginia Barnhart wrote a scathing letter to the editor in 2011 questioning the legality of the “sweetheart pension deal” and calling on the new County Council – which included Ms. Almond – to repeal it.  I’ve also included a more detailed description of the controversial provisions of Bill No. 30-10 at the end of this post.

Where have you been, Councilwoman Almond?  If you had acted before December 2014 you would have been able to do something about the County Executive’s benefit, about which you can now only complain.

Ms. Almond expresses new-found concern about the “behind closed doors” way in which Baltimore County tends to operate, citing the Executive Benefit Policy as an example.  She doesn’t, however, deny knowledge of the policy, which has been in effect since long before she took office in 2010.  In fact, since at least 1997 there has been a parallel policy called the Legislative Benefits Policy for appointed employees of the legislative branch, also approved behind closed doors.

Ms. Almond also expresses concern about the legality of placing control over who can “double dip” under the provisions of Bill No. 30-10 in the hands of the County Administrative Officer – six years after a former Baltimore County Attorney brought the issue to her attention.  C’mon, Ms. Almond, we weren’t born yesterday, even though that is about when you apparently began paying attention to the way Baltimore County has been doing business for decades.

There’s a very old trick used by politicians at all levels of government when they feel the need to create the appearance of doing something about a problem, but don’t want to upset the apple cart by doing what is necessary to solve the problem.  In my opinion, that is what is going on here with the bill proposed by Ms. Almond.  It appears that Ms. Almond and other members of the County Council are willing to make noise, but then stop short of doing anything of substance that gets them on the wrong side of Mr. Kamenetz.  Again, I’d love to see them prove me wrong.

A lot of people deserve credit for pushing the Baltimore County Council to start moving in the right direction.  Alison Knezevich of the Sun deserves credit for getting the ball rolling by reporting on the “severance package” paid to former Police Chief Jim Johnson, as does Pam Wood for continuing to report on the issue.  I deserve credit only for having both time on my hands and a cynicism that moved me to obtain the Executive Benefit Policy and the Legislative Benefits Policy through Public Information Act requests.  It wasn’t the first time I’d come across policies of dubious legality and inconsistent application; they get easier to sniff out with experience.

The Sun editorial board gets its share of the credit, and a lot of credit goes to the Baltimore County Progressive Democrats Club, which sent a letter to the County Council and County Executive urging them to act on the severance pay issue.  And, of course, there is Lodge #4 of the Fraternal Order of Police (FOP), the union that represents rank-and-file members of the Baltimore County Police Department and has been treated rather roughly by Messrs. Homan and Kamenetz over the years.

The FOP was instrumental in bringing the sweetheart pension deal hidden in Bill No. 30-10 to the attention of the public in 2010, and it has filed its own Public Information Act requests in the current matter.  The County knew that the severance pay provisions of both the Executive Benefit Policy and the Legislative Benefits Policy had legal feet of clay, and in my opinion both were jettisoned under the threat of litigation and political embarrassment – not out of any random “good government” impulses.

The Baltimore County Council, on the other hand, deserves credit for nothing at all until it finishes its business with the Executive Benefit Policy by ordering an audit.  Until it does that there will be a cloud hanging over the head of Council members.

I’m convinced that, at least at this point, some members of the County Council are going to do everything they can to avoid an audit to protect both themselves and the County Executive from embarrassment. Ms. Almond’s bill is a useful distraction.  Another member of the Council told me that the Council needs a “few months” to talk about an audit. Why?  In the hope that the idea will just go away?  What’s there to talk about?

I am not accusing anyone of impropriety in this particular matter, but I will tell you what can happen when audits are delayed.  Evidence disappears and statutes of limitation run out.  Just get it done, Baltimore County Council – order an audit, an action which, under the circumstances, would be a no-brainer in every other charter county in this state.

________________

Here is a more detailed explanation of why I believe that an audit of the Executive Benefit Policy as it was administered until its date of termination is necessary.

Under criticism for approving a policy of which he was one of the beneficiaries, County Administrative Officer Fred Homan issued a revised Executive Benefit on July 21, 2017.  In addition to removing his own position from the scope of the policy he also added language removing any “appointed department head who accrues vacation leave, notwithstanding the change in policy provided for under the heading ‘Vacation, Personal and Compensatory Leave’ of this Executive Benefit Policy.”

Here’s the significance of that:  There isn’t supposed to be an appointed department head who accrues vacation leave.  It was the first time that any reference had been made in the policy to department heads accruing vacation leave “notwithstanding” the prohibition against doing so that had been in the policy for 22 years.

The “change in policy” described in the “Vacation, Personal and Compensatory” paragraph occurred in 1995 and ended the accrual of vacation leave by department heads as of the end of 1994.  The change made by Mr. Homan was a tacit admission that one or more department heads have continued to earn and accrue vacation leave despite the fact the policy expressly prohibits it, and has prohibited it since 1995.  It was a stunning revelation.

Why else would he add that language other than to acknowledge that the policy had been violated?  I am not suggesting that he was responsible for allowing any violations of the policy to occur but it does appear that he was aware of the problem – and maybe he wanted to get out ahead of it before it was discovered in some other manner.  We won’t know until an audit is done.  No one is talking at this point.

It’s bad enough if current department heads are accruing leave with the intent that they would be able to cash it out upon leaving County employment. If, however, any former department head received cash for leave earned after 1994, there is a very serious problem indeed, because then we are talking about the misappropriation of taxpayer money by whomever approved such a payout.  If that occurred, it would require that a criminal investigation follow the audit.

I prepared a lengthy analysis of the historical relationship in the Executive Benefit Policy between payouts for unused vacation leave and the eligibility for and amount of severance pay.  At one point in time, the two were directly related in the policy.  A link to my memo appears below.  The discontinuance of the accrual of unused vacation leave in 1995 has been used as one justification for awarding department heads severance pay when they leave County government.

Less than a week after Mr. Homan revised the policy, Mr. Kamenetz scrapped it entirely.  I suspect that Mr. Kamenetz recognized the implications of Mr. Homan’s admission that one or more department heads are accruing vacation leave, and that Mr. Kamenetz wants this whole thing to go away.  It won’t.                                                                                    ___________________

The following is more detail on the provisions of Bill No. 30-10 referred to by the Sun (and many others) as a “sweetheart pension deal.”

In May 2010, the Baltimore County Council approved Bill No. 30-10.  An amendment added at the final hearing allows employees of the County who have retired from County service to return to service and, if approved by the County Administrative Officer, continue to receive the pension benefits from their initial retirements while collecting the salaries for their new positions.

Pension payments from the first retirement are not paid to an employee during his or her second period of employment with the County but are “banked” in a “deferral account” where, if treated in the manner as the County’s Deferred Retirement Option Plan (DROP), they earn interest at the rate of 5%.  Upon the employee’s second retirement from the County the money in the deferral account is paid to the employee in a lump sun.

But that is not the end of it.  What distinguishes this benefit from the typical DROP benefit (and DROP programs generally are limited in most jurisdictions to uniformed public safety employees, and are not available to other employees) is that the employee is eligible to earn a second pension based on the employee’s service in his or her new position, and therefore receive two pensions upon final retirement from County service.  In other words, the employee receives a lump sum payout from the deferral account, payments from his or her first pension resume, and the employee also receives a second pension based on his or her second period of service with the County.

The provision is a red-headed Eskimo, among other things.  It is limited to employees hired before July 1, 2007, and to employees who return to positions other than the positions from which they retired; in other words, it was ideally suited for sitting members of the County Council in 2010 who might end up in positions in the Executive Branch during the next administration.  Indeed, four of the Council members who voted for the sweetheart deal in 2010 stood to benefit from it: Kevin Kamenetz, elected County Executive later that year; Sam Moxley, a legislative aide to Kamenetz; Vince Gardina, now the county’s top environmental official; and Johnny Olszewski Sr., who worked for the county recreation department after leaving the council.

Councilwoman Almond estimates that when Mr. Kamenetz finishes his second term as County Executive next year, he will be eligible for a $48,000 annual pension from his 16 years on the County Council, a $70,000 annual pension from his eight years as County Executive and a lump-sum payout of at least $384,000 that represents the amount of his Council pension that was “banked” in a deferral account while he was County Executive.  Although a lump-sum payout of $384,000 and an annual pension of $118,000 pales by comparison to the pensions to which County Administrative Officer Fred Homan and other high-ranking officials of the Kamenetz administration will be entitled, it is not a bad return for 24 years of work, 16 of which were part-time.

August 2, 2017

Severance pay review 7 24 17

I wrote an open letter to Baltimore City Council Bernard C. “Jack” Young and sent it today to all members of the Baltimore City Council.  My letter was in response to the letter sent by Council President Young to the editor of the Baltimore Sun criticizing Lt. Gene Ryan, president of Lodge No. 3 of the Fraternal Order of Police (FOP).  [“Union deserves some blame for crime spike,” The Baltimore Sun, June 28, 2017.]

Council President Young’s letter criticized Lt. Ryan for, among other things, not being sufficiently accommodating to the city’s desire to abandon the four day a week (4×10) shift schedule instituted by the Baltimore Police Department (BPD) in January of 2015.  The change to the 4×10 was the brainchild of former Police Commissioner Anthony Batts and at the city’s request it was mandated in the collective bargaining agreements negotiated with the FOP in 2014.

Suffice it to say that 4×10 scheduling has not worked out as intended and the city now wants it out of the collective bargaining agreements.  Although the public is not privy to the ongoing negotiations between the city and FOP it appears that the union is holding out to get something from the city in return for agreeing to the change back to the five day a week (5×8) schedules  – no big surprise there.  It is what unions do.

My problem is this:  It is easy for Council President Young to bash Lt. Ryan but the fact remains that the city council (and its president) bear a good share of the blame for the fact that city is in the position of bargaining over issues having to do with the management of the BPD that should not be the subject of collective bargaining.  It is an issue that I have been pressing for over two years, and by now I have concluded that the members of the city council, whatever their rhetoric may be, are loath to take on the FOP over control of the BPD.

My letter to Council President Young points out two instances in which the council has failed to assert itself when it could have done so regarding the FOP and the BPD.  Here is the link to the letter:  Ltr Jack Young 6 29 17

June 29, 2017

The Baltimore Sun continues to do its part in calling city officials to action.  It is hardly alone in that regard.  My question today is directed to the mayor:  Are you listening, Your Honor?

As I noted in a post to my blog a couple of days ago the Sun has demonstrated its concern about the lack of both direction and a sense of urgency in dealing with the epidemic of murder and other violent crime that has gripped Baltimore for the past two years by publishing a series of opinion pieces and commentary on the subject, including my own.  Today the Sun published two thoughtful letters, one from Mr. Jack Boyson pointing out the role that community associations could play as part of an overall strategy for reducing crime.

The other was from Dr. Stuart Varon, stating that Baltimore needs an anti-violence summit.  It is an idea that I put forth in an op ed in January and which needed repeating.  As Dr. Varon points out, summits can have synergistic effects; heaven knows, the energy must come from somewhere to induce the city to get its act together and put together a viable plan for reducing the violence.

I received a short note from someone who has done his best to get the word out about the need for the city to revisit whatever blueprint it is working from to tamp down the violence, and to do so soon.  His message was “keep the pressure on.”  People like Mr. Boyson and Dr. Varon are doing what they can to keep the pressure on, and are doing so in a positive and constructive manner.  I am going to change that tone a bit with the following comment:

Mayor Pugh, you are drifting toward a crisis in confidence; the storm clouds are gathering.  Influential members of the city council – and many others – clearly are impatient with your approach to managing the crisis of violent crime in the city.  Your inability to find a suitable head for the city’s Office of Criminal Justice six months into your administration and over two years into an unprecedented wave of violent crime has become representative of your struggles.

I criticized Police Commissioner Kevin Davis for not articulating his strategy for combating the violence as stress fractures within the Baltimore Police Department (BPD) continue to expand.  It is your office, however, that is responsible for the overall approach of which the law enforcement component is only a part, and it is an overall strategy for which there is the most pressing need.

You pride yourself on your collegiality and ability to get people to collaborate on solutions on to problems.  Sometimes, particularly in crises, leaders also must get out in front and initiate measures around which their followers can coalesce.  You’re not doing so hot on that part of your job.

I suggest that you embrace the city council’s proposal that the city develop a “comprehensive gun violence reduction strategy” and kick off the process for developing the strategy with a well-organized summit.  Invite experts, and invite the governor.  Baltimore needs to see you step up and take charge of coming up with solutions, and soon.

June 25, 2017

I don’t use the description “Trump-like” lightly, but there is a certain alternative universe/Alice in Wonderland quality to the “we have a strategy – no we don’t” debate going on in Baltimore.  Lt. Gene Ryan, president of the union representing rank-and-file officers of the Baltimore Police Department (BPD), has been increasingly critical of BPD management, claiming that it lacks a strategy to reduce the rate of murder and other violent crime in the city.

Police Commissioner Kevin Davis states that the accusation by Lt. Ryan is not true, and that the department does have a strategy.  Mr. Commissioner, if that is so then you need to take the time to explain to everyone exactly what that strategy is.  If you can explain it, we can understand it – enough with the suspense, for heaven’s sake.  Outline in writing the steps you are taking to reduce violence, release it to the media, and then hold a press conference to answer questions.

Lt. Ryan escalated the war of words on Wednesday by announcing that his union, the FOP, would be meeting directly with community members, business leaders and elected officials to discuss solutions to city’s current “crime crisis” because the city government itself has no long-range plan.  It was an obvious attempt to embarrass the commissioner into taking action- or maybe just to embarrass the commissioner, period.  Commissioner Davis reacted testily, accusing Lt. Ryan of “willful ignorance” of the city’s plan.

Lt. Ryan may have been emboldened to step up his criticism of the commissioner by a growing chorus of voices raising similar concerns.  The editors of The Baltimore Sun underscored their interest by publishing three separate opinion pieces on the subject within the span of several days.

On Sunday, the Baltimore Sun published my op ed criticizing the failure by city agencies to adopt a strategic violence-reduction plan and endorsing the proposal by Councilman Brandon Scott to develop one.  I stated that the failure of the city to have programs with proven track records of success such as Operation Ceasefire and Safe Streets Baltimore in tamping down murder rates up and running two years into an epidemic of violent crime was a direct result of the absence of a credible strategic plan.

On Wednesday, the Sun editorial board rendered its own opinion on the subject, stating that Baltimore needed a “sustainable plan” beyond just canceling leave, requiring officers to work 12-hour shifts and putting as many officers on the streets as possible:

“People like the idea of police getting out of their cars, walking the beat and interacting with the community. We need that. But we need specialized units, too. We need homicide detectives investigating cases and building the evidence necessary to arrest the relative few who are responsible for most of Baltimore’s violence, and we need the state’s attorney’s office to win convictions that carry hefty sentences. We need internal affairs officers rooting out corruption in the ranks. We need narcotics squads disrupting major drug rings. And we need officers to work in sustained, hand-in-glove partnerships with federal and state agencies to engage in close supervision of those known to be at risk of perpetrating violence or becoming victims of it.”

In the same edition, the Sun published an op ed by former State’s Attorney Gregg Bernstein in which he decried the failure by city officials “to display any sense of urgency during the first six months of 2017 as the murder rate has skyrocketed, most recently highlighted by the killing of five people in a single night.”  Mr. Bernstein described a long list of measures that he believed needed to be adopted, noting that an effective strategy “is not about sweeping corners and locking everyone up; instead, it requires a focused approach against the relatively few violent repeat offenders who are causing the violence.”  He concluded:

“In the short-run, a focused, strategic, and aggressive approach against those who are driving violence needs to be adopted, not at the exclusion of the long-term initiatives, but in conjunction with them.”

Mr. Bernstein’s op ed echoed comments made by Rod Rosenstein, the former U.S. Attorney for the District of Maryland who is now the Deputy U.S. Attorney General.  Mr. Rosenstein arguably was the most successful crime fighter in Baltimore during his twelve years as U.S. Attorney.  During an interview with WBAL-TV in April Mr. Rosenstein observed:

“When we had a unified effort by local, state and federal law enforcement to focus on violent crime in Baltimore, we drove down violent crime in Baltimore.  We did it from 2007 to 2014, and we believe we can do it again. The current strategy needs to be revised, because we’re not achieving the mission. The mission is keep the streets safe, and the streets aren’t safe, we need to change to deal with it . . . We need to be more aggressive, more pro-active with law enforcement, because our responsibility is to protect the law-abiding citizens.”

The theme of a lack of urgency among city officials is a recurring one.  In January, the Sun editorial board admonished city officials to start acting like the city is in the middle of a homicide crisis – because it is.  A few weeks later the paper ran my op ed suggesting that city and state leaders hold a summit on the epidemic of violent crime as a way of imparting a sense of urgency and beginning the process of putting together an effective plan.

The debate within the BPD is of course not about whether there is a plan; it is about whether the current plan is adequate.  To date Lt. Ryan has not criticized Commissioner Davis by name, and “we need a plan” is perhaps less harsh than saying “the commissioner’s current plan stinks.”  Lt. Ryan knows that a line would be crossed if it sounds like he is accusing the commissioner of not being up to the job, although he is getting close.  Let’s hope that we have an acceptable plan on the table before that line is crossed.  This is not the time for open warfare between the FOP and the commissioner.

Councilman Brandon Scott summed up the feelings of a growing number of observers from both within and without the BPD and city government: “We have to make changes to the strategy that’s happening today because it’s not working.”  The commissioner needs to recognize that he is losing the confidence of people whose support that he needs, and then do something about it.  One gets the sense that Commissioner Davis believes that if he retains the support of the mayor and governor, he’ll be fine.  If that is what he believes, it is a mistake.

So, Commissioner Davis, start by laying out your strategy and tell us why you think it is the path to reducing the rate of murder and other violent crime.  Let people ask questions and try to help them understand your strategy; like it or not, you are going to have to persuade people that your plan will work.  Right now, they are not so sure that you even have a plan.  If you do have one, don’t keep it a secret.

June 23, 2017

A lot of what goes on in the City of Baltimore government has an ad hoc, ill-considered feel to it, and adoption of the city budget for FY 2018 was no exception.  Rather than work within the restraints of the “executive budget system” mandated by the city charter, the city council worked around the legal limitations on its power by what politely could be referred to as hostage-taking and extortion.  Heaven forbid that council members should try to gain voter approval of a charter amendment allowing them to do what they want to do – that would involve the risk that the voters might tell them “No.”

Baltimore city leaders announced last week that they had agreed on a budget after weeks of acrimonious disagreement between members of the City Council and Mayor Catherine Pugh.  The compromise appears reasonable, at least on its face, with $7.58 million in spending shifted in the budget for the coming year, with most of it going to Baltimore’s public schools.  That does nothing to change my reservations about the nonsense that went on this year and last and I do not believe that it necessarily bodes well for the future.

The budget process always involves some contentiousness but in the last two years in Baltimore that contentiousness has risen to the level of open revolt by members of the City Council against the mayor.  Last year Council President Jack Young threatened to shut down the government if former Mayor Stephanie Rawlings-Blake did not add funding for services to children and youth that he deemed important.

This year the council held programs and projects near and dear to the mayor hostage, threatening to defund the programs and projects unless the mayor amended the budget to fund the Safe Streets program and other programs and projects intended to benefit children and youth that council members wanted funded.  Andrew Kleine, the city’s budget director, became a lightning rod for the council’s unhappiness and the council communicated its displeasure at him by voting to defund the entire Bureau of the Budget and Management Research that he supervises.

Although it was never likely that the council would leave funding for the budget office out of the budget as finally approved, Mr. Young believed that voting to defund the mayor’s budget office was necessary to prove to the mayor that the council was not “playing.”

The Baltimore Sun editorial board heaped praise on the council for its asserting itself.  That is fine except for the fact that in the process of doing so the council revolted not only against the mayor’s proposed budget but also against the so-called “executive budget system” established by the city charter. The city charter is the “constitution” of the city approved by its voters.  Members of the council obviously didn’t like the legal budgetary framework approved by the voters so they have found a way to work around it.  Basically, they said to hell with the law.

Under the city’s executive budget system, the council may reduce but not increase the amount of the expenditure proposed by the mayor for a program or project.  Consequently, even if the council reduces the expenditure proposed for one program or project it may not use the savings to increase the expenditure for another program or project unless the mayor agrees to amend the budget to do so.

The city’s executive budget system is modeled on the state’s executive budget system, which was adopted in the early part of the 20^th century in response to a fiscal crisis.  Of the eleven charter home-rule counties in the state, seven (Anne Arundel, Baltimore, Cecil, Frederick, Harford, Howard and Wicomico) have charters that establish executive budget systems similar to the city’s.

Three of the remaining charter counties (Dorchester, Prince George’s and Dorchester) have charters that allow their county council to increase the amount of an expenditure proposed by the county executive for a program or project but not add new programs or projects.  The Montgomery County charter allows the county council to add programs or projects to the budget but gives the county executive line item veto authority over the budget as approved by the council.

According to the mayor’s statement part of the deal with the council is that more money will be allotted to the Baltimore City Public School System.  State enabling law in the Education Article provides that the city council would have the power to restore cuts made by the mayor to the budget submitted by the school system upon adoption of a charter amendment by the city implementing the power.  The city has never adopted such an amendment.

In other words, there is a right way for the city council to do what it seems to want to do, and that is to ask the voters of the city to approve an amendment to the city charter giving them the power to add expenditures to the budget that county councils in some counties have, and the power to restore any cuts made by the mayor to the school budget.  I hasten to add that I am not suggesting that a change to the city’s current executive system is prudent – I think a lot more thought should go into giving the city council any more control of the budget.

The city council did gain the approval of the voters in 2016 to an amendment to the executive budget system that requires setting aside a fixed percentage of the city’s revenue each year for the so-called Children and Youth Fund.  Ironically, in a post criticizing the idea I suggested that, as an alternative, the charter be amended to allow the council to move money between items of expenditure if the concern was that mayors were not giving sufficient priority to funding programs and services for children and youth.

Dedicating (or “earmarking”) by law a fixed percentage of revenues for expenditure for only certain purposes violates every principle of modern municipal budgeting, not the least of which is the need to retain the flexibility to adjust to crises and changes in circumstances.  Also, rating agencies and lenders get nervous if there are legal impediments that prevent revenues from being used to pay the principal and interest on city bonds and that nervousness can translate to higher interest rates charged to the city.

I saw and still see modifying the executive budget system to allow the council to move money around as less destructive to the city’s financial well-being than hard-wiring expenditure levels into the city charter.  Time will tell if the Children and Youth Fund turns out to be anything other than a massive boondoggle; rather than allocate the money in the fund through the city budget Council President Jack Young is determined to use the fund for a separate grant-making operation over which I am sure he will exercise considerable control. We’ll see how well that turns out.

A strict executive budget system does tend to tamp down expenditures.  The old saw about a camel being a horse designed by a committee applies to a budget put together by 15 members of the city council.  Gaining consensus from such a large group usually involves spending a little more money here and there; each member has his or her own idea on how to best spend the available money and that is particularly true because each member, except the president, represents a separate district.

Although I have no idea whether the criticism of Mr. Kleine by certain members of the council was fair, I do pity him a bit.  The chief budget officer in any municipal government tends to be a little stingy and that is because he or she is charged with keeping one eye on the creditworthiness of the city or county.  If bond ratings slip because of concern over how the city manages its finances borrowing can get a lot more expensive.

I am sure that Mr. Kleine was trying not to use any more of the anticipated surplus from FY 2017 than necessary as a hedge against a shortfall in the FY 2018 budget.  For one thing, the police department is nowhere near getting its overtime situation under control.  There also is a pension lawsuit that could cost the city considerable money, and the DOJ consent decree is a fiscal wild card.  The city could very well face a pinch in the fourth quarter of FY 2018 that would only get worse if revenue estimates prove over-optimistic.

In any event, Mr. Kleine got no thanks for his efforts at fiscal prudence and the comment by Mayor Pugh that “the budget process next year will be very different” came across as a rebuke directed at him.  Given that it is the mayor who makes the policy decisions on the budget her remark was not exactly a reassuring sign of leadership.

It has been a dreary two years for the city. I wish I could muster a little more optimism, but this year’s budget circus could be a sign of even more fractious times to come.

June 11, 2017