Is President Trump mentally fit to lead the country through this national emergency?

Update: The post that appears below was published on March 23rd. Since then it has been viewed many times. In the meantime, things on the “ground” have gotten worse – both in terms of the impact of the pandemic and in terms of President Trump’s behavior. I decided to add an update in the event more people view the post in the future.

Two days after I posted my comments, an article written by Dr. Bandy X. Lee was published in The Independent. Lee is the Yale psychiatrist who edited “The Dangerous Case of Donald Trump” referenced in my original post. Her article updates her own concerns in light of the COVID-19 coronavirus pandemic, urging that Trump be removed for the safety of the American people.

Lee and her co-authors hardly are the only mental health professionals who have described Trump as having narcissistic personality disorder. Despite the so-called Goldwater Rule, many psychiatrists and psychologists have stepped forward to offer their diagnoses, undoubtedly for the same reason that Lee and her colleagues did: Fear of the consequences if Trump is not removed from office.

A noted exception was Dr. Allen Frances, a prominent psychiatrist who in 2017 opined that Trump did not have narcissistic personality disorder, although he did not downplay the threat posed by Trump’s conduct. In any case, I would invite Frances to revisit his findings in light of what we have observed in the past three years.

I wonder why more mental health professionals have not stepped forward recently to sound the alarm. Have they become like many of the rest of us, inured to the fact that we have a severely disordered individual running the country at a time of national emergency? Are they becoming a bit fatalistic? If so, it’s easy to understand why.

Trump is becoming more inappropriate, and his judgment is worsening.

On March 27th, Trump said something especially stunning, even by his standards:

“You can call it a germ, you can call it a flu, you can call it a virus, you know you can call it many different names. I’m not sure anybody even knows what it is.”

This was more than ignorance; this was the megalomaniacal dismissal of scientific and medical expertise going on inside Trump’s troubled head. Translation: “Why should I listen to Dr. Fauci, et al? They don’t really know what they’re doing. I’ll figure this out before they do.”

As an aside, Trump made the above comment shortly after Dr. Deborah Birx said this about him:

“He’s been so attentive to the scientific literature and the details and the data. And I think his — his ability to analyze and integrate data that comes out of his long history in business has really been a real benefit during these discussions about medical issues.”

Bullshit, Dr. Birx. Does that sound like he gives a rat’s ass about the scientific literature? He isn’t listening to a word you say other than to assess how your advice might conflict with what he believes to be in his own narrowly defined interests. That’s what malignant narcissists do.

Because his boasting and lies will ring more and more hollow as the crisis worsens, he will have to resort to more extreme measures to protect his fragile ego. That means his words and actions are likely to become more inappropriate, even bizarre.

For example, his unconscionable threat to withhold medical supplies from Michigan unless Governor Gretchen Whitmer showed more “appreciation” for his largesse illustrated how desperate he is becoming for social validation in the face of growing public criticism over his handling of the pandemic. He fabricated a conflict with General Motors out of whole cloth for the same reason.

Weaponizing the Defense Production Act, Trump claimed that he used it to bring GM to heel over the price GM wanted to charge for ventilators. He criticized GM for not moving quickly enough. As it turns out, GM already was working with Ventec, a major ventilator manufacturer, to produce the ventilators and sell them at cost, retooling GM’s facilities as rapidly as possible to begin production. Trump flat out lied.

Trump lies for many reasons, and this one about GM was for a familiar purpose: To generate a conflict (even a faux one) in which there was a loser and a winner, and he was the winner. Trump craves “winning” like an opioid addict craves opioids. The lengths to which he will go to validate himself as should frighten all of us.

And oh, by the way, do you believe that it was a coincidence that the governor of Michigan and the CEO of GM both are women? As he grows more frantic, he will be less inclined or able to hide his well-documented misogyny.

Today’s threat by Trump to quarantine New York and possibly parts of New Jersey and Connecticut follows another one of his patterns: He sows the seeds of division by inventing enemies or selecting scapegoats. Doing so not only is useful for deflecting blame (“the Chinese virus”), it also enables to him to take on the mantle of savior, asserting that “only he” is willing to do what it takes to save us from the forces that threaten us.

It was a tactic that worked remarkably well for him in the 2016 election, using immigrants as the “threat.” Now he is going to turn the tactic on citizens from “blue” states in the Northeast, even to the extent of blaming them for the spread of the pandemic in the “red” state of Florida.

He hasn’t suggested building a wall, but don’t be surprised by anything that he says or does to turn the pandemic response into a political war between “his” side and everyone else. His political base certainly got the message from his quarantine threat, and I fully expect citizen militia groups shortly will be volunteering to patrol the borders between red states and blue states.

The mainstream media are dithering on this issue.    

Why aren’t editorial boards in major United States newspapers weighing in the president’s precarious mental state, which is becoming obvious even to laypersons? Why are no reporters from the Washington Post or the New York Times seeking out psychiatrists like Dr. Lee or psychologists like Dr. John Gartner, formerly of Johns Hopkins University, who has talked about Trump’s increasing mental instability?

As I stated in my original post, there may a reluctance to broach such an explosive topic as the president’s fitness for office in the middle of an emergency – people are scared and confused enough. When I re-read my post, I recognized my own trepidation. I concluded that invoking the 25th Amendment to remove Trump was too drastic a step; it is a process that would not happen quickly.

The thought of the country mired in a political crisis at the same time that it is mired in a public health emergency is almost unfathomable. Nevertheless, the president’s judgment seems to be increasingly impaired, and the use of the 25th Amendment should not be ruled out.

 

 

 

We can hope and pray that Trump’s mental state does not continue to deteriorate. I am just not sure that hoping and praying will be enough.

March 28, 2020

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You don’t have to be Dr. Anthony Fauci to realize that the United States is in the middle of a public health emergency. And I don’t believe that you need to be a board-certified psychiatrist to recognize that we may have a psychiatric crisis on our hands as well. One involving President Donald Trump.

My training in psychopathology and experience as a psychiatric social worker are far in the past. But even I recognize that the president’s megalomania is getting worse. As his megalomania gets worse his judgment becomes more impaired.

A president with impaired judgment is absolutely the last thing that we need during a pandemic when his decisions can make the difference between life and death for many thousands of people. Some type of intervention is needed before Trump’s impaired judgment makes the death toll of the COVID-19 pandemic higher than it otherwise would be.

In 2017, 27 psychiatrists and psychologists co-authored a book in which they concluded that Trump suffered from narcissistic personality disorder. (“The Dangerous Case of Donald Trump,” edited by Bandy Lee, MD.) They warned “that anyone as mentally unstable as Mr. Trump simply should not be entrusted with the life-and-death powers of the presidency.” The book was revised in 2019, adding ten co-authors and the observation that Trump had become more erratic and dangerous during the intervening years as pressures on him mounted.

Megalomania as a feature of narcissistic personality disorder refers to an exaggerated sense of knowledge, importance, and power. It is pathological when it causes significant problems in personal or professional judgment. With Trump it now appears to have reached delusional magnitude.

His defense of his “confidence” that a cocktail of the drugs hydroxychloroquine and azithromycin would prove to be a successful treatment for the COVID-19 coronavirus set alarm bells ringing.  Reacting to push back from Fauci and others because of the unproven efficacy of the drugs, Trump predicted at a March 20th news conference that “People may be surprised by the way [the drugs] would be a game-changer.” He added that “I feel good about it. That’s all it is — just a feeling. [I’m a] smart guy.”

That was the tell. He feels good about it, and the hell with what world-renowned experts say about basing conclusions on a limited, preliminary study: He’s a smart guy and knows things that they do not.  His willingness to make such a reckless statement is a sign of just how impaired his judgment has become, posing a real threat to substantive decisions.

Make no mistake about it, he believes what he said. It was not ordinary arrogance or simple ignorance, nor even intentional misrepresentation. Trump is convinced that he is intellectually superior, and that his thoughts and ideas have special status.

It would be one thing if it was just an ill-advised attempt to create a ray of hope, but it was not. Trump no longer can tell the difference between wishful thinking that goes on inside his head and reality.

Part of megalomania is an insatiable need for social validation. As described in a recent Washingon Post article, Trump “craves a constant diet of flattery,” which officials serve up during his televised news conferences on the pandemic.

As the crisis deepens and hospitals are overwhelmed, people will become scared and angry, and many of Trump’s allies will turn on him. There is no predicting how erratic Trump could become if praise gives way to general condemnation and the defenses that protect his fragile ego begin to collapse.

Almost as an aside, I note that Trump’s grandiosity is not the only facet of his narcissistic personality disorder impairing his judgment. His complete lack of empathy and his extreme egocentricity – his inability to see beyond his own narrow interests when evaluating any situation – are dramatically affecting his decision-making.

Invoking the 25th Amendment to remove the president during a quickly evolving national emergency would be a bad idea even if Vice President Mike Pence and members of the president’s cabinet had the fortitude to use it. But some intervention short of that may be possible by using his narcissism against him, if you will.

Perhaps he can be persuaded that he will be politically and personally destroyed if he continues to be the public face of the federal response, and that he should step back. Once out of the limelight, he will have less inclination or opportunity to demonstrate his own omnipotence by flouting expert advice.

Such intervention includes confronting the president with the fact that his statements and actions are doing harm. The task faced by Barry Goldwater, Hugh Scott, and John Rhodes in convincing Richard Nixon to resign pales in comparison.

Am I optimistic that such an intervention will be attempted and, if attempted, that it would succeed? No, because I’m not the one who is delusional.

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This commentary originally was submitted to the Washington Post as an op-ed, but not accepted for publication. Conceding that this topic might better be addressed by someone with more relevant and current credentials – as well as the fact that the Post always has many op-eds from which to select, and this one simply may not have made the cut – I nevertheless wonder if there was a reticence to broach an unnerving subject like this at the height of a national emergency. I believe that would be a mistake.

Although I would respect that point of view, I believe that many lives depend on our recognition that Donald Trump is unfit to lead us through this crisis. Rachel Maddow of MSNBC is leading the charge to stop live coverage of Trump’s news conferences as a way of minimizing his ability to do harm by propagating lies and other misinformation. She’s absolutely correct. A majority of the nation’s governors seem to recognize that it is going to up to them to save the people of their states because the federal government is being paralyzed by Trump’s psychopathology and impaired decision-making.

In my opinion, ignoring the truth may make matters even worse. The public needs to be made aware that they need to look to someone other than the president for guidance and support, scary as that may be.

March 23, 2020

Get ready for the performance of your life, Bernie.

After taking his most recent drubbing in the Democratic primaries this week, presidential candidate Bernie Sanders announced that he will be “reassessing” his campaign in the days and weeks ahead. I’d like to offer my assistance with that reassessment.  The executive summary: Get ready to deliver the performance of your life, Bernie.

A lot rides on the performance, including Sanders’ legacy. It will determine whether history remembers him as a Don Quixote – or as an unforgivable villain.

First of all, full disclosure. I don’t like Senator Sanders. As far as I am concerned, he is and always has been a rather unpleasant, self-centered, and self-righteous jerk. A loner by nature, his status as a registered independent in Congress is the perfect cover for him as he snipes at both Democrats and Republicans. He seldom is at the center of debates over important issues, and even less frequently accomplishes anything worthwhile.

He describes himself as a democratic socialist and has worked tirelessly to build a movement of people at the left end of the political spectrum, including those who occupy the “progressive” wing of the Democratic Party. The problem is that he has used a considerable level of demagoguery, based mainly on class-warfare rhetoric, to appeal to the passions of his supporters.

The result of that demagoguery over the years has been to attract a zealous core of followers, mainly young, white males – the Bernie Bros. It is no surprise that a man who seems perpetually angry and aggrieved, and is always yelling and pointing his finger, cultivated a group of angry, nasty loyalists who see themselves as aggrieved by society – and by anyone who does not agree with them. Many of them are threatening to refuse to vote for the Democratic nominee if it is not Bernie. It is a threat that has to be taken seriously.

Bernie, here is the task ahead of you in a nutshell: To withdraw from the race in a manner that does not end up making you the second most despised man in the United States behind Donald Trump. Because if you screw this up and somehow help get Trump re-elected, that is what you will be.

This is what you must do: Announce that you are ending your campaign because the voters have decided that Joe Biden is the best person to unseat Donald Trump, that you accept their judgment, and that from now on working and voting to unseat Donald Trump is the most important thing that progressives can do not only for themselves, but for their country.

Tell your supporters that electing Joe Biden keeps progressive dreams alive, and that Donald Trump wants to kill those dreams; that Joe Biden will work with progressives to reduce the wealth and income inequality in this country, but that Donald Trump couldn’t care less about wealth and income inequality and will ignore progressives.  In fact, point out to them that Trump likes the wealth and income disparity just like as it is.

The primary policy goal of your movement is universal health care. That goal is toast under Trump, as he has made clear by trying to dismantle the Affordable Care Act. But it is a goal shared by Biden and most Democrats. President Clinton tried and failed to implement universal health care, President Obama had to accept an imperfect compromise, but we’ll get there if we can oust Trump from office and gain control of Congress.

As an unrepentant know-it-all, you believe that Medicare for All is the only viable option. Tell your supporters that, while that remains the ultimate goal, compromises will have to be accepted along the way, and that’s fine, because that is how politics work in the real world – i.e., in the world outside your head.

And your delivery is as important as your message. There can be no hint of rancor. No mention of “the Democratic establishment” or other code words to inflame your base. Be gracious to Biden. Try to sound optimistic, and enthusiastic about returning the White House to Democratic control. And then work like hell over the next eight months to deprogram your supporters from the Bernie or bust mentality that you helped instill by your maddening my-way-or-the-highway attitude.

In other words, make clear by both your words and deeds that sitting out the election in November rather than voting for Biden is disloyal and destructive to the progressive movement that you helped to inspire. 

Can you do any of the above? I have my doubts. But here are the stakes: If Trump wins in November and his victory can be tied to the failure of your supporters to turn out and vote for Biden, you will be the second most despised man in America, after Donald Trump. You will live the rest of your life as a pariah. Your followers will move on to someone else, remembering you as little more than a false prophet. People will stand in line to piss on your grave.

Your situation reminds of a Western I remember seeing decades ago. It may have been an episode of “The Rifleman” or “Gunsmoke.”

A hardened criminal was about to be hung for his crimes. He lacked remorse, laughed in the face of death, and was prepared to die with the defiance and bravado with which he had lived.

He had a young son who, despite the man’s crimes, idolized him. Lucas or Matt (or whoever it was) told the man that if he died a hero to his son, his son well may follow in his footsteps and live a life of crime. As the condemned man stood on the gallows, he glanced toward Lucas and then began whimpering and begging for his life, dying like a coward for the sake of his son.

Putting aside the schmaltz (and the dubious child psychology), that condemned man did what you must do, Bernie. You need to give the greatest performance of your life for the sake of your supporters, the rest of us, and your own legacy. This is your Last Hurrah, Bernie. You want to be remembered for your nobility at the end, not for the pique and pettiness that you too often exhibit.

I honestly wish you the best of luck, Bernie. Trust me, the internet is waiting to review your performance. It better be damn good.

We need another work horse, not a show pony, to replace Elijah Cummings

The Democratic primary for the special election to fill the vacancy in Maryland’s 7th Congressional District created by the death of Elijah Cummings will be held on February 4th. I want to explain why I will be voting for former congressman Kweisi Mfume, who held the seat from 1987 to 1996, when he resigned to become the president of the NAACP.

First of all, I believe that Mr. Mfume is by far the most qualified candidate, with a solid record of accomplishment both in and out of Congress. Secondly, he is a work horse, not a show pony. And I am very tired of political show ponies.

Show ponies do whatever it takes to make themselves the center of attention. The customary modus operandi is to generate as much controversy and melodrama as possible through provocative statements and personal attacks. They are more interested in television airtime and Twitter followers than legislative progress; as far as their audiences are concerned, the more provocative the better. They like to portray themselves as “fighters,” although what they are fighting for is the limelight, not concrete results.

Show ponies focus on burnishing their public images, not on establishing relationships and credibility with colleagues. That is why show ponies get little if anything done in Congress, a body that moves forward only through compromise and consensus-building. Show ponies use people; they don’t work with people. Consequently, they marginalize themselves in Congress and become irrelevant except in the alternate universe that is social media.

The stature achieved by Mr. Mfume while he was in Congress was illustrated by the words of former president Bill Clinton upon Mr. Mfume’s resignation to become president of the NAACP:

“When Kweisi called me to tell me he was going to take this job, in the words of an old country song, I didn’t know whether to kill myself or go bowling. I had become almost emotionally dependent upon him being in the Congress – supporting me when I needed it, reprimanding me when I needed it, whether I knew it or not.

He is a uniquely gifted man, with a personal history that shimmers with the promise of America and the possibility of personal renewal and the virtue of never giving up on yourself or your family or your common possibility.”

One of the finest tributes to Mr. Mfume was the reaction to his candidacy to succeed Mr. Cummings by two former colleagues in Congress from Maryland, Bob Ehrlich and Wayne Gilchrest. Both are Republicans who didn’t often agree with Mr. Mfume on the issues but considered him a friend.

Mr. Ehrlich stated that Mr. Mfume’s decision to run was “very, very good news for Baltimore and Maryland and for politics generally,” hailing him as a “throwback to a different era” when legislators were “willing to work across the aisle.”

Mr. Gilchrest went so far as to describe Mr. Mfume not only as a good friend but as a mentor. “Like [Mr. Cummings], he’s a tower of strength and integrity,” Gilchrest added.

And, also like Mr. Cummings, Mr. Mfume is a work horse, not a show pony. There already are too many show ponies in Congress on both sides of the aisle. Baltimore can ill afford a representative in Congress who gets little done other than garner publicity.

I was proud to have Mr. Cummings as my congressman. I look forward to Mr. Mfume continuing the legacy of having the very best people Maryland has to offer represent the 7th Congressional District. People willing to do the hard, unglamorous work necessary to get things done. Work horses, not show ponies.

An investment or a gamble?

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

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

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

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

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

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

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

Competition from legalized sports betting

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

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

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

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

Public concern over the mistreatment of racehorses

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

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

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

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

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

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

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

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

Stop and think

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

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

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

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

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

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

Maryland public records board needs more teeth

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

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

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

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

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

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

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

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

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

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

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

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

[Published as an op ed by the Baltimore Sun on November 13, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Scrutiny Required for County Attorney Nominee

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

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

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

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

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

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

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

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

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

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

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

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

To Mr. Benjamin:

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

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

To Mr. Olszewski:

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

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

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

Fresh evidence of a Baltimore County sewer cover-up demands attention

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

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

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

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

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

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

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

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

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

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

Systemic Problems

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

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

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

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

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

“Sham” Services Map

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

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

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

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

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

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

“Towson’s Time”

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

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

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

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

Prying Free a Report

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

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

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

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

Stonewalling the State

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

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

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

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

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

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

That’s something we may never know.

A Pattern of Shortcuts

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

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

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

County’s Response So Far

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

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

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

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

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

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

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

Unanswered Questions

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

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

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

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

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

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

The time to act is now, Johnny O.

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

Catonsville live music bill is on the right track

Baltimore County Councilman Tom Quirk has proposed a change to county zoning law to allow live musical entertainment in restaurants, bars and other venues located in areas designated as the “commercial cores” of Catonsville and Arbutus. His bill, Bill 44-19, is a good example of how zoning law is best used when it builds upon existing resources in communities to strengthen those communities rather than change them.

In 2002, Catonsville was proclaimed “Music City, Maryland” by the Maryland General Assembly because of its concentration of retail music stores, including the nationally known Appalachian Bluegrass Shoppe, opened in 1960. As it happens, “downtown” Catonsville also is home to many excellent restaurants offering a wide variety of types of food. Ironically, what those restaurants in Music City can’t offer under current law is live musical entertainment.

The commercial core of Catonsville along Frederick Road has managed to retain its vitality while similar areas in Baltimore County have struggled. Many of the small retail stores upon which such neighborhood commercial districts depended were forced out of business, first by big box retailers and then by online retailers such as Amazon. To some extent, Catonsville’s cluster of music stores and quality restaurants formed a bulwark against changes in the retail market that sucked the life out of other neighborhood commercial districts.

Bill 44-19 is intended to exploit the natural synergy between food and music, ensuring the competitiveness of Catonsville’s restaurants with the many other dining options in the Baltimore area. And the more people those restaurants bring to Catonsville, the better it is for other retailers including the music stores like the Appalachian Bluegrass Shoppe, The Piano Man, and Bill’s Music.

The county also wants to make Catonsville part of the county’s first arts and entertainment district under state law, a designation that makes tax incentives available to qualifying private businesses. Kirby Spencer, vice president of the Baltimore County Arts Guild, told WYPR radio that he hopes the tax incentives encourage the owner of the old Plymouth Wallpaper Company building, now vacant, to turn it into a concert venue. It is that type of aspiration that the county should promote.

I agree with the business community that Bill 44-19 can be improved by removing the requirement that a venue wishing to provide live musical entertainment must first obtain a county permit. That is just additional bureaucracy, and regulations adequate to prevent live entertainment from becoming a neighborhood nuisance can be implemented without issuing permits. The requirement for a permit can be revisited in the future if I’m wrong.

As described above, the bill is a good example of how zoning laws can be fine-tuned to enhance a neighborhood without altering its basic character. “Transformative” changes such as attempted in Towson are more difficult, more controversial, and often far less successful. Too often zoning decisions in Baltimore County have been driven by land developers rather than by residents and small business owners. Bill 44-19 is a welcome change.

[Published as guest commentary by Forward Baltimore on September 27, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore City Council has power to ban non-disparagement clauses in police misconduct cases

If passed, Baltimore City Council Bill 19-0409 will ban the practice of requiring people alleging police misconduct or unlawful discrimination to sign a confidentiality agreement preventing them from publicly criticizing the city or members of Baltimore Police Department (BPD) as a condition of receiving money to settle their claims. City Solicitor Andre Davis advised the City Council in a letter that members lack the legal authority to enact the bill. He is wrong.

Let’s make the following clear right up front: The decision to prohibit a claimant from speaking ill of the city or its police officers as a condition of a settlement is not a legal decision. It has nothing to do with the legal sufficiency of a settlement agreement. The use of such “non-disparagement clauses” is purely a matter of public policy.

Given the importance that this issue has assumed in Baltimore, who better to establish the city’s policy on non-disparagement clauses: an appointed city solicitor or a legislative body elected by the citizens?

Mr. Davis contends that the bill violates provisions of the city charter giving the city solicitor the “sole charge and direction of the preparation and trial of” suits and other legal actions to which the city is a party and the “authority to institute, defend or discontinue” such actions. He argues, in effect, that the council cannot stop him from including any provision in a settlement agreement that he deems appropriate, as long as the provision is consistent with state and federal law.

To begin with, the city solicitor will remain solely responsible for preparing and trying lawsuits and other legal actions and will retain the authority to discontinue them. Nothing in the bill changes that. The bill simply renders it unlawful to make settlement of a claim contingent on the waiver by a claimant of his or her right to disparage the city or its employees.

Then, when Mr. Davis’ argument is taken to its logical conclusion, we see just how preposterous it is. The city charter provides that the council “shall have power to pass all ordinances, not inconsistent with the Charter, necessary to give effect and operation to all powers vested in the City.”

The charter allocates implementation of the powers vested in the city among various city officials, including the city solicitor. Does Mr. Davis really believe that the manner in which those powers are implemented is not subject to regulation by the City Council, and that all officials to which the city’s powers are assigned perform their duties free from legislative control?

Mr. Davis goes so far astray in his letter because he overstates his role in the governance of the city while failing to acknowledge the status and scope of the legislative powers conferred on the City Council by the Maryland Constitution. The council has the “full power” under the constitution to enact laws governing the exercise of the powers delegated to the city by the General Assembly.

The scope of the council’s authority also extends to passing laws for the “general welfare,” meaning the council may enact any ordinance it deems proper “in maintaining the peace, good government, health and welfare of Baltimore City.” The Maryland Court of Appeals describes general welfare clauses as “granting extremely broad power to a municipal corporation,” stating they must be “liberally construed to accord a municipality wide discretion in the exercise of the police power.”

There is no need to resort to a “liberal construction” of the council’s powers to conclude that the council has the power to decide that the interests of good government are best served by banning non-disparagement clauses. That conclusion is compelled by even the most restrictive interpretation.

Although the condition is stated as a prohibition, Bill 19-0409 simply places a condition on the expenditure of city money. That is a fundamental part of what the City Council does. It passes laws regulating and placing conditions on the expenditure of city funds for purchasing goods and services, making grants, etc. If it wishes, it may place conditions on the use of city money for the payment of claims.

The fact that city money is involved disposes of Mr. Davis’ last argument. He states that Bill 19-0409 is an impermissible attempt by the council to assert control over the BPD, a state agency. The bill is not about controlling the police department. It is about ensuring that city money is not used to buy the silence of victims of police misconduct or unlawful discrimination.

[Published as an op ed by the Baltimore Sun on Sept 23, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Evaluating judicial performance

Maybe the decision by the Maryland Court of Special Appeals in Delvonta Morten v. State of Maryland filed on Sept. 4 will do what nothing else has done: persuade the Maryland judiciary to adopt a formal system for evaluating judicial performance. At issue in the appeal were evidentiary rulings by Judge Melissa Phinn of the Circuit Court for Baltimore City during the 2017 trial in which a jury found Mr. Morten guilty of the first-degree murder of Kevin Cannady.

Judge Charles E. Moylan, Jr., wrote the reported decision reversing the conviction on behalf of a unanimous court. He minced no words in his critique of Phinn’s rulings.

The most important evidence at trial ostensibly linking Mr. Morten to the murder was an anonymous telephone call to police 35 minutes after Cannady was shot. The caller gave a detailed description of two assailants. Moylan described the call as “absolutely critical” to the state’s case.

Phinn admitted the call into evidence under the excited utterance exception to the rule against hearsay. Moylan stated that the hearing on its admissibility “was essentially a quasi-adversarial exchange between defense counsel, arguing against the admissibility of the hearsay, and the trial judge, making the best case for admissibility. For the most part, the State sat quietly by.”

Moylan pointed out that the call was the antithesis of an excited utterance. “It was a cool and controlled narrative. If a fellow police officer had been in the declarant’s observation post, he or she could not have done a better reporting job than the declarant did. This report was an admirably unexcited utterance.”

Phinn made three other evidentiary rulings damaging to the defense that the appellate court held were wrong. She admitted into evidence two subsequent calls from the same anonymous caller as present sense impression exceptions to the hearsay rule, and she curtailed the right of the defense’s expert to challenge the reliability of the controversial TrueAllele method of DNA testing used to tie the defendant to the murder weapon.

According to Moylan, Morten would have “walked” had Phinn ruled correctly. Except for the challenged evidence, and wearing a hoodie, “there was no linkage between the appellant and the shooting.”

Bagshaw case

Phinn was the target of criticism last year for the lenient sentence she handed down to former Baltimore Police Department Lt. Steven Bagshaw, who was found guilty by a jury of theft and misconduct in office for defrauding the city of more than $8,600 in pay. Rejecting the state’s request that he be imprisoned for 18 months, she struck the convictions and sentenced him to one day of probation before judgment.

But it was her comments at the sentencing hearing that raised eyebrows even more. Phinn blamed the BPD for Bagshaw’s crimes because it did not watch him carefully enough. She accused the BPD of not having “clean hands” and putting him in a “bad situation,” faulting the department for not “paying attention” to Mr. Bagshaw during his assignment as the head of the unit assigned to patrol near the Horseshoe Casino.

Bagshaw was a 45-year-old veteran policeman who supervised other officers, not a rookie. Even in the surreal world that the criminal justice system in Baltimore has become, it was jarring to hear a judge use the failure of a police department to keep a closer eye on a police lieutenant as an excuse for his crimes.

Will there be any formal review of Phinn’s actions? No. The Maryland judiciary has refused repeated calls to adopt a system for evaluating judicial performance.

The idea of a formal system for reviewing and remedying deficiencies in the performance of Maryland judges reached its high-water mark in 1998, when it was recommended by a select committee of judges and lawyers. The idea has languished ever since. Judicial misconduct is subject to investigation by the Judicial Disabilities Commission but there is no process for addressing a pattern of substandard performance.

In fairness to Phinn, other judges have had bad days, and maybe it was just coincidence that hers attracted public attention. But there must be some system in place to ensure that a judge’s bad days are the exception, not the rule. Right now, there is no such system.

[Published as guest commentary by the Daily Record on September 19, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]