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.]

Sewage spill at Lake Roland poses an important test for Johnny Olszewski

The sewage outbreak that took place on or about August 9 from manhole 6883 at Lake Roland was more than an unpleasant, foul-smelling event.

It was a curtain raiser to an important test of the young administration of Baltimore County Executive Johnny Olszewski Jr.

The Dundalk Democrat won last November by promising to be a different kind of politician – one who embraces openness, transparency and environmentally sustainable development. In other words, an advocate for citizens rather than a pawn for the builders and developers who have dominated county government for decades.

It’s now time for Olszewski to make good on that promise with a straightforward answer to the following question: Are the county’s wastewater facilities adequate to handle the burgeoning development in and around Towson?

It’s a question that county officials have dodged for many years.

What Lies Beneath

In 2012, former county executive Kevin Kamenetz announced that he wanted to make Towson a regional destination, “even better than Bethesda, even better than Silver Spring.”

The county released a glitzy video titled “It’s Towson’s Time” to promote his vision.

Suspicions immediately arose that the underground sewers in the area were not up to the job of disposing waste from the massive new development. These concerns were based on well-documented problems with wastewater facilities in the Jones Falls sewershed that not only serves Towson, but also Timonium, Lutherville, Brooklandville and Pikesville.

Sewage from this wide geographic area flows into Baltimore below Lake Roland and is piped through the city to the Back River Wastewater Treatment Plant in Dundalk.

In 2005, the county entered a consent decree with the U.S. Environmental Protection Agency (EPA) and the Maryland Department of the Environment (MDE) intended to eliminate overflows that have bedeviled the county’s sewersheds for decades. The city agreed to a similar decree with the EPA and MDE in 2002.

The county is now constructing a roughly two-mile-long “relief” sewer along Towson Run to manage the increase of sewage from construction of the 1.2 million-square-foot Towson Row, expansions at Towson University and other projects.

But it is the sewer that the county is not building that raises troublesome questions about the county’s commitment to environmentally sound development.

Manhole 6883

As described by The Brew, there are three sewer mains with a combined total of 96 inches of pipe diameter that feed into a single 42-inch-diameter pipe north of Lake Roland, a body of water created by damming the Jones Falls and owned by the city.

Built in the early 1950s, this “interceptor” pipe runs under the lake and connects with a city sewer line just north of Mount Washington.

In 2012, the county’s engineering consultant, Rummel, Klepper & Kahl (RK&K), recommended construction of a “relief” sewer to supplement the capacity of the existing Lake Roland interceptor. The recommendation was made precisely to avoid the type of spill that took place on or about August 9.

In fact, RK&K predicted that manhole 6883 would become subject to sustained overflows during major storms unless the capacity of the Lake Roland interceptor was expanded.

The county did not follow its consultant’s recommendation, and RK&K’s prediction of trouble now appears to be reality.

In their haste to make Towson the next Silver Spring, county officials have simply shifted the likelihood for what are euphemistically called “SSOs” (sanitary sewer overflows) from downtown Towson to Lake Roland – and downstream into Baltimore City.

“Two Sets of Books”

It came as little surprise that the recent spill at Lake Roland was discovered not by the county, but by a member of Green Towson Alliance (GTA).

What scant information the public has about the adequacy of the public wastewater facilities in the Towson area is due to the persistence of the GTA and a group of environmentalists led by Tom McCord of Ruxton.

And what those citizens uncovered heightens suspicions about the county.

They found that the Baltimore County Department of Public Works used out-of-date land use and population data for purposes of preparing a report on deficiencies in the sewerage infrastructure and corrective actions required by the consent decree.

Underreporting increases in population density and development had the effect of overstating the adequacy of the sewerage infrastructure to manage future needs.

The environmentalists also came across information indicating that DPW used higher and more current projections to justify construction of the Towson Run Relief Sewer – McCord described it as using “two sets of books.”

Only through considerable effort did they obtain the 2012 report from RK&K recommending the relief sewer under Lake Roland to handle major storms and predicting potential overflows at manhole 6883.

Not to the Rescue: MDE

Armed with this information, McCord and his group went to the MDE. As a party to the consent decree, the state agency is supposed to ensure that the county complies with the decree.

It also has regulatory responsibility for the triennial review of the county’s Water Supply and Sewerage Plan required by law. The primary purpose of triennial reviews is to verify that cities and counties have plans in place to manage projected increases in sewage.

McCord and members of GTA met with MDE Secretary Ben Grumbles and his staff in May 2018. Grumbles asked his staff at the meeting if he could delay approval of the county’s 2017 triennial review until he had a subsequent meeting with McCord and his group that also included DPW.

Grumbles was told by his staff that he could do so. It appeared that someone finally was going to take the concerns of activists seriously.

But it was not to be.

The subsequent meeting took place in August 2018. The citizen participants were informed that the county’s 2017 triennial review had been approved before the meeting.

A golden opportunity for accountability was thereby squandered by MDE – and the questions raised by the activists left unanswered.

Fundraising Pals

The spill is evidence of a problem that the county would rather ignore.

If it came as little surprise that the Lake Roland sewage spill was found by someone other than the county, it came as even less of a surprise that DPW initially denied the existence of it.

The last thing the agency apparently wants to do is to acknowledge any evidence that the system of sewer pipes that serves Towson is inadequate.

There are no attractive options available to Olszewski if downstream sewerage is inadequate. Obviously, the young executive would rather spend money on schools than on sewers.

A stopgap measure, such as suspending the issuance of building permits in Towson until wastewater facilities are adequate, would come with a political price to Olszewski.

The development community contributed heavily to Olszewski’s defeat of Republican Al Redmer in last November’s general election.

In one instance, the law firm long representing Greenberg Gibbons, co-developer of Towson Row, staged a “who’s-who” of builders and attorneys chipping in their offerings at a Olszewski fundraiser.

The gathering was co-chaired by Michael Paul Smith, son of former county executive James T. “Jim” Smith Jr.; David Gildea, Michael Smith’s law partner; Lawrence Macks, CEO of Chesapeake Realty Partners; and Kenneth Ullman, former county executive for Howard County.

Sustainability Test

Olszewski now has a chance to show his independence, having named State Delegate Stephen W. Lafferty as his chief sustainability officer.

Lafferty’s rather grandiose charge is to focus on “climate change, green energy and development,” according to a press report.

It’s the latter task – development – that should engage this ex-legislator handed a $105,000-a-year, newly-created job in county government.

Lafferty’s first task should be determining whether public wastewater facilities are capable of serving current and future county development – and, equally important, whether such development makes sense in light of environmental limitations.

This information must be gathered with the active input of groups like the Green Towson Alliance and shared publicly.

How well Olszewski and his lieutenants perform on this question should tell us a lot about how sustainable his image as a reformer will be.

[Published as guest commentary by Baltimore Brew on August 30, 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.]

A conflict of interest in Baltimore County

Regulating land use and development is one of the most important functions of Baltimore County government. The County Council makes decisions directly affecting the fortunes of land developers, builders and contractors. Anirban Basu is the chairman and CEO of Sage Policy Group, which on its website touts his consulting work on behalf of “prominent developers” and lists him as the chief economist to Associated Builders and Contractors, a national construction industry trade association.

Is it any wonder county residents urged the council to not renew its longstanding contract with Sage to provide it with economic forecasts? A better question is why council members, who regulate developers, didn’t themselves recognize the conflict of interest in relying on advice from an industry ally.

Mr. Basu raised eyebrows by appearing in Facebook videos this spring opposing various revenue-increasing measures under consideration by the council, including the imposition of impact fees on new construction. Impact fees defray the costs of expanding public facilities to accommodate increased demands placed on the facilities by new construction. They are not, however, popular with the builders and developers who pay them.

In May, Sage issued a report commissioned by the Maryland Building Industry Association concluding that impact fees would slow migration into the county and accelerate the loss of tax base. Sage issued a similar report in 2005.

The administration of the late county executive Kevin Kamenetz used a study done by Sage in 2017 to justify the controversial $43 million in financial assistance awarded to the developers of Towson Row, a five-acre mixed-use development. Sage’s theme seems to be that giving tax credits to builders and developers is good; making them pay impact fees is bad.

It is a message that rankled ordinary taxpayers subject next year to a 13% increase in the county income tax intended to help close an $81 million budget gap. Adding insult to injury, that shortfall can be attributed to the cumulative effect of the absence of impact fees over time.

So, it is easy to understand why citizens were upset that the council wanted to renew its contract with Sage. Although the council stated that it would solicit competing proposals before selecting its economic consultant, it did not rule out selecting Sage.

But why would the council even consider doing so? In my opinion, the answer is that most members of the Baltimore County Council have never fully accepted the responsibilities attendant to belonging to a regulatory body, including maintaining an arms-length relationship with the persons whom they regulate.

The problem starts with council members heavily dependent on political campaign contributions from developers, builders and their lawyers. This has been an historical source of concern by citizens, particularly because members of the Baltimore County Council wield unusually strong power over zoning and development decisions.

The quadrennial comprehensive zoning process that begins next month is an example of that power. Every zoning change made during comprehensive zoning, including changes applying only to a single lot, must be approved by a separate vote of the council.

Moreover, each lot owner that requests a change in zoning during comprehensive zoning has the right to have the request voted upon by the council. A change in zoning to a piece of property can result in an enormous financial windfall to a developer with a contract to purchase the property contingent on the zoning change. In the 2016 comprehensive zoning the council made 516 separate zoning decisions, almost all involving financial winners and losers.

The extraordinary role of the Baltimore County Council in land use and development is not limited to zoning. A developer seeking approval of a “planned unit development (PUD),” which affords more flexibility than permitted by the underlying zoning and potentially involves more profit, first must get the blessing of the county council.

The contract with Sage stoked fears that the council is still too closely aligned with the special interests it is charged with regulating. And that citizens’ interests will continue to come in a distant second.

It does not impugn the integrity of Sage or Mr. Basu to suggest that the council should award the contract to a consultant less closely associated than Sage with the development and construction industries. It might even restore a measure of public confidence in the council.

[Published as an op ed by the Baltimore Sun on July 29, 2019 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

The Impact Fee Study That Never Was, Part II

Call this the sequel to my post captioned “The Impact Fee Study That Never Was.” That post described how the Baltimore County Council made a serious mistake during the enactment of Bill No. 16-19 by creating a discrepancy between the bill as enacted and the legal prerequisites for enacting the bill described in the official explanations of both the bill and its state enabling act.

The Fiscal and Policy Note prepared by the General Assembly’s Department of Legislative Services and the Fiscal Note prepared by the Baltimore County auditor stated that the council had to conduct an impact fee study before imposing an impact fee. Nevertheless, Bill No. 16-19 was passed without an impact fee study being done.

The council made things unnecessarily complicated because of its apparent ignorance of a change in the law.

This post deals with related issues, the first of which is what appears to be the motivation for both Bill No. 16-19 and its state enabling act, Chapter 657 of the 2019 Laws of Maryland. In my first post, I quoted Councilman David Marks’ statement of his understanding of the inherent difference between development impact fees and development excise taxes:

“Impact fees are different than excise taxes in that revenue must be spent in a localized manner — in other words, money collected from a development must be used for schools, roads, and infrastructure near the affected community. Money from an excise tax can be spent anywhere.”

He went on to explain the reason for his decision to eschew the county’s longstanding authority to adopt a development excise tax in favor of his bill enacting a development impact “fee” as follows:

“Mr. Olszewski has shown himself to be a thoughtful and collaborative leader, but there is a historical mistrust in Baltimore County, and not just between communities and developers as Mr. Plymyer asserts. There is real fear that a partisan county executive will use his or her power to reward loyal communities or punish adversaries. That is exactly why my legislation requiring localized spending of impact fee revenue is better.” [Emphasis added.]

I explained in my first post how Mr. Marks appeared to fail to understand how a 2018 decision by the Court of Appeals, Dabbs v. Anne Arundel County, had changed the law regarding impact fees. As a consequence of that change in the law, if all that Mr. Marks wanted to do was restrict the use of school impact funds to the school district from which they were collected, he could have done that by a simple amendment to the development excise tax bill introduced at the request of the county executive, Bill No. 23-19.

Going the route of an amendment to Bill No. 23-19 would have eliminated the need for the General Assembly to enact Chapter 657 of the 2019 Laws of Maryland and for the council to enact Bill No. 16-19. More importantly, it would have avoided the legal mess caused by the apparent confusion over the need for an impact fee study. 

There is a better way to deal with the council’s fear of the county executive.

If the motivation for Bill No. 16-19 was indeed fear of the power of the county executive over the Board of Education budget, then isn’t it better to address the power imbalance directly, rather than to make a hash of a major piece of legislation? Here is what I am talking about:

The Baltimore County Council is the only county council in Maryland that lacks the power to restore any denial or reduction made by a county executive in the budget submitted by the local board of education. (The Baltimore City Council also lacks the power to do so.) Under § 5-102(c) of the Education Article of the State Code, the power to restore any denial or reduction made by the county executive in the budget submitted by the BOE will be given to the council if approved by the voters of the county as a charter amendment.

Council members, why don’t you pass a resolution putting that measure on the ballot in 2020? Let the voters decide. If the voters approve the charter amendment, then the council rather than the county executive would have the final say on which capital projects proposed by the BOE get funded. If the voters reject the amendment, then the voters have told you that they trust the county executive over you, and you just live with that fact and stop passing screwed-up bills like Bill No. 16-19.

There is another interpretative issue arising from the absence of an impact fee study.

In my first post I explained how the failure by the council to do an impact fee study despite both the Fiscal and Policy Note prepared by the General Assembly’s Department of Legislative Services and the Fiscal Note prepared by the county auditor stating that one was required created a legal ambiguity. There is an additional issue arising from that ambiguity that I did not mention.

One of the shortcomings of “traditional” (pre-Dabbs) school impact fees is that they can be used only for schools directly affected by the new residential development, and then only for adding or expanding school capacity – they cannot be used for remedying existing deficiencies, such as remodeling or maintenance. This means that the impact fee revenues can sit unused for years if collected in a school district in which no capital projects to add or expand student capacity are needed, even if the overall impact of new residential development in the county has created the need for adding or expanding capacity elsewhere.

One of the issues to be sorted out by the county in light of the ambiguity created by Bill No. 16-19 is whether it was the council’s intent, despite Dabbs, to limit expenditure of the fees to projects that add or expand school capacity. Again, there is plenty of evidence to suggest that it was. That includes the council’s preamble to the bill, in which it states that:

“Development impact fees have been imposed in other jurisdictions in Maryland that pay for additional or expanded . . . public school and public safety facilities, and debt service on bonds issued for additional or expanded infrastructure and facilities.” [Emphasis added.]

Is the County going to argue that, despite the language in the preamble, it can use impact fee revenues for routine maintenance and remodeling? That is another area of confusion that could and should have been avoided.

CONCLUSION

There’s no good explanation for what the council did. If the Fiscal and Policy Note prepared by the General Assembly’s Department of Legislative Services and the Fiscal Note prepared by the county auditor were correct, and the council intended to impose an impact fee bound by the rational nexus standard, then an impact fee study should have been done before passing Bill No. 16-19.

If, on the other hand, the Department of Legislative Services and the county auditor simply were unaware of the Dabbs case and made a mistake about the requirement for an impact fee story, the council should not have passed Bill No. 16-19 before asking the auditor to issue a revised note eliminating her statement that an impact fee study was required. It would be an unacceptable level of sloppiness for the council to knowingly pass a bill that was inconsistent with the legal prerequisites as stated in the legislative record.

Of course, if the county auditor (and county council) were unaware of the Dabbs decision, that raises another question. The Dabbs decision was issued on April 10, 2018. The county auditor issued her report on Bill No. 16-19 on May 23, 2019. By then, one would assume that the county attorney, or someone, was aware of Dabbs and would have brought it to her attention. And if not, why not?

This situation has all the earmarks of “haste makes waste” and the failure to apply sufficient time and expertise to a major piece of legislation. And that is never a good excuse.

The Impact Fee Study That Never Was

Baltimore County Councilman David Marks introduced Baltimore County Council Bill 16-19, which imposed a development excise tax on new non-residential construction and a development impact fee on new residential construction. The purpose of both is to help defray the costs of expanding public facilities to accommodate the demands of new construction.

I wrote an opinion piece criticizing the bill. Mr. Marks responded with his own commentary, describing mine as “predictably negative.”

Mr. Marks said something striking in his commentary that led me to conclude that perhaps I had not been negative enough. In response to my criticism, Mr. Marks touted his 1997 master’s thesis on impact fees and explained the reason that he wanted an impact fee rather than an excise tax applied to new residential construction as follows:

“Impact fees are different than excise taxes in that revenue must be spent in a localized manner — in other words, money collected from a development must be used for schools, roads, and infrastructure near the affected community. Money from an excise tax can be spent anywhere.”

Dabbs v. Anne Arundel County (2018)

Actually, development impact fees are not inherently different from development excise taxes. What was true in 1997 when Mr. Marks wrote his thesis no longer is true in 2019.

A 2018 case decided by the Maryland Court of Appeals, Dabbs v. Anne Arundel County, held that impact fees need not satisfy the so-called “rational nexus” (also referred to as the “rough proportionality”) test to be constitutionally sound. Therefore, under the constitution, impact fees generally applicable to specified types of new construction are indistinguishable from development excise taxes in that they “can be spent anywhere,” to paraphrase Mr. Marks.

Although the rational nexus requirement is not constitutionally mandated, the General Assembly is free to impose it on a jurisdiction as part of an enabling act. Under the rational nexus model, there be a reasonable relationship between the public facilities on which the fees are spent and the new construction on which the fees are imposed. There must also be a reasonable relationship between the amount of the fees and the fiscal impact of the new construction on public facilities.

Notwithstanding Dabbs, it appears from his commentary that Mr. Marks intended the impact fee adopted by Bill 16-19 to be based on the “traditional” (pre-Dabbs) model. In other words, subject to rational nexus requirements. Among those requirements is a formal impact fee study that must be done before the fee scheduled can be established.

An impact fee study is a substantial undertaking that follows what is now a widely accepted methodology.  Here is a link to a recent impact fee study done by Frederick County:                                    https://www.frederickcountymd.gov/DocumentCenter/View/302741/0213—2017-Impact-Fee-Study?bidId

What happened to the impact fee study?

The requirement for an impact fee study was described in the Fiscal Note to Bill 16-19 prepared by Baltimore County Auditor Lauren Smelkinson as follows:

“[T]here must be a reasonable connection, or nexus, between the amount of the impact fee imposed and the actual cost of providing facilities to the properties assessed. The projects and services funded by impact fees typically include public school construction, libraries, community colleges, transportation, public safety, parks and recreation, and water/sewer utilities. . . In order to justify the imposition of a development impact fee, a jurisdiction must conduct a study that measures the effects that new development will have on public facilities.” [Emphasis added.]

The county auditor did not make up that description from whole cloth. She took it directly from the legislative history of the enabling act for Bill 16-19, which was Chapter 657 of the 2019 Laws of Maryland, enacted into law as HB 449. It is worth noting that Baltimore County has had the authority to enact a development excise tax since 1953. The explicit authority to impose an “impact fee,” however, is new.

The Fiscal and Policy Note prepared for HB 449 by the General Assembly’s Department of Legislative Services contains the same language as the Fiscal Note for Bill 16-19:

“In order to justify the imposition of an impact fee, a jurisdiction must conduct a study that measures the effects that new development will have on public facilities.”

And therein lies the rub: Despite the description of the requirement by both the Department of Legislative Services and the county auditor, no impact fee study was done by the county council before the impact fee schedule in Bill 16-19 was adopted.

Now what?

The consequences of the council’s failure to do an impact fee study are uncertain. One consequence could be a legal challenge to the fee schedule based on the absence of an impact fee study justifying the fees.

The requirement for an impact fee study is not expressly stated in Chapter 657 of the 2019 Laws of Maryland. Then again, the requirement was not included in impact fee enabling acts before Dabbs. It was implied under the constitution.

Is the requirement for an impact fee study implied in Chapter 657 and in Bill 16-19? The most authoritative accounts of the legislative intent of the General Assembly and Baltimore County Council seem to think so. Also, in the preamble to Bill 16-19 the council itself states that the purpose of impact fees is “to provide funds for various public facilities proportionate to development.” That’s rational nexus, impact fee study language.

Thus, an argument can be made that the Department of Legislative Services and county auditor were correct, and that the General Assembly and County Council wanted the constraints of the rational nexus test to apply to the fee. That argument is made more persuasive because the county already had the authority to adopt a “no constraints” development excise tax.

There was no point in passing Chapter 657 unless the General Assembly intended to create an option for defraying the costs associated with new construction in Baltimore County that differs from the development excise tax option. The rules of statutory construction militate against interpretations that would make a statute redundant.

A competing explanation is that neither the Department of Legislative Services, the County Auditor nor Mr. Marks were aware of Dabbs v. Anne Arundel County when they wrote what they wrote. In other words, the legislative intent as described by the Department of Legislative Services and repeated by the county auditor may simply have been a mistake based on outdated law.

If it was a mistake, it should have been recognized and corrected before Bill 16-19 was passed by the county council. It is never a good idea to have the implementation of a bill directly contradict the requirements of the bill as described by the professionals paid by the legislative body to prepare such descriptions; indeed, it is difficult to overstate how unacceptable such discrepancies are in competently done legislation, given that they are invitations to litigation. 

For all its other shortcomings, Bill 16-19 was an extremely sloppy piece of work. Sorry, Mr. Marks, but the bill deserved my “predictable negativity.” And then some.

An open letter to Jack Young: Open up police brutality settlements to scrutiny

To the Honorable Bernard C. “Jack” Young, Mayor of the City of Baltimore:

I have a proposal that could help you and the city. Your statement last week that you are considering a run for mayor in the 2020 election was met with considerable skepticism. It appears that there are doubts about your leadership abilities that you need to overcome.

Some people scoffed at your claim that you are being encouraged to run because of your performance in office thus far, citing your lackluster handling of the disastrous ransomware attack as well as the water outage calamities at Poe Homes and now on Howard Street.

Given these crises, your declaration last week that “my team and I have weathered the storm and we’ve moved the city forward” rings a bit hollow.

Here is action that you can easily take to move the city forward and kick-start your mayoral campaign:

Instruct your city solicitor not to appeal the decision by the U.S. Court of Appeals for the Fourth Circuit holding that the non-disparagement clauses insisted upon by the city when settling claims of police brutality and other misconduct are unconstitutional.

Buying Silence

Last Thursday, a three-judge panel of the appellate court reversed a lower court ruling and held that the clauses (commonly referred to as “gag orders”) violated the First Amendment.

The majority opinion offered a slashing indictment of the city’s policy of buying the silence of victims of police wrongdoing.

In a tone-deaf response, City Solicitor Andre Davis stated that he intended to appeal the ruling to the full court.

If you end the use of non-disparagement clauses, you will do what your predecessor lacked the wisdom and courage to do.

Former Mayor Catherine Pugh and her administration continued to defend the clauses despite strenuous opposition from a coalition that included 20 media organizations, the ACLU and numerous grassroots groups.

These non-disparagement clauses are a disservice to the public, motivated by the city’s desire to protect the reputation of its police officers. Make a statement acknowledging the obvious: The reputation of the Baltimore Police Department already is in tatters.

If city officials had spent half the time and effort on reforming the department that they spent on trying to hide police misconduct from the public, the department would probably not be in the shape that it is in today.

Action, not Talk

Calling for an end to the non-disparagement clauses will not endear you to the Fraternal Order of Police (FOP), the union representing rank-and-file police officers.

In the past, you have been reluctant to antagonize the FOP. As president of the City Council for nine years, you could have introduced an ordinance banning the non-disparagement clauses. But you didn’t.

You are hardly alone, however, in your reticence to take on the FOP. If you listen to what members of the Maryland General Assembly from Baltimore say, you might believe that they are committed to combating the pervasive mistrust of the police department by making the actions of its officers more transparent and subject to public scrutiny.

But if you watch what they do, you realize that the nothing could be further from the truth. The prime example is the absence of any progress by the General Assembly on allowing reasonable public inspection of police disciplinary records – a failure for which the Baltimore delegation bears a large part of the blame.

Here is an opportunity to set yourself apart from the big-talk, little-action crowd.

City voters are aching for an infusion of fresh ideas and bold leadership. They want their elected officials to get beyond business-as-usual and fix things. Here’s your chance, Mr. Young, to grab the bull by the horns and take a step toward actually solving a problem.

Don’t blow it.

[Published as guest commentary by the Baltimore Brew on July 15, 2019, but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]