Police overtime spending violates Baltimore’s charter.

The City Council shouldn’t sanction a practice that’s “tantamount to cooking the books,” says a veteran government lawyer.

At its next meeting on November 19, the City Council will take a final vote on whether to approve a “supplementary appropriation” of $21 million to the Baltimore Police Department.

Monday’s preliminary vote in favor of the appropriation was a disappointing exercise by a Council that had once showed promise as a reform-minded body.

The supplementary appropriation in question covers the costs of police overtime during FY (fiscal year) 2018 that were in excess of the costs for police overtime appropriated in the city’s budget for FY18, which ended on June 30.

The money used to fund the appropriation would come from transfer and recordation tax revenues in FY18 that exceeded the estimates of such revenues used in the preparation of the budget.

Those “excess” revenues otherwise would be available for other purposes (inside or outside the police department) in the current year, FY19, which began on July 1.

Here is the problem: What was done last year is done. The money for police overtime has already been spent. There is nothing the Council can now do to change this fact – except try to hide it from public view.

The use of supplementary appropriations to cloak over-expenditures stretches the law to the breaking point even when the appropriations are approved during the same fiscal year in which the over-expenditures happened.

For the city to reach back in time to try to “fix” an over-expenditure that took place in a prior fiscal year stretches the law past the breaking point.


In other words, final approval on November 19 of $21 million in police overtime will not correct the violation of the city charter that took place when the BPD overspent its money for overtime during FY18.

In my opinion, the whole exercise is tantamount to cooking the books. It gives the impression that the city did not spend more than it was authorized to spend – when, in fact, that’s exactly what it did.

How it Should Work

When a legislative body appropriates money, it is approving the expenditure of a specific sum of money for a specific purpose.

It reflects the principle that the legislature has the power of the purse and sets limits on expenditures by the government for any given purpose.

No official or agency may make a purchase or create a financial obligation on the part of the government unless there is an appropriation sufficient to pay for the purchase or meet the obligation.

The appropriation must precede the expenditure. That is a proposition generally understood by managers at every level of government.

Spending money before there is a sufficient appropriation may be justified in actual emergencies, such as hurricanes or blizzards.

The recurring over-expenditure by Baltimore Police of its overtime budget is not such an emergency.

MIA: Transparency

One reason why this happens is that Baltimore’s “city charter,” or constitution, lacks teeth in the area of appropriation control.

In neighboring jurisdictions, there is tighter oversight. The Howard County Charter, for example, provides that no local agency can “expend, or contract to expend, any money or incur any liability, or enter into any contract. . . in excess of the amounts appropriated or allotted” in the budget for that fiscal year.

The charter goes on to say that “if any officer, agent or employee of the County shall knowingly violate this provision, he or she shall be personally liable and such action shall be cause, after public hearing, for his or her removal from office by the Executive or by majority vote of the Council.”

The charters of Anne Arundel and Prince George’s counties contain substantially the same language.

If Baltimore’s charter contained a similar provision, perhaps the police department would be more cautious about approving overtime for which no money has been appropriated.

Similarly, if the city’s outside auditor gave an adverse finding in Baltimore’s Comprehensive Annual Financial Report (CAFR) that is required for federal grant funding, perhaps Mayor Catherine Pugh would take notice.

Taking a Stand

These, of course, are conjectures. What now stands solidly before Baltimore’s legislative body is Bill 18-0265, the supplementary appropriation for police overtime.

If the Council votes down the bill on final reader on November 19, the Pugh administration will be forced to acknowledge that it spent more money than was appropriated last year.

That’s a major violation of Baltimore’s charter. Calling out this practice could bring real accountability to city government.
David A. Plymyer retired as County Attorney for Anne Arundel County in 2014 after 31 years in the county office of law. He previously served five years as an assistant state’s attorney.

[Published as guest commentary by The Baltimore Brew on November 2, 2018 but not posted to my blog until January 31, 2019.  The date of posting that appears above was backdated to put all posts in the order in which they were written.]

Dear City Council: Stop making up excuses and fix the disastrous police contract.

BY DAVID A. PLYMYER 1:26 PM   OCT 17, 2018

Council members have chosen the interests of city labor unions over the safety and financial well-being of the city, a retired government lawyer argues. [OP-ED]

For the last two years, members of the Baltimore City Council have been grousing about the high cost of the shift schedule adopted by the Police Department, while maintaining that they lack the power to do anything about it.

Finally, a member of the Council acknowledged last week that they can do something about it.

Councilman Ryan Dorsey’s admission in a Twitter exchange (see below) proves that it is not an absence of legal authority, but rather a lack of political will that prevents Baltimore’s elected officials from solving this enormous drag on the city’s resources.

Costly Failure

In 2015, the standard shift schedule (normal work week) of the BPD was changed from five eight-hour days (5×8) to four 10-hour days on duty followed by three days off (4×10).

Former Police Commissioner Anthony Batts claimed the change would put more officers on the streets at the most needed times, cut overtime spending and give officers more time off.

He was wrong.

The change boomeranged into a costly failure mainly because the BPD has been unable to recruit and retain enough officers to fill assignments under the 4×10 schedule.

The Rawlings-Blake administration then compounded the error by agreeing to hardwire the 4×10 schedule into the collective bargaining agreement between the city and Lodge 3 of the Fraternal Order of Police (FOP), which represents officers in the rank of lieutenant and below.

Most critically, the contract took away the ability of the police commissioner to adjust the schedules of officers to accommodate changing demands on the department.

The 4×10 schedule has meant millions of dollars in overtime, adding to the excessive overtime that has characterized the department in recent years. To date, the FOP has not agreed to an alternative schedule.

While quick to blame Batts and the FOP for the problem, Council members have refused to accept responsibility for fixing it.

But there has been some progress in that regard. Councilman Dorsey’s admission (couched in rather obscure syntax) that the City Council can enact legislation removing shift schedules from the scope of collective bargaining is an important step toward clarity on this matter.

The legislation referred to by Dorsey would have the effect of giving the Police Commissioner authority to schedule shifts in the manner that best suits the need of the department. The Councilman apparently has been told by city lawyers, however, that such legislation could not apply to only one union.

As Dorsey tweeted, “State law does not permit the City to limit the collective bargaining rights of the Police Department unless it is done by limiting all collective bargaining rights of all unions.”

He then said he was reluctant to introduce such legislation because he supports the rights of city unions “to represent their workers’ conditions.” He then added this:

“As much as I think FOP has been allowed to run amok, it’s not the fault of all workers. It’s a manifestation of weak political will and the FOP acting like a protection racket.”

Making a Choice

The admission by the vice chair of the City Council’s Public Safety Committee sheds light on the real reason why the city has not extricated itself from the costly shift schedule:

Namely, a refusal by the Council to do anything that upsets the labor unions that represent city employees – or at least labor unions other than the FOP.

Governance involves choices. Dorsey and like-minded members of the Council have chosen the interests of city labor unions over the safety and financial well-being of the city.

Dorsey’s admission was a long time coming. What follows is the backstory about the lengths to which politicians will go to disavow responsibility for a politically unpleasant task.

Getting to the Truth

My first discussion on the 4×10 shift issue was with Brandon M. Scott, currently the chairman of the Public Safety Committee.

His voice has been the loudest about the body’s “lack of control” over the BPD and the purported need for Gov. Larry Hogan to return control of the department to the city.

After an exchange with Scott on Twitter in April 2017, I had a telephone conversation with him. I said that, if it wished, the Council could remove the subject of shift schedules from the scope of collective bargaining. Scott did not agree with me, and our discussions ended.

In June 2017, Council President Jack Young wrote a letter to the editor of the Baltimore Sun excoriating the FOP for refusing to agree to go back to the 5×8 shift schedule.

Young went so far as to imply that the FOP’s refusal to concede on the issue was partially responsible for the city’s spike in violent crime.

While I am no big fan of the FOP, Young had no right to tell the FOP what its bargaining position should be, especially when the 4×10 schedule was the city’s idea, not the FOP’s.

I sent a letter dated June 29, 2017 to Young and other members of the Council describing their legal options – options that I suspect their own lawyers had already explained to them. Here are the relevant parts of that letter:

 The City Council has the power under §55 of the City Charter to limit the scope of collective bargaining by placing certain subjects off limits as exclusive management rights. Excluding management decisions regarding the structure and scheduling of shifts from the scope of collective bargaining is consistent with the state law that governs binding arbitration used to resolve impasses in bargaining with the BPD.

State law limits binding arbitration to matters of ‘direct compensation’ and §16-8A(b)(3) of the Code of Public Local Laws of Baltimore City explicitly provides that issues regarding deployment and scheduling are not “direct compensation” issues. “Direct compensation” is defined to mean “wages, salaries, longevity, shift differential [pay], bonuses if applicable, and leave with monetary value.”

Nothing came of that letter. The next member of the Council to lash out at the FOP was Dorsey.

In April 2018, he denounced the union for its continuing refusal to agree to abandon the 4×10 shift schedule, while also describing the BPD as “really just occupying mercenaries.” He dismissed my arguments that he and his colleagues could intervene by tweeting that “City Council is in no way part of collective bargaining.”

This time I responded with an op-ed in the Sunmaking public the explanation of the law that I had provided to the Council a year earlier.

Whether that did the trick, I don’t know, but six months later Dorsey is now admitting that City Council has the authority to place limits on the scope of collective bargaining.

Needed Now: Political Courage

Baltimore’s labor and police commissioners never should have bargained away the commissioner’s authority to adjust shift schedules to accommodate the changing needs of the city. Nor should they have hard-wired a specific shift schedule into a labor contract.

But done is done, and the subject of shift schedules is now a subject of collective bargaining, at least until the City Council legislates otherwise.

There is nothing unusual about a legislative body having to clean up a mess created by the executive branch in the course of interpreting and administering a law. The City Council is, after all, the primary policymaker for Baltimore.

If the Council doesn’t want the city to have to negotiate with the FOP over shift schedules, then the Council should do something about it by passing an ordinance.

(Of course, Mayor Catherine Pugh could take it on herself to propose such an ordinance, but she has so far shown no more appetite to take on city employee unions than have members of the Council.)

The fact that the ordinance would have to apply to other city agencies and unions is not an obstacle.

Making it an exclusive management right to decide on appropriate shift schedules is a common and fair allocation of power between management and labor.

Namely, that management decides on the shift schedule that best meets the needs of the organization, and then it negotiates with unions on how to compensate employees for working that shift schedule.

It is especially important for the head of a public safety agency to be able to adjust shift schedules. If a shift schedule must be changed during the term of a labor contract, a “re-opener” clause in the contract can allow the negotiation of the accompanying changes in compensation.

This is not “union busting,” as Councilman Dorsey implies. This is the city regaining a reasonable measure of control over governmental operations.

The problems caused by the 4×10 shift schedule should (but likely will not) get resolved any time soon.

But, at least, we can be spared from the spectacle of elected officials proclaiming their “helplessness” in resolving ballooning police overtime and the poor deployment of officers in this time of public angst about crime.
David A. Plymyer retired as Anne Arundel County Attorney after 31 years in its office of law. His work included advising county management on the content and negotiation of contracts with public safety unions.

[Published as an op-ed by the Baltimore Brew on October 17, 2018 but not posted to my blog until November 17, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

‘Pandering to racial prejudice’ in Baltimore County executive race.

David A. Plymyer

The settlement agreement with the United States Department of Housing and Urban Development (HUD) signed by Baltimore County in 2016 requires the next county executive to introduce legislation next year prohibiting landlords in the county from discriminating against prospective tenants who use federal “Housing Choice” (Section 8) vouchers to help pay the rent.

Al Redmer Jr., the Republican candidate for Baltimore County executive, states that, if elected, he will not introduce the legislation. Mr. Redmer claims that he will defy the agreement because of his opposition to forcing landlords to “go through the additional burdens and bureaucracy of doing business with the federal government.”

But I believe that his real motivation is to assure white voters that he will try to keep more people of color from moving from the Baltimore City to the county. And there is absolutely no chance that voters will miss that message: Fear of poor black families moving to the county has been a pervasive theme in Baltimore County for decades.

HUD and the other plaintiffs sued the county in 2011. They alleged that county policies resulted in the clustering of low-income and minority residents in poor and segregated neighborhoods, an example of the phenomenon known as structural racism.

The county’s incentive to settle the case greatly increased after a 2015 Supreme Court decision holding that under the federal Fair Housing Act plaintiffs need not prove that racial discrimination was intentional, only that it was a result of policies that had a “disparate impact” on racial minorities.

The widespread refusal of landlords to accept Section 8 vouchers has had a disparate impact on black residents by keeping low-income black families out of certain communities in Baltimore County. It is similar in effect to the “redlining” by banks and other institutions from which the city still has not recovered.

If Mr. Redmer doesn’t understand the long-term impact of structural racism, he should read “Not in My Neighborhood: How Bigotry Shaped a Great American City” by former Baltimore Sun reporter and editorial writer Antero Pietila. From it, he would learn how large pockets of poverty in Baltimore produced gangs, crime and family dysfunction that in turn overburdened schools, police and other government services. In his zeal to prevent the city from spilling over into the county, Mr. Redmer could end up recreating the problems of the city in the county.

And, as we learned in the city, once crime takes hold, it doesn’t limit itself to the poorest neighborhoods. What would Mr. Redmer do then, build walls between communities?

Mr. Redmer appears willing to sacrifice the interests of elderly and disabled county residents of all colors to his desire to please white voters. According to the Citizens Planning and Housing Association, 62 percent of the recipients of Section 8 vouchers in the county are senior citizens or people with disabilities. And if a landlord sets a policy of refusing Section 8 vouchers, it must be categorical and applied to all tenants or it will run directly afoul of anti-discrimination laws. Bluntly stated: To refuse to accept Section 8 vouchers from low-income black families, a landlord must also refuse to accept them from the elderly and disabled.

The irony is that Mr. Redmer’s friend, fellow Republican and most avid supporter, Gov. Larry Hogan, has gone out of his way to distance himself from the racial divisiveness of the Republican president, Donald Trump. Mr. Redmer has taken the opposite tack, emulating the president by exploiting the fears and prejudices of white voters.

Pandering to racial prejudices is the last thing that Baltimore County needs from a candidate for county executive. Baltimore County has made some progress toward building more affordable housing, integrating neighborhoods and eliminating its history of structural racism. The consequences of reversing course now would be tragic.

David A. Plymyer retired as Anne Arundel County attorney in 2014 and also served for five years as an assistant state’s attorney for Anne Arundel County. His email is dplymyer@comcast.net; Twitter: @dplymyer.

[Published as an op-ed by The Baltimore Sun on October 12, 2018 but not posted to my blog until January 31, 2019. The date of posting that appears above was backdated to put all posts the order in which they were written.]

Gov. Hogan, where are state regulatory agencies when the citizens of Baltimore County need them?

According to the polls, Maryland Governor Larry Hogan is very popular in Baltimore County. Surely, that popularity is not based on the recent failures by two state agencies under his control to fulfill their regulatory responsibilities over actions taken by the Baltimore County government. The performances of the state agencies in these matters have been disgraceful.

I will begin with “Treegate.” By now, the facts of that travesty are well known to the citizens of Baltimore County. What appears to be the final chapter in the matter, written by the Maryland Department of Natural Resources (DNR), is as disappointing as the rest of the story.

The second matter is less well-known, but of much greater long-term consequence. It involves the adequacy of public wastewater facilities in the “Jones Falls Sewershed.” Wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville, collecting sewage that flows through the City of Baltimore to the Back River Wastewater Treatment Plant.

Serious questions have arisen as to whether the Baltimore County Department of Public Works (DPW) has been forthcoming about the adequacy of those facilities to manage the planned development in that area of the county without continuing or even increasing the sewage overflows that have occurred for decades in the city and county. To date, the Maryland Department of the Environment (MDE) has been unhelpful in getting answers to those questions.

DNR’s sham investigation into “Treegate”

On November 14, 2017, I filed a complaint with DNR requesting that it exercise its authority under the state’s Forest Conservation Act (FCA) to investigate whether actions taken by Baltimore County during “Treegate” violated state or county forest conservation law. Treegate took place on April 1, 2017.

On that date, acting on orders from Baltimore County Administrative Officer Fred Homan, a county contractor removed 30 trees, including six specimen trees, from the future site of the Towson Station development. Mr. Homan stated that the trees were cut down to facilitate the sale of the property from the county to a private developer who had a contract with the county to buy the property. The removal of the trees defied a resolution passed by the County Council conditioning development of the site on the retention of the trees and relieved the private developer from what undoubtedly would have been a futile attempt to justify the removal of the trees under the FCA.

After a seven-month “investigation,” DNR Secretary Mark Belton informed me that his agency was persuaded by the county’s argument that removal of the trees was justified because it was done as part of a county “capital improvement project.” Describing the removal of trees from a site to prepare it for sale to a third party as a capital project is utter and complete nonsense, and DNR knows it.

Under limited circumstances, the county may remove trees from the site of a capital improvement project (aka a capital project) without submitting a full Forest Conservation Plan. A capital project is defined by the Baltimore County Charter as “any physical public betterment or improvement and the acquisition of property of a permanent nature for public use.” [Emphasis added.]

The capital project exception is intended to allow the removal of trees from county property if necessary to do so to construct some type of county building or other permanent improvement on the property. The removal of trees to prepare it for sale, and especially for private use, is not a capital project.

The facts are not in dispute: The county cut down the trees to help the contract purchaser evade restrictions on the removal of trees that would have applied when the purchaser developed the property for private use. That is not a county “capital project” under anyone’s definition.

Also, the county did not pay for the removal of trees using money from its capital budget. It used money from its operating budget appropriated for routine park maintenance, such as lawn mowing. Using money appropriated for routine maintenance to prepare a site for private development by cutting down trees was of doubtful legality in and of itself.

Moreover, even if trees must be removed as part of a county capital project, county forest conservation law requires the agency in charge of the capital project to submit a “project plan” describing the proposed tree removal to the county Department of Environmental Protection and Sustainability for approval. No project plan was submitted or approved for “Treegate.”

Secretary Belton informed me of DNR’s decision by letter dated June 19, 2018. Last month, Larry Fogelson obtained a copy of DNR’s investigation through a Public Information Act request. The sum total of the investigation was a single two-page letter from an Assistant County Attorney explaining that the purpose of the alleged capital project was to make the property “more attractive” to a private developer.

A seven-month “investigation” and that is the best that DNR could do? DNR’s actions in this matter were shameful.

Thirty trees may not seem like a lot of trees. Degradation of the environment generally occurs incrementally, however, through the accumulation of many “minor” violations. Competent regulators are aware of that and strive to enforce regulations uniformly and consistently. That certainly was not done in the case of Treegate.

MDE’s “oops”

Baltimore County’s dubious management of public wastewater facilities within what is known as the “Jones Falls Sewershed” is a much more complicated story. The story is still evolving because it has been extraordinarily difficult to get the relevant information out of the Baltimore County DPW.

What we do know is attributable to the persistence of a group of ordinary citizens led by Tom McCord. The information obtained by these citizens ultimately piqued the interest of MDE, which in turn called upon Baltimore County officials to answer some important questions.

The issues are too complex to describe in detail here, but there is a common thread throughout all of the questions: The apparent unreasonableness and inconsistency of the data used by DPW to project future demands on key sewerage infrastructure within the Jones Falls Sewershed, including the Lake Roland, Jones Falls and Towson Run interceptor sewers.

Mr. McCord and his group discovered that DPW used out-of-date population and land use data for purposes of preparing a report on the deficiencies in the sewerage infrastructure within the sewershed. The sewershed tracks the Jones Falls and the wastewater facilities in the sewershed collect sewage that is sent through the city to the Back River Wastewater Treatment Plant. Public wastewater facilities in the Jones Falls Sewershed serve development in parts of Towson, Lutherville, Timonium and Pikesville.

The report in question was required under the 2005 consent decree between the county and the United States Environmental Protection Agency (EPA) and MDE. The consent decree is intended to eliminate the sewage overflows that have polluted the Jones Falls for decades. The city agreed to a similar decree with the EPA in 2002.

Understating increases in sewage projected from increases in development and population density has the effect, in turn, of overstating the adequacy of downstream infrastructure to manage future sewage flows. A report that identifies deficiencies in and presents a plan for repair, replacement, or rehabilitation of that infrastructure is a mandatory component of the consent decree.

The information available to date also indicates that DPW may have used differing projections of future sewage flows – one for the consent decree report and the other to justify the construction of the Towson Run Relief Sewer. Mr. McCord and his group have raised legitimate questions as to whether DPW, which understated future sewage flows for purpose of the consent decree, used more current projections to justify construction of the Towson Run Relief Sewer. If so, was the inconsistency inadvertent or deliberate?

The Towson Run Relief Sewer was necessary to handle increased sewage from Towson Row and other planned development in Towson, including new construction at Towson University. DPW was under pressure to move forward with the Towson Run Relief Sewer. The relief sewer was an integral part of the “It’s Towson’s Time” vision of former county executive Kevin Kamenetz.

Mr. Kamenetz wanted to make Towson “a regional destination, even better than Bethesda, even better than Silver Spring.”  Such high-density development posed a challenge for DPW, already contending with failing wastewater infrastructure in the Jones Falls Sewershed.

MDE has a legal interest in enforcing the county’s compliance with the consent decree with EPA because it is a party to the decree. MDE also has regulatory responsibility for approving the triennial review of the county’s Water Supply and Sewerage Plan; the triennial review is MDE’s opportunity to ensure the adequacy of the county’s plan to manage its sewage system.

Mr. McCord and others, including members of Green Towson Alliance, met with MDE Secretary Ben Grumbles and members of his staff on May 25, 2018. Secretary 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 Mr. McCord and his group that also included DPW.

Secretary Grumbles was told that he could do so. The clear implication was that Secretary Grumbles wanted to use the follow-up meeting to satisfy himself and members of Mr. McCord’s group about the accuracy of the information that DPW had provided before approving the 2017 triennial review.

The subsequent meeting took place on August 23, 2017. Mr. McCord and his group learned at the meeting that MDE had already approved the county’s 2017 triennial review. They later were informed that Secretary Grumbles also was unaware until the meeting that his agency had approved the county’s triennial review. In other words, an “oops” by MDE.

The first 45-day extension of the time within which MDE had to act on the county’s triennial review under state law expired on August 13th. The follow-up meeting initially was scheduled for August 8th but was postponed until August 23rd at DPW’s request.

Did MDE get played by DPW? Was there a miscommunication within MDE? Or, perhaps someone in MDE did not want to go to the trouble of a second, “supplemental” 45-day extension. In any event, MDE’s immediate leverage over DPW was lost and the questions raised about the information provided by DPW remain unanswered almost two months later.

There is what looks like a pattern here, and it is the old regulatory slow-walk: Drag out an investigation or inquiry as long as possible before producing an unsatisfactory result in the hopes of outlasting the interest or energy of concerned citizens.

What’s next?

The moral of the above story is this: The citizens of Baltimore County are on their own when it comes to dealing with county agencies. Don’t expect the cavalry to arrive in the form of state regulatory agencies, even when the state agencies have clear regulatory responsibility for actions taken by county agencies.

Treegate may be in the past, but the problems with the adequacy of public wastewater facilities in the Jones Falls Sewershed are not. The stakes for county finances, land development and the environment are extremely high.

Sewerage infrastructure is, like a chain, only as strong as its weakest link. For example, the Towson Run Relief Sewer may prevent overflows in Towson only to send sewage downstream to overflow elsewhere in the county or city; Lake Roland is a likely destination. The massive new development in Towson should not proceed until the entire system is adequate. At this point, it seems clear that citizens jaded by their experiences with the county are not going to be satisfied unless that determination of adequacy is made by a creditable independent expert.

Among the first orders of business for the next county executive should be an open and transparent review of the adequacy of public wastewater facilities in the Jones Falls Sewershed. He can do that by ordering his planners and public works officials to make all relevant documents available to the public, and then scheduling one or more public hearings at which his planners and public works officials testify and answer questions in a comprehensive, forthcoming manner. What a refreshing change that would be in Baltimore County.

– David A. Plymyer

David A. Plymyer retired as the County Attorney for Anne Arundel County in 2014. He also served five years as an Assistant State’s Attorney for Anne Arundel County. He now writes on matters of law and local government from his home in Catonsville, Maryland. His email address is dplymyer@comcast.net, and his website is at https://davidplymyer.com/.

[Published as an op-ed by The Baltimore Post on October 9, 2018 but not posted to my blog until November 9, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Baltimore County police and prosecutors need to respond to rape cover-up allegations.


Unlike UMBC, the county is reacting with stony silence to claims in a lawsuit by sexual assault victims that are too serious to ignore OP-ED

 There are shocking allegations in the federal class-action lawsuit filed last month by two former students at the University of Maryland Baltimore County.

They include charges that the women were discouraged from – and, in one case, threatened with arrest for – going to the police and pursuing criminal complaints against men who sexually assaulted them.

The former students, Anna Borkowski and Katelyn Frank, describe in detail a pattern of failing to properly investigate and prosecute complaints of sexual assault – a pattern that extends both to UMBC and to Baltimore County police and prosecutors.

But the contrast in the defendants’ reactions after the story broke is striking.

UMBC president Freeman A. Hrabowski III met with students, accepted responsibility for the school’s inadequate response to the problem of sexual assaults and promised an outside investigation and reform.

“No comment,” meanwhile, was the response by Baltimore County Chief of Police Terrence B. Sheridan and State’s Attorney Scott D. Shellenberger.

Yes, the events described in the lawsuit and recounted below remain mere allegations until proved.

But please don’t give me the line that you can’t discuss the matter while it is litigation. You can, despite what some county lawyer may be telling you. (I know – I am one.)

The truth will come out in the lawsuit, but it is important that county residents hear the answer now, not a year or more from now.

History of Problems

One reason these officials should speak up about the most troubling claims in the lawsuit: Baltimore County’s poor track record on this issue gives citizens reason to believe them.

A scathing 2016 story in BuzzFeed documented an astoundingly high number of rape complaints classified as “unfounded” by county police.  That story led to a review by a panel consisting of a retired circuit court judge and the director of the Maryland Coalition Against Sexual Assault.

Its recommendations were implemented, Baltimore County Executive Don Mohler recently said, responding to the class action suit. But the disturbing events that Borkowski described in the complaint took place on and after October 20, 2017 – well after these reforms were supposedly put in place.

The chronology, despite Mohler’s assurances, suggests Baltimore County still does not take accusations of sexual assault seriously.

Borkowski’s Allegations

Borkowski claims that she and an unnamed classmate were raped in the classmate’s Towson apartment on October 20, 2017 by three UMBC students, all members of the school’s baseball team.

The two women were encouraged by the men to drink from a bottle of vodka. She said the men pretended to drink but did not.

Borkowski believes that a drug had been added to the vodka. She says she became incapacitated, blacked out, and had only fragmentary memories of being gang-raped by the three men and of watching the men rape her classmate while her classmate was at various times unconscious or semi-conscious and asking them to stop.

Borkowski awoke later on the day of the incident and reported to police that she had been raped. She was taken to the Greater Baltimore Medical Center.

A sexual assault forensic exam (SAFE) confirmed that she had suffered “vaginal tearing,” an injury “consistent with sexual assault.” The Baltimore County Police Department was responsible for investigating the alleged rape. It did what can only be described as a cursory investigation.

Lame Response

According to the complaint, the apartment was never visited by police, much less searched.

Evidence including blood-stained bed clothing and the vodka bottle was never collected and analyzed, despite the fact that the men allegedly admitted to police that they poured the remaining contents of the bottle over the apartment balcony.

No analysis of the sexual assault evidence kit collected at the hospital was done, according to the complaint. And then there’s this:

The complaint says the three men accused by Borkowski were interviewed together by detectives at a Chick-fil-A.

The men allegedly admitted to having sex with the two severely intoxicated women. They described it as consensual and told the detectives that they did not understand what the issue was, the lawsuit says. The case was closed by the police and no charges were filed.

I don’t expect Sheridan to publicly defend the entirety of what appears to be a shoddy investigation. There is one question that he can answer, however, that could tell us all that we need to know about the seriousness with which his department took Borkowski’s accusations: 

  • Chief Sheridan, did your detectives interview the suspects together at Chick-fil-A? If so, explain to the public how interviewing gang-rape suspects in a group at a fast-food restaurant is consistent with sound investigatory practices.

I can tell you, as a prosecutor, it is not.

 Dismissing the Charges

Even more disturbing are the events described in the lawsuit that occurred after the state decided not to proceed with criminal charges against the three alleged attackers.

Borkowski decided to pursue the matter on her own by applying to court commissioner John Robey for a statement of charges.

Instead of making his own determination of probable cause, Robey contacted a detective and a prosecutor involved in the case. Instructed by them, Robey refused to issue charges, according to the complaint.

Undeterred, Borkowski tried again before a different commissioner, Colleen Ellingson.

Ellingson made her own determination of probable cause and charged the three men with crimes including first degree rape.

When he found out about the statements of charges, Baltimore County State’s Attorney Scott Shellenberger ordered police not to serve the summonses on the defendants, the lawsuit says. Assistant State’s Attorney Lisa Dever had the charges dismissed.

County police then opened an investigation into Borkowski.

Threatening the Accuser

Dever obtained a grand jury subpoena seeking the affidavit that Borkowski submitted to Robey describing the alleged rape.

Shellenberger and Dever allegedly then told detectives “to tell Ms. Borkowski that she has to stop bringing these additional charges or they will file criminal abuse of process charges against her.”

In my opinion, this was a hollow threat. For one thing, there is no crime of “abuse of process.”

The grand jury subpoena suggests that police and prosecutors were searching for inconsistencies in the affidavits submitted by Borkowski to the two different court commissioners. In other words, they were investigating Borkowski for perjury.

The hollowness of his threat didn’t stop Shellenberger from allegedly sending three police officers to Borkowski’s home in Baltimore to deliver it.

Police and prosecutors expended more time and effort trying to get Borkowski to back off than they did investigating her complaint.

Again, I don’t expect Shellenberger to be willing to go into detail about the actions of his office. But there is one question that he can answer that could tell us all that we need to know about his attitude toward alleged victims of sexual assault: 

  • State’s Attorney Shellenberger, did you send two detectives accompanied by a uniformed officer to Ms. Borkowski’s home to warn her against bringing any more charges against her alleged attackers? If so, on what legal basis did you do that, and what did you tell the officers to say to her?

If the assistant attorney general representing you in the lawsuit advises you to not to answer this question, politely refuse the advice.

Explain to him that it is more important to assure citizens that their state’s attorney does not believe in harassing the alleged victims of sexual assault. Assuming, of course, that it is true.


I don’t mean to suggest in this analysis that UMBC students should rest assured the school will change its ways.  UMBC has its own history of mishandling of sexual assault reports, ineffective sexual assault prevention education and inadequate support for survivors, as UMBC doctoral student Aliya Webermann recently pointed out.

Webermann recounted her own frustration as an activist on the issue and cited a 2016 campus survey in which one in five students reported experiencing sexual assault.

Emotions ran high at a campus “listening session” held at UMBC after two women sued the school saying it mishandled their reported sexual assault and others.

Still, there is some cause for hope about progress in addressing sexual assault on the school’s campus.

Off campus, there is little reason amid the silence and absence of accountability to be optimistic that anything will change soon.
David A. Plymyer retired as Anne Arundel County Attorney in 2014 after 31 years in the County Office of Law. His work included defending police officers in civil cases and advising on police disciplinary matters. He also served as a prosecutor in the Anne Arundel County State’s Attorney Office.

[Published as guest commentary by the Baltimore Brew on October 5, 2018 but not posted to my blog until November 5, 2018.  The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Which is worse, a pathological liar like President Trump, or a calculating liar like Judge Kavanaugh?

President Donald Trump is a pathological liar. He lies compulsively with little or no regard for his credibility; many of his falsehoods are readily debunked. He lies about petty things as often as he lies about things of major importance. His lying is rooted in a deep-seated personality disorder. At the end of the day, you can’t believe a word that he says without verification.

Judge Brett Kavanaugh, on the other hand, is a calculating liar. Or at least he was during his testimony before the Senate Judiciary Committee hearing last week.

Judge Kavanaugh lied about the extent of his drinking during his prep school and college years. The evidence is now overwhelming that he frequently drank to excess, probably experienced blackouts, and was an obnoxious and belligerent drunk through at least his first two years in college.

Judge Kavanaugh lied about his drinking history for a reason. Admitting to the senators that he often drank to the point where his memory and judgment were impaired would have made his denial of the allegations by Dr. Christine Blasey Ford far less plausible, jeopardizing the confirmation of his nomination to the Supreme Court. He made a calculation that his best chance to be confirmed was to deny the extent of his drinking and hope not to be caught in the lie, or at least not be caught until after the committee and the full Senate voted to confirm him.

As a lawyer and judge, Judge Kavanaugh knew that people, including judges and juries, are much more likely to believe that a person did something “out of character” if they believe that the person was drunk. And people are much more likely to believe that someone was drunk at a given time and place once they learn that the person was a habitual heavy drinker.

Judge Kavanaugh’s scheme depended for its success on the process moving quickly; he certainly realized that denying his history of heavy drinking under oath on national television would bring witnesses out of the woodwork to contradict his testimony. The delay of the vote on his confirmation by the full Senate and the supplemental investigation by the FBI, which he clearly did not anticipate, threw a monkey wrench into his scheme.

Now, regardless of what senators believed happened between him and Dr. Ford 35 years ago, they are faced with the knowledge that Judge Kavanaugh lied under oath last week. It looks like that by lying about his drinking Judge Kavanaugh took a calculated risk and lost. Although nothing is for sure in these turbulent times, it is hard to believe that the Senate will vote to confirm him knowing that he lied through his teeth while testifying before the Judiciary Committee.

So, we had a compulsive liar nominate a calculating liar to be a justice on the United States Supreme Court.  As to my question, which is worse, a compulsive liar or a calculating liar, I really don’t know the answer.  It seems to me, however, with a compulsive liar as president we don’t need to place calculating liars on the Supreme Court.  It can’t be a good idea to make the federal government top heavy with liars.

With its plans for the “Hunt Valley Gateway Equine Park,” Baltimore County again puts the cart before the horse.

Baltimore County’s stealth plan for the so-called “Hunt Valley Gateway Equine Park” (HVGEP) hit the rocks last Wednesday at a meeting of the Baltimore County Recreation and Parks Board. I can’t think of a better fate for yet another Machiavellian scheme by the county.

The Rec Board heard testimony on a petition by the newly-formed Maryland Equine Resource Council (MERC). MERC wants to supplant the Maryland Agricultural Resource Council (MARC) as the recreation council responsible for equine-related activities at the Baltimore County Center Maryland Agriculture and Farm Park (Ag Center) in Cockeysville. MARC opposes MERC’s petition.

The county’s secret scheme included kicking MARC to the curb and standing up MERC as a compliant recreation council before the county unveiled its secret plan for the HVGEP. In my opinion, the county wanted MERC on its side as a cheerleader when it rolled out its ambitious plan, which the county knew would stir controversy. The proposed equestrian park consists of about 1,500 acres and includes the Ag Center, Oregon Ridge Park, and Shawan Downs, currently a privately-owed equestrian center.

The scheme unraveled when the ambitious and expensive HVGEP plan was discovered through a Public Information Act request by Keith Rosenstiel, a neighbor of the Ag Center, a few weeks before the Rec Board meeting. The plan made it apparent that it was the county’s intent that MERC run equine-related activities not only at the Ag Center but also at the entire HVEGP.

That intent lies hidden in the Articles of Incorporation of MERC, which refer to the purposes of the organization as implementing equine-related activities at the Ag Center “and other associated properties.” How clever. We now know that the “other associated properties” are Oregon Ridge Park and Shawan Downs.

Whose plan is it, anyway?

The county managed to keep the HVGEP plan secret for months by getting the Land Preservation Trust (LPT) to prepare it. LPT hired Populous, a Kansas City architectural firm, to draft the plan. LPT paid Populous with a $69,550 grant from the county. It appears that the plan was even kept secret from the county’s planning director, Andrea Van Arsdale.

On September 4th, I asked Ms. Van Arsdale for the status of the plan. Plans such as the Populous study may not be used to guide decisions on capital acquisitions and improvements to county parks until adopted as amendments to the county’s master plan. By email dated September 5th she told me the following:

“Populous prepared a master plan for its client, Land Preservation Trust. It is not an amendment to the Baltimore County Master Plan 2020 and as such, it has not been submitted to either the Planning Board or County Council.”

My interpretation of her statement: “It’s not the county’s plan, hon.” The following day, however, I heard from County Attorney Mike Field who clarified that the plan was prepared for the county as well as for LPT.

Mr. Field added that the county had not decided whether to adopt the Populous study. If the county did decide to adopt the HVGEP plan, it would have to be reviewed by the Planning Board and approved by the County Council as an amendment to the county’s master plan.

In fairness to Ms. Van Arsdale, she appeared to be unfamiliar with the HVGEP plan when I first contacted her. If it seems unusual to you that the chief of planning for the county would not be familiar with the status of the plans for a project with a price tag of $22.5 million, you need to be aware of something: It is widely believed by supporters of MARC and others that equine-related planning for the county is done by County Administrative Officer Fred Homan himself.

Chris McCollum is the county employee who serves as executive director of the Ag Center. He also appears to be a member of the small circle of county employees involved in equine-related planning.

The county made a controversial and unsuccessful attempt to buy Shawan Dawns in 2016.  The documents indicate that the effort was led by Mr. Homan with the assistance of Mr. McCollum. In my opinion, it is odd that a lowly park superintendent, not Director of Recreation and Parks Barry Williams, worked on such a significant acquisition.

The scheme unravels.

If there was any doubt about the alliance between the county and MERC it was erased by corporate documents listing Mr. McCollum as a member of the board of directors of MERC. That would mean that, if the Rec Board approves MERC’s petition, Mr. McCollum would oversee the activities of a rec council of which he is a director. That would appear to be an obvious conflict of interest, not that such things seem to matter much in Baltimore County.

Mr. McCollum was a target of criticism at last Wednesday’s meeting. MARC members and volunteers accused him of antagonism toward MARC. Formed in 2003, MARC was instrumental in the 2006 acquisition of the former Mount Pleasant Farm, now the site of the Ag Center. Many of the programs at the Ag Center are run by MARC under its “recreation council” agreement with the county.

Jeffrey Budnitz, who describes himself as the founder of MERC, also took a negative approach toward MARC. He wrote a letter to county officials sharply critical of MARC. The letter accused MARC, among other things, of being “opposed to therapeutic equine” and disseminating information that was “either materially or intentional [sic] inaccurate.”

The attempt by the county to push aside MARC in favor of MERC lost steam when it became public knowledge that the county’s motive was to grease the skids for the heretofore secret plan to combine Shawan Downs with the Ag Center and Oregon Ridge to form a large equestrian center. The revelation of the HVGEP plan exposed the scheme for what it is: Just another attempt to insult, bully and marginalize a group of involved citizens willing to stand up to the county.

The Rec Board did not decide on MERC’s petition on Wednesday and gave no indication when it would do so. The Rec Board should deny or table the petition until the county’s grand design for the so-called “Hunt Valley Gateway Equine Park” is reviewed by the Planning Board and approved by the County Council – something that now appears unlikely to occur.

A better way.

Of course, there was a better way. If LPT had asked Populous to do so, Populous would have solicited input from stakeholders and members of the public on their vision for a possible equestrian park before drafting the plan. Why didn’t that happen? Because that has not been the county’s style. Time after time, the county has rolled out development and other proposals at the last minute, placing community members on the defensive, scrambling to respond. The tactic has worked in the past, but the worm now appears to be turning.

The irony is that the county’s addiction to secrecy and general Machiavellian behavior may have cost the county an opportunity to craft a generally-accepted plan to integrate the equine uses of the three parcels of land without ignoring the legitimate concerns of other stakeholders, including park users interested in non-equine activities and members of the surrounding communities. It is hard to imagine anything of the sort going forward in the near future in the climate of mistrust created by the county.

Md. needs one inspector general to oversee all agencies

​​​​​​​David A. Plymyer

Gov. Larry Hogan’s proposal that the General Assembly create the position of inspector general with jurisdiction over the state’s 24 local school systems does not go nearly far enough. The problems of fraud, waste and abuse in Maryland are not limited to school systems.

What happened with Dallas Dance in the Baltimore County school system could happen in any state agency because of the absence of an effective watchdog. If the governor wants to do something worthwhile about corruption, he should ask the General Assembly to put a constitutional amendment on the ballot in 2020 that would establish an independent Office of Inspector General with jurisdiction over all state agencies.

There is no inspector general with statewide jurisdiction in Maryland. Three state agencies, the Department of Public Safety and Correctional Services, the Department of Human Resources and the Department of Health, have inspector general offices. The latter two exist primarily to investigate welfare and Medicaid fraud, respectively.

According to the Association of Inspectors General, 12 states have inspector general offices with statewide jurisdiction. Another state, Florida, requires each state agency to have its own inspector general’s office, coordinated by a chief inspector general for the state.

Our neighbor to the north, Pennsylvania, fed up with corruption in state agencies, recently beefed up the powers of its inspector general. In 2017, its Inspector General’s Office was transformed into a law enforcement agency with the power to issue subpoenas and search warrants.

Governor Hogan’s proposal is a classic political half-measure. It is designed to give the appearance of doing something about a problem without rocking the boat or accomplishing much. It is reminiscent of the creation of the office of the Maryland State Prosecutor in 1976.

Shamed by a wave of federal indictments of state officials (including a governor and a former governor), the General Assembly decided that the state itself needed to do something about the rampant corruption. So, it did as little as possible.

The General Assembly did not give the state prosecutor the same power as a state’s attorney to issue subpoenas for records until 2008, or the same power to compel a witness to testify in court or before a grand jury in exchange for “derivative use immunity” until 2014. The state prosecutor once had a computer forensics laboratory to assist in the collection of evidence from computers and other digital devices, but that was eliminated in 2016 because of budgetary constraints.

The ambivalence of governors and the General Assembly toward the office continues to this day. The state prosecutor is authorized 13 employees. That’s 13 investigators, lawyers and support staff to investigate and prosecute corruption in every agency of state and local government in Maryland. In fairness to the office, it does its best with what it is given.

There is a measure on November’s ballot asking city voters to approve an independent inspector general’s office for the City of Baltimore. The governor’s insurance commissioner, friend and Republican candidate for Baltimore County Executive, Al Redmer Jr., has proposed the same thing for Baltimore County. I know that you won’t want to emulate the city, governor, so perhaps you could follow your friend’s excellent idea.

The structure of Maryland state government makes it especially vulnerable to corruption. There’s a myriad of independent state agencies, such as sheriffs’ and state’s attorney’s offices, that operate with almost no oversight.

Agencies within the executive branch are also susceptible to corruption, particularly in the area of procurement. Last year, a former head of the Department of Information Technology was indicted by a federal grand jury on bribery charges involving state IT contracts while she was with another state agency.

The departments of Transportation and Information Technology alone award contracts worth hundreds of millions of dollars each year for the purchase of goods and services. Neither the Department of Transportation nor the Department of Information Technology has inspector general offices.

Earlier this year, Sun columnist Dan Rodricks ruefully observed that “Maryland has one of the richest histories of political corruption in the country.” And the headline of a Sun story written after former State Sen. Nathaniel Oaks pled guilty to federal bribery charges in March posed the question: “Is enough being done to stop corruption?”

The answer clearly is No.

Why does one of the richest states in the country also have “one of the richest histories of political corruption?” Because the governor and the sclerotic leadership of the General Assembly have been unwilling to do anything about it.

David A. Plymyer retired as Anne Arundel County attorney in 2014 and also served for five years as an assistant state’s attorney for Anne Arundel County. His email is dplymyer@comcast.net; Twitter: @dplymyer.

[Published as an op-ed by The Baltimore Sun on September 14, 2018 but not posted to my blog until October 27, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]

Pick on someone else, Baltimore County.

The Maryland Agricultural Resource Council (MARC) is a group of farmers and other volunteers who have made exceptional contributions to the quality of life in Baltimore County. It is also the type of organization that the Baltimore County government finds easy to bully. Which is exactly what is happening, as MARC’s role at the Center for Maryland Agriculture and Farm Park in Cockeysville, commonly referred to as the Ag Center, is under attack by the county and its proxy.

MARC was formed in 2003 as the Baltimore County Agricultural Resource Center. It was instrumental in the county’s 2006 acquisition of the former Mount Pleasant Farm, now the site of the Ag Center.

Although the Ag Center is under the control of the Baltimore County Department of Recreation and Parks, many of its programs are run by MARC volunteers under a “Recreation Council” agreement with the county. The recent application of the Maryland Equine Resource Council (MERC) to form a new recreation council to run the equine-related programs at the Ag Center now run by MARC, is best described as a hostile takeover.

MERC is a brand-new organization, incorporated in July.  In my opinion, it is nothing more than a proxy for the county in the county’s effort to kick MARC to the curb and stand up a compliant recreation council to run equine-related activities not only at the Ag Center but also the 1,500 “Hunt Valley Gateway Equine Park” envisioned in a heretofore secret county plan.

This is a copy of my letter to the Baltimore County Recreation and Parks Board:

September 7, 2018

Charles Munzert, Chairman
Baltimore County Recreation and Parks Board
9831 Van Buren Lane
Cockeysville, Maryland 21030

RE: Petition for certification, Maryland Equine Resource Council, Inc. (MERC)

Dear Chairman Munzert:

I am writing to express to you and other members of the board my opposition as a resident of the county to the petition of the Maryland Equine Resource Council for certification as a recreational council for programs and activities at the Center for Maryland Agriculture and Farm Park (Ag Center) in Cockeysville. I ask that the petition be denied or, at the very least, that consideration of the petition be postponed indefinitely for the reasons described below.

I apologize for the length of this letter, but I believe that there are many facts relevant to your consideration. Most of those facts have been secreted from the public and possibly from this board. Some have come to light only recently. I will begin with a summary of the reasons for my opposition.


• Thanks to the diligence of Keith Rosenstiel in pursuing a request under the Maryland Public Information Act (MPIA), a plan describing the creation of the “Hunt Valley Gateway Equine Park” (HVGEP) was made public about two weeks ago. But for the actions of Mr. Rosenstiel, this secret plan would not have been disclosed to the public in time for the meeting on Sept 12th.

The area of HVGEP includes the privately-owned Shawan Downs, the Ag Center, and Oregon Ridge Park. Although the plan calls for general “programmatic connectivity” among the three parcels of land, the clear focus is on creating a 1,500-acre equestrian park. If the board has not seen the plan, here is the link to where it can be found.

• MERC is a brand-new organization, incorporated in July. In my opinion, it was formed with the encouragement of the county administration for a single purpose: To provide the county with a compliant recreation council as the county implements its plan to repurpose both the Ag Center and Oregon Ridge Park as part of a single equestrian park.

If the board has any doubt about the alliance between the county and MERC, check the list of the directors of MERC. Chris McCollum, the executive director of the Ag Center, is listed as a director. So, Mr. McCollum would oversee the operations of a rec council of which he is a member of the board? Maybe Mr. McCollum should consult the Ethics Commission about conflicts of interest.

You will note that MERC’s Articles of Incorporation refer to the purposes of the organization as implementing equine-related activities at the Ag Center “and other associated properties.” How clever. In my opinion, MERC and the county administration did not want to tip their hand about their grand designs for the “Hunt Valley Gateway Equine Park” until after MERC was certified. We now know, however, from the discovery of the secret plan that “those other associated properties” are Oregon Ridge Park and Shawan Downs.

• The petition for certification of MERC puts the cart before the horse, so to speak. There is no need for a recreation council to coordinate the equine-related activities at the proposed HVGEP until the plan for the HVGEP is adopted. I am informed by the County Attorney that no final decision has been made by the county on the plan and that the plan, completed in February, remains under “study.”

If the county does decide to adopt the plan, it will have to be reviewed by the Planned Board and approved by the County Council as an amendment to the county’s master plan before it can be implemented. MERC can renew its petition if and when the plan is approved.

• It is clear to anyone familiar with the history of antagonism between the county administration and the Maryland Agricultural Resource Council (MARC) over the past several years that there is a punitive component in this petition that is aimed at MARC. The hostility toward MARC is reflected in highly critical remarks made by Jeffrey Budnitz, who describes himself as the founding board member of MERC, about MARC. Does anyone believe that hostility would form the basis for a sound working relationship between MERC and MARC at the Ag Center?

The attacks on the Maryland Agricultural Resource Council (MARC) are unwarranted.

The implication of the petition is that the Maryland Agricultural Resource Council (MARC) is not a capable steward of equine-related programs and activities at the Ag Center. There is no evidence to support such a conclusion, and I believe that such insinuations are the product of the county administration’s general antipathy toward MARC.

I further believe that MARC has done nothing to deserve that antipathy other than raise legitimate questions about the use of the Ag Park. The effort to take equine-related activities away from its responsibilities looks a lot like payback to me.

The relationship between MARC and Chris McCollum, the county employee who is the Executive Director of the Ag Center, has become increasingly strained over the past several years. In December 2016, MARC’s reservations about the county’s plan to build the indoor equestrian arena now known as the Kevin Kamenetz Arena helped derail approval by the Maryland Board of Public Works of $2.3 million in state funding for the arena.

The county ended up paying the entire cost for arena, about $3 million. MARC was concerned about the utility of the 9,800 square foot arena, which is too small to host the shows and competitions upon which the horse industry in the county thrives. In fact, the 2008 Ag Center master plan calls for a 31,250 square foot arena.

In 2017, MARC members were among the many citizens who opposed the county’s plan to build a 7,950 square foot vehicle maintenance facility at the Ag Center. That plan was canceled under intense community pressure.

The relationship between the county and MARC reached the breaking point last month when the county, with little notice, fenced off a 17-acre field at the Ag Center that MARC volunteers have invested thousands of hours clearing and cultivating over the past decade. The county intends to turn the field into a horse pasture. The erection of the fence, which I would characterize as a spite fence, sent a clear message to MARC about the consequences of standing up to the current county administration.

Mr. Budnitz wrote a letter to county officials, including Mr. Williams, sharply critical of MARC. He accused MARC of disseminating information that was “either materially or intentional [sic] inaccurate.”

Mr. Budnitz also claimed that MARC is “not supportive of the therapy being delivered at the Maryland Agricultural Center location.” His reference was to the equine-assisted therapy that the Saratoga WarHorse Foundation uses to help veterans suffering from PTSD.

I do not know upon what facts, if any, Mr. Budnitz bases his accusation that MARC is not supportive of the work done by Saratoga Warhorse. In remarks reported by Mike Ruby in the County Crier, however, Mr. Budnitz suggested that MARC made it clear early-on that the therapeutic program was not wanted at the Ag Center, leaving a gap for MERC to fill. In a letter to Tom Whedbee, president of MARC, Budnitz claimed “MARC’s heart is not in therapeutic equine; therefore, it is difficult to be successful in something when the passion is not there.”

Who told Budnitz that MARC’s “heart” was not in equine-assisted therapy? That sounds like the absurd party line espoused by the county administration. Let’s set the record straight: MARC was absolutely correct in expressing reservations about the construction of an arena that appeared to be purpose-built for Saratoga WarHorse.

Because Mr. Budnitz’s criticisms of MARC appear to be based on MARC’s opposition to construction of the arena, I am going to digress a bit more and update the board on the status of Saratoga WarHorse. Saratoga WarHorse is in trouble. Using a poultry metaphor, I will first express my hope that the county’s obsession about attracting Saratoga WarHorse to Baltimore County does not become an object lesson about the folly of putting all of one’s eggs in one (undersized) basket.

The Saratoga WarHorse Foundation.

The Saratoga WarHorse Foundation, founded in 2011 and based in Saratoga Springs, New York, provides what it calls an “equine-assisted experience” to help veterans who suffer from PTSD. It offers programs in Saratoga Springs, Aiken, S.C. and now in Baltimore County.

The Kamenetz administration was intent on bringing the foundation to Baltimore County. I would describe it as an obsession. In May 2016, the county unsuccessfully attempted to purchase Shawan Downs from the Land Preservation Trust (LPT) for $3.5 million. Shawan Downs is a 238-acre private equestrian center not far from the Ag Center.

The terms of the deal proposed by the county, under which LPT would have continued to operate the center, were unusual. The proposal required LPT to make a $1 million donation to Saratoga WarHorse, which would run programs at the center.

In other words, $1 million of the $3.5 million purchase price to be paid by the county was nothing more than a pass-through. It would have been, in effect, a $1 million grant by the county to Saratoga WarHorse, an extraordinary amount by county standards. The county’s generous offer also included an annual grant to LPT of up to $125,000 and a promise to construct improvements such as a large horse barn and a 6,000 square-foot arena.

The county was undaunted in its pursuit of Saratoga WarHorse by the failure of its attempt to purchase Shawan Downs. Later in 2016, the county decided to build an arena suitable for Saratoga WarHorse at the Ag Center. As described above, the county was willing to fund the entire cost of the arena when the Board of Public Works declined to approve any state funding.

The Kamenetz Arena sat mostly idle for a year after it was built. It is big enough, however, for at least one user: Saratoga WarHorse needs less space than equestrian events because its therapeutic activities do not involve riding the horses.

In May 2018, the county entered into a memorandum of understanding (MOU) with Saratoga WarHorse for the use of Kamenetz Arena. Under the MOU, the county pays for the maintenance of the arena and for the care and feeding of the rotating herd of horses kept on the site. Saratoga WarHorse pays no rent.

. . . .

Saratoga WarHorse is facing a crisis. In July, co-founder Bob Nevins abruptly resigned, citing differences with the foundation’s board of directors. Nevins is a highly-decorated war hero and was the public face of and principal fundraiser for Saratoga WarHorse.

The foundation board had begun cutting costs to try to achieve a sustainable business model. Nevins complained that participation would “start dropping off when veterans stop coming because they’re not getting what their friends told them they could expect.” [“What’s going on with Saratoga WarHorse?”, Mid-Atlantic Horse, Sept 2018.]

Co-founder and principal trainer Melody Squier, who Nevins and others referred to as the “heart and soul” of the foundation’s program, preceded Nevins out the door. She was fired after refusing to accede to the board’s demand that she work as an independent contractor rather than an employee. [“Saratoga WarHorse Board Sues Founder,” Saratogian, August 7, 2018.]

Squier’s departure caused the cancellation of classes this summer at the foundation’s home location in Saratoga Springs. Squier’s termination was followed by the resignation of Program Coordinator Janelle Schmidt, another key employee.

The ongoing “transition” at the foundation is an especially nasty one. Saratoga WarHorse offices are on the same floor as the Saratoga County Chamber of Commerce. According to the Saratogian, Chamber Executive Vice President Denise Romeo said she saw Allison Cherkosly, the WarHorse executive director, dispose of Nevins’ plaques, gifts and “tons and tons of paperwork” in a dumpster behind the building before he could clean out his office. Ms. Romeo added: “My question to this day is, who does that?”

The board has sued Nevins for $1 million, alleging fundraising losses because of his failure to relinquish control of the foundation’s website. The damage to the fundraising capacity of the foundation done by the departure of its founders and the ugly publicity remains to be seen. The response by alumni and supporters of the program on social media to the unceremonious treatment of the widely-admired Nevins was intense.

. . . .

Suzanne Berger is listed on the Saratoga WarHorse website as the Equine Trainer for the foundation’s program at the Ag Center. Ms. Berger is the Deputy Director of the county’s Office of Human Resources.

Dr. Cherkosly informed me last month that Ms. Berger works for WarHorse as a volunteer. She also informed me that Gerald Brooks, a county police officer listed on the foundation’s website as the Veteran Program Facilitator at its Ag Center location, is under contract to the foundation but as of yet has submitted no invoices for his work.

Needless to say, a business model that depends on free labor provided by county employees is not sustainable. Less than two months after the upheaval at Saratoga WarHorse, it is too early to tell what is going to happen to the foundation’s programs in Sarasota Springs, Aiken, S.C., and Baltimore County.

We all hope that Saratoga WarHorse survives this crisis. If it doesn’t, we may wish that the county had heeded the warnings from MARC about building an undersized arena seemingly purpose-built for Saratoga Warhorse. In either case, it is wrong for the county to punish MARC for speaking up on behalf of the users of the Ag Center and the taxpayers.


I urge the board to deny the petition for certification submitted by MERC. If the plan for the so-called Hunt Valley Gateway Equine Park ever is approved, the idea of having a single recreation council for the equine-related activities at the three facilities can be revisited. In the meantime, there is absolutely no reason to certify another recreation council to do what MARC has proved perfectly capable of doing.

And I am going to add one more thing, even at the risk of offending some county officials. The matter before the board contains elements of two of the things that the past administration did best: Carry out the public’s business in secret and punish anyone who stood in its way. I hope that the board rises above the politics at work here and does the right thing for the Ag Center and the county.

Thank you for considering my comments.


David A. Plymyer



Baltimore County schools’ record purge more significant than public realizes

By: David A. Plymyer

I am not easily shocked by events that take place in Baltimore County. My jaw did drop ever so slightly, however, when I read in the Baltimore Post on August 10th that all financial disclosure statements filed by officials of the Baltimore County Public Schools (BCPS) for the years 1997 through 2013 were destroyed.

Although school policy requires the statements to be retained for only four years, there apparently had been no prior purge of the statements for the 21 years prior to initiation of the purge on April 27, 2018. Moreover, the policy does not preclude retention of the statements for longer than four years if there is a reason to do so – which there certainly was in April because of the pendency of the procurement audit to be done in the wake of the Dallas Dance scandal.

After she learned about the purge from the Post story, Baltimore County Board of Education (BOE) member Ann Miller moved that the BOE order a halt to any further destruction of financial disclosure statements. Her motion was passed and on August 24th an email was sent to all employees by Interim Superintendent Verletta White directing that destruction be stopped until further notice.

Why did the BCPS decide to do a massive purge in April? There are two possible explanations. One is bad, the other is worse. And I am not taking the word of BOE Chairman Edward Gilliss that there was “no nefarious purpose” for the destruction, as reported by the Baltimore Sun.

If the purge proved anything, it proved that BCPS should never have been left in charge of auditing its own operations in the aftermath of the Dallas Dance scandal. And, depending on how the purge came about, it could prove to be the end of the aspirations of Verletta White to become the permanent Superintendent of Schools.

Timing of the purge.

The purge was initiated one week after former Baltimore County School Superintendent Dallas Dance was sentenced to six months in prison for falsifying financial disclosure statements submitted to the school system. Dance failed to report outside income including money he began receiving in 2012 from SUPES Academy, a company that helped school districts train administrators. That same year Dance pushed through a contract between SUPES and the Baltimore County school system.

The purge started one month after the Sun reported that Robert Barrett, who was an executive officer in community and government relations for the school system official, had pleaded guilty to a felony charge after accepting bribes in 2013 from FBI undercover agents who posed as out-of-state businessmen looking for Barrett’s help in securing business with the school system. Court documents disclosed that the FBI began its investigation after it became aware of allegations that Barrett received a combined $22,500 in checks from two separate local businessmen in 2011 and 2012 for the same purpose.

Most importantly, the purge began while the BCPS was negotiating a $413,000 contract with an accounting firm to audit the procurement practices of the school system from January 1, 2012 to December 31, 2017. The audit was intended to address concerns that there were more contracts that Dance and school officials may have steered to educational technology and other companies with which they had outside business interests. The contract was approved by the BOE on May 22, 2018.

Who ordered the purge?

There is an important nuance having to do with school governance that was not addressed in news reports of the purge. Financial disclosure statements are administered by and filed with the Ethics Review Panel. The Ethics Review Panel is an instrumentality of the BOE itself and is not part of the BCPS hierarchy supervised by Interim Superintendent Verletta White.

The Ethics Review Panel has its own attorney for purposes of maintaining its independence from the school officials subject to its regulation. That attorney currently is Andrew Nussbaum of Nusbaum Law, LLC in Columbia.

According to the Sun, the financial disclosure statements were destroyed by the school system’s Office of Law, headed by BCPS General Counsel Margaret-Ann F. Howie. It was Howie who sent a letter to the BOE two weeks ago explaining the purge of the records. The Office of Law falls under the supervision of Interim Superintendent White. According to the organizational charts of the Ethics Review Panel and the Office of Law, the two entities share an administrative assistant, Kristin Crafton.

One of the many questions yet to be answered is why Howie rather than Nussbaum defended the purge. And why was the Office of Law even involved in the decision to destroy financial disclosure statements filed by BCPS officials? Did Nussbaum and the Ethics Review Panel approve the destruction of the financial disclosure forms?

And what about Interim Superintendent White? What did she know about the destruction and when did she know it? If she knew about the destruction and failed to stop it, then I would suggest to the BOE that it not waste its time resubmitting her name to the State Superintendent of Schools for approval as permanent Superintendent of Baltimore County Public Schools.

A simple mistake in judgment, or something else?

The importance of a financial disclosure statement lies in identifying potential conflicts of interests between a school official’s duties with the school system and his or her outside business interests. It is self-evident that, if the audit raises questions on why certain procurement decisions were made, it would be useful to know if the school system officials involved in the decisions had conflicts of interest based on outside employment with the companies to whom contracts were awarded. The best source of that information now is gone for the years prior to 2014.

Although the biggest loss was the destruction of financial disclosure statements from 2012 and 2013, years within the period covered by the audit, the loss of statements from several years prior to that is also problematic. You cannot assume for purposes of an audit or investigation that all financial disclosure statements are filled out accurately.

For example, if I am suspicious about a contract awarded in a particular year, I want to know about any outside employment of an official responsible for selecting the contractor in the years immediately preceding or following the award because of the possibility that there may have been an omission (deliberate or inadvertent) on his or her financial disclosure statement for the year in which the contract was awarded. The situation with the financial disclosure statements of Ryan Imbriale, described below, is a case in point.

In my opinion, common sense dictates that any scheduled or unscheduled purge of the financial disclosure statements should have been postponed until after completion of the procurement audit. Was the purge nothing more than a stupid mistake? Or did someone decide that dealing with the backlash from the purge was preferable to the consequences of having the information on the statements available to the auditors, the media, and the public?

In her letter to the board, BCBS general counsel Howie stated that her office began getting rid of documents because it was running out of space to house them all. She further explained that “the removal of these forms was accomplished within the bounds of the law and without any aim to shield any information from review.” The destruction of documents may have been within the bounds of the law, but it clearly was the wrong thing to do under the circumstances.

A history of problems with the accuracy of financial disclosure statements.

The accuracy of financial disclosure statements has been problematic for the school system. The problem was not limited to the statements submitted by Dance.

• Verletta White is the Interim Superintendent of Schools. She was cited by the Ethics Review Panel in January 2018 for failing to report the income that she received from the Educational and Research Institute (ERDI) over a four-year period beginning in 2013.

ERDI advises educational technology (“ed-tech”) vendors on doing business with school systems. White was the school system’s Chief Academic Officer at the time. The Ethics Review Panel determined that ERDI itself did not do business with the school system, and White was not prosecuted criminally for the violations.

• Ryan Imbriale is the Executive Director of Innovative Learning for the school system and was a central figure in implementing Students and Teachers Accessing Tomorrow (STAT). STAT was Dance’s signature program for providing laptop computers to all students at a cost that reached approximately $147.7 million by July 31, 2018.

In 2014, the school system contracted with the Center for Research and Reform in Education at the Johns Hopkins School of Education to do a five-year study of STAT. By December 2017 Hopkins had earned $711,330 under the contract, according to the Baltimore Sun.

An article on Imbriale in the Dundalk Patch posted on October 4, 2012 described the former Patapsco High School principal as an adjunct instructor at Johns Hopkins University. On his current LinkedIn page Imbriale describes himself as a member of the adjunct faculty of the Johns Hopkins University School of Education.

The Baltimore Post reported that Imbriale listed his employment with Johns Hopkins on his financial disclosure statement for 2013 (obtained by the Post before it was destroyed) but did not list it for 2014. On November 14, 2018, after the Sun reported that Dance was under investigation by the Maryland State Prosecutor, Imbriale filed an amended statement for 2015. On December 4, 2018, he filed an amended statement for 2016. Both amended statements listed his employment with Johns Hopkins.

According to the Post, Imbriale did not file an amended statement for 2014. Did Imbriale take a hiatus from teaching at Johns Hopkins in 2014, the year that the school system awarded a major contract to a unit of the School of Education, and then resume teaching the following year? At least according to the Post’s review of his financial disclosure statements as amended, that would appear to be the case.

The Post was unable to obtain copies of Imbriale’s original statements for 2015 and 2016 to see if he listed his employment with Johns Hopkins on the original statements or if he didn’t report it until he filed the amended statements. The school system explained that the software it used deleted the original statements when an amended statement was filed. According to the Post, Imbriale did not respond to its attempts to get copies of the original statements from him.

There must be an investigation to determine if Imbriale earned income as member of the adjunct faculty of the Johns Hopkins University School of Education in 2014 and, if so, why he allegedly failed to report it on his 2014 financial disclosure form. The investigation must include a determination, if possible, whether he reported his income from Johns Hopkins University on the initial financial disclosure statements that he filed for 2015 and 2016.

It was a serious error by BCPS officials to delete original statements just because amended statements were filed later, a point that Ethics Review Panel attorney Nussbaum clearly recognized in a statement to the Post. I will explain:

A financial disclosure statement is submitted under oath, and it is a violation of BCPS ethics rules to make a material misrepresentation on the statement. If prosecutors determine that a misrepresentation was done deliberately with the intent to hide an outside source of income (and therefore hide a potential conflict of interest), the official submitting the statement also may be prosecuted for the crime of perjury.

An amended statement filed years after submission of the original statement does not necessarily “fix” a violation caused by a misrepresentation on the original statement. Each situation must be evaluated according to its circumstances. Consequently, the action by the school system in discarding an original statement on the basis that an amended statement was filed was tantamount to destroying evidence of a possible ethics violation or even a crime.

And of course, there are even more questions. The Post was informed that, prior to 2016, financial disclosure statements were submitted on paper. How did a paper statement filed by Imbriale for 2015 get “deleted” by the software?

• John Mayo is the Chief Human Resources Officer for the school system and was formerly an assistant superintendent hired by Dance. In June of this year, the Post reported that it had learned from the Chicago-based reporter who investigated SUPES Academy that Mayo performed work for SUPES as a “master teacher” in 2013. As you recall, Dance went to jail in part because of his undisclosed relationship with SUPES.

According to the Post, Mayo did not list his employment with SUPES on his 2013 financial disclosure statement (also obtained before it was destroyed) or on subsequent statements. The allegation that Mayo earned income from employment with SUPES not reported on his financial disclosure statement also requires an investigation.

The audit.

In the aftermath of the story by the Baltimore Sun in September 2017 that Dance was under investigation by the State Prosecutor for his undisclosed relationship with SUPES, pressure began to build for an audit to make sure that procurement activities by the school system had not been compromised. White initially proposed an audit covering only 2016, the year before she became interim superintendent.

State legislators and a minority of the BOE called for an audit covering a longer period done under the supervision of the state rather than the school system. In a move that I believe was extraordinary ill-advised, the BOE majority pushed back, insisting that the school system control the audit. Former Baltimore County Executive Kevin Kamenetz supported the BOE majority, and the move to have an audit done by the state failed. The BOE ultimately agreed that the audit done by the accounting firm that it hired would cover the period from January 1, 2012 to December 31, 2017.

The resistance by the BOE to a fully independent audit raised suspicions that the BOE, or at least certain school officials, had something to hide. The purge of financial disclosure statements initiated in April of this year only heightens those suspicions.

The damage done.

The stewardship of the taxpayer’s money by the Baltimore County Board of Education and the employees of the Baltimore County Public Schools is a matter of extraordinary importance. There are many of us in the County trying to persuade the notoriously tax-adverse citizens of Baltimore County that they must be willing to pay more in taxes to maintain the quality of public schools in the county. Our job just got a lot harder.

Parents and taxpayers want assurance that all decisions made by school officials are done in the best interests of the students, and not influenced by the personal interests of educators and administrators. That certainly applies to the procurement of goods and services by the school system, especially as it affects the massive investment that the school system has made in educational technology since 2012, an investment that remains controversial.

The information that has trickled out of the BCPS over the past several years has stoked legitimate fears that school officials had their heads turned by honoraria, consulting fees, trips, lavish entertainment, and resume-padding honors and awards bestowed on them by vendors of goods and services and ed-tech trade organizations. The purge of the financial disclosure statements did nothing to allay those fears.

– David A. Plymyer

David A. Plymyer retired as the County Attorney for Anne Arundel County in 2014. He also served five years as an Assistant State’s Attorney for Anne Arundel County. He now writes on matters of law and local government from his home in Catonsville, Maryland. His email address is dplymyer@comcast.net, and his website is at https://davidplymyer.com/.

[Published as an op-ed by The Baltimore Post on September 4, 2018 but not posted to my blog until October 25, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]