Monthly Archives: June 2020

Adam Pagnucco, Marc Elrich, police

Elrich’s Police Union Contract

By Adam Pagnucco.

In a June 4 op-ed in the Washington Post and comments reported by WTOP, County Executive Marc Elrich has promised to reform the Montgomery County Police Department (MCPD). According to WTOP, Elrich said MCPD has “an institutional problem” that “starts top down.” He said that he will be submitting a contract to the county council “for reevaluating everything” about MCPD.

If Elrich does intend any serious reforms, he will have to deal with a powerful document that can be invoked in response to them: his own contract with the Fraternal Order of Police (FOP) Lodge 35. The FOP’s contract, which Elrich personally signed, gives the union and individual officers substantial authority to restrict the ability of the chief to run the department, keep employee information confidential, block access to personnel records and mandate the destruction of certain personnel and video records. The contract even obligates the county to help the FOP block answers to public information act requests for videos and data. Many of these kinds of provisions are not unique to Montgomery County. But as the executive who signs union contracts as well as a 12-year member and former chair of the county council’s Public Safety Committee, which oversees the police, Elrich is directly responsible for their implementation here.

Here are some of the provisions of Elrich’s 2019-20 contract with the FOP.

Under certain circumstances, the FOP can force the police chief to bargain over new or changed rules or directives.

Article 61 (Directives and Administrative Procedures) contains a set of procedures that constrain the police chief’s ability to implement new or changed rules or directives. When the chief seeks to implement a new rule or directive or change an existing one, he must notify the FOP. “The primary subject of any new, changed, or amended directives or rules covered by the article shall not include matters currently addressed in the collective bargaining agreement, or matters proposed by the County and rejected by the FOP at the most recent term negotiations, or matters, the primary subject of which, were taken to mediation by the FOP at the most recent term negotiations.”

The FOP may then demand to bargain the proposed rule or directive. If the chief does not agree, the matter goes to the county’s Permanent Umpire who decides if the rule or directive must be bargained. This provision limits the ability of the chief to run his department without the consent of an arbitrator. It could certainly be activated to counter any reform proposals opposed by the union.

If employees are arrested, they must disclose it to their supervisor. However, the disclosure “shall be considered confidential and shall only be shared on a need to know basis.”

Article 15 (Hours and Working Conditions) Section Y contains this language on what happens when an employee is arrested.

Employees shall immediately report, or as soon as practical, to their commander/director or bureau chief, any circumstance where the employee is arrested or becomes a defendant in any criminal proceeding that may result in incarceration, receives an incarcerable traffic citation as defined in the Maryland Transportation Article, has their driver’s license/privilege suspended, revoked, refused or canceled that affects their ability to operate a county vehicle, or is notified that they are the subject of a criminal investigation by any law enforcement agency. If the employee is served with a temporary protective order, temporary ex parte order, or other similar temporary order that impacts the employee’s ability to carry a weapon or to perform their assigned police duties or any permanent protective order, permanent ex parte order or other similar permanent order that impacts the employee’s ability to carry a weapon or to perform their assigned police duties, they shall report the matter (as outlined above) directly to their commander/director or bureau chief to be reviewed to determine if the matter impacts the employee’s ability to perform their assigned police duties. The employee shall provide the commander/director or bureau chief with the information (i.e. date/time/location of the alleged offense, case/docket/tracking number) required for the employer to obtain additional information. All information shall be considered confidential and shall only be shared on a need to know basis. It is recognized that all persons are presumed innocent until proven guilty.

In Maryland, criminal records are public documents accessible through the state’s judiciary website. This language prevents police supervisors from disclosing at least some information that is public record.

Management does not have an unfettered right to access personnel records.

Article 51 (Personnel Files) Section B gives an employee and their authorized representative access to the employee’s personnel file. Additionally, the following individuals can access the file only on a “need to know” basis: the employee’s supervisor, an appointing authority or designee, the county’s Human Resources Director or designee, the county attorney or designee, the Chief Administrative Officer or an Assistant Chief Administrative Officer, and members of a Recommendations Committee when an employee has applied for a position vacancy announcement.

“Need to know” is not further defined in the section other than for the county attorney, when it is defined as “when an employee is in litigation against the County, e.g., Merit System Protection Board, Worker’s Compensation, Disability, Retirement, etc.)” and members of a recommendations committee, when it is defined as “limited to performance evaluations, letters of commendation, awards and training documents for bargaining unit members assigned to Recommendations Committee.” Release of personnel records to anyone else is prohibited without the employee’s signed authorization.

Personnel files are destroyed five years after an employee leaves county employment.

Article 51 (Personnel Files) Section E states the following.

  1. Except as provided below, all records including medical and internal affairs files, pertaining to separated employees shall be destroyed five (5) years after separation, unless the files are the subject of pending litigation. In which case, these files will be destroyed at the conclusion of the litigation.
  2. The County may maintain records necessary to administer employee benefits programs, including health and retirement, a file containing the employee’s name, address, date of birth, social security number, dates of employment, job titles, union and merit status, salary and like information.
  3. Except as required by law, no information may be released from any file without the express written permission of the separated employee.

Section H adds these restrictions.

  1. To the extent not specifically preempted by State law, adverse information concerning an officer’s past performance shall not be admissible in any proceeding unless maintained in strict accordance with this article.
  2. Except as provided in paragraph 1 of this section, only information properly maintained in personnel files as established by this Article may be used in any other process, proceeding, or action.

Elrich’s signature on the FOP’s 2019-20 contract.

Mobile Vehicle System (MVS) recordings may not be used for performance evaluations.

Article 66 (Mobile Vehicle Systems) Section C.7 states, “No recording may be used for the purpose of performance evaluations.” Section C.6 states, “All recordings will be destroyed after 210 days, unless the recording is, or may reasonably become, evidence in any proceeding. A recording will be retained if the FOP provides notice to the Department within 210 days of its potential use in a hearing.”

Management may use MVS recordings for disciplinary purposes under certain circumstances including external complaints, pursuit, collision, uses of force, injury or when management has “reasonable basis to suspect that a recording would show an officer engaged in criminal wrongdoing or serious allegations of misconduct in violation of Department rules and regulations applicable to bargaining unit members.”

Body camera recordings “shall not be routinely reviewed for the express purpose of discovering acts of misconduct or instances of poor performance without cause.”

Article 72 (Body Worn Camera System) Section D.2 states:

BWCS recordings shall not be routinely reviewed for the express purpose of discovering acts of misconduct or instances of poor performance without cause. An employee’s supervisor may use BWCS recordings to address performance when cause exists. Any recording used must be reviewed with the subject employee prior to any documentation of performance. Any documented review will be included in the employee’s supervisory file. The employee shall have the opportunity to respond in writing to the document. The response shall be attached to the supervisor’s document. The employee and the employee’s representative shall be provided access to the referenced recording if requested. Performance evaluation shall not be the sole reason for the employer retaining a recording beyond the agreed upon term.

Section F.1 states, “All BWCS recordings will be destroyed after 210 days, unless the Department deems it necessary to retain the recording for a longer period of time.” Section F.2 states, “An employee may elect to save BWCS recordings for longer than 210 days if the recording was used to support a performance evaluation which resulted in a single category being rated as below requirements.”

Police instructors are prohibited from having sex with trainees. However, they cannot be disciplined for it.

Article 15 (Hours and Working Conditions) Section L prohibits instructors and field training officers (FTOs) from having sex with trainees whom they are instructing. If that happens, the instructors and FTOs are separated from the trainee’s class. However, if the instructor or FTO discloses the relationship to management, “managers and supervisors must maintain the disclosure in confidence” and “no disciplinary action or retaliation must occur as a result of the disclosure.” If the relationship is not disclosed but is otherwise discovered, the more senior officer is involuntarily transferred but “violation of this rule will not result in discipline.” Nothing in the contract prohibits the instructor or FTO from proceeding to train other trainees.

The contract obligates the county to help the FOP block answers to certain public information act requests.

The Maryland Public Information Act (MPIA) is mentioned in three different articles of the contract.

Article 65 pertains to Automatic Vehicle Locators (AVLs) and Portable Radio Locators (PRLs), which are described as “systems that allow the Department to identify the location of police vehicles and portable radios that are equipped with GPS tracking capabilities.” Sections D and E address what happens when MPIA requests are made for AVL and PRL records.

Section D. MPIA. The County agrees that it will deny all Maryland Public Information Act (MPIA) requests for stored AVL/PRL data on the movements and location of vehicles assigned to unit members until and unless a point is reached where court decisions establish that AVL/PRL data is public information subject to release under the MPIA. The County will defend its denials of MPIA requests for stored AVL/PRL data in the trial courts, and will continue to defend these denials in trial courts until and unless court decisions establish that AVL/PRL data is not confidential information. The County may, where appropriate, seek appellate review of court decisions ordering the release of AVL/PRL data, but is not required to do so. If the county chooses not to appeal, the employee shall have the right, as allowed by the Court, to continue the appeal at the employee’s own expense.

Section E. Summonses. The County agrees that it will seek court protection from any subpoena or summons seeking stored AVL/PRL data on the movements and location of vehicles assigned to unit members, except for subpoenas issued by a grand jury, or a State or federal prosecutor. The County will seek protection from subpoenas and summonses in the trial courts, until and unless a point is reached where court decisions establish that AVL/PRL data is not confidential information. The County may, where appropriate, seek appellate review of court decisions ordering the release of AVL/PRL data, but the county is not required to do so. If the county chooses not to appeal, the employee shall have the right, as allowed by the court, to continue the appeal at the employee’s own expense.

And so the contract directs the county to block the public’s access to these records in court.

The second article mentioning the MPIA is Article 66, which pertains to Mobile Vehicle Systems (MVS). Section 3.13 states:

All external requests for copies of recordings, including subpoenas and summonses, will be reviewed by the County Attorney’s Office. The County will notify the FOP of all such requests for MVS recordings/data involving unit members and solicit its opinion before determining whether the request will be granted or denied. If the County determines that a request cannot be denied under the MPIA, it will give the FOP an opportunity to file a reverse MPIA action and will not grant the original request until and unless a court orders that the recording/data be disclosed.

This language may violate state law, which allows for a maximum of 30 days to release information disclosable under the MPIA. Courts have been known to take more than 30 days to make findings in lawsuits.

The third article mentioning the MPIA is Article 72, which pertains to Body Worn Camera Systems (BWCS). Section E states:

  1. Release of BWCS video in absence of a specific request: The County will provide written notice to the FOP prior to the release of any BWCS recording to the public. In the event of an emergency or a bona fide public safety need the County may provide written notice after the release. This does not include release of recordings in connection with litigation, In events where there is no exigency, an employee captured in the recording may object to the use of the recording, in writing, to the Chief of Police (or designee) within two calendar days of receiving the notice of intent to release the recording as to any reason(s) why he or she does not wish the recording to be released. The Chief of Police (or designee) will consider any reason submitted by the employee before proceeding with the release.
  2. The release of recordings of an employee’s death or injury shall not occur absent compelling law enforcement related reasons to release the recording or in situations where the release of those recordings are required by law.
  3. The County shall ensure that all external requests for copies of recordings, including subpoenas and summonses, will be reviewed for compliance with applicable standards, including those imposed by law or by provisions of this Agreement. The County will maintain a log of all MPIA requests for BWCS video that it receives. The County will make this log, the underlying MPIA request, and the requested recording, available to the FOP for inspection. If the FOP objects to the release of any portion of the recording, it must promptly notify the County of its objection(s) and its intent to file a “reverse MPIA” action if the County decides to release the requested recording. The County will promptly notify the FOP of any decision to release the requested recording and the date and time of that release, unless the FOP first serves the County with a “reverse MPIA” action it has filed in a court of competent jurisdiction. The parties will make all reasonable efforts to provide each other with expeditious notice under this section given the relatively short time limits in the MPIA and its overall policy of providing the public with prompt access to public records without unnecessary delay.

In summary, the FOP’s contract requires the county to block public access to automatic vehicle locator and portable radio locator data in court and also requires it to facilitate the FOP’s opposing release of motor vehicle and body camera video in court.

If Elrich is serious about reform, he needs to review his own police union contract to see if its provisions are compatible with change. If he doesn’t, the county council will have to step in.

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MCPS

MCPS Survey Responses on Distance Learning

By Adam Pagnucco.

On May 27, the Maryland State Department of Education (MSDE) released a summary of responses from local school districts to its survey on distance learning. However, MSDE did not initially list the responses by school district. After Delegate Eric Luedtke (D-14) submitted a Maryland Public Information Act request to get the responses by district, MSDE published that data. Delegate Luedtke shared the responses with Seventh State. Below are the questions by MSDE and the responses submitted by Montgomery County Public Schools (MCPS) in early May.

Question: Are distance learning packets a part of your school system’s Continuity of Learning Plan?

Answer: Yes.

Q: In the past week, what percentage of eligible students received at least one distance learning packet?

A: I have data about distance learning packets but cannot answer this question exactly as it is written.

Q: If you answered the previous question “I cannot answer this question exactly as it is written” or need to provide additional information about students receiving distance learning packets, please explain.

A: To date, MCPS has produced 405,583 instructional packets from the digital files provided by the Curriculum Office. These multi-page, two-sided, stapled booklets are grade-specific and course-specific.

Distributed to schools:
March 13: 109,023

Distributed to meal distribution sites:
Total of 296,550
April 8: 47,250
April 17: 77,950
April 22: 77,950
April 29: 46,705
May 6: 46,705

Q: Is your school system collecting data on student engagement with distance learning packets?

A: Yes.

Q: How does your school system define student engagement with distance learning packets? (What “counts” as engagement?)

A: The weekly packets are designed for students to use in collaboration with the digital learning platform or for students to use in replacement of the digital learning platform. Students using the packets are expected to complete the assignments and tasks in the packets. Students who use the weekly paper packet should take a picture of one assignment page that best represents their work for the week and submit it to the teacher via email. Teachers keep the submitted packet assignments and use it to inform engagement levels as well as to inform the learning that is taking place.

Q: In the past week, what percentage of your students who received a distance learning packet have engaged with a distance learning packet? (For example, if 600 students received a distance learning packet, what percent of those 600 students engaged with a distance learning packet?)

A: I have data about engagement with distance learning packets but cannot answer this question exactly as it is written.

Q: If you answered the previous question “I cannot answer this question exactly as it is written” or need to provide additional information about students engaging with distance learning packets, please explain.

A: MCPS has just over 100 students engaging in only paper-packet activities. These students are working with their individual teachers on completion of work. MCPS is collecting engagement data from teachers in order to account for all students during distance learning. Teachers not only provide feedback through the use of the gradebook, but they also provide anecdotal data on individual students who are/are not engaging in remote learning.

Q: To your knowledge, what percentage of your students have access to the Internet, either at home or at a location suitable for accessing online learning activities? (Please answer this question to the best of your knowledge, even if your school system is not using online distance learning as part of its Continuity of Learning Plan.)

A: 93.75%.

Q: Is online distance learning part of your school system’s Continuity of Learning Plan?

A: Yes.

Q: Is your school system collecting data on students who sign on to online distance learning?

A: Yes.

Q: How has your school system defined “signed on” to online distance learning? (What “counts” as being signed on?)

A: MCPS is using three core digital systems as part of the online learning experience: Canvas, Google Apps, and Zoom. We are able to track logins across each of these systems over time.

Q: In the past week, what percentage of eligible students signed on to online distance learning?

A: 95% signed on at least once between April 25 and May 1.

Q: Is your school system collecting data on student engagement with online distance learning?

A: Yes.

Q: How has your school system defined/measured student engagement with online distance learning?

A: Engagement includes digital footprint data (logging in), completion of assignments, engaging in live sessions, and having interaction with the teacher. MCPS uses the digital footprint data to create an initial profile of the student’s online activity. We set a guideline of three logins per week per student, but recognize that some students may complete work in fewer, longer sessions, and the majority of students will engage in far more than three sessions per week. This data serves as a baseline indicator. From there, teachers provide anecdotal data and layer in additional engagement data that we cannot capture with the digital footprint data – paper packets, emails, phone calls, parent outreach, and effort. Together, this data is used to determine engagement for students.

Q: In the past week, what percentage of your students engaged with online distance learning?

A: I have data about engagement with online distance learning but cannot answer this question exactly as it is written.

Q: If you answered the previous question “I cannot answer this question exactly as it is written” or need to provide additional information about students engaging with online distance learning, please explain.

A: During the week of April 25th, more than 90% of students logged in to our digital systems more than 3 times. Teachers are in the process of updating comments about students’ engagement to provide the complete picture of activity for the first three weeks of marking period 4.

Q: Since your school system implemented its Continuity of Learning Plan, what percentage of students and/or families in your school system have not once been contacted, and/or contact has been attempted but failed? Contact may occur with either the student or family, and with a teacher, school staff member, school system administrator, or other educator.

A: <1%.

Q: Since your school system implemented its Continuity of Learning Plan, what percentage of students in your school system have not participated in distance learning in any form, meaning they have not received a distance learning packet, have not logged on to online distance learning, etc.? These students may have been contacted for other reasons.

A: Between 3% and 10% depending on criteria used.

Q: This survey asked about student participation in distance learning for your school system as a whole. Do you have this information by grade span (elementary, middle, and high)?

A: Yes.

Q: Please provide any additional information or comments about student contact and/or participation in distance learning.

A: About 3% of students have not engaged in distance learning of any kind or have not responded to emails, phone calls, or other outreach efforts. Some of these students were waiting on technology (which we are still centrally distributing or delivering to homes as requests come in). A small subset have indicated that due to illness, enrolling in community college courses, applying for early graduation, or opting out of distance learning, they will not be engaged in marking period four learning activities. As part of the engagement framework for marking period four, MCPS has set the minimum expected level of weekly log-ins to core digital platforms to greater than or equal to 3. While the majority of students are well above this minimum criteria, about 10% of students are not meeting this threshold. School academic and well-being support teams are charged with following up with these students in order to help improve quality and quantity of engagement in distance learning. MCPS has developed a comprehensive outreach plan that includes coordinated communication between counselors, school administrators, parent community coordinators, PPWs, and local law enforcement to connect with 670 students who have not yet engaged in any form of distance learning or replied to phone calls, emails, or other outreach efforts.

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Child Care

Will MoCo’s Child Care Grants Make a Difference?

By Adam Pagnucco.

Child care providers have been as hard hit as any other industry by the COVID-19 crisis and are struggling to survive. The county is considering a $10 million grant program to help providers make it through the crisis. Shaun Rose, President of Rock Spring Children’s Center in Bethesda, has a number of ideas for improving the county’s grant program so that it can have the maximum impact. Following is his testimony before the county council.

Dear Council President Katz,

I write to express my support for the ECEI Recovery Fund, but urge you to make several amendments to more efficiently use the funds to accomplish the goal of supporting child care programs that are attempting to reopen and/or stay open to provide care to the County’s families while facing severe challenges to economic viability.

For the past 15 years, I have been involved in child care and early childhood development as both a parent and then as the president of Rock Spring Children’s Center. Rock Spring is a nonprofit child care & preschool facility that attempts to meet the needs of the families and children in our community with spots for 176 infants through pre-k children. As a former representative of child care providers in both elected and appointed capacities, I have testified regularly about the critical need for more resources to better support parental needs for quality child care, to bolster & expand child care businesses, and to improve the wages of child care workers. As a former Chair of the County’s Commission on Child Care, I volunteered for over 6 years to advise the County on child care policy issues.

The situation is dire for child care programs in Montgomery County and across the nation. A recent survey by the Maryland Family Network found that, without significant governmental assistance, many child care programs in the State may close forever (https://www.marylandfamilynetwork.org/news/over-half-marylands-child-care-programs-mayclose-due-covid-19-pandemic). My center reopened on June 1 with an enrollment of less than 20% of normal. We are estimating we will lose an average of between $75,000 and $150,000 per month for the foreseeable future due to the low enrollment, increased costs, and possible future closures either because we have a suspected or confirmed COVID case or because of more general shut down restrictions. This only gives us a matter of only a few months to hang on with the hope that a combination of federal, state and county assistance before we will also have to close permanently.

While I strongly support the goal of the ECEI Recovery Fund, two changes could make it more impactful. First, the award amount for centers should be based on “licensed capacity” rather than number of “sites.” A single site program with a normal capacity to serve 200 children will likely be suffering twice the economic loss as a 5-site program with 20 kids at each site. The current formulation would grant only $75k to the 200 capacity child care program and $300k to the 100-capacity program with 5 sites. This seems inconsistent with the County’s public policy goals of trying to maintain as much child care capacity as possible.

Second, the current iteration of the ECEI Recovery Fund makes funds available to programs only for losses in April and May 2020, during the “Stay at Home Order.” Those programs that received some federal assistance through PPP or that laid off their staff had much lower losses over the past weeks than they will in the coming weeks as the County reopens and everyone needs to be back to work. The way it is currently structured, the ECEI Recovery Fund doesn’t help those programs that are currently trying to serve County families and doing so at considerable losses. Some programs may not even be able to attempt to reopen.

Therefore, the appropriation should be amended to include losses incurred in June, July, and August. Programs could be granted a maximum award amount after applying. The program would then submit evidence each month of their qualifying losses to be reimbursed up to the maximum of their award. This would cover those that are trying to continue to operate and give the fiscal support & incentive others may need to justify trying to reopen rather than giving up.

I thank you so much for your dedication to our County and to our families and for your consideration of my concerns. I hope that you will make the amendments I suggested and pass this appropriation.

Sincerely,

Shaun M. Rose
President, Rock Spring Children’s Center
Shaun@RockSpringCC.com

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COVID-19, Economy

Elrich Sets June 19 for Phase 2 Reopening

By Adam Pagnucco.

Montgomery County Executive Marc Elrich has announced that the county’s Phase 2 reopening will begin on Friday, June 19 at 5 PM. His press release appears below.

Montgomery County Executive Marc Elrich Announces Phase 2 Reopening Date
For Immediate Release: Monday, June 15, 2020

Montgomery County Executive Marc Elrich and County Health Officer Dr. Travis Gayles today announced the County has achieved its benchmarks and will officially enter Phase 2 of reopening on Friday, June 19 at 5 p.m.

The County plans to continue with an incremental reopening, based on public health data. Phase 2 allows additional businesses and activities to start and/or increase modified operations under specified guidelines. The guidelines include:

Retail – curbside and limited in-store; one patron per 200 sq. ft. of sales space;
Restaurants – outdoor/patio seating and limited indoor dining with requirements; up to 50 percent capacity maximum indoors if social distancing can be maintained;
Childcare – childcare programs can reopen with a maximum of 15 individuals per classroom;
Gyms – fitness centers, and other indoor physical activities; open with requirements; one patron per 200 sq. ft. of fitness space;
Houses of Worship – virtual, drive-in, and limited indoor and outdoor services with requirements – one congregant/family unit per 200 sq. ft. of service space;
Indoor and Outdoor Gatherings – limited to a maximum of 50 or one person/family unit per 200 sq. ft., whichever is lower
Salons/Barbers/Nails – all personal services allowed by appointment only; one patron per 200 sq. ft. of service delivery space;
Car Washes – open for internal and external cleaning with requirements;
Office Spaces and Multi-tenant Commercial Buildings – limited use for nonessential personnel with requirements; telework strongly encouraged where applicable;
Indoor and Outdoor pools (public and private) – open with capacity restrictions;
Outdoor Day Camps – expanded opening with requirements;
Outdoor Youth Sports – expanded for low-contact sports with requirements;
Parks & Playgrounds – parks open for personal fitness and fitness classes with requirements; playgrounds open with requirements; only low-contact sports allowed; and
Ride On Bus Service – expanded schedule; expanded routes.
Certain outdoor recreation activities and facilities are already permitted: golf courses, archery, shooting ranges, marinas, campgrounds, horseback riding facilities and tennis courts.

The following businesses and services will remain closed in Phase 2:

Concerts and theaters;
Senior centers;
Libraries; and
Recreation facilities.
Protective measures such as maintaining physical distancing, careful cleaning and disinfecting, and face coverings being worn by employees and customers, are just some of the measures being required of businesses that are in this second phase of recovery.

Activities allowed in this phase of reopening are based on metrics the County established with progress overall in decreasing daily numbers of new cases, increasing testing capacity, implementing a large-scale contact tracing effort with the State, decreasing hospitalizations and use of the emergency room by patients with COVID-19 related symptoms, and positive trends in the death rate and test positivity. The COVID-19 Data Dashboard can be viewed on the County’s website.

For the latest COVID-19 updates, visit the County’s COVID-19 website as well as the County’s data dashboard or follow Montgomery County on Facebook @MontgomeryCountyInfo and Twitter @MontgomeryCountyMD.

Put the “count” in Montgomery County! Be sure to complete the Census online, by phone, or by mail. It’s safe, confidential, easy, and important. #2020Census #EveryoneCountsMCMD

#

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2020 elections, Montgomery County, Prince George's

Ademiluyi and Pierre Beat Incumbent Judges in Democratic Primary

Most of the races in Montgomery and Prince George’s Counties are very sleepy this year. The judicial races have become a surprise exception. Though there are still votes that have yet to be counted, it looks like challengers upset a member of the incumbent judges slate in the Democratic primary for circuit court judge in both counties.

Maryland judicial races have an unusual process. After being appointed by the Governor, the incumbent judges must face the voters and any other candidates that decide to run. All candidates are placed on each party’s ballot. All of the candidates who place high enough on any party’s ballot continue on to the general election.

Though they lost the Democratic primary, the incumbents will also continue to the general because they still won one of the top four spots in the much lower turnout Republican primaries. In both Montgomery and Prince George’s, the challengers are African-American women and the incumbents are white men who were appointed by Republican Gov. Larry Hogan.

Ademiluyi Upsets Bereano in Prince George’s

In Prince George’s County, April Ademiluyi beat incumbent Judge Byron Bereano in the Democratic Primary for Judge of the Circuit Court. The daughter of African immigrants, Ademiluyi is a graduate of the University of Maryland, College Park and received her law degree from George Mason. According to currently available numbers, Ademiluyi won 105,725 votes to 87,017 for Bereano, the son of controversial lobbyist Bruce Bereano.

Bruce Bereano was convicted of campaign finance fraud in 1994–he got his employees to make campaign donations and then illegally reimburses them under the guise of lobbying expenses. Besides going to jail, he was disbarred and lost his license to practice law.

Neither stopped him from coming back as a highly influential lobbyist or from exerting influence on judicial nominations and elections.

As Josh Kurtz explained:

[Bereano asked] his friends to contribute to something called the Prince George’s Committee to Elect Sitting Judges. This is a campaign committee for five Circuit Court judges — four of whom were recently appointed by Gov. Lawrence J. Hogan Jr. (R) — seeking 15-year terms to the bench in the 2020 election. One of them happens to be his son, Judge Bryon Bereano, appointed first by Hogan to the District Court, then late last year, to the Circuit Court.

Stranger still, consider the identity of the man chairing the sitting judges’ election campaign in Prince George’s County: That would be Alexander Williams, the former federal judge and close Bruce Bereano ally who is surely Hogan’s favorite Democrat. Hogan has rescued Williams from retirement, appointing him to several key appointed posts. Those include his role as chairman of the Appellate Courts Judicial Nominating Commission.

Bruce Bereano has also been heavily involved in Anne Arundel judicial races.

Despite losing the Democratic primary, Byron Bereano will also appear on the general election ballot. He won a spot with just 4,970 votes — all that was needed in heavily Democratic county home to few Republicans. Bereano attended the University of Baltimore School of Law and formerly worked at Lerch, Early and Brewer.

Pierre Edges Out Fogleman in Montgomery

In Montgomery, challenger Marylin Pierre beat incumbent Christopher Fogleman. Pierre gained 79,673 votes to 77,976 for Fogleman who was appointed by Gov. Hogan. Pierre, a former army lieutenant and Howard law graduate, ran as a progressive alternative to the incumbent slate. Somerset Mayor Jeffrey Slavin was her sole endorsement from an elected official.

This was Pierre’s second attempt as an insurgent judicial candidate. In 2018, Pierre failed to win either party’s nomination. However, she nevertheless did quite respectably for someone not part of the incumbent slate in a contest that is below the radar of most voters.

Fogleman served for three years as a public defender in the 1980s. The American University law graduate also was appointed by former County Executive Ike Leggett to the county’s Juvenile Justice Commission. Fogleman served for ten years, including as the commission’s chair.

Like Bereano in Prince George’s, Fogleman will advance to the general election due to his success in the Republican primary in which he earned 14,085 votes compared to 6,893 for Pierre.

The outcomes in the two party primaries were strikingly reversed for the other incumbents. Incumbent African-American Judge Bibi Berry ran away as an easy first place in the Democratic primary with 106,128 votes — over 23,000 votes more than the second place candidate. But in the Republican primary, Berry came in fourth with 11,492 votes, which is roughly 3000 votes less than her white male running mates.

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Adam Pagnucco, Board of Education, turnout

Top Seventh State Stories, May 2020

By Adam Pagnucco.

These were the top stories on Seventh State in May ranked by page views.

1. Miscreants Run Wild at Elrich Press Conference
2. MoCo is a Turnout Outlier
3. MoCo’s Nasty School Board Race, Part One
4. MoCo’s Nasty School Board Race, Part Two
5. MoCo’s Nasty School Board Race, Part Three
6. Who Signed the Anti-Austin Letter – and Who Did Not
7. How MoCo Can Balance Public Health and the Economy
8. Turnout Off to Slow Start
9. Campaign Finance Reports, School Board Primary
10. Elrich’s Hidden Tax Hike

For the most part, the leaders reflected the two big stories of the month: MoCo’s mud-splattered school board contest and the county’s low turnout in the primary. (It turns out that despite early data from the State Board of Elections, MoCo probably won’t be last in the state.) Also, the county deserves credit for posting a COVID-19 dashboard just two days after we called for one.

June promises to be another busy month. Thank you for reading Seventh State!

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Adam Pagnucco, turnout

Updated Turnout: MoCo is Low but not Last

By Adam Pagnucco.

In the days leading up to the primary election, turnout reports from the State Board of Elections consistently showed MoCo as last in the state. Updated numbers released this morning now show MoCo is one of the lower turnout jurisdictions in Maryland but no longer last.

The chart below shows the combined return rate of vote by mail ballots and absentee ballots. (Vote by mail ballots dominate this statistic as 3,485,891 of those were sent to voters while 99,718 absentee ballots were sent to voters statewide.) The state has so far not released turnout counts for election day votes.

MoCo now ranks 21 of 24 jurisdictions in turnout in these two categories. Baltimore City, despite huge problems with late ballots and counting in City Council District 1, ranks first. That’s a testament to city voters who decided Baltimore’s future in this election.

In terms of party splits, MoCo ranked 13th of 24 in Democratic turnout, 23rd of 24 in Republican turnout and 5th in unaffiliated/third party turnout among the 13 jurisdictions that received ballots from those voters.

MoCo was also one of the lower turnout jurisdictions in the 2016 primary as shown in the chart below.

In addition to turnout, another issue is how long it is taking to count ballots. At the moment, the county has received 227,383 in combined vote by mail and absentee ballots along with an indeterminate number of election day ballots. At the moment, 137,060 ballots for president have been counted and 124,764 ballots for at-large school board have been counted. That means the county board of elections has a ways to go before all ballots are counted. The board has scheduled canvasses through June 20.

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Montgomery County, Will Jawando

Jawando Ignored Public Information Act, Had Scant Evidence Before Filing Rent Control Bill

One may be the loneliest number, but apparently one documented claim of a rent increase was enough for Councilmember Will Jawando (D-At Large) to introduce rent control legislation that governs the entire county.

When he introduced his emergency rent control bill in response to the pandemic, I made repeated requests to Councilmember Jawando’s office for any evidence he had of rising rents that inspired him to file the bill.

I eventually received a public comment but not a scintilla of hard evidence, so I submitted a formal Maryland Public Information Act (MPIA) request on April 19 via his official email account: “Please consider this a request for any and all documents covered by the Public Information Act you have received related to rent increases during the pandemic. Thank you.”

Cecily Thorne, Jawando’s Chief of Staff, contacted me on April 21 after I wrote my initial post about the lack of evidence or logic “even from an amoral greed perspective” behind the rent control bill. She stated that “Councilmember Jawando asked me to forward some of the information we have been receiving from tenants related to rent increases” and included four redacted pieces of information.

Only one of these documents made a claim of a rent increase that was made both prior to the bill’s introduction and during the pandemic. (Another was notification given prior to the pandemic, while one involved late fees, not rent, and the last one was a somewhat complex situation sent after the bill’s introduction in any case.)

I spoke with Ms. Thorne shortly after receiving the information and told her directly of my MPIA request in the course of our discussion. Nonetheless, my request went completely ignored in violation of the law.

When I followed up on May 30 – after the mandatory 30-day disclosure deadline in state law had passed – Ms. Thorne remembered being made aware of a request (“You mentioned you made a request”), but also texted that “I have not seen one until now in writing” and “I did not receive a request formal from you” despite my having sent it to Councilmember Jawando’s official email and having mentioned it during our call.

The lack of response suggests that either (1) Councilmember Will Jawando’s office is highly disorganized, or (2) unaware of its legal responsibilities under the Public Information Act, or (3) willfully ignored the request in violation of the law. It could also be a combo platter.

Thanks to the efforts of Legislative Attorney Amanda Mihill, I received most, though not all, of the documents late last week. However, Jawando’s office excluded the unredacted copy of a previous document until I made mention that it was missing. Their response still excludes many documents attached to emails in violation of the law.

What’s Not in the Documents?

Despite Councilmember Jawando’s media claims, he had virtually no documentation that this was occurring before he decided to file the bill. Although Cecily Thorne stated that the emails she sent were only “some of the information,” the documents sent show otherwise. There was literally only the one claim mentioned above.

There are no copies of phone records listing people who called with complaints. Nor is there any evidence that the Councilmember’s staff contacted the landlord.

The only other evidence within the documents involves a few back and forth strategy emails with the Renters Alliance in which Councilmember Jawando says “as many examples as you can send will be helpful ahead of bill introduction.” The reply references only increases being seen in the same building as the sole complaint from a renter.

One case.

No wonder Councilmember Jawando was unresponsive to queries on this topic from not just myself but others despite the claims he made in the media.

Glass Bill Provides Meaningful Help

Fortunately, the Council took other action to address the larger problem, which is that many people who have lost their jobs, if only temporarily, cannot pay regardless of the level of rent.

The Council passed legislation introduced by Councilmember Evan Glass (D-At Large) that, among other provisions, appropriated an additional $2 million in rental assistance. This money helps people facing eviction directly. The county has also loosened the requirements to receive rental assistance in light of the ongoing crisis.

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Montgomery County, planning, Zoning

It’s the CIP, Stupid!

By Gus Bauman.

Finally! After many years of heated controversy, Montgomery County is about to squarely confront its use of land use moratoria as a part of its growth policy regulations. The County Planning Board, after much study for its regular update of the County’s Growth Policy, has crafted a proposal to largely eliminate land use moratoria in the County. The County Council will ultimately decide the terms and scope of the Growth Policy (titled in more recent years as the Subdivision Staging Policy.)

This correspondent is the former chairman of the Maryland-National Capital Park & Planning Commission and its MoCo Planning Board (appointed in ’89, reappointed in ’93). Let me offer some background and candid insight that may prove useful in the coming months as the proposal enters the political windstorm.

The MoCo Annual Growth Policy (the AGP; that was its name for many years) was created in 1986. Why? Because during the ‘80’s, the County was experiencing high growth. It had previously created an Adequate Public Facilities Ordinance (APFO), which was embedded in the Subdivision Ordinance to apply to all new subdivision proposals.

To manage the APFO, the AGP was later instituted as a timing mechanism to match school and transportation needs with corresponding infrastructure development. Buried in the AGP system was the moratorium nuclear bomb—if school or transportation capacity in any defined area of the County became overloaded, then no new subdivision could be approved in that area until the county’s capital budget (the Capital Improvements Program, or CIP) indicated that help was on the way through public improvements and/or private contributions to fix the identified public need.

The moratorium concept was always intended to be a rare, drastic action of last resort. It was never meant to be a routine tool in the planner’s toolbox. Indeed, the very idea of a moratorium is contrary to comprehensive planning, zoning, and budgeting—i.e., to responsible government. For adopting a moratorium is, by definition, an admission of governmental failure. Doing it on a normative basis should be downright embarrassing.

Land use moratoria were supposed to be as rare as snow in June—they were to delay development approvals for a brief time in order that public and sometimes private funds could then target as quickly as possible where the infrastructure need was and fix it. In fact, the very purpose of a looming moratorium was to immediately direct capital funds to the targeted area in order to avoid the moratorium bomb from exploding.

This system only worked, however, where there was both a high growth rate that continued to pay taxes and where infrastructure spending was duly targeted by the County government to any area about to be thrown into moratorium.

But those two preconditions began sliding away in the late 1990’s, and by the turn of the century, they were largely gone. Montgomery County’s growth rate has been in the basement for some 15 years now. Yet the moratorium mechanism, meant to be only an emergency measure in the AGP, never went away. Indeed, it became a favorite fixture of the no-growth crowd. And that crowd has always controlled certain votes in County government.

The rich irony here is that a moratorium is, in truth, all about fiscal and budgetary policy and not a growth or density matter. Whether density on some tract is to be low, medium, or high, whether growth in some area is to be slow, moderate, or rapid, is a land use dynamic regulated by the community master plan as well as the zoning placed on properties. But during the 1990’s, exclusionary forces in Montgomery County realized that use of moratoria could become a normal convenience to accomplish what they otherwise could not accomplish through planning, zoning, and environmental regulations.

Just starve the CIP of transportation spending on certain projects called for in County master plans, and SURPRISE!, the roads in an area are suddenly over capacity. Just redirect school capital funding projects away from certain developing and redeveloping areas, and SURPRISE!, schools in those areas become over capacity. The most extreme example of this practice was how prior County governments allowed the East County to be frozen for many years in moratorium while significant capital funding flowed west, north, and south.

Today’s County Council can see what moratoria have wrought over the past two decades. When an area is placed into moratorium, neither new taxes nor fees can be generated in that area, creating the perverse effect of killing off the very revenues needed to help solve the identified problem. The County Planning Board knows what moratoria have wrought. The practice telegraphs to the business community to avoid investing in Montgomery when so many other nearby options exist called DC, Frederick County, Prince George’s County, and the multiple jurisdictions in Northern Virginia.

Moratoria are all about erecting walls. The Montgomery County government should be knocking down walls. The County should be using its highly detailed master plans, its incredibly rigorous zoning, its adequate public facilities ordinance, its huge budget, as well as its growth policy, to channel public infrastructure improvements where they are needed.

It is telling that Montgomery County prides itself on having the toughest, most “sophisticated” planning, zoning, environmental, and transportation controls in the region as well as being blessed with a large tax base and corresponding budget, yet, simultaneously, it is the only regional jurisdiction that regularly applies that admission of governmental failure, the moratorium.

To paraphrase the famous presidential campaign slogan of the 1990’s, “It’s the CIP, stupid.”

Gus Bauman is an attorney who lives in Silver Spring. He served two terms as chair of the Montgomery County Planning Board.

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Adam Pagnucco, Board of Education

Harris, Dasgupta Hold on to Leads

By Adam Pagnucco.

Moments ago, the State Board of Elections updated its vote count of MoCo’s at-large school board race. Lynne Harris and Sunil Dasgupta have been in first and second place since the first counts were released and that has not changed.

At this point, 113,429 votes have been recorded in this race and 123,568 votes have been cast for president. Bethesda Beat reported last week that the county board of elections had received “more than 271,450 ballots” as of Thursday. That number has no doubt gone up since then. That probably means at most half the ballots in MoCo have been counted as of a week after the primary election.

In the District 4 race, incumbent Shebra Evans and Steve Solomon look like they will advance to the general election.

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