September 29, 2015 6:30 pm ET
Eagle editorial misses the mark on Government Center analysis
Source: Follow the Slithering Trail
Above: The BPW Board will decide the fate of the NPGC sale and subsequent development
Update: Dundalk United has been contacted by Del. Bob Long who stated the meeting regarding the NPGC has been changed form 10/21/2015 to Wednesday, 10/7/2015 at 10 am at the governor’s reception area in Annapolis. Details to follow.
As a journalist, I am appreciative when others in the field comment on my work—good, bad, or indifferent. This will be a time when I return the favor.
In Jonathan K. O’Neill’s editorial that appeared in the Dundalk Eagle on 9/24/2015, he failed to look in the one place that features the most telling information regarding the North Point Government Center controversy.
Simply put, Mr. O’Neill did not look under the rock where the snakes slither.
Yes, folks, under that rock you can find the answers to the entire mess of this county’s attempt to sell taxpayer land to a developer.
It is under that rock that Mr. O’Neill should (but doesn’t) see what drives the engine of the deal.
Deal can be a pretty ominous word, you know. Its mere utterance puts one right in the middle of a gangster movie, since it tends to imply corruption of some kind.
But I will digress on that.
I will break down the editorial by reviewing certain statements, followed by some compare and contrast of perception vs. reality. The facts will speak volumes.
Mr. O’Neill admits in his second paragraph, “And I may have completely missed the point.”
To that, I say, “not exactly.” The editorial covers every inch of what transpired during the process, so—to that—I say “job well done.”
However, the next statement from Mr. O’Neill needs some attention: “… regardless of the state officials’ ire, they had no authority to call the executive before the Board based solely on their displeasure.”
While I’m sure some of that statement by Mr. O’Neill may be true, the real reason rests at the feet of the county and its total lack of regard concerning the entire PUD process as outlined in the county code under Section § 32-4-242. APPLICATION. This is the law that must be followed by the county in the PUD process.
In addition to that issue, the one thing that Mr. O”Neill failed to mention was the deed as related to the NPGC property, which prohibits the sale of said property prior to approval by the BPW. In addition, the county council was notified in writing by Dundalk United on 12/2/13, requesting them to delay their vote on this matter until the deed issue could be resolved. They chose to ignore the facts presented to them regarding the deed. Bad decision.
I always harp on doing ones homework and now the county faces detention.
And there we have the opening to the rock under which the snakes live.
One example of this slithering behavior is the Baltimore County Board of Appeals, which heard the case on the merits of the PUD that were challenged by Dundalk United.
The Baltimore County Board of Appeals is covered under Sec. 601. Appointment; terms; compensation, as per the County Code. Basically, as per the charter, the following wording exists: “Each member of the county council shall have the right to nominate one person to serve on the board of appeals.”
In the major ruling by the current Board of Appeals, which upheld the Merritt Pavilion PUD, Judges Meryl W. Rosen and Jane M. Hanley were both appointed on 10/6/2014 under the terms of council members Vicki Almond and Wade Kach.
Both of those council members voted in favor of the NPGC PUD. Were any of the facts brought forth by Dundalk United impacted by the council members who appointed the judges who heard the appeal by those who opposed the sale? (That’s a tongue twister…)
The answer is, “Who knows?” What we do know is that the Baltimore County Ethics Commission, which was appointed by County Executive Kevin Kamenetz, has a less than stellar record—having filed only one complaint on its own initiative in the last 10 years.
With that said, let’s get to the other issue of the hearing before the Maryland Public School Construction Program, which reviews all government proposals that impact such issues as the NPGC. The program is headed by Dr. David Lever, who is the executive director.
The five-member panel allows both sides 10 minutes per person to speak. Many of the speakers were old hats at this; however, there was one major surprise when former County Executive Jim Smith spoke for Baltimore County.
It does appear on the surface, that allowing Mr. Smith to speak on behalf of county government when they had representatives present, seems a bit strange since his law firm represents the developer. That begs the question who’s in charge here, the developer or the county?
There is no evidence that Mr. Smith’s testimony influenced the panel’s decision to approve the sale of the NPGC, because they can only make a recommendation to the board of the DPW which has the final say. Remember the reason for the sale of our public land to a developer was to get the funds to air condition our schools and not lose millions in the process.
Check out this comment from the Director of Common Cause Maryland, which is a government watch group on ethics. Ms. Jenifer Bevan-Dengel said the following in an email message:
“It is a difficult situation certainly. Unfortunately our judicial ethics are not clear and strict enough to give a simple answer in this situation. Many judges rule on issues that are relevant or connected to the person who appointed them; many circuit court judges rule on issues or cases connected to the donors who supported them. We would certainly ask in this case that the Judge Bell speak directly on the matter. Often acknowledging the potential of a conflict and the judge stating how he or she has or will ensure they deliberate in an impartial manner is enough to ensure the judge is not letting the conflict interfere with their decisions unwittingly.”
If you are looking for a simpler quote, try this:
“Our judges must ensure a fair and impartial court. We call on any judge with a potential conflict to directly address it, either by stating how he or she will ensure impartiality or by recusing him or herself from the case.”
This was not the case in the various phases of the PUD process. It would take me too long just to explain the community’s role and how it was negated by the county.
Mr. O’Neil goes on to say, “I am not an expert in Board or Maryland constitutional law, but it seems to me that, should the Board act to kill a bill that in no way impinges on the state treasury, a very strong argument can be made that it is grossly exceeding its authority.”
True, it does not impinge on the state treasury but it does on the county funds and significantly so.
In my humble opinion, the money is not the issue. Rather, the issue is the law, which now may be given a new life since it was removed from under the rock of county government. In plain language, politics that the county used to stack the deck against Dundalk United may now be used to kill this deal that never meet the PUD process. That possible outcome is based solely on the fact the original deal was to use the money from the sale of this property to air condition our schools; instead, this actually wound up costing the taxpayers millions.
If you read § 32-4-242. APPLICATION carefully, you will see what I mean.
There is a similar case out of Harford County involving the board of education over leasing public property to a private concern, and here is a brief synopsis:
In an opinion dated November 22, 2005, the General Counsel for the Board (“Board Counsel”) concluded that the Board does not have such authority. A copy of that opinion, which describes the proposed transaction in greater detail, is attached. We have reviewed Board Counsel’s opinion and agree with his analysis and conclusion. In reaching the conclusion that the Board lacks authority to enter into the proposed lease, Board Counsel relied on Annotated Code of Maryland, Education Article (“ED”), §4-114, which states that a local board holds school property in trust for the benefit of the school system, and ED §4-115, which requires that surplus school property be transferred to the County government for disposition. In light of those statutes, Board Counsel reasoned, “the legality of the use of Board property for ninety-nine years by a for profit commercial entity is doubtful.” Board Counsel further concluded that the 99-year lease would not constitute an alternative financing mechanism authorized by ED §4-126.
(pdf OAG 33)
To put it in simple terms, unless the county can show a benefit to the school system by selling this property, the state says that is a no-no—plain and simple.
Then again, nothing is ever simple when dealing with those creatures that slither on the ground. Just when you think you’ve managed to eradicate them, they slither away, shed their skins, and come back for more.
The BPW Board will make their decision on October 21, 2015.