Bickerman Refuses to Answer Questions

At Tuesday’s Election Board meeting, Town of Chevy Chase Councilmember John Bickerman once again refused to answer public questions about his involvement in the stealth write-in campaign.

Some might consider it odd that he is unwilling to discuss his role publicly since he has proclaimed his commitment to transparency and defended the campaign vociferously. If it was an ethical legitimate campaign, why not be more forthcoming and own his actions?

Why Did Bickerman Not Alert the Public?

Now, more questions are being raised about whether Bickerman, along with new Mayor Al Lang, failed in their responsibilities to the Town because they did not notify residents of the inaccuracy of official Town election communications proclaiming that the election was uncontested.

Town Resident Ben Delancy wrote the following:

There was some confusion at Tuesday night’s meeting about responsibility for the Town Forecast election edition. In particular, as I understood him, Mr. Bickerman disclaimed any responsibility for the statement that the election was “uncontested,” stating that the Town Council is not involved in those communications.

The Town Code is very clear and provides otherwise. Section 8-4(a) of the Town Municipal Code requires the Election Board to send Town voters:

a notice of the election containing the name and a short biographical sketch of each candidate.

Code Section 8-2(b) describes the Council’s responsibilities as follows:

The election board shall work with and under the guidance of the town council, submitting for its prior approval the form of printed ballot it intends to use and the form and text of all notices or other communications it intends to forward to the citizens.

Mr. Bickerman’s statements, as I understood them, that the Council does not have any role in the election communications are clearly inconsistent with our municipal code.

It is also clear that the official Town communication about an uncontested election became incorrect several days before the election and that at least one member of the Council – Mr. Bickerman – was aware that it was incorrect. Rather than correct the misleading statement, as far as I know Mr. Bickerman apparently chose to remain silent. It is fair to ask whether silence was consistent with Maryland law.

At the meeting, I said that Maryland law imposes a duty on town governments to correct misleading statements relating to voting issues. According to the Maryland Court of Appeals, when a municipality is required to provide information about a matter subject to a popular vote, that information must not be misleading. In Blackwell v. City of Seat Pleasant, 93 Md. App 393, 617 A.2nd 1110 (Md. App. 1993), the court invalidated a town resolution because information published by the town misled voters into believing that there was no point in seeking to exercise their right to vote. It is entirely appropriate to ask whether our recent election could be invalidated on the same basis.

Finally, Mr. Bickerman also disagreed that the Town (or, in this case Mr. Bickerman himself, since he appears to be the Town official who was first aware of the issue) had any obligation to notify Town voters once it became obvious that the published information was incorrect. According to Article 6 of the Maryland Declaration of Rights, Mr. Bickerman, as a Town council member with legislative and executive powers regarding the Town, is a Trustee of the Public, and, as such is accountable for his conduct.

I sincerely hope that Mr. Bickerman is not suggesting that it is appropriate for a Town council member, either affirmatively or by omission, to mislead Town voters to whom they owe a duty of trust.

According to a report on Twitter, former Town and County Councilmember Scott Fosler also spoke at Tuesday’s Election Board meeting, and stated that he believed that councilmembers were responsible for correcting the public record.

Did Bickerman Have a Fiduciary Duty?

Black’s Law Dictionary gives a definition of fiduciary:

(as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee,in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. Thus, a person Is a fiduciary who is invested with rights and powers to be exercised for the benefit of another person. Svanoe v. Jurgens, 144 111.507, 33 N. E. 955; Stoll v. King, 8 How. Prac. (N. Y.) 299.As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence.

U.S. Legal defines lie by omission as:

an intentional failure to tell the truth in a situation requiring disclosure. An example could be a seller’s failure to note a known defect on a real estate disclosure form.

Bickerman is an attorney and a professional mediator who heads the two-person Bickerman Dispute Resolution firm and teaches dispute resolution at Cornell. Al Lang is the CEO of Coteva, Inc.

Squelching the Election Board?

Apparently, Bickerman also does not believe that the Election Board should make recommendations to the Council in the wake of the election. At the meeting, a report on Twitter (and the Town’s unofficial listserv) said that Bickerman “does not think that what the Election Board and Ethics Commission is doing is proper.”

Confusing to this reader as one moment he appears to say that elections should be up to the Election Board and that the Council should not be involved at all, and the next that the Election Board should not even make recommendations Even stranger as the Council requested directly that the Election Board make recommendations at its May 13 meeting.

After past elections, the Election Board has routinely made a report and recommendations to the Town Council.

Glib, yes. Consistent, not so much.

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Who Does He Think He’s Fooling?

So the Larry Hogan show has now gone on the road and the Gov is bragging about his support for Marriott while in Korea:

MarriottHogan

This shout-out is perhaps ill-timed as it comes on the heels of Hogan’s veto of the bill that would have equalized the taxes paid by hotels in Maryland with internet providers out of state selling the exact same rooms–Marriott International’s #1 ask this year.

Doesn’t sound like the Maryland travel industry really is over the veto just yet despite Hogan’s cheer leading from Asia:

Marriottresp

I hope Marriott is charging him rack rate.

Election Board Member Resigns after Pressure

Anthula Gross, one of the three members of the Town of Chevy Chase Election Board, has resigned. Apparently, she was subjected to very strong private pressure, including from a current sitting member of the Town Council. that went so far as to warn of personal legal liability, in the wake of the election (emphasis added):

Much to my dismay, at the close of the election on Tuesday, May 5, several supporters of the write-in candidate questioned our integrity and ability to provide a fair and accurate vote count, even though the responsibility for that count lay in the hands of the impartial League of Women Voters who had no ties to the Town. We were there to oversee them and certify the vote count which we did.

After we certified the vote count, we realized that we could not certify the election immediately because of the discrepancy in the requirement of the State mandated financial disclosure statement. There is an inherent conflict between the requirements and limitations placed on a declared candidate and those of a write-in candidate in the Town’s election procedures. The procedure for the ability of Town residents to vote for a write-in candidate predates the requirement of the State mandated financial disclosure statement and no adjustment to the Town Charter had been made. Therefore, we requested the Ethics Commission to clarify the situation and be the final arbiter.

In the interim, while the final decision was in the hands of the Ethics Commission, I did not appreciate calls and e-mails from Town residents urging immediate certification of the election, that we had exceeded our mandate, and that we were suppressing voters’ rights and trying to overturn an election. One present member of the Town Council also urged immediate certification and that we could be in violation of Federal Law (The Ku Klux Klan Act). It was not our intention to suppress anyone’s vote or to deny anyone of his First Amendment Right. We just needed clarification.

I was further disheartened at the first Town Council meeting following the election where more talk was raised of the possibility of legal liability on the part of Town volunteers, hardly an incentive to make one want to volunteer.

Despite Anthula Gross’ willingness to stay on the Board until it submitted its recommendations after the election, Mayor Lang accepted her resignation and moved to fill the vacancy.

Replacement Involved in Election Dispute?

Mayor Al Lang appointed Robert Charrow to fill the vacancy with the support of Councilmembers John Bickerman and Fred Cecere. Besides serving on the Council, Lang is also the CEO of Coteva, Inc. while Attorney John Bickerman is a professional mediator who heads the two-person Bickerman Dispute Resolution firm and teaches dispute resolution at Cornell. Fred Cecere is a retired physician.

Some are wondering if Charrow gave advice to Ed Albert’s stealth write-in campaign that led to Cecere’s election and Bickerman’s reelection during or after the election. Charrow was quoted on the Town’s unofficial listserv as stating “It’s none of your business” in response to question on the matter–an answer that seems unlikely to quell suspicions.

In short, there is now open speculation (at least on the Town listserv) that Lang with Bickerman and Cecere’s support has now appointed a lawyer who gave legal advice that helped result in our new Council and Mayor to the Town Election Board–an action described as reducing “confidence” in both institutions.

Hogan’s Big Decision

No, it’s not the Purple Line.

It’s about a much smaller tax bill that will speak volumes about the sort of Governor that Larry Hogan intends to be. Equally important, does the Governor want Marriott to stay in Maryland?

Marriott is the second largest corporation located in the State of Maryland. It has made a relatively small ask of the State that should be an easy lift for any pro-business governor, particularly one who has made recruiting new business and jobs the central theme of his administration.

Specifically, Marriott has asked the Governor’s support for a bill that would ensure that online travel companies pay the State the same in taxes as brick-and-mortar companies. Currently, when you buy a hotel from an online travel company like Expedia, you pay taxes and fees equal to what you would pay in taxes if you bought the same room directly from from the hotel.

Sounds good except that Expedia is only passing on the tax for the rate that it paid the hotel for the room–not the tax on the full rate you paid. Expedia pockets the difference, leaving the State poorer and Marriott at an unfair competitive disadvantage.

It’s not even clear that this is legal. A bill sponsored by Sen. Rich Madaleno (D-18) and passed by the General Assembly that would correct this problem currently sits on the Governor’s desk and awaits his signature.

Having the same taxation rates for people engaging in the same economic activity is the only way to ensure the fair competition that is vital to a healthy free market. But Grover Norquist has declared this a tax increase, making life difficult for anti-tax Republicans, like the Governor, who has made sensible past statements indicating that he doesn’t view it that way.

So the Governor has to make a choice. Does he want to continue down the pragmatic, center-right policy lane that he has followed so far? Or will he hew to the demands of national conservative ideologues?

Signing the bill is right economically because it creates a level playing field and prevents online companies from pocketing monies that they were never supposed to gain. It sends a clear direct signal from Maryland to Marriott that we want you here.

Politically, it sends a message that Hogan is going to continue his practical pro-business agenda. Unfettered by the demands of national conservative ideologues–who are a lot less popular than his steady movement toward cutting taxes and reining in the structural deficit–Hogan will continue to do confidently what he sees as best for the State. In short, he’ll stand up to anyone for Maryland.

Hogan’s decision will send a strong message not just to Marriott but to the State.

Costco Mailing on Wheaton Gas Station

Costco’s very strong desire to put a gas station near its Wheaton location against very strong neighborhood opposition has become one of the more epic land use battles in Montgomery County. Costco has now emailed its customers, including yours truly, as part of its advocacy for its position.

Costco

I must admit I was surprised that the “open immediately” envelope wasn’t the usual offer for a 20%  discount on a far too large quantity of something that I don’t need anyway.

Hogan’s Unforced Error

education

From Facebook

Since taking office, Gov. Larry Hogan has made a variety of small mistakes, such as the Jon Stewart bait of a press conference at the start of the Baltimore riots (“When the Mayor called me, which quite frankly, we were glad she finally did.”). Overall, however, he has avoided major unforced errors as he moved forward in shifting Maryland towards his priorities. Until now.

Yesterday, Gov. Hogan announced that he would withhold $68 million in funding allocated by the General Assembly for education. The money would have gone to fully funding the program that sends extra money to the school systems in the state that are the most expensive to operate. In policy argot, the program is known as the GCEI, or Geographic Cost of Education Index.

Education is Maryland’s brand–we have consistently had the best schools in the nation. Moreover, as a high income state, we are only going to continue to grow incomes and economically with an ever more highly educated and skilled workforce.

It’s an even bigger political mistake. Gov. Hogan has generally been successful in using his position to focus debates and draw lines of comparison between him and his opponents. This time, he drew the line in a way that benefits his opponents.

He may think that he just alienated the teachers’ unions and their Democratic supporters. But education is widely popular around the State and currently by far the best issue going for the Democrats. Instead of missing a chance to undercut them completely by releasing the funds, he handed them an issue.

Even if he had released just one-half of the funds, as widely expected earlier in the day, he would have totally undermined the Democrats. Though they still would have bitterly complained, the public would have discounted them heavily as he moved halfway. He also hurts himself with the General Assembly as he had repeatedly made noises about releasing the funds during the session.

This decision will go down particularly poorly in Montgomery County in which education is like religion. Though he didn’t carry it, Hogan made inroads into Montgomery in the County in 2014. His brand of avoiding social issues like abortion and gay rights but pursuing center-right economic policies positions him well to extend those gains in 2018.

But not if keeps handing the Democrats education as an issue.

 

Dishonorable Chevy Chase Election

signoutsidetownhall

Outside of the Town Hall

Democracy in Action?

Two incumbents, Pat Burda and John Bickerman, were on the ballot for the two open seats. No other candidates filed. Bickerman was reelected but Burda got defeated by a write-in candidate, Fred Cecere.

So far, this just looks like democracy in action. And indeed, surprise winner Fred Cecere promoted that view in his one public message on the town’s unofficial listserve since his election:

A week ago, I had no intention of being a candidate for Chevy Chase Town Council. When I was approached by a neighbor and asked if I would accept a write-in vote, I felt honored, but skeptical. I was overwhelmed and humbled by the many people who voted for me Tuesday.

Stealth Candidate

Except that this email does not reveal the depth of secrecy around his stealth candidacy. His supporters actively worked to keep the large majority of people from knowing that he was running as a write-in candidate. An odd approach for someone who has claimed since the election to value “transparency”–one that was labelled a “coup” and a “conspiracy” by various residents.

The level of secrecy behind Fred Cecere’s stealth campaign was only revealed when a town resident exposed publicly an email from Ed Albert:

Vote John Bickerman
Write in “Fred Cecere”

DO NOT vote for anyone else.

We have worked very hard to keep this among the right group. Pls only give those names to those you feel 100% certain are like minded. If you check with me first. I will let you know if they are already covered.

Please vote today for John Bickerman and write-in Fred Cecere. Together, we can TAKE BACK OUR TOWN!. Between 5-8 is ideal for the element of surprise, but anytime is better than no vote.

Ed Albert was one of the prime organizers behind the effort. People like Albert and others who think like him apparently believe that only “the right” people should vote. Rather than run an open campaign based on the issues, they chose to run a secret, stealth campaign. Turnout is very low in municipal contests, especially uncontested ones. The organizers of this stealth candidacy took advantage to get their man elected. As you can imagine, this trickery hasn’t gone down well with all residents.

Participation of John Bickerman and Al Lang?

Two councilmembers seemingly have close links to this rather un-neighborly campaign.

John Bickerman is a professional mediator who heads the two-person Bickerman Dispute Resolution firm and teaches dispute resolution at Cornell. His website says that he strives to provide “ethical dispute resolution.”

Nevertheless, Bickerman apparently was aware of the stealth write-in candidate and defended it at length publicly (see also this Washington Post article) even though his election statement touted his commitment to “transparent and open governance.” Despite this public commitment, Bickerman has refused to answer questions about his involvement except to write:

I am truly saddened by the turmoil and divisiveness that this election has brought to my Town. For the last 25 years, I have devoted my life to resolving conflict and helping parties avoid litigation. Since becoming a member of the Council, I have sought to find ways to find compromise and reduce conflict on the Council.

Except that his actions were anything but transparent–even after the election was over. It’s nice that he wants to “heal some of the open wounds” but it seems insincere not to mention unethical when he helped create them in the first place and did not answer public questions about his participation. More cynical than healing.

Councilmember Al Lang, not up for election, also appears to have been in on the game. Though he also refused to answer public questions on the town listserv about his participation, he handed in Fred Cecere’s financial disclosure form to the Chair of the Town Ethics Commission at the end of Election Day. Lang is tipped to become the Town’s mayor. He is also the CEO of Coteva, Inc.

Justification?

The major reasons given for the secret plot of a stealth candidate that I have read include (1) disagreement with Town government policy and that people who did (2) felt “disenfranchised.”

Disenfranchisement means denied the right to vote. No one in Chevy Chase has been disenfranchised. Even if one goes beyond to include the idea of representation, Fred Cecere’s supporters already had two representatives on the Council.

If they wanted to gain a third person on the Council, the democratic approach would be to nominate Fred Cecere–signatures from just five voters required. If Cecere’s supporters waited beyond the (very late) filing deadline, the same people who now vocally defend these tactics on the Town’s unofficial listserv could have argued for his write-in candidacy publicly.

The real reason for the secret campaign, of course, was that its supporters likely feared that they couldn’t win an open contest if the “wrong” people were given a say. Al Lang nearly lost last year and held his seat by 10 votes against a young, new candidate. As Bickerman originally won election by a similar margin, he might well have lost an open election.

Norms and Laws

There are many actions in this world that are legal but aren’t right. This unethical stealth campaign is a perfect example. It wasn’t respectful of their neighbors and fellow voters. In a normal democratic election, people know who the candidates are and make a choice–even if that choice is not to vote.

If anyone has a right to feel disenfranchised it’s the people who were treated badly by not being deemed the “right” sort. Cecere supporters chide people appalled by their tactics for not voting but kept their actions very secret in order to gull people who think differently from them into not voting.

Nevertheless, their actions in doing so may have been legal. Even though Maryland law requires write-ins to file for election for good reason, Chevy Chase does not. But it wasn’t ethical. It is yet another symptom of the decline of civility in our politics. If you feel disrespected by the current people in power, campaign openly for change.

The Real Legal Issue

The central legal issue was not the organization of the secret campaign but the failure to turn in financial disclosure forms by the required deadline. While some argued that the statute was vague or clearly did not apply to write-in candidates, others pointed out that all candidates were required to turn them in. Moreover, courts are loathe to overturn elections and rarely do it.

The one point where the plot itself becomes evidence is that the secrecy could well be deemed an effort to evade the State’s ethics laws (i.e. the financial disclosure requirement). Moreover, the secrecy would help overcome the usual burden in election law cases that one should have filed an action in court before the election if at all possible.

In the end, the Town Election Commission refused to certify the election until the question was examined by the Town Ethics Commission. The Ethics Commission broke down 2-1 in favor of seating Fred Cecere. From the account available on twitter, all three commissioners did their best to grapple seriously with the legal questions and gave valid reasons for their vote even if they disagreed as to the final outcome.

Legitimacy and Democracy

The winners may have gained a seat on the Council but they lost the legitimacy that comes with winning an open campaign. As Fred Cecere did not campaign on any issue positions, he can hardly claim a mandate from the Town for his agenda.

As a political science professor and former mayor of the Town, I know politics often isn’t fair. There is also a fair amount of rough and tumble, even if one might expect better in a small town that is really a neighborhood where people often know candidates and see their councilmembers regularly. But this also isn’t how I teach my students about how democratic elections should be–or a model for our kids more generally.

On Baltimore

As I write this, six police officers have just been charged in Freddie Grey’s murder and Baltimore remains under curfew in the wake of last Monday’s riots. Much commentary seems focused on assigning blame. In the post, I’d like to focus instead on the consequences and moving forward.

Addressing Police Conduct

The community desperately needs to hear more about models for better policing and to implement them. There have been major protests against police brutality and other vehement defenses of the police. But there is not nearly enough discussion of how to do it right.

I’d love to see discussion of places that have reduced complaints against the police even as they remain tough on crime. We want the police to fight crime in all neighborhoods. After all, the sharp drop in Baltimore’s murder rate means that hundreds of people–mainly African American–are walking around who would otherwise be dead.

But we also don’t want police treating everyone like a criminal. Even under the “broken windows” theory, the idea is to stop people who have committed minor crimes–not just for going about your business. Has any place figured out a better approach so that the police can do their tough job with fewer abuses and gain more confidence from the community?

Economic Damage

Last Monday’s riots have done long-term damage to Baltimore that will require concerted effort to reverse.

Neighborhoods that already lack businesses lost them and they may not come back. Many jobs held by working people doing their best to earn a living have been lost. If businesses do come back, their insurance rates will likely go up.

Equally devastating is that people who may have once thought about investing in Baltimore will likely go elsewhere and take the jobs and the revenue that they would have generated with them. The City and the Governor are going to have to work together to rebuild confidence in Baltimore.

Economic and Social Recovery

The economic debate can often seem as frustrating as the one surrounding the police. Left-wing types point to the crushing poverty in West Baltimore while right-wing types focus on a lack of responsibility by citizenry. The irony is that both narratives have something to offer but work better together than in isolation.

Well-distributed economic growth has more power than any anti-poverty program. Bill Clinton wasn’t known for awhile as “America’s first black President” because he played the sax but due to the dramatic drop in African-American unemployment with many previously marginal workers brought into the workforce with steady long-term growth.

At the same time, we have to do all we can to provide a helping hand for people willing to work hard and pay their taxes, as Bill Clinton often used to say when running for President in 1992. No doubt people like Pastor Donte Hickman, who has long toiled to provide those opportunities and fight for justice, has good ideas on how to do that. We should listen to them.

And It’s Not 1968

In 1968, blacks were essentially outside the power structure. Today, that’s no longer the case with the Mayor, State’s Attorney, and Police Chief along with many police being African Americans. It isn’t stopping their constituents from holding them–or the white politicians who also represent them–accountable. And that’s as it should be.

Doing Something

Courtney Snowden is a businesswoman and parent who ran for an at-large seat on the D.C. City Council in 2014. Though she lost, Courtney gained a lot of deserved respect along the way and has now joined the Bowser administration. I think she had about the smartest advice I’ve heard in the wake of recent events:

Wanna know how to end this brutality against our people? Vote. Run for office. Join the police force. Become a teacher. Mentor a child and help them become a fully functional adult. Protest the systematic oppression of our people, but do it without burning down the few places where low skilled workers can work. Open a business and hire from the community. Learn how to code. Develop an app. Make some money and donate to the candidates and causes that support the creation of an ism free world. Invest in yourselves and your communities.

Become the change you want to see, and then spread it around. I left the private sector to work in government because I am tired of complaining about it. I want to take meaningful responsibility for doing something about it. Join me.

Gutiérrez In for the Eighth

Armando Trull had the story this morning on WAMU complete with a quote from the Seventh State:

Now state Del. Ana Sol Gutierrez of Montgomery County is looking to take the seat, looking to score another notable first in a career full of them.

“I can bring forth a new voice and a new face, a truly immigrant experience that changes the dialogue and changes the way we are looking at human beings in our society,” she says.

Sol began her political career in 1990 after winning a school board seat in Montgomery County and becoming the first Salvadoran to be elected to office in the United States. In 2002, she followed that up by becoming the first Latina in the Maryland State House capturing Van Hollen’s old seat when he went to Congress.

If Sol wins the primary and general election for the Eighth District, she would become the first Latina and first Salvadoran to represent Maryland in Congress. But that may be a tough hat trick, says David Lublin, a political science professor at American University.

“She clearly has name recognition within District 18, which she represents. There’s a difference between getting one in three votes for the House of Delegates, which is where she’s been for a long time at this point, and a vote for Congress,” she says.

Like the other candidates, Gutiérrez will need to raise substantial amounts of money and campaign hard in order to have a real shot at the race. This would represent a change from recent campaigns. In 2014, she raised under $13,000 for her reelection bid to the House of Delegates even as she cruised to a second place primary finish behind Jeff Waldstreicher. She came in first in 2010.

Maryland Politics Watch

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