Category Archives: Adam Pagnucco

Elrich Vetoes Impact Tax Cut

By Adam Pagnucco.

County Executive Marc Elrich has vetoed a bill passed by the council that would effectively cut impact tax collections. While the bill passed the council on a 9-0 vote, making it unlikely that Elrich’s veto will be upheld, the policy debate lays out stark differences between the executive and the council.

Impact taxes are charged to development projects in order to pay for the additional demands for infrastructure that they create. MoCo levies two: a school impact tax and a transportation impact tax. Both are used to finance the capital budget and are dedicated to schools and transportation projects respectively. The county council periodically adjusts impact tax rates, credits and discounts, and various structural aspects of how they are administered.

This year, the planning board proposed as part of a new subdivision staging policy (which sets the county’s policies on infrastructure) a package of tax changes. Bill 38-20 instituted a range of changes to impact tax collections that would effectively reduce the county’s receipts. Among the planning board’s proposals were to cut the school impact tax rate to 100% of the cost of a student seat from the current 120% of the cost of a student seat and to apply discounts to single-family detached and multifamily units in desired growth areas to incentivize growth, both of which would cut receipts. These cuts would be partially reduced by a new utilization premium payment applied to development projects in areas with crowded schools.

To offset the impact tax losses in Bill 38-20, the planning board proposed Bill 39-20E, which would raise recordation taxes. Currently, recordation tax receipts are split between the operating budget’s general fund, the capital budget (especially schools) and rental assistance programs. And so the planning board’s vision was to cut impact taxes and raise recordation taxes to spread the cost of financing infrastructure across both new and existing development.

Lots of changes were made to the planning board’s proposals but the bottom line is that the council passed Bill 38-20, which cut impact tax receipts, and has not yet passed Bill 39-20E, which would raise recordation tax receipts to help pay for lower impact taxes. (The latter had significant opposition from the real estate community.) The recordation tax increase is not dead, however; the council will return to that issue eventually if for no either reason than to examine the capital budget next year.

That leaves the county executive, who repeatedly expressed concerns about the changes to impact taxes and other growth policies throughout the fall. Elrich believes that Bill 38-20 will cost the county $12.5-20 million a year in lost impact tax revenues, all of which go to paying for school construction and transportation projects. (That number is subject to dispute.) Elrich also never bought in to the trade of lower impact taxes for higher recordation taxes. He would rather use higher recordation taxes to cover operating budget shortfalls or more school expenditures than to offset lower revenues from impact taxes. Accordingly, Elrich vetoed the cut in impact taxes even though it passed the council on a 9-0 vote. The council will win the policy debate for now, but the politics (and the budget maneuvers) will go on.

Elrich’s veto message is printed below.


MEMORANDUM

November 30, 2020

TO: Sidney Katz, President, County Council

FROM: Marc Elrich, County Executive

RE: Veto explanation: Bill 38-20 Taxation – Development Impact Taxes for Transportation and Public-School Improvements – Amendments

With new development comes increased infrastructure needs; the newly renamed “Growth and Infrastructure Policy” (Growth Policy) reduces the funding available to provide the necessary infrastructure while the need to provide infrastructure is more critical to our success than ever. While I have long been concerned with how impact taxes work and I believe that there are alternatives that should be implemented, I cannot support simply reducing the necessary revenues without an appropriate replacement. Therefore, I am vetoing Bill 38-20.

The primary purpose of the Growth Policy is to put forth policies for adequate infrastructure – schools, transportation and more – that accompany new development. While I have other concerns about the bill, my primary concern is the projected revenue loss, which is estimated to be between $12.5 million and $20 million per year based on an analysis of projects in the development pipeline.

These reduced revenues are occurring at a time when we know we don’t have enough funding to address current needs or other infrastructure investments needed to grow our economy and maintain our status as a desirable place to live. For example, legislation to increase state aid for school construction will require the county to provide local matching funds; traditional state aid costs the County $3 for every $1 from the State or an average of $200 million annually. It is important to ensure the County will be able to continue to match traditional state aid for school construction as well as the approximately $400 million in additional state aid expected from the Built to Learn Act. (This Act will take effect immediately upon the legislature’s expected override of the Governor’s veto of the “Kirwan” bill.) School overcrowding and a $1.5 billion-dollar backlog in new construction, renovation and modernization needs burden our school system – one of our prime assets.

In addition, regional business leaders have said that improved transportation is central to economic development, pointing out the importance of efforts like Bus Rapid Transit.

Yet at a time when we know that (post-Covid19) we need improved transportation and relief for overcrowded schools and delayed modernizations, this Growth Policy reduces our ability to finance those needs.

These and other increased needs are coming while we are lowering our General Obligation bond borrowing to slow the growth of debt service costs, which lowers the amount of infrastructure we can fund with bonds. Less bonding and fewer impact tax revenues will not allow us to address our education and transportation needs. Even as the Growth Policy reduces revenues, the need for the infrastructure will not disappear. Either the funds will have to come from somewhere else, largely from county residents, or we will have to forgo important infrastructure improvements which will make righting our economic ship even more difficult.

I laid out my concerns in a letter I sent to the Council on September 10 (attached) and I highlighted my concerns again in another letter on November 10 (attached). My staff also raised several issues throughout the process. While I appreciate some of the improvements to the Growth Policy, including the improved annual school test and the clarification for agricultural storage facilities, I cannot sign this bill as it is currently written.

The Council has stated that it will consider an increase in the recordation tax to fill the gap from the reduced revenue, but that discussion is not currently scheduled. Furthermore, using an increase in the recordation tax shifts the costs from the developers of the projects to people refinancing or buying homes as well as to purchasers of commercial properties. Additionally, in these uncertain budgetary times, any potential revenue source may have to be reserved for other needs.

If competitiveness is the issue vis-a-vis our neighbors, then we should consider how our neighbors raised the money to meet their infrastructure needs. I think we will find that their focus was not on ways to reduce the revenues coming from development – rather, the opposite – they looked for ways to ensure the resources needed to provide the infrastructure for a growing community.

I regret that in the middle of this pandemic we have not had the opportunity for a more fundamental discussion of other methods to achieve adequate public facilities under the Growth Policy. While I recognize that one of the driving forces behind the recommended changes is to generate more housing, we know this will generate more residents in need of services, more students in our schools, and more people traveling to their jobs. This strongly suggests the need to increase revenue sources, not reduce them. I would welcome an opportunity to work with the Council to identify fair, alternative methods to fund the necessary infrastructure. For example, our office is working on how we could structure development districts, which have been successfully implemented in Northern Virginia and which were recently recommended by the Economic Advisory Group. Without such a replacement, I cannot support a loss of revenue. That’s not providing adequate public facilities by any measure. We can do better.

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Why on Earth Do We Elect Judges?

By Adam Pagnucco.

In the wake of the nastiest MoCo circuit court judge election in recent memory, one question lingers.

Why on Earth do we elect judges in Maryland?

In considering that question, let’s note that Maryland is totally inconsistent in how judges are selected. Appellate court judges are nominated by the governor, confirmed by the state senate and subject to retention elections. Circuit court judges are appointed by the governor and run for election after a year. Their elections have partisan primaries and non-partisan generals. Orphan’s court judges run in partisan elections. District court judges are nominated by the governor, confirmed by the state senate and do not run in elections. Nominating commissions make recommendations to the governor on appellate, circuit court and district court judges.

Circuit court elections are normally sleepy affairs in which sitting judges, who go through a vetting process and are appointed by the governor, are confirmed by voters. But not this year, when circuit court challengers were able to break through to the general election in both Montgomery and Prince George’s Counties. Suddenly, non-elections turned into real elections. And in MoCo, it wasn’t pretty.

The campaign pitting challenger Marylin Pierre against the four appointed sitting judges had all the nastiness of MoCo’s most negative political campaigns. Charges of racism, lying, dirty tricks and more were hurled back and forth with little regard for the dignity of the bench. Let’s remember that these are supposed to be JUDGES, not politicians. These are the people who decide civil cases, who decide child custody, who rule on domestic violence and who sentence us to fines, jail or both. In many ways, judges are more important to our daily life than elected officials. They should be expected to adhere to a higher standard than the mud splattering practices of politics. But how much incentive do they have to do so when their jobs depend on elections?

Both sides had legitimate issues with the electoral process we just witnessed. The sitting judges emphasize the rigor of their vetting process and want voters to respect it. Here is how the sitting judges slate described it:

The process started with a lengthy and comprehensive application covering all aspects of their education, breadth and depth of law practice, and personal background. Each judge’s application was submitted to no fewer than twelve diverse bar associations, each of which conducted its own investigation and interviews. In addition, the Bar Association of Montgomery County conducted a referendum wherein each applicant’s qualifications were subjected to a vote by every member of the bar association. The results of both the referendum and the specialty bar association interviews were provided to the Judicial Nominating Commission. The Commission then conducted its own independent investigation of all applicants and thoroughly vetted and interviewed each. A list of the most highly qualified candidates was sent by the Commission to the Governor, who interviewed and appointed the best of the best.

Folks, readers of this blog do their homework in figuring out which candidates to support. But individual voters don’t have the tools to replicate this painstaking process. Instead, we are left to assess judicial candidates as we do politicians when in fact their work is fundamentally different.

That leads us to another problem: state law does not give judicial candidates the same latitude for making public statements that other candidates enjoy. MD Judges, Rule 18-104.4 states that judicial candidates “with respect to a case, controversy, or issue that is likely to come before the court, shall not make a commitment, pledge, or promise that is inconsistent with the impartial performance of the adjudicative duties of the office” and “shall not make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” Assuming candidates respect these rules, how are voters supposed to divine their positions?

That’s not all. Pierre’s supporters will be quick to point out how tilted the playing field was against her, especially in fundraising. In 2019 and 2020, Pierre raised a grand total of $18,849. In those same two years, the sitting judges’ slate account raised $445,113. In fact, the slate account dates back to 2001 and is periodically updated to include whichever sitting judges are on the ballot. Its contributions read like a who’s-who list of the MoCo legal industry – the very people who will be litigating cases in front of the judges to whom they are donating. Some may be inclined to defend this system as a meritocracy, but once the political contributions start flowing, it bears more than a passing resemblance to an oligarchy.

Oligarchies have drawbacks, but what happens when they lose? A cautionary tale comes from Anne Arundel County in 2004, when Republican lawyer Paul Goetzke was one of two challengers to knock out sitting judges, producing an all-white bench for the first time in a decade. Goetzke blasted the incumbents because they were appointed by Democratic Governor Parris Glendening, ran on a tough-on-crime platform and said he wanted “criminals rehabilitated in jail, not in their neighborhoods.” Within a year, lawyers around the state supported censuring Goetze for “unconscionable” and “intimidating” actions against defense lawyers. In 2017, a state investigator “found Goetzke violated judicial standards on impartiality and fairness, bias, prejudice and harassment and decorum, demeanor and communications with jurors, among others.” Goetzke retired for medical reasons six months later.

Goetzke is no anomaly. Judicial elections often attract strange characters. Retired Circuit Court Judge Steven I. Platt, who was a judge in Maryland for almost 30 years, had many stories to share in his 2014 essay calling for an end to judicial elections. Judge Platt wrote:

During the years from 1970 to 2014 while I have participated in and observed contested judicial campaigns, I have never seen any of the qualities which are desirable in a judge discussed as an issue in any contested campaign by a challenger. Instead I have witnessed the following issues being raised in campaigns for “Orphans Court” (Probate Court)—(1) “Whether a Licensed Practical Nurse (LPN) could do more for orphans than those lawyers.” (2) “Whether orphans who commit crimes should go to jail.” (3) “The skyrocketing rates of intestacy” (4) “The Orphans Court Judges positions on abortion and (5) Whether as a candidate for reelection to the Orphans Court I would take an orphan away from a “parent” who spanked the orphan and/or do I spank my own children?

As a candidate for a 15 year term on the Circuit Court I was asked many questions. My favorite came from a lady who identified herself as a “concerned citizen”. She wanted to know “whether the Sitting Judges favored ‘condoms in the schools’ and/or ‘prayer’ in the schools.” The answer I wanted to give was “We favor one or the other but not both”. I did however resist that temptation.

My point is very simple. It is that even though the history and examples cited are anecdotal, they illustrate that at best judicial contested elections distract and at worst they destroy the effort to secure a diverse and qualified judiciary.

The above evidence indicates that circuit court judge elections are vulnerable to low or no voter information, domination by oligarchy, negative politics, muzzling of candidates and unpredictable consequences depending on who wins. (Let’s bear in mind that circuit court judges serve 15-year terms, far longer than most politicians). Compared to elections befouled by these sorts of flaws, the vetting process is a better option. Let judicial nominees be vetted by their peers, nominated by the governor and confirmed by state senators, who can reject any who are truly out of bounds. If necessary, judicial terms may be shortened and retention elections can be used to weed out judges who go rogue after appointment. Whatever is done, the current election system is broken and must be terminated for this reason:

If we treat judges like politicians, don’t be surprised if they act like them.

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Does Downcounty Pick the At-Large Council Members?

By Adam Pagnucco.

It’s not every day that you see a senior member of MoCo’s state delegation blast the county government, but Delegate Eric Luedtke (D-14) recently did so. In an essay published in Bethesda Beat, Luedtke opined, “The lesson of Question D is that representation matters” and repeatedly criticized county leaders for ignoring his district, which hugs the Howard County border.

Luedtke wrote, “Bluntly, due to the political geography of the county, countywide elected officials in particular don’t need to spend much time in the upper reaches of the county to get re-elected. The vast majority of the votes in the Democratic primary are downcounty votes.”

Is that true?

Former county council candidate (and co-chair of the ballot issue committee that opposed nine districts) Marilyn Balcombe has written about low upcounty turnout in the 2018 primary on Seventh State. Her conclusion was, “The Upcounty doesn’t vote and nobody cares.” Let’s reexamine that premise and also ask another question: did upcounty vote differently than downcounty in the council at-large race?

First, let’s set our definitions. For the sake of this analysis, I am defining downcounty as the “Democratic Crescent,” a term I coined for precincts located in Takoma Park, Silver Spring (inside the Beltway), Chevy Chase, Kensington, Bethesda and Cabin John. This area was responsible for sending Jamie Raskin to Congress in the fiercely contested 2016 primary. I am defining upcounty as precincts located in Brookeville, Clarksburg, Damascus, Dickerson, Gaithersburg, Germantown, Laytonsville, Montgomery Village, Olney, Poolesville, Sandy Spring and Washington Grove, which also include less populated areas nearby (like Ashton, Barnesville, Boyds and Spencerville). The rest of the county is here referred to – artfully – as “everywhere else.”

Precinct results are reported by the State Board of Elections for election day voting. (Precinct data excludes other voting modes.) In the 2018 Democratic primary, 301,208 votes were cast on election day in the council at-large race. Each voter can vote for up to four candidates since there are four at-large seats. Here is the distribution of council at-large votes by broad region along with U.S. Census Bureau population estimates for 2014-2018.

Roughly speaking, the crescent accounted for a quarter of the county’s population but cast a third of the votes in the council at-large Democratic primary. The upcounty was the reverse – it accounted for a third of the county’s population but cast a quarter of the votes. So downcounty didn’t account for a majority of the votes as Luedtke said, but it accounted for a disproportionate number of them for two reasons: a higher than average share of its voters are Democrats, and downcounty Democrats turned out at a higher than average rate as Balcombe wrote.

This might not matter much except for one thing: do downcounty Democrats vote for different candidates than upcounty Democrats? Here is where it gets interesting. The table below shows the rank order of finish for council at-large candidates among upcounty Democrats only.

Hans Riemer (the only incumbent) and Will Jawando finished first and second in the overall vote. But if the decision was made by upcounty, Marilyn Balcombe (who finished fifth overall) and Brandy Brooks (who finished seventh) would also have been elected. The result for Balcombe, who lives in Germantown, is unsurprising. However, Brooks is a Democratic Socialist who lived in Wheaton at the time. That shows how progressive upcounty Democrats, who also elected DSA member Gabe Acevero to the House of Delegates, can be. Gabe Albornoz and Evan Glass, who were both elected, finished seventh and eighth in upcounty respectively.

The table below shows how the Democratic Crescent voted.

Not only did the crescent pick all four at-large winners, it picked them in their overall order of finish. The crescent also voted for Balcombe, Brooks and Chris Wilhelm in their overall order of finish. At least in the 2018 election, the pattern established by downcounty voters applied very closely to the total result.

Now let’s look at where each of the top ten at-large candidates drew their votes from.

The four candidates with the highest percentage of their votes coming from the crescent – Riemer, Jawando, Glass and Albornoz – were the ones who got elected. In fact, each of these four received at least twice as many votes from the crescent as they did from upcounty. Candidates who received a quarter or more of their votes from upcounty (Balcombe, Wilhelm, Brooks and Ashwani Jain) did not win.

Just as in 2004, MoCo voters chose to reject the abolition of the at-large council seats this year. Given the fact that these seats will remain on the ballot, and given the election results above, upcounty voters must increase their turnout to get any respect from county government. If they don’t, the issues described by Delegate Luedtke in his column will continue.

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MCPS Reopening Looks More Unlikely (Updated)

By Adam Pagnucco.

One week ago, I asked “Will MCPS Reopen?” At that time, a number of factors poured cold water on MCPS’s plan to resume in-person instruction in January, including rising COVID case rates, potential costs with few options to pay for them and the experience of other districts in reopening and then promptly shutting down again. Events since then have made it even more unlikely that MCPS will reopen on schedule.

Consider the following.

1. In my post a week ago, I noted that schools in Allegany, Dorchester, Harford and Somerset counties all reopened and then closed again due to COVID spikes. Since then, Baltimore City, Baltimore County, Carroll County and Fairfax County have paused, suspended or delayed reopening and New York City has shut down its schools. Most ominously, Howard County’s school board voted against a reopening plan submitted by their superintendent and opted to keep schools virtual through at least April. This no doubt caught the attention of MCPS management. Having a school board publicly reject a crucial policy decision is a nightmare scenario for any superintendent and one that MCPS Superintendent Jack Smith will be keen to avoid.

2. County health officer Travis Gayles is urging private schools to use virtual learning only. Gayles tried to shut down private schools last summer but was stopped by the state. Nevertheless, he continues to believe that in-person learning is unsafe in the context of rising case rates, a message he has no doubt shared with MCPS.

3. Governor Larry Hogan imposed a set of new restrictions on bars, restaurants, retailers, gyms and religious institutions last week as COVID cases surged across the state. County Executive Marc Elrich plans to impose more restrictions too. The Smithsonian has closed the National Zoo and all of its museums in response to the surge. In his bluntest remarks to date, Hogan told Marylanders, “Just wear the damn mask.”

4. Looming over all of this is an unprecedented skyrocketing of COVID case rates. MCPS’s COVID dashboard uses a 14-day average case rate. A week ago, the rate was 19.5 cases per 100,000 residents. As of yesterday, the rate was 26.1, far above the level of 15.0 at which any students would be considered for in-person learning. The county’s 7-day average case rate jumped from 22.4 to 29.7 over the same period. Both the 7-day and 14-day averages are above previous peaks seen in May, when schools were shut down and economic restrictions were more severe.

MCPS’s COVID dashboard as it appeared yesterday.

5. Yesterday, the Post summarized the consensus of health officials in the region this way: “Public health experts and hospital administrators say the abrupt rise in new cases is unlikely to abate in the next few weeks and could foreshadow a more difficult December, followed by an even rougher January and a darker February.” In other words, it’s going to get worse before it gets better.

Despite all of this, MCPS is proceeding with a survey of parents asking whether they prefer hybrid (in-person and virtual) or virtual-only learning in the second semester. The survey says in bold that the system “will begin a phased-in return to in-person instruction on January 12, 2021.” Notice use of the word “will.” As of a week ago, 56% of responding parents preferred the hybrid option.

If schools were to reopen today, no students would be eligible for in-person learning according to MCPS’s own health metrics and the public health community believes that case rates have not yet peaked. However, MCPS is still telling parents that schools “will” resume in-person learning in January. At this point, MCPS management is on a collision course with some parents who want in-person instruction but likely won’t get it any time soon as well as with its own employees, many of whom fear for their health if called back to MCPS buildings.

It’s a very tough situation. And the longer MCPS management waits to adjust its course, the tougher it’s going to get.

Update: MCPS Chief of Engagement, Innovation and Operations Derek Turner points out that MCPS’s Family Guide to Help Determine Learning Preferences states the following:

Montgomery County Public Schools (MCPS) will offer both virtual and in-person learning experiences as health metrics allow. MCPS will begin a phased-in return to in-person instruction beginning January 12, 2021, with a focus on specific special education programs and certain Career and Technology Education (CTE) programs. If health metrics continue to be met, larger groups of students will begin phasing in on February 1, 2021.

Turner said, “By not including this important context, and in fact emphasizing the word ‘will’, readers may believe that MCPS is pushing forward with no concern for the health and safety of students and staff, which is far from the truth. I am asking that you update your piece to reflect the important context regarding health metric being met before a return to in-person can occur.”

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Elrich Extends Response Deadline for Public Information Act Requests

By Adam Pagnucco.

In a little-noticed executive order, County Executive Marc Elrich has indefinitely prolonged the time taken by the county government to respond to Maryland Public Information Act (MPIA) requests. Under the order, MPIA requestors may have to wait until after the pandemic emergency is over before the county will answer their requests.

The MPIA is a state law that is a counterpart to the federal Freedom of Information Act. Under the MPIA, individuals may request records in the custody of state and local governments subject to a number of exceptions. The time taken by governments to respond to requests is described by the state’s MPIA manual:

Under GP § 4-203(b)(1), if a custodian determines that a record is responsive to a request and open to inspection, the custodian must produce the record “immediately” after receipt of the written request. An additional reasonable period “not to exceed 30 days” is available only where the additional period of time is required to retrieve the records and assess their status under the PIA. A custodian should not, however, wait the full 30 days to allow or deny access to a record if that amount of time is not needed to respond.

That may not be the case anymore in Montgomery County for the foreseeable future.

On October 5, County Executive Marc Elrich issued Executive Order 119-20 on the subject of “Extension of MPIA Response Deadlines.” The order’s text states:

Section 1. Extension of Deadlines

The deadlines imposed under §§4-202, 4-203, and 4-358 of the Act are hereby suspended for any request for inspection or copies of records pending before or filed with any agency or unit of the Montgomery County Government on or after the date of this Order (regardless of whether that deadline has already passed). The deadlines contained in the above-referenced sections of the Act are extended until the 30th day after the Governor has terminated the state of emergency and rescinded the proclamation of the catastrophic health emergency.

Section 2. Directive to Departments.

Each custodian of records should provide a copy of this Order to a person requesting a record under the Act, and (if practical) a non-binding estimate as to when the custodian will respond to the request.

Section 5. Effective Date.

This Order shall take full force and effect immediately.

No one knows when the state of emergency will end. This executive order could conceivably postpone MPIA responses by a year or more. This is an unprecedented act by Montgomery County Government. Additionally, the reference to “any agency or unit” of the county government raises the question of whether it applies to MCPS, Park and Planning, Montgomery College and other affiliated entities.

County governments normally do not have the option of overturning state law, but Elrich cites an executive order by Governor Larry Hogan as his source of authority. That executive order says in part:

The head of each unit of State or local government may, upon a finding that the suspension will not endanger the public health, welfare, or safety, and after notification to the Governor, suspend the effect of any legal or procedural deadline, due date, time of default, time expiration, period of time, or other time of an act or event described within any State or local statute, rule, or regulation that it administers. The unit head shall provide reasonable public notice of any such suspension.

Elrich issued his executive order on October 5, when it took “full force and effect immediately.” Now here is an odd thing. According to the county’s MPIA response database, the county has answered 36 MPIA requests since October 5 as of this writing. This raises a number of questions. Do some county departments know of the executive order but not others? Or is there an interpretation of Elrich’s executive order that permits departments to decide whether to answer a request immediately or postpone it? Any disparate treatment of MPIA requests depending on their nature would be deeply troubling.

This screenshot of the county’s MPIA response database shows that it has continued to answer at least some requests since October 5.

Folks, I have been writing about state and county politics since 2006. I have used the MPIA countless times to obtain information of public interest, including information that would normally not be released by the authorities. The MPIA is among the most important tools available to residents to hold their government accountable. Indefinitely postponing answers to MPIA requests accomplishes nothing other than to allow county officials to behave as they will in the dead of night.

I respectfully ask the county council to summon representatives of the executive branch to justify this executive order in a public session.

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MoCo Hits New COVID Peak

By Adam Pagnucco.

Yesterday, MoCo hit a new peak in its 7-day average of new COVID cases, a key statistic guiding the county’s pandemic response. On November 17, the county hit a 7-day average of 25.0 cases per 100,000 residents. That was higher than the previous peak of 24.7 on May 19, when the county’s lockdown measures were more severe than they are today. The graph below appeared on MoCo’s COVID dashboard yesterday.

MoCo is not alone. Most major jurisdictions in the state have recently hit new peaks for COVID cases. The charts below from the state’s COVID dashboard show 7-day averages of case rates for each of the other Maryland jurisdictions with more than 250,000 residents.

Prince George’s: On November 16, Prince George’s County’s 7-day case rate was 29.8, lower than the previous peak of 38.85 on May 7.

Baltimore County: On November 16, Baltimore County’s 7-day case rate was 33.26, higher than the previous peak of 22.41 on July 31.

Baltimore City: On November 16, Baltimore City’s 7-day case rate was 39.76, higher than the previous peak of 29.46 on August 2.

Anne Arundel: On November 16, Anne Arundel County’s 7-day case rate was 26.71, higher than the previous peak of 14.26 on August 2.

Howard: On November 16, Howard County’s 7-day case rate was 20.48, higher than the previous peak of 13.16 on May 25.

Frederick: On November 16, Frederick County’s 7-day case rate was 22.29, higher than the previous peak of 15.96 on April 14.

Harford: On November 16, Harford County’s 7-day case rate was 34.62, higher than the previous peak of 12.42 on August 3.

Finally, the chart below shows the statewide COVID case rate in Maryland. On November 16, the state’s 7-day case rate was 29.03, higher than the previous peak of 18.03 on May 7.

On November 16, the highest 7-day case rates per 100,000 residents in the state were in Allegany County (110.57), Garrett County (60.56) and Washington County (41.42).

These trends are alarming health officers, county leaders and health care providers all over Maryland. Expect swift and draconian measures from state and local governments to bring these soaring case rates under control.

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Will MCPS Reopen?

By Adam Pagnucco.

MCPS’s new plan to phase in a return to in-person learning in January is the talk of parents across MoCo. The school district is currently surveying parents on their preferences for in-person or virtual instruction. But in recent weeks, the coronavirus has surged across the county, prompting the county government to re-impose restrictions on businesses and social gatherings.

With COVID-19 transmission approaching its highest levels since the spring, will MCPS actually reopen?

To answer that question, let’s consult MCPS’s own health metrics. For the purpose of determining which students will return and when, MCPS has broken them up into four groups in order of in-person instructional need.

Student special populations, including special education students and other students with special needs
Group 1: Kindergarten; grades 1, 6 and 9; career and technical education (CTE) students
Group 2: Pre-kindergarten and grades 2, 3, 7 and 10
Group 3: Grades 4, 5, 8, 11 and 12

The phase-in timing for each of these groups depends on average new COVID-19 case rates. The higher the case rates, the slower the phase-in of return. At an average rate of 15 or more new cases per 100,000 residents over a 14-day period, all groups would be taught virtually. For rates between 10 and 15, “minimal in-person” learning would be considered for special population students but would be virtual for all other groups. For rates between 5 and 10, limited in-person learning would be provided for special population students, minimal in-person learning would be considered for group 1 and other students would receive virtual learning.

So what does this mean given MoCo’s case rates? First, according to MCPS’s dashboard, the 14-day average case rate has never been below 5 since the virus came to MoCo in March. That means according to MCPS’s metrics, most students would never have been eligible for in-person learning since the pandemic began. For the period of May through mid-June and beginning in the second week of November, no students at all would have been in virtual learning. The school system’s dashboard, along with other metrics maintained by the county and state, now shows COVID case rates spiking to the highest levels seen in months. MCPS’s average 14-day case rate of 19.5 on November 15 is the highest rate since June 6. Under such conditions, MCPS’s metrics would keep all students in virtual learning.

Another issue is that MCPS’s reopening plan contains substantial costs, including health screenings, capacity limits (including on buses), personal protective equipment, training, air quality mitigation and recruitment. MCPS Superintendent Jack Smith has said the district will “absolutely have to hire more people” to implement a hybrid model combining virtual and in-person learning. MCPS has not released a reopening cost estimate as of this writing, but it’s conceivable that it could go into the tens of millions of dollars. If MCPS needs assistance from the county, it could be out of luck given that the county’s federal grant money is almost all spent or spoken for and the county’s emergency pay program has blown an 8-digit hole in its budget.

Finally, Maryland school districts that have reopened have faced tough going. Carroll County faced a shortage of hundreds of teachers when it reopened at the end of September. Allegany, Dorchester, Harford and Somerset counties all reopened and then later closed due to COVID spikes. Last week, Maryland Matters reported, “About half of local school districts reversed plans to return to in-person learning.” This is all a dire warning to any school district thinking of reopening in the current conditions of COVID spread.

All of the above together suggests that MCPS will proceed with reopening only if MoCo sees a miracle reduction in COVID cases or if MCPS liberalizes its health metrics. Neither seems likely as the pandemic continues.

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Fix it or Own it

By Adam Pagnucco.

Once again, the county council has expressed its displeasure at the administration of County Executive Marc Elrich. And once again, executive branch officials were invited to a Zoom thrashing that was less pleasant than most root canals. Chief Administrative Officer Rich Madaleno plays more defense now than beloved former Washington Capitals goalie Braden Holtby.

Right or wrong, this is turning into a regular thing.

The current object of the council’s ire is the executive branch’s administration of the county’s COVID emergency pay program. The program was first established way back in April by the executive and has continued without interference from the council since then. It is based on the erroneous notion that it was mandated in the county’s union contracts when in fact those contracts referred to emergency pay in the context of weather events. The program is bleeding the county budget by $4 million a pay period, or $100 million a calendar year, and was discovered by the inspector general to be plagued with mismanagement and inflated costs in at least one department. Unlike COVID pay programs in other jurisdictions, MoCo’s has no defined end date.

One of the more troublesome revelations from the inspector general’s report was that managers at the Department of Permitting Services deliberately violated county policy in handing out undeserved COVID pay to employees. Madaleno’s first response in the Washington Post was to characterize it as an “unfortunate mistake.” He walked that back in discussion with the council, but then his deputy chief administrative officer and the current permitting services director both told the council that it was a mistake. It was not. The inspector general said that the managers who awarded the extra pay “decided to allow inspectors to claim front facing differential for their entire workday rather than ‘nickel and dime’ them by asking that they account for individual hours.” This was not a mistake. It was insubordination.

Council Member Andrew Friedson lays out remedies for the conduct found in the inspector general’s report.

Several council members called for an independent investigation, but if the administration continues to believe that this was a mistake rather than insubordination, whether accountability occurs is an open question. Other managers are watching. So are employees who may be thinking of calling the inspector general because of issues going on in their departments. If no one is held to account, why bother?

By the way, while we are on the topic of scandals, was anyone ever disciplined for the $908,000 in overtime paid by the fire department that a whistleblower said was a “scam?”

There is more. The COVID pay program has expended tens of millions of dollars with no end in sight. The council has allowed this to fester for months while it has drained the county’s beleaguered budget. The executive branch has claimed that FEMA will reimburse it for most of this money, but the inspector general has questioned that and so has the county’s own emergency management director.

In the meantime, the county has huge needs for which this money won’t be available. For example, MCPS plans to resume some in-person instruction in January. With the county’s share of federal grant money either gone or spoken for, how will the county help MCPS pay for building improvements, personal protective equipment and any emergency pay for their employees? (The largest COVID contact tracing study to date has found that children are key spreaders of the coronavirus.) MCPS Superintendent Jack Smith has said the district “absolutely will have to hire more people” if it reopens. The county executive is asking for $3 million for HVAC improvements in seven schools but MCPS has more than 200 schools. That’s not going to be enough.

County spending is within the purview of the county council. If the council is dissatisfied with the executive branch’s management of it, the council must step in. The council may not be able to do much about money that has already been spent, but it can pass legislation governing it in the future. Such legislation should define emergency pay, specify who gets it and who does not, set its levels, specify the conditions under which it is paid, establish an approval process, establish a fixed duration with a possible extension process and mandate regular reporting. If county managers refuse to obey their chief administrative officer, let’s see if they will refuse to obey county law. More than that, let’s see if county leaders can reestablish respect for taxpayer funds rather than allowing them to be treated as “other people’s money.”

Complain all you want about this, council members. But in the end, if you think it’s a problem, you must fix it. Or own it.

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Winners and Losers of the Ballot Question War

By Adam Pagnucco.

This year, MoCo saw its biggest battle over ballot questions in sixteen years. Most county players lined up on one side or the other and victory has been declared. Who won and who lost?

Winners

Council Member Andrew “Real Deal” Friedson
Friedson authored Question A, which liberalized the county’s property tax system to allow receipts to increase with assessments. Wall Street applauded its passage. Even progressives, who don’t love Friedson but owe him big-time for opening up the county’s revenue stream, have to admit that his Question A was the real deal.

Council Member Evan Glass
Glass authored Question C, which added two district council seats and defeated the nine district Question D. Lots of wannabe politicians are going to look at running for the new seats. Every single one of them should kiss Glass’s ring and write a max-out check to his campaign account.

County Democratic Party
It’s not a coincidence that MoCo voters adopted the positions of the county Democratic Party on all four ballot questions. With partisan sentiments running high and information on the questions running low, MoCo Democrats went along with their party and dominated the election.

David Blair
Blair was the number one contributor to the four ballot issue committees that passed Questions A and C and defeated Questions B and D. By himself, Blair accounted for nearly half the money they raised. Whatever Blair decides to do heading into the next election, he can claim to have done as much to pass the county Democrats’ positions on the ballot questions as anyone. (Disclosure: I have done work for Blair’s non-profit but I was not involved in his ballot question activities.)

Ike Leggett
The former county executive was key in leading the fight against Robin Ficker’s anti-tax Question B and the nine county council district Question D. Thousands of MoCo voters still like, respect and trust Ike Leggett.

Jews United for Justice
While not having the money and manpower of many other groups who played on the questions, Jews United for Justice played a key role in convening the coalition that ultimately won. They have gained a lot of respect from many influencers in MoCo politics.

Facebook
Lord knows how much money they made from all the ballot question ads!

Losers

Robin Ficker
At the beginning of 2020, MoCo had one of the most restrictive property tax charter limits of any county in Maryland. For many years, Ficker was looking to make it even tighter and petitioned Question B to the ballot to convert it into a near-lock on revenues. But his charter amendment provoked Friedson to write Question A, which ultimately passed while Question B failed and will raise much more money than the current system over time. Instead of tightening the current system, the result is a more liberal system that will achieve the opposite of what Ficker wanted – more revenue for the county. This was one of the biggest backfires in all of MoCo political history.

Republicans
The county’s Republican Party did everything they could to pass Ficker’s anti-tax Question B and the nine county council district Question D. In particular, they gave both cash and in-kind contributions to Nine Districts and even raised money for the group on their website. In doing so, the GOP provoked a fierce partisan backlash as the county Democrats rose up to take the opposite positions on the ballot questions and most Democratic-leaning groups combined forces to support them. With President Donald Trump apparently defeated, Governor Larry Hogan leaving office in two years and little prospect of success in MoCo awaiting them, where does the county’s Republican Party go from here?

This tweet by MoCo for Question C from a voting location explains all you need to know about why Question D failed.

Political Outsiders
It wasn’t just Republicans who supported the failed Questions B and D; a range of political outsiders supported them too. What they witnessed was a mammoth effort by the Democratic Party, Democratic elected officials and (mostly) progressive interest groups to thwart them. Even the county chamber of commerce and the realtors lined up against them. Whether or not it’s true, this is bound to provoke more talk of a “MoCo Machine.” Machine or not, outsiders have to be wondering how to win when establishment forces combine against them.

Push

MCGEO, Fire Fighters and Police Unions
These three unions are frustrated. They have not been treated the way they expected by the administration of County Executive Marc Elrich and they are also upset with the county council for abrogating their contracts (among other things). They wanted to show that they could impose consequences for messing with them and that was one reason why all three made thousands of dollars of in-kind contributions to Nine Districts. On the negative side, the nine districts Question D failed. On the positive side, the passage of Friedson’s Question A will result in a flow of more dollars into the county budget over time, a win for their members. So it’s a push. On to the next election.

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Scandal: County Employees Got COVID Pay They Were Not Entitled to Get

By Adam Pagnucco.

MoCo Inspector General Megan Davey Limarzi, who previously uncovered an overtime scam in the fire department, has done it again. She has issued a new report detailing COVID emergency payments to employees of the Department of Permitting Services (DPS) who were not entitled to receive them under county policy. Moreover, she hints that this may be happening in other departments too. The whole thing is a massive scandal due to – at the very least – poor management in county government.

COVID emergency pay was set in three collective bargaining agreements with the police, the fire fighters and MCGEO in early April. Two categories of emergency pay were established:

Front facing onsite: work that cannot be performed by telework, involves physical interaction with the public, and cannot be performed with appropriate social distancing. This work would receive an additional $10 per hour.

Back office onsite: work that cannot be performed by telework and does not involve regular physical interaction with the public. This work would receive an additional $3 per hour.

Work performed through telework was ineligible for emergency pay.

In May, the Office of Inspector General (OIG) received complaints that DPS was allowing inspectors to receive front facing emergency pay ($10 per hour) for work performed at home. The complaints alleged that employees were “defrauding the system” and “taking advantage of undeserved hazard pay.”

That’s exactly what the OIG found was occurring in four out of five DPS divisions. The OIG wrote:

Our investigation uncovered that DPS management enacted a COVID differential pay policy that was contrary to the Administration’s policy, resulting in overpayment of front facing COVID differential pay to DPS inspectors from approximately March 29 to August 29, 2020. We also found that DPS inspection data on its website, the Data Montgomery website, and in internal records is incomplete and not entirely accurate.

The reason for the overpayments was that work performed remotely was allowed to be paid an extra $10 per hour as if it had been performed in physical interaction with the public. That violated county policy, which held that each hour of work had to be evaluated separately to determine whether it was eligible for an extra $10 per hour (front facing), $3 per hour (back office) or nothing (telework). The violation occurred because DPS management allowed it. The OIG wrote:

The former Acting DPS Director and the four Division Chiefs stated that collectively they decided to allow inspectors to claim front facing differential for their entire workday rather than ‘nickel and dime’ them by asking that they account for individual hours.

Notably, Fire Prevention and Code Enforcement inspectors correctly followed County policy and did not claim front facing differential for their entire workday. The Division Chief told us that he did not know that the former Acting Director interpreted the policy differently. He also did not know that the other divisions were allowing their inspectors to claim all their workhours as qualifying for front facing differential.

The OIG could not figure out how much of the emergency pay was ineligible under county policy. That’s because “we were not able to obtain accurate information on the number of inspections conducted by DPS inspectors, how inspections were conducted, and their duration.” The OIG did note that when DPS finally adjusted its policy to match county policy, front facing differential hours claimed fell by 27% and the number of DPS employees claiming 80 hours of front facing pay per pay period fell by 90%.

Finally, the OIG made this ominous statement. “Additionally, we found that other County departments may also be misapplying the COVID differential pay policy and possibly paying undeserving employees COVID differential pay.” The report does not present evidence to back this up but one senses that this may ultimately be only the beginning of a much larger investigation.

The OIG recommended that the executive branch review DPS and all other county departments to ensure that COVID pay was being administered in compliance with county policy. The OIG also recommended that the county not use CARES Act money or apply for FEMA reimbursements for COVID emergency pay until all payments had been verified as complying with county policy. Chief Administrative Officer Rich Madaleno replied that county departments would review the pay and follow the collective bargaining agreements and regulations which established the pay. He also said that the county would “make all appropriate adjustments” to any FEMA reimbursement requests or uses of CARES Act money.

So let’s review this astonishing report. Top management in one of the county’s most important departments was willing to disobey county policy and overcharge taxpayers rather than have work hours properly reported. Management also lacked complete or accurate records on the actual work performed by its employees. The county’s budget monitoring processes failed to catch this and it would probably still be going on if it weren’t for the OIG. The county’s ability to seek FEMA reimbursements for this pay could be endangered. (Let’s remember that the total amount of COVID emergency pay is projected to be $100 million over the course of a calendar year and currently has no fixed end date.) And the county’s response is not “heads are going to roll and we will get our money back,” but rather that they will follow regulations and collective bargaining agreements.

Who knows what will happen now, but here’s a prediction: the county council’s review of this report is going to be must-see TV. A preview appears below.

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