Tag Archives: Adam Pagnucco

Restaurant: My Staff Will Not Wear Face Masks

By Adam Pagnucco.

Last night, The Grille at Flower Hill, a restaurant in Gaithersburg, posted a complaint on Facebook about the county’s health department enforcing the county’s social distancing and mask rules. Specifically, the post said, “Let me be very clear…my staff will not wear face masks while working here at the Grille. If that bothers you then please dine elsewhere and please try to find something more important to occupy your time such as volunteer at a nursing home or soup kitchen. Whoever you are that filed the complaint, you need to take a good look in the mirror and try to find some real meaning in your life.”

In response to huge pushback, the restaurant doubled down. “You are all missing the very premise of my post. Look at it this way, if you don’t like what is on TV or the radio…change the channel. You all act like i am physically forcing people to come into my restaurant. Every single person that has dined here had a choice and they all chose to eat here knowing full well the staff was not wearing masks.”

Here is just a small sample of the reaction this post generated.

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Never, ever giving you or any other firm owned by you my business again.

You’re gonna do a good job at burying your business with this post. It would’ve been better for you to keep quiet about your stance on facemasks rather than post your ignorance for all of Facebook to see and share. Good luck in the coming months.

Publicly, I’d like to thank the health department for doing their jobs. You should be shut down.

Sorry to hear you are making this decision. We used to eat there every week. Not anymore.

Every major media outlet in the area knows about this post. Hope you love bankruptcy!

Will never eat here ever. Ever. EVER. That is if you keep your license.

Besides the total disregard for human lives, this message is totally unprofessional.

Thanks for being candid on how you don’t care about the well being of your staff and patrons.

You just lost my business and I will try to spread the word to any one who will listen regarding your lack of safety for your customers and staff!

Wow. Beyond irresponsible and inconsiderate. What is wrong with you folks?

You need science in your life.

I feel so sad for your employees.

I would not eat at a place that doesn’t care about my health.

I’ll let some investor friends know that a discounted restaurant space will be on the market soon. They’ve already built in disinfecting costs.

I hope we get a Chipotle in that spot instead.

*****

Even if the Facebook post is deleted, the damage has been done on Yelp.

Want to bet where the county’s health department will be today?

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County’s Top Manager Admits Violating Ethics Law

By Adam Pagnucco.

Andrew Kleine, the county’s Chief Administrative Officer and the highest-ranking non-elected employee of the county, has admitted to violating two provisions of the county’s ethics law and has offered to cure those violations in part through a $5,000 payment to the county. Bethesda Beat reported that Kleine was the subject of an ethics investigation in September 2019.

The document released today by the county’s Ethics Commission contains a summary of the violations and other related matters, the content of Kleine’s proposal to cure the violations, and a redacted investigatory report by the county’s inspector general with more detail.

The issues with Kleine involve two private companies – Healthy Outcomes Inc. (aka Balancing Act) and Clear Impact LLC. Kleine worked with the two companies when he was Baltimore City’s budget director. When Kleine left his position at Baltimore City, he formed his own company (Andrew Kleine Consulting LLC) and wrote a book. Kleine’s company entered into formal contracts with Balancing Act and had an “informal, mutually beneficial arrangement” with Clear Impact before he joined the county government. Kleine subsequently was appointed by County Executive Marc Elrich and confirmed by the county council as the county’s Chief Administrative Officer, the top manager in county government, in December 2018.

Balancing Act

Kleine’s contracts with Balancing Act, which allowed the company to claim some of his book revenues, were terminated on January 24, 2019. Neither side derived any revenues from the book. Kleine “was involved in establishing the relationship between the County and Balancing Act” which led to a one-year county contract with the company for $9,880 on 12/21/18, while Kleine’s own contracts with Balancing Act were in effect. The commission wrote:

Mr. Kleine understands that the ethics law prohibits him from participating in any matter with a business that he has a contract with, if the contract could reasonably result in a conflict between private interests and public duties. (19A-11(a)(2)(E)). Although Mr. Kleine never received any funds from Balancing Act, Mr. Kleine acknowledges that he violated this provision of the Ethics Law.

In May 2019, Balancing Act – now a county contractor but no longer in a contractual relationship with Kleine – sponsored a signing for Kleine’s book which earned him $42 in royalties for 20 books. The commission wrote, “While having the book signing was Balancing Act’s idea and the gain was very small, Mr. Kleine further realizes there has to be a complete severance of his private business activities and his official duties.”

Clear Impact LLC

Clear Impact paid $5,000 to Kleine for book promotion expenses on July 1, 2018 in return for having its logo printed on the back of Kleine’s book. The commission wrote, “At Mr. Kleine’s request, the Leggett administration engaged Clear Impact in a $10,000 non-competitive contract to facilitate the work of the Elrich Transition Team, starting the day after the election.” In May of 2019, Clear Impact won a $99,000 competitively bid contract to which Kleine remained at arm’s length.

Book Promotion

The commission wrote, “As of September 30, 2019, the County and its employees had purchased 89 copies of the Book, although Mr. Kleine was unaware at the time that County funds were used to buy those books.” The commission went on:

Mr. Kleine was invited on a few occasions to discuss the Book and his strategy for budgeting while he was at conferences or meetings he was attending in connection with his County work. Where these activities required use of County resources or of Mr. Kleine’s title, or otherwise appeared to be conducted as part of Mr. Kleine’s official duties, Mr. Kleine recognizes such activities constituted a misuse of County resources and/or a misuse of the prestige of Mr. Kleine’s office.

The commission noted that Kleine did not seek advice from the County Attorney or the Ethics Commission on the ethics implications of his relationships with Balancing Act and Clear Impact or his book promotion.

Outside Employment Approval

The commission wrote:

Mr. Kleine did seek outside employment approval from the Ethics Commission in late April of 2019 to engage in consulting and promotion of the Book through the Company [ed. – Kleine’s own company]. While the Commission approved the request on June 6, 2019, the Commission had not been informed of the relationships between Mr. Kleine, the Company, and Balancing Act, of Mr. Kleine and Clear Impact, the Book’s relevance to the budget strategy being implemented in Montgomery County, and the lack of separation between promotional activities associated with the Book and Mr. Kleine’s official position. In addition, Mr. Kleine recognizes that he should not have been engaged in any activity resulting in earned income (no matter how minimal) prior to receiving outside employment approval in accordance with requirements in the ethics law. Mr. Kleine acknowledges that his doing so violated 19A-12 of the Ethics Law.

Kleine’s Proposed Cure

Kleine had already terminated his contracts with Balancing Act and removed references to Balancing Act and Clear Impact from his professional website. Kleine proposed to cure the ethics violations through the following additional measures.

Forfeit his approval of outside employment.

Stop promoting the book to county employees and others.

Remove references to his occupation and to Clear Impact from the book’s website.

Not be involved with any matters concerning Balancing Act or Clear Impact without obtaining advice or a waiver from the Ethics Commission.

Direct the county’s chief procurement officer to ensure that no further county funds are spent purchasing his book.

Pay the county $5,000 within 30 days of his proposal to cure the violations.

The commission’s website indicates that it has accepted Kleine’s proposed cure, thereby making its report a public document.

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Top Seventh State Stories, June 2020

By Adam Pagnucco.

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

1. Repeal the Linda Lamone for Life Law
2. Baltimore City’s Election Has a Problem
3. Will Talbot County Choose Tourism or Slavery?
4. Judge Candidate on Floyd Cops: “Lock Em Up”
5. Elrich Asks MCPS for Cuts
6. Jawando Ignored Public Information Act, Had Scant Evidence Before Filing Rent Control Bill
7. First School Board Results Favor Harris
8. MCPS Survey Responses on Distance Learning
9. Elrich’s Police Union Contract
10. It’s the CIP, Stupid! (Guest blog by Gus Bauman)

Congratulations to former Planning Board Chair Gus Bauman for making our top ten!

The break-out story of the month was the one about the Talbot Boys statue, which was shared dozens of times across the Eastern Shore. Now that Mississippi has removed the confederate battle flag from its state flag, there is no longer any excuse for Talbot County leaders to continue honoring the Confederacy.

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Hogan’s Shift and Shaft

By Adam Pagnucco.

In a long-expected move, Governor Larry Hogan has submitted a long list of state budget cuts to the Board of Public Works. Cuts to state employee salaries and positions are getting a lot of attention. So is a proposed $200 million trim in state aid to public schools, although that needs the consent of the General Assembly to pass. What is less discussed is Hogan’s resumption of a time-honored practice used by higher level governments to dump their problems on lower level governments: the shift and shaft.

Here is how it works. Over the years, state governments decide that they wish to provide certain services, like schools, libraries, colleges, transportation infrastructure, public safety and so on. They could decide to provide them directly through state employees, and sometimes they do in whole or in part. But for reasons of convenience and coordination, they often choose to fund those activities through grants to counties and cities and have them provide the services to residents. Over time, state budgets get in trouble due to economic downturns so cuts are needed. State leaders don’t want to cut services, of course – they don’t want to deal with the backlash and they are happy to have counties and cities continue to provide them. They just don’t want to pay for them anymore. So they cut their grants to lower levels of government and make city and county leaders clean up the mess. (In fairness, the feds do the same things to the states.) The whole process is called “shift and shaft federalism.”

Maryland is no stranger to this concept. The Great Recession of a decade ago hit the state budget HARD. Governor Martin O’Malley’s top priority was preserving state aid for public schools. He was able to accomplish that for the most part through a series of tax hikes, a reduction of hundreds of millions of dollars in highway user revenue funds that had gone to county and municipal transportation budgets and a partial shift of teacher pension payments to the counties. The latter shift was partly ameliorated by supplemental grants paid to the poorest counties to help them meet teacher pension obligations. The counties bitterly resisted these moves, but once the state imposed them, most responded by raising property taxes, income taxes or both.

Hogan is now going down the same road as O’Malley. His cut list includes two programs that steer money to county budgets. The first one is the state’s disparity grant program, which sends money to poorer counties in an effort to remedy local tax capacity inequities. The state’s FY21 budget includes a $12.4 million increase in disparity grants which Hogan would eliminate. The second program is the state’s teacher retirement supplemental grants, which are intended to help poorer counties pay for the teacher pension payments that the state mandated in 2012. Hogan would eliminate them too. Combining the two programs, Hogan would cut their funding by 21.5%, one of the biggest percentage cuts in his entire package and close to the 25% maximum cut that the Board of Public Works could impose.

Here is the total impact by county of Hogan’s cuts to disparity grants and teacher retirement supplemental grants.

Three things stand out. First, most of these cuts are regressive. Other than Baltimore County, these jurisdictions have low assessable bases per capita, low income per capita or both. The very reason why these programs exist is to boost poor counties, so cuts to them are bound to be regressive. Second, many of these jurisdictions are governed by Republican local officials. Hogan is cutting his own people. Third, these amounts were included in county budgets passed over the last two months. Each of these reductions blows a hole in county budgets that were already going to be subject to cuts because of declines in local revenues. The tough choices will now get even tougher.

These counties will be pleased to know that Hogan is proposing to eliminate the state’s $75 million supplemental retirement contribution. So while the counties will continue to be expected to pay for state pensions without the benefit of state assistance, the state will save money by cutting its own payments.

It is good to be at higher levels of government!

More cuts to local entities will probably be coming. Hogan proposed cutting $200 million in state aid for public schools (a move that needs General Assembly approval) and $36 million in state aid for community colleges. His package also contains another $130 million “unallocated reduction to local governments” that needs to be considered by the General Assembly. There may also be more mid-year cut packages.

Good luck to the counties. And good luck to the voters too.

Update: Comptroller Peter Franchot has come out against many of Hogan’s cuts, including the cuts to the counties. Assuming that the Board of Public Works sticks to its schedule and votes on the package tomorrow, Treasurer Nancy Kopp will decide the outcome.

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The Return of Saqib Ali

By Adam Pagnucco.

This is a good day for Seventh State, MoCo political junkies, and anyone who loves a great fight. That’s because one of the all-time cage-shakers of MoCo politics from a decade ago has returned to run for office again.

Yes, it’s true. Saqib Ali is running for Delegate in District 15.

Saqib first showed up in MoCo politics in 2006 when he ran for Delegate in District 39. At that time, the three incumbent Delegates – all of whom were running for reelection – were Nancy King, Charlie Barkley and Joan Stern. Stern was a lackluster two-term Delegate who was best known for introducing legislation that would let customers bring dogs to restaurants. Her colleagues dumped her from their slate. Saqib got the Apple Ballot and beat her by more than 1,200 votes.

This was an early sign that Saqib Ali does not fear incumbents.

One year later, District 39 State Senator P.J. Hogan stepped down. Saqib, King and former Delegate Gene Counihan interviewed with the county’s Democratic Central Committee for an appointment to succeed him. Counihan was eliminated in the first round and Saqib lost to King in the second round by a 13-9 vote. Rumor had it that Senate President Mike Miller was making calls on King’s behalf. Saqib didn’t take his defeat well, drafting legislation that required central committees to take open votes on appointments. MoCo’s central committee voluntarily shifted to open votes rather than see Saqib’s bill pass.

For the next two years, Saqib and Nancy King co-existed uneasily. No matter what King did, Saqib went to her left and noisily announced it – especially when the two diverged on slots. In 2009, Saqib even published a four-part blog series analyzing how much more progressive he was than King on marriage equality, tax policy and alcohol.

But Saqib wasn’t just an attack dog – he mixed in repeated doses of social media comedy to delight his fans. Saqib was one of the earliest and most effective users of Facebook in MoCo politics. He often rewarded articles published about him – including ones that were not particularly nice – with lots of promotion and trackable eyeballs. I certainly noticed! I called him “Facebook’s favorite Delegate” and wrote, “If Ali changed his pajama color, it would go public.” No freshman politician in all of MoCo got more online attention than Saqib Ali.

In April 2010, Saqib pulled the trigger and did what everyone expected him to do: he announced he was running against Nancy King. What followed was one of the wildest primaries in MoCo political history. King was supported by the teachers, the Washington Post, the Gazette, SEIU, the AFL-CIO, the fire fighters, the police, NARAL, the realtors and virtually the entire Annapolis establishment. Saqib was supported by MCGEO, the Sierra Club, the League of Conservation Voters and Casa in Action. Both candidates had tons of money. King had backup from Mike Miller’s team. Saqib’s campaign manager was Ben Shnider, who would go on to wage an improbable but almost successful challenge to Montgomery County Council Member Sidney Katz eight years later.

The dominant feature of the 2010 District 39 Senate race was the ruthless, bloody-fisted negative campaigning waged by both sides. This was one of the nastiest political wars of all time. Saqib depicted King as a tool of corporate bosses in the alcohol and gambling industries as well as political bosses in Annapolis (especially Miller). King depicted Saqib as a lazy fool who accomplished nothing and slept on the job at the statehouse. King even coined a nickname for her opponent – “Sleepy Saqib” – that was featured prominently in an attack website as well as her mail.

Here are a few of King’s attacks on Saqib.

And here are a few of Saqib’s attacks on King.

In the end, Nancy King prevailed with 51.7% of the vote, a 248-vote margin over Saqib. In the following redistricting, Saqib’s residence was moved into District 15 to prevent him from challenging King again. Saqib finished last in a five-person school board primary two years later and is now one of Maryland’s leading advocates for a boycott of Israel, something that is sure to come up in his race. As for King, she has never been seriously challenged since. (That’s a good thing for her because that one race was equal to five really tough ones!)

There is nothing particularly objectionable about District 15’s current legislators. Senator Brian Feldman is one of MoCo’s top go-to people in Annapolis. Delegate Kathleen Dumais has been a vice chair of two House committees and was once parliamentarian. Delegate David Fraser-Hidalgo was a leader in the effort to ban fracking in 2017 and freshman Delegate Lily Qi is a prominent voice for economic development. Together, they’re a solid crew and have little in the way of obvious weakness.

But for better or worse, none of them are Saqib.

Having watched Saqib up close ten years ago, his playbook is easy to understand. He will blast the incumbents for any tough budget votes they have to cast next year. He will go to their left on every issue imaginable. He will be all over social media. He will have more than enough money to compete. And most of all, he will bring enormous energy to the campaign. Whatever else he is, Saqib is a hard worker who concedes nothing to incumbents. He may or may not win, but if he is the same Saqib he was in 2010, he will make the incumbents work harder than they ever have in a political race to survive.

And Seventh State will be watching.

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Will Talbot County Choose Tourism or Slavery?

By Adam Pagnucco.

Talbot County is one of the best vacation spots on the entire East Coast. Visitors can enjoy excellent restaurants, superb art galleries and museums, great shopping, boating on the bay and deluxe accommodations at the Inn at Perry Cabin, the Tidewater Inn, the Robert Morris Inn and Sandaway Suites. It’s a perfect place for affluent tourists from Baltimore, Washington, Philadelphia and New York to get away for a long weekend. But Talbot County’s leaders might be ready to give all of that up. Why?

Because some of them appear to believe that honoring slavery is more important.

The issue at hand is the fate of the Talbot Boys statue at the Talbot County Courthouse in Easton. Dedicated in 1916, the statue is one of hundreds erected by sympathizers of the Confederate States of America (C.S.A.) decades after the Civil War ended. As part of their effort to whitewash history, confederate supporters attempted to depict the conflict as being about states’ rights but the statements made by the seceding states themselves demonstrated that their real cause was protecting slavery. Opponents have tried to get the Talbot Boys statue removed before, but nationwide protests against racism have given the effort new energy.

Photo credit: Wikipedia.

On June 23, Talbot County Council President Corey Pack authored Resolution 290 for consideration by the 5-member council. The resolution would remove the statue but it would preserve the statue’s base, which says “C.S.A.” and lists the names of confederate soldiers from Talbot County. It also contains this language concerning other statues on county property.

No new statues depicting persons, signs or symbols associated with military action shall be permitted on County-owned property.

Existing statues depicting persons, signs or symbols associated with military action shall be removed from County-owned property.

The emphasis of new monuments associated with military action located on County-owned property shall be on the names of those American servicemen and women who served in the conflict.

For the avoidance of doubt, the prohibition on statues depicting persons, signs or symbols associated with military action does not apply to the statue of Frederick Douglass, who is remembered for his contributions to civil society.

This resolution would preserve a statue base as a monument to the C.S.A. while prohibiting statues honoring American veterans of all other wars, including the Revolutionary War and both world wars. Another proposal from Council Member Frank Divilio would construct a “unity statue” of two boys, one from the union and the other from the confederacy, facing each other with their respective flags. Council Member Laura Price has said that the council should not be influenced by “an angry national movement.” Council Member Chuck Callahan has voted along with Pack and Price against removing the statue on previous occasions. Only Council Member Pete Lesher, the council’s sole Democrat, has called for removing the entire confederate monument altogether.

Let’s remember that the Talbot Boys statue stands near the entrance to the county courthouse. Apparently, those who protect it believe that people of color should have to look at a monument to white supremacy as they enter the courthouse, a place in which they are supposed to receive equal justice under the law. What more wretched symbol of due process could there be than something that celebrates slavery?

While Talbot’s leaders dicker over how much they should honor white supremacy, a long list of communities in the former confederate states have been taking down their monuments to traitors. They include Alexandria, Virginia; Birmingham, Alabama; Dallas, Texas; Houston, Texas; Louisville, Kentucky; Memphis, Tennessee; the University of Mississippi; New Orleans, Louisiana; Norfolk, Virginia; Orlando, Florida; Raleigh, North Carolina; San Antonio, Texas; Tampa, Florida and many others. More than 30 confederate monuments have been removed in Texas alone. Richmond, Virginia – the former capital city of the Confederacy – is on the verge of removing its confederate statues. Even lawmakers in Mississippi voted to remove the confederate battle flag from their state flag. Why should Talbot County be more protective of the Confederacy than many of the communities that actually were part of the Confederacy?

Talbot County has a large and profitable tourism industry that is struggling with the COVID-19 crisis. It depends on people from Baltimore, Bethesda, Chevy Chase, Potomac, Fairfax, New York, Philadelphia, Washington and other (mostly progressive) communities staying over in Easton, St. Michaels and Oxford. Measured by percentage of employment and private sector wages paid, Talbot County is more dependent on its leisure and hospitality industries than anywhere else in Maryland except for Worcester and Queen Anne’s Counties.

What happens if Talbot’s county government comes out in defense of the Confederacy? Let’s just say that folks in the areas listed above are going to find out about that and they have MANY other tourism options in Maryland and elsewhere. Talbot would be wise to heed the experiences of South Carolina, which was boycotted by the NAACP and the NCAA for 15 years over its use of the confederate flag, and Arizona, which lost a Super Bowl because of its failure to recognize Martin Luther King Jr.’s birthday as a holiday. Do Talbot’s elected officials really want to roll the dice with their economy?

Talbot County’s leaders have a choice. They can join the 21st Century along with communities in Alabama, Mississippi, Texas and the confederate capital of Richmond. Or they can trade tourism for nostalgia over slavery.

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MoCo Could Use More County Council Districts

By Adam Pagnucco.

Abolishing at-large county council seats is a really bad idea because it would eliminate most political competition in county elections. However, adding council district seats is justified. Relative to other large jurisdictions in the area, MoCo has few local legislators per capita and huge districts.

The table below shows the number of local legislators (city and county council members, supervisors and board members) per 100,000 residents for 13 major jurisdictions in the area. Elected officials of municipal governments inside those jurisdictions (like the city governments of Rockville and Gaithersburg) are not included.

Large jurisdictions in the region have an average of 1.5 local legislators per 100,000 residents. At 0.9, MoCo is on the lower end of this distribution. If MoCo were to have the regional average number of local legislators per capita, it would have a 15-member county council.

The table below shows the number of residents per local district. Two jurisdictions (Alexandria and Arlington) do not have districts as all local legislators are elected at-large. Three others (Anne Arundel, Baltimore County and Howard) have all district-based legislators. The others in the table have a mix of district and at-large members. Prince George’s County once had 9 district-based council members, but in 2016, residents approved Question D to add 2 at-large members by a 67-33% vote.

With over 210,000 residents per local legislative district, MoCo’s districts have more than twice the number of people as the regional average. Let’s bear in mind that council members typically have just the equivalent of 4 full-time staff members each. District council offices, which are the primary points of contact for constituent services, can easily get swamped by service requests during busy times. (When I worked at the council years ago, District 1 would easily generate the most constituent contacts, especially when there were power outages!) If MoCo were to emulate the regional average, the county would have 10 council districts.

And so if there is to be a structural change to the county council, it should not be abolishing at-large seats – a change that would eliminate most political competition for council. Rather, the at-large seats should be kept and the number of districts should be expanded. Such a system would be more expensive for taxpayers because it would add politicians and staff. But it might increase responsiveness to constituents and it would preserve electoral competition, two big benefits for MoCo residents.

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Sitting Judges Chair Responds to Lock em Up Post

By Adam Pagnucco.

Sitting Judges slate chair J. Stephen McAuliffe sent us the response below to our post on challenger Marylin Pierre’s “Lock em up” tweet.

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As Ms. Pierre had an opportunity to respond to your article titled “Judge Candidate on Floyd Cops: ‘Lock Em Up,’” the Sitting Judges Montgomery County Slate (“Sitting Judges”) would appreciate the opportunity to respond as well.

First, the Sitting Judges appreciate the time and effort you took to construct your article, particularly relating to identifying the legal and factual inaccuracies in Ms. Pierre’s tweet of June 1, 2020. The statements made by Ms. Pierre were made the day before the Primary Election and obviously intended to benefit her campaign. You pointed out Ms. Pierre’s flawed conflation of crimes and civil causes of action, and her confusion of the appropriate burdens of proof in criminal matters. These are very basic legal concepts that Ms. Pierre either does not understand or ignores.

There might be some misunderstanding by your readers of why judges do not speak on pending criminal or other court matters or on political and socially charged issues, as do candidates for other offices. Your article indicates the reason is “because most are vetted by judicial nominating commissions and appointed by the governor”…and that [i]ncumbents who have gone through the vetting process claim that its thoroughness qualifies them as a judge and therefore should be respected by voters.” Your article implies that judges are intentionally silent because they want to rest entirely on vetting, but it is far more than that. While vetting is important, this assertion misses the opportunity to inform the public that judges are obligated to comply with the Maryland Code of Judicial Conduct. See Maryland Rules 18-100.1 et seq. Restraint is necessary to maintain the integrity of the judicial system, which is why compliance with the Code of Conduct is mandatory.

Vetting of applicants for judicial positions is essential. Judges sit for a 15-year term, and have the ability to substantially impact the litigants that come before them. Vetting includes talking to lawyers who have been adverse to the applicant, judges in front of whom the applicants have appeared, organizations in which the applicant asserts she participated, and references provided by the applicants. Judges who are ill prepared, inflate their qualifications, are intemperate or who lack legal skills and acumen could not only ruin the lives of the people and businesses that appear before them, but could also do immeasurable damage to the confidence of the community in our justice system. The vetting process is vital because it helps weed out those who, for example, have shown throughout their career a lack of understanding of fundamental legal concepts and the inability to articulate them, and who lack the temper and demeanor to be a good judge; it weeds out bad lawyers who will make bad judges.

Ms. Pierre applied nine (9) times for fourteen (14) different judicial vacancies in Montgomery County between 2012 and 2017. She was vetted numerous times over the years by many different specialty and minority bar groups, which reported their findings and recommendations to the Montgomery County Trial Courts Nominating Commission. Her applications were vetted and reviewed by Commissions appointed by both a Democrat (O’Malley) (5 applications for 9 positions) and a Republican (Hogan) (4 applications for 5 positions). Commissions are charged with the responsibility to nominate only lawyers “most distinguished for integrity, wisdom and sound legal knowledge” as set forth in the Constitution of Maryland. Ms. Pierre has never been nominated by any Commission and no longer participates in the vetting process.

Restraint is a fundamental requirement of the duties of this office. A judicial candidate who takes seriously the responsibility and duties of this office should never opine about the guilt or innocence of anyone before that individual has set foot before a jury of his or her peers, or been convicted of any crime, or pleaded guilty. Even then, judges remain silent, to avoid the appearance of bias or partiality. Judicial candidates, including Ms. Pierre, are bound by the same canons of ethics as judges in many respects. Rule 18-104.4 provides, in pertinent part, that judicial candidates:

(a) “shall act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary and maintain the dignity appropriate to judicial office”

Ms. Pierre has made statements that evidence partiality, in her tweets and elsewhere, in effort to gain favor at the polls. She has done so without consideration to the damage that a failure to understand or apply the burden of proof would have on this community, including on criminal defendants of color.

(b) “As to statements and materials made or produced during a campaign: (1) shall review, approve, and be responsible for the content of all campaign statements and materials produced by the candidate or by the candidate’s campaign committee or other authorized agents” and (2) “shall take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities that the candidate is prohibited from doing by this Rule.”

Ms. Pierre’s tweet is consistent with her poor reputation in the legal community, and so her belated claim (made 3 weeks after the tweet and after any intended damage to the Sitting Judges Campaign was done) that a “volunteer” made the tweet is suspect at best. Frankly, the tweet is similar in style to prior social media posts by the candidate, but candidates are responsible for content regardless of authorship.

(c) “shall not knowingly, or with reckless disregard for the truth, misrepresent the candidate’s identity or qualifications, the identity or qualifications of an opponent, or any other fact, or make any false or misleading statement;”

Ms. Pierre has made blatantly false statements, including that “The sitting judges are somewhat diverse in that they are black, Asian, gay and straight, men and women. But they are not really diverse. They are an in-group. Most of them have worked at the same law firm, go to the same church, and are related by marriage.” While the statement that the sitting judges are diverse is true, her statement that “most of them have worked at the same law firm” is blatantly false. Her statement that they “go to the same church” is blatantly false. Her statement that “most of them are related by marriage” is blatantly false. These statements are not the only false statements made by Ms. Pierre during this campaign and her last campaign. The sitting judges in Montgomery County are indeed an “in-group” to the extent they have all been vetted and found qualified to sit as judges, and Ms. Pierre is certainly not in that “in-group.”

What the Sitting Judges Montgomery County Slate want to make clear is that sitting judges remain silent because they follow the Rules. Judges agreed to sacrifice their individual First Amendment freedoms for the good of the community they serve. They behave at all times (personally and professionally) in a manner consistent with the independence, integrity, and impartiality of the judiciary and maintain the dignity appropriate to judicial office. Ms. Pierre flouts that obligation now, and there is no reason to believe she will behave differently in the unfortunate event that she is elected.

Thank you.

J. Stephen McAuliffe, Chair
Elect Sitting Judges Montgomery County Slate

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Don’t Abolish the At-Large County Council Seats

By Adam Pagnucco.

Since 1990, the Montgomery County Council has had five district seats and four at-large seats. Every few years, proposals are made to get rid of the at-large seats and go to an all-district seat system. County voters rejected a ballot question doing so in 2004 by a 61-39% vote. The county is fortunate that they did because getting rid of the at-large seats is a terrible idea.

Why is that so?

The table below shows the outcome of council district races over the last six cycles, plus open seat special elections in 2002, 2008 and 2009.

Here is the distribution of outcomes in these contests.

The huge majority of these races are non-competitive when Democratic incumbents are on the ballot. In fact, a Democratic district incumbent has not been defeated since 1998, when challenger Phil Andrews door-knocked his way to victory against District 3 incumbent Bill Hanna. Since then, a challenger to a district incumbent has come within 10 points only twice. Democratic district incumbents have an 18-1 win-loss record since 1998, which includes 5 races with no opponent. In the last 10 races with district incumbents, the incumbents have won by 40 points or more 8 times.

Now let’s look at at-large council races since 1990.

There are four at-large council seats. In every cycle since the current system was instituted, there has been more than four at-large candidates, meaning there has always been competition. That has been true even in cycles in which all four incumbents were running (2010 and 2014). In three cycles (2002, 2006 and 2010), an incumbent was defeated. In 2018, an incredible 33 Democrats ran at-large when 3 open seats were available.

Public financing no doubt played a role in encouraging so many candidates to run at-large. In contrast, district races with incumbents in 2018 were sleepy aside from District 3, in which the incumbent used public financing and the challenger stayed in the traditional system. (The incumbent won.)

All of the above illustrates a central fact: at-large races with incumbents usually have much more competition than district races with incumbents. One reason for that is the nature of such elections. An at-large race is a beauty contest with the four most popular candidates winning. Negative campaigning is uncommon except when slates are present (as in 2002). But in a district race with an incumbent, a challenger must make the case that the incumbent has committed a firing offense; otherwise, voters tend to go with the incumbent. Most candidates stay clear of heavy-lifting negative campaigns, especially when they are likely to lose, and with rare exceptions (like 2018 District 3 challenger Ben Shnider) the best ones prefer to run at-large.

Political competition is precious. Decades of evidence from our elections shows that abolishing at-large council seats would destroy most political competition in council elections. That is a really bad idea.

That said, supporters of adding districts are not wrong. More on that tomorrow.

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Judge Candidate on Floyd Cops: “Lock Em Up”

By Adam Pagnucco.

Challenger Marylin Pierre, who is running against a slate of four sitting circuit court judges, will be appearing on the ballot in MoCo’s general election. If elected, she will preside over civil, family, juvenile and criminal cases for 15 years.

Circuit court judicial candidates usually don’t talk much about issues when they run like candidates for other offices do. That’s because most are vetted by judicial nominating commissions and appointed by the governor, after which they serve on the bench temporarily and must run in the next election to serve a full term. Incumbents who have gone through the vetting process claim that its thoroughness qualifies them as judges and therefore should be respected by voters. This language by MoCo’s incumbent slate is typical of how judicial incumbents make their case.

The four judges on the “Elect Sitting Judges Montgomery County Slate” – the incumbents in the upcoming election – have gone through the Judicial Nominating Commission process. 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.

The Sitting Judge Principle ensures that Montgomery County has only the most qualified judges on the bench. The diverse organizations that participate in the vetting process have ensured the appointment of a bench that reflects our community. The Sitting Judges are experienced, vetted and approved.

The sitting judge slates in Anne Arundel County, Baltimore County and Prince George’s County use similar language on their websites. That’s the playbook for incumbents.

Deprived of such accreditation, challengers who fail to get through the vetting process must state their case persuasively enough to overcome that in the eyes of voters. That brings us to Pierre. In the wake of the death of Minnesota man George Floyd at the hands of police, Pierre tweeted this on June 1.

When challenged on this, Pierre had the following exchange with another person holding a different view. (I redacted the person’s identity.)

The notion that a criminal defendant bears the burden of proof at trial is inconsistent with the due process clauses of the U.S. Constitution. The U.S. Supreme Court has clarified exactly what due process means on at least two occasions. In Speiser v. Randall, 357 U. S. 513, 525-526 (1958), Justice William J. Brennan Jr. wrote for the court, “Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt.” And in In re Winship, 397 U.S. 358, 364 (1970), Brennan wrote for the court, “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Pierre’s reference to “contributory negligence” is also strange. Contributory negligence is a doctrine primarily found in tort law, not criminal law, that prevents plaintiffs from recovering damages if they are at least partially at fault for their injuries even if the defendant is more at fault. Maryland is one of a handful of states that uses this doctrine but Minnesota abandoned it in 1969. What does this have to do with George Floyd’s death?

Pierre should know all about due process standards for criminal defendants. She is a graduate of Howard University Law School and the John Jay College of Criminal Justice. She has practiced law for 28 years and has a long list of professional and other qualifications. She even tweeted on May 30, “We are all presumed innocent until proven guilty.”

On June 18, 17 days after Pierre posted the “Lock em up” tweet, I emailed her asking for comment. I used an email address (MarylinForMaryland@gmail.com) to which she had replied three days before and appears on her website. I wrote:

Hello Ms. Pierre – Recently, I came across this tweet from you on the police officers who were charged with murdering George Floyd.

https://twitter.com/Pierreforjudge/status/1267538735958315008

I am thinking about writing about this but first I’d like to hear your point of view. Specifically, can you comment on how this tweet conforms with the due process rights of criminal defendants?

Adam Pagnucco

As of this writing (June 22), she has not replied. But she did delete the “Lock em up” tweet at some point after I contacted her.

And now the question falls to you. If you are a MoCo voter, do you believe Marylin Pierre should be a circuit court judge?

Update: Pierre sent me the following email three hours after this post went up. I am reprinting the email below but I am deleting the phone number she provided to protect her privacy.

Mr. Pagnucco,

The Marylin Pierre For Judge campaign has read the article you wrote about the tweet from the @PierreForJudge account. Running a campaign is so time-consuming that some of the duties have to be delegated. The Marylin Pierre For Judge campaign established some guidelines and the person running the twitter account has been diligent in following those guidelines until the tweet that you wrote about. We think that this had to do with the traumatic incident and the volunteer’s reaction to it. We have discussed the tweet with the volunteer and we went over the guidelines again.

Sometimes we are able to answer questions very quickly and sometimes we are not. We regret that we did not get a chance to respond to your inquiry before you posted the article.

If you would like to contact us, things move so quickly that you may need to call and a text at [phone number deleted by Pagnucco] instead of just sending an e-mail. Thank you for your time and attention.

Marylin

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