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by David A. Plymyer11:09 amDec 2, 20220

Self-dealing, political payback and drift

The prospects for Nick Mosby’s probably illegal pension bill are now shaky. But the whole saga is a sad commentary on the state of Baltimore City government. [OP-ED]

Above: Mayor Brandon Scott and Council President Nick Mosby enter City Hall in a 2021 photo tweeted by Mosby’s office. (@BaltCouncil)

The Baltimore Board of Ethics asked Mayor Brandon Scott to delay signing Bill 22-0292 until it could issue a formal opinion on the bill. Instead, Scott vetoed it.

It is the latest twist in a saga that has been a dismal commentary on city government.

The bill, sponsored and fast-tracked by Council President Nick Mosby, would reduce from 12 to 8 the years of service required for current and future elected officials to vest in the right to receive pension benefits at age 55 under the city’s Elected Officials’ Retirement System.

In a letter signed by chairman Stephan Fogleman, the ethics board expressed concern that the bill violated city ethics laws because it would enhance the pension benefits of Council members during their current terms of office, creating a potential conflict between the public’s interest and the personal interests of the Council members who voted on it.

The question now becomes whether the ethics board can get its opinion issued before the Council attempts to override the mayor’s veto, although an attempted override appears increasingly unlikely.

The ethical and constitutional issues are separate, but the board’s concern about the ethics of the measure tracks the prohibition in Article III, Section 35 of the Maryland Constitution against increasing or diminishing the salary or compensation of a public officer “during his term of office.”

When he testified against the bill, David Randall, executive director of the city’s Employees and Elected Officials Retirements Systems, observed: “While it may not be unconstitutional, it is highly unusual for elected officials to enhance their benefits while in term.”

It is highly unusual because the constitutionality of in-term enhancements rests on a dubious opinion issued by the Maryland Attorney General in 1993. The AG concluded that increases in pension benefits do not violate Article III, Section 35 because pensions are paid only after an official leaves office, not “during his term of office.”

Set up for Self-Serving

What makes Bill 22-0292 different, however, is that for many Council members a significant change would occur during their current terms.

Under the bill, the six members first elected in 2016 would vest in the right to receive a pension at age 55 during their current terms, and they would no longer have to win re-election to secure their pensions. Even if ethical and constitutional, that kind of self-serving legislation stinks.

To add to the stench, the exact impact of the bill on other Council members cannot be determined without knowing how many years of credited pension service they have based on prior employment with the city or another state or local government agency in Maryland.

Because that information is protected from disclosure by the Maryland Public Information Act, the public is in the dark on the extent to which those members would benefit from the bill.

I have no doubt that Mosby was one of the intended beneficiaries.

As stated in a prior analysis, I have no doubt that Mosby himself is one of the intended beneficiaries of the accelerated vesting.

And then there’s the point raised by former Mayor Sheila Dixon:

That Bill 22-0292 was not based on a recommendation by the Compensation Commission for Elected Officials, a group created by a charter amendment approved by the voters in 2006.

No change to the “salary or allowances” of city elected officials can be made unless recommended by the commission. The term “allowances” has been construed by Maryland courts under similar circumstances to include retirement allowances, such as pensions, annuities and retiree health benefits.

The commission was intended to play the role that the General Assembly Compensation Commission plays for state legislators, which includes protecting citizens from the greed of their public servants. The excesses of the Elected Officials’ Retirement System gave city voters ample reason to be concerned about that greed.

Impact on Mayor Scott

The mayor’s situation is a prime example.

Under existing law, enacted before establishment of the compensation commission, Scott will be eligible to receive a pension after 16 years of service regardless of age.

Consequently, if he leaves office in 2024 and has credit for at least three years of his employment with the city before becoming a member of the Council in 2011, he immediately becomes eligible, at 40 years of age, for a lifetime pension of almost $80,000. Only a pension plan corrupted by self-interest would allow that to happen.

Bill 22-0292, at least on its face, would take that right away from Scott and replace it with the right to a pension upon reaching age 55. Whether a court would uphold such a drastic change to his pension benefits is another matter, as described in the prior analysis.

The bill appeared crafted to hurt the mayor, giving him another reason to veto it.

The least surprising feature of the bill is that it appears crafted to help Mosby and other Council members and hurt Scott.

So, Scott had a selfish reason to veto Bill 22-0292 as well as a good one. The good reason was that Bill 22-0292 is a terrible bill that likely violates both city and state law. The selfish reason was to preserve his own extraordinarily generous pension benefits.

He did the right thing by vetoing the bill, regardless of any ambiguity about his motives.

After all, few things are unambiguous in city government nowadays – other than the fact that city politics have become a sordid mess directly affecting the quality of governance. I see absolutely no ambiguity about that.

David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. He can be reached at dplymyer@comcast.net and Twitter @dplymyer.

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