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by David A. Plymyer8:12 amDec 9, 20220

If Mosby’s pension bill ever comes back, the compensation commission must review it

The unseemliness around the recent attempt to ram through accelerated vesting for elected officials shows why Baltimore voters opted to create the review panel back in 2006 [OP-ED]

Above: Nick Mosby presides over a virtual City Council meeting. (WebEx)

Although Bill 22-0292 appears dead and buried, Baltimore City Council President Nick Mosby’s threat to resurrect it in the future merits one final thought on this travesty, which is:

If Mosby wants his proposal to accelerate vesting in pension benefits under the city’s Elected Officials’ Retirement System to be adopted, then he should ask Baltimore’s Compensation Commission for Elected Officials to consider it.

In other words, let’s do things the right way.

Former Mayor Sheila Dixon was president of the City Council in 2006 when voters approved the amendment to the city charter creating the compensation commission.

She recently told Fox45 that Bill 22-0292 violated the requirement that any changes in compensation for city elected officials must be based on a recommendation by the commission. The changes under bill 22-0292 were not and Dixon was right.

The ballot question placing the 2006 amendment before voters was taken right from the “purpose” clause of the City Council resolution, Resolution 05-09, that put the amendment on the ballot.

The clause described the amendment as “requiring certain procedures for setting the salaries or other compensation paid to elected officials.” (Emphasis added.)

Those procedures include an affirmative recommendation by the commission before any changes to compensation can be made.

The City Council can adopt or reject a commission recommendation but cannot change it. A recommendation goes into effect if the Council takes no action to either adopt or reject it.

Pensions are Compensation

Maryland courts have long taken the position that pensions, such as those received by city elected officials, are a form of compensation paid to employees for services rendered, with contractual rights to the compensation accruing during their active employment.

The City Council defined “compensation” in the text of the 2006 amendment as meaning “all salary and allowances paid to an elected official.” But that should not cause any confusion.

The purpose and context dictate that the reference to allowances includes “retirement allowances,” a generic term that the Maryland Court of Appeals has used to refer to retirement benefits, including annuities and pensions.

In fact, city law describes the purpose of the Elected Officials’ Retirement System as “providing retirement allowances, pensions and other incidental benefits” for its members.

That same law describes the “service retirement benefit” received by a member as consisting of an annuity and a pension. Retirement allowances, service retirement benefits, annuities, pensions – they are all forms of compensation within the scope of the compensation commission’s authority.

The city’s Compensation Commission was modeled on the General Assembly Compensation Commission, established by constitutional amendment in 1970 to ensure that the “compensation and allowances” for state senators and delegates were determined as fairly and objectively as possible. That commission has always construed its charge as including pensions paid to members of the General Assembly under the state Legislative Pension Plan.

The Court of Appeals has stated in innumerable decisions that the “cardinal rule” of statutory construction is determining the legislative intent.

Given that we have a statement of that intent right in the purpose clause of Resolution 05-09, the only reasonable interpretation of the charter is that members of the City Council are prohibited from changing any type of compensation they receive for their service in the absence of a recommendation by the Compensation Commission for Elected Officials.

The Compensation Commission has been dormant for a long time - it last met on March 28, 2019.

Baltimore’s compensation panel has long been dormant, last meeting on March 28, 2019, according to its webpage.

Mosby’s Motive

So, why doesn’t Mosby want the commission involved?

I suspect it is because a change in compensation recommended by the commission and adopted by the Council does not take effect until “the beginning of the next term of office.”

The next term of office for local elected officials begins on December 3, 2024.

That timing would work fine if the real concern was the newly adopted term limits on elected officials because the measure does not apply before then.

But for Mosby, that may be too late.

Bill 22-0292 has nothing to do with diversity. It has to do with Mosby’s fear that he will be forced from office in 2024 before he secures pension benefits.

In a letter to Mayor Brandon Scott on Monday chiding him for his veto of Bill 22-0292, Mosby stated that the veto would help curtail “the racial, gender and socioeconomic diversity among Baltimore’s elected officials” by discouraging less affluent residents from running for office.

In my opinion, Bill 22-0292 has nothing to do with diversity. As I described in an earlier analysis, I believe that it has to do with Mosby’s fear that he will be forced from office in 2024 before he secures pension benefits under existing law.

Generous Benefits

Chief Solicitor Elena DiPietro signed off on Mosby’s bill on behalf of the law office, referring to the general power given to the Council in the charter to amend the elected officials’ pension plan.

It appears that she concluded that the Council’s power was not conditioned on compliance with the subsequent requirements imposed on all changes to compensation by the 2006 amendment, although there is no discussion of the issue in her letter.

Retirement benefits under the Elected Officials’ Retirement System are extremely generous.

The legal argument relied on by DiPietro in deciding that such a significant part of the compensation of elected officials is exempt from the scope of the compensation commission’s responsibilities must be very persuasive.

The city law office never said why Mosby’s bill was exempt from review by the compensation commission. It should have.

The least that the law office can do is tell residents what that argument is.

There needs to be a vigorous public discussion on the future role, if any, of a defined benefit pension plan for elected officials, especially members of the City Council.

The unseemliness surrounding Bill 22-0292 shows why voters had placed these discussions in the hands of a commission that – significantly – excludes city officials or employees.

• 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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