GROWTH BATTLE CONTINUES WITH YOUNG APPOINTMENT

George Wenschhof

Don’t hold your breath for an amiable start to charter government in Frederick County, Maryland.  In one of the last acts by the current board of commissioners, and a poke in the eye to incoming county executive Jan Gardner(D), they appointed board president Blaine Young(R) to a vacant planning commission position.  This appointment to the planning commission will actually last longer than the four year term Gardner just won with the November election.

The supporters of Jan Gardner will call foul and argue she should be allowed to appoint the person to fill this position to a commission that captures the attention of those who follow the government actions pertaining to growth.

However, per the charter, the incoming county executive must receive approval from the county council for any appointments to commissions and any “at-will” employees she may wish to hire. The “at-will” employees are department heads that serve at the pleasure and are not merit employees.

With the composition of the council being 4-3 Republican, do not expect someone like a Gardner supporter and former county commissioner Kai Hagen(D) to  receive approval from the council.

But, when looking at the appointment of commissioner Blaine Young to the planning commission, the state constitution spells out a person cannot hold two positions in which they receive compensation.  A planning commission member does receive a small amount of compensation.

When I discussed this with county attorney John Mathias, he pointed out the appointment of Young to the planning commission takes effect on November 30, a Sunday and the last day before charter is enacted and the new elected officials take office.  In all practicality, he added nothing would be done on a Sunday.  Furthermore, Mathias said that by Young’s acceptance of the planning commission position, it would be deemed he had resigned his county commissioner position on Sunday November 30.

It will also be interesting to see who is elected president and vice-president of the council. The president will preside over the meetings.  Both positions are called for by the charter and are determined by vote of the full council.  With a 4-3 Republican advantage look to see these two positions filled by Republicans Bud Otis and Billy Shreve who were both elected at-large.  Otis received the most votes, but county commissioner Billy Shreve, a big Young supporter, will also want this position.  The council can decide to add another position, and if they choose to do so, perhaps another Republican council elect member Kirby Delauter or Tony Chmelik would take this slot.

Otis would be the wiser choice over Shreve for council president and he has the most promise to actually understand he is the swing vote and act in a more common sense manner.  It is obvious Shreve will continue his blind carte blanche support Blaine Young and his policies toward growth.

Regardless of who becomes council president, with Young on the planning commission and a Republican majority council, Frederick County residents can expect little cooperation with county executive elect Gardner and her positions on how best to manage growth.

Stay tuned.

ATTORNEY NEEDED FOR FREDERICK COUNTY COUNCIL

George Wenschhof

The overreaching of authority by Frederick County executive Jan Gardner(D) illustrates the need for an attorney representing the Frederick County council.

It is not surprising there is some confusion as charter government is implemented in Frederick County.

Watching the meeting held by the council on the 16th, it quickly became evident county attorney John Mathias, who works at the pleasure of the county executive, should not be the one giving advice to the council.

In their second meeting, council president Bud Otis(R) did not display a grasp of his position and council members would often ask questions poised to Mathias.  In the future, they will hopefully make motions to receive answers to questions.

Initial questions posed by council member Billy Shreve(R) pertaining to the instructions issued by Gardner for Mathias to not represent the county in regard to a court hearing on a Developer Rights and Responsibilities Agreement (DRRA) on Monrovia Towne Center brought about a response from Mathias directed to council president Bud Otis that he thought they had agreed this issue would not be on the agenda.

Mathias would then walk back Gardner’s instructions for him to not appear by saying the county was still representing their position on the agreement and that they had simply relinquished their time to the developers attorneys at this hearing.

A DRRA is a contract and having been agreed to by the previous board of county commissioners, the county executive does not have the authority to order the agreement not to be defended by county counsel.

At another point in the meeting when council members Shreve and Kirby Delauter(R), and Tony Chmelik(R) questioned the actions taken by Gardner to hire campaign supporters to new positions she created with the county, Mathias again said he understood this was not on the agenda to be discussed.  When Delauter pointed out the council has the authority to subpoena witnesses and investigate issues, Mathias was quick to advice against this, saying it would be a poor start to the new charter government and that he would send a response to questions to council members.

In addition, when former board of commissioners Blaine Young(R) questioned the action taken by Gardner to transfer a county employee (who he admitted to having a relationship with), to another department at a loss of $40,000 in pay, there was again no satisfactory answer given.

Further evidence of the need for independent counsel for the county council were the actions taken by county attorney Mathias in regard to the recent appointment of Young to the Planning Commission.

In a letter to Young prior to the appointment, Mathias spelled out to Young how and when the appointment should be made and added his acceptance of the planning commission position would be deemed he had resigned from the board of county commissioners.

After Gardner was sworn in, Mathias sent a memo to her saying that it was a 50/50 proposition as to how Young’s acceptance of the planning commission position would be interpreted by law.

Mathias has been an excellent county attorney for many years and it is wise for Gardner to retain him.

However, with the implementation of charter government, it is clear the council, a separate body from the executive branch, should have their own legal staff.

It is understandable there will be growing pains during the implementation of charter.  But, it is imperative, regardless of political party, charter government is implemented fairly in Frederick County with the appropriate checks and balances in place envisioned by the charter writing board.

Stay tuned.

IS GARDNER OVERREACHING HER AUTHORITY?

George Wenschhof

The first two announcements made from Frederick County’s first elected county executive have raised questions as to whether she has the authority to take the actions she took.

First, county executive Jan Gardner announced a handful of appointments that required changes in personnel rules according to Mitch Hose, director of Human Resources.  Included in this announcement was the creation of new positions without approval from the county council.  The council must approve the budget so some are questioning why the county executive did not submit to the council changes to the budget to pay for these positions.

In addition, the position of government policy/relations replaced the position previously held by David Dunn was an “at-will” which falls under division heads that must receive confirmation from the council for approval.

Secondly, Gardner followed up in her first week in office, by announcing she had instructed the county attorney to not attend a court proceeding to represent and defend the county position on a Developers Rights and Responsibility Agreement (DRRA).  This DRRA pertained to the controversial Monrovia Town Center development, a major campaign issue during the recent election.

The charter clearly states land use authority rests with the council.  One member of the charter writing committee told me they believed at a minimum, Gardner should have consulted the council before taking that action.  Another member of the charter writing committee expressed concern with her action.

This is a good question for if the council approves a DRRA in the future and the county executive does not agree with it, do they have the authority to order the county attorney to not defend the DRRA, if contested in court?

If this is true, will the county council need to retain a lawyer to represent their positions?

The interaction between the county executive and county council will play out during this first term under the new charter and the actions taken by both will provide precedent for future councils and executives.

What is clear is the two bodies are separate deliberately to provide for a balance of power, well known in U.S. representative democracy.

Gardner, a former president of the board of commissions, will find the council is not a board of commissioners and members of the council will be learning their responsibilities and authority provided under the charter.

Look to see if the council challenges these actions taken by Gardner or allows them to stand.

I have heard Gardner is scheduling meetings with former Maryland county executives Doug Duncan (Montgomery) and Ken Ulman (Howard) to discuss how they functioned in the role of county executive during their time in office.  This is a wise move.

Perhaps, the Frederick county council should also consult with existing county councils in the state to see how they interact with their county executives on these and other important issues.

One thing that appears certain is implementation of charter in Frederick County will likely be a work in progress over the first term.

Let’s hope both strive to exercise their authority appropriately and work together to provide a better future for Frederick County residents.

Stay tuned.

CHANGES IN PERSONNEL RULES NEEDED TO COVER GARDNER APPOINTMENTS

George Wenschhof

I listened with interest as Frederick County Executive Jan Gardner(D) made her announcement on Wednesday of five appointments.

Other than the interim hire of Mike Gastley as budget director, I wondered if the council would approve the other appointments.  Interestingly, newly elected council president Bud Otis(R) said during the press announcement the county executive should be able to hire her staff.

However, he neglected to note the charter calls for confirmation by the council of appointments by the county executive, except for interim appointments.  Interim appointments cannot last longer than six months.

Gardner began her announcement by saying she would be keeping Mike Marschner as special projects manager and adding Margaret Nusbaum as another special projects manager.  Both positions she added would be part time.

Neither was a surprise.  Mike Marschner prepared the power point presentation that promoted the county building an Incinerator. Gardner who was then president of the board of county commissioners also strongly supported the building of an incinerator.  She would go on to write 4 columns on my Blog, FrederickPolitics.com arguing against fellow Democratic commissioner Kai Hagen, who opposed this action.

Nussbaum was Gardner’s campaign manager during her run for county executive.

Janice Spiegel was appointed to the new position of education liaison to work with the board of education and Frederick Community College as Jan put it.

Roger Wilson was named to a new position serving as government policy/affairs and liaison to work with government entities.  A position previously held by David Dunn, who previously served in an “at-will” position.

Gardner admitted the new positions exceeded current budget allotments, but she was comfortable the money could be found to cover the expense.

Her final appointment was Mike Gastley, who she made a point to state she was naming him as interim Budget Director.

The charter allows for a temporary appointment to be made by the county executive without council approval, providing it does not last more than 6 months.  In this case, with the need to submit a county budget looming, an interim appointment for this position is understood.

Appointments made by the county executive to other positions require confirmation by the council.  The charter also states if the council takes no action within 30 days of said appointments, the appointments will be deemed approved.

Curiosity led me to call county attorney John Mathias to ask him if the Gardner appointments needed council approval.  He referred me to Human Resources Director Mitch Hose, who told me changes in personnel policy were being written to cover these appointments.

I asked Hose if Gardner acted before the changes were made and he said yes.  I also asked if council approval was needed for these personnel changes and he said yes, but he saw no problem in receiving council approval. We both agreed had she hired all the positions on a temporary basis, it would have been permitted, up to six months before council approval would need to be obtained.  We both also agreed she did not state this in her announcement.

The county executive should be allowed to hire staff and make appointments to board/commissions.

However, checks and balances of council confirmation are necessary to ensure public confidence against political cronyism and to keep an eye on the budget.

This is an interesting start to charter in Frederick County.  Will the council rubber stamp the proposed personnel changes to support the hires made by Gardner or take no action for 30 days and allow the appointments to become permanent?

Stay tuned.