Tag Archives: Gov. Martin O’Malley

MD Healthcare Leader? It’s Not Anthony Brown

By Barry Rascovar

For MarylandReporter.com

Dec. 23, 2013 – Who’s in charge of Maryland’s computerized Obamacare rollout? Until recently, Lt. Gov. Anthony Brown wanted you to believe he was the man.

For years, he’s been describing himself as Gov. Martin O’Malley’s “point man” on this crucial health insurance program. The governor’s press staff dutifully gives Brown co-authorship and quotable lines every time there’s a press release.

Yet it has become painfully clear Brown is not the “point man” on Obamacare, Maryland-style.

What Webster Says

By every dictionary definition, Brown fails that test.

Point man: “a person in the forefront of an economic or political issue” (Webster’s College Dictionary).

Not so. Brown is in his usual position – in the background as the governor’s second banana. At media events, he talks only when the governor directs him to do so.

Point man: “A man who has a crucial, often hazardous role in the forefront of an enterprise” (American Heritage Dictionary).

This doesn’t describe Brown’s role, either. His healthcare designation is symbolic, not substantive.

He co-chairs an oversight panel on healthcare reforms but it is Maryland’s health secretary, not Brown, who’s done the crucial, heavy lifting and taken the brunt of criticisms from legislators.

Point man: “the leader or spokesperson of a campaign or organization” (Collins English Dictionary).

Brown is neither leading the pack on Obamacare nor acting as spokesman for the computerized rollout – except when the governor is out of the country.

O’Malley Takes the Lead

More often than not Brown has had little to add to what more informed officials have to say about this terribly botched IT programming that continues to plague Obamacare in Maryland.

He’s avoided tough-questioning reporters and responded only in a few choreographed situations.


Anthony Brown brushes off healthcare questions from WBAL's Jayne Miller.

Lt. Gov. Anthony Brown brushes off healthcare questions from WBAL’s Jayne Miller.

Once the governor returned this month from his business development trip to Latin America, he stepped forward to answer the difficult questions about the healthcare insurance rollout. Brown has been relegated to a cheerleading role:

  • O’Malley is the one who ordered emergency IT fixes by mid-December.
  • O’Malley is the one who turned day-to-day authority for the exchange over to his top healthcare adviser.
  • O’Malley is the one who dispatched his information technology guru to figure out how to fix this deeply flawed project.
  • O’Malley is the one who announced hiring a Columbia-based computer management company to end this software nightmare.
  • O’Malley is the one holding a flurry of media events to discuss the rollout, both pro and con.
Governor O'Malley explains IT fixes to Maryland's healthcare rollout.

Governor O’Malley explains IT fixes to Maryland’s healthcare computer rollout.

Other than comments to back up the governor’s remarks, Brown has contributed little to the discussion.

Death-Watch Job

None of this is surprising.

Lieutenant governors in Maryland are pitifully neutered. They hold office for a single constitutional purpose – to replace the governor if the state’s leader dies or is incapacitated.

Brown has spent the vast majority of the past seven years in campaign mode, delivering prepared speeches at every conceivable event around the state.

He’s not deeply involved in policy decisions – no lieutenant governor is. The governor’s tight-knit inner circle of aides and advisors makes sure of it.

How Brown explains all this to voters is his biggest problem now that his lack of real responsibility has been laid bare.

Evaluating Anthony Brown

The lieutenant governor may be O’Malley’s heir apparent, but does this heir deserve that title?

His track record is slim. Until the botched healthcare rollout put Brown in an embarrassing spotlight, he was an unknown to most voters.

His future depends in large measure on O’Malley’s ability to find a way out of this healthcare debacle.

If enough IT patches make the Maryland Health Connection reliable and usable for both applicants and insurers, public ire may die down by the June 24 primary – D-Day for Brown.

But if computer glitches and foul-ups persist and tens of thousands of Marylanders are denied enrollment, if the state can’t provide insurers with accurate customer data and if public fury increases by early summer, Brown’s chances of winning could tumble.

The Obamacare debacle in Maryland has exposed Brown’s vulnerabilities. It could mark an inflection point in the nascent 2014 gubernatorial campaign.


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Lt. Gov. Anthony Brown and Obamacare

By Barry Rascovar

December 9, 2013 — Let’s face it: Maryland dropped the ball on implementing Obamacare. To date the rollout has been a failure.

Thirty-seven hundred sign-ups since October 1? That’s pathetic.

Who bears ultimate responsibility?

Let’s start at the top with Gov. Martin O’Malley and his designated point man on the healthcare rollout, Lt. Gov. Anthony Brown.

Ever since 2010, Brown has promoted his leadership role in the Obamacare implementation.

Lt. Gov. Anthony Brown

Lt. Gov. Anthony Brown of Maryland

The lieutenant governor co-chairs the Health Care Reform Coordinating Council responsible for spending $163 million in federal funds on an internet signup website.

Until recently, he’s been quick to take credit for this initiative’s potential to extend health care to more of the state’s 800,000 uninsured.

Missing in Action?

Yet when the Maryland Healthcare Connection computer system froze, the lieutenant governor was nowhere to be found.  E-mails released to the Baltimore Sun confirm that Brown was a no-show in keeping on top of this vitally important state technology program.

When Maryland’s connector system crashed and continued malfunctioning, Brown let others take the heat.

At a Senate Finance Committee hearing to discuss systemic problems plaguing the state’s botched website, Brown was absent.

Instead, it was Health Secretary Josh Sharfstein who had to admit there’s no telling when the state’s website will be glitch-free.

Josh Sharfstein

Health Secretary Josh Sharfstein

It was Sharfstein, not Brown, who had to admit there’s nothing the state can do to help people who are losing their healthcare benefits through no fault of their own.

A similar scenario played out before a House committee in Annapolis. Brown remained a no-show.

Then on Wednesday, WBAL-TV’s ace reporter Jayne Miller tracked down Brown and asked about his responsibility for the health care sign-up mess.

She got an aggressive brush-off from a man who sounded offended that his leadership was being questioned.

Brown caught a break Friday when Rebecca Pearce, executive director of the troubled health exchange, resigned after O’Malley sent in his staff to oversee the crippled IT operation.

Now Brown has a scapegoat. Yet he’s having increasing difficulty responding to criticisms that he was too busy campaigning to bother with the nitty-gritty of this IT implementation.

He’s promised to address all this at a carefully scripted and rehearsed press conference sometime this week — if he can fit it into his busy campaign schedule.

Brown’s campaign advertises that he is a proven leader. His websites brag about his role in bringing to fruition the Affordable Care Act. He’s gotten a national award for it.

But he doesn’t have any answer to why he was asleep at the switch, why he wasn’t on top of this exceedingly complex IT operation that cried out for strong, forceful leadership from someone like Brown with a military background.

This is already a central point in the campaign for governor.

Attorney General Doug Gansler accused Brown on Thursday of “ducking responsibility” for the problem — an apt summation of the current situation.

That same day, Brown conceded, “Everyone that has been involved. . . is responsible and that includes me.”

That’s a great way to minimize your own culpability. But it won’t fly in the hothouse arena of a gubernatorial campaign.

Brown may be the general in charge of this operation, but he seems eager to have his  lieutenants take all the grief for a botched mission.

Questions, Questions, Questions

Where was he when feuding contractors were at war with one another in developing the IT system?

Why wasn’t he doing something to remove bureaucratic barriers from Washington that were constantly gummed up the IT system?

Why wasn’t he aware the system hadn’t undergone comprehensive testing?

How will he explain the fact that he didn’t find out the state’s IT program was messed up until it crashed?

Was he a leader in name only?

MD Healthcare Connection

Maryland Healthcare Connection

Slow Fix Hurts Brown

Brown’s dilemma is that Democrats pick their nominee for governor in late June. That may not be enough time to fully fix this technology disaster.

Giant back-end headaches could emerge even as front-end computer glitches are resolved.

Insurance companies may announce large, unexpected losses as a result of the government’s incompetence.

Tens of thousands may continue to experience enrollment failures or wind up uninsured because of flaws in the computer software. Confusion and screw-ups could persist.

Legislative hearings during the upcoming General Assembly session could prove intensely embarrassing.

This has been, to date, an epic implementation fiasco.

If public anger builds rather than dissipates, there will be political consequences especially in a state like Maryland with its early primary elections next year.

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MD State Deficit—Half a Billion and Counting

By Barry Rascovar

October 27, 2013 — WHEN LEGISLATORS FINISHED the 2013 General Assembly session in April, they patted themselves on the back for putting the state on a glide path to wipe out Maryland’s long-running structural deficit in the next budget.

Think again.

That deep, dark fiscal hole has returned big-time.

This month’s fiscal prediction by the Department of Legislative Services projects a structural imbalance by next June 30 of over half a billion dollars with nearly as much red ink the following year.

It’s a stunning turnaround.

More Bad News To Come

Even worse, that projection came before carnage from the Republican-instigated federal government shutdown was fully factored into the equation.

It’s now almost certain December’s revenue update will show a dip in holiday spending (and tax collections) as Marylanders cut back on purchases due to worries over a second federal closure and a weak economic recovery.cropped-Maryland-seal.jpg

Economic uncertainty and the prospects of another train wreck in Washington will keep businesses from hiring or expanding. Federal contractors are especially vulnerable and will continue to lay off workers and hunker down.

Maryland is so heavily dependent on federal employment that another prolonged political stand-off could send the state budget into free-fall.

While much of Maryland’s dilemma is due to lingering effects from the Great Recession and a dysfunctional Congress, the main culprits are Gov. Martin O’Malley and Democratic leaders in the legislature.

Spending vs. Revenue Imbalance

Time and again they have resisted unpopular but necessary steps to rein in social spending. O’Malley, in particular, was determined this year to ramp up aid to colleges ($157 million), K-12 schooling ($187 million), health care ($138 million and Medicaid ($243 million) in spite of continuing weaknesses in Maryland’s economy.

Why hasn’t Maryland’s structural deficit disappeared? To quote the state’s fiscal gurus from last April, it’s simple: “ongoing spending exceeds ongoing revenue by $172 million.”

MD State Budget

MD State Budget

That $172 million gap between what Annapolis pays out and takes in is expected to balloon to a $307 million hole next year – and that’s not accounting for more bad news before the budget is released on the third Wednesday in January.

One of the key drivers is eminently fixable – but not by this governor and not in an election year.

Debt service on Maryland’s general obligation bonds is soaring.

This requires some explanation.

How It Works

Up until 2013, the state’s modest property tax (11.2 cents per $100 of a property’s assessed value) raised enough money to cover debt service payments to bondholders.

But because the state keeps issuing more bonds each year, the amount needed to cover interest and principal is rising 6 percent annually – despite ultra-low interest rates.

Unfortunately, property tax revenue is flat. It no longer covers rising debt expense, and will fall $300 million short of the goal next year.

Why? Because the Great Recession sent housing prices plummeting. Today, Maryland’s taxable property base is $43 billion lower than at its peak.

No rebound will occur anytime soon, either, because of Maryland’s phased-in and capped system of re-assessing property values.

Thus, O’Malley has to find $259 million in his January general fund budget just to cover debt service. That puts a huge crimp in his plans to make his final social spending plan especially generous.

A Partial Solution

There’s an easy way to remedy the situation: Raise the state property tax rate a penny or two. That would restore the rate to its 2006 level.

Such a move would cut in half Maryland’s general fund shortfall next year and restore the original intent of the state property tax – to pay all bond expenses.

Unless O’Malley acts, the situation will grow considerably worse. By 2017, the next governor will be diverting $531 million in state general funds to pay the state’s bond debt.

No Action Likely

O’Malley isn’t worried, though, about the next governor’s fiscal dilemma. He’s trying to burnish his reputation as he runs for national office. The last thing he wants in his final year is another rise in taxes.

So the property tax collection shortfall will continue – even though a small hike would barely be felt by homeowners ($30 or $60 on a $300,000 home).

It’s another example of elected officials failing to confront festering problems. They opt for the easy and politically comfortable way out instead.

No wonder American democracy is in such a mess.

No one in authority wants to make the tough decisions and fix what’s broken.


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Maryland Governor: The Race is On

Establishment vs. Outsider?

By Barry Rascovar

September 30, 2013 — NOW THE RACE for Maryland governor starts for real. The two main contenders are in the ring for what promises to be an aggressive contest race that has no precedent in Maryland history.

What makes the 2014 gubernatorial election so unusual is the timing.

Ballot Box

Ballot Box

Rather than holding the primary in September as is traditional, this one takes place June 24. That early date will cut down substantially on turnout, play havoc with fund-raising and compress the full fury of the campaign into about 80 days once the General Assembly ends its session on April 7.

Making History

It’s also unusual in that the leading contenders hold two jinxed state offices.

No lieutenant governor has ever been elected to succeed his boss in Maryland.  Blair Lee III, Sam Bogley, Joe Curran, Mickey Steinberg, Kathleen Kennedy Towson and Michael Steele all had dreams of sitting in the governor’s chair but never did.

No attorney general has won election to the state’s top office in 75 years, either. Most settled for prestigious judgeships but a few considered running or failed trying — Tom Finan (1966), Bill Burch (1978) and Steve Sachs (1986). None made it past the primary. (The last attorney general elected governor was Herbert R. O’Conor in 1938. Ironically, he was succeeded eight years later by William Preston Lane, who had been attorney general  just before O’Conor.)

So Lt. Gov. Anthony Brown and Attorney General Doug Gansler not only are battling against each other but also battling against history.

Two-Way Contest

They are far and away the ones to watch.

Del. Heather Mizeur of Montgomery County is a peripheral issues candidate who is making this high-visibility campaign her political swan song. Republican candidates can’t come close to winning in Democratic Maryland unless there’s a inside-the-party revolt against the Democratic primary winner.

That’s not likely to happen.

Even worse, Republican candidates are taking extreme positions to appease Tea Party voters, thus eliminating their already slim chances. (More in a future column.)

Divergent Strategies

Brown prematurely kicked off the campaign by declaring in May — a stunningly early announcement.

Lt. Gov. Anthony Brown

Lt. Gov. Anthony Brown

He followed by making an early choice for a running mate and announcing a slew of endorsements meant to show his bona fides. Yet few voters pay attention so far from Election Day.

Now, though, the media has turned its sights on the gubernatorial race because a second heavyweight, Gansler, has announced. He’s running as “the outsider” against the “entrenched political establishment.”

It’s an apt description given that Brown had been running a “coronation campaign” stressing the inevitability of his elevation.

Gansler wasted little time debunking that campaign myth. It’s now a two-person race with Mizeur providing intriguing side-commentary.

Brown is Gov. Martin O’Malley’s anointed choice. The governor will work hard to get his No. 2 elected. Why not? Brown claims credit for all of O’Malley’s achievements and then promises voters he’ll “do more.”

In fact, Brown was not a major contributor to most of O’Malley’s legislative successes and only played a role on a few issues late in the administration’s second term.

But O’Malley is joined at the hip with Brown and will push hard to make his No. 2 look good in the next legislative session. It’s the best way for the governor to ensure his legacy is embellished and extended.

Gansler the Outsider

Gansler had even less to do with O’Malley’s achievements so he can rightly claim the title of outsider. Indeed, the more endorsements Brown announces, the more Gansler can rail about the political establishment’s cabal to keep control of the state’s highest office.

Atty. Gen. Doug Gansler

Attorney General Doug Gansler

Brown’s approach is to lock in all the top Democratic endorsements and ride to victory on the strength of O’Malley’s liberal record, the political establishment’s clout with voters and the unified support of Maryland’s large African American community, especially in Prince George’s County.

That leaves Gansler room to appeal to moderate and conservative Democrats who have been largely abandoned by O’Malley and Brown and to his strong base in Montgomery County.

The attorney general has staked out positions slightly to the right of O’Malley — opposing the gas tax increase, criticizing the governor’s embrace of a “zero tolerance” arrest policy, proposing a corporate tax cut, urging steps to bolster manufacturing and criticizing O’Malley’s prison policies.

At the same time, Gansler isn’t abandoning his long-standing liberalism. (He was, for example, one of the first state officials in Maryland to endorse Barack Obama’s candidacy and to endorse gay marriage). He spoke out before others on raising the minimum wage from $7.25 to $10 an hour. He proposes legislation to protect women from domestic violence and implement transparent policies for state government.

Two Big Tests

The next General Assembly session will test both candidates. Gansler will pick and choose where he wants to attack the O’Malley-Brown administration. Conversely, Brown has to show success in getting administration bills enacted. Much of what transpires for those 90 days will be colored by the campaign for governor.

Gansler has the clear edge in fund-raising at the moment. If that’s still true come May, he will have the upper hand in advertising his name and face on local television. At a time when neither candidate is a well-known commodity, that’s a big advantage.

What may settle the race are the campaign debates. Gansler is quick on his feet and a fierce advocate; Brown can be an impressive speaker when reading from a script.  How they match up on issues voters care about and how they come across to a large debate audience could determine the outcome.


The Incredible Shrinking Presidential Debate

O’Malley vs. Perry (Sort Of)

By Barry Rascovar

Sept. 19, 2013 — IF CNN’s DREADFUL news show “Crossfire” is this generation’s version of a presidential debate, we’re in trouble. It was hard to know the featured players on Wednesday’s program: the obnoxious hosts or the demure and all too pleasant guests, Maryland Gov. Martin O’Malley and Texas Gov. Rick Perry.

Neither governor could compete with the interruptions and rants in the form of attack questions posed by Newt Gingrich from the conservative right and Stephanie Cutter from the far left.

You had to feel sorry for the two guvs.

They wanted to banter about which state was better for business (Texas) or for the middle class (Maryland). Instead, most of the program centered on the ego-centric, “I’m smarter than you are” political obsessions of Gingrich and Cutter.

Who Won?

From what we could glean, O’Malley and Perry are well-versed in statistics supporting their state’s economic strengths and the other state’s weaknesses. But it was impossible to gauge from the blizzard of back-and-forth data which governor had the better argument.

If you’re looking for low taxes and limited government, move your operation to Texas. If you’re interested in highly educated workers and a high level of government services, move your offices to Maryland.

Yet the program failed to tell us much about the presidential timber of O’Malley and Perry.

MD Gov. Martin O'Malley at play

Presidential Timber?

Is Rick Perry presidential?

Presidential Timber?









They came across as cool, competent, experienced governors – which they are — not as candidates for the nation’s highest office.

What Presidential Debate?

Only one question (Obamacare) dealt with a national issue. On that query, we got predictable answers – Perry is dead set against government-mandated health insurance, and O’Malley is adamantly supportive.

Where do they stand on raising the nation’s debt ceiling, the sequester, gun control, immigration, tax reform, Syria, Iran, Russia, NSA communications surveillance, the farm bill, food stamps, infrastructure funding, unemployment and the next Federal Reserve chairman?

On those issues, “Crossfire” misfired.

Whether either O’Malley or Perry has the skill and know-how to run the world’s dominant nation remains a mystery. That will have to wait for another, more serious debate forum. This one was all fluff and politicized posturing by the hosts.

You have to wonder if the guests would have shown up if they had known what was coming.


Perry vs. O’Malley — Early Presidential Showdown?

Two Longshots Slug It Out In Maryland


By Barry Rascovar

Sept. 16, 2013 — TEXAS GOV. RICK PERRY is poaching in Maryland. He’s camouflaged his Wednesday visit as an economic development pitch — including a $500,000 TV and radio ad blitz — to get companies to move from Maryland to low-tax, pro-business Texas.

He’s not fooling anyone.

It’s all part of Perry’s nascent presidential campaign for 2016. His move-to-Texas gambit comes with plenty of media coverage and new business contacts. He’s done it in other states that just happen to have important primaries like California, New York, Illinois, Missouri and Connecticut, where Perry needs to connect with Republican voters well before the 2016 GOP primary heats up.

It’s a brash, aggressive move that underlines Perry’s macho reputation for sweeping aside political niceties.

Texas Gov. Rick Perry

Texas Gov. Rick Perry

Maryland is an ideal state for Perry to visit, which is ironic considering the state’s overwhelming Democratic tendencies.

By hammering hard in the ads at Maryland’s “job killer” tax increases and the state’s anti-business reputation, Perry sparked a response from Democratic Gov. Martin O’Malley, who shares Perry’s presidential ambitions.

“All hat and no cattle,” quipped the Maryland governor. (That’s a Western and Midwestern expression for folks who wear cowboy hats but have never worked a farm.)

You can expect lots of similar zingers from O’Malley this week and perhaps a mano a mano meeting with the Austin poacher. The Baltimore and Washington media will eat it up. That’s precisely what Perry wants.

MD Gov. Martin O'Malley

Maryland Gov. Martin O’Malley

The two governors are ideological poles apart on issues and philosophy. It’s O’Malley’s strident New Deal liberalism versus Perry’s strident right-of-Reagan conservatism.

A war of words is the script both politicians desire. The more media stories this visit generates, the more Perry and O’Malley grab much-needed visibility.

It’s true that Texas has a warm and cozy relationship with its business community. You don’t see Texas leaders bashing businesses. O’Malley, though, has resorted to angry denunciations of corporations to emphasize his dedication to working men and women. Any time O’Malley needs a scapegoat, he lobs a verbal grenade in the direction of Corporate America.

That’s why O’Malley will have a hard time disputing Perry’s statement that Maryland has a terrible reputation with the business community. A CNBC survey this summer placed the Free State near the bottom (No. 40) when it comes to business climate. (Texas ranked No. 2.)

Advantage O’Malley

The fact that O’Malley’s hostile comments and actions drag down Maryland’s efforts to recruit new companies and jobs is of scant concern to the governor. State corporate leaders are not fond of O’Malley’s policies, but they have to cooperate. As Maryland governor, he holds all the high cards.

O’Malley is most vulnerable on the 40 times he’s raised taxes or fees while in office. Many of those increases socked it to the business community.

In sharp contrast, Texas has a sterling reputation for keeping corporate taxes low and companies happy.

Historically, the Lone Star State has limited government intrusions. The opposite is the case in Maryland.

Down With Washington!

While O’Malley yearns for a return to the days of FDR and LBJ when liberalism dominated Washington’s power centers, Perry expresses disdain for virtually everything related to the nation’s capital.

In his 2012 campaign book, “On Fire! Our Fight to Save America from Washington,” Perry calls Social Security unconstitutional, Medicare too expensive, banking laws unnecessary, consumer protection unneeded and federal education policy illegal.

He’s an unabashed Tea Party conservative who comes close to mouthing the words from that movie classic, “Network”:  “I’m mad as hell and I’m not going to take it any more!”

Maryland: The ‘Tax and Fee State’

For O’Malley, his spat with Perry indicates what he’ll face as a national campaigner. His record on taxes is unprecedented in Maryland history.

It is true that many of those tax levies were needed to help state and local governments weather the Great Recession, but this subtle distinction is lost on a public that only reads headlines, not the fine print below.

And while the Maryland governor can point to high-achieving schools, low-tuition state colleges and a “green” environmental record, his critics need only point to all those increased taxes and the frightening violence and murder rate in the state’s largest city.

Texas Fracking Boom

Perry’s situation is quite different.

He’s been governor of Texas for 13 years and that state’s economy is charging ahead, thanks in large measure to the oil and gas fracking boom.

He can brag about keeping taxes down and free enterprise free of government entanglements.  He also can draw cheers from conservative crowds by denouncing the Affordable Care Act (Obamacare) as un-American. (He skips over Texas’ abysmal record in helping the poor.)

By starting his presidential campaign early, Perry hopes to gain far more name recognition across the country than in 2012. He’ll be better organized this time, too.

Yet he’s still a longshot, as is O’Malley.

In that regard they are much alike – two ambitious governors nearing the end of their terms with nothing better to do than reach for the brass ring that could lead to a presidential showdown.



Law Clinics, Farmers and Fairness

By Barry Rascovar / August 3, 2013

THE SAD SAGA of the Hudson Family farm continues.

You remember the Hudsons, who raise Cornish hens for Perdue and also a herd of beef cattle on 300 acres near Berlin on Maryland’s Lower Eastern Shore.

Alan and Kristin Hudson

Alan and Kristin Hudson

Alan and Kristin Hudson got sued in 2007 by the New York-based Waterkeeper Alliance, which hoped to win a landmark case holding Perdue liable for water pollution in drainage ditches caused by chicken manure from a sub-contractor like the Hudsons.

The plaintiffs, represented in part by the University of Maryland’s Environmental Law Clinic, embarrassed themselves. It was such a botched job that it makes an ideal case study (perhaps at the rival University of Baltimore Law School).

Now comes the sequel: The federal judge who threw out the Waterkeeper case with critical comments about the poor quality of attorney work has now denied Perdue and the Hudsons $3 million in legal fees.

But in doing so, U.S. District Senior Judge William Nickerson pounded the law clinic and environmental group once again. He said their lawyers presented a weak case; they intentionally misled the public in statements to the media; settlement efforts were insincere, and their terrible pre-trial preparation led to defeat in court.

If ever there was a teachable moment for law school students, this is it.

Plaintiff’s Missed Opportunities 

Here’s what Judge Nickerson had to say:

“Plaintiff only needed to establish that Hudson’s chickens contributed in some way to the high levels of pollutants coming off the farm and ultimately entering the Pocomoke River.” But the Waterkeeper lawyers missed that chance by “the lack of sufficient and appropriate sampling and testing.” Such an elemental mistake, the judge concluded, made it impossible to tell if the chickens or the cows caused the water pollution.

When the clinic’s legal team switched tactics and tried to blame bacterial pollution on “chicken dust” from exhaust fans in the chicken houses, it again failed to take samples. The judge wrote in a biting commentary, “One is left to ponder why Plaintiff failed to conduct the testing that, at least in hindsight, seems so obviously necessary and critical to the proof of its claim.”

This, according to the judge, was a key “tactical misjudgment.”

The case turned, in his view, on the Waterkeeper and law clinic lawyers’ “failure to properly prepare its case by conducting the necessary sampling.”

Poor Legal Work

In a classic judicial understatement, Judge Nickerson added, “In this Court’s view, Plaintiff’s claim was not pursued or litigated as well as it could have been.”

Put in more common terms, it was a royal screw-up.

Yet because the case wasn’t frivolous or unreasonable, the judge decided punitive payment of legal fees should not be assessed.

Judge Nickerson was especially upset about the Waterkeeper and law clinic attorneys’ handling of pre-trial settlement talks. He looked at all the negotiating documents and concluded litigators were “not seriously working to settle this matter.” Indeed, they demanded more concessions from Perdue than they could have gained in court, according to the judge.

They rejected a Perdue offer to jointly fund an educational institution to study agriculture-related issues. As a result of the Waterkeeper’s hostile action, Perdue also ended a clean waters initiative to help chicken farmers become better environmental stewards.

With considerable sadness the judge wrote, “It is disappointing that no agreement that could have actually benefitted the Chesapeake Bay came from these negotiations. . . . It is most unfortunate that so much time and so many resources were expended on this action that accomplished so little.”

The non-diplomatic version: What a pathetic effort and what a waste of time and money that could have been put toward cleaning up the bay.

On to Annapolis

That’s not the end, though.

The Hudsons’ lawyer says he will go before the state Board of Public Works demanding reimbursement for legal fees.

There’s $300,000 in the state budget because of the law clinic’s questionable involvement in prosecuting (critics use the word “persecuting”) the Hudsons. Gov. Martin O’Malley got so angry he wrote to the law school dean about the propriety of such partisan educational activity.

Enraged rural legislators also tacked another $250,000 onto the budget for the University of Maryland to start an agricultural law clinic or advisory group to “assist farmers in the state with estates and trusts issues, compliance with environmental laws and other matters necessary to preserve family farms.”

Clearly, the law clinic’s ill-fated representation of the Waterkeeper Alliance in going after Eastern Shore chicken farmers has generated widespread State House skepticism.

When the reimbursement issue comes before the board, pointed questions will almost surely be directed at the law clinic and the University of Maryland, Baltimore’s president.

This unfortunate judicial episode could have and should have been avoided. It is proving costly to taxpayers and deeply embarrassing to the law clinic.

It’s time to move on, if only leaders at the law school can put their personal and professional egos aside long enough to find an even-handed way to teach students about both sides of environmental law.


Maryland’s Political Prison Puzzle

Corrections Dept.By Barry Rascovar / June 11, 2013

THERE IS NO WAY Gov. Martin O’Malley can make Maryland’s prison embarrassment disappear. Lord knows he’d like to. If he’s serious about running for President, O’Malley must explain why he was so slow to respond to the growing influence of street gangs within state prisons over the past seven years.

He can’t blame this one on his Republican predecessor, Bob Ehrlich. The problem started to build back then but there were clear signs early in O’Malley’s first term gangs had become dangerously powerful inside prison walls.

He can’t blame all his tardiness on the FBI, which took two long years to finish its investigation at the Baltimore City jail. Yes, that stymied efforts to remove suspect prisoners and guards. But there were plenty of other steps — much-needed additional training, rotation of guards not under investigation and a review of the leadership team’s skills, abilities and honesty.

An outside audit earlier this year revealed a shocking lack of attention by the O’Malley administration to the basics: filthy cells, no standard security checks, antiquated security gates and guards ignorant of an inmate’s rights. Part of this is due to budget cuts during the Great Recession and the chronic under-funding of prison programs by government.

However, the audit also revealed a top-heavy, inefficient management structure. How could O’Malley’s highly touted State Stat gurus miss this? Why wasn’t this costly, ineffective administrative excess done away with during the state’s deep recession?

It’s a dilemma for the governor and a headache for Lt. Gov. Anthony Brown, who may have made a mistake with his early announcement of candidacy to succeed O’Malley.

Brown is in the uncomfortable posture of explaining the prison scandal on his watch. Attorney General Doug Gansler’s shot across O’Malley’s bow in asking for an independent inquiry is just the beginning of the political broadsides.

Yet O’Malley has got a right to be angry at the way federal investigators trumpeted their indictments. Instead of holding a joint press conference and sharing credit with state leaders, who had requested the investigation after all, the FBI and U.S. Attorney for Maryland decided to grandstand. They left the clear impression O’Malley and his underlings were asleep at the switch.

That may win federal officials in Maryland gold stars from their Washington bosses but it soured future relations with Annapolis.

Digging out of this mess won’t be easy, as House Speaker Mike Busch noted. One legislative hearing is the beginning of public discussions, not the end.

There are serious mid-level management weaknesses. Those can be corrected by prisions secretary Gary Maynard. He can institute tough new security measures to eliminate most contraband cell phones and drugs. Downsizing the prison bureaucracy is essential. A little money from the governor can make the Baltimore jail cleaner and safer.

Getting rid of dishonest guards at the Baltimore City Detention Center is a must but it brings up an equally serious problem: how to replace them? The pool of guard applicants in Baltimore City who are drug-free and have clean records is small, especially among males. Most applicants come from the same neighborhoods as the inmates. That’s not a healthy situation.

Female applicants in Baltimore City, meanwhile, tend to have self-confidence problems and are susceptible to the amorous sweet-talk of manipulative inmates. Recruiting better guard applicants won’t be easy and won’t happen quickly.

O’Malley erred several times by not personally taking control of the situation and setting the record straight as to who started this investigation, his earlier steps to attack the gang issue and his determination to continue the effort. He could have done this after he returned from his economic development trip to Israel or at last week’s legislative hearing.

Instead, he chose to govern through press releases. It didn’t work.

On this one he needs to lead the crusade. If not, he’ll be dogged by prison scandal questions at every campaign stop across the country — and his preferred successor will be bogged down trying to explain what went so wrong that it left Maryland in an embarrassing national spotlight.



Remarkable (?) Week in Maryland Politics

By Barry Rascovar / June 8, 2013

We are 13 months away from Maryland’s primary and already we’ve been hit by a tsunami of election news. What’s remarkable about the Week That Was is how unremarkable these developments turned out to be:

• Lt. Gov. Anthony Brown announced his running mate — Howard County Executive Ken Ulman — a fact we have known for weeks.

• That same day, Harford County Executive David Craig announced for governor on the Republican ticket. He’s only been campaigning for the past year.

• Not to be upstaged by Craig, Annapolis Del. Ron George announced for guv, too. He made his intentions clear weeks ago.

• Attorney General Doug Gansler lobbied for media time by putting out a statement that he isn’t running for a third term. Surprise, surprise: He’s been campaigning for the top state job since the day he was sworn in.

• These events were as predictable as Howard County Sen. Allan Kittleman letting it be known he’s announcing for County Executive on Tuesday. That’s been no secret for months. So was Harford County Sen. Barry Glassman’s County Executive announcement Saturday evening.

• Adding to the fun, Michael Steele — one-time lieutenant governor, controversial national Republican Party chair and TV commentator — told MSNBC he’s thinking about a run for governor in 2014. His name has been mentioned in that capacity since last fall.

What do these happenings have in common?

All these politicos crave publicity. None is a household word. It’s going to be a long, long campaign.

Brown once again proved inept at staging events. When he announced for governor he did so late on a Friday afternoon — terrible timing for TV and print reporters. Next, he buried the most important news angle of the day, the decision by Congressman Elijah Cummings to endorse Brown.  Then he staged his Ulman running mate announcement the same day as Craig’s media blast.

Craig won that match-up despite being a Republican in a solidly Democratic state. He got great front-page coverage in The Baltimore Sun; Brown-Ulman found themselves buried inside.

Gansler shouted loud enough to remind voters he’s still around. He doesn’t plan a formal announcement until the fall so his pitch to the media — “I’m not running again for A.G.” (ho, hum) — got his name in the papers and took some of the edge off the Brown-Ulman event.

Similarly, George couldn’t let Craig soak up the media attention since he sees the Harford County Executive as his main GOP opponent. So he sounded off this week, too.

Steele watched all this happening and decided to send his own media message. Best not to be forgotten.

No one said anything new. Everything was predictable and, frankly, uninspiring. Brown called Ulman a great county executive. Ulman promised he’d do great things in Annapolis, just like Gov. Martin O’Malley. Craig said he’d cut spending and stop Maryland’s Democratic wave of tax increases. George said he’d get rid of taxes, period. Steele said he’s ideally suited for the job.

Anyone still awake?

The only surprise this past week was Montgomery County Sen. Rob Garagiola telling us he’s stepping down as Majority Leader and won’t seek re-election. Ever since he lost in an upset to John Delaney for Congress last year, rumors swirled about Garagiola’s future. Now he is recently divorced, starting a new law practice and with no prospect of upward political mobility. You didn’t need a crystal ball to see his announcement coming.

Here’s another “surprising” development this week: Robin Ficker, Montgomery County’s professional gadfly, former delegate and political pest, is running for Garagiola’s seat. To make matters worse, his son, Flynn Ficker (say that name fast 15 times) is running for delegate in the same district.

One Ficker is too much for most sane voters. Now we might wind up with two?

Mercifully, the week ended without any more scintillating announcements.


Political Dimensions of Jim Smith’s New Job

Jim Smith

By Barry Rascovar / June 2, 2013

BY CHOOSING former Baltimore County Executive Jim Smith as Maryland’s new transportation secretary, Gov. Martin O’Malley solved multiple problems, especially for his governor-in-waiting, Lt. Gov. Anthony Brown.

O’Malley left the top MDOT post vacant for nearly a year. Smith, apparently, had been the governor’s choice but never accepted until after the governor did the heavy lifting in pushing a multi-year gas tax increase through the General Assembly, After all, what fun would it be to serve as MDOT secretary without $$$ to upgrade Maryland’s transportation network?

Smith has modest experience dealing with state legislative issues outside of Baltimore County delegation matters. He has minimal background in the inner workings of the statewide transportation program and its political underpinnings. He would have been of little use to O’Malley in lining up votes for a hefty gas tax increase.

Now it’s a different story. The gas tax rises by four cents a gallon on July 1 and there’s much more to come in future years. There will be a steady flow of construction announcements and ribbon cuttings. It’s a great time to be Maryland’s transportation boss.

Smith brings administrative skills to the job. He’s also a fiscal conservative, which means projects that bring the biggest bang for the buck will take priority. And he’s a first-rate political operator who knows how to massage egos and quietly seek common ground.

It’s an ideal landing spot for Smith, who sorely missed public service. It’s one of the most important posts in Maryland.

In selecting Smith, O’Malley did a big favor for his lieutenant governor. Smith might have ended up running on Attorney General Doug Gansler’s ticket next year, which would have aided Gansler in the Baltimore suburbs on election day.

But now Smith is locked into the O’Malley-Brown administration. If he wants to keep his job after 2014, Smith knows he’s got to working tirelessly to elect Brown. That could prove pivotal in Baltimore County, which often decides state elections. Smith also has a good chunk of campaign cash lying around, which might help Brown gain name recognition.

O’Malley owed Smith big-time, Without Smith’s hard work and vocal support for the Baltimore mayor, O’Malley might have lost in 2006 to incumbent Gov. Bob Ehrlich. In that election, Smith managed to hold Ehrlich to a draw in his home county, which locked up the race for O’Malley.

The governor has re-paid Smith with perhaps the biggest plum in state government. For at least the next 18 months, Jim Smith will be a big wheel in Annapolis.