Enter O'Malley

George W. Liebmann
2007-09-24

The new administration has now been in office for nine months, an acceptable period of gestation, and it is now not too early for a preliminary assessment. Let us first accentuate some positive developments:
1. The administration appears to have placed the Departments of Public Safety and of Juvenile Services in the hands of fully qualified professionals, who have made difficult and overdue decisions.
2. The administration has made serious improvements in the handling of environmental issues. Historic tax credits and open space funds have been enhanced. There has been long-overdue enforcement of air pollution constraints against Baltimore’s public utility.
3. Qualified people have been appointed to preside over the Public Service Commission and the office of the Insurance Commissioner, the two most important regulatory agencies. The administration has not indulged the illusion that in a mixed economy, ‘business-friendliness’ is demonstrated by appointing semi-competent regulators.

Here, however, the list of positive accomplishments ends. There are a series of disquieting developments, suggesting that the administration’s style is to demagogue issues while paying off the customary Democratic interest groups:

1. No progress was made during the administration’s first year in office in seriously addressing the structural deficit, even though time is money in budget matters. The administration’s vaunted budget cuts have consisted almost entirely of the non-filling of some vacant positions, a form of ‘reduction’ for which no political price need be paid.

2. The administration squandered a substantial portion of the ‘rainy day’ fund on a massive $400 million plus school construction program, now at twenty times the level prevailing at the end of the Hughes administration. The program operates as a subsidy to bad zoning, renders local officials participants in an annual beg-a-thon, and results in the construction of schools which, by reason of the state prevailing wage law, not applicable to local construction, are substantially more expensive than locally-constructed schools. Notwithstanding the full state funding, the state has imposed no architectural standards on the resulting buildings, most of which resemble warehouses lifted from an industrial park. No one seriously thinks that the under-performance of Maryland students is due to deficiencies in bricks and mortar. The program is essentially a large gift to the construction unions. It is also notorious that the school boards receiving new buildings are also very slow to close old under-utilized ones, and that the state’s capital gifts thereby aggrandize locally-borne maintenance costs.

3. In another gift to unions, in this case public employee unions, the administration has signed into law the nation’s first statewide ‘living wage’ law requiring state contractors to pay minimum wages at least 50% more than those required in the private sector. The administration, and the legislature’s compliant fiscal note-writers, claim, not altogether convincingly, that this measure results in limited initial costs to state government. This contention disguises the real purpose of the law: not to protect or enhance the position of employees of present state contractors, but to deter the further contracting out of food service, janitorial service, security services, and printing services of state institutions by causing the labor costs of private contractors to equal or approach those of the state bureaucracy. The legacy of this is quite predictable: indifferently cleaned state buildings, maintained by a labor force having no incentive to introduce labor-saving machinery; indifferently prepared food in state cafeterias subjected to inadequate competitive disciplines; the predictable rise, in new sectors of the economy, of ‘double breasted’ labor forces like those prevailing in the building trades; higher costs on new state contracts, as they renew; a general slackness and seediness throughout an insulated and self-protective bureaucracy, whose members know that they can no longer be replaced by private competitors; and decreased employment opportunities for unskilled and semi-skilled workers.

4. The Governor also assumed by executive order to do what the legislature had declined to do by statute: extend collective bargaining to home health care workers not employed by the state. The burden of this falls first on nonprofit state contractors and ultimately on the state fisc. As a former teachers’ union official, Myron Lieberman, has pointed out, public employee collective bargaining is not really collective bargaining, it is simply politics–a way of disenfranchising legislative minorities and those who elect them. Where there is no possibility of competition, the only restraints on the results of collective bargaining are political constraints, not economic or competitive ones.

5. Over the objection of the State Treasurer, the Board of Public Works voted to compromise the long-standing principle that the debt service on state debt would be paid by a modest state property tax. Instead, a portion of this charge was allowed to fall on the general fund, a result that can scarcely have passed un-noticed by the bond rating agencies. All this, so the Governor could not be held responsible for a visible one or two cent increase in the state property tax rate.

6. Similarly, a previously scheduled increase in motor vehicle fees was rescinded, notwithstanding the shortfall in the transportation trust fund, lest the Governor be held responsible for a fee increase in his first year. The increase reflected a sensible policy, now abandoned, that 95% of MVA costs be borne by user fees. To offset this, an appropriation for the Inter-county Connector was deferred on the pretext that there were adequate funds for a year’s construction costs already in the pipeline. The net effect was to postpone the inevitable, perhaps in order to create a crisis atmosphere to support an increase in the gasoline tax.

7. The administration, unlike its predecessor, has showed little or no interest in road tolling or congestion charging as either an alternative or supplement to increases in the gasoline tax, notwithstanding that nothing but congestion charging holds any promise for short-term relief of congested conditions in the Washington area.
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8. The administration drastically reconstituted the state’s Judicial Nominating Commissions. Previously, the Appellate Nominating Commission had 17 members: 10 appointed by the Governor, and 7 lawyers elected by the State Bar Association. The reconstituted commission makes some desirable changes. The Bar representatives are now appointed by the Bar Association presidents, a desirable change since the Bar Association elections were not taken seriously. The number of required lay representatives was eliminated, a defensible change since they were ill-equipped to appraise candidates and tended to follow the lead of the lawyers. However the new commission drastically increases the percentage of gubernatorial appointees; from 10 out of 17 to 12 out of 17. Worse still, the Appellate Commission, though it contains some highly qualified members, appears bereft of any significant Republican representation. The Governor’s press release announcing appointments of the trial court commissions (http://www.gov.state.md.us/pressreleases/070831b.html) declares that “53% are male, 47% are female, 24% are Afro-American, 6% are Asian Pacific Americans, 5% are Hispanic and 1% are Other.” The Governor’s fascination with diversity, however, does not appear to extend to political diversity. Too many of these appointments are spoils system appointments,

The Glendening administration became renowned for its almost complete refusal to appoint Republicans as judges (in a period beginning with his candidacy for a second term, 60 judges were appointed, 58 of them Democrats) and for a shower of dubiously qualified ‘affirmative action’ appointees, and ensuing contested elections. The Ehrlich administration, by contrast, was conspicuously nonpartisan in its approach to judicial appointments: its only Court of Appeals appointee, and a very large portion of its other appointees were not Republicans, and its appointments met with general praise and acceptance. There is reason to fear that the new administration is returning to bad habits, the consequences of which will be borne by litigants long after it leaves office.

9. In the least defensible of all his actions, the Governor vetoed House Bill 992, a bill to relax mandatory minimum penalties for second non-violent drug offenders. Given that Maryland’s incarceration rate is one of the highest in the nation and that incarceration in a ‘school for crime’ has become almost a rite of passage for the young male population in some parts of Baltimore, this judgment is hard to understand. One effect of draconian mandatory penalties for drug offenses is to create an incentive for threatening or incapacitating witnesses, since the penalties for this are chancier, and the difficulties of proof of such offenses greater. A nationwide reaction has set in against the ‘Rockefeller drug laws’ giving rise to Maryland’s mandatory minimums. The Ehrlich administration vigorously promoted various diversion programs, including drastically reduced penalties for ‘medical marijuana ‘ offenses. This enlightened approach has been thrown in the ash can. Like the self-serving Parris Glendening, who refused to utilize at all the commutation power, this Governor is obsessed with not being thought to be ‘soft on crime.’ Thus justice is subordinated to politics. For those misguided enough to think that the Governor’s veto has an intelligent, or even intelligible, rationale, we set out its full text below. It does not explain the justice of sentencing non-violent second-time offenders distributing minor amounts of drugs, to a minimum of ten years in prison, be they addicts or non-addicts. All that can be said of the Governor’s veto was once said by Mr. Justice Jackson: “the more you explain it, the more I don’t understand it.”:
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10. A task force on dental services, appointed after a much-publicized episode involving death of a child due to inadequate dental care, has recommended a package of new measures with a $100 million price tag. Most dental expenses, unlike expenses for hospitalization and complex operations, are budgetable expenses for all save the poorest of the poor. This insight does not inform the report of a group heavily dominated by provider interest.