Mayor Stephanie Rawlings-Blake
President Bernard C. Young
Honorable Members of the Baltimore City Council
Baltimore City Hall
100 N. Holiday Street
Baltimore, MD 21202
February 13, 2011
The Honorable Mayor, President and Members of the City Council,
I am writing this letter to you regarding much needed improvements to a major city agency – Baltimore City's Environmental Control Board. The Board currently hears thousands of cases per year on various housing and environmental citations, with a small staff of 5 support staff and 2 contracted part-time judges. Even though their resources are small, they manage to bring in over $5 million of much needed money into the city treasury every year on a budget of about $500,000.
The need for improving this agency has been noted on the Mayor's transition report (appendix F, page 26) in regards to increased staffing levels and a much needed change of name for the agency. However, upon review of publicly available information, it is my personal belief that those recommendations do not go far enough in ensuring continued revenue generation for the city while safeguarding civil rights of citizens and ensuring continued compliance of city real estate owners with existing laws. I am outlining some existing problems as well as provide some suggestions in this letter, and I humbly hope that you may consider some of them as you deliberate over next year's budget and the future of the city.
The ECB serves two distinctly separate functions for the city. Its original function is dedicated to “identifying and working toward controlling harmful environmental factors and to promote environmental awareness and enforcement” (ECB website). Its second function is to serve as an administrative tribunal for adjudication of certain housing, health, environmental and safety citations (as per city law, article I, subtitle 40). It consists of 13 members, 6 of which are ex-officio city officials or their designees from various city agencies, and 7 are appointed by the Mayor (2 members of the general public, and 5 members of the public with specialized knowledge). The Board seems to have been clearly modeled after a similar board within the government of New York City.
In pursuance of its first function, the Board provides opinions on pertinent City council legislation and makes available community outreach and education. This also reflects in the composition of the Board itself where care was taken to represent various city agencies and various sectors of the public which are relevant to the environmental, health and safety laws of the city.
In pursuance of its second function, the Board has a staff of 5 and hires 2 part time judges to hear cases. HOWEVER, the two functions of the Board are inherently not compatible which shows up in a host of areas. Here are some of the current problems with the Board and its processes:
Majority if not all of the Board activities have been as the administrative tribunal. Very little time is currently spent on researching what sort of legislation, and/or regulations would improve the city's safety, health and environment
The composition of the Board is not geared well towards being an administrative hearing agency – none of the Board members are required to be lawyers, or have any sort of administrative law experience. Furthermore, the ex-officio members are from the very city agencies which issue the citations, creating an inherent conflict of interest. Even the non ex-officio members are mainly from specialized sectors of the public, not the general public. By contrast:
at least 3 members of the Ethics Board are required to be lawyers and all members must not have conflicts with the Board mission, and must possess have the appropriate knowledge for their function
At least 1 member of the Board of Municipal and Zoning Appeals must be a lawyer
No new members have been appointed to the ECB since 1996, with the ones appointed during that year, having their terms expired in 1997. As it stands now, all of the general public seats which is majority of the Board seem to be vacant. This raises a major problem, creating a question of whether a quorum exists for the Board to function. It also makes citizens question whether the Board provides a fair hearing process, since the only people left are the ones who issue citations. This may also make the city potentially liable on a federal level for denying due process to its citizens, and can be cause for a very large class action lawsuit.
Due to the small number of staff, it takes a really long time for hearings to be scheduled as reported in the past few years by the media
The process used to select the administrative judges of the Board is not public. The payment and contractual arrangements between the city and these judges are not public as well.
The judges that hold hearings, Patricia Welch and Gary Brooks, are not city employees and do not seem to be subject to any of the regular city oversight that regular judges and city employees are. It is unclear if they are subject to the City's ethics code.
It appears that the Board have not heard any appeals for at least 2-3 years. Whether this was intentional or due to lack of staffing, is not important However, it may raise a potential Constitutional question of separation of powers – the executive branch of government may not perform a judicial function unless it is supervised by the judicial branch. In this case, Baltimore City's Circuit Court provides that judicial oversight, however, it can only exercised once all administrative remedies have been exhausted. The ECB rules while providing a time limit for hearings, does not provide a similar time limit for appeals, thus placing appeal cases in an administrative limbo since they cannot be heard in Circuit Court until the appeal takes place. The denial of due process clause because of lack of judicial review has been successfully used in Chicago and Detroit to scuttle those cities' administrative hearing processes for parking tickets. Having the same issue raised in Baltimore, may potentially scuttle the entire ECB hearing process while exposing the city to tremendous civil liability.
Because there are no appeals in place, there is no check on the power wielded by the administrative judges.
The rules governing the ECB hearing process disregards all existing state and federal rules of procedure and evidence. Instead the judge is left to decide on his/her own what is the proper procedure.
The hearings are conducted in a closed session, possibly violating the Maryland Open Meetings Act. By contrast other city agencies such as the Board of Municipal and Zoning Appeals, the Liquor Board, and the city courts such as District and Circuit courts almost always conduct their hearings in public.
While the Board is authorized by law to impose criminal penalties in certain cases, practically speaking something like that would require enforcement by Circuit Court. It is questionable whether an administrative hearing process currently employed by the Board would pass Constitutional muster of minimum due process needed for criminal cases. Without criminal penalties available as a tool of enforcement, many slumlords simply continue paying fines while getting away with constantly violating city law.
The ECB does not publish any of its decisions publicly
No formal investigation process exists prior to the hearing to determine if citations were issued like currently in place for parking tickets. This results in embarrassing cases like the recent case of a woman getting a $300 lien against her house for reporting some fliers.
It is interesting to note that the original agency that the Baltimore ECB was modeled after no longer exists in the same form. In 2008, the NYC ECB became part of a larger office called “Office of Administrative Trials and Hearings”. A somewhat similar office exists on the state level within the Maryland government as well – Office of Administrative Hearings. Their function is to hear administrative hearings for various agencies. However, these two agencies unlike the Baltimore ECB follow specific rules of procedure, publish their decisions on a timely basis and have a very consistent and well defined relationship with the judiciary.
As pointed out by the members of the Mayor's transition task force, the ECB is basically an administrative hearings agency and should have its name changed to reflect its mission. Because there really aren't any other agencies within the city that do as many administrative hearings, it would not be economical for the city to setup a centralized administrative hearing agency and integrate ECB into it like NYC did.
However, in light of the serious issues raised above, I would like to recommend a step further – abolish the hearing process all together within the ECB, returning it back to its original mission of advising the city government on important safety, health and environmental issues. Fill the positions of all of the public members of the Board, and move the hearing process to District Court, which already hears moving violations, parking and red light citations, as well as an entire slew of police department civil citations. District court currently hears just as many parking tickets cases as the ECB does with its cases. Moving the process to District Court would resolve all of these issues:
The ECB can instead refocus on its original mission – advising government in regards to safety and health of the city
The composition of the Board would make perfect sense for such mission.
District court judges would handle the hearing process
Appeals would take place with the judiciary as normal cases do to Circuit court, appeals court, etc.
Judges would be subject to all of the regular state laws and regulations affecting the judiciary, and would be appointed in an open and transparent manner
The hearing process would follow standard Maryland Rules of Procedure and Evidence
Hearings would open to the public
Court records and filings would be available to all via the standard District court process for requesting records
Hearings can be held at the District Court location nearest to the person as opposed to being centralized
District court can impose and enforce the criminal penalties currently covered by the ECB much easier, and all of the standard safeguards for civil rights such as the public defender, waiver of fees for poor people, etc. would be available. Additionally, criminal penalties would mean stricter enforcement and better results for city residents
Enforcement can be coordinated with the Housing Court in District Court
Funding for the hearing process would be shared with the state, as opposed to being funded entirely by the city
Advantage can be taken of shared services from the District court such as records. For example – right now the Mayor's new open data initiative has to be funded from the city coffers. The state is currently funding court records digitization initiative for all state courts anyway, which can be taken advantage of.
Economy of scale would allow hearings to be scheduled in a timely manner, with a dozen judges available, not just two part time judges; plus shared clerical staff, cheaper cost of transcripts, etc.
A formal administrative process can be added for checking if tickets were issued correctly like the city currently does with parking fines
Existing ECB staff can become employees of the District court or they can continue their function of coordinating hearings and citations similar to the function provided by the parking fines office. The existing part time administrative judges of the Board or the executive director, can be recommended for a judicial commission in District Court, and their extensive experience with environment citations will surely go a long way within the Court.
The end result would be a quicker, more transparent hearing process; ability to enforce criminal penalties; and a safer and cleaner city.
Respectfully submitted,
Yakov Shafranovich