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by Mark Reutter5:32 pmOct 26, 20180

A legal scholar caught in the quicksand of a City Hall power grab

Ballot Question G gives Baltimore’s mayor and council president control of Legislative Reference – and places its longtime director in jeopardy

Above: Avery Aisenstark, director of Legislative Reference, says Ballot Question G would undercut the independence of his agency. (Fern Shen)

Election ballot questions are to most voters what food ingredient labels are to most cooks – probably important, but pretty darn technical and rarely worth reading closely.

With the November 6 general election coming into focus (early voting began yesterday), Baltimore voters are being asked to authorize nearly a dozen such ballot questions.

Several authorize bond money for parks and schools and affordable housing. Another gives the Office of the Inspector General (OIG) greater independence from the mayor.

Then there’s Question G, which critics say will do the opposite of providing accountability and transparency in legislation before the City Council

Voting “yes” on Question G will allow the mayor, Catherine Pugh, and City Council President Bernard C. “Jack” Young to reconfigure the Department of Legislative Reference and place its long-serving director, Avery Aisenstark, under their control.

Key Role in Government

While obscure to the general public, Legislative Reference plays a key role in city government.

Its staff of four both drafts and reviews ordinances and resolutions sought by the administration and by Council members. When technical and procedural questions come up on controversial bills, Legislative Reference is asked to make a ruling.

Its 73-year-old director has gained a reputation as a man not afraid to tell elected officials that a bill or amendment is unconstitutional or needs to be re-crafted, as demonstrated in a recent bill-drafting session for Zeke Cohen’s lobbyist reform bill.

“We love Avery. . . [but] he knows there is a need for evaluative tools for improving his office.”  – Young spokesman Lester Davis.

Set up in 1906 as an independent body, the office is governed by a board of directors that includes the president of Johns Hopkins University and the deans of the University of Maryland and University of Baltimore law schools.

Question G would replace this board with an “ad hoc” committee appointed by Pugh, Young and Comptroller Joan Pratt which, in turn, would advise Pugh and Young on the hiring, firing and reappointment of the director.

The civil service protections now afforded to Aisenstark (enshrined in the 1906 law setting up the agency) would end, and the position would become an “at-will” position subject to the whims of the mayor and Council president.

Aisenstark Speaks Out

To former Maryland Attorney General Stephen Sachs, the ballot question “smacks in the face” of good governance and opens the door “to all sorts of legislative chicanery.”

“This job has attracted, since it was established, a handful of legal scholars who help draft bills that are constitutionally sound and protect the citizens of Baltimore,” Sachs said.

“How are you going to get that kind of candidate in the future if this job becomes an at-will appointment of politicians who may or may not be respectful of its nonpartisan purpose?”

Until today, Aisenstark has remained publicly silent about the measure. But he reacted angrily this afternoon to the assertion by Lester Davis, deputy chief of staff to Young, that he was in favor of Question G.

“He’s absolutely wrong,” Aisenstark told The Brew. “I am opposed to the ballot question, and I am very disturbed that none of the members of the Council, including the President, ever came to me about this. There’s no way that Mr. Davis could possibly speak for me. His assertions are a lie.”

In an earlier interview, Davis insisted that Question G is not a “get rid of Avery” measure hatched by his boss to gain control over the office.

Davis said former Mayor Stephanie Rawlings-Blake had talked about the need to evaluate the head of the agency back in 2012, in part because its governing board rarely met.

Best Practices

“We love Avery. He’s a professional,” Davis said, but “he knows there is a need for evaluative tools for improving his office. Everyone needs to be evaluated. It’s best practices in government. It should be celebrated that Baltimore is coming in line with best practices.”

And that’s the reason why Aisenstark supports Question G, Davis said. “Go talk to him. He’ll straighten you out.”

Criticism of Question G by Sachs and DLA Piper partner Shale D. Stiller in a Baltimore Sun op-ed is “completely misguided,” Davis continued.

“Just because the director would serve at the pleasure of the mayor and Council president does not mean he’s going to get fired. Elected officials in Baltimore don’t willy-nilly get rid of people. That just doesn’t happen. There is no precedent for that.”

During a Council hearing on the ballot question, Young made much of the same argument, arguing that everyone in government needs a boss and the Office of Council Services serves at his pleasure.

“Elected officials in Baltimore don’t willy-nilly get rid of people. That just doesn’t happen”  – Lester Davis.

“The director really don’t report to anyone. And he has to report to someone,” Young told Legislative Reference analyst Nancy Ray. “Someone to do his evaluation. Someone to make sure that the staff is fully staffed. You are two positions down, OK? The director have to report to someone.”

Mayor Has Powers

Aisenstark said the Legislative Reference board, whose members include Pugh and City Solicitor Andre Davis, can convene at any time and evaluate his work.

“The mayor controls our budget through the Board of Estimates. The Council president is also on the Board of Estimates. Neither of them has suggested until now that they had issues involving my work product. Nor has any previous mayor and president I’ve worked for.”

According to Aisenstark, the City Council “pulled a fast one” in order to get Question G on the ballot.

The measure was originally part of a 29-page bill that was submitted to the Council as part of the mayor’s charter review commission.

The bill covered a multitude of topics, but an amendment passed by the Council’s Judiciary Committee deleted all of the bill’s provisions except those dealings with Legislative Reference. This bill formed the basis of Question G.

See YouTube video of the Council meeting that placed Question G on the ballot, starting at 29:50.

Young’s “Hot Thing”

Even after the mayor signed the bill, Aisenstark said he was given assurances by City Solicitor Davis that the administration would draft a memorandum reinstating protections to his position for a limited period of time.

Now going on his 24th year as agency director, Aisenstark said he had expressed interest in continuing as director for another two years.

The memorandum was never forthcoming, according to Sachs, who said he tried to intervene with the city solicitor on behalf of Aisenstark and the independence of the office.

“I didn’t want to make this whole issue personal,” Aisenstark said this afternoon. “Because it’s institutional. Everybody [on the City Council] says we do good work. But those same people didn’t want to get in the way of the ‘hot thing’ that the president wanted.”

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