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The next chapter in the budget crisis story will be played out tomorrow night, at a special session of the Mayor and City Council; the agenda is inserted at the end of this post. [Note that this agenda also includes the two items originally scheduled for that evening, a kick-off for the Kentlands Charrette, and the presentation of the concept plan for the new Olde Towne Youth Center, which, sadly, I’ll be giving short shrift.] The agenda includes a link to a PDF Background document, explaining more or less what they have in mind:

TITLE:

Resolution of the Mayor and City Council Authorizing the City Manager to Transfer Funds from the FY 2007 Capital Improvements Plan Fund Balance in Order to Allow for the Provision of City Services in the Absence of an Adopted and Ratified FY 2008 Budget.

SUPPORTING BACKGROUND:

The possibility exists that the FY 2008 budget may not be adopted and ratified by July 1, 2007. This would have the effect of causing all of the services provided by the City to cease.

The City Charter requires that we operate with a budget, allows for a veto and override, but does not provide a mechanism for operating if no override occurs. We believe that paragraph 47 of section 19 of the Charter provides the Council with sufficiently broad powers to allow for the plan anticipated by this resolution.

The attached resolution authorizes the City Manager to transfer a portion of the current Capital Improvements Plan (CIP) balance to fund operations. It would require approximately $3.25 million to fund the operating budget for the month of July. We are recommending that an additional $500,000 be authorized to account for unforeseen expenses. The total requested authorization would be $3.75 million. A series of purchase orders would subsequently be created to pay for the various categories of expenses.

These funds would be taken from the CIP #03-1 (Gaithersburg Aquatic/Recreation Center) and would be restored to that account after a budget is ratified. If a City budget is adopted and ratified by July 1, 2007, this Resolution would have no force and effect.

DESIRED OUTCOME:

Vote on Resolution.

So basically, they are proposing to take money they have sitting in the bank — money that they had previously earmarked for a specific capital project — and free it up so that they can use it to pay their bills over the next month. This, of course, raises all manner of questions. For example

• How they are going to get three votes to pass this resolution; this is designed specifically to deal with the consequences of the Mayor’s veto of a budget that is supported by three council members — why would any of them agree to subject themselves to another month of arm-twisting?
• Whence the authority will come to spend this money on specific items; they still will not have a budget — will the next month be a spending free-for-all?

The cited authority for this action is the Charter, Section 19 Paragraph 47, which states:

In addition to all powers granted to the council by this Charter or any other provision of law, the council may exercise any power or perform any function which is not now or hereafter denied to it by the Constitution of Maryland, this Charter, or any applicable law passed by the General Assembly of Maryland. The enumeration of powers and functions in this Charter or elsewhere shall not be deemed to limit the power and authority granted by this paragraph.

In other words, they can do pretty much whatever they want as long as it isn’t prohibited by the Charter or some other law. Note also that the proposed action is a resolution, not an ordinance, so it isn’t subject to the extensive notice requirements (public hearing advertised in the paper ten days in advance) required for ordinances. So the main open question here is, of course, whether what they are doing here is prohibited by some other law. The last thing I am is a legal expert, but I do note the following in the City Charter, Section 42:

No public money may be expended without having been appropriated by the council. From the effective date of the budget, the several amounts stated therein as proposed expenditures shall be and become appropriated to the several objects and purposes named therein. The council shall have the power, after the adoption of the budget, to approve transfers of funds from one purpose to another.

In this case, of course, they don’t have an FY08 budget, and this resolution cannot be considered a budget because a budget can only be adopted as an ordinance. I did not immediately see in the Charter any other mechanism for directly “appropriating” funds. Now, Section 44 of the Charter says:

All appropriations for operating expenses shall lapse at the end of the budget year to the extent that they shall not have been expended or lawfully encumbered. All appropriations for capital expenditures, to the extent that they shall not have been expended or lawfully encumbered at the end of the budget year, shall be deemed to be re-appropriated without inclusion in the budget for the subsequent year unless the council shall specifically provide that such appropriations are not re-appropriated. Any unexpended and unencumbered appropriations for operating expenses shall be considered surplus at the end of the budget year for which they were appropriated and shall be included among the anticipated revenue for the next succeeding budget year.

So it appears that capital appropriations generally carry forward from year to year unless specifically terminated by the Council. Thus, money left sitting in the FY07 swimming pool budget might be considered as “appropriated” in FY08, despite there being no FY08 budget. Put together with the authority in section 42 to transfer appropriated funds from one purpose to another, this might allow them to use that money for other purposes in FY08. However, note that Section 42 says that this power to transfer funds from one purpose to another is obtained by the Council after adoption of the budget. And I’m guessing that they don’t mean the adoption of some previous year’s budget. Also note that, in the resolution below, they are proposing to transfer FY07 money, not FY08 money. From what I see in the charter, these CIP funds will automatically become appropriated FY08 funds as long as they leave it right there in the CIP until the end of FY07. But if they transfer it to the operating budget in FY07, this carry-over won’t happen; and they’re not saying here wither they are transferring it. Certainly they can’t transfer it to an FY08 budget, because they don’t have one. I would think that they would want to transfer that money in FY08, once the CIP funds get to the other side of the fiscal year boundary. And anyway, none of this explains what is the legal receptacle in FY08 for the funds that they will transfer out of the CIP, in whatever year. I guess I’m just not understanding something about how this resolution is supposed to work.

Anway, here is the text of the proposed resolution:

RESOLUTION No. ___________

RESOLUTION OF THE MAYOR AND CITY COUNCIL AUTHORIZING THE CITY MANAGER TO TRANSFER FUNDS FROM THE FY 2007 CAPITAL IMPROVEMENTS PLAN FUND BALANCE IN ORDER TO ALLOW FOR THE PROVISION OF CITY SERVICES IN THE ABSENCE OF AN ADOPTED AND RATIFIED FY 2008 BUDGET

WHEREAS, the City of Gaithersburg FY 2008 budget may not be adopted and ratified by July 1, 2007; and,

WHEREAS, the absence of a budget would cause the services provided by the City to cease; and,

WHEREAS, the City Manager has determined that it is necessary and appropriate to transfer funds from the current balance of Capital Improvements Plan (CIP) account number 03-1 (Gaithersburg Aquatic/Recreation Center) to allow for the provision of City services; and,

WHEREAS, such services will be provided using the transferred funds for a maximum of 31 days or until an FY 2008 budget is adopted and ratified, whichever is earlier; and,

WHEREAS, the funds transferred from CIP 03-1 will be restored in due course during FY 2008:

NOW, THEREFORE, BE IT RESOLVED, that the City Manager is immediately authorized to transfer up to $3.75 million from the FY 2007 Capital Improvements Plan fund balance in order to allow for the provision of City services in the absence of an adopted and ratified FY 2008 budget.

NOW, THEREFORE, BE IT FURTHER RESOLVED, that if a City budget is adopted and ratified by July 1, 2007, this Resolution shall be of no force and effect.

ADOPTED by the City Council on this 21st day of June, 2007.

_____________________________

SIDNEY A. KATZ, Mayor and

President of the Council

THIS IS TO CERTIFY that the foregoing
Resolution was adopted by the City Council
in public meeting assembled on the 21st day
of June, 2007.
____________________________
David B. Humpton, City Manager

And following is the meeting agenda:

Agenda - Special Meeting and Joint Work Session, 6/21/2007
Posted 6/18/2007

City of Gaithersburg
AGENDA FOR A SPECIAL CITY COUNCIL MEETING

Thursday, June 21, 2007
7:30 p.m.

I. CALL TO ORDER

II. DISCUSSIONS

• FY 2008 Budget
• Resolution of the Mayor and City Council Authorizing the City Manager to Transfer Funds from the FY 2007 Capital Improvements Plan Fund Balance in Order to Allow for the Provision of City Services in the Absence of an Adopted and Ratified FY 2008 Budget (if necessary)
  Background Material (pdf file)

III. ADJOURNMENT

Immediately following the special meeting, the scheduled joint work session of the Mayor and City Council and Planning Commission will be held to discuss the following topics:

• Introduction of Architect and Overview of the Kentlands Boulevard Commercial District Community Outreach Activities Charrette Schedule
  Background Material (pdf file)

• Concept Plan for the New Youth Center in Olde Towne
  Background Material (pdf file - 3M)

• Chris Robinson writes, City faces shutdown as veto looms:
  

  A divided City Council on Monday night approved a $50.6 million budget for fiscal 2008, but the mayor is threatening a veto. At issue is $250,000 to assist tenants displaced by redevelopment projects.

  A special meeting of the mayor and council has been called for Thursday night to try and avert the crisis, which could mean no funding for necessities such as police and trash collection services, as well as no means to levy taxes, City Manager David B. Humpton said Tuesday.

  See also my previous posts regarding this issue.

• Chris Robinson’s City Notes column includes a note, Talbott House appeal fails:
  

  A Circuit Court judge last week upheld a Gaithersburg Historic District Commission decision that prevents demolition of the historic Talbott House.

  Hamza Halici, owner of the half-acre property and 85-year-old building at 309 N. Frederick Ave., where he operates the Hair Bar salon, had appealed a Jan. 2 ruling by the commission that narrowly rejected his second request to raze the structure.

  Halici said Tuesday that he was surprised with Judge Robert A. Greenberg’s ruling. He plans to appeal further.

  ‘‘I’m going to fight this all the way, it’s never going to end,” he said, adding that he has buyers interested in the property.

  Halici bought the property in 1989, and soon after applied for and received historic designation for the two-story bungalow. He has said he didn’t understand the full implications of applying for historical designation.

  In 2003, the city granted a permit to demolish the house, but it expired before work was performed. The Historic District Commission denied a second permit based on what they said was a lack of proof demonstrating ‘‘economic hardship.”

  I’ve posted about this issue several times in the past. One important aspect of this case that the Gazette has left out is that Mr. Halici’s suit claimed that the Historic District Commission was improperly formed. Since the HDC was created, the only members of that commission have been Mayors and City Council members, while the guidelines for Historic District Commissions generally require the members show a demonstrated interest some area related to historic preservation. The court appears to have rejected this argument. This is the second time this issue has come before a court, and the second time the argument has been rejected.

• Chris Robinson writes, Chief King takes his oath:
  

  New Gaithersburg Police Chief John King was officially sworn in during the regular mayor and City Council meeting Monday night.

• Chris Robinson writes, Candidate to oversee aquatic center has ties to Gaithersburg:
  

  The City Council on May 21 unanimously and without comment approved a three-year, $140,000-a-year contract with Edward Mandley, the current general services director for the City of Alexandria. The council did not consider other candidates for the consulting contract, which is responsible for construction quality management and Leadership in Energy & Environmental Design certification for the planned $25 million Aquatic and Recreation Center.

  Mandley, 57, of Bethesda, said he became aware of the contract position through Pete Geiling, a former employee who is now Gaithersburg’s director of facilities and capital projects.

• Sebastian Montes writes, Anti-solicitation law delayed until September:
  

  City leaders on Monday night formally approved delaying enforcement of Gaithersburg’s controversial anti-solicitation ordinance until Sept. 1 to give Maryland Attorney General Douglas Gansler time to weigh in on the law’s constitutionality.

• Peggy Vaughn writes, Heritage Days serves up 35 flavors — of history, that is:
  

  The countywide event celebrates a diverse heritage with suitably diverse events, from a hike along the Underground Railroad route in Sandy Spring to a spelling bee at a restored Victorian-era schoolhouse.

  ‘‘We want to draw attention to our heritage, to the historic sites that have played a vital role in our county,” said Cathie Titus, deputy director of the Heritage Tourism Alliance, a nonprofit that promotes enjoyment of the county’s past in association with the business community.

• Sebastian Montes writes, Suspect sought in rape of 16-year-old in Gaithersburg:
  

  A 16-year-old girl was robbed then raped at knifepoint late Thursday night in the Flower Hill neighborhood of Gaithersburg.

• Chris Robinson writes, Rabid bat found in Gaithersburg condo:
  

  A bat found last week in the 400 block of Christopher Avenue, just off Route 355 in north Gaithersburg, tested positive for rabies.

• Chris Robinson writes, World Market veterans applaud program:
  

  Now, as the program — which aims to arm area entrepreneurs with the business savvy to succeed — ramps up for its second year of offerings this September, several vendors featured last year say they’ve seen results of its free business training and in helping boost exposure of their companies.

  Since setting up a booth at World Market for his company, Hands-Off Art, Germantown resident Matthew Roth said he’s seen the reception grow for his works.

• Chris Robinson writes, Nonprofit celebrates family:
  

  Hundreds of families from around the state visited Bohrer Park in Gaithersburg on Saturday for the third annual Musiganza, a free community-based family fun day hosted by The Family Services Agency Inc.

• Sebastian Montes writes, Library users lay out their renovation wish list:
  

  Call it a renovation of the renovation plans. But before going forward with long-delayed plans to renovate the Gaithersburg Library, county planners took a moment to step back last week and give library patrons a chance to weigh in.

• Chris Robinson writes, Seniors to keep affordable homes:
  

  A housing authority that serves Montgomery County this week celebrated the purchase of a 175-unit Gaithersburg apartment complex that will now be able to retain subsidies for its low-income senior tenants.

From the City’s website:

Agenda - Planning Commission Meeting, 6/20/2007
Posted 6/8/2007

City of Gaithersburg
31 South Summit Avenue
Gaithersburg, Maryland 20877

Telephone: 301-258-6330

PLANNING COMMISSION AGENDA*
Wednesday, June 20, 2007
7:30 P.M.
City Hall Council Chambers

APPROVAL OF MINUTES

June 6, 2007, Planning Commission Meeting
Background Material (pdf format)

RECORD PLATS

RECOMMENDATIONS TO MAYOR AND COUNCIL

Z-304 – Fairfield Broadstone, LP
Request to rezone 14.157 acres of land, currently known as Parcel A, Lots N-943, N-994, N-888, and N-939, the Broadstone Apartments, located at the Md. Rte. 355/West Deer Park Road intersection, Gaithersburg, Maryland, from the existing R-20 (Medium Density Residential) Zone to the CD (Corridor Development) Zone, in accordance with § 24-196 (map amendments) and § 24-160G.6 (procedure for application and approval) of the City of Gaithersburg Code
Note: no additional testimony will be taken at this time.

and
SDP-06-004 – Fairfield Broadstone, LP
Request for approval of the schematic development plan (SDP) known as Parcel A, Lots N-943, N-994, N-888, and N-939, the Broadstone Apartments, located at the Md. Rte. 355/West Deer Park Road intersection, Gaithersburg, Maryland. The proposed plan includes 334 multi-family units, 53 townhouses, and 28 two-over-two units.
Note: no additional testimony will be taken at this time.
Background Material Part I (pdf format)

Background Material Part II

SITE PLANS

CSP-07-001 – GE Technology Park

I-3 Zone
100 Edison Park Drive

Three Office/Warehouse Buildings
CONCEPT PLAN
Background Material (pdf format - 4.3M)

AFP-07-016 – Seneca Center II
E-1 Zone

18753 N. Frederick Avenue
Revise Parking Lot Layout
AMENDMENT TO FINAL PLAN REVIEW
FOREST CONSERVATION PLAN
Background Material (pdf format)

FOREST CONSERVATION PLAN

PI-V 060023 – Crown Farm
MXD Zone
Fields Road
FINAL FOREST CONSERVATION PLAN AND

WILDLIFE MANAGEMENT PLAN
Background Material (pdf format - 7.5M)

FROM THE COMMISSION

FROM STAFF

ADJOURNMENT

PLEASE NOTE:

* THE ITEMS AND PERTINENT INFORMATION ON THIS AGENDA ARE SUBJECT TO CHANGE AT ANY TIME.

From the County’s website:

• The rape occurred at 133 Water Street on Saturday 6/9 at 2215 hours. The victim met the suspect on a bus and after they went to a restaurant, returned to the suspect’s residence, where he forced intercourse. Officers from Major Crimes went to the suspect’s residence and talked to two h/M’s but no further information was indicated in the report. Investigation is continuing.

  Suspect: H/M, 25-35 yrs. old, 5’7”-5’8”/165-175 lbs

  Water Street is near West Diamond & Muddy Branch.

• An aggravated assault occurred at Water Street & Mills Road on Thursday 6/7 at 1613 hours. The adult victim was chased by the suspect from the above location to her residence on Water Street. The suspect never said anything and when he caught up to her, he attempted to conceal a knife in his shirt. When she fled, he displayed the knife but again said nothing.

  Suspect: B/M, 17 yrs. old, 5’8”-130-145 lbs., thin build, red bandana, black long-sleeved shirt

• The aggravated assault at Washingtonian Boulevard and Rio Boulevard occurred on Thursday 6/7 at 2120 hours following a traffic dispute between the suspect and the victim. There are discrepancies in the victim’s story and what a witness saw.

• There were three robberies on Sunday 6/10 that each involved multiple suspects. Below are just the events that occurred during the time frame of this report. Prior robberies in this area were detailed in last week’s Summary; refer also to the most recent alert issued, CAS # 07-490.

  FRI 6/8 165 hours	13 E. Diamond Avenue Roni Rodriguez arrested, knife used (has been in jail since)
  SUN 6/10 2021 hours	1 N. Summit Drive (M07-031543) Five B/M’s, one was 5’8”-5’9”, 130-140 lbs., muscular, white tank top, jeans W/M club/sticks & knife used
  SUN 6/10 2121 hours	211 N. Frederick Avenue, 7-11 (M07-031548) B/M, 5’5-5’10”, green ‘reggae’ hat, tan shirt over a black shirt B/M, beard, white fisherman hat, long-sleeved black shirt & pants silver gun used
  SUN 6/10 2328 hours	109 E Diamond Ave (M07-031558) ‘Big Head’, H/M, 5’4”, scar on the right side of his face,baseball cap, red T-shirt,black pants B/M, corn rowed hair, thin, black pants, Timberland boots Unknown race M, white shirt, black pants Vehicle: red Toyota Tacoma

• A sex assault occurred in a field behind the 18300 Lost Knife Road on Monday 6/11 at 1630 hours. The adult female victim was walking when the suspect joined her and attempted to start a conversation. The suspect only spoke English and the victim only speaks Spanish, so it is unknown what he was saying. He grabbed her buttocks and when she said she would call the police, he walked off towards Mid-County Highway. The victim waited an hour to report the incident.

  Suspect: B/M, 20-30 lbs., grey baseball cap, white T-shirt, blue jean shorts

• MCP SID obtained information that a suspect was keeping guns in his vehicle. They stopped the vehicle at S. Frederick Avenue & Game Preserve Road on Wednesday 6/6 at 1512 hours and found a loaded .25 gun and a loaded .38 revolver in a rear compartment. The suspect also had a small amount of cocaine and $1002 on him.

  Defendant: Gary Wade, B/M, 47 yrs. old, 6’3”/200 lbs., of 19405 Frederick Road

  To my knowledge, Game Preserve Road crosses North Frederick, not South Frederick, so that address may be a typo.

• There were at least 5 victims of theft from vehicle in the 9700-block of Washingtonian Boulevard between Thursday 6/7 and Friday 6/8. An officer responded to 9721, and said there were three other vehicles in the lot with their windows broken. He was unable to contact the owners and left notes on the vehicles to contact the police; the final victim was at 9715 Washingtonian Boulevard. For the two thefts where contact was made, stereo equipment was known to be taken.

• There were four thefts from vehicles on the night of Sunday 6/10 to Monday 6/11 on Coral Reef Drive. All had a rear window or a rear vent window broken.

  • 2030-0530 hrs. Coral Reef Drive Auto Stereo taken.
  • 2030-0745 hrs. Coral Reef Drive Nothing taken.
  • 2000-1000 hrs. Coral Reef Drive Took loose items, attempted to take stereo.
  • 0100-0700 hrs. Coral Reef Drive Nothing taken.

  Coral Reef Drive is near Muddy Branch, south of West Side Drive.

• […]Ten of the thefts from vehicles in the beat occurred between 2130 hours on Sunday 6/10 and 0630 hours Monday 6/11. The vehicles were either left unlocked or had ‘unknown entry’ noted. One victim on Hayshire Court reported seeing her vehicle light on between 0100 and 0300 hours. She closed her door but did not realize the theft occurred until later that morning. Only loose items from the vehicles were taken. The map [below] shows the events.
  

  Hayshire Court is a cul-de-sac northwest of the intersection of Quince Orchard and MD28 (Darnstown Rd). The map above is taken from the County’s web page, and it’s pretty hard to read (they appear to have changed from posting PDF output — which could be zoomed in so you could read the graphics — to posting an HTML page with a static map.) Below is a Google map of the same area.

  Center of map

• An indecent exposure occurred in the 700 block of Clopper Road on Tuesday 6/5 at 2300 hours. The suspect stepped out of his apartment, unzipped his shorts and exposed his penis to the adult female victim. The suspect made a sexual gesture while staring at the victim. The victim told officers that the suspect had exposed himself to her three times in the last week and at least ten times since the victim had moved in (unknown when). Officers went to his apartment and noted that his pants were unzipped. Officers are going to obtain charges.

• There were three thefts from vehicles on Thursday 6/7 at 0135 hours. The first victim’s motion sensor light came on and woke the victim up. She saw the suspects looking in various vehicles and trying the doors. The suspects saw the victim watching them and they went up the foot path towards Christopher Avenue. The second victim checked her vehicle after the alarm went off. Two victims had left the doors unlocked and the third was noted as ‘unknown entry’. Only loose property was taken.

  • 1500 block of Tanyard Hill Road
  • 1900 block of Windjammer Way
  • 1400 block of Wake Forest Drive

  Suspect: B/M, 5’7”-6’, black baseball cap, grey sweater

  Suspect: W/M, 5’7”-6’, red baseball cap on backwards, grey hooded sweatshirt

  Suspect: unknown race M, 5’7”-6’, grey hooded sweatshirt

  Those addresses are all off of Travis Avenue, east of Watkins Mill.

• Officers responded to a dental office at 101 Lakeforest Boulevard on Wednesday 6/6. The employees said that the suspects came into the office between 1100 and 1210 hours and claimed they were from Verizon. They asked questions about the phone bills and wanted to see them. An employee contacted Verizon who said they had no one working in the area. When pressed to show ID’s, the subjects refused and then left.

  Subjects: two W/M’s, both 24-28 yrs. old, one 5’5”-5’6”/150-170 lbs, both in two-piece suits

• A residential burglary occurred on Edgewood Drive on Thursday 6/7 at 1500 hours. An occupant of the residence heard a voice in the living room and found the suspect talking to the family dog. The witness only speaks Romanian and yelled at the suspect. The suspect threw an envelope on the floor and fled. The envelope belonged to a neighbor who denied knowledge of the suspect.

  Suspect: H/F, 5’4”-5’5”, heavy build, NFD

  Edgewood is south of West Deer Park, near Rosemont Elementary.

• An indecent exposure occurred in the area of S. Summit Avenue on Monday 6/11 at 2105 hours. A Gaithersburg City officer called out with it and arrested the suspect nearby. No report has been turned in yet; information is via the CAD.

  Defendant: Cesar Beltran, H/M, 29 yrs. old, 5’5”/140 lbs.

• Both of the residential burglaries occurred during the daytime hours on Wednesday 6/6; both locations are fairly close to each other and each site was ransacked.

  • 0830-1240 hrs. 19000 block of Sedley Terrace Entry via an unlocked side garage door. The unknown suspect crawled through the victim’s vehicle inside to get to the unlocked door to the residence. All the rooms were ransacked but at this time it is unknown what was taken.
  • 0730-1930 hrs. 18800 block of Cross Country Lane A rear basement door was kicked in and multiple rooms were ransacked. Only a large amount of jewelry was taken.

  Those addresses are near Centerway and Snouffers School Road.

• Gang-related graffiti was found at the Recreation Center, 8100 Mountain Laurel Lane, on Tuesday 6/5. Blue paint was used to write “WSM West Side” and unknown symbols and words.

  Mountain Laurel Lane is off Flower Hill Way, opposite Snouffers School from the Airpark.