After fully supporting a permit for Black Lives Matter murals in town, Ward 2 Councilman Tom Herz said today that he must now vote against it because of state and local traffic laws — and concerns over potential legal challenges to the town.
The permit request was for a “Black Lives Matter” mural on High Street and a “We Can’t Breathe” mural on College Avenue.
Discussion of the murals was postponed at last night’s council meeting due to technical problems that prevented public access to the webcast. The Council will take up the permit request on Aug. 10 at 7:30 p.m. here.
Herz’s decision now tips the balance for a 3-2 vote in opposition to the mural. Ward 1 Councilman David Foster and Mayor Chris Cerino were set to vote against, and Ward 3 Councilman Ellsworth Tolliver and Ward 4 Councilwoman Meghan Efland were set to vote in favor.
Herz’s initial support came out of negotiations with Wanda Boyer, Arlene Lee, Maria Wood and the Social Action Committee for Racial Justice. But after discussions with the town attorney, Stewart Barroll, on Monday, and research conducted on his own, Herz said he is now constrained from voting in favor of the murals.
His main concern is that adopting “Black Lives Matter” as a council opens up a “public forum” like a community bulletin board, which would clear the way for other groups to obtain permits for speech that the town could not support.
“My major concern…is the idea of a public forum,” he said. “If we let the Social Action Committee paint on the street then anybody can paint on the street and we will have no ability to say no.”
“We couldn’t say that the Social Action Committee could use the bulletin board and the MAGA people could not,” he said. “We couldn’t really wrap any rules around it.”
Herz said Ward 1 Councilman David Foster initially raised the concerns of opening a public forum but that he didn’t give it “enough weight” until he talked to the town attorney.
“It took some time for him to walk me through it,” Herz said. “My only regret is that I didn’t meet with the town attorney sooner.”
He also said the uniform traffic codes in Maryland prohibit the town from painting anything other than what is outlined in the code on public streets. Herz said he initially read the wrong part of the code in giving his support for the murals.
Herz said that if the council adopted “Black lives Matter” as an expression of the town, it still could not be placed on a public street because of the traffic laws.
“Even if we were to paint ‘Support Our Troops’ on the street instead of ‘Black Lives Matter’ we’d still be wrong, and it could be challenged even though ‘Support Our Troops’ is a less divisive statement than Black Lives Matter.”
“I support the declaratory statement that Black Lives Matter,” Herz said. “But I cannot support the permit because I would be violating my oath to uphold the Constitution of Maryland and the laws of Chestertown.“
In response, Arlene Lee told the Kent Pilot that Herz’s issues had already been addressed prior to last night’s council meeting and that the murals should go forward.
“We have spent a lot of time addressing all the concerns that have been raised about the murals,” She said. “I specifically looked at federal, state and local laws regarding streets and painting. The federal law addresses uniform traffic painting across the country and it is silent as to any other painting. The state laws about painting apply to state highways. So the controlling law is the town ordinance where the town reserves the right to make decisions about the streets.”
“We also spent time on the First Amendment issues,” she continued. “And while there are a couple of different approaches, the bullet-proof solution to any legal challenge is for the town to adopt the murals as their own project, as government speech. If the mayor and council truly represent the will of the people, and at least 300 residents of Chestertown have spoken in support, they will vote for the murals.”
Wanda Boyer felt that Herz’s reversal was a promise broken.
“Maria Wood, Arlene Lee and I met with Councilman Tom Herz,” she wrote in an email to the Kent Pilot. “He started the meeting saying he fully supported the Black Lives Matter mural and would be voting for it. He said his concern was with the We Can’t Breathe mural due to police morale. We then shared our meeting with Chief Dolgos who said he felt morale would not be a problem if the mural on College Ave was moved up so it’s not in front of the station and we wrote a letter to the department explaining the meaning. Councilman Herz said again at the end of the meeting that he was a ‘yes’ vote for both murals. When asked what Black Lives Matter means to him, he said it was an important message and that’s why he was planning to vote yes all along. He then suggested that we move the High Street mural to between the crosswalks. Mr. Herz said that while it didn’t affect his vote, he wanted a scale drawing of the new locations to get the ‘Hoon People’ to stop complaining.”