Herz Pulls Support for Black Lives Matter Murals, A Promise Broken Resident Says

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.”

8 comments

  1. That “BLM” mural painted on Sixteenth Street in Washington just a block from the White House would appear to refute each of Mr. Herz’s objections.

  2. If Herz is basing his reversal in part on advice from Stewart Barroll, then make public Barroll’s advice. We are taxpayers and we are paying him. Let us see for ourselves what Barroll advises. We deserve to see in writing “our” lawyer’s advice, so we can weigh its validity for ourselves. An informed public is best. The Town has an obligation to share this advice with its taxpayers.

  3. Even though I don’t live in town, I just knew that Tom was a coward! Playing politics and being a office holder are more important to him than what is right, what is correct. He has run for every office that Kent County has to offer, he has now finally won, he won’t stand up for what’s right, especially since the folks who want a equal and just town are not in his district, at least the majority are not in his district. Well, Tom you have shown your true colors. I am sad that now that Ms. Dorothy has passed, I won’t have to tell her you turn tail and ran away from your neighbors who needed your support, so sad.

  4. Some of the previous comments on this issue prompt me to ask why we react to so many of our disagreements with personal insults ? My desire to change hateful and aggressive human acts must start with me and with the way I raise those over whom I have been given authority, my children. I will not succeed in teaching my child that bullying is morally wrong by beating him and forcing him into submission. Surely there are better ways to unite than to paint accusatory slogans in front of where our police officers work. I have strong personal convictions opposing abortion …so I never had one. Prior to COVID, the mask over the face of evildoers was to cover their identity as they threatened our laws. I have recently seen riots and anarchy hiding behind the cover of protest against violence. We are better than this.

    1. Lesley, thank you for your comment. I urge you to read the proposal, which is available online, as well as the articles in the Pilot and the Spy where the meaning of the proposed College Ave. mural are explained. It is definitely not accusatory or directed to the police. We (the three of use who have proposed these murals) have been in communication with the Chestertown Police Department to make sure that they understand the mural is *not* directed at them, but is an expression of the way members of Chestertown’s Black community feel on a daily basis because they feel unvalued and unwelcome in town, and because they feel that their lives don’t matter to the town. This is not an accusation against any individual or individuals, but a consequence of the history and the systems that are still in place.

      What I have heard from Black residents of Chestertown is that the police department is appreciated and needed. The mural is located on College Avenue because it is an important street in the history of Black Chestertown, and because it is in a neighborhood where many Black residents live. The police department being a block away is not the reason for that location. We have invited members of the Chestertown Police Department to participate in painting the murals, which we have planned as a cooperative, unifying, and celebratory event for all parts of the Chestertown community.

  5. “I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; … who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” — Martin Luther King Jr.

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