In an article that appeared in The Baltimore Sun on August 24, 2015 a spokesperson for the Maryland ACLU expressed dismay that advocates for reform of the Maryland Law Enforcement Officers’ Bill of Rights were underrepresented on the list of speakers invited to address the Maryland General Assembly Public Safety and Policing Workgroup at the hearing on the LEOBR held that day in Annapolis.   I shared the ACLU’s disappointment and, in my opinion, the over-allocation of time to the FOP at the hearing reflected the major impediment to reform of the LEOBR, which is the inordinate influence that the FOP exerts over State and local officials in Maryland.

In an op-ed piece that appeared in The Sun in January Susan Goering of the Maryland ACLU concluded that Maryland’s LEOBR had to be rebalanced because in its current form it “imposes significant impediments to conducting an adequate investigation and takes responsibility for discipline away from police chiefs.”  There is no doubt in my mind that she is correct, but achieving a proper balance will require a paradigm shift in the way that police discipline is administered in the State of Maryland which in turn will require overcoming the opposition not only of the FOP but also of police chiefs throughout the state.

The current paradigm is a “closed system,” with the discipline of police officers administered solely by other police officers.  Police chiefs have a secondary role, with the threshold responsibility for deciding whether discipline should be imposed assigned to “hearing boards” accountable to no one.  Only police officers may investigate police officers and only officers may sit in judgment of police officers as members of the hearing boards.

Citizens not only are excluded from the process they also are not privy to the outcomes, a point reiterated by Court of Appeals in Dashiell v. Maryland State Police.  Maryland’s LEOBR is a manifestation of the “us vs. them” culture in which police officers believe that they are entitled to be governed by a set of rules that is different from the rules that govern the citizens that they are hired to serve.

The current paradigm needs to be replaced with a new paradigm that returns to police chiefs the power and the responsibility to maintain the discipline of their officers and holds police chiefs accountable for the results.  Nothing should require a police chief to get “prior approval” for disciplinary action; for purposes of an administrative appeal of the chief’s decision a hearing officer or tribunal with the power to set aside the discipline imposed by a police chief on the basis that it was arbitrary, capricious, or unlawful should be entirely independent from both the police chief and the police union.

If a civilian review board is constituted by a jurisdiction in order to monitor how well a police chief is doing in maintaining the discipline of his or her officers the board should have full access to investigatory and personnel files.  All citizens should be entitled to disclosure of the outcome of disciplinary action for what Judge Watts described in her dissent in Dashiell v. Maryland State Police as “misconduct that arises out of contact with the public.”

Resistance to a paradigm shift will come from two sources.  The first source is an obvious one; the second may be less obvious.  The FOP will of course resist any dilution of the LEOBR.  The second source of resistance will come from police chiefs because few police chiefs in Maryland appear to want more responsibility for the discipline of their departments, and I believe that their reticence also is largely attributable to the political power of the FOP.  Police chiefs are as intimidated as elected officials by the FOP, if not more so.

The FOP’s opposition to reform of the LEOBR is just old-fashioned trade unionism at work; the FOP’s actions are typical of organized labor, and few labor unions make concessions on the terms and conditions of employment unless absolutely compelled to do so.  In the private sector market forces sometimes compel concessions; there are no analogous forces at work for police unions:  Crime is not going away nor is the tax money that supports police departments.  The only “market force” at issue is political muscle, and the FOP has plenty of that.

As I noted in a letter that I sent to the Workgroup on July 15, 2015 Maryland’s LEOBR is less about fairness to police officers than it is about  throwing as many obstacles as possible in the way of effective disciplinary action by police chiefs.  This imbalance was created by design, and reflects the longstanding influence of the FOP over the Maryland General Assembly.

The Workgroup invited eleven separate FOP lodges to present their points of view on the LEOBR but only a handful of groups interested in reform.  Was the Workgroup surprised when none of the FOP representatives did anything other than toe the union line and profess that the LEOBR should not be changed because it is absolutely necessary to protect conscientious officers from frivolous complaints and vindictive police chiefs?  I hope not, because that is how a labor union operates when it is confident that it is holding all of the cards.

The apparent consensus of the police management representatives who testified was that the LEOBR was working fine, although they conceded that the ten day suspension of interrogation should be eliminated in order to restore public confidence in the law.  Their position has all the earmarks of a potential “compromise” intended to throw a bone to advocates for reform.

Although I agree that the ten-day rule should go, I would never accept removal of that provision alone as a reasonable “compromise.”  As anyone with any experience with the LEOBR knows, it is the LEOBR’s removal of authority from a police chief to initiate discipline that needs to be undone.

It may seem hard to believe that the FOP persuaded the General Assembly to go down a rabbit hole and take the responsibility for police discipline away from police chiefs where it plainly belongs.  That happened only because the Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association did not oppose the abrogation of their authority when it was enacted into law.

In over 30 years in the Anne Arundel County Office of Law, the last two as County Attorney, I had the opportunity to work with many chiefs of police.  Few were anxious to draw the ire of the FOP; some I even would describe as completely intimidated by the FOP and overly concerned with “keeping the peace” with the FOP because of the FOP’s access to the County Executive and members of the County Council.

Former Baltimore Police Commissioner Batts refused to appear in Annapolis this spring to testify in support of changes to the LEOBR requested by Mayor Rawlings-Blake.  According to reports in The Baltimore Sun Mr. Batts’ reticence to support changes in the law surprised some legislators because Mr. Batts had made public comments about having his “hands tied” where discipline is concerned.  Instead of going to Annapolis to testify Mr. Batts sent an email to the members of the BPD assuring them that he would not support changes to the LEOBR. If Mr. Batts was worried that his support of changes to the LEOBR would result in a threatened “no confidence” vote by the FOP he would not have been the first head of a police department to back down in the face of a confrontation with the union.

The decision to terminate or even suspend an officer often is a controversial one, and I believe that many police chiefs are just as happy that they do not have to take full responsibility as the decision makers.  Not being the primary decider makes it less likely that a chief will become a target for retribution by the FOP for a disciplinary action with which the FOP disagrees.  The problem of course is that this arrangement violates the fundamental proposition that unless a police chief is given adequate authority to maintain the discipline of his or department, he or she lacks control over that discipline and cannot reasonably be held accountable when discipline breaks down.

The commentary written by Karl Bickel that appeared in The Sun on August 26, 2015 illustrates the mindset that the advocates for reform of the LEOBR are up against.  Mr. Bickel, most recently an unsuccessful candidate for Sheriff of Frederick County, argued that the LEOBR is not a problem, and that attempts to reform it result in antagonism between police officers and their elected leaders.  He stated that the LEOBR in its current form works well and that attempts to reform it do no more than upset police officers and result in “further widening the gulf between police and the communities they serve.”

As indicated in my own op-ed piece that appeared on August 18, 2015 I agree with everything said by Mr. Bickel except for his conclusion that the LEOBR does not need to be changed and his assertion that efforts to reform the LEOBR somehow are worsening the broken relationships between police officers and the communities they serve.  He is correct that the problem is broader than the LEOBR and includes the “us vs. them” culture, a culture that has as elements the blue wall of silence and the perception among officers that different rules apply to their actions.  I doubt, however, that a change in culture will occur until there is a functional disciplinary system and a paradigm shift in the manner in which police discipline is addressed.  Not every bad cop will respond to the improved training and tactics and better leadership advocated by Mr. Bickel.

Under the current paradigm, police chiefs fear the collective disapproval of their officers through the FOP more than the officers fear the disapproval of their conduct by the police chiefs.  That is a backward situation, and a recipe for the loss of discipline.   When management is afraid of organized labor it is organized labor that controls the “culture” of the workforce.

Finally, State and local elected officials must accept full responsibility for the nature of the disciplinary system administered by police chiefs, and not allow it to be bargained away or shaped by some labor arbitrator.  There are plenty of proper subjects for collective bargaining, but a police chief’s responsibility for the conduct of his or her officers and the manner of maintaining police discipline is not one of them.