What does it take to get fired?

Lt. Victor Gearhart of the Baltimore Police Department (BPD) has drawn attention to himself on Twitter with a series of tweets expressing his personal views on current events in the city, including referring to demonstrators as “animals” and questioning why black-shirted members of the 300 Men March anti-violence group “dress like ISIS.”  He suggested that both State’s Attorney Marilyn Mosby and her husband, Councilman Nick Mosby, should be deported; both are African-Americans and the implication seems pretty obvious.  [“City police union official is reassigned after tweets,” The Sun, January 27, 2016.]

Gearhart’s views may not reflect the views of the police department, and I know from working with Commissioner Kevin Davis while he was the Anne Arundel County Police Chief that the tweets do not represent his views.  Much more problematic, however, is whether the tweets reflect the views of the members of the organization that elected Gearhart to represent their interests as officers, sergeants, and lieutenants in the BPD.  Gearhart is the first vice president of Lodge No. 3 of the Fraternal Order of Police (FOP), a position that he has held since 2014.  Gearhart is not an official spokesperson for Lodge No. 3 but union members will have a hard time persuading anyone that they elected persons to lead them who have attitudes and beliefs contrary to their own.

Lodge No. 3 has been an unyielding opponent of all efforts to reform the BPD, to the extent of denying the existence of any problems needing reform.  The union has vigorously opposed any changes to the Maryland Law Enforcement Officers’ Bill of Rights and the Department of Justice (DOJ) investigation requested by Mayor Stephanie Rawlings-Blake.  [“Baltimore police union critical of upcoming probe,” The Sun, October 6, 2014.]  The mayor, State’s Attorney Mosby, and former Police Commissioner Anthony Batts all have been the subject of vehement attacks by the union.  Gearhart’s public comments took a particularly negative turn last year, after he sent an email urging younger officers to leave the BPD if they had a chance:  “Any officer with less [than] 10 years on [the force] is a fool if they are not looking for a better police force to jump to. Youngsters, vote with your feet!”

I do not know whether Gearhart is an example of the “embedded racism” of which the BPD has been accused but I do know he sets a terrible example as a supervisor within the department and as a leader within the union.  How can a police lieutenant justify speaking like this in public?  His destructive attitude is precisely what the city does not need and, in my opinion, he should be fired.

January 27, 2016

Shining a light on police misconduct.

The destructive obsession with maintaining the secrecy of police disciplinary records and proceedings, which plagues Baltimore’s criminal justice system and erodes trust in the Baltimore Police Department (BPD), must end. A General Assembly task force recommended that police disciplinary hearing boards be opened to the public. The legislature also should change the law to allow public disclosure of records of police misconduct if the misconduct arises from an officer’s contact with the public or involves dishonesty that compromises an officer’s credibility.

Even city prosecutors are caught unaware by the hidden records. This month, a motion was filed in Baltimore Circuit Court by more than 20 defense lawyers seeking disclosure of the internal affairs records pertaining to BPD Officer Fabien Laronde. The motion cites “a multitude of incidents that raise questions about his credibility,” including allegations that he withheld key information under oath. The motion triggered review by the Baltimore state’s attorney’s office of 20 active criminal cases in which Officer Laronde is involved to determine if the cases remain viable.

If the files pertaining to Officer Laronde reveal evidence of misconduct impugning his credibility it hardly would be the first time that prosecutors were tripped up by information in internal affairs records. Police and prosecutors can ill afford self-inflicted wounds given the other challenges to fighting crime in Baltimore.

The Maryland Court of Appeals held last year in Dashiell v. Maryland State Police that the personnel records of a police officer that are protected from public disclosure by the Maryland Public Information Act (MPIA) include records of an internal investigation conducted as the result of a complaint of misconduct even if the complaint was “sustained” (the officer found guilty of the misconduct) in accordance with the procedures dictated by the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR). Courts can make such records available to defendants in criminal cases, but it will require action by the General Assembly to make the records available to the public.

The secrecy of disciplinary records not only compromises the prosecution of criminal cases, it undermines the confidence of the public in the integrity of law enforcement agencies. In the dissenting opinion in Dashiell v. Maryland State Police, Judge Shirley Watts pointed out that “honoring the public’s right to know how law enforcement agencies respond to misconduct — especially misconduct that arises out of contact with the public — is vital to maintaining the public’s trust in law enforcement.” To paraphrase Judge Watts, transparency is not simply the “best remedy,” it is the only remedy for restoring the confidence of the citizens of Baltimore in their police department.

The Fraternal Order of Police (FOP) argues that disclosure of records of misconduct would lead to public embarrassment of the officers. The desire of officers not to be embarrassed by public disclosures of their own misconduct does not outweigh the public’s right to be able to form its own judgments on how well a police department responds to misconduct, but there is more to it than that. Secreting the records gives rise to concerns that a department may not want the public to know how a department responds to misconduct. Considering the information uncovered by The Sun and other sources over the past two years it is clear that such concerns legitimately apply to the BPD.

Additionally, the FOP’s advocacy for secrecy smacks of the “special privileges” accorded to police officers that are another source of citizen resentment. No other private or public employees enjoy the protections from improvident disciplinary action conferred on law enforcement officers in the state of Maryland. It is unreasonable for the FOP not only to demand the protections of the LEOBR but also to insist that sustained complaints of misconduct that emerge from such a rigorous process be hidden from the public.

The disciplinary system of the BPD has operated in the dark for decades, to its detriment and to the detriment of the city. In her dissent in Dashiell, Judge Watts referred to the oft-quoted statement by Justice Louis Brandeis that “sunshine is said to be the best of disinfectants.” It will take a liberal application of sunshine for the BPD to regain the trust and confidence of the citizens of the city, but it can be done if the General Assembly wants it done.

[Published as an op-ed by The Baltimore Sun on January 19, 2016.  I did not post the piece until May 31, 2016; the date of posting listed above was altered to place the piece in chronological order.]

The least we can do.

A letter to the editor of The Capital from a reader on the subject of the reimbursement of Anne Arundel County by Baltimore for the costs incurred by the county in responding to last April’s riots referred to Baltimore in an angry and disparaging tone.  [“Reimbursement,” The Capital, January 16, 2016.]  The attitude reflected is a common one and serves an important psychological purpose for the person holding the attitude:  Blaming the citizens of the city and their leaders for the pattern of violence in the city makes it easier for the person to disclaim any personal responsibility to try to help.  It also ignores the fact that we share responsibility, as a society, for creating conditions in Baltimore that make it increasingly more difficult for its residents to escape the cycles of poverty and violence.   The city has become a poverty trap from which escape is harder than ever for reasons that are beyond the control of the people who live there.

Coincident with America’s industrial revolution was a population shift from farms to cities.  The rural poor became the urban poor, but cities like Baltimore did reasonably well as long as there were ample manufacturing and other jobs for low and non-skilled workers in or near the city and trolleys and buses to get the workers to those jobs.  Those jobs are gone, and the unemployment rate in some of Baltimore’s poorest neighborhoods exceeds 50%.  An inferior educational system further reduces opportunity.  Unemployment and grinding poverty do not relieve fathers of their responsibilities to their children or excuse criminal behavior but it is foolish to believe that the absence of any realistic hope of finding a decent job is not going to have a negative effect.

Nearly a quarter of the people in Maryland living below the poverty line live in Baltimore.  There is no greater economic disparity between a state and its largest city in the United States.    By almost all measures Maryland is the most affluent state and Baltimore is one of the poorest cities in the country.  In Maryland only the citizens of Montgomery and Howard Counties are wealthier than the citizens of Anne Arundel County.  Baltimore is going to need plenty of help to turn things around.  Absorbing the costs of helping the city restore order last April is the least that the citizens of Anne Arundel County can do.

January 16, 2016

Board of Appeals needs an overhaul.

Recent editorials in The Capital have suggested that the operations of the Anne Arundel County Ethics Commission and Board of License Commissioners should be reviewed.  Add to that list the Board of Appeals.  The board’s actions in a case brought before it by the Laurel Racing Association is an example of why changes to the composition and powers of the board are long overdue.  [“Judge orders county Board of Appeals to drop Laurel Racing case,” The Capital, December 31, 2015.]

Long story short, the Board of Appeals disregarded settled Maryland law on the finality of administrative decisions in order to revisit past calculations made by the Department of Public Works (DPW) in the course of determining how much water and sewer capacity would be required for the proposed redevelopment of the race track property.  The board in effect substituted its judgment for that of the engineers in DPW and issued a decision that would have resulted in a windfall to the property owners costing county water and sewer ratepayers approximately $5 million had the decision not been overturned by Judge Silkworth of the Circuit Court.

The board has undergone few changes since the adoption of the county charter in 1964, while county government has changed significantly.  The county is now governed by a complex set of laws administered by engineers, planners, and other professionals.  The primary role of the board is to apply county law to the facts of a case, which means that members of the board have to interpret county laws and make judgments as to whether standards and requirements set forth in the law have been satisfied.  It is a role performed in most modern governments by legally-trained administrative law judges or hearing officers.  None of the seven current members of the board are lawyers.  Ask yourself if you would rather seek an opinion on a legal matter from a lawyer or from a panel of seven non-lawyers.

To add to the absurdity the board hears, on a de novo basis, appeals from decisions by the County Administrative Hearing Officer on applications for administrative re-zonings, critical area reclassifications, zoning special exceptions, and zoning variances.  A de novo appeal means an entirely new hearing, as if the hearing held before the Administrative Hearing Officer never occurred.   Although the County Charter does not require the Administrative Hearing Officer to be a lawyer, all of them since 1964 have been experienced, highly-competent lawyers.   The proposition of having cases decided by an experienced, legally-trained hearing officer reheard and re-decided by seven lay persons is not only wasteful, it is a systemic invitation for the type of incorrect decision rendered in the Laurel Racing Association case.

The seven part-time members of the board could be replaced by three legally-trained administrative law judges who also would serve on a part-time basis.  If de novo appeals were replaced with appeals based on the record created before the Administrative Hearing Officer the county could save a considerable amount of money and produce better results.  This area of the country has an abundant number of retired and semi-retired judges, federal and state administrative law judges, and lawyers who would love to serve part-time as members of a reconstituted Board of Appeals at reasonable compensation.

I make this recommendation without much hope of persuading the County Council to pursue it.  The reasons for my pessimism are two-fold.  First of all, the County Council currently appoints the members of the Board of Appeals, with the informal arrangement being that each member of the council gets to name one member.  It is one of only two “patronage” positions that a member gets to fill.  Secondly, it is an accepted fact within the county that the private land use lawyers who regularly appear before the board tend to exercise an inordinate amount of influence over the decisions of the lay members of the board.  It is likely that an experienced cadre of administrative law judges would not be as susceptible to the influence of the local land use bar, and that group of lawyers would lobby heavily against the change.

January 3, 2016