The composition and manner of selecting the members of “hearing boards” constituted under the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR) has become a sticking point during the General Assembly’s consideration of HB 1016.  The proposal by Baltimore Police Commissioner Kevin Davis is the best and most constructive way forward.  The recommendation by Commissioner Davis is that all three members of a board be selected by the head of the law enforcement agency, which would return the LEOBR to its original language before it was amended years ago to allow the manner of selection to be determined through collective bargaining and binding arbitration.

I was an Assistant State’s Attorney for Anne Arundel for five years followed by 31 years in the Anne Arundel County Office of Law, retiring as Anne Arundel County Attorney in 2014. I had decades of experience with the LEOBR including advising internal affairs investigators during the course of their investigations, and prosecuting complaints before police hearing boards.  I also had occasion to counsel hearing boards during the course of their proceedings, and to advise police chiefs on the administration of discipline.

The General Assembly never should have removed the authority to initiate disciplinary action from the police chiefs who supposedly are responsible for maintaining the discipline of their departments.  In every other walk of life of which I am aware separating authority from responsibility in that manner would have been deemed unthinkably bad management.   In my experience the situation was at least tolerable, however, as long as police chiefs were able to select members of the hearing boards who shared their values on the need for consistent and effective discipline.  That was not enough for the FOP, which ultimately convinced the General Assembly to dilute the authority of police chiefs even further.

The current case involving Lt. Victor Gearhart of the Baltimore Police Department illustrates the folly of the current law.  Gearhart sent several offensive tweets including one calling for State’s Attorney Marilyn Mosby to be “deported” and stating that demonstrators “act like animals.”  Common sense informs us that Commissioner Davis not only had the right but the obligation to remove Gearhart from his supervisory duties over patrol officers for comments likely to inflame relationships between those officers and the citizens that they are supposed to protect and serve; Davis has every reason to dissuade his sergeants and lieutenants, the department’s front-line supervisors, from encouraging subordinate officers to view law-abiding citizens (and the State’s Attorney) as the enemy.

Unfortunately, Gearhart may well be correct under the LEOBR case law that his transfer was “punitive” in nature under the LEOBR and that he was entitled to have a hearing board consider his case before being transferred.  Under the collective bargaining agreement between the FOP and the city Gearhart not only has the right to a panel selected at random by computer, he also has the right to exercise three peremptory challenges against the members that have been randomly selected.  Two of those challenges may be used to strike the member chosen as chairperson.  The Commissioner has no peremptory challenges.  In other words, with any luck Gearhart will be able to weed out any of his fellow officers who might be inclined to share the Commissioner’s view on the need to refrain from incendiary rhetoric.  The General Assembly needs to fix this situation, not make it even worse.

I do not believe that it will necessarily improve the process to allow civilians to be members of hearing boards, although such a measure could increase public confidence in the process.  I believe that the current system can be made to work if a police chief is empowered to select hearing board members who exercise independent judgment but who also share and reflect the chief’s belief in the need for a well-disciplined force.

March 25, 2016