The Glen Keith Allen debacle.

The firing of attorney Glen Keith Allen by Baltimore City Solicitor George Nilson and its aftermath, which included the firing of Nilson by Mayor Stephanie Rawlings-Blake for hiring Allen in the first place, was a debacle of impressive scope.  The debacle could have been avoided if city official officials had followed one simple rule:  When you have the time to stop and think before acting, do so.

A report by the Southern Poverty Law Center (SPLC) calling Allen, who is white, a “known neo-Nazi” came on the heels of the report by the United States Department of Justice (DOJ) accusing the Baltimore Police Department (BPD) of systemic racial bias.  Among the cases being defended by Allen on behalf of the city is a suit by a black man, Sabein Burgess, who accuses Baltimore police of withholding and fabricating evidence in order to convict him of a murder to which another man later confessed.  In their panic to respond and cover their own posteriors city officials embarrassed themselves and lost an opportunity to promote racial reconciliation within the city.

Had the mayor, the former city solicitor, and other officials from the city not been in such a hurry they would have found out that Allen mended his ways before he was hired by the city and that he is not a member of a “hate group” under any reasonable definition of the term.  They could have avoided a blatantly unconstitutional termination and allowed him to resign, turning the situation into one of redemption and understanding rather than one of rancor and hostility.  And, maybe with a little thought certain city and state officials could have steered clear of making ludicrous statements reflecting their ignorance of the law.

Allen was working under a one-year contract with the city since February as an Assistant City Solicitor in the Litigation and Claims Practice Group of the Baltimore City Office of Law.  Allen began his legal career as a law clerk for Judge Robert Murphy, then the chief judge of the Maryland Court of Appeals.

Allen, age 65 and an Army veteran, retired last year from DLA Piper, a prominent global law firm with an office and roots in Baltimore, and came to work for the city to help with complex litigation.  He is married with three children, writes poetry and novellas as a hobby, and runs in the Maryland Senior Olympics.  The city was unaware of Allen’s personal and political beliefs, which by all accounts he kept to himself and out of the workplace.  He tried to keep his private life private and was successful until the SPLC report.

On August 17th the SPLC published its report calling Allen, who is white, a “known neo-Nazi.” The report documented his past affiliation with the National Alliance and his current membership with the American Eagle Party, both of which the SPLC considers “hate groups.”  The SPLC labels the National Alliance as a neo-Nazi hate group and the American Eagle Party as a white nationalist hate group.  In SPLC terminology “white nationalists,” sometimes referred to simply as “nationalists,” are persons who embrace white supremacist or white separatist ideologies often focusing on the alleged inferiority of non-whites.

On August 18th Allen was fired by Nilson, who told Luke Broadwater of The Baltimore Sun that he terminated Allen’s contract with the city immediately upon learning of the allegations against him.  Nilson was fired the same day.  In other words Nilson gave about as much thought to firing Allen as Rawlings-Blake gave to firing him.

There is no evidence contradicting Allen’s statements to reporters that he no longer is a white supremacist and that he ended his membership in the National Alliance long before he came to work for the city.  He attributed his decision to join the National Alliance, which he described as a “huge mistake,” to “pretty awful experiences with black people” that he had while he was in the Army from 1978 to 1982.  Allen admits that he remains a member of the American Eagle Party.

Barry Rascovar wrote an article taking Rawlings-Blake to task for her “insulting, back-of-the-hand dismissal” of Nilson, apparently done without explanation by an assistant to the mayor rather than by the mayor herself.  The abrupt dismissal of Nilson, who also is white, implied that he should have known of Allen’s background before he hired him.  Nilson’s callous termination after a long and distinguished career in law and public service was only one in a series of ill-considered and harsh decisions made in this matter.

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If Nilson and Rawlings-Blake accepted on face value the accusation by the SPLC that Allen is a current member of a white nationalist hate group then they made a mistake.  Based on what Nilson reportedly told Luke Broadwater Nilson did not bother to do his own investigation of the SPLC’s allegations.  The problem is that the SPLC has become a bit like Chicken Little in warning us about white nationalist hate groups.

The National Alliance is a neo-Nazi organization properly labeled as a hate group.  The American Eagle Party, on the other hand, is a right-wing political party of little consequence, not a “hate group.”

The American Eagle Party has no explicit racial agenda and its basic tenets are remarkably similar to those in the current mainstream of the Republican Party as reflected by the nomination of its presidential candidate, Donald Trump.  The American Eagle Party seeks to:  1) end “wars of occupation” by the United States around the world; 2) stop the “immigrant invasion” of the United States; 3) reclaim the constitutional rights and liberties of Americans;  4) restore America’s economy and middle class; and 5) enable honest media alternatives.  Sound familiar?

The SPLC lists the American Eagle Party as a white nationalist hate group because of the SPLC’s over-inclusive definition of the term “hate” and its tendency to use the description “white nationalist” very loosely.  The SPLC labels an organization a “hate group” if its ideology puts it in opposition to the putative rights of immigrants, persons of another color, gays, etc.  Because violence, illegality or even ill will is not required for “hate” to be present, the term “hate group” covers an awful lot of the social and political landscape.

The SPLC is a private organization not bound by due process.  It does its best work when it keeps its focus on true hate groups – those that advocate violent or unlawful conduct.  It gets itself into controversy when it strays too far into the gray area that separates organizations like the KKK from organizations like the Family Research Council (FRC), a prominent Christian lobbying group headed by a popular.  The SPLC came under intense criticism from conservative and evangelical Christian groups in 2010 when it listed the FRC as a “hate group” because the FRC “has knowingly spread false and denigrating propaganda about LGBT people.”

In 2014 the SPLC put Dr. Ben Carson on its “Extremist Watch List” because of his views against same-sex marriage.  The SPLC apologized and took Carson off the list in 2015 after a firestorm of protest threatened to destroy the SPLC’s credibility entirely.

The fact is that on occasion the SPLC uses the “hate group” and “white nationalist” labels inappropriately in order to advance its own social and political agendas.  In recent weeks the SPLC has become almost frantic in its accusations that the Trump campaign is being taken over by “white nationalists.”  In its “Hatewatch Headlines” feature on August 18th the SPLC reported that “Trump’s new team lead by nationalists” and on August 19th the SPLC lamented that “Trump’s ties to white nationalists tighten.”  By August 24th the headline was “Trump’s alignment [with white-nationalist ideology] is now clear.”  Is the SPLC calling Trump a white supremacist?

Under the headline “Trump’s new team lead by nationalists” the SPLC quoted extensively from a rant by Robby Mook, Hillary Clinton’s campaign manager, against Steve Bannon.  Bannon is the former chief executive of Breitbart News and now the chief executive of Trump’s campaign.  In his rant Mook referred in turn to the SPLC’s assessment that Bannon had steered Breitbart toward “racist ideas” that make up “an emerging racist ideology known as the ‘alt-right.’”  Not coincidentally Clinton herself now has picked up the “alt-right” theme in a not-so-subtle attempt to brand Trump himself as a racist in order to counter Trump’s recent attempts to court black voters.

Labeling groups as hate groups is a little like identifying a conspiracy.  If you find yourself labeling too many groups as hate groups or including too many people in a conspiracy you probably need to revise your definition of a hate group or your conspiracy theory, as the case may be.

The SCLU report referred to Allen as a “known neo-Nazi” in the present tense.  From all indications it appears that city officials took the accusations by the SPLC at face value.  If they did, it was the height of irresponsibility.

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Allen’s firing was unconstitutional because it violated his freedom to engage in association with others for the advancement of beliefs and ideas.  “Freedom of association” is a liberty that the Supreme Court has found essential to the full enjoyment of the rights specified by the First Amendment to the United States Constitution that include the freedoms of religion and expression.  Allen was let go solely because of his associations and the personal and political beliefs that the associations represented.

Allen did belong to a hate group, the National Alliance, which advocates violent and illegal conduct.  His affiliation with the group, however, ended before his employment with the city began.  Moreover, it has been settled law for decades under cases decided in the aftermath of the McCarthy-era witch hunts that a state or local government cannot discharge an employee solely on the basis of the employee’s affiliation with such a group.  There must be evidence that the employee participated directly in the violent or illegal activities of the group.  Stated another way, it cannot be the affiliation that forms the basis for a discharge; it must be violent or illegal conduct that justifies the discharge.

One federal court has carved out a narrow exception for law enforcement agencies.  In 1985 the United States Court of Appeals for the Eleventh Circuit decided that the sheriff of Jacksonville, Florida could fire a clerical employee who joined the Ku Klux Klan while working for the sheriff and then took on a public role with the Klan as a recruiter.  The court held, after considering the fact that there was strong negative reaction to the clerk’s Klan membership among the city’s majority-black population:

“A law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has become known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties.”

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The end of Allen’s employment could have been handled in a manner that was better for him and, more importantly, better for the city.  When he spoke to reporters after being fired Allen was remarkably gracious and complimented the city on the professional manner in which he had been terminated, expressing regret for any embarrassment that he had caused Nilson or Rawlings-Blake.  He said that agreed with the city’s decision and that his departure was in best interests of the city because he could find himself in court with judges who disliked him because of his past and there was a possibility that this could affect the outcome of his cases.

In other words, it is crystal clear that Allen would have taken advantage of the opportunity for a more dignified exit that recognized that he had ended his affiliation with a neo-Nazi organization; with his background it is easy to understand why he would want to spare himself and his family any more embarrassment.  That opportunity was not made available, possibly because Rawlings-Blake was no longer speaking with Nilson as claimed by Rascovar.  It is hard to work out things like that when you don’t talk.

Had the city solicitor and the mayor talked it over and handled things properly this would have been the mayor’s statement:  “Mr. Allen has assured us that he is not a white supremacist and no longer has ties to the National Alliance or other neo-Nazi organization.  People do change, and we recognize that.  He has, however, informed us that he believes that the publicity given to his past affiliation with a neo-Nazi organization could jeopardize the interests of the city in the cases that he is litigating.  Consequently, he has graciously offered to resign his employment with the city.  We have accepted his offer, thank him for his service to the city, and wish him the best.”

Why would have that been a better outcome?  First of all, it would have avoided setting a precedent that the city cannot enforce.  The next employee “outed” by the SPLC and fired by the city may not be as compliant as Allen and the city will be dipping into its treasury to pay off yet another judgment or settlement.

Secondly, it would have promoted racial reconciliation.  Allen had renounced white supremacy and terminated his relationship with the National Alliance before he was hired by the city.  He had changed for the better, even if one shares the opinion of Dan Rodricks of The Sun that his transformation was not completely convincing.  Do we expect perfection in attitudes toward race and religion?  Good luck with that standard.

Kindness and some expression of appreciation for the changes Allen has made in his beliefs would have delivered a far more constructive message than the angry rhetoric that accompanied his firing.  The nature of the city’s action will not be lost on the legions of white people inside and outside the city who believe that their own race is under attack.  The sequence of events following the report by the SPLC will do nothing to change that belief.

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Tough talk that is nothing more than political posturing by elected officials is nothing new.  In this case the tough talk also reflected a rather profound lack of knowledge about the law.

Some elected officials from the city fell all over themselves explaining to reporters how outraged they were that Allen had been hired.  City Councilman Brandon Scott told The Sun that Allen’s hiring reflects poorly on the city.  “Before we hire anybody in this day and age we should be doing thorough checks,” Scott said. “I’m disgusted. It’s unacceptable.”

City Council President Jack Young released a statement saying:  “I am angry that someone who allegedly harbors such disgusting views as Mr. Allen was allowed to work on behalf of the citizens of Baltimore. I am pleased that Mr. Allen’s contract with the City of Baltimore has been terminated. Moving forward, each department and city agency should conduct an internal review of their hiring practices.”  Councilman Robert Curran criticized Nilson for not doing a better job in vetting Allen before hiring him.

Delegate Jill Carter told The Sun that the vetting process “should consist of more than credit checks and criminal background checks.”  “Clearly, there was no due diligence done,” according to Carter.  “Who else do we have working for the city? It’s particularly concerning because we are dealing with issues of systemic racism.”

There is one problem with all of that rhetoric:  The city cannot constitutionally ask a job applicant about the applicant’s personal and political beliefs or any organizations to which the applicant belongs for the purpose of advancing those beliefs.  Well, the city can ask, but it cannot refuse to hire an applicant because the applicant refuses to answer the question.

Moreover, if the applicant is asked and admits membership in a hate group and does not get the job, the applicant can sue the city for a violation of the applicant’s First Amendment rights.  In the suit the city would bear the burden of proving that the refusal was not based solely on the applicant’s membership in a hate group.  So why ask?

Scott, Young, Curran, and Carter should forget about trying to purge from city government bureaucrats, lawyers, clerks, and laborers who are members of white nationalist (or black separatist) organizations and who keep their activities lawful and out of the workplace.  The law does not support those officials’ view of employees’ constitutional rights and they have other things to do.

As an aside, I agree with the SPLC that there is a legitimate concern about having members of law enforcement agencies belong to the KKK, which is a racist and anti-Semitic organization with a long history of violent and illegal activity, or similar organizations.  The issue has been on the radar since the FBI issued its report on white supremacists in law enforcement in 2006.

In light of the DOJ report the Baltimore Police Commissioner could make an even stronger argument than the one made by the City of Jacksonville sheriff in defending the firing of an employee whose membership in the KKK had become public knowledge.  Given how the Allen situation was handled, however, I believe that matter is best left up to the commissioner, the city’s Director of Human Resources, and the new city solicitor without too much “help” from the mayor and city council.

August 25, 2016

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