David A. Plymyer
This is a plea to the governor and leaders of the Maryland General Assembly: Please take charge of fixing the broken disciplinary system of the Baltimore Police Department (BPD). This is a problem that only you can solve. The fix requires changes to state law, and the longer a fix is delayed, the worse the problems within the BPD become.
If we have learned anything over the past three years, since the fatal injury to Freddie Gray in the back of a police van — culminating with the fallout from the Gun Trace Task Force — it is that the current disciplinary system doesn’t work. The flapdoodle between Baltimore City Solicitor Andre Davis and members of the Civilian Review Board, who are refusing to sign a confidentiality agreement regarding police misconduct allegations, is the latest example of the need to straighten out this mess.
The Community Oversight Task Force, an advisory body mandated by the consent decree between the city and the Department of Justice, recently recommended taking away from the BPD investigatory responsibility for allegations of police misconduct involving civilians. The responsibility would be given to an independent agency staffed by civilians and known as the Civilian Office of Police Accountability (COPA). COPA would be supervised by another new entity, the Police Accountability Commission.
Under the task force proposal, the existing system governed by the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR) would be retained by the BPD to investigate allegations of police misconduct not involving civilians. In other words, the proposal would take a system that already is too complex and make it even more byzantine. The system needs fewer moving parts, not more.
The best chance of success to maintain the discipline of the BPD lies in restoring the power to the Baltimore Police Commissioner and holding the commissioner strictly accountable for the results. Here is what I believe should be done:
• Under the LEOBR, the decision whether an officer has committed a violation for which discipline may be imposed is made by a hearing board, rather than by the commissioner. Hearing boards consist of rotating groups of other officers from within the department. Members of hearing boards are accountable to no one for their decisions. Eliminate the hearing boards. Return decisions on whether officers have committed disciplinary violations to the commissioner.
• I agree with the Community Oversight Task Force that more oversight of police discipline is required. Recast the existing Civilian Review Board from a parallel investigatory agency into a body with true oversight authority, including unfettered real-time access to employees, personnel records and investigatory files. Give it an ombudsman role for complainants and the power to subpoena witnesses if necessary to ascertain the quality of an internal investigation. The roles of the BPD and the reconstituted Civilian Review Board would not overlap. It would be the job of the commissioner to enforce discipline; it would be the job of the review board to monitor how well the commissioner does so.
• Require the Civilian Review Board to prepare an annual report on disciplinary actions that evaluates the performance of the commissioner in enforcing discipline. If the commissioner’s performance is unsatisfactory then the mayor has an obvious remedy: Fire the commissioner. Citizens might be pleasantly surprised how fear of losing his or her job focuses a public official’s attention on a task. But you can’t do that until you give the official the tools to accomplish the task.
• Finally, scrap the confidentiality laws that shield the records of disciplinary actions from public scrutiny. It’s absurd that, given the crisis in confidence in the BPD, we’re still concerned with protecting its officers from what — a bit of embarrassment?
If you’re worried about resistance from police unions to amending the LEOBR, remember this: The LEOBR was enacted by the General Assembly in 1974 to strip former Baltimore Police Commissioner Donald Pomerleau of the unilateral power to purge corrupt officers from the BDP.
Pomerleau’s quest to end the corruption that was rampant in the BPD when he took over in 1966 was unpopular among many officers — and among some politicians. Ask yourself: Do you believe that the constraints on the ability of recent commissioners to get rid of corrupt officers have been a good thing or a bad thing?
Fixing the problems with the disciplinary system of the BPD requires action by the General Assembly and leadership by the governor. Governor Hogan, if you are re-elected in the fall, I have some good news for you: This is one thing that you can do for the city that won’t cost a dime.
David A. Plymyer retired as Anne Arundel County attorney in 2014 and also served for five years as an assistant state’s attorney for Anne Arundel County. His email is firstname.lastname@example.org; Twitter: @dplymyer.
[Published as an op-ed by The Baltimore Sun on July 31, 2018 but not posted to my blog until October 25, 2018. The date of posting that appears above was backdated to place all posts in the order in which they were written.]