By: Commentary: David A. Plymyer August 22, 2018
What would happen if a batter refused to leave the batter’s box after the umpire called him out on strikes? Or if a football team refused to move back five yards after the referee flagged a player for being offsides? There would be chaos and contention and the game would grind to a halt.
That is the best analogy that I can think of for the dust-up between members of the Baltimore Civilian Review Board and City Solicitor Andre M. Davis. Board members have refused to sign a confidentiality agreement prepared by the city law department. As a consequence, the Baltimore Police Department has refused to send internal affairs case files to the board for review, apparently on the solicitor’s advice.
The board has voted to use its subpoena power to attempt to obtain the files. Without the files, the board cannot perform its function of reviewing actions taken by the BPD on citizen complaints of police misconduct.
If the police department refuses to honor the subpoenas, the board would have to go to court to enforce the subpoenas. Who would represent the board in court? The same city solicitor who represents the police department?
Here’s the answer to that conundrum: Despite what some board members appear to believe, the public local law passed by the Maryland General Assembly that created the board did not make it an independent agency. The members exercise independent judgment when making recommendations but the board is not an “independent” agency in any legal sense of the term.
The board lacks the authority to retain its own attorney. It lacks the power to sue in its own name and enjoys no special status beyond being one of many city agencies. The board likely will find itself doing as instructed by the city solicitor or doing nothing at all.
There is nothing unusual or wrong about the city solicitor advising both the board and the police department. It follows the model generally employed in Maryland, with a single city or county attorney charged with advising all administrative agencies on the law, subject to specified exceptions.
The city solicitor, in effect, acts as the umpire in disagreements between agencies over their respective legal responsibilities. There is no “conflict of interest” because the sole interest being served is the city’s general interest in avoiding inconsistent applications of the same body of law by different agencies. What would be the alternative? Allow each agency to lawyer up when it disagrees with the city solicitor and bring the city to a standstill while a dispute is resolved in court?
As it happens, the city solicitor is also in the board’s chain-of-command. The board is part of the city’s Office of Civil Rights and Wage Enforcement, recently placed under the supervision of the city solicitor. Davis is not only giving the board legal advice, he is telling it what to do.
As an aside, I believe that the confidentiality agreement drafted by the city law department reasonably reflects the obligations imposed on board members by state law, a law that is not entirely clear as applied to the board. The law governing the board, like the law governing the entire police disciplinary process, is sorely in need of attention by the governor and General Assembly.
I would have labeled the document an acknowledgment rather an agreement, because the document itself is not intended to impose any obligations other than those already imposed by state law. I doubt that clarification would have made any difference in a city government in which things often get derailed by turf wars, personality clashes, or petty politics. Sometimes by all three.
I don’t blame Davis for his prudence. Public comments by some board members indicate they don’t understand or accept the confidentiality attached not only to the reports of investigations done by the BPD internal affairs section but also to the records of their own proceedings. Breaches of that confidentiality will embroil the city and individual board members in litigation and, worst case, could compromise disciplinary actions against police officers.
As it happens, I agree with board members that the secrecy surrounding police disciplinary proceedings is wrong. In 2016, I joined with the ACLU and other groups in supporting a bill that would have ended the secrecy, legislation that ultimately failed. Until we succeed in getting the law changed, members of the Civilian Review Board should do what the city solicitor tells them and get back to work.
David A. Plymyer retired as the Anne Arundel County Attorney in 2014. He is a graduate of the University of Baltimore School of Law. He can be reached at firstname.lastname@example.org
[Published as guest commentary by The Daily Record on August 22, 2018 but not posted to my blog until January 31, 2019. The date of posting that appears above was backdated to put all posts in the order in which they were written.]