To dream the impossible dream…about an amendment to the Md Public Information Act.

Few things in life are a bigger waste of time for an ordinary citizen than to send, unsolicited, a proposed bill to the Governor of the State of Maryland and ask him to support it.  But that is what I did.  For good measure, I sent copies to the President of the Maryland Senate and the Speaker of the House of Delegates.

Below is the cover letter that I sent and the memorandum that contains a proposed amendment to the Maryland Public Information Act that would allow public inspection of certain police disciplinary records.  HB 402 introduced in the 2016 session of the General Assembly was the last serious effort to pass such a bill.

I supported that bill as best I could, but I wasn’t happy with the way it was drafted.  Not that its drafting made any difference, because the bill lacked any real support and went down to ignominious defeat.  So, this year I had some time and drafted what I believe to be a better bill. Why not?

The cover letter explains why I believe that this legislation is so important, especially to the City of Baltimore:   Restoring the trust of the citizens in their police department is essential, and there will be no trust until there is some transparency in the disciplinary process.


The cover letter

December 8, 2018

The Hon. Lawrence J. Hogan, Jr.
Governor of the State of Maryland
100 State Circle
Annapolis, Maryland 21401-1925

SUBJ: Proposed amendment to the Maryland Public Information Act (MPIA)

Dear Governor Hogan:

The City of Baltimore needs your help in bringing its epidemic of murder and other violent crime under control. That epidemic is about to enter its fifth year. It is an unbelievable tragedy for both the city and the state.

The Baltimore Police Department (BPD) has two separate but related problems. It currently lacks an effective strategy for reducing the violence. It also has lost control of the conduct of its officers, the extent of which is still unfolding.

Hopefully, the year 2019 will find Baltimore with a new, permanent police commissioner. In my opinion, and in the opinion of most experts in the field, the new commissioner will have to employ an aggressive, proactive approach to policing to reduce violence.

Such an approach will be a tough sell to the citizens of Baltimore – as well it should be, given the history of abuses by the BPD – without concomitant assurances that discipline within the department is sufficient to keep such policing within constitutional limits. I am proposing that you support one small measure in the 2019 session of the General Assembly that will begin the process of restoring public trust in the BPD, trust that is essential to its effectiveness.

The proposal is to carve a narrow exception to the MPIA that allows public inspection of certain police disciplinary records. Police chiefs, police commissioners and sheriffs must be accountable to the citizens of their jurisdictions for the discipline of their departments. The only way to achieve that is through the transparency of critical disciplinary actions.

I’ve attached a copy of a memorandum that includes a proposed bill. I am perfectly aware that such proposals from ordinary citizens generally have little value in the political arena. Submitting the proposal, however, makes me feel better because at least I have tried to do something to help.

Merry Christmas, Governor, and a Happy New Year.

                      Sincerely,

                                    David A. Plymyer

Cc: Hon. Thomas V. Miller, Jr.
Hon. Michael E. Busch


The bill and explanatory memorandum

SUBJECT:            Proposed amendment to the Maryland Public Information Act regarding                                inspection of police disciplinary records

PREPARED BY: David A. Plymyer

DATE:                  December 8, 2018

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Purpose

To amend the Maryland Public Information Act (MPIA) to allow the inspection of police disciplinary records that result from complaints alleging the following conduct arising out of or occurring in the course of a police officer’s duties: 1) dishonesty or untruthfulness; and 2) the verbal or physical abuse of a citizen, including the use of excessive force or brutality.

Background

The current provisions of the MPIA categorically exempt a “personnel record” of an individual from public disclosure. Although the statute gives some examples (application, performance rating, and scholastic achievement information) there is no definition of “personnel record” in the MPIA. The General Assembly left it to the courts to flesh out a definition.

In Montgomery County v. Shropshire, 420 Md. 362 (2011), the Court referred to its earlier decision in Governor v. Washington Post, 360 Md. 520 (2000) that held that “personnel records were those [records] relating to hiring, discipline, promotion, dismissal, or any matter involving an employee’s status.” The Court went on to hold in Shropshire that the record of an internal affairs investigation into an alleged violation of administrative rules by a police officer was a “personnel record” of that officer and could not be disclosed.

In my proposed bill, I codify the Court’s decision that the General Assembly generally intended to exempt the “disciplinary records” of public employees from disclosure under the MPIA by adding a new section to the MPIA specifically addressing disciplinary records. I then spell out a limited exception to that prohibition. In my opinion, this is a far cleaner and much less confusing approach than the alternative, which would be to create an “exception to the exception” under § 4-311 of the General Provisions Article. Section 4-311 is the section that declares “personnel records” to be exempt from disclosure under the MPIA.

I chose to limit the exceptions to police officers for the obvious reasons: Police officers, unlike other public employees, have the power to use force to place citizens under arrest and restrain their liberty. Their testimony can result in the search of citizens’ homes and send citizens to prison for years.

I further limited the exceptions to the two types of conduct that I believe are most relevant to citizens’ interests in holding leaders of police departments accountable for ensuring that their officers perform their duties fairly and justly: Dishonesty and untruthfulness, and abuse of citizens, physical or verbal.

To avoid confusion, I use language that makes clear that, as the term is used in the MPIA, a “record” refers to a discrete document or set of documents – not to a list such as an individual’s driving record, criminal record, or “disciplinary record.” Therefore, as applied to a given disciplinary action, disciplinary “record” refers to the documents and other materials specific to that action, not to a listing of the discipline imposed on an individual during the entirety of the individual’s employment.

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Proposed bill

Annotated Code of Maryland – General Provisions Article

[new] § 4-328. Disciplinary records

(a) “Police officer” defined. — In this section, “police officer” has the meaning described in § 3-201(f) of the Public Safety Article.

(b) Included as disciplinary record. – – For purposes of this section, a disciplinary record includes a record of:

(1) the allegations or complaint that initiated consideration of possible disciplinary action against an employee by the individual’s employer;

(2) the investigation of the allegations or complaint conducted by or on behalf of the individual’s employer, including any findings and recommendations;

(3) for an individual subject to the Maryland Law Enforcement Officers’ Bill of Rights, the proceedings, outcome, findings of fact, and recommendations of a hearing board constituted under § 3-107 of the Public Safety Article; and

(4) the final decision by an individual’s employer on whether to impose disciplinary action, the disciplinary action imposed, and any explanation of the decision.

(c) In general. — Except as provided in subsection (d), a custodian shall deny inspection of a disciplinary record of an individual.

(d) Inspection of disciplinary record of police officer. — Subject to subsections (e) and (f), a custodian shall allow inspection of a disciplinary record of a police officer resulting from an allegation or complaint of the following conduct arising out of or occurring in the performance of the officer’s duty:

(1) Dishonesty or untruthfulness; or

(2) Verbal or physical abuse of a citizen, including the use of excessive force or brutality.

(e) Temporary denial. — A custodian may deny inspection of the record of an investigation governed by § 3-104 of the Public Safety Article until a hearing board constituted under § 3-107 of the Public Safety Article issues its decision.

(f) Expunged record. – A custodian shall deny inspection of a record expunged under § 3-110 of the Public Safety Article.

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Explanation of provisions

4-328(a). I incorporated the definition of “police officer” from § 3-201(f) of the Public Safety Article rather than use the definition of “law enforcement officer” from the provisions of the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR). The reason for my decision is that using the Public Safety Article definition does not categorically exclude the disciplinary records of probationary police officers.

Under the LEOBR, “law enforcement officer” is defined as excluding a probationary officer except when there is an allegation of brutality. Using the definition of “police officer” set forth in § 3-201(f) means that a disciplinary complaint against a probationary officer alleging dishonesty, untruthfulness or verbal abuse of a citizen, although not subject to the LEOBR, will be subject to inspection.

4-328(b). This section specifies the recorded information that is within the scope of a “disciplinary record.” It is intended to be comprehensive and include everything from the initial complaint to the final decision. It includes the records of the proceedings of a police disciplinary hearing board constituted under the LEOBR.

4-328(c). Provides that, except as described in subsection (d), inspection of a disciplinary record of a public employee shall be denied.

4-328(d). Specifies the alleged conduct by a police officer for which inspection of a disciplinary record must be permitted. The alleged conduct must have arisen out of or occurred in the performance of the officer’s duty.

I included “verbal abuse” because such conduct can be a precursor to physical abuse. Citizens have the right to know how a police department is responding to known “red flags” to prevent misconduct from escalating from verbal to physical abuse.

“Arising out of” has a somewhat broader meaning than “occurring in” the performance of an officer’s duties, but still requires a nexus between the duties and the conduct. Under analogous circumstances courts have held that criminal or deliberate tortious conduct lies outside the scope of a police officer’s duties. See, e.g., Wolfe v. Anne Arundel County, 374 Md. 20 (2003). “Arising out of” is intended to include criminal or deliberate conduct that may not have been part of an officer’s duties but was related to (arose from) those duties in some manner.

4-328(e). Allows the custodian to delay inspection of the record of an investigation governed by the LEOBR until a police disciplinary hearing board issues its decision. Intended to protect the integrity of the investigation and the hearing process.

4-328(f). The LEOBR allows the expungement of a disciplinary complaint against a law enforcement officer three years after a final disposition of the complaint that exonerates the officer. This provision would prohibit a custodian from allowing inspection of a record expunged under the LEOBR.


I have been told that there is some interest in resurrecting the effort to amend the MPIA to allow limited inspection of police disciplinary records, and I passed the above proposal along to the person who told me that.  Do I have any great hope that my or any other proposal will go anywhere in the 2019 session?  No, but at least I tried to do something to move the police reform ball forward.  Which is more than most state officials can say.

 

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