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Why the future of police trial boards in Baltimore is not in a judge’s hands

03.29.12- BALTIMORE, MD-Photos during the protest March by residents from the community's around the EBDI site demanding jobs from the construction work that is happening in the site that used to be where some of the lived. After protesting outside of the Johns Hopkins Hospital, the activists tried to block the streets to the construction trucks working on the EBDI site and a few were arrested when thing started to get out of control. (Maximilian Franz/The Daily Record)

Maryland law requires civilian participation in police disciplinary hearings be negotiated in a collective bargaining agreement, if applicable. Civilians are not part of Baltimore police disciplinary hearing under the current terms of the CBA. (File photo)

Several police reforms proposed in the U.S. Department of Justice consent decree with Baltimore city, including civilian participation in disciplinary proceedings, will depend not on a judge’s ruling but rather the outcome of contract negotiations between the police union and the city.

The collective bargaining agreement between the Fraternal Order of Police’s Baltimore lodge and the city expired in June but will remain in place unless terminated until a new CBA is approved. The parties have been negotiating a new agreement with an eye toward implementing the provisions included in the consent decree, some of which conflict with the current contract.

Interim City Solicitor David E. Ralph, during a hearing in federal court earlier this month, said the interplay between the CBA and consent decree is “at the forefront of the minds of those from the city negotiating the agreement.”

One of the key provisions of the current collective bargaining agreement that conflicts with the consent decree is the inclusion of civilians in disciplinary hearings. The decree provides for “two civilian voting members… if permitted by law.”

Maryland law requires civilian participation be negotiated in a CBA, if applicable. Civilians are not part of Baltimore police disciplinary hearing under the current terms of the CBA.

In an interview with The Daily Record earlier this month, Baltimore Mayor Catherine Pugh said she believes citizen participation in disciplinary proceedings, sometimes called trial boards, is important and she believes it is likely to occur.

“The police department does not oppose us on that,” she said. “The (union) wants to negotiate that, and so we’re in negotiations. So I prefer not to get into all of that, but my goal is to get civilians on the trial board.”

Pugh said the real issue is raising the community’s confidence in police and encouraging police to respect the community.

“My preference is that we have an agreement with the FOP,” Pugh said. “I’m not in the habit, and will never be in the habit, of breaking collective bargaining agreements.”

Conflicting provisions

Justice Department attorney Timothy D. Mygatt told U.S. District Judge James K. Bredar at the hearing that the current CBA controls in the event of a conflict with the consent decree but any new conflicts would put the department out of compliance.

“There’s always a tension between the collective bargaining agreement and the interests of the federal and state government for effective police discipline and every department strikes a different balance,” said attorney Timothy F. Maloney, who has represented police officers in disciplinary proceedings as well as litigated misconduct and excessive force cases against them.

Another issue with a CBA is its relatively unknown status when it comes to the general public, said Maloney, a principal at Joseph, Greenwald & Laake P.A. in Greenbelt.

“The huge change here is the transparency,” he said. “Collective bargaining agreements have tended to be obscure to everyone except those who live under them but this is a very high-visibility collective bargaining agreement… because of the consent decree and the importance of it.”

Baltimore is not the first city to be renegotiating a CBA when a consent decree was being finalized, and that timing works out better for both parties, according to Jonathan M. Smith, executive director of the Washington Lawyer’s Committee for Civil Rights and Urban Affairs.

“It is somewhat useful to have the negotiations be open at the time the consent decree is open because it gives the city the opportunity to bargain the changes that would help implement the consent decree,” he said.

Smith was chief of the Justice Department’s Special Litigation Section of the Civil Rights Division between 2010 and 2015 and oversaw consent decrees between the federal government and cities such as Cleveland, New Orleans and Seattle. In cities where a consent decree is being worked out but the CBA had not expired, the police union can reopen the CBA but only to negotiate on narrow issues specifically tied to the consent decree.

Options for reform in Baltimore also could be limited by Maryland’s Law Enforcement Officers’ Bill of Rights, which is one of the more restrictive ones in the country, according to Smith.

“Maryland went way too far in terms of making it difficult to hold officers accountable,” Smith said. “It was much, much more extreme than was necessary to ensure the due process rights of officers.”

LEOBR is an issue everywhere, Smith added, and can “create a barrier” to reform.

Transparency, accountability

Placing citizens on trial boards in Baltimore is part of a larger push for transparency in disciplinary proceedings.

“I think it’s more symbolically important than procedurally important,” Maloney said. “Symbolically, it’s taken on huge significance over the years, maybe too much significance, on both sides.”

Unions see importance in maintaining integrity in the disciplinary process but citizens want to be involved, he added.

Jeffrey Ian Ross, a criminology professor at University of Baltimore, said the process by which citizens are selected is also important.

“Symbolically, having civilians on a disciplinary hearing board is important but if that individual has either minimal expertise or if it’s more of a political appointment, that is almost meaningless,” he said.

Smith said citizens on trial boards are important but he is less concerned with public engagement in the discipline process than making the system accountable to citizens in their day-to-day interactions, not just instances of misconduct.

“I think it’s much more important for there to be engagement with citizens in the neighborhoods,” he said.

Smith said the system in Baltimore “didn’t break overnight” and it’s going to take some time to fix.

“The most critical time in consent decree implementation is the first two years because that’s when you’re going to set the pattern for everything that’s going to follow,” he said. “I think it’s very important and very encouraging that (all) are supporting this as vigorously as they are because there’s going to be times where there’s stuff that’s really hard to do.”

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