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ACLU ‘flabbergasted’ by Baltimore solicitor’s claim that city ended ‘gag order’ policy in lawsuit settlements

Baltimore City Solicitor Andre Davis is continuing a legal fight over a policy a federal appeals court tossed out and the City Council wants ended.
Baltimore City Solicitor Andre Davis is continuing a legal fight over a policy a federal appeals court tossed out and the City Council wants ended. (Kim Hairston / Baltimore Sun)

Baltimore attorneys are fighting in federal court to protect a nondisparagement settlement policy that elected officials don’t want to keep and city attorneys say they haven’t used in two years.

City Solicitor Andre Davis said Wednesday that he saw nothing inconsistent in his stance, that he has an obligation to defend language in a 2017 lawsuit initiated against the city before he arrived. The lawsuit accuses the city of forcing improper nondisparagement clauses on citizens who accept settlements in police misconduct and other civil actions against the city.

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Earlier this month a three-judge federal appeals court panel ruled against the city, saying the language violated First Amendment rights. The City Council then introduced a bill that would ban the city from using such language in future agreements.

Despite that, Baltimore continues to press its old position in court, and on Tuesday it filed a petition asking the full 4th District U.S. Court of Appeals to overturn the three-judge panel’s decision.

In an interview Wednesday, Davis explained his office’s plan to pursue the appeal, while saying city attorneys stopped requiring the contested clause shortly after he became city solicitor in September 2017.

“It’s called institutional integrity. I have a responsibility to the city and the law department, and frankly, a responsibility to my predecessors,” to pursue the case, Davis said.

But David Rocah, senior staff attorney at the ACLU of Maryland, disputed Davis’ claims that the office has been operating under a new policy over the past two years.

“This has zero connection to reality. It’s unbelievable that the city solicitor is saying it," Rocah said. "This is not true and we were flabbergasted to hear this assertion.”

Rocah said the ACLU has received direct communications with the law office that indicate it is still operating under a policy that requires nondisparagement agreements.

He referred to a 2018 email from an assistant solicitor that includes a “Non-Disparagement/Limitation on Public Statements” policy.

Davis also provided The Baltimore Sun a copy of the same policy, which he said the office has been using since November 2017, along with the previous policy. The new policy limits comments “to the facts alleged in the pleadings and motions filed with the court.” It still prohibits those receiving settlements from offering comments or opinions outside of what was introduced in court records and filings.

Davis said that means plaintiffs are free discuss the facts of the case and their opinions.

But members of the City Council said they were unaware of the city solicitor’s office’s policy change.

Last week, Council President Brandon Scott and Councilman Shannon Sneed announced they would introduce legislation outlawing the so-called gag orders in settlements and that they learned only on Monday from the law department that it had stopped including the clauses in settlement agreements.

"That should be on the website," Sneed said. "Transparency is everything."

Stefanie Mavronis, a spokeswoman for Scott, said the council president would still pursue the legislation so the practice cannot be changed by future city solicitors.

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“If it walks like a duck, and quacks like duck, it’s a duck. The lawsuit seeks two things; redress for Ashley Overbey and an end to the process."


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“Our whole office including the president is grateful that we have a city solicitor who has not been including gag orders in city settlements but we also know the leadership that solicitor Davis is exercising in doing that has not always been the case,” she said.

Ashley Overbey, along with the local news website, the Baltimore Brew, sued the city in federal court in June 2017. The ACLU represented their case, which was dismissed in November. But the plaintiffs appealed. The appeals court overturned the dismissal.

Rocah said the office’s policy is still flawed and the lawsuit is necessary.

“If it walks like a duck, and quacks like duck, it’s a duck,” Rocah said, arguing that the policy in practice remains unchanged. “The lawsuit seeks two things; redress for Ashley Overbey and an end to the process."

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