When Baltimore residents settle lawsuits alleging police brutality or other misconduct, they must promise to keep silent about the incidents that sparked the suits — an arrangement that shields key details from the public. The penalty for disobeying: Lawyers for the city may try to recoup tens of thousands of dollars from the settlement.
But many other cities — including Washington, Philadelphia and Las Vegas — have rejected the use of such confidentiality clauses in an effort to increase the transparency of government operations.
"The plaintiff can publicly discuss the case — no restrictions," Ted Gest, spokesman for the attorney general's office in Washington D.C., said as he described that city's policy.
Jeffrey Furbee, assistant city attorney in Columbus, Ohio, said such clauses in public lawsuits "would be illegal. We are an open-records state."
Baltimore's standard settlement agreement has drawn criticism from defense lawyers and some city officials after it was highlighted in an investigation by The Baltimore Sun. The investigation revealed the city spent $5.7 million on 102 court judgments and settlements for alleged police misconduct since 2011, and critics said the nondisparagement clause helped keep the scope of misconduct allegations from becoming widely known. The clause states that limitations on "public statements shall include a prohibition in discussing any facts or allegations … with the news media," except to say the suit has been settled.
In recent years, a wide range of residents have settled civil suits for significant amounts. For example, an 87-year-old woman who alleged that an officer shoved her against a wall received $95,000. A pregnant accountant was awarded $125,000 after alleging that an encounter with an officer left her facedown — bleeding and bruised — on a sidewalk. In those and other settlements, the city and officers do not acknowledge any wrongdoing.
But the risks of violating terms of the agreement became clear in October, when city lawyers cut the amount of another settlement. They withheld $31,500 — about half the settlement — from a woman who had posted online comments about her allegations of police brutality.
Since The Sun's investigation was published in September, the Police Department and city have taken steps to provide more information about misconduct allegations. For example, city officials began posting the outcomes of all civil lawsuits alleging police brutality and vowed to give the city spending board more details about proposed settlements.
City Solicitor George Nilson also said his department would reconsider the policy of requiring plaintiffs to keep silent after settlements are reached, and pledged to determine whether the nondisparagement clause is consistent with best practices. City lawyers could not say how long it has been used in Baltimore.
Previously, city lawyers told The Sun that the clause is common in legal settlements.
"We don't want to pay taxpayers' money and then have people saying things that they couldn't say in court. Some facts are hotly disputed," David Ralph, deputy city solicitor, said last summer in addressing questions about the settlements.
Mayor Stephanie Rawlings-Blake expects to have results from the law department's best-practices study sometime in January. Her spokesman said the mayor will eliminate the clause if it is a bad policy.
"The mayor looks forward to getting the law department's report to see if there are additional ways to bring more transparency to the process," Kevin Harris said. He added, "You don't order studies and be afraid of the results."
Clauses preventing public discussion of such settlements are common in the private sector, where they are seen as a tool to help resolve cases in which no one is admitting wrongdoing. But critics say they should not be part of cases settled using taxpayers' money. As the General Assembly's 2015 session nears, some lawmakers said Maryland should consider a law banning nondisparagement clauses in settlements for police misconduct.
"If settlements are paid with public money, there shouldn't be a confidentiality clause," said Del. Curt Anderson, a Democrat who chairs Baltimore's House delegation in Annapolis and a proponent of bringing more transparency to police issues. "I would clearly agree with a law that would ban that clause in any agreement with public dollars."
State Sen. Bill Ferguson, a Baltimore Democrat, said transparency is the best "disinfectant" in lawsuits that involve public funds. Banning the clause in police misconduct lawsuits makes sense, he added.
"That would be a positive step to make [misconduct] go away," he said. "We should learn from other cities."
Del. Jill P. Carter, who has already pledged to propose changing a state law that guarantees procedural protections for officers accused of misconduct, agreed. "It's something we should explore," she said about enacting a new law.
In October, Baltimore Police Commissioner Anthony W. Batts asked the U.S. Department of Justice to review his agency and help with reforms. He praised similar efforts in Las Vegas and Philadelphia. Those cities underwent federal reviews to stem excessive-force cases after paying millions in recent years to settle lawsuits.
In 1991, long before the Las Vegas review began, Nevada lawmakers banned any confidentiality connected to lawsuits settled with public money. At the time, some public agencies were shielding names and settlement amounts, records show.
"We don't do that here," Clark County counsel Mary Miller said about making residents remain silent when settling lawsuits with Las Vegas police.
A similar policy exists 90 miles north of Baltimore.
"The city cannot ask forconfidentiality in settlements," said Officer Jillian Russell, Philadelphia police spokeswoman. "It is an open public record under our state statute."
Mark McDonald, spokesman for Philadelphia Mayor Michael Nutter, said the city does not expect residents to remain silent after settling police lawsuits. Even "if we wanted to, we could not" enforce an agreement, he added.
Since officials announced the federal review in Baltimore, Ronald L. Davis, the Justice Department's director of the Office of Community Oriented Policing Services, said police departments need to be open, transparent, accountable and engaging to be reformed.
City officials are aware that one of the Justice Department's objectives is openness, Harris said, but he stressed that Rawlings-Blake didn't want to make a rash decision to eliminate the nondisclosure clause without researching the topic. He also noted the city's decision last month to begin posting online the outcomes of all civil lawsuits alleging police brutality.
But a month earlier, the city took a hard line on Ashley Overbey's settlement. The woman from Northeast Baltimore lost $31,500 of her $63,000 settlement for defending herself in online comments about her allegations of brutality.
Not long after the city's spending board approved the payment in September, anonymous online commenters accused the 27-year-old of initiating her arrest to get a big payout.
Overbey, who doesn't have a criminal record, replied online that people should learn the facts before commenting. She accused three officers of beating her after she reported a burglary in her home in April 2012. She described the incident online, mirroring statements in her lawsuit.
Simone Mollock, Overbey's attorney, said it's "outrageous" that the city still won't release the $31,500. She is skeptical that the city will reform the settlement process for police lawsuits.
"I don't believe it for a minute," she said. "We have no transparency."
City Council President Bernard C. "Jack" Young, said he favors eliminating the nondisparagement clause from settlements. "A person should be allowed to talk about what happened to them. I would like to hear all of [the facts] myself."
Baltimore County has no official policy on nondisparagement clauses. County lawyers have leeway when brokering settlements and don't use the same boilerplate language in every case.
Since 2011, the county has paid $1.5 million to settle 13 lawsuits against officers.
A $12,000 payout in 2012 required Veleta Harris to keep terms of her settlement confidential. Harris, who sued police for being detained for 45 minutes, could discuss the settlement with members of her immediate family. But if asked about it publicly or with the media, she could only say the lawsuit "has been resolved and all claims have been dismissed with prejudice," the agreement states. She would have to pay $2,500 for each violation of the agreement.
Odatei Mills, who collected $1 million in 2013 after being shot by police, also was required to keep settlement terms confidential. But the agreement did not contain the clause allowing the county to recoup money if Mills talked publicly, records show.
County Attorney Mike Field said it's up to each lawyer to negotiate the terms of a settlement, subject to the approval of supervisors. "The differences are largely a function of the way we run this office," he said in a statement.
Field said he could not recall ever enforcing terms of a settlement to recoup money.
The county doesn't list settlement payouts in any publicly posted record or meeting agenda. But Field quickly provided documents when The Sun sought them in November.
Field, who has been handling Public Information Act requests for 10 years, couldn't recall anyone seeking the records but said the county "would, in most cases, have to disclose them," if requested.
But unlike in Baltimore, where the Board of Estimates approves payments higher than $25,000, in the county an administrative officer or a finance director approves payments without public discussion.
"This makes us very nimble and is especially useful when we are downtown in federal mediation and have arrived at an agreement that works for all sides," Field said.
Jennifer Bevan-Dangel, director of the watchdog group Common Cause Maryland, scoffed at that explanation.
The anger spreading across the country over police brutality — after the officer-involved deaths of Michael Brown in Missouri, Eric Garner in New York City and Tamir Rice in Cleveland — shows the need for increased transparency in policing, she said.
Bevan-Dangel urged Baltimore County to start making the records accessible to the public. Not doing so only raises suspicions, she added.
"People need to be able to see a pattern," Bevan-Dangel said. "Keeping it all hidden creates a sense of distrust."