Baltimore residents on the panel that reviews police brutality and abuse allegations will not be required to sign confidentiality agreements, possibly ending a months-long standoff between the city’s Law Department and the Civilian Review Board.
But in announcing his decision Monday, city solicitor Andre Davis said the board’s volunteer members may have to face legal action on their own over any allegations of public leaks of police officers’ confidential personnel documents that they are authorized to review.
If a “claim for damages” is filed against board members for “an alleged improper disclosure” of records such as internal affairs records, the city’s Law Department that oversees the panel would have to determine if it should legally represent them, Davis wrote in a letter released Monday.
“Although I do not believe any member of the [board] intends to violate the law in the performance of his or her duties, it is difficult to imagine any other purpose underlying the remarkable refusal of those members who refuse to sign the Confidentiality Agreement,” Davis wrote in the Nov. 18 letter he sent to Mayor Catherine E. Pugh, board members and the Police Department.
The dispute began in July when members of the board that hears police misconduct complaints and makes recommendations on discipline refused to abide by Davis’ recommendation to sign confidentiality agreements. At the time, board chair Bridal Pearson said the recommendation was an effort to “strategically contain us” after the Law Department assumed oversight of the board from another agency.
The board members said Davis has a conflict of interest because he represents both the board and the police department. Davis said the confidentiality agreement was standard and would not change how the board functions.
After members refused to sign the agreements during a meeting with Davis in July, the board said it was unable to access the official police internal affairs records which they said were necessary to review cases.
This month, the board filed a lawsuit to force the city Police Department to turn over records.
Pearson said Monday he was pleased with the resolution, which will allow the board to get back to work.
“This is what advocacy looks like,” he said. “I am extremely happy to be getting back to work and doing the work we were assigned to do.”
It is unclear whether the review board will drop its lawsuit, but Davis said Monday that board members would immediately receive the withheld internal affairs documents now that he has allowed them not to sign the confidentiality agreements.
Board member Melvin Currie, who represents Southwest Baltimore, said it “appears to me that Andre Davis has, in a very roundabout way, relented.”
“We were always willing to continue what we had been doing before the investigative reports were denied to us” Currie said.
He added that Davis’ letter continues to cause confusion about the dispute.
Currie said Davis’ suggestion that the city may not represent a board member who is targeted with legal action for releasing confidential material makes him wonder whether Davis would be doing the targeting, given that he is the Police Department’s attorney.
“They may in fact be looking with a fine-toothed comb for a mistake, given the attitude that I’ve witnessed over the last few months,” Currie said.
Board members have previously signed nondisclosure agreements, and no one on the board intends to wrongly release information, he said. But people make mistakes. And if they did, Davis’ legal representation of the board and the police would once again represent a conflict of interest.
Sen. Jill P. Carter said the resolution in the letter was an attempt by Davis to “save face” and “weasel out” of the lawsuit over the records.
“Solicitor Davis is unable to rise above ego to admit he was legally, ethically, and morally wrong to attempt to gag the Civilian Review Board in exchange for receiving files it is legally entitled to receive without his trumped-up condition of an onerous confidentiality agreement,” she said in a Facebook post.
Carter also questioned what steps would be taken to address misconduct complaints that have expired because of his refusal to release files.
Pearson said approximately 20 cases have expired since the board stopped receiving internal affairs files from the department. The board has a year to hear the cases before they expire, he said.
“I’m not sure if there is any legal recourse to evaluate those cases,” he said. Even one, he said, is too many.
Davis has said the dispute was unnecessary and argued that requiring the board to sign confidentiality agreements would not affect their work, but that his resolution of the issue offers a solution for both parties.
Davis wrote in his letter that the board’s “rogue members” have been trying to “embarrass” Pugh by pursuing a “ginned-up public dispute” over the confidentiality agreements and by filing a lawsuit it has no authority to file.
“I believe this resolution of the pointless dispute over police Internal Affairs records to which members of the CRB are statutorily entitled is a fair and just one,” the letter states.
The dispute between the review board and city hall continues to fester just as the mayor is poised to hire a new police commissioner who vows to restore community trust.
The resolution also comes just days after an order filed by U.S. District Judge James K. Bredar, who is overseeing the consent decree reached between the city and the U.S. Justice Department, requiring the parties to issue briefings on whether the review board should also have access to officers’ disciplinary histories. The city has said the state statute does not give the board access to such information, but the Justice Department has said that the board should have access under the law.