During this past legislative session, the Maryland General Assembly made changes to the Law Enforcement Officers' Bill of Rights that will allow civilians to sit on police department hearing boards starting Oct. 1st. What lawmakers didn't do, however, was remove the composition of trial boards from the collective bargaining process.
So now, the Baltimore Police Department union is reportedly refusing to sign new collective bargaining agreements with the city to replace those that expired June 30th at least in part because members of the union don't want civilians involved, despite the fact that citizen participation could improve transparency and community relations with officers — something the BPD sorely needs.
And so, negotiations continue, along with a lot of hand wringing. But there may be another option no one is talking about: It appears the City Council has the power to end the practice of submitting the composition of hearing boards to collective bargaining and therefore free officials from having to go hat in hand to Lodge No. 3 of the Fraternal Order of Police.
State law does not require the composition to be submitted to collective bargaining, providing only that it "may" be negotiated. The use of the word "may" rather than "shall" makes clear that the decision to negotiate the method of forming a board rests with the city. And the council has the power under the city charter to place reasonable limits on the scope of collective bargaining.
There already is an ordinance enacted pursuant to that power reserving to the city the "exclusive right" to "suspend, demote, discharge, or take any other appropriate disciplinary action against its employees for just cause and in accordance with the provisions relating to Civil Service of [the city] Charter and other applicable laws." The "exclusive rights" of management should be expanded to include the right to decide upon the method of forming a hearing board under the LEOBR.
When the LEOBR was enacted in 1972 it revolutionized police discipline by taking away the authority of police chiefs to initiate disciplinary action against their officers and turning it over to hearing boards consisting of other officers appointed by the police chief. The FOP eventually persuaded the General Assembly to allow cities and counties to negotiate "alternative" methods of selection intended to dilute the authority of chiefs over the selection of members. Alternative methods were negotiated by the city and Lodge No. 3 that did as intended, and the quality of the boards and their decisions deteriorated accordingly.
In the "Strategic Plan for Improvement" issued by the BPD in November 2013 the department observed that, although recent improvements had been made, BPD hearing boards had "a bias toward inappropriately lenient verdicts and inappropriate 'not guilty' rulings. These biases occurred largely because officers of similar rank to the accused worried that they would endanger themselves if they were to render a strong verdict should they themselves be accused of similar offenses." Civilian members would not have the same concerns and therefore may not have the same biases.
Civilian membership on hearing boards is not a panacea but is something that a great number of citizens believe is necessary to restore trust in the police disciplinary process. Those citizens have the right to have the issue of citizen membership decided in the legislative arena where they can be heard rather than through a collective bargaining process from which they are excluded.
The city council is going to have to step to the plate and take back decision-making authority that it never should have surrendered.
David A. Plymyer retired as Anne Arundel County attorney in 2014 and also served for five years as an assistant state's attorney for Anne Arundel County. His email is email@example.com.