Main Oflicc • Baltimore B D 300 Ens) Lombard .Street, Suite 1100 LAW Baltimore. MD 21202 Toll Free 888-685-2022 Phone 410-685-2022 SCHLACHMAN. BELSKY, WEINER & DAVEY, P A. Fax 410-783-4771 Fmall Attamcys@sbwdlaw.cam www..sbwdlaw.cam Sidney Schluchman (1927-2018) Henry L. Belsky Herlwrt R. Weiner Michael I. Belsky Michael E. Davcy August 12, 2020 Shaun F. Owens Jonalhon C. Scruggs Chaz R. Ball Barbara Greene Peter Keith, Esquire Meghan K. Casey, Esquire Gallagher Evelius & Jones LLP 218 N. Charles Street, Suite 400 Baltimore, Maryland 21201 Catherine A. Dickinson Koannc Handler Kicran P. Dowdy Joseph M. Yaht Adam J. Davcy Jacob P. Finkclstein* Christopher E. Rizakos IN RE: Response to Commissioner Harrison's Suggested Amendments to the LawEnforcement Officers' Bill of Rights for Consideration by the Commission to Restore Trust in Policing 'alvo sUmiocit IK" Itjf Dear Mr. Keith and Ms. Casey: I have had the opportunity to review the June 22,2020 letter from Ms. Kristen Blumer on behalf of Commissioner Harrison of the Baltimore Police Department (BPD) with their recommendations for amendments to the Law Enforcement Officers' Bill of Rights (LEOBOR). I am writing this letter in response to the recommendations and the cases that Ms. Blumer has cited as examples as to why the LEOBOR requires the amendments they are seeking. Unfortunately, Ms. Blumer and Commissioner Harrison continue to blame the LEOBOR to deflect from their own mismanagement and incompetency in investigating and disciplining their officers. The LEOBOR is codified in the Annotated Code of Maryland and applies to every law enforcement agency in the State of Maryland that requires an officer be certified by the Maryland Police Training and Standards Commission, if adopted. Commissioner Harrison's recommended amendments will affect all law enforcement agencies, not just the BPD. To my knowledge, no other law enforcement agency head has recommended these drastic amendments. The LEOBOR as set forth in the Annotated Code of Maryland provides law enforcement officers with due process when accused of violating their agency's policies and procedures. Due process rights are also afforded to law enforcement officers under the 14'" Amendment to the U.S. Constitution. Due process includes a fair and impartial investigation and hearing prior to any disciplinary action by the agency. Commissioner Harrison has recommended amendments to PS §3-107{a)(2) to allow agency heads to terminate officers if they are convicted or receive a probation before judgement (PBJ) for a Upper Marlboro OHlcc; 2905-AOld LargoRoad.P.O. Box 1658.UpperMarlboro. MD20773 Phone301-627-63601 Fax 301-627-5911 SaUsbury Office: 100EasiMainSltcet.Suite 102,Salisbury. MD21801 Phone410-543-5398 Fax410-783-4771 Frederick Office: 21 East Church Street. Frederick. MD 21701 Phone 301-662-1043 Fax 410-783-4771 August 12, 2020 Page 2 felony or misdemeanor criminal charge(s). Additionally,the Police Commissioner has recommended that agency heads have the ability to terminate officers who are charged with a felony or misdemeanor, or are highly likely to be charged pending a review of the evidence. The termination of an officer without the right to a fair and impartial investigation and hearing would deprive the officer of the due process rights afforded to them pursuant to the U.S. Constitution and LEOBOR. In support of his request to amend the LEOBOR, the Commissioner has cited several cases to justify his position, in 2014, W.C. was criminally charged with felony charges related to a police involved shooting. The BPD, following the LEOBOR, suspended W.C,'s police powers without pay while the criminal case was pending. Upon his conviction of a felony criminal charge, W.C.'s employment was terminated without the requirement of an LEOBOR hearing. While suspended without pay, W.C. was not entitled to pay, health benefits, pension contributions, or any other benefit W.C. would have been entitled to if W.C. was in pay status. The LEOBOR worked as intended to make sure the Department's interests were properly served. Accordingly, I am not sure why Commissioner Harrison cited this case as a need for any amendment to the LEOBOR. Commissioner Harrison cited the case involving R.P. who, in November, 2018, was convicted of several misdemeanor crimes. R.P. resigned from the BPD in June, 2020. The Commissioner failed to state the reason for the delay. The BPD failed to keep track of the status of the administrative case causing a long and unnecessary delay In scheduling the administrative hearing. Pursuant to the Memorandum of Understanding between the Baltimore Police Department and the Baltimore City Lodge No. 3, Fraternal Order of Police, Inc., Unit 1, BPD could have scheduled an administrative hearing for R.P.45 days after R.P. received a copy of the internal investigative file. The BPD does not explain why it took them until February 28,2019, to administratively charge R.P. nor do they explain why it took them until May, 2020, to schedule a hearing board. The delay in the R.P. case was not a result of an issue with the LEOBOR, it was a result of the BPD's incompetency in managing their own internal investigations. Commissioner Harrison also cites the case of C.R.-M. C.R.-M. was convicted of misdemeanor criminal charges in August, 2019. C.R.-M. was not administratively charged by the BPD until February 27,2020. Like the R.P. case, the administrative hearing for C.R.-M. was not scheduled until May, 2020. Again, the delay in the adjudication of the C.R.-M.case was not as a result of the LEOBOR, it was the mismanagement of the BPD. Commissioner Harrison supports amending PS §3-108 of the LEOBOR to permit an agency head the ability to reverse a not guilty finding of a hearing board if the agency chief does not agree with the outcome, thereby making a mockery of the hearing board proceeding. It is the BPDwho trains the Departmental personnel assigned to hear cases on the proper way to conduct hearings. It is also the BPD who selects the officers eligible to serve as members of a hearing board. Presumably, the members August 12, 2020 Pages of the trial board selection pool are officers that the Police Commissioner has faith in to fairly and impartially decide each case unless he doesn't like the decision to find the accused not guilty of a charge(s) lodged against the accused officer. It should be noted that in the event of a guilty finding, the Hearing Board's recommendation as to punishment can be increased by the Commissioner up to and including termination. Ms. Blumer refers to the cases of A.S. and C.S. and the evidence she believes was sufficient to convict A.S. and C.S at the administrative hearing board. Ms. Blumer does not state that the hearing board members consisted of two (2) exempt rank commanders, a Major and a Captain, who were selected to be members of the hearing board by the Commissioner. Ms. Blumer also failed to state that the law enforcement agency which investigated the incident on the night it occurred did not find sufficient evidence that an assault had occurred. Ms. Blumer failed to mention that the States' Attorney for the jurisdiction where the incident occurred determined that criminal charges were not appropriate. Ms, Blumer further failed to advise you that the internal BPD investigator failed to interview several witnesses who responded to the incident and failed to respond to the residence at any time during the course of his investigation to confirm any information. Finally, Ms. Blumer failed to inform you that several persons who may have provided persuasive testimony to support the Department's case were not called as witnesses at the hearing. Commissioner Harrison supports amending PS §3-109 to limit judicial review of an agency decision to the substantial evidence test and eliminate the right to appeal on procedural grounds. This amendment would not afford a convicted officer the right to appeal a decision of a hearing board that admitted crucial evidence that was illegally obtained or the right to contest the disqualification of certain witnesses by the hearing board crucial to the defense. Again, due process requires hearings to be fair and impartial making it imperative that accused Officers have the right to appeal to the appropriate Circuit Court from illegal rulings rendered by a Departmental Hearing Board. Finally, Commissioner Harrison is recommending the elimination of ail collective bargaining options for the formation of hearing boards currently provided in PS§3-107{c){S). These options were all bargained for in good faith and agreed to by the BPD. Additionally, during the course of bargaining, FOP 3 gave up other issues to secure the items in the current Memorandum of Understanding. Amending a law to eliminate any item in a collective bargaining agreement makes collective bargaining process a farce. it should be noted that FOP 3 negotiated an amendment to the Memorandum of Understanding to permit the City to appoint two voting civilian members to the hearing board. FOP3 ratified the Memorandum of Understanding in December, 2018. It is now August, 2020, and the BPD has stiii not completed the mandated training to have civilians on hearing boards. Once again, this is not a LEOBOR issue, it is the mismanagement on the part of BPD. Thank you for the opportunity to respond to Commissioner Harrison's attempt to mislead your Commission and share the concerns of the FOP. The LEOBR is not the issue in Baltimore. The true August 12, 2020 Page 4 problem is the mismanagement and incompetency of the BPD to foiiow the iaw iike every other law enforcement agency in the State of Maryiand. Ifyou have any questions, piease feel free to contact me. Sincerely, cc: Michael Mancuso, President, FOP 3