Below is my letter that was printed in the Daily Record on September 4th:
The Law Enforcement Officers’ Bill of Rights (LEOBR) is once again in the news as the bogeyman, the fall guy for all complaints about police accountability. It’s the target of choice because the real culprit - government union contracts that thwart accountability throughout all of government – are untouchable in Maryland politics, one of those infamous third-rails.
Baltimore City Police Department (BCPD) Commissioner Michael Harrison recently made the statement, apparently adopted by the Daily Record Editorial Board in their letter of August 21st, that, if George Floyd had been killed by a BCPD officer, the LEOBR would prevent the Commissioner from firing any officer charged with an unlawful killing. Compelling rhetoric but it’s incorrect. LEOBR provides that an officer charged with a felony is subject to immediate suspension of all police powers, without pay, and subject to final termination upon either conviction or a determination by the police chief that the officer acted in violation of the law or policy.
Did Commissioner Harrison lie? No, he’s a good man. His statement simply adopts the usual practice of conflating the complex interworking of the LEOBR and union collective bargaining agreements (CBAs). LEOBR is a state law that establishes a specific, logical, and fair process for administrative discipline of law enforcement officers, including their termination, suspension, demotion, loss of pay, etc. (Note – LEOBR has nothing whatsoever to do with criminal investigations or criminal charges which are regulated by the same constitutions, laws, and rules that apply as equally to police officers as to all other Marylanders.) CBAs, by contrast, are negotiated contractual agreements between police unions and local governing authorities.
Confusion surrounding LEOBR and CSAs arises because LEOBR allows that the disciplinary process stated in that law can be overridden by CBAs in three critical areas: (1.) the manner in which a hearing board is chosen, (2.) the ability/inability of the police chief to override the decision of the hearing board, and (3.) the substitution of the entire LEOBR disciplinary process by binding arbitration, in which departmental discipline is determined by an unelected, unappointed, outsider with no ties to or responsibilities for the affected community.
CBAs in force in each of Maryland’s major jurisdictions, including BCPD, take advantage of one or more of these possible exceptions to the LEOBR process. Those departments that adhere most closely to LEOBR are better able to impose the effective discipline that is indispensable to the operation of large police organizations. Not surprisingly, problems arise when a police commander’s control of a department’s disciplinary process is subordinated to a CBA process more appropriate to the regulation of discipline in a commercial enterprise.
Policing is an exceptional profession, bestowed with a level of public trust far greater than that allowed any other. Most citizens willingly subject ourselves to police officers exercise of that trust knowing that we have recruited and trained an incredible group of people who, armed and often acting alone in the dead of night, will be sent into our communities and even our homes with full authority to use all necessary force, even lethal, when necessary to protect our citizens and themselves from unforeseeable harms.
Unfortunately, trusts can be abused. Just as we subject ourselves and our children to the outcome of the special trusts we place in our police officers, those officers must in turn subject themselves to the final authority of the police commanders responsible for maintaining the public trust in their departments. Proper exercise of that authority is hindered by processes that excessively subordinate the commander’s lawful duty to other interests. While police leaders can also err in their administration of the public trust, the LEOBR process achieves a fair and effective balance between protecting the public trust and protecting police from errors in leadership.
If the General Assembly is going to once again examine issues related to allegations of police misconduct, we need to look in the right places. CBAs have a legitimate role to play in negotiation of police salaries and benefits, not discipline.
Maryland State Senator Bob Cassilly
District 34 – Harford County
Member Senate Judicial Proceedings Committee