By Mark Puente The Baltimore
Sun
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.
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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."
