Baltimore’s Police Accountability Board wants its own legal counsel, but it’s facing pushback from city officials

Darcy Costello

Baltimore Sun

February 7, 2024

Baltimore’s newly formed Police Accountability Board wants to explore having independent legal counsel, separate from the city’s lawyers. But it’s facing pushback from city government.

Board members say they see a potential conflict in city attorneys representing both the Baltimore Police Department and the body overseeing that law enforcement agency. Some in Monday’s board meeting also highlighted early questions arising over budget allocations and differing interpretations of city ordinances around hiring staff.

“It is always best to be transparent and avoid any potential appearances of conflict. I would hope that view is taken across the board, and that there’s no problems,” said Joshua Harris, the board’s chairman. “What we’ve seen now are just little things, but the potential is there for it to be a larger conflict.”

The director of the city office that supports the PAB, however, says there’s been no specific legal conflict of interest identified. Dana Moore, director of the Office of Equity and Civil Rights, and a former acting city solicitor, pointed to a legal opinion from the city solicitor’s office saying independent counsel is not a possibility for the board without a conflict of interest.

Moore said, instead, she requested a city attorney with no involvement in police legal affairs be assigned to the Police Accountability Board.

The board also requested someone from the city solicitor’s office attend the March meeting to answer questions about the opinion.

The disagreement between Baltimore’s PAB, now about one year old, and the mayor’s administration was foreshadowed in earlier meetings, including one where the board mentioned it was seeking pro bono legal representation from a third-party organization. The issue echoes clashes in years past — and could shape the dynamic of Baltimore’s civilian oversight, identified as a priority for improvement by the U.S. Department of Justice.

In the DOJ’s 2016 investigation, which later resulted in the city’s ongoing police consent decree, investigators described an ineffective system of civilian oversight hindered by inadequate resources and authority. The report said the flawed system contributed to community perceptions that BPD was “resistant to accountability.”

A subsequent task force mandated by the consent decree proposed eliminating the city’s Civilian Review Board and creating a new framework, with independence as a key principle.

Rather than creating that system, Baltimore followed the 2021 state law that set up police accountability boards and administrative charging committees in jurisdictions across Maryland.

Ray Kelly, a longtime police accountability advocate who was part of the Community Oversight Task Force set up by the consent decree, said at Monday’s meeting that the city finds itself at a “crossroads,” as there is “operational vagueness” in the PAB’s setup. The task force had proposed an entirely new office of police accountability, independent of police and from political influence.

In response to Moore’s comments about a lack of specific legal issues, PAB member Maraizu Onyenaka argued that the board is not trying to “make a mountain out of a molehill today,” but is focused on tomorrow.

“In the future, there will be bigger stuff. We want to make sure whoever is in our places in the future have the power, understand the process for which they can be supported,” she said. “So that they can make the big decisions, they can stand firm in what we think will be best for the people we’ve been asked to represent.”

The DOJ’s Community Oriented Police Services office, which listed independence as a key principle for effective police oversight in a 2021 report, noted that academics have found city attorneys’ representation of both police and oversight agencies to signal a “conflict of interest.”

A survey contained in the 2021 report found roughly one-quarter of the 58 responding agencies had independent counsel.

Other PAB members questioned what entity would have the final say on whether something was a conflict of interest, and if it would be up to the city solicitor. Others pressed Moore on how her office was hiring support staff for the PAB.

City ordinances call for “consultation” with the board in assigning staff to assist it; board members asked how she defined consultation and whether they would have input before hiring decisions.

Mansur Abdul-Malik, another board member, emphasized that the city has budgetary control over the police oversight structure’s budget.

“In the event that they say, ‘Listen, we’re going to cut the budget,’ in order for us to maybe have staff that isn’t fully qualified or have a minimal amount of staff to do the work — is that not a conflict of interest?” Abdul-Malik asked.

Moore said Tuesday, after the meeting, that the city controlling the budget would not be a legal conflict of interest, as the PAB is an instrumentality of Baltimore City. She also stressed that there is an existing process in place for if and when a conflict is identified.

“When it comes to the looking forward, into the future, that’s exactly what the drafters of the Baltimore City Charter did and have done and do,” Moore said. “When there’s a legal need, it will be fulfilled. To date, there’s been no legal need.”

Baltimore has faced similar conflicts before.

Amid a monthslong controversy in 2018 over confidentiality and access to police records, Baltimore’s Civilian Review Board hired a lawyer to sue the city. Andre Davis, then the city solicitor, objected with a similar argument to the one from today’s city solicitor.

Davis wrote that he was the “sole authority” by which the business of the mayor and City Council is conducted, adding “no exception exists for the Civilian Review Board.”

The issue over records was ultimately resolved when Davis backed down from requiring confidentiality agreements from board members and again allowed them access to police internal affairs records.

City Solicitor Ebony Thompson, in an opinion issued in November, similarly said that the statewide police accountability boards are part of the local governments they serve. As such, under the city’s charter, outside counsel is permitted only if a legal conflict of interest is identified, she said.

“No such conflict of interest exists in the city solicitor’s representation of the city’s PAB,” Thompson wrote, “and there is no authorization for the city’s PAB to hire outside legal counsel.”

The 2018 task force report that Kelly was part of described the city’s oversight structure at the time as “antithetical” to police accountability.

“While the CRB is described as an independent agency, it is not,” the report said, pointing to its placement under a city office run by a mayoral appointee, among other factors.

The Civilian Review Board still exists in the same structure, now alongside the PAB, which also falls under the city’s Office of Equity and Civil Rights. Moore, the director, was appointed by Mayor Brandon Scott.

Monday’s PAB meeting also touched on the body’s overdue annual report. Moore said it was close to completion. Both the office’s chief of the police accountability division and her recently hired deputy have left the office in recent months.