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Commanding Silence

Baltimore's Retired Police Brass Needs to Shut Up or Pay Up

Shut Your Trap: Retiring police command staff are asked to sign a gag order if they want to collect their accumulated comp-time benefits.

Download a copy of the full gag order

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By Edward Ericson Jr. | Posted 7/2/2008

Martin O'Malley was elected mayor of Baltimore on a promise to clean up crime and drive down the murder rate. He famously implemented Citistat, a computer and data-based system of holding police divisions responsible for the crime in their sectors. The system was about "openness and transparency."

But at the same time, O'Malley also quietly instituted a unique gag order which was placed on almost all high-ranking police retirees.

Beginning in 2000, retiring Baltimore Police command staff members were presented with an agreement to sign. In exchange for being paid for their accumulated compensatory time--up to 400 hours worked over and above the 40-hour work week--retiring deputy majors and above had to agree not to speak about the police department; the agreements ranged from 18 months up to five years. These gag orders have prevented many high-ranking police veterans from publicly commenting on what was happening in the Baltimore Police Department during a critical time.

The gag-order policy continues under Mayor Sheila Dixon and has become part of the routine for retiring officers above the rank of lieutenant (those not covered by the police union contract), although sources say there are exceptions made for some favored retirees. "The agreements--that's just command," says Paul M. Blair Jr., president of the Fraternal Order of Police. "You have to realize, we have one of the largest ex-command staffs of anyone around."

Despite storied instability at the department's highest ranks (including a spate of five different police commissioners in five years) the gag orders--which are well-known inside the department--have never before been discussed publicly. Indeed, the first page of the agreement states that it "shall remain confidential unless a court of competent jurisdiction orders disclosure."

Spokespeople for other police departments, a longtime police policy researcher, and representatives from the Fraternal Order of Police's national office express surprise at Baltimore's policy.

"We're not required to sign any gag orders," says Maryland State Police spokesman Greg Shipley. "Are there people out there who do?"

Baltimore County Police spokesman Bill Toohey says his agency has no similar policy, as does the spokesman for the Philadelphia police.

"I've never heard of this," says Peter B. Kraska, professor of Criminal Justice Studies at Eastern Kentucky University, in an e-mail. "I've run into a lot of highly suspicious retirement arrangements over the years, but this one. . . ."

The national Fraternal Order of Police says it doesn't support gag orders for retiring officers. "While we are aware of similar situations, they seem to be extremely rare," says Rick Weisman, director of labor services for the Fraternal Order of Police's national office. "They are generally specific to an incident and not a general policy."

The five-page "Confidential Retirement and Severance Agreement," a copy of which City Paper acquired, has long rankled retirees, some of whom have left the department under less-than-amicable terms. The agreement bars comment not only about the police department, but also about "the Mayor and City Council of Baltimore, and/or any police or City official/employee with regard to any matter of public safety, police policy, BPD personnel action, and/or enforcement strategy . . .." It also forbids the retiree from communicating with "local, state, or federal officials."

David Rocah, a staff attorney for the ACLU of Maryland, reviewed the agreement. He says that while agreements like these are not uncommon in the private sector, "there are court decisions around the country refusing to enforce non-disparagement agreements like this where the speech at issue related to a matter of public concern." He also suggests that the clause barring communication with state and local government officials might run afoul of whistleblower laws. "We don't want private agreements to hide wrongdoing," he says.

"Even the [city] attorney [who presented the order] said it's a strange order and probably not legally enforceable, but nobody wants to be the test case," says a retiree who asked that his name not be revealed.

Several sources say the policy began in 2000 at about the time O'Malley's first police commissioner, Ronald L. Daniel, abruptly retired after 58 days as chief. Daniel refused to sign, two sources say, but he kept his own counsel as to the reasons for his departure, saying only that he and the new mayor disagreed on crime-fighting strategies.

Daniel could not be reached for comment.

Newspaper reports at the time say Daniel purged the department of numerous commanders he regarded as untrustworthy. His replacement, Edward Norris, lasted 33 months before leaving to become State Police superintendent. He was later convicted of charges that he misspent police funds and went to federal prison before returning to Baltimore to become a talk-radio host (on whose program this reporter has appeared as a guest). Norris says he did not sign a confidentiality agreement, as he was not retiring. But he was aware of the policy, which he says he thinks was administered by then-Police Legal Affairs Chief Sean Malone. Norris adds he was not in favor of it.

"I think it's a very big deal, 'cause you're basically buying people's silence," Norris says.

Rick Abbruzzese, O'Malley's spokesman, denies the gag-order policy ever existed. "I'd like to talk to you about what proof you have that such a policy existed," he says in a phone message responding to an e-mail asking about the policy. After being faxed a copy of the agreement and e-mailed a summary of the sourcing for this article, he continues to deny that the gag-order policy exists. "You have sent me one severance agreement," Abbruzzese writes in an e-mail. "There was no department-wide strategy."

But among those subjected to it and implementing it, there is no doubt that the gag orders have been policy for years. "We helped write some of them," says Michael Davey, a lawyer with Schlachman, Belsky & Weiner, P.A., which represents the police union. "In some cases there are some provisions that can be negotiated."

Sterling Clifford, spokesman for both Mayor Dixon and the Baltimore Police Department, makes no effort to deny the gag-order policy, though he won't say when it was first implemented. "It's not universal," he says. "But the answer to why it exists is that at the deputy-major level in particular, but throughout the department, you have access to federal case information and confidential personnel information. The department is responsible to protect that information, those cases, those other people.

"It's not about mistrust," Clifford continues. "It's about covering the bases, and letting [retirees] know that everything you were working on that was sensitive before is still sensitive."

Clifford says the severance agreements are proffered on a "case-by-case" basis after commanders evaluate each retirement, resignation, or firing. "I would say it's done most of the time," he says.

A retiree says the agreements are so common in the department that they're considered universal, though he has heard of cases where they were not implemented, including one in which a retired officer was mailed the agreement four months after beginning retirement. That officer didn't sign, according to the other retiree.

Accrued compensatory time can be a crucial financial bridge to retirement, according to several officers and recent retirees. Retiring police typically have to wait weeks or even months for their retirement papers to clear and their retirement checks to start arriving, these people say. The retirees typically have more than a month of compensatory time banked, which could carry them to their first retirement check--if they're allowed to use it. But they can't use it unless they sign the gag order. "If you don't get it you're swinging in the wind," says one officer still on the force, "and it screws up your retirement for months--months with no pay."

Clifford acknowledges that the policy is supposed to pressure the retirees to sign away their right to speak. "Comp time, that's the leverage that the department has when someone is leaving," he says.

Though he says the policy is meant to protect personnel files and ongoing cases that are already protected by law, Clifford defends the broad wording of the agreements. "Clearly if your interest is protecting sensitive information, you cast as wide a net as you can," he says. "Why wouldn't you?"

Asked why Baltimore City's policy on this matter is different from other departments, including the county and state police, Clifford says, "Baltimore is different from other agencies in a lot of ways. You know what else they [other agencies] don't do--use computerized case notes."

Baltimore's pioneering use of computers and statistics to stanch crime remains one of Gov. O'Malley's proudest achievements, as he told a gathering of progressive policy makers last year. But the use of precise data was supposed to be combined with open government.

"And because we actually believe that government can work and that people are smart," O'Malley told the Center for American Progress conference audience on April 23, 2007, "we believe that with openness and transparency and performance measurement we can figure out the things that are working well, the things that are not working well. . . . Timely, accurate information shared by all."

The governor did not add--but he well could have--"until retirement."

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