The Montgomery County Republican Party is now running this video attacking Council Member Will Jawando over his efforts to reform the police department.
The GOP is even running a Facebook ad to promote the video.
Not everyone is supportive of the county’s efforts to reform, reimagine and/or defund the police. Our post on the subject, “Free-For-All,” is on track to be the most-viewed post on Seventh State for this month. But getting attacked by Republicans is great for Jawando in building his prestige inside the county’s progressive Democratic base. Jawando should consider offering a subsidy to help the GOP run the ad in Takoma Park and the rest of the Democratic Crescent!
Marcus Jones, chief of the Montgomery County Police Department (MCPD), earns praise from my sources as competent, well-intentioned and not wedded to the practices of the past despite his decades of experience at MCPD. But Jones has a problem: he faces far more obstacles in running his department than any other senior manager in county government. That’s because a tornadic swirl of national and local politics has provoked a free-for-all over MCPD that is unprecedented in recent county history.
Monday night saw the first meeting of the county executive’s “Reimagining Public Safety Task Force.” I couldn’t find the task force’s roster online so I asked the county’s public information office, which gave me a member list: all 43 of them. Attendance at the first meeting totaled 73 people, some of whom were county employees assigned to attend. The task force member roster given to me by the county does not include any member of MCPD management. It also does not contain any of the leaders of Fraternal Order of Police (FOP) Lodge 35, which represents MCPD’s rank and file sworn officers. With 43 seats available, you might figure that at least one or two of them would go to management or labor.
The FOP did not respond to a request for comment, but I asked MCPD Captain Tom Jordan, the police department’s public information officer, about MCPD’s participation on the task force. He replied:
The MCPD does not have a representative on the task force. We provide subject matter experts to the task force when requests for information are received. I do not have information on how the task force was selected nor do I know if the MCPD was asked to provide recommendations for representatives. That is a better question for the CE’s [county executive’s] office since they formed the task force.
The 43-member task force along with future consultants joins the county council’s 13-member policing advisory commission in providing advice on MCPD. At least the council’s commission includes the MCPD chief and the FOP president as ex officio members. The commission held its first meeting on August 24 while the executive’s task force held its first meeting on August 31. Multiple council members say the two entities are duplicative but the executive says they’re wrong. Come on now. How could two large appointed bodies of community members discussing the exact same thing a week apart possibly be duplicative??
The council, of course, has not sat idly by while the executive and his folks get to have all the fun of scrutinizing MCPD. Since January 2019, the council has introduced five bills regarding police department operations and passed four of them. The fifth will be considered this fall. The council also passed a sixth bill requested by the executive creating a new assistant chief position. (When asked about this latter bill desired by his boss, Chief Jones shrugged, “I had no heartburn over it.”)
The disconnected approaches taken by the executive and the council, as well as their creation of separate advisory bodies, reflect the feelings the two branches hold about each other. The executive thinks the council is “fact proof” while the council feels the executive is ineffective and incapable of leadership. These mutual feelings of disdain affect many aspects of county government, not just the police. Now the two branches are in competition over what to do with MCPD.
Add together the task force, the commission, the interest groups, the activists, the consultants and the interested politicians in Rockville, Annapolis and beyond and it’s almost impossible to count all the players who want to reimagine, defund and/or outright abolish police.
These flyers have been taped to doors of commercial spaces in downtown Silver Spring. Who is distributing them?
The issue here is not whether the police department deserves to be scrutinized. It does, as do police departments around the rest of the country. For example, I have previously written about provisions in the FOP contract that require the county to destroy records and fight public information act requests in court. What needs to happen is a grand, holistic effort by all the major players – police management, the FOP, the counties, Annapolis and interested groups – to work out a package of complementary improvements that makes sense. Instead, the efforts above appear random, uncoordinated and in some cases duplicative. This is not measured, strategic and purposeful reform – it’s a free-for-all. How does this get us to a better place?
Think about how all of this looks to potential police recruits. If you were offered a job with oversight that looked like this, would you take it?
At stake is something that no one is talking about – crime in MoCo is at an historic low. Politicians in most jurisdictions would be jumping up and down to take credit for that, but not in our county. We take low crime rates here for granted. Social justice is important and the experience of people of color in dealing with police needs to be addressed. But if the free-for-all outlined above disrupts MCPD’s operations and crime starts going up again, all of us – regardless of our views on policing – will pay the price.
Delegate Gabriel Acevero (D-39) has told the New York Times that he was fired from his position at MCGEO, the union that represents most non-MCPS county employees, because of his legislative work on reforming police departments. According to the Times:
When Gabriel Acevero, a Maryland state legislator employed by a union local, introduced a bill last year to roll back protections for police accused of misconduct, he was stepping on a potential fault line. His union, Local 1994 of the United Food and Commercial Workers, represents thousands of Black and Latino workers in food services and at a variety of government agencies. It also includes a small portion of workers in law enforcement.
That fault line turned out to be a chasm that could swallow him up. In mid-June, Mr. Acevero filed a formal charge with the National Labor Relations Board accusing the union of illegally firing him because of his reform advocacy.
“The reason why I was terminated,” Mr. Acevero said, “was about legislation.”
MCGEO President Gino Renne was also interviewed by the Times. Read the entire article here.
In a June 4 op-ed in the Washington Post and comments reported by WTOP, County Executive Marc Elrich has promised to reform the Montgomery County Police Department (MCPD). According to WTOP, Elrich said MCPD has “an institutional problem” that “starts top down.” He said that he will be submitting a contract to the county council “for reevaluating everything” about MCPD.
If Elrich does intend any serious reforms, he will have to deal with a powerful document that can be invoked in response to them: his own contract with the Fraternal Order of Police (FOP) Lodge 35. The FOP’s contract, which Elrich personally signed, gives the union and individual officers substantial authority to restrict the ability of the chief to run the department, keep employee information confidential, block access to personnel records and mandate the destruction of certain personnel and video records. The contract even obligates the county to help the FOP block answers to public information act requests for videos and data. Many of these kinds of provisions are not unique to Montgomery County. But as the executive who signs union contracts as well as a 12-year member and former chair of the county council’s Public Safety Committee, which oversees the police, Elrich is directly responsible for their implementation here.
Here are some of the provisions of Elrich’s 2019-20 contract with the FOP.
Under certain circumstances, the FOP can force the police chief to bargain over new or changed rules or directives.
Article 61 (Directives and Administrative Procedures) contains a set of procedures that constrain the police chief’s ability to implement new or changed rules or directives. When the chief seeks to implement a new rule or directive or change an existing one, he must notify the FOP. “The primary subject of any new, changed, or amended directives or rules covered by the article shall not include matters currently addressed in the collective bargaining agreement, or matters proposed by the County and rejected by the FOP at the most recent term negotiations, or matters, the primary subject of which, were taken to mediation by the FOP at the most recent term negotiations.”
The FOP may then demand to bargain the proposed rule or directive. If the chief does not agree, the matter goes to the county’s Permanent Umpire who decides if the rule or directive must be bargained. This provision limits the ability of the chief to run his department without the consent of an arbitrator. It could certainly be activated to counter any reform proposals opposed by the union.
If employees are arrested, they must disclose it to their supervisor. However, the disclosure “shall be considered confidential and shall only be shared on a need to know basis.”
Article 15 (Hours and Working Conditions) Section Y contains this language on what happens when an employee is arrested.
Employees shall immediately report, or as soon as practical, to their commander/director or bureau chief, any circumstance where the employee is arrested or becomes a defendant in any criminal proceeding that may result in incarceration, receives an incarcerable traffic citation as defined in the Maryland Transportation Article, has their driver’s license/privilege suspended, revoked, refused or canceled that affects their ability to operate a county vehicle, or is notified that they are the subject of a criminal investigation by any law enforcement agency. If the employee is served with a temporary protective order, temporary ex parte order, or other similar temporary order that impacts the employee’s ability to carry a weapon or to perform their assigned police duties or any permanent protective order, permanent ex parte order or other similar permanent order that impacts the employee’s ability to carry a weapon or to perform their assigned police duties, they shall report the matter (as outlined above) directly to their commander/director or bureau chief to be reviewed to determine if the matter impacts the employee’s ability to perform their assigned police duties. The employee shall provide the commander/director or bureau chief with the information (i.e. date/time/location of the alleged offense, case/docket/tracking number) required for the employer to obtain additional information. All information shall be considered confidential and shall only be shared on a need to know basis. It is recognized that all persons are presumed innocent until proven guilty.
In Maryland, criminal records are public documents accessible through the state’s judiciary website. This language prevents police supervisors from disclosing at least some information that is public record.
Management does not have an unfettered right to access personnel records.
Article 51 (Personnel Files) Section B gives an employee and their authorized representative access to the employee’s personnel file. Additionally, the following individuals can access the file only on a “need to know” basis: the employee’s supervisor, an appointing authority or designee, the county’s Human Resources Director or designee, the county attorney or designee, the Chief Administrative Officer or an Assistant Chief Administrative Officer, and members of a Recommendations Committee when an employee has applied for a position vacancy announcement.
“Need to know” is not further defined in the section other than for the county attorney, when it is defined as “when an employee is in litigation against the County, e.g., Merit System Protection Board, Worker’s Compensation, Disability, Retirement, etc.)” and members of a recommendations committee, when it is defined as “limited to performance evaluations, letters of commendation, awards and training documents for bargaining unit members assigned to Recommendations Committee.” Release of personnel records to anyone else is prohibited without the employee’s signed authorization.
Personnel files are destroyed five years after an employee leaves county employment.
Article 51 (Personnel Files) Section E states the following.
Except as provided below, all records including medical and internal affairs files, pertaining to separated employees shall be destroyed five (5) years after separation, unless the files are the subject of pending litigation. In which case, these files will be destroyed at the conclusion of the litigation.
The County may maintain records necessary to administer employee benefits programs, including health and retirement, a file containing the employee’s name, address, date of birth, social security number, dates of employment, job titles, union and merit status, salary and like information.
Except as required by law, no information may be released from any file without the express written permission of the separated employee.
Section H adds these restrictions.
To the extent not specifically preempted by State law, adverse information concerning an officer’s past performance shall not be admissible in any proceeding unless maintained in strict accordance with this article.
Except as provided in paragraph 1 of this section, only information properly maintained in personnel files as established by this Article may be used in any other process, proceeding, or action.
Elrich’s signature on the FOP’s 2019-20 contract.
Mobile Vehicle System (MVS) recordings may not be used for performance evaluations.
Article 66 (Mobile Vehicle Systems) Section C.7 states, “No recording may be used for the purpose of performance evaluations.” Section C.6 states, “All recordings will be destroyed after 210 days, unless the recording is, or may reasonably become, evidence in any proceeding. A recording will be retained if the FOP provides notice to the Department within 210 days of its potential use in a hearing.”
Management may use MVS recordings for disciplinary purposes under certain circumstances including external complaints, pursuit, collision, uses of force, injury or when management has “reasonable basis to suspect that a recording would show an officer engaged in criminal wrongdoing or serious allegations of misconduct in violation of Department rules and regulations applicable to bargaining unit members.”
Body camera recordings “shall not be routinely reviewed for the express purpose of discovering acts of misconduct or instances of poor performance without cause.”
Article 72 (Body Worn Camera System) Section D.2 states:
BWCS recordings shall not be routinely reviewed for the express purpose of discovering acts of misconduct or instances of poor performance without cause. An employee’s supervisor may use BWCS recordings to address performance when cause exists. Any recording used must be reviewed with the subject employee prior to any documentation of performance. Any documented review will be included in the employee’s supervisory file. The employee shall have the opportunity to respond in writing to the document. The response shall be attached to the supervisor’s document. The employee and the employee’s representative shall be provided access to the referenced recording if requested. Performance evaluation shall not be the sole reason for the employer retaining a recording beyond the agreed upon term.
Section F.1 states, “All BWCS recordings will be destroyed after 210 days, unless the Department deems it necessary to retain the recording for a longer period of time.” Section F.2 states, “An employee may elect to save BWCS recordings for longer than 210 days if the recording was used to support a performance evaluation which resulted in a single category being rated as below requirements.”
Police instructors are prohibited from having sex with trainees. However, they cannot be disciplined for it.
Article 15 (Hours and Working Conditions) Section L prohibits instructors and field training officers (FTOs) from having sex with trainees whom they are instructing. If that happens, the instructors and FTOs are separated from the trainee’s class. However, if the instructor or FTO discloses the relationship to management, “managers and supervisors must maintain the disclosure in confidence” and “no disciplinary action or retaliation must occur as a result of the disclosure.” If the relationship is not disclosed but is otherwise discovered, the more senior officer is involuntarily transferred but “violation of this rule will not result in discipline.” Nothing in the contract prohibits the instructor or FTO from proceeding to train other trainees.
The contract obligates the county to help the FOP block answers to certain public information act requests.
The Maryland Public Information Act (MPIA) is mentioned in three different articles of the contract.
Article 65 pertains to Automatic Vehicle Locators (AVLs) and Portable Radio Locators (PRLs), which are described as “systems that allow the Department to identify the location of police vehicles and portable radios that are equipped with GPS tracking capabilities.” Sections D and E address what happens when MPIA requests are made for AVL and PRL records.
Section D. MPIA. The County agrees that it will deny all Maryland Public Information Act (MPIA) requests for stored AVL/PRL data on the movements and location of vehicles assigned to unit members until and unless a point is reached where court decisions establish that AVL/PRL data is public information subject to release under the MPIA. The County will defend its denials of MPIA requests for stored AVL/PRL data in the trial courts, and will continue to defend these denials in trial courts until and unless court decisions establish that AVL/PRL data is not confidential information. The County may, where appropriate, seek appellate review of court decisions ordering the release of AVL/PRL data, but is not required to do so. If the county chooses not to appeal, the employee shall have the right, as allowed by the Court, to continue the appeal at the employee’s own expense.
Section E. Summonses. The County agrees that it will seek court protection from any subpoena or summons seeking stored AVL/PRL data on the movements and location of vehicles assigned to unit members, except for subpoenas issued by a grand jury, or a State or federal prosecutor. The County will seek protection from subpoenas and summonses in the trial courts, until and unless a point is reached where court decisions establish that AVL/PRL data is not confidential information. The County may, where appropriate, seek appellate review of court decisions ordering the release of AVL/PRL data, but the county is not required to do so. If the county chooses not to appeal, the employee shall have the right, as allowed by the court, to continue the appeal at the employee’s own expense.
And so the contract directs the county to block the public’s access to these records in court.
The second article mentioning the MPIA is Article 66, which pertains to Mobile Vehicle Systems (MVS). Section 3.13 states:
All external requests for copies of recordings, including subpoenas and summonses, will be reviewed by the County Attorney’s Office. The County will notify the FOP of all such requests for MVS recordings/data involving unit members and solicit its opinion before determining whether the request will be granted or denied. If the County determines that a request cannot be denied under the MPIA, it will give the FOP an opportunity to file a reverse MPIA action and will not grant the original request until and unless a court orders that the recording/data be disclosed.
The third article mentioning the MPIA is Article 72, which pertains to Body Worn Camera Systems (BWCS). Section E states:
Release of BWCS video in absence of a specific request: The County will provide written notice to the FOP prior to the release of any BWCS recording to the public. In the event of an emergency or a bona fide public safety need the County may provide written notice after the release. This does not include release of recordings in connection with litigation, In events where there is no exigency, an employee captured in the recording may object to the use of the recording, in writing, to the Chief of Police (or designee) within two calendar days of receiving the notice of intent to release the recording as to any reason(s) why he or she does not wish the recording to be released. The Chief of Police (or designee) will consider any reason submitted by the employee before proceeding with the release.
The release of recordings of an employee’s death or injury shall not occur absent compelling law enforcement related reasons to release the recording or in situations where the release of those recordings are required by law.
The County shall ensure that all external requests for copies of recordings, including subpoenas and summonses, will be reviewed for compliance with applicable standards, including those imposed by law or by provisions of this Agreement. The County will maintain a log of all MPIA requests for BWCS video that it receives. The County will make this log, the underlying MPIA request, and the requested recording, available to the FOP for inspection. If the FOP objects to the release of any portion of the recording, it must promptly notify the County of its objection(s) and its intent to file a “reverse MPIA” action if the County decides to release the requested recording. The County will promptly notify the FOP of any decision to release the requested recording and the date and time of that release, unless the FOP first serves the County with a “reverse MPIA” action it has filed in a court of competent jurisdiction. The parties will make all reasonable efforts to provide each other with expeditious notice under this section given the relatively short time limits in the MPIA and its overall policy of providing the public with prompt access to public records without unnecessary delay.
In summary, the FOP’s contract requires the county to block public access to automatic vehicle locator and portable radio locator data in court and also requires it to facilitate the FOP’s opposing release of motor vehicle and body camera video in court.
If Elrich is serious about reform, he needs to review his own police union contract to see if its provisions are compatible with change. If he doesn’t, the county council will have to step in.
Today, I received the following from Del. Mary Washington (D-43):
Like most of you, I have followed the trial of Officer William Porter with a passion for justice and a deep concern for our city’s future. Now, as we await the jury’s verdict, my thoughts are not only with the family of Freddie Gray but with the thousands of diverse and dedicated people across our city who are working hard to stem the violence that chokes so many of our communities – from the advocates fighting to stop police violence, to those police officers who are struggling to keep our streets safe, to the activists trying to reclaim streets blighted by drugs, decay, and decades of disinvestment.
There is no doubt that this case, and the ones to follow, are historic. But the work and dedication of our city’s citizens are more long-standing than the verdict in any of these cases. Because if and when the jury reaches a verdict for this case, that verdict will represent its judgment on the facts presented in the case against Officer Porter. It will not be a verdict on the character of our city or the justice of our cause or the value of our work.
Whatever the jury finds, we will continue to work to stop racial profiling and excessive force by law enforcement officers– to see to it that our police serve the communities they are sworn to protect and to hold them accountable when they behave more like an aggressive occupation force than the public servants our communities need.
Whatever the jury finds, we will continue to work to make clear that Black Lives Matter – and to stand up to judicial systems, public officials, and entrenched institutions that fail to value the lives and needs of too many of our citizens.
Whatever the jury finds, we will continue to work to change a system of mass incarceration that often warehouses the poor and homeless in terrible jails – and leaves too many city residents trapped in a downward spiral of addiction and incarceration.
Whatever the jury finds, we will work to make the kind of investments in our schools, in drug treatment, in alternatives to incarceration, in job training, in affordable housing, and in community development that can lift neighborhoods decimated by drugs, despair and violence toward a brighter future.
As your State Delegate I will work with city and state leaders during the upcoming session and beyond to make sure that we not only hold law enforcement accountable when they cross the line into violence but hold all our institutions to higher standards in working to bring hope and possibility to our most vulnerable residents.
Whatever the jury finds this week, that unfinished work will continue.
Mary L. Washington, Member
Maryland House of Delegates, 43rd Legislative District, Baltimore City
Today, I am pleased to present a guest blog by Adam Pagnucco:
Montgomery County is the home of Maryland progressivism. It was the first county in the state to ban smoking in restaurants, enact a living wage law, pass a bag fee, ban private use of pesticides, create a local Earned Income Tax Credit and protect transgender residents from discrimination. It has the biggest county budget of any jurisdiction and has the largest Health and Human Services budget BY FAR. Every single state and county-level elected official is a Democrat and almost all of them are strong progressives. So this must all be supported by an overwhelmingly liberal voting base, right?
MoCo’s political system is underwritten by three things. First, it has closed primaries that are limited to party members. Unaffiliated voters can only vote for non-partisan offices (like school board seats) in primaries. Second, because the county is so heavily tied to the federal government, the Republican Party is tainted by its association with the tea party, right-wing demagogues, government shutdowns, debt limit crises and the sequester. This is a huge burden on the county’s GOP. Third, turnout in the primaries is low and falling. A grand total of 42,692 Democrats voted in every one of the last three gubernatorial primaries (2006, 2010 and 2014), which determine the election of the County Executive, County Council, State Senators and Delegates. That’s just four percent of the population. These folks get swamped by election-time mail and email and the county leaders owe their election to them.
These three factors have together produced a closed political system that is accessible only to Democrats, and very liberal Democrats at that. But the general electorate is much more diverse. Over the last three gubernatorial cycles, non-Democrats accounted for roughly 40% of the county’s general election turnout. And the Democrats are not necessarily all liberals. Council Member Phil Andrews ran for County Executive last year on an unabashed anti-tax, anti-union platform. In the summer of 2013, he was polling in the mid-teens among Democrats. In the 2014 Democratic primary, he received 22% of the vote. The fact that more than a fifth of primary Democrats embraced an anti-tax, anti-union candidate should give progressives pause.
But the real evidence for the sentiments of the voters comes from how they vote on ballot questions and charter amendments. These questions are decided in the general elections, not the primaries, and voters outside the Democratic four percent get to play. Consider the last three important county-level questions.
The Ficker Amendment, 2008
Former basketball heckler and perennial right-wing candidate Robin Ficker placed a charter amendment on the ballot that required all nine County Council Members to approve any property tax increase that would exceed the rate of inflation. Similar amendments had failed in the past. The County Executive, the entire County Council and a large progressive coalition spearheaded by labor opposed it. But the same general electorate that gave 72% of its vote to Barack Obama for President also approved the Ficker Amendment by a 51-49 margin.
The Ambulance Fee, 2010
The ambulance fee, which was intended to be paid by insurance companies to supplement the county’s Fire and Rescue budget, was a top priority of the County Executive and the county employee unions and it was passed by the Democratic County Council. It was opposed by the Volunteer Fire Fighters, Council Member Phil Andrews and the Republican Party and was petitioned to the ballot. The reasons for opposition differed; the volunteers worried that the fee would deter people in need from calling ambulances, while others simply opposed a new government fee. The Executive and the unions campaigned hard to pass it. The general electorate rejected the fee by a 54-46 margin.
Police Effects Bargaining, 2012
The politics of this one were a bit murky. The Democratic County Council unanimously passed a bill repealing the right of the police union to bargain over the effects of management decisions and the Executive supported it. Both the Democratic and Republican parties also supported the legislation. But labor vehemently opposed it and responded by picketing county Democratic Party events and eventually taking over part of its Central Committee. This was a big test for labor’s power in the county and the police union and its allies went all out to defeat the legislation. The general electorate upheld it by a 58-42 margin.
In every case, when general election voters were asked to weigh in, they chose what was arguably the less progressive position. And in every case, they went against the position of the county government employee unions.
The county is not a monolith. It’s a big jurisdiction with more than a million people and its various sub-components have different political leanings. For example, Takoma Park is famous for its liberalism, but Damascus leans towards the GOP. I totaled up the precinct results of all three ballot questions for each city and town in the county to determine which ones went for the more progressive positions (no on the Ficker Amendment and the police legislation, yes on the ambulance fee) and which ones did not. Here are the results.
Not a single part of the county adopted the more progressive position all three times. Only two areas – Cabin John and Takoma Park – sided with the more progressive position twice (opposing the Ficker Amendment and supporting the ambulance fee). Ten areas – Burtonsville, Darnestown, Derwood, Dickerson, Gaithersburg, Laytonsville, Montgomery Village, North Potomac, Olney and Sandy Spring – voted against the progressive position all three times. The referendum on effects bargaining was influenced by the fact that many police officers live in Upcounty areas like Clarksburg, Damascus, Germantown and Poolesville. Many presumably liberal areas in Downcounty favored reducing the bargaining rights of the police union. Bethesda, Cabin John, Chevy Chase, Leisure World and Potomac went against labor by two-to-one or more. Even Takoma Park voted against labor by 58-42%. Here’s an interesting fact: in these three instances, the only time the general electorate agreed with the Democratic County Executive and a majority of the Democratic County Council was when they wanted to reduce public employee bargaining rights. Is that truly a liberal voter base?
So the politics of county voters are considerably more diverse than their progressive elected leaders. What does that mean? It’s highly unlikely that the Democrats will be removed from power. The county’s Republicans are too weak, too underfunded and in many instances too conservative to pick up more than a seat or two (if that). And there is no other organized political movement to take on the Democrats. The real danger is that the business community, conservatives and single-issue groups will seize the voter tools available to them – charter amendments and ballot questions – and begin overturning progressive legislation and limiting the authority of county government on a strategic basis. Given the past history of the general electorate and depending on the issue, they just might succeed.