Shivali’s Word from the Ward- Police Investigation Edition

June 13, 2018

Dear Neighbors,

With the announcement of Chief Michael Scott’s retirement, the questions on everyone’s mind are

  1. What is happening with the city’s investigation into the police department?
  2. Who will be our next chief of police?
  3. Why can’t we know more now?

You are receiving the “Word from the Ward” because you are on my email list. I represent Ward 2, but in a city of this size, most issues are issues of concern throughout the city.  The Word from the Ward recipient list consists of residents of Ward 2 as well as residents of Ward 1, business owners, and other individuals interested in the area.  If you would like to be added or removed from the list, please let me know.

If you have any questions for me, please email me at Shivali@ShivaliShah.com.

(My council email address: SShah@MountRainierMD.org forwards to the above address).

Or you may email your entire council at Council@MountRainierMD.org  – this email address forwards your email to the personal email address of all 5 members of council (Miles, Knedler, Chesek, Benitez, and Shah).

I do not regularly check public social media like public listservs, message boards, Facebook and Twitter and even then may not get to read everything. But I DO respond to my email and direct requests to meet to discuss issues of concern to our community.

Thank you to those who contacted me personally – via email, in person, or via telephone- to ask me questions or share your concerns about the police department. The answers to these questions are of interest to our entire community so I wrote it in this format instead of responding individually.  The statements made here are my own and do not represent (or not represent) those of anyone else. I have aggregated some of the questions I have received and done my best in putting together some useful information.  This does not cover all that I have to say on the matter or all that there is to say on the matter.  This is part of an on-going discussion.

Update on the Police Dept Investigation

The investigations in the Mount Rainier Police Department are ongoing. I understand that it feels like it has taken a long time.  However, sometimes police investigations can take months or longer. There is no finite period of time.

Some have expressed the feeling that it would be better to wait until after the investigations are over to talk about any of it.  I understand the many good reasons for waiting- there is a lot we cannot answer, we do not want any interference with the investigations, we have to respect the privacy of the employees involved, and other good and reasonable reasons. However, I respectfully disagree for 2 reasons:  

  1. The amount of time these investigations have been taking and may continue to take is too long for the public to wait to have general context, and
  2. There is some information that we can share that is not confidential or protected. This information will help give context even if it cannot answer ALL questions.

For me, as long as information does not fall into one of these 3 categories, it should be shared with the public-

  1. does not needlessly violate the privacy of the MRPD employees involved,
  2. does not needlessly expose the city to reasonable litigation, and
  3. does not interfere or potentially interfere with the current investigations.

Some things require context which is hard to do via this medium, but I will do the best I can. What I am writing is not ALL there is to say on any of the individual matters, but it will at least give some more information about the current situation.

Question: What is happening at the moment with the investigation into MRPD?

Answer: It is our responsibility to make sure that allegations that have been brought before us are adequately investigated.  Currently, the Mayor and Council have authorized 2 investigations into the Mount Rainier Police Department: financial and personnel.  We are not conducting the investigations ourselves, but rather have secured the right type of third party entities / professionals to conduct these investigations so that they can present us with findings.

The city can only conduct administrative investigations, not criminal.  The city is not in a position to “file criminal charges” against anyone. That is the job of other government bodies. 

Question: Are criminal charges begin brought against anyone?

Short Answer: It is too soon to tell.  We need to wait until the investigations are over.

Long answer: After we were made aware of the allegations, we directed our city attorney to contact the State’s Attorney’s Office for Prince George’s County. At that point, in the first couple of weeks of April, we had no idea what would be uncovered and we wanted to be prepared. We also wanted to make sure that any documents that could be considered evidence were handled properly and remained secure.

So, to be clear, the State’s Attorney’s Office did NOT find out on their own or through the  media and come knocking on our door.  Our city attorney initiated contact with the State’s Attorney’s Office for Prince George’s County at our instruction and on our behalf (and well before the media reported anything on April 23).  We wanted to make sure we were doing what we needed to in case evidence was uncovered that rose to the level of criminal charges being filed against any person. 

At the moment, the State’s Attorney’s Office is aware of the basic outline of the issues involved. They are not actively investigating at the moment. They have spoken about the nature of the issues involved with our city attorney and some staff members, including members of the police department. They are awaiting the results of the city’s investigations as well.

Once we are presented with findings from the investigations, we can share them with the State’s Attorney’s Office. From there, they will make a determination about how their office will proceed.

Question: So if the State’s Attorney is not actively investigating right now, who is?

  1. Investigation into Financial Matters

In the closed session meetings of Mayor and Council dated April 6 and April 10, 2018, information on financial irregularities in MRPD were brought before us.  On April 11, 2018, seven members of the MRPD were put on administrative leave: the Chief of Police, 4 administrative staff, and 2 sworn officers. Only one of these officers was a patrol officer.   First Sergeant Stephen Malley, a 30 year veteran of the MRPD, became Acting Chief. Despite the rumors that were spread, our patrol capacity remained unchanged. Even though we could ask neighboring jurisdiction for patrol assistance, in this case, there was no need.   The administrative office of the MRPD, however, was closed for a period of time. After a couple of weeks, it was reopened with the return of 2 of the administrative employees. 

The Mayor and Council directed staff to get bids and recommend a forensic accounting firm to help with the investigation into financial matters in the police department. Since then, the city has retained an accounting firm that is now reviewing police department documents, policies, and procedures and interviewing staff on a specific set of financial matters within the police department.  Certain documents and equipment have been removed from the MRPD and have been secured elsewhere to maintain integrity of the investigation.

In the course of the city looking into the initial financial matter brought before us, other financial issues came to light. These are being investigated also.

  1.  Investigation into an Equal Employment Opportunity Type of Complaint

About the same time, an Equal Employment Opportunity (EEO) type of complaint was filed against several employees of the MRPD. 

The Equal Employment Opportunity Commission protects federal employees and job applicants from discrimination on the basis of race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It also protects federal employees from retaliation if an employee opposes employment discrimination, files a complaint of discrimination, or participates in the EEO complaint process.

The City of Mount Rainier is a small municipal body, not federal, and does not have an equivalent EEO Commission. (Neither does any other small city). After being advised by our city attorney, the Mayor and Council directed our city attorney to research and make recommendations to hire an investigator experienced in EEO and related investigations to conduct interviews and an investigation for the City of Mount Rainier.  Since then, the City has retained such an investigator and that investigator is in the process of conducting the investigation and will present findings to the City.  After the findings are made available to us, we can provide an Executive Summary to the public.

Question: Has a complaint been filed in this matter outside the city level?
Answer: No.

  1. Law Enforcement Officers’ Bill of Rights

Sworn police officers are afforded protections under the LawEnforcementOfficers’BillofRights(LEOBR). LEOBR is meant to protect law enforcement officers during an investigation that could lead to discipline by providing a proscribed framework. It mandates that the investigation must be done within particular parameters before the employer can make a decision about disciplining an officer and before the employer can actually discipline the officer.  Among other things, it means that they can only be investigated by other law enforcement officers.

Of the MRPD members who were on administrative leave, we have several types of employees involved.

  1. Sworn police officers-  Sworn police officers are protected under LEOBR. Most of the officers in our department are also members of the Fraternal Order of Police (FOP), also known as the police union.
  2. Administrative staff- administrative staff in the MRPD are civilian employees. They are not police officers. They are currently not in the union. They do not fall under the LEOBR system. In that sense, they are more akin to the employees in every other city department.
  3. Chief of Police- The position of Chief of Police is a special case.  Though a sworn officer, the chief of police is an at-will position in the city and is not subjected to LEOBR.

The city attorney has secured the assistance of another police department in Maryland, but outside Prince George’s County, to conduct the interviews of the two sworn officers so that their rights under LEOBR may be respected.

Question: What is going on with those employees on Paid Administrative Leave?

Answer: 2 of the staff members who were on administrative leave have returned to work. Now that Chief Scott has retired, as of today, there are 4 members of the Police Dept still on paid administrative leave. 2 of them are police officers, 2 are administrative staff.

Question: Why can’t we know exactly what the allegations are or against whom allegations have been made?  These are public employees, and a matter of public concern, and so this should be public information.

Answer: The Maryland Public Information Act (PIA) governs the inspection of government records and sharing of government information with the public. The PIA generally favors greater public access. There are, however, exceptions; some are discretionary, some are mandatory.

Section 4-311 of the PIA states that personnel records are a mandatory exemption to the disclosure requirement which impose an affirmative obligation on the city to deny inspection. This means the “custodian of records” (in this case, the city of Mount Rainier) must deny the request for information and does not have a choice in whether they provide the information.  Some cases illustrate the point and are controlling on this issue: In Montgomery County v. Shropshire, the court stated that the personnel exemption included records “relating to hiring, discipline, promotion, dismissal, or any other matter involving an employee’s status.”[1]  In Baltimore County Police Department v. State, the investigation of employee misconduct was considered a personnel record that qualified under the personnel record exemption.[2] Information about a complaint filed against an employee is not disclosable.[3]  Allegations of misconduct, the complainant and the person(s) alleged to have perpetrated the misconduct would fall under this exemption.

Other exempted records include adoption records, welfare records, information pertaining to a person’s finances, and medical or psychological information about an individual.

Another exemption which is relevant here is the investigative records exemption. Under section 4-351(b), the custodian of information may not answer a request that

could

  • Interfere with a valid and proper law enforcement proceeding,
  • Deprive another person of a right to a fair trial or an impartial adjudication,
  • Constitute an unwarranted invasion of personal privacy,
  • Disclose the identity of a confidential source, or
  • Prejudice an investigation.

While there is an ongoing investigation, only a limited amount of information may be made public out of a need to maintain the integrity of the investigation.  Once the investigative portion is over, then we will still be limited by the personnel exemption, but not the investigative one

Question: What is going on with the Chief of Police position?

Answer: When 7 members of the police department were placed on administrative leave on April 11, 2018, so that the afore-mentioned investigations could be arranged and take place, First Sergeant Stephen Malley was the next most senior member of the department eligible to be asked to take on the role of Acting Chief during this time.  He accepted the responsibility.

Chief Michael Scott announced his retirement on June 1, 2018.  Acting Chief Malley will continue to be Acting Chief until the city can conduct an official search for a new police chief. Conducting a search does not preclude a member of the current police department from becoming the next chief.  Current members of our police force are more than welcome to apply for the position. Familiarity and relationships with the community and our current police department members is valuable. However, it would be a disservice to the community if we did not search widely for the best possible candidate.

Speaking just for myself, I believe it is in our best interest to conduct a search for the next (permanent) Chief of Police as soon as possible. I do not think we should necessarily wait until the investigations are over because it is hard to tell how long they will last. Plus, the department needs all the support it can get to return to a place of stability.  At the very least these investigations will present us with recommendations on improvements to the department.  We need someone that can effectively lead the department through the tough times it is experiencing now and can be an agent for positive change in the future.  We need someone who can begin implementing these improvements while taking the interests of a variety of stakeholders into account.  These stakeholders include the residents of the city, the businesses of the city, the women and men who work hard every day and night for the police department, the leadership of the police union, the city manager, mayor and council, directors and staff members of other departments in the city, and outside law enforcement and other agencies. We need a leader who can balance all these interests and

create and implement a vision for the future of our police department. 

Personal Note:

I guess this whole document is a personal note, but this is a little more personal than the rest – While I am a lawyer, this is not my area of the law. As a city council member. I defer to our city attorney on such matters. After taking the Public Information Act training yesterday and having spoken to the experts, I defer to them as well. 

I have asked our city attorney and other professionals numerous times and in different ways how to communicate certain information I wish the public to hear without violating the individual employee’s privacy rights, jeopardizing an ongoing investigation, or opening up the city or myself as an individual to a reasonable lawsuit. (I say “reasonable” because anyone can file a lawsuit about anything. I do not count fear of a frivolous lawsuit a legitimate enough reason to not speak.)  Once we had staff with human resources experience on board, I have asked them as well. If you know me, you know I exhausted all these people with my questioning.  

I agree that more information needs to be shared. Not just about what is happening now, but about what happened in the recent past. I have put on our agenda for our next worksession to discuss directing the Public Works Director and Finance Director to create reports on the changes that have been implemented since they have taken their positions. As for the Police Department, they are in the middle of 2 investigations and need a little more time. As for the Code Enforcement Department, we are looking for a new Director and when we have a new Director, it will be more appropriate to have that discussion then. There are other changes too, and I am open to discussing prioritizing making more public changes in other departments too, but, for me, the reports from the Finance Department and the Public Works Department are very important.

The information that comes out of these reports may not be popular and may not be the answers people wanted to hear, but it is important to know how your tax dollars are being spent. However, I am only one of five.  I cannot make these decisions in isolation. However, I do not expect to receive opposition on these requests from my fellow councilmembers.  My colleagues are just as interested in transparency. We may have different ways of expressing it, but we all believe in openness, transparency, and want what is best for the community.

Note on Sources, Attributions, and Assistance: All parts of this statement have been approved (with minor edits made) by our city attorney, except for (1) the section on the Public Information Act and (2) the “Personal Note.”

I wrote the Public Information Act section after attending a training on the Maryland Public Information Act on June 12, 2018 (yesterday) at the 2018 Maryland Municipal Summer Conference. The training was taught by Judge David E. Carey, District Court of Maryland for Harford County and Maryland Assistant Attorney General Jeffrey Hochstetler. Mr. Hochstetler is one of the legal advisers for the Ombudsman on Public Information Act requests.  The instructors answered my specific questions and taught a great session, but they have not reviewed what I have written here.

All mistakes and misstatements are unintentional and are fully my responsibility. 

Regards,

SHIVALI SHAH, Esq.
City Council

City of Mount Rainier
1 Municipal Plaza, Mount Rainier, MD 20712   
Office: 301.985.6585
SShah@MountRainierMD.org
WWW.MountRainierMD.org

[1] Montgomery County v. Shropshire, 420 Md. 362, 378 (2011)

[2] Baltimore County Police Department v. State, 158 Md. App. 274, 282-283 (2004). 

[3] 78 Opinions of the Attorney General 291 (1993). G