Baltimore’s City Council passed the so-called “gag order” bill in October, but now Mayor Bernard C. “Jack” Young – who neither vetoed nor signed the measure – is refusing to enforce it.
“The bill is an illegal bill,” the mayor’s spokesman Lester Davis said last night. “It’s not an enforceable bill.”
This statement came a day after Councilwoman Shannon Sneed declared victory on the legislation, which she co-sponsored with Council President Brandon M. Scott.
“After months of hard work with supporters and conversations with constituents about accountability within city government, I am delighted that the ‘Transparency and Oversight in Claims and Litigation Ordinance’ has now become law and will go into effect on January 1,” Sneed said in a statement Monday.
On October 28, the Council voted unanimously to give final approval to Bill 19-0409, which ends the policy of requiring police misconduct victims to sign non-disparagement agreements – NDAs, or as they are more often called, “gag orders” – in order to receive a monetary settlement.
With the bill on his desk, Young had the option of vetoing it, signing it or allowing it to become law without his signature. He chose the latter.
Under City Charter rules, if the mayor takes no action over the course of three regular City Council meetings, a bill approved by the Council automatically becomes law.
“The City Council absolutely has the authority” to end the practice of gag orders, says Brandon Scott.
Scott said today that Young does not have the right to defy the Council in this way – and the law must be enforced.
“The City Council absolutely has the authority to stipulate the terms by which city funds, taxpayer dollars are spent,” said Scott who, along with Young, is an announced candidate in the 2020 mayoral primary.
Sneed said through a spokesman that Young has the responsibility to enforce the law, and the Council has the oversight authority to make sure he does so.
“If necessary, we would hold an oversight hearing that is open to the public,” said Gabriel Stuart-Sikowitz, Sneed’s chief of staff.
Solicitor “in sole charge”
In explaining Young’s stance, his spokesman pointed to City Solicitor Andre Davis’ longstanding opposition to curbs on settlement gag orders.
“The Law Department has pointed out a number of ways [the bill was] legally insufficient,” said Lester Davis, who is not related to the city solicitor.
Solicitor Davis has said the [Bill 19-0409] usurps the law department’s role as the entity “in sole charge” of handling legal proceedings and documents. Davis also argued that the measure was illegal because the Baltimore Police Department is officially a state, not a city, agency.
“The mayor can’t be in the habit of instructing a former federal judge to ignore and break the law,” says the mayor’s spokesman, referring to Andre Davis.
The ACLU of Maryland, which filed a lawsuit against the gag orders, has repeatedly said the city solicitor is overstating his authority.
“Yes, he is the city’s lawyer,” David Rocah, ACLU’s senior staff attorney, said in September, “but he seems to forget who his clients are – the mayor and City Council as elected representatives of the people.”
The Young administration’s defense of gag orders comes in the face of a ruling by the U.S. Fourth Circuit Court of Appeals striking them down as unconstitutional.
The Appeals Court (where Davis once sat as a senior judge) said Baltimore’s NDAs infringe on the First Amendment rights of police victims to speak freely about their experiences and impede the press’ ability to interview injured parties.
The ACLU of Maryland filed the suit in 2017 on behalf of police misconduct claimant Ashley Overbey and this website, Baltimore Brew.
“There are no gag orders”
In addition to attacking the law, the Young administration is maintaining that the city policy the legislation seeks to end no longer exists.
“It’s a closed matter because there are no gag orders,” spokesman Davis told The Brew last night.
He was referring to the law department’s contention following the court ruling that modified language in the NDAs has made them legally defensible.
“They do not prohibit folks from talking about all aspects of these cases,” spokesman Davis said.
Rocah has strongly disagreed, saying that the revised language still stifles public discussion of police misconduct and violates the First Amendment.
Young’s spokesman also pointed to a new policy the mayor announced in September, which allows people receiving police misconduct settlements to speak about their cases at weekly Board of Estimates meetings.
“People are able to come into Board of Estimates meetings and ‘speak their truth,’” Davis said.
So far no one has done so.
In a previous interview with The Brew, spokesman Davis made clear that Young frowned on the bill because it challenged the primacy of his city solicitor.
“The mayor can’t be in the habit of instructing a former federal judge to ignore and break the law. So the mayor instructed the solicitor to carry out the spirit and intent of what the Council was looking to do,” he said.
Why not a Veto?
Young has previously provided confusing statements about his view on gag orders, including a recent radio interview in which he both criticized the Council bill and said he doesn’t like gag orders and wanted to “fix it.”
Scott argues that by refusing to enforce the bill, Young is showing lack of commitment.
“When you care about an issue you make sure it’s codified in law. This is about making sure gag orders are never employed in Baltimore City regardless of who the mayor or city solicitor is,” he said.
Scott raised the same question that The Brew put to Young’s spokesman last night: Why didn’t Young simply veto the bill?
Davis’ abrupt answer was “I think I’ve been very clear on that.” (By most accounts, a mayoral veto would be overridden by the Council.)
The mayor’s actions were criticized in a statement released today by the coalition of groups who worked to get the bill passed: Justice for Tyrone West, Not Without Black Women, Runners 4 Justice, Jews United for Justice, the Coalition for Justice, Safety & Jobs, the Citizens Policing Project, and the ACLU of Maryland.
“By saying that they are not going to enforce the new city law, the mayor and city solicitor are ignoring both the law and the U.S. Constitution,” the statement read.
“If they thought the bill was illegal, the mayor should have vetoed it and faced the political consequences for doing so,” it continued. “The mayor did not veto the bill, and having not vetoed it, neither he nor the city solicitor are free to simply ignore the law.”