Ever since 2017 when police brutality victim Ashley Overbey Underwood and this website, Baltimore Brew, sued to end the use of non-disclosure agreements to settle police misconduct claims, attorneys for the city have been fighting against the lawsuit – even after a Fourth Circuit Court of Appeals decision finding the practice unconstitutional.
This past week, taking a new tack, Deputy City Solicitor Dana Moore told reporters the effort to ban the so-called “gag orders” is unnecessary because the city has modified them to the point where claimants are free to speak openly.
“This is not true,” argues David Rocah, ACLU of Maryland senior staff attorney, in a letter to City Council President Brandon M. Scott.
Scott and Councilwoman Shannon Sneed introduced a bill on Monday to end the use of gag orders.
This is the text of the ACLU letter, which also makes the case for why the Council has the legal authority to pass Bill 19-0409:
Dear President Scott and Members of the City Council,
We write to address concerns that have been raised about Council Bill 19-0409, entitled Transparency and Oversight in Claims and Litigation, which was introduced on July 22, prohibiting the City from requiring victims of police misconduct or unlawful discrimination to agree to gag orders as part of any settlement with the City regarding those claims. Specifically, concerns have been raised as to 1) whether the legislation is needed in view of current City policy, and 2) even if it is needed, whether the legislation exceeds the authority of the City Council, in violation of the City Charter.
First, with respect to the need for the legislation:
At a press conference on Wednesday, July 24, Mayor Jack Young and Deputy City Solicitor Dana Moore asserted that since Fall of 2017, the City has not used non-disparagement agreements (NDAs) and that plaintiffs in civil rights cases are now free to speak openly about their experiences. Specifically, Ms. Moore stated: “The new agreements say you are free to discuss your case. You can say whatever you want about your case. You are not inhibited in any way, in discussing the facts of the case.”
This is not true. Indeed, if it was true that the City’s NDAs allow plaintiffs to speak freely and without inhibition about their experiences, what would be the purpose of including these provisions in the agreement? What is true is that in late 2017 or early 2018, the City altered the language of the NDAs it still insists upon including in nearly all police misconduct settlements it enters into. The revised language is attached.
To summarize, it values plaintiffs’ free speech rights at $500, and says that by receiving this $500 the plaintiffs are bound not to “disparage” the City, and to “strictly limit” any comment about his or her experience to facts alleged in legal papers, which ordinarily are very limited, and need not and do not include full accounts of peoples’ experiences and feelings. The new NDA language is still captioned as a “Non-Disparagement/Limitation on Public Statements”, and it still restricts the speech of settling plaintiffs on threat of significant financial penalty, including payment of attorneys’ fees to the City.
The new NDA language is still unconstitutional and invalid under the Fourth Circuit ruling in Overbey v. Mayor and City Council of Baltimore, which recognizes that the government may not silence its critics. This is no less true when it does so by payment of hush money than when it does so through legislation or executive action.
It is important to note that the Supreme Court has said repeatedly that the First Amendment means there is no such thing as defamation of a government entity, let alone the even broader “disparagement.” New York Times Co. v. Sullivan, 376 U.S. 254, 290-92 (1964); Rosenblatt v. Baer, 383 U.S. 75, 79-83 (1966). And when the City is trying to prevent “defamation” or “disparagement” of its employees, it is seeking to protect their private, non-governmental interests, which it has no business doing at all.
In any case, there is reason to doubt that the City is even following its stated policy, because we have a settlement agreement, from May of 2018, months after the City’s alleged policy change, which does not contain the language the City claims to have been using since 2017.
Instead, the NDA in that agreement precludes the plaintiffs from discussing, supplying, posting, communicating or publishing any opinions, materials, comments, documents, facts or allegations in any way connected to the Litigation or the Occurrence, or the substance of any prior settlement offers or discussion, with/to anyone including the news media or through any other media (print, television, or online) except that the Releasing Parties’ counsel may indicate that the litigation has been settled in the amount stated herein to avoid the cost, time, expense and uncertainties of protracted litigation and to bring the matter to a final resolution. (See attached.)
This language is nearly identical – but actually slightly more restrictive – than the language challenged by Ashley Overbey and the Baltimore Brew in their litigation. Like the penalty exacted by the City upon Ms. Overbey, this agreement also would impose a penalty of 50% of settlement proceeds plus payment of the City’s attorneys’ fees if the City alleges it is violated.
Given the undeniable fact that the City continues to employ what it calls NDAs to silence plaintiffs in nearly all of its settlements, and given its continued court fight to invalidate any restrictions on its right to do so, the need for the legislation is just as pressing now as it ever was.
Second, with respect to whether the legislation exceeds the Council’s authority:
We understand that several provisions of the City Charter and City Code have been cited as in conflict with the legislation, none of which we believe establish the impropriety of the proposed legislation. We discuss each in turn.
City Charter Art. VI, §§ 2, 15 have been cited, which relate the powers of the Board of Estimates. Section 2 says that the Board sets the fiscal policy for the City. But the legislation does not relate in any way to the fiscal policy of the City. It relates to the City’s policy regarding the terms of settling police misconduct and unlawful discrimination cases, specifically a non-monetary term imposed on settling plaintiffs. Thus, this provision is totally irrelevant to the Council’s ability to enact the legislation at issue.
Section 15 details the Board’s responsibility to set procedures regarding the approval for payments of claims against the City. While the Board’s regulations do not appear to be online, this provision is also totally irrelevant, because it concerns the Board’s required approval of payments made in connection with claims against the City.
The Board does not have any role in approving non-fiscal aspects of claims against the city, pursuant to City Charter, Art. VI, § 2, only the fiscal aspects. And whether or not Baltimore will impose gag orders on victims of police misconduct or unlawful discrimination in settlement agreements cannot be plausibly said to have any fiscal impact on the City.
There is no credible basis to assert that not requiring gag orders in settlement agreements will cost the City money (indeed, the City Solicitor previously has asserted in court documents that not doing so will save the City money.
C. Campbell, Baltimore City Council ordinance would prohibit gag order requirement in police brutality, misconduct cases, The Baltimore Sun, July 18, 2019, https://www.baltimoresun.com/
Therefore, this provision is also irrelevant to the policy question about whether legislation prohibiting the City from using gag orders in settlements is appropriate for the City Council and Mayor to decide.
Also cited is Baltimore City Code, Art. 1, Subtitle 12, which creates the Central Bureau of Investigation within the Law Department. We are at a loss to see how this Subtitle could preclude the City Council from enacting police transparency legislation.
First, this is a part of the City Code, not the City Charter. Even if the proposed legislation conflicted with some provision in this Subtitle (which we don’t think it does), the City Council is free to pass new legislation that alters it (and the proposed legislation does not, because it doesn’t need to). City Code, Art. 1, § 12-5, which repeals any inconsistent ordinances existing at the time this Subtitle was passed, has been pointed to specifically.
But that provision does not and could not bind future City Council action to alter this Subtitle (and, indeed, the Subtitle was altered in 1966 and 1976, following initial passage in 1950). More substantively, there is simply nothing in Subtitle 12 that relates to the City Council’s power to set the terms of City policy regarding the content of settlement agreements in particular kinds of cases against the City.
The Subtitle says that the Bureau of Investigation has the duty to investigate claims made against the City, and report the results of those investigations to the City Solicitor. The obvious intent is to assist the City Solicitor in defending against such claims. This section of the City Code has no relevance to the legislation at issue, because the legislation has nothing to do with investigations of claims against the City.
Finally, City Charter, Art. VII, § 24, has been cited. This provision creates the Law Department within the executive branch, and creates the office of the City Solicitor, specifically describing the Solicitor’s job function: “The City Solicitor shall have sole charge and direction of the preparation and trial of all suits, actions and proceedings of every kind to which the City, or any municipal officer or agency, shall be a party.” Charter, Art. VII, § 24(b).
Read in context, we think this clearly means that the City Solicitor is in charge of the City’s litigation, as opposed to any other lawyer, except those appointed pursuant to other provisions in the Charter. See City Charter, Art. VII, § 24(c). It does NOT mean that the City Council, as the legislative body in Baltimore, is prohibited from setting Baltimore City policy on this or any other question. To interpret this otherwise would confuse the role of the client (and who the client is), with the role of the lawyer.
In a democracy there can be no doubt that the legislative branch has the authority (and the responsibility) to decide what the government’s policies should be, and the rules governing government employees’ conduct (including employees like the City Solicitor). Certainly other jurisdictions have thought so, in this precise area, such as the California legislature, which passed a bill earlier this year that says “a settlement agreement that prevents the disclosure of factual information related to a claim filed in a civil action or a complaint filed in an administrative action, regarding any of the following, is prohibited . . . .” Cal. Code, Code of Civ. Proc. § 1001(a).
Equally importantly, the ethics rules that apply to every lawyer, including City attorneys, make clear that a lawyer “shall abide by a client’s decisions concerning the objectives of the representation.” Md. R. 19-301.2. Here, the client is the City of Baltimore, which acts through its elected and appointed officials.
The ethics rules recognize this as well, stating “[a]n attorney employed or retained by an organization represents the organization acting through its duly authorized constituents.” Md. R. 19-301.13. Comment 8 to this rule makes clear that this principle applies to governmental entities as well. And the Mayor and City Council of Baltimore are not simply the corporate name for the City. It defines “the authorized constituents” who can, and must, direct the City Solicitor in his actions. It is the Mayor and the City Council who run the City, not the City’s Solicitor.
In short, nothing in the City Charter or City Code prohibit the City Council from passing, and the Mayor from approving, legislation governing the City’s policies regarding gag orders on those victims of police misconduct or unlawful discrimination who settle lawsuits against the City. The legislation addresses a critical issue of City policy, directly affecting the First Amendment rights of victims of multiple forms of misconduct, and the rights of the public at large to hear directly from such victims. And it should be a part of the City’s ongoing efforts to ensure transparency in its actions.
Senior Staff Attorney
** TO READ THE ATTACHMENTS REFERENCED IN THIS LETTER GO TO THIS ACLU of MARYLAND PDF. **