DLS Analyzes Police Oversight Regs

The Maryland Department of Legislative Services (DLS) has reviewed and refined emergency police oversight regulations drafted by the Maryland Police Training and Standards Commission (PTSC).

DLS codified PTSC’s emergency regulations regarding PABs/ACCs and the uniform disciplinary matrix into COMAR 12.04.09 and 12.04.10, respectively. Before the regulations can be finalized and officially published, the Joint Committee on Administrative, Executive & Legislative Review (AELR), an oversight body established by the Maryland General Assembly, will conduct a review to ensure said language does not violate legislative intent and offers procedural due process. PTSC has requested emergency status for its regulations beginning July 1, 2022, and ending December 27, 2022.

AELR’s procedures for emergency regulations are as follows:

Emergency regulations, which bypass the normal public notice and comment period, remain in effect for a limited period of time – not to exceed 180 days – to meet exigent circumstances. Although emergency regulations are not published in the Maryland Register before adoption, notice of the committee’s receipt of the regulation is posted on the MGA website. In addition, the agency submitting the request for adoption of emergency status must post the text of the regulations on the agency website within three business days of submission to the AELR committee.

If a member of the committee requests a public hearing on the emergency adoption of a regulation, the committee must hold the hearing. If no public hearing is requested, staff to the committee may poll on the emergency regulation as soon as 10 business days after receipt of the regulation. Approval by the committee is required for an emergency regulation to take effect.

As noted in previous Conduit Street coverage, PTSC’s draft emergency regulations were initially issued on June 24, just before the July 1 effective date for several provisions included in the Maryland Police Accountability Act of 2021. Among those provisions is a requirement that counties establish Police Accountability Boards (PABs), Administrative Charging Committees (ACCs), and trial boards. PABs review and oversee police misconduct complaints from the public, ACCs receive investigatory reports of police misconduct and determine levels of discipline, and trial boards hear appeals of any recommended discipline.

According to DLS’s analysis of COMAR 12.04.09, PTSC did not overstep its statutory authority or the legislature’s intent in developing its regulations concerning ACCs and PABs. However, aside from “grammar and other technical corrections throughout the regulations to improve clarity and accuracy,” DLS did highlight one legal issue presented by PTSC’s regulations:

Regulation .06A provides a mediation process for nonviolent complaints from the public if the eligibility requirements under § 3-207(d) of the Public Safety Article are met and subject to the agreement of the complainant. This mediation process is an alternative to the formal PAB and ACC complaint process. The regulation does not conflict with the legislative intent to permit voluntary mediation in some circumstances. The commission, however, has not yet established a Police Complaint Mediation Program as directed by § 3-207(d)(3) of the Public Safety Article. Accordingly, the provisions concerning mediation in this regulation can have no effect until the commission promulgates mediation regulations that are consistent with the statutory framework.

In DLS’s analysis of COMAR 12.04.10, the agency cites another mediation-related legal issue:

Regulation .05I provides that ‘[a] law enforcement agency may operate a formal mediation program pursuant to Public Safety Article § 3-207(d) to the extent doing so is consistent with Title 3, Subtitle 1 of the Public Safety Article.’ …There is no scenario under which Regulation .05I may be given effect under § 3-207(d) because there is no formal mediation program operated by a law enforcement agency that is pursuant the statute. As previously mentioned, there is no statutory provision authorizing an individual law enforcement agency to establish and operate its own mediation program or nor is there language granting the commission the authority to empower law enforcement agencies to do so.

AELR’s final approval will likely depend on the correction of each flagged issue. Regardless, county officials have voiced concerns that the regulations are not comprehensive and do not lend enough clarity to the police oversight process. For example, the standard of review, or whether one body must defer to another’s findings, is left unsettled for trial boards.

Altogether, despite being primary stakeholders, counties have not played a meaningful role in developing PTSC’s regulations, causing many officials to call for a more public and participatory process.

Useful Links

COMAR 12.04.09

COMAR 12.04.10

COMAR 12.04.09 Analysis

COMAR 12.04.10 Analysis

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