Anastasi v. Montgomery County

ROBERT F. SWEENEY, Judge (retired), Specially Assigned. Appellant, Joseph Anastasi, filed a grievance contesting the refusal of the Montgomery County Police Department (“the Department”) to promote him from sergeant to lieutenant. The Department, through Chief of Police Carol Mehrling, denied Anastasi’s grievance, and he appealed to Montgomery County’s Chief Administrative Officer (“CAO”). After a hearing, the CAO also denied Anastasi’s grievance, and he filed another appeal to the county’s Merit System Protection Board (“Merit Board”).

The Merit Board reviewed both the record of the proceedings before the CAO and written arguments submitted by the parties; it then denied Anastasi’s grievance, and he filed yet another appeal to the Circuit Court for Montgomery County. After a hearing, the circuit court affirmed the decision of the Merit Board, and Anastasi has now appealed to this Court. 1 ISSUES Anastasi raises six issues, which we rephrase: I. Did the promotional procedure used by the Department violate certain dictates of the Montgomery County Charter and the Montgomery County Code?

II

Did the maintenance by the Department of a file of memos on Anastasi violate his rights under the Law Enforcement Officers’ Bill of Rights (“LEOBR”)? ⁴⁷⁷ III. Did the maintenance of that same file violate Anastasi’s rights under Montgomery County Administrative Procedure 4-8?

IV

Did the Department’s use of the memos in that file violate Montgomery County Personnel Regulation 23-2? V. Was the Department entitled to consider an act of dishonesty in its decision not to promote Anastasi?

VI

Did the Department illegally promote Alfred Dooley to lieutenant during the same promotion cycle? FACTS Anastasi is currently a sergeant with the Department. This case involves the failure of the Department to promote Anastasi to lieutenant during a promotional cycle that lasted from 1993 to 1995. Anastasi applied for the promotion in July 1993.

At the time, the promotional process consisted primarily of taking a competitive examination. After the scores were returned, applicants were grouped into two separate categories — one marked “well-qualified” and another marked “qualified” — and then ranked, by score, within their respective categories. When the ranking process was complete, all the names were submitted to the Chief of Police, who then used the list to fill openings for lieutenant when they occurred. The Chiefs decisions on who to promote were to be based on the following guidelines, set forth in a personnel bulletin dated July 16,1993: In making promotional decisions the Chief of Police may consider examination results, length of County service, time in rank, and other information pertinent to the candidate’s suitability and potential for successful performance in the higher rank.

The Chief may also consider for up to a maximum of five years: personnel evaluations, commendations, reprimands, and disciplinary actions. Information may be obtained by a review of personnel files, examination ⁴⁷⁸ results, personal interviews or recommendations from the supervisors of those on the eligible list. The selection process must be consistently conducted at each stage of consideration. The Chief of Police may formally delegate to others authority to review and consider the above listed information and, based on that information, to recommend officers for promotion.

Recommending officers must be at least equal in rank to the promotional position. Several individuals may serve as a recommending panel. Panels should include minorities and women when possible. Using these guidelines as a starting point, the Department devised a promotional procedure known as “rank order with exception.” This meant that when openings at the rank of lieutenant occurred, a committee consisting of the Department’s one lieutenant colonel and three majors would meet to discuss the highest-ranked candidate on the two lists. 2 If the committee determined that there were no problems with that candidate, it would signal its approval to the Chief of Police, and the Chief would promote that candidate.

If, however, the committee determined that there was a problem with that candidate, it would warn the Chief of Police; the Chief would then decide whether to promote that candidate. The promotional exam taken by Anastasi was administered in the late summer of 1993. The categories were established on September 30, 1993, and “held open” until September 30, 1995. This meant that during that two-year period, the Chief of Police was to pick all new lieutenants from those categories. ⁴⁷⁹ Anastasi scored 96 points out of 100 on the exam, which was good enough to make him the eighth-ranked sergeant in the well-qualified category.

Thus, at the time the categories were established, Anastasi was in a good position to receive a promotion. In the spring of 1994, however, Anastasi’s promotional opportunities took a sharp downturn when he improperly attempted to obtain reimbursement for a car wash, and then lied to his supervisors about his actions. The incident arose out of the Department’s policy of reimbursing officers for money they pay to wash their official vehicles. Officers obtain such reimbursement by submitting an expense sheet and a receipt from the carwash.

Officers may also obtain from the Department official tokens, which are accepted in lieu of payment by certain Montgomery County car wash vendors. If an officer pays by token, he is required to make a note of the transaction in a log book. On May 24, 1994, Anastasi, who was then working for the Department’s Drug Enforcement Unit, had his vehicle washed, and paid by token. As such, he made a notation of the transaction in the log book.

Later, however, he submitted an expense sheet to his superior, Lieutenant John King, seeking reimbursement for the same car wash. King also went to get his vehicle washed on May 24, and also paid by token; and when he signed the log book, he noticed Anastasi’s notation. Thus, when he received the reimbursement request, he became suspicious, and questioned Anastasi about it. Anastasi told King that he had had his car washed twice on May 24.

King apparently did not believe Anastasi, and contacted Captain Robert McKenna, the next officer in the chain of command. McKenna talked to Anastasi, who offered the same story he related to King. After his conversation with McKenna, Anastasi wrote a letter to McKenna reiterating his story. On May 26, 1994, however, Anastasi called both King and McKenna and admitted that he had only had one carwash on ⁴⁸⁰ May 24, and that he had lied about the expense sheet that he submitted.

Anastasi also requested a transfer to a different assignment. Anastasi explained to both that he had had his cruiser washed several months before without reimbursement, and that he intended the reimbursement claim submitted on May 24, 1994, to cover the expenses of that earlier carwash. After his conversations with King and McKenna, Anastasi wrote a letter to McKenna apologizing for the incident and reiterating the story about the earlier carwash; that letter provides, in relevant part: Captain McKenna: Since I probably won’t see you until I get back to work on Tuesday at 4:00 p.m., I again wanted to apologize to you & John for submitting the expense sheet and, more importantly, for lying to both you and John. I have never been a “company man” who did everything by the book but lying to you guys and then compounding matters by continuing to lie over something small (despite the overwhelming evidence you shared with me) is, without a doubt, the most assinine [sic] thing I have ever done in my 21 years here.

To the best of my knowledge, I have never given anyone reason to question my integrity before. As it now stands, I have destroyed it as far as you and John are concerned. All of that aside, and "with full knowledge that you will endorse my request for transfer, I would like to tell you that two months ago (I’m sorry I don’t have the exact date with me now but it was around the middle of March) I truely [sic] did take a group of kids on a field trip here in the County in my cruiser. They really did trash it and I really did pay to get it washed but the attendant collected the receipt.

Not having that receipt, I did not submit an expense sheet. I did, however, remember that, at least in my mind, I was owed $8.00 ... (Emphasis in original). At the very end of May 1994, Anastasi was transferred from the Drug Enforcement Unit to the Wheaton-Glenmont Dis ⁴⁸¹ trict.

In early June, McKenna phoned his direct supervisor, then-Major Carol Mehrling, to inform her of the carwash incident. Also in early June, King sent a memo to Lieutenant Colonel Ronald Ricucci, the Deputy Chief of Police, informing him of the carwash incident and recommending that Anastasi’s “future performance ... be closely scrutinized.” On July 21, 1994, McKenna sent a memo to Mehrling expressing concern over Anastasi’s promotional potential. The memo focuses primarily on the carwash incident, although it also mentions other, unrelated problems; it reads, in full: Sergeant Anastasi’s eligibility for promotion to Lieutenant should be closely scrutinized in my opinion because of his untruthful statements to his immediate supervisor and myself in reference to the previously reported situation where he submitted a falsified voucher for $8.00. Sergeant Anastasi also was very reluctant to minimize the use of overtime where responsive scheduling would cause the investigation to be completed during the regular work day.

I also feel Sergeant Anastasi finds it difficult to make operational decisions and/or have a command of presence when supervising tactical operations. Lieutenant King’s confidential memo, employee evaluations, and supervisory log of Sergeant Anastasi causes me real concern as to his candidacy for a next higher rank. A few days later, Mehrling sent a memo to Ricucci requesting that then-Chief of Police Clarence Edwards consider denying Anastasi a promotion; Mehrling’s memo specifically referred to the memos issued by King and McKenna. The three memos written by Mehrling, McKenna, and King were kept in a file in Edwards’s office.

Also kept in that file were the two notes written by Anastasi to McKenna. Anastasi was never made aware of the memos contained in that file. In addition to all of these memos, King issued a separate “Planning and Performance Appraisal” of Anastasi in the aftermath of his transfer to Wheaton-Glenmont. That evaluation was quite critical of Anastasi’s performance in a number of areas, including coordination of scheduling and personnel ⁴⁸² training, and documentation of the performances of subordinates.

Unlike the other memos, Anastasi was made aware of King’s “Planning and Performance Appraisal.” As a result of these negative recommendations, Edwards passed over Anastasi for promotion on several occasions. For his part, Anastasi attempted to rehabilitate himself in the eyes of his superior officers. On August 2, 1994, he met with Mehrling to explain the carwash incident, and to offer his apologies. On August 10, 1994, he filed a grievance over King’s “Planning and Performance Appraisal.” Edwards ultimately granted Anastasi’s grievance, and agreed to destroy King’s negative evaluation on the condition that Anastasi improve his performance; Edwards’s decision on the grievance provides, in relevant part: [T]he performance deficiencies identified by Lt.

King are critical supervisory responsibilities which must be corrected. I am therefore directing Lt. King to contact grievant’s current unit commander to discuss the performance deficiencies identified. The unit commander will discuss the performance deficiencies identified.

The unit commander will develop a work plan to monitor grievant’s performance in the specific areas identified. If no improvement occurs between now and the end of the evaluation period, November, 1994, the grievant could receive an unacceptable evaluation. If the grievant’s performance does improve and his performance is rated as meets or exceeds requirements, the supervisory notes and appraisal of Lt. King will be destroyed.

On November 15, 1994, Anastasi received an evaluation by two of his unit commanders, as required by the Edwards decision on his grievance. Both of those commanders — Lieutenant Anthony McDonald and Captain Edward Clarke — gave Anastasi very high ratings, and concluded that he should be considered for promotion. McDonald’s evaluation provided, in relevant part: I am pleased to report that the Sergeant has performed in an exemplary manner and that I consider him to be the ⁴⁸³ most proficient supervisor currently in the District and certainly the equal of any supervisor that I have evaluated during the past 6 years. It should be noted that his performance has been very consistent and has not varied as a result of the mentioned work plan.

The Sergeant has demonstrated an ability to perform at a level above his current rank, possibly above the rank of lieutenant. The issues raised by Lt. King have not been observed during this 5 month rating period. I am very impressed with all of Sgt.

Anastasi’s skills and abilities and I offer my highest recommendation that he receive consideration for advancement based on his performance in the Wheaton Glenmont District. Clarke’s evaluation provided, in relevant part: After having observed Sergeant Anastasi’s performance in several areas, I can unequivocally state he has conducted himself in a most professional manner and has exceeded the performance standards of his position. I strongly believe that Sergeant Anastasi is ready to assume the position of Lieutenant on a full time basis and hope he is afforded that opportunity. As a result of these evaluations, King’s Planning and Performance Appraisal was destroyed, as required by Edwards’s decision on Anastasi’s grievance.

Also as a result of these evaluations, Edwards decided that he would no longer pass over Anastasi for promotion. 3 Unfortunately for Anastasi, Edwards stepped down as Chief of Police before the occurrence of another opening for lieutenant. Edwards was ultimately replaced by Mehrling, who decided that, as the new Chief of Police, she was not bound by Edwards’s decision to consider Anastasi for promotion. Thus, when the next opening occurred (in the early spring of 1995) Mehrling promoted Sergeant Alfred Dooley, who was ranked ⁴⁸⁴ lower on the well-qualified list than Anastasi. As a result of Dooley’s promotion, Anastasi filed the grievance that has resulted in this appeal.

DISCUSSION I. Validity of the Department’s Promotional Procedures Anastasi’s initial challenge is to the procedures used by the Department during the relevant promotional cycle to choose candidates for elevation to lieutenant. Specifically, he challenges the guidelines issued in the personnel bulletin of July 16,1993, which (again) read as follows: In making promotional decisions the Chief of Police may consider examination results, length of County service, time in rank, and other information pertinent to the candidate’s suitability and potential for successful performance in the higher rank. The Chief may also consider for up to a maximum of five years: personnel evaluations, commendations, reprimands, and disciplinary actions. Information may be obtained by a review of personnel files, examination results, personal interviews or recommendations from the supervisors of those on the eligible list.

The selection process must be consistently conducted at each stage of consideration. The Chief of Police may formally delegate to others authority to review and consider the above listed information and, based on that information, to recommend officers for promotion. Recommending officers must be at least equal in rank to the promotional position. Several individuals may serve as a recommending panel.

Panels should include minorities and women when possible. According to Anastasi, these guidelines violate his rights under the Montgomery County Charter and the Montgomery County Code. Anastasi’s argument is based on § 401 of the Montgomery County Charter and §§ 33-5(a) and 33 — 5(b)(2) and (6) of the Montgomery County Code. Section 401 of the Montgomery County Charter reads, in relevant part: ⁴⁸⁵ The council shall prescribe by law a merit system for all officers and employees of the county government ...

The merit system shall provide the means to recruit, select, develop, and maintain an effective, non-partisan, and responsive work force with personnel actions based on demonstrated merit and fitness. Sections 33-5(a) and 33 — 5(b)(2) and (6) of the Montgomery County Code, in turn, read as follows: (a) Statement of legislative intent. It is the legislative intent of the county council that this article foster excellence in the public service; high individual competence among employees; recognition that respect for the employee as an individual is first required for achieving such excellence and competence; and harmonious and efficient operation within the various components of county government. (b) Merit system principles.

The merit system established by this chapter encompasses the following principles: (2) The recruitment, selection and advancement of merit system employees shall be on the basis of their relative abilities, knowledge and skills, including the full and open consideration of qualified applicants for initial appointment; (6) All applicants to and employees of the county merit system shall be assured fair treatment without regard to political affiliation or other nonmerit factors in all aspects of personnel administration. According to Anastasi, these provisions afford him the right to a promotional process in which all candidates are considered openly, equally, and according to relevant (i. e., merit-based) criteria, and in which no candidate is able to benefit from favoritism or cronyism. Anastasi argues further that the procedure outlined in the July 16, 1993 personnel bulletin violated his rights to equal, open and rational consideration under the Montgomery County Charter and the Montgomery County Code because it failed to establish any kind of pro ⁴⁸⁶ motional system which safeguarded those rights. Instead, argues Anastasi, the procedure outlined in the personnel bulletin allowed the Chief of Police to exercise discretion in a way that ignored such rights.

To support his position, Anastasi cites Montgomery County v. Anastasi, 77 Md.App. 126 , 549 A.2d 753 (1988) (hereinafter Anastasi I) 4 , in which this Court held that the provisions of the Montgomery County Charter and the Montgomery County Code cited above mandate promotional procedures which guarantee open, equal, and rational consideration of all candidates. Id. at 135-36 , 549 A.2d 753 . If, in fact, the Department had simply relied upon the procedures outlined in the July 16,1993 personnel bulletin, we would be inclined to agree with Anastasi. Those procedures are very similar to the procedure outlined in former Montgomery County Personnel Regulation 5.6, which provided, in relevant part, that when making promotional decisions, the Chief of Police was “free to choose any individual from the highest rating category based on that person’s overall rating, character, knowledge, skill, ability and physical fitness for the job as well as possible future advancement.” 5 In Anastasi I, this Court specifically disapproved of the use of Regulation 5.6 standing alone.

We held that in light of the requirements of the Montgomery County Charter and the Montgomery County Code, the Chief of Police, “in considering each of the factors enumerated in [Regulation] 5.6 ... must proceed by some system which ensures: fairness; rational, informed decision making; and compliance with the other mandates of both the Charter and Code.” Id. at 136 , 549 A.2d 753 (emphasis in original). ⁴⁸⁷ The problem with such an argument, however, is that in this case (unlike in Anastasi I), the Department did not simply rely on the general guidelines in the personnel regulations and bulletins. 6 Instead, it actually took an additional step, and formulated a promotional procedure known as “rank order with exception.” Under that procedure, when an opening occurred, a committee consisting of the Department’s lieutenant colonel and three majors would meet to discuss the highest-ranked candidate on the two lists. 7 If they had no problem with the candidate, he or she would be promoted. If, however, the committee discovered a problem with the candidate, the problem would be brought to the Chiefs attention, and he would make the decision whether to promote or pass over that candidate. In light of the procedure actually used by the Department, the issue here is not whether the procedure outlined in the July 16, 1993 personnel bulletin violated Anastasi’s rights under the Montgomery County Charter and the Montgomery County Code. Rather, it is whether the procedure actually used by the Department — the “rank order with exception” procedure — violated Anastasi’s rights under the Montgomery County Charter and the Montgomery County Code.

We believe that the “rank order with exception” procedure used by the Department complied with the dictates of the ⁴⁸⁸ Montgomery County Charter and the Montgomery County Code. The fact that promotions were made primarily by rank order, and the fact that problems with each candidate were discussed and analyzed by a committee of high-ranking officers (rather than just one or two) were sufficient to assure that each candidate was considered equally and according to relevant, rational criteria. In this way, this case differs substantially from Anastasi I. There,