Balt. City Detention Ctr. v. Foy

Barbera, C.J. This case involves the State Correctional Officers' Bill of Rights (hereinafter "COBR"), codified in Title 10, Subtitle 9 of the Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article. 1 In particular, we must evaluate the interplay between §§ 10-910(b)(1) and 10-910(b)(6). Section 10-910(b)(1) provides that "[w]ithin 30 days after receipt of" the hearing board's recommended penalty, "the appointing authority shall ... issue a final order." Section 10-910(b)(6) states that "the appointing authority may increase the recommended penalty" if, among other things, the appointing authority "meets with the [charged] correctional officer and allows" the officer "to be heard on the record." The ultimate question posed here is whether § 10-910(b)(1) precludes remanding a case to the appointing authority to cure a procedural defect that occurred at the penalty-increase meeting. Specifically, we must decide whether the appointing authority should have the opportunity to hold another penalty-increase meeting after the thirty-day deadline for issuing a final order when, as happened here, recording equipment malfunctioned during the initial meeting, preventing the substance of that meeting from being captured "on the record." A three-member panel of the Court of Special Appeals, in a split decision, held that the appointing authority's failure to satisfy the "on the record" requirement is incurable after the thirty-day deadline.

Foy v. Baltimore City Det. Ctr. , 235 Md. App. 37 , 174 A.3d 916 (2017). We reach a different conclusion and, consequently, reverse the judgment of the Court of Special Appeals. I. The COBR Statutory Scheme Resolution of the parties' dispute turns largely on the proper interpretation and application of the COBR's disciplinary process, so we begin with some background on the enactment of the COBR and a review of the pertinent statutory framework.

The COBR became effective October 1, 2010. See State Correctional Officers' Bill of Rights, Ch. 194, 2010 Md. Laws 1425 , 1448. Prior to that date, the disciplinary process for state correctional officers was governed by Title 11 of the Maryland Code (1993, 2015 Repl. Vol), State Personnel and Pensions ("SPP") Article.

The intent of the then-new COBR was "to establish exclusive procedures for the investigation and discipline of a correctional officer for alleged misconduct." § 10-902. The General Assembly modeled the COBR after the Law Enforcement Officers' Bill of Rights ("LEOBR"). 2 Ellsworth v. Baltimore Police Dep't , 438 Md. 69 , 91 n.20, 89 A.3d 1183 (2014). Courts therefore look to the LEOBR as an informative source for interpreting the COBR's provisions. See, e.g. , Kearney v. France , 222 Md. App. 542 , 544, 114 A.3d 221 (2015).

The COBR's disciplinary process is straightforward. After receiving a notice of charges recommending termination, a correctional officer has the option to file an appeal with the Secretary of the Department of Public Safety and Correctional Services ("Secretary") or request a hearing before a hearing board. § 10-908(c). The hearing board is composed of correctional officers holding varying ranks within the Department of Public Safety and Correctional Services ("Department"). § 10-909(c)(1)(i). After facilitating a hearing, the hearing board issues a finding of guilty or not guilty and produces a written penalty recommendation. § 10-910(a)(1)-(7).

The hearing board must deliver this report to the "appointing authority of the correctional facility." § 10-910(a)(9)(ii). The "appointing authority" is defined under § 10-901(b) as "an individual ... that has the power to ... terminate employment." 3 The appointing authority of the Baltimore City Detention Center is the Commissioner of the Division of Pretrial Detention and Services ("Commissioner"). § 5-202(c)(4). After receiving the hearing board's decision, the Commissioner has thirty days to issue a final order. § 10-910(b)(1)(ii). The Commissioner is not bound by the hearing board's recommended penalty. § 10-910(b)(3).

If the Commissioner determines that termination of the employee is appropriate, then the Commissioner "shall obtain approval from the Secretary." § 10-910(b)(5). The Commissioner may also increase the hearing board's recommended penalty, with the Secretary's permission, if the Commissioner: (1) reviews the record of the hearing board's proceedings; (2) meets with the correctional officer and allows the officer an opportunity to be heard on the record; (3) provides the officer with any items not included in the hearing board's record that the Commissioner relied on; and (4) describes, in writing, the evidence supporting his decision to increase the recommended penalty. § 10-910(b)(6). Once the Commissioner issues a final order, the correctional officer has a right to seek judicial review. § 10-911.

II

The Present Case Lieutenant Michael Foy ("Foy"), Respondent here, sought judicial review of the decision of Acting Commissioner of the Baltimore City Detention Center, John Wolfe ("Commissioner Wolfe") to terminate him for reasons we next explain. A. The Underlying Incident On January 12, 2014, Foy and Sergeant Jeremiah Green ("Green"), both correctional officers at the Baltimore City Detention Center ("BCDC"), Petitioner, were conducting security rounds at the facility. At some point during their rounds, an altercation ensued between Green and an inmate, during which Green struck the inmate in the face. The inmate then charged at Green, but Green restrained him.

Although the inmate posed no further threat, Foy stepped on his neck, placing the inmate in need of medical care. After the incident, Foy did not report his use of force. Foy ultimately submitted a report, but he omitted material facts about the incident. B. The Disciplinary Proceedings On April 10, 2014, the Department's Human Resources Services Division served Foy with a Notice of Disciplinary Charges ("Notice").

The Notice charged Foy with violating twelve Department policies, as enumerated by various statutes, regulations, and internal guidelines and recommended his termination. On April 16, 2014, Foy exercised his right to a hearing, as provided by the COBR. § 10-908(c)(2). The hearing board conducted a three-day hearing (on September 14, October 5, and October 12, 2015), during which it heard testimony from witnesses called by both BCDC and Foy. On November 16, 2015, 4 the hearing board issued a written decision finding Foy guilty of ten of the twelve disciplinary charges.

The hearing board recommended that he be transferred to Baltimore City Booking and Intake Center and demoted to Sergeant. On November 23, 2015, Commissioner Wolfe received the hearing board's recommendation and, as authorized by § 10-910(b)(6), elected to increase the recommended penalty. On December 9, 2015, Commissioner Wolfe conducted a penalty-increase meeting, as required by § 10-910(b)(6)(ii), with Foy and his attorney. During the meeting, Foy's counsel argued that Commissioner Wolfe should not increase the hearing board's recommended penalty.

After the meeting, Commissioner Wolfe learned that the audio recording equipment had failed; consequently, the meeting was not "on the record," as per § 10-910(b)(6)(ii). The next day, December 10, 2015, Commissioner Wolfe informed Foy's counsel about the recording issue and requested that the parties reconvene for another meeting. That same day, Commissioner Wolfe created a memorandum for the Secretary of Public Safety and Correctional Services, Stephen T. Moyer, memorializing what transpired at the December 9th meeting. The memorandum noted, among other things, that Foy asked for his ten years of service to be considered.

Foy also requested leniency and an opportunity for a second chance, stating, as recounted by the Commissioner, that "if he was given the opportunity to do it all over again, he would have made different choices." The parties were set to meet again on December 17, 2015, but Commissioner Wolfe canceled without explanation on December 16, 2015. Thereafter, Commissioner Wolfe, with Secretary Moyer's approval, issued a final order terminating Foy, effective December 16, 2015. Foy filed a petition for judicial review in the Circuit Court for Baltimore City. There, he argued that Commissioner Wolfe violated his rights under the COBR because the Commissioner increased the hearing board's recommended punishment without properly recording the penalty increase meeting.

Foy requested that the court vacate the termination order and reinstate him with back pay. After a hearing, the court issued an order remanding the case to Commissioner Wolfe to conduct another penalty-increase meeting "so that a complete record of the administrative proceeding is available for ... [j]udicial [r]eview." C. The Appeal Foy noted an appeal to the Court of Special Appeals. A panel of the Court of Special Appeals, in a 2-1 decision, reversed the circuit court's remand order and "reinstate[d] the Hearing Board's penalty recommendation as the final administrative action." Foy , 235 Md. App. at 44 , 174 A.3d 916 . 5 The Majority, relying on cases interpreting similar provisions of the LEOBR, concluded that the COBR's requirements for increasing the hearing board's recommended penalty are mandatory, Hird v. City of Salisbury , 121 Md. App. 496 , 504, 710 A.2d 352 (1998), and, as such, any failure to satisfy those obligations was incurable after thirty days, VanDevander v. Voorhaar , 136 Md. App. 621 , 632, 767 A.2d 339 (2001). Foy , 235 Md. App. at 68 , 174 A.3d 916 .

The Court of Special Appeals therefore held that the "[f]ailure to comply timely with the requirements of Corr. Servs. § 10-910(b)(6) closed the window of opportunity for the appointing authority to increase Foy's penalty beyond that proposed by the Hearing Board." Id. Judge Deborah Eyler dissented, arguing that the text of the COBR and the cases relied upon by the Majority did not support such a rigid result. Foy , 235 Md. App. at 74 , 174 A.3d 916 (Eyler, J., dissenting).

Judge Eyler was of the view that remanding the case to hold another penalty-increase meeting was the proper remedy given the "technical nature of the failure here and the lack of any prejudice to Foy." Id. at 76 , 174 A.3d 916 . On March 6, 2018, we issued a writ of certiorari, Baltimore City Det. Ctr. v. Foy , 457 Md. 660 , 181 A.3d 204 (2018), to analyze the interplay between §§ 10-910(b)(1) and 10-910(b)(6)(ii) and determine whether the Court of Special Appeals erred in holding that the recording issue here was incurable once the thirty-day deadline had passed.

III

Standard of Review The crux of the issue before us is not whether the merits of Commissioner Wolfe's termination order are supported by substantial evidence, but rather whether the penalty-increase process denoted in the COBR is obligatory, and, if so, whether the failure to satisfy one of its steps can be cured retrospectively given the statute's time-restrictive language. These are "purely legal question[s]" involving statutory construction, which we review de novo . Coleman v. Anne Arundel Cty. Police Dep't , 369 Md. 108 , 122, 797 A.2d 770 (2002).

The parameters of statutory construction are well defined. Our ultimate objective is to ascertain "the real intention of the Legislature." Fisher v. E. Corr. Inst. , 425 Md. 699 , 706, 43 A.3d 338 (2012) (quoting In re Gloria H. , 410 Md. 562 , 579-80, 979 A.2d 710 (2009) ). We start by looking at the statute's plain language, "reading the statute as a whole to ensure that no word ... is rendered [meaningless]." Lowery v. State , 430 Md. 477 , 490, 61 A.3d 794 (2013) (quoting Doe v. Montgomery Cty.

Bd. of Elections , 406 Md. 697 , 712, 962 A.2d 342 (2008) ). "If the plain language of the statute is ... unambiguous, the process ends," Fisher , 425 Md. at 706 , 43 A.3d 338 (quoting Breslin v. Powell , 421 Md. 266 , 287, 26 A.3d 878 (2011) ), and we "apply the statute as written," Carven v. State Ret. & Pension Sys. of Md. , 416 Md. 389 , 407, 7 A.3d 38 (2010) (quoting Crofton Convalescent Ctr., Inc. v. Dep't of Health & Mental Hygiene , 413 Md. 201 , 216, 991 A.2d 1257 (2010) ). If, however, the statute's words are ambiguous, then we utilize additional sources to aid our analysis, including "legislative history, prior case law, statutory purpose and statutory structure." Fisher , 425 Md. at 707 , 43 A.3d 338 (citation omitted). "Throughout this process, we avoid constructions that are illogical[,] nonsensical[,]" or overly stringent.

In re J.C.N. , 460 Md. 371 , 391, 190 A.3d 329 (2018) (citation omitted).

IV

Discussion While we concur with much of the well-written and thorough Majority opinion of the Court of Special Appeals-specifically regarding the trigger event for initiating the thirty-day timeframe under § 10-910(b)(1) and the obligatory nature of the procedural steps enumerated in § 10-910(b)(6)-we ultimately agree with the dissent that the proper outcome here is to remand this case to Commissioner Wolfe to hold another penalty-increase meeting with Foy. A. Trigger for the Thirty-Day Deadline We start by addressing a matter no longer in dispute, that is, when the thirty-day deadline set forth in § 10-910(b)(1) begins. We agree with our colleagues on the Court of Special Appeals that the clock for the Commissioner's issuance of a final order begins to run when the Commissioner receives the hearing board's recommendations. 6 One need only look to subsections (a) and (b) of § 10-910 to reach this conclusion. Section 10-910(a)(9) states, in relevant part, "[a] copy of the [hearing board's] decision ... shall be delivered ... promptly to ... the [Commissioner]." (Emphasis added).

The ensuing subsection, § 10-910(b)(1), states, in pertinent part, "[w]ithin 30 days after receipt " of the hearing board's recommendations, the Commissioner "shall ... issue a final order." (Emphasis added); see also Black's Law Dictionary 1459 (10th ed. 2014) (defining "receipt" as "taking physical possession" of an object). When reading these provisions together, as we must, it is clear that "receipt" in § 10-910(b)(1) refers to the Commissioner's receipt of the hearing board's decision under § 10-910(a)(9). See In re J.C.N. , 460 Md. at 392 , 190 A.3d 329 (illustrating that the canons of statutory construction require reading a statute's provisions together and not in isolation, particularly when they are part of the same section). Only when the Commissioner has received the hearing board's decision-i.e., is in actual physical possession of it-does the thirty-day countdown begin.

This conclusion is further supported by the fact that only the Commissioner can issue a final order, § 10-910(b)(2), and to do so, he or she must first satisfy various procedural requirements. See § 10-910(b). We agree with the Court of Special Appeals that if the clock for the thirty-day deadline began to run when the hearing board issued its decision, "[i]t would result in a diminished 30-day window" for the Commissioner to satisfy these obligations, as there is an inevitable delay between when the hearing board issues its recommendations and when the appointing authority receives those recommendations. Foy , 235 Md. App. at 60 , 174 A.3d 916 .

Accordingly, Commissioner Wolfe's final order, which he issued twenty-three days after receiving the hearing board's recommendation, was timely. B. Obligatory Nature of the Penalty-Increase Process BCDC and Foy disagree about whether the procedural steps in § 10-910(b)(6) are obligatory. Foy argues that every pre-condition is mandatory-"[e]very step must be taken" before a penalty is increased. Foy cites to the Court of Special Appeal's decision in Hird to support his assertion. 121 Md. App. at 504 , 710 A.2d 352 (holding that until the appointing authority satisfied every pre-condition for increasing the hearing board's penalty, any increase is "not validly taken and [cannot] be final").

BCDC takes a different approach. It highlights the contrast between the language describing the LEOBR's penalty-increase process and the COBR's analogous provision. The LEOBR states that the head of the law enforcement agency ("the chief") "may increase the recommended penalty of the hearing board only if the chief personally " satisfies four requirements. Md. Code, (2003, 2011 Repl.

Vol), § 3-108(d)(5) of the Public Safety ("Pub. Safety") Article (emphasis added). The corresponding COBR section is phrased identically, except that the words "only" and "personally" are omitted. See § 10-910(b)(6).

This exclusion, BCDC contends, is "consequential" because it demonstrates the legislature's "rejection of LEOBR's strict, restrictive language." BCDC concludes that, unlike the LEOBR, the COBR does not mandate strict compliance with the penalty-increase process. We agree with Foy. The canons of statutory construction lead to the same result under both statutes: the appointing authority must satisfy all the procedural steps before issuing a penalty increase. The omission in § 10-910(b)(6) of the word "personally" is insignificant.

The statute provides that only the appointing authority has the power to increase a correctional officer's penalty, § 10-910(b)(2), and only the Commissioner of the Division of Pretrial Detention Services is designated as the appointing authority for BCDC, § 5-202(c)(4). Because there is only one Commissioner, it follows that only he or she can "personally" increase a penalty under the COBR. § 5-202(a) (stating that the "Secretary shall appoint a Commissioner of Pretrial Detention Services") (emphasis added). We are similarly unconvinced that exclusion of the word "only" has any significance. What matters in statutory construction is not the uniformity of similarly-worded statutes, but rather the plain language of the statute before us.

See Fisher , 425 Md. at 706 , 43 A.3d 338 . The plain language of § 10-910(b)(6) states: [T]he appointing authority may increase the recommended penalty of the hearing board if the appointing authority : (i) reviews the entire record of the proceedings of the hearing board; (ii) meets with the correctional officer and allows the correctional officer to be heard on the record; (iii) at least 10 days before the meeting, discloses and provides in writing to the correctional officer any oral or written communication not included in the record of the hearing board on which the decision to consider increasing the penalty is wholly or partly based; and (iv) states on the record the substantial evidence on which the appointing authority relied to support the increase of the recommended penalty. (Emphasis added). Three aspects of this provision illustrate its obligatory nature.

First, the legislature's use of the word "if" restricts the Commissioner's ability to issue a penalty increase until certain conditions have occurred. See If , OXFORD ENGLISH DICTIONARY , http://www.oed.com/view/Entry/91152 [https://perma.cc/7LWU-7KLT] (last visited Nov. 19, 2018) (defining "if" as "[i]ntroducing a clause of condition"). Second, that restriction is followed by a colon, which introduces a list, meaning the list specifies the preconditions for increasing a penalty. See THE CHICAGO MANUAL OF STYLE ¶ 6.63 (15th ed. 2003).

Finally, that list is connected by an "and," signifying that the Commissioner must satisfy each item in the list to issue a penalty increase. See MARYLAND STYLE MANUAL FOR STATUTORY LAW , Department of Legislative Services (July 2008) at 19. 7 The items in the list therefore together constitute a condition precedent for increasing the hearing board's recommended penalty, and only when that condition precedent is satisfied, does the Commissioner possess the authority to increase the penalty. See Fraternal Order of Police, Montgomery Cty. Lodge No. 35 v. Mehrling , 343 Md. 155 , 177, 680 A.2d 1052 (1996) (citation omitted) ("Where a statute establishes a condition