Balt. Police Dept v. Brooks

Baltimore Police Department v. James Brooks et al. Case Nos. 979, 980, 982, 983, 985, 988, 989, 991, 992, 993, 994, September Term 2019, Argued, 05/12/2020 Opinion by Harrell, J. HEADNOTE PUBLIC SAFETY – LAW ENFORCEMENT OFFICERS’ BILL OF RIGHTS – FILING ADMINISTRATIVE CHARGES For a police department to “file[] the charges” under Md. Code, Pub. Safety § 3-106(a) in an administrative disciplinary action against an officer, it must act with some level of formality. The Baltimore City Police Department’s practice was to require a signature as the final step before charges may be served upon an officer. As the signatures in each of the disciplinary action cases here were affixed on dates after the expiration of the one-year limitation period in § 3-106, the police department failed to charge timely the covered officers.

The circuit court was correct in dismissing the charges. Circuit Court for Baltimore City Case No. 24-C-19-001466, 67, 68, 69, 70, 71, 72, 1126, 1321, 1324, 1325 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 979, 980, 982, 983, 985, 988, 989, 991, 992, 993, 994 September Term, 2019 _____________________________________ BALTIMORE POLICE DEPARTMENT v. JAMES BROOKS, ET AL. _____________________________________ Meredith, Beachley, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. _____________________________________ Opinion by Harrell, J. _____________________________________ Filed: July 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2021-01-11 17:40-05:00 Suzanne C. Johnson, Clerk “When will you make an end? When I am finished.” Exchange between Pope Julius II (Rex Harrison) and Michelangelo (Charlton Heston) (regarding painting the ceiling of the Sistine Chapel), “The Agony and the Ecstasy” (1965, 20th Century Fox).

These cases1 call upon us to engage in the frequent judicial task of interpreting ambiguous language in a State statute—in this case, the Law Enforcement Officers’ Bill of Rights (“LEOBR”).2 In doing so, we must reconcile the policy and practice of a specific police department regarding that interpretation. This enactment regulated principally the administrative process of how covered law enforcement employers investigate, charge, and discipline their covered law enforcement personnel with regard to misconduct deemed to have violated applicable laws, departmental regulations, and departmental policies. The present cases focus on a single provision of the LEOBR, codified originally as Md. Code, Art. 27 § 730(b)(1) in 1988, and revised in Md. Code, Pub. Safety § 3-106(a) in 2003 (without substantive change), that established a one-year period for the employer to decide whether to charge an employee and the required act for tolling that limitation period.

The provision states that: [A] law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 1 Eleven cases, involving a total of fifteen police officers, are consolidated for purposes of this opinion because each case poses the same legal question. 2 LEOBR was adopted originally by the Maryland General Assembly in 1974 (1974 Md. Laws Chap. 722). year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.[3] The parties disagree over what constitutes the filing of charges. The Legislature did not provide a definition in the LEOBR. The relevant legislative history does not contain a clear clue as to what would satisfy the act of filing of charges. This Court has twice considered related questions regarding § 3-106(a), but neither involved circumstances like those in the present cases, though there is much in the opinions in those two cases that we find helpful here, as we shall explain shortly.

See Wilson v. Baltimore City Police Department, 91 Md. App. 436 (1992); see also Prince George’s County Police Department v. Zarragoitia, 139 Md. App. 168 (2001). I. In enacting LEOBR, the Legislature appears to leave to local police departments the task of putting in place their own policies and practices regarding what constitutes the filing of charges. The Baltimore Police Department (“BPD”) enacted a departmental written policy it believes complies with the LEOBR regarding administrative discipline of its officers. Seeking discipline against the fifteen officers here, the BPD deemed the charges filed when, during closed-door committee meetings4—the records in these cases contain no evidence of any minutes of the meetings assertedly kept and which, even assuming minutes were kept, would not be given to or made available otherwise to an ultimately 3 Emphasis is added to highlight the key phrase which is in dispute. 4 By “closed-door committee meetings,” we mean that only departmental personnel attended, but did not include the officer against whom a complaint was lodged or his/her counsel or union representative. 2 charged officer—held during the required one-year period, the police commissioner’s designee orally approved the charges.

In every case, however, the police commissioner’s designee (who attended reportedly the committee meetings in person or by phone) did not memorialize in writing his alleged oral approval until after the expiration of the one-year limitation period. Nonetheless, the BPD urges that the oral approval given by the commissioner’s designee at the meeting was sufficient to toll the limitation period. The officers sued in the Circuit Court for Baltimore City to foreclose the adjudication of the charges brought against them because the limitation period under § 3- 106(a) had run before the commissioner’s designee evinced timely his approval of filing charges by signing the required paperwork generated by the closed meetings.5 The circuit court determined that the phrase “files the charges” in § 3-106(a) “requires some measure of formality,” in order to provide a court with a means to review the action should an officer seek a judicial remedy. The court determined that the BPD had installed a practice or policy of requiring the commissioner’s designee’s signature on the final draft of a charging document.

As a result, the one-year limitation period had run for each of the fifteen cases. The circuit court dismissed the charges. The BPD appealed timely.

II

A. Background – In a Nutshell 5 When an officer is denied a right granted by the LEOBR, he or she may apply to a circuit court for an order “that directs the law enforcement agency to show cause why the right should not be granted.” Md. Code, Pub. Safety § 3-105(a). 3 Md. Code, Pub. Safety § 3-106(a) states, as noted earlier, that: A law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 year after the act that gives rise to the charges comes to the attention of the appropriate agency official. As noted earlier, no further explanation, elaboration, or definition is provided in the statute regarding the phrase “files the charges,” or in the legislative history of each relevant enactment.

In the absence of legislative direction on when charges are deemed to be filed, police departments are left to adopt their own policies and/or practices regarding the administrative disciplinary process. The BPD adopted a relevant written policy, Policy 308, on 13 September 2017. It states, in relevant part, that its Office of Professional Responsibility (the “OPR”) shall investigate allegations of misconduct by officers and determine whether the allegations are sustained.6 If the allegations are deemed sustained, the OPR submits proposed charges to the Disciplinary Review Committee (the “DRC”). The DRC, consisting of sworn and civilian members of the BPD appointed by the police commissioner, review the factual findings of the OPR and reputedly a draft of proposed charges, before making a recommendation for discipline.

Once the DRC crafts its recommendations, the police commissioner’s designee7 is tasked with approval responsibility over the recommendations, “as is” or as may be 6 “Sustained” means that, by a preponderance of the evidence, the record before the OPR establishes that the alleged misconduct occurred. 7 Although the police commissioner is authorized to perform this function personally, on the record before us, it was the police commissioner’s designee who attended the DRC meetings. 4 amended. It is claimed by the BPD that the designee’s approval occurs verbally initially at the closed-door DRC meeting. According to the “Disciplinary Flow Chart” contained in Policy 308, the commissioner’s designee’s approval of charges is the final step prior to serving charges on the officer in question, who then either may accept or contest the discipline. Neither the flow chart, nor the text of Policy 308, addresses, however, how or when in the process the commissioner’s designee’s final approval is evinced.

The Policy fails also to provide a definition for when the charges are deemed filed. It has been, at all times relevant to the present cases, the practice of the BPD that, at some point following completion of a DRC meeting, a member of the DRC and the commissioner’s designee, respectively, sign a form titled “Baltimore Police Department Internal Affairs Transmittal Cover,” referred to also as the charging document. This document lists the accused officer, the investigated allegations, whether the allegations were sustained, a summary of the facts, and a handwritten recommendation for discipline. Notably, on pages 4-6, the form document provides signature and dating lines.

These lines are signed and dated by first the DRC representative and then the commissioner’s designee, which acts may be concurrent or sequential. It also has sections displaying the date the charged officer is served and acknowledgement of service.8 Counsel for BPD, at the final hearing before the circuit court regarding the present cases, claimed that the BPD did not require the execution of this document by the DRC representative or the commissioner’s 8 The acknowledgement of service section provides the officer with three options: 1) Acceptance of Punishment; 2) Acknowledgement of Non-Punitive Counseling and/or Training; or 3) Request for an Administrative Hearing Board. 5 designee as part of the disciplinary process described in Policy 308; however, counsel acknowledged also that, to her knowledge, the BPD had never participated in a hearing based on charges without the signature of approval by the commissioner’s designee. In each of the cases, the commissioner’s designee’s signature on the form signifying approval was not affixed until after the expiration of the one-year period.9 The record contains no basis for determining what any draft charges may have looked like if presented to the DRC and, therefore, there is no basis to compare them to the final charges served upon the officers. Thus, we have no way of knowing whether amendments were made between the DRC meetings and the sign-offs by the commissioner’s designee.

B. More Background – A Deeper Dive The BPD received a complaint regarding Officer James Brooks on 3 October 2017. Officer Brooks was alleged to have failed to secure a building properly while detectives were seeking a search warrant for the premises. The DRC met to review the OPR findings and consider a discipline recommendation on 2 October 2018.10 The commissioner’s designee signed-off on final charges and discipline on 4 October 2018. The BPD received a complaint regarding Officer Damond Durant on 10 November 2017.

Officer Durant was alleged to have failed to identify himself as a police officer and 9 In three instances, for unexplained reasons, officers were served prior to the commissioner’s designee signing-off on the final charging documents. Those charges were against Officers Damond Durant and Jonathan Boyer and Sergeant Steve Histon. We concluded in Wilson v. Baltimore City Police Dept. that providing notice to a police officer is not the same as filing the charges. 91 Md. App. 436 (1992). Thus, the early notice to these three officers plays no substantive role in our analysis of the question at hand. 10 In each case, the DRC meeting occurred within 365 days of the BPD learning of the complaint. 6 to have displayed his handgun during an off-duty encounter with two individuals suspected to be engaged in a crime.

The DRC met to review the OPR findings and consider a discipline recommendation on 8 November 2018. The commissioner’s designee signed- off on final charges and discipline on 31 January 2019. The BPD received a complaint regarding Sergeant Jared Fried on 18 October 2017. Sergeant Fried was alleged to have failed to: provide an individual stopped during an investigative traffic stop with a citizen contact receipt before he left the scene, to obtain a central complaint number; and, to document the stop properly.

The DRC met to review the OPR findings and consider a discipline recommendation on 17 October 2018. The commissioner’s designee signed-off on final charges and discipline on 13 November 2018. The BPD received a complaint regarding Sergeant Steve Histon and Officer Jonathan Boyer on 27 September 2017. Officer Boyer was alleged to have failed to write a report or take proper enforcement action after stopping four suspects, i.e., recovering the cell phone of an alleged robbery victim.

Sergeant Histon was alleged to have failed to ensure Officer Boyer documented the alleged robbery properly and otherwise failing to supervise his units. The DRC met to review the OPR findings and consider a discipline recommendation on 26 September 2018. The commissioner’s designee signed-off on final charges and discipline on 4 October 2018. The BPD received a complaint regarding Officer Norman Jones on 10 November 2017.

Officer Jones was alleged to have acted disrespectfully toward staff and failed to follow a direct order and to write an administrative report explaining why he was missing equipment and in possession of malfunctioning equipment at an annual Taser 7 recertification class. The DRC met to review the OPR findings and consider a discipline recommendation on 9 November 2018. The commissioner’s designee signed-off on final charges and discipline on 13 November 2018. The BPD received a complaint regarding Sergeant Denishia Jordan on 18 December 2017.

Sergeant Jordan was alleged to have been “disrespectful, insubordinate, and/or aggressive towards” her captain. The DRC met to review the OPR findings and consider a discipline recommendation on 13 December 2018. The commissioner’s designee signed- off on final charges and discipline on 4 January 2019. The BPD received a complaint regarding Officer Latasha McBride on 12 October 2017.

Officer McBride was alleged to have challenged the authority of a commanding officer and to have laughed at an instruction provided by the same officer. The DRC met to review the OPR findings and consider a discipline recommendation on 11 October 2018. The commissioner’s designee signed-off on final charges and discipline on 16 October 2018. The BPD received a complaint regarding Officers Raul Rivera and Ryan Oliver on 16 December 2017.

Officer Oliver was alleged to have failed to write a report on an assault incident. Officer Rivera was alleged to have failed to ensure that Officer Oliver wrote the report. The DRC met to review the OPR findings and consider a discipline recommendation on 13 December 2018. The commissioner’s designee signed-off on final charges and discipline for Officer Oliver on 4 January 2019 and for Officer Rivera on 7 January 2019. 8 The BPD received a complaint regarding Officer Richard Whittaker on 6 January 2018.

Officer Whittaker was alleged to have been inebriated and in possession at the time of his approved and loaded off-duty weapon. The DRC met to review the OPR findings and consider a discipline recommendation on 3 January 2019. The commissioner’s designee signed-off on final charges and discipline on 7 January 2019. The BPD received a complaint regarding Sergeant Larry Worsley on 22 December 2017.

Sergeant Worsley was alleged to have harassed another officer over a ten-month period, challenged the same officer to a fist fight, and intimidated the officer such that he began to fear for his life. The DRC met to review the OPR findings and consider a discipline recommendation on 21 December 2018. The commissioner’s designee signed- off on final charges and discipline on 4 January 2019. The BPD received a complaint regarding Officers Kent Sowers, Eric Baublitz, and Isiah Smith on 18 January 2018.

The Officers were alleged to have conducted an illegal search at an incorrect address when responding to an alarm call. Officers Sowers and Baublitz were alleged also to have deactivated their body cameras. The DRC met to review the OPR findings and consider a discipline recommendation on 16 January 2019. The commissioner’s designee signed-off on final charges and discipline on 29 January 2019.

Each officer filed a petition for a show cause order from the Circuit Court of Baltimore City, alleging the BPD failed to file the charges timely, pursuant to Md. Code, Pub. Safety § 3-106(a). The circuit court held a hearing 14 June 2019. The judge determined that the BPD failed to satisfy the one-year limitation period.

Although praising generally the BPD’s procedure for handling charges against officers, the hearing judge 9 noted that a definition for what it means to “file” the charges under § 3-106(a) was never established, e.g., Policy 308 did not state “whether filing occurs upon signing or not signing [the departmental approved form] or oral approval or not oral approval [at the closed DRC meeting].” The court determined that the BPD was not due judicial deference to its Policy in this regard because it “does not give a definition parallel to the statute such that [the trial court] would have to decide whether the Police Department’s adopted definition is consistent with the statute and the General Assembly’s intent or not.” Ultimately, the court concluded that the language of the statute “require[d] some measure of formality” in departmental action evincing the filing of charges. Although that “formality [is] not [the] equivalent of a court filing where there’s a clerk’s office charged with maintaining records,” there must be a “way that that step in the process of approving charges can be examined and scrutinized by the court” because the “statute provides remedies for the officer to come to court . . . to challenge whether the charges have been brought timely or not.” Although “a signature is not necessarily required,” a signature is, according to the court, “what the Department has adopted” through its practice of having the commissioner’s designee and a DRC member (on behalf of the DRC) sign and date their respective approvals of the final charging document: The charges that [the BPD] issues give places for the signatures and the date on which signed, which suggests that the Department treats the approval as being when it is signed. As the commissioner’s designee’s signature was affixed after the one-year limitation period expired, the court dismissed all charges against the officers. 10 III. QUESTION PRESENTED Appellant frames one question for our consideration, which we have rephrased non- substantively: I. Did the circuit court err in its determination that the charges against appellees/officers were not filed timely within the one-year statutory limitation as required by Md. Code, Pub.

Safety § 3-106(a) when the police commissioner’s designee approved the discipline prior to exhaustion of the one-year period but failed to sign the charging documents until after exhaustion?

IV

RELEVANT GENERAL STANDARDS OF REVIEW When reviewing an action tried without a jury, we review the judgment of the trial court “on both the law and evidence.” Banks v. Pusey, 393 Md. 688, 697 (2006). We defer to the circuit court’s findings of fact, except where “the judgment of the trial court on the evidence [is] clearly erroneous.” Md. Rule 8-131(c). Despite the deference given to its findings of fact, legal analysis by a trial court receives no deference. Friendly Fin.

Corp. v. Orbit Chrysler Plymouth Dodge Truck, Inc., 378 Md. 337 , 342–43 (2003). In that vein, “[s]tautory construction is a legal question,” which we review using a non-deferential standard. Miller v. Mathias, 428 Md. 419, 450 (2012). V. DISCUSSION The BPD argues that it, through its adherence to Policy 308, complied with Md. Code, Pub.

Safety § 3-106(a) and filed the charges within one year of when it was put on notice of alleged misconduct. As there was no regulatory definition to determine what constituted filing of charges in the Policy, the BPD claims it complied with the statute by 11 the act of the commissioner’s designee approving verbally the proposed charges and discipline at the DRC meetings. As this argument continues, although a form document calling explicitly for a signature and date of signing of the charges contemporaneous with or following the DRC meeting was a part of departmental practice, signing of the form document was not significant for purposes of determining when filing occurs as it was nothing more than a form of proof of the earlier verbal approval by the commissioner’s designee, rather than the approval in and of itself. The filing occurs when the designee approves verbally at the DRC meeting the recommended discipline because the final step in Policy 308, before presenting charges to the officer, is titled “Presentation of Disciplinary Recommendation.” The BPD claims also that its interpretation of what it means to file the charges is due deference from a reviewing court.

Appellees do not dispute a number of the claims about the LEOBR made by the BPD.