Biscoe v. Baltimore City Police Department

WILNER, Chief Judge. These consolidated appeals arise from the dismissal of two Baltimore City police officers, Mark Biscoe and Sharon Sheckells, for “unsatisfactory performance.” Three appeals are now before us — one from a summary judgment entered by the Circuit Court for Baltimore City denying appellants’ prehearing request to enjoin the Police Department from proceeding with the dismissal actions, and one each from the affirmance by that court of the Police Commissioner’s orders, entered upon the recommendation of a disciplinary hearing board, dismissing the two officers. I. Introduction Although a number of specific issues are raised in these appeals, essentially the appeals arise from a conflict between two independent policies relating to police officers who are injured to the point that they can no longer perform the duties of their job. One policy is expressed in the retirement laws governing such officers — in particular art. 22, § 34 of the Baltimore City Code; the other emanates from General Orders of the Police Commissioner dealing with medical leave and the need to have authorized positions in the Police Department filled with individuals capable of adequately discharging the duties of those positions.

Each policy has a different focus and each is entirely reasonable in its own right. When they clash, however, as they do in these cases, they can create an unacceptable unfairness to police officers, to the point that one of the policies must yield to the other. Both the potential for conflict and actual conflict, when it occurs, proceed directly from the fact that the two policies are administered by different entities, without any required coordination between them. A. Retirement Policy Art. 22, §§ 30-45 create a retirement system for fire and police employees in Baltimore City.

The system is generally ⁵ administered by a nine-person Board of Trustees, but the final administrative decision as to whether an employee is eligible for a disability retirement is made by a hearing examiner selected from a panel of examiners appointed by the City Board of Estimates. See § 33. In addition to normal service retirement after 25 years of service or attaining age 50, the law provides two kinds of disability retirement — ordinary disability retirement, described in § 34(c), and special disability retirement, described in § 34(e). The special disability retirement provides greater benefits but is available only if the disability results from an injury arising out of and in the course of the actual performance of duty.

We are concerned here with § 34(e), which states: “Any member who has been determined by the hearing-examiner to be totally and permanently incapacitated for the further performance of the duties of his job classification in the employ of Baltimore City, as the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on his part, shall be retired by the Board of Trustees on a special disability retirement.” As noted, the decision as to whether an employee is entitled to such retirement is made by a hearing examiner, whose decision, favorable or unfavorable, may be appealed to the Circuit Court for Baltimore City and thence to this Court. § 33. If a person who has been granted a special disability retirement is later found to have become “fit to resume duties in the classification in which he was performing duties at the time of his retirement,” he or she may be restored to active service. § 34(g). The law is not clear as to whether the agency is required to accept the employee back. It does provide that, until such time as the retiree “is actually reemployed he shall continue to receive his disability retirement allowance,” but that if, after being certified as fit, he or she “refuse[s] to accept an offer of reemployment ... in the classification in which he was performing duties at the time of his retirement ... all rights in and to his pension shall be ⁶ revoked by the Board of Trustees, upon recommendation made by the Panel of Hearing Examiners.” Id.

This law was recently construed by the Court of Appeals in City of Baltimore v. Hackley, 300 Md. 277 , 477 A.2d 1174 (1984). The question there was whether police officers found by a hearing examiner to be “ ‘mentally or physically incapacitated for the further performance of the duties of [their] job classification’ ” were “ ‘totally and permanently incapacitated for the further performance of the duties of [their] job classification’ ” when they were capable of performing “some, but not all, of the duties of their job.” Id: at 279, 477 A.2d 1174 . The more specific question was whether there was a different standard in this regard between an “ordinary” disability retirement under § 34(c) and the “special” disability retirement under § 34(e). The Court concluded that there was not — that the standard in both cases was total and permanent incapacity — but found itself unable to resolve the broader question on the record before it.

It therefore remanded the case for further consideration of “the proper definition of incapacitated.” Id. at 290, 477 A.2d 1174 . In that regard, it directed that several questions be answered: “For example, is it in fact a practice of the Baltimore City Police Department to assign personnel to regular, permanent, full-time, light duty jobs which are within the job classification of police officer? Have the police officers assigned to such positions in the past been those with physical limitations, those who are completely physically fit, or both? Is each claimant in the cases before us assigned to such a position?

Finally, is each claimant able to perform the duties of the position to which he has been assigned?” Id. Those questions were answered on remand. A hearing examiner determined that it was the practice of the Police Department to assign personnel to “regular, permanent, full-time light duty jobs” (emphasis added) and that the light duties assigned to the officers in question were “ “within the job classification of police officers.’ ” Hackley v. City of Baltimore, 70 Md.App. 111, 116-17 , 519 A.2d 1354 (1987). ⁷ Because the officers were assigned to such light duties and were found able to perform them, the examiner concluded that they were not totally and permanently incapacitated for purposes of § 34(e) and thus, once again, denied a special disability retirement. We affirmed.

By virtue of the two Hockley cases, it seems clear that an officer who is assigned to a light duty position with the Department and who is capable of performing the duties of that position is not “totally and permanently incapacitated for the further performance of the duties of his job classification” and is therefore not entitled to either an ordinary disability retirement under § 34(c) or a special disability retirement under § 34(e). It is also apparent that such light duty positions are full-time, not part-time, positions, requiring that the officer work a full shift five days a week. B. Medical Leave Policy — Non-Performance of Assigned Duties The other policy affecting injured officers emanates from General Orders 15-87 and 2-88, issued by the Police Commissioner pursuant to his statutory authority to adopt rules and regulations “as may be necessary for the good government of the Department and of its members.” Code of Public Local Laws of Baltimore City, § 16-7(8) (1980). General Order 15-87 sets forth the Department’s medical program.

One part of it, contained in Annex A to the General Order, states, in relevant part: “Baltimore Police Department employees are provided sick leave benefits in keeping with the following: 1. Under the direction of the Chief Police Physician all sworn personnel are entitled to sick leave as may be required to recover from illnesses/injuries.” General Order 2-88 contains the general rules and regulations governing the Department. Rule 1 deals with conduct of Departmental employees, and § 19 of that Rule provides, in relevant part, that members of the Department “shall be held strictly responsible for the proper performance of their duties,” that unsatisfactory performance may be demonstrated ⁸ by “an unwillingness or inability to perform assigned tasks,” and that the following would also be considered prima facie evidence of unsatisfactory performance: “[Repeated inability to perform assigned duties in a satisfactory manner due to physical, mental, or emotional incapacitation” and “repeated inability to perform assigned duties in a satisfactory manner due to physical infirmity or mental/emotional incapacitation.” Section 16-ll(a) of the City’s Public Local Laws makes clear that a police officer who has completed his or her probationary period and who does not otherwise serve at the pleasure of the Commissioner may be dismissed “only for cause, in accordance with rules, regulations, or orders to be prescribed by the Commissioner.” Section 16 — 11(b) affords an officer against whom charges have been filed the right to a hearing before a disciplinary hearing board. The Commissioner may then (1) review the findings and conclusions of such a board and affirm, reverse, or modify its decision (§ 16-11(d)), and (2) “impose such punishment as shall be deemed appropriate under the circumstances, including ... dismissal” (§ 16-ll(c)).

One of the issues raised in this appeal, and that we shall hereafter address, is the relationship between the two General Orders noted above. The Department’s position is that, if an officer is sufficiently incapacitated to be unable, repeatedly, to perform his or her assigned duties, the officer, after a hearing before a disciplinary board, may be discharged for unsatisfactory performance. The issue, which this long preface introduces, is whether an officer may be dismissed for unsatisfactory performance upon a finding by a disciplinary board that the officer is unable by reason of physical incapacity to perform his or her assigned duties when an examiner acting under art. 22, § 34 has concluded that the officer is not totally and permanently incapacitated for the further performance of the duties of his or her job and, for that reason, is not entitled to a disability retirement. What happens, in other words, when the examiner declares that the officer is not so incapacitated as to be eligible for retirement because he or she can perform light ⁹ duty and the disciplinary board declares that the officer has been unable to perform those duties by reason of injuries sustained in the line of duty?

That is essentially what occurred in these cases.

II

Procedural History On September 10, 1991, the Personnel Division of the City Police Department filed separate charges against Officers Biscoe and Sheckells, charging each with a violation of General Order 2-88, Rule 1, § 19. The specification asserted against Officer Biscoe was that, commencing with his entry on duty as a cadet in 1980 and continuously thereafter, he “has made excessive use of medical leave resulting in his having been unavailable for the assignment of any duties at those times thereby demonstrating unsatisfactory performance.” Almost precisely the same specification was asserted against Officer Sheckells, except that it covered the period commencing March 28, 1988. It is important at this point to stress that neither officer was charged with taking any medical leave to which he or she was not entitled. General Order 15-87 which, as noted, sets forth the Department’s medical leave policy, carefully distinguishes between “Medical Abuse,” which it defines as “[a] deceitful or deceptive use of medical leave ... not necessitated by verified illness or injury,” and “Excessive Medical Leave,” which it defines, in relevant part, as “[a] condition in which more than normal, reasonable, or expected leave is utilized, either for verified medical problems or through flagrant abuse of medical leave privilege.” At no point did the Department charge either officer with Medical Abuse.

Nor was there any evidence that either officer, from and after their respective line-of-duty accidents, could have worked days or hours for which they took leave. The thrust of the charges was that the officers, due to their respective disabilities, were unable to perform their assigned tasks — Sheckells was unable to work more than four or five hours a day and Biscoe was unable to work a five-day week. The medical leave was thus “excessive” in relation to the number of hours required to be worked, not ¹⁰ in relation to the nature or extent of their respective disabilities. The problem, as explained at oral argument, was simply that the officers were repeatedly unavailable to work the required number of hours and days, even in the light duty positions to which they were assigned.

In each case, a hearing before a disciplinary board was scheduled for late October, 1991. Taking the offensive, the two officers filed a complaint in the Circuit Court for Baltimore City on October 21, 1991, seeking to enjoin the Department from proceeding with the prosecution of those charges. Three grounds were asserted in the complaint for such an injunction: (1) that Departmental General Order 15-87 allows police officers unlimited medical leave, that that Order constituted a contract between the Department and the officers, and that the prosecution of the charges proferred against the officers would constitute a breach of that contract; (2) that prosecution of the charges would also constitute an unlawful attempt to evade the special disability retirement provisions of Baltimore City Code, art. 22, § 34(e); and (3) that prosecution would violate Md.Ann. Code art. 27, § 730(b) — part of the Law Enforcement Officers Bill of Rights (LEOBR) — because it was commenced more than one year after the charges “came to the attention of the Department.” The administrative hearings were deferred pending resolution of the court action. On November 14, 1991, the court, in a brief order, granted the Department’s motions for summary judgment and denied appellants’ cross motions.

An appeal was noted from the judgments, but it was stayed pending the administrative proceedings. The two officers then filed an action- in the United States District Court alleging that the impending administrative proceeding would violate their rights under the Rehabilitation Act of 1973 ( 29 U.S.C. § 794 ) as well as under 42 U.S.C. § 1983 . The thrust of the Federal action, as characterized by Judge Smalkin in granting summary judgment to the Department, was the assertion that the Department “is obliged not to discipline them for excessive use of sick leave, but, rather, to accommodate them by assigning them to limited duty jobs ¹¹ that would be compatible with their physical conditions.” Judge Smalkin viewed the Federal action as arising “from the same transaction or core of operative facts” as the State action and thus entered summary judgment for the defendants based on res judicata, declaring that appellants had “simply conceived of additional theories of law supporting [their] quest for relief from the ongoing disciplinary proceedings” and that “[n]ew legal theories will not suffice to relieve the bar of claim preclusion.” The defendants’ judgments were entered by the District Court on January 23, 1992. Appellants appealed to the U.S. Court of Appeals for the Fourth Circuit but later, in March, 1992, dismissed that appeal.

The administrative proceedings commenced in December, 1991 — before completion of the Federal action. In each case, the officer attempted to raise before the disciplinary board, through a motion to dismiss the proceeding, the breach of contract issue rejected by the circuit court in the injunction proceeding and the Rehabilitation Act complaint made in the Federal case. Those motions were denied and the disciplinary board proceeded to hear evidence on the merits of the charge. At the conclusion of the hearing, in each instance, the board recommended that the officer be dismissed, and, in each instance, the Police Commissioner concurred and dismissed the officer.

The officers appealed those decisions to the circuit court which, on July 21, 1992, affirmed. A. Facts Regarding Officer Biscoe Biscoe joined the Department as a cadet in March, 1980. He completed the police academy in January, 1981. As of November 1, 1991, he had used a total of 556.5 days of sick leave, for a yearly average of 56 days per year.

One hundred and fifty of those days were taken in the years 1980-87, and nearly all of them were for injuries or illnesses not contracted in the line of duty. Biscoe took 100 days in 1989, of which 80 were regarded as line of duty, 200 days in 1990, of which 197 were classed as line of duty, and 61 in 1991, of which 52 were declared line of duty. Concern about his use of medical leave first surfaced in 1984, when, on March 8 of that year, his ¹² commander -wrote to the Department’s chief physician indicating that Biscoe was counseled “to make an attempt to reduce the number of medical days taken” and that his medical records would be closely monitored. In the officer’s 1984 evaluation report, his supervisor called attention to the medical record, saying that “[t]his has created a problem with me not being able to depend on his availability for work.” Biscoe was again counseled in 1985, when he took 21 days of medical leave.

In February, 1986, the Chief Physician again became involved. At that time, Biscoe had taken an average of 17.8 days per year medical leave, against a departmental average of 7.5 days per year. Of the 107 days, 84 were attributed to “common illnesses” such as flu and 98 days were for illnesses not in the line of duty; only nine days were attributed to injury received in the line of duty. On March 12, Biscoe was examined and found to have no chronic illness precluding the performance of full duty.

Nonetheless, he took 24 days medical leave in 1986. The same pattern repeated in 1987, when he took another 29 days. After reviewing his medical record to date, the Chief Physician indicated that Biscoe had taken 90 days for viruses and colds, 16 days for injuries not in the line of duty, and only 14 days for line-of-duty injuries. He observed that the officer appeared to be “accident prone” and to suffer “repeatedly from common colds and other respiratory illnesses.” Despite this pattern of using greater-than-average medical leave, no disciplinary action was taken against Officer Biscoe.

On March 26, 1988, Biscoe was involved in a line-of-duty traffic accident when his patrol car was struck by a drunk driver. As a result of the accident, he developed degenerative arthritis in his right ankle, for which he underwent surgery in June, 1989. He claimed to be unable to drive or to walk on hard surfaces. His performance evaluation for the period January 1, 1989 to June 30, 1989 — during which period he used a total