Blondell v. Baltimore City Police Department

HARRELL, Judge. Appellant, Charles R. Blondell, appeals from a judgment entered in the Circuit Court for Baltimore City (Friedman, J.) denying his petition for an injunction to prohibit appellees, then Police Commissioner Edward V. Woods and the Baltimore City Police Department (Department), from bringing before a trial board any charge, other than the original general misconduct charge, brought against appellant after he rejected an initial offer of punishment made to him by the Department. ISSUES We have re-phrased appellant’s issues to facilitate our discussion as follows: I. Did the Department’s offer of punishment to appellant constitute summary punishment as defined by Md.Code Ann., Art. 27, §§ 727(f), 734A(1)?

II

If the Department’s offer of punishment to appellant constituted summary punishment, was the Department estopped from seeking increased punishment beyond the limits of what is prescribed for summary punishment?

III

Should an addition of charges after an officer requests a hearing be precluded because it has the effect of coercing officers into forfeiting statutorily protected rights? FACTS Appellant is a Detective Police Captain with the Department. On 1 March 1990, appellant was notified that an internal complaint had been filed against him. Specifically, the complaint alleged that appellant had recently named Detective Sergeant Wayne Wilson as the accused in a sexual ⁷³ harassment incident as part of an ongoing attempt by appellant to harass the sergeant.

On 4 September 1990, the Department’s Internal Investigation Division (IID), after investigation of the complaint, concluded that a charge of general misconduct against appellant was warranted. IID did not find any merit to recommending a charge of misconduct relating to employment discrimination. On 15 October 1990, the Department offered appellant three days loss of leave and a severe letter of reprimand as punishment. Appellant refused to accept the punishment and requested a departmental trial board pursuant to Department policy.

Appellant’s investigative file was then forwarded to the Legal Affairs Division for review, drafting of formal charges, and prosecution. In its review, the Legal Affairs Division identified that appellant had made several false statements during the course of his conduct that resulted in the recommended general misconduct charge. The Legal Affairs Division thereupon remanded the case to IID for further investigation. IID subsequently recommended an additional charge of false statement against appellant.

Appellant’s file again was forwarded to the Legal Affairs Division, which filed formal charges of General Misconduct and False Statement. Appellant was notified of the charges on or about 19 February 1991. On 28 March 1991, appellant filed in the Circuit Court for Baltimore City a Complaint for Ex Parte, Interlocutory, and Permanent Injunctive Relief and a Petition to Show Cause. The Complaint requested that appellant’s pending proceeding before a trial board be enjoined because the Department had violated the Law Enforcement Officers’ Bill of Rights (LEO-BOR 1 ) by adding a charge of false statement after an initial ⁷⁴ offer of punishment was made to appellant as to the general misconduct charge.

On 20 April 1994, a hearing was held in the circuit court whereupon Judge Friedman denied appellant’s injunction request. She explained: I find based on the evidence in this case that the punishment that was offered was not summary punishment, for a number of reasons, first of all, it is arguably not a minor infraction for which [appellant] was investigated— So first of all, it was not a minor infraction. The Commissioner has not delegated the authority to anyone else. He retains the authority in himself.

The offense is and remains in dispute. And the punishment was greater than the limitation that is placed on it in the summary punishment definition in section F of subsection 727. And what makes it greater is not the issue of whether a three day loss of vacation is greater or less than a three day suspension. But it’s the fact that a severe letter of reprimand was recommended.

That certainly is much greater than just a three day suspension or fine of $150.00. So in this case, I find that summary punishment was not invoked____ Appellant noted a timely appeal to this Court. DISCUSSION I. As a threshold issue, appellant contends that the Department’s offer to him of three days loss of leave and a severe letter of reprimand constituted an offer of summary punishment under the LEOBOR. Therefore, argues appellant, the “additional charge placed against [appellant] subsequent to his refusal of summary punishment violates the LEOB[0]R provision limiting punishment after a refusal of summary punishment.” Appellees, on the other hand, suggest that the Department’s offer of punishment to appellant did not constitute ⁷⁵ an offer of “summary punishment” as that term is defined under the LEOBOR.

Summary punishment under the LEOBOR is governed by sections 727(f) and 734A(1). Section 727(f) provides: “Summary punishment” is punishment imposed by the highest ranking officer of a unit or member acting in that capacity, which may be imposed when the facts constituting the offense are not in dispute. Summary punishment may not exceed three days suspension without pay or a fine of $150. Md.Code Ann., Art. 27, § 727(f) (1992 Replacement Volume & 1994 Supp.).

Section 734A(1) provides: Summary punishment may be imposed for minor violations of departmental rules and regulations when: (i) the facts which constitute the minor violation are not in dispute; (ii) the officer waives the hearing provided by this subtitle; and (iii) the officer accepts the punishment imposed by the highest ranking officer of the unit to which the officer is attached. Id. § 734A(1). The effect of these two sections is to provide not only a definition of “summary punishment,” but also to set forth how and when such punishment is to be imposed. Construing these sections in pari materia, we are able to glean the following definition of “summary punishment”: 1) punishment “imposed by the highest ranking officer of a unit or member acting in that capacity;” 2) punishment “imposed for minor violations of departmental rules and regulations;” and, 3) punishment that does “not exceed three days suspension without pay or a fine of $150.” See id. §§ 727(f) & 734A(1); see also International Bhd. of Police Officers, Local 302 v. Town of Portsmouth, 506 A.2d 540, 541 (R.I.1986) (discussing definition of “summary punishment” under Rhode Island’s LEOBOR).

Moreover, “summary punishment” may be imposed only if: “(i) the facts which constitute the minor ⁷⁶ violation are not in dispute; 2 (ii) the officer waives the hearing provided by [the LEOBOR]; and (iii) the officer accepts the punishment imposed by the highest ranking officer of the unit to which the officer is attached.” 3 See id. § 734A(1) (footnote added); see also Town of Westernport v. Duckworth, 49 Md.App. 236 , 244-45 & n. 4, 431 A.2d 709 (1981) (discussing imposition of summary punishment). Applying this analysis to the case sub judice, we hold that the Department’s offer of three days loss of leave and a severe letter of reprimand did not constitute an offer of “summary punishment” under the LEOBOR. Specifically, we agree with the circuit court that appellant’s alleged violation was not a minor infraction. Appellant allegedly initiated an investigation of Sergeant Wilson for sexual harassment as an apparent ongoing attempt to harass the sergeant.

In fact, the record reveals that appellant allegedly had information that exonerated Sergeant Wilson of any wrongdoing. As indicated by Deputy Commissioner Joseph W. Nixon’s affidavit: The Police Commissioner decided this was a serious matter and increased the recommended penalty to include the loss of 3 days leave for his conduct. No one in the chain of command, including myself, considered the allegations “minor.” Rather, I felt they were rather serious, at least as far as the facts of the case were concerned. Anytime, [sic] a unit commander accuses a subordinate of sexual harassment ⁷⁷ without any factual basis, I find that extremely troubling. ...

This was not a minor offense. (Emphasis in the original.) Appellant, on the other hand, points to no evidence that his alleged conduct was a minor