Boyle v. Maryland-National Capital Park & Planning Commission

WILNER, J. Petitioners Timothy Boyle and Jeffrey Pauley were once employed as park police officers by the Montgomery County Park Police Division of the Maryland-National Capital Park and Planning Commission (Commission). In April, 2000, the Park Police Division commenced an investigation into secondary business activities pursued by petitioners through a Delaware company they had formed, Mobile Data Technologies, LLC (MDT). The investigation focused on whether Boyle and Pauley were using their official positions and Commission property and resources to further conflicting private interests. As it initially proceeded, the investigation was subject to the Law Enforcement Officers Bill of Rights (LEOBR), formerly codified in Maryland Code, Art. 27, §§ 727-734D and now codified as §§ 3-101 through 3-113 of the Public Safety Article.

In May, 2000, during the pendency of the investigation, Boyle and Pauley resigned their positions with the Commission, and the Park Police Division eventually terminated fur ¹⁴⁵ ther LEOBR proceedings. The Division turned over the results of the investigation to the Commission’s General Counsel, however, and General Counsel then filed a petition with the Commission’s Purchasing Manager to debar Boyle and Pauley from participating in any procurement activity before the Commission. 1 While that petition was pending and before any resolution of it by the Purchasing Manager, Boyle, Pauley, and MDT filed an action in the Circuit Court for Prince George’s County seeking, among other things, (1) a declaratory judgment that the debarment proceeding conflicted with LEOBR, and (2) an injunction to restrain the Commission from proceeding with the debarment. The basic issue was whether debarment constituted “punitive” action within the meaning of the LEOBR and thus made applicable the procedural rights afforded under that statute, notwithstanding that Boyle and Pauley were no longer employed by the Commission as law enforcement officers. Although Boyle and Pauley represented that they had no intention of ever seeking procurement contracts from the Commission, they claimed that debarment by the Commission might affect their ability to bid on contracts with other government agencies.

After ruling on some preliminary motions and staying proceedings to permit the parties to attempt to resolve their dispute through mediation, the court ruled that any debarment proceeding by the Commission must be conducted in conformance with LEOBR — essentially, a hearing before a police hearing board with the Chief of Police ultimately determining whether they had engaged in conduct warranting debarment. 2 The Court of Special Appeals reversed that ¹⁴⁶ determination, concluding, in an unreported opinion, that debarment proceedings do not constitute “punitive” action within the meaning of LEOBR and that LEOBR procedures were therefore inapplicable. We granted certiorari to review the judgment of the intermediate appellate court. We agree -with that judgment but, for technical reasons, shall vacate it and remand the case for entry of an amended judgment. BACKGROUND The Commission is a bi-county agency created by the General Assembly to develop both general and functional plans of proposed land development for the Washington Metropolitan District, which consists of most of Montgomery and Prince George’s Counties.

See Maryland Code, Art. 28, § 7-108. That is the main “planning” function. In carrying out the general plan, the Commission is authorized to acquire property within the District for roads, parks, forests, and other recreation facilities, and to improve and control such property for those purposes. See id. § 5-101.

That is the main “park” function. The Commission currently administers about 56,000 acres of park and recreation land in the District. In furtherance of its “park” function, the Commission is authorized by § 5-114 to appoint park police officers to provide protection for the Commission’s activities and property. Those officers have concurrent general police jurisdiction, in and on Commission property, with Montgomery and Prince George’s County police officers, but they are responsible to and are under the supervision of the Commission.

Id. § 5-114(a). Although the record is skimpy in this regard, it appears that some functions of the Commission are handled by the central Commission staff while others are implemented by geographically-based Divisions of the Commission within each of the two counties. Among the functions handled centrally are human ¹⁴⁷ resources, finance, and general counsel, and included within the finance department is general procurement for the Commission. Among the functions handled by Divisions within the respective counties is the police function.

There is a separate Park Police Division, headed by a Chief and having its own command and administrative structure, in each of the two counties. Whether there is an overall chief of police at the central headquarters level is unclear to us from the record we have. 3 Boyle and Pauley worked for the Montgomery County Park Police Division and were under the supervision of Elizabeth Kreiter, who was then the Chief of the Montgomery County Park Police Division. Chief Kreiter reported to Donald Cochran, Chief of Park Police. Chief Cochran had delegated certain LEOBR duties to Chief Kreiter, including the authority to initiate investigations and rule on all punishment other than summary punishment, but he, apparently, was the ultimate chief for LEOBR purposes.

In 1998, Boyle, by then a lieutenant, became commander of the Management and Technology Branch of the Division, and he later assumed the position of Acting Assistant Chief of that Branch. 4 The duties and responsibilities of the branch com ¹⁴⁸ mander were quite general and somewhat vague: “supervision and management of areas within the Management and Technology Branch as assigned by the branch Assistant Chief.” As Acting Assistant Chief of the Branch, Boyle became responsible for all of the functions of that branch, including budget and procurement, research and development, and technology projects. 5 One of the units in the Management and Technology Branch was the Information Technology Systems Unit which, in September, 1998, Boyle appointed Pauley, a sergeant, to head. That unit had a defined function. It was responsible for conducting all technology-related research, the development of plans for the implementation of new programs and systems, and the updating of existing programs and systems. That included, according to the Commission, researching and testing hardware and software for possible use by the Montgomery County Park Police, initiating the procurement of contracts with hardware and software vendors, administering those contracts and monitoring the vendors, and authorizing payments to the vendors.

A major part of that responsibility was administering a program designed to equip Park Police vehicles with “mobile data” capability — laptop computers and accompanying software that would enable officers to access vehicle records, criminal history information, and other law enforcement information while on patrol. In November, 1998, while employed in those capacities, Boyle and Pauley created MDT as a Delaware Limited Liability Company. The nature of the business, according to the tax returns filed by Boyle and* Pauley, was “consulting on public safety.” They did not disclose the existence of MDT to the Commission. ¹⁴⁹ On April 10, 2000, Division Chief Kreiter, upon information received from a subordinate, checked the web site for MDT and learned that, through MDT, Boyle and Pauley appeared to be dealing with vendors who supplied goods and services to the Commission. Concerned that such activity might constitute a conflict of interest, she immediately initiated an LEOBR investigation, to focus on (1) whether Boyle or Pauley had violated any Commission rules in their relationship with outside vendors who were also Commission vendors, and (2) whether they had used Commission property or equipment for personal use.

Two weeks later, on April 27, 2000, Chief Cochran suspended Boyle and Pauley, with pay, pending the outcome of the investigation and advised them of their right to a hearing on the suspension. That same day, Division Chief Kreiter sent two directives. One, addressed to Pauley, requested his consent to a search of his office, his assigned vehicle, and other areas in his workplace. Pauley signed the consent. 6 The second directive, addressed to both Boyle and Pauley, ordered them among other things, (1) not to return to their office or any other Park Police facility without permission from her, not to access any computer or communication system operated by the Park Police, and not to represent MDT or any other entity with any entity that did or had done business with the Commission, and (2) to disclose, by May 5, 2000, a wide range of records and information, including all financial accounts held or accessible by them or held by MDT from and after January 1, 1995, tax returns, records relating to their relationship with MDT or any other entity, and records showing or relating to appointments from and after January 1, 1995.

At the request of Boyle and Pauley, the deadline for producing the records was extended to May 12, but, when no response to the demand was forthcoming by then, they were, on May 17, formally charged with failure to obey that order and informed of the Commission’s intention to fine them one ¹⁵⁰ day’s pay, commencing as of May 13, for each day until they complied with the order. 7 Upon receipt of that insubordination charge, Boyle and Pauley requested an LEOBR hearing but immediately resigned their positions, as of May 19, 2000. Notwithstanding their resignations, the investigation and the LEOBR proceeding continued. Chief Kreiter explained that the investigation proceeded because she was not sure at that point whether any of the Commission vendors or any other Commission staff were involved and had violated Commission directives and policies; the investigation, in other words, was broader than just Boyle and Pauley. On June 30, 2000, the hearings requested by Boyle and Pauley were scheduled for July 25 and 26, 2000, but, when their attorney advised that he had a trial conflict, the hearings were postponed.

The Commission continued to press for compliance with the directive to produce records. In response, counsel asserted that the Commission no longer had jurisdiction over the two men because they had retired, but, after some further correspondence, some documents were turned over in September, 2000. The hearings were apparently never rescheduled, and the LEOBR proceeding against Boyle and Pauley was administratively closed on January 11, 2001. A final report of the investigation was not prepared until June, 2001, however.

Chief Kreiter, who had briefed General Counsel’s office and the Purchasing Manager for the Commission as the investigation proceeded, sent a copy of that report to General Counsel. Working with General Counsel’s office, she prepared a summary of the report for the Purchasing Manager and ultimately assisted in drafting the Petition for Debarment that was filed before the Purchasing Manager on or about July 17, 2001. The petition is based to a large extent on the information that came to light through the LEOBR investigation, including that part of the investigation that occurred after Boyle and Pauley resigned. We need not recite, or even summarize, all ¹⁵¹ of the allegations in the 48-page petition.

It basically avers that Boyle and Pauley, in secretly pursuing their private business while working for the Commission, violated a number of ethical and procedural requirements, including conflict of interest provisions relating directly to procurement and their own official duties, and that they misappropriated and misused Commission property and funds. The petition alleges, in those regards, that they steered substantial Commission business to three vendors with which they, or MDT on their behalf, had established private business relationships. Section 16 of the Commission’s Purchasing Manual, dealing with debarment, lists among the grounds for debarment “ [violation of the ethical standards set forth in Section 2 of this manual,” and “[a]ny other cause the Purchasing Manager determines to be so serious and compelling as to affect responsibility as a Commission contractor.” Section 2 of the Manual, dealing with Ethics in Purchasing, makes it a breach of ethical standards for a Commission employee (1) to participate directly or indirectly in a procurement action in which a conflict of interest may exist, or (2) to use the employee’s public position for. private gain. Debarment is determined by the Purchasing Manager, subject to an appeal to the Executive Director of the Commission and judicial review.

On the allegations of the petition, General Counsel and Chief Kreiter asked that Boyle, Pauley, MDT, and a company that they believed had purchased MDT be barred from participating in any procurement activity that the Commission may undertake for the maximum period of time allowed by law. On August 31, 2001, before any proceedings took place on the petition, Boyle, Pauley, and MDT brought this action for declaratory and injunctive relief to thwart the debarment proceeding. They alleged that (1) debarment proceedings are controlled by Maryland Code, §§ 16-101 et seq. of the State Finance and Procurement Article, which preempt the Commission’s procedures; (2) the pending debarment proceeding is subject to, but fails to comply with, LEOBR; and (3) the lack of procedural protections afforded by the pending debarment proceeding would deprive the plaintiffs of their right to ¹⁵² procedural due process of law under Article 24 of the Maryland Declaration of Rights. They sought a declaratory judgment confirming those averments and, through injunctive and mandamus relief, an order barring the Commission from proceeding with the debarment.

The Commission responded with a motion to dismiss and for summary judgment. With respect to the LEOBR claim, it asserted that, by resigning, the plaintiffs had waived their right to LEOBR proceedings and that such proceedings, in any. event, were inappropriate in light of the plaintiffs’ resignation in that they could not result in any punitive action against them. It is not clear whether the court ever ruled definitively on the first and third complaints made by Boyle and Pauley— preemption and due process — but those issues were not raised in their petition for certiorari and are therefore not before us. On March 10, 2003, the court filed a Memorandum Opinion and Order in which it concluded that Boyle and Pauley were entitled to the procedural rights afforded by the LEOBR, notwithstanding their resignations, and “[t]he fact that disciplinary sanctions are no longer available to remedy the alleged wrongdoing does not preclude the determination by [an LEOBR] hearing board.” The court formally denied the request for declaratory judgment on the ground that a statutory remedy — the LEOBR proceeding — was available, but it did enjoin the Commission from continuing debarment proceedings “unless and until charges against [Boyle and Pauley] are sustained in proceedings pursuant to [LEOBR].” 8 As noted, the Court of Special Appeals reversed that judgment.

It looked to the relevant provision of LEOBR, at the ¹⁵³ time Article 27, § 730(a) and now § 3-107(a) of the Public Safety Article, which reads, in relevant part: “[i]f the investigation or interrogation of a law enforcement officer results in a recommendation of demotion, dismissal, transfer, loss of pay, reassignment, or similar action that is considered punitive, the law enforcement officer is entitled to a hearing on the issues by a hearing board before the law enforcement agency takes that action.” (Emphasis added). 9 The issue, recognized by both the Circuit Court and the Court of Special Appeals, was whether debarment was a “similar action that is considered punitive” within the meaning of that statute. If not, the right to an LEOBR hearing did not apply. The intermediate appellate court noted that the enumerated list — -demotion, dismissal, transfer, loss of pay, reassignment — -were all punitive actions related to the officer’s employment relationship, and, applying the doctrine of ejusdem generis, concluded that the general reference to “similar action that is considered punitive” was likewise intended to include “only those actions that are of the same nature as the enumerated actions, that is, punitive actions related to the law enforcement officer’s employment [as a law enforcement officer].” As debarment could have no effect on Boyle’s or Pauley’s employment with the Commission in any capacity, it was not a similar punitive measure within the meaning of the statute, and the LEOBR simply did not apply. Before us, Boyle and Pauley urge that debarment is punitive in nature, that the doctrine of