Bray v. Aberdeen Police Department

THIEME, J. The Circuit Court for Harford County affirmed the decision of an administrative hearing board which found appellant Joseph Bray, an officer in the Aberdeen Police Department (APD), guilty of multiple charges of misconduct and recommended termination of his employment. As a police officer, appellant was entitled to the protections provided by the Law Enforcement Officers’ Bill of Rights (LEOBR), currently codified at Md.Code, § 3-101, et seq. of the Public Safety Article (“P.S.”). In his appeal, appellant presents three issues for our review, 1 which we have renumbered and rephrased as follows: I. Whether appellant was provided proper notice of the nature of the complaint against him prior to his interrogation.

II

Whether appellant was provided proper' notice of the charges against him prior to his administrative hearing. ⁴²¹ III. Whether APD improperly withheld exculpatory information, and/or otherwise misled appellant as to the nature of the charges against him.

IV

Whether the circuit court erred by affirming the hearing board’s denial of appellant’s motion to dismiss on a different basis than that on which the hearing board denied the motion. For the reasons set forth below, we affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Since appellant challenges only the sufficiency of the notice provided by APD and raises a question of appellate procedure, a detailed recitation of the evidence presented at the board hearing is not necessary for the resolution of this appeal. Therefore, we note only that this appeal arises from underlying events occurring on May 8, 2007.

On that date, appellant was summoned to appear as a witness in three cases, one in district court, one in traffic court, and one in juvenile court. 2 Appellant failed to appear at either the traffic case or the juvenile case for which he was summoned. Appellant later submitted an overtime request for 2.5 hours of overtime pay, along with copies of the email summons annotated with dispositions for all three cases. The next day, May 9, 2007, the prosecutor in the juvenile case sent an e-mail to appellant’s captain informing him that appellant had failed to appear for the juvenile trial. This necessitated the dismissal of the charges against the juvenile.

Captain Cox requested that Sergeant Kirk Bane undertake an investigation of appellant’s absence. ⁴²² On June 5, 2007, Sergeant Bane presented appellant with a formal Notification of Complaint and Waiver of Rights form, which stated, in pertinent part: A complaint has been received concerning an incident in which you were alleged to have been involved. The details of the complaint are as follows: That on 05/08/07 you failed to report to juvenile court. Appellant signed the Notification, acknowledging that he had received it. He also signed the Waiver of Rights form.

Appellant was then interrogated by Sergeant Bane. On September 11, 2007, appellant received a Notification of Charges indicating that he was accused of eighteen counts of misconduct in relation to his failure to appear in court on May 8, 2007. Counts 2, 7, and 11 accused appellant of making false statements to Sergeant Bane during his interrogation on June 5, 2007. Counts 1, 3, 4, 5, 6, 8, 9, 10 and 13, accused appellant of including false or inaccurate information on his biweekly payroll sheet, court overtime slip, and case disposition information.

One charge, Count 12, accused appellant of theft of 2.5 hours of overtime pay. And five charges, Counts 14, 15, 16, 17 and 18, accused appellant of missing court appearances on May 8, 2007, identifying the cases by number. Appellant participated in a hearing before a three-member administrative hearing board on October 22 and October 23, 2007. As a preliminary matter, appellant sought to have several charges dismissed on the ground that the notice for those charges was insufficient under the LEOBR.

Appellant’s motion was denied. During the hearing, appellant repeatedly objected to the admission of evidence on the grounds that the notice provided under the LEOBR was insufficient. At the conclusion of the appellee’s case, appellant renewed his motion to dismiss and sought acquittal on all charges. Those motions were denied.

The hearing board found appellant guilty on eleven charges, Counts 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, and 16, and not guilty on four charges, Counts 1, 6, 12, and 14. APD voluntarily dismissed three of the charges against appellant, Counts 15, ⁴²³ 17, and 18. The hearing board recommended penalties that included termination of appellant’s employment. The APD Police Chief adopted the Board’s Report without modification.

Appellant was terminated on December 7, 2007. Additional facts may be provided as necessary to support our analysis of the issues. STANDARD OF REVIEW The Court of Appeals addressed the standard of review applicable to LEOBR cases in Coleman v. Anne Arundel County Police Dept., 369 Md. 108 , 797 A.2d 770 (2002). The Court stated: No statute expressly establishes the scope of judicial review of an administrative proceeding initiated by a county police department pursuant to the LEOBR.

We have concluded that the scope of judicial review in a LEOBR case is that generally applicable to administrative appeals. Thus, to the extent that the issue under review turns on the correctness of an agency’s findings of fact, judicial review is narrow. It is limited to determining if there is substantial evidence in the administrative record as a whole to support the agency’s findings and conclusions.... While an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts, we owe no deference to agency conclusions based upon errors of law.

Id. at 121-22 , 797 A.2d 770 (internal quotations and citations omitted). When we review an administrative decision, we perform precisely the same role as the circuit court. Stover v. Prince George’s County, 132 Md.App. 373, 380-81 , 752 A.2d 686 (2000)(citing Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994)). We look only at “the decision of the agency, not that of the circuit court.” Lucas v. People’s Counsel for Baltimore County, 147 Md.App. 209, 225 , 807 A.2d 1176 (2002) (citing Carriage Hill-Cabin John, Inc. v. Maryland Health Resources Plan ⁴²⁴ ning Comm’n, 125 Md.App. 183, 211 , 724 A.2d 745 (1999)).

Ordinarily, a reviewing court is constrained to affirm the agency decision only for the reasons given by the agency. See United Steelworkers of America v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984)(citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 , 83 S.Ct. 239 , 9 L.Ed.2d 207 (1962)(“[A] simple but fundamental rule of administrative law ... is ... that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”)). Where it is a pure question of law, we must “determine if the administrative decision is premised upon an erroneous conclusion of law.” Md. Aviation Admin. v. Noland, 386 Md. 556 , 573 n. 3, 873 A.2d 1145 (2005). DISCUSSION The LEOBR was enacted to assure that certain procedural guarantees would be offered to police officers during an investigation or interrogation and any subsequent hearing that could lead to disciplinary action, demotion or dismissal.

Ocean City Police Dep’t v. Marshall, 158 Md.App. 115, 123 , 854 A.2d 299 (2004). The LEOBR grants “extensive rights to law enforcement officers that are not available to the general public” because “the nature of the duties of police officers [are] different from that of other public employees.” Coleman, 369 Md. at 122 , 797 A.2d 770 (quotations and citations omitted). As a law enforcement officer, appellant was entitled to the protections of the LEOBR. See Maryland State Police v. Zeigler, 330 Md. 540, 553 , 625 A.2d 914 (1993).

I. LEOBR § 3-104(d)(2) provides, “[bjefore an interrogation, the law enforcement officer under investigation shall be informed in writing of the nature of the investigation.” Initially, we shall address whether the Notification of Complaint fur ⁴²⁵ nished to appellant prior to his interrogation was sufficient to provide adequate notice of the “nature of the investigation.” Appellant asserts that the Notification of Complaint that he was given prior to his June 5, 2007 interrogation by Sergeant Bane was insufficient because it failed to inform him that he was suspected of falsifying payroll records, collecting unearned overtime pay, and failing to appear for two other court cases which were not mentioned in the notification. Appellant also contends that the juvenile case that was identified in the Notification was so poorly described that it led to confusion during his interrogation that persisted until the afternoon of the first day of his hearing. 3 APD argues that appellant failed to use the appropriate pre-hearing remedy to challenge the sufficiency of the notice provided to him prior to his interrogation, and that, therefore, he waived his right to challenge the notice on appeal. Alternatively, APD argues that the notice provided to appellant was sufficient under the LEOBR as interpreted in our decision in Ocean City Police Dep’t. v. Marshall, 158 Md.App. 115 , 854 A.2d 299 (2004). We first address APD’s assertion that appellant waived his right to challenge the sufficiency of the notice provided to him because he did not seek a show cause order in accordance with the provisions of LEOBR, P.S. § 3-105. 4 Section 3-105 of the ⁴²⁶ LEOBR provides that any law enforcement officer who is denied any right afforded by the LEOBR, at any time prior to the commencement of a hearing, may apply to the circuit court for an order directing the law enforcement agency to show cause why the right should not be afforded.

Prior to the commencement of the administrative hearing, appellant had standing under LEOBR § 3-105 to apply to the circuit court for a show cause order in order to challenge the procedural deficiencies of notice. See Hayden, 141 Md.App. at 109, 784 A.2d 627 (affirming police officer’s right to seek a show cause order from the circuit court to remedy hearing board’s denial of his right to subpoena a witness). Following his administrative hearing, appellant also had a right under LEOBR § 3-109 to seek appellate review of the hearing board’s decision in the circuit court. 5 The statutory language of LEOBR § 3-109 does not make appellant’s right to appeal the decision of the Hearing Board contingent upon any previous attempts to obtain a show cause order under § 3-105. As the Court of Appeals explained in its decision in Moose v. Fraternal Order of Police, 369 Md. 476 , 800 A.2d 790 (2002): [A]n officer involved in an investigation and hearing first has an opportunity prior to the commencement of a hearing to apply for a show cause order as to why the officer is being denied a right and, then, upon the final decision on the merits of the three-member hearing board under the ⁴²⁷ LEOBR .. . has an opportunity to seek judicial review in the Circuit Court.

Ths statutes provided [the officers] with an opportunity to redress any problems both prior to the commencement of the ... hearing and at the completion of the administrative process, after a final decision on the merits. Id. at 492 , 800 A.2d 790 (Emphasis supplied). Clearly, the Moose Court did not interpret these provisions of the LEOBR to require exhaustion of the pre-hearing show cause order remedy in order for the officer to avail himself of the post-hearing appeal. We conclude that appellant had the option to pursue the issue of sufficiency of the notice provided to him under either LEOBR § 3-105 or § 3-109.

Therefore, we agree that the hearing board was incorrect in denying appellant’s motion to dismiss on the ground that he had failed to pursue a show cause order in the circuit court under LEOBR § 3-105. We do not, however, find any error in the hearing board’s denial of appellant’s motion to dismiss based upon other grounds, which we will discuss below. In Marshall, 158 Md.App. 115 , 854 A.2d 299 , this Court examined as a matter of first impression what constitutes sufficient notice under the LEOBR. The Marshall Court held, id. at 128 , 854 A.2d 299 : The question as to what constitutes sufficient notice of the nature of the investigation must be determined on a case by case basis.

It does not necessarily require that all known detail or the exact charges be disclosed, but it must advise the officer as to the nature of the investigation, not just the existence of an investigation. In Marshall , the appellee police officer was disciplined for refusing to answer questions at two interrogations because, he argued, the notice provided to him was insufficient to discern the nature of the charges against him. This Court agreed stating: In the case before us, mindful of our deferential standard of review, there was no information provided as to the nature ⁴²⁸ of the investigation, and thus, the notice was insufficient as a matter of law. The Notification advised appellee that there was a complaint “concerning a situation” in which he was involved.

The explanation indicated that the conduct in question occurred before and after the capture of a suspected bank robber on January 8, 2002. The Notification did not indicate how long before or how Tong after the capture the conduct in question occurred. The Notification does not indicate where the conduct occurred. It does not indicate whether the complaint related to on duty or off duty conduct.

There is no indication of any alleged wrongdoing before, during, or after the capture. The result is that appellee was left to speculate whether the complaint related to his apprehension of the suspect, whether it was criminal or non-criminal, whether it related to physical conduct or administrative actions, when and where it occurred, and under what circumstances. In short, the nature of the investigation was not disclosed. Id. at 128 , 854 A.2d 299 .

The formal Notification of Complaint presented to appellant by Sergeant Bane on June 5, 2007, stated in pertinent part: A complaint has been received concerning an incident in which you were alleged to have been involved. The details of the complaint are as follows: That on 05/08/07 you failed to report to juvenile court. At the hearing, Sergeant Bane testified that in preparing the Notice of Complaint, he included only appellant’s absence from juvenile court on May 8, 2007, because that was all he had to go on at that time. The evidence of record, including the e-mails from the prosecutor of the juvenile case, provide documentary support for Sergeant Bane’s testimony.

Though the record indicates that, prior to appellant’s interrogation, Sergeant Bane collected other evidence relevant to May 8, 2007, including the overtime slip and e-mail summons annotated with case dispositions that were submitted by appellant, ⁴²⁹ Sergeant Bane did not have any proof that appellant had failed to appear in other cases, or that he had otherwise misbehaved in any way. Ironically, it was appellant’s inability during his interrogation to explain the discrepancies in the dispositions he noted on the e-mail summons, as well as his inability to remember whether he was actually present at the other cases for which he was summoned on the same day, which necessitated Sergeant Bane’s continued investigation into appellant’s actions on May 8, 2007. It was not until after appellant’s interrogation that Sergeant Bane began to actively pursue evidence related to the other charges that were eventually brought against appellant. Therefore, we find no error in Sergeant Bane’s failure to include notice of these other charges in the Notification of Complaint that was provided to appellant prior to his interrogation.

Addressing appellant’s argument that the Notice should have more completely identified the juvenile case he was accused of missing, thereby clarifying that it was not, in fact, the case involving Ms. Liberto, we discern that Ms. Liberto was only a witness, not the defendant in the case, thus her name would not have appeared on the notice even if the defendant’s name and the case number had been provided. We do not know, and appellant fails to explain, how inclusion of this additional information would have served to disperse the fog of confusion enveloping him regarding which juvenile case he was accused of missing. Indeed, during his interrogation, appellant was given a copy of his annotated e-mail summons for May 8, 2007, which provided the defendant’s name and the case number of the juvenile case he missed, yet at no time after receiving this e-mail summons did he seek to terminate the interrogation or request counsel. It is also clear from Sergeant Bane’s subsequent questioning of Ms. Liberto and Officer Beall, that the mistaken belief that Ms. Liberto was involved in the relevant case was mutually held by both appellant and Sergeant Bane, at least at the time of appellant’s June 5, 2007, interrogation.

Unlike the Notice that was found to be insufficient in Marshall , here the Notice provided to appellant prior to his ⁴³⁰ interrogation on June 5, 2007, clearly identified the date of the alleged incident—May 8, 2007—and the exact misconduct with which appellant was charged—failure to report to juvenile court. Therefore, we conclude that the Notice correctly and adequately set forth the nature of the investigation that had occurred up to that point in time. As we have held that the notice was sufficient, we need not address appellant’s argument that his waiver of his right to counsel was invalid.

II

Under the LEOBR, the law enforcement agency, prior to conducting any administrative hearing, “shall give notice to the law enforcement officer ... [of] the issues involved.” 6 LEOBR, P.S. § 3-107(b). We shall now consider