Calhoun v. Commissioner, Baltimore City Police Department

HARRELL, Judge. Appellants, Curtis Calhoun, Robert Heath, David C. Jones, Jr., Rodney Price, Gerald Hensley, Brian Bacon, Lennell Robinson, Sean Grant, and Marlene Green, appeal from a judgment entered by the Circuit Court for Baltimore City (Gordy, J.) granting the motion for summary judgment of appellees, the Commissioner and the Baltimore City Police Department, thereby precluding the application of the due process protections of the Law Enforcement Officers’ Bill of Rights (LEOBOR 1 ) to the polygraph examinations 2 of appellants. ⁶⁶⁴ ISSUES We have re-phrased appellant’s issues to facilitate our discussion as follows: I. Was the use of routine polygraph examinations and accompanying interrogations to determine the trustworthiness of officers assigned to the drug enforcement units an investigation or interrogation so as to invoke the due process protections of the LEOBOR?

II

Were the reassignments of appellants from the drug enforcement units, based on the results of their polygraph examinations, punitive measures so as to invoke the due process protections of the LEOBOR? FACTS Between March 1992 and December 1993, appellants were members of specialized drug enforcement units within the Baltimore City Police Department (Department). In 1993, appellants, along with approximately 150 officers also assigned to the drug enforcement units, were required to submit to a routine polygraph examination. These examinations were required, according to the affidavit of Deputy Police Commissioner Eugene Tanzymore, Jr., “as a way to avoid corruption allegations, detect dishonest police officers, deter dishonest behavior and to insure that those members remain honest and trustworthy.” 3 ⁶⁶⁵ Each appellant underwent the polygraph examination and, in each case, the results were either inconclusive or indicated problems related to the officer’s honesty, integrity, and trustworthiness.

As a result of these examinations, each appellant was reassigned from the drug enforcement unit into other units within the Department. At no time were appellants afforded a hearing or an opportunity to contest their reassignment. Immediately following the notice of transfer, Officers Heath, Jones, and Price voluntarily submitted to a urinalysis drug test. The results of those tests indicated no drug use.

Officers Calhoun and Grant also offered to submit to a urinalysis drug test, but the Department denied their requests. Officers Hensley, Bacon, and Robinson sought, through Sergeant Michael Harding, to retake the polygraph examination. Their efforts were similarly unsuccessful. On 10 November 1993, appellants filed a Complaint in the Circuit Court for Baltimore City alleging that appellees had violated their rights to an administrative hearing guaranteed under the LEOBOR, Md.Code Ann., Art. 27, §§ 727-734D (1992 Replacement Volume & Supp.1994). 4 Specifically, the Complaint alleged that the use of the polygraph examinations by appellees constituted an investigation and/or an interrogation under the LEOBOR and that an involuntary reassignment resulting from those examinations was a punitive measure.

Therefore, argued appellants, they were entitled to a trial board hearing as provided for under section 730(a) 5 of the LEOBOR. The Request for Show Cause Order on that ⁶⁶⁶ issue was denied by the circuit court on 24 November 1993, and the case was ordered to proceed on summonses. On 12 December 1993, appellants filed an Amended Complaint adding Lennell Robinson as a plaintiff. Appellees filed a motion to dismiss the Amended Complaint.

Appellants then filed a Second Amended Complaint on 21 January 1994, adding Sean Grant and Marlene Green as plaintiffs. Appellees responded with a Motion to Dismiss the Second Amended Complaint, or in the Alternative, for Summary Judgment. On 14 March 1994, a hearing was held on the motions and the circuit court granted appellees’ motion for summary judgment. The court explained: “It is the finding of this Court that there is no genuine dispute as to a material fact and that the giving of a polygraph examination under the circumstances in this case does not amount to interrogation or investigation.” Appellants noted a timely appeal to this Court.

STANDARD OF REVIEW The standard of appellate review of a trial court’s grant of a motion for summary judgment is whether the trial court was “legally correct.” Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). When making a determination on summary judgment, a trial court makes no findings of fact. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). Rather, the court decides whether a genuine issue of material fact exists to prevent the entry of summary judgment.

Beatty v. Trailmaster Prods., Inc., 330 ⁶⁶⁷ Md. 726, 737 , 625 A.2d 1005 (1993); see also Bond v. NIBCO, Inc., 96 Md.App. 127, 135 , 623 A.2d 731 (1993); Md.Rule 2-501(e). Under this standard, therefore, we review the trial court’s ruling as a matter of law. Beatty, 330 Md. at 737 , 625 A.2d 1005 . DISCUSSION The LEOBOR was enacted by the Legislature in 1974. 1974 Md.Laws ch. 722.

Its primary purpose is to guarantee substantive and procedural protections to law enforcement officers during disciplinary investigations, interrogations, and hearings. Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682 , 366 A.2d 756 , cert. denied, 280 Md. 727 (1977). “In enacting the LEOBOR, the Legislature vested in law-enforcement officers certain ‘rights’ not available to the general public.” Nichols v. Baltimore Police Dep’t, 53 Md.App. 623, 627 , 455 A.2d 446 , cert. denied, 296 Md. 111 (1983). This is because “the nature of the duties of police officers is different from that of other public employees.” Cancelose v. City of Greenbelt, 75 Md.App. 662, 666 , 542 A.2d 1288 (1988). In order to invoke the right to a hearing pursuant to section 730(a) of the LEOBOR, “there must be a threshold investigation or interrogation of a law enforcement officer which results in the recommendation of some action ... which would be considered a punitive measure.” Montgomery Co. Dep’t of Police v. Lumpkin, 51 Md.App. 557, 566 , 444 A.2d 469 (1982); Cancelose, 75 Md.App. at 667 , 542 A.2d 1288 .

In the instant case, appellants contend that the polygraph examinations were investigations and/or interrogations as defined by the LEOBOR and its attendant case law, and that their subsequent reassignment was a punitive measure. Therefore, argue appellants, they should be afforded “a hearing on the issues by a hearing board” pursuant to section 730(a). I. The ordinary and natural meaning of investigation has been defined as “ ‘a detailed examination; a searching inquiry; to observe or study closely.’ ” Leibe v. Police Dep’t of Annap ⁶⁶⁸ olis, 57 Md.App. 317, 323 , 469 A.2d 1287 (1984) (quoting Webster’s Dictionary (3d ed. 1976)). The cases demonstrate that something more than counseling sessions, but less than formal complaints leading to inquiry, is necessary to trigger the LEOBOR.

See, e.g., Cancelose, 75 Md.App. at 668 , 542 A.2d 1288 (monthly evaluations of officer’s job performance was not investigation); Windsor v. Bozman, 68 Md.App. 223, 229-30 , 511 A.2d 69 (discharge “without cause” not investigation), ce rt. denied, 308 Md. 237 , 517 A.2d 1120 (1986); Leibe, 57 Md.App. at 323 , 469 A.2d 1287 (“examination of sick leave records even comparing them with another employee’s is not an investigation as that word is normally and ordinarily used”); Chief, Baltimore County Police v. Marchsteiner, 55 Md.App. 108, 116, 461 A.2d 28 (1983) (counselling sessions not investigation or interrogation). Whether a polygraph examination administered by a police department to its officers is an investigation and/or an interrogation sufficient to trigger the protections of the LEOBOR was directly addressed in Widomski v. Chief of Police, 41 Md.App. 361 , 397 A.2d 222 , cert. denied, 284 Md. 750 (1979). In that case, the Internal Affairs Division of the Baltimore County Police Department was investigating improper and illegal conduct by police officers assigned to the Dundalk district. In connection with this investigation, then-Corporal Widomski, stationed in Dundalk at that time, was twice- interviewed by Internal Affairs.

There was testimony that Widomski was not a suspect at the time of the interviews. Soon thereafter, Widomski was administered a polygraph examination by Lieutenant William Ferrell “ ‘to see if [Widomski] had any knowledge that had been undisclosed’ with respect to the Dundalk investigation.” Id. 41 Md.App. at 363 , 397 A.2d 222 . Ferrell explained that “he usually asked followup questions when the interviewee answered in a manner that “would arouse ... [Ferrell’s] suspicions’ as to the truthfulness of the answer,” and that he followed the same procedure with Widomski. Id.

The results of Widomski’s polygraph examination indicated that he “ ‘wasn’t being completely truthful to some of the questions.’ ” Id. at 364 , 397 A.2d 222 . Once ⁶⁶⁹ informed of the results, Widomski named “ ‘at various times different officers that he had observed doing different things.’ ” 6 Id. Immediately following the polygraph examination, Sergeant Philip Huber of Internal Affairs was told to “interview” 7 Widomski “ ‘in reference to certain revelations that were brought out in the polygraph examination.’ ” Id. at 365 , 397 A.2d 222 . Prior to this interview, Widomski was given a “Notification to Accused of a Complaint,” an explanation of his rights under the LEOBOR, and Miranda 8 warnings.

At a hearing before the Baltimore County Police Department Disciplinary Board, Widomski was found guilty of lying, filing false reports, receiving stolen goods, and petty theft. Widomski was subsequently dismissed from the police force. On appeal, Widomski did not argue that he was innocent of the charges against him, but rather that the police department’s investigators failed to adhere to the procedural requirements of the LEOBOR. Specifically, Widomski claimed: “The polygraph examination conducted by Lt.

Ferrell should have been conducted in accordance with Art. 27, § 728 because (1) just prior to the test Widomski conceded that he had been untruthful in a past interview, and (2) the questions asked were of such a nature as to elicit responses which ‘could lead to disciplinary action.’ ” Id. 41 Md.App. at 369 , 397 A.2d 222 . This Court, quoting section 728(b), 9 held that, “at the time Widomski was asked to submit to the polygraph examina ⁶⁷⁰ tion, he was neither under investigation nor was he interrogated for reasons which ‘could [have led] to disciplinary action, demotion or dismissal.’” Id. This Court explained that, because the evidence indicated that Widomski was not a suspect at the time of the polygraph examination, he was only a witness, “there was no necessity to conduct the polygraph examination in accordance with [the LEOBOR].” Id. at 370 , 397 A.2d 222 . The polygraph examination in the case sub judice is less investigative in nature than that in Widomski .

The polygraph examination administered to appellants was an annual routine test designed to regulate the competent and efficient operation and management of the drug enforcement units. 10 Deputy Commissioner Tanzymore stated that the purpose of the examination was not to investigate specific allegations of wrongdoing, but rather to “avoid corruption allegations, detect dishonest police officers, deter dishonest behavior and to insure that those members remain honest and trustworthy.” In Widomski , on the other hand, the inquiry was conducted by the Internal Affairs Division, the internal investigatory arm of the police department. Moreover, Widomski’s polygraph ex- ⁶⁷¹ animation was administered during the course of an internal investigation of specific misconduct within the department. Notwithstanding these facts, this Court held that no investigation and/or interrogation occurred. Widomski, 41 Md.App. at 369-70 , 397 A.2d 222 .

We analogize the facts and circumstances of the instant case to those in Cancelose v. City of Greenbelt, 75 Md.App. 662 , 542 A.2d 1288 (1988). In that case, police officer Cancelóse was placed on monthly evaluation procedure for unsatisfactory work performance. Each month thereafter, he received oral and written evaluations from his supervising sergeant and his patrol division commander. As a result of those oral and written evaluations, Cancelóse was suspended with pay.

No hearing was held on the suspension, and Cancelóse was subsequently terminated. Soon thereafter, Cancelóse obtained a show cause order in the circuit court, by alleging that he was denied certain due process protections under LEOBOR, including a hearing pursuant to section 730(a). The underlying complaint was dismissed by the circuit court. On appeal, this Court held: In the case sub judice, appellant’s dismissal from appellee’s police department occurred because he regularly received poor performance evaluations over a period of approximately seven months.

Since appellant’s work performance and conduct were considered unsatisfactory, an administrative decision to dismiss appellant was made at the recommendation of appellee’s Chief of Police. At no time was any investigation or interrogation commenced against appellant. Instead, his general work performance was evaluated monthly, using departmental competency standards which are applied consistently to all police officers in evaluating overall job performance. We hold that these evaluations were not investigations as that word is normally and ordinarily used.

Appellant’s termination as a Greenbelt ⁶⁷² City Police Officer was based upon his unsatisfactory work performance. Hence, the LEOBR procedural safeguards are not applicable in the case sub judice. Id. at 668 , 542 A.2d 1288 . It is apparent from Widomski and Cancelóse that the LEOBOR is intended to provide a police officer due process protection only when the officer is investigated and/or interrogated as a result of a disciplinary-type complaint lodged against the officer.

As explained in DiGrazia v. County Executive, 288 Md. 437 , 418 A.2d 1191 (1980): The legislative scheme of the LEOBR is simply this: Any law-enforcement officer covered by the Act is entitled to its protections during any inquiry into his conduct which could lead to the imposition of a disciplinary sanction. Implicit in § 728’s provision that “[wjhenever a law-enforcement officer is under investigation ... by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal” is the assumption that a disciplinary-type complaint has been lodged against the officer—a complaint which, except as otherwise provided in the Act, will be investigated by the officer’s law-enforcement agency as a precondition to any recommendation for the imposition of a disciplinary sanction. Id. at 452-53, 418 A.2d 1191 (footnote omitted). For example, in Town of Westernport v. Duckworth, 49 Md.App. 236 , 431 A.2d 709 (1981), police officer Duckworth was involved in an accidental shooting of the town’s Communications Officer.

Duckworth was suspended without pay pending an investigation by the State Police. As a result of that investigation, criminal charges were brought against Duckworth. Although he was acquitted at the criminal trial, Duckworth was terminated by the police department. This Court, quoting DiGrazia , held that because the State Police conducted an investigation of Duckworth’s involvement in the shooting, he was ⁶⁷³ investigated