Chief, Montgomery County Department of Police v. Jacocks

Wilner, J., delivered the opinion of the Court. Appellee is a police officer employed by the Montgomery County Police Department. He is therefore subject to the provisions, procedures, and protections of the Law-Enforcement Officers’ Bill of Rights (LEOBR), codified in Md. Ann. Code art. 27, § 727, et seq. On June 13,1980, appellee received a memorandum from appellant, the Chief of the Montgomery County police department, informing him that an investigation had been conducted into an incident occurring on April 15,1980, and that, as a result of that investigation, a charge against him of "conduct unbecoming a police officer” had been "sustained.” That charge, according to the memorandum, was based on the allegation that "on 4/15/80, at approximately 0900 hours, you met with Major S. Filyo and Sgt.

Bohn. You spoke to Major Filyo in a disrespectful manner constituting conduct unbecoming; that among the statements you made were the following: . . . .” There then appeared seven statements of a defiant or inelegant nature allegedly made by appellee. The memorandum informed appellee that the administrative punishment proposed for the infraction noted was suspension without pay for two days and transfer to another unit within the department. Rather than accept that punishment, however, appellee exercised his right under the law to an administrative hearing; and one was scheduled for July 30,1980.

On June 24,1980, appellant gave appellee, in writing, the names of the witnesses who would be called to testify at the hearing, as well as the members who would comprise the hearing board. ¹³⁴ At or about this point, appellee learned that, during the course of the investigation of the matter, each of the prospective witnesses had been interviewed by the department’s internal affairs office, and that the interviews had been tape-recorded. Through counsel, appellee requested access to copies of the statements given by those witnesses who "will be called by the county in an effort to prove their case in chief’; and, when that request was denied, and the county made clear that appellee would not be allowed to see the statements even after the witnesses had testified at the administrative hearing, he filed this action in the Circuit Court for Montgomery County. See § 734 of art. 27. In his bill of complaint, he sought, among other relief, an order directing appellant to "produce for inspection and use as evidence the statements of all witnesses interviewed by the Office of Internal Affairs, in preparation for the June 13, 1980 charging memorandum and July 30,1980 Administrative Hearing of this matter.” After a non-evidentiary hearing, the court granted a narrower form of the requested relief.

Relying on the principles announced in Jencks v. United States, 353 U.S. 657 (1957), as restated in Carr v. State, 284 Md. 455 (1979), it concluded that appellee’s right to cross-examine the witnesses against him would be rendered ineffective unless he had access to their earlier statements. Although not requiring disclosure of the statements in the context of pre-hearing discovery, the court did order appellant to produce "for inspection and use as evidence at the hearing the statements to the Department of Internal Affairs of all witnesses who have testiñed at the administrative hearing on the charges brought against [appellee].” (Emphasis supplied.) Aggrieved by that order, appellant has taken this appeal, complaining that (1) appellee has no right under LEOBR to inspect statements obtained by the internal affairs division, (2) the Jencks-Carr rules do not apply to administrative proceedings, and (3) in any event, the order was too broad. We agree with appellant that, under the circumstances in ¹³⁵ this case, the order was too broad; we do not agree, however, with his first two assertions. LEOBR, first enacted in 1974, has been before the appellate courts of this State on a number of occasions and in a variety of contexts. 1 Its purpose, as we said in Abbott v. Administrative Hearing Board, 33 Md.App. 681, 682 (1976), cert. den. 280 Md. 727 (1977), was "to guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal.” The law deals with situations in which some charge or complaint is made against a police officer, or he otherwise comes under suspicion of misbehavior, and it looks to what is essentially a two-phase administrative process.

The first phase involves an internal investigation to determine whether there is some substance to the complaint or suspicion. If it appears that there is, a recommendation for some disciplinary action is made. At that point, phase two begins — an adjudicatory hearing before a departmental hearing board to determine (1) whether the charge itself is valid, and (2) if so, what the punishment should be. If the board finds the officer innocent of the charge, that ends the proceeding.

If it finds him guilty, it then makes a recommendation to the chief of police as to an appropriate punishment. The chief is bound by a determination of innocence, but not a proposed punishment in the event of a finding of guilt. As to that, his decision (rather than that of the Board) is final. LEOBR contains provisions dealing with both phases.

The first phase — the internal investigation — is governed by § 728(b) of art. 27. That section focuses primarily on the interrogation of the subject officer rather than on the general gathering of evidence. It sets limits on where, when, and ¹³⁶ how such an interrogation may occur. It requires that a complete record be kept of the officer’s interrogation and that a copy of that record be made available to the officer prior to the administrative hearing.

It imposes no similar requirement, however, with respect to the interrogation of other witnesses — persons other than the officer under investigation. With regard to the gathering of evidence from any other source, the statute provides only that (1) upon completion of the investigation, the officer shall be notified "of the name of any witness not less than ten days prior to any hearing” (§ 728(b)(5)), and (2) the agency "may not insert any adverse material into any file of the officer, except the fíle of the internal investigation or the intelligence division, unless the officer has an opportunity to review, sign, receive a copy of, and comment in writing upon the adverse material, unless the officer waives these rights.” (Emphasis supplied; § 728(b)(12)). The procedures relating to the adjudicatory hearing are contained in § 730. Among other things, that section provides that: (1) The officer "shall be given ample opportunity to present evidence and argument with respect to the issues involved,” and that he has the right to counsel (subsection (b)); (2) "Evidence which possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs shall be admissible and shall be given probative effect.

The hearing board conducting the hearing shall give effect to the rules of privilege recognized by law, and shall exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. All records and documents which any party desires to use shall be offered and made a part of the record. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.” (subsection (c)); and (3) "Every party has the right of cross-examination of the witnesses who testify, and may submit rebuttal evidence.” (subsection (d)). ¹³⁷ No claim was made below, and no claim is made here, that the statements given to the internal affairs office were discoverable or usable as substantive evidence under § 730(b) or (c), and we therefore have no occasion to address that issue in this appeal. Maryland Rules 1085, 1031; Jacober v. High Hill Realty, Inc., 22 Md.App. 115 , cert. den. 272 Md. 743 (1974).

The issue presented here, in the context both of statutory construction of LEOBR and the application of Jencks-Carr is whether discovery of the statements in question is mandated as an extension of appellee’s right under § 730 (d) to cross-examine the witnesses against him or, conversely, whether the internal investigation file is specifically privileged and thus non-disclosable under § 728(b)(12). The statutory construction question is not especially difficult. There is nothing in LEOBR either expressly requiring or expressly denying access to statements given to the internal affairs office by persons who ultimately testify as witnesses. Although a record of the subject’s interrogation and the names of witnesses to be called at the administrative hearing are required to be disclosed, nowhere does the statute expressly require disclosure of pre-hearing statements made by anyone but the officer under investigation.

On the other hand, although by implication § 728(b)(12) permits an internal investigation file to be placed in the "file of the officer” without the opportunity of the officer to review it, that section does not preclude the disclosure of pre-hearing statements taken by the internal affairs office in connection with its investigation after the witnesses have testified at the administrative hearing. The case therefore turns, entirely, on whether the Jencks-Carr principles are applicable as part of the statutory right of cross-examination at the administrative hearing. The so-called "Jencks rule” emanates from Jencks v. United States, supra, 353 U.S. 657 . The petitioner there had been convicted of falsely swearing in an affidavit filed with the National Labor Relations Board that he was not a member of the Communist Party.

His conviction rested in large ¹³⁸ measure upon the testimony of two paid F.B.I. informants who described in some detail Jencks’ participation in Communist Party activities from 1946 to 1952. These witnesses had made regular written reports to the F.B.I. during that period describing, contemporaneously, the events about which they later testified; and Jencks moved, at trial, for copies of those reports. His request was denied. Reversing the conviction, the Supreme Court rejected the notion that Jencks was required "to lay a preliminary foundation of inconsistency” in order to obtain the reports.

It noted the "crucial nature” of the testimony offered by the two witnesses and the singular importance to Jencks that that testimony be impeached. It then observed, at p. 667: "Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.” Building from this, the Court went on to state that, unless a testifying witness actually admits making a prior inconsistent statement, "the accused is helpless to know or discover conflict without inspecting the reports.” Id. at 668 .

Thus, it held that Jencks was entitled to inspect the contemporaneous reports made to the F.B.I. by the two testifying witnesses "touching the events and activities as to which they testified at the trial.” Id. "We hold, further,” it said, "that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to ¹³⁹ determine the effective use for purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be