City of Annapolis v. Rowe

SALMON, Judge. On October 15, 1992, Lieutenant Kenneth E. Rowe, Jr., of the Anne Arundel County Fire Department, and his wife, Kimberly, filed suit against appellant, the City of Annapolis (the “City”). They also sued Mayor Alfred A. Hopkins; Fire Chief Edward P. Sherlock, Jr.; Deputy Chief Charles W. Smith III; and former City Attorney Jonathan A. Hodgson. The complaint set forth six causes of action.

The counts and allegations were: Count I, a violation of Lt. Rowe’s rights under 42 U.S.C. § 1983 ; Count II, a violation of Lt. Rowe’s Maryland constitutional rights; Count III, intentional infliction of emotional distress; Count IV, defamation; Count V, negligence; and Count VI, loss of consortium. Prior to trial, the court granted summary judgment in favor of all defendants as to Count III.

In regard to Count TV, the defamation count, the court granted summary judgment as to Deputy ²⁷⁰ Chief Charles W. Smith but denied the motion as to the remaining defendants. And, as against all defendants except the City, the court granted summary judgment as to Count V. After a bench trial, the trial judge granted judgment to the City as to Count V and to all defendants as to Count IV but ruled against the City and in favor of Lt. Rowe as to Count I (violation of constitutional rights as protected by 42 U.S.C. § 1988 ) and Count II (denial of Lt. Rowe’s rights as protected by the Maryland Constitution).

In regard to Count VI, a joint claim by Lt. Rowe and his wife for loss of consortium, the court ruled in favor of the City insofar as the count attempted to assert a claim for loss of consortium under 42 U.S.C. § 1983 but granted judgment in favor of the Rowes on the portion of their claim that sought recompense for loss of consortium due to a violation of rights protected by the Maryland Constitution. The court awarded Lt. Rowe $30,000 for the violation of his state and federal constitutional rights and awarded $20,000 to Lt.

Rowe and his wife, jointly, for loss of consortium. The trial court also awarded plaintiffs attorneys’ fees for amounts charged by the Rowes’ counsel in litigating the 42 U.S.C. § 1983 claim. In deciding the case, the trial judge correctly pointed ' out that Article 24 of the Maryland Constitution, like the Due Process Clause of the Fourteenth Amendment, “protects due process rights and is construed in pari materia with the federal Due Process Clause.” (Citing Pitsenberger v. Pitsenberger, 287 Md. 20, 27 , 410 A.2d 1052 (1980)). His decision in favor of the Rowes was based on three conclusions: 1.

That Lt. Rowe, as a firefighter with 24 years experience, had a due process right to a hearing, prior to being terminated. 2. That Lt. Rowe was terminated by the City from his job as a firefighter on November 1, 1991, without a hearing. 3.

Assuming, arguendo, that Lt. Rowe was not terminated on November 1, 1991, he still suffered a constitutional ²⁷¹ deprivation when he was suspended on November 1st and deprived of his right to practice his trade. The City filed this timely appeal raising three issues: I. Whether the lower court erred in finding that Lt. Rowe was “terminated” on November 1, 1991, by a “notice of disciplinary action” letter that was given to appellee that day.

II

Whether the lower court erred in finding that Lt. Rowe was deprived of a constitutionally protected property interest in “continued employment” although he received full salary and benefits during the two-month period he was off from work.

III

Whether the lower court erred in finding that Lt. Rowe’s federal and state constitutional due process rights were violated when the City did not provide appellee a hearing before he was suspended with pay. We answer each of these questions in the affirmative and reverse. BACKGROUND FACTS In August 1991, an internal affairs investigation of the Annapolis Police Department uncovered evidence that certain Annapolis City police officers and Annapolis Fire Department personnel had engaged in on-duty sexual misconduct with local women who called themselves “the Road Warriors.” Lt.

Rowe was implicated in the investigation when Sheryl B., a former employee of the Fire Department, told the investigators that her aunt, Pam H., had told her that she had engaged in sexual relations with Lt. Rowe. 1 Ms. B. did not know whether the sexual relations took place while Lt. Rowe was on or off duty. 2 ²⁷² On October 16, 1991, Deputy Chief Charles Smith and firefighter Daniel Early questioned Lt. Rowe about whether he had ever personally been involved in, or knew about other firefighters who had engaged in, on-duty sexual relations.

Lt. Rowe was not informed that he was suspected of any specific improper conduct. He denied having been involved in any on-duty sexual activity and said he was unaware of any other Fire Department personnel who had engaged in such activity. Smith and Early also interviewed Kevin Thompson, a firefighter, who told them that Pam H. frequently visited Lt.

Rowe at the fire station. Additionally, Thompson stated that he had heard noises being made by firefighter Christy Shannon, which indicated that she was engaged in “some type of sexual activity” while she was in the Station Captain’s office with Lt. Rowe. Firefighter John Farrar acknowledged that he had seen Ms. Shannon and Lt.

Rowe in the Station Captain’s office and that Kevin Thompson had told him that he had heard “sexual noises” coming from that office. When Ms. Shannon was interviewed she denied ever engaging in sexual activities with Lt. Rowe. She did claim, however, that on one occasion Lt.

Rowe had acted improperly. She alleged that once, while she was taking a shower at the fire station, Lt. Rowe had entered the ladies’ locker room and indecently exposed himself to her. Based on the interviews and interrogations held by Smith and Early, Chief Edward Sherlock brought disciplinary action against Lt.

Rowe and firefighter Robert Thomas. Thomas, like Lt. Rowe, had denied either being involved in or having knowledge of any on-duty sexual relations, although others had implicated him in such activities. On November 1, 1991, Lt.

Rowe received a “Notice of Disciplinary Action” (the “Notice”), signed by Chief Sherlock, which stated, inter alia, that he had determined that Lt. Rowe had “engaged in prohibited sexual conduct” while on duty as an Annapolis firefighter and that he had given “false and misleading answers to the questions that were asked ... by Deputy Chief Smith in the course of th[e] investigation.” The ²⁷³ Notice gave no specific information regarding when, where, or with whom Lt. Rowe had engaged in prohibited sexual activities. The Notice concluded by stating: This is to advise you that you are terminated from the Annapolis Fire Department effective November 21, 1991.

Until that date you will continue to receive pay but your services shall no longer be required by the Department. As is established by Section 3.16.120 of the Annapolis City Code, you shall be afforded a hearing before me to respond to the reasons for this disciplinary action. You must request this hearing in writing no later than November 8, 1991.... On November 5, 1991, Lt.

Rowe delivered a letter to Chief Sherlock requesting a hearing on the matter. Pursuant to Annapolis City Code § 3.16.120F, Lt. Rowe was afforded a hearing on November 15, 1991, to respond to and challenge the proposed disciplinary action. At the hearing, Lt.

Rowe, through his attorney, contended that the Notice was too vague to respond to, stating, “We have not yet been told why [Lt. Rowe] is being terminated, and until we are told we cannot tell you why he should not be terminated. Until we are notified, there is nothing to which we can respond.” On November 19, 1991, Lt. Rowe filed suit in the Circuit Court for Anne Arundel County seeking an injunction to (1) prohibit his termination and (2) require that the City provide him with written notification of the reasons for his termination as required by Annapolis City Code § 3.16.120D.

As a result of the suit, and on the same day suit was filed, the City withdrew the Notice “for the purposes of providing a more detailed statement of [Lt. Rowe’s] departmental violations and any intended disciplinary action to result.” Lt. Rowe, on December 2,1991, received a revised Notice of Disciplinary Action that detailed the specific sexual misconduct with which he was charged. The revised Notice was from Chief Sherlock, who said, in part: Ms. Shannon also states ... that there were occasions when you and a civilian female, who has been shown by this ²⁷⁴ investigation to have participated liberally in on-dnty sexual activity with other Firefighters and Police Officers, would enter the Station Officer’s Office at Station 39 and close the door.

Ms. Shannon states that once inside the Station Officer’s Office the two of you would remain behind those closed doors for periods of time ranging from fifteen minutes to less than two hours. These statements of Ms. Shannon are corroborated by the statement of Firefighter Kevin Thompson. The Chief advised Lt. Rowe that he believed that “a preponderance of the evidence” would support the conclusion that sexual activities occurred between the civilian female and Lt.

Rowe but that the behavior was unacceptable in any case because it “resulted in the effective removal” of the highest ranking officer from the station house and “set a poor and unacceptable example for subordinate officers.” The revised Notice also said that the Chief believed Ms. Shannon’s story, which was that Lt. Rowe had entered a room where Ms. Shannon was taking a shower; he had waited for her to emerge from the shower and then had pulled her toward him and, with his “genitals exposed,” his “penis came in contact with her back.” The revised Notice further informed Lt. Rowe that he was not to report to work again and that he would be terminated effective January 2, 1992, at 8 a.m., but that until that time he would continue to receive full pay and benefits. Lt.

Rowe was again informed that he would be afforded a hearing on the matter but that he must make a request for a hearing by December 6th. Lt. Rowe did not request a hearing from Chief Sherlock. Instead, on December 6, 1991, he exercised his rights under Annapolis City Code § 3.16.150 and appealed the Chiefs Notice of Disciplinary Action directly to the Civil Service Board.

Also on December 6, 1991, the Fire Department commenced a hearing regarding Robert Thomas. On the second day of the hearing, David Early, one of the key investigators in the case, testified that he had had sex with one of the Road Warriors. Early also confirmed that Chief Edward Sherlock knew, some six months earlier, of his involvement with one of ²⁷⁵ the women involved in the sex scandal. Charges against Thomas were dismissed on December 9, 1991, and he was promptly reinstated. 3 On December 30, 1991, the Mayor of Annapolis issued a written public statement in which he noted that “a number of procedures have been rightfully called into question” regarding the internal affairs investigation of the allegations of sexual misconduct by Annapolis police and fire officials. 4 He continued: “In view of the personally destructive nature of the continued hearings, I have asked that all charges against Lt.

Kenneth Rowe be dropped immediately and this entire episode be brought to a close.” Lt. Rowe received an official “Notice of Disciplinary Action Withdrawal” 5 on January 2, 1992, which informed him that he would not be terminated and that he was to report to duty on January 4, 1992. He reported for work as scheduled and remains a firefighter for the City of Annapolis. DISCUSSION “Supreme Court precedent requires that employees with vested employment rights must receive procedural due process prior to dismissal.” Murphy v. Baltimore County, 118 Md.App. 114, 124 , 701 A.2d 1208 (1997) (citing Gilbert v. Homar, 520 U.S. 924 , 117 S.Ct. 1807 , 138 L.Ed.2d 120 (1997)); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985); Mathews v. Eldridge. ²⁷⁶ 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976); Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972).

Procedural due process claims require a two-step analysis. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996). The first step is to determine whether the plaintiff was deprived of a protected property interest. Only if the answer to that question is in the affirmative do we then ask, “What process is due?” Id.

To determine what process is constitutionally due, we have generally balanced three distinct factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest.” Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976). Gilbert , 520 U.S. at-, 117 S.Ct. at 1812 (some citations omitted). Due process is generally satisfied by a limited pretermination hearing followed by a more comprehensive post-termination hearing. Gilbert , 520 U.S. at-, 117 S.Ct. at 1811 (citing Loudermill, supra). “[T]he pretermination hearing ‘should be an initial check against mistaken decisions.’ ” Id.

(quoting Loudermill, 470 U.S. at 545 , 105 S.Ct. at 1489 ). Although the Supreme Court has consistently held that a public employee dismissible only for cause cannot be terminated without due process, see, e.g., Roth, 408 U.S. at 578 , 92 S.Ct. at 2709 , it has “not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured public employees short of termination.” Gilbert, 520 U.S. at —, 117 S.Ct. at 1811 (emphasis added). It is undisputed that Lt. Rowe had a constitutionally protected property interest in his continued employment. 6 The ²⁷⁷ City, however, argues that “the lower court erred in finding that Lt.

Rowe was ‘terminated’ on November 1, 1991, by a ‘Notice of Disciplinary Action’ letter that was given to appellee that day.” Agreeing with the City that the decisive issue in this case depends on whether the City deprived Lt. Rowe of a constitutional right by its actions on November 1, 1991, the Rowes admit that: resolution of this case hinges on a determination of whether or not a “deprivation” occurred on November 1, 1991. If it did, it is clear that Lt. Rowe received no due process to that point, and the decision below should be affirmed in its entirety.

If, as [ajppellants contend, a deprivation never took place, ... Lt. Rowe was not entitled to any due process, and there were no rights of his to be violated. (Second emphasis added.) A. The trial court relied on three cases in support of its determination that Lt.

Rowe “effectively was terminated” by the November 1, 1991, Notice of Disciplinary Action: Seibert v. State of Oklahoma ex. rel. University of Oklahoma Health Sciences Ctr., 867 F.2d 591 (10th Cir.1989); Gniotek v. City of Philadelphia, 808 F.2d 241 (3d Cir.1986), cert. denied, 481 U.S. 1050 , 107 S.Ct. 2183 , 95 L.Ed.2d 839 (1987); Thurston v. Dekle, 531 F.2d 1264 (5th Cir.1976). In Seibert , an employee with a constitutionally protected property interest in his continued employment was terminated for insubordination. His pay and benefits were immediately discontinued.

The termination was not official for at least ten working days, however, because pursuant to his employer’s policy he was afforded the right to challenge his termination. Seibert, 867 F.2d at 593 . Appellant never exercised his right ²⁷⁸ to a hearing and after ten days he was sent a letter stating that he was officially terminated. Id.

Appellant then filed suit claiming, among other things, that his due process rights were violated. On appeal, the United States Court of Appeals for the Tenth Circuit held that the employee effectively was terminated on the day that he was first notified that he was going to be terminated and not on the termination date mentioned in the official letter of termination. Id. at 597 . The court explained: Although a termination technically is not final for ten days [after the receipt of the notice of termination], in our view the University’s policies demonstrate that as a practical matter, termination occurs as soon as the employee is given “notice of termination.” During the ten-day period and during the pendency of grievance procedure ..., the employee is not allowed to work.

More to the point, the employee receives no pay during that time. In addition, if the employee’s grievance is not successful and the termination ultimately is upheld, then the effective date of the termination relates back to the date of the initial notice. Id. at 597-98 (emphasis added; citations omitted). In the second case, Gniotek v. City of Philadelphia, six Philadelphia police officers were identified in testimony in a federal court as bribe recipients.

Gniotek, 808 F.2d at 242 . Upon learning of this testimony, the Philadelphia Police Ethics Accountability Division (EAD) summonsed the officers to EAD headquarters to discuss the matter. Each officer was given his Miranda 7 warnings and was asked if he would like to make a statement. Id.

On the advice of counsel, each of the officers declined to speak. The officers immediately received a pre-prepared “Notice of Suspension with Intent to Dismiss,” which was effective immediately and suspended the officers without pay for a period of 30 days or until dismissal. Id. Four days later, the officers received a “Notice of Inten ²⁷⁹ tion to Dismiss” that specified the charges against them and stated that, if an individual officer thought the dismissal was unjustified, he could, within ten days, submit his claim before the board.

Id. Each officer was officially dismissed at the end of the ten-day period. Id. The Third Circuit found that the officers’ deprivation occurred when they were suspended without pay, not when they were officially dismissed ten days later.

Id. at 243 . The court held that before the police officers could be “suspended with intent to dismiss[,] they were entitled to whatever pretermination procedures the Constitution mandates prior to actual dismissal.” Id. at 244 . The court based its reasoning on the fact that it found “the suspensions [without pay] with intent to dismiss were de facto dismissals and the deprivation, therefore, occurred when they were suspended, i.e., before they were given 10 days to respond [to the notices of dismissal].” Id. at 243 . In Thurston v. Dekle, appellant was given a letter on August 13, 1973, stating that he was suspended as of that day.

Thurston, 531 F.2d at 1266 . The letter advised that his suspension would be without pay for 30 days after which he was to be discharged permanently. Id. The employee also was informed of his right to appeal.

Appellant’s suspension and termination were upheld after a hearing on September 10th before the Civil Service Board of the City of Jacksonville. Id. On appeal, the Fifth Circuit held that appellant was entitled to a pre-suspension hearing. Id. at 1272 .

The court explained: The City argues that its employees may seek review of their suspension without pay. During this period of suspension without pay, however, the employees lose all benefits of employment. In addition, the suspension automatically becomes termination unless the Civil Service Board on review orders reinstatement and backpay. The [trial c]ourt correctly saw this suspension process as no more than a facade.

It held that “in reality, ‘suspension’ under the ²⁸⁰ present state of facts ... is subject to the condition subsequent that an employee may be reinstated with backpay upon successful appeal.” Since suspension without pay is in reality termination, the city must provide whatever pretermination procedures the Constitution mandates prior to suspension without pay. Id. (emphasis added) (first omission in original). We do not contest the soundness of the decisions just reviewed.

Each of these cases, however, involved employees who were suspended without pay pending termination and, thus, are distinguishable from the case sub judice. This distinction is important. When an employee’s paycheck is discontinued pending termination, he has lost the major benefit of his employment and has suffered a deprivation similar to an actual termination. Hence, in such cases, a suspension without pay amounts to a de facto termination.

In each of the cases relied upon by the trial court, the courts particularly emphasized that the employee received no pay while the employee’s hearing was pending. And, significantly, appellees cite no case from any jurisdiction where the court has held that an employee who is suspended with pay is entitled to a pre-suspension hearing. 8 The Annapolis City Code requires that an employee be afforded a hearing prior to being terminated. Section 3.16.120 of the Code, in pertinent part, reads: D. When the appointing authority takes disciplinary action pursuant to this chapter, the appointing authority shall file with the employee and the personnel director a written notification containing a statement of the reasons for the action. F. Prior to the imposition of discipline consisting of suspension without pay, demotion or dismissal, the em ²⁸¹ ployee may file with the appointing authority and personnel department a written request to be heard informally by the appointing authority in response to the reason for the action.

Such a request shall be filed not later than five working days following the date of the notice of disciplinary action.... The employee’s right to a hearing ... shall be waived if not timely filed. (Emphasis added.) It is clear from a plain reading of subsection F, coupled with the unambiguous words in the Notice, that appellant was not terminated on November 1, 1991. Moreover, because Lt.

Rowe’s salary and benefits were never discontinued, there was not a de facto dismissal. From the first Notice of Disciplinary Action it was crystalline that November 21, 1991, was the earliest date that Lt. Rowe could be terminated and the earliest date that his benefits and salary could be discontinued. 9 Lt. Rowe attempts to draw a distinction between his case and others relied upon by the City by arguing that the Notice “issued to [him] was an announcement as to what Chief Sherlock had already concluded about [the charges against him], and what he had already determined should be done about them.” (Emphasis in original.) Appellee, we presume, is arguing that it was unconstitutional for Chief Sherlock to have made a decision to terminate him before he was provided with a hearing.

The case of Jackson v. St. Joseph State Hospital, 840 F.2d 1387 (8th Cir.), cert. denied, 488 U.S. 892 , 109 S.Ct. 228 , 102 L.Ed.2d 218 (1988), addresses this issue. In Jackson , appellant was placed on administrative leave with pay pending an investigation of an alleged incident that took place between Jackson and a female co-worker. Id. at 1389 . Three weeks later, appellant received a dismissal letter, which informed him that his employment (and salary) would be terminated effective 11 days hence.

He was further in ²⁸² formed that he had a right to a hearing to show cause why he should not be fired. Id. Appellant filed a written response explaining why he should not be terminated. The board, however, rejected his explanation and upheld the decision to terminate the employee.

Id. On appeal, appellant argued that his due process rights were violated “because his termination letter indicated that the decision to terminate had already been made.” Id. at 1391 . The Eighth Circuit held that the Due Process Clause “does not require predecision hearings. It only requires an opportunity to be heard prior to the termination of benefits.” Id.

(emphasis added). The court further stated: Jackson’s benefits — his salary — were not terminated until February 28, 1983. From February 17 until February 28 he had the opportunity to present his case and on February 23, 1983 he made a written response to the dismissal letter. Because Jackson was given the opportunity to be heard prior to the