Coleman v. Anne Arundel County Police Department

KENNEY, Judge. This appeal arises out of disciplinary action taken against appellant, Charles Coleman, by the Chief of Police of Anne Arundel County (the “Chief’) pursuant to a recommendation from the Administrative Hearing Board (the “Board”). Appellant petitioned for judicial review, and the Circuit Court for Anne Arundel County affirmed the Board’s decision. Appellant raises five questions for our review: 1.

Whether the Department erred, as a matter of law, and acted in an arbitrary and capricious manner, when it failed to comply with departmental rules mandating an interview with Cpl. Coleman, which would have caused neutral investigators to terminate the investigation with the charges “unsustained”? 2. Whether the Department denied due process of law, and violated the express requirements of the Family and Medical Leave Act (FMLA), when the Board denied a continuance, despite undisputed psychiatric evidence of, and medical treatment for, a severe mental disability (an FMLA “serious health condition”), which caused the Department to order Cpl. Coleman to take leave under the FMLA? 3.

Whether the Department denied due process of law, and acted in an arbitrary and capricious manner, when the Board Chair denied a motion to recuse himself, despite (1) Cpl. Coleman’s entitlement to a peremptory challenge ⁴²⁵ against the Chair through the collective bargaining agreement, and (2) the Chair’s bias against Cpl. Coleman by making a complaint that he lacked integrity and then denying having made the complaint until confronted? 4. Whether the Department erred, as a matter of law, by seizing evidence from Cpl.

Coleman’s person, in violation of his Fourth Amendment protection against unreasonable searches and seizures, and then using that evidence to convict him of eight theft-related charges? 5. Whether the Department denied due process of law when it convicted Cpl. Coleman of eight theft-related counts, and terminated him just shy of retirement, based on a mere preponderance of the evidence—thus tolerating a 49% risk of error—when both the Supreme Court and Maryland mandate a burden of persuasion standard of clear and convincing evidence for administrative charges of theft and dishonesty? STATEMENT OF FACTS On December 4, 1997, the Internal Investigation Division (IID) of appellee, Anne Arundel County Police Department (the “Department”), conducted an investigation targeting appellant, a nineteen year veteran of the force.

A number of items were assembled to be turned over to appellant to determine whether he would properly process them. The following articles were put into a green cloth fanny pack: three Tylenol tablets, a clear plastic baggy with white residue, two black film canisters with leafy vegetable residue, a Mickey Mouse key chain with a key and toy baseball bat attached, and a total of $76.25, consisting of three nickels, one dime, two $20 bills, three $10 bills, one $5 bill, and one $1 bill. Two Howard County detectives, posing as ordinary citizens, turned the fanny pack over to appellant. They advised him that they had found the pack containing no identification outside a convenience store.

Appellant asked them no questions and let them leave without taking down any information. Appellant radioed in for a case number for the recovered ⁴²⁶ property and potential controlled dangerous substances (CDS) and then returned to the police station. Appellant then called the convenience store and spoke with the clerk, who indicated that no one had reported lost or stolen property. Appellant prepared the suspected CDS for forwarding to the laboratory for testing.

He placed the CDS into a sealed envelope, labeled the envelope appropriately, had the envelope witnessed, and recorded it in the logbook. These actions comported with departmental regulations. Appellant separated the bills from the rest of the items left in the fanny pack. He filled out a “Recovered Property Form” on which he made the following notations: “Mickey Mouse key chain with one key” and “3 nickels, 1 dime American currency.” These items were placed in a blue envelope.

Neither the Tylenol tablets nor the bills were turned in. Appellant has maintained that it was his understanding that he needed a supervisor to count the paper currency, seal the envelope containing it, and sign the envelope. Because there was no supervising officer on duty that evening, and he believed it unwise to leave the money on his desk, appellant put it in his shirt pocket. He took it with him -with the intention of having it signed in later by a supervisor.

Believing that he would see his direct supervisor at some point during the shift, appellant did not seek out a supervisor. Instead, he went back out to work on making his performance levels for DWIs and traffic tickets. Appellant took the money home with him. The next morning, he put it with the rest of his money, and took it with him to a court appearance.

He stopped by a fast food restaurant and paid with a five dollar bill. After court and pursuant to orders to return to the station, appellant was ordered by the on-duty lieutenant that afternoon, Lieutenant Kenneth Schlein (“Lt. Schlein”), to empty his pockets and, after he did, to surrender the money to him. Schlein testified at the hearing that the following exchange, initiated by appellant, took place: [Appellant:] It’s here. ⁴²⁷ [Lt.

Schlein:] What’s here? [Appellant:] All the money from last night: sixty-five dollars; [1] I knew it was a setup; It was stupid of me. Appellant pulled a money clip out of his pocket and took $71 from the total amount he had and began comparing the bills himself to the ones an IID officer had photocopied the previous day. Lt. Schlein confronted appellant with the five dollar difference, and appellant stated that he must have spent the money.

Coleman was served an emergency suspension notice the same day. 2 On December 12, 1997, he was charged with violating eight Anne Arundel County Police Department rules, regulations, policies and/or procedures. We quote from the Statement of Facts contained in appellant’s brief, which accurately summarize the charges as follows: Charge 1 alleged that Cpl. Coleman failed to conform to “Md. Ann.Code art. 27, section 342” (the theft offense statute) when he “stole the $76.00 instead of reporting its recovery and submitting it ...” Charge 2 alleged that Cpl. Coleman violated the integrity of the reporting system when he “[flailed to submit [an] accurate and complete recovered property incident report.” Charge 3 alleged that Cpl.

Coleman engaged in conduct unbecoming a police officer by committing “[t]heft” in that he “stole the $76.00” and his “conduct was criminal, dishonest and improper.” Charge 4 alleged that Cpl. Coleman neglected his duty and had an unsatisfactory performance “by stealing $76.00.” Charge 5 alleged that Cpl. Coleman violated the reporting requirement regarding property or contraband by committing “[t]heft” when he “stole the $76.00 instead of reporting its recovery.” Charge 6 alleged that Cpl. Coleman failed to comply with the Recovered Property Form by “not put[ting ⁴²⁸ $76] on Recovered Property Form.” Charge 7 alleged that Cpl.

Coleman violated the truthfulness requirement by “[intentional misrepresentation by not mentioning $76.” Charge 8 alleged that Cpl. Coleman violated his oath of office and the Code of Ethics by the fact that he “[s]tole the $76 ..., was dishonest in thought and deed, and showed disrespect for ... the law against theft.” The hearing before the Board was originally scheduled to take place on February 3, 1998. Pursuant to appellant’s request, the hearing was continued to February 9, 1998. After an additional request by appellant, the hearing was again postponed from February 9, 1998, to March 11, 1998.

Additional correspondence then took place between IID and appellant wherein appellant requested hearing dates of April 27, 28, and 29, 1998. The Chair of the Board, Lieutenant Thomas Rzepkowski (“Lt. Rzepkowski”), granted this further continuance, and the hearing began on April 27,1998. In the meantime, on or about April 6, 1998, appellant was placed on Family and Medical Leave pursuant to the FMLA due to mental illness.

Appellant’s personal physician, Dr. Dvoskin, identified his illness as “adjustment disorder with depressed mood, consider major depression.” Dr. Dvoskin certified that appellant was unable to perform his duties and that it would not be possible for the Department to offer him reasonable accommodations so that he could continue working. The Board convened for a hearing that lasted three days. On May 15, 1998, the Board sent its disposition and recommendation to the Chief. In its report, the Board made extensive findings of fact and unanimously found appellant guilty of all eight charges.

The Board was also unanimous in its recommendations for punishment. It recommended termination in connection with Charges 1, 3, 4, 5, 7, and 8, and twelve day suspensions in connection with Charges 2 and 6. The Board, in light of the fact that appellant was so close to retirement, also stated the following: In recommending this punishment, it is not the intent of the Board to allow Corporal Coleman to safely retire and ⁴²⁹ avoid the stigma of being “fired.” The recommendation is for termination. However, the Board carefully listened to and considered the mitigating factors which Defense Counsel persuasively explained, including the financial impact to innocent family members.

The Board also scrupulously viewed Corporal Coleman’s 19+ year personnel folder. With minor exception, Corporal Coleman’s work history is positively portrayed with sufficient commendations for good work performance. In the absence of any evidence offered to the contrary, the Board felt that it did not want to take away that which Corporal Coleman had apparently earned. In fashioning its recommendation, the Board decided to ask the Chief of Police to consider allowing Corporal Coleman to be credited for any leave which he was lawfully entitled to prior to actual termination.

The Board did not have access to actual numbers credited to Corporal Coleman, but the Board intended Corporal Coleman to be terminated the moment his leave ran out. The Board also did not have particular knowledge of accepted County policy regarding retirement eligibility details, but the Board did not intend to give anything additional to Corporal Coleman to allow him to reach his actual retirement date. If his numbers gave him the time permitted by contract to leave County service at 20-years, he would then be terminated at that first available date. (Emphasis in original).

The Chief issued his final order on June 2, 1998, immediately terminating appellant’s employment. Discussion When reviewing a decision of an administrative agency, this Court’s role is “precisely the same as that of the circuit court.” Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-304 , 641 A.2d 899 (1994) (citation omitted). “Judicial review of administrative agency action is narrow. [Our] task on review is not to ‘substitute [our] judgment for the expertise of those persons who constitute the administrative agency.’ ” United Parcel Service, Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 576-577 , 650 A.2d ⁴³⁰ 226 (1994) (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 513 , 390 A.2d 1119 (1978)). Rather, “[t]o the extent the issues on appeal turn on the correctness of an agency’s findings of fact, such findings must be reviewed under the substantial evidence test.” Dep’t of Health & Mental Hygiene v. Riverview Nursing Centre, Inc., 104 Md.App. 593, 602 , 657 A.2d 372 , cert. denied, 340 Md. 215 , 665 A.2d 1058 (1995) (citation omitted). The reviewing court’s task is to determine “whether there was substantial evidence before the administrative agency on the record as a whole to support its conclusions.” Maryland Comm’n on Human Relations v. Mayor & City Council of Baltimore, 86 Md.App. 167, 173 , 586 A.2d 37 , cert. denied, 323 Md. 309 , 593 A.2d 668 (1991).

The court must exercise a “restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions.” State Admin. Bd. of Election Laws v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988) (quoting Supervisor of Assessments of Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 625 , 547 A.2d 190 (1988)). The reviewing court’s analysis has three parts: 1. First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case.

The reviewing court is not constrained to affirm the agency where its order “is premised solely upon an erroneous conclusion of law.” 2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. At this juncture, “it is the agency’s province to resolve conflicting evidence, and, where inconsistent inferences can be drawn from the same evidence, it is for the agency to draw the inference.” ⁴³¹ 3. Finally, the reviewing court must examine how the agency applied the law to the facts.

This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is “whether, ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].” Comptroller of the Treasury v. World Book Childcraft Int’l, Inc., 67 Md.App. 424, 438-439 , 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986) (quoting Ramsay, Scarlett & Co., Inc. v. Comptroller of the Treasury, 302 Md. 825, 834-838 , 490 A.2d 1296 (1985)). I. Appellant’s first complaint is that the Department acted in an arbitrary and capricious manner by failing to interview appellant as required under Department Directive 303.2 IV, which mandates that “[a]ll investigations will include interviews of the complainant, any known witnesses, and the officer^) involved.” 3 Appellant argues, essentially, that the Department’s failure to follow its own rules and regulations deprived him of due process rights guaranteed by the directive. He contends that “[h]ad IID interviewed Cpl.

Coleman, as required, neutral investigators would not have sustained administrative discipline charges against him.” The law that governs this case is the Law Enforcement Officer’s Bill of Rights, Md.Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Art. 27, §§ 727-734D (“LEOBR”). LEOBR § 734B provides: ⁴³² Except for the administrative hearing process provided for in Article 41, § 4-201 concerning the certification enforcement power of the Police Training Commission, the provisions of this subtitle shall supersede any State, county or municipal law, ordinance, or regulation that conflicts with the provisions of this subtitle, and any local legislation shall be preempted by the subject and material of this subtitle. See also Moats v. City of Hagerstown, 324 Md. 519, 527-30 , 597 A.2d 972 (1991) (discussing the legislative history behind the statute and noting that it “clearly supports the position that the procedures of the [LEOBR] are exclusive”). Thus, we look to LEOBR to determine whether appellant was required to be interviewed in this case.

The procedures to be followed with respect to interrogation or investigation can be found at LEOBR § 728(b). As appellant acknowledged at oral argument, there is no requirement in the statute for a mandatory interview of the officer by independent investigators. The Department contends that “[a]ppellant, himself, testified he was ‘interviewed’ by detectives.” 4 Appellant did not dispute that he made this statement. To the extent that this is an admission, appellant is estopped from complaining that he was not interviewed.

Appellant noted at oral argument that LEOBR requires each interrogation to be recorded, LEOBR § 728(b)(8), and argued, for the first time, that this provision had been violated. This issue has not been fully briefed, and we decline to address it. Furthermore, the record is not clear, apart from appellant’s admission, than an “interview” with detectives took place, and, if it did, whether that “interview” rose to the level of an interrogation.

II

Appellant argues that the Board conducted his disciplinary hearing at a time when he was fully disabled. Appellant ⁴³³ contends that holding the hearing, in light of his disability, was in contravention of the FMLA, which does not require persons on leave to report to work. At oral argument, appellant contended that being required to attend the hearing was tantamount to being required to work. Appellant offers no cases in support of his contention that a person on FMLA leave cannot be disciplined or terminated for actions occurring prior to taking leave.

Turning first to the language of the statute, we note that the FMLA provides that an employee on FMLA leave is not entitled to anything more than what he/she was entitled to if he/she had not taken leave. 29 U.S.C. § 2614 (a); 5 see also 29 C.F.R. § 825.216 . 6 Furthermore, an employer may deny resto ⁴³⁴ ration of the employee to his former job if the employer can show that the employee “would not otherwise have been employed at the time of reinstatement.” 29 C.F.R. § 825.216 (a). This has been held to apply to employees terminated for disciplinary reasons. Renaud v. Wyoming Dep't of Family Serv., 208 F.3d 723, 732 (10th Cir.2000) (Although employee took FMLA leave for treatment of alcoholism, disciplinary action was proper even though it resulted in appellant’s termination for violating Wyoming’s substance abuse policy by being intoxicated on the job.) Courts have allowed employees to be terminated for wrongdoing when the wrongdoing occurred, and was known of, prior to the employee taking FMLA leave. Beno v. United Telephone Company of Florida, 969 F.Supp. 723, 726 (M.D.Fla.1997).

In Beno , the employee had requested reimbursement for meals for which she was not entitled to reimbursement, and, although she was on FMLA leave at the time she was fired, the decision to terminate her had been made prior to the leave. Beno, 969 F.Supp. at 726 . See also Carrillo v. The National Council of Churches of Christ in the U.S.A., 976 F.Supp. 254, 256 (S.D.N.Y.1997). In other words, “if [the employee] would have been terminated because of poor work performance regardless of whether [he or] she took leave, then [the employer] did not violate FMLA.” Hubbard v. Blue Cross Blue Shield Ass’n, 1 F.Supp.2d 867, 875 (N.D.Ill.1998).

See also Clay v. City of Chicago Dep’t of Health, 143 F.3d 1092 , 1094 (7th Cir.1998). ⁴³⁵ In this case, the integrity test occurred on December 4, 1997, and appellant was charged with disciplinary violations on December 12, 1997. Approximately four months later, on April 6, 1998, appellant was placed on FMLA leave. Although appellant was on FMLA leave at the time of his hearing, the disciplinary action was underway prior to his leave. In addition, appellant’s requests for continuance were responsible for the hearing taking place at the time it did.

Hearings had been scheduled for February 3, 1998, then February 9, 1998, then March 11, 1998, prior to appellant settling on April 27, 1998, as the day the hearing would take place. Therefore, appellant was at least partially responsible for the fact that the hearing occurred while he was on FMLA leave. Under these circumstances, we do not believe that proceeding with a hearing scheduled in cooperation with appellant violated the FMLA. Insofar as appellant claims that proceeding with the scheduled hearing violated his due process rights because of his psychological condition, appellant filed no formal motions based on competency prior to the beginning of the hearing even though he was placed on FMLA leave approximately three weeks before.

Moreover, he did not raise the issue of competency and the need for a further continuance until after he had already testified in connection with his motion to have Lt. Rzepkowski recuse himself for bias. The next motion that I have is a motion for a continuance of the matter on the basis of my client’s medical condition. The Anne Arundel County Police Department contacted Dr. Philip Dvoskin, ...

And required Dr. Dvoskin to make a determination whether or not my client was suffering a disability, a disabling condition which prevents him from working. That letter was sent to Dr. Dvoskin on April 6th, 1998 and Dr. Dvoskin was required to respond to the request of the Police Personnel Section, Manager Bjorn Pedersen.... The Police Department has been on notice since the response of Dr. Dvoskin that my client is disabled and cannot work, suffers impairments to concentration and is taking psychotropic medications, undergoing psychothera ⁴³⁶ py, is under sedation, antidepressants and suffering marked depressive affects and he, he is found by the doctor to be fully disabled at this time. And obviously a fully disabled police officer should not have received a summons and an order to be present here in court and this was all accomplished by the Police Department and I’d like to mark this as a defense exhibit in support of a motion and respectfully request that this matter be adjourned until such time as my client reached medical improvement.

In denying the motion, the Board found that, although [a document submitted concerning appellant’s medical condition] does make reference to his um, abilities to perform the functions of a police officer, it does not reference specifically his ability to be here today to testify at this hearing. As a matter of fact and previously recalled on the record Corporal Coleman has already testified this morning and uh, Mr. Ahlers has described his client’s testimony as competent already this morning and there is no reason for this Chairman or this Board for that matter to believe that his testimony previous was [not] competent and cannot be competent for the remainder of this Hearing. We believe that appellant’s competency to defend himself at his administrative hearing is akin to competency to stand trial. In order to be competent to stand trial, a defendant must exhibit both the “present ability to consult with his lawyer with a reasonable degree of rational understanding—and ... a rational as well as factual understanding of the proceedings against him.” Thanos v. State, 330 Md. 77, 87 , 622 A.2d 727 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402 , 80 S.Ct. 788, 789 , 4 L.Ed.2d 824 (1960)).

During his testimony concerning the requested recusal of Lt. Rzepkowski, appellant answered his attorney’s questions with full understanding; he remembered details that had taken place years earlier. There was no indication whatsoever that he was incapable of consulting with his lawyer or that he did not understand the proceedings against him. Appellant’s later testimony likewise indicated that he was able to compre ⁴³⁷ hend fully what was going on and to respond appropriately to questions that were asked of him by both the prosecutor and his own attorney.

In short, there was nothing to give the Board any indication that appellant was not competent such that his competency should have been questioned sua sponte. See Tilghman v. State, 117 Md.App. 542, 566-67 , 701 A.2d 847 (1997) (citing Thanos, 330 Md. at 81-87 , 622 A.2d 727 ).

III

Appellant’s third allegation of error is that he was denied due process of law when Lt. Rzepkowski refused to recuse himself from the hearing. This error is based both on appellant’s alleged right under a collective bargaining agreement to have a peremptory challenge against the Board’s membership, and on Lt. Rzepkowski’s alleged bias against appellant stemming from a “complaint” Lt.

Rzepkowski had filed against appellant in the past. Appellant has not provided us with a copy of the collective bargaining agreement he claims gives him a peremptory challenge to a member of the Board. Thus, we decline to discuss appellant’s arguments on that point, as we have no way of knowing what the collective bargaining agreement actually provides in regard to a peremptory challenge against the composition of a hearing board. 7 We turn to appellant’s arguments with respect to Lt. Rzepkowski’s alleged bias.

Appellant set out the charges Lt. Rzepkowski had previously made against him: [O]n a prior occasion you have personally made a complaint about Corporal Charles Coleman that during that complaint process you complained that he lacked integrity and that you’re now sitting as Chairperson of a Hearing Board specifically on a case where there is an integrity violation ⁴³⁸ alleged. It seems to me that it would be virtually impossible to be objective, open minded and fair as certainly you would agree the law would require you to be when you have prejudged my client’s integrity on a prior occasion and as a police official here in the Anne Arundel County Police Department caused an official investigation to be conducted against my client on the basis of integrity which is at the heart and soul of the case which you are present to hear about. According to appellant: I was notified by my lieutenant that I was under investigation ... in reference to a complaint by Sergeant Rzepkowski, that was a sergeant at that time in Narcotics in Eastern District TNT in reference to a complaint from Sergeant Rzepkowski that I had exposed his, his under cover identity in a uh, uh, liquor establishment that he was working and also that I had uh, failed to perform my duties as a police officer and uh, Captain Shanahan said that this was a serious investigation, serious incident, serious complaint and that he was personally investigating the complaint.

The investigation was apparently concluded in appellant’s favor, as he was never formally charged in the matter. For his part, Lt. Rzepkowski initially did not recall having made any complaints against appellant: I’m not aware of any formal investigation or charges, or investigation of any kind that I took place in which involved uh, your client as a defendant. I recall interviewing your client as witness to a uh, independent investigation I was conducting at the time.

And once again I’ll deny your motions for the repeal of myself. After appellant testified and after appellant’s counsel made further argument, Lt. Rzepkowski stated: I am aware of the previous incident that you’re referring to with Corporal Coleman. I have never formally charged Corporal Coleman with any charge.

I have not interviewed Corporal Coleman as a defendant to any charge. I’ve never told Corporal Coleman or anyone uh, involved with the ⁴³⁹ Police Department that I thought Corporal Coleman was a man of no integrity involving the police profession. As a supervisor in charge of an investigation at the time I expressed concerns to my commander about the interpretation of what I viewed Corporal Coleman’s actions in the process of my investigation as part of the uh, supervisory responsibilities and duties and consistent with the chain of command to note any complications or problems that may arise during an investigation. Those were noted.

I can’t comment on either his lieutenant[’]s or Captain Shanahan’s comments or directives to him at that time. Uh, that withstanding there is no reason at all to believe that I cannot be completely objective and unbias[ed] during this hearing process. The Board then noted that appellant had raised no objection to Lt. Rzepkowski’s bias or objectivity prior to the hearing. “[Tjhere is a strong presumption in Maryland ... and elsewhere ... that judges are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified....

The recusal decision, therefore, is discretionary ... and the exercise of that discretion -will not be overturned except for abuse.” Regan v. Bd. of Chiropractic Examiners, 355 Md. 397, 410-11 , 735 A.2d 991 (1999)