Coleman v. Anne Arundel County Police Department

HARRELL, Judge. This case was initiated as a personnel disciplinary action taken against former Corporal Charles Coleman, Petitioner, by the Chief of Police (“Chief”) of the Anne Arundel County Police Department (the “Department”), pursuant to a recommendation from a departmental Administrative Hearing Board (“Board”) that had convened in the matter in accordance with Maryland’s Law Enforcement Officers’ Bill of Rights (“LEOBR”), Maryland Code (1957, 1996 RepLVol., 1998 Supp.), Article 27, §§ 727-734D. 1 As a result, Petitioner’s employment by the Department was terminated. ¹¹² Events began in late 1997. Petitioner was then the target of a “sting” operation conducted by the Internal Investigation Division (“IID”) of the Respondent Department. Petitioner apparently had been the subject of an earlier “integrity test” and passed. 2 Continuing its investigation of Petitioner, IID assembled an assortment of items, including $76 in “marked” currency, in a fictitious “lost” fanny pack that was turned over to him on 4 December 1997 by undercover officers posing as citizens.

This effort was to determine whether Petitioner would process the property in accord with departmental policies. Although Petitioner properly processed several items in the fanny pack, the currency was not processed nor a receipt created for it by Petitioner before the end of his work shift. The following day, Petitioner was ordered to report to his station house and, upon arrival, was issued a written emergency suspension order by the on-duty lieutenant, acting at the direction of his superior officer. 3 Petitioner then was ordered to empty his pockets. It was discovered that Petitioner had co-mingled the marked currency with his own funds, except for $5 of the $76 that he had spent.

On 6 December 1997, Petitioner was suspended, with pay, pending further investigation or a determination by a hearing board. Petitioner appeared before a three member administrative disciplinary hearing board 4 on 27 April 1998, to answer ¹¹³ charges of eight essentially theft-related violations of the Anne Arundel County Police Department rules, regulations, and procedures. 5 Following a three-day evidentiary hearing, 6 at which Petitioner and his counsel were present and fully participating, the Board, in a unanimous decision, found Petitioner “guilty” of all eight charges. Pursuant to § 731 of the LEOBR, the Board, in its 15 May 1998. memorandum to the Chief, effectively recommended termination of Petitioner’s employment. 7 After considering several mitigating factors, the Board also suggested that Petitioner receive credit for any leave to which he was entitled prior to termination, thereby affording him the opportunity to bridge his time of employment to meet the twenty-years of service necessary for vesting ¹¹⁴ of retirement benefits. 8 On 2 June 1998, after reviewing the record, the Chief accepted the Board’s recommendation of termination, but decided to make the termination effective immediately. 9 On 1 July 1998, pursuant to § 732 10 of the LEOBR and in accordance with Maryland Rules 7-201-7-210, 11 Petitioner sought judicial review in the Circuit Court for Anne Arundel ¹¹⁵ County of his termination, alleging, inter alia, various errors of law, including an alleged error that the Board had applied the preponderance of the evidence standard of proof, rather than the clear and convincing evidence standard required by the circumstances, in its assessment of whether the Department had proven the charges. On 3 January 2000, the Circuit Court filed its Opinion and Order affirming the termination decision.

Of particular relevance, the Circuit Court, citing Meyers v. Montgomery County Police, 96 Md.App. 668 , 626 A.2d 1010 (1993), acknowledged that the preponderance of the evidence standard may be used by an LEOBR hearing board (see Meyers, 96 Md.App. at 708 , 626 A.2d at 1030 ), but concluded that the Board in this case actually considered and decided the case utilizing the clear and convincing standard. Accordingly, even assuming the clear and convincing standard was required to be used by the Board as Petitioner argued, the Circuit Court found no error because the record, in its judgment, satisfied that standard. Petitioner filed an appeal to the Court of Special Appeals, raising due process violations and other errors of law, and again asserting an alleged error concerning the appropriate standard of proof to be applied in a local police department action under the LEOBR. In a published opinion, the Court of Special Appeals affirmed.

Coleman v. Anne Arundel County Police Dep't, 136 Md.App. 419, 452 , 766 A.2d 169, 187 (2001). With regard to the proper standard of proof, the Court of Special Appeals found that the preponderance of the evidence standard was the correct standard to apply in a LEOBR case involving a local police disciplinary personnel action, but disagreed with the Circuit Court that the Board had utilized the preponderance of the evidence standard, not the clear and convincing standard, in the matter. Petitioner filed a petition for writ of certiorari with this Court, which was granted. Coleman v. Anne Arundel Police, 364 Md. 461 , 773 A.2d 513 (2001).

We also granted Respondent’s conditional cross-petition. The Maryland Chiefs of Police Association was permitted to file an amicus brief in support of Respondent. ¹¹⁶ Issues Petitioner presents'the following issue for our review: Whether Everett v. Balt. Gas & Elec. Co., 307 Md. 286 , 513 A.2d 882 (1986), the Due Process Clause, or both, require clear and convincing evidence — and not a mere preponderance of the evidence — to (1) convict a police officer of eight theft-related disciplinary charges, (2) terminate his career within nine months of retirement, and (3) deny him more than one million dollars in actuarially calculated retirement benefits?

In Respondent’s conditional cross-petition, the following question was presented: 12 Did the Court of Special Appeals err by failing to hold that the Petitioner’s trial Board used the clear and convincing standard? The Record We recount the underlying facts as framed by the Court of Special Appeals. On December 4, 1997, the Internal Investigation Division (IID) of [Respondent], Anne Arundel County Police Department (the “Department”), conducted an investigation targeting [Petitioner], a nineteen year veteran of the force. A number of items were assembled to be turned over to [Petitioner] 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. ¹¹⁷ Two Howard County detectives, posing as ordinary citizens, turned the fanny pack over to [Petitioner]. They advised him that they had found the pack containing no identification outside a convenience store. [Petitioner] asked them no questions and let them leave without taking down any information. [Petitioner] radioed in for a case number for the recovered property and potential controlled dangerous substances (CDS) and then returned to the police station. [Petitioner] then called the convenience store and spoke with the clerk, who indicated that no one had reported lost or stolen property. [Petitioner] 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.

Petitioner 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. [Petitioner] 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, [Petitioner] 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, [Petitioner] did not seek out a supervisor. Instead, he went back out to work on making his performance levels for DWIs and traffic tickets. [Petitioner] 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. ¹¹⁸ After court and pursuant to orders to return to the station, [Petitioner] 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 [Petitioner], took place: [[Petitioner]]: It’s here. [Lt. Schlein:] What’s here? [[Petitioner]]: All the money from last night: sixty-five dollars; 1 I knew it was a setup; It was stupid of me. [Petitioner] 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 [Petitioner] with the five dollar difference, and [Petitioner] stated that he must have spent the money. [Petitioner] was served an emergency suspension notice the same day. 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 [Petitioner’s] brief, which accurately summarize[s] 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 instead of reporting its recovery and submitting it ...” Charge 2 alleged that Cpl. Coleman violated the integrity of the reporting system when he “failed 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 “theft” 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 ¹¹⁹ stealing $76.00.” Charge 5 alleged that Cpl.

Coleman violated the reporting requirement regarding property or contraband by committing “theft” 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 $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 “stole the $76 ..., was dishonest in thought and deed, and showed disrespect for ... the law against theft.” 13 The hearing before the Board was originally scheduled to take place on February 8, 1998.

Pursuant to [Petitioner’s] request, the hearing was continued to February 9, 1998. After an additional request by [Petitioner], the hearing was again postponed from February 9, 1998, to March 11, 1998. Additional correspondence then took place between IID and [Petitioner] wherein [Petitioner] 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, [Petitioner] was placed on Family and Medical Leave pursuant to the FMLA due to mental illness. [Petitioner’s] personal physician, Dr. Dvoskin, identified his illness as “adjustment disorder with depressed mood, consider major depression.” Dr. Dvoskin certified that [Petitioner] 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 ¹²⁰ extensive findings of fact and unanimously found [Petitioner] guilty of all eight charges. The Board was also unanimous in its recommendations for punishment. It recommended termination in connection with Charges 1, 8, 4, 5, 7, and 8, and twelve day suspensions in connection with Charges 2 and 6. The Board, in light of the fact that [Petitioner] 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 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). ¹²¹ The Chief issued his final order on June 2, 1998, immediately terminating [Petitioner’s] employment. Coleman, 136 Md.App. at 425-29 , 766 A.2d at 172-174 (alterations in original) (citation omitted). We will include additional administrative factual findings as necessary to our analysis. Scope of Review No statute expressly establishes the scope of judicial review of an administrative proceeding initiated by a county police department pursuant to the LEOBR.

See Montgomery County v. Stevens, 337 Md. 471, 482 , 654 A.2d 877, 882 (1995); Younkers v. Prince George’s County, 333 Md. 14, 17 , 633 A.2d 861, 862 (1993) (noting that unlike the scope of review established under the State Administrative Procedure Act (APA) when a state police agency is involved, Md.Code (1984, 1993 Repl.Vol., 1993 Cum.Supp.), State Government Art., §§ 10-201-10-226, the LEOBR is silent as to a specified scope of judicial review ht a disciplinary action involving a county police officer). We have concluded that the scope of judicial review in a LEOBR case “ ‘is that generally applicable to administra tive appeals.’ ” Stevens, 337 Md. at 482 , 654 A.2d at 882 (quoting Younkers, 333 Md. at 17 , 633 A.2d at 862 ). 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....’” Id.

(quoting United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994)). See also Younkers, 333 Md. at 18-19 , 633 A.2d at 863 ; Meyers, 96 Md.App. at 708-09 , 626 A.2d at 1030 . While “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts,” Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376, 381 (1999), “we owe no deference to agency conclusions based upon errors of law.” State Ethics v. Antonetti, 365 Md. 428, 447 , 780 A.2d 1154, 1166 (2001). See Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 267 , ¹²² 734 A.2d 227, 232 (1999); Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749, 753 (1998).

Petitioner’s sole issue before us, namely, whether an incorrect standard of proof was applied in the assessment of whether the Department proved the charges, presents a purely legal question. Accordingly, this Court reviews the matter de novo. Discussion The Law Enforcement Officers’ Bill of Rights, currently codified at Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, §§ 727-734D, was enacted in 1974. See Chapter 722, Acts of 1974.

The primary purpose of the LEOBR is “ ‘to guarantee certain procedural safeguards to law enforcement officers during any investigation or interrogation that could lead to disciplinary action, demotion, or dismissal.’ ” Prince George’s County P.D. v. Zarragoitia, 139 Md.App. 168, 171 , 775 A.2d 395, 397 (2001) (quoting Meyers, 96 Md.App. at 686 , 626 A.2d at 1019 ). See § 728. See also Fraternal Order of Police v. Mehrling, 343 Md. 155, 181 , 680 A.2d 1052, 1065 (1996); Balt. City Police v. Andrew, 318 Md. 3, 12 , 566 A.2d 755, 759 (1989); DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 452-53 , 418 A.2d 1191, 1200 (1980) (“The legislative scheme of the LEOBR is simply this: any law-enforcement officer covered by the Act is entitled to its protection during any inquiry into his conduct which could lead to the imposition of a disciplinary sanction.”).

It is the officer’s exclusive remedy in matters of departmental discipline. See § 734B. See also Moats v. City of Hagerstown, 324 Md. 519, 526 , 597 A.2d 972, 975 (1991) (noting that “[t]he language and history of the Law Enforcement Officers’ Bill of Rights demonstrates an intent to establish an exclusive procedural remedy for a police officer in departmental disciplinary matters”). The LEOBR grants “extensive rights to law enforcement officers that are not available to .the general public.” Meyers, 96 Md.App. at 686 , 626 A.2d at 1019 .

See also Nichols v. Balt. Police Dep’t, 53 Md.App. 623, 627 , 455 A.2d 446, 449 (1983). This is because “the nature of the duties of police officers [are] different from that of other public employees.” Cancelose v. ¹²³ City of Greenbelt, 75 Md.App. 662, 666 , 542 A.2d 1288, 1290 (1988). Section 728(b) of the LEOBR sets forth specific standards for the investigation of a law enforcement officer’s alleged misconduct.

If the investigation results in the recommendation of some action, such as a “dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure,” before an agency can take such action, 14 notice must be provided to the officer “that he is entitled to a hearing on the issues by a hearing board.” § 730(a). Section 730 provides a detailed recitation governing the conduct of the hearing and the introduction of evidence. This Court has been asked, by both parties, to determine the requisite standard of proof to be applied in a LEOBR administrative disciplinary proceeding involving a local department’s action. That this is at all an open question stems from the combination of the General Assembly standing mute in the LEOBR statute as to the appropriate burden of proof to be applied in proceedings brought under its auspices and the State APA not applying directly to such local government proceedings.

Where the legislature has not spoken, judicial interpretation is often required to “fill in the blanks.” Joseph F. Murphy, Jr., Maryland Evidence Handbook § 400, at 150 (2d ed.1993). See also, e.g., Grimes v. Kennedy Krieger, 366 Md. 29, 100 , 782 A.2d 807, 850 (2001). There also is a need to re-visit this Court’s decision in Everett v. Balt. Gas & Elec. ¹²⁴ Co., 307 Md. 286 , 513 A.2d 882 (1986), in which the clear and convincing standard was applied in an administrative adjudication before the Maryland Public Service Commission (whose proceedings expressly are exempt from the contested case provisions of the State APA) involving charges of fraud, in tandem with consideration of the Court of Special Appeals’s decision in Meyers v. Montgomery County Police Dep’t, 96 Md.App. 668 , 626 A.2d 1010 (1993), in which the preponderance of the evidence standard was determined by the intermediate appellate court to apply in an administrative disciplinary proceeding brought by a local police department under the LEOBR, where the police officer was charged with excessive use of force in making an on-duty arrest.

In the present case, the Department promulgated standards and procedures to be used by its departmental boards. Those standards and procedures specify that disciplinary charges against an officer be proven by a preponderance of the evidence. 15 Petitioner’s first contention essentially is that ¹²⁵ Everett mandates otherwise, arguing that the burden of clear and convincing evidence, as opposed to the less rigorous standard of preponderance of the evidence, is required by the nature of the charges in the present case. 16 Petitioner’s ¹²⁶ assertion primarily relies upon this Court’s holding in Everett , which Petitioner contends stands for the proposition that proof by clear and convincing evidence is required in an administrative adjudicatory hearing whenever the charging allegation involves “fraud, dishonesty, or a serious criminal offense.” Petitioner argues that the allegations of his theft-related misconduct include all of these elements, which, in a civil judicial forum, requires proof by the clear and convincing standard. Noting that the fixed burden of persuasion ought to be the same in an administrative proceeding as it is in a civil judicial proceeding involving allegations of like nature, Petitioner argues that the allegations of his theft-related misconduct must be supported by the higher evidentiary standard of clear and convincing evidence. Everett, 307 Md. at 303 , 513 A.2d at 891 .

In addition, Petitioner argues that his administrative charges constitute serious misconduct that, if charged criminally, would constitute a crime under the Maryland theft statute, Art. 27, § 342. Indeed, Petitioner claims that the allegations, and the severity of the potential punishment he faced, are even more serious than the circumstances ¹²⁷ in Everett and Meyers , and thus necessitate application of the higher standard of clear and convincing evidence. Petitioner’s second contention is that the holdings of the U.S. Supreme Court under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and of this Court concerning Article 24 of the Maryland Declaration of Rights, dictate application of the clear and convincing standard of proof under the circumstances of this case. I. In Everett v. Balt.

Gas & Elec. Co., 307 Md. 286 , 513 A.2d 882 (1986), this Court was asked whether a regulated public utility provider (BGE) must prove allegations of fraud or criminal conduct against a customer by a preponderance of the evidence, or by the more demanding standard of clear and convincing evidence, in an administrative hearing before the Maryland Public Service Commission (“Commission”). The customer, an individual, challenged BGE’s intended termination of her residential utility service. BGE wished to terminate Everett’s service at her then-present address for alleged non-payment of fraudulently obtained service at a prior residence.

Upon receiving notice of the proposed termination, and the grounds on which it was based, Everett filed a complaint against BGE with the Commission, denying the allegations and requesting a hearing on the matter. The Commission ordered BGE to answer the complaint and assigned the matter to a hearing examiner. BGE’s response to Everett’s complaint alleged two instances of “fraudulent[ ] use[ ][of] gas and electric service supplied from BG & E” during an antecedent three (3) year period, 1977-80, by applying for service under a fictitious or other family member’s name. Everett, 307 Md. at 290-91 , 513 A.2d at 884 .

BGE also alleged that on two separate occasions after Everett’s service had been denied for non-payment, she had her service restored without BGE’s knowledge or permission. Following the hearing, the examiner issued a proposed order in which he concluded that BGE bore the burden of proof by ¹²⁸ clear and convincing evidence. At that time, neither the Commission’s enabling statute or its regulations addressed the question of what standard of proof applied in such circumstances. Applying the clear and convincing standard to the record evidence, 17 the hearing examiner ultimately determined that BGE had not met its burden.

The utility appealed to the Commission, which determined that the appropriate standard of proof was preponderance of the evidence, and, upon application of that standard, concluded that the utility had sustained its charges of fraudulent use. Accordingly, Everett’s complaint was dismissed. Everett sought judicial review in the Circuit Court for Baltimore City of the Commission’s order. The court determined that proof by clear and convincing evidence was the appropriate standard, and reversed the Commission’s order and remanded the case to the Commission for further proceedings.

BGE and the Commission appealed the circuit court’s decision to the Court of Special Appeals. The intermediate appellate court concluded the preponderance of the evidence standard was appropriate and reversed the circuit court. Everett petitioned for a writ of certiorari to the Court of Appeals, which was granted. Focusing on the “nature” of the dispute between the parties before the Commission, the Court first determined that Everett’s claimed use of a fictitious name in applying for utility service amounted to an allegation of fraud.

Casting about for an appropriate standard of proof in a legislative and administrative vacuum, the Court noted that, under a long-standing common law principle, similar allegations must be proven by clear and convincing evidence if made in civil judicial proeeed- ¹²⁹ ings. Everett, 307 Md. at 300-01 , 513 A.2d at 889 -90 (citing Peurifoy v. Cong. Motors, Inc., 254 Md. 501, 517 , 255 A.2d 332, 340 (1969)). Addressing the other allegations leveled by BGE against Everett, the Court determined that Everett’s supposed unauthorized use of service could support a criminal charge under Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 192, 18 and accordingly, the conduct alleged by BGE amounted to an allegation of the commission of a crime.

Recognizing that the “preponderance of the evidence standard is generally applied in civil cases in courts and administrative proceedings,” the Everett Court explained that “certain cases require a more exacting standard because of the seriousness of the allegations.” Everett, 307 Md. at 301 , 513 A.2d at 890 (citing McCormick on Evidence § 337 at 959 (E. Cleary 3d ed.1984)). The Court also reviewed its decisions in First Nat. Bank of S. Md. v. U.S.F. & G. Co., 275 Md. 400, 411 , 340 A.2d 275, 283 (1975) (applying the clear and convincing evidence standard where there was an allegation of fraud) and Rent-A-Car v. Globe & Rutgers Fire Ins. Co., 161 Md. 249, 267 , 156 A. 847, 855 (1931) (explaining that when a crime is imputed in a civil case, something more than a mere preponderance of the evidence must be produced to prove the conduct).

Ultimately we held: [Wjhere a utility alleges that a customer engaged in conduct amounting to fraud or to a crime and such conduct constitutes the sole basis of the customer’s alleged responsibility for prior unpaid bills, the utility must prove its allegation by clear and convincing evidence to justify termination of service for non-payment. Everett, 307 Md. at 304 , 513 A.2d at 891 . Petitioner claims in the instant case that close scrutiny of the “nature” of his alleged conduct reveals that each of the eight allegations for which he was charged and found “guilty” encompasses essentially the traits of fraud and dishonesty, as ¹³⁰ well as the criminal offense of theft. Petitioner notes that this Court has determined that theft is the “embodiment of deceitfulness,” and, as such, is included among the crimen falsi Beales v. State, 329 Md. 263, 270 , 619 A.2d 105, 108 (1993).

See Wicks v. State, 311 Md. 376, 382 , 535 A.2d 459, 461 (1988). 19 In an effort to align the facts of his case with those in Everett , Petitioner strains to argue that theft embodies, or is the equivalent of, common law fraud, assumedly because of its shared characteristics of deceitfulness and/or dishonesty, thereby requiring the elevated standard of proof of clear and convincing evidence under Everett. See First Nat. Bank of S. Md., 275 Md. at 411 , 340 A.2d at 283 (holding that when “fraud, dishonesty, or criminal conduct” is imputed, “something more than a mere preponderance of the evidence must be produced”). Equating the burden of proof in an administrative proceeding to be the same as in a parallel civil judicial proceeding involving allegations of the same nature, Petitioner concludes that allegations of his theft-related misconduct, like fraud, must meet the higher evidentiary standard of clear and convincing evidence.

Everett, 307 Md. at 302 , 513 A.2d at 890 . Alternatively, Petitioner contends that the administrative charges lodged against him constitute allegations of serious wrongdoing that, in a criminal context, could constitute a crime under Maryland’s theft statute, Art. 27, § 342. Petitioner observes that theft, a common law crime codified at Md.Code (1957, 1996 Repl.Vol., 2000 Supp.), Art. 27, §§ 340-45, is a malum in se offense, meaning the conduct is “inherently evil,” Wayne R. LaFave, Criminal Law 33-34 (3d ed.2000). Hence, Petitioner reasons that theft is a serious criminal offense that requires, under the reasoning of Everett , at least the clear and convincing standard of proof when ¹³¹ charged in an administrative context.

See Everett, 307 Md. at 302 , 513 A.2d at 890 ; Rent-A-Car, 161 Md. at 267 , 156 A. at 855 . Petitioner allows that the intermediate appellate court’s holding in Meyers v. Montgomery County Police Dep’t, 96 Md.App. 668 , 626 A.2d 1010 (1993), may be distinguished from the case sub judice. In Meyers , the Court of Special Appeals addressed the appropriate burden of proof in a LEOBR administrative disciplinary case in which an officer was charged with two violations of the Montgomery County Police Department’s (“Department”) “use of force” directive as a result of actions taken by him during an arrest. Following a hearing conducted in accordance with the LEOBR, Officer Meyers was found “guilty” of “kick[ing] and stomp[ing]” a citizen with his foot while the citizen was lying prone and handcuffed on the ground.

Meyers, 96 Md.App. at 708 , 626 A.2d at 1030 . The hearing board recommended a short suspension as the sanction. The chief ultimately determined that Officer Meyers should receive a letter of reprimand in his file for this misconduct. Meyers, 96 Md.App. at 671 , 626 A.2d at 1011 .

The Court of Special Appeals rejected Officer Meyers’s argument that the holding in Everett required the clear and convincing standard of proof in his LEOBR proceeding where the administrative allegation — use of excessive force — amounted to an allegation of criminal conduct. Meyers, 96 Md.App. at 694 , 626 A.2d at 1023 . The intermediate appellate court offered several reasons why Everett was distinguishable from Meyers’s case. First, the court noted the special nature of the domain of the Public Service Commission (“Commission”), observing that, “the expertise the Commission brings to its proceedings, as opposed to the LEOBR proceedings that are conducted by laypersons, and the heightened judicial deference given to Commission decisions [by the courts of this State] as compared to other administrative agencies,” might explain the Court’s imposition of the clear and convincing standard in Everest.

Meyers, 96 Md.App. at 693 , 626 A.2d at 1022 . ¹³² The court further distinguished Everett , noting that at least one of the charges in Everett amounted to an allegation of fraud. The court found Everett to be inapposite in Meyers’s case, where the administrative allegation could not be construed reasonably to state a claim sounding in fraud. Moreover, the court noted, Officer Meyers’s case involved an internal dispute between a public employee and the agency (Montgomery County Police Department) that employed him, contrasted to Everett which involved a dispute between a public consumer and a regulated utility before the administrative agency responsible for the field of public utility regulation. As in the present case, the police officer in Meyers cited First Nat.

Bank of S. Md. v. U.S.F. & G. Co., 275 Md. 400 , 340 A.2d 275 (1975), and Rent-A-Car Co. v. Globe & Rutgers Fire Ins. Co., 161 Md. 249 , 156 A. 847 (1931), as additional support for his contention that the clear and convincing standard was appropriate because allegations against him “amounted to an allegation of criminal conduct.” Meyers, 96 Md.App. at 695 , 626 A.2d at 1023 . The court described the factual predicates of those cases: [T]he First National Bank of Southern Maryland [“Bank”] brought an action against U.S.F. & G., the Bank’s insurer, on a fidelity bond for the recovery of losses the Bank incurred as a result of a Bank employee’s allegedly dishonest and fraudulent acts. The Bank claimed that the employee’s conduct fell within the terms of the fidelity bond, which covered, inter alia, “[a]ny loss through any dishonest, fraudulent or criminal act of any of the Employees.... ” The Court of Appeals stated: When fraud, dishonesty or criminal conduct is imputed, something more than a mere preponderance of evidence must be produced; the proof must be “clear and satisfactory” and be of such a character as to appeal strongly to the conscience of the court.

Meyers, 96 Md.App. at 694 , 626 A.2d at 1023 . With regard to Rent-A-Car , the court said: ¹³³ In that case, a car rental company brought suit against its insurer when the insurer failed to pay a loss resulting from a fire. The insurer argued in its defense that the insured had intentionally started the fire that caused the loss in an effort to defraud the insurer. Following a judgment for the insurer, the insured appealed.

The Court of Appeals reversed on the basis that a jury instruction required the defendant to prove its allegation of fraud by a preponderance of the evidence, (citations omitted) The Court stated: The defense in this case amounted to a charge that the appellant, its officers and employee, had committed a serious criminal offense. In such cases the rule in England is that even in civil cases something more than a mere preponderance of evidence is required to establish guilt, and, whatever the law may be elsewhere, that appears to be the law of this state. [T]he general rule is stated as follows in Jones on Evidence, sec. 195: “When fraud or criminal conduct is imputed the decisions frequently declare that something more than a mere preponderance of evidence must be produced, and that the proof must be clear and satisfactory. Meyers, 96 Md.App. at 694-95 , 626 A.2d at 1023 (citations omitted). The Meyers court rejected Offieer Meyers’s argument, interpreting Everett, First Nat.

Bank of S. Md., and Rent-A-Car , to stand for the proposition that “while the clear and convincing standard must be applied in a civil [judicial] proceeding in which fraud, dishonesty, or criminal conduct is alleged, this requirement d[id] not automatically extend to administrative proceedings.” Meyers, 96 Md.App. at 695 , 626 A.2d at 1023 (emphasis added). This interpretation, the appellate court explained, was permitted and supported by the merely directory nature of the language employed by the Everett Court when it stated, “ ‘where allegations involve ¹³⁴ fraud or criminal conduct, something more than a preponderance of the evidence may be required in proving these charges.’ ” Meyers, 96 Md.App. at 695-96 , 626 A.2d at 1023 -24 (quoting Everett, 307 Md. at 302 , 513 A.2d at 891 ) (emphasis added). Finally, the Meyers court noted that the holding in Everett, supra, was limited closely to the facts of that case. Meyers, 96 Md.App. at 696 , 626 A.2d at 1024 .

While Petitioner concedes that the preponderance of the evidence standard properly was approved in Meyers , he distinguishes the case sub judice based on a comparison of the nature of the misconduct charged in each case. He argues that while Meyers’s misconduct amounted to assault and battery had it been asserted in a criminal context, the same misconduct alleged in a civil context as a tort need be proved only by the lower standard of preponderance of the evidence. On the other hand, Petitioner asserts, “fraud and theft require proof by clear and convincing evidence in a civil context;” accordingly the clear and convincing evidence standard should be applied in a parallel contested administrative adjudication. The most widely applied measure of the ultimate burden of persuasion in civil cases is by a preponderance of the evidence, and generally that standard also is applicable in administrative proceedings.

Calvert County Planning Comm’n v. Howlin Realty Mgmt., Inc., 364 Md. 301, 327 , 772 A.2d 1209, 1224 (2001); Everett, 307 Md. at 301 , 513 A.2d at 890 ; Bernstein v. Real Estate Comm’n, 221 Md. 221, 232 , 156 A.2d 657, 663 (1959). This was so, and acknowledged to be, at the time Everett was decided. In judicial proceedings, however, this Court has said that “there are some factual issues that impinge so directly and significantly on fundamental rights as to require more than mere preponderance of the evidence to resolve adversely to the person affected.” Howlin, 364 Md. at 327 , 772 A.2d at 1224 (citing Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (declaring unconstitutional a New York statute that required a preponderance of the evidence to support termination of parental rights and requiring, instead, clear and convincing evidence); Addington v. Texas, 441 U.S. 418 , 99 S.Ct. 1804 , 60 L.Ed.2d 323 (1979) ¹³⁵ (civil commitment of person to mental institution); Woodby v. INS, 385 U.S. 276 , 87 S.Ct. 483 , 17 L.Ed.2d 362 (1966) (deportation proceeding)). See also Mack v. Mack, 329 Md. 188 , 618 A.2d 744 (1993) (requiring clear and convincing evidence for withdrawal of life sustaining medical treatment).

Not all cases, judicial or otherwise, that warrant imposition of the clear and convincing standard, however, concern situations implicating individual liberties. As we have previously stated, allegations of fraud ordinarily must be established through clear and convincing evidence. See Everett, 307 Md. at 302 , 513 A.2d at 890 ; First Nat. Bank of S. Md., 275 Md. at 411 , 340 A.2d at 283 .

But see Krouse v. Krouse, 94 Md.App. 369, 376-81 , 617 A.2d 1098, 1102-04 (1993) (finding in will caveats, the caveator need prove fraud by only a preponderance of the evidence). See also Owens-Illinois v. Zenobia,, 325 Md. 420, 469-70 , 601 A.2d 633, 657 (1992) (requiring clear and convincing standard for proof of punitive damages); Ber-key, 287 Md. at 332-33, 413 A.2d at 185 (requiring the heightened evidentiary standard of clear and convincing evidence for libel and slander); Rent-A-Car, 161 Md. at 267 , 156 A. at 855 (requiring “more than a mere preponderance of evidence” when a crime is imputed in a claim or defense in a civil case). We need not engage, as the Court of Special Appeals did in Meyers , in an elaborate effort to distinguish Everett from the facts of the case at hand. This is so because, unlike the intermediate appellate court, we have the authority, and shall exercise it in this instance, to overrule Everett .

We explain. At the time Everett was decided, the contours of general state administrative law principles in Maryland were materially different than now. The Court then did not have the benefit of a broad public policy pronouncement by the State legislature that expressed a particular standard of proof requirement relative to contested administrative cases. Seeking a principled basis for its decision in the absence of such a policy, the Everett Court sought guidance, by analogy, from the common law, which traditionally required the intermediate ¹³⁶ standard of clear and convincing evidence to prove allegations of fraud in civil judicial proceedings.

The Court drew on that analogy to decide Everett . The relevant legal terrain, however, has changed since Everett was decided. It is instructive that the General Assembly, in its 1993 revision of Maryland’s Administrative Procedure Act, Md. Code (1984, 1993 Repl.Vol., 1995 Supp.), State Government Art., §§ 10-101-10-305, established, for the first time, preponderance of the evidence as the generally applicable standard of proof to be used by covered state administrative agencies in contested case hearings, including, of particular relevance here, disciplinary actions by the Maryland State Police under the LEOBR. See APA § 10-217.

This enactment occurred seven years after Everett was decided by this Court. The State APA was enacted initially in 1957, see Chapter 94, Acts of 1957 (originally codified at Md.Code (1957), Art. 41, §§