Commissioner, Baltimore City Police Department v. Cason

Powers, J., delivered the opinion of the Court. This case entered the judicial arena when Calvin Cason filed in the Baltimore City Court an Order for Appeal from an order of Donald D. Pomerleau, as Commissioner of the Baltimore City Police Department, which terminated Sgt. Cason’s services with the Department. The Order for Appeal was followed by the required Petition.

Thus Sgt. Cason invoked his right to judicial review of the administrative actions in the Department which led to his dismissal. The prelude to the appeal to the Baltimore City Court is found in two charges preferred in August 1974 against Sgt. Cason by Frank J. Battaglia, Deputy Commissioner, Operations Bureau, of the Police Department.

The charges alleged violations of the Rules and Regulations for the government of the Police Department of the City of Baltimore. Charge No. 1 alleged violation of Rule I, Section 5. It set out the section: “Members of the department shall refrain from making personal contacts with persons of questionable character, or visiting places suspected of violating the law, unless necessary to do so in the performance of their duty.” The specification of the violation stated: “For that Sergeant Calvin M. Cason did make personal contacts with one Milton K. Roy, a person of questionable character due to his involvement in violations of the lottery laws of Maryland, such personal contacts not necessary to be made in the performance of his police duty.” Charge No. 2 alleged two violations of Rule I, Section 30. It set out the section: “No compensation, reward, gift, or other consideration shall be solicited or accepted by ⁴⁸⁹ members of the department without special permission of the Police Commissioner.

Attention is directed to Section 552 of the City Charter, 1949 edition: ‘Any monies received as a gratuity or extra compensation for any services which he may render, and which are not turned into the possession of the Police Commissioner by the officer receiving same and applying same to his own use, will be cause for dismissal from the force, and he shall be forever ineligible to any position in the force.’ ” Specification 1 said: “For that in or about the month of January 1973, and/or in months prior thereto, Sergeant Calvin M. Cason did accept United States currency from Milton K. Roy (aka James M. (‘Brother’) Roy) without the special permission of the Police Commissioner.” Specification 2 said: “For that in or about the month of January 1973, and/or in months prior thereto, Sergeant Calvin M. Cason did accept United States currency from Sergeant Robert E. Spangler of the Western District, without special permission of the Police Commissioner.” A disciplinary hearing was convened on 21 January 1975 before a Departmental Board consisting of Major William F. Rochford, Chairman, Captain Donald E. Einolf, and Lieutenant Stephan Timchula. Sgt. Cason and the Police Department were represented by counsel.

After several preliminary matters were considered, the hearing was continued to a date to be set. It was reconvened on 8 April 1975. Evidence was completed, and the Board made a finding of guilt and finding of fact on each specification, and set out its conclusion and recommendation. They were summarized ⁴⁹⁰ in a report made by the Board to the Police Commissioner , dated 9 April 1975.

Its findings of fact were: On Charge 1 “Based on the testimony from James M. (‘Brother’) Roy (aka Milton K. Roy) that he had met with Sergeant Calvin Cason on at least three separate occasions and paid him sums of money to be safe to operate his number operation in the Western District. Roy identified Sergeant Cason without hesitation and related that he gave the money to Sergeant Cason in his hand.” On Charge 2, Specification 1 “Based on the testimony from James M. (‘Brother’) Roy (aka Milton K. Roy) that he had met with Sergeant Calvin Cason on at least three separate occasions and paid him sums of money to be safe to operate his number operation in the Western District.

Roy identified Sergeant Cason without hesitation and related that he gave the money to Sergeant Cason in his hand. The personnel jacket of Sergeant Cason was introduced into evidence by Mr. Rubenstein to indicate that the Police Commissioner had not granted permission to Sergeant Calvin Cason to accept monies or extra compensation for services which Sergeant Cason had rendered.” On Charge 2, Specification 2 “Testimony received from Sergeant Robert E. Spangler, retired, Western District, that he paid sums of money to Sergeant Calvin Cason in the men’s room and hallway at the Western District on separate occasions during the period of June 1972 to November 1972 to protect the gambling operation of Harvey Robinson.” ⁴⁹¹ The Board stated as a conclusion: “The Board recognized the defense’s contention regarding one man’s word against another and that one would tend to nullify the other; however, the collective testimony of James M. (‘Brother’) Roy (aka Milton K. Roy) and Robert Spangler provided sufficient weight for the Board to find a preponderance of proof and a finding of guilty.” It recommended “that Sergeant Calvin M. Cason’s services with the Baltimore Police Department be terminated.” The Police Commissioner, Donald D. Pomerleau, took action on 14 April 1975, as evidenced by Personnel Order 362-75, dated 15 April 1975. The order recited the findings and recommendation of the Trial Board, and concluded: “In the foregoing case of Sergeant Calvin M. Cason the recommended action of the Trial Board is approved.

It is hereby ordered that Sergeant Calvin M. Cason be and is hereby terminated from the Baltimore Police Department effective April 14, 1975.” Sgt. Cason’s appeal to the court followed. From the inception of the proceeding to its final conclusion Sgt. Cason was and is entitled to the safeguards provided for in Code, Art. 27, §§ 727-734, known as the Law-Enforcement Officers’ Bill of Rights, and Code, Art. 41, §§ 244-256A, Administrative Procedure Act. 1 Moreover, the disciplinary power within the Police Department could be exercised only in accordance with applicable law.

And finally, the procedure for judicial review is governed by Subtitle B of Chapter 1100 of the Maryland Rules, comprising Rules B1-B12. ⁴⁹² We summarize the petition filed in the Baltimore City Court by Sgt. Cason. It alleged that: 1. The power vested in the Police Commissioner as the ultimate decision maker is unconstitutional, and its exercise in This case was unconstitutional because the decision was arbitrary and capricious. 2.

The findings of the Trial Board, and the order of the Commissioner thereon, were made upon unlawful procedure; were affected by other error of law; were unsupported by competent, material, and substantial evidence; were against the weight of evidence; were unsupported by the entire record; and were arbitrary and capricious. 3. The Trial Board proceedings constituted double jeopardy in that Sgt. Cason was previously tried and acquitted on criminal charges in the United States District Court, upon the same or substantially the same evidence; and that the doctrine of equitable estoppel barred the use of that evidence before the Trial Board. We have carefully read the entire transcript of the proceedings before the Trial Board.

Testimony in support of the charges was given by former Sgt. Robert E. Spangler and by James M. Roye (sometimes spelled “Roy”). The testimony of each was limited, by an agreement between counsel, to the period from June to November, 1972. Before discussing the evidence, we restate in simple terms, the charges against Sgt.

Cason: 1. Making contacts with Roye, a questionable character. 2. Accepting currency from Roye without permission. 3. Accepting currency from Sgt.

Spangler without permission. Roye testified that he had been in the business of writing numbers. He operated out of an automobile repair garage. He had been convicted three or four times in Baltimore City for writing numbers.

He said he knew Sgt. Cason, and identified him. He said that in 1972 Sgt. Cason came to his garage, said he was the new sergeant, and wanted to know the date the payroll came down.

He said he answered that it ⁴⁹³ was usually the 15th, or it might be one or two days late when the boys send the money down. Roye said the money was to operate the numbers game, that he was paying Western District to operate, to be safe to write numbers. Roye testified that he gave money to Sgt. Cason three times, and after that another officer came down “for the bundle.” He said that when Sgt.

Cason came he was in uniform, and in a police car, and “would pull up a little ways”. He said that he paid Sgt. Cason $50. — “that was him alone” — and “when he got the bundle he got $245.” There was much evidence tending to cast doubt on Roye’s credibility. He was an admitted bribe-giver, a law violator, and a convicted criminal.

He had been arrested by the F.B.I., and thereafter had cooperated with them. He testified for the government in the trials of several police officers, including Sgt. Cason, on criminal charges. There were some inconsistencies, although not necessarily untruths, in his testimony.

He may have had reason to give false testimony. Spangler testified that he received money about once a month from Harvey Robinson, who was in the numbers business, to protect his gambling operation. Some of the money, Spangler said, was for himself, and some was for other members of the District. He testified that he gave Sgt.

Cason $70. approximately three times during that period, because he was instructed to do so by Harvey Robinson. He said the money was given either in the men’s room or hallway at the Western District. There was much evidence tending to cast doubt on Spangler’s credibility. He was an admitted bribe-taker, and an admitted liar.

He had been arrested by the F.B.I., and thereafter had cooperated with them in attempting to gather evidence against other members of the Baltimore City Police Department. He had retired from the Department, apparently with full pension rights. He had testified for the government in the United States District Court trials of several other officers on criminal charges. He was also charged, but received probation.

He may have had reason to give false testimony. Special Agent Masterson of the F.B.I. testified, and ⁴⁹⁴ described the cooperation of Spangler and Roye with the F.B.I. investigation. He gave no substantive evidence. Sgt.

Cason called ten members of the Police Department as witnesses. Several, who had worked under Sgt. Cason, testified that he never told them to stay away from any gambling operation. Two, who apparently had been accused by Spangler, testified that Spangler did not pay them any money.

Several described a generally hostile relationship between Sgt. Spangler, in Operations, and Sgt. Cason, in Patrol, in the Western District. Concluding the evidence was Sgt.

Cason’s own testimony. Asked if, “in the latter part of 1972 did you go to Brother Roye and collect either $50. or $245. three times?”, he answered, “I never knew Brother Roye until June when I was indicted.” He added that he had seen Roye twice before — when he was investigating hold-ups at a bar. Sgt. Cason was asked, “did you accept money from Sergeant Spangler in connection with Harvey Robinson’s gambling operation?” He replied, “I did not.

I didn’t even know Harvey Robinson.” Sgt. Cason also brought out that he was charged in the Federal Court on the testimony of Roye, and that the outcome was “not guilty”. He said that Spangler was not what you would call a working sergeant, but was actually a statistical clerk, and went around the police station like he owned it. The appeal in the Baltimore City Court was submitted to Judge Basil A. Thomas on the record, with written and oral arguments of counsel.

A partial transcript of the proceedings before Judge Thomas contains only his oral opinion, in which he summarized the case and the evidence, and stated his findings and conclusions. On 19 March 1976 Judge Thomas signed an order, filed on 22 March 1976, reversing the order of the Police Commissioner, and directing that Sgt. Cason be reinstated, with full rank and full pay, dating from his suspension. The Police Commissioner appealed to this Court from that order.

In his opinion, Judge Thomas first considered Sgt. Cason’s ⁴⁹⁵ contention that the power vested in the Commissioner, and its exercise in this case, were unconstitutional. He said: “The Court finds the Commissioner’s procedure and policy was proper and not violative of any constitutional safeguards or due process rights.” In a very recent case involving the dismissal of 55 members of the Baltimore City Police Department, the Court of Appeals, in Hoyt v. Police Commissioner, 279 Md. 74 , 367 A. 2d 924 (1977) discussed the power of discipline in the Department. It said, at 84-85: “The lower court was satisfied, as are we, that the power to discipline is vested solely in the Commissioner.

Code of Public Local Laws of Baltimore City (1969) § 16-7 (7) and (8) respectively provide that the Police Commissioner is authorized: ‘(7) To appoint, promote, reduce in rank, grade or position, reassign, reclassify, retire and discharge all members of the Department in the manner prescribed by law. ‘(8) To regulate attendance, conduct, training, discipline and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and of its members.’ This grant of authority must be considered, however, in conjunction with § 730 (b) of the Law-Enforcement Officers’ Bill of Rights, which provides: ‘Conduct of hearing — The hearing shall be conducted by the investigating committee of the law-enforcement agency by which the law-enforcement officer is employed. Both the law-enforcement agency and the law-enforcement officer ⁴⁹⁶ shall be given ample opportunity to present evidence and argument with respect to the issues involved. Both may be represented by counsel.’ “Here, the Commissioner was faced with two requirements: that of performing the duty of the ultimate decision maker imposed upon him by law, and of performing it in a fair and impartial manner. As the court below found, the Commissioner chose not to exercise the investigative function which was performed by the unit headed by Deputy Commissioner Glauser or the prosecutorial function which was performed by the Attorney General, but to act only in an adjudicative role.

The Commissioner isolated himself by directing that the Deputy Commissioner initiate the investigation, convene the Boards and supervise the preparation of charges. The Commissioner’s only function was that of accepting, modifying or rejecting the punishment recommended.” The authority of the Police Commissioner to promulgate rules and regulations was discussed in a somewhat different aspect by the Court of Appeals in Beca v. Mayor and City Council of Baltimore, 279 Md. 177 , 367 A. 2d 478 (1977). Judge Thomas correctly rejected the attack upon the constitutionality of the disciplinary power vested in the Police Commissioner, and the manner in which it was exercised. The trial judge then stated what he considered to be the question before the court.

He said: “The question is, are the findings of fact of the Hearing Board supported by substantial evidence? “I am aware of the test of substantial evidence. The Court should not substitute its judgment on the question of whether the inference drawn by the Hearing Board is the right one or whether a different inference would have been better ⁴⁹⁷ supported. The test is reasonableness, not rightness.” In discussing the testimony, Judge Thomas expressed the belief, erroneously, we think, that the charges against Sgt. Cason “rise or fall on the strength of the evidence offered in support of the third charge.” He commented that it was solely because of Spangler’s accusation that the third charge was brought, and that charge resulted in bringing disciplinary proceedings on the first two charges as well.

Saying that the only evidence against Sgt. Cason was Spangler’s uncorroborated testimony, Judge Thomas concluded: “Is this testimony, standing naked and alone, of an admitted grafter, who had previously given false statements to the police, uncorroborated in any detail, vague as to specific dates, and other particulars, of one who had no particular relationship with Sergeant Cason, sufficient to overcome the denial of Sergeant Cason, a police officer, with an unblemished record of 19 years of service, the recipient of 29 commendations, and who apparently had the respect of the men working with him? “The Court considers the position of a police officer a valuable property interest that can only be terminated by a fair hearing based on substantial evidence. “Now, while this Court is always reluctant to substitute its judgment for that of the administrative body that makes the decision, that decision, however, must be based on substantial evidence, that is, such as a reasonable mind might accept as adequate to support a conviction. The Court finds that the evidence in this case was less than substantial * * It is quite apparent that the trial judge found Spangler’s evidence to be “less than substantial” because he believed ⁴⁹⁸ Sgt. Cason’s denial, and did not believe Spangler.

It appears, also, that the judge’s failure to consider Roye’s evidence at all arose indirectly from an issue raised by Sgt. Cason before the Trial Board, and again in the Baltimore City Court. At the outset of the hearing before the Trial Board, Sgt. Cason filed a written motion, grounded on the doctrine of collateral estoppel, to exclude the testimony of Roye, Spangler, and other persons.

The supporting memorandum said that those persons testified against Sgt. Cason in two federal criminal trials concerning Roye’s gambling operation, and in those trials the jury found Sgt. Cason not guilty of conspiring, to facilitate the conduct of illegal gambling. The Trial Board denied the motion, and heard the evidence.

In the petition filed in the Baltimore City Court, the question was raised again, alleged in terms of double jeopardy and collateral estoppel. It was fully argued in the memorandum of law filed in the Baltimore City Court. Judge Thomas, in his opinion, said that he found the questions of res judicata and collateral estoppel inapplicable. After that finding, however, the judge discussed only the third charge, the one to which Spangler’s testimony was directed.

He did so, apparently because of a statement made in argument by counsel for the Commissioner. Counsel said that the Police Department would not have brought the first two charges [relating to James M. Roye] unless they had additional information relating to the Harvey Robinson incident. Within the proper limitations upon the scope of judicial review, the court should have considered the entire record. The scope of judicial review of the actions of administrative bodies has been discussed and explained in numerous cases.

Principles which have been repeated time and again were stated by the Court of Appeals years ago in Heaps v. Cobb, 185 Md. 372 , 45 A. 2d 73 (1945). That case questioned the legality of the refusal of the Board of Trustees of the Employees’ Retirement System of Baltimore City to grant a claim for accidental death benefits. In the absence of a statutory provision for appeal, the Court, on ⁴⁹⁹ petition for a writ of mandamus, reviewed the Board’s