Cook v. Sherry

²⁷ McWilliams, J., delivered the opinion of the Court. As the late William Schwenck Gilbert once observed, the policeman’s lot is not a happy one. 1 The appellant (Cook) is a policeman and he is here because he is far from happy. The architect of his disgruntlement is the appellee Sherry, a retired policeman now Commissioner of Police and Fire of the City of Cumberland; the reason is his demotion from lieutenant to sergeant. Since we think he has indeed been put upon we shall reverse the order of the chancellor, Getty, J., sustaining the demotion.

Cook entered the service of his city in 1956. He was made a corporal in 1962, a sergeant in 1966. In November 1969 he was promoted to the rank of lieutenant. The chancellor said it was conceded that he “is an excellent police officer” and that he had done “an outstanding job in setting up and operating the training division.” The chancellor went on to say that “his merit and efficiency ratings attest to his ability.” Cook was not one of Sherry’s heroes, however.

Sherry was a lieutenant when Cook joined the department. Later on he rose to assistant chief. After he retired he became a candidate for election to the office of Commissioner of Police and Fire. The testimony of Officer Gerald Lewis suggests there was little love lost between Sherry and Cook.

Lewis said that in a chance encounter he congratulated Sherry on the fine showing he had made in the primary election of 1970, whereupon Sherry confided to him that if he was successful in the general election (he was) “Mr. Giles and Mr. Cook are going to get theirs—they’re riding high on the hog right now but when I get finished with them, they’re really going to come down to my level.” Sherry denied making any such statements. On 10 August 1970 Cook suffered a heart attack. When his accumulated vacation and sick leave were exhausted he asked for and was granted a leave of absence of one year from 7 October 1970. In January 1971 he requested ²⁸ light duty status, pursuant to Rule X, Section 2, of the city’s Civil Service Regulations.

His request was denied. Sherry said, “We . . . [had] no light duty as lieutenant.” Oddly enough he admitted that he did not consider the job of training officer to be arduous duty and that Cook could again have performed that duty. But he said, “He is a lieutenant [and] he has to work wherever the Chief of Police or I put him.” Asked if Cook had been given any preference as a lieutenant, as provided in Rule X, Section 2, Sherry said, “No. I done had a lieutenant fill his place.” Cook, apparently fully recovered, returned to duty on 4 October 1971. Three days later Sherry demoted him to sergeant and assigned him to duty as Desk Sergeant on the 4:00 p.m. to midnight shift.

Cook’s request to the Civil Service Commission for a hearing was denied. The reason given was “that the matter is a result of administrative action under specific ordinances 2 of the Mayor and City Council, and the Civil Service Commission has no jurisdiction.” On 22 November Cook filed his appeal in the Circuit Court for Allegany County. The chancellor decided that his petition “must regrettably be denied.” The appellees 3 argue here, as they did below, that it was within Sherry’s discretion, under the Civil Service Regulations, to demote Cook at any time before the expiration of an alleged “one year period of probation” following his promotion. It will be recalled that he was promoted in November 1969, that his heart attack occurred in August 1970, and that on 7 October his accumulated vacation and sick leave expired.

The Commission took “the position that an employee is in a period of probation for a period of one year from date of promotion, unless the probationary period is interrupted by an absence, in which case the probationary period is extended accordingly.” So reckoned, Cook’s “probationary period,” which ²⁹ was “extended” during his incapacity, would not have expired until early November 1971, thereby making him subject to demotion on 7 October 1971. Since we see it quite differently, we shall take a look at the applicable rules, regulations and ordinances. Rule IX of the Regulations has as its subtitle, “Discharges—Suspensions—Demotions.” Section 2 deals with “Demotions”; subsections (a) and (b) thereof are as follows: “(a) The provisions of Section 36 (g), (h) and (i) [of the City Charter] shall also be applicable in all cases of demotion. “(b) A ‘demotion’ is a reduction in wages and/or a reduction in rank or rating.” Section 36 (g) of the Charter provides that: “All cases of Suspensions or Discharges of a Civil Service employee shall be reported to the Commission within three (3) days after said Suspension or Discharge has taken place; the report