Cross v. Baltimore City Police Department

ZARNOCH, J. In this case of a fired police officer, the appellant does not claim, in the words of Justice Holmes, that she has a “constitutional right to be a policeman.” McAuliffe v. City of New Bedford, 155 Mass. 216 , 29 N.E. 517, 517 (1892). 1 Rather, she argues that her employment was terminated in violation of her constitutional right to marry and to engage in intimate association. Appellant, Meredith Cross, was employed as a police officer in the Baltimore City Police Department (“the Department”) from 2004-2010. On July 7, 2009, she received a “Notification of Complaint to Accused,” in which it was alleged that she had “been making personal contacts with person(s) of questionable character.” On March 9, 2010, the Department officially charged her with four counts of violating its General Orders. All four charges were directly related to appellant’s marriage to Carlito Cabana—a convicted murderer and a member of Dead Man, Inc. (“DMI”), a prison gang.

The first charge included four specifications of conduct unbecoming a member of the Department, as she was alleged to have discredited the Department and herself through her marriage to Cabana. The second charge included three specifications of personal contact with a person of questionable character. The third charge alleged that appellant “failed to properly perform her duties and assume the responsibilities of her position.” The fourth charge alleged that appellant failed to timely inform her superior officers about the change in her marital status. On November 30, 2010, appellant, pursuant to the Law Enforcement Officers’ Bill of Rights (“the LEOBR”), 2 present ²⁹⁸ ed her case before a three-person administrative panel (the “Hearing Board”).

Appellant pled guilty to the following charges: Charge 1, Specification 4; Charge 8; and Charge 4. These three charges stemmed from appellant’s failure within 24 hours to inform her superior officers about her marriage to Cabana. The Hearing Board found appellant guilty of the remaining charges, and recommended her termination. On December 9, 2010, Police Commissioner Frederick Bealefeld, III, terminated appellant’s employment.

Appellant appealed this decision to the Circuit Court for Baltimore City, which upheld her termination. She now appeals the circuit court’s decision pro se. 3 FACTUAL BACKGROUND 4 A. DMI In the late 1990s, DMI was formed by three inmates who carried out “hits” 5 for a different prison gang, the Black Guerrilla Family. Over time, DMI has grown in size and scope, and now actively participates in criminal enterprises both in and out of jail. Although each individual unit or “set” varies depending on the location, DMI is organized along the following lines: supreme commander, commander, lieutenant commander, a sergeant at arms, and, in some units, an accountant.

Once an inmate joins DMI, he is a member for life and it is impossible for a member to quit the gang. Detective Joseph Decandeloro, Baltimore City Police, testified that officer safety is an important concern when dealing with DMI members because they pretend to cooperate “[i]n order to gain intelligence.” Detective Decandeloro also noted ²⁹⁹ that DMI members are “allowed to have—basically get into our trust, along with any other gang. It’s a common practice that they’re allowed to deceive us. They’re allowed to talk to us.

It’s the same practice with any gang.” B. Appellant’s Relationship with Cabana In 2002, appellant lived in New York City and worked as a Financial Advisor for American Express. While in New York City, a friend convinced her to start writing letters to Cabana, who, at the time, was incarcerated in Maryland for second-degree murder. 6 Appellant stated that Cabana “seemed like an intelligent person, and knowledgeable, so he became [her] friend.” Soon thereafter, a “serious relationship” developed between appellant and Cabana, and she moved to Baltimore to be closer to him. In February 2004, appellant applied to be a police officer with the Department. Although she moved to Baltimore specifically to be closer with Cabana, her application did not indicate that she had a boyfriend.

While being interviewed for the position, appellant was asked if anyone she knew was in prison. Appellant responded by providing the name of her brother, her friend’s husband, and Cabana—who, according to appellant, was her “friend.” Although appellant described her relationship with Cabana in platonic terms during her interview, at some point in 2004 they were married in a “spiritual ceremony” in the Patuxent Institution. According to appellant, it was not a legal wedding; rather, they simply exchanged vows in “a little ceremony [as] part of some Muslim thing [Cabana] was involved in.” From that point on, appellant considered herself married to Cabana. While visiting Cabana in prison, appellant would identify herself as Cabana’s wife.

From March 16, 2008 to June 15, 2009, appellant visited Cabana 26 times. Cabana called appel ³⁰⁰ lant “108 times during the 90-day period between February 28, 2009, and May 29, 2009.” The Department produced evidence that appellant would speak to Cabana on the phone while on duty. In fact, she spoke to Cabana on one or two occasions while answering service calls. The Department conceded that appellant was never heard on the phone giving Cabana any information relating to official police business.

On April 26, 2009, appellant and Cabana were officially married. On July 10, 2009, three days after she was served her Notification of Charges, appellant officially notified her superior officers about the change in her marital status from single to married. Under the Department’s General Order C-2, Rule 6, Section 4, “[mjembers of the Department are required to report through official channels any change in their address, telephone number or marital status within 24 hours.” At the administrative hearing, appellant testified that she did not know about this requirement. She testified that she incorrectly believed that she only had to inform her superior officers about any change to her address and phone number.

C. The Investigation into the Relationship and Cabana’s Background In May 2009, appellant, while visiting Cabana at North Branch Correctional Institution (hereinafter “NBCI”) in Cumberland, used the identification of another person to gain entrance. When questioned about this identification by an NBCI staff member, appellant informed prison officials that she was a police officer in Baltimore City, and stated that she must have accidentally used the identification of a person whom she previously arrested. Appellant’s misuse of another person’s identification was reported to Lieutenant Damon Thomas, Intelligence Officer at NBCI, who called the Department’s Internal Affairs unit (hereinafter “IID”) “to let them know that ... a Baltimore City police officer in fact is coming up to visit a inmate at [the] facility and he’s a gang member.” ³⁰¹ Appellant did not inform her superior officers about her use of another person’s identification. From May to November 2009, Detective Choi Cheung, Baltimore City IID, began working with Lieutenant Thomas to investigate appellant’s relationship with Cabana as well as Cabana’s ties to DMI.

During the course of the investigation, the extent of Cabana’s involvement with prison gangs was uncovered. For instance, in 2002, while incarcerated in the Western Correctional Institution (hereinafter “WCI”) in Cumberland, Cabana was “validated” 7 by prison officials as a member of a prison gang. 8 At WCI, Cabana was the supreme commander of DMI, which, according to Lieutenant Thomas, meant that he was “the one who runs the daily organization of the gang, of the inmates that are housed inside the facility.” At the hearing, the Department produced a letter addressed to Cabana, which referred to him as an “SC.” Lieutenant Thomas explained that SC was shorthand for supreme commander. Additionally, the Department also presented evidence that Cabana was friends with one of the three original founders of DMI. Cabana and the “top 25 gang members” at WCI were subsequently transferred to NBCI.

He was placed on administrative segregation shortly after his arrival at NBCI because prison officials considered him a threat to the security of the prison. Other DMI members and units were apparently unhappy with Cabana’s management of DMI, causing Cabana to be the target of a state-wide prisoner “hit list.” NBCI officials validated Cabana as a member of DMI in 2006. While he was still incarcerated in Maryland, Cabana received money orders from appellant. Correctional officers ³⁰² knew that appellant was sending Cabana money because they authorized a “mail cover,” which enabled law enforcement officers to “pull [Cabana’s] mail and look at his mail before the inmate gets it.” When Lieutenant Thomas was asked if “the reason for the mail cover was because [Cabana] was a [high-ranking] gang member,” he answered: “Yes.

Yeah. When you have [high-ranking] people like that we like to look at their mail and see what’s going on with them because you get all that information from that.” After the IID investigation into appellant’s relationship with Cabana was initiated, correctional officers at NBCI discovered pictures of appellant in Cabana’s cell. Specifically, officers found “photographs of [appellant], both in the Baltimore Police uniform and in civilian attire, and a picture of the pyramid [symbolic] of [DMI].” Authorities discovered that “Cabana was also in possession of a letter written by another inmate and DMI gang member named ‘Tombstone.’ ” The Department also presented evidence that at least one high-ranking DMI member knew that Cabana was romantically involved with appellant. At the administrative hearing, appellant disputed the evidence linking Cabana to a prison gang.

She testified that Cabana “was never associating with a gang while he was with me. From the time I knew him, he was never associated with a gang.” Appellant also stated that there was “no proof’ that Cabana was in a prison gang, “just speculation[.]” However, on September 21, 2009, appellant, during an interview with Detective Cheung regarding her relationship with Cabana, conceded that Cabana “probably was” a member of a gang. At the administrative hearing, appellant also contended that her marriage to Cabana in no way affected her ability to be an effective law enforcement officer. Three of appellant’s coworkers, including her immediate supervisor, testified that appellant was a good cop and that they had no concerns about her relationship with Cabana.

Appellant also testified: “I’m a good officer and my work speaks for itself.” ³⁰³ During her interview with Detective Cheung, appellant was ordered not to share any information regarding this investigation with anyone. Despite this order, appellant informed Cabana about the investigation. Appellant denied that her sharing of confidential information constituted a conflict of interest or that it violated her agreement to maintain confidentiality. In his opening and closing arguments, appellant’s attorney argued that the officer’s termination would violate the First Amendment right to intimate association, a contention the Department challenged. 9 D. The Hearing Board’s Findings of Fact and Recommendations The Hearing Board found appellant guilty and found: [Fjrom the year 2002 through the present, Officer Meredith Cross had personal contact with Carlito Cabana, a convicted felon, and an incarcerated high ranking gang member of Dead Man, Inc. currently serving a 30 year sentence at a correctional institute for murder in the 2nd degree....

Officer Cross had visited Mr. Cabana 26 times between the periods of March 1, 2008 to June 15, 2009. Officer Cross is named as Cabana’s “wife” on the visitor’s list and on the visitor’s list history. The Inmate Calling List revealed that Mr. Cabana called Officer Cross 108 times during the 90 day period between February 28, 2009 and May 29, 2009. ³⁰⁴ The Hearing Board also found that “[t]he DMI is a very violent gang and involved in numerous stabbing[s]---- The top positions in the gang are Supreme Commander, Commander, Lieutenant Commander, and Sergeant in Arms (usually the accountant).” Additionally, the Hearing Board found: “The DMI’s constitution stated that members are not to snitch to law enforcement, but can speak to them to gain intelligence.” Moreover, the Hearing Board found that at least one DMI leader knew about Cabana’s marriage to appellant, and that Cabana knew the officer with whom appellant was working, noting that her partner was a “nice guy.” The Board also concluded that appellant married Cabana on April 26, 2009, but did not inform the Department until July 10, 2009. The Hearing Board concluded that appellant violated General Order C-2, Rule l, 10 and recommended termination based on this transgression.

The Hearing Board also found appellant guilty of violating General Orders C-2, Rule 1, Section 5, and recommended termination. 11 The Board apparently rejected appellant’s constitutional argument, making no mention of the issue in its ruling. On December 10, 2010, Commissioner Bealefeld, pursuant to PS § 8-108, approved the Board’s findings and conclusions, thus resulting in the termination of appellant’s employment. ³⁰⁵ On January 3, 2011, appellant petitioned for judicial review of the decision to terminate her employment. Subsequently, she filed a memorandum of law highlighting two issues: 1. By terminating Officer Cross for her employment with the Baltimore Police Department for reasons stemming from her relationship with her husband, the trial board violated petitioner’s First and Fourteenth Amendment rights of free association; and 2.

General Order C-2, Rule 1, Section 5 of the Baltimore Police Department’s General Orders is unconstitutionally vague and overbroad. After a hearing on July 18, 2011, the circuit court upheld appellant’s termination. 12 Additional facts will be discussed as necessary. QUESTIONS PRESENTED Appellant raises the following four questions, 13 which we have rephrased and reordered: ³⁰⁶ 1. Does General Order C-2, Rule 1, Section 5 impermissibly limit appellant’s federal constitutional right to intimate association? 2.

Was the Hearing Board’s decision to recommend appellant’s termination unsupported by substantial evidence? 3. Is General Order C-2, Rule 1, Section 5 unconstitutionally vague and overbroad? 4. Did the Circuit Court err in finding that appellant’s termination did not violate PS § 3—103(d)(2)? We answer no to questions 1 and 2.

In addition, we find that issues 3 and 4 were not raised before the administrative agency and are not preserved for our review. Thus, we affirm the circuit court. DISCUSSION I. Standard of Review The standard for appellate review of an administrative agency decision differs depending on whether agency factfinding or law determinations are under attack. Where a factual question or a discretionary judgment is concerned, the reviewing court will uphold an agency’s decision so long as it is supported by substantial evidence.

YIM, LLC v. Tuzeer, 211 Md.App. 1, 24 , 63 A.3d 1078 (2013), cert. denied 432 Md. 470 , 69 A.3d 476 (July 5, 2013) (Citations and quotations omitted). Review of an agency’s conclusions of law is less deferential, ³⁰⁷ but we often give considerable weight to an administrative agency’s interpretation and application of the statute which the agency administers and recognize the expertise of the agency in its own field. Id. (Citations and quotations omitted).

Under this standard of review, “the appellate court’s role is identical to that of the circuit court, and we review the agency ... decision.” Montgomery County Career Fire Fighters Assoc. v. Montgomery County, 210 Md.App. 200, 208 , 62 A.3d 287 (2013). An administrative agency has the authority, if not the duty, to decide constitutional questions raised in the proceeding. Insurance Comm’r v. Equitable Life Assurance Soc’y. of the United States, 339 Md. 596, 615-622 , 664 A.2d 862 (1995); YIM, LLC, 211 Md.App. at 49 , 63 A.3d 1078 . An administrative determination of a constitutional question is subject to court review as a matter of law.

Equitable Life, 339 Md. at 619 , 664 A.2d 862 ; see also Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996) (“When the question is whether a constitutional right ... has been violated, the reviewing court makes its own independent constitutional appraisal”); Waicker v. Scranton Times Ltd. Partnership, 113 Md.App. 621, 637 , 688 A.2d 535 (1997) (“When dealing with First Amendment issues, appellate courts make an independent review of the entire record to ensure [there has been no intrusion] on the field of free expression”). Finally, the reviewing court may not pass upon for the first time issues not encompassed in the final decision of the administrative agency. Department of Health & Mental Hygiene v. Campbell, 364 Md. 108, 123 , 771 A.2d 1051 (2001); Mesbahi v. Maryland State Bd. of Physicians, 201 Md.App. 315, 333 , 29 A.3d 679 (2011).

II

Right to Marry/Right to Intimate Association General Order C-2, Rule 1, Section 5 (hereinafter “the General Order”) states: “Members of the department shall refrain from making personal contacts with persons of questionable character, or visiting places where suspected viola ³⁰⁸ tions of the law may be occurring, unless necessary to do so in the performance of their duty.” Appellant argues that the Department’s application of this General Order interferes with her federal constitutional rights to intimate association and to marry. Specifically, appellant asserts that the General Order “prevents Baltimore [City] Police Officers from engaging in any sort of intimate relationship with anyone the department merely suspects is of ‘questionable moral character.’ ” Appellant also asserts that the order is not enforced using the least restrictive means possible. Appellee responds that this constitutional claim is without merit because appellant was not denied the right to marry or associate by operation of the General Order. 14 A. Source of the Rights Although appellant appears to have challenged her termination before the Hearing Board primarily on First Amendment grounds, most cases—particularly recent caselaw—treat an abridgement of the right to marry as a due process issue under the Fifth or Fourteenth Amendments. For example, in United States v. Windsor, — U.S.-, 133 S.Ct. 2675 , 186 L.Ed.2d 808 (2013), a majority of Supreme Court justices struck down the federal Defense of Marriage Act “as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Id. at 2695 .

And in Conaway v. Deane, 401 Md. 219 , 932 A.2d 571 (2007), a majority of the Court of Appeals, in considering a ban on same-sex marriage, similarly noted that “[i]t is beyond doubt that the right to marry is a federal liberty interest protected by the Constitution.” Id. at 297, n. 63 , 932 A.2d 571 . Nevertheless, Roberts v. United States Jaycees, 468 U.S. 609, 617-18 , 104 S.Ct. 3244 , 82 L.Ed.2d 462 (1984), does recognize that the right to marry and to enter into intimate relationships may be ³⁰⁹ protected by the First Amendment’s freedom of association. Id. at 617-19 , 104 S.Ct. 3244 . 15 Courts that have considered similar constitutional challenges such as that advanced here by appellant have concluded that the same standard of review would apply under the Due Process Clause of the Fourteenth Amendment or the First Amendment. Wolford v. Angelone, 38 F.Supp.2d 452 (W.D.Va.1999); Parks v. City of Warner Robins, 43 F.3d 609 , 615 (11th Cir.1995).

Thus, regardless of the source of the constitutional right alleged to be infringed, we will apply the same analysis. B. Case Law Because the right to intimate association is an “intrinsic personal liberty,” “the Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees.” Roberts, 468 U.S. at 620 , 104 S.Ct. 3244 . However, indirect intrusions on that right may be subject to reasonable regulation. Zablocki v. Redhail, 434 U.S. 374, 386-87 , 98 S.Ct. 673 , 54 L.Ed.2d 618 (1978).

Here, the Department neither prevented appellant from marrying Cabana, nor forced her to obtain a divorce after learning about the marriage. We also note that during the investigation of appellant’s marriage, she was allowed to visit Cabana in prison, call him on the phone,