Department of Public Safety & Correctional Services v. Howard

MURPHY, Chief Judge. In this case, we must determine whether an agency’s removal of two correctional officers from state service was an arbitrary and capricious action. I. The General Assembly has prescribed that a classified service employee who has completed probation may be removed “only for cause.” Maryland Code (1993, 1994 Repl. Vol.), § 9-202 of the State Personnel and Pensions Article.

The General Assembly has delegated to the Secretary of Personnel the responsibility to “adopt regulations that prescribe what may constitute cause for removal.” Id. § 9-203. When an agency seeks to remove an employee it must file charges for removal with the Secretary of Personnel. Code of Maryland Regulations (COMAR) 06.01.01.48.A. An employee may “appeal” charges for removal to the Office of Administrative Hearings and receive a hearing before an administrative law judge (ALJ). COMAR 06.01.01.57, 06.01.01.61.

The ALJ issues a “written proposal for decision,” which is subject to ³⁶⁰ approval by the Secretary of Personnel. Id. The employee may file exceptions to the-proposal with the Secretary and present oral argument on them. Id.

The Secretary (or a designee of the Secretary) then issues a final decision. Id. The final decision of the Secretary is subject to judicial review in a circuit court pursuant to Maryland Code (1984, 1993 Repl.Vol., 1994 Cum.Supp.), § 10-222 of the State Government Article, a section of the Administrative Procedure Act. When exercising such review, a circuit court may: “(1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.” § 10-222(h). “A court’s role is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994).

II

On July 20,1991, Walter G. Howard and Brandon D. Taylor, correctional officers serving at Eastern Correctional Institution, were assigned to the visiting room. Taylor saw an inmate receive some chewing gum, which is contraband, from a visitor. Taylor called the inmate aside and ordered him to dispose of the gum. The inmate threw the gum, using an ³⁶¹ overhand motion, into the waste basket.

Taylor again called the inmate aside and asked if he had an “attitude.” Taylor then took the inmate to another room and told him that the gum was contraband and that, because he received the gum, his visiting privileges could be cancelled for six months. Taylor informed Lieutenant Vanessa Ward about the contraband and she, in turn, notified Captain Timothy McNeil, who approved terminating the inmate’s visit. Ward directed Taylor and Howard to strip search the inmate and then return him to his cell. Taylor and Howard took the inmate to a search room.

While there, the inmate touched a patch on Taylor’s sleeve. Taylor responded by pushing the inmate twice against the wall. Howard watched as this happened. Ward recalled that she heard the inmate yelling for help and then saw Taylor and Howard leave the room grinning.

She inquired of them what had happened and they both responded, “The inmate is crazy.” Taylor and Howard did not fully complete the strip search, although the inmate had removed his clothes. Ward went into the search room, and the inmate told her that he had been assaulted. Before Ward entered the room, Taylor and Howard neither informed her that they had not completed the strip search nor that the inmate had assaulted Taylor. Ward later attempted to inform Taylor of the inmate’s allegation of assault.

Taylor, however, interrupted her and walked away. He was then relieved of his post. Subsequently, in Ward’s office, Ward informed Taylor of the inmate’s allegation and “counseled” him for his previous insubordination. Taylor and Howard submitted official reports concerning the incident, in which they failed to mention that the strip search was not fully completed and that Taylor pushed the inmate against the wall.

Taylor wrote two Notices of Infraction, charging the inmate with insolence, possession of contraband, disobeying a direct order, and assault. At an adjust ³⁶² ment hearing concerning these charges, on July 24, 1991, the inmate was found guilty of insolence and possession of contraband, but not guilty of assault and disobeying a direct order. 1 On July 26, 1991, Security Chief Ralph Logan held suspension hearings for Howard and Taylor. 2 The hearings, held separately, focused on the officers’ failure to properly perform a strip search, failure to secure the inmate after the inmate had allegedly assaulted Taylor, and failure to warn Lieutenant Ward that the inmate had been assaultive before she entered the strip search room. Both officers were suspended for three days for a second category infraction described as “[ijnattentiveness or negligence in the performance of duty by an employee directly responsible for the custody of inmates.” DCR 50-2.III.E.2.a.19. Specifically, Logan found that the officers had violated DCR 50-2.II.J., which states: “An employee of the Agency shall be responsible for his/her own actions as well as the proper performance of his/her duties.

An employee shall perform his/her duties in a manner which will maintain the highest standards of efficiency in carrying out the functions and objectives of the Agency in accordance with established policies and procedures. Unsatisfactory performance may be demonstrated by a lack of knowledge, unwillingness or inability to perform assigned tasks, failure to conform to work standards established for the member’s rank, grade, or position, or failure to take appropriate action to ensure compliance with Agency regulations.” At the hearing, Lieutenant Ward, in the course of relating the general sequence of events, mentioned the inmate’s allegation of assault. The record, however, does not reflect any attempt to substantiate or investigate the allegation at that ³⁶³ time. Rather, it reveals that on the day before the hearings, Warden Taylor referred the incident to the Investigative Unit, where the case was assigned to Corporal Harry Edwards of the Maryland State Police. 3 Edwards began his investigation on July 26, 1991, by speaking to Howard and attending Howard’s suspension hearing.

Also on that day, he interviewed the inmate concerning the incident. On July 29, along with Chief Logan and Sergeant Cynthia Komenda from the Maryland State Police, Edwards again interviewed the inmate, who repeated his account of the incident without discrepancies. After the interview, Edwards conferred with Logan, who had spoken to Taylor, Howard, Ward and some other witnesses. Logan told Edwards that he believed the inmate’s account of the incident.

Also on July 29, Edwards discovered that Taylor had made a sworn application for a criminal summons to be issued for the inmate. On July 30, Edwards interviewed Ward and received her version of the events. On that day, he interviewed Lieutenant J. Gumpman. On August 1, he interviewed the inmate’s daughter, who had been visiting her father when the incident occurred.

On August 5, he interviewed Captain McNeil and two prisoners who were in the visiting room at the time of the incident. According to Edwards, the entire investigation was completed by August 15,1991. He concluded that Taylor had committed the assault and battery and had filed false reports. He also concluded that Howard witnessed the assault and battery, yet failed to properly report it and failed to truthfully answer questions about it.

On November 15, 1991, Edwards forwarded a typed copy of the report to his commander for review. He testified that this report was delayed because his time was consumed with other ³⁶⁴ investigations. On January 17, 1992, the report was forwarded to Warden Taylor, on February 20, 1992, to Assistant Commissioner Mazzone, and on April 30, 1992 back to Warden Taylor. Both Warden Taylor and Assistant Commissioner Mazzone determined that the findings in the report should be sustained.

Charges for removal were filed against both Howard and Taylor on June 9, 1992. Howard was charged with violating the department’s rules on performance of duties, personal conduct, prevention of disorders, breach of security, false reports, and attitude towards inmates. 4 He was also charged with violating COMAR 06.01.01.47, paragraphs D, E, L and M, which state that the following are sufficient causes for removal: “D. That the employee has violated any lawful official regulation or order or failed to obey any lawful and reasonable direction given by his superior officer when the violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the organization or to result in loss or injury to the State or the public; E. That the employee has been wantonly offensive in his conduct toward fellow employees, wards of the State, or the public; L. That the employee has willfully made a false official statement or report; M. That the employee has been guilty of conduct such as to bring the classified service into public disrepute.” In addition to the violations with which Howard was charged, Taylor was charged with violating the department’s rule on the use of force and COMAR 06.01.01.47, paragraph B, which establishes as sufficient cause for removal “[t]hat the employee has been wantonly careless or negligent in the performance of his duty or has used unwarrantable or excessive force in his ³⁶⁵ treatment of public charges, fellow employees, or other persons.” Howard and Taylor appealed the charges for removal to the Office of Administrative Hearings. The appeals were consolidated for a hearing on July 21 and July 28 of 1992 before an ALJ. The ALJ found the facts, outlined above, concerning the incident and concluded that the charges for removal should be sustained against both Howard and Taylor.

He also considered and rejected arguments from the officers that the charges were barred by double jeopardy and that the charges should be dismissed because of the delay between the incident and the filing of the charges. On February 3, 1993, a designee of the Secretary of Personnel adopted the proposals of the ALJ and ordered that Howard and Taylor be separated from their positions. The officers filed actions for judicial review in the Circuit Court for Somerset County. The cases were consolidated for a hearing on March 22, 1994.

The judge ruled that the Agency’s removal of the officers violated double jeopardy principles. He also concluded that the removals were defective because the investigation had grossly exceeded the 90-day period provided for in the regulations. 5 Accordingly, he reversed the decisions of the Secretary of Personnel. The Agency appealed to the Court of Special Appeals. While the cases were pending there, we granted certiorari to consider the issues raised.

III

A. Howard and Taylor assert that the Agency has both suspended and removed them for the same incident. They maintain that the Agency’s actions are contrary to a principle ³⁶⁶ they call “administrative double jeopardy,” which they have extrapolated from the principle of administrative law that an agency cannot act arbitrarily and capriciously. While in their brief to this Court Howard and Taylor have abandoned the argument that the Agency violated principles of constitutional double jeopardy, we will nevertheless discuss the viability of that argument because it formed the basis for one of the circuit court’s two holdings. The court stated that the suspension “was a penalty, the purpose of the penalty to change the job performance of the employees, but a penalty to accomplish that result nonetheless.” It characterized the removal as “an additional penalty imposed in addition to one that had been imposed back very shortly after the incident occurred.” The court then concluded: “[I]t appears to be a double jeopardy situation involved in state employment service.” In Ward v. Department of Public Safety and Correctional Services, 339 Md. 343 , 663 A.2d 66 (1995) [No. 10, September Term, 1995, filed August 21, 1995], consolidated for argument with the present cases, we discussed U.S. v. Halper, 490 U.S. 435, 440 , 109 S.Ct. 1892, 1897 , 104 L.Ed.2d 487 (1989), in which the United States Supreme Court decided that the Double Jeopardy Clause protects against multiple punishments even if the punishment is labeled “civil.” The Court stated that “the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.” Id. at 448 , 109 S.Ct. at 1901 .

The Court determined that if the purpose of the penalty is retribution or deterrence, it is punishment, but, if the purpose of the