Di Grazia v. COUNTY EXEC. FOR MONT. CTY.

Gilbert, C. J., delivered the opinion of the Court. This appeal generally involves the applicability of the provisions of Md. Ann. Code art. 27, § 727-734D, the “Law Enforcement Officers’ Bill of Rights (LEOBR) to the termination by a newly elected County Executive of the Director of Police 1 for Montgomery County. Specifically, it tests the right of the Executive to remove and replace non-merit employees with those of his own choosing. The appellant, Robert J. Di Grazia, was appointed, in 1976, Director of Police by former County Executive, James P. Gleason.

The County Council confirmed the appointment on October 5,1976, and Di Grazia assumed office ten days later. Throughout the remainder of Mr. Gleason’s term of office, the appellant continued to so serve. Mr. Gleason opted not to seek re-election, and the appellee emerged from the elective process as the successor County Executive, taking office on December 4, 1978. Three days thereafter, the newly installed County Executive requested Di Grazia’s resignation.

When the latter refused to resign, the appellee relieved appellant of all duties and elevated Major Donald E. Brooks to the position of Acting Director of Police. In subsequent interviews, the County Executive explained his action. He said that certain statements máde by the appellant hindered the effective operation of the Police Department. 2 Di Grazia, however, refused to sit by idly, and, on December 13, 1978, he filed a petition under Md. Ann. Code ⁵⁸² art. 27, § 734, alleging a denial of various rights accorded him under Art. 27, § 727 et seq. 3 A show cause order issued the next day, required a response by the County Executive on or before January 29, 1979. Before appellee had filed any responsive pleading, Di Grazia sought to take the appellee’s deposition.

The County Executive requested a protective order, which, following a hearing thereon, was granted by Judge Phillip Fairbanks. The judge’s order, predicated on his interpretation of Md. Rule 401, prevented the taking of the deposition prior to January 29, 1979. The appellant moved for summary judgment, filing along with his motion six exhibits. 4 The County Executive then filed a cross-motion for summary judgment adding two additional exhibits 5 to those of appellant. Each side stipulated to the admissibility and authenticity of the other’s exhibits. ⁵⁸³ On February 27, Judge Fairbanks, in a written opinion, granted the appellee’s motion.

The appellant raises two contentions in his appeal to this Court. He asserts: I. The trial judge erred in granting the appellee’s motion for summary judgment.

II

The trial judge erred in issuing the protective order. I. The standards for ruling upon a motion for summary judgment have been the subject of numerous opinions of both this Court and the Court of Appeals. Md. Rule 610 a 1 provides that “a party... may at any time make a motion for summary judgment... on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law.” The trial judge is to render judgment only if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Md. Rule 610 d 1. Summary judgment is not a substitute for a trial but only a procedure to determine whether a trial is necessary.

Kirsner v. Fleischman, 261 Md. 164, 169 , 274 A.2d 339, 342 (1971); Mazur v. Scavone, 37 Md. App. 695, 698-99 , 378 A.2d 1355, 1357 (1977). When ruling on such a motion, the trial judge does not decide disputed facts but, rather, decides whether any real dispute exists as to material facts. Washington Homes Inc. v. Interstate Land Development Co., Inc., 281 Md. 712, 716 , 382 A.2d 555, 557 (1978); Lipscomb v. Hess, 255 Md. 109, 118 , 257 A.2d 178, 183 (1969); Vanhook v. Merchants Mutual Insurance Co., 22 Md. App. 22, 25 , 321 A.2d 540, 542 (1974). All duly shown facts which would be admissible at trial, and all reasonable inferences deducible therefrom, must ⁵⁸⁴ be considered in a light most favorable to the party opposing the motion and against the party making the motion.

Washington Homes v. Interstate Land Development Co., Inc., 281 Md. at 718 , 382 A.2d at 557-58 ; Rooney v. Statewide Plumbing, 265 Md. 559, 563-64 , 290 A.2d 496, 499 (1972); Mazur v. Scavone, 37 Md. App. at 704 , 378 A.2d at 1359 . The function of the trial judge in deciding motions for summary judgment is much the same as that he performs at the close of all the evidence in a jury trial when passing upon motions for directed verdict or requests for peremptory instructions. Porter v. General Boiler Casing Co., 284 Md. 402, 413 , 396 A.2d 1090, 1096 (1979); Washington Homes v. Interstate Land Development Co., Inc., 281 Md. at 711 , 382 A.2d at 557 . Judge Fairbanks, as we see it, assigned two reasons for his conclusion: 1) The termination of Di Grazia’s employment was a failure of re-appointment, not a “firing” and did not violate Md. Ann. Code art. 27, § 733; and 2) The appellant failed to demonstrate that he met the conditions required to impose the procedural safeguards of Art. 27, §§ 728,730, and 731 upon the County Executive.

We shall discuss the second aspect of the ruling prior to consideration of the first of Judge Fairbanks’ reasons. The LEOBR was enacted primarily to assure that certain procedural guarantees would be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal. Abbott v. Administrative Hearing Board, 33 Md. App. 681, 682 , 366 A.2d 756, 757 (1976), cert. denied, 280 Md. 727 (1977). Md. Ann. Code art. 27, § 728(b) sets out four conditions which must exist in order to invoke the procedural safeguards of sections 728, 730, and 731. 1) The party claiming the benefits must be a law enforcement officer. 2) He must be under investigation or subject to interrogation. ⁵⁸⁵ 3) The investigation or interrogation must be conducted by a law enforcement agency. 4) The investigation must have been for a reason leading to disciplinary action, demotion, or dismissal.

The circuit court concluded that the appellant failed to demonstrate the presence of the last three conditions, and, thus, the protection of Article 27, §§ 728, 730, and 731 could not be invoked. While we agree that Di Grazia was not entitled to the benefits of sections 728,730, and 731, we reach that result by traveling a different road. In Allgood v. Somerville, 43 Md. App. 187 , 403 A.2d 837 (1979), we were faced with a strikingly similar situation. There, the plaintiff was a probationary employee of the St. Mary’s County Sheriff’s Department who was dismissed without cause.

She petitioned the court to enjoin the termination, claiming the benefits of the LEOBR. On demurrer by the sheriff, the circuit judge dismissed the petition stating: “ ‘But the plaintiff does not allege or contend that she was either investigated, interrogated, or charged. Nor were any