DiGrazia v. COUNTY EXEC. FOR MONT. CTY.

Murphy, C. J., delivered the opinion of the Court. We granted certiorari in this case to consider the reach of the Law Enforcement Officers’ Bill of Rights, Maryland Code (1957, 1976 Repl. Vol., 1978 Cum. Supp.), Art. 27, §§ 727-734D and, more specifically, whether summary judgment was properly entered, concluding as a matter of law, that the Director of Police of Montgomery County had not been removed from his office in violation of the Act’s provisions.

(1) Section 728 of the Act (hereafter the LEOBR) provides that when a law enforcement officer "is under investigation or subjected to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal,” the investigation or interrogation shall be conducted under conditions and safeguards ⁴⁴⁰ specifically delineated therein. 1 These include regulation as to the time and place of the interrogation, and a provision that the law-enforcement officer under investigation be given information concerning the persons conducting the investigation and those present during an interrogation. Other safeguards specified in § 728 include the right of the officer to be informed in writing of the nature of the investigation prior to any interrogation, the right of the officer to be represented by counsel during the interrogation, to have the names of witnesses prior to any departmental hearing, 2 and to receive, prior to a hearing, a copy of the record of any interrogation (which the section requires be maintained). Another condition contained in § 728 is that no "adverse material” be inserted into the officer’s file without affording him the right to review and comment on it. Section 730 provides that if the investigation or interrogation "results ■ in the recommendation of some action, such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure,” notice must be given (with exceptions .not here pertinent) to the officer "that he is entitled to a hearing on the issues by a hearing board.” 3 Section 730 contains detailed provisions governing the conduct of the hearing and the introduction of evidence.

Section 731 (a) requires that the hearing board’s decision be in writing and include findings of fact. Where the board’s ⁴⁴¹ finding is one of guilt, it is required to make a recommendation for punishment, which may include "demotion, dismissal, transfer, loss of pay, reassignment, or other similar action which would be considered a punitive measure.” Section 731 (c) provides that the recommendation of the hearing board is not binding upon the chief of police, who must make the final determination. Section 733, entitled "Retaliation for exercising rights,” provides that a law-enforcement officer: "may not be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise discriminated against in regard to his employment or be threatened with any such treatment, by reason of his exercise of or demand for the rights granted in this subtitle, or by reason of the lawful exercise of his constitutional rights.” (Emphasis added.) Section 734 authorizes a law-enforcement officer "who is denied any right afforded by this subtitle ... [to] apply at any time prior to the commencement of the hearing before the hearing board ... to the circuit court of the circuit or the Baltimore City Court ... for an order directing the law-enforcement agency to show cause why the right should not be afforded.” (2) Robert DiGrazia was appointed Director of the Montgomery County Police Department by former County Executive James Gleason. The appointment was confirmed by the County Council, as required by law, on October 5, 1976.

The office assumed by DiGrazia was for an indefinite term and was not within the protection of the county’s merit system of employment. County Executive Gleason did not seek re-election and his term of office expired on December 4, 1978. On that date, Charles Gilchrist, having been elected as County Executive on November 7, 1978, assumed office. Three days later, on ⁴⁴² December 7, 1978, Gilchrist asked for DiGrazia’s resignation.

According to comments attributed to Gilchrist at a press conference held that same day, his decision to seek DiGrazia’s resignation was based on statements previously made by DiGrazia, which disparaged the county’s police force, i.e., that 50% of the department’s officers were unqualified and that most members of the force viewed the community as the enemy. Gilchrist said he did not agree with these statements, and he believed their utterance by DiGrazia made it impossible for him to serve effectively as the director and to implement police department policy. DiGrazia’s departure, Gilchrist said, would "clear the air and... restore sense of purpose and unity and... go on with police work.” Gilchrist admitted at the press conference that he did not personally hear DiGrazia make the statements. He said that he had discussed the statements with DiGrazia prior to December 7, 1978, when he asked for his resignation.

Had DiGrazia not been "at fault” in making the statements, Gilchrist said he "would not have taken this step.” DiGrazia refused to resign and Gilchrist forthwith relieved him of his duties, designating Major Donald Brooks, a career police officer, as Acting Director. DiGrazia was placed on leave with pay until March 1, 1979. On December 13,1978, DiGrazia filed a "Petition for order to show cause” in the Circuit Court for Montgomery County, pursuant to § 734 of LEOBR. He alleged that his removal was based on public comments made by or attributed to him concerning the affairs of police officers, and that his discharge constituted "punishment” without regard to, and in derogation of, LEOBR’s provisions.

DiGrazia claimed that he was a law-enforcement officer subjected to investigation and was therefore entitled to the protection afforded by the LEOBR. He contended that his rights under § 728 were violated because he was not informed of the officer in charge of the investigation which was made of him, nor was he informed in writing of the nature of the investigation prior to his discharge, or of the names of the witnesses against him. DiGrazia claimed that his rights under § 728 (12) were ⁴⁴³ violated because "adverse material” was inserted into his file without giving him an opportunity to see or review it, and that his dismissal violated § 730 because he was not given notice that he was entitled to a hearing before a disciplinary hearing board. In answer to DiGrazia’s petition, the County Executive claimed that the LEOBR was not applicable because DiGrazia was not subjected to an investigation or an interrogation which resulted in the recommendation of a disciplinary sanction.

Consequently, it was argued that DiGrazia was not entitled to a hearing before a hearing board under § 730. Moreover, Gilchrist maintained that DiGrazia was not a "law-enforcement officer” within the contemplation of the LEOBR, nor was the action taken by the County Executive that of a "law-enforcement agency” under the Act. Each party moved for summary judgment on the pleadings and stipulated exhibits, which included transcripts of Gilchrist’s press conference of December 7, 1978 and a later television interview in which he repeated his reasons for asking for DiGrazia’s resignation. The court (Fairbanks, J.) said that the issues presented were (1) whether Gilchrist violated § 733 of the LEOBR, "which specifically proscribes the discharge or disciplining of a law-enforcement officer by reason of his lawful exercise of a constitutional right, in this instance, the right to free speech”; and (2) whether DiGrazia was a law-enforcement officer "entitled to the procedures outlined in Sections 728 (b), 730 and 731 . . . including a hearing before a departmental hearing board.” The trial court concluded that DiGrazia was neither discharged nor disciplined in violation of the safeguards of the LEOBR.

It said that DiGrazia was a nonmerit system employee, with no written contract of employment, appointed to an indefinite term, and who, after December 4, 1978 (when County Executive Gleason’s term of office expired) merely held his office as a holdover. The court held that DiGrazia was simply not reappointed by Gilchrist and consequently he was neither disciplined nor discharged under § 733. It said that DiGrazia had no proprietary inter ⁴⁴⁴ est in the position of Director of Police and that it was therefore unnecessary to decide whether his dismissal was in retaliation for the exercise of his right to freedom of speech. The court held that § 728 was applicable only if four prerequisites were shown: (1) that DiGrazia was a law-enforcement officer, (2) that he was under investigation or subjected to interrogation, (3) that the investigation or interrogation was being conducted by a law-enforcement agency, and (4) that the investigation or interrogation was for a reason which could lead to disciplinary action.

It determined that DiGrazia was neither investigated nor interrogated, and that the County Executive was not a law-enforcement agency under the LEOBR’s provisions. Finally, the court held that because the removal of DiGrazia was not punitive, the procedures pertaining to a hearing in §§ 730 and 731 were inapplicable. The court denied DiGrazia’s motion for summary judgment and granted summary judgment for Gilchrist. The judgment was affirmed on appeal.

DiGrazia v. County Exec. for Mont. Co., 43 Md. App. 580 , 406 A.2d 660 (1979). The Court of Special Appeals stated that the LEOBR was not applicable to DiGrazia since he was a non-tenured law-enforcement officer whose employment could be terminated without cause. As a second ground for its affirmance, the court held that DiGrazia did not establish the precondition to the applicability of the statute, namely, that an investigation had been undertaken.

It said that a reading of the transcripts of the press conference and the television interview did not support an inference that an investigation took place. For these reasons, the court found that DiGrazia could not invoke the protections of §§ 728, 730, 731 and 733, and that summary judgment in Gilchrist’s favor was properly entered. 4 ⁴⁴⁵ (3) Maryland Rule 610 d 1 provides for granting summary judgment "if the pleadings, depositions, and admission on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Among other methods, parties may place before the court facts necessary to a determination of the motion through stipulation or concession. Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-16 , 382 A.2d 555 (1978).

Of course, the purpose of the summary judgment procedure is not to determine factual disputes, but rather to determine whether there is a dispute over material facts that should be tried. Berkey v. Delia, 287 Md. 302 , 413 A.2d 170, 171 (1980); Peck v. Baltimore County, 286 Md. 368, 381 , 410 A.2d 7 (1979); Honaker v. W. C. & A. N. Miller Dev. Co., 285 Md. 216, 231 , 401 A.2d 1013 (1979). These cases also hold that in determining whether a factual dispute exists, all inferences must be resolved against the moving party, even if the underlying facts are undisputed.

And disposition by summary judgment is generally inappropriate in cases involving motive or intent. See Berkey v. Delia, supra, 287 Md. at 306, 324-25 . There is agreement between the parties that DiGrazia was a non-tenured law-enforcement officer serving an indefinite term of office, and that after December 4, 1978, when the former County Executive’s term of office expired, he was a mere holdover in the office, subject to lawful replacement at any time thereafter. The nub of DiGrazia’s complaint is not that he was not reappointed, but that his removal from office constituted a summary disciplinary dismissal solely because of his alleged public statements.

The action was taken, DiGrazia contends, in total disregard of the protections afforded to him by the LEOBR. He seeks reinstatement in his position, together with all the financial benefits of the office, up to the time that his permanent successor, Bernard Crooke, qualified and was confirmed by the County Council, i.e., May 1, 1979. Contrary to the view taken by the Court of Special ⁴⁴⁶ Appeals, we think that LEOBR’s provisions are not limited to tenured law enforcement officers. Consistent with the Act’s all-encompassing subtitle — "Law Enforcement Officers’ Bill of Rights” — the LEOBR’s protections are extended to any person defined as a law-enforcement officer in § 727 (b), unless expressly excluded under § 727 (b-1), i.e., "an officer serving in a probationary status except when allegations of brutality in the execution of his duties are made” and "persons serving at the pleasure of the police commissioner of Baltimore City.” Not only is there no exclusion in the LEOBR for chiefs or other heads of police departments, but the Act expressly contemplates that such persons are entitled to its benefits. § 728 (13).

DiGrazia therefore is plainly within the Act’s protections and covered by its provisions. DiGrazia interprets the LEOBR as affording him a right to a hearing before a departmental disciplinary board to determine the existence of cause before he could be removed from office for disciplinary reasons — in this instance to determine whether he made the statements in question, and, if so, whether his constitutional right to freedom of speech, protected under § 733, was infringed by his summary dismissal. The rights protected by § 733 are secured, DiGrazia claims, whether or not an investigation is conducted under § 728. He maintains, however, that because Gilchrist concededly had no firsthand knowledge of whether he made the statements or not, an inference of fact arises, sufficient to defeat a summary judgment motion, that an investigation under § 728 was made to determine whether he uttered the remarks — an investigation which resulted in his dismissal.

Gilchrist maintains that summary judgment in his favor was properly entered because there is nothing in the record to show that DiGrazia was removed for disciplinary reasons in violation of § 733. DiGrazia was simply not reappointed, Gilchrist contends, Major Brooks being appointed in his place as Acting Director on December. 7. Gilchrist argues that the LEOBR can only be activated by the initiation of an investigation which could lead to disciplinary action, ⁴⁴⁷ demotion or dismissal and that no investigation was shown to have taken place in this case. It strains common sense according to Gilchrist that he could or would have conducted a LEOBR-type investigation prior to seeking DiGrazia’s resignation — a resignation to which he was entitled without assigning any reason at all.

Gilchrist suggests that it would defy reason to conclude that the Legislature intended to permit a quasi-judicial board to make a determination on a matter dealing with the policymaking appointive powers of the County Executive. (4) Although it was clearly within Gilchrist’s power to remove DiGrazia from the office of Director of Police and replace him with another appointee, his decision to terminate DiGrazia’s employment would not have been lawful if it was made because of DiGrazia’s exercise of constitutionally protected first amendment rights. Perry v. Sinderman, 408 U.S. 593 , 92 S. Ct. 2694 , 33 L. Ed. 2d 570 (1972). In Perry , the Supreme Court stated: "For at least a quarter-century, this Court has made clear that even though a person has no 'right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.

It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U.S. 513, 526 . Such interference with constitutional rights is impermissible.” Id. at 597 . ⁴⁴⁸ In view of Perry , the fundamental issue before us is whether, in entering summary judgment for Gilchrist, the trial judge properly concluded, as a matter of law, that DiGrazia’s right