Elliott v. Kupferman

WILNER, Judge. Appellant Arthur B. Elliott was, for many years, a member of the Town of Aberdeen police force. He eventually became the chief of the town police. At some point, the Town Commissioners (appellees) decided to remove Elliott from the police force.

At first, on August 24, 1981, they tried to dismiss him outright, but because the dismissal was not in conformance with the procedural requirements of the Law-Enforcement Officers’ Bill of Rights (LEOBR, Md.Code Ann. art. 27, §§ 727-734D), the Circuit Court for Harford ⁵¹⁴ County, upon Elliott’s complaint, immediately required that he be reinstated. His termination on that occasion lasted but one day. On August 26,1981, appellees placed Elliott on administrative leave (with pay) and filed charges against him under LEOBR. Before those charges were heard by an LEOBR hearing board, however, Elliott’s two-year term as police chief expired, and he was not reappointed.

That effectively terminated his status and employment. Elliott and his wife sued appellees in the Circuit Court for Harford County. After some earlier pleading battles, the case ultimately was. decided upon their second amended declaration which comprises seven counts, as follows: Count I purports to allege an action under 42 U.S.C. § 1983 . Elliott avers therein that by virtue of the procedural safeguards embodied in LEOBR he had a “property interest in his continued employment with the Aberdeen Police Department, said property interest being secured and guaranteed by the Constitution of the United States and the due process and equal protection requirements therein.” He alleges that appellees, under color of State law, transgressed upon that property interest by: (1) conducting an investigation, “the purpose of which was to gather information critical of [Elliott] in an attempt to initiate disciplinary action against [him] or to secure his demotion o'r dismissal from the Aberdeen Police Department”; (2) failing to meet “certain procedural safeguards,” under LEOBR, specifically: (a) failing to inform Elliott of the name, rank, and command of the officer in charge of the investigation, as required by art. 27, § 728(b)(3); (b) failing to inform him in writing “of the nature of the investigation prior to his interrogation,” as required by art. 27, § 728(b)(4); and (c) terminating him on August 24, 1981 without giving notice of his entitlement to a hearing, in violation of art. 27, § 730(a); (3) thereafter filing charges against Elliott, including accusations of the commission of a criminal offense, “said ⁵¹⁵ charges being motivated purely by political considerations”; and (4) failing to provide a trial board before which Elliott could defend these charges.

All of this, he claimed, caused serious injury to his self-esteem, professional reputation, and marital tranquility. As recompense, he asked $500,000 compensatory and $2,000,000 punitive damages. Count II is for abuse of process, although it does not indicate precisely the type of process that was allegedly abused. Elliott claims that appellees “caused to be issued process” against him “for the sole purpose of harassing, embarrassing, and humiliating [him] in hopes of forcing his resignation from his position as Chief of the Aberdeen Police Department,” that their acts “were malicious and done without just cause, illegal, oppressive and done with a wanton disregard for [Elliott’s] rights... . ” Count III asserts an action for defamation.

Excess verbiage aside, Elliott alleges that appellees “did maliciously cause to be prepared and composed certain interdepartmental charges of misconduct,” including one that involved a criminal offense, that “these defamatory matters were known to the Defendants to be untrue or should have been known to be untrue,” and that they nevertheless with malice “knowingly, wantonly, and recklessly caused these defamatory allegations to be published and communicated to the community at large.” He avers that he had previously enjoyed an excellent reputation for integrity, moral conduct, and proper activities as a police officer, and that the appellees’ actions “were meant and intended to hold [Elliott] up to public scorn and ridicule and were made with actual malice and wilful intent to injure [him].” Count IV, brought by Elliott and his wife, realleges by reference everything in Counts I through III. It asserts that appellees’ failure “to prosecute allegations of misconduct on the part of [Elliott]” caused him emotional pain and suffering which affected his physical health and well-being, ⁵¹⁶ and that, in turn, caused the plaintiffs to suffer a loss of consortium. Counts V, VI, and VII also incorporate and reallege “all facts and matters” contained in the earlier counts. The theory of Count V is not entirely clear; we are told it was intended to charge malicious prosecution.

Elliott claims therein that appellees “caused to be filed certain interdepartmental charges with the Aberdeen Police Department against [him],” that they “were solely responsible for the investigation and prosecution of said charges,” that those charges “were initiated without jest [sic] cause, maliciously, and for private and improper motives,” that “upon the filing of said interdepartmental charges. .. [Elliott] was notified to appear before an administrative trial board as provided in [LEOBR],” that the charges filed against him were then dropped and no hearing was held thereon, as appellees “knew them to be without merit and baseless.... ” Count VI charges an invasion of privacy. Elliott avers that appellees caused to be published and circulated “certain allegations concerning the private and off duty activities” of Elliott that were of no legitimate concern to the public but were “of the type that would be highly offensive to a reasonable person” and were so to him. Finally, in Count VII, Elliott charges appellees with negligence in failing to “thoroughly investigate the truthfulness of the complaints against [him]” and in filing disciplinary proceedings “before determining whether there was in fact any basis therefore [sic].” Had appellees exercised reasonable care and thoroughly investigated the charges, he avers, “they would or should have known the complaints to be baseless and without merit.” Appellees responded to this pleading with a demurrer to all seven counts and with what we take as the renewal of a motion raising preliminary objection that had been filed in June, 1982, in response to the initial declaration. On May 27, 1983, the court disposed of the second amended declaration by granting the demurrer as to Count I and the motion ⁵¹⁷ raising preliminary objection as to Counts II through VII.

The court concluded that to the extent Count I sought to state an action under 42 U.S.C. § 1983 , it was insufficient in that “no facts were shown to describe the nature and extent of [the] alleged property interest.” The remaining six county were dismissed on the basis of Md.Code Ann. art. 23A, § lB(a), i.e., governmental immunity. The court concluded that “[r]unning the police department is a discretionary function within the scope of [appellees’] employment,” and that, aside from bald allegations, appellants had failed to “set forth any facts amounting to malice.” In this appeal appellants do not challenge the procedural correctness of those rulings, i.e., whether the demurrer as to Count I was in proper form and whether the issue and underlying facts concerning appellees’ immunity were properly before the court, and we shall therefore not address the procedural aspects of the court’s rulings. 1 Rather, we shall ⁵¹⁸ confine ourselves to the substantive issues presented by appellants: does Count I state a cause of action under 42 U.S.C. § 1983 , and are appellees immune from the liability asserted under Counts II through VII? (1) Count I — § 198S As we indicated earlier, from all of the information given to us in the various pleadings, answers to interrogatories, briefs, and argument, it appears that appellees proceeded against Elliott in three stages: (1) on August 24, 1981, they dismissed him outright, but as the result of a proceeding filed by him in court, he was reinstated the next day; (2) he was then immediately placed on administrative leave (with pay) and at some undefined point — alleged in an answer to an interrogatory to be more than six months later — charges were filed against him under LEOBR; and (3) at some later undefined time, his term of office expired and he was not reappointed. Unfortunately, this sequence of events is not clearly set forth in Count I, or indeed in any of the counts, of the second amended declaration.

Count I, in particular, says nothing at all about a term of office or about an appointment not being renewed. Insofar as Count I is concerned, Elliott was an untenured “at will” employee. For purposes of the demurrer, we are, of course, precluded from considering anything outside of the second amended declaration itself, except to the extent that statements made to us in argument may suffice as concessions. Section 1983 provides, in relevant part, that: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, ⁵¹⁹ shall be liable to the party injured in an action at law. .. . ” It is a very broad statute, remedial in purpose.

Its principal object is to provide a mechanism for enforcing the rights guaranteed by and under the Fourteenth Amendment, most notably the protection against deprivation of liberty or property without due process of law. As the Supreme Court pointed out in Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), a citizen’s liberty interest and his property interest are not the same. In the context of dismissals from employment, one’s liberty interest may be implicated where the employee has no cognizable right to the continued employment, but the dismissal serves to fetter some other Constitutional right that he does have. Thus, a dismissal may be found to violate a liberty interest when it is the result of unlawful discrimination, Poolaw v. City of Anadarko, 660 F.2d 459 (10th Cir.1981), or when it is in retribution for the exercise of First Amendment or other Constitutional rights, Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972), DiGrazia v. County Exec. for Mont.

Co., 288 Md. 437 , 418 A.2d 1191 (1980), but see Trotman v. Board of Trustees of Lincoln University, 635 F.2d 216 (3d Cir.1980), cert. denied 451 U.S. 986 , 101 S.Ct. 2320 , 68 L.Ed.2d 844 (1981), and Wood v. Town of Frederica, 529 F.Supp. 403 (D.Del.), aff'd 688 F.2d 828 (3d Cir.1982), or when it is accompanied by charges that might damage the employee’s reputation in the community and he is given no opportunity to respond, Board of Regents v. Roth, supra, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 , Bishop v. Wood, 426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 (1976), Duggan v. Town of Ocean City, 516 F.Supp. 1081 (D.Md.1981), or where it imposes upon him some stigma or disability that forecloses other employment opportunities (such as barring him from other public employment), Board of Regents v. Roth, supra, Kiekow v. Village of Chenequa, 342 F.Supp. 494 (E.D.Wis.1972). ⁵²⁰ For a dismissal or termination to implicate a property interest, the employee must have some entitlement to the employment itself. But, as noted in Roth, 408 U.S. at 577 , 92 S.Ct. at 2709 , “[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Elliott has made clear to us in argument, notwithstanding some ambiguity in his pleading, that Count I is based solely on an alleged deprivation of his property interest in continued employment as a police officer.

He does not contend that appellees’ actions have transgressed upon any liberty interest. We therefore shall confine ourselves to the question of whether, based on the allegations in Count I, appellees have deprived him of a property interest without due process of law. 2 As a general rule, a non-tenured State or local government employee who serves “at will” is not regarded as having a property right in continued public employment. Taylor v. Beckham, 178 U.S. 548 , 20 S.Ct. 890 , 44 L.Ed. 1187 (1900); Board of Regents v. Roth, supra, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 ; Bishop v. Wood, supra, 426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 ; Hodgin v. Noland, 435 F.2d 859 (4th Cir.1970), cert. denied 408 U.S. 942 , 92 S.Ct. 2846 , 33 L.Ed.2d 766 (1972); Brown v. Hirst, 443 F.2d 899 (4th Cir.1971), cert. denied 404 U.S. 1040 , 92 S.Ct. 720 , 30 L.Ed.2d 732 (1972). This includes a police officer.

Absent some special tenure provision, a police officer does not have a federally protected right to continued employment as a police officer. Boulware v. Battaglia, 327 F.Supp. 368 (D.Del.1971); Monroe v. St. Louis Metropolitan Police Dept., ⁵²¹ 524 F.Supp. 1009 (E.D.Mo.1981); Fielder v. City of Richmond, 468 F.Supp. 1119 (E.D.Va.1979); DeBono v. Vizas, 427 F.Supp. 905 (D.Col.1977). As both the Roth and Bishop Courts made clear, however, property interests are not created by the Constitution. “Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577 , 92 S.Ct. at 2709 . Thus, “[a] property interest in employment can, of course, be created by ordinance, or by an implied contract.” Bishop, 426 U.S. at 344 , 96 S.Ct. at 2077 .

In either case, the Bishop Court continued, “the sufficiency of the claim of entitlement must be decided by reference to state law.” Id. Count I does not allege any direct statutory or contractual entitlement to continued employment, as would be the case, for example, if Elliott had been employed for a specific term of years or could be discharged only for specific cause. See, for example, Thompson v. Bass, 616 F.2d 1259 (5th Cir.), cert. denied 449 U.S. 983 , 101 S.Ct. 399 , 66 L.Ed.2d 245 (1980); Poolaw v. City of Anadarko, supra, 660 F.2d 459 , but compare Bishop v. Wood, supra, 426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 . Nor does LEOBR itself purport to afford such an entitlement; it neither creates a term of office for policemen nor specifies or limits the causes for which they may be dismissed.

It does not, in short, provide tenure to police officers. Allgood v. Somerville, 43 Md.App. 187 , 403 A.2d 837 (1979). Elliott’s claimed entitlement, then, is an implicit one. LEOBR, he says, sets procedural conditions on the Town’s ability to dismiss him; absent compliance with those conditions, there is no right to dismiss; ergo, absent compliance with those conditions, he has a protected property interest in continued employment.

LEOBR affords protection to police officers in two respects: (1) it seeks to protect certain “liberty” interests, ⁵²² such as the right to engage in political activity (§ 728(a)), the right of privacy (§ 729), and the right to be free from retributive actions (§ 733), and (2) it sets forth certain procedural requirements in connection with investigations and other proceedings that may lead to disciplinary action. We are concerned here only with the latter. In that connection, the statute envisions and speaks to three phases of such proceedings: (1) the initial investigation that may lead to the filing of charges; (2) the filing of charges and the officer’s right to a hearing thereon; and (3) the employer’s right to accept, modify, or reject the findings and recommendations of the hearing board. We summarized the