Employees' Retirement System v. Brown

MOYLAN, J. How sweeping is the commitment to render “honorable and faithful” service to one’s profession? Will an unblemished record by day suffice, even if there are lapses into outlawry after dark? Should the retirement system for a profession surgically separate Dr. Jekyll from Mr. Hyde, so long as Mr. Hyde’s criminality does not adversely affect Dr. Jekyll’s performance as a medical practitioner? The retirement of the appellee, Officer Garry A. Brown, from the Baltimore County Police Department may provide an instructive case in point.

Brown served as an officer of the Baltimore County Police Department from 1986 to 2003. On February 2, 2004, he ²⁹⁵ entered a plea of not guilty on an agreed statement of facts in the District Court of Maryland for Baltimore County to a charge of possession of cocaine in violation of Maryland Code, Criminal Law Article, § 5-601. Pursuant to a plea agreement, Brown received a suspended sentence in favor of three years of supervised probation and 150 hours of community service. By way of further negotiation, he was permitted to resign from the Baltimore County Police Department rather than being officially terminated for cause by the Department. 1 In November of 2003, Brown applied for a length of service retirement allowance.

His three years of prior service in the military added to his seventeen years of service as a police officer made him eligible for a service retirement allowance. Brown’s application was to the Employees’ Retirement System of Baltimore County (“the Retirement System”), the appellant in this case. On March 9, 2004, the Retirement System denied Brown’s application by a vote of 4-1. Brown appealed that decision to the Baltimore County Board of Appeals, which held a de novo hearing on October 21, 2004.

Although the odyssey of this case through the adjudicative process has now included two trips to the County Board of Appeals, two trips to the Circuit Court for Baltimore County, and one prior trip to this Court, it was that first hearing before the Board of Appeals on October 21, 2004, that fully developed the factual picture over which all subsequent rounds of litigation have puzzled. ²⁹⁶ A Double Life Brown’s habitual involvement with narcotics first came to light on October 16, 2003, when he submitted to a random urinalysis to test for the presence of controlled dangerous substances. Submitting to such tests is a routine requirement of employment with the Baltimore County Police Department. The test result on that occasion showed Brown to be positive for cocaine. As a consequence of that test result, Baltimore County police, on October 31, 2003, executed a search and seizure warrant on Brown’s residence.

They found 304 glass vials and 16 glass tubes, all with “white residue,” as well as ziplock bags and pipes. Upon testing, several of the glass vials tested positive for cocaine. A permitted inference remained' with respect to the other vials. Brown admitted to the investigating officers that he used cocaine.

When this case first came before this Court, Judge Kenney authored a 22-page unpublished opinion announcing our decision. Employees’ Retirement System of Baltimore County v. Brown, 169 Md.App. 738 , 742 (2006). That opinion well summarized the testimony of Brown himself before the Board of Appeals on October 21, 2004, as he sought to excuse his fall from grace. Brown testified before the Board that he began using cocaine after going through “a rough divorce” in 1990 or 1991.

He acknowledged that he obtained the cocaine by purchasing it from drug dealers on the street, and that he had used cocaine with people who may have been aware that he was a police officer. He stated that his use was generally limited to weekends or other times when he was off duty for multiple days. At the time he tested positive, he was using cocaine approximately once or twice a month. He said that he never used cocaine while on duty, and never came to work while under the influence of narcotics.

According to Brown, his cocaine use never interfered with his duties as a police officer. The other two witnesses who testified before the Board of Appeals on October 21, 2004, were both members of the ²⁹⁷ Retirement System’s Board of Trustees who had voted on Brown’s application on March 9, 2004. Their testimony before the Board of Appeals did not add any new evidence to the factual data base but reflected, rather, opposing views about the significance of the unquestioned evidence. Sergeant Cole Weston was the president of the Fraternal Order of Police Lodge #4 and a trustee of the Retirement System.

As summarized by Judge Kenney, he explained his dissent from the vote of the Retirement System to deny Brown’s application. Sergeant Cole Weston, who is a member of ERS and president of the union that represents Baltimore County police officers, testified that he had voted to grant Broom’s retirement allowance because there was no evidence that he had rendered poor service as an officer: “Nothing indicated in his ratings poor performance. Nothing was indicated as far as excessive abuse of sick time, or not showing up to work on time .... ” Sergeant Weston was of the opinion that “Mr. Brown, with his service time in the pension system, with the amount of credible service that he had already accrued through that time that he was there, in conjunction with his [prior] military time, ... should have been able to go ahead and draw it.” (Emphasis supplied). The final witness before the Board was Baltimore County Police Chief Terence Sheridan, who had been one of the four trustees voting to deny Brown’s application.

Judge Kenney summarized Chief Sheridan’s testimony. Terence Sheridan, Chief of Police and also a member of ERS, testified that he had presented the facts of Brown’s case to ERS and had moved for denial of Brown’s application for retirement. Chief Sheridan stated that his motion and his vote for denial were based on Brown’s having “usfedf cocaine for almost half his career ivith the Baltimore County Police Department.” He reasoned: Just the eight years of abuse of an illegal drug, the method in which he ivas acquiring the drugs, the amount ²⁹⁸ of residue, the amount of drugs found in his house, the paraphernalia. All those in combination, to me, meant he was not serving the citizens of Baltimore County faithfully and honorably.

(Emphasis supplied). The First Decision of the Board of Appeals Having had that evidence before it, the Board of Appeals delivered a 10-page written decision on December 16, 2004. It recognized at the outset that “the basic facts of this case are not in dispute.” That is still the case. It posed the question before it as that of “whether or not the Applicant, Garry A. Brown, served his employer honorably and faithfully and therefor deserves a retirement benefit.” The Board of Appeals reversed the decision of the Retirement System and ordered that Brown should receive the service retirement benefits.

The Board of Appeals was especially troubled by the absence of any definitions or standards by which to judge the critical criterion of what exactly is “faithful and honorable” service. The ansiver to the question before us is particularly troublesome because we have two officials of the ERS Board of Trustees who have testified unequivocally that no definitions or standards exist by which to determine what “faithful and honorable” semce is. Both Chief Sheridan and Sgt. Weston state that the criteria applied is in the mind of each Board member.

(Emphasis supplied). The ultimate conclusion of the Board was that because of the absence of established and official definitions and guidelines as to what constitutes “honorable and faithful” service, the decision of the Retirement System was ipso facto “arbitrary and capricious.” While taking illegal drugs is egregious and there are criminal penalties available in other venues, if we were to view retirement benefit cases in any other way, we would have to ²⁹⁹ know if the employee had ever had a speeding ticket for exceeding 65 mph (also a criminal act) or ever been involved in any other situation in his private life which might disqualify him as “faithful and honorable.” The obvious and unsettling fact is that there seems to be no set determination or standard applied to “honorable and faithful service as an employee” by the ERS Board in denying or approving retirement benefits as evidenced by the case history presented to this Board of Appeals. There are no definitions, no guidelines, no rules, no regulations, and no procedures by which each case can be decided. ... An unusual situation is decided, according to Chief Sheridan, by standards that “exist in each member’s mind.” To continue to make their determinations in the current manner used by the ERS Board of Trustees, decisions rendered are by definition arbitrary and capricious by the lack of any discernible standards or definition of terms.

(Emphasis supplied). First Appeal to the Circuit Court The Retirement System appealed that decision of the Board of Appeals to the Circuit Court for Baltimore County. In a Memorandum Opinion and Order of June 30, 2005, Judge Christian M. Kahl affirmed the decision of the Board to grant Brown his retirement benefits. The opinion of Judge Kahl was that there was “substantial evidence” to support the decision of the Board of Appeals and that its decision was, therefore, not legally defective.

First Appeal to This Court The Retirement System further appealed that decision of the Circuit court to this Court. The appeal to us was twofold, as the Retirement System urged upon us two reasons why the decision of the Board of Appeals should be reversed. We rejected the first of those reasons but were persuaded by the second. In the first of its contentions, the Retirement System challenged three very specific findings of the Board of Appeals as not being supported by “substantial evidence.” They were ³⁰⁰ the Board’s findings that 1) Brown had been “permitted” to retire, 2) that there was no evidence that Brown had used drugs while on duty as a police officer, and 3) that there was no evidence that “the use of drugs affected [Brown’s] work performance in any way.” We declined to reverse the Board of Appeals (and the Circuit court) on those evidentiary grounds.

Our. holding in that regard was, “We are not persuaded that the Board’s findings [were] not supported by substantial evidence.” That part of our decision, however, has no further pertinence to anything still before us. We reversed the Board of Appeals (and the Circuit court) on an exclusively legal ground. That part of our opinion is now the law of this case. We held that the Board of Appeals had applied too narrow a standard of “honorable and faithful services as an employee” of the police department.

Our bottom line was that a police officer’s off-duty conduct, as well as his on-duty conduct, may be such as to render his services to the police department less than “honorable and faithful.” Our holding was that the Board of Appeals was legally in error for having declined to consider the effect that Brown’s off-duty behavior , may have had on the issue of “honorable and faithful” service. We referred first to the standard for a service retirement allowance set out by the Baltimore County Code: The Baltimore County Code provides the criteria for the service retirement for which Brown applied: A member who retires on or after July 1, 1995 shall be entitled to receive a service retirement allowance irrespective of age, consisting of an annuity and a pension which together will provide a minimum benefit of fifty (50) percent of average final compensation plus two (2) percent for each year of creditable service in excess of twenty (20), provided such member shall have a minimum of twenty (20) years of creditable service. Baltimore County Code § 5-1-216(c) (2003). Relevant to this case “creditable service” is defined as “prior service plus membership service, for which credit is allowable as ³⁰¹ provided in §§ 5-1-208 through 5-1-212 of this subtitle.” Baltimore County Code § 5-1-201®.

The Code defines “membership service” as “honorable and faithful service as an employee rendered while a member of the retirement system. ” Baltimore County Code § 5-l-201(o). (Emphasis supplied). Judge Kenney’s opinion pointed out that the Board of Appeals had, indeed, acknowledged that Brown’s drug procurement and use might not in the abstract be deemed “honorable and faithful” but the Board then erroneously limited his “honorable and faithful” obligation to his on-duty hours. The Board stated that “the use of illegal drugs might automatically disqualify [Brown] as [having] perfo'rm[ed] honorably and faithfully. ” Indeed, the plain meaning of the phrase “honorable and faithful” would seem to exclude illegal activity by a police officer. “Honorable” carries a number of connotations, including: “performed or accompanied with marks of honor or respect,” “attesting to creditable conduct.” “consistent with an untarnished reputation,” “characterized by integrity: guided by a high sense of honor and duty.” Merriam-Webster’s Collegiate Dictionary 556 (10th ed.2000).

The definition of “faithful” includes the following: “steadfast in affection or allegiance,” “firm in adherence to promises or in observance of duty,” and it implies unswerving adherence to a person or thing or to the “oath or promise by which a tie was contracted.” (Emphasis supplied). We held that the Board of Appeals had focused too narrowly on the word “service” and thereby had erroneously concluded that an employee was obligated to be “honorable and faithful” only when literally engaged in on-duty “service.”' In this case, Baltimore County Code § 5-1-201 (o) refers to “honorable and faithful service as an employee.” The Board determined, that the statutory language indicates that the inquiry should be limited to an employee’s service in the performance of his or her professional duties: ³⁰² The Board, concluded, then, that the phrase “honorable and faithful service as an employee” limited the inquiry to the employee’s work performance while on duty. “Service” is defined by the Baltimore County Code as “service as employee paid for by the employer.” (Emphasis supplied). That narrow standard, we held, was the wrong standard, one that failed to comprehend the full nature of a police officer’s obligation. In our view, in determining whether a police officer’s conduct constitutes “honorable and faithful service as an employee, ” the inquiry is not limited to the officer’s “working hours. ” (Emphasis supplied).

Our opinion expressly referred to the fact that “certain ‘off duty’ activities by police officers are regulated by the Baltimore County Police Department Administrative Manual.” After quoting from several of the provisions directly bearing on Brown’s admittedly unlawful conduct, we concluded that Brown’s off-duty behavior had, indeed, been in violation of those provisions: The police manual also includes a dmg policy: “Department members: 1. May not abuse any drug/substance, or possess any illegal drug/'substance, except in the lawful performance of duty. 2. Found to be in violation of the law or this policy will be disciplined.” Both Sergeant Weston and Chief Sheridan testified to the applicability of the-aforementioned regulations. Brown recognizes that his conduct was in violation of the police manual.

(Emphasis supplied). After quoting from Brown’s testimony at the hearing before the Board of Appeals, in which he acknowledged that his repeated purchase of and subsequent use of contraband drugs was unlawful, our opinion was unambiguous in asserting that ³⁰³ Brown’s “dear violation of his obligations as a police officer” most definitely “reflects on his ‘service as an employee.’ ” We believe that Brown’s clear violation of his obligations as a police officer, as set forth in the police manual, reflects on his “service as an employee. ” Police officers are unique among public servants. The Court of Appeals has noted that “[a] police officer holds a particularly sensitive position of public trust.” We have noted that most people accept as true that “police officers in America are ‘considered to be on duty twenty-four hours a day; seven days a week. ’ ” (Emphasis supplied). We subscribed to the notion of a police officer’s “24-7” commitment to the law.

In this regard, an officer’s badge is never off. Judge Kenney’s opinion then reviewed several out-of-state legal decisions in which police officers had also been denied retirement benefits because they had been engaged in drug-related illegal activity even when off-duty. DeSoto v. Hialeah Police Pension Fund Board of Trustees, 870 So.2d 844, 846 (Fl.Dist.Ct.App.2003) (Officer argued that crimes “could not be related to his duties as a police officer” because they had been committed while he was suspended, but the court held to the contrary that such crimes “clearly violated his duty as a public officer to safeguard the public faith in his office.”); Siwek v. Ret. Bd. of Policemen’s Annuity & Benefit Fund, 324 Ill.App.3d 820 , 258 Ill.Dec. 392 , 756 N.E.2d 374, 381 (2001) (Even off-duty purchase of cocaine “related to his service as a narcotics specialist.”).

We reversed the Board of Appeals (and necessarily the Circuit court) because it had failed to consider whether Brown’s unlawful behavior even when off-duty might not render his service as a police officer less than “honorable and faithful.” In sum, we hold that the Board interpreted section 5-1-201(o) too narrmvly by limiting its inquiry to Broivn’s actual performance of his duties, without considering his violation of the police manual and the unique position of ³⁰⁴ police officers in society. Accordingly, we vacate the circuit court’s judgment, and instruct that court to remand the case to the Board for further consideration. (Emphasis supplied). Aggrieved by the decision of this Court, Brown petitioned the Court of Appeals for a writ of certiorari.

The Court of Appeals denied cert. The Remand Because Brown now contends that the Board of Appeals, upon its reconsideration of the case, exceeded the scope of what it had been directed to do on remand, it behooves us to make some comment with respect to our remand. It expressly ordered: JUDGMENT VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE COUNTY WITH INSTRUCTIONS TO REMAND TO THE BALTIMORE COUNTY BOARD OF APPEALS FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. (Emphasis supplied).

That was, contrary to Brown’s characterization of it, a broad remand. It expressly directed that the proceedings on remand would be “not inconsistent with,” and would therefore necessarily consider, the full 22-page opinion of this Court. A fair reading of that opinion, moreover, could leave no conceivable doubt that its central thrust had been to state unequivocally the legal principle that a police officer’s off-duty criminal behavior, as surely as his on-duty criminal behavior, could ipso facto support a finding that his service as a police officer had not been “honorable and faithful” and that retirement benefits could accordingly be denied. We did not, let it be carefully noted, say that such retirement benefits would automatically be denied.

We said that, as a matter of law, they could be denied. In our opinion, we made it plain on several occasions that Brown’s behavior had been in clear violation of the law. We did not, however, state, as a matter of fact, that Brown’s ³⁰⁵ service was less than “honorable and faithful” for the obvious reason that we are not fact finders. We did, however, clearly state, as what is now the law of the case, that the evidence in this case would support such a finding of fact if the Board of Appeals, on remanded reconsideration, should actually find that as an ultimate fact.

Whether to make such a finding of fact was, of course, up to the fact finder, to wit, the Board of Appeals. We simply directed the Board of Appeals, as it embarked on its reconsideration, to take into account off-duty criminality as well as on-duty criminality. What this Court held was that Brown’s off-duty criminality COULD, as a matter of law, be enough to disqualify his application for retirement benefits. Whether in this particular case the off-duty criminality actually DID disqualify Brown’s application was something that had to be decided by the Board, as a matter of fact.

We repeat that we did not say that such a conclusion would necessarily or automatically follow. We most assuredly did not say that the facts in this case would compel such a conclusion. What we did say was that the facts in this case would, as a matter of law, PERMIT such a conclusion. It remained, however, for the Board of Appeals to weigh the gravity of Brown’s conduct, as a matter of fact, and then reach its own independent conclusion in that regard.

We set no restrictions, moreover, on how the Board of Appeals should conduct its reconsideration hearing. We directed the Board to consider an additional criterion for assessing possibly disqualifying behavior, to wit, off-duty violations of the criminal law. To the extent to which the Board itself, or the advocates before it, then deemed it necessary to call additional witnesses or to take additional evidence bearing on either 1) the circumstances of his off-duty behavior or 2) the relative significance or insignificance of such behavior, we set no procedural boundaries. The Board was free to proceed in whatever manner it deemed appropriate.

The Board of Appeals on Remand On remand, the Board of Appeals took up its reconsideration of Brown’s application at a hearing on June 5, 2007. At ³⁰⁶ the very outset of the hearing, counsel for Brown acknowledged that the conduct of the hearing was procedurally freewheeling, notwithstanding his current argument that it was rigidly controlled by our mandate. They [the Court of Special Appeals] don’t tell us what the proceedings should be. They leave it up to the Board.

And, of course, we are in another unique position in that none of the original members of the panel that decided this case are with us, so there will have to be a certain amount of starting over with this particular panel. And, again, that’s how I envision my presentation being, to supplement what has been presented previously, which all the members of the panel are going to read and consider. (Emphasis supplied). The Board of Appeals had before it not only the opinion of the Court of Special Appeals but the transcript of the October 21, -2004, hearing before the Board and the December 16, 2004, written decision of the Board.

In terms of taking additional testimony, it was Brown himself who requested the opportunity to present three witnesses with additional testimony. We believe that some additional testimony is appropriate to give the Board a full picture of this, and that in light of what has been presented previously by way of a full transcript that was generated to a full day’s hearing, that we are to make those additional presentations, listen in terms of argument and testimony, and then the Board will render its decision in light of both its original decision and in light of the additional materials and presentations that you have heard and that is the scope of the presentations, as I understand it. (Emphasis supplied). Brown called two witnesses who had been his co-workers at the Police Athletic League.

They testified that he always performed competently on the job. The third witness was Brown himself. On cross-examination, he acknowledged fa ³⁰⁷ miliarity with the Baltimore County Police Department Manual and the conduct it proscribed: Q. We also discussed at the last Board meeting the fact that your conduct was in violation of the police department’s administrative manual, is that correct? A. The question was asked, was that in the manual?

I said it was. With respect to his recreational use of cocaine and to his sharing of those drugs with his social friends on a number of occasions, Brown could not deny that that sharing could qualify as distribution. Q. Right. But if you purchased drugs and gave them to somebody else, that’s distributing them to somebody: A. I guess you could interpret it that way.

(Emphasis supplied). Following the hearing, both parties were given the opportunity to submit memoranda of law. The Board filed its 8-page opinion on August 23, 2007, announcing and explaining its decision to deny Brown’s request for a service retirement. The heart of the opinion was as follows: It was quite apparent that police officers are expected to conduct themselves with the utmost decorum and respect for their position as police officers in the community, both on and off-duty.

While Mr. Brown stated that he never reported for duty under the influence of drugs and that he was never disciplined for any actions as the result of his drug use, there is no question that he was under the influence of drugs when he was randomly tested by the Department according to its random drug testing procedures. In addition, Mr. Brown admitted that he purchased drugs on the street. This is a, violation of the law and also a violation of his duty to apprehend and, arrest drug traffickers or distributors. The fact that Mr. Brown purchased drugs and did not arrest the distributor or the person from ³⁰⁸ whom he purchased the drugs would be a violation of his duties as a police officer.

In addition, Mr. Brown used drugs in a recreational