Gigeous v. Eastern Correctional Institution

DAVIS, Judge. In February 1992, appellant Murray D. Gigeous was employed by appellee Maryland Department of Public Safety and Correctional Services (DPSCS), Division of Correction (DOC), as a correctional officer assigned to the Eastern Correctional Institution. On the evening of February 28, 1992, appellant was arrested and charged in Anne Arundel County with possession of a controlled dangerous substance while off duty. On March 2, 1992, appellee suspended appellant without pay, pending charges for removal, which were filed on March 9, 1992.

Subsequently, on October 8, 1992, the charges pending against appellant for his arrest in February were nol prossed by the Anne Arundel County State’s Attorney. Appellant filed for and received an order of expungement for his arrest and prosecution, pursuant to Md.Code (1996 Repl.Vol., 1999 Supp.), Art. 27, § 737, from the District Court for Anne Arundel County. Meanwhile, on February 9, 1993, he appealed the charges for removal filed against him by appellee. An administrative hearing was held, at which time appellant moved to have the charges dismissed based on the nol prose-qui received from Anne Arundel County, and additionally ⁴⁹² moved to exclude any evidence from police, court or agency documentation, and testimony relating to appellant’s arrest and prosecution, because they were expunged.

The hearing was continued and both parties were to submit memoranda on the use of expunged records. The administrative law judge (ALJ) originally assigned to the case became incapacitated and ALJ Fowler was assigned. On March 26, 1998, appellant’s motion to dismiss was denied and appellant lodged a continuing objection as to the introduction of documentary evidence and testimony of the two arresting officers concerning appellant’s arrest, which appellee indicated it would introduce. A hearing was held on April 27, 1993, at which time both arresting officers from Anne Arundel County testified and records concerning the arrest were admitted into evidence.

The ALJ issued a proposed opinion affirming appellant’s dismissal, which was appealed to the Secretary of Personnel (Secretary), who, in turn, affirmed the decision of the ALJ. Appellant then filed a timely appeal to the Circuit Court for Somerset County. The court remanded the case, finding that, to the extent the officers’ testimony was based on expunged records, it was inadmissible (Long, J.). On March 7, 1995, a de novo administrative hearing was held (ALJ McCloud) where the officers again testified, and the ALJ upheld appellant’s dismissal.

The Secretary again upheld the termination; appellant filed another appeal with the circuit court. On December 5, 1996, the circuit court remanded the case for a second time in order to determine whether the officers’ testimony was based on inadmissible expunged records. Appellant’s dismissal was again upheld on the second remand (ALJ Seaton). An appeal was filed with the circuit court. 1 Appellant’s termination was upheld on that appeal.

Appellant now presents the following questions, which we rephrase: ⁴⁹³ I. Did the ALJ err in denying appellant the opportunity to present testimony from additional witnesses?

II

Did the ALJ err in denying appellant the opportunity to review ALJ McCloud’s personnel file for purposes of revealing a conflict of interest? FACTUAL BACKGROUND Appellant was employed as a Correctional Officer III (Sergeant) with the DPSCS at the Eastern Shore Correctional Institution. On February 28, 1992, when appellant was off duty, he was arrested by Anne Arundel County Police for possession of marijuana — a controlled dangerous substance. On March 2, 1992, appellant notified his supervisors of the arrest and, consequently, appellant was placed on suspension without pay.

The DOC, a division of DPSCS, filed charges against appellant to discharge him. Meanwhile, the Anne Arundel County State’s Attorney entered a nolle prosequi for the possession charges. On December 22, 1992, pursuant to appellant’s application to the District Court for Anne Arundel County, the court ordered the expungement of all records from the Anne Arundel County Police and the District Court of Maryland pertaining to the incident of February 28, 1992. Thereafter, and following a denial to dismiss the charges based on the nolle prosequi, an administrative hearing concerning the charges filed by appellee proceeded, at which time both arresting officers from Anne Arundel County and documents concerning the arrest were admitted into evidence over appellant’s objection that the records were expunged.

Appellant was discharged and an appeal was filed in the circuit court. The court found that the expunged records were inadmissible and the case was remanded for a determination by the ALJ as to what extent the use of inadmissible expunged records were relied upon to make the decision to terminate appellant. Another hearing was held and the police officers again testified, but no documents involving the arrest were admitted. The ALJ once again issued a proposed opinion to dismiss appellant, which appellee upheld.

A second appeal was filed in the circuit court and, again, the case was ⁴⁹⁴ remanded for a determination as to whether the officers’ testimony was based on expunged records. The third decision of the ALJ upheld the dismissal of appellant and, on the third appeal to the circuit court, the dismissal was affirmed. Appellant then filed this timely appeal. Additional facts will be set forth as they become relevant to our discussion.

DISCUSSION Scope of Review We review an administrative agency’s decision under the same standard as the circuit court. Our primary goal is to determine whether the agency’s decision is “ ‘in accordance with the law or whether it is arbitrary, illegal, and capricious.’ ” Curry v. Department of Public Safety and Correctional Servs., 102 Md.App. 620, 626-27 , 651 A.2d 390 (1994), cert. granted, 338 Md. 252 , 657 A.2d 1182 (1995), cert. dismissed, 340 Md. 175 , 665 A.2d 1038 (1995) (quoting Moseman v. County Council of Prince George’s County, 99 Md.App. 258, 262 , 636 A.2d 499 (1994)). The agency’s fact-finding and application of the law to the facts will be upheld, as long as it is supported by substantial evidence. Id. at 627, 651 A.2d 390 .

Substantial evidence is defined as “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion....’” Anderson v. Department of Public Safety and Correctional Servs., 330 Md. 187, 213 , 623 A.2d 198 (1993) (quoting Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119 (1978)). The proper approach for determining whether there is substantial evidence is if a reasoning mind could reasonably have come to the factual conclusion that the agency reached. Id. When deciding issues of law, however, our review is expansive, and we may substitute our judgment for that of the agency if there are erroneous conclusions of law.

Curry, 102 Md.App. at 627 , 651 A.2d 390 . I Appellant’s primary issue, although notably absent from his questions presented to us, but argued in his brief, is the ⁴⁹⁵ propriety of the agency to consider expunged material in making its decision, and to what extent a police officer’s investigatory file continues to contain material that has been expunged from police and court records. Despite appellant’s failure to frame the question in a manner that places this issue squarely before us, his argument raises the issue, albeit obliquely. We shall, therefore, address this question which has not been squarely decided in Maryland.

At the first administrative hearing, laboratory results were admitted that indicated the substance recovered from the vehicle in which appellant was observed at the time of the arrest was marijuana. Additionally, the two Anne Arundel County Police Officers, who testified at the hearing, referred to the arrest report and other documentation in their file throughout their testimony. After appealing the decision to terminate appellant to the circuit court, the case was remanded to the agency with the finding that the reliance on expunged records was inadmissible. For reasons articulated, infra, we agree with the circuit court’s finding.

During the second administrative hearing, no documents pertaining to the arrest were admitted, but the officers once again testified. On a second appeal to the circuit court, the case was remanded again for the agency to determine to what extent the officers’ testimony was based on expunged material and, therefore inadmissible because it would be an improper basis for the agency’s decision. Appellant’s position is that the officers, although relying on their investigative file, were not permitted to disclose that information during the administrative hearing and, therefore, their testimony concerning the arrest was inadmissible. We first observe that the question concerning admissibility is a question of law and, consequently, we are not required to defer to the agency’s decision; however, the determination by the agency that the officers’ testimony was not based on inadmissible evidence, i.e., expunged records, is a matter of the agency’s fact-finding process, which is subject, on appellate review, to the standard of the existence, vel non, of ⁴⁹⁶ substantial evidence and to the clearly erroneous standard.

We will discuss each seriatum. A Expunged Records There is no dispute that appellant had the record of his arrest in February 1992 properly and officially expunged. Maryland Code (1996 Repl.Vol.) art. 27, § 737(a) and (d), which governs expungement of records, provides: (а) A person charged with the commission of a crime, including a violation of the Transportation Article for which a term of imprisonment may be imposed, may file a petition setting forth the relevant facts and requesting expungement of the police records, court records, and other records maintained by the State of Maryland and its subdivisions, pertaining to the charge if: (1) The person is acquitted; (2) The charge is otherwise dismissed or quashed; (3) Except if charged with a violation of § 21-902 of the Transportation Article, a judgment of probation before judgment is entered; (4) A nolle prosequi is entered; (5) The proceeding is placed on the stet docket; (б) The case is compromised pursuant to § 766 of this article; (7) The person is convicted of only one criminal act, which is not a crime of violence, and is subsequently granted a full and unconditional pardon by the Governor; or (8) The charge was transferred to juvenile court jurisdiction under § 594A of this article. (d)(1) Except as provided in paragraph (2) of this subsection, a petition for expungement based on the following dispositions may not be filed earlier than 3 years after the date of the disposition: ⁴⁹⁷ (1) An acquittal; (ii) A nolle prosequi; or (iii) A dismissal or quashing of a charge.

(2) A petition for expungement based on the dispositions described in paragraph (1) of this subsection may be filed earlier than 3 years after the date of the disposition if the person files with the petition a written general waiver and release, in proper legal form, of all claims the person may have against any person for tortious conduct arising from the charge. The statute provides further that a copy of the petition for expungement shall be served on the State’s Attorney, who may file an objection to the petition. If no objection is filed, the court must enter the order “requiring the expungement of police records and court records pertaining to the charge.” Art. 27, § 737(i). The statute defines expungement as: “Expungement,” with respect to court records or police records, means the effective removal of these records from public inspection: (1) By obliteration; (2) By removal to a separate secure area to which the public and others having no legitimate reason for being there are denied access; or (3) If effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or the part of them providing the access.

Art. 27, § 735(c). Appellant claims that a crucial question in this case is whether Officer Teare, who specifically referred to his “investigative file” during his testimony, is permitted to maintain such a file, and if his disclosure of the contents of the file in the context of an administrative hearing is a violation of the expungement statute. It is beyond cavil that officers are permitted to maintain investigative files. Article 27, § 735(e) explicitly defines police records: ⁴⁹⁸ (e)(1) “Police records” means all official records maintained by a law enforcement agency, a booking facility, or the Central Repository pertaining to the arrest and detention of or further proceeding against an individual for: (1) a criminal charge; (ii) a suspected violation of a criminal law; or (iii) A violation of the Transportation Article for which a term of imprisonment may be imposed.

(2) “Police records” does not include: (i) Investigatory files; (ii) Police work-product records used solely for police investigation purposes; or (iii) Records pertaining to nonincarcerable violations of the vehicle laws of the State or of any other traffic law, ordinance, or regulation. (Emphasis added.) Because the general assembly expressly excluded such files from expungement, we glean an intent that police are permitted to maintain investigative files. It was proper, therefore, for Officer Teare to keep such a file. The threshold issue presented is to what extent that investigative file is subject to disclosure under the expungement statute.

We addressed this very issue in Mora v. State, 123 Md.App. 699 , 720 A.2d 934 (1998), aff'd on other grounds, 355 Md. 639 , 735 A.2d 1122 (1999), and held that the exclusions contained in the statute mean that police cannot maintain or utilize expunged records for purposes other than law enforcement, such as to interfere with or reduce the prospect that an individual who was the subject of such records might gain future employment, educational opportunities, or other advancement in society. Id. at 717 , 720 A.2d 934 . We affirmed the circuit court’s admission of the evidence because, under the facts of that case, the records concerned an ongoing criminal investigation. In reviewing our decision in Mora , however, the Court of Appeals, while affirming that the evidence contained in the ⁴⁹⁹ police investigative files was admissible, pronounced our holding as dicta, explaining that the record in that case was not sufficient to determine the scope of the expungement because the record did not contain the expungement order.

Mora v. State, 355 Md. 639, 647-48 , 735 A.2d 1122 (1999). The Court stated: It is not at all clear from this record whether, or to what extent, any of the police officers who testified recounted information obtained solely from expunged records. The only suspect records produced or referred to in court came from the warrant documents maintained by the clerk of the circuit court. It is incumbent upon the appellant claiming error to produce a sufficient factual record for the appellate court to determine whether error was committed, and he has not done that in this case.

The Court of Special Appeals never should have addressed the expungement issue, and we shall regard its pronouncements on that issue as mere dicta, having no precedential value. Id. at 649-50 , 735 A.2d 1122 . We do not regard the Court’s comments as a disapproval of the language or reasoning we used in Mora, but rather a finding that our reasoning could not properly be applied to the facts of that case, based on the record before us. Thus, the overall reasoning we applied in Mora was sound.

Additionally, we note that the Court of Appeals determined that the record in Mora was insufficient because the record did not include the expungement order and, as a result, it was impossible to tell which records from which agencies were ordered to be expunged. Id. at 647, 735 A.2d 1122 . In the case sub judice, the order from the district court is included in the record and names the custodians of records for the District Court of Maryland and the Anne Arundel County Police to expunge the records relating to appellant’s arrest. Consequently, we are able to determine from the order what records were ordered expunged and what agencies were covered by the order. ⁵⁰⁰ Our determination as to what extent the limitation of expunged records applies to police investigatory files requires that we examine the meaning and purpose of the expungement statute and its limitations.

In doing so, we are confined to the plain and ordinary meaning of the language of the statute, as long as it is not ambiguous. Curry, 102 Md.App. at 628 , 651 A.2d 390 . We observed in Mora that the legislature appears to have promulgated the expungement statutes in response to Doe v. Wheaton Police Dept., 273 Md. 262 , 329 A.2d 35 (1974). There is no legislative history, to this statute, enacted in 1975, that sheds light on this particular issue.

Mora, 123 Md.App. at 710 , 720 A.2d 934 . In Doe , the defendant had been charged with committing an unnatural and perverted sexual act; the charge was subsequently nol prossed. He proceeded to petition the court for an order of expungement for all records relating to the arrest. Appellees demurred, asserting that destruction of such records was contrary to public policy and that, absent some statutory authority, the court was without the power to grant such relief.

Doe, 273 Md. at 264 , 329 A.2d 35 . The trial court sustained the demurrer, finding that the courts of equity were without authority to issue the relief sought. The Court of Appeals disagreed, holding that a court of equity possessed jurisdiction because it involved a constitutional question of the right to privacy. Id. at 273 , 329 A.2d 35 .

The Court recognized that no general statutory remedy for expungement of criminal records existed at that time. Id. at 275 , 329 A.2d 35 . Although Doe recognized that a constitutional right to privacy exists that could permit one to have his or her criminal record expunged, the Court explained that this is an area lacking any statutory guidance. During the 1975 general assembly, Article 27, §§ 735-41, governing the expungement of criminal records, was enacted. 1975 Md. Laws, Chap. 260.

As stated, supra, we turn first to the words of the statute for guidance. The general assembly specifically excluded certain items from expungement: ⁵⁰¹ (2) “Police records” does not include: (i) Investigatory files; Art. 27, § 735(e). It is clear from the language of this exclusion that the legislature did not intend to grant a citizen the ability to have his or her criminal record expunged,