Gigeous v. Eastern Correctional Institution

HARRELL, Judge. Murray D. Gigeous, Petitioner, challenges a judgment of the Circuit Court for Somerset County. The Circuit Court affirmed the administrative termination by the Maryland Department of Public Safety and Correctional Services (DPSCS), Division of Correction (DOC), Respondent, of Petitioner’s employment at its Eastern Correctional Institution. Underlying Petitioner’s termination was his arrest on 28 February 1992, while off duty, and his being charged in Anne Arundel County with the criminal offense of possession of a controlled dangerous substance.

Respondent suspended Petitioner without pay, pending charges for removal, and ultimately dismissed Petitioner from his job on 15 July 1993. Petitioner’s dismissal was reviewed by three different Administrative Law Judges (ALJ) of the Maryland Office of Administrative Hearings (OAH) (the latter two as the result of judicial remands) and thrice reviewed by the Circuit Court for Somerset County. Petitioner contended then, as now, that his termination was based improperly on the records of his arrest and prosecution that had been expunged according to Maryland Code (1996, Repl.Vol., 1999 Supp.), Art. 27, § 737. 1 Ultimately, on 10 August 1999, the Circuit Court affirmed Petitioner’s termination as appropriate because it was founded on police officers’ testimony, based on their personal recollections and not on the expunged records. The Court of Special Appeals affirmed.

Gigeous v. Eastern Correctional Institution, 132 Md.App. 487 , 752 A.2d 1238 (2000). We granted ⁴⁸⁵ Petitioner’s petition for writ of certiorari to consider the following questions: 2 1. Did the Court of Special Appeals properly determine that a police officer who maintained and reviewed an investigative file prior to testifying in an administrative trial about the facts underlying an expunged criminal matter testified from his memory and not from the file? 2. Did the Court of Special Appeals incorrectly affirm the removal of Sergeant Gigeous by depriving him of meaningful challenge to the prior decision of an Administrative Law Judge who took a job with Gigeous’s employer, Department of Public Safety and Correctional Services?

I. Petitioner was employed as a Correctional Officer III (Sergeant) by Respondent at its Eastern Shore Correctional Institution. On 28 February 1992, Petitioner was arrested by Anne Arundel County Police, off of DPSCS property and during his non-duty hours, and charged with possession of a controlled dangerous substance-marijuana. On 2 March 1992, Petitioner notified his supervisors of the arrest. Petitioner was placed on administrative suspension, without pay, from his job. 3 Respondent filed charges for termination, on 9 March 1992, against Petitioner. ⁴⁸⁶ On 8 October ,1992, the criminal charge pending against Petitioner was nol prossed by the Anne Arundel County State’s Attorney Office in the District Court of Maryland, sitting in Anne Arundel County.

Petitioner filed, on 13 October 1992, with the District Court a petition for expungement of records, pursuant to Maryland Code (1996, Repl.Vol., 1999 Supp.), Art. 27, § 737, supra note 1. On 22 December 1992, the District Court ordered that all records of Petitioner’s arrest, including police records, be expunged. 4 ⁴⁸⁷ Petitioner appealed the charges of removal and, on 9 February 1993, a hearing was held before the OAH. Petitioner moved to have the charges for removal dismissed on that grounds that the State’s Attorney’s Office had entered a nolle prosequi in the criminal case. Based on the subsequent expungement of the records regarding the criminal charge, Petitioner also moved to exclude any evidence from police, court, or agency documentation, and testimony relating to his arrest or prosecution.

On 26 March 1993, ALJ Charles Fowler denied Petitioner’s motion to dismiss, reasoning that, while a “judge of any criminal court may order an expungement, 5 and those responsive to his orders are required to obey[,] ... any underlying act for which there may be any proof [is] susceptible to being proven in support of a case in a court of another jurisdiction.” On 27 April 1993, at the hearing on the merits before ALJ Fowler, Petitioner lodged a continuing objection to the introduction of the expunged documentary evidence as well as the testimony of the two Anne Arundel County police officers who participated in his arrest. ⁴⁸⁸ Testimony from both arresting officers and the disputed documents concerning the arrest were admitted into evidence before ALJ Fowler. In particular, Officer James Teare, Sr., testified that, on 28 February 1992, he and fellow officer, Steve Jenkins, were assigned to uniformed patrol in Glen Burnie. At that time, a catering facility in the area was holding a concert. Officer Teare testified that as “the band was either just starting or” just completing a break, he noticed Petitioner and a companion leave the hall and get into a car in the parking lot.

The officer stated that he observed Petitioner and his friend apparently drinking in the car, “in violation of the Anne Arundel County code,” and, as a result, the two officers approached the car and asked Petitioner to get out. According to Officer Teare’s testimony, when Petitioner got out of the car, Officer Teare smelled a strong odor of burnt marijuana on Petitioner and in the car. Officer Teare continued that Petitioner informed him that he was a correctional officer and “explained that if he was arrested, this would ruin his career.” Petitioner then told him that he had smoked all of the marijuana that he had in his possession; however, Petitioner’s jacket was found to contain “a plastic baggy containing a greenish brown vegetable matter,” that Officer Teare suspected was marijuana, and some rolling papers. Petitioner was arrested.

Officer Teare conducted a field test on the matter in the plastic bag, which tested positive for marijuana. During his testimony before ALJ Fowler, Officer Teare did not rely outwardly on any documents. During cross-examination, Petitioner’s attorney sought to show that Officer Teare’s testimony was not credible; in the course of cross-examination, the arrest report and other documents were entered into evidence by Petitioner’s attorney. Officer Jenkins also testified at the hearing that he smelled the odor of burnt marijuana while dealing with Petitioner’s companion, but that he “had no dealings with [Petitioner] at all.” On 13 May 1993, ALJ Fowler issued a proposed decision affirming Petitioner’s dismissal. 6 Petitioner filed exceptions to ⁴⁸⁹ the proposed decision with the State Secretary of Personnel arguing, in part, that ALJ Fowler should have dismissed the case because the expunged records and testimony of the police officers should not have been received in view of the order of expungement.

Following oral argument on the exceptions, the Secretary of Personnel, by a designee, filed an 15 July 1993 Order adopting as final findings and conclusions all of the recommended findings of fact and conclusions of law of ALJ Fowler. 7 Petitioner sought judicial review in the Circuit Court for Somerset County. On 30 November 1994, the Circuit Court determined “that the testimony of the officers, to the extent that the testimony was from personal knowledge, was correctly admitted; however the [ALJ] erred when he admitted the expunged records.” The Circuit Court further concluded that the failure to exclude the expunged records was not harmless. ⁴⁹⁰ Accordingly, the Order of the Secretary adopting the ALJ’s recommendation was deemed legally erroneous. The Circuit Court remanded the case for further consideration. On 7 March 1995, a de novo hearing was held before a different ALJ, Dale McCloud.

At this hearing, Officer Teare provided the same direct testimony as at the 27 April 1993 hearing, discussed supra pp. 488-89. On cross-examination, Officer Teare maintained that he was testifying strictly from his recollection, but that he had reviewed his “reports” prior to testifying. Neither party offered documentary submissions into evidence. On 21 June 1995, ALJ McCloud filed a proposed decision stating that, in following the Circuit Court’s directions, supra, he determined that as long as the live testimony of the two officers was not based on expunged records, the testimony was admissible and subject “to an appropriate assignment of credibility.” He further stated that [w]hile Officer Teare acknowledged during crossexamination that his memory was refreshed after reviewing his “reports,” the matter was not further pursued, and the nature of the “reports” was not identified.

Since [Petitioner] raises the claim, he must bear the burden to show that the Officer relied upon expunged reports. He failed to do so. The testimony of both officers will, therefore, be accepted. ALJ McCloud then recommended that Petitioner be terminated, and on 5 September 1995, the Secretary of Personnel’s designee filed an Order of the Secretary adopting ALJ McCloud’s proposed decision.

Petitioner again sought judicial review in the Circuit Court, asserting that ALJ McCloud erred when he permitted testimonial evidence regarding the arrest and criminal charge for which the District Court had issued an order of expungement. On 5 December 1996, the Circuit Court penultimately remanded the case “for the purposes of determining whether the testimony of the police officers was based upon records which were subject to expungement” and to decipher “the extent to which the testimony introduced at the hearing was first-hand knowledge, how much information officers obtained from rec ⁴⁹¹ ords, and whether the records used were subject to expungement.” The Circuit Court concluded: Should the agency determine that officers testified from memory or used records not subject to expungement, then the decision of the Secretary should be affirmed. If the agency determines that the testimony was based on records which should have been expunged, then the decision of the Secretary of Personnel should be reversed without further order of this court. Upon this second remand, the case was set for another hearing before ALJ McCloud on 24 June 1997.

On 12 June 1997, Petitioner requested that ALJ McCloud recuse himself, apparently on the ground that Petitioner had initiated a civil or criminal action against ALJ McCloud. 8 ALJ McCloud denied this request. One day before the scheduled hearing, Respondent was notified, for the first time, that Officers Teare and Jenkins would not appear at the hearing without subpoenas, although neither previously had required a subpoena to appear at the earlier administrative hearings. As such, the two officers did not appear at the 24 April 1997 hearing, at which Respondent presented a Motion for Continuance. Petitioner opposed a continuance and moved to dismiss Respondent’s termination action.

On 20 October 1997, after the parties briefed their respective positions, ALJ McCloud denied Petitioner’s motion to dismiss the proceedings, reasoning that it would be impossible to resolve the points raised in the Circuit Court’s remand order in either party’s favor without the officers’ participation. The ALJ opined: Given the nature of the Court’s instructions, [Petitioner] would appear to have as much an interest in the appearance ⁴⁹² and testimony of the officers as the Agency. In the absence of their appearance and in the absence of relevant instructions from the Court, I would have no alternative but to defer to that record developed before me pursuant to the March 7,1995 hearing. My opinion regarding that record is obviously well known and unchanged at this point.

He directed prospectively that the limited remand hearing be held on a date when the officers would be present by subpoena. That hearing was held on 10 June 1998 before yet another ALJ, Leah J. Seaton. 9 The parties agreed that the purpose of the hearing was not a de novo re-adjudication, but was solely to determine the extent to which the officers’ March 1995 testimony may have depended on expunged records for its vitality. Additionally, both parties agreed that only Officer Teare’s testimony was necessary, as Officer Jenkins had not offered any additional relevant information. Officer Teare testified that he recalled his previous testimony regarding the circumstances of Petitioner’s arrest and that he had a general recollection of Petitioner’s arrest both at the time of his prior testimony “and I do today.” He then stated that, in preparation of his testimony in 1995, he had reviewed ⁴⁹³ his investigative file, which he explained was the police officer’s separate file, not the official and formal file kept by the Anne Arundel County Police Department at its Central Files location.

Officer Teare further explained that the investigative file that he reviewed prior to the March 1995 hearing would have contained a copy of the incident report, a copy of the drug analysis, and copies of “the paperwork for the advice of rights for [Petitioner].” Office Teare stated that he did not remember exactly which documents he reviewed in the investigative file and that he did not have the file with him; however, to the extent that he reviewed the file at all, it was only for the purpose of refreshing his recollection as to the date of the arrest, location of the arrest, and the color, year and type or model of the vehicle. When asked whether he gleaned any other information from the documents in his investigative file, Officer Teare testified that he looked “specifically for that type of information. It’s something that I could not pull from recollection. The rest of my testimony was from my personal recollection.” On 9 September 1998, ALJ Seaton issued a decision affirming the 21 June 1995 decision of ALJ McCloud. 10 Based on Officer Teare’s most recent testimony that his 7 March 1995 testimony was based on his personal recollection of the events, except to the extent that he examined his investigative file to refresh his recollection as to the date and location of the arrest and the make and model of the vehicle that Petitioner occupied, ALJ Seaton concluded that the officers had not testified from expunged records.

ALJ Seaton grounded her decision primarily on an assessment of Officer Teare’s credibility; ALJ Seaton “believed” that Officer Teare had testified from his recollection and found the Officer’s testimony to be “completely credible.” ALJ Seaton elaborated that she perceived that “it [was] entirely credible that ... Officer Teare checked his file to refresh his recollection only as to the date [and location] of the arrest and ⁴⁹⁴ the make and mode of the vehicle” and that Officer Teare only “used his ‘file’ to refresh his recollection about facts that can only be described as collateral to the issue at hand.” ALJ Seaton concluded: “In short, all relevant and material testimony from the officers regarding the arrest of [Petitioner] on February 28, 1998 was based on their own independent recollections. Thus, it was properly admitted and considered by ALJ McCloud.” Petitioner returned to the Circuit Court. 11 The Circuit Court upheld Petitioner’s removal. On appeal, the Court of Special Appeals affirmed Petitioner’s termination.

Gigeous, 132 Md.App. at 510 , 752 A.2d at 1250 . The intermediate appellate court determined that there was no error “in the ALJ’s conclusion that the testimony of the officers, concerning the basic facts of [Petitioner’s] arrest from the hearing conducted on March 7, 1995, originated from their independent recollection of the incident, and not any information in any expunged records of investigative files.” Gigeous, 132 Md.App. at 505 , 752 A.2d at 1247 . The court elaborated that it is clear from “ALJ Seaton’s decision of September 9, 1998, that any testimony that did include information contained in the officers’ investigative file was not dispositive in this case and, therefore, did not form the basis of the ALJ’s decision.” Id. The court held that while it was error for any expunged records or records from an investigative file to have been introduced in the original hearing, “the error was harmless, because the agency’s ultimate decision was not based on any of that evidence” and, thus, the agency did not err in upholding Petitioner’s dismissal.

Id. The Court of Special Appeals also rejected Petitioner’s claim that he should have been permitted to view ALJ McCloud’s personnel file. Gigeous, 132 Md.App. at 509 , 752 A.2d at 1250 . The intermediate appellate court reasoned that, as ALJ Seaton pointed out, supra note 9, “in the event ⁴⁹⁵ McCloud had recused himself, [Petitioner’s] case would have merely been assigned to a new ALJ,” which occurred “when McCloud left and ALJ Seaton was assigned the case.” Id.

Once ALJ Seaton conducted a complete and independent review of all of the issues of the case, as she indicated that she did, the question of when ALJ McCloud began considering employment with Respondent became moot. Gigeous, 132 Md.App. at 509-10 , 752 A.2d at 1250 . We determine that ALJ Seaton did not abuse her discretion when she concluded that the officers testified from their independent recollection and that such conclusion was supported by substantial evidence on the record. We further conclude that any testimony resulting from examination of the officers’ investigative files was collateral.

Lastly, we resolve that the Court of Special Appeals was correct in determining that the issue regarding Petitioner’s viewing of ALJ McCloud’s personnel file was moot.

II

We review an administrative agency’s decision under the same statutory standards as the Circuit Court. 12 Therefore, we reevaluate the decision of the agency, not the decision ⁴⁹⁶ of the lower court. Public Serv. Comm’n v. Baltimore Gas & Elec. Co., 273 Md. 357, 362 , 329 A.2d 691, 694-95 (1974).

Moreover, in United Parcel Service, Inc. v. People’s Counsel for Baltimore County, 336 Md. 569 , 650 A.2d 226 (1994), we stated generally that “[jjudicial review of administrative agency action is narrow. The court’s task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.” 336 Md. at 576-77 , 650 A.2d at 230 (internal quotation marks omitted) (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 513 , 390 A.2d 1119, 1124 (1978)); see also Liberty Nursing Center, Inc. v. Department of Health and Mental Hygiene, 330 Md. 433, 442 , 624 A.2d 941, 945 (1993) (“Judicial review of agency fact finding is narrow in scope and requires the exercise of a restrained and disciplined judicial judgment.” (citing Supervisor v. Asbury Methodist Home, 313 Md. 614, 626 , 547 A.2d 190, 195 (1988))). We expounded upon this doctrine in Board of Physician v. Banks, 354 Md. 59 , 729 A.2d 376 (1999): Despite some unfortunate language that has crept into a few of our opinions, a “court’s task in review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.” ... Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency.

Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.... Furthermore, the expertise of the agency in its own field should be respected. Banks, 354 Md. at 68-69 , 729 A.2d at 381 (internal quotation marks omitted) (citations omitted) (footnotes omitted). We, however, “may always determine whether the administrative agency made an error of law.

Therefore, ordinarily the court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.” Baltimore Lutheran High ⁴⁹⁷ Sch., v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985). Regarding the substantial evidence test, we explained in Baltimore Lutheran High School, supra: That is to say, a reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test to the final decisions of an administrative agency, but it must not itself make independent findings of fact or substitute its judgment for that of the agency. Baltimore Lutheran High Sch., 302 Md. at 662 , 490 A.2d at 708 . Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978) (internal quotation marks omitted) (quoting Snowden v. Mayor and County Council of Baltimore, 224 Md. 443, 448 , 168 A.2d 390 (1961)).

In Baltimore Lutheran High Sch., supra, we further explained: The scope of review is limited to whether a reasoning mind could have reached the factual conclusion the agency reached. In applying the substantial evidence test, the reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken. The reviewing court also must review the agency’s decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity. Furthermore, not only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.

Baltimore Lutheran High Sch., 302 Md. at 662-63 , 490 A.2d at 708 (citing Bulluck, 283 Md. at 512-13 , 390 A.2d 1119 ); see Motor Vehicle Administration v. Karwacki, 340 Md. 271, 283-84 , 666 A.2d 511, 516-17 (1995); Liberty Nursing, 330 Md. at 442-43 , 624 A.2d at 945-46 ; Bulluck, 283 Md. at 512-13 , 390 A.2d at 1124 ; ⁴⁹⁸ III. A. Expunged Records Petitioner’s flagship argument is that Respondent “never should have been allowed to offer the testimony of the police officers who reviewed the expunged material” because the language of the expungement statute, Md.Code (1996, Repl. Vol., 1999 Supp.), Art. 27, § 737, supra note 1, “clearly prohibits disclosure and review of the expunged material ... and the general policy concerns underlying the statute is to prevent situations such as this from arising.” Petitioner’s Br. at 20-21. Petitioner further contends that “[n]o citizen who receives the extraordinary benefit of expungement should be subjected to the use of the expunged information to deprive him of gainful employment.” Id. at 21.

We granted certiorari in this case principally to consider important matters regarding the intent and scope of the “investigatory files” exception to the definition of “police records” provided for in the expungement statute 13 and the ramifications flowing from the expungement of the criminal case records in this case upon the related administrative action of Petitioner’s dismissal from State employment. As presented in the petition for writ of certiorari, it appeared that the present case was an appropriate vehicle for this Court to explore this relatively uncharted territory. As occasionally happens, however, 14 we discovered, after briefing and oral argument, that the vehicle lacked a full tank of gas. Upon closer examination, the record of the present case provided a compelling and fundamental reason not to embark on our intended journey.

Thus, we shall not address here these important questions concerning the expungement statute. Concomitantly, we shall neither bless nor curse the positions taken in the Court of Special Appeals’s opinion directed to ⁴⁹⁹ interpretation or application of the statute. Gigeous, 132 Md.App. at 496-502 , 752 A.2d at 1243-46 (discussing 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)). Although the admissibility of the officers’ testimony is a question of law, as the Court of Special Appeals noted, “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 [deferential] standard” of substantial evidence.

Gigeous, 132 Md.App. at 495-96 , 752 A.2d at 1242-43 . ALJ Seaton believed Officer Teare’s testimony that he did not rely on, or refresh his recollection, as to any material fact from any police record that arguably fell within the scope of those records covered by the expungement statute or the District Court order in this case. ALJ Seaton’s “judgment call” in this regard was quintessentially one involving the assessment of witness credibility. As the Court of Special Appeals concluded: [T]he circuit court correctly directed the ALJ to determine, on the remand of [Petitioner’s] case, if the testimony offered by the police officers was based on information maintained in the investigative file or came from the police officers’ independent recollection of the incident.

The agency’s decision concerning the officers’ testimony is a question of fact and we must apply the clearly erroneous and substantial evidence tests. Gigeous, 132 Md.App. at 502 , 752 A.2d at 1246 . It is this latter part — the question of fact regarding the agency’s decision concerning the well-spring of the officers’ testimony— upon which our decision turns. To the extent the officers testified from something other than personal memory, it was as to inconsequential and collateral matters.

Therefore, Petitioner’s argument regarding the province of the expungement statute and the effect of the expungement order in Petitioner’s criminal case, on this dismissal action, is not material to our decision on this record. ⁵⁰⁰ B. Basis of Testimony Petitioner asserts that Officer Teare’s testimony was based on the expunged records and not on his memory of the events. According to Petitioner, Officer Teare “had a long and close association with the expunged documents in this case”; the officer, on numerous occasions, came into contact with the expunged documents 15 creating what Petitioner refers to as a “pyramiding effect,” which “shaped” Officer Teare’s testimony. This argument is unavailing. When the Circuit Court remanded the case for the second time on 5 December 1996, as noted supra pp. 490-91, the court instructed: [T]he Court remands this matter to the administrative agency for the purposes of determining whether the testimony of the police officers was based upon records which were subject to expungement as defined by. the statute.

The agency should determine the extent to which the testimony introduced at the hearing was first-hand knowledge, how much information officers obtained from records, and whether the records used were subject to expungement. Should the agency determine that officers testified from memory or used records not subject to expungement, then the decision of the Secretary should be affirmed. If the agency determines that the testimony was based on records which should have been expunged then the decision of the Secretary of Personnel should be reversed without further order of this court. At the 10 June 1998 administrative hearing, ALJ Seaton clearly delineated the purpose of the hearing.

She noted her understanding that the Circuit Court remanded the case for ⁵⁰¹ the sole purpose of determining whether the officers testified from records that were subject to expungement. In this regard, she explained: Today’s hearing is not a new de novo hearing, it is to determine whether the testimony introduced at the hearing before [ALJ] McCloud was first-hand knowledge, how the officers obtained from the records, and whether the records used were subject to expungement. If I determine that the officers testified from memory or used records not subject to expungement, then I should affirm the decision of the Secretary. If I determine otherwise, then I should reverse the decision of said case.

So the purpose of this hearing is for [the officers] to testify about what evidence — what records, if any, they used to refresh their recollection. Whether they were expunged records, or whether those were records that should not have been expunged. Both parties agreed that only Officer Teare’s testimony was necessary on this score. In her written decision, ALJ Seaton concluded from that testimony that the officers’ testimony during the administrative hearing conducted before ALJ McCloud on 7 March 1995 was based on the officers’ independent recollections and not in any meaningful way on the expunged records.

She found as fact that “[a]t the hearing held before ALJ Dale McCloud on March 7, 1995, the testimony of the police officers regarding the [Petitioner’s] possession of a controlled, dangerous substance was from memory, and was not based on the review of expunged records.” (Emphasis added). ALJ Seaton also determined as a matter of fact that “[w]hen testifying on March 7, 1995, Officer Teare relied on information contained in his own ‘file’ regarding the arrest to refresh his recollection of the date of the arrest and the make and model of the vehicle, neither of which was central to the decision made by ALJ McCloud.” (Emphasis added). ALJ Seaton explained: ⁵⁰² [Officer Teare] stated that his testimony on March 7, 1995 was based on his own recollection of events, except that he had looked at his ‘file’ to refresh his recollection as to the date of the arrest and the make and model of the vehicle. Based on that testimony, I conclude that the officers did not testify from expunged records.

First and foremost, I believe Officer Teare when he states that he testified from his recollection at the March 7, 1995 hearing. Contrary to the arguments advanced by counsel for [Petitioner], I found Officer Teare’s testimony completely credible. He was forthright and direct in his demeanor. On February 28, 1992, when Officer Teare arrested the Employee, he was not on regular assignment, but was specially assigned.

Thus, it was an unusual assignment, made all the more