Hird v. City of Salisbury

BYRNES, Judge. This appeal presents the question whether a written order of a police chief increasing a hearing board’s recommended disciplinary penalty against a law enforcement officer is final, for purposes of circuit court review, before the chief has met with the officer and allowed her to be heard on the record, as required by statute. We hold that such an order is not final. FACTS Police Officer Latasha Hird, appellant, joined the City of Salisbury Police Department in May, 1995.

Three months later, on August 24, 1995, another officer on the force filed a written complaint against Officer Hird, alleging that she had violated certain departmental rules by using foul language and a vulgar gesture during a conversation with two fellow officers ⁴⁹⁸ in the Wicomico County Circuit Courthouse, in front of onlookers. Colonel E. Guthrie investigated the complaint and recommended to Police Chief Coulbourn M. Dykes that Officer Hird be charged with three violations of Police Department ‘Written Directives.” Colonel Guthrie also recommended that Officer Hird be punished for the violations by the loss of two days leave. Officer Hird was furnished a written document entitled “Notification of Approved Disciplinary Action” and responded to it by declining to accept the disciplinary action and electing a departmental disciplinary hearing board, as provided under the Law Enforcement Officer’s Bill of Rights, Md.Code Ann. (1992 Repl.Vol., 1995 Supp.), Art. 27, §§ 727, et seq. (“LEOBR”).

A one-member hearing board convened on April 24, 1996 to hear the charges against Officer Hird. The hearing board took testimony from several witnesses, received documents into evidence and, after deliberating, sustained two of the three charges. After taking evidence in mitigation, the hearing board recommended that Officer Hird undergo counseling as punishment for one violation and that she lose one day of leave as punishment for the other violation. The hearing board issued a written report detailing its findings and recommendations.

The report was sent to Officer Hird and to Chief Dykes. Chief Dykes reviewed the entire record of the hearing board and its written report. On May 20, 1996, he composed and signed a letter to Officer Hird concerning the disciplinary action against her. The letter reads, in relevant part: You have been found guilty of two charges as a result of conduct displayed in the Circuit Court in August of 1995.

I find the conduct unprofessional, disturbing, and that it reflects neither the caliber, quality nor standards of the personnel of this department. I further believe that conduct of this nature undermines the efficiency and the mission of this department. The conduct in question is serious ⁴⁹⁹ and I believe the recommended discipline should be increased. Therefore, as Chief of Police for the Salisbury Police Department, I am increasing the penalty in this instance to the original recommendation of the loss of two day’s sick leave for the aforementioned reasons.

(Emphasis supplied). Chief Dykes did not send the May 20, 1996 letter to Officer Hird. Rather, on May 23,1996, he called Officer Hird into his office and personally advised her of his decision to increase her penalty by reading his May 20, 1996 letter aloud and giving her a copy of it. According to Janis B. Shores, who is Chief Dykes’s secretary and was in attendance at the May 23, 1996 meeting, Chief Dykes asked Officer Hird if she had anything to say for the record; she responded that she had no comment.

That meeting was the first that Officer Hird learned of Chief Dykes’s decision to increase her penalty from that recommended by the hearing board. On June 20, 1996, Officer Hird filed a “Petition for Judicial Review of the Decision of the Chief of Police,” pursuant to Md. Rule 7-201, in the Circuit Court for Wicomico County. The City of Salisbury (“City”), appellee, filed a “Preliminary Motion to Dismiss,” asserting that Officer Hird’s petition was untimely under Md. Rule 7-203. The circuit court held a hearing on the motion and granted it.

This appeal followed. Officer Hird presents for review the single question whether the circuit court erred in ruling that her petition for judicial review was not timely filed. DISCUSSION When reviewing the grant of a motion to dismiss, “an appellate court must determine whether the trial court was legally correct.” Hrehorovich v. Harbor Hospital, 93 Md.App. 772, 785 , 614 A.2d 1021 (1992), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993)(citing Bramble v. Thompson, 264 Md. 518, 520 , 287 A.2d 265 (1972)). Our task in this case is to ascertain ⁵⁰⁰ whether the circuit court was legally correct in finding that Officer Hird’s petition for judicial review was filed too late.

Section 731 of the LEOBR pertains, inter alia, to the issuance by the chief of police of a final order after a disciplinary hearing board has made its findings and decision about guilt, which are binding on the chief, and its recommendation about the imposition of a penalty, which is not binding on him. It provides, in pertinent part: (c) Review by chief, final order by chief — The written recommendations as to punishment are not binding upon the chief. Within 30 days of receipt of the hearing board’s recommendations, the chief shall review the findings, conclusions, and recommendations of the hearing board and then the chief shall issue a final order. The chiefs final order and decision is binding and- may be appealed in accordance with this subtitle.

Before the chief may increase the recommended penalty of the hearing board, the chief personally shall: (1) Review the entire record of the hearing board proceedings; (2) Meet with the law enforcement officer and permit the law enforcement officer to be heard on the record; (3) Disclose and provide to the officer in writing at least 10 days prior to the meeting any oral or written communication not included in the hearing board record on which the decision to consider increasing the penalty is based, in whole or in part; and (4) .State on the record the substantial evidence relied on to support the increase of the recommended penalty. LEOBR § 731. LEOBR § 732 establishes that an appeal from a decision rendered under LEOBR § 731 shall be taken to the circuit court for the appropriate county pursuant to former Md. Rule B2. On March 30, 1993, the Court of Appeals rescinded subtitle B of the Maryland Rules of Procedure, effective July 1, 1993, and substituted in its place Title 7 of the Maryland Rules, which governs judicial review of administrative agency ⁵⁰¹ decisions.

Md. Rule 7-203 (the successor to former Rule B4), entitled “Time For Filing Action,” provides: (a) Generally. — Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of: (1) the date of the order or action of which review is sought; (2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner; or (3) the date the petitioner received the notice of the agency’s order or action, if notice was required by law to be received by the petitioner. In the case sub judice, Officer Hird’s petition for judicial review was filed 31 days after Chief Dykes’s May 20, 1996 letter purporting to increase the penalty recommended by the hearing board. The trial court determined that the May 20, 1996 letter constituted the “order or action of which review [wa]s sought,” under Md. Rule 7-203(a)(1), and ruled that Officer Hird’s petition was untimely because it was filed more than 30 days after that date. The trial court also ruled that pertinent provisions of the LEOBR did not require that Officer Hird receive notice of Chief Dykes’s final order and, accordingly, subsection (a)(3) of Rule 7-203 was inapplicable to her case.

Officer Hird contends that the trial court erred in its legal interpretations of LEOBR § 731(c) and Md. Rule 7-203(a)(1) and (a)(3). She argues that, until May 23, 1996, when Chief Dykes met in person with her to advise that he was increasing the penalty recommended by the hearing board, there was no final action or order under LEOBR § 731(c) that could be reviewed by the circuit court. Her petition was timely, she maintains, because it was filed within 30 days of May 23,1996, the date of the order or action that she was seeking to have reviewed, in compliance with Md. Rule 7-203(a)(l). Officer Hird also argues that LEOBR § 731(c) implicitly required that she receive notice of the chiefs increase in the recom ⁵⁰² mended penalty, that she did not receive any such notice until May 23, 1996, and that her petition was timely filed within 30 days of then, in compliance with Md. Rule 7-203(a)(3).

The City counters that the May 20, 1996 order was final as of that day because Chief Dykes’s decision to increase Officer Hird’s penalty had been made and put in writing by then and that the action taken by Chief Dykes on May 23, 1996 was merely ministerial, to effectuate the already final action and order. The petition was thus untimely under Md. Rule 7-203(a)(1) as it was filed more than 30 days after the action that Officer Hird sought to have the lower court review. The City also argues that LEOBR § 731(c) does not provide that an officer receive notice of the chiefs action in increasing the penalty recommended by a hearing board and as such Md. Rule 7-203(a)(3) is inapplicable. Finally, the City argues in the alternative that if the action or order increasing Officer Hird’s punishment was not final until May 23,1996, as Officer Hird maintains, the petition for judicial review was timely on the issue of penalty but not on the issue of guilt.

LEOBR § 731 specifies two forms of disciplinary decisions that may be judicially reviewed: final orders by the chief, under LEOBR § 731(c), and certain orders or decisions of the hearing board, under LEOBR § 731(d). The latter subsection does not apply in this case. LEOBR § 731(c) provides that, within 30 days of his receipt of the hearing board’s recommendation, the chief must issue a “final order.” If after reviewing the findings, conclusions, and