Howard County Police Officers Ass'n v. Howard County

EYLER, Judge. On August 21, 1997, appellants, Howard County Police Officers Association, Inc. and police officers Glenn M. Weir and Jerry B. Schlossnagle, filed a complaint for declaratory judgment in the Circuit Court for Howard County. The suit was filed against appellees, Howard County, Maryland and James N. Robey, Chief of the Howard County Police Department, and sought a declaration that Howard County Police Department General Order 92-07, ADM-07 was unenforceable because it had not been promulgated in accordance with applicable law. General Order 92-07 was issued by Chief Robey on July 1, 1992.

It was entitled “Secondary Employment,” and provides in pertinent part as follows: VIII. SECONDARY EMPLOYMENT REQUESTS A. Officers wishing to engage in security related secondary employment, the service of subpoenas or other court-ordered civil documents, training or the application of work-related experience must secure written ³²¹ approval from the Chief of Police through the chain of command.... (Emphasis in original). Section III.D. of General Order 92-07 defines security related secondary employment as “any employment where the employee is hired for the express purpose of protecting the proprietary interests of the employer.” On June 24, 1996, Officers Weir and Schlossnagle were employed part-time selling tee-shirts at a concert at the Merriweather Post Pavilion in Columbia, Maryland.

While so employed, the officers seized tee-shirts from unauthorized vendors. The legality of that action is apparently not in dispute except as it relates to the issue before us. Subsequent to the seizure, the Howard County Police Department initiated disciplinary proceedings against Officers Weir and Schlossnagle, charging them with violation of General Order 92-07. The position of appellees is that the officers were engaged in “security related” secondary employment, thus requiring approval of the Chief of Police for that employment.

It is undisputed that such permission had not been obtained. The administrative hearing process was stayed pending a resolution of the declaratory judgment action. On May 29, 1998, the circuit court held that General Order 92-07 was valid. Discussion Appellants do not challenge the assertion that the officers were engaged in “security related secondary employment” but rely on (1) a provision in the Howard County Charter and (2) the Howard County Administrative Procedures Act for the proposition that General Order 92-07 is unenforceable.

The Howard County Charter, in § 302, delineates the authority of the County Executive (ironically, Chief Robey subsequently was elected County Executive of Howard County in 1998). Section 302(i) provides the following: Powers and duties. The Executive shall be responsible for the proper and efficient administration of such affairs of the ³²² County as are placed in his charge or under his jurisdiction and control under this Charter or by law. His express responsibilities, duties and powers shall include, but not be limited to, the following: (14) To prepare and issue, or cause to be prepared and issued, rules and regulations of the character which prior to the adoption of the Charter were prepared or issued by the County Commissioners, provided that before taking effect, all such rules and regulations, other than those concerned exclusively with the internal operating procedure of the executive branch of the County government, shall be approved by the Council[.] Appellants argue that secondary employment by police officers is not encompassed within the “internal operating procedure of the executive branch,” and thus, the County Executive would not have the authority to delegate to the Chief of Police the power to promulgate the general order at issue.

Such an order, according to appellants, would require the approval of the Howard County Council. Appellants point to Fraternal Order of Police Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155 , 680 A.2d 1052 (1996), as being similar to this case. In Mehrling , a Montgomery County police officer obtained secondary employment as a security guard at an apartment complex. As in the case sub judice, in Mehrling there was a departmental rule prohibiting such secondary employment without the permission of the Chief of Police, and the police officer did not obtain permission.

The Court of Appeals held that the regulation was neither properly promulgated nor adopted and, therefore, the regulation was unenforceable. Mehrling, 343 Md. at 180 , 680 A.2d 1052 . Appellants also rely on the Howard County Administrative Procedures Act, Howard County Code § 2.100 et seq. for the proposition that General Order 92-07 is invalid. The Administrative Procedures Act sets forth a process, which includes a ³²³ public