Hoyt v. Police Commissioner

Singley, J., delivered the opinion of the Court. These consolidated appeals, by 55 former members (the Officers) of the Baltimore City Police Department (the Department), are from an order of the Baltimore City Court which affirmed the action of Donald D. Pomerleau, the Police Commissioner of Baltimore City (the Commissioner), who had dismissed the Officers from the Department because of their participation in a strike against the Department from 11 July 1974 through 16 July 1974. The appeals were initially taken to the Court of Special Appeals. We granted the Officers’ petition for the writ of certiorari before the case was heard in that court.

Prior to October, 1973, members of the Department had been represented by two organizations, the Fraternal Order of Police and Local 1195 of the American Federation of ⁷⁶ State, County and Municipal Employees, AFL-CIO (the Union). In that month, the Commissioner agreed to conduct an election among those members of the Department holding the rank of police officer or police agent to determine whether they wished to be collectively represented and if so, to choose one of the two labor organizations to do so. It was agreed that the organization thus selected would negotiate with the Mayor and City Council of Baltimore City (the City) on matters of salaries and other benefits. General Order 9-73 of the Department, promulgated by the Commissioner on 10 October 1973, announced that an election was scheduled on 14 November 1973 for the selection of an employee organization and stated that the organization so selected would have exclusive collective bargaining rights for no less than two years.

The order concluded with the following proviso: “No employee organization or employee shall engage in, initiate, sponsor, support or direct a strike, secondary boycott, ‘blue flu epidemics’, work slow downs, work stoppages, or similar activities. “No employee organization or employee shall engage in, initiate, sponsor, support, directly or indirectly, the picketing of Police installations or any of the property of the City of Baltimore. “If the employee organization shall violate any of the provisions hereof the Police Commissioner will: (a) revoke the designation of an exclusive representative and said exclusive representative shall be ineligible to participate in elections or be certified as exclusive representative for a period of two years thereafter; and (b) subject to the approval of the Mayor, City of Baltimore, payroll deductions will not be made for such organization’s dues for a period of two years thereafter.” At the election, the Union was selected as the exclusive bargaining agent. Commencing in January, 1974, the Union ⁷⁷ initiated negotiations with the City, looking toward the formulation of a contract for the fiscal year beginning 1 July 1974. The negotiations were not successful, and the City’s final offer, presented on 30 June 1974, was almost unanimously rejected by the members of the Union. Negotiations continued but no agreement was reached.

Two meetings of the membership were held on 6 July. It was decided to form an 84 member Steering Committee to plan a series of “job actions” designed to stimulate negotations: a drastic increase in the issuance of traffic summonses, and the writing of detailed reports on found property, including pennies and abandoned bath tubs. The “job actions” apparently had the tacit approval of the Commissioner, who hoped to see a resumption of negotiations, and the Department cooperated with the Union by arranging for members of the Steering Committee to be relieved from duty in order that they might attend meetings of the Steering Committee. At the last of these meetings, held at 1:00 p.m. on 11 July, it was decided to call a strike.

The strike began in the Department’s Southwestern District at 8:00 p.m. when 39 officers on the 4:00 p.m. to midnight shift returned to the police station, turned in their equipment, and were followed by 83 members of the Tactical Section. 1 Officers walked off their jobs in almost every district, so that by 11:30 p.m. 162 men were out. On subsequent days, others refused to report for duty so that ultimately the total number participating in the strike was 901. This was 36% of the number of patrolmen in Baltimore City, Baltimore Sun, 13 July 1974, at A. 9 col. 1 (final edition). At about 11:15 p.m. on 11 July, Judge James Murphy, of the Circuit Court of Baltimore City, issued an injunction prohibiting the strike, and directing that striking officers return to work.

This was read at roll calls and to officers on picket lines, and after the strike had ended, the court fined ⁷⁸ the Union $25,000.00 and the Union’s Executive Director $10,000.00 for contempt. On 14 July, the Commissioner unilaterally terminated the employment of some 91 probationary officers who were on strike. Most of these were later reinstated. While the strike was in progress, counsel for the Union met on two occasions with the Commissioner, members of his staff and his counsel, to ascertain what disciplinary measures might be imposed upon the striking officers.

The Commissioner indicated that he proposed to impose disciplinary measures in varying degrees, depending upon the type of activity in which the officers had engaged and the degree of leadership exercised by each of them. The strike ended on 16 July. On the following day, the Commissioner notified the Executive Director of the Union, Thomas A. Rapanotti, that the recognition of the Union as exclusive bargaining agent had been revoked and that check-off of dues would cease. On the same day, the Commissioner spoke to Deputy Commissioner Clarence J. Glauser, who was Deputy Commissioner for Administration in the Department, and, according to Glauser, instructed him “to head up and establish a special unit to look into the activities of the various members of the Department as relate [d] to their conduct during the strike; and to collect . .. [information] and make recommendations concerning their participation in the strike activity with a view towards discipline action in each case.” Thereafter, this unit opened files for each of the officers who took part in the strike, in which was placed such information as related to the extent of the participation of each officer.

Deputy Commissioner Glauser testified that, generally speaking, the files were divided into several categories: first, those officers who were officials of the Union, members of the Executive Board, and of the Steering Committee or shop stewards; second, those officers assigned to the Southwestern District and to the Tactical Division who left their duty posts commencing at 8:00 p.m. on the evening of 11 July; third, those officers who left their posts in other ⁷⁹ districts; fourth, those officers who had made public statements or had coerced others to strike; and finally, those officers who had been engaged in threatening or intimidating activity on the picket line or were intoxicated or resorted to vulgar or violent conduct. 2 The preparation of the files occupied a period of approximately three months. As the files were completed, Deputy Commissioner Glauser determined which officers ⁸⁰ should be charged and which officers were guilty of conduct which would justify only a severe reprimand. The files of the officers to be charged were delivered to the office of the Attorney General, who by law is the legal representative of the Commissioner, Code of Public Local Laws of Baltimore City (1969), § 16-15, where charges and specifications were prepared and the cases assigned for hearing before Disciplinary Hearing Boards (the Boards or the Board), consisting of three senior officers appointed in accordance with General Order 70-04 of the Department, as amended 1 July 1974, and Chapter 722 of the Laws of 1974, effective 1 July 1974, the Law Enforcement Officers’ Bill of Rights, now Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § § 727-734.

The first of the disciplinary actions was instituted on 23 July. Thereafter, similar actions were instituted against what ultimately became a group of 170 officers whose removal from the force was sought. 3 All of the officers thus charged were suspended from duty and hearings were scheduled before the Boards until December, which heard the evidence in each case and made formal recommendations to the Commissioner as regards the disciplinary action to be taken. 4 The Boards followed what was essentially a two-step procedure. In the first phase, the Boards heard evidence relating to the charges and specifications against each officer and made findings of innocence or guilt. If an officer was found guilty on one or more charges, he was accorded an opportunity to present evidence in mitigation or ⁸¹ extenuation, following which the Boards made a recommendation to the Commissioner as to the punishment to be imposed.

In most of the hearings before the Boards, the facts were stipulated. Evidence which was heard in mitigation or extenuation was, in 15 cases, extensively summarized; in 7 cases, minimally summarized; in 21 cases, only the names of the Officer’s witnesses were listed, and in 11 cases, no reference was made to the favorable testimony. However, in each case counsel for the Officers was accorded an opportunity to summarize evidence in mitigation or extenuation in a letter to the Commissioner. In the cases of the 55 appellants here involved, the Commissioner accepted the Trial Boards’ recommendation that they be dismissed from the force. 5 The Officers appealed to the Baltimore City Court, which heard additional testimony, and affirmed the dismissals.

This appeal followed. At this juncture, the facts found by that court should be set forth: “During the period between 2000 hours, July 11, 1974, and 2400 hours, July 12, 1974, there were 276 burglaries of commercial establishments, 52 lootings and 80 acts of malicious destruction. Additionally, there were 233 serious crimes committed between 8:00 p.m., July 11, 1974, and 4:00 p.m., July 12, 1974, an increase in crime of some 258% over the same period the day before. Still further, during this period of time, the Communications Division received 4,266 calls for service over emergency telephone lines, an average of 533 calls per hour.

An additional 953 calls could not get in as all the lines were busy. Of the 4,266 calls received, 1,364 requested or required a police response. ⁸² “On the day the strike began, an Order was issued in the Circuit Court of Baltimore City enjoining the Union and its members from striking against the Department. The Union failed to comply with the Court Order, and the strike lasted until July 16, 1974, involving a total of 901 Police Officers. “Following the strike, on July 17, 1974, the Commissioner imposed sanctions on the Union by revoking its [exclusive] bargaining authority and withdrawing its right of payroll deduction of Union dues. Also on July 17, 1974, in the Circuit Court of Baltimore City, the Union was fined $25,000.00, and its Executive Director, Thomas A. Rapanotti, was fined $10,000.00, both for contempt by reason of their non-compliance with the Order of July 11, 1974.” Based on our review of the record, we are satisfied that these findings of fact were supported by substantial evidence.

The appellants’ argument that the order of the Baltimore City Court affirming their dismissal should be reversed or modified is divided into essentially four parts, which will be considered in order. A fifth contention relates to the dismissal of one of the appellants, Officer Wayne Harris. (1) Appellants, both permanent and probationary employees, were entitled to procedural due process before their employment with the Department could be terminated. The thrust of this argument is that the companion cases, Perry v. Sindermarm, 408 U. S. 593, 599 (1972), and Board of Regents v. Roth, 408 U. S. 564 (1972) make it clear that a public employee whose employment is terminated has a property interest in a job which he holds under contract, an interest of which he may not be deprived unless procedural due process, notice and a hearing guaranteed by the ⁸³ Fourteenth Amendment, is observed. 6 See also Huntley v. North Carolina State Board of Education, 493 F. 2d 1016 (4th Cir. 1974); McNeill v. Butz, 480 F. 2d 314 (4th Cir. 1973).

We do not question the validity of this contention for purposes of this case. (2) Among the specific due process guarantees to which the appellants were entitled was that of an impartial decision maker. (3) Appellants were deprived of an impartial decision maker in these cases because: (i) There was an impermissible commingling of the investigative, prosecutorial and judicial functions on the part of the Police Commissioner. (ii) The Police Commissioner, because of his personal stake and involvement in the strike and its aftermath, was not capable of judging these cases fairly.

Assuming that the Officers were entitled to due process, the issue is whether they were afforded it here. Relying on Goldberg v. Kelly, 397 U. S. 254, 267-71 (1970), the Officers say that each of them has a right to: 1. Notice which is timely and adequate for the preparation of the Officer’s defense; 2. Confront and cross examine adverse witnesses and to present his own case; 3.

Be represented by counsel; 4. An impartial decision maker; ⁸⁴ 5. Be apprised of reasons for the decision and the evidence relied upon. The underlying issue here is whether the disciplinary procedure was so structured as to guarantee the Officers a fair and impartial trier of fact and a decision maker without bias.

The lower court was satisfied, as are we, that the power to discipline is vested solely in the Commissioner. Code of Public Local Laws of Baltimore City (1969) § 16-7 (7) and (8) respectively provide that the Police Commissioner is authorized: “(7) To appoint, promote, reduce in rank, grade or position, reassign, reclassify, retire and discharge all members of the Department in the manner prescribed by law. “(8) To regulate attendance, conduct, training, discipline and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and of its members.” This grant of authority must be considered, however, in conjunction with § 730 (b) of the Law-Enforcement Officers’ Bill of Rights, which provides: “Conduct of hearing. — The hearing shall be conducted by the investigating committee of the law-enforcement agency by which the law-enforcement officer is employed. Both the law-enforcement agency and the law-enforcement officer shall be given ample opportunity to present evidence and argument with respect to the issues involved. Both may be represented by counsel.” Here, the Commissioner was faced with two requirements: that of performing the duty of the ultimate decision maker imposed upon him by law, and of performing it in a fair and impartial manner.

As the court below found, the Commissioner chose not to exercise the investigative ⁸⁵ function which was performed by the unit headed by Deputy Commissioner Glauser or the prosecutorial function which was performed by the Attorney General, but to act only in an adjudicative role. The Commissioner isolated himself by directing that the Deputy Commissioner initiate the investigation, convene the Boards and supervise the preparation of charges. The Commissioner’s only function was that of accepting, modifying or rejecting the punishment recommended. This was certainly not an impermissible blending of the investigative, prosecutorial and judicial functions, as the Officers contend.

See Withrow v. Larkin, 421 U. S. 35 (1975). There is no evidence that the Commissioner played any part whatever in the conduct of the investigations or prosecutions nor do we find any evidence that the Commissioner’s personal involvement in the strike rendered him incapable of judging the cases fairly. 7 The facts of this case closely parallel those of Hortonville Joint School District No. 1. v. Hortonville Education Ass’n, 66 Wis. 2d 469 , 225 N.W.2d 658 (1975), 426 U. S. 482 , 49 L.Ed.2d 1 (1976). In that case, the Hortonville teachers who had worked under a collective bargaining agreement during the school year 1972-1973, went on strike in 1974 when no agreement was reached, a strike which was prohibited by Wisconsin law. When the teachers refused to return, disciplinary hearings were scheduled before the Board of the School District.

The teachers objected on the ground that this was not a hearing before an impartial fact finder guaranteed by the Fourteenth Amendment. No hearings were held, and the teachers were dismissed. The Supreme Court of Wisconsin relied on Morrissey v. Brewer, 408 U. S. 471, 485-86 (1972), which had held that minimal due process requirements mandate a preliminary determination of whether there is reasonable ground for the revocation of parole by an uninvolved person and upheld the ⁸⁶ teachers’ contention. See Taylor v. Hayes, 418 U. S. 488, 501-03 (1974) (lawyer charged with contempt of court should not be tried by the judge before whom the contempt was committed); Gibson v. Berryhill, 411 U. S. 564, 578-79 (1973) (Alabama Board of Optometry could not conduct a disciplinary hearing in a case where Board members had a financial stake in the outcome); Ward v. Village of Monroeville, 409 U. S. 57 (1972) (mayor of village cannot sit as judge trying traffic offenses when fines provide substantial proportion of village revenues).

See also Pickering v. Board of Education, 391 U. S. 563 (1968). In Hortonville, supra, the Supreme Court of the United States granted certiorari and reversed the Supreme Court of Wisconsin. The essence of the Supreme Court’s holding was that in the absence of a showing that the Board had such a personal or financial stake in the outcome which would induce actual personal bias or animosity, the