Leopold v. State

WRIGHT, J. Appellant, John R. Leopold, appeals his conviction in the Circuit Court for Anne Arundel County for two counts of misconduct in office. On March 2, 2012, Leopold was charged by indictment with four counts of misconduct in office (Counts 1-4) and fraudulent misappropriation by a fiduciary (Count 5). A bench trial began on January 18, 2013, and continued until January 29, 2013, at which time the circuit court found Leopold guilty of Counts 1 and 3. He was acquitted of the remaining charges. 1 On March 14, 2013, Leopold was sentenced to two years’ imprisonment with all but 60 days suspended on Count 1.

An identical and concurrent sentence was imposed as to Count 3. In addition, Leopold was placed on 5 years of supervised probation, ordered to pay a fine of $100,000.00, and ordered to complete 400 hours of community service by December 31, 2013. As a special condition of probation, the circuit court prohibited Leopold from “be[ing] a candidate for any local, state, or federal elected office.” On March 15, 2013, Leopold filed this appeal. Questions Presented Leopold asks: 1.

Whether the charge of Misconduct in Office, as applied to the facts of this case, denied Leopold due process of law as being unconstitutionally vague and overbroad? ⁵⁹¹ 2. Whether the sentence imposed was illegal? Facts Leopold was twice elected to the office of the County Executive of Anne Arundel County. He was first sworn into office on December 4, 2006, and was reelected on November 2, 2010.

Leopold succeeded Janet Owens who, during her time as County Executive, formed the Executive Protection Detail (“EPD”) for the purpose of “providing] security and protection to the County Executive while she was conducting County business.” The EPD consisted of sworn officers of the Anne Arundel County Police Department, known as Executive Protection Officers (“EPO”), each of whom was requested to have at least ten years of police experience prior to being selected for the unit. According to Patrick Shanahan, the Chief of Police at the time of the EPD’s formation, the EPD was formed “rather quickly, ... by the seat of our pants, and we used as a basis for how that unit operated how other departments did theirs and followed State Law.” Shanahan testified that, although a standard operating procedure (“SOP”) was “later” created for the EPD, one did not exist at the time of the EPD’s formation. According to Lieutenant Katherine Goodwin, an EPO who served during Owens’s tenure, no “written protocol governing the do’s and don’ts for the [EPD]” existed at the time of Leopold’s trial. Corporal Joseph Pazulski, an EPO who served under both Owens and Leopold, testified that his initial duties in the EPD were: to pick Ms. Owens up at her residence, take her to her office which was at the Arundel Center in Annapolis.

I would take her from event to event throughout the day and then I would also drop her off at the end of our tour of duty at her home. And our responsibilities were to be a driver as well as her security. ⁵⁹² Cpl. Pazulski also testified to running personal errands for Owens, such as getting a pack of cigarettes or buying her lunch. 2 Cpl. Pazulski explained that he did so: [d]uring our workday if Ms. Owens was in the office and had a block of hours where she was having meetings at the office, we were stationed right there on the fourth floor, on the same wing as Ms. Owens’s office and if I would go to lunch if I knew that she was going to be tied up during that day I would let her know that I was going to lunch, leaving the building and occasionally she asked me to bring her a sandwich back or grab her cigarettes on the way back.

Cpl. Pazulski stated that he “didn’t do any campaigning” for Owens, but admitted that he had some “involvement with campaign signs.” When asked to elaborate, he answered: If someone requested a campaign sign, there were campaign signs in our County vehicle that we drove. And if someone would request it I would just come out and hit the remote control on the trunk, the trunk would open, and the interested person would take the signs that they wanted and I would close the trunk. Cpl.

Pazulski stated that he did not place Owens’s campaign signs in the trunk nor did he know who did. Cpl. Pazulski recalled that when signs were distributed, “sometimes [Owens] would be [present], sometimes she would not.” Cpl. Pazulski testified that he sometimes took Owens to her campaign events, “if [he] was working as her security.” He stated that he never volunteered to assist in Owens’s campaign and never touted her candidacy while he was present at her events.

Cpl. Pazulski added that, during the Owens administration, EPOs kept records of mileage used for activities that were unrelated to Owens’s role as County Executive, including mileage spent on campaign work. The EPOs, however, did not record the amount of time that the EPD spent in protect ⁵⁹³ ing Owens. The EPD continued to protect Leopold when he succeeded Owens as County Executive.

On January 15, 2010, Leopold contacted Dr. Roy Bands, Jr., an orthopedic surgeon, “complaining of lower back pain and discomfort into his legs and his feet primarily while standing and walking.” After evaluating Leopold and discussing the treatment options, Dr. Bands gave Leopold a Cortisone injection on January 28, 2010. Thereafter, Leopold became more symptomatic and was writhing in pain during his next visit to Dr. Bands’s office. On February 23, 2010, Dr. Bands performed a six-hour spinal surgery on Leopold, which included a laminectomy 3 and stabilization of the bones. 4 After the surgery, Leopold “wasn’t urinating on his own” and therefore, Dr. Bands reinserted a Foley catheter that remained with Leopold following his discharge from the hospital. The catheter drained in a tube to a collection bag strapped to Leopold’s ankle.

Upon Leopold’s release from the hospital, Dr. Bands stated that Leopold would not be able to “bend over to put his socks on, ... change a dressing, ... empty his own foley bag ..., [or] drive a car.” Despite the surgery, Leopold continued to have low back pain. On July 2, 2010, Leopold consulted Dr. Timothy Burke, a neurological surgeon, who “came up with a surgical plan on how to deal with th[e] problem.” On July 16, 2010, Leopold underwent another operation, this time to revise the fusion and to repair the fluid cyst that resulted from “a tear of the covering of the spinal canal.” Cpl. Pazulski testified that after the surgeries, Leopold’s level of independence changed. Two other EPOs, Corporal Howard Brown and Corporal Mark Walker, stated that they often drained urine from Leopold’s collection bag into an ⁵⁹⁴ empty coffee can for disposal.

Cpl. Brown recalled that Leopold directed him to purchase the coffee container, which Cpl. Brown cleaned out and stored in the center console of the County Executive’s vehicle. Cpl.

Brown stated that he changed the catheter bag because he “was told to do it” and “didn’t think [he] had much recourse.” Cpl. Walker, who testified to draining Leopold’s urine at least 40 times, stated that he did not consider draining the catheter a part of his duties as an EPO but continued to do so because “Mr. Leopold told me to.” At no time did Cpl. Walker tell Leopold that he did not want to drain the collection bag. Cpl.

Brown and Cpl. Walker reported their assignments to their supervisors on a regular basis. At no time did those supervisors instruct the EPOs not to undertake or participate in any of the activities assigned by Leopold. At trial, Cpl.

Brown and Cpl. Walker admitted that they did not believe their actions—in conjunction with Leopold’s urine collection bag—to be criminal. Patricia Medlin, an assistant to Leopold, was, at the time of trial, 63 years old and a 16-year government employee of Anne Arundel County. Her entire career with the County was, in some capacity, within the County Executive’s Office.

In 2006, Leopold asked Medlin to become his scheduler. Medlin, who was asked to decide then and there, gave up her position as a “merit employee” to become an “at will employee.” She believed that, by taking the position being offered by Leopold, she would serve at the pleasure of her employer, would have no job protection, and would have no job at the end of Leopold’s administration. Medlin recalled that following Leopold’s first surgery, he called her into his office and told her that he had a catheter bag that he would not be able to empty and that he would “require” her assistance. When Leopold asked if she had a problem with it, Medlin said no because she “was afraid” to say otherwise.

When asked to elaborate, Medlin explained: Because it was my experience that, oh how do I say this, that you don’t tell him no because then he thinks your [sic], ⁵⁹⁵ he would consider you unloyal [sic] and I mean people lost their jobs, I’ve seen it. And I need my job. So I—I just didn’t say no because I was scared of losing my job. Thereafter, she drained the collection bag about two or three times a day for approximately nine to ten months.

According to Medlin, whenever Leopold stood in the doorway of his office and said, “Patty, I need you now,” she knew that she needed to help empty the collection bag. Medlin would go to the bathroom, put gloves on, obtain the coffee can from under the sink, get down on her hands and knees, empty the urine out of the catheter bag into the can, empty the can into the toilet, and rinse out the can. Medlin continued to perform the task until she walked into Leopold’s office one day and found him with his “foot bent and propped way up on [a heating register] and was bent over tying his shoe.” At that point, Medlin “realized that he could have been emptying his own catheter.” She did not say anything to Leopold but instead returned to her desk. Medlin recounted that minutes later, Leopold came out of his office, walked over to a window near Medlin’s desk, and “puts his foot up on the heat register, standing beside [Medlin], and then was just looking out the window.” At trial, evidence was presented that on April 22, 2010—two months after Leopold’s first surgery—a physician from Anne Arundel Urology gave Leopold a catheter plug to replace the urine collection bag.

The medical report stated: [Leopold] was given a “tru-flo” catheter plug and traditional catheter plug and instructions regarding use were reviewed. [Leopold] was advised that he may use catheter plug during the day with the understanding that he must drain his bladder [every] 2 hours. [Leopold was] advised that he must connect catheter to drainage bag at night. [Leopold] verbalize[d] understanding. Leopold, however, continued to ask Medlin for assistance several months after he received the catheter plug. As Leopold was recuperating from his surgeries, he enlisted the help of EPOs for his reelection campaign. Cpl.

Brown ⁵⁹⁶ and Cpl. Walker were instructed to pick up campaign contributions from donors and to deposit them into the campaign bank account. Cpl. Brown also testified to creating dossiers on persons whom Leopold perceived to be political opponents, including Joanna Conti, his opponent in 2010.

According to Cpl. Brown, those files included results from researching “judicial case search, their residence, anything on Google[,] ... MVA ... or ... NCIC.” 5 On one occasion, both Cpl.

Brown and Cpl. Walker were asked to unload approximately 1,000 campaign signs from the vehicle of Erik Robey, the assistant to Leopold’s Chief Administrative Officer, and to place them in the basement of Leopold’s home. In the days that followed, Leopold directed the EPOs to distribute those signs to people who came to Leopold’s house and requested them. In addition, Cpl.

Walker was instructed to place signs on people’s properties around the county. Thereafter, the EPOs checked to make sure that the signs remained in place on a daily basis. For the most part, Leopold was not present when the EPOs performed these activities. Following the election, Leopold “required” that the EPOs collect the signs they placed around the county and return them to his home.

Cpl. Brown testified that when he first began to put signs up, he told Leopold that he “didn’t think it was a good idea,” but Leopold directed him to continue. Cpl. Brown complied because he was “fearful what the retribution would be if I told him I wasn’t going to do something.” According to Cpl.

Brown, “[y]ou don’t tell Mr. Leopold no.” On cross-examination, Cpl. Brown admitted that on one occasion, he refused Leopold’s order to remove a Conti campaign sign and “nothing happened” to him as a consequence. He added, however, that Leopold “wasn’t real happy about it.” Robey, Leopold’s top aide during the campaign, did not think that what the EPOs were doing was “illegal.” Medlin, ⁵⁹⁷ on the other hand, told Leopold around August 2010 that “he shouldn’t have the officers putting up signs because that was not legal.” Sergeant Timothy Phelan, a part-time EPO during Leopold’s administration who testified at trial, recalled an incident where Leopold declined Sgt. Phelan’s offer to “fix a [campaign] sign out on the road” and stated that “he [Leopold] had to do it because [Sgt.

Phelan] wasn’t supposed to be doing this.” In a ten-page indictment on March 2, 2012, Leopold was charged with four counts of misconduct in office and one count of fraudulent misappropriation by a fiduciary. Counts I and III, of which he would later be found guilty, stated in pertinent part: COUNT ONE—MISCONDUCT IN OFFICE Misfeasance—Misuse of Executive Protection Officers for Political and Campaign Activities 65. Between on or about June 25, 2010 and continuing to on or about November 16, 2010, at Anne Arundel County, Maryland, JOHN R. LEOPOLD, did, corruptly and in violation and perversion of his duties as the duly sworn County Executive of Anne Arundel County, to uphold, enforce and obey the laws of Anne Arundel County and the State of Maryland, commit misfeasance in office by knowingly, willfully and intentionally requiring, under the color of office, that Anne Arundel County employees, specifically, executive protection detail officers assigned to protect him, perform political and campaign activities and tasks while on duty and being paid by county monies, in violation of the common law and against the peace, government and dignity of the State. Common Law COUNT THREE—MISCONDUCT IN OFFICE ⁵⁹⁸ Misfeasance—Misuse of County Employees for Personal Purposes 70.

Between on or about February 17, 2010 and continuing to on or about May 15, 2011, at Anne Arundel County, Maryland, JOHN R. LEOPOLD, did, corruptly and in violation and perversion of his duties as the duly sworn County Executive of Anne Arundel County, to uphold, enforce and obey the laws of Anne Arundel County and the State of Maryland, commit misfeasance in office by knowingly, willfully and intentionally requiring, under the color of office and for his personal purposes, [that] Anne Arundel County employees, perform tasks and activities for his personal purposes and not for County purposes during the course of their regular work day and while being paid by county monies, in violation of the common law and against the peace, government and dignity of the State. Common Law A bench trial took place from January 18-29, 2013. At the conclusion, as to the above two counts, the circuit court, in finding Leopold guilty, ruled in pertinent part: In Maryland, misconduct in office is a Common Law misdemeanor. It is corrupt behavior by a public officer in the exercise of the duties of his office or while acting under the color—the color of his office.

The Maryland cases have recognized that the corrupt behavior can be characterized in various ways such as the doing of an act which is wrongful in and of itself, malfeasance, the doing of an act otherwise lawful in a wrongful manner, misfeasance, or the omitting to doing an act which is required by the duties of the office, nonfeasance. Within each of the misconduct counts the State acknowledges that it must show that the Defendant acted corruptly and in violation and perversion of his duties as County ⁵⁹⁹ Executive. And it also acknowledges that it must show that the Defendant committed each count knowingly, willfully, and intentionally. What corruptly means in this context has not been well defined.

Some guidance is supplied by the commentary to the Maryland Pattern Jury Instructions in support of its instruction on misconduct in office.... This Court ... concludes that the Common Law, Maryland crime of misconduct in office is not unconstitutionally vague as a violation of due process. Misconduct in office is defined as corrupt behavior by a public officer in the exercise of the duties of his office or while acting under color of his office. An act or conduct unrelated to the public official’s duty, even if it is a violation of the Criminal Law will not amount to misconduct in office.

The first count is Count 1 of misconduct in office, which concerns the misuse of Executive Protection officers allegedly for political and campaign activities.... The first area is unloading of campaign signs.... The second area concerns sign placement and retrieval.... The third area is collection of campaign checks....

The fourth area is the creation of what is called dossiers.... The Defendant’s efforts to involve his Executive Protection Officers in political and campaign activities as described ⁶⁰⁰ above in the discussion of each of these incidents—his efforts were extensive and pervasive to the extent that at times the officers were working primarily on Leopold’s campaign activities while on duty. Defendant was not only aware of this work, he directed that it be done, giving detailed and specific commands to the officers on such matters as addresses to place lawn signs and areas to be patrolled to ensure that signs continue to be in place. Defendant was his own campaign manager.

And Defendant was alerted on several occasions by his staff and by the officers themselves, that having the officers conduct such activities, while on duty, was questionable, not wise or potentially illegal. At one point around August 2010, Ms. Medlin told him that he should not have officers putting up the signs quote, “Because it is not legal,” end quote. According to Ms. Medlin he did not dispute this assertion or respond to it at all. Mr. Robey also told the Defendant he did not think having the officers put in signs was appropriate and suggested that the campaign hire college student [sic] to do it instead of having the officers do it.

The Defendant rejected this suggestion. After such warnings the Defendant not only ignored the warning from those close to him but continued the wrongful activity and accelerated it. The record indicates that at least on one occasion the Defendant acknowledged that he understood that having an on duty officer place signs along the highway was not allowed. Despite this awareness the Defendant proceeded to demand more campaign activity of the officers on behalf of his candidacy as the election neared.

It should have come to no surprise to Defendant that employing on duty sworn police officers to work on his election campaign was wrongful and illegal. Section 13-303 of Article XXIV of the Maryland Code provides that an employee of a local entity may not be required to provide ⁶⁰¹ any political service. Section 13-105 further provides that an employee of a local entity, which Anne Arundel County is a local entity, may not engage in political activity while on the job during working hours. Defendant, as an individual with decades of Governmental and election experience, was beyond a doubt aware that requiring [ ] on duty police officers to perform substantial services for his reelection campaign was wrongful and illegal.

By wrongfully taking substantial advantage of free public employee help for his campaign, an asset unavailable to his opponent, Defendant was placing his thumb on the scales of our political system to heavily tilt it in his favor. These actions robbed Anne Arundel County citizens of the fair political electoral process they were entitled to receive. Defendant’s actions were done systematically during the election season of 2010. Defendant committed these acts knowingly, willfully and intentionally and under the color of his office as County Executive.

He did so corruptly and is guilty of this offense. As to Count 3, Count 3 charges the misuse of County employees for personal purposes.... In theory!,] one could abstractly divide the actions of a County Executive into three categories, governmental, political and personal.... ... There is no evidence that the officers were to make any distinction about whether an event was governmental, political or personal.

There was virtually no guidance given in the SOP about activities that were not to be performed by the officers. Similarly, the personal staff of the County Executive, such as Ms. Medlin, who were not merit system employees, were aid[e]s to the County Executive and the record does not demonstrate any particular constraints that apply to them except that it appears that the restrictions on political ⁶⁰² activity during the work day, contained in Article XXIV of the Maryland Code, would apply. There are five major categories described in the Indictment relating to this Count.... The final area[ 6 ] under this Count is,—the urinary catheter collection bag duties---- * * * Defendant’s demands on the officers and Ms. Medlin to care for his catheter bag are simply outrageous, egregious and wildly beyond any authority he possessed or could reasonably have thought he had obtained by virtue of his office.

The task is one that with anyone—anyone would have extreme difficulty asking someone else, even with a spouse or close relative, to do. The Defendant expected the police officers and Ms. Medlin to perform this task for him without comment, or complaint, demonstrates an overbearing arrogance and sense of entitlement and is unworthy of someone who is supposed to be a public servant. Defendant’s conduct in regards to Ms. Medlin is particularly egregious. She had told the Defendant when she took the job in 2006 that she was very concerned about doing so since she was moving from a merit system job to one that was, quote, At-Will, end quote.

He was aware of her age and the potential difficulties that she might have if she lost her job including the effect on her retirement. Given this knowledge and the power—and the power imbalance between the Defendant and Ms. Medlin, his conduct appears predatory and cruel. ⁶⁰³ This continuing abusive and outrageous conduct exceeded any right that any employer, either private or public, would have to demand of employees who were hired to perform office or security work. The fact that Ms. Medlin was labeled quote, a confidential assistant, end quote, did not provide license to Defendant to misuse Ms. Medlin as he did. In this Court’s view the State has shown by