Maryland State Department of Personnel v. Sealing

DAVIDSON, Judge. This case involves an action for judicial review of a decision of the Secretary of the Maryland State Department of Personnel (Secretary) to remove a correctional officer at the Maryland House of Correction from State service. On 17 October 1980, John T. Sealing (Sealing), a permanent classified State employee then serving as a correctional officer at the Maryland House of Correction, a constituent institution of the Department of Public Safety and Correctional Services, Division of Correction, was suspended by the ⁵²⁶ Warden of that institution pending the filing of charges with the Secretary for Sealing’s removal from State service pursuant to Md.Code (1957, 1983 Repl.Vol.), Art. 64A, § 36, 1 Art. 64A, § 33, 2 and Code of Maryland Regulations (CO-MAR) 06.01.01.48. 3 On 20 October 1980, the Warden filed written charges against Sealing alleging violations of CO-MAR 06.01.01.47 E and M, and then Division of Correction Regulation 50-2, Standards of Conduct, Rule 4 (DCR 50-2 IV.A.4.). COMAR 06.01.01.47 provides in pertinent part: “.47 Causes for Removal. “Any employee in the classified service may be permanently removed from his position only for cause....

The following shall be sufficient cause of removal, though removal may be for causes other than those enumerated: ⁵²⁷ “E. That the employee has been wantonly offensive in his conduct toward fellow employees, wards of the State, or the public; “M. That the employee has been guilty of conduct such as to bring the classified service into public disrepute.” DCR 50-2 IV.A.4. then provided in pertinent part: “A. All employees . . . must abide by the following rules of conduct established by the Commissioner. . . . Violations of this regulation and the stated rules of conduct, whether through ignorance, carelessness, or willful action, will be considered grounds for disciplinary action, possible criminal action, and/or removal from State service. “4. ... Employees on and off duty must conduct themselves in a manner which will maintain the respect of the public and the inmate body. Conduct which reflects unfavorably upon the division by causing embarrassment or criticism will constitute grounds for disciplinary action.” 4 The specific incident precipitating these charges was described as follows: “On [10/16/80], Officer John Thomas Sealing brought a handout into this institution, that he had received in the mail, to show to his friends. “The handout contained racial slurs, nicknames and discriminatory remarks of the most explosive nature. ⁵²⁸ “This type of material is considered to be racially inflammatory and could cause serious problems and possible riot, when circulated in a prison environment.” Although the charges were filed for the purpose of removing Sealing from State service, an Unsatisfactory Report recommending that Sealing be given another chance in some other department was simultaneously filed.

Sealing appealed to the Secretary. On 17 November 1980, a hearing was held before a hearing officer designated by the Secretary. The evidence adduced at this hearing showed that in October 1980, Sealing was a permanent classified employee serving as a correctional officer at the Maryland House of Correction. At that time, 90 percent of the inmate population and 40 percent of the staff were black.

Tension was present because the institution was then somewhat overcrowded. The evidence further showed that on 15 October 1980, Sealing received an anonymous letter that read as follows: “MARYLAND GAME COMMISSION Department of Natural Resources Tawes Building Annapolis, Maryland 21401 Dear Fellow Maryland Hunters: The 1980-81 Big Game Season in the State of Maryland will be cancelled due to a shortage of Big Game animals. The following game animals will not be hunted: Bear, Deer and Turkey. However, in the place of Big Game Animals, there will be an open season on Jungle Bunnies (known regionally as Negro, Nigger, Saucerlips or Pittsburg Pirates).

The season will be open from Nov. 1 thru April 30, 1981. It must be remembered, fellow hunters, ‘The only good nigger is a dead one.’ It will be unlawful to: 1. Hunt in a party of over 150. 2. Use more than 35 blood thirsty hounds. ⁵²⁹ 3.

Shoot in public bars (the bullet may richochet off the head and injure a white person. 4. Shoot any nigger while in a Cadillac. TRAPPING REGULATIONS 1. Traps may not be set within 15 feet of a watermelon patch. 2.

Traps may not be baited with pork chops, watermelon, cheap whiskey or wine, fried chicken or flashy clothes. NOTE: A special permit may be issued for the use of Cadillac keys. 3. Traps may not be set in ghetto areas. 4. All traps must have 400-lb. spring and 4-inch jaw spread.

OTHER RULES AND REGULATIONS 1. It is unlawful to pick up or possess a road-killed Jungle Bunny. If you see one on the highway, you may hit it, but don’t pick it up. 2. It is unlawful to use any recorded or electronically amplified device to trap a Jungle Bunny, with exception of the following: a recording of Al Jolson’s ‘Swanee River’ or ‘Dixie’.

NOTE: A special permit may be purchased to use: ‘Mama’s Little Baby Loves Shortening Bread.’ HOW TO KNOW WHEN JUNGLE BUNNIES ARE IN THE AREA: Watermelon seeds on ground; smell of pork chops in air; Cadillacs, especially with white sidewalls; nigger wool in tree branches; a pile of carp bones next to your favorite fishing hole. LIMIT: 3 per day, 40 per season. LICENSE FEE: Free to all whites. Safe and Happy Hunting” ⁵³⁰ On 16 October 1980, Sealing brought the letter to work and showed it to other staff members including some supervisory personnel.

Although Sealing did not reproduce the letter or show it to any inmates, copies of it were made and left on a desk that was accessible to both inmates and correctional officers. Five or six copies were taken from the desk but it was unknown whether inmates or officers had taken the copies. Later that day, a correctional officer, who “thought it wasn’t right for this type of document to be passed around in the institution,” brought the letter to the attention of one of Sealing’s immediate supervisors. That supervisor described the letter as “inappropriate and inflammatory in the confines of a correctional institution where approximately 90%, 85-90% of the population is black, where correctional officers have to supervise these people and control them.” He further stated that “with this type of document circulating through the institution, it could cause a hardship on white correctional officers that are trying to perform their job as far as if they have an incident with an inmate, the first thing the inmate would allege is that the officers instead of doing his job is doing it because he’s a racist and refer back to that document being passed around.” That supervisor informed yet another supervisor of the letter and its contents.

The second supervisor felt “that the hand-out that was brought in was extremely racist, extremely dangerous in that type of situation” and “that such a document was bound to cause some type of trouble between the officers and inmates.” Although this supervisor had not observed any problems resulting from the dissemination of the letter, he nonetheless recommended that Sealing be disciplined. After the Warden suspended Sealing, an inmate, who was then serving as a representative on the Inmate Advisory Council, 5 told one of Sealing’s supervisors that a correctional ⁵³¹ officer other than Sealing had shown him the letter. The inmate indicated that there “would be no problem from the inmate population because the warden took action.” In his defense, Sealing testified that because hunting was one of his hobbies, he found the anonymous letter “rather amusing.” He stated that his purpose in bringing the letter to work was to show it to friends with whom he hunted. He said that he had shown the letter to one black and several white members of the staff, including some supervisory personnel.

According to Sealing, staff reactions were mixed — some staff members chuckled while others made no comment. Although Sealing stated that at the time of the incident he was aware of his obligation to be extremely careful to avoid any conduct that might proliferate existing problems, he testified that he was not then aware that he was violating any institutional rule. He said that in the past, pictures with sexual and racial overtones had been posted in areas frequented by staff, minimum security inmates, and persons making deliveries to the institution. He asserted that racial epithets were frequently exchanged between black and white inmates and staff.

Finally, Sealing pointed out that it was not until six days after his suspension that the Warden issued an informational bulletin indicating that printed materials containing racial slurs should not be brought into the institution. 6 Based upon the evidence presented, the hearing officer made the following findings of fact, in pertinent part: ⁵³² “1. Mr. Sealing did bring the complained of document into the Maryland House of Correction. 2. • He distributed the document to a number of Correctional Officers while on duty at the institution. 3. On its very face the document is odious and scurrilous. 4. The Division of Corrections, through the Department of Public Safety and Correctional Services, is by law charged with the management of the Maryland House of Correction and the safe custody of the inmates confined therein. 5.

Mr. Paul J. Davis is the legally appointed Warden of the Maryland House of Corrections and as such, is immediately responsible to higher level officials of the Division of Corrections to fulfill the mission stated above. 6. The Warden determined that the document could cause serious problems and possible riot when circulated in a prison environment, because, in his opinion, the document is racially inflammatory.” Additionally, the hearing officer determined that “[p]ast practice within an institution cannot alter the provisions of Division, Departmental or Statewide regulations or policies.” He concluded that Sealing had violated COMAR 06.01.01.47 E and M, as well as DCR 50-2 IV.A.4. On 16 December 1980, these findings and conclusions were approved by the Secretary who ordered that Sealing “be permanently removed from State service,” but that “in accordance with the recommendation of the appointing authority,” Sealing “be given another chance in some other department of the State.” Sealing filed an appeal in the Circuit Court for Howard County pursuant to Md.Code (1957,1982 Repl.Vol.), Art. 41, § 255(a). 7 In a Memorandum Opinion, the trial court initial ⁵³³ ly found that the administrative determination that Sealing had violated COMAR 06.01.01.47 E was not supported by sufficient facts and inferences. More particularly, with respect to the alleged violation of that regulation, the trial court said: “To sustain disciplinary action under COMAR 06.01.01.-47(E) . . . facts have to be found from which a reasoning mind could conclude that Appellant’s conduct had been ‘wantonly offensive’ toward fellow employees, inmates, or the public.. . . “That the material was offensive is admitted.

But the mere fact of its offensive nature does not, absent more, cause Appellant’s conduct to be ‘wantonly offensive’. Inherent in wanton conduct is some act which is so reckless or grossly negligent, as regards the rights and feeling of others, that one of a reasoning mind may infer an intent to be offensive or to do harm. Wanton conduct goes beyond conduct which is merely careless or thoughtless.” The trial court then found that the administrative determination that Sealing had violated COMAR 06.01.01.47 M was not supported by sufficient facts and inferences. Additionally, the trial court found that Sealing had not been charged with a violation of DCR 50-2 IV.A.4.

The trial court concluded that the administrative action removing Sealing from State service was arbitrary and capricious. On 11 December 1981, the trial court entered an order remanding the case to the Secretary for further proceedings in accordance with its opinion. An appeal was filed in the Court of Special Appeals. In an unreported per curiam opinion, Maryland State Department of Personnel v. Sealing, No. 97, September Term, 1982, filed 8 October 1982, that Court determined that Sealing had been properly charged with a violation of DCR 50-2 IY.A.4.

It found, however, that there was insufficient evidence in ⁵³⁴ the record to support the finding of a violation of DCR 50-2 IY.A.4 or COMAR 06.01.01.47 E and M. More particularly, with respect to the alleged violation of COMAR 06.01.01.47 E, that Court said: “The paper certainly is offensive, as testified to by Lt. Clay who thought it ‘inappropriate and inflammatory,’ and Major Dettler, who considered it ‘extremely racist’ in nature. To be violative of the regulation, however, it is not the paper itself but Sealing’s ‘conduct toward fellow employees, wards of the State, or the public ... ’ that must be judged as wantonly offensive. ‘An offensive act that is “wanton” is brutally insolent or heedless of the rights and feelings of others.’ Thompson v. City of Minneapolis, 300 N.W.2d 763, 769 (Minn.1980). “While Sealing was later told by a superior officer