McClellan v. Department of Public Safety & Correctional Services

DEBORAH S. EYLER, J. In a final administrative proceeding, Stanley McClellan, the appellant, was terminated from his employment as a Correctional Officer II with the Division of Pretrial Detention and Services (“Division”), which is part of the Department of Public Safety and Correctional Services (“Department”). He pursued an action for judicial review in the Circuit Court for Baltimore City. The Department appeared as the respondent. The circuit court affirmed the termination decision.

On appeal, the appellant poses three questions for review, which we have rephrased slightly: I. Did the Administrative Law Judge (“ALJ”) err in finding that the Department complied with the 30 day time limit for imposing discipline, under Md.Code (1993, 1997 RepLVol.), section ll-106(b) of the State Personnel and Pensions Article (“SPP”)?

II

Did the ALJ err in finding that the appellant’s relationship with a former inmate outside the institution was grounds for discipline?

III

Assuming contact with a former inmate is not a third category infraction, did the ALJ err in upholding the sanction of termination for the remaining second category infractions? For the following reasons, we shall vacate the judgment of the circuit court and remand the matter for administrative proceedings not inconsistent with this opinion. ⁵ FACTS AND PROCEEDINGS Events of November 28-29, 2001 At all relevant times, the appellant was employed by the Division as a Correctional Officer II, at the Baltimore City Detention Center (“BCDC”). The incident central to this case happened when the appellant was off-duty. On November 28, 2001, at about 8:00 p.m., the appellant approached a security guard at Mondawmin Mall in West Baltimore and reported that someone had fired shots at him.

He told the security guard he had been driving nearby and stopped at Frederick Douglass High School, across the street from the mall, to urinate. As he was walking back to his car, in the school parking lot, he heard gunshots. He ran across Gwynns Falls Parkway to the mall, and immediately sought help. The appellant did not say anything to the security guard about anyone else.

The security guard called the Baltimore City Police Department (“BCPD”), and officers arrived. The appellant told the officers he had stopped at the high school to urinate and, as he was returning to his car, heard shots. He said he had not seen or spoken to anyone before the shooting, and did not see the shooter. The investigating officers quickly learned that, at approximately the same time and the same location as the shooting reported by the appellant, a former BCDC inmate named Solothal Thomas had been shot and wounded.

For five years, while incarcerated at the BCDC, Thomas had worked on a paint crew that the appellant supervised. The police officers interviewed Thomas at the scene. Thomas told them the appellant had been present with him at the school parking lot when the shooting happened. According to Thomas, a man wearing a gray “hoodie” approached the two of them and started shooting, striking him (Thomas) in the back.

That same night, as part of their investigation, the BCPD officers performed a gunshot residue test on the appellant’s ⁶ hands. The materials gathered were sent to the BCPD laboratory for analysis. Events from November 30, 2001, to March 14, 2002 On December 3, 2001, the BCPD investigating officers contacted the Division’s Bureau of Special Operations (“Bureau”) about their November 28 encounter with the appellant. The Bureau includes the Internal Investigations Unit (“HU”).

At the relevant time, Major Melvin Richardson was the commander of the Bureau. Also on December 3, 2001, the appellant submitted a “Matter of Record” (“MOR”) to the Division, setting forth his version of the November 28 incident. He said he had been walking back to his car when he heard gunshots and “the clicking sound of a gun.” He ran toward the mall; as he did so, he turned and saw an “unknown Black male, wearing a short red jacket,” running across the school parking lot “near [his] car.” He further recounted reporting the shooting to a mall security guard; being taken to the school parking lot; being transported to the Central District station house, where his hands were tested for gunshot residue; and then being transported to the Western District station house, where he was interrogated by BCPD Detective Russell Robar and his partner (whose name does not appear in the record). The appellant stated that, during the interrogation, Detective Ro-bar’s partner said he “did not like Jail Guards” and that one correctional officer already had lost his job “over the victim Thomas.” The appellant asked the officers whether they were talking about Solothal Thomas, and what that had to do with him; and told them, “No one was with me at the time, someone was shooting at me.

I did not see Solothal Thomas or anyone else I knew during the time of the shooting.” The next day, December 4, the appellant submitted a second MOR, stating that he had noticed a red car following him on December 1, and that its occupants were looking at him; that he had seen the red car on the day of the shooting; and that ⁷ he had given that information to a “Detective Robinson” of the BCPD and she had promised to investigate. 1 Also on December 4, Detective Robar wrote a memorandum to his superior officer, Lieutenant Deborah Owens, about his interrogation of the appellant on November 28. He commented that the appellant was not cooperative during the interview and his version of events was inconsistent with Thomas’s version of events and with evidence found at the scene of the shooting. (He did not specify what evidence he was referring to.) Detective Robar also noted that the appellant and Thomas were “previous friends and [had] known each other for several years.” He stated that an attempt would be made to schedule another interview with the appellant to gather additional information. And also on December 4, 2001, Major Richardson submitted a memorandum to Lamont Flanagan, Commissioner of the Division, informing him that the appellant had been questioned by the BCPD about a November 28 shooting in West Baltimore involving former inmate Thomas; and that “a case [was] being developed to ascertain [the appellant’s] involvement[.]” Major Richardson further stated in the memorandum that Thomas had worked under the appellant’s supervision at the BCDC and the appellant had admitted to knowing Thomas outside of that setting.

He concluded by noting, “Case assessment is to be provided by BCPD after their reinterview of [the appellant] on 12-4-01.” Sometime in December 2001, on a date not disclosed in the record, Major Richardson and Captain Frank Day, another employee with the Bureau, questioned the appellant about the November 28 incident and his relationship with Thomas. Bureau staff also questioned Thomas at a date “close to the time that the incident occurred.” ⁸ On December 20, 2001, Detective Robar’s December 4 memorandum was received by the Division, and was signed by Major Richardson. Events from March 15, 2002, to June 26, 2002 Nothing further happened until March 15, 2002. That day, the BCPD issued a Gunshot Primer Residue Report (“the Report”) documenting the results of the test performed on the appellant’s hands.

The Report showed that gunshot residue was found on the appellant’s left hand and stated that the most likely explanation for that was that the appellant’s hands had been “immediately adjacent to a discharging firearm or were themselves used to fire the firearm within a few hours” of the time the test was taken on November 28, 2001. The Division received the Report on April 10, 2002. Deputy Commissioner Benjamin Brown learned of the Report that same day. On April 11, 2002, the appellant was asked to submit another MOR to explain the gunshot residue test results.

The appellant did so. In an MOR that same day, the appellant said: I know that a mistake or error was made on the Report. Reason Being; at the time of the incident I had not handled or touch[ed] any firearms since the last time I went to the range at work! And that was more than a few hours, that was months.

I did not shoot any person or [see] anyone get shot on the date of November 28, 2001 or any other date. The next day, April 12, 2002, Major Richardson submitted to Commissioner Flanagan a written investigative report about the November 28 incident, the appellant’s MORs, and the Report. Major Richardson noted that the results of the gunshot residue test “were in direct opposition to the statements provided by [the appellant] of his involvement and or knowledge of the November incident.” He concluded that the appellant had violated several Department Standards of Conduct and provisions of the Code of Maryland Regulations (“COMAR”). ⁹ On April 25, 2002, Deputy Commissioner Brown signed the appellant’s Notice of Termination, as his “appointing authority.” As pertinent to the case, the Notice of Termination advised the appellant that he was being terminated for violating provisions of COMAR 17.04.05.04B prohibiting conduct that would bring the State into disrepute; involving dishonesty, fraud, deceit, misrepresentation, or illegality; willfully making a false report; knowingly assisting another in unlawful conduct; insubordination; and committing an act, other than those already specified, detrimental to the State. 2 The Notice of Termination further advised the appellant that he had violated provisions of the Department Standards of Conduct prohibiting conduct unbecoming an employee of the Department; failure to perform duties in a manner consistent with Standards; making a false or an inaccurate report; committing second category infractions by making a false report and by insubordination; and committing a third category infraction by engaging in an “[u]nprofessional personal relationship or contacts with [an] inmate, offender or client.” 3 Under “Explanation For Termination,” the Notice stated: ¹⁰ On December 3, 2001, the Bureau of Special Operations of the Department of Pretrial Detention and Services [r]e-ceived information that Correctional Officer II Mr. Stanley McClellan had been questioned by the Baltimore City Police Department in reference to a shooting incident that occurred in West Baltimore on November 28, 2001. According to the police, the victim in the shooting was a former inmate, Solothal Thomas.

At the time of the shooting, Officer McClellan claimed that he had stopped his vehicle at Douglasfs] High School to urinate. While he was so engaged, he claimed he heard gunshots, and the gunshots ¹¹ were directed at him. Officer McClellan stated to police that he then ran across the street to Mondawmin Mall and contacted security to report the shooting. When the police arrived, Officer McClellan was uncooperative and evasive about the circumstances surrounding the shooting.

Based on his lack of cooperation and the statements of former inmate Solothal Thomas’[s] statement that Officer McClellan was there to meet him, the police requested that a gunshot residue test be conducted on Officer McClellan. During the shooting, former inmate Solothal Thomas was shot and wounded. On April 11, 2002, Officer McClellan was questioned again concerning the incident and denied any involvement. However, the gunshot residue test conducted by the Baltimore City Police Department proved positive for gunshot residue on Officer McClellan’s left hand.

Clearly the positive gunshot residue test results revealed that Officer McClellan was less than truthful about the incident. Moreover, Officer McClellan knew former inmate [Thomas] from the paint crew at the institution. Office[r] McClellan’s failure to provide an accurate account of the shooting incident, his inappropriate relationship with a former inmate and his failure to cooperate with police during the investigation make him an unacceptable candidate for continued employment as a correctional officer. Officer McClellan has failed to offer any facts to establish how the gunshot residue came to be on his hand.

Honesty and integrity are essential characteristics for correctional officers. Mr. McClellan has failed to demonstrate either. Therefore, the proposal to terminate his employment is the most prudent course of action. The Notice of Termination was approved by Stuart Simms, who was then Secretary of the Department, on April 30.

On May 8, the appellant appealed his termination to Secretary Simms. The appeal was denied on May 24. The appeal then was forwarded to the Office of Administrative Hearings on June 26, 2002, pursuant to SPP section 11-110. An ALJ was assigned to handle the matter. ¹² Motion Proceedings Before the ALJ On October 4, 2002, the appellant filed a “motion to dismiss” the termination, alleging that it was untimely under SPP section 11 — 106(b), which states, in relevant part, that “an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.” An evidentiary hearing on the motion was held on April 25, 2003.

The appellant testified that he immediately informed his shift commander about the November 28 incident; that he was instructed to write a report about what had happened, which he did; and that he was interviewed by Major Richardson “a couple days” after the incident. The Division called Deputy Commissioner Brown and Major Richardson as witnesses. Deputy Commissioner Brown testified that it was “normal” for the Bureau to conduct investigations of employee misconduct and that Major Richardson “works for” Commissioner Flanagan. Deputy Commissioner Brown learned of the November 28 incident on December 4, when he read Major Richardson’s memorandum to Commissioner Flanagan.

In his view, there was “nothing in that report to indicate a need to consider” taking action against the appellant. The MORs and Major Richardson’s December 4 memorandum were not part of an “ongoing investigation.” Rather, they were “normal and routine communications.” An investigation was not conducted until April 10, when the Division received the Gunshot Residue Test Report. The bases for the appellant’s termination were “the charges that came out of the investigation, all of which were sustained during the investigation, specifically that investigation started from the report by the police of the positive test for gunshot residue.” Deputy Commissioner Brown never saw the December 4 memorandum from Detective Robar to Lieutenant Owens. He acknowledged that the presence of Major Richardson’s signature on that document showed that Major Richardson ¹³ received it on December 20.

There was no Departmental requirement for the IIU to conduct its own investigation when the BCPD was investigating an employee, absent a “formal allegation” by the BCPD. According to Deputy Commissioner Brown, Detective Robar’s December 4 memorandum was not “prima facie evidence of alleged false .statements given to a law enforcement official” and thus Major Richardson was not required to conduct any investigation upon receiving it. Major Richardson testified that an “investigation” by the Bureau started upon receipt of information from the BCPD about the shooting. He acknowledged that, if a law enforcement agency reported to the Bureau that a Division employee was “impeding the process of an investigation,” the Bureau would “approach that employee, ask for some clarification, and as to conducting an investigation or interrogation or whatever you want to call it with that employee, it would be done.” According to Major Richardson, sometime in December 2001, the Bureau staff, including Captain Day, questioned the appellant and Thomas.

He (Richardson) questioned the appellant “in reference to the clarity of the reports.” This questioning was an “internal” investigation. Also as part of the investigation “stemming from the [December 4 memorandum by Detective Robar,]” Major Richardson questioned the appellant and Thomas about “issues of fraternization.” In deciding what action to take, Major Richardson gave “equal weight” to the appellant’s statements and Detective Robar’s December 4 memorandum. He had “no reason to believe that [the appellant’s] involvement” in the shooting incident “was anything but what he had indicated to us”; therefore, he accepted the appellant’s portrayal of himself as a victim in the events of November 28. At that point, according to Major Richardson, “we could proceed no further” and no action was taken.

He did not inform his “appointing authority” about the investigation because there “was nothing to tell. Unless it could be substantiated, there was nothing that we felt we needed to tell the appointing authority about at that time.” “The investigation as far as information gathering, ¹⁴ continuing to interview [the appellant], came to an end in November or December[.]” Major Richardson testified that everything changed when the Bureau received the gunshot residue test report: that made “the difference ... in the entire investigation.” He acknowledged knowing in December that the BCPD had gathered the material from the appellant for testing on November 28, and that it would take “some time” for the test results to come back. The investigation “took on a different phase, if you want to call it that, once the information about the gunshot residue came in.” At that point, Major Richardson notified the “appointing authority” of the results of the gunshot residue test. The appellant’s lawyer argued in closing that the triggering date for the Division to take disciplinary action under SPP section 11 — 106(b) was at the latest December 20, 2001, when Major Richardson received Detective Robar’s December 4 memorandum.

Counsel for the Division responded that the triggering date was April 10, 2002, when Deputy Commissioner Brown received the Gunshot Residue Test Report. The ALJ took the case under advisement. On June 5, 2003, he issued a written decision finding that the Division had complied with the 30 day time period established by SPP section 11 — 106(b). We shall discuss the basis for that decision later in this opinion.

Merits Proceedings Before ALJ An evidentiary hearing on the merits of the appellant’s termination from employment was held on November 26, 2003. The Division called as witnesses Joseph Harant, a criminalist with the BCPD, and Major Richardson. Harant was qualified as an expert in trace analysis and gunshot residue testing. He testified that the gunshot residue test on the appellant’s hands revealed residue on his left hand, but not on his right hand, even though the appellant is right-handed, and opined that those findings could be explained on several bases: residue particles could have fallen off the ¹⁵ appellant’s right hand; he could have been wearing a glove on his right hand; or he could have been in close proximity to the weapon (within three feet of it) when it was fired.

Major Richardson testified that the appellant was terminated because he did not give a truthful statement about the November 28 incident, and that, in the view of the administration, this was not acceptable behavior for a correctional officer. The appellant’s length of service, his overall performance, and his clean disciplinary record were taken into account when, at the time of the November 28 incident, management made the decision to believe the appellant’s statements and not to take any action. The appellant testified on his own behalf. He gave his account of the events leading up to his termination.

He denied having a relationship that was “other than professional” with Thomas. He acknowledged having seen Thomas several times subsequent to Thomas’s release from the BCDC. He denied having handled a gun on November 28, 2001. He attempted to explain the gunshot residue test results by saying that he must have picked up residue “when [he] went into the door into the garage” at the police station.

The appellant also called three witnesses: Michele Edwards, a co-worker, who testified that the appellant had told her about being questioned by the police on December 3; Stacey Lyles, the appellant’s supervisor, who testified that the appellant was a “good officer”; and Kenneth Bartee, another co-worker, who testified that he had no reason to question the appellant’s integrity as it related to dealing with inmates. The Division’s lawyer argued in closing that the appellant violated the provisions of the Standards of Conduct and CO-MAR by giving false reports, “particularly the report of April 11th, 2002.” He also argued that the appellant had violated the provisions of the Standards of Conduct dealing with fraternization because Thomas was an “offender.” Counsel for the appellant responded that several employees had testified that he was a good officer, and that Harant had not testified that he had fired a weapon, only that a weapon had been fired near him. ¹⁶ The ALJ took the case under advisement. On January 9, 2004, the ALJ issued a written decision affirming the appellant’s termination by the Department. He made the following first level factual findings.

The appellant intentionally met with Thomas on the parking lot of Frederick Douglass High School on the night of November 28, 2001. During that meeting, shots were fired and Thomas suffered a gunshot wound. The appellant ran across the street to the mall and reported that shots had been fired at him, without making reference to Thomas. When the police came, the appellant gave them the same story, without any reference to Thomas, and saying that he did not see the shooter.

In his MORs of December 3 and 4, 2001, the appellant denied seeing or speaking to Thomas on the night of November 28, firing a weapon that night, or knowing anything about the shooting of Thomas. In fact, based on the gunshot residue test results obtained by the Division on April 10, 2002, the appellant either fired a gun that night, or was within three feet of someone who fired a gun. The appellant’s April 11, 2002 MOR failed to account for the presence of gunshot residue on his left hand on November 28; and in that MOR, he said he had not fired a weapon that day, or within several months prior. The appellant received a Notice of Termination based on his alleged failure to provide an accurate account of the shooting incident, his inappropriate relationship with a former inmate, and his failure to cooperate with the police during the investigation of the shooting incident.

On those findings, and based on a negative demeanor-based credibility assessment of the appellant, the ALJ concluded that the Department proved, by a preponderance of the evidence, that the appellant violated COMAR sections 17.04.05.04B(3), (8), (10), (11), (12), and (15); and Standards of Conduct II.B(1), (J), (S), IV.E.2.(a)(14), and IV.E.3.(a)(10). 4 ¹⁷ The ALJ determined that, “even without the gunshot residue evidence,” the evidence supported findings that the appellant “failed to provide an accurate account of the shooting incident ...; that he did not cooperate fully with the police investigation [of] the matter; and that he maintained an inappropriate relationship with a former inmate[.]” The ALJ rejected the appellant’s arguments that the gunshot residue test results were contaminated, or that chain of custody had not been proven, and, crediting Harant’s testimony, concluded that the test results showed that the appellant “was not forthcoming as to his involvement in the incident.” Circuit Court Judicial Review On February 6, 2004, the appellant filed an action for judicial review in the circuit court, challenging the ALJ’s decision. Both parties filed legal memoranda. On August 2, 2004, the court issued a memorandum opinion and order affirming the ALJ’s decision. The appellant noted a timely appeal.

DISCUSSION Standard of Review When reviewing a decision of an administrative agency, our role is “precisely the same as that of the circuit court.” B & S Marketing Enterprises, LLC v. Consumer Protection Div., 153 Md.App. 130, 150 , 835 A.2d 215 (2003) (quoting Dep’t Of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994)). We review only the decision of the administrative agency itself. Maryland ¹⁸ Dep’t. of Public Safety & Correctional Services v. PHP Healthcare Corp., 151 Md.App. 182, 194 , 824 A.2d 986 (2003). Our review is a two-fold inquiry: we determine whether there is substantial evidence in the record to support the agency’s findings and conclusions and whether the agency’s decision is premised upon an erroneous conclusion of law.

Motor Vehicle Administration v. Lytle, 374 Md. 37, 56 , 821 A.2d 62 (2003); Kram v. Maryland Military Dep’t., 146 Md.App. 407, 411-12 , 807 A.2d 120 (2002). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 529-30 , 836 A.2d 655 (2003) ; Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 451 , 800 A.2d 768 (2002). Substantial evidence review is narrow; the question is not whether we would have reached the same conclusions, but merely whether “a reasoning mind” could have reached those conclusions on the record before the agency. Stansbury v. Jones, 372 Md. 172, 182-83 , 812 A.2d 312 (2002). We appraise an agency’s fact finding in the light most favorable to the agency, and this deference extends to subsequent inferences drawn from that fact finding, so long as supported by the record.

Schwartz v. Maryland Dep’t. Of Natural Resources, 385 Md. 534, 554 , 870 A.2d 168 (2005). We give great deference to the agency’s assessment of the credibility of the witnesses. Gigeous v. Eastern Correctional Institution, 363 Md. 481, 504 , 769 A.2d 912 (2001); Finucan v. Maryland State Bd. of Physician Quality Assurance, 151 Md.App. 399, 421 , 827 A.2d 176 (2003).

When an issue is a pure question of law, a reviewing court may always substitute its judgment for that of the administrative agency. Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 528 , 846 A.2d 341 (2004); Ocean City Police Dep’t v. Marshall, 158 Md.App. 115, 122 , 854 A.2d 299 (2004) . ¹⁹ I. The appellant contends the AL J erred in denying his motion to dismiss the disciplinary action for failure to comply with the 30-day time limit for imposing discipline under SPP section 11-106(b). (a) SPP section 11-106 provides: (a) Procedure — Before taking any disciplinary action related to employee misconduct, an appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating circumstances; (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee’s appeal lights. (b) Time limit — Except as provided in subsection (c) of this section, an appointing authority may impose any disciplinary action no later than SO days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.

(c) Suspension — (1) An appointing authority may suspend an employee without pay no later than 5 workdays following the close of the employee’s next shift after the appointing authority acquires knowledge of the misconduct for which the suspension is imposed. (2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection. (Emphasis added.) Pursuant to SPP section l-101(b), the “appointing authority” is “an individual or a unit of government that has the power to make appointments and terminate employment.” ²⁰ In Western Correctional Institution v. Geiger, 371 Md. 125, 144 , 807 A.2d 32 (2002), the Court of Appeals held that an appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed, within the meaning of SPP section ll-106(b), when the appointing authority has “knowledge sufficient to order an investigation” into the alleged misconduct. In the Court of Appeals, Geiger was a consolidated review of three cases, from three different counties, in which correctional employees were disciplined more than 30 days after their appointing authorities learned of an allegation of misconduct.

In an action for judicial review in one case (employee Pflaumer), the circuit court affirmed the disciplinary action. It reasoned that SPP section ll-106(b) could not be construed as requiring that discipline be imposed within 30 days of acquiring knowledge sufficient to initiate an investigation, because, if that were the case, and an appointing authority discovered the “most credible evidence of misconduct” on the 31st day, disciplinary action could not be taken. The circuit court concluded that that would lead to “absurd results.” Id. at 136 , 807 A.2d 32 . In separate appeals, this Court affirmed the disciplinary actions.

Our