Moats v. City of Hagerstown

ELDRIDGE, Judge. We granted a petition for a writ of certiorari in this case to decide whether a law enforcement officer may waive the procedures under the Law Enforcement Officers’ Bill of Rights, Maryland Code (1957, 1987 Repl.Vol., 1991 Cum. Supp.), Art. 27, §§ 727-734D, 1 and elect to pursue a grievance under a collective bargaining agreement. In November 1988 Officers Shifler and Moats of the Hagerstown Police Department were investigated for and charged with intentionally misrepresenting facts on an overtime report.

The City of Hagerstown Police Department’s Rules and Regulations classified this misrepresentation as a major infraction, and the officers were notified of the ⁵²² charge on January 2, 1989. The officers were also notified that a hearing, pursuant to § 730 of the Law Enforcement Officers’ Bill of Rights, was scheduled for February 2, 1989. Arguing that the violations were unfounded, the officers attempted to file a grievance in accordance with their collective bargaining agreement. 2 The Hagerstown Police Chief, Paul L. Wood, refused to hear the grievance, taking the position that the collective bargaining agreement did not encompass disciplinary matters. Prior to the scheduled Law Enforcement Officers’ Bill of Rights hearing, the officers filed in the Circuit Court for Washington County an application for a show cause order pursuant to § 734 of the Law Enforcement Officers’ Bill of Rights. 3 The officers argued that they were denied their right, guaranteed by § 734D, to waive a hearing under the Law Enforcement Officers’ Bill of Rights.

The City of Hagerstown’s position was that the officers were not being ⁵²³ denied the right to waive a hearing. Instead, according to the City, they could waive the right to a hearing, but, once the right was waived, the officers were not free to pursue a grievance under the collective bargaining agreement. The circuit court issued the show cause order and stayed both the Law Enforcement Officers’ Bill of Rights hearing and the grievance procedure. At the show cause hearing, the City of Hagerstown argued that the Law Enforcement Officers’ Bill of Rights provided an exclusive remedy and that the officers must either submit to its procedures or be disciplined at the discretion of the Chief of Police.

The officers contended that they were free to waive all of the procedures under the Law Enforcement Officers’ Bill of Rights and elect to pursue an alternative remedy under the collective bargaining agreement. The circuit court held that the Law Enforcement Officers’ Bill of Rights did not provide the exclusive remedy and that the collective bargaining agreement’s grievance procedures provided an alternative remedy. The City of Hagerstown appealed to the Court of Special Appeals. Although the parties did not raise in the Court of Special Appeals the issue concerning the exclusivity of the Law Enforcement Officers’ Bill of Rights, the intermediate appellate court decided this “critical preliminary question” sua sponte.

City of Hagerstown v. Moats, 81 Md.App. 623 , 568 A.2d 1181 (1990). The appellate court held that the Law Enforcement Officers’ Bill of Rights was the exclusive remedy in this case and that the General Assembly did not intend to allow officers to circumvent the procedures of the Law Enforcement Officers’ Bill of Rights in order to file a grievance pursuant to a collective bargaining agreement. 81 Md.App. at 628 , 568 A.2d at 1183 . Judge Alpert, writing for the court, stated ( 81 Md.App. at 631-632 , 568 A.2d at 1185 ): “The LEOBOR is a ‘special form of remedy’ as contemplated by the Court of Appeals in [Prince George’s County v.] Blumberg[, 288 Md. 275 , 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083 , 101 S.Ct. 869 , 66 L.Ed.2d 808 ⁵²⁴ (1981) ]. The Legislature established the statutory procedures for just the kind of case we have before us—a disciplinary matter____ We believe that the LEOBOR, an extremely comprehensive statute requiring nearly twenty pages in the Maryland Annotated Code, provides an ‘adequate and available’ procedure, and that the issues involved in deciding whether an officer should be disciplined are within the expertise of that officer’s police or sheriff’s department____ Nothing in the plain language of the LEOBOR indicates that the Legislature ... intended to permit officers to pick and choose between the LEOBOR procedures and the collective bargaining agreement procedures." The officers petitioned this Court for a writ of certiorari, claiming that (1) the Court of Special Appeals abused its discretion by resolving the case based upon an unbriefed and unargued issue and (2) the General Assembly did not intend for the Law Enforcement Officers’ Bill of Rights to be an exclusive remedy.

This Court granted the petition, and we shall affirm the decision of the Court of Special Appeals. 4 I. Officer Moats contends that because the City of Hagerstown failed to brief and argue the issue of the exclusivity of the Law Enforcement Officers’ Bill of Rights before the Court of Special Appeals, the trial court’s ruling that the statute did not provide an exclusive administrative remedy became final for purposes of this litigation. An appellate court ordinarily will consider only an issue which is properly raised by the parties in the appellate ⁵²⁵ court, unless the issue concerns the jurisdiction of the trial court or of the appellate court. The failure of an appellant to raise an issue in the appellate court is usually deemed a waiver as to the issue. See, e.g., Foster, Evans and Huffington v. State, 305 Md. 306, 315 , 503 A.2d 1326, 1330-1331 , cert. denied, 478 U.S. 1010 , 1023, 106 S.Ct. 3310, 3315 , 92 L.Ed.2d 722 , 723, 745 (1986); Health Services Cost Review Comm’n v. Lutheran Hospital, 298 Md. 651, 664 , 472 A.2d 55, 61 (1984); Logan v. Town of Somerset, 271 Md. 42, 67 , 314 A.2d 436, 449-450 (1974); Ricker v. Abrams, 263 Md. 509, 516 , 283 A.2d 583, 587 (1971); Wooddy v. Wooddy, 256 Md. 440, 450-451 , 261 A.2d 486, 491 (1970); Harmon v. State Roads Comm’n, 242 Md. 24, 30-32 , 217 A.2d 513, 516-517 (1966).

Nevertheless, an appellate court has discretion to excuse the waiver and to consider an issue even though it was not properly raised by a party. See, e.g., Crown Oil v. Glen, 320 Md. 546, 561-562 , 578 A.2d 1184, 1191 (1990); Foster, Evans and Huffington v. State, supra, 305 Md. at 315-316 , 503 A.2d at 1331 . See also Atlantic Mutual v. Kenney, 323 Md. 116, 122 , 591 A.2d 507, 510 (1991). Moreover, because of important public policy considerations, there is a limited category of issues, in addition to jurisdiction, which an appellate court ordinarily will address even though they were not raised by a party.

See, e.g., Muhl v. Magan, 313 Md. 462, 480-481 , 545 A.2d 1321, 1330-1331 (1988); Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 787 , 506 A.2d 625, 631 (1986); Comm’n on Human Rel. v. Mass Transit, 294 Md. 225, 232 , 449 A.2d 385, 388 (1982); Joseph H. Munson Co. v. Sec. of State, 294 Md. 160, 169 , 448 A.2d 935, 940 (1982), aff'd, 467 U.S. 947 , 104 S.Ct. 2839 , 81 L.Ed.2d 786 (1984); Sec., Dep’t of Human Res. v. Wilson, 286 Md. 639, 644-645 , 409 A.2d 713, 717 (1979). The exhaustion or exclusivity of an administrative remedy is such an issue. In Bd. of Ed. for Dorchester Co. v. Hubbard, supra, this Court stated (305 Md. at 787, 506 A.2d at 631 ): ⁵²⁶ “While the failure to invoke and exhaust an administrative remedy does not ordinarily result in a trial court’s being deprived of fundamental jurisdiction, nevertheless, because of the public policy involved, the matter is for some purposes treated like a jurisdictional question. Consequently, issues of primary jurisdiction and exhaustion of administrative remedies will be addressed by this Court sua sponte even though not raised by any party.” The Court of Special Appeals properly raised sua sponte the important policy question concerning the exclusivity of the administrative procedure under the Law Enforcement Officers’ Bill of Rights.

II

The language and history of the Law Enforcement Officers’ Bill of Rights demonstrates an intent to establish an exclusive procedural remedy for a police officer in departmental disciplinary matters. In Abbott v. Administrative Hearing Board, 33 Md.App. 681, 687-688 , 366 A.2d 756, 759-760 (1976), cert. denied, 280 Md. 727 (1977), the Court of Special Appeals held that the Law Enforcement Officers’ Bill of Rights preempted conflicting provisions of the Prince George’s County merit system ordinance. Because the procedures under the county personnel laws could not be reconciled with the procedures under the Law Enforcement Officers’ Bill of Rights, the intermediate appellate court did not reach the “highly persuasive ... preemption by occupation” argument. 33 Md.App. at 687 , 366 A.2d at 759 . At the next session of the General Assembly after Abbott , an amendment to the statute was enacted in order to deal with the relationship between the Law Enforcement Officers’ Bill of Rights and other statutes providing alternate remedies for police officers.

In Ch. 366 of the Acts of 1977, the General Assembly added § 734B to the Law Enforcement Officers’ Bill of Rights, which states in part: “the provisions of this subtitle shall supersede any State, ⁵²⁷ county or municipal law, ordinance, or regulation that conflicts with the provisions of this subtitle.” The enactment of § 734B, however, went beyond the holding of Abbott and resolved the “highly persuasive” preemption by occupation argument by adding the following: “any local legislation shall be preempted by the subject and material of this subtitle.” Thus, the General Assembly has expressly provided that the Law Enforcement Officers’ Bill of Rights procedures are an officer’s exclusive remedy, at least with regard to alternate procedures under local law. As this Court in Baltimore City Police v. Andrew, 318 Md. 3, 13 , 566 A.2d 755, 760 (1989), observed with regard to § 734B, “[o]ne can scarcely imagine a clearer statement of the scope of the LEOBR. The subtitle is to be a law that is supreme and all-encompassing, within its State-wide sphere of operations.” Furthermore, subsequent history demonstrates continued adherence to the position that the procedures of the Law Enforcement Officers’ Bill of Rights would be the exclusive remedy for law enforcement