Mohan v. Norris

DEBORAH S. EYLER, Judge. This case presents the question of whether a police officer who is certified for permanent appointment by the Maryland Police Training Commission (“MPTC”), but is a probationary police officer employee of the Department of State Police (“State Police”), is “in a probationary status,” and therefore is not a “law enforcement officer,” under the Law Enforcement Officers’ Bill of Rights (“LEOBR”). In an action for injunctive and declaratory relief by Andrew A. Mohan, the appellant, against Colonel Edward T. Norris, then-Secretary of the State Police, and the State Police itself, the appellees, the Circuit Court for Prince George’s County ruled that, on the undisputed facts, Mohan, as a probationary police employee of the State Police, was not a “law enforcement officer,” under the LEOBR, and therefore was not entitled to the protections of that law in defending disciplinary ⁴⁹ charges lodged against him by the State Police. Dissatisfied with the judgment, Mohan noted this appeal. 1 For the following reasons, we agree with the circuit court that Mohan was “in a probationary status,” within the meaning of that phrase in the LEOBR, and therefore was not entitled to invoke the protections of that law.

FACTS AND PROCEEDINGS The facts in this case are not in dispute. Immediately upon graduation from the Prince George’s County Police Municipal Academy, in December 1997, Mohan was hired as a police officer by the Town of Edmonston. At that time, he was issued a “provisional certification” card by the MPTC. Mohan continued in his employment by the Town of Edmonston until September 1998, when he joined the Town of Cheverly Police Department.

Upon joining that Department, he was issued a “permanent certification” card by the MPTC. On January 7, 2002, Mohan left the Town of Cheverly Police Department, upon being appointed by the State Police to the position of “Trooper Candidate.” Two days later, he signed a written “Agreement” with the State Police setting forth the terms of his employment, including a 24-month probationary period. The Agreement stated that the probationary period would be in effect upon the commencement of employment, during the time that Mohan would be in training as a Trooper Candidate, and thereafter, upon successful completion of training and his assumption of duties with the State Police. On July 30, 2003, still during his 24-month probationary period, Mohan was served with two sets of disciplinary docu ⁵⁰ ments, charging him with violating rules, policies, and procedures of the State Police.

He responded by demanding a hearing and invoking other procedural protections of the LEOBR. He was informed by the State Police Administration that the disciplinary matters were not covered by the LEOBR because he still was a probationary police officer employee. Mohan then brought this action for injunctive and declaratory relief. DISCUSSION Standard of Review The issue Mohan raises on appeal is a question of statutory interpretation, which is purely one of law.

Salomon v. Progressive Classic Ins. Co., 379 Md. 301, 307 , 841 A.2d 858 (2004); Board of License Comm’rs for Anne Arundel County v. Corridor Wine, Inc., 150 Md.App. 275, 280 , 819 A.2d 1141 (2003); Baltimore County Licensed Beverage Ass’n, Inc. v. Kwon, 135 Md.App. 178, 189 , 761 A.2d 1027 (2000). Our standard of review, therefore, is de novo. Salamon, supra, 379 Md. at 307 , 841 A.2d 858 ; Montgomery County v. Jamsa, 153 Md.App. 346, 352 , 836 A.2d 745 (2003).

Pertinent Statutes and Regulations The LEOBR is a comprehensive statutory scheme, enacted in 1974, that extends certain procedural protections to “law enforcement officers,” as defined by statute, in disciplinary matters. Fraternal Order of Police, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 181 , 680 A.2d 1052 (1996); Baltimore City Police Dep’t v. Andrew, 318 Md. 3, 12 , 566 A.2d 755 (1989). At the time relevant to this case, the LEOBR was codified at Md.Code (1996, 2002 Supp.), Article 27, sections 727 through 734D. 2 Section 727(b) defined a “law enforcement officer” as a person “who, in an official capacity, is authorized by law to make arrests and who is a member of ⁵¹ one of the following law enforcement agencies[,]” including the State Police. 3 Section 727(c) further stated that a “ ‘law enforcement officer’ does not includef,]” among other things, “an officer serving in a probationary status except when allegations of brutality in the execution of his or her duties are made involving an officer who is in a probationary status.... The term ‘probationary status’ includes only an officer who is in that status upon initial entry into the Department.” 4 The LEOBR applies only to police disciplinary matters, and preempts all other conflicting statutes on that subject: [T]he provision of this subtitle shall supersede any State, county, or municipal law, ordinance, or regulation that conflicts with the provision of this subtitle, and any local legislation shall be preempted by the subject and material of this subtitle.

Art. 27, § 734B. 5 The State Police is a principal department of Maryland State government. 6 It was created in 1935, upon enactment of the State Police Act (“SPA”). At the time relevant to this case, the SPA was codified at Md.Code (1998, 2002 Suppl.), Article 88B, sections 1 through 80. 7 The State Police is charged with the “general duty to safeguard the lives and safety of all persons within the State, to protect property, and to assist in securing to all persons the equal protection of the laws.” Art. 88B, § 3. 8 The State Police is supervised and managed by a Secretary (formerly ⁵² designated the Superintendent), who reports directly to the Governor. Art. 88B, § 14. 9 Among the Secretary’s powers are those to establish standards, qualifications, and prerequisites of character, training, education, and experience for all employees (section 15(b)(4)); to establish ranks, grades, and classifications of employment and determine the authority and responsibilities of each (section 15(b)(5) and (6)); to appoint, promote, reduce in rank or classification, reassign, reclassify, retire, and discharge all employees as prescribed by law (section 15(b)(7)); to regulate attendance, conduct, training, discipline, and procedure for all employees (section 15(b)(8)); and to provide systems for periodic performance evaluation and improvement of employees (section 15(b)(9)). 10 Some of the State Police’s employees are “police employees,” Art. 88B, § 2(4), who are assigned law enforcement powers authorized by statute. Art. 88B, § 4. 11 Under section 18, “[a]ll police employees, including persons appointed to the [State Police] for training prior to regular assignment as a police employee, shall remain in a probationary status for a period of two years from the date of appointment to the [State Police].” 12 Thus, the 24-month probationary period established in the Agreement between Mohan and the State Police was in accordance with the probationary period set by the General Assembly, by statute.

Further, under Art. 88B, section 18, during the probationary status, the Secretary may discharge the police employee for any cause that, in his sole discretion, he deems sufficient. The MPTC is an agency within the Maryland State Department of Public Safety and Correctional Services. At the pertinent time in this case, the statutes governing the MPTC ⁵³ were set forth in the Police Training Commission Act (“PTCA”), Md.Code (1997, 2002 Suppl.), Article 41, section 4-2Q1. 13 The MPTC has powers and duties over police training, including establishing police training schools, setting standards for the schools and police training courses, establishing curriculum and courses of study, and inspecting the schools. Art. 41, § 4-201(d). 14 In addition, the MPTC has authority to certify police officers who have satisfactorily met its training standards.

Art. 41, § 4-201(d)(6)(i). 15 Pursuant to Article 41, section 4-201(a)(6), a “permanent appointment” takes place when a police officer has satisfied the MPTC’s minimum standards and has been certified by it as a police officer. 16 A person seeking a permanent appointment, but not yet qualified, may be given a probationary appointment as a police officer, for a period not exceeding one year, to enable him to complete the training necessary to accomplish the permanent appointment. Art. 41, § 4-201(e). 17 A person may not be given or accept a permanent or probationary appointment as a police officer unless he satisfactorily meets the qualifications established by the MPTC. Art. 41, § 4-201(f). 18 The MPTC also has authority to adopt necessary or appropriate rules and regulations. Art. 41, § 4 — 201 (d)(11). 19 In COMAR 12.04.01.01(13)(a), promulgated pursuant to that authority, “probationary period” is defined to mean “a period of a maximum of 365 days[,]” under Article 41, section 4-201, “(i) ⁵⁴ [d]uring which a pólice officer with a provisional certification ... may perform [his] duties while obtaining the training specified in this chapter; and (ii) [w]hich ends the earlier of 365 days or upon completion or mandated training.” Subsection (13)(b) further explains, however, that “ ‘[probationary period’ does not relate to or restrict a probationary period that may be imposed by the hiring agency.” Analysis Mohan contends that the circuit court committed legal error when it interpreted the phrase, “an officer serving in a probationary status ... upon initial entry to the Department,” in section 727(c) of the LEOBR, to include an officer who holds a permanent appointment from the MPTC, but is in a probationary status as a police employee of the State Police.

He maintains that once a police officer has been certified for permanent appointment by the MPTC, he no longer is an officer “in a probationary status,” for purposes of the LEOBR, even if he is in a probationary status with the law enforcement agency employing him. His contention is founded primarily upon Moore v. Town of Fairmount Heights, 285 Md. 578 , 403 A.2d 1252 (1979), in which the Court of Appeals held that a police officer who had failed to complete a requii*ed police academy training course, and therefore was not qualified for “permanent appointment” under the PTCA, also was not a “law enforcement officer” within the meaning of the LEOBR. A more detailed discussion of Moore is required to fully understand Mohan’s contention in the case at bar. In 1970, Moore was employed as a police officer by the Town of Fairmount Heights.

He left in 1974, but was rehired in 1976. Thereafter, he attempted to complete a required police academy training course. When police academy officials discovered that Moore had tried to cheat on a training examination, he was not allowed to proceed with the course. Eventually, he withdrew from the academy.

The Town terminated Moore from employment as a police officer for, among other reasons, failing to complete the police academy training course. ⁵⁵ Moore challenged his termination, and demanded a hearing under the LEOBR. That demand was denied on the ground that, at most, Moore was “in a probationary status” and therefore did not qualify as a “law enforcement officer” under the LEOBR. In an action by Moore for declaratory and injunctive relief, the circuit court agreed with the Town. The Court of Appeals took the case directly, and affirmed the judgment.

In determining Moore’s status vel non as a “law enforcement officer,” under the LEOBR, given that he had not completed the required police academy training program, the Court looked not only to the language of the LEOBR but also to the language of the PTCA, which then was codified at Md.Code (1976, 1978 Supp.), Article 41, section 70A. It did so because statutes addressing the same topics should be construed harmoniously, to give each their full effect. Moore, supra, 285 Md. at 585 , 403 A.2d 1252 (citing Police Comm’r v. Dowling, 281 Md. 412, 418 , 379 A.2d 1007 (1977)). See also Navarro-Monzo v. Washington Adventist Hosp., 380 Md. 195, 204 , 844 A.2d 406 (2004).

The Court read sections 70A(e) and (f) of the PTCA, the predecessor statutes to sections 4-201(e) and (f), to mean that a police officer who has not met the training requirements established by the MPTC, including successful completion of a police training course, cannot be issued a permanent appointment certificate and therefore is not qualified to serve as a police officer at all. It noted that the only probationary status recognized by the PTCA is the one-year grace period in which an officer seeking a permanent appointment may engage in the training necessary to accomplish that goal. Reading the statutes harmoniously, the Court reasoned that, because Moore was not qualified to serve as a permanent police officer under the PTCA, he also was not in a non-probationary status, for purposes of the LEOBR. Therefore, Moore was not a “law enforcement officer” under the LEOBR.

The Court also addressed an argument by Moore that, because he was employed by the Town until 1974, and then ⁵⁶ reemployed by the Town in 1976, he was not in a probationary status “upon initial entry into the Department,” as that phrase is used in section 727(c). In other words, it was Moore’s contention that, because his initial entry onto the Town’s police force occurred in 1970, he could not be in a probationary status upon re-entry into the Town’s police force in 1976. In rejecting that argument, the Court explained that the phrase “upon initial entry into the Department” operated to “protect permanent officers who receive transfers or promotions, precluding giving them probationary status in their new assignments. However, the clause would have no application to those persons who never attained permanent status because they had failed to complete an approved training course.” Moore, supra, 285 Md. at 585 , 403 A.2d 1252 .

In the case at bar, Mohan argues that, under Moore , a person who is in permanent status as a police officer, under the PTCA, is not “in a probationary status” under section 727(c) of the LEOBR, even if he is in a probationary status with his employing law enforcement agency. As Mohan puts it in his brief, “the essence of the Moore holding is that, in the LEOBR, ‘probationary status’ refers only to those police officers who have not successfully completed the MPTC training course and have not been certified by that Commission.” (Emphasis in original.) Thus,