Mohan v. Norris

HARRELL, J. We issued a writ of certiorari in this case to consider whether a police officer, although unconditionally certified by the Maryland Police Training Commission (“MPTC”), nonetheless is denied the protections of the Law Enforcement Officer’s Bill of Rights (“LEOBR”) during that officer’s initial probationary status as required by his or her employing police agency. For reasons to be explained, we conclude that such an officer, while in a probationary status with his or her police agency employer upon his or her initial hiring by that employer, is denied, as a result of that probationary status, the protections of the LEOBR, irrespective of his or her certification status with the MPTC. I. In December 1997, Andrew A. Mohan graduated from the Prince George’s County Police Municipal Academy and was hired as a police officer by the Town of Edmonston Police ⁶⁵ Department. Before assuming duties with that department, Mohan was issued a provisional certification card by the Maryland Police Training Commission. 1 Mohan remained in this provisional status while an officer with the Town of Edmonston until September 1998, when he departed to join the Town of Cheverly Police Department.

The MPTC issued Mohan a permanent certification card at this juncture. On 7 January 2002, Mohan was hired by the Maryland Department of State Police (“State Police”), and received a permanent certification card from the MPTC for this new employment. Two days later, he signed an “Agreement” with the State Police outlining the terms of his employment, which included a 24 month probationary period. 2 The probationary period, according to the Agreement, would be in effect during Mohan’s further training at the Maryland State Police Academy and would continue after his assumption of regular duties with the State Police. During this probationary period, Mohan was served on 29 July 2003 with two documents, each entitled “Maryland State Police Probationary Trooper Record of Disciplinary Action,” charging him with violating various rules, policies, and procedures of the State Police.

The documents informed Mohan that, as a result of the alleged infractions, he would be suspended summarily for a total of 11 days. Mohan requested that he be given a hearing on the charges pursuant to the rights outlined in the LEOBR, codified at the time at Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, §§ 727-734D (recodified, without substantive change, at Md.Code (2003), §§ 3- ⁶⁶ 101 — 3-113 of the Public Safety Article). His employer responded that the LEOBR excluded from its coverage probationary employees; therefore, Mohan was not entitled to its protections because, at the time of the alleged infractions, he was still a probationary employee of the State Police. On 13 August 2003, Mohan filed in the Circuit Court for Prince George’s County a complaint for an ex parte injunction and issuance of a show cause order against Colonel Edward T. Norris, then-Secretary of the Maryland State Police, and the Department.

A show cause order was issued and an expedited hearing held. Through the efforts of the trial judge, an Assistant Attorney General representing Secretary Norris and the Department was notified and appeared for the hearing, though no written answer was filed. There appearing to be no dispute as to facts material to the case, the hearing proceeded upon oral argument of counsel on the question of law presented. The trial judge ruled from the bench that Mohan was a probationary employee, as defined by the State Police Act, Md.Code (1957, 1998 Repl.Vol.), Art. 88B, § 18 (recodified, without substantive change, at Md.Code (2003), § 2-403 of the Public Safety Article), and was therefore not entitled to the protections of the LEOBR.

A confirming written order denying the injunctive relief was entered ultimately. The Court of Special Appeals affirmed the trial court’s judgment. Mohan v. Norris, 158 Md.App. 45 , 854 A.2d 259 (2004). Mohan petitioned this Court for a writ of certiorari, which we granted, 383 Md. 569 , 861 A.2d 60 (2004), to consider the following question: Did the Court of Special Appeals err in determining that a police officer, permanently certified by the Maryland Police Training Commission, may nonetheless be excluded from the protections of the Law Enforcement Officer’s Bill of Rights due to the officer’s probationary status as imposed by a hiring agency?

II

Mohan’s question is one of statutory interpretation and, as such, is purely a matter of law. Salomon v. Progres ⁶⁷ sive Classic Ins. Co., 379 Md. 301, 307 , 841 A.2d 858, 862 (2004). Our standard of review, therefore, is de novo.

Id.; see also Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 80-81 (2004) (stating that “[bjecause our interpretation of ... provisions of the Maryland Code ... are appropriately classified as questions of law, we review the issues de novo to determine if the trial court was legally correct in its rulings on these matters”).

III

Three statutory schemes are the foci of our analysis in this case. At the center of the controversy is the Law Enforcement Officer’s Bill of Rights (“LEOBR”), codified at the time of the proceedings below at Md.Code (1957, 1996 Repl.Vol., 2001 Supp.), Art. 27, §§ 727-734D (recodified, without substantive change, at Md.Code (2003), §§ 3-101-3-113 of the Public Safety Article). 3 The LEOBR was enacted in 1974 as the nation’s first comprehensive statutory scheme intended to provide certain procedural protections to “law enforcement officers,” as that term is defined in the statute, during any investigation, charging, and subsequent hearing that could lead to disciplinary sanctions. Baltimore City Police Dep’t v. Andrew, 318 Md. 3, 12 , 566 A.2d 755, 759 (1989); see also Byron L. Warnken, The Law Enforcement Officers’ Privilege Against Compelled Self-Incrimination, 16 U. Balt. L.Rev. 452, 489-98 (1987) (outlining the history and provisions of the LEOBR and chronicling the failed attempts in the U.S. Congress, prior to the enactment of the LEOBR in Maryland, to enact a national bill of rights for law enforcement officers).

These procedural protections include, among others, the right to be informed in writing of the nature of an investigation prior to any interrogation, the right to reasonable limitations on the structure, time, and place of an interrogation, the right ⁶⁸ to a complete written or transcribed record of any interrogation, the right to be notified of the name of any witness and all charges and specifications against the officer not less than ten days prior to any hearing, and the right to a copy of the investigatory file and any exculpatory information. § 3-104. If an investigation results in the recommendation of some disciplinary or punitive action against a law enforcement officer, the LEOBR, with limited exceptions, entitles an officer to a hearing before a hearing board composed of at least three other police officers. § 3-107. Procedures governing the hearing include the right to cross-examination and the power of the hearing board to compel the attendance of witnesses through subpoenas. Id.

If, after a hearing and a finding of guilt, the hearing board determines that a disciplinary or punitive sanction is appropriate, the board makes recommendations to the chief of police of the appropriate police agency, who then must review the recommendations and issue a final order within 30 days. § 3-108. A final order may be appealed to the local circuit court and, thereafter, to the Court of Special Appeals. § 3-109. If a law enforcement officer is denied any of the rights afforded by the LEOBR, he or she may apply to a circuit court for an order directing the law enforcement agency to show cause why a right should not be granted. 4 § 3-105. In 1977, the Legislature amended the LEOBR in order to deal with the relationship between it and other statutes providing alternative remedies for police officers facing disciplinary sanctions. 1977 Md. Laws, Chap. 366; Moats v. City of Hagerstown, 324 Md. 519, 526-27 , 597 A.2d 972, 975-76 (1991).

The new section provided: Except for the administrative hearing process provided for in [Article 41, § 4-201] concerning the certification enforcement power of the Police Training Commission[ 5 ] the provi ⁶⁹ sions of this subtitle shall supercede any State, county or municipal law, ordinance, or regulation that conflicts with the provisions of this subtitle, and any local legislation shall be preempted by the subject and material of this subtitle. 1977 Md. Laws, Chap. 366 (as amended by 1981 Md. Laws, Chap. 679) (recodified, without substantive change, at § 3-102). The Court in Moats relied on this language to conclude that the LEOBR was a law enforcement officer’s “exclusive remedy in matters of departmental discipline.” 324 Md. at 530 , 597 A.2d at 977 . This “exclusive remedy,” however, may be invoked only by a “law enforcement officer,” who, at the time of the LEOBR’s enactment, satisfies the definition of “any person who, in his official capacity, is authorized by law to make arrests and who is a member of’ any of a number of statutorily recognized police agencies, including the State Police. 1974 Md. Laws., Chap. 722 (codified, without substantive change, at § 3-101(e)). In 1975, the statute was amended to exclude expressly from the LEOBR’s coverage “an officer serving in a probationary status.” 6 1975 Md. Laws, Chap. 809.

That definition was further amended in 1977 to provide that the term “probationary status” would include “only an officer who is in that status upon initial entry into the Department.” 7 1977 Md. Laws, Chap. 366. ⁷⁰ The Department of State Police was created by the Legislature in 1935 upon the enactment of the State Police Act (“SPA”) (the second statute important to our analysis), and became a principal department of the Maryland State Government by virtue of an amendment to the SPA in 1994. 1935 Md. Laws, Chap. 303; 1994 Md. Laws, Chap. 165. At the time of the proceedings below, the SPA was codified at Md.Code (1957, 1998 Repl.Vol.), Art. 88B (recodified, without substantive change, at Md.Code (2003), §§ 2-101-2-703 of the Public Safety Article). 8 The SPA provides that the State Police “has the general duty to safeguard the lives and safety of all persons in the State, to protect property, and to assist in securing to all other persons the equal protection of the laws.” § 2-301(a). The affairs and operations of the State Police are supervised and directed by a Secretary, who is appointed by, and reports to, the Governor. § 2-202. The Secretary also is granted authority to “adopt rules necessary to ... promote the effective and efficient performance of the duties of the [State Police] [and to] ensure the good government of the [State Police] and its employees.” 9 § 2-205. ⁷¹ Since its initial adoption in 1935, the SPA has imposed a probationary period on all State police employees, 10 commencing with the date of their appointment to the State Police.

Md.Code (1935 Supp.), Art. 88B, § 10. Initially, the SPA provided for a probationary period of one year, during which the Superintendent (later Secretary) possessed authority to discharge police employees at his or her discretion. Id. In 1945, the probationary period was extended to two years. 1945 Md. Laws, Chap. 294.

Mohan’s argument relies heavily on the provisions of the Maryland Police Training Commission Act (“MPTCA”) (the third statutory scheme of significance to this case), codified at the time of his discipline at Md.Code (1957, 1997 Repl.Vol.), Art. 41, § 4-201 (recodified, without substantive change, at Md.Code (2003), §§ 3-201-3-218 of the Public Safety Article). 11 The MPTCA, originally enacted in 1966, establishes the Maryland Police Training Commission (“MPTC”) as an agency within the Maryland State Department of Public Safety and Correctional Services. § 3-202. The MPTC has authority and powers over all aspects of police training, including establishing and certifying police training schools, and prescribing the curriculum, eligibility requirements, and standards of operations at such schools. § 3-207. ⁷² The MPTC also possesses statutory authority to certify as police officers those individuals who “satisfactorily meet[ ] the standards of the [MPTC]” or an equivalent training program in another State. § 3-209. After an individual meets the MPTC’s minimum standards, as set forth in the MPTCA and regulations promulgated pursuant to it, he or she becomes certified as a police officer and receives a “permanent appointment” from the MPTC. § 3-215(a)(2). Without a certification by the MPTC, a person is prohibited, with limited exceptions, from being employed as a police officer by the State, a county, or a municipality. § 3-216; see Stanford v. Maryland Police Training and Corr.

Comm’n, 346 Md. 374, 390 , 697 A.2d 424, 431-32 (1997) (holding that “termination of employment [with a police agency] invalidates an individual’s certification as a police officer” under the MPTCA). The MPTC, however, also possesses the authority to grant a qualified individual a “probationary appointment” as a police officer for a period not to exceed one year “to enable the individual seeking permanent appointment to take a training course required by [the MPTCA].” § 3-215(c). The meaning of “probationary appointment” for MPTC purposes is further defined in the regulations adopted by the MPTC pursuant to the MPTCA. These regulations define “probationary period” as “a period of a maximum of 365 days under [§ 3-215(c)], Annotated Code of Maryland: (i) During which a police officer with a provisional certification ... may perform [his or her] duties while obtaining the training specified in this chapter; and (ii) Which ends the earlier of 365 days or upon completion of mandated training.” COMAR 12.04.01.01(13)(a).

The regulations add that the term “probationary period” “does not relate to or restrict a probationary period that may be imposed by the hiring agency.” Id. 12.04.01.01(13)(b). The MPTCA also contains a preemption provision similar to that found in the LEOBR. Section 3-218 of the MTPCA states that “[t]his subtitle supercedes any law, ordinance, or regulation of the State, a county, or a municipal corporation that conflicts with this subtitle.” ⁷³ IV. A. Mohan contends that the Court of Special Appeals erred in determining that, although he held a “permanent appointment” from the MPTC, he was nonetheless “in probationary status” for purposes of the LEOBR because, at the time of charging and summary discipline in this case, he occupied the status of a probationary employee under the SPA.

He claims that once an officer receives a “permanent appointment” from the MPTC, he or she no longer is “in probationary status” for purposes of the LEOBR. Support for his position is found, as the argument continues, in Moore v. Town of Fairmount Heights, 285 Md. 578 , 408 A.2d 1252 (1979), in which this Court interpreted the term “probationary” as used in both the LEOBR and the MPTCA. Mohan argues that Moore settled, once and for all, that “probationary status,” as used in the LEOBR, refers solely to the one year “probationary period” provided for in the MPTCA. We do not share his interpretation or agree with his application of that case. 1.

Moore concerned a police officer, Robert M. Moore, who first was hired by the Town of Fairmount Heights in May 1970. Although Moore was discharged by the Town in October 1974, he was reinstated in April 1976. In February 1978, Moore began a training course at the Prince George’s County Police Academy, the completion of which was a prerequisite for certification by the MPTC. One month later, Moore was accused of cheating on an examination at the police academy and was informed that he would be dismissed from the academy as a result of the accusation.

Moore withdrew from the academy. His employment with the Town of Fairmount Heights was terminated. After being denied by the Town a hearing under the LEOBR, Moore brought an action in the Circuit Court for Prince George’s County and requested a show cause hearing as to why the Town should not be re ⁷⁴ quired to provide him with such a hearing. The Circuit Court held that, because Moore had not completed the training course required for permanent certification, he was precluded from attaining a non-probationary status under the MPTCA and thus was ineligible for the protections of the LEOBR.

In reviewing the Circuit Court’s judgment, the Court of Appeals in Moore was called upon to interpret the meaning of the phrase “probationary status” in the LEOBR. Although the LEOBR did not define “probationary status,” the Court found instructive the definition of “probationary period” found in the MPTCA, which provided for a probationary period of up to 365 days during which a person seeking a permanent appointment was to complete a police training course. Id. at 582-83, 403 A.2d at 1254-55 . Moore argued that he could not be in a probationary status because he was never informed, by either his employer or the MPTC, that he was in a “probationary status” and that furthermore he had been employed by the Town as a police officer for more than 365 days.

The Court, however, concluded that, no matter how long the length of service with a particular agency, the language of the MPTCA led to one conclusion: “one cannot attain permanent status (and thus, non-probationary status) until he has finished the training course [mandated by the MPTCA].” 12 Id. (construing §§ 3-215(b)-(c)) (emphasis in original). 2. Mohan argues that the Court’s reliance in Moore on the MPTCA definition precludes the application of any other definition of “probationary status” in his case. He points specifically to the following language in Moore: [T]he reasonable interpretation of the clause [in the LEOBR], that probationary status includes only an officer in that status upon initial entry into the Department, is that ⁷⁵ it applies only to those who have once attained permanent status. 285 Md. at 585 , 403 A.2d at 1256 .

Because he obtained a permanent certification from the MPTC as a police officer in 1998, Mohan perceives that he is precluded from again being deemed “in probationary status” for purposes of the LEOBR. Mohan’s interpretation of Moore, however, represents a strained reading. In Moore, the Court was asked to determine how the “probationary period” found in the MPTCA was to be applied to the “probationary status” exclusion found in the LEOBR. Instead of linking the probationary provision in the LEOBR exclusively to the MPTCA, the language in Moore pointed to by Mohan merely represents the Court’s conclusion that a police employee, in a “probationary period” under the MPTCA, remains thus upon his or her initial entry into a particular police department until that employee attains a permanent appointment from the MPTCA.

Moore does not hold, contrary to Mohan’s arguments, that a permanently certified police officer is precluded from being placed “in probationary status,” within the meaning and purposes of the LEOBR, through the application of a probationary period imposed by a hiring agency. Moore sought simply to harmonize the two statutes, and thus analyzed only “probationary” as used in the MPTCA. Nowhere in Moore did we hold that the definition of “probationary” in the MPTCA was to be the exclusive definition or application of a probationary status for purposes of the LEOBR. 13 3. The Court in Moore also undertook to determine the meaning of the term “initial entry” as used in the LEOBR, in light ⁷⁶ of the meaning of “probationary appointment” as used in the MPTCA.

Id. at 585*, 403 A.2d at 1256 . Moore argued that because the definition of “probationary status” found in the LEOBR included “only an officer who is in that status upon initial entry into the Department,” he was not a probationary police officer because he initially entered the Town’s police department in 1970. The Court rejected that argument, reasoning that, although Moore’s eight years of probationary status were “highly unusual,” the Court was bound by the language in the MPTCA that clearly indicated a person could become an unconditional police officer only by completing the required training course. Id.

Despite Moore’s lengthy employment with the Town, the Court determined that his “initial entry” into the Town police department was when he was rehired in 1976. Id. The Court held that, at the time of his termination, Moore lacked the statutory qualifications for “permanent status,” and thus, through the mere passage of time, could not “attain such status by something analogous to a prescriptive right.” Id. The Court also rejected Moore’s argument for the reason that the Legislature could not have intended to sanction a system in which “a probationary police officer could, with the cooperation of his employer, obtain permanent status by the simple expedient of leaving his employment and then being rehired.” Id. ■ Mohan continues here by arguing that this aspect of Moore actually supports his position that once a person obtains a permanent certification as a police officer, he or she may no longer be considered an officer in a probationary status in his or her “initial entry into the Department.” Mohan finds comfort in the following language in Moore: In other words, [the clause limiting “probationary status” to those in that status “upon initial entry into the Department”]' would protect permanent officers who receive transfers or promotions, precluding giving them a probationary status in their new assignments.

Id. Again, he misinterprets the sense of the Court’s words. Although the Court recognized that the plain language of the ⁷⁷ MPTCA and the LEOBR did not resolve all issues relating to Moore’s status, the Court sought to interpret both statutes so as to give both full effect. Id.

Construing both statutes harmoniously, the Court found that, for purposes of the MPTCA, any police officer who does not achieve permanent status would remain in his or her “initial entry” into a department, and therefore “in probationary status,” until he or she achieves permanent status by meeting the relevant requirements of the MPTCA. Id. The Court concluded that, in light of this, once an officer attains permanent status, he or she is precluded from being placed “in probationary status” with regard to the MPTC upon a transfer or promotion within the same police agency. Id.

Mohan, however,, construes this language as suggesting that the “initial entry” provision in the LEOBR contemplates that a police officer will be “in probationary status” at only one time during his or her entire law enforcement career, no matter how many successive employers there may be — that is, when that officer is hired by his or her first law enforcement agency. Although Moore certainly narrowed the definition of “initial entry” with respect to those officers already hired by a singular agency, nowhere did the Court indicate that a police officer holding a permanent certification by the MPTC may not be placed in a “probationary status” as a result of being newly hired by a different or subsequent police agency. 14 ⁷⁸ We conclude, therefore, that, even though he was permanently certified by the MPTC, Mohan was in his “initial entry” into the employment of the State Police in January 2002. Although Mohan’s permanent status certainly prevented him from being placed again “in probationary status” for purposes of the MPTCA, such certification status was no barrier to being placed “in probationary status,” for purposes of the LEOBR, by his new police employer. B. Adopting Mohan’s interpretation and application of Moore as Hmiting “probationary status” in the LEOBR to the maximum one year probation defined in the MPTCA