Montgomery County v. Krieger

DAVIS, Judge. This is an appeal from an August 21, 1995 Order of the Circuit Court for Montgomery County reversing a decision of the Chief of the Montgomery County Police Department to punish administratively appellee Linda A. Krieger, a Montgomery County police officer. Although appellant Montgomery County (County) has presented us with three questions for review, we believe that the resolution of this appeal essentially boils down to two questions, which we restate as follows: I. Was the administrative disciplinary action taken against appellee in violation of principles of double jeopardy?

II

Was the administrative disciplinary action taken against appellee in violation of Maryland’s Law Enforcement Officers’ Bill of Rights [LEOBR]? Responding in the negative to these questions, we reverse the judgment of the circuit court. ⁷²¹ FACTS The facts are largely undisputed. On October 3, 1994, appellee fueled her police cruiser at the fuel site of the Seven Locks Maintenance Facility—a county-owned facility. While she was pumping gasoline into the cruiser, appellee heard a radio dispatch for another motor unit to respond to an accident involving property damage.

Appellee notified the dispatcher that she would assist that unit with the call and then continued to fuel the cruiser. Shortly thereafter, the radio dispatch was upgraded to a personal injury accident authorizing a “code 3 emergency” response. 1 In appellee’s words, the following then happened: I then left the gas pumps abruptly at that point because I had to go red light and siren to the accident. At that point I must of heard a noise and looked in my rear view mirror and I saw the gas pump nozzle and hose fly up in the air and obviously then I stopped and went back and realized that I had left the pump action in my car before I took off. As a result of pulling away without removing the fuel hose nozzle from her car, the nozzle was damaged.

The grand total for repairing the nozzle was $414. Later that day, appellee reported the incident to her supervisor, Corporal Paul Sterling, and Sterling issued a Memorandum of Notification to appellee advising her that certain documents relating to the incident would be placed in her personnel file. These documents were: (1) a “Motor Vehicle Accident or Loss Notice,” (2) a Supervisor’s Incident Investigation Report (SUR), and (3) a Form 242 Internal Investigation Notification (first Form 242). 2 Appellee signed the ⁷²² Memorandum of Notification, the SIIR, and the Form 242. Appellee handwrote the words “under duress” immediately below her signatures on each of these documents.

Of particular interest in this case is the SIIR dated October 3, 1994. The SIIR is a County government form, the heading of which states: “Montgomery County Government Department of Finance • Division of Risk Management.” The record indicates that the SIIR is not restricted to police use. The SIIR is evidently used for documenting incidents involving damage to County property or injury to County personnel. In this case, it appears that both Sterling and appellee recorded on the SIIR all of the relevant information pertaining to the damage to the fuel hose nozzle.

At a section of the SIIR calling for a description of the incident in the “Employee’s Words,” appellee provided a handwritten explanation of the incident. Appellee signed her name “under duress” beneath this explanation. In another section calling for the supervisor to explain the steps “taken to prevent a recurrence,” Sterling handwrote the word “Counseled.” The record reflects that the October 3, 1994 incident was not the first time appellee drove away without removing the fuel hose nozzle from her cruiser. In this regard, the record contains a SIIR dated January 20, 1994, which reveals that appellee accidently failed to remove the fuel nozzle from her vehicle before pulling away from the pump station on January 20, 1994.

As with the October 3, 1994 SIIR, the January 20, 1994 SIIR indicates that appellee was counselled to prevent a recurrence of the accident. ⁷²³ On October 11, 1994, appellee received another Form 242 (second Form 242) regarding the nozzle incident. On this form, Lieutenant David Buchanan is designated as the investigating officer. The form further indicates that the “nature of the investigation is: FACTS AND CIRCUMSTANCES SURROUNDING THE REFUELING OF YOUR POLICE VEHICLE AND DAMAGE DONE TO THE FUEL PUMP NOZZLE/VEHICLE AT SEVEN LOCKS GARAGE REFUELING STATION ON OCTOBER 3, 199L” (Italicized indicates Buchanan’s handwriting). Appellee signed the second Form 242, but did not indicate that her signature was “under duress.” In all other respects, the second Form 242 is identical to the first Form 242.

On November 2, 1994, Buchanan conducted a tape recorded interrogation of appellee. A Fraternal Order of Police representative represented appellee during the interrogation. During the interrogation, the following exchange between Buchanan and appellee’s representative occurred: BUCHANAN: The first [Form] 242 that I have here was dated 10/3/94 and it appears to be from Cpl. Paul Sterling of the Rockville District, Shift 3.

REP.: And this [Form] 242 is investigating the events, what transpired with [appellee] reference a gas pump and her cruiser at Seven Locks? BUCHANAN: That’s correct. REP.: So it’s the same incident in which you are investigating that had already been investigated by Cpl. Sterling?

BUCHANAN: At least investigated enough for this SIIR, that is correct. REP.: It was investigated by Cpl. Sterling. It is my understanding and we have written documentation that Cpl.

Sterling orally admonished [appellee]. There is ... documentation in the SIIR report that indicates that she was counselled, it’s inserted in her personnel file, is a form of punishment and it is our belief ... [that] this investigation being continued by you is a violation of [LEOBR].... ⁷²⁴ BUCHANAN: I understand your objection to this. I’m looking at the SIIR dated 10/3/94, it does indicate that she was counselled. Counselling is not a form of punishment[.] [Therefore, there has been no punishment ... so I would disagree with you in that area[.] [HJenceforth the investigation will proceed.

Ultimately, on December 7, 1994, Major Carol A. Mehrling, the Acting Chief of Police, issued a memorandum to appellee informing her that the allegations against her—namely that appellee failed to take proper care of equipment and failed to adhere to a departmental directive reminding officers to remove the gas nozzle before driving away—were sustained, and that her punishment would be a $400 fine. Refusing to accept this action, appellee requested an administrative hearing. Accordingly, an Administrative Hearing Board (Board) was convened on March 24, 1995. The formal allegations against appellee for the Board’s consideration were as follows: ALLEGATION 1 MAINTENANCE OF PROPERTY DEPARTMENT RULES, FUNCTION CODE 300, III, RULE 17 A. “EMPLOYEES WILL BE HELD ACCOUNTABLE FOR THE PROPER CARE, USE AND MAINTENANCE OF ALL UNIFORMS, VEHICLES, WEAPONS/FIREARMS, AND EQUIPMENT IN THEIR CHARGE.” SPECIFICATION: TO WIT: Department of Transportation alleges that on October 3,1994, the respondent drove away from the Seven Locks refueling site without removing the gas nozzle from the vehicle tank, causing damage.

ALLEGATION 2—CONFORMANCE TO LAW DEPARTMENT RULES, FUNCTION CODE 300, III, RULE 1. “EMPLOYEES ARE REQUIRED TO ADHERE TO DEPARTMENTAL RULES AND REGULATIONS, DEPARTMENTAL DIRECTIVES AND MEMORANDUMS [sic], MONTGOMERY COUNTY PERSONNEL REGULATIONS, COUNTY ADMINISTRATIVE PROCEDURES, EXECUTIVE ORDERS, MONTGOMERY ⁷²⁵ COUNTY CODE, AND TO CONFORM TO ALL LAWS APPLICABLE TO THE GENERAL PUBLIC.” Reference: Departmental Directive, Function Code 421.C, Vehicle Maintenance/Care, III K.4. “ALL OFFICERS ARE REMINDED TO REMOVE THE GAS NOZZLE AND REPLACE IT BEFORE DRIVING AWAY FROM THE FUEL SITE.” SPECIFICATION: TO WIT: On October 3, 1994, respondent drove away from the Seven Locks réfueling station without removing the gas nozzle from the vehicle tank, causing damage to the gas hose. During the March 24, 1995 hearing, the Board heard testimony from various individuals and received evidence. Sterling was one of those who testified. With respect to his “Counseled” remark on the October 3, 1994 SIIR, Sterling explained, “I just spoke to her regarding the importance of paying more attention when fueling up her vehicle and leaving the pumps, to make an effort in the future to make sure that before she pulls away, that the nozzle is not in the filler spout on the vehicle.” Following the hearing, the Board issued a memorandum dated March 27, 1995 to Mehrling.

This memorandum contains the Board’s findings of fact and concludes that appellee was guilty of both allegations. Moreover, the Board recommended to Mehrling that disciplinary action should be in the form of “loss of pay in the amount of $150.” Mehrling concurred with the Board’s recommendation of a “fine of $150.00,” and ordered appellee that the “fine must be paid no later than May 15,1995, or Payroll Deduction papers executed by that date.” We shall refer to Mehrling’s decision as the Chiefs final decision. Unsatisfied with this outcome, appellee filed a petition for judicial review in the Circuit Court for Montgomery County. On appeal, appellee argued that the Chiefs final decision must be reversed for essentially two reasons.

First, appellee contended that the Chief was without legal authority to levy a fine against her as a form of punishment for this infraction. Second, appellee asserted that LEOBR and principles of ⁷²⁶ double jeopardy prohibit successive penalties for the same incident. In this regard, appellee maintained that the $150 fine was an illegal successive punishment—the first punishment allegedly being the counselling and placement of the aforementioned documentation in her personnel file. The County responded that neither counselling nor the placement of the documentation in appellee’s record constituted punishment as contemplated under LEOBR or the constitutional doctrine of double jeopardy.

Additionally, the County argued that the Chiefs final decision—whether considered to be the docking of pay or the levying of a fine—was legally authorized. On August 10,1995, the circuit court heard argument on the petition for review. At the conclusion of the hearing, the circuit court ruled that the placement of the documents in appellee’s personnel file constituted punishment. As a result, the circuit court considered the events following the issuance of the initial Form 242 as a second prosecution and the $150 fine as a second penalty.

This, according to the circuit court, “constitutes violation of the principles of double jeopardy, which I do believe apply to these types of actions.” Accordingly, the circuit court reversed the Chiefs final decision. In so doing, however, the circuit court expressly declined to determine whether the levying of a monetary fine was authorized. 3 From the circuit court’s order, the County appealed to this Court. DISCUSSION Before addressing the merits of this appeal, it shall prove useful to present a brief overview of LEOBR. In Maryland ⁷²⁷ State Police v. Resh, 65 Md.App. 167, 173-74 , 499 A.2d 1303 (1985), we explained: The LEOBR was enacted in 1974 by the General Assembly to ensure that law enforcement officers were accorded certain procedural guarantees during any investigation and subsequent hearing which could result in a disciplinary sanction.

Section 728(b) of the LEOBR provides: “Whenever a law-enforcement officer is under investigation or subjected to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or interrogation shall be conducted under the following conditions.... ” This subsection of the statute then enumerates 14 conditions under which the interrogation or investigation shall be conducted. These include: restrictions as to the time, place, and length of the interrogation (subsections one, two and six); a requirement that the officer under investigation be given the names of all persons at the interrogation (subsection three); a provision against threats of dismissal but not against the requirement of blood alcohol tests or other tests (subsection seven); and provisions regarding the keeping of records, and prohibitions against the insertion of adverse materials into the officer’s file without giving the officer an opportunity to review the material (subsections eight and twelve). Other procedural safeguards accorded to law enforcement officers include the right to counsel at an interrogation (subsection 10), and a provision that an officer may not be prohibited from bringing a suit arising out of his official duties (subsection 11). (Citations omitted).

Although LEOBR has undergone several changes since our decision in Resh , those changes are relatively insubstantial. We shall address one other matter before reaching the merits of this appeal. In her brief to this Court, appellee asserts that an examination of the circuit court’s oral ruling reveals that the circuit court did not determine that the Chiefs final decision was an illegal successive punishment (which was the product of an illegal successive investigation) ⁷²⁸ in violation of constitutional double jeopardy principles, but rather that it was in violation of LEOBR. Furthermore, appellee states that “neither party below, at the administrative hearing or in the Circuit Court proceedings, ever argued the merits of a constitutional violation.” 4 Because there is a degree of uncertainty regarding whether the circuit court’s order was based on double jeopardy principles or LEOBR, and because the parties on this appeal have thoroughly briefed and presented arguments under both grounds, we shall address the merits of each.

I The prohibition against double jeopardy is applicable in Maryland as a common law principle and under the Fifth Amendment of the U.S. Constitution. Johnson v. State, 95 Md.App. 561, 566 , 622 A.2d 199 (1993). “The Double Jeopardy Clause of the Fifth Amendment provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ ” Ward v. Department of Pub. Safety & Correctional Sews., 339 Md. 343, 350 , 663 A.2d 66 (1995). The Double Jeopardy Clause protects against multiple prosecutions and multiple punishments for the same offense.

Id. Specifically, double jeopardy grants three protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. Johnson, 95 Md.App. at 566 , 622 A.2d 199 . Although double jeopardy protection has historically been associated with criminal cases, id., the Court of Appeals in Ward recently addressed, through dicta, double jeopardy in a factual context somewhat similar to the instant case.

In Ward , a correctional officer argued that “the Secretary of Personnel cannot suspend him for an incident and then file charges for removal based on ‘exactly the same incident.’ ” ⁷²⁹ Ward, 339 Md. at 349 , 663 A.2d 66 . According to the officer, the initial suspension and later termination for the same infraction violated the so-called principle of “administrative double jeopardy”—a principle purportedly embodied in the Fifth Amendment. Id. At oral argument before the Court of Appeals, the officer abandoned this constitutional argument, but the Court nevertheless addressed it “for the sake of clarity.” Id.

Ward explained that in U.S. v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989), the Supreme Court of the United States concluded that the government can impose punishment, not only in criminal proceedings, but also in civil proceedings. Id. at 350, 663 A.2d 66 . Ward further explained that determining whether a particular civil sanction constitutes punishment within the contemplation of the Double Jeopardy Clause depends on whether the purpose of the penalty is retribution or deterrence. Id.

(citing Halper, 490 U.S. at 448 , 109 S.Ct. at 1901-02 ). If the purpose is retribution or deterrence, the sanction is a punishment; if, however, the purpose is remedial, the sanction is not a punishment. Id. Applying these principles, the Court rejected the officer’s “administrative double jeopardy” argument, holding that the officer was not punished within the contemplation of the Double Jeopardy Clause.

Id. at 350-51, 663 A.2d 66 . In this regard, the Court held: The Division of Correction, like any employer, must maintain control over its employees. To this end, the Division has established standards of conduct and published them to its employees. The standards would have no meaning, force or effect if there were no penalty for their violation.

Thus, the Division has established a system of progressive discipline. Common sense dictates that this discipline is imposed to ensure that employees adhere to the established standards of conduct. Indeed, the foreword to the regulation states that “discipline shall be progressive in nature and, in combination with specific training, shall aim at correcting inappropriate employee behavior.” Because the ⁷³⁰ discipline is not imposed for the purpose of punishment, the principles of double jeopardy simply do not apply. Id. 5 Similarly, our focus in Johnson involved the nature of the civil sanction.

Therein, we rejected the double jeopardy argument of a drunk driving defendant whose driver’s license had been administratively restricted in advance of his criminal conviction. In so doing, we held: The purpose of [the license suspension statute] is to protect other drivers on the road from those who would drive while intoxicated and to deter those who would otherwise decide to drive drunk. While the statute is also aimed at sanctioning the offending driver, that is not its primary purpose. Moreover, the mere fact that the suspension of driving privileges may carry the “sting of punishment” is immaterial. “[C]ases have acknowledged that ... even remedial sanctions carry the sting of punishment.” ^ ^ Appellant was deprived of a valuable right when the administrative judge issued him a restricted license.

He was not, however, subject to criminal punishment for the same offense under the Double Jeopardy Clause. Id. at 572-73 , 622 A.2d 199 (citations omitted). With these fundamental principles in mind, we turn our attention to the disposition of the first question presented. Appellee argues that she was subjected to an illegal successive punishment arising out of an illegal successive investigation in ⁷³¹ violation of double jeopardy.

According to appellee, her first punishment came in the form of counselling and the placement into her file of the aforementioned documents; and her second punishment came in the form of the Chiefs final decision to fine her $150. Also, according to appellee, she was subjected to an initial “prosecution” commencing with the first Form 242 and culminating with the alleged first punishment; and was subjected to a subsequent “prosecution” commencing with the second Form 242 and culminating with the Chiefs final decision. Like the correctional officer in Ward , appellee seems to suggest that double jeopardy protection applies in this case under the so-called principle of “administrative double jeopardy.” According to appellee, “administrative double jeopardy” is an “accepted concept” in the labor law field. In support of this assertion, appellee has directed our attention to several published opinions of arbitrators, wherein “administrative double jeopardy” was applied to preclude an employer from twice punishing an employee for the same incident.

For example, in In re City of Kenosha, 76 Lab. Arb. Rep. 758, 759 (1981), the arbitrator explained: In industrial relations, the doctrine of double jeopardy means that if an employe [sic] is punished for a specific act, he is entitled to regard such punishment as final for that particular misconduct. However, there is arbitral precedent for a definite suspension followed by an investigation resulting in discharge or the withdrawal of discipline as not constituting double jeopardy.

Lastly, an employe [sic] may not be given a written reprimand subsequent to an oral reprimand for the same offense when the oral reprimand was intended as a final disposition of the disciplinary matter. (Emphasis added & footnotes to arbitration decisions omitted). Appellee also directs our attention to In re Int’l Harvester Co., 16 Lab. Arb.

Rep. 616 (1951), wherein the arbitrator explained that he was empowered to apply the doctrine of double ⁷³²