Ocean City Police Department v. Marshall

JAMES R. EYLER, Judge. This appeal arises out of disciplinary action taken by the Ocean City Police Department, appellant, against Sergeant Dale Marshall, appellee, an officer in the department. On January 8, 2002, appellee apprehended a bank robber. Subsequently, he received notice that he was under investigation with respect to “actions prior to and after the capture.” ¹¹⁷ Appellee appeared for scheduled interrogations on two occasions and refused to answer any questions because appellant would not provide him with additional information with respect to the nature of the complaint.

Consequently, appellant, through its chief, sanctioned appellee for violating departmental rules on “Professional Courtesy” and “General Conduct/Courtesy,” and suspended appellee from work for sixty-four hours without pay. Appellee sought review of the decision in the Circuit Court for Worcester County. The circuit court, interpreting the provision in the Law Enforcement Officer’s Bill of Rights (LEOBR), requiring that appellee be informed in writing of the “nature of the investigation” prior to interrogation, held that the notice provided by appellant was insufficient. Thus, the court held that the resulting discipline occurred in violation of the LEOBR.

We shall affirm the decision of the circuit court. Facts In 2002, appellee had been working for appellant lull time for 29 years. Tn 1980, he was promoted to Sergeant. On January 8, 2002, appellee was instrumental in apprehending a bank robber on 47th Street and the beach, in Ocean City.

On April 24, 2002, appellee was asked to meet with Lt. Richard J. Currence (Lt. Currence), at which time he was given a “Notification to Accused of Complaint” (the Notification). The Notification was a printed form, with handwriting, as set forth below.

The Notification provided: Be advised that a complaint has been lodged concerning a situation in which you were alleged to have been involved. The details of the complaint as they are known are as follows: On January 8, 2002 you were involved in capture-ing [sic] a suspected, bank robber. This occurred at U7th and the BEACH, O.C. M.I). Your actions prior to and after the capture ham corns into question.

You are further advised that other issues may arise concerning this complaint as the investigation progresses, at which time you will be informed as to their nature. * * * You have the right to ¹¹⁸ be represented by an attorney or any other responsible representative of your choice. Should you desire representation, advise your attorney or other representative of your interview, [italics indicate handwriting]. Lieutenant Currence asked appellee to sign the Notification, and appellee refused, stating: “I am not signing anything. I haven’t done anything wrong.” Appellee also stated that he was represented by counsel, whom he identified as Damon Trazzi.

Appellee referenced a worker’s compensation claim previously filed by him and stated that he told his attorney “when we started” that the “Mayor and Council would try something.” Apparently, Mr. Trazzi represented appellee with respect to the worker’s compensation claim, and appellee believed that the investigation was somehow related to the filing of that claim. Lieutenant Currence wrote on the form that appellee refused to sign, and scheduled an interrogation date for May 22, 2002. Appellee indicated that he intended to call his attorney the following day. At the interrogation on May 22, 2002, appellee said he had been unable to contact his attorney, and the interrogation was rescheduled for May 29, 2002, so that appellee could obtain representation.

Appellee was informed that the interrogation would go forward on May 29th, with or without counsel. On May 26, 2002, appellee wrote a memo to Lt. Currence advising that he had spoken to Mr. Trazzi the day before. Appellee stated that Mr. Trazzi would not take the case because he did not know enough about the LEOBR, and Mr. Trazzi suggested he seek advice from another attorney.

Ap-pellee then gave Lt. Currence the name of another attorney whom he planned to contact. On May 27th, appellee contacted Peter Wimbrow, III, an attorney, and scheduled a meeting with him on May 29th at 10:30 a.m. On May 29, the day of the interrogation, appellee sent a memo to Lt.

Currence, stating that he could not make the interrogation because his attorney could not meet before that time. Lieutenant Currence ordered appellee to appear, via police radio. Appellee did so but refused to answer any ¹¹⁹ questions without his attorney present, even though Lt. Cur-rence ordered him to answer.

Appellee received a Reprimand and Disciplinary Action Report as a result of the May 29th meeting. The report recited a violation of departmental rules relating to courtesy and general conduct, for failing to answer questions, and suspended appellee without pay for sixty-four hours. After appellee met with Mr. Wimbrow, Mr. Wimbrow sent a letter, dated May 29, 2002, to Lt. Currence, advising him that appellee would appear for an interrogation if appellee were advised of the allegations against him.

Lt. Currence responded by letter, dated June 4, 2002, stating that charging documents had been prepared for failure to submit to the May 29 interrogation. The letter advised that another interrogation had been scheduled for June 19, 2002, but declined to provide additional information. Appellee’s counsel replied by letter dated June 11th and requested that the interrogation be scheduled for the afternoon of June 19, as he had a court appearance scheduled for the morning or, in the alternative, rescheduled for any other morning of that week.

The request was granted, and it was scheduled for the afternoon. On June 19, 2002, appellee appeared for the interrogation, with counsel, and once again refused to answer any questions. Subsequently, appellee received another Reprimand and Disciplinary Action Report. The report recited a violation of the same departmental rules, for failing to answer questions on June 19, and reduced appellee’s rank from sergeant to police officer, first class.

Pursuant to appellee’s request for a hearing, a three member hearing board was formed. The board held a hearing on August 9, 2002. Appellee was represented by counsel. Evidence was presented by stipulation of the parties.

Following the hearing, the hearing board found that appellee had wrongfully refused to submit to interrogation on both days, May 29 and June 19, and upheld all charges, but recommended that appellee be disciplined by suspending him without pay for 8 ¹²⁰ days. Appellant, acting through its chief, accepted the recommendation. On October 28, 2002, appellee filed a petition for judicial review in circuit court. After a hearing on August 18, 2003, the circuit court issued a written opinion and order dated September 9, 2003, reversing appellant’s decision.

The circuit court held that appellee had not been given sufficient information about the nature of the investigation, in violation of the LEOBR. Appellant noted this timely appeal. Questions Presented Appellant presents the following questions on appeal: I. Whether the trial court erred in finding that [appellee] was not “informed in writing of the nature of the investigation prior to ... interrogation.” II. Whether the trial court erred in finding that [appellee] had been disciplined “by reason as exercise of or demand for the rights granted him,” in violation of the Law Enforcement Officer’s Bill of Rights.

Standard of Review The Court of Appeals recently addressed the standard of review, in a similar situation, in Coleman v. Anne Arundel County Police Dept.: No statute expressly establishes the scope of judicial review of an administrative proceeding initiated by a county police department pursuant to the LEOBR. See Montgomery County v. Stevens, 337 Md. 471, 482 , 654 A.2d 877 (1995); Younkers v. Prince George’s County, 333 Md. 14, 17 , 633 A.2d 861 (1993)(noting that unlike the scope of review established under the State Administrative Procedure Act (APA) when a state police agency is involved, Md. Code (1984, 1993 Repl. Vol., 1993 Cum. Supp.), State Government Art., §§ 10-201-10-226, the LEOBR is silent as to a specified scope of judicial review in a disciplinary action involving a county police officer).

We have concluded that the scope of judicial review in a LEOBR case “is that generally ¹²¹ applicable to administrative appeals.” Stevens, 337 Md. at 482 , 654 A.2d 877 (quoting Younkers, 333 Md. at 17 , 633 A.2d 861 ). Thus, to the extent that the issue under review turns on the correctness of an agency’s findings of fact, judicial review is narrow. It is “ ‘limited to determining if there is substantial evidence’ in the administrative record as a whole ‘to support the agency’s findings and conclusions ...’” Id. (quoting United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 , (1994)).

See also Younkers, 333 Md. at 18-19 , 633 A.2d 861 ; Meyers [v. Montgomery County Police Dept.], 96 Md.App. [668] at 708-09, 626 A.2d 1010 . While “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts,” Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999), “we owe no deference to agency conclusions based upon errors of law.” State Ethics v. Antonetti, 365 Md. 428, 447 , 780 A.2d 1154 (2001). See Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 267 , 734 A.2d 227 (1999); Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749 (1998). 369 Md. 108, 121-22 , 797 A.2d 770 (2002). When this Court reviews an administrative decision, we perform precisely the same role as the circuit court.

Stover v. Prince George’s County, 132 Md.App. 373, 380-81 , 752 A.2d 686 (2000) (citing Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-304 , 641 A.2d 899 (1994)). We look only at “the decision of the agency, not that of the circuit court.” Lucas v. People’s Counsel for Baltimore County, 147 Md.App. 209, 225 , 807 A.2d 1176 (2002) (citing Carriage Hill-Cabin John, Inc. v. Maryland Health Resources Planning Comm’n, 125 Md.App. 183, 211 , 724 A.2d 745 (1999)). Ordinarily, a reviewing court is constrained to affirm the agency decision only for the reasons given by the agency. See United Steelworkers of America v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 , 83 S.Ct. 239 , 9 L.Ed.2d 207 (1962)) (“[A] simple but ¹²² fundamental rule of administrative law ... is ... that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”); accord SEC v. Chenery Corp., 318 U.S. 80, 88 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943); Eastern Outdoor Adver.

Co. v. Mayor & City Council of Baltimore, 128 Md.App. 494, 516 , 739 A.2d 854 (1999). Where it is a pure question of law, however, “the reviewing court ‘may substitute its judgment for that of the [administrative agency].’ ” Miller v. Board of Educ., 114 Md.App. 462, 466 , 690 A.2d 557 (1997) (citing Gray v. Anne Arundel County, 73 Md.App. 301, 309 , 533 A.2d 1325 (1987)). Discussion We find it helpful to begin our analysis with a review of the relevant provisions of the LEOBR, currently codified at Md. Code, Public Safety, § 3-101 et seq., and derived without substantive change, to the extent relevant here, from former Md. Code (1957, 1996 Repl. Vol.), Article 27, §§ 727-734D.

The provision governing this case is former Article 27 § 728(b)(5)®. Section 728, in pertinent part, provided: Right to engage in political activity; investigation or interrogation of officer; officer’s right to sue; adverse material in the officer’s file. * * * (b) Procedure to be followed at interrogation or investigation; record; representation by counsel; statute or regulation abridging right to sue; insertion of adverse material into officer’s file; chief under investigation; polygraph examination. — ^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: * * * (5)(i)The law enforcement officer under investigation shall be informed in writing of the nature of the investigation prior to any interrogation. The relevant language currently appears at Md. Code, Public Safety, § 3-104(d)(2) and provides: ¹²³ Investigation or interrogation of law enforcement officer. * * * (d) Disclosures to law enforcement officer under investigation. — * * * (2) Before an interrogation, the law enforcement officer under investigation shall be informed in writing of the nature of the