Pollock v. Patuxent Institution Board of Review

ADKINS, Judge. This appeal is the latest attempt to resolve a long-standing dispute regarding the parole revocation of Michael Pollock, appellant. We must decide whether test results indicating the presence of marijuana in a urine sample allegedly supplied by Pollock should have been excluded due to the failure of staff at Patuxent Institution (“Patuxent”) to strictly follow Patuxent’s procedures for collecting and documenting urine specimens. After the Court of Appeals remanded for a decision on this question, the Circuit Court for Howard County held that the test results were properly admitted and considered by the Patuxent Institution Board of Review (the “Board”), appellee, both in deciding to revoke Pollock’s parole and in later deciding not to renew his expired parole order.

We shall affirm the circuit court’s decision. PACTS AND LEGAL PROCEEDINGS The Test Pollock, who killed a cab driver during an argument, was incarcerated in the Maryland Division of Correction as inmate number 4695 on November 23, 1971. He is serving a life sentence with the possibility of parole for first degree murder, plus two years consecutive for escape. In April 1980, Pollock was committed to Patuxent as a person eligible for Patuxent programs.

He became eligible for parole in December 1985, and was paroled in September 1988. Pollock’s most recent parole order was issued in June 1996, with an expiration date of May 1997. One condition of Pollock’s parole was annual urinalysis testing to determine whether he was in compliance with the “no drugs” and “obey all laws” requirements of his parole order. On May 15, 1997, Pollock arrived at Patuxent to submit a urine sample.

The specimen associated with Pollock tested positive for marijuana. According to Pollock, what ⁶⁰ happened during the collection and testing of this specimen requires exclusion of those test results. Sgt. A.P. Jones was on duty when Pollock arrived.

Jones completed the required “Request for Urinalysis Test” form, certifying that “Micheál [sic] Pollock” had verified his identity by “I.D. card.” Jones certified, by signing the form, that Pollock had submitted a urine specimen in my presence in a specimen bottle labeled with the inmate’s name and number and today’s date, and thereafter the inmate handed me the bottle. I thereafter sealed the bottle with evidence tape, and maintained exclusive possession and control of the bottle until I transferred it from my possession and control as indicated below:.... CHAIN-OF-CUSTODY OF SPECIMEN: From above-named inmate To APJones Date 5-15-97 Time 10:30 AM From AP Jones To Lock Refrigerator Date 5-15-97 Time 10:33 AM From Capt. L. Latham To P. Stuffey Date 5-15-97 Time 1:40 PM Apparently in an attempt to use Pollock’s inmate number as the number identifying Pollock’s urine specimen, Jones filled in the blank for “number” on that form with “4697.” (Emphasis added.) At the same time he obtained Pollock’s sample, Jones also completed another required Patuxent form, entitled “Incident Report.” Jones completed the “nature of incident” blank with the following handwritten note: On the above date and approx, time the above named inmate gave a urine sample for drug testing; The test was administered by this writer and observed by CO D[.] Taylor.

The sample was secured in the locked refrigerator in the infirmary.... Jones also used number 4697 on that Incident Report. A third form completed at the time Pollock submitted his urine sample, was entitled: ⁶¹ Friends Medical Laboratory Laboratory Testing Requisition Form This form identified Patuxent as the “Collection Site” for “7” different specimens, one collected on May 8, another on May 10, and five on May 15, 1997. Listed under the “Specimen Identity” column of this form were handwritten names of seven different inmates.

Each name appeared in a separately numbered box. The first line in each box identified the inmate’s name in manuscript with a corresponding inmate number. On the second line, appearing right below the manuscript name and inmate number, each inmate signed the form. “Michael Pollock #4669” is identified as the fourth specimen, dated “5-15-97,” and “collected by A.P. Jones & D. Taylor.” (Emphasis added.) In cursive, under his manuscript name and number, Michael Pollock signed his name and correctly identified himself as “#4695.” (Emphasis added.) The form indicates “Capt. L. Latham” “released” the specimens to a courier from Friends Medical Laboratory (“Friends”) on “5/15/97” at “1:35 pm.” and authorized Friends to test the specimens.

The next day, on May 16, 1997, Friends tested a urine sample received on “05/15/97” that it identified as belonging to “Client: Pollock, Michael 4669.” (Emphasis added.) The results of this test showed that the sample was positive for marijuana. Friends faxed a copy of the test results to Patux-ent on May 19,1997. A parole revocation warrant was issued immediately. On May 20, Pollock surrendered and was returned to Patuxent.

At a May 22 preliminary revocation hearing, Pollock denied using marijuana, but “admitted that he had been briefly in the presence of suspected marijuana smokers[.]” The hearing officer found probable cause for charges that Pollock had violated the terms of his parole, and ordered a parole revocation hearing. ⁶² On May 23, at the request of Patuxent, Friends performed a “confirmation re-test,” with the same results. The confirmation test report identified the “client” from whom the sample was taken with the same typewritten “Pollock, Michael” that appeared on the original test report, but without the incorrect typewritten inmate number “4669.” Instead, handwritten immediately beneath Pollock’s name is the following notation: “4695 Ref-P.” (Emphasis added.) It is unclear whether the person who added the handwritten inmate number was someone at Friends or at Patuxent. Revocation And Non-Renewal Pollock’s parole revocation hearing began on June 19, 1997 and concluded on July 17, 1997. At the hearing, Pollock moved to dismiss the revocation proceedings because he had not received timely notice of the hearing pursuant to Patuxent Institution Regulation (“PIR”) 240-19.V.C. Additionally, Pollock moved to exclude the urinalysis reports on the ground that there were violations of the chain of custody procedures and documentation requirements established by Patuxent Institution Directive (“PID”) 110-18. 1 The Board denied both motions.

Based on the test results from Friends, it concluded that Pollock had used marijuana in violation of the terms of his parole. “[D]ue to the seriousness of these violations,” the Board ruled that Pollock was “no longer eligible for Patuxent programs.” As a result, Pollock was transferred to another correctional facility within the DOC to serve the remainder of his sentence. In August 1997, Pollock appealed the Board’s decision to the Circuit Court for Howard County. He argued that the Board violated its own rules by failing to provide timely notification of the revocation hearing and that the urinalysis test results were inadmissible because a chain of custody was never ⁶³ established. Patuxent responded that the issues raised by Pollock were moot because Pollock’s parole order had expired before the July 1997 parole revocation hearing, and, alternatively, that there was sufficient evidence to establish a chain of custody for Pollock’s specimen.

On April 15, 1998, the circuit court reversed the Board’s decision to revoke Pollock’s parole, ruling that the Board was late in notifying Pollock of the revocation hearing. The circuit court, however, did not address whether the urinalysis results could be used against Pollock as grounds for revocation of his parole. As a result of this order, the Attorney General advised Patuxent that Pollock must be brought back to the Patuxent Institution and either (1) be declared a “non-eligible person” based on facts other than the parole revocation (although the Board may consider the positive urinalysis that [led] to the revocation); or (2) return the inmate to parole as an eligible person; (3) reinstate the eligible person status, but factually determine that parole is not appropriate through the “annual review” process (rather than in conjunction with a parole revocation). Patuxent chose the third option.

On May 8,1998, it advised Pollock that, during his appeal of the Board’s revocation decision, “your annual review for parole status ... lapsed.” Accordingly, an annual parole review hearing was scheduled for May 21, 1998. In response to this notice, on May 13, 1998, Pollock filed a habeas corpus petition in the Circuit Court for Howard County. Shortly thereafter, at the May 21 annual review hearing, the Board relied on the positive urinalysis results in deciding not to renew Pollock’s parole. Noting “the legal implications of this case,” the Board returned Pollock to Patuxent as “an Eligible Person,” where he was “put on [the] drug tier.” On June 2, 1998, the circuit court held a hearing on Pollock’s habeas petition.

A year later, on June 30, 1999, the circuit court denied habeas relief because Pollock’s parole had ⁶⁴ expired, so there was “no parole to which Pollock could be restored.” Pollock appealed that decision to this Court, raising both constitutional and procedural arguments. We affirmed in an unreported decision that adopted the circuit court’s rationale. See Pollock v. Patuxent Inst. Bd. of Review, No. 1657, Sept. Term 1998, 127 Md.App. 790 (filed June 14, 1999).

The Court of Appeals granted certiorari to consider whether a Patuxent parolee has a constitutional right to remain on parole until the parole is revoked in accordance with a revocation proceeding that meets “due process” standards. See Pollock v. Patuxent Inst. Bd. of Review, 358 Md. 656, 666 , 751 A.2d 496 (2000). The Court, however, ultimately declined to decide that question until all of the non-constitutional questions were resolved.

See id. at 666-67 , 751 A.2d 496 . It vacated this Court’s decision and remanded the habeas petition because Pollock had “never obtained judicial review of the use of the May 1997 report of urinalysis either as the basis for the original revocation or as the basis for the May 21, 1998 non-renewal on annual review.” Id. at 668 , 751 A.2d 496 . On remand, by written order dated June 27, 2001, the circuit court found that the testimony and documents presented by. the Board constitute[ ] “substantial evidence” in support of the conclusion that the sample submitted by Mr. Pollock contained marijuana in violation of his conditions of parole. The testimony and exhibits show directly, or support a reasonable inference, that all requirements of ...

PID No. 110-18 concerning the taking, storage, transfer and testing of the sample were complied with, even if one page of the chain of custody [form] was not introduced as an exhibit. The content of that page and the compliance of that document with PID No. 110-18 was testified to by Sgt. A.P. Jones. The habeas court held that both the decision to revoke Pollock’s parole and the decision not to renew it were “fully justified” by “the finding that Mr. Pollock’s urine sample from May 15, 1997, contained marijuana in violation of his condi ⁶⁵ tions of parole.” It is from this decision that Pollock now appeals.

DISCUSSION Pollock asserts that the Board’s finding that the positive urine specimen was the same urine specimen collected from Pollock on May 15, 1997 was clearly erroneous because that fact “was never established with any reasonable degree of certainty[.]” In addition, he argues that the decision to admit the test results at the revocation hearing and to rely on those results as grounds for revocation and non-renewal “was incorrect as a matter of law” because PID 110-18, entitled “Urinalysis Testing,” “sets forth a mandatory procedural framework that must be followed when obtaining and testing a Patuxent inmate’s urine for illicit drugs.” PID 110-18 does prescribe procedures for collecting and handling urine specimens received from Patuxent inmates. 2 The following portions of this directive are at issue in this case: 2. Each request for a urinalysis test shall be documented by an Incident Report (Appendix A) and a Request for Urinalysis Test (Appendix D).... 4. The urine specimen shall be collected from the inmate as follows: ... c. Staff shall hand to the inmate the specimen bottle, pre-labeled with the inmate’s name, number, and date.

This information shall be handwritten. The inmate shall be asked to acknowledge that information on the label is correct.... The bottle number shall be noted on the Incident Report Form (Appendix A). d. When the inmate has handed the filled bottle back to staff, staff shall ensure that the bottle is tightly capped, and then shall properly secure a piece of ⁶⁶ “Evidence Tape” over the cap and to the sides of the bottle.... f.

The collection of the urine specimen ... shall be documented on the Incident Report. g. The original copy of the Medical Laboratory Chain of Custody Form shall be retained until the specimens are picked up for testing. The original copy shall be signed by and released to the Medical Laboratory courier. The duplicate copy shall be sent to the Major’s Office. 5.

The urine specimen shall be handled and processed as follows: a. The number of staff handling the specimen should be minimized. All items shall then be placed in the refrigerator in the Major’s area. At all times, the specimen should be in the actual possession and control of staff or secured in a manner which does not compromise the integrity of the chain of custody. ...

(Emphasis added.) Pollock claims that “Patuxent disregarded a number of its own mandatory rules relating to establishing a proper chain of custody,” which required exclusion of the test results as a matter of law. Specifically, he points to four “violations” that he contends rendered the Board’s decision to admit the lab test results and to rely on them in not renewing his parole “arbitrary and capricious.” 1. Jones, the collecting officer, either used no identification number on the specimen bottle from Pollock, or used the wrong inmate number on it, in violation of PID 110-18.VI.A.4.C. 2. Instead of placing the evidence tape over Pollock’s specimen bottle himself, Jones allowed Pollock to do so, in violation of PID 110-18.VI.A.4.d. 3.

Jones and Corrections Officer Taylor, who was the other staff member present when Pollock submitted his urine specimen, did not document that Taylor actually han- ⁶⁷ died the specimen bottle, in violation of PID 110-18.-VI.A.4. 4. Patuxent failed to produce a signed copy of the Medical Laboratory Chain of Custody Form, in violation of PID 110-18.A.4.g. Standard of Review Our role in reviewing an administrative decision is the same as that of the circuit court. See Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 449 , 800 A.2d 768 (2002).

We must reevaluate the administrative decision itself. See id. We uphold the agency’s decision when it is supported by both the agency’s actual findings and the actual reasons advanced by the agency in support of its decision. See United Steelworkers of Am., Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984).

In particular, we accept the agency’s findings of fact when they are supported by substantial evidence in the record. See Jordan Towing, 369 Md. at 450 , 800 A.2d 768 . Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (citation omitted).

We uphold the agency’s decision of law if it is legally correct. See Gigeous v. Eastern Correctional Inst., 363 Md. 481, 496 , 769 A.2d 912 (2001). “An agency is best able to discern its intent in promulgating a regulation. Thus, an agency’s interpretation of the meaning and intent of its own regulation is entitled to deference.” Changing Point, Inc. v. Maryland Health Res. Planning Comm’n, 87 Md.App. 150, 160 , 589 A.2d 502 (1991).

I. Per Se Exclusion Of The Test Results Under The Accardi Doctrine In support of his contention that the Board erred in admitting and considering the test results, Pollock relies on Hopkins v. Maryland Inmate Grievance Comm’n, 40 Md.App. ⁶⁸ 329 , 391 A.2d 1213 (1978). Hopkins followed and applied United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954), which established the oft-cited rule of administrative law known as the “Accardi doctrine.” The Accardi doctrine states that “ ‘[a]n agency of the government must scrupulously observe rules, regulations or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.’ ” Hopkins, 40 Md.App. at 335-36 , 391 A.2d 1213 (quoting United States v. Heffner, 420 F.2d 809, 811 (4th Cir.1969)). “[TJhere is an abundance of authority for the doctrine that an agency cannot violate its own rules and regulations.” Id. at 336, 391 A.2d 1213 .

Most recently, the Court of Appeals confirmed that under Maryland law, courts will review an agency’s actions “to determine if the agency complied with its regulations and required procedures.” 3 Maryland Transp. Auth. v. King, 369 Md. 274, 286 , 799 A.2d 1246 (2002). We have held specifically that the Accardi doctrine applies to the actions of other Maryland .correctional agencies under the auspices of the Department of Public Safety and Correctional Services, including the Department of Corrections (“DOC”). See, e.g., Smith v. State, 140 Md.App. 445, 462 , 780 A.2d 1199 (2001)(DOC “was bound by its regulation” governing eligibility of inmates for “double celling” diminution credits); Hopkins, 40 Md.App. at 337 , 391 A.2d 1213 (Inmate Grievance Commis ⁶⁹ sion was bound by DOC regulations governing review of decision to commit inmate to solitary confinement).

If, as Pollock contends, Patuxent staff violated PID 110-18, and if the Accardi doctrine applies to those violations of PID 100-18, then the positive test results should have been excluded, without specifically inquiring whether the violations prejudiced Pollock. As the King Court noted, this Court has “taken the position that, in situations where the Accardi doctrine is applicable, it does not matter whether one was prejudiced by the failure of the agency to follow its procedures or regulations.” King, 369 Md. at 286 , 799 A.2d 1246 (citing Bd. of Educ. of Baltimore County v. Ballard, 67 Md.App. 235 , 239 n. 2, 507 A.2d 192 (1986)(“If [the agency] was required to strictly follow its rules, whether or not [the agency] was prejudiced by the defect is not an issue”)). In that event, the Accardi doctrine would require the per se exclusion of the Friends lab reports if Patuxent staff members did not strictly comply with PID 110-18. Patuxent acknowledges the Accardi doctrine and its potential impact on this case, but argues that the specific violations of PID 110-18 alleged by Pollock fall within the principal exception to the doctrine.

This “Accardi exception” states “that the doctrine does not apply to an agency’s departure from procedural rules adopted for the orderly transaction ■of agency business.” Hopkins, 40 Md.App. at 336 , 391 A.2d 1213 . Thus, not every internal procedural policy adopted by an agency invokes the Accardi doctrine. See Durham v. Fields, 87 Md.App. 1 , 18 n. 2, 588 A.2d 352 , cert. denied, 323 Md. 308 , 593 A.2d 668 (1991). Whether the Accardi doctrine applies to this case is a question of law that requires us to examine the language and purpose of PID 110-18.

In determining whether an agency rule has sufficient force and effect to trigger an application of the Accardi doctrine, Maryland courts generally look to see whether it “affects individual rights and obligations,” See James, 96 Md.App. at 422, 625 A.2d 361 (quoting Peter Raven-Han ⁷⁰ sen, Regulatory Estoppel: When Agencies Break Their Own “Laws”, 64 Tex. L.Rev. 1, 16 (1985)), or whether it confers “important procedural benefits upon individuals.” Board of Education of Anne Arundel County v. Barbano, 45 Md.App. 27, 41 , 411 A.2d 124 (1980). Anastasi v. Montgomery County, 123 Md.App. 472, 491 , 719 A.2d 980 (1998). Courts also look at- “whether the agency-intended the rule to be legislative as ‘evidenced by such circumstantial evidence as the formality that attended the making of the law, including the rule making procedure and publication.’ ” James, 96 Md.App. at 422 , 625 A.2d 361 (citation omitted).

Hopkins provides an instructive illustration of a “procedural benefits” regulation that is subject to the Accardi doctrine because it “confers important ... benefits upon” inmates. See Barbano, 45 Md.App. at 41 , 411 A.2d 124 . In that case, we rejected an attempt to classify a DOC regulation as a “mere aid” to the DOC’s exercise of its discretion in conducting its affairs. The regulation at issue provided that an inmate confined to isolation as a result of an infraction of DOC rules “will appear before the Adjustment Team within ... 72 hours of the alleged violation unless prevented by exceptional circumstances.” Hopkins, 40 Md.App. at 330 , 391 A.2d 1213 .

We held that [i]t is clear that [the rule] ..., which is couched in unambiguous, mandatory language, was not intended to govern internal agency procedures but was specifically adopted to confer important procedural benefits and safeguards upon inmates, including, among other things, “minimizing the length of the period of restrictive confinement which an inmate may be forced to endure prior to an adjudication of guilt.” Measured by these standards the action of the Division of Correction in departing from its own rule cannot stand. Id. at 337 , 391 A.2d 1213 (citation omitted). Similarly, a prior episode in Pollock’s own parole history provides another example of a Patuxent rule that is not ⁷¹ exempt from the Accardi doctrine because it “confers an important procedural safeguard” that “protect[ed] [Pollock’s] individual rights[.]” In 1991, the Board sought to revoke Pollock’s parole, also for alleged drug use. The circuit court held that the Board’s failure to follow its own officially promulgated regulations governing parole revocation proceedings required dismissal of the revocation proceedings.

In 1993, we upheld that decision, reasoning that the regulation afforded parolees significant procedural safeguards “related to the form of the hearing and the required findings of fact.” Patuxent Inst. Bd. of Review v. Pollock, No. 1258, Sept. Term 1992, 95 Md.App. 738 (1993), slip op. at 8. We explained that “[o]ur primary concern ... is whether the time requirement in PIR 240-19(V)(D) is mandatory or directory.” Id., slip op. at 5. We concluded that the regulation was mandatory, given its mandatory “shall” language.

When viewed in conjunction with a specific 90 day time limit and the stated purpose of the regulation “ ‘[t]o establish prompt hearings for the purpose of determining whether a violation of parole did in fact occur[,]’ ” this language indicated that the regulation conferred specific procedural rights on inmates facing parole revocation. Id., slip. op. at 6. To reach that conclusion, we examined whether the rule specified the sanction for non-compliance, as well as the purpose and policy of the rule. See id., slip. op. at 7.

We held that Patuxent’s admitted violation of its regulation governing notice of parole revocation proceedings “compelled] a finding that the dismissal of Pollock’s parole revocation charges was appropriate.” Id. We have reached similar conclusions in other cases in which we determined that the regulation at issue “conferred important procedural benefits” on particular individuals. In Smith, 140 Md.App. at 462-63 , 780 A.2d 1199 , we reversed the DOC’s denial of diminution credits for double celling, because the DOC violated its own published regulation defining which inmates were eligible for such credits. In Anastasi, 123 Md.App. at 491-92 , 719 A.2d 980 , we reversed the denial of a police officer’s