Popkin v. Gindlesperger

BATTAGLIA, J. We have been asked to interpret Section 3-107(d) of the Public Safety Article, Maryland Code (2003, 2011 Repl.Vol.), 1 a provision included in the Law Enforcement Officers’ Bill of Rights (“LEOBR”), to determine whether a deputy sheriff can compel, by the issuance of a subpoena, the production of documents and records in advance of a disciplinary hearing. In this case, Deputy Erick Gindlesperger of the Montgomery County Sheriffs Office had filed a subpoena request seeking to compel Sheriff Darren M. Popkin 2 to produce documents ³ prior to a disciplinary hearing under the LEOBR. The hearing board denied the request, and Deputy Gindlesperger filed a Motion for Show Cause Order in the Circuit Court for Montgomery County. 3 The Circuit Court determined that Section 3-107(d)(1) entitled Deputy Gindlesperger to prehearing production of various enumerated documents. Sheriff Popkin appealed and, on our own motion, we granted certiorari to consider the following question: Did the Circuit Court commit reversible error when it ordered the pre-LEOBR Hearing production of unrelated internal affairs case files pursuant to § 3-107(d)(l) of the Public Safety Article, which only authorizes subpoenas for the production of records at LEOBR hearings?

We shall hold that Section 3-107(d)(l) does not provide for compelling production of records and documents by subpoena in advance of an LEOBR disciplinary hearing and shall, therefore, reverse the Circuit Court’s Order. 4 Background The LEOBR was originally enacted in 1974 “to guarantee that certain procedural safeguards be offered to police officers ⁴ during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal.” Blondell v. Baltimore City Police Department, 341 Md. 680, 691 , 672 A.2d 639, 645 (1996), quoting Abbott v. Administrative Hearing Board, 33 Md.App. 681, 682 , 366 A.2d 756, 757 (1976). A deputy sheriff in the Montgomery County Sheriffs Office, as is Deputy Gindlesperger, as one who is authorized to make arrests, is covered by the LEOBR. Section 3-101(e). 5 The procedural safeguards, in the context of a summary punishment, 6 are initiated once the law enforcement officer decides to refuse discipline imposed summarily. Upon the ⁵ officer’s refusal of discipline, the head of the law enforcement agency may convene a hearing and select the hearing board, which may be comprised of one or more officers.

Section 3-111(c)(1). The hearing board issues subpoenas, takes judicial notice of facts, administers oaths and provides the law enforcement agency and the officer “ample opportunity to present evidence and argument about the issues involved.” Sections 3-107(d), (e), (g), (h). The hearing board makes findings as to the officer’s culpability and, if it finds that the officer is not guilty, the administrative action and the summary discipline are terminated. See Section 3-108(a)(3).

Alternatively, if the hearing board finds the officer guilty, then the hearing board may recommend a penalty, which, in the context of a hearing following a summary punishment refusal, may be no greater than a three-day suspension without pay or a fine of $150. Section 3 — 111(c)(1)(ii). The head of the law enforcement agency has the ultimate authority as to sanction, however. Section 3 — 108(d)(3).

Factual and Procedural History In this case, Deputy Erick Gindlesperger was charged with violating Section 33-5(h) of the Montgomery County Personnel Regulations, 7 for “negligently and carelessly releasing] from custody” an inmate in April of 2010: As a result of an Internal Investigation the following administrative violation has been sustained against you: Charge # 1: Negligent or Careless in Performing Duties Source: Montgomery County Personnel Regulations 2001 Section: 33-5 Causes for Disciplinary Actions ⁶ Number: (h) p. 217 On April 13, 2010, while on duty, DSIII Eric Gindlesperger was negligent and careless in performing his official duties as a deputy sheriff. To Wit: On April 13, 2010, DSIII Eric Gindlesperger negligently and carelessly released from custody Calvin Miller, an inmate committed to the Montgomery County Department of Correction and Rehabilitation, from the District Court of Maryland, in Rockville, MD. As a result of this violation, the following Disciplinary Action is being taken: Summary Punishment: Charge # 1: Negligent or Careless in Performing Duties Sustained — 2 days suspension without pay Deputy Gindlesperger refused the summary punishment, disputed the charge and requested an LEOBR hearing, which was initially scheduled for July of 2010. In June of 2010, Deputy Gindlesperger submitted three subpoenas to Sheriff Raymond Eight.

The first two subpoenas sought the attendance and testimony of two witnesses; they are not in issue in this case. The third request sought the production of various documents before the hearing, which was opposed by Sheriff Eight on the basis that Section 3-107(d)(1) of the LEOBR did not authorize compelling production of documents before the hearing. Before any formal determination by the hearing board as to whether to issue the subpoena, Deputy Gindlesperger filed a Petition for Show Cause Order & Motion For A Stay Of Proceedings Before The Montgomery County Sheriffs Office in the Circuit Court for Montgomery County; the Circuit Court denied the Motion to Show Cause without prejudice but granted the motion to stay proceedings in order “to allow the Hearing Officer an opportunity to rule on Petitioner’s requests for subpoenas.” ⁷ Deputy Gindlesperger then requested that the hearing board issue a subpoena to the Montgomery County Sheriffs Office for the following documents: 8 1. DS III Erick R. Gindlesperger’s personnel file, including documents describing his seniority level, disciplinary record, training record, responsibilities, and any commendations received during the course of his employment. 2.

All documents that are related to [officerj’s mistaken release of an inmate, including but not limited to: incident reports; other documents describing the actions the employee took; documents describing the circumstances of the mistaken release; notice of the charge against the officer and issues involved; investigative reports; and recommended charges, discipline or punishment reports; and documents describing the employee’s seniority level, disciplinary record (for any misconduct or policy violation), training record and responsibilities. 3. All documents that are related to [officer]’s mistaken release of an inmate, including but not limited to: incident reports; other documents describing the actions the employee took; documents describing the circumstances of the mistaken release; notice of the charge against the officer and issues involved; investigative reports; and recommended charges, discipline or punishment reports; and documents describing the employee’s seniority level, disciplinary record (for any misconduct or policy violation), training record and responsibilities. 4. All documents that are related to [officer]’s mistaken release of an inmate on or about April 12, 2010, including but not limited to: incident reports; other documents describing the actions the employee took; documents describing the circumstances of the mistaken release; notice of the charge against the officer and issues involved; investigative reports; and recommended charges, discipline or punishment reports; and documents describing the employee’s ⁸ seniority level, disciplinary record (for any misconduct or policy violation), training record and responsibilities. 5. All documents that are related to [officer]’s mistaken release of an inmate, including but not limited to: incident reports; other documents describing the actions the employee took; documents describing the circumstances of the mistaken release; notice of the charge against the officer and issues involved; investigative reports; and recommended charges, discipline or punishment reports; and documents describing the employee’s seniority level, disciplinary record (for any misconduct or policy violation), training record and responsibilities. 6.

All documents related to the accidental release of an inmate for the time period covered by this subpoena, including but not limited to: incident reports; other documents describing the actions the employee took; documents describing the circumstances of the mistaken release; notice of the charge against the officer and issues involved; investigative reports; and recommended charges, discipline or punishment reports; and documents describing the employee’s seniority level, disciplinary record (for any misconduct or policy violation), training record and responsibilities. 7. All documents describing the types of conduct the Montgomery County Sheriffs Office deems “negligent” or “careless” in effect at the time Deputy Gindlesperger was charged with negligence/carelessness as a result of the April 13th incident. 8. All documents detailing policies for issuing punishment in Negligence/Carelessness cases in effect at the time Deputy Gindlesperger was charged with negligence/carelessness as a result of the April 13th incident. 9. All documents detailing policies for the recommendation of a two-day suspension in effect at the time Deputy Gindlesperger was charged with negligence/carelessness as a result of the April 13th incident.

The Instructions Section provided that “[u]nless otherwise stated, each item in this subpoena covers the period from ⁹ January 1, 2005, to the date of the hearing.” (emphasis in the original). Sheriff Kight did not object to the production of Deputy Gindlesperger’s personnel file in item 1 and asserted that he was unaware of the existence of any records related to items 4, 5, 7, 8, and 9; none of these requests is in issue before us. Sheriff Kight, however, opposed the production of documents pertaining to items 2 and 6, one relating to the “mistaken release of an inmate” by a particular officer and the other seeking all records relating to the “accidental release of an inmate” since January 2005, respectively, because compelled production of these documents before the hearing was not authorized under Section 3-107(d) and the records requested were not “discoverable, relevant or material.” The hearing board denied the subpoena request: This subpoena has been denied: In accordance with § 3-107(d) I have considered the subpoenas but decline to issue at this time, I am denying due to confidentiality, relevance, and necessity. (emphasis in original).

Deputy Gindlesperger then filed another Motion for a Show Cause Order & Stay of Proceedings and Request for a Hearing in the Circuit Court, arguing that compelled production of documents before the hearing was necessary to develop his defense that he accidentally rather than negligently or carelessly released an inmate. Sheriff Kight again opposed the motion. The Circuit Court, after a hearing, determined that the request for compelled pre-hearing production of records identified in categories 2 and 6 of the subpoena, pertaining to a particular officer’s “mistaken release of an inmate” and any “accidental release of an inmate for the time period” since January 2005, was governed by Section 3-107(d)(1), specifically the phrase “[i]n connection with a disciplinary hearing,” which it construed to include time before the hearing. The Circuit Court Judge then determined that the timing of compelled pre-hearing production of documents should be defined ¹⁰ by the amount of time required to review documents before the hearing and concluded, based on the estimated