Prince George's County Police Department v. Zarragoitia

DEBORAH S. EYLER, Judge. The Circuit Court for Prince George’s County ruled that a disciplinary action by the Prince George’s County Police Department (“the Department”), appellant, against Officer Marcos Zarragoitia, appellee, was time-barred. Specifically, the ¹⁷¹ court decided that the approval, by the Commander of the Department’s Internal Affairs Division, of a “Report of Investigation,” did not constitute the filing of charges under section 730(b)(1) of the Law Enforcement Officers’ Bill of Rights; instead, charges were filed several months later, and outside of the limitations period, when the Department issued a “Disciplinary Action Recommendation.” The circuit court entered an order enjoining the Department from taking further action against Officer Zarragoitia. 1 On appeal from that order, the Department maintains that the circuit court’s decision was legally incorrect. For the following reasons, we disagree and, therefore, we shall affirm the judgment.

THE LEOBR Before recounting the particulars of this case, it will be of some help to review the pertinent aspects of the Law Enforcement Officers’ Bill of Rights, Md.Code (1957, 1996 Repl.Vol., 2000 Supp.), art. 27, §§ 727-734D (“LEOBR”). The purpose of the LEOBR is “to guarantee certain procedural safeguards to law enforcement officers during any investigation or interrogation that could lead to disciplinary action, demotion, or dismissal.” Meyers v. Montgomery County Police Dep’t, 96 Md.App. 668, 686 , 626 A.2d 1010 (1993) (citing DiGrazia v. County Executive, 288 Md. 437, 452-53 , 418 A.2d 1191 (1980); Abbott v. Administrative Hearing Bd., 33 Md. App. 681, 682 , 366 A.2d 756 (1976)); see also Chief, Baltimore County Police Dep’t v. Marchsteiner, 55 Md.App. 108, 114-15 , 461 A.2d 28 (1983) (quoting Nichols v. Baltimore Police Dep’t, 53 Md.App. 623 , 455 A.2d 446 (1983)). “[TJhose safeguards include standards governing the investigation of complaints against an officer, the right to a hearing following a recommendation for disciplinary action, and standards governing the conduct of such a hearing and the decision of the hearing ¹⁷² board.” Cochran v. Anderson, 73 Md.App. 604, 612 , 535 A.2d 955 (1988) (discussing Abbott v. Administrative Hearing Bd., supra, and citing Elliott v. Kupferman, 58 Md.App. 510 , 473 A.2d 960 (1984)). The LEOBR “looks to what is essentially a two-phase administrative process. The first phase involves an internal investigation to determine whether there is some substance to the complaint or suspicion.” Chief, Montgomery County Dep’t of Police v. Jacocks, 50 Md.App. 132, 135 , 436 A.2d 930 (1981).

Section 728(b) governs the manner in which the law enforcement agency conducts this internal investigation, spelling out the conditions under which the agency may investigate and interrogate a law enforcement officer and the officer’s rights during the investigatory phase. Id.; DiGrazia, 288 Md. at 439-40 , 418 A.2d 1191 ; Abbott, 33 Md.App. at 682-83 , 366 A.2d 756 . Sections 730 and 731 govern the second phase, i.e., “an adjudicatory hearing before a departmental hearing board to determine (1) whether the charge itself is valid, and (2) if so, what the punishment should be.” Jacocks, 50 Md.App. at 135 , 436 A.2d 930 ; see DiGrazia, 288 Md. at 440-41 , 418 A.2d 1191 ; Abbott, 33 Md.App. at 683 , 366 A.2d 756 . Under section 731, the final decision is made by the Chief of Police, upon review of the findings, conclusions, and recommendations of the hearing board.

The LEOBR was enacted in 1974. See 1974 Md. Laws Chap. 722. The one-year statute of limitations contained in section 730(b)(1) was added in 1988, by passage of Senate Bill 632. 1988 Md. Laws Chap. 330. Currently, section 730(b)(1) provides: Limitation of actions. — (1) Administrative charges may not be brought against a law enforcement officer unless filed within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official. 2 ¹⁷³ The Floor Report of the Senate Judiciary Committee for Senate Bill 632, at page 1-2, explained the purpose of the bill as follows: Current law does not provide a time limit for the filing of administrative charges against a law enforcement officer under the Law Enforcement Officers’ Bill of Rights.

Testimony indicated that there have been many instances where a law enforcement officer who has committed a minor infraction has had that minor infraction held over his head for an extended period of time, resulting in significant uncertainty as to when, or even if, any disciplinary action is to be taken. The types of minor infractions referred to in this bill include administrative offenses such as improper wearing of a uniform, or not completing or signing a gasoline trip ticket. It is unfair, unreasonable, and serves no useful purpose to allow a supervisor to withhold the filing of such administrative charges indefinitely. At some point, supervisory officials should be required either to file the administrative charge against the officer or to drop the charge so that the officer is relieved of the anxiety and concern that results from not knowing if or when the charge will be officially brought against the officer.

See also Baltimore Police Department v. Etting, 326 Md. 132, 138 , 604 A.2d 59 (1992). FACTS AND PROCEEDINGS The Incident On November 23, 1997, Officer Zarragoitia attended a football game at Jack Kent Cooke Stadium (now FedEx Field), in Prince George’s County. He was off-duty. During the game, Officer Zarragoitia allegedly got into an argument with a concessions vendor and used derogatory and foul language.

Several officers in the Department were working as security for the game. When they responded to the incident, Officer Zarragoitia allegedly used abusive language toward them as well. ¹⁷⁴ Report of Investigation ° Captain Ellis G. Jones, the Commander of the Department’s Internal Affairs Division, filed a formal complaint against Officer Zarragoitia based on the incident of November 28, 1997. The complaint alleged that Officer Zarragoitia had acted in a manner unbecoming to an officer and had used abusive language. On December 5, 1997, Sergeant Regina Taylor began a formal investigation of the complaint.

It was her task to determine whether the allegations were “sustained,” te., supported by sufficient evidence to warrant proceeding to the adjudicatory stage of the disciplinary proceedings. Under the Internal Affairs Division Standard Operating Procedures (“SOP”), upon completion of her investigation, Sergeant Taylor was to prepare a final “Report of Investigation” (“ROI”). SOP, at 6. The Department’s procedures provide that a ROI is to be prepared regardless of the outcome of an investigation and is to be “submitted to the Commander [of the] Internal Affairs Division, within 90 calendar days of initial assignment, for review.” SOP, at 60.

The ROI must include: • [An] accounting of any evidence related to the incident • [An] incident summary • Opinions as to the legitimacy of the allegations • Recommendations to dismiss the complaint or recommendation for disciplinary action • Written statements from all involved persons when pertinent • If disciplinary action is recommended, [classification of] the violation(s) ... by category. Department General Orders Manual, § 3/811.05. Although the ROI includes an account of the incident for which the Department may seek a recommendation of disciplinary action before an Administrative Hearing Board (“Board”), it does not require the exact language of the charges or reference the sections of the General Orders Manual or the Prince George’s County Code on which the charges may be based. Nor does it ¹⁷⁵ necessarily provide a detailed description of the facts underlying the charges.

On June 12, 1998, Sergeant Taylor submitted a ROI to Captain Jones that sustained the allegations against Officer Zarragoitia and recommended that he be charged with one count of unbecoming conduct and three counts of abusive language. Captain Jones’s responsibilities as Commander of the Internal Affairs Division included overseeing internal investigations, reviewing the findings of those investigations, making recommendations based on those findings, and initiating formal disciplinary proceedings against law enforcement officers. On June 22,1998, Captain Jones approved the ROI respecting Officer Zarragoitia, including Sergeant Taylor’s finding that the allegations against him were sustained and her recommendation of charges. Under section 3/811.05 of the Department’s General Orders Manual, once a ROI is approved by the Commander of the Internal Affairs Division, it is to be sent “through the chain of command to the Chief [of Police].” The SOPs also provide that the Commander of Inspectional Services has final approval of all completed investigations before they are submitted to the Chief of Police.

SOP, at 7. The Commander of Inspectional Services can uphold, revise, override, or add to the recommended charges. In addition, he can use the ROI to brief the Chief of Police. Sometime between June 12, 1998, and the end of October 1998, Captain Jones sent the ROI in the Zarragoitia matter to the Commander of Inspectional Services, Major Robert Fuller. 3 Major Fuller used the ROI to brief the Chief of Police on the status of the case.

On November 5, 1998, Major John Lindsay, who had replaced Major Fuller on October 30, 1998, sent the case file to the Human Relations Committee (“HRC”) and the Citizens Complaint Oversight Panel (“CCOP”). The ¹⁷⁶ HRC is an independent body whose purpose is to promote fair and impartial investigations. The CCOP examines all completed investigations into allegations of excessive force, harassment, and abusive language. Neither body can override the recommendations of the Commander of Internal Affairs, the Commander of Inspectional Services, or the Chief of Police.

The HRC declined to review the Zarragoitia matter. On December 22, 1998, the CCOP approved the three allegations of abusive language against Officer Zarragoitia and returned the case file to Major Lindsay. 4 Disciplinary Action Recommendation Thereafter, Major Lindsay returned the Zarragoitia file to Captain Jones so he could give it to Sergeant Gordon Pinnell, the Department’s Administrative Hearing Board Coordinator, for Sergeant Pinnell to draft a document known as the Disciplinary Action Recommendation (“DAR”). The Department only issues a DAR if allegations against a law enforcement officer have been sustained. The DAR is in the form of a letter by the Commander of the Internal Affairs Division to the officer.

It must include specific charges, with citations to the Department’s General Orders Manual or the Prince George’s County Code, and must recite with factual detail the misconduct in support of each charge. Unless the Department and the officer agree otherwise, the charges and factual descriptions in the DAR guide the Board in its decision-making. Thus, if the ROI and the DAR are in conflict, the Department must prove the charge as worded in the DAR. In cases involving minor infractions, the DAR may set forth a summary punishment that the law enforcement officer may accept in lieu of a hearing before the Board.

If the officer accepts the summary punishment, he does not receive the ROI. If he declines to accept the summary punishment and demands a hearing, the Department redacts the summary punishment provision from the DAR and submits the redacted ¹⁷⁷ DAR to the Board. The officer then is given the ROI. The Board only will see the ROI if it is introduced into evidence by one of the parties.

As the Administrative Hearing Board Coordinator, Sergeant Pinnell could accept the recommendations made in the ROI, as approved by Captain Jones, or, with the further approval of Captain Jones, delete, revise, or add to the allegations sustained in the ROI. If that were done, the ROI would be supplemented to reflect the change. In the beginning of January 1999, the Department informed Officer Zarragoitia that he had not received a promotion. Officer Zarragoitia reacted by contacting Philip Constantino, a consultant for the Fraternal Order of Police.

Mr. Constantino in turn contacted Major Lindsay, who revealed that Officer Zarragoitia had not received a promotion because of his behavior on November 23,1997. Mr. Constantino asked when the Department would be contacting Officer Zarragoitia about any charges stemming from the November 23, 1997 incident. Major Lindsay responded that charges “were going to be filed” and “should be forthcoming in the next two weeks.” On January 4,1999, Captain Jones signed the DAR respecting the November 23, 1997 incident. In the DAR, Captain Jones stated that the “investigative report” prepared by Sergeant Taylor respecting Officer Zarragoitia’s actions of that date “ha[d] been reviewed” and that, “[i]n light of the information provided by Sergeant Taylor’s report,” Captain Jones was “charging” him with four violations of the General Orders Manual.

The DAR lists the violations separately and designates them as “Charge # 1,” “Charge # 2,” “Charge # 3,” and “Charge # 4.” All four charges were for “Unbecoming conduct.” In deposition, Captain Jones explained that while the Department refers to the allegations in the complaint and recommendations by the investigator as “counts” or “allegations,” when it issues the DAR, it refers to the allegations as “charges.” The DAR set forth separate factual synopses for each charge and recited the specific facts underlying each charge. ¹⁷⁸ It stated that, “under the authority delegated to me by the Chief of Police, you are hereby advised that I [Captain Jones] am recommending disciplinary action” for these charges. The DAR did not give Officer Zarragoitia the option of accepting summary punishment in lieu of disciplinary proceedings. Circuit Court Proceedings On April 27, 1999, Officer Zarragoitia filed a petition for a show cause order in the Circuit Court for Prince George’s County, pursuant to section 734 of the LEOBR. 5 He alleged that the Department’s disciplinary action against him was time-barred under section 730(b)(1). Specifically, he asserted that the issuance of the DAR constituted the filing of administrative charges and that that had not occurred until more than one year after the latest time at which the incident had come to the attention of the appropriate law enforcement agency official (December 5,1997).

On April 28, 1999, the court ordered the Department to show cause why Officer Zarragoitia’s request for relief should not be granted. The Department responded, asserting that Captain Jones’s June 22,1998 approval of the ROI constituted the filing of administrative charges. Therefore, it argued, charges had been timely filed under section 730(b)(1). Discovery went forward and the parties submitted memo-randa of law.

The court held an evidentiary hearing on Febru ¹⁷⁹ ary 29, 2000. Officer Zarragoitia testified on his own behalf and also called Mr. Constantino. Sergeant Pinnell and Captain Jones testified on behalf of the Department. At the conclusion of the hearing, the court held the matter sub cuña. 6 On March 10, 2000, the trial court issued a memorandum opinion and order enjoining the Department from taking any further disciplinary action against Officer Zarragoitia for the November 23, 1997 incident.

The trial court ruled, based on the parties’ legal memoranda, deposition testimony that was moved into evidence, and in-court testimony, that the ROI “is not a charging document. It merely states whether the Internal Affairs investigator, based on his or her investigation of the allegations against a particular officer, recommends that administrative charges be filed. It is the Disciplinary Action Recommendation [that serves] as the charging document.” (Emphasis in original.) This appeal followed. Additional facts will be recited as pertinent to our discussion.

DISCUSSION The parties agree that December 5, 1997 (the day that Sergeant Taylor began her investigation), was the latest date on which the one-year limitations period in section 730(b)(1) began to run. Relying exclusively on Wilson v. Baltimore City Police Department, 91 Md.App. 436 , 604 A.2d 942 (1992), the Department argues that Captain Jones’s June 22, 1998 act of approving the ROI constituted the filing of administrative charges, under section 730(b)(1), and therefore the charges were filed timely. Officer Zarragoitia responds that Captain Jones’s approval of the ROI did nothing more than pass the ROI up the chain of command for further review of the allegations in the complaint and Sergeant Taylor’s recommendations. He maintains that the circuit court correctly concluded that it was the Department’s issuance of a DAR on January ¹⁸⁰ .4, 1999, that constituted the filing of administrative charges.

Because that did not occur until more than one year after December 5,1997, the charges were time-barred. In an action tried without a jury, we review the case on both the law and the evidence. Md. Rule 8-131(c). We must accept the trial court’s findings of fact unless they are clearly erroneous.

In re Joshua David C., 116 Md.App. 580, 592 , 698 A.2d 1155 (1997) (citing Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990)). With respect to questions of law, however, we do not defer to the decision of the trial court; rather, we must be satisfied that the trial court was legally correct. Baran v. Jaskulski, 114 Md.App. 322, 331 , 689 A.2d 1283 (1997). Because in this case the Department does not challenge any of the trial court’s factual