Redding v. Board of County Commissioners

Barnes, J., delivered the opinion of the Court. The question presented to us in this appeal is whether the Circuit Court for Prince George’s County (McCul ⁹⁶ lough, J.) erred in passing an order on January 4, 1971, declaring an order of the Board of Administrative Appeals for Prince George’s County (Board of Appeals), dated June 22, 1970, null and void. The Board of Appeals had, on March 13, 1970, by a vote of two to one, sustained the findings of the Chief of Police dismissing the appellant, Michael D. Redding, from the police force of the county. Later, on the motion of Redding, the Board of Appeals granted a rehearing which was held on May 18, 1970, and thereafter reinstated Redding as a county police officer upon the payment of a $200 fine with suspension for three months from the time of his original dismissal by the Chief of Police.

Vincent S. Free, Chief of Police of the Police Force of Prince George’s County (Chief Free), notified Redding on December 30, 1969, to appear before the Police Trial Board on January 6, 1970, to answer two charges against Redding, as follows: “(1) Section 15-14-C-12 Conduct unbecoming an officer on December 20, 1969; wherein you [did] fail to conduct yourself in such a manner as would redound to the credit of the Department. “(2) Section 15-14-C-20 You did intentionally violate a law of the State of Maryland, in that you did take, steal, and carry away and convert to your own use one (1) racing type jacket, valued at $8.97, the property of Zayre Corporation.” After a hearing the Trial Board found Redding not guilty of charge (2) but guilty of charge (1). It recommended to Chief Free that Redding be dismissed from the force. On January 12, 1970, Chief Free notified Red-ding of the action of the Trial Board and that he concurred in its recommendation that Redding be dismissed from the force. Chief Free also notified Redding that he had five days within which to appeal to the Board of Appeals.

Redding took an appeal through counsel and a ⁹⁷ hearing before the Board of Appeals was held on March 2, 1970. At this hearing all three members of the Board of Appeals were present, i.e., William G. Fawsett, Chairman; Simon M. Pristoop, Vice Chairman and Robert S. Miller, Member. Also present were the following counsel: Martin A. Hertz, Assistant County Attorney, Counsel for the Police Department, Robert J, Flynn, Counsel for the Board of Appeals, Fred R. Joseph, Counsel for Redding. Mr. Flynn stated on behalf of the Board of Appeals that the procedure to be followed was that counsel for the Police Department would introduce into evidence a tape recording of the proceedings before the Trial Board, the findings of fact by the Trial Board and a summary of evidence—that is, all of the testimony before the Trial Board.

He further stated that if counsel for the Police Department wished to put on additional evidence, he could do this; and counsel for Redding could put on whatever defense he might have. Then the following appears in the record: “MR. JOSEPH: Mr. Chairman, in regard to the question of stipulations, may I state at the outset that Officer Redding wants to facilitate matters here as much as possible; get them over with. We have no intention whatsoever of complicating the proceedings.

However, it is our feeling that the burden is still upon the County, upon the police, in this case, and that with that burden goes the necessity that they prove their case. “Now, there were certain witnesses brought before the Trial Board, Police Board. It is my opinion that a reading of what the police or the County Attorney recalls their statement to be does not present the evidence in the light of that hearing. I think in judging the weight of cer ⁹⁸ tain testimony it is necessary to see the individuals and hear from them in person. I state this in regard, most specifically, to the, so to speak, accusing representative of the Zayre’s Store, Mr. Friedhoff, who I think does not come out nearly as bad from the reading of the Findings of Fact as he did at the Trial Board. “So I would state I would be willing to make certain stipulations.

I do not, however, stipulate every single thing in that Finding of Fact as being entirely accurate in the report. May I respectfully state our feeling that the burden is still upon the County, and they must prove the case. We feel we have brought our witnesses and we are willing to go forward.” * * * “CHAIRMAN FAWSETT: You are not objecting to this being admitted in evidence and you don’t object to the Board giving whatever consideration or weight that we believe that it deserves ? “MR. JOSEPH: Right. “CHAIRMAN FAWSETT: The only additional evidence that we have will be witnesses that you see fit to call and which you have here tonight? “MR.

JOSEPH: Correct.” Mr. Joseph then stated: “And I want to make clear that we still feel that the burden is upon the County to prove its case, and that it must do so with evidence. I think it also should be made clear that Officer Redding and his attorney had nothing to do with the preparation of these Findings of Fact nor were we consulted in regard to said preparation.” After making an opening statement to the Board of Appeals, Mr. Hertz offered the tapes of the proceedings before the Trial Board at its hearing on January 6, 1970, ⁹⁹ which were received into evidence, without objection, as “County’s Exhibit No. 1.” Mr. Hertz then offered, without objection, the Findings of Fact and Conclusions of Law of the Trial Board, including a Report of Sergeant Edward J. Armstrong, as “County’s Exhibit No. 2,” and a Customer’s Receipt for $24.95 from Zayre, which was part of the record before the Trial Board, marked “County’s Exhibit No. 3.” Thereafter, Mr. Hertz asked to be excused from the hearing, indicating that he believed the Prince George’s County Police Department had established a prima facie case and that he was waiving his right to cross-examine any witnesses offered by Redding. He was excused and thereafter Redding introduced his own and other testimony in his defense. In the Findings of Fact and Conclusions of Law, the charges against Redding are recited with a list of those members of the Prince George’s County Police Department who comprised the Trial Board—a Major, a Captain, a Lieutenant, a Sergeant and a Private.

It was also recited that Mr. Hertz and Mr. Joseph were present, representing the Prince George’s County Police Department and Redding, respectively. Redding was also present. The testimony of seven witnesses was thereafter summarized. Charles R. Friedhoff, Assistant Manager for Suitomat, a leased department at Zayre’s Department Store at Capital Heights, testified that he had been employed at that store for approximately one month.

His initial contact with Redding was in the Men’s Room of the store where Redding was changing his socks. Friedhoff stated that he knew nothing about the socks, as to whether they had been paid for. On December 20, 1969, Friedhoff, as he was leaving the store, was confronted by Redding who asked him about the jacket that had been placed underneath his counter in the Suitomat Department and asked Friedhoff if he would put the jacket in a bag and that Redding would pick it up later. Friedhoff stated that ¹⁰⁰ he then went back to the Suitomat Department and told Danny Dyer (James Daniel Dyer, the next witness) to put the jacket in a bag for Officer Redding.

Dyer replied that he was not supposed to do this, it being against company regulations and that he could not do it. Friedhoff told Dyer that it was all right, not to “sweat” it, that the officer knew what he was doing. Thereafter, Friedhoff left the store. James Daniel Dyer, who had been employed by the Suitomat Department for approximately six weeks as a salesman, stated that it was against company regulations to give anyone any kind of gift.

On December 20, 1969, he reported for work and, after straightening up his counter, placed a jacket that was under his counter back on the shelf in the Automotive Department as it had been lying under his counter for a week. Later, he was approached by Friedhoff, who inquired where the coat was. Dyer did not know that he was referring to the jacket he had placed back on the shelf. Friedhoff then went to the Automotive Department, got the jacket and placed it back under the counter.

Before Friedhoff left the store, he called Dyer aside and told him to put the jacket in a bag when the officer came back for it and to put the security tape on it and to keep his mouth shut. Dyer stated that by placing the red security tape on the package, it was indicated that the package was paid for. Dyer then told Friedhoff that he should not do this and was told by Friedhoff to keep his mouth shut. Dyer did not comply with Friedhoff’s orders because he knew it was wrong.

After thinking about the matter and being uncertain about what to do, Dyer called the Manager of the Suitomat Department, Mr. Elman, and related to him what had happened. Mr. Elman said the situation would be taken care of. Dyer understood that Elman had called Mr. Schmidt, Manager of the Zayre Corporation, but did not know of any action taken by Schmidt at that time. Approximately ten minutes later, while Dyer was waiting on customers, Redding walked back to the Suitomat ¹⁰¹ Department and Dyer asked him when he was going to take the jacket.

Redding replied, “When do you want me to get it?” and Dyer replied, “as soon as possible.” Redding then took a bag, placed the jacket in it, put security tape on the bag and wrote his name on the security tape. He then placed the bag underneath the counter, walked past Dyer and a security guard, Mr. Mason, who was a short distance away. Dyer went over and checked the bag to make sure that he had made no mistake about what he had seen. Later, Redding came back to the Suitomat Department, took the jacket and walked out of the Suitomat Department.

On December 31, Dyer talked to Redding at which time Redding stated that he was in trouble and that the jacket, as well as the socks, was a gift to him. Dyer knew nothing about the socks. Sergeant Edward J. Armstrong, of the Inspectional Services Division of the Prince George’s County Police Department, testified in accordance with his Report on the Redding matter. His full Report was attached, consisting of ten single spaced, letter size pages.

From this Report, it appears that William Elman, Manager of the Suitomat Department, had telephoned Mr. Monihan, General Manager of the Zayre Store, who told him that Redding had placed a jacket in a bag from the Automotive Department, placed a red security tape on it and placed the package under the counter of the Suitomat Department. Monihan then called James Thomas, who was in charge of Security for the Zayre Corporation in the Washington District, and gave him this information, and later called him to tell him that Monihan had observed Redding leave the store with a package, go to an automobile and return without the package. Thomas then went to the store, spoke to Monihan who pointed out a row of automobiles, stating that Redding had placed the package in a white car. Thomas then went to the parking lot, looked into the white car (an Austin American) and saw on the front seat a Zayre bag with a red security tape on it, but no receipt.

The coat of a Prince George’s ¹⁰² County Policeman was hanging in the back of the white car. By inquiry, the white car was identified as owned by Redding. Thomas outlined the procedure for employees to make purchases. (Police officers assigned to this detail were considered employees.) All such purchases must be taken through cash register No. 12 where the employee pays for the item purchased and the item is then placed in a regular bag, secured by a red tape approximately one inch wide (a security tape) on which the employee’s name is written.

Security personnel are thus enabled to check employee purchases. Cash register No. 12 was then checked and no item from Department No. 53, the Automotive Department, for $8.97, the price of the jacket appeared. Then, all cash registers were checked, with the same result. Sergeant Armstrong thereafter interviewed Friedhoff and Dyer.

Their statements to him were substantially the same as already set forth. Monihan confirmed the statement made by Thomas. Mr. Mason, the security officer, observed Redding take the bag but had no reason to be suspicious about it because it had the security tape on it. He notified Thomas that he had observed Redding take the bag out.

In regard to Redding’s statement, the Report stated that Redding first related that he placed one bag containing several other bags under the counter of the Suitomat Department about 9:00 p.m. on December 20. Sergeant Armstrong then stated that the matter had been fully investigated and for Redding “to be honest with us.” Redding then stated, “Okay, I can’t lie too good, I’ll be honest with you.” He then made a complete admission to Lieutenant Turner and Sergeant Armstrong in regard to what he did. He placed the jacket under the Suitomat counter, placed it in a Zayre bag, put on the security tape, signed his name on the security tape and took the jacket from the premises; he did not pay for it nor did he have permission to take the jacket. He stated that he thought that Friedhoff was giving him the jacket as a gift.

He was asked, “Did anyone say to you that the ¹⁰³ coat was a gift and that you didn’t have to pay for it?” to which he replied, “No, I just had the feeling it was a gift.” He was asked further, if he thought it was a gift, why did he go to the trouble of putting the jacket in a Zayre bag and placing the security tape on it, to which Redding replied, “I did it right out in the open.” Redding stated to Armstrong that upon learning of the investigation on December 22, he hid the jacket but would not state where it was, saying that he would either produce the jacket or make restitution in the amount of the value of the jacket. He volunteered that Friedhoff knew he was going to take the jacket and not pay for it. After the interview, Lieutenant Turner advised Redding that he was suspended for conduct unbecoming to a police officer. A formal notice of suspension was thereafter issued.

Redding then testified. He stated that he had purchased a coat from the Suitomat Department and that Friedhoff had given him a 20% discount on the coat. A customer’s sales slip, No. 27802 in the amount of $24.95, dated “12/12” and signed by Friedhoff was introduced into evidence. He testified that Friedhoff had made him a gift of the jacket in question.

The details in regard to placing the jacket under the counter, statements by Friedhoff and other matters were given but the account given by Sergeant Armstrong was in substance confirmed including his original statements and his later statement that it was no use to lie. Redding also stated that he first met Friedhoff when changing socks in the Men’s Room. He took the socks because he was in a hurry and did not wish to stand in line to buy things. When he asked Friedhoff where he could pay for them, Friedhoff stated that he would take care of them.

George Bernard Norris, a private in the Prince George’s County Police Department, testified that he had heard Friedhoff state to Redding on December 20 that “your jacket is ready.” Later, Redding gave the jacket to Norris to return to the store after Redding had been suspended. Norris stated that Redding “is a good police of ¹⁰⁴ fleer and an asset to the Prince George’s County Police Department.” Two other privates in the Prince George’s County Police Department, Officers Mumaw and Savoy, also testified that Redding was a good police officer and an asset to the force. It was noted that the jacket was admitted in evidence as Police Department Exhibit No. 1. The conclusion reached by the Trial Board was that Redding was not guilty under Section 15-14, C-20 of intentionally stealing the jacket but was guilty under Section 15-14, C-12 of conduct unbecoming an officer, “* * * by unauthorized conversion to your own use of merchandise which was the property of Zayre’s Corporation It was recommended that Redding be dismissed from the Police Department.

The two tapes—running for some eight hours—have been played to ascertain whether the Findings of Fact were supported by the evidence taken and presented a fair summary of that testimony. In our opinion, the Findings of Fact are supported by the testimony and represent a fair summary of the