Rivieri v. Baltimore Police Department

EYLER, J. This appeal arises out of the termination of Salvatore Rivi-eri, appellant, from the Baltimore Police Department (“the Department”), appellee, by Police Commissioner Frederick H. Bealefeld, III (“the Commissioner”). Pursuant to its powers under Maryland Code (2011 Repl.Yol.) §§ 3-107 and 3-108 of the Public Safety Article (“P.S.”), an administrative hearing board found appellant guilty of failure to write a miscellaneous incident report and failure to issue a contact receipt, stemming from an incident which occurred at the Inner Harbor in the summer of 2007. The hearing board recommended that appel ⁶⁶⁶ lant receive a simple letter of reprimand, a six day suspension, and a loss of six days of accrued leave. On August 25, 2010, the Commissioner increased the hearing board’s recommended sanction and terminated appellant from the Department, pursuant to his power under P.S. § 3-108(d).

On August 27, 2010, appellant filed a Petition for Judicial Review in the Circuit Court for Baltimore City. The court affirmed the Commissioner on February 28, 2011. This timely appeal, based on the Law Enforcement Officers’ Bill of Rights (LEOBR), followed. For the reasons set forth below, we shall affirm.

Factual and Procedural Background Sometime in the summer of 2007, appellant was on duty patrolling the Baltimore Inner Harbor. He observed several juveniles riding their skateboards near posted signs indicating that skateboarding was prohibited. Appellant told the juveniles they were not allowed to skateboard in that area. After this admonition, appellant observed at least one individual continuing to skateboard.

Appellant directly spoke with one of the juveniles, Eric Bush, and instructed Mr. Bush to give appellant Mr. Bush’s skateboard. When Mr. Bush refused to hand over the skateboard, appellant took Mr. Bush to the ground. Mr. Bush attempted to get up from the ground, but appellant pushed him back down on the ground with an open hand. Mr. Bush’s friend videotaped the encounter and later posted it on the internet website “YouTube.” National media reported on the incident.

As a result of this incident, on June 15, 2009, the Department charged appellant with five violations of the Baltimore Police Department General Orders. The first charge included eight counts of conduct unbecoming a member of the Baltimore Police Department, including unnecessary use of force, assault, use of profane language, failure to issue Mr. Bush a Citizen/Police Contact Receipt, and failure to submit a Miscellaneous Incident Report to appellant’s supervisor. The second charge included two counts of unnecessary force and/or violence. The third charge again included a count of failure to ⁶⁶⁷ submit a Miscellaneous Incident Report.

The fourth charge again included a count of failure to issue Mr. Bush a Citizen/Police Contact Receipt. The fifth and final charge included two counts of neglect of duty, comprised again of one count of failure to submit a Miscellaneous Incident Report and one count of failure to issue Mr. Bush a Citizen/Police Contact Receipt. The Department assembled an administrative hearing board to adjudicate these charges on July 15 and 16, 2010. The board found appellant guilty of charges one, three, four, and five solely on his failure to write a Miscellaneous Incident Report and his failure to issue Mr. Bush a Citizen/Police Contact Receipt.

The board found appellant not guilty of all charges relating to his use of force, language, or demeanor during this incident. The board recommended that appellant receive a simple letter of reprimand, a six day suspension, and the loss of six days of accrued leave. On August 25, 2010, however, the Commissioner terminated appellant as a result of this incident, reasoning that: In light of Officer Rivieri’s conduct, as seen on the CD of the YouTube footage, his ability to interact effectively with the citizens of Baltimore has been seriously compromised. Based upon the conduct observed in the video, I have significant doubts about Officer Rivieri’s ability to carryout [sic] the Department’s mission for improved community relations.

His conduct, as captured on video, has brought discredit upon and undermined the public confidence in Officer Rivieri and the Baltimore Police Department, on a local, national, and even international scale. This incident—had this incident not been captured on video and because of Officer Rivieri’s failure to author any reporting, whatsoever, his conduct, as serious as it was, may have gone unnoticed and/or unreported. This failure left our Department completely unprepared to deal with the media firestorm and public outcry that ensued once the video surfaced on YouTube. Officer Rivieri’s failure to report his action is tantamount to trying to conceal his conduct and will not be tolerated. ⁶⁶⁸ Despite Officer Rivieri’s testimony to the contrary, the Trial Board found that he did not issue a Contact Receipt.

Officer Rivieri’s conduct reflects negatively on his viability as an effective prosecution witness, in light of the significant media and public attention the footage has garnered. I have given your statements in this case my full consideration. We shall include additional facts when we discuss the issues. Question Presented As phrased by appellant, the following questions are presented for our review: 1.

Is a police agency head’s increase of a trial board’s recommended punishment of an officer based on allegations for which the officer was found not guilty a violation of the Law Enforcement Officers’ Bill of Rights? 2. Does a police agency head’s reliance on an impermissi-bly vague general order violate a police officer’s due process rights? 3. Is retaliating against an officer for exercising rights guaranteed under the Law Enforcement Officers’ Bill of Rights improper? Standard of Review Appellate review of an administrative agency’s decision to terminate an employee is limited: “As long as an administrative sanction or decision does not exceed the agency’s authority, is not unlawful, and is supported by competent, material and substantial evidence, there can be no judicial reversal or modification of the decision based on disproportionality or abuse of discretion unless, under the facts of a particular case, the dispropor-tionality or abuse of discretion was so extreme and egregious that the reviewing court can properly deem the decision to be ‘arbitrary or capricious.’ ” Md. Transp.

Auth. v. King, 369 Md. 274, 291 , 799 A.2d 1246 (2002). We review an agency’s decision “in the light most ⁶⁶⁹ favorable to it” and its decision is “prima facie correct and presumed valid.” Md. Aviation Admin. v. Noland, 386 Md. 556 , 573 n. 3, 873 A.2d 1145 (2005) (internal citations omitted). Discussion The Commissioner lawfully increased the hearing board’s recommended punishment based upon “substantial evidence” supporting the board’s findings of appellant’s guilt. There is no evidence that the Commissioner was improperly motivated by media coverage of the incident.

The Commissioner’s statements prior to the board’s hearing did not violate appellant’s due process rights. The Commissioner was not required to follow the Disciplinary Matrix, and he did not unlawfully retaliate against appellant for exercising his right to a hearing. 1. The Commissioner’s Power to Increase a Recommended Sanction First, appellant claims that the Commissioner’s decision to terminate appellant violated appellant’s rights under the LEOBR because the Commissioner 1) improperly based his decision on actions for which appellant was found not guilty by the hearing board; 2) did not support his decision on the record with “substantial evidence”; 3) was improperly motivated by media coverage of the incident; and 4) improperly expressed judgments about the case prior to the hearing, thereby frustrating appellant’s due process rights. Appellant then asserts that in the face of such a violation, he is entitled to both reinstatement and back pay.

We shall discuss each argument in turn. A. The Commissioner’s Decision was Not Based on Not Guilty Findings First, appellant alleges that the Commissioner’s decision to terminate appellant was not based on the hearing board’s finding of guilt for failure to submit a Miscellaneous Incident Report or issue Mr. Bush a Citizen/Police Contact Receipt but rather on conduct for which appellant had been found not guilty by the board. Specifically, Appellant argues ⁶⁷⁰ that, in his statement, the Commissioner repeatedly referenced appellant’s “conduct” as seen on the YouTube video, even though the hearing board found appellant not guilty of any misconduct based on his language, behavior, or use of force. Appellant states that the Commissioner’s decision was arbitrary and capricious, especially in light of the fact that appellant was 13 months away from being eligible to retire with pension benefits and that the Department had never before lodged administrative charges against him.

The Department responds that the hearing board’s recommendation of sanction was not binding on the Commissioner. The Department argues that the Commissioner based his decision on the fact that the Department was unprepared to deal with the media fallout from the incident because of appellant’s failure to document the encounter. The Commissioner also cited his concern that appellant would be an easily impeachable prosecution witness in the future due to his claim that he had in fact issued a Citizen/Police Contact receipt. Appellant is correct that the Commissioner cannot overturn the hearing board’s factual findings of guilt or non-guilt.

See P.S. § 3—108(a)(3). Nevertheless, “[t]he recommendation of a penalty by the hearing board is not binding on the chief.” P.S. § 3—108(d)(3). Thus, it follows that the Commissioner was able to increase the hearing board’s recommended sanction, as long as he based his decision on violations for which appellant was found guilty. See Coleman v. Anne Arundel County Police Deft, 369 Md. 108,147 , 797 A.2d 770 (2002) (“if the hearing board recommends the imposition of a disciplinary sanction, the chief of police makes the final determination whether to impose punishment based upon the findings, conclusions, and recommendations of the hearing board.”).

In determining a sanction, the Commissioner was entitled to consider the guilty findings in the context of the totality of the circumstances. The Commissioner was entitled to consider the conduct displayed in the video in determining the egregiousness of the failure to report in this situation. The Commissioner’s repeated references to the video were all ⁶⁷¹ given in relation to his doubts about appellant’s future ability to work with the public and the public opinion of the department, both of which, he concluded, were significantly affected by the fact that appellant did not report the actions captured in the video. Although the Commissioner could not overrule the hearing board’s not guilty findings, he did not do so here.

Appellant also claims that because the Commissioner stated that “Officer Rivieri’s failure to report his action is tantamount to trying to conceal his conduct and will not be tolerated,” the Commissioner improperly found appellant guilty of making a “false statement or misrepresentation” even though appellant was never charged with violating this rule. On the contrary, this statement helps explain why, based on all the facts in this case, the Commissioner chose to sanction a failure to report an incident so harshly. Based on the statements provided in the record, we cannot find that the Commissioner abused his discretion in such an extreme or egregious way that the resulting sanction was arbitrary or capricious, even in light of appellant’s strong employment record and his proximity to pension benefits. We are unable to reverse the Commissioner’s decision.

B. The Commissioner’s Decision is Supported by “Substantial Evidence” Next, appellant contends that his rights were violated under the LEOBR because the Commissioner’s decision to terminate him was not based on “substantial evidence.” Appellant cites P.S. § 3-108(d)(5)(iv), which provides that the Commissioner may only increase the trial board’s recommended penalty if, among other things, he personally “states on the record the substantial evidence relied on to support the increase of the recommended penalty.” Here, appellant does not argue that the Commissioner did not provide reasons for the termination on the record, but instead argues that the reasons given and evidence cited was not sufficiently “substantial” to justify increasing the recommended sanction. Appellant argues that the Commissioner’s ⁶⁷² decision was “based upon his own opinions, doubts, and speculation that were formed after observing various media reports of the incident.” Appellant argues that there was no evidence introduced at the hearing reflecting how appellant is now unable to interact with the public or carry out the Department’s mission for improved community relations. He also claims that there was no evidence in the record that the Department was unprepared to manage the media attention due to appellant’s failure to report the incident or that the Department would have behaved any differently had appellant reported the incident. Appellant also states that there was no evidence of any “local, national, and even international” outcry over the incident.

Finally, appellant argues that there is no evidence that he could no longer serve as a witness for the State in criminal cases. There are no reported cases which elaborate upon the concept of “substantial evidence” in this context. In VanDe-vander v. Voorhaar, the Sheriff increased the hearing board’s recommended punishment for an officer’s use of excessive force to termination. 136 Md.App. 621, 624 , 767 A.2d 339 (2001). We vacated the