Robinson v. Baltimore Police Department

BARBERA, J. The Law Enforcement Officers’ Bill of Rights (hereinafter “LEOBR”) mandates that law enforcement agencies file administrative charges against a law enforcement officer “within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.” Md.Code (2003), § 3-106(a) of the Public Safety Article. 1 With this case, we determine when the limitations period set forth in § 3-106(a) begins to run for a charge that is based on a materially false statement that a law enforcement officer makes during an administrative investigation of suspected misconduct by the officer. For the reasons that follow, we hold that the limitations period begins when the officer makes the false statement, not when the earlier misconduct that underlies the investigation was alleged to have occurred. I. On February 22, 2007, an officer of the Baltimore Police Department (hereinafter “BPD”) arrested Teressa Houssain 2 ⁴⁴ on a charge of prostitution. During the arrest, Ms. Houssain revealed that she had recently engaged in sexual intercourse with a “Sergeant Steve Robinson” of the BPD.

The BPD’s Internal Investigation Division (hereinafter “IID”) confirmed that the person with whom Ms. Houssain had the sexual encounter is Gregory Robinson (hereinafter “Petitioner”). Ms. Houssain alleged the following in a subsequent interview with the BPD conducted on February 22, 2007: Three days earlier she approached a silver sports utility vehicle in the southwestern area of Baltimore City. Inside the vehicle was Petitioner, who introduced himself as “Steve” and propositioned her for sex. Ms. Houssain agreed to the proposition.

Petitioner then drove the two of them a few blocks to an empty Park and Ride lot. At that point, Petitioner showed Ms. Houssain a Baltimore City Police Identification Card with the last name “Robinson” printed on it, and he explained that he was a police officer. Ms. Houssain feared that she would be arrested, but after a few minutes of conversation Petitioner stated that “they could have sex now.” He and Ms. Houssain entered the back seat of the SUV, where they engaged in sexual intercourse. Ms. Houssain specified that, during the intercourse, Petitioner brandished his firearm, but he never pointed the gun directly at her.

The matter was referred to the IID of the BPD later on February 22, 2007. When it was discovered that the incident involving Ms. Houssain and Petitioner occurred in Baltimore County, not Baltimore City as originally thought, the matter was forwarded to the Baltimore County Police Department to determine whether criminal charges should be brought against Petitioner. The next day, February 23, 2007, detectives from the Baltimore County Police Department interviewed Ms. Houssain and concluded that her criminal allegations were “unfounded.” Having no criminal conduct to pursue, the Baltimore County Police returned the matter to the IID, for it to continue its administrative investigation of the incident. ⁴⁵ During the ensuing investigation, the IID investigators retrieved video-camera footage of the Park and Ride lot where, and from the date on which, Ms. Houssain alleged the sexual assault occurred. The investigators also re-interviewed Ms. Houssain, interviewed potential witnesses from Johns Hopkins Hospital, investigated Petitioner’s overtime records, and attempted to retrieve his phone records.

On May 22, 2007, the IID served Petitioner with a Notification of Complaint, which stated: “[I]t is alleged that on February 19, 2007, you engaged in sexual misconduct while on duty.” The IID investigators interviewed Petitioner on July 11, 2007, and again on August 1, 2007. During those interviews, Petitioner claimed not to recognize or know Ms. Houssain and denied having any sexual contact with her. Petitioner told the investigators that on the day of the alleged encounter he was not driving a sport utility vehicle, as Ms. Houssain alleged, but rather was driving his personal sedan. He provided the investigators with EZ Pass documentation in support of that statement.

Petitioner further explained that he chose to drive his personal sedan because his supervisor had trained him to use a personal vehicle while organizing prostitution sting operations. Petitioner also told the investigators that he was unfamiliar with the location of the alleged sexual encounter and had not been there on the date in question. 3 The IID discovered through its investigation the apparent falsity of a number of the statements, material to the investigation, that Petitioner made during the July 11 and August 1 interviews. Specifically, the IID had information, gleaned from the above-described video-camera footage, that Petitioner and Ms. Houssain were together in his personally owned, silver-colored sport utility vehicle at the Park and Ride lot on the day in question, February 19, 2007. That information refuted Petitioner’s statements to the investigators that he did not know Ms. Houssain, was not familiar with the Park and Ride lot where the sexual activity was alleged to have oc ⁴⁶ curred, and had not been driving his sport utility vehicle at the time of the alleged misconduct.

That information in turn demonstrated as fraudulent the EZ Pass documentation that Petitioner had presented to the investigators. The IID further ascertained that, contrary to what Petitioner told the investigators, his supervisor had not trained him to use a personal vehicle in prostitution sting operations. On June 26, 2008, the BPD administratively charged Petitioner with six violations of BPD General Orders. The charges arose out of Petitioner’s alleged sexual conduct with Ms. Houssain on February 19, 2007 (Charges 1, 2, 4, and 5); his conduct over the course of his career with BPD (Charges 1 and 6); and his alleged false statements to IID investigators on July 11, 2007 and August 1, 2007 (Charge 3, hereinafter the “false statement charge”).

The false statement charge, of interest to us here, was based on BPD General Order C-2, 2-88, Rule 1, Section 17, which provides: “No member of the department shall knowingly make any false statement or misrepresentation of any material fact, oral or written, under any circumstances, with the intent to mislead any person or tribunal.” The specifications to the false statement charge alleged that Petitioner made six false statements at the July 11, 2007 interview and three false statements at the August 1, 2007 interview, including a statement that he did not know Ms. Houssain and did not have sexual contact with her; a statement that he drove his personal sedan, rather than his sport utility vehicle, on the date that alleged misconduct occurred; a statement that he was unfamiliar with the Park and Ride area where the alleged misconduct took place; a statement that his supervisor instructed him to use personal vehicles when organizing prostitution sting operations; and production of EZ Pass documentation that proved to be fraudulent. On July 11, 2008, a charging committee of the BPD reviewed the charges. That committee agreed with the IID’s formal recommendation to terminate Petitioner. ⁴⁷ Petitioner filed a Complaint and Petition to Show Cause in the Circuit Court for Baltimore City, 4 alleging that all six of the administrative charges were barred by the one-year statute of limitations set forth in § 3-106 of the LEOBR. That section provides: (a) In general. — Subject to subsection (b) of this section, a law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.

(b) Exception. — The 1-year limitation of subsection (a) of this section does not apply to charges that relate to criminal activity or excessive force. Petitioner contended that the BPD learned of his encounter with Ms. Houssain on February 22, 2007; therefore, all charges arising from that encounter, including the false statement charge, must have been filed by February 22, 2008. Petitioner took the position that the alleged false statements were “part and parcel” of the February 19, 2007 misconduct. Petitioner added that the BPD had an administrative policy of treating false statement charges, for statute of limitations purposes, as an extension of the charges for the underlying misconduct, and the BPD was legally bound to follow that policy.

The BPD moved for summary judgment, arguing that the false statement charge was not time-barred under § 3-106(a), and, in any event, all the charges, including the false statement charge, came within the ambit of § 3-106(b), because all the charges related to “criminal activity.” Petitioner filed an opposition and cross-motion for summary judgment. Perti ⁴⁸ nent here, he continued to argue that all the charges were time-barred. The cross-motions for summary judgment came on for a hearing. At its conclusion, the Circuit Court granted the BPD’s cross-motion as it related to the false statement charge, ruling that it was filed within the one-year limitations window.

The court otherwise denied the motion and cross-motion, ruling that there were disputes of material fact related to the remaining charges. Petitioner voluntarily dismissed the balance of his claims in the Complaint (all of which related to the remaining charges). 5 He then appealed the judgment to the Court of Special Appeals, where he presented the same two arguments he had raised before the Circuit Court: (1) the false statement charge was time-barred because the one-year statute of limitations set forth in § 3-106 began to run on the date that the underlying incident came to the attention of the BPD (undisputedly, February 22, 2007), not on the dates that the respective false statements were made to the IID investigators; and (2) the false statement charge was brought in violation of the so-called Accardi doctrine 6 because, in Petitioner’s words, the BPD “failed to adhere to its own policy of dismissing false statement charges that are charged with the same case num ⁴⁹ ber as the underlying charges.” The Court of Special Appeals, in an unreported opinion, rejected both arguments and affirmed the judgment of the Circuit Court. Petitioner filed a petition for a writ of certiorari, which we granted to answer the following question: Under the Law Enforcement Officers’ Bill of Rights, does the same one-year statute of limitations date which began when the initial incident came to the agency’s attention also apply to allegations of a false statement made during a subsequent Internal Investigation Division interview? Notwithstanding that this question is limited to whether the false statement charge was time barred, Petitioner devoted a few pages of his opening brief to an entirely separate argument — that he is entitled to dismissal of the false statement charge because the BPD, in his words, “ignored its own internal policies” when filing that charge.

The BPD likewise briefed the issue. We decline to address the argument, because Petitioner did not present the argument in a separate question in his petition for certiorari, and the argument is not embraced by the question he did present. See Md. Rule 8-131(b); Gar ner v. Archers Glen Partners, Inc., 405 Md. 43, 60-61 , 949 A.2d 639, 649 (2008) (stating: “[Sjince the time when this Court’s jurisdiction became largely dependent upon the issuance of a writ of certiorari, we have consistently held that, in a case decided by an intermediate appellate court, we shall not consider an issue unless it was raised in a certiorari petition, a cross-petition, or the order by this Court granting certiorari”; and declining to address an issue that was “not raised fairly in an otherwise