Sheriff of Balto. City v. Abshire

Gilbert, C. J., delivered the opinion of the Court. ²⁵⁷ The Sheriff 1 of Baltimore City is of the mind that Thomas Abshire should not be allowed to continue employment as a deputy sheriff, so the Sheriff preferred charges against Abshire before the Secretary of Personnel of the State of Maryland. Specifically, Abshire was alleged by the Sheriff to have violated State Employee Personnel Rules .47 B and D. COMAR 06.01.01.47 B, D. Those two sections of the Rule provide: “B. That the employee has been wantonly careless or negligent in the performance of his duty or has used unwarrantable or excessive force in his treatment of public charges, fellow employees, or other persons. D. That the employee has violated any lawful official regulation or order or failed to obey any lawful and reasonable directive given by his superior officer when such violation or failure to obey amounts to insubordination, a serious breach of discipline which may reasonably be expected to result in lower morale in the organization or to result in loss or injury to the State or public.” A hearing was held before the Secretary’s designated representative on July 10, 1978. As a result of that hearing, the Secretary determined “that the charges against Abshire have not been sustained by a preponderance of the evidence.” He ordered Abshire “returned to duty with full back pay and benefits...

In so holding, the Secretary was critical of the Sheriff’s suspending Abshire on May 9, 1978, and simultaneously ²⁵⁸ ordering him to remain on duty. 2 A further criticism was directed at an intraoffice procedure whereby when an employee requested a day off, no response was deemed to be approval. Needless to say, if the supervisor, for whatever reason, did not receive the request, the employee would, nevertheless, believe the supervisor’s silence was approval. The opportunity of the employee’s thus being misled to his peril is obvious. Frustrated by the Secretary’s ruling, a ruling it is to be noted that was brought about by the Sheriff’s filing of charges with the Secretary, the Sheriff appealed to the Baltimore City Court.

Subsequently, the Sheriff’s tactics were substantially altered. While the original petition, Md. Rule B 2 e, attacked the Secretary’s jurisdiction under the Maryland Constitution, Article IV, Section 44 3 and Md. Courts and Judicial Proceedings Code Ann. § 2-309 (d) 4 an ²⁵⁹ amended petition raised the additional ground that the Secretary lacked jurisdiction over the matter because of the Law Enforcement Officers’ Bill of Rights, (LEOBR). Md. Ann. Code art. 27, §§ 727-734 (D). The Sheriff was again rebuffed when the Baltimore City Court (Sodaro, J.) granted Abshire’s motion for summary judgment.

The court held that “deputy sheriffs in Baltimore City are included in the State Merit System and that disciplinary actions are not controlled by the provisions of the Law Enforcement Officers’ Bill of Rights.” The Sheriff continues in his unrelenting effort to fire Abshire by bringing an appeal to this Court where he challenges the Secretary’s jurisdiction over deputy sheriffs in Baltimore City and the award of back pay to Abshire. Interlaced with the latter contention is the much berated but still very viable doctrine of sovereign immunity. The funds to pay Abshire were available had he continued employment. Inasmuch as he was suspended, not fired, those same funds are still included within the Sheriff’s budget.

Consequently, unlike Frosburg v. State Department of Personnel, 37 Md. App. 18 , 375 A.2d 582 (1977), the Sheriff had the wherewithal to pay the accrued salary. The remaining contentions that the appellant raises to sustain his position that the back pay award was contrary to law were not decided by the trial judge, and we do not reach them. Md. Rule 1085. It is ironic that the Sheriff, who initially invoked the jurisdiction of the Secretary of Personnel now asserts that the Secretary did not possess the authority to hear the matter irrespective of Md. Ann. Code art. 64A, § 9E.

That section, enacted as Laws 1971, ch. 519 declares: “Notwithstanding any provisions in § 3 of this article or elsewhere, all employees of the Sheriff’s ²⁶⁰ office in Baltimore City, excepting the Sheriff, are part of the classified service. Any employee of the Sheriffs office who has been employed for at least six months on July 1,1971, shall be a member of the classified service of the State as provided in this article, without further examination or qualification.” If section 9E is controlling, then the City court’s action in affirming the decision of the Secretary is absolutely correct. The obvious question then is what is the effect of the LEOBR on the instant case, and most particularly, on the Merit System Law, Md. Ann. Code art. 64A? The answer to the inquiry must be found by an analysis of the LEOBR considered in juxtaposition with the Merit System Law.

When originally enacted as Laws 1974, ch. 722, the LEOBR added eight new sections to Md. Ann. Code art. 27, namely, sections 727 through 734. Section 727 (b) defined a “law enforcement officer” as: “any person who, in his official capacity, is authorized by law to make arrests and who is a member of one of the following law enforcement agencies: (1) The Maryland State Police; or (2) The Baltimore City police department; or (3) The police department, bureau, or force of any county; or (4) The police department, bureau, or force of any incorporated city or town; or (5) The office of the Sheriff of any county; or (6) The police department, bureau, or force of any bicounty agency or the University of Maryland.” 5 (Emphasis supplied.) ²⁶¹ Significantly absent, by specific reference thereto, from the list of law enforcement agencies included within the ambit is the office of the Sheriff of Baltimore City. The Sheriff, however, argues that Md. Ann. Code art. 1, § 14, places his office under the LEOBR. Art. 1, § 14 provides: “The word county shall be construed to include the City of Baltimore, unless such construction would be unreasonable.” The appellee asserts that construing the word county, as used in the LEOBR, to include Baltimore City would be unreasonable.

Appellee points to the specific reference to the Baltimore City Police Department in Md. Ann. Code art. 27, § 727(b) (2) as a clear indication that the Legislature did not mean for the office of Sheriff of Baltimore City to be within the protection of the LEOBR. Appellee says that otherwise there was no need, rhyme or reason for the General Assembly to have made the specific reference to the Baltimore City Police inasmuch as they would have been included within section 727 (b) (3) or (4), unless the law makers intended to differentiate between Baltimore City and the counties. Thus, appellee contends, for the courts to interpret “county” to mean “City of Baltimore” would, in the circumstances, be unreasonable. To bolster his argument, appellee refers to an unpublished opinion of the Attorney General dated May 24, 1978, addressed to a member of the House of Delegates.

In that opinion the Attorney General observed that “[njowhere in this section [Md. Ann. Code art. 27, § 727] is the Office of the Sheriff of Baltimore City mentioned.” The opinion goes on to state: “At the time the Law Enforcement Officers’ Bill of Rights was enacted in 1974 and amended in 1975, ²⁶² the Office of Sheriff of Baltimore City had very little general law enforcement function. The deputies were primarily process servers and, unlike any other sheriffs office in this State, were expressly included within the comprehensive State Merit System Law.” The opinion notes that Md. Ann. Code art. 64A, § 9E places all Baltimore City deputy sheriffs in the “classified system.” The then Attorney General changed his point of view as to whether the office of Sheriff of Baltimore City is embraced within the LEOBR. 6 The State here endeavors to erode the effect of the unpublished opinion by characterizing it as a “one-signature opinion,” “drafted when the status of deputy sheriffs in Baltimore City were in a state of extreme flux,” of little influence inasmuch as it was unpublished, “the reasoning ... will not withstand scrutiny and ... it conflicts with the conclusion of an earlier published opinion. 61 Opinions of the Attorney General 668, 670 (1976).” We observe no conflict between 61 Opinions of the Attorney General 668 and the unpublished opinion of 1978. The published opinion deals solely with whether the Police Training Commission was required to provide the law enforcement training mandated by Md. Ann. Code art. 41, § 70A to deputy sheriffs of Baltimore City. The answer supplied in the opinion was that it depends upon the duties assigned to the deputy.

Moreover, section 70A (a) (4) and (5) remove any doubt as to its application to