Stone v. Cheverly Police Department

DEBORAH S. EYLER, J. The Cheverly Police Department (“CPD”) and Police Chief Harold “Buddy” Robshaw (collectively “the Town”), 1 the appellee, brought disciplinary charges against Corporal Earl Stone and Corporal Edmund Gizinski, 2 the appellants, pursuant to the Law Enforcement Officers’ Bill of Rights (“the LEOBR”), Md.Code (2003, 2011 RepLVol., 2015 Supp.), section 3-101 through 3-113 of the Public Safety Article (“PS”). 3 The Officers elected to be tried by a hearing board. Before the trial commenced, they filed suit in the Circuit Court for Prince George’s County, pursuant to section 3-105, seeking an order directing the Town to show cause why the charges should not be dismissed. They also asked the court to enjoin the Town from moving forward with the disciplinary charges until the court had ruled. The court held a hearing and entered an order denying the request for a show cause order and to dismiss the charges, and also denying the request for injunctive relief.

The Officers filed a notice of appeal from that order. Soon thereafter, ⁴²³ the hearing board trial went forward. The Officers declined to participate. The hearing board found them guilty on all charges.

Ultimately, they were terminated from employment as a sanction. Not having participated in the hearing board trial, the officers did not bring an action for judicial review. The Officers pose two questions for review, which we have rephrased: I. Did the circuit court err by denying their request for a show cause order and to dismiss the charges against them, when the charges were based on evidence the CPD obtained, in violation of their Fourth Amendment rights?

II

Did the circuit court err by not dismissing the charges against the Officers as being brought in unlawful retaliation for their testimony in favor of a fellow officer? We shall dismiss the appeal for failure to exhaust administrative remedies. The LEOBR The purpose of the LEOBR is to “guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal.” Blondell v. Baltimore City Police Dep’t, 341 Md. 680, 691 , 672 A.2d 639 (1996) (quoting Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682 , 366 A.2d 756 (1976)). When an investigation or interrogation of a law enforcement officer regarding alleged misconduct “results in a recommendation of demotion, dismissal, [or any other punitive measure], the law enforcement officer is entitled to a hearing on the issues by a hearing board before the law enforcement agency takes that action.” § 3-107(a).

Ordinarily, the hearing board shall be composed of no less than three law enforcement officers chosen by the chief of police, at least one of whom holds the same rank as the officer charged. § 3-107(c). The chief of police and the hearing board are authorized to issue subpoenas to compel the attendance of witnesses and the production of relevant documents and other evidence. § 3- ⁴²⁴ 107(d)(1). The officer also may request the issuance of subpoenas. § 3-107(d)(3). At the trial before the hearing board, the law enforcement agency and the officer both shall be given “ample opportunity to present evidence and argument about the issues involved” and shall be permitted to cross-examine witnesses called by the other party. § 3-107(e)(2) & (4).

Evidence is admissible if it has “probative value that is commonly accepted by reasonable and prudent individuals in the conduct of their affairs,” and is not “incompetent, irrelevant, immaterial, [or] unduly repetitious.” § 3-107(f)(1) & (2). The hearing board’s decision “shall be in writing and accompanied by findings of fact.” § 3-108(a)(l). If it finds the officer “not guilty,” the disciplinary action ends. § 3-108(a)(3). If it makes a finding of guilt, it must reconvene to receive additional evidence, consider the law enforcement officer’s past job performance, and make a recommendation to the chief of police about the appropriate sanction to impose. § 3-108(a)(4).

Within thirty days of the hearing board’s recommendation about a sanction, the chief of police shall issue a final disciplinary order. § 3-108(d). 4 An officer aggrieved by a final disciplinary order may challenge it in the circuit court, in an action for judicial review. § 3-109(a). Section 3-103 is entitled “Rights of law enforcement officers generally.” One such right, as set forth in subsection (d), is as follows: Retaliation. — A law enforcement officer may not be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise discriminated against in regard to the law enforcement officer’s employment or be threatened with that treatment because the law enforcement officer: (1) has exercised or demanded the rights granted by this subtitle; or ⁴²⁵ (2) has lawfully exercised constitutional rights. Finally, as relevant here, section 3-105, “Application for show cause order,” allows a law enforcement officer, in certain limited circumstances, to seek judicial intervention other than in a post-decision action for judicial review. Specifically, an officer “who is denied a right granted by [the LEOBR] may apply to the circuit court ... for an order that directs the law enforcement agency to show cause why the right should not be granted.” § 3-105(a).

The officer only may do so “prior to the beginning of a hearing by the hearing board.” § 3 — 105(b); see also Moose v. Fraternal Order of Police, 369 Md. 476, 482 , 800 A.2d 790 (2002). If the circuit court finds “that [the] law enforcement agency obtained evidence against [the] officer in violation of a right granted by [the LEOBR], the court shall grant appropriate relief.” § 3-105(c). FACTS AND PROCEEDINGS In their circuit court action invoking section 3-105, the officers complained 1) that the CPD intended to introduce, at the hearing board trial, evidence against them that was obtained in violation of their Fourth Amendment rights; and 2) that the CPD was pursuing the charges against them in retaliation for their having exercised their First Amendment rights. We shall summarize the facts related to both assertions, which are to some extent overlapping.

From July 16 through 18, 2012, Officer Francis Schmidt, who worked with the Officers, was tried by a hearing board on charges that he was involved in an accident in his police vehicle, but did not report it. The Officers testified on Officer Schmidt’s behalf. The trial resulted in an administrative decision to terminate Officer Schmidt’s employment. Officer Schmidt filed an action for judicial review.

More than a year later, in November and December of 2013, the Officers were working second jobs for a seasonal Christmas tree business owned and operated by one Elmer Ray Lynn. They formed the security detail for Lynn at his office, which was located in a hotel room at the Howard Johnson’s ⁴²⁶ Hotel (“the Hotel”) in Cheverly. On November 27, 2013, the CPD issued a memorandum to all officers directing that any secondary employment at the Hotel was to be restricted to the parking lot and lobby areas and that officers were not permitted to enter Lynn’s office. On December 8, 2013, the CPD opened an investigation into whether the Officers were violating the November 27, 2013 memorandum.

In the course of the investigation, Sergeant Jarod Towers, the officer in charge, viewed video surveillance footage from the Hotel recorded between November 29, 2013, and December 18, 2013. It showed the Officers entering Lynn’s hotel room on more than one occasion. It also showed the Officers socializing with other officers during hours that they were on-duty with the CPD. Sergeant Towers reviewed the daily duty log each Officer had completed at the end of each on-duty shift and determined that the Officers had made false entries on their logs.

The entries documented that they were conducting official police business at the very times the video surveillance footage showed them at the Hotel, socializing. On December 15, 2013, the Officers filed sworn affidavits in favor of Officer Schmidt in an EEOC case he had brought. In that case, Officer Schmidt was claiming that Chief Robshaw had unlawfully retaliated against him after he filed a workers’ compensation claim. On December 18, 2013, Lynn terminated both Officers’ secondary employment. 5 The next day, the CPD issued a new memorandum to its officers prohibiting them from engaging in any secondary employment with Lynn’s business.

On December 30, 2013, based on the information Sergeant Towers had obtained, the CPD installed global positional satellite (“GPS”) tracking devices on the Officers’ individually ⁴²⁷ assigned police cruisers. The GPS devices were affixed without a warrant and without the Officers’ knowledge or consent. 6 In the meantime, Officer Schmidt had argued in his judicial review action that his hearing board had been improperly constituted because a police chief from another law enforcement agency had been a member. The circuit court agreed and on October 15, 2013, issued an order remanding the case for a new trial before a new hearing board. In that hearing board trial, in early March of 2014, the Officers again testified on behalf of Officer Schmidt.

On March 7, 2014, the hearing board issued a decision finding Officer Schmidt guilty on several charges. 7 On July 23, 2014, the CPD served the Officers with Notices of Interrogation in connection with an investigation into allegations of conduct unbecoming, insubordination, false statements, false entry into public records, and neglect of duty over the period spanning November 23, 2013, through February 1, 2014. The notices stated that the CPD had initiated an investigation into the Officers’ “conduct during the time [each was] engaged in secondary employment at the [Hotel] ... and related to potential violations that include disobeying one or more direct orders, unauthorized use of police equipment and providing false information.” The notices further stated that the CPD also was investigating whether the Officers had made “inaccurate and/or false” entries on their daily duty logs during January of 2014. The Officers were ordered to appear for an interrogation on August 6, 2014. The Officers were served with amended Notices of Interrogation on August 5, 2014.

The amended notices specified that ⁴²⁸ the investigation into the period between November 23, 2013, and December 18, 2013, pertained to disobeying the memorandum directing officers not to enter any room at the Hotel and providing false statements to the dispatch officer regarding secondary employment at the Hotel. The investigation into the period between January 1, 2014, and February 1, 2014, pertained to the “accuracy of entries ... made ... on the [daily duty logs] concerning ... on-duty activities on approximately 15 dates and whether or not [the Officers] actually performed such duties.” On August 6, 2014, the Officers were interrogated separately, each with counsel present. That same day, the CPD suspended the Officers’ police powers pending the outcome of the investigation. They were assigned administrative duties.

On September 4, 2014, the CPD served Stone with twelve disciplinary charges, based on allegations that he made false statements on his daily duty logs on dates between November 30, 2013, and January 31, 2014; neglected his duties during January of 2014; and disobeyed an order not to enter any hotel room at the Hotel. That same day, the CPD served Gizinski with eight disciplinary charges, based on allegations that he made false statements on his daily duty logs on dates between December 11, 2013, and January 31, 2014; submitted false house check sheets on January 11, 2014; neglected his duties between January 11, 2014, and January 31, 2014; and made a false statement to a police sergeant on December 11, 2013. Disciplinary action reports served on the Officers stated that the recommended sanction for the disciplinary charges was termination. On September 25, 2014, the CPD served Stone with notice of a thirteenth charge, which alleged an additional false entry in his daily duty log on or about December 1, 2013.

The Officers requested that the charges be tried before a hearing board. The trial was scheduled to commence on December 8,2014. At the end of November of 2014, the CPD withdrew three charges against Gizinski and four charges against Stone, ⁴²⁹ holding them “in abeyance.” The withdrawn charges all pertained to conduct during December of 2013 relating to secondary employment at the Hotel. Thus, the active charges all concerned conduct by the Officers in January of 2014, when the GPS tracking devices were being used.

At some point not revealed in the record, the hearing board trial date was postponed until February 2, 2015, at the request of the CPD. On January 21, 2015, in the circuit court, the Officers filed a “Verified Complaint for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and for Order to Show Cause” against the CPD and Chief Robshaw, citing section 3-105. They attached 45 exhibits. The complaint set forth six counts, but only Counts I and VI are relevant to this appeal.

In Count I, the Officers alleged that the CPD had violated their Fourth Amendment rights by placing the GPS tracking devices on their police cruisers without a warrant and without their knowledge or consent. In Count VI, the Officers alleged that the disciplinary proceedings were brought against them in retaliation for their having exercised their First Amendment rights by testifying for Officer Schmidt at his hearing board trials and providing affidavits for him in his EEOC case, all in violation of section 3-103(d). The Officers asked for a show cause order and, ultimately, dismissal of the charges against them. They also sought to enjoin the hearing board trial from going forward until after a ruling by the circuit court.

On January 26, 2015, the court held a hearing. Stone’s lawyer argued that the court should “issue the show cause order for a merits hearing to be held at a later date.” She represented that Stone had asked the hearing board to hold a full motions hearing in advance of trial, but the hearing board chairman had denied the request, ruling that any preliminary motions would be heard at the outset of the trial. The court heard argument on all counts of the complaint and denied the request for a show cause order, to dismiss, and for injunctive relief. It addressed and ruled on the substan ⁴³⁰ tive issues raised by the Officers.

As pertinent, it concluded, as a matter of law, that the Officers’ Fourth Amendment rights were not violated because they had no reasonable expectation of privacy in their department-issued police cruisers. The court further concluded that whether the CPD had brought charges against the Officers in retaliation for their having exercised their First Amendment rights was a fact-intensive issue to be decided at the trial before the hearing board, not in a section 3-105 proceeding in the circuit court. On February 4, 2015, the court entered an order dismissing the complaint and denying the request for injunctive relief. The Officers immediately filed notices of appeal to this Court. 8 Meanwhile, on January 30, 2015, the Officers’ hearing board trial was postponed until March 2, 2015.

On February 3, 2015, in the circuit court action, Stone (later joined by Gizinski) filed a motion to enjoin the trial before the hearing board pending a decision by this Court on appeal. On March 1, 2015, there being no ruling on the motion, Stone’s lawyer emailed the hearing board, seeking a postponement of the trial until such time as the circuit court would rule on the injunction motion. That email also advised that Stone did not intend to participate in the trial before the hearing board if it went forward as scheduled. In an email sent the next day, Gizinski, through counsel, joined in the request for a postponement and advised that he also would not be participating in the trial.

The hearing board denied the requests for postponement. Ultimately, by order entered on June 8, 2015, the circuit court denied the motion for injunction. The trial before the hearing board proceeded as scheduled on March 2, 2015, and lasted until March 4, 2015. The Officers and their lawyers did not appear.

The CPD dismissed the charges that were being held in abeyance. It introduced 57 exhibits and, as relevant to the instant appeal, ⁴³¹ called two witnesses. 9 The evidence against Stone pertained to charges that he had made false entries on his daily duty logs on January 11, 2014 (Charge 1), January 12, 2014 (Charge 2), January 16, 2014 (Charge 3), January 17, 2014 (Charge 4), January 22, 2014 (Charge 5); January 25, 2014 (Charge 6), and January 31, 2014 (Charge 7); and that these false entries amounted to a course of conduct of not performing duties while falsely documenting productivity (Charge 8). The evidence against Gizinski pertained to charges that he had made false entries in his daily duty logs on January 11, 2014 (Charge 1), January 16, 2014 (Charge 2), January 17, 2014 (Charge 3), January 22, 2014 (Charge 4), and January 31, 2014 (Charge 5); and that these false entries likewise amounted to a course of conduct of not performing duties while falsely documenting productivity (Charge 6). The CPD introduced GPS tracking evidence showing that, at particular times on the dates that the Officers had documented that they were making premises checks and performing other official police duties, their police cruisers were parked for hours at a time at locations with no connection to the documented work.

Many of the locations were convenience stores. One of the locations was Prince George’s Hospital, which is not within the Town limits. On March 23, 2015, the hearing board issued a 47-page written decision. It found the Officers guilty on all charges.

In a separate proceeding, the hearing board recommended sanctions ranging from a reduction in rank to suspension without pay for the charges of false entries on the daily duty logs and the sanction of termination for the course of conduct charges. Chief Robshaw notified the Officers that he was considering increasing the recommended