Stover v. Prince George's County

KENNEY, Judge. Appellant, George Stover, was employed by the Prince George’s County Department of Corrections (“the Department”), holding the rank of corporal. The Department charged appellant with eleven violations of the Department’s regulations and of the Prince George’s County Personnel Law. Appellant requested that an Administrative Hearing Board (“the Board”) review these charges.

The Board convened on ³⁷⁹ June 26, 29, 30, and July 17, 1998, and found appellant guilty of eight of the charges and not guilty of three. The Board recommended penalties for each of the eight violations; for four of the violations, the recommended penalty was dismissal. Appellant was dismissed by the Department on August 7, 1998. He appealed the Board’s findings to the Circuit Court for Prince George’s County.

Oral argument on the case was heard on May 14, 1999, and the court subsequently affirmed the Board’s findings. Appellant appeals from that ruling. Facts Except for periods from 1980 to 1983, and 1987 to 1990, appellant was employed by the Department from January 1978 to August 7, 1998. Immediately before his dismissal from the Department, he worked at the Prince George’s County Correctional Center (“the facility”).

Appellant’s alleged violations of the Department’s regulations and of the County’s personnel law were: Charges 1-3: delivering contraband to inmates Nicole Lancaster, Yassmin Lindo, and Debra Anderson. Charge J: granting or promising to inmate Nicole Lancaster special privileges or favors not available to all inmates. Charges 5-7: improper fraternization with inmates Lancaster, Lindo, and Anderson. Charge 8: committing an act or series of acts which have had or may be reasonably demonstrated to have an appreciable effect on the general public’s confidence and/or trust in the Department.

Charge 9: failure to obey an order of a superior officer. Charges 10-11: making false statements to investigators. The Board found appellant not guilty of Charges 2, 10, and 11, but guilty of the other eight violations. Its recommended penalties for those eight violations were: for Charge 1, suspension for ten working days; for Charge 3, suspension for ten working days; for Charge 4, a fine of $150; for Charge 5, ³⁸⁰ a fíne of $150; for Charge 6, dismissal; for Charge 7, dismissal; for Charge 8, dismissal; and for Charge 9, dismissal.

The Department’s Policy and Procedure Manual, pursuant to the County’s personnel law, provides that the Director of the Department has the authority to make the final determination on all disciplinary actions. The Director issued a Disciplinary Action Memorandum on August 7, 1998. The Director concurred with the Board’s factual findings and acted in accordance with the Board’s recommended penalties, dismissing appellant effective immediately. Because of appellant’s dismissal, the Director set aside the recommended suspensions and fines.

Issues Presented Appellant presents three issues for our review: 1. Whether the circuit court erred in affirming the findings of the administrative hearing board as to contraband, fraternization, and an act affecting the public • trust despite the absence of substantial evidence to support those findings? 2. Whether the circuit court erred in affirming the decision of the administrative hearing board that George Stover failed to obey a lawful order even though the order violated George Stover’s constitutional rights? 3. Whether the circuit court erred in affirming the administrative hearing board’s excessive, arbitrary, disparate and capricious penalties?

We find no error and shall affirm. Discussion 1. Standard of Review When reviewing a decision of an administrative agency, this Court’s role is “precisely the same as that of the circuit court.” Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-304 , 641 A.2d 899 (1994) ³⁸¹ (citation omitted). “Judicial review of administrative agency action is narrow. The court’s task on review is not to ‘substitute its judgment for the expertise of those persons who constitute the administrative agency.’ ” United Parcel Service, Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 576-577 , 650 A.2d 226 (1994) (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 513 , 390 A.2d 1119 (1978)).

Rather, “[t]o the extent the issues on appeal turn on the correctness of an agency’s findings of fact, such findings must be reviewed under the substantial evidence test.” Department of Health and Mental Hygiene v. Riverview Nursing Centre, Inc., 104 Md.App. 593, 602 , 657 A.2d 372 , cert. denied, 340 Md. 215 , 665 A.2d 1058 (1995) (citation omitted). The reviewing court’s task is to determine “whether there was substantial evidence before the administrative agency on the record as a whole to support its conclusions.” Maryland Commission on Human Relations v. Mayor and City Council of Baltimore, 86 Md.App. 167, 173 , 586 A.2d 37 , cert. denied, 323 Md. 309 , 593 A.2d 668 (1991). The court cannot substitute its judgment for that of the agency, but instead must exercise a “restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions.” State Administration Board of Election Laws v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989) (quoting Supervisor of Assessments of Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 625 , 547 A.2d 190 (1988)). The reviewing court’s analysis has three parts: 1.

First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order “is premised solely upon an erroneous conclusion of law.” 2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, ³⁸² ie., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. At this juncture, ... “it is the agency’s province to resolve conflicting evidence, and, where inconsistent inferences can be drawn from the same evidence, it is for the agency to draw the inference.” 3.

Finally, the reviewing court must examine how the agency applied the law to the facts. This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is “whether, ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].” Comptroller of the Treasury v. World Book Childcraft Int’l, Inc., 67 Md.App. 424, 438-439 , 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986) (quoting Ramsay, Scarlett & Co., Inc. v. Comptroller of the Treasury, 302 Md. 825, 834-838 , 490 A.2d 1296 (1985)). Charges 1 and S The Department’s Policy & Procedure Manual (“the Manual”) defines “contraband” as: Any item, material, substance, or other thing of value that is not authorized for inmate possession by the Director or his Designee or is brought into the facility in a manner prohibited by departmental policy and procedure.

Section 3.2(IV)(B)(3) of the Manual provides: “Contraband will not be given or made accessible to inmates. Anything not issued to inmates or authorized for them use will be considered contraband.” In this context “contraband” has no criminal connotation. Appellant was found to have violated this provision by handing out certain cards to Nicole Lancaster and Debra Anderson at the facility. Both appellant and appellee describe these cards as “business cards,” but appellant also calls them “ministerial cards.” Appellant is a lay minister in his church, ³⁸³ Restoration Temple.

The cards, apparently in the size and shape of standard business cards, listed the name of appellant’s church and the phone number that appellant uses for ministerial functions. This number rings at appellant’s home, but it is a different line than that used by appellant and his family for personal calls. At the Board hearing, Nicole Lancaster testified that, while she was an inmate at the facility, appellant gave her “a business card for Minister Stover” with a phone number on it. Debra Anderson testified that she was incarcerated at the facility several times during 1997 and 1998.

She answered affirmatively when she was asked if appellant gave her “a business card.” She testified that the card had appellant’s name and phone number on it; she did not notice if it referred to him as a minister. Appellant testified that he has given inmates his business/ministerial cards. Based upon the testimony of these witnesses, we hold that the Board had substantial evidence upon which it could find appellant had given inmates “contraband” as that term is defined in the Department’s Manual. Charge k Section 3.2(B)(4) of the Manual provides: “Personnel will not grant or promise to an inmate special privileges or favors not available to all inmates.” At the Board hearing, Ms. Lancaster testified that on the day she was released from the facility, but before her release, appellant allowed her to use an office phone at the facility to call her mother in Utah and a cousin at an undisclosed location “so I could have someone come and sign me out.” Ms. Lancaster testified that appellant used a phone card, apparently his own, to make the call.

Appellant testified that he allowed Ms. Lancaster to use his phone card so she could arrange for family members to meet her. He testified that at the facility employees of all ranks ³⁸⁴ freqúently arrange for phone calls for inmates who are their family members or friends. He testified that there was nothing untoward about the assistance he gave Ms. Lancaster. Indeed, appellee has not alleged any harm that could be attributed to appellant’s actions regarding Ms. Lancaster’s phone calls.

Having said that, we hold that there was sufficient evidence presented for the Board to conclude that appellant granted Ms. Lancaster “special privileges or favors not available to all inmates.” There was no showing that preferential treatment of inmates by the facility’s employees was pervasive and that it was officially tolerated by the Department. Regardless of whether some other employees may have granted preferential treatment to inmates, the Board did not err by finding appellant violated this provision. Charge 5-7 Section 3.2(IV)(C)(3) of the Manual provides: “Personnel will not establish a personal relationship with an inmate or an inmate’s spouse, relative, or friend, beyond what is required to perform official duties. Personnel will not use their position to become intimately involved with inmates or their visitors.” Appellant was found guilty of violating this provision in reference to his interactions with three female inmates: Nicole Lancaster, Yassmin Lindo, and Debra Anderson.

At the hearing, Ms. Lancaster testified that after she was released from the facility, she stayed with a cousin in Fort Washington and then moved to appellant’s house, where she and her nine-year-old son had a room in the basement. She testified that “I have never had any romantic feelings or thoughts for Mr. Stover, but he had them for me.” She was aware of appellant’s feelings because he told her he loved her and asked her to marry him. She testified that she was uncomfortable at appellant’s house “because of the feelings that he had for [her],” so she left to visit her family in Pennsylvania and to find another place to five. Her departure initially was amicable, according to her, but, when it became apparent that she would not return, her relations with appellant became more ³⁸⁵ strained.

She testified that, after a fire occurred at appellant’s house while she was visiting her family, appellant put her belongings in storage and had not, at the time of the hearing, returned them to her. Yassmin Lindo testified that she met appellant in 1992 through Restoration Temple. She was incarcerated at the facility in 1997 and 1998, and she testified that appellant arranged with her Probation Officer, John Parrish, for her to be released into his custody. Ms. Lindo testified that appellant, on his own initiative, told Mr. Parrish she was his goddaughter.

After leaving the facility she lived at appellant’s house, in her own room, for approximately three weeks. While she was there, appellant gave her gifts: “a bathrobe with matching slippers and perfume set,” as well as “a dress and earrings and shoes.” Ms. Lindo left appellant’s house after three weeks because she felt uncomfortable there. She testified that she did not leave on good terms and that she had not received all of her possessions from appellant’s house. Debra Anderson testified that she met appellant while she was incarcerated at the facility in 1997.

She testified that she placed calls from the facility to appellant’s home. Appellant paid her bond ($110 for a $1,000 bond) and drove her to her parents’ house after her release. Ms. Anderson testified that after that day she saw appellant four or five times. On those occasions, appellant gave her money or flowers.

She said he gave her $125 to buy clothes on one occasion, $50 to get her nails done on another occasion, and then $80 or $40 on a third occasion. She stated that they did not see each other socially and had not dated. Appellant testified that Ms. Lancaster and Ms. Lindo stayed at his house, and that he paid Ms. Anderson’s bond and gave her cash. He denied attempting to have a romantic involvement with any of the women.

Again, we need not decide that the allegations against appellant were true. The Board certainly could have disbelieved the testimony of the witnesses appellee presented, but even appellant’s testimony would support the Board’s position. ³⁸⁶ There was sufficient evidence to support the Board’s findings of improper fraternization. Charge 8 Section 16 — 193(c)(1)(F) of the Prince George’s County Personnel Law provides that, for county employees, an infraction occurs: “Where an employee commits an act or a series of acts which have had or may be reasonably demonstrated to have, an appreciable effect on the general public’s confidence and/or trust in the operation of the employee’s department, agency, or office and/or the government as a whole.” Both the Board’s Memorandum and the Director’s Disciplinary Action Memorandum cited § 16 — 193(c)(1 )(F) and stated that appellant was charged with violating the section, without specifying any acts that constituted the violation. Appellant argues that appellee has not identified any specific act committed by appellant that violated this provision.

At the hearing before the Board, appellant moved to have this charge dismissed for lack of specificity. Counsel for appellee responded: The Disciplinary Action Recommendation contains a narrative that summarizes the facts that are the basis for these charges. Each of the charges beyond Number 8 refer to specific acts. Charge Number 8 refers to those acts, and the charges as addressed to the incidents in matters that are dictated in the narrative of the Recommendation and in the list of all of the individual charges as they are there that is more than sufficient specificity to the Defense to know why they’re here and what we’re here about.

In addition, I would point out that the Defense has received some 43 documents or exhibits that the Department has and will either be using or has as part of the discovery in this case. In short, they received everything the Department has, with the exception of the dictative report from the investigator. So there are no surprises. The Board’s Chairman, Captain Alfred McMurray, ruled: “[I]t is my opinion that Number 8 is a general term.

General ³⁸⁷ term meaning the total effect of all of the charges, and I’m going to overrule your objection to Number 8....” Appellee’s argument on this issue in its brief is as follows: The Board, upon hearing all the evidence, and using its own particularized knowledge, found that Appellant’s actions would have a negative effect on the public. The testimony of several witnesses indicated that the behavior of Appellant was inappropriate and, in the witnesses’ opinion, a conflict of interest. The Board could take administrative notice of the negative impact of newspaper articles concerning problems at other correctional facilities and determine that fraternization with inmates by officers undermines the trust and integrity the Department desires from the public. No showing that this particular case has generated public mistrust was necessary; the potential for such mistrust is sufficient.

The pertinent provision of the county code, quoted above, refers to “acts which have had or may be reasonably demonstrated to have, an appreciable effect.... ” (Emphasis added). It seems that appellee has, in effect, conceded that it has not proceeded against appellant under the “have had” portion of the provision, because appellee refers to no evidence demonstrating that appellant’s acts “have had” an effect on the public’s confidence or trust in the department “and/or the government as a whole.” Therefore, we must determine whether the Board was provided with substantial evidence that appellant has committed acts that “may be reasonably demonstrated to have, an appreciable effect .. .. ” on the public’s trust or confidence. The Board heard evidence that appellant gave female inmates a telephone number that rang at his home, that he posted bail for a female inmate, that he arranged to have a female inmate released