Stuples v. Baltimore City Police Department

MOYLAN, Judge. The appellant, Bobby L. Stuples, Jr., broadly asserts that his appeal presents the question: Should an employee who is found by a court to be terminated wrongfully be reinstated and awarded retroactive back pay pending a legal termination proceeding? The question, thus framed, presents an issue far too sweeping for our consideration. Its resolution would call for us to sit as the equivalent of a trial court or even an administrative agency, exploring, as a matter of first impression, the nuanced merits of the appellant’s cause.

The sober reality is that appellate review is far more constrained. We are not necessarily concerned with the ultimate merits of the appellant’s alleged grievance. We are concerned only with whether the judicial machinery designed to deal with those merits was operating properly. The appellant must pose for us a precise instance wherein a trial judge 1) was timely called upon to make a specific ruling, 2) either failed to rule or ruled erroneously, and 3) the ruling, if erroneous, is ripe for appellate review. ²²⁵ The Factual and Procedural Background The appellant was a police officer who was charged in a departmental disciplinary proceeding with sexual harassment.

It was alleged that on several occasions between March 20 and May 22, 1992, he had “directed gestures and sexually explicit language” toward two female police officers. A Hearing Board found the appellant guilty as charged and recommended that his employment be terminated. The Police Commissioner adopted the Board’s recommendation and terminated the appellant’s employment on November 30, 1994. The record extract that the appellant has provided includes neither the formal findings or recommendations of the Hearing Board nor the official order of the Police Commissioner.

We have, therefore, no indication that either of those parties expressly directed that any action be taken with respect to the appellant’s pay status during any of the time periods while the charges against him were pending. The appellant appealed that action by the Police Department to the Circuit Court for Baltimore City. The Petition for Judicial Review did not raise any issue with respect to the appellant’s pay status. It stated simply: Bobby L. Staples, Jr., the defendant in the administrative proceeding, requests that an appeal be entered pursuant to Maryland Rule 7-201 et seq. from the Order of Commissioner Thomas C. Frazier, dated November 30, 1994, upholding the administrative trial board’s recommendation of termination from the Baltimore City Police Department.

The appellant also complied with Maryland Rule 7-207(a), which provides that a petitioner shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on. Pursuant to the Rule, the appellant set forth a concise statement of his three contentions: 1) that he had been found ²²⁶ guilty of offenses for which he had not been charged, 2) that the decision of the Trial Board was arbitrary and capricious and was not supported by legally sufficient evidence, and 3) that the sanction imposed by the Trial Board, termination from employment, was excessive. Not one of those contentions even alluded to the subject of retroactive back pay. As further required by the Rule, the appellant presented a statement of facts material to the questions raised.

Those facts had nothing to do with retroactive back pay. As further required by the Rule, the appellant presented argument on each of the three questions raised, along with citations to pertinent Maryland case law. None of that authority had the slightest bearing on the issue of retroactive back pay. On the fourteenth and final page of the appellant’s memorandum the final conelusory sentence did, to be sure, move that “the decision of the Baltimore City Police Department should be reversed and Officer Stuples should be reinstated with retroactive back pay and seniority.” The actual arguments raised in and supported by the memorandum, however, had not even alluded to the issue of retroactive back pay and seniority.

Following a hearing in circuit court on August 1, 1995, Judge Thomas E. Noel orally indicated from the bench that he intended to vacate the departmental decision and to remand the case to the agency for further proceedings. We have reviewed the transcript of the hearing before Judge Noel on August 1, 1995 and find that in the course of those proceedings not one word even alluded to the entitlement of the appellant, should he prevail, to retroactive back pay. The almost exclusive focus of the hearing was on the fact that the appellant was indisputably guilty of some grossly inappropriate and harassing sexual conduct in the presence of two female police officers but that the inappropriate conduct had not, as charged, been specifically directed at them. It was that lack of agreement between the allegata and the probata that persuaded Judge Noel to vacate the judgment against the appellant and to remand the proceeding to the Trial Board: ²²⁷ I find that the Board’s decision that his conduct created a hostile work environment to be supported by substantial evidence.

The problem I have, however, is with the way he was charged. (Emphasis supplied). Judge Noel’s findings, however, made it abundantly clear that the evidence established misconduct on the part of the appellant sufficient to justify his termination from employment: [W]hen you get to the specification that he directed his conduct toward two particularized individuals, ... the evidence supports a completely different finding. I find that he was inappropriately charged.

That’s not to say that his conduct was not of an offensive nature, and that his conduct would not have constituted sexual harassment, but he was not properly charged____ [H]e was simply mischarged. Consequently, I’m vacating the decision of the Board and remanding this matter. (Emphasis supplied). Although it may have been gratuitous in view of his disposition of the administrative appeal, Judge Noel went out of his way to announce his findings 1) that the decision of the Trial Board had not been arbitrary or capricious and 2) that the sentence imposed did not shock the conscience of the court: I find that there was not arbitrariness or capriciousness in the decision of the reviewing Board.

The subject of the sentence or sanction imposed, I don’t find to actually shock the court. Particularly in light of the conduct, because when you consider the definition of sexual harassment, I believe his conduct meets that standard quite clearly without any problem whatsoever. (Emphasis supplied). Rather than terminate the proceeding in the appellant’s favor, Judge Noel’s decision was to remand the case to the Trial Board for possible further action: ²²⁸ So the matter is vacated and remanded to the Board either to review this matter and one, to see if in fact the decision would be sustained whether this charge is part of the case or not.

And two, [if it] would be an alternative procedure to charge him properly, and take testimony on that issue. (Emphasis supplied). Judge Noel’s formal order of September 28, 1995 (filed on October 2) indisputably did not terminate the litigation but only remanded it to the administrative agency for further proceedings. Although directing that the charging document would have to be amended by the deletion of several words, the decision of the circuit court in every other respect placed its imprimatur upon the findings of the Trial Board: ORDERED, that the decision of the trial board in the above captioned case is vacated and the case is remanded for further proceedings upon the court’s finding that the Petitioner was charged with “directing” his comments and actions toward various individuals, but that the evidence supported only a finding that the comments and actions were done in the presence of various individuals and the Petitioner was therefore inappropriately charged, and it is FURTHER ORDERED, that the case may be retried after the charges have been modified to delete the words “directed towards” and/or resubmitted to the trial board for a determination whether the evidence supports a finding that the comments and actions were “directed towards” various individuals, and it is, FURTHER ORDERED, that this Court finds that there was sufficient evidence to support the allegation that the Petitioner made the comments and/or gestures of which he was accused and that the Court will not review the credibility of witnesses; therefore, this Court finds that the trial board’s decision was not arbitrary and capricious, and was supported by sufficient facts, and it is FURTHER ORDERED, that the Court does not find that the sentence of termination sufficient to shock the conscience of the Court and that the conduct of the Petition ²²⁹ er meets the standard of sexual harassment and creating a hostile work environment.

(Emphasis supplied). In the wake of Judge Noel’s disposition, the appellant filed, presumably pursuant to Maryland Rule 2-535, a Motion to Exercise Revisory Power. In it, he raised for the first time the issue of his payroll status, arguing that Judge Noel’s vacating of the Trial Board’s decision “removed the only impediment to Mr. Staples’ receiving his salary.” The motion requested Judge Noel to revise his order “to indicate that Officer Staples be returned to the payroll as of August 1,1995, pending further action by the Department.” Curiously, the appellant’s request did not go into the subject of back pay retroactive to November 30, 1994, when he was presumably removed from the payroll as a result of the Police Commissioner’s approval of the recommendation of the Trial Board. The motion sought only to have the court revise its order so as to indicate that the appellant should be returned to the payroll as of August 1, the day on which Judge Noel rendered his oral ruling at the conclusion of the hearing.

The reinstatement to the payroll as of August 1, moreover, seemed to seek no more than tentative payroll reinstatement “pending further action by the Department.” Further action by the Department could presumably be anything: 1) the decision to delete several words from the charging document and then to present it anew to the Trial Board; 2) a determination by the Trial Board that the appellant was guilty of the amended charge, or 3) the Police Commissioner’s approval of that action by the Trial Board, each action implicating a different possible terminal date for the appellant’s restored payroll status. The requested relief was ambiguous in the extreme. Without assigning any reasons, Judge Noel denied that motion on October 31, 1995. It was from that denial that the appellant took his first appeal to this Court.

After issuing an unpublished opinion and then granting the appellant’s Motion for Reconsideration, this Court filed an amended unpublished per curiam decision on November 25, ²³⁰ 1996 (No. 58, Sept. Term, 1996). Our exclusive concern was with the timeliness of the filing by the appellant of his Motion for the Court to Exercise Revisory Power. We were operating on the reasonable, albeit erroneous, assumption that the appellant’s request for Judge Noel to amend or to revise his judgment was filed on September 14, 1995. Operating on the further assumption that the final order which the appellant wanted revised had been entered on either August 1 or August 9, we held that the Motion to Revise which had been made before Judge Noel and which was then before us for review could not, because of the untimeliness of its filing, be treated as a Motion to Alter or Amend a Judgment pursuant to Maryland Rule 2-534 or as a Motion to Exercise Revisory Power Under Rule 2-535(a).

The only way in which the Motion to Revise could survive the time bar would be for it to qualify under Rule 2-535(b) on the ground that the judgment in the case had been the result of “fraud, mistake, or irregularity:” Because the motion was not filed within 10 days, pursuant to Rule 2-534, or within 30 days, pursuant to Rule 2-535(a), it is governed by Rule 2-535(b). Consequently, the trial judge could have exercised revisory power and control over the judgment only in the case of fraud, mistake, or irregularity. (Emphasis supplied). We concluded that Judge Noel’s summary denial of the appellant’s Motion to Revise might well have been based on his finding that the appellant had failed to show any evidence of “fraud, mistake, or irregularity.” Had that been the case, we would have deemed his denial of the motion to have been unassailable.

Because of pervasive confusion as to when various pleadings and court orders had been officially filed, however, we elected to be indulgent and to remand the case so that Judge Noel could make a more particularized ruling within the clear and exclusive context of Rule 2-535(b): Whether a final order was entered on August 1 or August 9, appellant concedes that its appeal is not timely with respect to the underlying judgment but argues that the trial judge ²³¹ erred in failing to exercise revisory power over the judgment. It may well be that the trial judge in this case denied appellant’s motion because of the absence of any fraud, mistake, or irregularity. Because of uncertainties created by problems with the record, however, we shall exercise our discretion and vacate the October 31, 1995 order denying appellant’s motion to exercise revisory power and remand this case to the trial court for a ruling on appellant’s motion pursuant to Rule 2-535(b). (Emphasis supplied).

By the time the case on remand got back to Judge Noel, however, superseding revelations had vitiated the reasoning behind our decision to remand. Although the appellant’s Motion for the Court to Exercise Revisory Power had, indeed, not been filed with the Clerk of the Court until September 14, the alternative modality of filing the Motion in the judge’s chambers pursuant to Maryland Rule l-322(a) had been utilized as of August 29. That fact had not been made known to this Court when the case was first before us. Although Judge Noel had no independent recollection of that filing with his chambers, he accepted the affidavit of the appellant’s attorney to that effect.

Accordingly, the appellant’s Motion to Revise had been timely filed within the thirty-day contemplation of Maryland Rule 2-535(a). Judge Noel treated it as such. On March 11, 1997, Judge Noel, pursuant to our remand, granted the appellant’s threshold Motion to Reconsider his earlier (August 31, 1995) denial of the Motion to Revise. Upon such reconsideration, he again denied the appellant’s Motion to Revise his earlier judgment.

After indicating that he would not order reinstatement or retroactive back pay, he expressly reiterated in that Order and Judgment that he had earlier made “a factual finding that termination would have been appropriate if Petitioner were charged properly.” What Precise Judicial Act is Being Appealed? Even if this appeal should be deemed to be properly before us, a subject to which we will turn our attention ²³² shortly, that March 11 denial of the Motion to Revise would be the precise legal act and the only legal act that could be before us for appellate review. The question for review is not, therefore, as the appellant would frame it, the broad substantive issue of whether the appellant is entitled to reinstatement and to back pay. So sweeping an issue is a question for someone else on some other day.

Our concern is not even with whether Judge Noel was right or wrong in denying the Motion to Revise. Even that is too broad. We are not implying that Judge Noel’s ruling was not affirmatively exemplary; we are simply making the point that even a poor call is not necessarily a clear abuse of discretion. At most, the very parochial inquiry we shall undertake is into whether Judge Noel’s denial of the Motion to Revise was so far wrong — to wit, so egregiously wrong — as to constitute a clear abuse of discretion.

Tiller v. Elfenbein, 205 Md. 14, 18 , 106 A.2d 42 (1954); Eastgate Associates v. Apper, 34 Md.App. 384, 387-88 , 367 A.2d 82 (1977). If we really mean what we say on so many occasions, the ruling in issue does not have to have been right to survive so minimal and deferential a standard of review. 1 An Aspect of Discretion: A Sense of the Movant’s Equitable Entitlement At the conclusion of the March 10 hearing on the Motion to Revise, Judge Noel explained why he was denying the motion: I went through this record quite carefully back in August, and there were rather extraordinary facts, and that’s possibly the reason why as much of it has stayed with me as well as the fact I have had the file over the weekend and had the ²³³ opportunity to reread the file. And I do remember my findings quite clearly. The case as I understood it at the time, the charging document was improper, and the charges were inconsistent with the evidence introduced against Mr. Staples.

Now, that is the reason that I vacated it and remanded it, because he was not directing his comments or actions towards the other officers. It was merely in the presence of others. And I think that could be rather significant when it comes to a reviewing court. Because when you interpret a criminal charging document or quasi-criminal charging document, specificity is required, and the charging document was inappropriate.

But after listening to arguments and reviewing the record, I made specific findings to the effect that there was sufficient evidence to support the allegation that the petitioner made the comments and/or gestures he was accused of And the specific [termination] was not sufficient to shock this Court, and the preponderance [of evidence] of the petitioner met the standard of sexual harassment [in] that it created a hostile work environment. (Emphasis supplied). Judge Noel declined to exercise discretion by way of expanding on his earlier ruling and dealing with an issue that had never been raised before him, in part, because of his obvious conclusion that the appellant’s cause was not one of outraged innocence. Judge Noel had vacated the earlier decision of the Trial Board to terminate the appellant’s employment not because the appellant was innocent of the charges but only because the pleading document had been technically flawed.

It was clearly Judge Noel’s conclusion 1) that upon remand that technical flaw would be readily corrected and 2) that the ultimate resolution of the issue would be the appellant’s dismissal from the police force because of his improper conduct. The equities, therefore, did not cry out for any special intervention into an essentially departmental matter. At the ²³⁴ hearing on March 10, no extraordinarily dire circumstances were even proffered to indicate that the resolution of the appellant’s financial entitlement could not abide the resolution of the entire case on its ultimate merits. Under those circumstances, Judge Noel’s declination to intervene in a matter that was not necessarily before him in any event cannot be deemed a clear abuse of discretion.

Another Aspect of Discretion: Doubt As to the Propriety of Dealing With an Issue Judge Noel, moreover, indicated that he was denying the Motion to Revise for yet an additional reason. In addition to his determination that the evidence had shown that the appellant had committed an offense for which termination was proper and that he, therefore, did not deserve to be paid during the period while he was awaiting circuit court review of the Police Department’s decision, Judge Noel was also of the opinion that, as a matter of procedure, the issue of the appellant’s pay status was not properly before him: When the motion came before me to exercise my revisory power, I denied that motion, because ... I was indicating that I didn’t feel that it was appropriate for this Court at that juncture to rule on the issue of back pay. I don’t think that is a proper matter before the Court.

I still don’t feel that it is a proper matter before the Court, and I am going to state specifically why I am of that opinion. Number one, in light of my factual finding that Mr. Stuples was properly charged, the termination would have been appropriate. And number two, I was dealing with the matter from a procedural standpoint initially. Now, I’m dealing with the substantive.... [H]e would have [been terminated] appropriately had he been properly charged.

Consequently I felt that he was not entitled to back pay. That is one of the reasons. The other is, I don’t know if the Court has the authority to do that, to order back pay. So even though I am ²³⁵ exercising my revisory authority in this matter, I am, in fact, ruling that this Court will not order back pay.

(Emphasis supplied). Far from being guilty of a clear abuse of discretion, Judge Noel appears to have been quintessentially sound in declining to entertain, in a post-trial revisory motion, an ancillary matter that had not been part of the administrative appeal presented to him in the first instance. The only thing that had been appealed was the decision of the Trial Board to terminate the appellant’s employment. a. An Administrative Agency Should, in the First Instance, Interpret Its Own Regulations When an officer is brought up on charges, there are presumably a number of ancillary consequences both during the initial pendency of the charges and then during various stages of review following the Trial Board’s determination— total loss or reduction of pay, reassignment, permanent or temporary demotion in rank, possible loss of accrued vacation, loss of seniority, suspension of various benefits, etc. Within the vast bureaucracy of state government generally or within the significant bureaucracy of the Baltimore City Police Department specifically, there are, we would think, some departmental regulations 2 governing such situations and various modalities whereby an aggrieved employee could seek relief or file a complaint.

These are purely administrative matters as to which the judicial branch of government has no special competence and with respect to which it will routinely defer to the expertise of the agency in question. Dept. of Health and Mental Hygiene v. Reeders Memorial Home, Inc., 86 Md.App. 447, 453 , 586 A.2d 1295 (1991) was very clear on this subject: Upon appellate review, courts bestow special favor on an agency’s interpretation of its own regulations. Recognizing ²³⁶ an agency’s superior ability to understand its own rules and regulations, a “court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 513 , 390 A.2d 1119 (1978). (Emphasis supplied).

See Dept. of Human Resources v. Thompson, 103 Md.App. 175, 189-90 , 652 A.2d 1183 (1995). See also Baltimore Bldg. and Constr. Trades Council v. Barnes, 290 Md. 9, 14-15 , 427 A.2d 979 (1981); Holy Cross Hospital, Inc. v. Health Services Cost Review Commission, 283 Md. 677, 685 , 393 A.2d 181 (1978); Fort Washington v. Dept., 80 Md.App. 205, 213 , 560 A.2d 613 (1989); B & O Railroad v. Bowen, 60 Md.App. 299, 305 , 482 A.2d 921 (1984). At the most fundamental level, the judicial branch of government is not empowered to micro-manage the executive branch of government.

O’Donnell v. Bassler, 289 Md. 501, 509-11 , 425 A.2d 1003 (1981); Howard County v. Davidsonville Civic Ass’ns, 72 Md.App. 19, 49-50 , 527 A.2d 772 (1987); Matthew Bender & Co., Inc. v. Comptroller, 67 Md.App. 693, 711-12 , 509 A.2d 702 (1986). b. Statute Law (LEOBR) Is Not Controlling The appellant, implicitly at least, would seem to suggest that his pay status was controlled not by administrative regulations at all but by the statutory provisions of the Law Enforcement Officers’ Bill of Rights (LEOBR). Md.Code Ann. (1996 Repl.Yol.) Article 27, §§ 727 through 734D. That is not the case.

The appellant relies exclusively on § 734A, wherein the phrase “without pay” is mentioned in one particular instance. That section, however, has nothing to do with routine disciplinary proceedings taken against offending officers. As its subtitle clearly states, it deals only with “Summary Punishment or Emergency Suspension.” Its provision that the Chief of Police may impose the “emergency suspension of police officers without pay” if they have “been charged with commission of a felony” by no means implies that pay may not be withheld in any other circum ²³⁷ stances. An officer whose employment has been terminated, for instance, will presumably no