Tippery v. Montgomery County Police Department

CATHELL, Judge. Robert W. Tippery appeals from a judgment of the Circuit Court for Montgomery County (Miller, J., presiding) that affirmed a decision of an administrative hearing board (the Board) sitting pursuant to the Law Enforcement Officers’ Bill of Rights (LEOBR). Md.Code (1957, 1992 RepLVol., 1995 Supp.), Art. 27, § 727 et seq. The Board found appellant “guilty” of an improper use of force and of making an untruthful statement in contravention of various rules of the Montgomery County Police Department.

The Board recommended that he be terminated, and the Montgomery County Police chief accepted the recommendation and terminated appellant’s employment with the Department. Appellant appealed to the circuit court. That court affirmed the Board’s and the police chiefs determination and action. Appellant presents three issues which we reorder: 1.

Whether the findings of fact of the hearing board are not supported by substantial evidence, and are inadequately explained!.] 2. Whether the penalty of discharge is arbitrary or unreasonable!.] We restate appellant’s remaining question: 3. Did the Board’s admission of the complainant’s statement constitute a violation of due process where the complainant did not testify? ³³⁵ The Facts We cull our tactual narration from the Statement of Facts in appellant’s brief. We include here primarily those portions of testimony and evidence supporting the Board’s and the trial court’s decisions, despite the presence of contrary or contradictory evidence.

See Terranova v. Board of Trustees of Fire & Police Employees Retirement Sys., 81 Md.App. 1, 9 , 566 A.2d 497 (1989), cert. denied, 319 Md. 484 , 573 A.2d 808 (1990). At the time of the incident, appellant was a tenured police officer. On August 18, 1994, private security guard David Litz was working at the Manor Apartments on Georgia Avenue. During the late afternoon, Litz observed that a juvenile named Roger Johnson “and a couple of his friends were hanging out in the park area, which management had declared ... off limits to non-residents.... ” Litz asked the group to leave.

They refused. Consequently Litz “requested the County Police to come out and help me remove them from the property____” Johnson and another young man sat down on the parking lot curb, and refused to leave. Litz felt threatened because he “knew a couple of them had been arrested before for assaults and burglaries and stuff like that....” The first police officer to arrive was Officer Tippery [appellant]. Litz “explained to Officer Tippery what was going on, and that’s when we approached the two individuals.

They were sitting on the curb.” By this time, the two young men’s “voices were raised. They were agitated.... ” As Litz recalled, as Tippery and he approached Johnson and the other youth, “[n]either one of us had said anything to him, and [Johnson said] ... yes, I’m the one with the big mouth or the loud mouth.” Tippery then “asked the subject to stand up and asked for identification, and he said he didn’t have any identification.” Johnson then stood up. As Tippery recalled, ³³⁶ So, I said, ‘Fine, if you’re not going to talk to me, you’re under arrest.’ So, I told him to put his hands behind his back. So, he turned around, and as he’s putting his hands behind his back, I grabbed one of his arms, and I was going to grab the other but he pulled it away from me and put the cigarette in his mouth.

So, I regained control of the arm. I placed the handcuffs on him. I told him to spit out the cigarette. He just stared blankly away from me and didn’t respond to me.

So, I flicked it out of his mouth, and I turned him, and Officer Litz and I walked him back to my cruiser which was about 10 feet away. While Tippery was talking to Johnson at the curb, County Police Officers Swinford and Dasilva arrived. Dasilva observed the arrest of Johnson by Tippery as “[tjypical technique, handcuff behind the back or hands behind the back.” As recalled by Litz, at this point Johnson “was kind of resistive. I believe he didn’t want to be placed under arrest, but ... he wasn’t really disorderly until we got him to the car when he wouldn’t ... sit down in the car.” Officers Prange and Mattare also arrived on .the scene.

They parked on the opposite side of the driveway from Tippery’s cruiser. When Tippery arrived at his car with Johnson, Tippery “put ... [Johnson’s] chest against the passenger door ..., and ... was holding him between the shoulder blades and on the base of his neck leaning him against the car.” In a written brutality complaint, Johnson alleged that Tippery “through [sic] me on the door of the car.” In his interview, Johnson claimed that Tippery “slammed me against the car and I wasn’t resisting arrest or nothing. I was calm and he slammed me against the car....” According to Officer Cindy Prange, as Tippery was putting Johnson into the cruiser, Prange was “standing right ³³⁷ next to the car door.” ... Mattare, who was Prange’s trainee, asserted that at this point Prange was standing: To the rear of the vehicle.

Q.... Did you ever see her come up to the passenger door of the vehicle within an arm’s length of Officer Tippery[ ]? A. Not that I remember. Nevertheless, Prange testified that she saw Tippery strike Johnson in the face several times: Q____ So, the only motion you see then is what?

Do you see any motion? Can you tell us today if he used his left hand or right hand? A. No, I can’t____ Q. Okay, but you’re absolutely certain that the contact occurred to the right side of this young man, the side facing [OJffieer Tippery; is that fair to say? A. Correct, yes.

Before the Grand Jury, Prange claimed “I saw it very clear;” and “the defendant actually sat there, and Officer Tippery hit him____” Prange also initially asserted that she saw Tippery “hitting him with his fist.” But, under further questioning, Prange conceded that: she couldn’t tell which hand Tippery was using; she didn’t know if his hand was open or in a fist, and responded “I don’t recall, I don’t recall, I don’t recall,” when asked what the “swinging” motion she interpreted to be hitting actually looked like. Nevertheless, Prange also insists ... that when she observed the striking she was “standing right behind Officer Tippery’s I guess left side.” The “ultimate” question of Prange at the hearing board was as follows: “Q: So, the only motion you see then is what? Do you see any motion? Can you tell us today if he used his left hand or his right hand?

A. No, I can’t.” Ironically, the only consistent and steadfast descriptive testimony by Prange is that the blows struck the right side of Johnson’s face. ³³⁸ 1. Whether the findings of fact of the hearing board are not supported by substantial evidence, and are inadequately explained!!.] A. Does the evidence support the Board’s findings? In respect to the review of administrative agency decisions, we have said that “[t]here is a distinction between evidence which compels a certain result and that which merely permits it.” Jabine v. Priola, 45 Md.App. 218, 234 , 412 A.2d 1277 (1980). If the evidence permits a result, rather than compels it, it is fairly debatable.

Judge Moylan defined “fairly debatable” for us in B.P. Oil, Inc. v. County Bd. of Appeals, 42 Md.App. 576, 579-80 , 401 A.2d 1054 (1979): Where B.P. seeks, as here, to say that the Board was compelled, as a matter of law, to rule in its favor, B.P. assumes not merely the lesser burden of generating a fairly debatable issue so as to permit a ruling in its favor but the significantly greater burden of actually dispelling fair debate by proof so clear and decisive as legally to compel a ruling in its favor. In this case, B.P.’s own evidence, though adequate, was equivocal. Its own market survey showed some public support for its proposed facility but no strong or unambiguous cry for such services. The evidence as to what was the appropriate neighborhood was also ambiguous at best — one version arguably showing need; the other, significantly dispelling it.

The need was, in short, fairly debatable. There is frequently such a middle ground wherein it is neither arbitrary, capricious or illegal to say, “Yes,” nor arbitrary, capricious or illegal to say, “No.” The decision here was in that discretionary range of the Board and was not compelled either way as a matter of law. Judge Hammond wrote for the Court of Appeals, in State Ins. Comm’r v. National Bureau of Casualty Underwriters, 248 Md. 292, 309 , 236 A.2d 282 (1967), that, “under ... [either] of ³³⁹ the standards[,] the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” See also People’s Counsel v. Mangione, 85 Md.App. 738, 744 , 584 A.2d 1318 (1991); Terranova, supra, 81 Md.App. at 8-9 , 566 A.2d 497 .

Stated otherwise, the standard is “whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by permissible inference. If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.” Toland v. State Bd. of Educ., 35 Md.App. 389, 396 , 371 A.2d 161 (1977) (quoting Commissioner, Baltimore City Police Dep’t v. Cason, 34 Md.App. 487, 508 , 368 A.2d 1067 , cert. denied, 280 Md. 728 (1977)); see also Snowden v. Mayor of Baltimore, 224 Md. 443, 447-48 , 168 A.2d 390 (1961) (“The substantial evidence test ‘means that the reviewing court’s inquiry is whether on the record the agency could reasonably make the finding.’ ... Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” (citations omitted)). In addition, “if the evidence makes the issue of harm fairly debatable, the matter is one for the Board’s decision, and should not be second-guessed by an appellate court.” Board of County Comm’rs v. Holbrook, 314 Md. 210, 218 , 550 A.2d 664 (1988).

In Snowden, 224 Md. at 448 , 168 A.2d 390 , the Court of Appeals said: The heart of the fact finding process often is the drawing of inferences from the facts. The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. “The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.” [Citation omitted.] ³⁴⁰ Therefore, we must give due deference to the right of an administrative agency, such as the Board, to draw reasonable inferences from the facts and circumstances presented before it. Holbrook, 314 Md. at 218 , 550 A.2d 664 ; see also Ramsay, Scarlett & Co. v. Comptroller of Treasury, 302 Md. 825 , 490 A.2d 1296 (1985); Comptroller of Treasury v. World Book Childcraft Int'l, Inc., 67 Md.App. 424 , 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986).

In Terranova , we noted: We said about conflicting witness testimony in Commissioner[, Baltimore City Police Dep’t] v. Cason, 34 Md.App. 487, 509 , 368 A.2d 1067 [, cert. denied, 280 Md. 728 ] (1977), that “... [t]o believe Sgt. Cason was to disbelieve Roye and Spangler. The issue was credibility, and nothing more. Direct evidence of an ultimate fact may be true, or it may be untrue, but it surely cannot be called insubstantial.” In the case at bar the appellant’s expert said that he was not fit.

The police department’s doctors, who partially based their opinions upon the opinion of appellant’s physician, said he was not fit. Dr. Potash said, in essence, that appellant was misrepresenting his condition and/or malingering, and for that reason, and other reasons stated, [he] was fit for police employment. The fact that the opinions of three doctors go one way and the opinion of a fourth doctor another does not make the report of that fourth insubstantial, especially when, as here, credibility of the respective physicians has played an important role in the Panel’s decision. Had the examiner found conversely, that finding also might have been supported by substantial evidence. 81 Md.App. at 11-12 , 566 A.2d 497 (emphasis added).

We summed up our decision by stating: While, were we the finder of fact we might well have found to the contrary,.there was substantial evidence supporting the examiner’s determinations. The weighing of the evidence and the assessment of witness credibility is for the finder of fact, not the reviewing court. A reasoning mind could have reached the decision of the agency and could ³⁴¹ reasonably have done so. Thus, the trial court did not err in rejecting the appellant’s insubstantial evidence arguments.

Robinson v. Montgomery County, 66 Md.App. 234 , 503 A.2d 275 , [cert. denied, 306 Md. 119 , 507 A.2d 631 ] (1986). 81 Md.App. at 13 , 566 A.2d 497 . The testimony of Officer Prange, alone, was sufficient to sustain the findings of the Board. She testified that she saw appellant strike the victim in the face. She stated, at one point, that she “believed” he was struck on the right side of his face.

At another point, she stated that she saw appellant use his left hand, and on another occasion she testified that she did not recall which hand was used. These types of testimonial conflicts are not rare — in fact, skillful attorneys attempt to create just such inconsistencies in order to attack the credibility of a witness or witnesses. The credibility of witnesses, however, is for the finder of fact, in this case the Board and not for this Court. From this left hand/right hand, which hand/any hand asserted dispute, an inference can be made, to the extent one is necessary — and we do not believe it was — that there is evidence 1 that the victim was struck in the face by appellant.

Appellant also strains to argue that the Board had insufficient evidence that appellant used his “fist” to strike the victim and that the Board had to make that finding in order to find him guilty, because the term “fist” was used in the specification. While we do not believe that the Board must respond with that degree of specificity or that it would have to find that a closed fist was used in order to render a guilty determination, we note that two inferences may be made when a person strikes another with his hand, i.e., it was either open or closed into a fist. The Board would have, and apparently did, infer that appellant’s hand was closed. There was sufficient evidence to sustain the Board’s findings that appellant struck the victim. ³⁴² B. Were these findings adequately explained?

Appellant here argues that, because the charges stated that the victim was struck on the left side of his face, the Board had to make specific findings that the point of impact was the victim’s left cheek. Appellant also argues, in respect to the charge involving lying, that the Board could not find that he lied unless the Board found that he had struck the victim in both “the face and chest area.” 2 He argues that because a dictionary defines the word “punch” to include the use of a “fist,” that in order to determine that appellant was guilty of the charge.of lying, the Board also would have to have found specifically that a fist was used, as opposed, we suppose, to an open hand or some other type of blow. Appellant argues that “[i]n this case, findings concerning the ‘left cheek’ and the ‘fist’ are both sine qua non conditions for a finding of guilt.” Appellant’s entire argument as to the charge of lying is fatally defective. Appellant was asked, “[D]id you punch him [Johnson] three or four times in the face and chest area?” His complete response was, “No, I did not, I did not deliver blows to Mr. Johnson.” Thus, his answer, the answer forming the basis of the charge of lying, was that he did not hit the alleged victim at all.

In the context of the question and the answer, whether appellant struck Johnson with an open hand or closed fist, or on the left cheek or right cheek, is, as to. the charge of lying, not relevant, even if extreme specificity is required. However, even if his answer had merely been, “No,” he still would not prevail. We explain. Appellant cites Tron v. Prince George’s County, 69 Md.App. 256 , 517 A.2d 113 (1986), as support for his argument that the Board was required to make specific findings that the victim had been struck by appellant with his fist in both the face and chest areas in order to find that he had lied.

In Tron , it was ³⁴³ argued that the agency there involved was required to make findings of fact. We agreed. We still agree. The issue in the case sub judice, however, is how specific must those findings be.

The agency’s decision in Tron read, in toto: Disability Review Board Case # 137 Henry Tron — Firefighter Administrative Session — June 29,1983 At the request of the Fire Department[,] the Medical Advisory Board reviewed the medical reports on Firefighter Tron to determine his fitness for duty. The Board reviewed the medical reports pertaining to his “arthritic condition” from the County Consultant and his treating physician. On the basis of the data submitted the Board recommends disability retirement as a result of the arthritis which is unrelated to his occupation as a Firefighter. (See attached Findings of Facts for details).

The Disability Review Board considered the Findings of Fact and the medical reports and determined that Firefighter Tron is disabled within the meaning of the Fire Service Pension Plan and that his disability is non-service connected due to ‘severe arthritis’. Date William R. Brown, Jr., Chairman Mary Godfrey, Personnel Officer Lt. Col. Thomas Davis, Police Dept.

Id. at 270 , 517 A.2d 113 . In that case, we noted that the agency erroneously believed that a review board’s written opinion could also serve as the agency’s findings of fact. We held that the law in question required the agency to make such findings. Quoting 73A C.J.S., Public Administrative Law and Procedure § 143 (1983), we noted, in part, that the purpose of the agency’s findings is ³⁴⁴ to facilitate judicial review and that those findings “are needed to aid a court” in determining the sufficiency question and in considering whether the agency’s actions are proper.

Tron, 69 Md.App. at 271 , 517 A.2d 113 . We also noted that the findings were necessary so that courts could be assured that the agency had been acting “in accordance with the law.” Id. We concluded, in Tron , that the agency gave no reasons for concluding that appellant’s physical conditioners unrelated to his occupation....” The Board’s findings cannot be sustained without adequate reasons in the record.... The Board is required to give reasons for its decisions. [Citation omitted.] Id. at 271-72 , 517 A.2d 113 .

We, thus, must examine whether the Board gave reasons, whether there was sufficient evidence or evidentiary inferences to support the agency’s reasons, and whether the reasons were sufficient to support its ultimate determinations. We begin our resolution of this issue with the Board’s decision: MR. CHAIRMAN: The time is now 1601 hours. The Board has reconvened in the matter of Police Officer II Robert W. Tippery.

After deliberations by all members of the hearing Board, it is a unanimous decision of this Board that Police Officer II Robert W.