Travers v. Baltimore Police Department

HARRELL, Judge. Antoine Travers, a former member of the Baltimore City Police Department (the Department), was charged with violating various rules and regulations promulgated by the Department. The Police Commissioner, in accordance with a hearing board’s finding of guilt as to all charges and recommendation of- termination, issued a final order terminating Mr. Travers’s employment with the Department. The Circuit Court for Baltimore City affirmed the Department’s final order.

Mr. Travers appeals his termination to this court contending (1) procedural violations and (2) that some of the board’s findings were not supported by sufficient evidence. Because we conclude that the board’s findings as to two of the specifications supporting the charges against appellant were not supported by substantial evidence, we must vacate the judgment of the ⁴⁰¹ circuit court and instruct it to remand this case to the Department to reconsider what action it shall take against appellant in light of our decision. ISSUES Appellant presents the following issues, rephrased by us as: 1. Whether the board committed legal error by admitting the hearsay testimony of Lieutenant James Henderson and Officer John Moore concerning appellant’s alleged assault on Ms. Elizabeth Nelson. 2.

Whether the decision of the board was supported by sufficient evidence. FACTS As a result of an off-duty incident occurring on 23 October 1994, the Baltimore City Police Department, on 14 August 1995, charged appellant with various violations of Departmental Rules and Regulations. We have excerpted the Department’s charging document as follows: CHARGE 1 Violation of Rule 1, Section 13 Section 13: No member of the department shall at any time be insubordinate or disrespectful to a superior. Specification: On or about [23 October 1994], Police Officer Antoine Travers was insubordinate and disrespectful to superior officers when he failed to leave the apartment of Ms. Elizabeth Nelson as directed by Lieutenant James T. Henderson.

CHARGE 2 Violation of Rule 1, Section 14 Section 14: No member of the department shall willfully disobey any lawful command or order, either verbal or ⁴⁰² written, of any superior or other member designated to command. Specification 1: On or about [23 October 1994], Police Officer Antoine Travers disobeyed a lawful command or order from Lieutenant James T. Henderson to leave the apartment of Ms. Elizabeth Nelson. Specification 2: On or about [12 January 1995], Police Officer Antoine Travers disobeyed a lawful command or order from Major Barry Powell to appear at the offices of the Internal Investigation Division on [25 January 1995]. CHARGE 3 Violation of Rule 1, Section 18 Section 18: No member of the department shall intentionally violate any Federal or State law or City ordinance.

Specification: On or about [23 October 1994], Police Officer Antoine Travers assaulted and battered Ms. Elizabeth Nelson. CHARGEk Violation of Rule 1, Section Conduct Rule 1, Conduct: Any breach of the peace ... or any conduct on the part of any member of the department, ... which tends to undermine the good order, efficiency or discipline of the department, or which reflects discredit upon the department or any member thereof, or which is prejudicial to the efficiency and discipline of the department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Baltimore Police Department, and subject to disciplinary action by the Police Commissioner. Specification 1: On or about [23 October 1994], Police Officer Antoine Travers was insubordinate and disrespectful to ⁴⁰³ superior officers when he failed to leave the apartment of Ms. Elizabeth Nelson as directed by Lieutenant James T. Henderson. Specification 2: On or about [23 October 1994], Police Officer Travers disobeyed a lawful command or order from Lieutenant James T. Henderson to leave the apartment of Ms. Elizabeth Nelson.

Specification 3: On or about [12 January 1995], Police Officer Antoine Travers disobeyed a lawful command or order from Major Barry Powell to appear at the offices of the Internal Investigation Division on [25 January 1995]. Specification 4: On or about [23 October 1994], Police Officer Antoine Travers assaulted and battered Ms. Elizabeth Nelson. A Departmental Trial Board hearing was conducted on 4 December 1995 to adjudicate those charges. We have excerpted the relevant portions of the board’s Finding[s] of Fact that accurately summarized those proceedings.

Officer [John] Moore testified that on [23 October 1994] at 0351 hours he ... responded to 2433 Brambleton Road, Apt. 3D.... Officer Moore was called ... to take an assault report from Ms. Elizabeth Nelson.... Ms. Nelson reports she returned to her home ... to find the door locked and a chain on the door. In an attempt to get the attention of her boyfriend, Officer Travers, who was inside, Ms. Nelson rang the buzzer, knocked on the door and set off Officer Traverses] auto alarm.

After getting no response at the door, Ms. Nelson squeezed into the apartment. She found Officer Travers in the bedroom. After a brief pushing encounter, Ms. Nelson called Officer Travers’[s] sister and was advised by her not to say anything to Officer Travers. Ms. Nelson reports she laid down in bed at which time Officer Travers grabbed her by the neck, threw her against a wall, and slapped her twice.

Ms. Nelson reports she scratched Officer Travers on the arm after being slapped. Officer Moore ⁴⁰⁴ testified Ms. Nelson did not require medical attention and he did observe her face was “puffy”.... Lieutenant James T. Henderson ... testified. [He] reports he responded to the scene of a domestic assault at the request of Sergeant [Reginald] Hendrix. Lieutenant Henderson testified that upon his arrival, he found the following people present: Ms. Nelson, her mother, Officer Travers, Sergeant Hendrix, Officer Moore and Officer Byron Carter.

After speaking with Sergeant Hendrix and seeing a rent receipt in Ms. Nelson’s name, Lieutenant Henderson observed redness on Ms. Nelson’s neck and a puffy face. Lieutenant Henderson advised Officer Travers to leave the apartment. When Officer Travers refused, Lieutenant Henderson informed Officer Travers of his need to keep his job____ Again, Officer Travers refused. Lieutenant Henderson then told Officer Travers he would be arrested if he did not leave.

Concerned for Ms. Nelson’s safety, Officer Travers was arrested when he refused to leave. Lieutenant Henderson testified he never “ordered” Officer Travers to leave, but made it clear he should leave. Under re-direct examination, Lieutenant Henderson testified it was possible both Ms. Nelson and Officer Travers were both the legal occupants; however, he did not want Ms. Nelson to leave. Lieutenant Henderson also described Officer Travers as antagonistic and [uncooperative.

In response to a question from the Board, Lieutenant Henderson testified the only evidence that Officer Travers lived there ... were several bags of clothing on the floor. The Department called Major Barry Powell, C.I.B [Criminal Investigations Bureau], to testify. [He] testified that in January, 1995 ... Officer Travers was assigned to his command. He further testified that on [12 January 1995] he personally ordered Officer Travers to appear at I.I.D. [Internal Investigations Division] on 25 January 1995 to provide a statement____ Under [cross-]examination, Major Powell testified that Officer Travers may have been on Medical Leave on [25 January 1995]; however, he would still be obligated to respond to I.I.D. if he was ambulatory. ⁴⁰⁵ Major Powell also cited the officer’s responsibility to notify I.I.D. if he [could not] attend. * * ❖ ...

Officer Travers was called to testify and stated he had been on stress medical leave since 24 January 1995. He testified this was caused by his “immediate” transfer to the Central District which occurred on [23 January 1995]. Officer Travers testified that on [23 October 1994] he resided at 2433 Brambleton Road, Apt. 3D and had lived there since February 1994. He also stated his property was there.

Officer Travers testified that on 23 October 1994 at 0330 hours he was home in bed. He was awakened when Ms. Nelson came into the bedroom and assaulted him. Officer Travers testified he pushed her off and held her at bay, but he denied choking her. Officer Travers testified that when police arrived, he obeyed when told by the sergeant and later by the lieutenant to “shut up and sit down”.

He testified that Lieutenant Henderson never told him to leave the apartment and that he was never disrespectful to the [L]ieutenant or any other Officer. Officer Travers also testified that after his arrest, he filed an assault report against Ms. Nelson but never pursued charges. Officer Travers testified that the criminal case against him was dismissed, but later acknowledged that a nolle prosequi had, in fact, been entered in the case.... Officer Travers testified that on [24 January 1995] at 0650 hours he called the Central District and reported on “stress medical” to Officer Barnes....

He also testified that he did not have to report to I.I.D. on 25 January 1995 because he was on medical leave and that it was not his responsibility to notify them of his inability to report. ... Officer Travers testified ... that “everything I own” was in the apartment that night____ Officer Travers testified that he did speak with Ms. Nelson before the first Disciplinary Hearing on [12 October 1995], but he denied threatening her if she testified. Officer Travers reluctantly acknowledged that Lieutenant Henderson was his superior ⁴⁰⁶ and testified the only thing he, Lieutenant Henderson, asked him on the scene of the domestic assault was, “Do you have a place to go?” Officer Travers also testified he was upset at the time. He also admitted that he was ordered by Major Powell to report to I.I.D. on 25 January 1995 and he failed to appear.

There were no other witnesses called by the defense. * * * The Board ... [unanimously] concluded there was sufficient evidence to sustain a verdict of guilty to each charge and specification. The department submitted Officer Traverses] personnel jacket/service record to the Board noting it includes the following prior disciplinary action: Termination, That termination to be suspended for 12 months, 12 months probation, severe Letter of Reprimand noting future violation is sufficient cause to effectuate termination. 4/25/90 Trial Board— Guilty 5 Counts Misconduct/In-subordination Severe Letter of Reprimand, Guidance and Counseling noting that future transgression will result in recommendation for termination. 1/23/89 Neglect of Duty * * * ... The board weighed the severity of the charges, the testimony and evidence offered during the hearing, the mitigation testimony, and Officer Traverses] service record to include his prior disciplinary record. Ultimately, the board recommended that appellant’s employment with the Baltimore City Police Department be ter ⁴⁰⁷ minated.

On 18 December 1995, the Police Commissioner approved the board’s recommendation, and appellant was terminated effective 29 December 1995. Appellant’s Petition for Judicial Review resulted in affirmance by the Circuit Court for Baltimore City of appellee’s action. ANALYSIS We begin our analysis by noting the varied sources of procedural safeguards upon which appellant is entitled to rely. First, the requirements of procedural due process as guaranteed by the Fourteenth Amendment to the Constitution and Article 24 of the Maryland Declaration of Rights apply to an administrative agency exercising judicial or quasi-judicial functions.

Maryland State Police v. Zeigler, 330 Md. 540, 559 , 625 A.2d 914 (1993); Board of Medical Examiners v. Steward, 203 Md. 574, 582 , 102 A.2d 248 (1954). In addition, a police officer confronted with disciplinary proceedings is entitled to the protections afforded by the contested case provisions of the Maryland Administrative Procedure Act (APA), Md.Code, State Gov’t § 10-201 et seq., as well as those of the Law Enforcement Officers’ Bill of Rights (LEOBR), Md.Code, art. 27 §§ 727-734C. Zeigler, 330 Md. at 553 , 625 A.2d 914 (1993). See Mayor and City Council of Ocean City v. Johnson, 57 Md.App. 502, 516 , 470 A.2d 1308 (1984) (police chiefs authority to discharge police officers must be exercised in conformance with LEOBR); Chief, Baltimore County Police Dep’t v. Marchsteiner, 55 Md.App. 108, 116 , 461 A.2d 28 (1983) (LEOBR applies when a law enforcement officer is under investigation by a law enforcement agency as a result of a disciplinary-type complaint lodged against officer).

Finally, the LEOBR provides for judicial review of a final order by the Baltimore City Police Chief. See Md.Ann.Code, art. 27 § 731. /. Appellant’s first contention is that, by admitting hearsay statements of the alleged victim, Ms. Nelson, through the testimony of Officer Moore and Lieutenant Henderson, the ⁴⁰⁸ board committed legal error. 1 Stated differently, appellant contends that the hearing board allowed Ms. Nelson’s testimony to be given vicariously through Officer Moore and Lieutenant Henderson without having her run the gauntlet of cross-examination. A reviewing court may reverse the decision of the Police Commissioner if such decision results from unlawful procedure or some other error of law.

See Md.Code, State Gov’t § 10 — 222(h)(3)(iii)—(iv). Nonetheless, it is well settled that the procedure followed in administrative agencies usually is not as formal and strict as that of the courts. See Gorin v. Board of County Com’rs for Anne Arundel County, 244 Md. 106, 110 , 223 A.2d 237 (1966); Standard Oil Co. v. Mealey, 147 Md. 249 , 127 A. 850 (1925). As such, the rules of evidence are generally relaxed in administrative proceedings.

Department of Public Safety & Correctional Servs. v. Cole, 342 Md. 12, 31 , 672 A.2d 1115 (1996); Dickinson-Tidewater, Inc. v. Supervisor of Assessments, 273 Md. 245, 253 , 329 A.2d 18 (1974). Stated differently, that which is inadmissible in a judicial proceeding is not per se inadmissible in an administrative proceeding. Powell v. Maryland Aviation Admin., 336 Md. 210, 220 , 647 A.2d 437 (1994). It follows, therefore, that hearsay evidence that is inadmissible in a judicial proceeding is not necessarily inadmissible in an administrative proceeding.

Maryland Dept. of Human Resources v. Bo Peep Day Nursery, 317 Md. 573, 595 , 565 A.2d 1015, 1025 (1989), cert. denied, 494 U.S. 1067 , 110 S.Ct. 1784 , 108 L.Ed.2d 786 (1990). These principles are embodied in the statutory language comprising the APA and the LEOBR. Section 10-213 of the APA states in relevant part: (b) Probative evidence. — The presiding officer may admit probative evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs and give probative effect to that evidence ... ⁴⁰⁹ (c) Hearsay. — Evidence may not be excluded solely on the basis that it is hearsay. (1995 Repl.

Vol). Under the LEOBR, [ejvidence which possesses probative value commonly accepted by reasonable and prudent men [and women] in the conduct of their affairs shall be admissible and shall be given probative effect. The hearing board conducting the hearing ... shall exclude incompetent[ 2 ], irrelevant, immaterial, and unduly repetitions evidence. Md.Ann.Code, art. 27 § 730(e) (Repl.Vol.1996).

In drafting the aforementioned provisions of the APA and LEOBR, the General Assembly implicitly recognized that the formal rules of evidence possess far greater utility in jury trials than an agency hearing before a presumably expert hearing officer. One administrative law scholar has commented on this implied purpose as follows: There are three reasons why it makes little sense to take the risk of erroneous exclusion of reliable evidence through application of highly technical exclusionary rules in the context of agency adjudications. First, the cost of such errors is as great in the agency adjudications context as it is in the trial context — if the ALJ [Administrative Law Judge] erroneously excludes reliable evidence the agency must either remand for further proceedings or decide the case on the basis of an incomplete record. Second, the risk of errors of exclusion is greater in the agency adjudication context than in the context of a jury trial.

Third, there are good reasons to take this risk in the jury trial context that do not exist in the case of agency adjudications. ⁴¹⁰ Prompt resolution of difficult evidentiary issues ... presents even greater challenges and risk to agency ALJs than to ... trial judges. To resolve close evidentiary questions, a judge must focus specifically and with some care on the issues in the proceeding and on the relationship between a proffered item of evidence and those issues, for most such questions must be answered by reference to the purpose for which the evidence can be considered and its probative value when considered for that purpose. Yet, agency ALJs often have an incomplete understanding of the issues at the time they must rule on the admissibility of evidence. ALJ’s unlike ... judges, do not resolve cases subject only to possible appeal.

Rather, they issue initial decisions that are, for most purposes, functionally equivalent to recommendations to agency decision makers. Since the ALJ is not the final decision maker, she often has an imperfect understanding during the hearing of both the issues the agency ultimately will consider important and the probative value the agency will attach to various types of evidence with respect to those issues. * * * The decision to take the risk of erroneous exclusion of evidence in jury trials is based in part on considerations of necessity that have no analogue in administrative adjudications. In a jury trial, there is little choice but to ask trial judges to resolve close evidentiary disputes through application of complicated and detailed exclusionary rules, and thereby to take that risk that a new trial or of a decision that is not based on all reliable evidence. In Dean Calabre-si’s words, juries are ‘irresponsible’ decision makers in the sense that they are not required to explain the basis for their decisions, including particularly the evidentiary bases for their findings of fact.

Thus, if we want to preclude juries from basing findings on evidence considered unreliable by judges, we can do so only by precluding their exposure to that evidence in the first place. ⁴¹¹ The considerations are entirely different in agency adjudications. Agencies and ALJs are required to state the bases for their findings of fact. Their findings are then subject to judicial review under the substantial evidence standard. If an agency finding is based on unreliable evidence, the agency’s action is reversed.

Thus, there is a mechanism available in agency adjudications independent of rulings on the admissibility of evidence to insure that agency findings are based only on reliable evidence. Richard J. Pierce, Use of the Federal Rules of Evidence in Federal Agency Adjudications, 39 Admin.L.Rev. 1, 17-19 (1987) (footnotes omitted). See also, Kenneth C. Davis, Hearsay in Administrative Hearings, 32 Geo.Wash.L.Rev. 689, 693-64 (1962); Kenneth C. Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv.L.Rev. 364, 376 (1942); Arnold Rochvarg, Hearsay in State Administrative Hearings: The Maryland Experience and Suggestions for Change, 21 U.Balt.L.Rev. 1 (1991); Note, Hearsay — Ad missibility before Administrative Boards, 37 Yale L.J. 993 , 994 (1927). Of course, occasionally, even in modern administrative process, the administrative hearing body may not be presided over by a legally-trained ALJ, e.g., the police trial board.

Thus, the rules of evidence in administrative proceedings generally are designed not to be thickets of common law brambles requiring a Juris Doctor guide. They are intended, instead, to be understandable and readily useable by the average citizen. Nonetheless, while administrative agencies are not constrained by technical rules of evidence, they must observe basic rules of fairness as to the parties appearing before them so as to comport with the requirements of procedural due process afforded by the Fourteenth Amendment. See Md. Code Ann., State Gov’t § 10-222(h)(3)(i); Schultz v. Pritts, 291 Md. 1, 7 , 432 A.2d 1319 (1981).

The Court has remained steadfast in reminding agencies that to be admissible in an adjudicative proceeding, hearsay evidence must demonstrate sufficient reliability and probative value to satisfy the requirements of procedural due process. See Department of Public ⁴¹² Safety & Correctional Servs. v. Cole, 342 Md. 12, 32 , 672 A.2d 1115 (1996); Motor Vehicle Admin. v. Karwacki, 340 Md. 271, 285 , 666 A.2d 511 (1995) (holding that criteria of reliability is applicable to hearsay evidence). 3 Indeed, hearsay statements are admissible in an administrative proceeding and if found to be credible and probative, may form the sole basis for the agency’s decision. Redding v. Board of County Com’rs for Prince George’s County, 263 Md. 94, 110-11 , 282 A.2d 136 (1971), cert. denied, 406 U.S. 923 , 92 S.Ct. 1791 , 32 L.Ed.2d 124 (1972); Kade v. Charles H. Hickey Sch., 80 Md.App. 721, 725 , 566 A.2d 148 (1989). Finally, the Court countenances the relaxation of evidentiary rules so long as they are not applied in an arbitrary or oppressive manner that deprives a party of his or her right to a fair hearing.

Commission on Medical Discipline v. Stillman, 291 Md. 390, 422 , 435 A.2d 747 (1981). Appellant, while acknowledging that hearsay evidence may be admissible in administrative proceedings if probative and credible, asserts that the hearsay testimony in the instant case was incompetent. In support of his contention, he cites the following language from Department of Public Safety and Correctional Servs. v. Scruggs, 79 Md.App. 312 , 556 A.2d 736 (1989): The critical requirement ... is that whether in judicial or administrative proceedings, the evidence presented must be considered, “competent.” We believe that the Legislature clearly has indicated its intent that evidence which would be considered “incompetent”, and for that reason inadmissible ⁴¹³ for substantive purposes in judicial proceedings, should also be excluded in proceedings before administrative agencies. Id. at 322 , 556 A.2d 736 .

Appellant, however, fails to recognize that it is not the hearsay nature of proffered evidence that is determinative of whether such evidence is admissible. Instead, as our analysis of the Court of Appeals’s jurisprudence on this issue indicates, the evidence’s probative value, reliability, and fairness of its utilization are the principal factors considered in the competency analysis. In the instant appeal, appellant has not articulated how the statements made by Ms. Nelson to the officers were incompetent or unreliable except for his bald assertion that he was denied the opportunity to cross-examine Ms. Nelson. Nor has appellant demonstrated how the Board’s decision to consider Ms. Nelson’s hearsay statements was arbitrary or oppressive.

Nevertheless, in the interests of ensuring that appellant’s due process rights remain untrammelled we shall proceed with our own independent analysis. It is improper for an agency to consider hearsay evidence without first carefully considering its reliability and probative value. One important consideration for a hearing body is the nature of the hearsay evidence. For instance, statements that are sworn under oath, see Kade, 80 Md.App. at 726 , 566 A.2d at 151 , Eichberg v. Maryland Bd. of Pharmacy, 50 Md.App. 189, 194 , 436 A.2d 525, 529 (1981), or made close in time to the incident, see Richardson v. Perales, 402 U.S. 389, 402 , 91 S.Ct. 1420, 1427-28 , 28 L.Ed.2d 842 (1971), or corroborated, see Consolidated Edison, v. N.L.R.B, 305 U.S. 197, 230 , 59 S.Ct. 206, 217 , 83 L.Ed. 126 (1938) (“mere uncorroborated hearsay or rumor does not constitute substantial evidence”); Wallace v. District Unemployment Compensation Bd., 294 A.2d 177, 179 (D.C.App.1972), ordinarily is presumed to possess a greater caliber of reliability.

In the case at bar, Ms. Nelson’s statements were not sworn. Nonetheless, although not sworn, Ms. Nelson’s comments to the officers, if made with knowledge of their falsehood, with an intent to deceive the investigating officer, and with an intent ⁴¹⁴ to cause an investigation or other similar action to be taken as a result of the lie, could have subjected her to criminal penalties. See Md.Ann.Code, art. 27 § 150 (criminalizing false statements to police officers); Johnson v. State, 75 Md.App. 621, 634 , 542 A.2d 429 (1988), cert. denied, 316 Md. 675 , 561 A.2d 215 (1989). Furthermore, a relatively short period elapsed from the point of the alleged incident until the time Ms. Nelson recounted her story to Officer Moore and Lieutenant Henderson.

Appellant testified that Ms. Nelson entered the apartment at approximately 3:30 a.m. Officer Moore testified that he received a call to respond to an incident at Ms. Nelson’s residence at 3:51 a.m. on the night in question. Lieutenant Henderson testified that his encounter with appellant occurred “[approximately close to 4:00 a.m.” Thus, while Ms. Nelson’s statements might not constitute an “excited utterance”, see Md.Rule 5-803(b)(2), their relative proximity in time to the allegedly heated incident is a factor that enhances the reliability of her statement. Cf.

Dennis v. State, 105 Md.App. 687, 699-700 , 661 A.2d 175 , cert. denied 340 Md. 500 , 667 A.2d 341 (1995) (concluding that statement to police was excited utterance when it was made approximately twenty minutes after declarant called police and at time declarant met police officer she was “very upset ... almost to the point where she was hysterical”) (Wilner, C.J.). Finally, Ms. Nelson’s testimony was corroborated by the fact that Lieutenant Henderson testified to noticing red marks on both sides of Ms. Nelson’s neck and that her face was puffy and red. This furnished the board with evidence independent of Ms. Nelson’s statements, that refuted appellant’s contention that he did not assault, strike, or choke Ms. Nelson, thereby enhancing the reliability of Ms. Nelson’s statements as relayed by the Departmental witnesses. Appellant cites our decision in Don-Neil Kade v. The Charles H. Hickey Sch., 80 Md.App. 721 , 566 A.2d 148 (1989) for the proposition that hearsay statements must be competent to be admissible in an administrative proceeding.

Kade involved allegations of misconduct of a supervisor at a state-operated detention facility. At the hearing before the agency, ⁴¹⁵ the school’s superintendent testified as to statements made to him by others concerning Kade’s conduct. The superintendent, however, was not present during the alleged incidents. In addition, a report by the employee who was allegedly on the receiving end of Kade’s improprieties and other written statements of students who had allegedly witnessed the incident were admitted into evidence.

Id. at 724-26 , 566 A.2d at 149-51 . In reversing the Department of Personnel’s decision to suspend Kade, we held as follows: Under the circumstances of the instant case, we hold that DOP [Department of Personnel] improperly