Vandevander v. Voorhaar

THIEME, Judge. Former Sheriffs Deputy Steven M. VanDevander appeals from an order of the Circuit Court for St. Mary’s County upholding the findings of an administrative hearing board convened pursuant to Md.Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Art. 27 § 730. After a hearing held between September 28 and October 1, 1998, that three-member panel found that Deputy VanDevander had used excessive force during an off-duty security assignment, and had been untruthful in reports and statements regarding the incident. The board issued its report on November 12, 1998.

As required by Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 731(c), the Sheriff of St. Mary’s County, Richard J. Voorhaar, in a meeting held on January 22, 1999, reviewed the board’s written recommendations and increased the board’s recommended penalty to discharge. Deputy VanDevander petitioned for judicial review pursuant to Md. Rule 7-201, et seq., and the circuit court heard oral arguments on July 22, 1999. The court found no problems with the findings and procedure used by the administrative hearing board. It did find, however, that the Sheriff failed to satisfy the procedural requirements set forth in the Law Enforcement Officers’ Bill of Rights (“LEOBR”), Md.Code (1957, 1996 Repl.Vol., 1999 Cum.Supp.), Art. 27 § 727, et seq., for achieving finality, and it remanded the matter to Sheriff Voorhaar for further proceedings on September 30.

Sheriff Voorhaar reconsidered the matter on December 6, and he reiterated his decision from the earlier proceeding. The circuit court issued its Final Order on December 23, 1999, from which Deputy VanDevander appeals and asks the following questions, which we have reordered and restated: 1. Did the court below err when it failed to reverse appellee’s decision to increase the penalty recommended by the hearing board? 2. Did the court below err when it affirmed the administrative hearing board’s finding that appellant was guilty of excessive force? ⁶²⁵ 3.

Did the court below err when it affirmed the hearing board’s finding that appellant was guilty of untruthful statements? 4. Did the court below err when it failed to find that appellant was denied due process and equal protection? To the first three questions, we answer “yes”; 1 we need not reach the fourth question. We reverse the judgment of the court below.

Facts Deputy VanDevander has been an officer with the St. Mary’s County Sheriffs Department for about eight years. On December 6, 1997, he was working in an approved part-time assignment at Perkins’ Restaurant. Although he wore civilian clothes, the deputy carried with him authorized law enforcement equipment, including pepper spray. The need for police intervention arose when a patron, Kevin Wood, the complainant in this action, whom witnesses described as loud, disruptive, and quite intoxicated, refused to leave the restaurant, despite several requests to do so.

Deputy VanDevander identified himself to Wood as a law enforcement officer. He first asked Wood to leave, and he did, but later Wood returned. Deputy VanDevander asked Wood to leave again, and this time he refused. The deputy then tried to remove Wood from the restaurant.

Witnesses observed Wood kicking Deputy VanDevander and the citizen who assisted him. In order to effectuate lawful arrest of the now-violent patron, Deputy VanDevander used pepper spray. Internal affairs charges were filed pursuant to Article 27, section 730, and included the following: 1. Truthfulness: All verbal and written reports submitted by employees of the Sheriff’s Office will be truthful; no employee shall knowingly report or cause to be reported any false information.

A clear distinction must be made ⁶²⁶ between reports which contain false information and those which contain inaccurate or improper information. To prove by a preponderance of the evidence that one has submitted a false report, evidence must be presented for consideration that such report is designedly untrue, deceitful, or made with the intent to deceive the person to whom it was directed. 2. Use of Force: It is the policy of the St. Mary’s Sheriffs Office that Deputy Sheriff and Corrections Officer employees, shall, in every instance, use only the minimum force needed to accomplish their mission, and shall exhaust every other reasonable means of apprehension or defense before using firearms. Further, it is Sheriffs Office policy the Deputy Sheriff and Corrections officer employees must reasonably anticipate a situation justifying the use of a weapon before removing it from its holster or otherwise displaying it.

The use and display of weapons in circumstances other than those described here is contrary to the Sheriffs Office policy. 3. Unbecoming Conduct: Employees shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorable [sic ] on the Department. Conduct unbecoming an employee as a member of the Department, or that which impairs the operation or efficiency of the Department or employee. 4. Withholding Evidence: Members shall not fabricate, withhold or destroy evidence of any kind. 5.

Prisoner Safety: Officers charged with the custody of prisoners observe all laws and Department orders in connection with this activity. Prisoners are kept securely, treated in a humane manner, and are not subjected to unnecessary restraint or force. Profane or abusive language directed at prisoners is prohibited. The arresting officer is responsible for the custody of his prisoner until custody is assumed by other competent authority.

This responsibility includes the prevention of acts by any other member of the Department ⁶²⁷ which violate the law or Department regulations. Any Department employee, including the arresting officer, who has knowledge of any violations of this provision immediately reports his knowledge to his section or station commander. The administrative hearing board found Deputy VanDevander guilty of the first and second charges, and it recommended a five-day suspension for excessive force and a one-year reduction in rating for untruthfulness. Sheriff Voorhaar increased the penalty so as to discharge the deputy from employment.

After the circuit court issued a final order, Deputy VanDevander noted a timely appeal. Discussion Our standard of review for decisions of administrative panels is precisely that of the circuit court. Maryland Dep’t of Educ. v. Shoop, 119 Md.App. 181, 196 , 704 A.2d 499 (citing Dept. of Human Resources v. Thompson, 103 Md.App. 175, 188 , 652 A.2d 1183 (1995)), cert. denied, 349 Md. 495 , 709 A.2d 140 (1998). We review appeals from such panels under a two-tiered scheme.

We examine the panel’s findings of fact under the substantial evidence test. Department of Health & Mental Hygiene v. Reeders Mem. Home, Inc., 86 Md.App. 447, 452 , 586 A.2d 1295 (1991). We cannot, however, substitute our judgment for that of the administrative panel.

Zeitschel v. Board of Educ., 274 Md. 69, 82 , 332 A.2d 906 (1975). As for our review of the findings of law, when no such deference is appropriate, we may substitute our judgment for that of the administrative panel. Shanty Town Assoc. v. Department of the Environment, 92 Md.App. 103, 116 , 607 A.2d 66 (1992); see also Younkers v. Prince George’s County, 333 Md. 14, 19 , 633 A.2d 861 (1993) (citing People’s Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 496-97 , 560 A.2d 32 (1989)).

So broad are our powers of review that the Maryland Administrative Procedures Act, Md.Code (1984, 1999 Repl. Vol., 1999 Cum.Supp.), § 10-201, et seq., of the State Government Article, gives us authority to: (1) remand the case for further proceedings; ⁶²⁸ (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, , conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. Md.Code (1984, 1999 Repl.Vol.), § 10-222(h) of the State Government Article. 2 Thus, we may reverse a decision in order to correct errors of fact or law, those errors caused by arbitrary or capricious actions of the hearing board, and those errors arising when the board denies the defendant constitutional protections. We do so here.

I The court below erred when it failed to reverse Sheriff Voorhaar’s decision increasing the penalty recommended by the hearing board, because he acted outside of the constraints of the LEOBR, Maryland’s controlling statute for the discipline of law enforcement personnel. The LEOBR, at Article 27, section 731(c), sets specific standards with which police chiefs and sheriffs must comply if they seek to increase in severity a penalty recommended by an administrative hearing board: , The written recommendations as to punishment are not binding upon the chief. Within SO days of receipt of the hearing board’s recommendations, the chief shall review the findings, conclusions, and recommendations of the hearing ⁶²⁹ board, and then the chief shall issue a final order. The chiefs final order and decision is binding and may be appealed in accordance with this subtitle.

Before the chief may increase the recommended penalty of the hearing board, the chief personally shall: (1) Review the entire record of the hearing board proceedings; (2) Meet with the law enforcement officer and permit the law enforcement officer to be heard on the record; (3) Disclose and provide to the officer in writing at least 10 days prior to the meeting any oral or written communication not included in the hearing board record on which the decision to consider increasing the penalty is based, in whole or in part; and (4) State on the record the substantial evidence relied on to support the increase of the recommended penalty. § 731(c) (emphasis added). The procedure outlined in the LEOBR for the increase of penalties is mandatory, not voluntary. See Hird v. City of Salisbury, 121 Md.App. 496, 504 , 710 A.2d 352 (1998) (“Until Chief Dykes satisfied every precondition for increasing the hearing board’s recommended penalty for Officer Hird, including meeting with her and giving her the opportunity to be heard on the record, his action in increasing the penalty was not validly taken and could not be final”) (emphasis added). From the record, it is clear that appellee essentially ignored these procedural requirements as he enhanced the hearing board’s recommended penalty, yet the court below found error for only the third requirement, disclosure of communications upon which his decision had been based.

See § 731(c). As Hird requires, the court remanded this action to give Sheriff Voorhaar opportunity to cure the shortcoming, and he in turn held a second meeting and issued a final, identical ruling that the court upheld. The court, however, seemed to overlook other procedural errors, including appellee’s failure to review the hearing board’s findings in timely fashion, within the thirty-day win ⁶³⁰ dow prescribed by statute. The hearing board’s report came forth on November 12, 1998.

Sheriff Voorhaar’s first hearing on that report was scheduled for December 22—ten days, we note, past the statutory deadline—and, after a last-minute cancellation, it was further delayed until January 22, 1999. Sheriff Voorhaar neither asked Deputy VanDevander to concur in postponing the mandated meeting nor requested that he waive the time limits set forth in section 731(c). Indeed, Deputy VanDevander duly noted an objection at the meeting held on January 22, stating that the time for increasing penalties had already passed. Likewise, Sheriff Voorhaar by his own admission failed to review the entire record from the hearing board proceedings.

See § 731(c)(1). Indeed, in a memorandum of December 14, 1998, he stated: “On November 23, 1998, I reviewed the Hearing Board Report issued in the subject administrative case. I have reviewed the findings, conclusions, and recommendations of the Hearing Board.” Describing his pre-meeting preparation, appellee also stated in correspondence dated January 25, 1999: “I reviewed Deputy First Class VanDevander’s Sheriffs Office personnel file. I have also reviewed a sufficient amount of the taped and transcribed Hearing Board record.” Further, as the court below did find, Sheriff Voorhaar failed to “[djisclose and provide to [Deputy VanDevander] in writing at least ten days prior to the meeting any oral or written communication not included in the hearing board record on which the decision to consider increasing the penalty is based.” § 731(c)(3).

Beyond his actual failure to notify Deputy VanDevander ten or more days before the meeting took place, Sheriff Voorhaar stonewalled his way through counsel’s attempts to place notice of that failure in the meeting record: [APPELLANT’S COUNSEL]: I do need to ask you if you could at least tell us for the record who you have discussed the Board’s