Warner v. Town of Ocean City

CATHELL, Judge. Albert P. Warner, a member of the Ocean City Police Department, filed an appeal in the Circuit Court for Worcester County from the findings and decision of an ¹⁸⁰ Administrative Hearing Board acting under the provisions of the Law Enforcement Officers Bill of Rights, which is codified at Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 727 et seq. That agency rendered “verdict—guilty” on five charges. 1 These charges arose from Warner’s communication of an anonymous letter to the Mayor and City Council of Ocean City, the text of which follows: July 16, 1987 Mayor and City Council of Ocean City 301 Baltimore Avenue Ocean City, MD 21842 Dear Mayor arid city Council, Recently, I read that Captain John Crone was promoted to Major and placed in charge of the Ocean City Police Department. As a concerned citizen of the Town of Ocean City, I wonder if the Police Department or the City Council does any type of background investigation on the people it chooses to promote to such important positions, or if the Mayor and Council even care about the person’s character.

I have personal knowledge that Captain Crone has been involved in many types of unethical and illegal activities, to include: 1. Accompanying a juvenile to a bar to consume alcoholic beverages. 2. Holding his former wife hostage at gunpoint. 3. Giving prescription drugs to another officer on the police department. 4.

Giving out confidential information to an individual who was suing the police department. 5. Having his Driver’s License suspended in the State of Maryland. ¹⁸¹ I would strongly suggest that the Mayor and City Council investigate this matter, and question the sergeants, lieutenants, and captains in regard to it. I also feel that an investigation by the Maryland Police Commission would be in the best interest of Ocean City and its citizens. If the Mayor and City Council are truly interested in a police department that is above reproach, then you will not hesitate to initiate a thorough investigation of Captain John Crone.

If an investigation is not initiated, then the above information will be forwarded to all newspapers and television media in the tri-state area. Sincerely, A Concerned Citizen After reconvening under the provisions of Art. 27, § 731, the Board recommended that Warner be demoted from Lieutenant to Sergeant. That recommendation constituted a final decision under the provisions of Art. 27, § 731(d). While there appears to be some confusion regarding whether the trial judge specifically affirmed or reversed the verdict as to “Specification 2 of Charge No. 1,” the parties, on appeal, treat the trial court’s opinion as affirming that finding.

The trial court does conclude: “The decision of the Administrative Hearing Board be, and the same is hereby AFFIRMED, with the exceptions noted herein.” Whereas there is no specific reversal or affirmance of Specification 2 of Charge 1, we will presume that the lower court affirmed the agency’s finding and verdict on that charge. The two charges and verdicts so affirmed were: 1. Charge 1, Specification 2. Violation of Rule 1 which provides: Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any member of the department, either within or without Ocean City, both on and off duty, 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 brings the department into disrepute, ¹⁸² even though these offenses may not be specifically set forth, shall be considered conduct unbecoming a member of the department and shall subject that member to disciplinary action.

Specification 2 for this violation: On or about July 16, 1987, Lieutenant Albert P. Warner undermined the good order, efficiency and discipline of the department by violating the chain of command and circumventing the Chief of Police in sending a letter to the Mayor, the City Council and the City Manager, concerning an internal matter, without the knowledge of the chief. 2. Charge 3, Violation of Rule 1, Section 8, which provides: Personnel shall not be insubordinate or disrespectful to a superior officer or other person designated to command, nor shall they willfully disobey any lawful command, regardless of whether it is verbal or written. The specification for this violation: On or about July 16, 1987, Lieutenant Warner acted in an insubordinate and disrespectful manner to Major John A. Crone and Chief Leroy E. Duggan by sending a letter containing allegations of misconduct by Major Crone to the Mayor, the City Council and the City Manager. The trial court reversed all other findings of the agency.

It did, however, affirm, without change or remand, the punishment meted out by the Board upon the appellant as to all five charges of which the Board had found appellant guilty. The appellant appealed. There is no cross appeal by appellee. On appeal we are presented with four questions: 1.

Did the appellee demote the appellant because of his lawful exercise of constitutional rights? 2. Did the lower court err by relying [on] evidence not contained in the record of the hearing board? [If so, was such error harmful?] ¹⁸³ 3. Did the lower court err by affirming verdicts not based on substantial evidence? 4. Did the lower court, after reversing the hearing board on a majority of the charges, err by not remanding the case to the agency for further proceedings in light of the court’s decision? 1, 3 We first address the constitutional question appellant raises.

In so doing, we will briefly review some of the cases concerning the balancing of the constitutional rights of employees with the legitimate interests of employers. It has long been established that States may not discharge an employee for reasons which infringe on the employee’s First Amendment rights to freedom of speech. Perry v. Sinderman, 408 U.S. 593, 597 , 92 S.Ct. 2694, 2697-98 , 33 L.Ed.2d 570 (1972). The Supreme Court recently reiterated this point in Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987).

The Supreme Court, in Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), established a balancing test for determining whether an employee has been improperly sanctioned for exercising his or her constitutional right to freedom of expression. Pickering involved a public school teacher who was dismissed from his position for sending a letter to a local newspaper which criticized the Board of Education’s actions concerning the raising of revenue for the schools. In determining the appropriateness of the discharge, the court had “to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. 88 S.Ct. at 1734-35 . In reversing the teacher’s dismissal, the Court determined that the subject matter of the statement and the manner in which it was made rendered it a matter of public concern.

Since the Board was unable to substantiate allegations of detriment ¹⁸⁴ to its functioning, or to the functioning of the school system, and since such statements could not “reasonably be regarded as per se detrimental to the district’s schools,” id. at 1736, the teacher’s interest in making the statement substantially outweighed the State’s interest in dismissing him. Of particular importance to our application of the constitutional issues enunciated in Pickering to the case at bar, is the following footnote in Mr. Justice Marshall’s opinion: It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.

Id. at 1735, footnote 3. We believe that the police force in the case sub judice involves precisely the type of situation the Supreme Court contemplated in this footnote. The entity involved in the case at hand is quasi-military in its structure and organization. It is founded on principles of discipline and rank, and the type of criticism at issue would per se undermine the relationship between Lieutenant Warner and his superiors.

As a result, we must weigh additional and “significantly different considerations” from those noted in Pickering . In deciding which additional considerations to weigh under the particular facts and circumstances of this case, we are aided by two recent Supreme Court cases,- the first of ¹⁸⁵ which is Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983). That case involved a disgruntled Assistant District Attorney who, in response to a proposed transfer to a different department, drafted and distributed to other Assistant District Attorneys a questionnaire regarding, among other things, transfer policies within the office. Her superiors regarded this as a “mini-insurrection”, and discharged her.

She filed suit, contending that her employment had been wrongfully terminated because she had exercised her constitutional right to free speech. Reversing the decisions of both the Federal District and Circuit Courts, the Supreme Court held that the attorney’s discharge did not offend the First Amendment. In so holding, they applied an expanded version of the Pickering balancing test and determined that the employee’s limited First Amendment interest was outweighed by the employer’s interest in discharging the attorney where her conduct was disrupting the office, undermining the authority of her superiors and destroying close working relationships. In reaching its decision, the Supreme Court had to conduct a “threshold inquiry” into whether the speech at issue related to a matter of public concern.

In doing so, the Court considered “the content, form and context of the statement, as revealed by the whole record.” Connick, supra, 103 S.Ct. at 1690 . The portion of the questionnaire relating to office transfer procedures was held not to be a matter of public concern, but rather related to a personal employment dispute, and therefore was not protected. One question, however, asked whether any other employees had been coerced into working on particular political campaigns. This question did relate to a matter of public concern, and did contribute to her discharge.

The Court then had to consider whether the employer was justified in discharging the employee. “[T]he State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the compet ¹⁸⁶ ing interests.” Id. at 1692. While the employee’s conduct had not impaired her own ability to perform her duties, it clearly constituted an act of insubordination. Particular consideration was given to the time, place and manner in which the questionnaire was distributed.

The employee had to put aside her own work to prepare the questionnaire, and others took time from work to read it and fill it out. This “supported] Connick’s fears that the functioning of his office was endangered.” Id. at 1693. The context of the distribution of the questionnaire is likewise significant, in that it immediately followed the receipt of the transfer notice. When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor’s view that the employee has threatened the authority of the employer to run the office.

Id. at 1693. The Court concluded that the questionnaire regarded matters of public concern in a very limited manner. The limited First Amendment interest involved here does not require that Connick [the employer] tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Id. at 1694.

In applying the criteria set forth in Connick , it is important to note that in that decision, the Court reiterated the caveat first expressed in Pickering : “Because of the enormous variety of fact situations in which critical statements by ... public employees may be thought by their superiors ... to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.” Connick v. Myers, 103 S.Ct. at 1694 . Therefore, while we look to the factors considered in Connick for guidance, ¹⁸⁷ even these do not give us a complete framework within which to decide this case. In Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987), which is an extension of the Pickering balancing test, the same caveat applies. While the factors considered in Rankin aid us in making our determination of the appropriateness of the sanctions in the case at hand, we are not limited to those considerations but must develop our own, taking into account the particularized facts of the case at hand.

Rankin represents one of that Court’s most recent decisions on the competing interest of an employee’s constitutional rights and the legitimate employment interest of a public employer. In Rankin the dispute arose when a clerical employee in a constable’s office brought suit alleging that she was denied her First and Fourteenth Amendment rights when she was fired for making a political remark during a private conversation. In a 5-4 decision the employee prevailed. McPherson, the employee who was discharged in Rankin , in a private conversation with another employee, commented on the shooting of President Reagan, saying, “... shoot, if they go for him again, I hope they get him.” As a result of this statement, she was fired.

The Supreme Court’s majority held that the speech was on a matter of public concern, that the statement did not amount to the advocating of a criminal act, and that the employer had not met its burden of demonstrating a state interest justifying her discharge that outweighed her First Amendment rights. The Court further held that although the statement was made at her work place, there was no evidence that it interfered with the efficiency of the office or that it brought public discredit to the office. The majority in Rankin quoted Pickering as requiring [A] balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promot ¹⁸⁸ ing the efficiency of the public services it performs through its employees. • [citations omitted] Rankin, supra, 107 S.Ct. at 2896 . The Court in Rankin stated, at 2898, that “[i]n performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.” (emphasis added, citations omitted) In a detailed discussion of the Pickering balancing test, the Supreme Court stated: We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.

These considerations ... make apparent that the state interest element ... focuses on the effective functioning of the public employer’s enterprise____ [A]voiding such interference can be a strong state interest. # * * if * s* [I]n weighing the State’s interest ... some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails. Where, as here, an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function ... is minimal. 107 S.Ct. at 2899-2900 (emphasis added). The majority concluded that “McPherson’s employment-related interaction with the Constable was apparently negligible.

Her duties were purely clerical and were limited solely to the civil process function____ There is no indication that she would ever be in a position to further—or indeed to have any involvement with—the minimal law enforcement activity engaged in by the constable’s office.” 107 S.Ct. at 2900 . ¹⁸⁹ Accepting without deciding, that the contents of Warner’s letter are, at least on their face, an expression of public concern, we now make a comparative analysis of the facts in the case at bar with the facts and holding in Rankin : (1) Place where the statement was uttered Rankin In a private conversation with a co-employee. Warner In a written letter to the governing body of the town. (2) Time when it was uttered McPherson After hearing a broadcast that the president had been shot. Warner After the subject of the statement had just been promoted to a job Warner had been seeking.

(3) Manner of expression McPherson In a brief conversation to one person in which McPherson almost as a digression—expressed a hope— Warner In a letter to the elected representatives of the people accusing a fellow supervisory officer of unethical and illegal acts, calling for an investigation and threatening public disclosure if Warner’s demands were not met. (4) Context in which the expressions arose McPherson A. The context has no significance. B. McPherson “readily admitted the statement.” Warner A. The context is very significant. It was written when Warner was competing with the subject of the letter for the job in question.

It completely bypassed the chain of command and was addressed to the only authority that then may have been able to countermand the chief’s decision. B. Warner’s letter was written anonymously to enable him to deny authorship. (5) Impairment of Discipline McPherson None. Warner The manner of the uttering of the statement was, in and of itself, a breach of discipline.

It cast aspersions on the ethics and honesty of a superior officer. (6) Creation of Disharmony McPherson None. Warner Caused an immediate investigation to commence because of the anonymous nature of the comments. (7) Detrimental Impact on Close Working Relationships Requiring Personal Loyalty and Confidence ¹⁹⁰ McPherson In a constable’s office there is comparitively little investigatory work.

Warner As a police officer in a full fledged law enforcement agency in which narcotic and other criminal investigations are continuously in progress, confidentiality and proper loyalty to the department are