Younkers v. Prince George's County

McAULIFFE, Judge. Russell Younkers, a sergeant on the Prince George’s County Police Department, was administratively charged with violations of the police department’s Manual of Rules and Procedures as a result of separate incidents occurring on 8 February and 11 February, 1989. In the first incident, Sergeant Younkers was alleged to have made inappropriate remarks critical of the department’s policy and of higher ranking officers, in the presence of other police officers and a subordinate officer he was supposed to be counseling. In the second incident, Sergeant Younkers is alleged to have acted improperly in directing that a corporal under his command, ¹⁷ who had just been involved in a shooting, remain silent.

Sergeant Younkers refused to accept the proposed disciplinary action, and demanded a hearing on the charges pursuant to the Law Enforcement Officers’ Bill of Rights (LEOBR), Maryland Code (1957, 1992 Repl.Vol.) Art. 27, §§ 727-734D. An administrative hearing board (the hearing board) found Younkers guilty of charges in connection with both incidents, and the Chief of Police directed that Younkers be reprimanded and transferred. Younkers appealed to the Circuit Court for Prince George’s County, and that court reversed, finding that Younkers’s speech on each occasion was protected by the First Amendment to the United States Constitution, and that legitimate interests of the police department did not outweigh Younkers’s right of expression. Prince George’s County (the County) appealed to the Court of Special Appeals, and that court reversed the judgment of the circuit court, holding that the First Amendment was not a bar to the imposition of disciplinary sanctions in this case, and noting that the findings of the hearing board were supported by substantial evidence.

Prince George’s County v. Younkers, 94 Md.App. 48 , 615 A.2d 1197 (1992). We granted Younkers’s petition for certiorari, and we reverse in part. I. Scope of Review The LEOBR provides for an appeal to the circuit court and thereafter to the Court of Special Appeals, Art. 27, § 731(d)(3) and § 732, but does not specify the scope of judicial review. When a state police agency is involved, the state Administrative Procedure Act (APA) applies, and the scope of judicial review is spelled out by § 10-222(h)3 of that Act.

See Maryland Code (1984, 1993 ReplVoL, 1993 Cum.Supp.) §§ 10-201 through 10-226 of the State Government Article. The appeal in this case was not from an “agency” as defined by the APA, § 10-202(b), and thus the scope of judicial review in this case is that generally applicable to administrative appeals. Chief Judge Hammond, speaking for the Court in Insurance Comm’r v. Nat’l Bureau, 248 Md. 292 , 236 A.2d 282 (1967), said: ¹⁸ Whichever of the recognized tests the court uses — substantiality of the evidence on the record as a whole, clearly erroneous, fairly debatable or against the weight or preponderance of the evidence on the entire record — its appraisal or evaluation must be of the agency’s fact-finding results and not an independent original estimate of or decision on the evidence. The required process is difficult to precisely articulate but it is plain that it requires restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclusions under any of the tests, all of which are similar.

There are differences but they are slight and under any of the standards the judicial review essentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. This need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment. Id. at 309-10 , 236 A.2d 282 (citations omitted). In Bulluck v. Pelham Wood Apts., 283 Md. 505 , 390 A.2d 1119 (1978), Judge Eldridge on behalf of the Court discussed the scope of judicial review of administrative agencies, and said: “Substantial evidence,” as the test for reviewing factual findings of administrative agencies, has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Snowden v. Mayor & C.C. of Balto, 224 Md. 443, 448 , 168 A.2d 390 (1961).

The scope of review “is limited ‘to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached,’” [citing cases within and without the State, treatises, and law journals]. In applying the substantial evidence test, we have emphasized that a “court should [not] substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.” Bernstein v. Real Estate Comm., 221 Md. 221, 230, 156 A.2d 657 (1959), appeal dismissed, 363 U.S. 419 , 80 S.Ct. 1257 , 4 L.Ed.2d 1515 (1960). We also must review the agency’s decision in the light most favorable to the agency, since ¹⁹ “decisions of administrative agencies are prima facie correct,” Hoyt v. Police Comm’r, 279 Md. 74, 88-89, 367 A.2d 924 (1977), and “carry with them the presumption of validity,” Dickinson-Tidewater, Inc. v. Supervisor, 273 Md. [245,] 256[, 329 A.2d 18 (1974)]; Heaps v. Cobb, 185 Md. 372, 378 , 45 A.2d 73 (1945). Furthermore, not only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences.

Id. 283 Md. at 512-13 , 390 A.2d 1119 (alteration in original) (some citations omitted). More recently, we have said: [T]he order of an administrative agency must be upheld on judicial review if it is not based on an error of law, and if the agency’s conclusions reasonably may be based upon the facts proven. Ad + Soil, Inc. v. County Commr’s, 307 Md. 307, 338-39 , 513 A.2d 893 (1986). But a reviewing court is under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law.

See, e.g., Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 835 , 490 A.2d 1296 (1985); Harford County v. McDonough, 74 Md.App. 119, 122 , 536 A.2d 724 (1988). People’s Counsel v. Maryland Marine, 316 Md. 491, 496-97 , 560 A.2d 32 (1989). With these principles in mind, we examine the findings and conclusions of the hearing board, as adopted by the Chief of Police, as to each incident.

II

Incident of 8 February 1989 In early February 1989, Lieutenant Colonel David Mitchell of the Prince George’s County Police Department was driving an unmarked cruiser on Interstate 495 when he observed a marked Prince George’s County police cruiser approaching from the rear at a high rate of speed. Mitchell testified that there was no other vehicle between the approaching cruiser and his vehicle; that he saw the operator of the speeding cruiser, later identified as Corporal Phair, glance toward him, slow down, pass him, and then travel at a speed of approximately 65 miles per hour before exiting at Central Avenue. Colonel Mitchell contacted communications and determined ²⁰ that the marked cruiser was not responding to an emergency call. When he arrived at his office, the Colonel sent a memorandum to the district commander, directing that Corporal Phair receive verbal counseling from a supervisor concerning unnecessary speeding by a police cruiser.

Colonel Mitchell’s memorandum was routed down the chain of command to Lieutenant Thomas Evans, commander of the district to which Corporal Phair was assigned. Lieutenant Evans directed Sergeant Younkers, who was Corporal Phair’s immediate supervisor, to look into the matter and to report back to him with the results. Lieutenant Evans testified that he observed Sergeant Younkers in conversation with Corporal Phair in the sector supervisor’s office. He said that Sergeant Younkers was sitting at his desk, and Corporal Phair and a recruit officer being trained by Corporal Phair were seated opposite him.

Lieutenant Evans testified he believed another sergeant was present in the room engaged in other work, and that another corporal may have also been present. Lieutenant Evans testified that he overheard a part of the conversation: I heard a police supervisor, Sergeant Russell Younkers, tell a subordinate officer, in the presence of a recruit officer, that if this matter had involved a “white shirt” [1] or a captain it would be thrown in the trash and nothing would be done. And I found that distressing. Upon hearing that statement, Lieutenant Evans informed Sergeant Younkers that he wished to see him in the lieutenant’s office.

At the meeting that followed, the lieutenant told Sergeant Younkers that he felt the sergeant had made an improper remark, and Sergeant Younkers agreed that he could have made a better choice of words. The recommendation for disciplinary action followed. ²¹ Sergeant Younkers gave a somewhat different version of the incident. He stated that Lieutenant Evans gave him the. memorandum from Colonel Mitchell and instructed him to “give Phair a counseling form in regards to this.” Younkers protested the issuance of a counseling form without first asking Phair whether he had done anything wrong. According to Younkers, Evans told him, “If a Lieutenant Colonel in this Police Department said he did it, he did it.” Notwithstanding that remark, Evans agreed that Younkers should discuss the matter with Phair, and then “get back to [Evans] about it.” Younkers testified that he discussed the matter with Corporal Phair in the presence of a “rookie” officer who was then being trained by Phair.

He said Corporal Phair explained to him that he was in the process of obtaining a pace on a vehicle he thought was speeding, when that vehicle came up behind another vehicle, later determined to be Colonel Mitchell’s vehicle. Younkers testified that Phair told him he maintained a steady speed, and thought the colonel’s vehicle appeared to have been going above 55 miles per hour, the posted speed limit. Younkers said Phair told him he did not make a traffic stop because he saw that the lead vehicle was Colonel Mitchell. With respect to the statement that forms the basis for the disciplinary action, Sergeant Younkers stated: Phair and I were still discussing this when Lieutenant Evans, for lack of a better word, barged into the Sergeant’s office and interrupted our conversation that we were having.

Lieutenant Evans said to me, “What’s going on with this thing? I’ve got to get back to the Colonel about this stuff.” And I told the Lieutenant, “We are discussing it now.” You know, “I will get back to you.” He kept insisting that I give him some kind of final disposition, so to speak, on this complaint. And finally I just got so frustrated because he wouldn’t allow me to talk with Phair and get to the bottom of the thing so I could report back to him. ... And I said to the Lieutenant — I didn’t say it to Phair.

I said to Lieutenant Evans, you know, “What’s the big deal with this ²² thing? If this had been a Captain or a Major or some other white shirt, they would have thrown this thing in the trash---- And, you know, I said, “Lieutenant, I just don’t understand this---- Crime is running rampant in this county. The homicide rate is twice what it used to be. Drugs are keeping us so busy, you know, we don’t have time to do anything.

And this is the most important thing a Lieutenant Colonel of this Police Department has got to worry about.” And with that I guess