PARK & PLANNING COMMISSION v. Anderson

• Decision Date: 30 September 2005
• Docket Number: No. 00080,00080
• Citation: PARK & PLANNING COMMISSION v. Anderson, 884 A.2d 157, 164 Md. App. 540 (Md. App. 2005)
• Parties: MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v. Kathleen ANDERSON.
• Court: Court of Special Appeals of Maryland

884 A.2d 157

164 Md. App. 540

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION v.Kathleen ANDERSON.

No. 00080, September Term, 2004.

Court of Special Appeals of Maryland.

September 30, 2005.

William C. Dickerson(Devin J. Doolan, Jr., on the brief), Riverdale, for appellant.

Michael Marshall, Baltimore, for appellee.

Panel: HOLLANDER, JAMES R. EYLER, LAWRENCE F. RODOWSKY(Retired, specially assigned), JJ.

HOLLANDER, J.

In this case of first impression, we must determine whether a police department is entitled to judicial review of a "not guilty" finding rendered by a hearing board convened pursuant to the Law Enforcement Officers' Bill of Rights ("LEOBR"), Md. Code(2003),Title 3, Subtitle 1 of the Public Safety Article("P.S.").¹The appeal arises from an alleged unauthorized vehicular pursuit conducted by Kathleen Anderson, appellee, an officer with the Maryland-National Capital Park and Planning Commission(the "Commission"), appellant.

As a result of Anderson's conduct, appellant initiated disciplinary proceedings under LEOBR.After an "Administrative Hearing Board"(the "Board") found appellee not guilty of engaging in an unauthorized vehicular pursuit, the Commission filed a "Petition for Appeal" with the Circuit Court for Prince George's County.Concluding that the Commission was not entitled to judicial review, the circuit court granted Anderson's motion to dismiss.

On appeal, the Commission presents two issues, which we quote:

I.Whether the Circuit Court erred as a matter of law in granting appellee's Motion to Dismiss and, in so doing, finding that appellant Commission is not entitled to judicial review of the final decision of an administrative hearing board pursuant to [§] 3-109 of the LEOBR.

II.Whether the Circuit Court erred as a matter of law in granting appellee's Motion to Dismiss and, in so doing, finding that appellant Commission is not entitled to judicial review of the final decision of an administrative hearing board pursuant to [§] 10-222 of the Administrative Procedures Act.

For the reasons that follow, we shall affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

The Commission is a body corporate and an agency of the State.SeeMd.Code Ann.(1957, 2003 Repl.Vol.), Art. 28, § 1-101.Recently, in Boyle v. Maryland-National Capital Park and Planning Comm'n,385 Md. 142, 146, 867 A.2d 1050(2005), the Court of Appeals outlined the rights and responsibilities of the Commission:

The Commission is a bi-county agency created by the General Assembly to develop both general and functional plans of proposed land development for the Washington Metropolitan District, which consists of most of Montgomery and Prince George's Counties.SeeMaryland Code, Art. 28, § 7-108.That is the main "planning" function.In carrying out the general plan, the Commission is authorized to acquire property within the District for roads, parks, forests, and other recreation facilities, and to improve and control such property for those purposes.Seeid.§ 5-101.That is the main "park" function.

Pursuant to Art. 28, § 5-114(a), the Commission "may appoint whatever park police officers as may be necessary to provide protection for the Commission's activities and property."These officers "are responsible to and are under the supervision of the Commission."Boyle,385 Md. at 146, 867 A.2d 1050.The park police also "have concurrent general police jurisdiction with the Montgomery and Prince George's County police within the parks and other areas ... under the jurisdiction of the Commission...."Art. 28, § 5-114(a).

Regarding park police officers, the Boyle Court explained, 385 Md. at 146-47, 867 A.2d 1050(emphasis added):

[S]ome functions of the Commission are handled by the central Commission staff while others are implemented by geographically-based Divisions of the Commission within each of the two counties.Among the functions handled centrally are human resources, finance, and general counsel, and included within the finance department is general procurement for the Commission.Among the functions handled by Divisions within the respective counties is the police function.There is a separate Park PoliceDivision, headed by a Chief and having its own command and administrative structure, in each of the two counties.

Since 1998, appellee has served as a Park Police Officer.On September 8, 2001, she was assigned to the midnight shift for the Prince George's County Park Police Division("the Division"),² operating a marked police cruiser equipped with an in-car computer and camera.At approximately 10:30 p.m. on that date, while appellee was on a two-lane residential road in Prince George's County(the "County"), she activated the emergency lights on her patrol car, intending to stop a vehicle bearing license plates that had been reported as stolen.When the vehicle did not stop, appellee activated the siren on her patrol car, and remained in contact with the Division's "communications" by means of her police radio.At that point, the suspect vehicle exceeded the posted speed limit, crossed the center line, and may have struck another vehicle.As the vehicle was moving, the occupants jumped out.Their vehicle continued to move, without a driver, and struck a telephone pole.

The Commission's policy as to vehicular pursuits is codified in Bi-County Directive 414 ("BCD 414"), effective January 1, 1979, as amended on May 9, 2001.In accordance with the 2001Amendment, "fresh pursuit" is permitted only

when an officer has probable cause to believe that the fleeing suspect has committed or is attempting to commit the following:

• Any felony involving the use of force or threat of physical force or violence against a person.

• A hit and run traffic accident resulting in death or serious injury[.]

Notably, "[a]ny other pursuits are prohibited."

By "Memorandum" dated October 4, 2002, appellee was notified that she was charged as follows:

Charge # 1.Failure to comply with Bi-County Rule 2: Conformance to Law — Officers and employees of these divisions shall obey all laws of the United States, the State of Maryland, County ordinances[,] all rules and directives of these divisions, and the Commission where applicable.

To wit: On September 8, 2001, you engaged in a vehicle pursuit in direct violation of the amendment(dated 5/9/01) to Bi-County Directive 414.

Charge # 2.Bi-County Directive 414: Fresh Pursuit, Amendment(dated 5/9/01) — Fresh Pursuit is only allowed when an officer has probable cause to believe that the fleeing suspect has committed or is attempting to commit the following:

Any felony involving the use of force or threat of physical force or violence against a person.A hit-and-run traffic accident resulting in death or serious injury.Any other pursuits are prohibited.

To wit: On September 8, 2001, you engaged in a vehicle pursuit in direct violation of the Amendment(dated 5/9/01) to Bi-County Directive 414.

Charge # 3.Bi-County Rule 9: Integrity of Reporting System (A).No officer or employee shall make or cause to be made, any omission, false, inaccurate, or improper entries in any official record, form or report, nor shall they under any circumstances make any false official statement or intentional misrepresentation of fact.

To wit: On September 8, 2001, you engaged in a vehicle pursuit and then provided a false statement to Sgt. Uhrig when he questioned you.

In light of the charges, the Division informed Anderson that it "intend[ed] to take the disciplinary measure of termination of employment...."Accordingly, appellee exercised her right to an administrative hearing, pursuant to P.S. § 3-107(a), which was held on March 13 and 14, 2003.

Captain Robert Ashton testified that he proposed the 2001amendment to BCD 414 so it would conform to the more restrictive vehicular pursuit policy adopted by the County.He explained that he wanted to avoid "extreme liability" for the agency.³

On October 10, 2001, Ashton spoke with Diane Robertson-Griggs, who claimed she was the driver of a sport utility vehicle struck by the suspect vehicle on September 8, 2001.Following that conversation, Captain Ashton asked Sergeant Daren Uhrig to "retrieve the in-car videotape from Officer Anderson."⁴He also "spoke with Officer Christopher Perry regarding what he saw on the scene when he went to back up Officer Anderson."Then, he"spoke with Lieutenant [Tom] Kane and made a verbal request for the radio transmission tapes regarding the incident."On October 17, 2001, after having reviewed the requested items, Ashton "wrote a complaint against police practice for this matter to be investigated further."

On cross-examination, Captain Ashton conceded that the mere activation of emergency equipment "doesn't mean you're in pursuit[.]"He also acknowledged that there are "occasions when you follow a vehicle and it's not a pursuit[.]"

Sergeant Uhrig was appellee's supervisor on the night of September 8, 2001.He recalled that, at approximately 10:30 p.m. on September 8, 2001, he was "listening to the [police] radio" when he overheard that "Officer Anderson had called out with a license plate."Uhrig testified: "I believe she asked for [a] registration check on [the] license plate.At some point the registration plate for the vehicle came back stolen....I believe she said the vehicle wasn't stopping...."

According to Sergeant Uhrig, Lieutenant Tom Kane"wanted to know what occurred," and if "there was a fast chase."Uhrig questioned appellee about whether there was a chase, but she"said there wasn't."Uhrig testified: "[B]asically she described the incident.She had turned on the emergency equipment and the vehicle had failed to stop.And then that she had later come upon the vehicle wrecked din [sic] the telephone pole."After speaking with Officer Anderson, Uhrig "didn't think a fast chase had occurred."He added: "From the information I had I felt that she handled it properly."

On the night of ...