Balt. City Det. Ctr. v. Foy

• Decision Date: 19 November 2018
• Docket Number: No. 3, September Term, 2018,3, September Term, 2018
• Citation: 197 A.3d 1,461 Md. 627
• Parties: BALTIMORE CITY DETENTION CENTER v. Michael FOY
• Court: Court of Special Appeals of Maryland

461 Md. 627

197 A.3d 1

BALTIMORE CITY DETENTION CENTER

v.Michael FOY

No. 3, September Term, 2018

Court of Appeals of Maryland.

November 19, 2018

Argued by: Lisa O. Arnquist, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by: David Gray Wright (Kahn, Smith & Collins, P.A., Baltimore, MD), on brief, for Respondent.

Argued Before: Barbera, C.J., Greene,^* Adkins, McDonald, Watts, Hotten, Getty, JJ.

Barbera, C.J.

This case involves the State Correctional Officers' Bill of Rights (hereinafter "COBR"), codified in Title 10, Subtitle 9 of the Maryland Code (1999, 2017 Repl. Vol.), Correctional Services Article.¹ In particular, we must evaluate the interplay between §§ 10-910(b)(1) and 10-910(b)(6). Section 10-910(b)(1) provides that "[w]ithin 30 days after receipt of" the hearing board's recommended penalty, "the appointing authority shall ... issue a final order." Section 10-910(b)(6) states that "the appointing authority may increase the recommended penalty" if, among other things, the appointing authority "meets with the [charged] correctional officer and allows" the officer "to be heard on the record."

The ultimate question posed here is whether § 10-910(b)(1) precludes remanding a case to the appointing authority to cure a procedural defect that occurred at the penalty-increase meeting. Specifically, we must decide whether the appointing authority should have the opportunity to hold another penalty-increase meeting after the thirty-day deadline for issuing a final order when, as happened here, recording equipment malfunctioned during the initial meeting, preventing the substance of that meeting from being captured "on the record." A three-member panel of the Court of Special Appeals, in a split decision, held that the appointing authority's failure to satisfy the "on the record" requirement is incurable after the thirty-day deadline. Foy v. Baltimore City Det. Ctr. , 235 Md. App. 37, 174 A.3d 916 (2017). We reach a different conclusion and, consequently, reverse the judgment of the Court of Special Appeals.

I.The COBR Statutory Scheme

Resolution of the parties' dispute turns largely on the proper interpretation and application of the COBR's disciplinary process, so we begin with some background on the enactment of the COBR and a review of the pertinent statutory framework.

The COBR became effective October 1, 2010. See State Correctional Officers' Bill of Rights, Ch. 194, 2010 Md. Laws 1425, 1448. Prior to that date, the disciplinary process for state correctional officers was governed by Title 11 of the Maryland Code (1993, 2015 Repl. Vol), State Personnel and Pensions ("SPP") Article. The intent of the then-new COBR was "to establish exclusive procedures for the investigation and discipline of a correctional officer for alleged misconduct." § 10-902. The General Assembly modeled the COBR after the Law Enforcement Officers' Bill of Rights ("LEOBR").²

Ellsworth v. Baltimore Police Dep't , 438 Md. 69, 91 n.20, 89 A.3d 1183 (2014). Courts therefore look to the LEOBR as an informative source for interpreting the COBR's provisions. See, e.g. , Kearney v. France , 222 Md. App. 542, 544, 114 A.3d 221 (2015).

The COBR's disciplinary process is straightforward. After receiving a notice of charges recommending termination, a correctional officer has the option to file an appeal with the Secretary of the Department of Public Safety and Correctional Services ("Secretary") or request a hearing before a hearing board. § 10-908(c). The hearing board is composed of correctional officers holding varying ranks within the Department of Public Safety and Correctional Services ("Department"). § 10-909(c)(1)(i). After facilitating a hearing, the hearing board issues a finding of guilty or not guilty and produces a written penalty recommendation. § 10-910(a)(1)-(7).

The hearing board must deliver this report to the "appointing authority of the correctional facility." § 10-910(a)(9)(ii). The "appointing authority" is defined under § 10-901(b) as "an individual ... that has the power to ... terminate employment."³ The appointing authority of the Baltimore City Detention Center is the Commissioner of the Division of Pretrial Detention and Services ("Commissioner"). § 5-202(c)(4).

After receiving the hearing board's decision, the Commissioner has thirty days to issue a final order. § 10-910(b)(1)(ii). The Commissioner is not bound by the hearing board's recommended penalty. § 10-910(b)(3). If the Commissioner determines that termination of the employee is appropriate, then the Commissioner "shall obtain approval from the Secretary." § 10-910(b)(5). The Commissioner may also increase the hearing board's recommended penalty, with the Secretary's permission, if the Commissioner: (1) reviews the record of the hearing board's proceedings; (2) meets with the correctional officer and allows the officer an opportunity to be heard on the record; (3) provides the officer with any items not included in the hearing board's record that the Commissioner relied on; and (4) describes, in writing, the evidence supporting his decision to increase the recommended penalty. § 10-910(b)(6). Once the Commissioner issues a final order, the correctional officer has a right to seek judicial review. § 10-911.

II.The Present Case

Lieutenant Michael Foy ("Foy"), Respondent here, sought judicial review of the decision of Acting Commissioner of the Baltimore City Detention Center, John Wolfe ("Commissioner Wolfe") to terminate him for reasons we next explain.

A. The Underlying Incident

On January 12, 2014, Foy and Sergeant Jeremiah Green ("Green"), both correctional officers at the Baltimore City Detention Center ("BCDC"), Petitioner, were conducting security rounds at the facility. At some point during their rounds, an altercation ensued between Green and an inmate, during which Green struck the inmate in the face. The inmate then charged at Green, but Green restrained him. Although the inmate posed no further threat, Foy stepped on his neck, placing the inmate in need of medical care. After the incident, Foy did not report his use of force. Foy ultimately submitted a report, but he omitted material facts about the incident.

B. The Disciplinary Proceedings

On April 10, 2014, the Department's Human Resources Services Division served Foy with a Notice of Disciplinary Charges ("Notice"). The Notice charged Foy with violating twelve Department policies, as enumerated by various statutes, regulations, and internal guidelines and recommended his termination. On April 16, 2014, Foy exercised his right to a hearing, as provided by the COBR. § 10-908(c)(2).

The hearing board conducted a three-day hearing (on September 14, October 5, and October 12, 2015), during which it heard testimony from witnesses called by both BCDC and Foy. On November 16, 2015,⁴ the hearing board issued a written decision finding Foy guilty of ten of the twelve disciplinary charges. The hearing board recommended that he be transferred to Baltimore City Booking and Intake Center and demoted to Sergeant.

On November 23, 2015, Commissioner Wolfe received the hearing board's recommendation and, as authorized by § 10-910(b)(6), elected to increase the recommended penalty. On December 9, 2015, Commissioner Wolfe conducted a penalty-increase meeting, as required by § 10-910(b)(6)(ii), with Foy and his attorney. During the meeting, Foy's counsel argued that Commissioner Wolfe should not increase the hearing board's recommended penalty.

After the meeting, Commissioner Wolfe learned that the audio recording equipment had failed; consequently, the meeting was not "on the record," as per § 10-910(b)(6)(ii). The next day, December 10, 2015, Commissioner Wolfe informed Foy's counsel about the recording issue and requested that the parties reconvene for another meeting. That same day, Commissioner Wolfe created a memorandum for the Secretary of Public Safety and Correctional Services, Stephen T. Moyer, memorializing what transpired at the December 9th meeting. The memorandum noted, among other things, that Foy asked for his ten years of service to be considered. Foy also requested leniency and an opportunity for a second chance, stating, as recounted by the Commissioner, that "if he was given the opportunity to do it all over again, he would have made different choices."

The parties were set to meet again on December 17, 2015, but Commissioner Wolfe canceled without explanation on December 16, 2015. Thereafter, Commissioner Wolfe, with Secretary Moyer's approval, issued a final order terminating Foy, effective December 16, 2015.

Foy filed a petition for judicial review in the Circuit Court for Baltimore City. There, he argued that Commissioner Wolfe violated his rights under the COBR because the Commissioner increased the hearing board's recommended punishment without properly recording the penalty increase meeting. Foy requested that the court vacate the termination order and reinstate him with back pay. After a hearing, the court issued an order remanding the case to Commissioner Wolfe to conduct another penalty-increase meeting "so that a complete record of the administrative proceeding is available for ... [j]udicial [r]eview."

C. The Appeal

Foy noted an appeal to the Court of Special Appeals. A panel of the Court of Special Appeals, in a 2-1 decision, reversed the circuit court's remand order and "reinstate[d] the Hearing Board's penalty recommendation as the final administrative action." Foy , 235 Md. App. at 44, 174 A.3d 916.⁵ The Majority, relying on cases interpreting similar provisions of the LEOBR, concluded that the COBR's requirements for increasing the hearing board's recommended penalty are mandatory, Hird v. City of Salisbury , 121 Md. App. 496, 504, 710 A.2d 352 (1998), and, as such, any failure to satisfy those obligations was incurable after thirty days, VanDevander v. Voorhaar , 136 Md. App. 621, 632, 767 A.2d 339 (2001). Foy , 235 Md. App. at 68, 174 A.3d 916...