Baltimore Police Dept. v. Etting

• Decision Date: 01 September 1990
• Docket Number: No. 154,154
• Citation: 604 A.2d 59,326 Md. 132
• Parties: BALTIMORE POLICE DEPARTMENT v. Errol ETTING. ,
• Court: Maryland Court of Appeals

Page 132

326 Md. 132

604 A.2d 59

BALTIMORE POLICE DEPARTMENT v. Errol ETTING.

No. 154, Sept. Term, 1990.

Court of Appeals of Maryland.

April 8, 1992.

Michael A. Fry, Asst. Sol. (Neal M. Janey, City Sol., Otho M. Thompson, Associate Sol., on brief), Baltimore, for appellant.

Michael Marshall (Herbert R. Weiner, Schlachman, Belsky, and Weiner, P.A., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW and KARWACKI, JJ.

McAULIFFE, Judge.

The Law Enforcement Officers' Bill of Rights (LEOBR) imposes a one-year limitation on the bringing of administrative charges against a law enforcement officer of this State, except when the charges are "related to criminal activity or excessive force." Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 730(b). Administrative charges in this case were filed beyond the one-year limitation, and the question before us is whether these charges are "related to criminal activity" within the meaning of the statute.

I.

Administrative charges were filed in March, 1990, against Detective Errol Etting of the Baltimore City Police Department (the Department), charging misconduct arising out of an event which occurred on 19 October 1988, in Baltimore County. At the time of the event, Etting was investigating a robbery that had occurred in Baltimore City. His investigation led him to Baltimore County, where he enlisted the aid of Sergeant Kathleen O'Donnell and other officers of the Baltimore County Police Department. On 19 October 1988, Etting, in the company of Baltimore County officers, allegedly entered a residence in Baltimore County without permission and with his gun drawn, and there conducted a search of persons and of the premises, and arrested certain persons, all without a warrant or probable cause. On the day following the incident, Sgt. O'Donnell filed a complaint against Etting with the Internal Investigation Division of the Baltimore City Police Department (the IID). She alleged, among other things, that Etting had intentionally misled her to obtain her cooperation and had incorrectly reported the events which had occurred. The IID began an investigation, and the matter also came to the attention of the Office of the State's Attorney for Baltimore County. The record reflects that an Assistant State's Attorney in that office concluded that criminal charges against persons arrested during the course of the 19 October 1988 incident would have to be nolle prossed, due to the questionable actions of Etting and another detective who was working with Etting. Furthermore, that Assistant State's Attorney decided the case should be reviewed for possible criminal action against Etting and the other detective. Because a close relative of Etting worked in the Baltimore County State's Attorney's Office, the matter was referred to the Anne Arundel County State's Attorney's Office for review.

On 14 March 1989, an Assistant State's Attorney for Anne Arundel County wrote to the Deputy State's Attorney for Baltimore County, informing her that although he found "reprehensible" conduct on the part of the two detectives he felt that "little would be accomplished by instituting criminal proceedings at this time." He said, among other things:

At this time, I am declining criminal prosecution. While I do not completely rule out the possibility of some prosecution in the future, if new evidence turns up, I consider this matter to be closed from a criminal standpoint.

* * * * * *

I think this matter is best handled administratively within each of these departments. As a matter of fact it is my earnest recommendation that each police department take the strongest action it possibly can to assure members of the public that this type of activity will not be repeated by the police.

It is not clear from the record when the Baltimore City Police Department learned of the State's Attorney's decision not to prosecute Etting. Etting testified that an IID officer showed him a copy of the letter on 17 March 1989. In one of its pleadings, the Department contended it did not learn of the decision until June of 1989. In any event, when it became clear there would be no criminal prosecution against Etting, the IID completed its investigation. By its report of 22 August 1989, the IID concluded that allegations of misconduct involving the entry of the dwelling, the arrest, and the search had been sustained, as had allegations of making a false report and neglect of duty by failing to properly follow up an investigation. One charge of misconduct, referred to only as "narcotics," was found not to have been sustained.

Formal administrative charges against Etting were filed by the Department on 1 March 1990, and a Departmental Trial Board hearing was scheduled for 9 May 1990. On 5 April 1990, Etting filed, in the Circuit Court for Baltimore City, a complaint for injunctive relief against the Department and the Commissioner of Police, alleging that he was being deprived of a right of limitation granted him by the LEOBR and asking that the court permanently enjoin the prosecution of administrative proceedings against him. The defendants filed a motion to dismiss the complaint, alleging that the one-year limitation for filing of administrative charges was not involved because the charges against Etting were "related to criminal activity" within the meaning of Art. 27, § 730(b).

After a hearing, Judge Thomas Ward denied the motion to dismiss and granted Etting's request for a permanent injunction. Although the basis for the trial judge's decision is not entirely clear, it appears he felt the Department had waited too long to bring administrative charges against Etting after learning that there would be no criminal prosecution. The defendants appealed to the Court of Special Appeals, and we issued a writ of certiorari on our own motion before consideration of the case by that Court.

II.

That portion of the LEOBR which imposes a limitation on the filing of administrative charges against law enforcement officers provides as follows:

(b) Limitation of actions.--(1) Administrative charges may not be brought against a law enforcement officer unless filed within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.

(2) The 1-year limitation of paragraph (1) of this subsection does not apply to charges related to criminal activity or excessive force.

Article 27, § 730(b). The statutory authority upon which Etting relied to seek immediate injunctive relief from the circuit court is Art. 27, § 734, which provides:

Any law enforcement officer who is denied any right afforded by this subtitle may apply at any time prior to the commencement of the hearing before the hearing board, either individually or through his certified or recognized employee organization, to the circuit court of the county where he is regularly employed for any order directing the law enforcement agency to show cause why the right should not be...