Brukiewa v. Police Com'r of Baltimore City

• Decision Date: 13 February 1970
• Docket Number: No. 149,149
• Citation: 257 Md. 36,263 A.2d 210
• Parties: Eugene C. BRUKIEWA v. POLICE COMMISSIONER OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

Page 36

257 Md. 36

263 A.2d 210

Eugene C. BRUKIEWA v. POLICE COMMISSIONER OF BALTIMORE CITY.

No. 149.

Court of Appeals of Maryland.

Feb. 13, 1970.

William H. Engelman, Baltimore (Berenholtz, Kaplan & Heyman, Baltimore, on the brief), for appellant.

Bernard L. Silbert, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

We are called upon in this appeal to decide whether the State impermissibly restricted the constitutional right a policeman has freely to speak his mind.

The appellant Brukiewa has been a member of the Baltimore City Police Department for over thirteen years and has been officially commended for his police services nine times. He is president of the Baltimore City Police Department, Local Union 1195, American Federation of State, County and Municipal Employees (AFL-CIO). In 1967 and 1968 the Union was endeavoring, apparently unsuccessfully, to have its voice heard and heeded by the Police Commissioner.

Brukiewa and a fellow policeman, Gary Woodcock, were invited to and did appear on a television program on WJZ (Channel 13), Baltimore, on June 19, 1968. The transcript of the program shows that the following was communicated to those in the Baltimore area watching and listening to Channel 13:

'George Baumann

Two and a half years ago the Baltimore Police Department was carefully scrutinized by the International Association of Chiefs of Police and the result of that study (was that) the department was revamped from top to bottom. Almost every phase of police work and policy was altered to meet contemporary needs.

Police Commissioner Donald Pomerleau was a consultant for the I.A.C.P. and since taking over the department has energetically tried to effect the I.A.C.P. recommendations. But that restructuring of the department has caused concern in the ranks of the City Police, according to Investigative Reporter Christopher Gaul:

Christopher Gaul

That concern is being aggressively voiced by the Police Union, which is estimated 1700 members, represent about half of the total force. The Union has just put out a 14 page position paper which charges that the recommendations contained in the I.A.C.P. report are a criminal waste of money and that those recommendations endanger the lives of police officers. According to policemen who wrote the position paper, the I.A.C.P. report was geared to small western towns, not to large old urban areas like Baltimore. The paper attacks everything from the changes of uniforms to the way Commissioner Pomerleau handled Baltimore's April riot. I talked to two of the Union Officials, both working policemen. The President is Eugene Brukiewa, a thirteen and a half year veteran. Officer Gary Woodstock (sic) a nine year veteran and a K-9 Patrolman helped prepare the position paper. He began by discussing new I.A.C.P. suggestive reporting technique.

Officer Gary Woodcock

In the old days we did hold a few reports, here and there, smaller crimes weren't reported, but in 64 the Sunpapers, they had a very critical article about the Police Administration at that time and ever since then we've been keeping pretty accurate reports.

Christopher Gaul

Do you think Commissioner Pomerleau is a competent, effective Administrator?

Officer Gary Woodcock

Ah . . . No.

Christopher Gaul

Officer Brukiewa, your position paper is a harsh indictment of the City Police Administration, do you think the Union should be in a position of criticizing actual police policy?

Officer Brukiewa

Well, we feel that it's gotten to a point where definitely we have to start criticizing police policy, due to the fact we have tried to get together with Commissioner Pomerleau to explain problems that still exist with Patrolmen, the reporting system, other issues, to try to help him to make us a good department, but Mr. Pomerleau just has a mind of his own, he sticks strictly to the I.A.C.P. report and we feel definitely that this is nothing to this City.

Christopher Gaul

How would you describe the morale of the Department?

Officer Brukiewa

Right now, I'd say it's hit its lowest ebb, right now.

Christopher Gaul

Would you attribute that to the recommendations of the I.A.C.P. report?

Officer Brukiewa

I'd say definitely, I've been here a good while and I've tried to-, I've looked into this system, I've looked into it well and the men feel right now that they are completely lost from the public. Years ago when we worked the foot posts, you could get out and talk to people, you got information, now, when you work in a car, you go driving right on by, they wave to you to stop. You are scared to get out of the car because if you don't answer when they call you, you have to make a slip up because they hit you with a delinquency slip. You only have a half an hour out of an hour for foot patrol and with this you can't possibly get around through the post you are working.

Christopher Gaul

What do you think will happen to the City Police Department, say within the next six months, if what you say is happening and conteinues to happen? and continues to happen?

I really hate to predict it, but I feel that the bottom is going to fall out of this City.

Christopher Gaul

The Police Commissioner has refused to respond to the Police Union's criticism, but I'll take a look at the Administration's attitude tomorrow anyway. This is Christopher Gaul.'

As a result of the broadcast Officer Brukiewa was charged with a violation of the Rules and Regulations of the Police Department of Baltimore City for conduct 'unbecoming a member of the Baltimore Police Department, and prejudicial to or tending to undermine good order, efficiency, or discipline of the Department,' and two specifications thereunder alleging violations of Sections 12 and 16 of Rule 1.

Officer Woodcock was also charged with a violation of Rule 1, and one specification thereunder alleging a violation of Section 12.

Rule 1 of the Rules and Regulations of the Police Department reads as follows:

'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 the City of Baltimore, 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 is prejudicial to the efficiency and discipline of the Department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Police Department of Baltimore City, and subject to disciplinary action by the Police Commissioner.'

Section 12 is as follows:

'No member of the Department shall publicly criticize or ridicule the official action of any member of the Department, public official, judge, or magistrate.'

Section 16 is as follows:

'All members of the Department shall treat as confidential the official communications and business of the Department.'

A hearing was held before a police department disciplinary board on July 17, 1968. Each officer was found guilty as charged and ordered dismissed from the force, the dismissal to be suspended, with probation for six months, during which time the officer should be assigned only to the night shift. The Commissioner approved the dismissals, changed the suspension to twelve months (making no references to night duty) with a proviso that at the end of a year 'unless the suspension is sooner vacated, the sentence will be remitted without further action.'

The basis of the charge against Woodcock apparently was his criticism of Commissioner Pomerleau in answering 'no,' to the interviewer's question, 'Do you think that Commissioner Pomerleau is a competent, effective administrator?'

The basis of the charge against Brukiewa apparently was his public criticism of the Department in saying that the reporting system and patrol procedure are problems, and that the Department's morale has 'hit its lowest ebb,' and that in response to the question of what will happen to the City Police Department within the next six months if the situation continues, 'I feel the bottom is going to fall out of this City.'

The disciplinary board announced no findings of fact and no conclusions as to the effects and results, if any, of the statements found by it to have been offensive to Rule 1. Woodcock and Brukiewa appealed to the Baltimore City Court under the Administrative Procedure Act, Code (1965 Repl.Vol.), Art. 41, §§ 244-256. Judge Sodaro heard and decided the case on the charges, the orders of punishment, the television transcript and his remembrance of the riots and disorders that swept Baltimore in April of 1968. It seems now to be conceded tacitly at least, and we think properly so, that there is no merit in the vague and unsupported charge that Brukiewa failed to keep confidential police business, and we shall give it no further consideration.

Judge Sodaro dismissed the appeals, finding (1) that the rules of the police department were reasonable, unambiguous and constitutional; (2) that in light of the April riots which had caused 'vitriolic attacks' on the Department by a minority of Baltimoreans who were 'angry people who had suffered losses * * * and those who would have used greater force in dealing with the trouble,' the Department 'as never before * * * urgently needed cohesion in its ranks and a rebirth of respect and confidence within the community;' (3) that:

'It was in this explosive situation that the Appellants injected public statements that were given the widest circulation. Their utterances were corrosive of confidence in the Police Department and tended to widen the breach between the police and the public. The morale and discipline of the Department had to obviously suffer from the divisive effect of the statements. The Appellants then had a duty of loyalty to the Police Department, their employer,...