Calhoun v. Commissioner, Baltimore City Police Dept.

• Decision Date: 01 September 1994
• Docket Number: No. 716,716
• Citation: 103 Md.App. 660,654 A.2d 905
• Parties: Curtis CALHOUN, et al. v. COMMISSIONER, BALTIMORE CITY POLICE DEPARTMENT, et al. ,
• Court: Court of Special Appeals of Maryland

Page 660

103 Md.App. 660

654 A.2d 905

Curtis CALHOUN, et al. v. COMMISSIONER, BALTIMORE CITY POLICE DEPARTMENT, et al.

No. 716, Sept. Term, 1994.

Court of Special Appeals of Maryland.

March 1, 1995.

Michael Marshall (Schlachman, Belsky & Weiner, P.A., on the brief), Baltimore, for appellants

Gary Charles May, Asst. City Solicitor (Neal M. Janey, City Solicitor, on the brief), Baltimore, for appellees.

Argued before ALPERT, HARRELL and HOLLANDER, JJ.

HARRELL, Judge.

Appellants, Curtis Calhoun, Robert Heath, David C. Jones, Jr., Rodney Price, Gerald Hensley, Brian Bacon, Lennell Robinson, Sean Grant, and Marlene Green, appeal from a judgment entered by the Circuit Court for Baltimore City (Gordy, J.) granting the motion for summary judgment of appellees, the Commissioner and the Baltimore City Police Department, thereby precluding the application of the due process protections of the Law Enforcement Officers' Bill of Rights (LEOBOR ¹) to the polygraph examinations ² of appellants.

ISSUES

We have re-phrased appellant's issues to facilitate our discussion as follows:

I. Was the use of routine polygraph examinations and accompanying interrogations to determine the trustworthiness of officers assigned to the drug enforcement units an investigation or interrogation so as to invoke the due process protections of the LEOBOR?

II. Were the reassignments of appellants from the drug enforcement units, based on the results of their polygraph examinations, punitive measures so as to invoke the due process protections of the LEOBOR?

FACTS

Between March 1992 and December 1993, appellants were members of specialized drug enforcement units within the Baltimore City Police Department (Department). In 1993, appellants, along with approximately 150 officers also assigned to the drug enforcement units, were required to submit to a routine polygraph examination. These examinations were required, according to the affidavit of Deputy Police Commissioner Eugene Tanzymore, Jr., "as a way to avoid corruption allegations, detect dishonest police officers, deter dishonest behavior and to insure that those members remain honest and trustworthy." ³

Each appellant underwent the polygraph examination and, in each case, the results were either inconclusive or indicated problems related to the officer's honesty, integrity, and trustworthiness. As a result of these examinations, each appellant was reassigned from the drug enforcement unit into other units within the Department. At no time were appellants afforded a hearing or an opportunity to contest their reassignment.

Immediately following the notice of transfer, Officers Heath, Jones, and Price voluntarily submitted to a urinalysis drug test. The results of those tests indicated no drug use. Officers Calhoun and Grant also offered to submit to a urinalysis drug test, but the Department denied their requests. Officers Hensley, Bacon, and Robinson sought, through Sergeant Michael Harding, to retake the polygraph examination. Their efforts were similarly unsuccessful.

On 10 November 1993, appellants filed a Complaint in the Circuit Court for Baltimore City alleging that appellees had violated their rights to an administrative hearing guaranteed under the LEOBOR, Md.Code Ann., Art. 27, §§ 727-734D (1992 Replacement Volume & Supp.1994). ⁴ Specifically, the Complaint alleged that the use of the polygraph examinations by appellees constituted an investigation and/or an interrogation under the LEOBOR and that an involuntary reassignment resulting from those examinations was a punitive measure. Therefore, argued appellants, they were entitled to a trial board hearing as provided for under section 730(a) ⁵ of the LEOBOR. The Request for Show Cause Order on that On 12 December 1993, appellants filed an Amended Complaint adding Lennell Robinson as a plaintiff. Appellees filed a motion to dismiss the Amended Complaint. Appellants then filed a Second Amended Complaint on 21 January 1994, adding Sean Grant and Marlene Green as plaintiffs. Appellees responded with a Motion to Dismiss the Second Amended Complaint, or in the Alternative, for Summary Judgment. On 14 March 1994, a hearing was held on the motions and the circuit court granted appellees' motion for summary judgment. The court explained: "It is the finding of this Court that there is no genuine dispute as to a material fact and that the giving of a polygraph examination under the circumstances in this case does not amount to interrogation or investigation." Appellants noted a timely appeal to this Court.

issue was denied by the circuit court on 24 November 1993, and the case was ordered to proceed on summonses.

STANDARD OF REVIEW

The standard of appellate review of a trial court's grant of a motion for summary judgment is whether the trial court was "legally correct." Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591, 578 A.2d 1202 (1990). When making a determination on summary judgment, a trial court makes no findings of fact. King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985). Rather, the court decides whether a genuine issue of material fact exists to prevent the entry of summary judgment. Beatty v. Trailmaster Prods., Inc., 330

Md. 726, 737, 625 A.2d 1005 (1993); see also Bond v. NIBCO, Inc., 96 Md.App. 127, 135, 623 A.2d 731 (1993); Md.Rule 2-501(e). Under this standard, therefore, we review the trial court's ruling as a matter of law. Beatty, 330 Md. at 737, 625 A.2d 1005.

DISCUSSION

The LEOBOR was enacted by the Legislature in 1974. 1974 Md.Laws ch. 722. Its primary purpose is to guarantee substantive and procedural protections to law enforcement officers during disciplinary investigations, interrogations, and hearings. Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682, 366 A.2d 756, cert. denied, 280 Md. 727 (1977). "In enacting the LEOBOR, the Legislature vested in law-enforcement officers certain 'rights' not available to the general public." Nichols v. Baltimore Police Dep't, 53 Md.App. 623, 627, 455 A.2d 446, cert. denied, 296 Md. 111 (1983). This is because "the nature of the duties of police officers is different from that of other public employees." Cancelose v. City of Greenbelt, 75 Md.App. 662, 666, 542 A.2d 1288 (1988).

In order to invoke the right to a hearing pursuant to section 730(a) of the LEOBOR, "there must be a threshold investigation or interrogation of a law enforcement officer which results in the recommendation of some action ... which would be considered a punitive measure." Montgomery Co. Dep't of Police v. Lumpkin, 51 Md.App. 557, 566, 444 A.2d 469 (1982); Cancelose, 75 Md.App. at 667, 542 A.2d 1288. In the instant case, appellants contend that the polygraph examinations were investigations and/or interrogations as defined by the LEOBOR and its attendant case law, and that their subsequent reassignment was a punitive measure. Therefore, argue appellants, they should be afforded "a hearing on the issues by a hearing board" pursuant to section 730(a).

I.

The ordinary and natural meaning of investigation has been defined as " 'a detailed examination; a searching inquiry; to observe or study closely.' " Leibe v. Police Dep't of Annapolis 57 Md.App. 317, 323, 469 A.2d 1287 (1984) (quoting Webster's Dictionary (3d ed. 1976)). The cases demonstrate that something more than counseling sessions, but less than formal complaints leading to inquiry, is necessary to trigger the LEOBOR. See, e.g., Cancelose, 75 Md.App. at 668, 542 A.2d 1288 (monthly evaluations of officer's job performance was not investigation); Windsor v. Bozman, 68 Md.App. 223, 229-30, 511 A.2d 69 (discharge "without cause" not investigation), cert. denied, 308 Md. 237, 517 A.2d 1120 (1986); Leibe, 57 Md.App. at 323, 469 A.2d 1287 ("examination of sick leave records even comparing them with another employee's is not an investigation as that word is normally and ordinarily used"); Chief, Baltimore County Police v. Marchsteiner, 55 Md.App. 108, 116, 461 A.2d 28 (1983) (counselling sessions not investigation or interrogation).

Whether a polygraph examination administered by a police department to its officers is an investigation and/or an interrogation sufficient to trigger the protections of the LEOBOR was directly addressed in Widomski v. Chief of Police, 41 Md.App. 361, 397 A.2d 222, cert. denied, 284 Md. 750 (1979). In that case, the Internal Affairs Division of the Baltimore County Police Department was investigating improper and illegal conduct by police officers assigned to the Dundalk district. In connection with this investigation, then-Corporal Widomski, stationed in Dundalk at that time, was twice interviewed by Internal Affairs. There was testimony that Widomski was not a suspect at the time of the interviews.

Soon thereafter, Widomski was administered a polygraph examination by Lieutenant William Ferrell " 'to see if [Widomski] had any knowledge that had been undisclosed' with respect to the Dundalk investigation." Id. 41 Md.App. at 363, 397 A.2d 222. Ferrell explained that "he usually asked follow-up questions when the interviewee answered in a manner that 'would arouse ... [Ferrell's] suspicions' as to the truthfulness of the answer," and that he followed the same procedure with Widomski. Id. The results of Widomski's polygraph examination indicated that he " 'wasn't being completely truthful to some of the questions.' " Id. at 364, 397 A.2d 222. Once informed of the results, Widomski named " 'at various times different officers that he had observed doing different things.' " ⁶ Id.

Immediately following the polygraph examination, Sergeant Philip Huber of Internal Affairs was told to "interview" ⁷ Widomski " 'in reference to certain revelations that were brought out in the polygraph examination.' " Id. at 365, 397 A.2d 222. Prior to this interview, Widomski was given a "Notification to Accused of a Complaint," an explanation of his rights under the LEOBOR, and Miranda ⁸ warnings.

At a...