Chief, Baltimore County Police Dept. v. Marchsteiner

• Decision Date: 10 June 1983
• Docket Number: No. 1361,1361
• Citation: 461 A.2d 28,55 Md.App. 108
• Parties: CHIEF, BALTIMORE COUNTY POLICE DEPARTMENT v. Donald G. MARCHSTEINER.
• Court: Court of Special Appeals of Maryland

Page 108

55 Md.App. 108

461 A.2d 28

CHIEF, BALTIMORE COUNTY POLICE DEPARTMENT v. Donald G. MARCHSTEINER.

No. 1361.

Court of Special Appeals of Maryland.

June 10, 1983.

John A. Austin, Asst. County Atty. for Baltimore County, with whom was Leonard S. Jacobson, County Atty. for Baltimore County, on the brief, for appellant.

Donald G. Marchsteiner, pro se.

Argued before WEANT, ADKINS and BLOOM, JJ.

ADKINS, Judge.

There are two issues in this case:

1. Whether appellee, police officer Donald G. Marchsteiner, is barred from seeking judicial enforcement of the Law Enforcement Officer's Bill of Rights (LEOBR), Code, Art. 27, §§ 727 et seq., by virtue of his failure to resort to grievance procedures provided by a collective bargaining agreement between the Baltimore County Administration and the Fraternal Order of Police, Lodge No. 4.

2. If the first issue is answered in the negative, whether Marchsteiner's involuntary transfer from the Youth Services Division of the Baltimore County Police Department to uniformed patrol was punitive in nature and in violation of LEOBR.

Facts

Marchsteiner has been a sworn officer in the Baltimore County Police Department since 1969. In 1976, he was assigned to the Department's Youth Services Division, a unit which, according to appellant, the Chief, Baltimore County Police Department, deals with "the crime prevention aspects of working with juveniles and youthful offenders." Initially, his job performance ratings were high, but in early 1981, they began to decline in all rating categories. His supervisor, Sgt. Horney, reported that "Det. Marchsteiner has not performed his duties to his full ability" and that "[i]t has been necessary for this rator [sic] to counsel Det. Marchsteiner due to his open lack of respect toward his supervisor." As of June 1, 1981, Marchsteiner was reassigned to the Police Athletic League within the Youth Services Division, Sgt. Horney expressing the hope "that the change of assignment will result in a change of attitude and improved performance." At about the same time, as a result of a complaint from a community service worker, Sgts. Henninger and Horney also counselled Marchsteiner against the use of foul language in front of any young people.

Despite all this counselling, it seems that Marchsteiner's performance ratings continued to decline in May and August. Sgt. Henninger observed that the officer "lacked a positive attitude" and "lacked initiative". And in early September, Det. Chaney complained to a Lt. Penn that Marchsteiner had subjected juveniles in his charge to foul and abusive language.

Apparently, other complaints of similar conduct were received. On September 8, 1981, Lt. Zaworski reported to Lt. Penn. Zaworski had reviewed the complaints, the counselling sessions, and Marchsteiner's performance ratings. He wrote:

It is obvious to the writer that Det. Marchsteiner has steadily shown an attitudinal problem especially in terms of dealing with the youngsters involved in the Youth Division's programs. He has been counselled by his immediate supervisor in the hopes [sic] that his attitude and reciprocal actions would change. He has also been moved into another unit within the Youth Division also in the hope of a positive change. Neither of these actions appear to have helped Det. Marchsteiner.

A significant part of a youth officer's responsibility always involves dealing directly with juveniles in various programs. The philosophy of the Youth Division, as a Crime Prevention modality, is to build a positive image of the police officer in the eyes of young people. This, in turn is used as a catalyst to direct/redirect their activities into positive areas. Det. Marchsteiner's actions are the antithesis of this stated philosophy and are counterproductive of the goals of the Youth Division and the Crime Prevention Bureau.

He has demonstrated his unsuitability and lack of impetus for positive change. It is my opinion that retaining him in the Youth Division would be detrimental to the good order and efficiency of same. Therefore it is my recommendation that Det. Marchsteiner be transferred to uniform patrol where he will not have the daily close contact with juveniles that he does now.

This recommendation was reviewed by Lt. Penn, who concluded that the record "clearly reflects a steady deterioration in attitude and job performance as well as an obvious unsuitability for dealing with juveniles." He endorsed the recommendation that Marchsteiner be involuntarily transferred "from Youth Services to the Patrol Bureau."

The involuntary transfer was effected as of September 17, 1981. Marchsteiner did not invoke the grievance procedure provided by a collective bargaining agreement between Baltimore County and the Fraternal Order of Police. ¹ Instead, he sued the Chief, Baltimore County Police Department in the Circuit Court for Baltimore County pursuant to § 734 of the LEOBR.

Marchsteiner's complaint was that he had been subject to punitive measures without first being afforded the benefit of the procedures specified in §§ 730 and 731. These sections require, as a prerequisite to the imposition of a punitive measure against a law-enforcement officer (which Marchsteiner clearly was) certain notice, hearings and written decisions and recommendations. There is no doubt that LEOBR procedures were not followed prior to the implementation of Marchsteiner's involuntary transfer.

Appellant responded to Marchsteiner's petition by asserting that the involuntary transfer was not punitive in nature, and by claiming that Marchsteiner's access to the court was barred by his failure to use the established police grievance procedure. On cross-motions for summary judgment, the trial court at least implicitly rejected appellant's grievance procedure argument. It found "as a matter of law that a transfer under these circumstances is a disciplinary sanction." On August 12, 1982, it ordered appellant to "file appropriate departmental charges against Marchsteiner" and to schedule those charges "for a hearing in accordance with Article 27, section 730...." This appeal followed.

Grievance Procedure as Bar to Judicial Action Under LEOBR

Citing Prince George's County v. Blumberg, 288 Md. 275, 418 A.2d 1155 (1980), cert. den. 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981), appellant argues that Marchsteiner's failure to exhaust his administrative remedy (the grievance procedure embodied in the collective bargaining agreement between Baltimore County and the FOP) bars his access to the court. ² Appellant's reliance on Blumberg is misplaced.

In Blumberg, the Court of Appeals restated a rule as to which, it said, "there are few legal tenets which have received greater acceptance into the jurisprudential law of this State...." Id. 288 Md. at 283, 418 A.2d at 1160. It quoted Agrarian, Inc. v. Zoning Inspector, 262 Md. 329, 332, 277 A.2d 591, 592 (1971):

[A] claimant ordinarily must seek to redress the wrong of which he complains by using the statutory procedure the legislature has prescribed for that kind of case, if it is adequate and available.... [I]f he is unsuccessful and wishes aid from the courts, he must take judicial appeals in the manner the legislature has specified rather than by seeking to invoke the ordinary jurisdiction of the courts.... [Consequently, we] have consistently held that where a special form of remedy is provided, the litigant must adopt that form and must not bypass the administrative body or official, by pursuing other remedies. Id.

There are at least two reasons why Blumberg does not apply here. To begin with, we do not have before us "a statutory procedure the legislature has established for [this] kind of case...." The grievance procedure that appellant seeks to equate with an "administrative body or official" is not prescribed by the Baltimore County Code, or by any other statute or ordinance. It is merely authorized by § 2-29(a) of the Baltimore County Code which provides, in pertinent part: "The county and a certified employee organization may provide in a memorandum of understanding for a procedure for the resolution of grievances ... [emphasis supplied]." This is a far cry from a legislatively-mandated procedure for administrative determination of specified matters.

We recognize, of course, that the existence of procedures other than administrative procedures may produce a result analogous to that produced by the application of the exhaustion of administrative remedies doctrine. The arbitration procedures established by the Health Care Malpractice Act provide an example. ³ Oxtoby v. McGowan, 294 Md. 83, 91, 447 A.2d 860, 864-65 (1982); see also Cannon v. McKen, --- Md. ---, 459 A.2d 184 (1983). But the facts in Oxtoby and Cannon, like those in Blumberg, involved legislatively-mandated procedures which the legislature intended to operate as conditions precedent to access to the courts. As noted, we have no such legislatively-mandated conditions precedent here. In fact, as we shall now explain, the converse is true. ⁴

The second reason that Blumberg does not govern this case arises from the first of five exceptions to the exhaustion of remedies doctrine stated in Blumberg itself. That first exception exists "[w]hen the legislative body has indicated that exhaustion of administrative remedies was not a precondition to the institution of normal judicial action." 288 Md. at 284, 418 A.2d at 1161.

The General Assembly enacted the LEOBR "to guarantee to those law-enforcement officers embraced therein procedural safeguards during investigation and hearing of matters concerned with disciplinary action against the officer." Nichols v. Baltimore Police Department, 53 Md.App. 623, 455 A.2d 446, 448 (1983). It established new rights for law enforcement officers entitled to the benefits of its provisions, and it established in § 734 a judicial remedy for the enforcement of those rights:

Any law enforcement officer who is denied...