Cochran v. Anderson

• Decision Date: 01 September 1987
• Docket Number: No. 547,547
• Citation: 535 A.2d 955,73 Md.App. 604
• Parties: Donald K. COCHRAN et al. v. Robert ANDERSON. ,
• Court: Court of Special Appeals of Maryland

Page 604

73 Md.App. 604

535 A.2d 955

Donald K. COCHRAN et al. v. Robert ANDERSON.

No. 547, Sept. Term, 1987.

Court of Special Appeals of Maryland.

Jan. 14, 1988.

D.S. Sastri, Arthur S. Drea, Jr. on brief, Hyattsville, for appellants.

Timothy E. Clarke, Kenary & Clarke, Chartered on brief, Rockville, for appellee.

Argued before WILNER, BISHOP and ROSALYN B. BELL, JJ.

WILNER, Judge.

The question before us is whether the Circuit Court for Montgomery County overstepped its bounds when, on March 19, 1987, it ordered the Maryland-National Capitol Park and Planning Commission (the Commission) and the Commission's Director of Parks to terminate all proceedings brought against Lt. Robert Anderson under the Law Enforcement Officers Bill of Rights (LEOBR) and to reinstate him to his former status. We believe that it did--not because it was without authority to enter such an order but because it acted precipitously and on an incorrect basis.

The full procedural history of this case is important to the issues raised, but unfortunately it is not succinctly set forth in the record; some parts of it we must piece together from the various pleadings, orders, and exhibits. We may start, however, with the undisputed fact that Lt. Anderson was and is a police officer employed by the Commission and that, as such, he is subject to both the Commission's merit system rules and regulations and to LEOBR (Md.Code Ann. art. 27, §§ 727-734D).

It appears that at some point in the spring of 1985, the Commission undertook an internal investigation into complaints that Lt. Anderson and one other officer had engaged in racial and sexual harassment. In June, 1985, while the investigation was in progress, Anderson received his regular annual performance evaluation. His immediate supervisor recommended an evaluation of "very good." That recommendation, concurred in by the Park Police Division Chief, was sent to the Director of Parks for final approval. The Director, aware of the ongoing investigation, took no action on the recommendation, prompting Lt. Anderson, in August, 1985, to file a grievance. That grievance was denied on December 13, 1985.

Six days later, the investigation was completed; from it the Director concluded that Lt. Anderson had indeed engaged in sexual and racial harassment. The basis of the former was that he had made "inappropriate and disparaging comments regarding the anatomy of two female officers on separate occasions"; as to the latter, the Director found that appellant had made a "racially derogatory comment towards a minority officer." As a result, the Director (1) revised Lt. Anderson's 1985 performance evaluation from "very good" to "marginal," and (2) suspended him without pay for five days and assigned him to participate in "Supervisory Techniques and Sensitivity Awareness Training Programs."

On December 26, through counsel, Lt. Anderson wrote to general counsel to the Commission complaining about the Director's action. The letter, he said, "is notice of an appeal of this evaluation decision." Responding eight days later, general counsel advised that he would treat the December 26 letter as both an appeal to the Commission's merit system board from the evaluation decision and as a demand under LEOBR "for a trial board hearing of the charges of sexual and racial harassment." In that latter regard, he said that he had advised the Chief of Police "to appoint a three-member trial board and to begin the necessary scheduling of the hearing" and that he had designated an attorney from his office to represent the Commission. He concluded his letter by saying that "[i]t is certainly not our intention to unnecessarily complicate or to draw out this matter and so we will move as promptly as possible."

The Commission had adopted regulations governing proceedings under LEOBR. They provided, in relevant part, that (1) a trial board would be appointed within five days after the Chief received notice that the accused officer refused to accept the disciplinary measures, (2) at least 10 days before the hearing, the officer would be notified of the names of witnesses and furnished with a copy of the investigatory file, excluding the identity of confidential sources, (3) upon appointment, the trial board chairman would receive from the Chief the date, time, and location of the hearing, and (4) hearings "will commence thirty (30) days after notification is sent to the Accused." See LEOBR Bi-County Directive, 7/30/84, Parts VII and VIII. These provisions were no doubt designed to implement the policy expressed in Part II of the Directive "to provide a thorough, fair, and expeditious disposition of complaints regarding the conduct of M-NCPPC Park Police officers." (Emphasis added.)

It appears that, in general accordance with these regulations, a trial board hearing was scheduled for January 16, 1986. By January 10, however, Anderson had not received a list of witnesses, a statement of charges and specifications, or other "discovery." The hearing was postponed; on February 6, Anderson and the Commission agreed that the merit system board hearing, scheduled for March 10, should precede the trial board hearing, and so the latter was again postponed.

We are informed that, at the conclusion of the March 10 merit system board hearing, the board orally granted the Commission's motion to dismiss the appeal; in contravention of its own rules, however, it failed to render a written decision until June 25, 1986. At some point--whether before or after rendition of the written decision is not clear--Lt. Anderson appealed the decision of the merit system board to the Circuit Court for Montgomery County. On March 26, 1986, he wrote to the Director of Parks requesting "the prompt scheduling of a Trial Board Hearing" under LEOBR, noting his understanding that "the members of the Hearing Board have already been established."

On April 23, 1986, having received no response to his letter, Lt. Anderson filed this action in Circuit Court complaining about the alleged violations of his rights under LEOBR and the Commission's implementing regulations and seeking an order terminating the investigation. The Commission responded that a trial board hearing had been deferred pending the written decision of the merit system board, which had not, as of then, been issued. At a hearing held on May 21, the court denied the relief requested by Lt. Anderson. A formal order to that effect, denying the relief "at this time," was filed by the court on July 16, 1986.

On June 30, 1986, Anderson made a written demand for a statement of charges, trial board appointment, and hearing date. On July 10, he made another such demand. On July 16, in some sort of hearing in the Circuit Court, presumably in connection with the initial complaint, counsel for the Commission stated that a hearing "would be promptly held." On September 30, following a note from Commission counsel indicating that the attorneys would confer on the Anderson matter at some future time, counsel for Anderson responded:

"As I have previously indicated, we are anxious to meet with you. However, under no circumstances am I authorized to have any delay to the already illegally delayed proceedings.

Let me reiterate what I have already said to you. The Commission has received an Order from the Court to act. The Commission has chosen not to act. In my opinion the Commission is in contempt of Court and I shall pursue that remedy with vigor unless there is an immediate settlement of all issues in this matter. Furthermore, Lt. Anderson still has not received a hearing although promised one and entitled to one by law. We have done everything which we can possibly do in order to get the Commission to obey the law. The Commission has chosen not to obey the law. You are well aware that the proceedings involving Lt. Anderson are now so fatally flawed that to go forward now borders on vindictiveness by the Director. This matter must be resolved. The Commission and all aspects of the Commission's behavior will be aired fully in the proceedings involving Lt. Anderson unless there is an immediate settlement of all issues in this matter."

(Emphasis in original.)

Hearing nothing further from the Commission, Lt. Anderson filed a First Amended Complaint on January 19, 1987, in which, after incorporating the averments of his initial complaint, he again complained about the failure of the Director and the Commission to convene a trial board hearing and asked that all further proceedings be enjoined. The next day, January 20, the court signed an order directing the Director and the Commission to appear before the court in person on February 23, 1987, to show cause why the relief prayed should not be granted. Because of a snowstorm on February 23 that closed the court, the defendants did not appear. Nor did they file any written response to the show cause order.

On February 13, 1987, the Circuit Court issued a ruling in Anderson's appeal from the merit system board decision. While the court concluded that there was no violation of the merit system law in the Director's first postponing a decision on Anderson's 1985 performance evaluation and then changing the evaluation from "very good" to "marginal," it made clear that, to the extent that there was a conflict or overlap between the merit system procedures and LEOBR, the latter would prevail. Because the board had not considered or ruled upon Lt. Anderson's charge that the performance evaluation process had been used "in a manner inconsistent with the procedural guarantees provided for in the LEOBR" and because the record was not "very well developed on this point," the court remanded the case to the board

"to convene a new hearing on the issue of whether the actions taken by the Commis[s]ion and the methods utilized to change the appellants' performance evaluations were appropriate, discretionary management decisions within the purview of the Merit System...