Coleman v. ANNE ARUNDEL POLICE

• Decision Date: 01 February 2001
• Docket Number: No. 2713,2713
• Citation: 136 Md. App. 419,766 A.2d 169
• Parties: Charles COLEMAN v. ANNE ARUNDEL COUNTY POLICE DEPARTMENT.
• Court: Court of Special Appeals of Maryland

766 A.2d 169

136 Md. App. 419

Charles COLEMAN v. ANNE ARUNDEL COUNTY POLICE DEPARTMENT.

No. 2713, Sept. Term, 1999.

Court of Special Appeals of Maryland.

February 1, 2001.

Byron L. Warnken (Gary C. May and Law Offices of Bonnie L. Warnken, on the brief), Baltimore, for appellant.

Julie T. Sweeney, Senior Asst. County Atty. (Linda M. Schuett, County Atty., on the brief), Annapolis, for appellee.

Argued before MOYLAN,¹ KENNEY, VICTOR K. BUTANIS (specially assigned), JJ. KENNEY, Judge.

This appeal arises out of disciplinary action taken against appellant, Charles Coleman, by the Chief of Police of Anne Arundel County (the "Chief") pursuant to a recommendation from the Administrative Hearing Board (the "Board"). Appellant petitioned for judicial review, and the Circuit Court for Anne Arundel County affirmed the Board's decision. Appellant raises five questions for our review:

1. Whether the Department erred, as a matter of law, and acted in an arbitrary and capricious manner, when it failed to comply with departmental rules mandating an interview with Cpl. Coleman, which would have caused neutral investigators to terminate the investigation with the charges "unsustained"?

2. Whether the Department denied due process of law, and violated the express requirements of the Family and Medical Leave Act (FMLA), when the Board denied a continuance, despite undisputed psychiatric evidence of, and medical treatment for, a severe mental disability (an FMLA "serious health condition"), which caused the Department to order Cpl. Coleman to take leave under the FMLA?

3. Whether the Department denied due process of law, and acted in an arbitrary and capricious manner, when the Board Chair denied a motion to recuse himself, despite (1) Cpl. Coleman's entitlement to a peremptory challenge against the Chair through the collective bargaining agreement, and (2) the Chair's bias against Cpl. Coleman by making a complaint that he lacked integrity and then denying having made the complaint until confronted?

4. Whether the Department erred, as a matter of law, by seizing evidence from Cpl. Coleman's person, in violation of his Fourth Amendment protection against unreasonable searches and seizures, and then using that evidence to convict him of eight theft-related charges?

5. Whether the Department denied due process of law when it convicted Cpl. Coleman of eight theft-related counts, and terminated him just shy of retirement, based on a mere preponderance of the evidence—thus tolerating a 49% risk of error—when both the Supreme Court and Maryland mandate a burden of persuasion standard of clear and convincing evidence for administrative charges of theft and dishonesty?

STATEMENT OF FACTS

On December 4, 1997, the Internal Investigation Division (IID) of appellee, Anne Arundel County Police Department (the "Department"), conducted an investigation targeting appellant, a nineteen year veteran of the force. A number of items were assembled to be turned over to appellant to determine whether he would properly process them. The following articles were put into a green cloth fanny pack: three Tylenol tablets, a clear plastic baggy with white residue, two black film canisters with leafy vegetable residue, a Mickey Mouse key chain with a key and toy baseball bat attached, and a total of $76.25, consisting of three nickels, one dime, two $20 bills, three $10 bills, one $5 bill, and one $1 bill.

Two Howard County detectives, posing as ordinary citizens, turned the fanny pack over to appellant. They advised him that they had found the pack containing no identification outside a convenience store. Appellant asked them no questions and let them leave without taking down any information. Appellant radioed in for a case number for the recovered property and potential controlled dangerous substances (CDS) and then returned to the police station. Appellant then called the convenience store and spoke with the clerk, who indicated that no one had reported lost or stolen property.

Appellant prepared the suspected CDS for forwarding to the laboratory for testing. He placed the CDS into a sealed envelope, labeled the envelope appropriately, had the envelope witnessed, and recorded it in the logbook. These actions comported with departmental regulations.

Appellant separated the bills from the rest of the items left in the fanny pack. He filled out a "Recovered Property Form" on which he made the following notations: "Mickey Mouse key chain with one key" and "3 nickels, 1 dime American currency." These items were placed in a blue envelope. Neither the Tylenol tablets nor the bills were turned in.

Appellant has maintained that it was his understanding that he needed a supervisor to count the paper currency, seal the envelope containing it, and sign the envelope. Because there was no supervising officer on duty that evening, and he believed it unwise to leave the money on his desk, appellant put it in his shirt pocket. He took it with him with the intention of having it signed in later by a supervisor. Believing that he would see his direct supervisor at some point during the shift, appellant did not seek out a supervisor. Instead, he went back out to work on making his performance levels for DWIs and traffic tickets.

Appellant took the money home with him. The next morning, he put it with the rest of his money, and took it with him to a court appearance. He stopped by a fast food restaurant and paid with a five dollar bill.

After court and pursuant to orders to return to the station, appellant was ordered by the on-duty lieutenant that afternoon, Lieutenant Kenneth Schlein ("Lt. Schlein"), to empty his pockets and, after he did, to surrender the money to him. Schlein testified at the hearing that the following exchange, initiated by appellant, took place:

[Appellant:] It's here.

[Lt. Schlein:] What's here?

[Appellant:] All the money from last night: sixty-five dollars;² I knew it was a setup; It was stupid of me.

Appellant pulled a money clip out of his pocket and took $71 from the total amount he had and began comparing the bills himself to the ones an IID officer had photocopied the previous day.

Lt. Schlein confronted appellant with the five dollar difference, and appellant stated that he must have spent the money. Coleman was served an emergency suspension notice the same day.³ On December 12, 1997, he was charged with violating eight Anne Arundel County Police Department rules, regulations, policies and/or procedures. We quote from the Statement of Facts contained in appellant's brief, which accurately summarize the charges as follows:

Charge 1 alleged that Cpl. Coleman failed to conform to "Md. Ann.Code art. 27, section 342" (the theft offense statute) when he "stole the $76.00 instead of reporting its recovery and submitting it..." Charge 2 alleged that Cpl. Coleman violated the integrity of the reporting system when he "[f]ailed to submit [an] accurate and complete recovered property incident report." Charge 3 alleged that Cpl. Coleman engaged in conduct unbecoming a police officer by committing "[t]heft" in that he "stole the $76.00" and his "conduct was criminal, dishonest and improper." Charge 4 alleged that Cpl. Coleman neglected his duty and had an unsatisfactory performance "by stealing $76.00." Charge 5 alleged that Cpl. Coleman violated the reporting requirement regarding property or contraband by committing "[t]heft" when he "stole the $76.00 instead of reporting its recovery." Charge 6 alleged that Cpl. Coleman failed to comply with the Recovered Property Form by "not put[ting $76] on Recovered Property Form." Charge 7 alleged that Cpl. Coleman violated the truthfulness requirement by "[i]ntentional misrepresentation by not mentioning $76." Charge 8 alleged that Cpl. Coleman violated his oath of office and the Code of Ethics by the fact that he "[s]tole the $76 ..., was dishonest in thought and deed, and showed disrespect for ... the law against theft." The hearing before the Board was originally scheduled to take place on February 3, 1998. Pursuant to appellant's request, the hearing was continued to February 9, 1998. After an additional request by appellant, the hearing was again postponed from February 9, 1998, to March 11, 1998. Additional correspondence then took place between IID and appellant wherein appellant requested hearing dates of April 27, 28, and 29, 1998. The Chair of the Board, Lieutenant Thomas Rzepkowski ("Lt. Rzepkowski"), granted this further continuance, and the hearing began on April 27, 1998.

In the meantime, on or about April 6, 1998, appellant was placed on Family and Medical Leave pursuant to the FMLA due to mental illness. Appellant's personal physician, Dr. Dvoskin, identified his illness as "adjustment disorder with depressed mood, consider major depression." Dr. Dvoskin certified that appellant was unable to perform his duties and that it would not be possible for the Department to offer him reasonable accommodations so that he could continue working.

The Board convened for a hearing that lasted three days. On May 15, 1998, the Board sent its disposition and recommendation to the Chief. In its report, the Board made extensive findings of fact and unanimously found appellant guilty of all eight charges. The Board was also unanimous in its recommendations for punishment. It recommended termination in connection with Charges 1, 3, 4, 5, 7, and 8, and twelve day suspensions in connection with Charges 2 and 6. The Board, in light of the fact that appellant was so close to retirement, also stated the following:

In recommending this punishment, it is not the intent of the Board to allow Corporal Coleman to safely retire and avoid the stigma of being "fired." The recommendation is for termination. However, the Board carefully listened to and considered the mitigating factors which Defense Counsel persuasively explained, including the financial impact to innocent family members. The Board also...