Coleman v. Anne Arundel County Police Dept.

• Decision Date: 06 May 2002
• Docket Number: No. 34,34
• Citation: 797 A.2d 770,369 Md. 108
• Parties: Charles COLEMAN, v. ANNE ARUNDEL COUNTY POLICE DEPARTMENT.
• Court: Maryland Court of Appeals

797 A.2d 770

369 Md. 108

Charles COLEMAN, v. ANNE ARUNDEL COUNTY POLICE DEPARTMENT.

No. 34, Sept. Term, 2001.

Court of Appeals of Maryland.

May 6, 2002.

Byron L. Warnken (Gary C. May of Law Offices of Bonnie L. Warnken, on brief), Baltimore, for petitioner/cross-respondent.

Julie T. Sweeney, Sr. Asst. County Atty. (Linda M. Schuett, County Atty., on brief), Annapolis, for respondent/cross-petitioner.

Mark G. Spurrier, Largo, brief of the Maryland Chiefs of Police Assoc., Inc., as amicus curiae in support of appellee.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ HARRELL, Judge.

This case was initiated as a personnel disciplinary action taken against former Corporal Charles Coleman, Petitioner, by the Chief of Police ("Chief") of the Anne Arundel County Police Department (the "Department"), pursuant to a recommendation from a departmental Administrative Hearing Board ("Board") that had convened in the matter in accordance with Maryland's Law Enforcement Officers' Bill of Rights ("LEOBR"), Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.), Article 27, §§ 727-734D.¹ As a result, Petitioner's employment by the Department was terminated.

Events began in late 1997. Petitioner was then the target of a "sting" operation conducted by the Internal Investigation Division ("IID") of the Respondent Department. Petitioner apparently had been the subject of an earlier "integrity test" and passed.² Continuing its investigation of Petitioner, IID assembled an assortment of items, including $76 in "marked" currency, in a fictitious "lost" fanny pack that was turned over to him on 4 December 1997 by undercover officers posing as citizens. This effort was to determine whether Petitioner would process the property in accord with departmental policies. Although Petitioner properly processed several items in the fanny pack, the currency was not processed nor a receipt created for it by Petitioner before the end of his work shift.

The following day, Petitioner was ordered to report to his station house and, upon arrival, was issued a written emergency suspension order by the on-duty lieutenant, acting at the direction of his superior officer.³ Petitioner then was ordered to empty his pockets. It was discovered that Petitioner had co-mingled the marked currency with his own funds, except for $5 of the $76 that he had spent. On 6 December 1997, Petitioner was suspended, with pay, pending further investigation or a determination by a hearing board.

Petitioner appeared before a three member administrative disciplinary hearing board⁴ on 27 April 1998, to answer charges of eight essentially theft-related violations of the Anne Arundel County Police Department rules, regulations, and procedures.⁵ Following a three-day evidentiary hearing,⁶ at which Petitioner and his counsel were present and fully participating, the Board, in a unanimous decision, found Petitioner "guilty" of all eight charges. Pursuant to § 731 of the LEOBR, the Board, in its 15 May 1998 memorandum to the Chief, effectively recommended termination of Petitioner's employment.⁷ After considering several mitigating factors, the Board also suggested that Petitioner receive credit for any leave to which he was entitled prior to termination, thereby affording him the opportunity to bridge his time of employment to meet the twenty-years of service necessary for vesting of retirement benefits.⁸ On 2 June 1998, after reviewing the record, the Chief accepted the Board's recommendation of termination, but decided to make the termination effective immediately.⁹

On 1 July 1998, pursuant to § 732¹⁰ of the LEOBR and in accordance with Maryland Rules X-XXX-X-XXX,¹¹ Petitioner sought judicial review in the Circuit Court for Anne Arundel County of his termination, alleging, inter alia, various errors of law, including an alleged error that the Board had applied the preponderance of the evidence standard of proof, rather than the clear and convincing evidence standard required by the circumstances, in its assessment of whether the Department had proven the charges. On 3 January 2000, the Circuit Court filed its Opinion and Order affirming the termination decision. Of particular relevance, the Circuit Court, citing Meyers v. Montgomery County Police, 96 Md.App. 668, 626 A.2d 1010 (1993), acknowledged that the preponderance of the evidence standard may be used by an LEOBR hearing board (see Meyers, 96 Md.App. at 708,

626 A.2d at 1030), but concluded that the Board in this case actually considered and decided the case utilizing the clear and convincing standard. Accordingly, even assuming the clear and convincing standard was required to be used by the Board as Petitioner argued, the Circuit Court found no error because the record, in its judgment, satisfied that standard.

Petitioner filed an appeal to the Court of Special Appeals, raising due process violations and other errors of law, and again asserting an alleged error concerning the appropriate standard of proof to be applied in a local police department action under the LEOBR. In a published opinion, the Court of Special Appeals affirmed. Coleman v. Anne Arundel County Police Dep't, 136 Md.App. 419, 452, 766 A.2d 169, 187 (2001). With regard to the proper standard of proof, the Court of Special Appeals found that the preponderance of the evidence standard was the correct standard to apply in a LEOBR case involving a local police disciplinary personnel action, but disagreed with the Circuit Court that the Board had utilized the preponderance of the evidence standard, not the clear and convincing standard, in the matter.

Petitioner filed a petition for writ of certiorari with this Court, which was granted. Coleman v. Anne Arundel Police, 364 Md. 461, 773 A.2d 513 (2001). We also granted Respondent's conditional cross-petition. The Maryland Chiefs of Police Association was permitted to file an amicus brief in support of Respondent.

Issues

Petitioner presents the following issue for our review:

Whether Everett v. Balt. Gas & Elec. Co., 307 Md. 286, 513 A.2d 882 (1986), the Due Process Clause, or both, require clear and convincing evidence—and not a mere preponderance of the evidence— to (1) convict a police officer of eight theft-related disciplinary charges, (2) terminate his career within nine months of retirement, and (3) deny him more than one million dollars in actuarially calculated retirement benefits?

In Respondent's conditional cross-petition, the following question was presented:¹²

Did the Court of Special Appeals err by failing to hold that the Petitioner's trial Board used the clear and convincing standard?

The Record

We recount the underlying facts as framed by the Court of Special Appeals.

On December 4, 1997, the Internal Investigation Division (IID) of [Respondent], Anne Arundel County Police Department (the "Department"), conducted an investigation targeting [Petitioner], a nineteen year veteran of the force. A number of items were assembled to be turned over to [Petitioner] 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 [Petitioner]. They advised him that they had found the pack containing no identification outside a convenience store. [Petitioner] asked them no questions and let them leave without taking down any information. [Petitioner] radioed in for a case number for the recovered property and potential controlled dangerous substances (CDS) and then returned to the police station. [Petitioner] then called the convenience store and spoke with the clerk, who indicated that no one had reported lost or stolen property.

[Petitioner] 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.

Petitioner 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.

[Petitioner] 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, [Petitioner] 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, [Petitioner] did not seek out a supervisor. Instead, he went back out to work on making his performance levels for DWIs and traffic tickets.

[Petitioner] 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, [Petitioner] 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 [Petitioner], took place:

[[Petitioner]]: It's here.

[Lt. Schlein:] What's here?

[[Petitioner]]: All the

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