Commissioner, Baltimore City Police Dept. v. Cason

• Decision Date: 01 February 1977
• Docket Number: No. 421,421
• Parties: COMMISSIONER, BALTIMORE CITY POLICE DEPARTMENT v. Calvin CASON.
• Court: Court of Special Appeals of Maryland

Page 487

34 Md.App. 487

368 A.2d 1067

COMMISSIONER, BALTIMORE CITY POLICE DEPARTMENT v. Calvin CASON.

No. 421.

Court of Special Appeals of Maryland.

Feb. 1, 1977.

Millard S. Rubenstein, Asst. Atty. Gen., with whom was Francis B. Burch, Atty. Gen., on the brief, for appellant.

Karl H. Goodman and Lee Gordon, Baltimore, with whom were Gordon & Goodman, P. A., Baltimore, on the brief, for appellee.

Argued before GILBERT, C. J., and POWERS and DAVIDSON, JJ.

POWERS, Judge.

This case entered the judicial arena when Calvin Cason filed in the Baltimore City Court an Order for Appeal from an order of Donald D. Pomerleau, as Commissioner of the Baltimore City Police Department, which terminated Sgt. Cason's services with the Department. The Order for Appeal was followed by the required Petition. Thus Sgt. Cason invoked his right to judicial review of the administrative actions in the Department which led to his dismissal.

The prelude to the appeal to the Baltimore City Court is found in two charges preferred in August 1974 against Sgt. Cason by Frank J. Battaglia, Deputy Commissioner, Operations Bureau, of the Police Department. The charges alleged violations of the Rules and Regulations for the government of the Police Department of the City of Baltimore.

Charge No. 1 alleged violation of Rule I, Section 5. It set out the section:

'Members of the department shall refrain from making personal contacts with persons of questionable character, or visiting places suspected of violating the law, unless necessary to do so in the performance of their duty.'

The specification of the violation stated:

'For that Sergeant Calvin M. Cason did make personal contacts with one Milton K. Roy, a person of questionable character due to his involvement in violations of the lottery laws of Maryland, such personal contacts not necessary to be made in the performance of his police duty.'

Charge No. 2 alleged two violations of Rule I, Section 30. It set out the section:

'No compensation, reward, gift, or other consideration shall be solicited or accepted by members of the department without out special permission of the Police Commissioner. Attention is directed to Section 552 of the City Charter, 1949 edition: 'Any monies received as a gratuity or extra compensation for any services which he may render, and which are not turned into the possession of the Police Commissioner by the officer receiving same and applying same to his own use, will be cause for dismissal from the force, and he shall be forever ineligible to any position in the force.''

Specification 1 said:

'For that in or about the month of January 1973, and/or in months prior thereto, Sergeant Calvin M. Cason did accept United States currency from Milton K. Roy (aka James M. ('Brother') Roy) without the special permission of the Police Commissioner.'

Specification 2 said:

'For that in or about the month of January 1973, and/or in months prior thereto, Sergeant Calvin M. Cason did accept United States currency from Sergeant Robert E. Spangler of the Western District, without special permission of the Police Commissioner.'

A disciplinary hearing was convened on 21 January 1975 before a Departmental Board consisting of Major William F. Rochford, Chairman, Captain Donald E. Einolf, and Lieutenant Stephan Timchula. Sgt. Cason and the Police Department were represented by counsel. After several preliminary matters were considered, the hearing was continued to a date to be set. It was reconvened on 8 April 1975. Evidence was completed, and the Board made a finding of guilt and finding of fact on each specification, and set out its conclusion and recommendation. They were summarized in a report made by the Board to the Police Commissioner dated 9 April 1975. Its findings of fact were:

On Charge 1

'Based on the testimony from James M. ('Brother') Roy (aka Milton K. Roy) that he had met with Sergeant Calvin Cason on at least three separate occasions and paid him sums of money to be safe to operate his number operation in the Western District. Roy identified Sergeant Cason without hesitation and related that he gave the money to Sergeant Cason in his hand.'

On Charge 2, Specification 1

'Based on the testimony from James M. ('Brother') Roy (aka Milton K. Roy) that he had met with Sergeant Calvin Cason on at least three separate occasions and paid him sums of money to be safe to operate his number operation in the Western District. Roy identified Sergeant Cason without hesitation and related that he gave the money to Sergeant Cason in his hand. The personnel jacket of Sergeant Cason was introduced into evidence by Mr. Rubenstein to indicate that the Police Commissioner had not granted permission to Sergeant Calvin Cason to accept monies or extra compensation for services which Sergeant Cason had rendered.'

On Charge 2, Specification 2

'Testimony received from Sergeant Robert E. Spangler, retired, Western District, that he paid sums of money to Sergeant Calvin Cason in the men's room and hallway at the Western District on separate occasions during the period of June 1972 to November 1972 to protect the gambling operation of Harvey Robinson.'

The Board stated as a conclusion:

'The Board recognized the defense's contention regarding one man's word against another and that one would tend to nullify the other; however, the collective testimony of James M. ('Brother') Roy (aka Milton K. Roy) and Robert Spangler provided sufficient weight for the Board to find a preponderance of proof and a finding of guilty.'

It recommended 'that Sergeant Calvin M. Cason's services with the Baltimore Police Department be terminated.'

The Police Commissioner, Donald D. Pomerleau, took action on 14 April 1975, as evidenced by Personnel Order 362-75, dated 15 April 1975. The order recited the findings and recommendation of the Trial Board, and concluded:

'In the foregoing case of Sergeant Calvin M. Cason the recommended action of the Trial Board is approved. It is hereby ordered that Sergeant Calvin M. Cason be and is hereby terminated from the Baltimore Police Department effective April 14, 1975.'

Sgt. Cason's appeal to the court followed.

From the inception of the proceeding to its final conclusion Sgt. Cason was and is entitled to the safeguards provided for in Code, Art. 27, §§ 727-734, known as the Law-Enforcement Officers' Bill of Rights, and Code, Art. 41, §§ 244-256A, Administrative Procedure Act. ¹ Moreover, the disciplinary power within the Police Department could be exercised only in accordance with applicable law. And finally, the procedure for judicial review is governed by Subtitle B of Chapter 1100 of the Maryland Rules, comprising Rules B1-B12.

We summarize the petition filed in the Baltimore City Court by Sgt. Cason. It alleged that:

1. The power vested in the Police Commissioner as the ultimate decision maker is unconstitutional, and its exercise in this case was unconstitutional because the decision was arbitrary and capricious.

2. The findings of the Trial Board, and the order of the Commissioner thereon, were made upon unlawful procedure; were affected by other error of law; were unsupported by competent, material, and substantial evidence; were against the weight of evidence; were unsupported by the entire record; and were arbitrary and capricious.

3. The Trial Board proceedings constituted double jeopardy in that Sgt. Cason was previously tried and acquitted on criminal charges in the United Stated District Court, upon the same or substantially the same evidence; and that the doctrine of equitable estoppel barred the use of that evidence before the Trial Board.

We have carefully read the entire transcript of the proceedings before the Trial Board. Testimony in support of the charges was given by former Sgt. Robert E. Spangler and by James M. Roye (sometimes spelled 'Roy'). The testimony of each was limited, by an agreement between counsel, to the period from June to November, 1972.

Before discussing the evidence, we restate in simple terms, the charges against Sgt. Cason:

1. Making contacts with Roye, a questionable character.

2. Accepting currency from Roye without permission.

3. Accepting currency from Sgt. Spangler without permission.

Roye testified that he had been in the business of writing numbers. He operated out of an automobile repair garage. He had been convicted three or four times in Baltimore City for writing numbers. He said he knew Sgt. Cason, and identified him. He said that in 1972 Sgt. Cason came to his garage, said he was the new sergeant, and wanted to know the date the payroll came down. He said he answered that it was usually the 15th, or it might be one or two days late when the boys send the money down. Roye said the money was to operate the numbers game, that he was paying Western District to operate, to be safe to write numbers. Roye testified that he gave money to Sgt. Cason three times, and after that another officer came down 'for the bundle.' He said that when Sgt. Cason came he was in uniform, and in a police car, and 'would pull up a little ways'. He said that he paid Sgt. Cason $50.-'that was him lone'-and 'when he got the bundle he got $245.'

There was much evidence tending to cast doubt on Roye's credibility. He was an admitted bribe-giver, a law violator, and a convicted criminal. He had been arrested by the F.B.I., and thereafter had cooperated with them. He testified for the government in the trials of several police officers, including Sgt. Cason, on criminal charges. There were some inconsistencies, although not necessarily untruths, in his testimony. He may have had reason to give false testimony.

Spangler testified that he received money about once a month from Harvey Robinson, who was in the numbers business, to protect his gambling operation. Some of the money, Spangler said, was for himself, and some was for other members of the District. He testified that he gave Sgt. Cason $70. approximately three times during...