DEPT. OF CORRECTIONS v. Shockley

• Decision Date: 31 January 2002
• Docket Number: No. 2081,2081
• Citation: DEPT. OF CORRECTIONS v. Shockley, 790 A.2d 73, 142 Md. App. 312 (Md. App. 2002)
• Parties: DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, v. Clifton Earl SHOCKLEY.
• Court: Court of Special Appeals of Maryland

790 A.2d 73

142 Md. App. 312

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES, v.Clifton Earl SHOCKLEY.

No. 2081, Sept. Term, 2000.

Court of Special Appeals of Maryland.

January 31, 2002.

Michele J. McDonald, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant.

Francis J. Collins(Kahn, Smith & Collins, P.A., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., HOLLANDER, and JAMES R. EYLER, JJ MURPHY, Chief Judge.

This appeal from the Circuit Court for Somerset County involves the conflict between a public employer's right to insist that its employees answer questions relating to their fitness for public service and the employees' right to assert the privilege against self-incrimination.The Department of Public Safety and Correctional Services("Department"), appellant, asks us to hold that it was entitled to discipline a correctional officer who refused to cooperate in an investigation of his off duty activities.Appellant presents two questions for our review:

I.Did the Administrative Law Judge err, as a matter of law, by holding that the Department could not suspend its employee for refusing to answer job-related questions because the employee's answers may be evidence in a criminal proceeding where the law clearly provides that a public employee may be disciplined for refusing to answer if the employee is not compelled to waive his constitutional privilege against self-incrimination and the statements are not used against him in a criminal proceeding?

II.Did the Administrative Law Judge err, as a matter of law, by interpreting the Department's standards of conduct to limit an employee's obligation to answer job-related questions to cases where the Department has demonstrated that the alleged conduct affects the security of a correctional facility?

For the reasons that follow, we shall answer "yes" to the second question, address the issues presented in the first question, vacate the judgment of the circuit court and remand for further administrative proceedings not inconsistent with this opinion.

Background

Clifton Earl Shockley, appellee, is a correctional officer (CSO II) assigned to the Eastern Pre Release Unit (EPRU).On January 28, 1999, one Verna Rhyanes complained to officers of the EPRU and of the Centerville Police Department that appellee threatened to "whip her ..."She also accused appellee of using narcotics.The Department assigned Lt. Frederick Wetzel to investigate those accusations.He interviewed appellee on February 23, 1999.

During his interview, appellee refused to respond to Rhyanes' accusations on the grounds that they arose out of a "personal" matter that was not work related and did not involve anything that occurred while he was on duty.At this point, Lt. Wetzel advised appellee that the Department holds its employees responsible for conduct on and off the job, and that the Department's regulations require an employee to cooperate with an investigation and to answer questions.¹When Captain William Blackiston entered the interviewing room at the request of Lt. Wetzel, appellee again asserted that he would not discuss any details of this "personal" matter.On February 24, 1999, Lt. Wetzel filed an incident report in which he documented appellee's refusal to cooperate with the investigation.

On February 26, 1999, appellee was advised that his refusal to cooperate with the investigation constituted a violation of the Department's standards of conduct, and that he would be suspended without pay from March 1, 1999 to March 5, 1999.Appellee appealed the suspension through the disciplinary appeal process and the case was referred to the Office of Administrative Hearings.²An Administrative Law Judge (ALJ) reversed the suspension in an order that included the following findings and conclusions:

There is no dispute that the Employee did not provide information or details about behavior of January 27, 1999 to Lt. Wetzel on February 23, 1999.Management argues that by failing to do so he violated the regulations and is subject to discipline; and that a five-day suspension is appropriate.The employee counters that he did not cooperate with the investigation but chose not to provide any details due to the potential criminal charges and civil litigation.Based on a review of the evidence and relevant law, I conclude that the Employee did not violate the DCD by failing to answer specific questions regarding his alleged misconduct for the reasons set forth below.

An employee of the DOC "shall conduct him/herself at all times, both on and off duty, in such a manner as to reflect most favorably on the Department."DCD 50-2 II.B.Therefore, an Employee's off duty conduct can be the basis for discipline if it would affect the performance of his duties or would bring disfavor to the DOC.The DOC rules not only require a correctional employee to "cooperate" with an investigation, but also require an employee to answer all questions truthfully and to the full extent of his/her knowledge.Due to the nature of the work in a correctional facility full disclosure is often critical to preventing a breach in security.Therefore, the DOC has a legitimate purpose in requiring its employees answer questions fully during an investigation.

However, management's legitimate concerns must be weighed against the Employee's interest in not making a statement that could be used against him in a criminal matter.I know of no provision that would bar the police, state's attorney or a litigant in a civil matter from discovering the Employee's statements made during a personal investigation.This places the Employee in a quandary.If he answers the investigator's questions to the full extent of his knowledge, he could be providing evidence against himself in a criminal proceeding.If he fails to answer the questions he subjects himself to possible discipline for insubordination.

Although there are some situations in which full disclosure of the details of off duty conduct is necessary to protect the security of the facility, its staff and inmates, this is not one such situation.The parties agree that the January 23, 1999 incident did not involve the Employee's duties as a Correctional Supply Officer, occurred while the Employee was off the premises of EPRU, and while the Employee was off duty.There is no evidence that the Employee's behavior affected the security of the EPRU. DCD 50-2 II.K.4 requires an employee to answer investigative questions due to "security purposes."Management provided no evidence or explanation why the Employee's private behavior ... affects the security of the EPRU.Without some indication of how the DOC was harmed or potentially harmed by the alleged conduct I cannot conclude that the Employee is required to disclose information that may be used against him in a criminal proceeding.Therefore, the Employee has not violated DCD 50-2II.K.4 and the five day suspension is inappropriate.

Based on the forgoing Findings of Fact and Discussion, I conclude as a matter of law that Management has failed to show by a preponderance of the evidence that the Employee's conduct on February 23, 1999 violated DCD 50-2II.K.4. Insubordination.COMAR 17.04.05.01D and Md.Code Ann., Pers &Pen. §§ 11-103 and 11-104(1997).

After the Department filed a petition for judicial review, the Circuit Court for Somerset County affirmed the ALJ's decision.The circuit court's order was accompanied by a memorandum that provided the following analysis:

The issue before both the Administrative Law Judge and this Court is limited to whether or not Respondent was required to respond to questions regarding an off-duty incident during an investigation conducted by the Department of Corrections for which the Respondent worked.

Petitioner attempts to argue that the five-day suspension of Respondent was warranted and appropriate under Garrity v. State of New Jersey,385 U.S. 493[87 S.Ct. 616, 17 L.Ed.2d 562](1967);Gardner v. Broderick,392 U.S. 273[88 S.Ct. 1913, 20 L.Ed.2d 1082](1968) and the Fourth Circuit case of Wiley v. Doory,14 F.3d 993(4th Cir.1994).While this Court defers to the holdings in these case[sic], they are inapplicable to the case presently before the Court.It is not necessary for this Court to reach the question of what types of sanctions were appropriate, since the alleged violation of regulations by Respondent never reached the threshold requirement of posing a security threat to the department.Thus, no sanction in his case was appropriate for his refusal to answer questions in this specific instance.

Both Petitioner and Respondent cite the DPSCS "Standards of Conduct and Performance,"Section II.K.4 as authority for Respondent's obligation to the department to answer questions and as the authority for the subsequent suspension.Petitioner states, "At no time during the investigative interview did Mr. Shockley assert any privilege.Instead he refused to answer questions on the grounds that it was a personal matter."This Court does not controvert the principle that a public employee may be sanctioned for refusing to answer questions when he or she is in violation of the "Standards of Conduct and Performance."

The choice that Respondent was required to make placed him on the horns of a dilemma.He could answer questions concerning a matter that he felt was unrelated to work and be subject to disciplinary action for his off-duty actions and potentially waive any rights he would have to not incriminate himself on these matters or he could refuse to answer the questions and subject himself to disciplinary action from the Agency.Essentially, Respondent was in a situation in which he was required to make a Hobson's choice.

The Court of [Special] Appeals stated that, "a reviewing court may substitute its judgment on law for that of the agency if the factual findings supported by substantial evidence are susceptible of...