DiGrazia v. County Executive for Montgomery County

• Decision Date: 08 September 1980
• Docket Number: No. 123,123
• Citation: 418 A.2d 1191,288 Md. 437
• Parties: , 115 L.R.R.M. (BNA) 4409 Robert J. DiGRAZIA v. COUNTY EXECUTIVE FOR MONTGOMERY COUNTY.
• Court: Maryland Court of Appeals

Page 437

288 Md. 437

418 A.2d 1191, 115 L.R.R.M. (BNA) 4409

Robert J. DiGRAZIA v. COUNTY EXECUTIVE FOR MONTGOMERY COUNTY.

No. 123.

Court of Appeals of Maryland.

Sept. 8, 1980.

Peter I. J. Davis, Rockville (Charles N. Shaffer and Shaffer & Davis, Rockville, on brief), for appellant.

Richard E. Frederick, Deputy County Atty., Rockville (Paul A. McGuckian, County Atty. and Charles S. Rand, Asst. County Atty., Rockville, on brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

MURPHY, Chief Judge.

We granted certiorari in this case to consider the reach of the Law Enforcement Officers' Bill of Rights, Maryland Code (1957, 1976 Repl. Vol., 1978 Cum.Supp.), Art. 27, §§ 727-734D and, more specifically, whether summary judgment was properly entered, concluding as a matter of law, that the Director of Police of Montgomery County had not been removed from his office in violation of the Act's provisions.

(1)

Section 728 of the Act (hereafter the LEOBR) provides that when a law enforcement officer "is under investigation or subjected to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal," the investigation or interrogation shall be conducted under conditions and safeguards specifically delineated therein. ¹ These include regulation as to the time and place of the interrogation, and a provision that the law-enforcement officer under investigation be given information concerning the persons conducting the investigation and those present during an interrogation. Other safeguards specified in § 728 include the right of the officer to be informed in writing of the nature of the investigation prior to any interrogation, the right of the officer to be represented by counsel during the interrogation, to have the names of witnesses prior to any departmental hearing, ² and to receive, prior to a hearing, a copy of the record of any interrogation (which the section requires be maintained). Another condition contained in § 728 is that no "adverse material" be inserted into the officer's file without affording him the right to review and comment on it.

Section 730 provides that if the investigation or interrogation "results in the recommendation of some action, such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure," notice must be given (with exceptions not here pertinent) to the officer "that he is entitled to a hearing on the issues by a hearing board." ³ Section 730 contains detailed provisions governing the conduct of the hearing and the introduction of evidence.

Section 731(a) requires that the hearing board's decision be in writing and include findings of fact. Where the board's finding is one of guilt, it is required to make a recommendation for punishment, which may include "demotion, dismissal, transfer, loss of pay, reassignment, or other similar action which would be considered a punitive measure." Section 731(c) provides that the recommendation of the hearing board is not binding upon the chief of police, who must make the final determination.

Section 733, entitled "Retaliation for exercising rights," provides that a law-enforcement officer:

"may not be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise discriminated against in regard to his employment or be threatened with any such treatment, by reason of his exercise of or demand for the rights granted in this subtitle, or by reason of the lawful exercise of his constitutional rights." (Emphasis added.)

Section 734 authorizes a law-enforcement officer "who is denied any right afforded by this subtitle . . . (to) apply at any time prior to the commencement of the hearing before the hearing board . . . to the circuit court of the circuit or the Baltimore City Court . . . for an order directing the law-enforcement agency to show cause why the right should not be afforded."

(2)

Robert DiGrazia was appointed Director of the Montgomery County Police Department by former County Executive James Gleason. The appointment was confirmed by the County Council, as required by law, on October 5, 1976. The office assumed by DiGrazia was for an indefinite term and was not within the protection of the county's merit system of employment.

County Executive Gleason did not seek re-election and his term of office expired on December 4, 1978. On that date, Charles Gilchrist, having been elected as County Executive on November 7, 1978, assumed office. Three days later, on December 7, 1978, Gilchrist asked for DiGrazia's resignation. According to comments attributed to Gilchrist at a press conference held that same day, his decision to seek DiGrazia's resignation was based on statements previously made by DiGrazia, which disparaged the county's police force, i. e., that 50% of the department's officers were unqualified and that most members of the force viewed the community as the enemy. Gilchrist said he did not agree with these statements, and he believed their utterance by DiGrazia made it impossible for him to serve effectively as the director and to implement police department policy. DiGrazia's departure, Gilchrist said, would "clear the air and . . . restore sense of purpose and unity and . . . go on with police work." Gilchrist admitted at the press conference that he did not personally hear DiGrazia make the statements. He said that he had discussed the statements with DiGrazia prior to December 7, 1978, when he asked for his resignation. Had DiGrazia not been "at fault" in making the statements, Gilchrist said he "would not have taken this step."

DiGrazia refused to resign and Gilchrist forthwith relieved him of his duties, designating Major Donald Brooks, a career police officer, as Acting Director. DiGrazia was placed on leave with pay until March 1, 1979.

On December 13, 1978, DiGrazia filed a "Petition for order to show cause" in the Circuit Court for Montgomery County, pursuant to § 734 of LEOBR. He alleged that his removal was based on public comments made by or attributed to him concerning the affairs of police officers, and that his discharge constituted "punishment" without regard to, and in derogation of, LEOBR's provisions. DiGrazia claimed that he was a law-enforcement officer subjected to investigation and was therefore entitled to the protection afforded by the LEOBR. He contended that his rights under § 728 were violated because he was not informed of the officer in charge of the investigation which was made of him, nor was he informed in writing of the nature of the investigation prior to his discharge, or of the names of the witnesses against him. DiGrazia claimed that his rights under § 728(12) were violated because "adverse material" was inserted into his file without giving him an opportunity to see or review it, and that his dismissal violated § 730 because he was not given notice that he was entitled to a hearing before a disciplinary hearing board.

In answer to DiGrazia's petition, the County Executive claimed that the LEOBR was not applicable because DiGrazia was not subjected to an investigation or an interrogation which resulted in the recommendation of a disciplinary sanction. Consequently, it was argued that DiGrazia was not entitled to a hearing before a hearing board under § 730. Moreover, Gilchrist maintained that DiGrazia was not a "law-enforcement officer" within the contemplation of the LEOBR, nor was the action taken by the County Executive that of a "law-enforcement agency" under the Act.

Each party moved for summary judgment on the pleadings and stipulated exhibits, which included transcripts of Gilchrist's press conference of December 7, 1978 and a later television interview in which he repeated his reasons for asking for DiGrazia's resignation. The court (Fairbanks, J.) said that the issues presented were (1) whether Gilchrist violated § 733 of the LEOBR, "which specifically proscribes the discharge or disciplining of a law-enforcement officer by reason of his lawful exercise of a constitutional right, in this instance, the right to free speech"; and (2) whether DiGrazia was a law-enforcement officer "entitled to the procedures outlined in Sections 728(b), 730 and 731 . . . including a hearing before a departmental hearing board."

The trial court concluded that DiGrazia was neither discharged nor disciplined in violation of the safeguards of the LEOBR. It said that DiGrazia was a nonmerit system employee, with no written contract of employment, appointed to an indefinite term, and who, after December 4, 1978 (when County Executive Gleason's term of office expired) merely held his office as a holdover. The Court held that DiGrazia was simply not reappointed by Gilchrist and consequently he was neither disciplined nor discharged under § 733. It said that DiGrazia had no proprietary interest in the position of Director of Police and that it was therefore unnecessary to decide whether his dismissal was in retaliation for the exercise of his right to freedom of speech.

The court held that § 728 was applicable only if four prerequisites were shown: (1) that DiGrazia was a law-enforcement officer, (2) that he was under investigation or subjected to interrogation, (3) that the investigation or interrogation was being conducted by a law-enforcement agency, and (4) that the investigation or interrogation was for a reason which would lead to disciplinary action. It determined that DiGrazia was neither investigated nor interrogated, and that the County Executive was not a law-enforcement agency under the LEOBR's provisions. Finally, the court held that because the removal of DiGrazia was not punitive, the procedures pertaining to a hearing in §§ 730 and 731 were inapplicable. The court denied DiGrazia's motion for summary judgment and granted summary judgment for Gilchrist.

The...