Foy v. Balt. City Det. Ctr.
| Decision Date | 04 December 2017 |
| Docket Number | No. 1472, Sept. Term, 2016,1472, Sept. Term, 2016 |
| Citation | 174 A.3d 916,235 Md.App. 37 |
| Parties | Michael FOY v. BALTIMORE CITY DETENTION CENTER |
| Court | Court of Special Appeals of Maryland |
Argued by: David Gray Wright (Kahn, Smith & Collins PA on the brief) Baltimore, MD, for Appellant.
Argued by: Lisa 0. Arnquist (Brian E. Frosh, Attorney General on the brief) Towson, MD, for Appellee.
Panel: Eyler, Deborah S., Leahy, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.
Harrell, J.Appellant, Michael Foy, complains here that the Circuit Court for Baltimore City remanded erroneously his employment disciplinary case to Baltimore City Division of Pretrial Detention and Services (DPDS) Commissioner, John S. Wolfe, to conduct a second penalty increase meeting. Foy contends that remand to the Commissioner is inappropriate and that the Commissioner's prior decision to terminate him as a prison guard be reversed, without further administrative proceedings.
He asserts Commissioner Wolfe abridged his rights under the Correctional Officers' Bill of Rights1 (COBR)2 when the Commissioner increased to termination the Baltimore City Department of Corrections' Hearing Board's (Hearing Board) recommended lesser punishment, without conducting a timely and proper on-the-record penalty increase meeting, and thus violated Md. Code , § 10–910(b)(6)(ii) of the Correctional Services Article (Corr. Servs.).3
The circuit court (in its remand order) found that:
[Commissioner] Wolfe failed to satisfy the final portion of [Corr. Servs. § 10–910(b)(6)(ii) ] when the audio equipment failed to capture [Appellant's penalty increase meeting] on the record[,] ... [and] a substantial right of [Appellant's] has been prejudiced when the penalty increase hearing, due to the failure of the audio recording equipment, was not captured on the record ....
(Alteration in original).
In this appeal, Appellant poses the following questions:
Foy contends that Appellees violated the COBR when Commissioner Wolfe failed to follow the mandatory requirements of Corr. Servs. § 10–910(b)(6)(ii)4 in the course of increasing Appellant's disciplinary punishment. Specifically, Commissioner Wolfe failed to "allow[ ] [Appellant] to be heard on the record" by neglecting to capture the contents of the only penalty increase meeting convened and, in place of such a record, tendering an uncompliant alternative "record." The window of opportunity for enhancing the Hearing Board's recommended sanction closed once Commissioner Wolfe failed to comply with Corr. Servs. § 10–910(b)(6)(ii) within the time frame allowed by the statute.
In its initial response to this judicial review action on appeal, Appellees filed with this court a motion to dismiss asserting that the circuit court's order of remand was not an appealable final judgment because the remand contemplated further administrative proceedings. On the merits, Appellees argue that Commissioner Wolfe acted in good faith and complied substantially with the requirements of Corr. Servs. § 10–910(b)(6)(ii).
His good faith efforts at substantial compliance are represented by a memorandum memorializing what, according to his recollection, was said at the uncaptured penalty increase meeting and his attempts to reschedule the meeting within the allowed timeframe, presumably to rectify the recording equipment malfunction that occurred earlier. In addition, Appellees point also to a lack of any prejudice suffered by Appellant due to the absence of a formal recording.
We deny Appellees' motion to dismiss. We hold that Appellant's COBR rights were violated. Moreover, the circuit court remanded erroneously Appellant's case to Commissioner Wolfe to conduct a second, but untimely on-the-record meeting. The proper remedy is to reinstate the Hearing Board's penalty recommendation as the final administrative action (the computation of back-pay aside) under the circumstances of this case.
On 12 January 2014, Foy, a Lieutenant at the Baltimore City Detention Center (BCDC), was accused of using excessive force against a BCDC inmate.5 On 10 April 2014, the BCDC issued to Foy a notice of disciplinary charges recommending his termination.
Foy appealed to the Hearing Board. The Hearing Board found Foy guilty of ten of twelve disciplinary charges brought against him. The Hearing Board recommended that his penalty be reduced to a "Transfer to Baltimore City Booking and Intake Center & Demotion to Sergeant."
Commissioner Wolfe received a copy of the Hearing Board's recommendation on 23 November 2015. He reviewed the administrative record made to that date, found the Hearing Board's penalty inadequate, and proposed to increase Foy's punishment under Corr. Servs. § 10–910(b)(6). On 9 December 2015, the Commissioner conducted a penalty increase meeting with Foy and his counsel.6 Following the meeting, Commissioner Wolfe discovered that the audio recording equipment used to make a verbatim record of the meeting malfunctioned, failed to capture what was said at the meeting, as required by Corr. Servs. § 10–910(b)(6)(ii). The Commissioner notified promptly Foy's counsel of the equipment failure. The Commissioner and Appellant's counsel agreed to reconvene, with Foy, on 17 December 2015 for another attempt at holding a recorded meeting.7
On 10 December 2015, Commissioner Wolfe memorialized his recollection of what transpired at the unrecorded penalty increase meeting in a written memorandum to Stephen T. Moyer, Secretary of Public Safety and Correctional Services.8 Foy's counsel confirmed with Commissioner Wolfe's office to hold a remedial penalty increase meeting on 16 December 2015. Later that day, however, Commissioner Wolfe canceled, without explanation, the meeting. Commissioner Wolfe made no further effort to reschedule a meeting. Rather, on December 16, Commissioner Wolfe, with the permission of Secretary Moyer, increased the Hearing Board's recommended punishment of Foy from "Transfer to Baltimore City Booking and Intake Center & Demotion to Sergeant" to termination of his employment. Foy filed an action for judicial review in the Circuit Court for Baltimore City, arguing solely that the Commissioner violated his rights under the COBR when he increased the Hearing Board's recommended punishment without recording the penalty increase meeting. Foy requested the circuit court to rescind Commissioner Wolfe's increased penalty, re-impose the Hearing Board's recommended penalty, and reinstate him accordingly, with commensurate back pay.
The circuit court found, in relevant part:
That an error of law occurred at the penalty increase hearing when the audio recording equipment failed and there was no audio record of the meeting; and it is further found ... [that Commissioner] Wolfe failed to satisfy the final portion of [Corr. Servs. § 10–910(b)(6)(ii) ] when the audio equipment failed to capture the hearing on the record ... and a substantial right of [Foy] has been prejudiced when the penalty increase hearing ... was not captured on the record.
(Emphasis omitted).
As a result, the circuit court ordered that "this case be remanded for the purpose of conducting another penalty increase meeting so that a complete record of the administrative proceeding is available for the [c]ourt on [j]udicial [r]eview."
Appellees move to dismiss this appeal on "the grounds that [we] lack [ ] jurisdiction over this matter because the order appealed from is not a final judgment." They aver that Appellant has not been put out-of-court by the remand order from which he sought judicial review. As such, Appellant cannot satisfy the critical requirement for an appealable final judgment. The circuit court ordered a remand for the appointing authority9 to conduct another penalty increase meeting so that a complete record might be available for any further judicial review.
Appellant responds that the circuit court's remand order was authorized by Md. Code § 10–222(h)(1) of the State Government Article (State Gov't), and is an appealable final judgment under Metro Maint. Sys. S., Inc. v. Milburn , 442 Md. 289, 299–307, 112 A.3d 429, 435–40 (2015). Under Milburn , remands ordered pursuant to State Gov't § 10–222(h) are appealable immediately because the order terminates the judicial proceeding, and denies the parties any means of further prosecuting or defending the action.
The resolution of a motion to dismiss raised on appeal is left to the sound discretion of this Court. MD. RULE 8–602. In the exercise of that discretion, we will dismiss an appeal if it is not a final judgment entered in a civil or criminal case by a circuit court, or if a non-final judgment does not fit within the statutory exceptions or the collateral order doctrine.10 A ruling must have the following "three attributes to constitute a final judgment: 1) it must be intended by the court as an unqualified, final disposition of the matter in controversy; (2) unless the court acts pursuant to Maryland Rule 2–602(b) to direct the entry of a final judgment as to less than all of the claims or all of the parties, it must adjudicate or complete the adjudication of all claims against all parties; (3) it must be set forth and recorded in accordance with Rule 2–601."11
Rohrbeck v. Rohrbeck , 318 Md. 28, 41, 566 A.2d 767, 773 (1989). The purpose of the final judgment rule is "to promote judicial efficiency by avoiding piecemeal appeals." Milburn , 442 Md. at 298, 112 A.3d at 435 (citing Brewster v. Woodhaven Bldg. & Dev., Inc. , 360 Md. 602, 616, 759 A.2d 738 (...
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Balt. City Det. Ctr. v. Foy
...authority's failure to satisfy the "on the record" requirement is incurable after the thirty-day deadline. Foy v. Baltimore City Det. Ctr. , 235 Md. App. 37, 174 A.3d 916 (2017). We reach a different conclusion and, consequently, reverse the judgment of the Court of Special Appeals.I.The CO......
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