Fraternal Order of Police, Montgomery County Lodge No. 35 v. Mehrling, 86

• Decision Date: 01 September 1995
• Docket Number: No. 86,86
• Citation: 680 A.2d 1052,343 Md. 155
• Parties: , 156 L.R.R.M. (BNA) 2654, 62 A.L.R.5th 917 FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE NO. 35 et al. v. Carol A. MEHRLING. ,
• Court: Maryland Court of Appeals

Page 155

343 Md. 155

680 A.2d 1052, 156 L.R.R.M. (BNA) 2654,

62 A.L.R.5th 917

FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE NO. 35 et al. v. Carol A. MEHRLING.

No. 86, Sept. Term, 1995.

Court of Appeals of Maryland.

Aug. 5, 1996.

George B. Driesen (William W. Thompson, II, Zwerdling, Paul, Leibig, Kahn, Thompson & Wolly, P.C., on brief), Washington, DC, for Appellants.

Ramona Bell-Pearson, Asst. County Atty. (Charles W. Thompson, County Atty.; Bruce P. Sherman, Sr. Asst. County Atty., on brief), Rockville, for Appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

This appeal by Robert F. McCullagh ("Officer McCullagh") and the Montgomery County Lodge No. 35, Fraternal Order of Police, Officer McCullagh's recognized labor organization, collectively the appellants, challenges the power of the Chief of Police of Montgomery County ¹, the appellee, to prohibit, under the applicable regulations, Officer McCullagh's engaging in secondary employment, even as punishment for a violation of those regulations. Concluding that the Chief of Police has that power, the Circuit Court for Montgomery County entered judgment affirming the appellee's decision prohibiting Officer McCullagh from engaging in such employment for a period of three months. We granted the writ of certiorari on our own motion to review that judgment.

I.

Officer McCullagh presently is, and at all times pertinent to this appeal was, a police officer with the Montgomery County Police Department. From February 1992 through June 1993, he was also employed as a security officer at the Northwest Apartment Complex. During this time period, a Police Department rule ² prohibited its employees from engaging in employment outside the Department without written permission of the Chief of Police and the approval of the County Ethics Commission. In addition, § 5.0 of Ethics Commission regulations, "Employment Outside of the County Service," ³ which, by the adoption of Resolution No. 10-1274, were approved by the Montgomery County Council, prescribed the procedure for obtaining approval to engage in secondary employment. Officer McCullagh did not obtain authorization of the Chief of Police and the County Ethics Commission before engaging in "secondary employment", however. Consequently when this fact became known, the Department initiated proceedings against him in accordance with the Law Enforcement Officers Bill of Rights ("LEOBR"), Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.) Article 27, §§ 727 to 734D.

Following an investigation, charges ⁴ were brought against Officer McCullagh and a hearing board, see LEOBR § 727(d)(1) ⁵, was convened, see LEOBR § 730(a) and (d) ⁶, to conduct a hearing on those charges. After the hearing, at which it unanimously found that Officer McCullagh was guilty of violating the departmental rule pertaining to secondary employment and, in compliance with LEOBR § 731, ⁷ the hearing board issued a decision stating its findings of fact. It also recommended that the Chief of Police issue a letter of reprimand to Officer McCullagh, to be placed in his personnel file, and suspend him from engaging in secondary employment for three months. Pursuant to § 731(c) ⁸, the Chief sustained the board's findings and adopted the disciplinary sanctions it recommended.

The appellants did not then, and do not now, contest the validity of the letter of reprimand as a disciplinary sanction. Their only complaint then, as now, is the suspension from working secondary employment. Thus, in response to the Chief's decision, the appellants, through counsel, wrote the Chief requesting only that he reconsider and rescind the suspension of Officer McCullagh from secondary employment. They maintained that, in light of the express terms of § 729A, ⁹ "[t]he total prohibition of secondary employment for a three month period is not a 'punitive' measure sanctioned by the LEOBR." That request was denied.

Subsequently, pursuant to LEOBR § 732, ¹⁰ the appellants appealed to the circuit court. In that court, the appellants continued to challenge the prohibition of secondary employment on the same ground, that it was an unauthorized disciplinary sanction, although they expanded and refined their arguments. They argued, specifically, that, because the Police Department failed to promulgate regulations under which secondary employment is prohibited for enumerated reasons, the total prohibition of secondary employment is not a sanction contemplated or authorized by the LEOBR. Consequently, they continued, when such a sanction is imposed by the Chief, it constitutes an unauthorized prohibition of secondary employment, in contravention of § 729A.

The circuit court rejected this argument. Reasoning that § 729A simply is a general prohibition against law enforcement agencies forbidding law enforcement officers from engaging in secondary employment that is inoperative when, for example, the prohibition is imposed as punishment against an employee who has violated secondary employment directives, it concluded that the appellant's reliance on LEOBR § 729A is misplaced, "as Section 729A deals with procedure, not with substantive disciplinary action." The court emphasized that the LEOBR provides the exclusive remedy for police officers in departmental disciplinary matters. It pointed out, in that regard, that LEOBR § 731(b) authorizes the hearing board to "recommend punishment as it deems appropriate under the circumstances, including but not limited to demotion, dismissal, transfer, loss of pay, reassignment, or other similar action which would be considered a punitive measure" and subsection (c) requires the Chief to "review the findings, conclusions and recommendations of the hearing board and then ... issue his final order." The court concluded that the disputed suspension of Officer McCullagh from engaging in secondary employment for three months falls within the scope of the Chief's authority to impose disciplinary sanctions, as defined by § 731, and that the Chief properly exercised that authority.

The appellants next appealed to the Court of Special Appeals. Before that court could consider the matter, this Court issued the writ of certiorari, on its own motion, to determine the meaning of § 729A and its effect on the power of a law enforcement agency to punish law enforcement officers who violate applicable secondary employment regulations.

II.

The Montgomery County procedure for the adoption and compilation of regulations and for their public notification, as well as the history of the County's regulation of secondary employment provide an appropriate context for consideration of the various arguments proffered by the parties to this appeal.

A.

How regulations are adopted and compiled and the public provided with notice is the subject of Article II of the Mont.Cty.Code (1994), a part of the County's Administrative Procedures Act. "It is the purpose of [that Article is] to prescribe a single and consistent procedure for the adoption, review and repeal of regulations, and to provide a uniform procedure for their public notification and compilation." § 2A-12(a). A regulation is defined as "any rule or standard that an issuer ¹¹ by law is authorized to issue," including "any amendment to an existing regulation." § 2A-13(h). To be effective, it "must be adopted under one of the 3 methods" set out in § 2A-15(f) ¹², in addition to meeting the other requirements imposed by Article II and by law, § 2A-15(a), i.e, contain no more than one subject, § 2A-15(b), and, pursuant to § 2A-15(c), the issuer shall have published in the Montgomery County Register, see § 2A-13(g) and § 2A-19, the following:

(1) A summary of the proposed regulation;

(2) The place where a copy of the proposed regulation may be obtained;

(3) The date, time, and place of any public hearing;

(4) The name and address of a person to whom comments may be directed;

(5) The deadline for submitting comments;

(6) A citation of the Section of the County Code that authorizes the adoption of the regulation; and

(7) A reference to the procedural method used to adopt the regulation.

Finally, the issuer must publish the final action taken on the regulation, summarizing any substantive changes made during the process, within 45 days of that action. § 12-15(i).

Temporary regulations are also contemplated. § 2A-15(j). ¹³ When an issuer determines that "[a] public or fiscal emergency requires its adoption" or that "[t]he public interest will be materially harmed if the regulation does not take effect immediately," § 2A-15(j)(1), a regulation temporary in duration--no more than 90 days--subject, upon request, and for a compelling reason, to being extended for an additional 90 days by the County Council, § 2A-15(j)(3)(B) and (4), may be adopted and issued. § 2A-15(j)(2). If notice of its adoption is published in the next available issue of the Register, the regulation need not meet the requirements of § 2A-15(c) and (f). It is effective when the County Council receives a copy from the issuer, along with "an explanation why its immediate adoption without public comment or Council review is necessary." § 2A-15(j)(3)(A).

Section 2A-18 addresses the compilation of the regulations. It provides that, among other matters, "[e]ach regulation issued by the Executive or any person or agency that issues regulations under this Article" be included in a Code of Montgomery County Regulations ("COMCOR"), see § 2A-13(d), which the Chief Administrative Officer of the County is required to publish. § 2A-18(a). Moreover, each regulation adopted during the year, along with a revised COMCOR index, must be published in a supplement to COMCOR at least once a year. § 2A-18(c).

Three county agencies or officials authorized to issue regulations are relevant to the inquiry sub judice: the County Executive; the Police Department; and the Ethics Commission. Pursuant to...