Hoyt v. Police Com'r of Baltimore City, 40

• Decision Date: 06 January 1977
• Docket Number: No. 40,40
• Citation: 279 Md. 74,367 A.2d 924
• Parties: , 94 L.R.R.M. (BNA) 2309, 80 Lab.Cas. P 54,111 George F. HOYT et al. v. POLICE COMMISSIONER OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

Page 74

279 Md. 74

367 A.2d 924, 94 L.R.R.M. (BNA) 2309,

80 Lab.Cas. P 54,111

George F. HOYT et al. v. POLICE COMMISSIONER OF BALTIMORE CITY.

No. 40.

Court of Appeals of Maryland.

Jan. 6, 1977.

William H. Engelman, Baltimore (Kaplan, Heyman, Greenberg, Engelman & Belgrad and Robert M. Winegrad, Baltimore, on the brief), for appellants.

Millard S. Rubenstein, Asst. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH, JJ., and JAMES C. MORTON, Jr., Special Judge.

SINGLEY, Judge.

These consolidated appeals, by 55 former members (the Officers) of the Baltimore City Police Department (the Department), are from an order of the Baltimore City Court which affirmed the action of Donald D. Pomerleau, the Police Commissioner of Baltimore City (the Commissioner), who has dismissed the Officers from the Department because of their participation in a strike against the Department from 11 July 1974 through 16 July 1974. The appeals were initially taken to the Court of Special Appeals. We granted the Officers' petition for the writ of certiorari before the case was heard in that court.

Prior to October, 1973, members of the Department had been represented by two organizations, the Fraternal Order of Police and Local 1195 of the American Federation of State, County and Municipal Employees, AFL-CIO (the Union). In that month, the Commissioner agreed to conduct an election among those members of the Department holding the rank of police officer or police agent to determine whether they wished to be collectively represented and if so, to choose one of the two labor organizations to do so. It was agreed that the organization thus selected would negotiate with the Mayor and City Council of Baltimore City (the City) on matters of salaries and other benefits.

General Order 9-73 of the Department, promulgated by the Commissioner on 10 October 1973, announced that an election was scheduled on 14 November 1973 for the selection of an employee organization and stated that the organization so selected would have exclusive collective bargaining rights for no less than two years.

The order concluded with the following proviso:

'No employee organization or employee shall engage in, initiate, sponsor, support or direct a strike, secondary boycott, 'blue flu epidemics', work slow downs, work stoppages, or similar activities.

'No employee organization or employee shall engage in, initiate, sponsor, support, directly or indirectly, the picketing of Police installations or any of the property of the City of Baltimore.

'If the employee organization shall violate any of the provisions hereof the Police Commissioner will:

(a) revoke the designation of an exclusive representative and said exclusive representative shall be ineligible to participate in elections or be certified as exclusive representative for a period of two years thereafter; and

(b) subject to the approval of the Mayor, City of Baltimore, payroll deductions will not be made for such organization's dues for a period of two years thereafter.'

At the election, the Union was selected as the exclusive bargaining agent. Commencing in January, 1974, the Union initiated negotiations with the City, looking toward the formulation of a contract for the fiscal year beginning 1 July 1974. The negotiations were not successful, and the City's final offer, presented on 30 June 1974, was almost unanimously rejected by the members of the Union.

Negotiations continued but no agreement was reached. Two meetings of the membership were held on 6 July. It was decided to form an 84 member Steering Committee to plan a series of 'job actions' designed to stimulate negotiations: a drastic increase in the issuance of traffic summonses, and the writing of detailed reports on found property, including pennies and abandoned bath tubs. The 'job actions' apparently had the tacit approval of the Commissioner, who hoped to see resumption of negotiations, and the Department cooperated with the Union by arranging for members of the Steering Committee to be relieved from duty in order that they might attend meetings of the Steering Committee.

At the last of these meetings, held at 1:00 p. m. on 11 July, it was decided to call a strike. The Strike began in the Department's Southwestern District at 8:00 p. m. when 39 officers on the 4:00 p. m. to midnight shift returned to the police station, turned in their equipment, and were followed by 33 members of the Tactical Section. ¹ Officers walked off their jobs in almost every district, so that by 11:30 p. m. 162 men were out. On subsequent days, others refused to report for duty so that ultimately the total number participating in the strike was 901. This was 36% of the number of patrolmen in Baltimore City, Baltimore Sun, 13 July 1974, at A. 9 col. 1 (final edition).

At about 11:15 p. m. on 11 July, Judge James Murphy, of the Circuit Court of Baltimore City, issued an injunction prohibiting the strike, and directing that striking officers return to work. This was read at roll calls and to officers on picket lines, and after the strike had ended, the court fined the Union $25,000.00 and the Union's Executive Director $10,000.00 for contempt.

On 14 July, the Commissioner unilaterally terminated the employment of some 91 probationary officers who were on strike. Most of these were later reinstated.

While the strike was in progress, counsel for the Union met on two occasions with the Commissioner, members of his staff and his counsel, to ascertain what disciplinary measures might be imposed upon the striking officers. The Commissioner indicated that the proposed to impose disciplinary measures in varying degrees, depending upon the type of activity in which the officers had engaged and the degree of leadership exercised by each of them.

The strike ended on 16 July. On the following day, the Commissioner notified the Executive Director of the Union, Thomas A. Rapanotti, that the recognition of the Union as exclusive bargaining agent had been revoked and that check-off of dues would cease.

On the same day, the Commissioner spoke to Deputy Commissioner Clarence J. Glauser, who was Deputy Commissioner for Administration in the Department, and, according to Glauser, instructed him 'to head up and establish a special unit to look into the activities of the various members of the Department as relate(d) to their conduct during the strike; and to collect . . . (information) . . . and make recommendations concerning their participation in the strike activity with a view towards discipline action in each case.' Thereafter, this unit opened files for each of the officers who took part in the strike, in which was placed such information as related to the extent of the participation of each officer.

Deputy Commissioner Glauser testified that, generally speaking, the files were divided into several categories: first, those officers who were officials of the Union, members of the Executive Board and of the Steering Committee or shop stewards; second, those officers assigned to the Southwestern District and to the Tactical Division who left their duty posts commencing at 8:00 p. m. on the evening of 11 July; third, those officers who left their posts in other districts; fourth, those officers who had made public statements or had coerced others to strike; and finally, those officers who had been engaged in threatening or intimidating activity on the picket line or were intoxicated or resorted to vulgar or violent conduct. ²

The preparation of the files occupied a period of approximately three months. As the files were completed, Deputy Commissioner Glauser determined which officers should be charged and which officers were guilty of conduct which would justify only a severe reprimand. The files of the officers to be charged were delivered to the office of the Attorney General, who by law is the legal representative of the Commissioner, Code of Public Local Laws of Baltimore City (1969), § 16-15, where charges and specifications were prepared and the cases assigned for hearing before Disciplinary Hearing Boards (the Boards or the Board), consisting of three senior officers appointed in accordance with General Order 70-04 of the Department, as amended 1 July 1974, and Chapter 722 of the Laws of 1974, effective 1 July 1974, the Law Enforcement Officers' Bill of Rights, now Maryland Code (1957, 1976 Repl. Vol.) Art. 27, §§ 727-734.

The first of the disciplinary actions was instituted on 23 July. Thereafter, similar actions were instituted against what ultimately became a group of 170 officers whose removal from the force was sought. ³ All of the officers thus charged were suspended from duty and hearings were scheduled before the Boards until December, which heard the evidence in each case and made formal recommendations to the Commissioner as regards the disciplinary action to be taken. ⁴

The Boards followed what was essentially a two-step procedure. In the first phase, the Boards heard evidence relating to the charges and specifications against each officer and made findings of innocence or guilt. If an officer was found guilty on one or more charges, he was accorded an opportunity to present evidence in mitigation or extenuation, following which the Boards made a recommendation to the Commissioner as to the punishment to be imposed.

In most of the hearings before the Boards, the facts were stipulated. Evidence which was heard in mitigation or extenuation was, in 15 cases, extensively summarized; in 7 cases, minimally summarized; in 21 cases, only the names of the Officer's witnesses were listed, and in 11 cases, no reference was made to the favorable testimony. However, in each case counsel for the Officers was accorded an opportunity to summarize evidence in mitigation or extenuation in a letter to the Commissioner.

In the cases of the 55 appellants here...