In re Pool
| Decision Date | 22 February 2023 |
| Docket Number | 439-2022 |
| Parties | IN THE MATTER OF THE PETITION OF MICHAEL POOL |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City Case No. 24-C-21-004883
Nazarian, Friedman, Wright, Alexander, Jr. (Senior Judge Specially Assigned), JJ.
In April 2020, [*]Michael Pool, a former Baltimore City Police Officer, was charged with various administrative charges after he improperly accessed and disseminated certain records while he was a member of the Baltimore City Police Department in January 2019. Pool elected a trial before the Administrative Hearing Board (the "Board"). During that trial, Pool moved to have the charges dismissed pursuant to the Law Enforcement Officers' Bill of Rights ("LEOBR"), which required administrative charges to be filed within one year.[1] The Board denied the motion on the grounds that the LEOBR allowed for the tolling of the one-year statute of limitations where the acts that gave rise to the charges involved "criminal activity." Pool was subsequently convicted on all charges, and his employment was terminated. Pool thereafter filed a petition for judicial review in the Circuit Court for Baltimore City, and, following a hearing, the court affirmed the Board's decision.
In this appeal, Pool has presented three questions, which we have rephrased and consolidated into a single question for clarity. That question is:
1. Did the Board err in finding that the "criminal activity" exception applied in Pool's case?
For reasons to follow, we hold that the Board did not err. Accordingly, we affirm the judgment of the circuit court.
On January 25, 2019, Pool, who at the time was a Lieutenant in the Baltimore City Police Department (the "Department"), received an electronic message from another officer, Lieutenant Eric Leitch, that contained a "booking photograph" of the Department's former Deputy Commissioner. Two days later, Pool sent the photograph, via text message, to two current and two former Department members. On January 28, 2019, a local resident, Kinji Scott, posted the booking photograph, along with additional confidential information related to the photograph, on Twitter. It was later discovered that the booking photograph and confidential information had most likely been taken from an expunged arrest record housed in the Department's "Arrest Viewer," an internal electronic database used by authorized Department employees to store and access information on arrests and other police-related matters. It was also discovered that Lieutenant Leitch had accessed the Arrest Viewer on January 25, 2019, the same day that he sent the booking photograph to Pool. At the time, Department employees were prohibited from accessing and/or disseminating criminal history records or files, except in the performance of their official duties.
On January 28, 2019, Pool accessed Twitter and discovered Kinji Scott's post containing the booking photograph and confidential information. Using another employee's login information, and without the appropriate authorization, Pool then accessed Arrest Viewer to "see if the picture was actually real." After that, Pool contacted another officer, Lieutenant Deanna Effland, to report the Twitter post. Lieutenant Effland informed Pool that she had already been made aware of the post. That same day, Lieutenant Effland reported the post to her commanding officer and the Department's Public Integrity Bureau ("PIB").
On February 1, 2019, Pool received a letter from the Department's Office of Professional Responsibility, informing him that he was the subject of an internal investigation. The letter indicated that Pool was being investigated for allegedly disseminating and/or accessing restricted records outside the performance of his duties. The letter also stated that Pool had allegedly failed to report serious misconduct by a Department member.
Baltimore City Police Sergeant Anthony Faulk was assigned to investigate the allegations against Pool. During the course of his investigation, Sergeant Faulk discovered that Pool was in possession of a cell phone issued by the Department that was likely relevant to the investigation. Sergeant Faulk subsequently asked Pool to surrender the phone, but Pool never did. Sergeant Faulk later testified that he believed that Pool "was evading or hindering the investigation."
On April 24, 2020, the Department issued four administrative charges against Pool: 1) failure to report misconduct; 2) improperly releasing restricted records; 3) improperly accessing restricted records; and 4) obstructing or hindering an investigation. Pool thereafter requested an administrative hearing before the Board to consider the merits of the charges against him.
Evidence of "Criminal Activity"
At that hearing, Sergeant Faulk testified regarding the allegations against Pool and his investigation into those allegations. Sergeant Faulk testified that his investigation uncovered facts showing that Pool had engaged in misconduct and conduct unbecoming a police officer by: failing to report the existence of the booking photograph after receiving it on January 25, 2019; disseminating said photograph without authorization; accessing Arrest Viewer for an improper purpose; and obstructing the Department's subsequent investigation into the matter.
Sergeant Faulk testified that, while he was conducting his internal investigation, the Office of the State Prosecutor was also conducting a criminal investigation into the matter. Sergeant Faulk stated that he assisted the State Prosecutor by collecting certain Department electronics and by providing certain information as it was collected during the course of his administrative investigation. Sergeant Faulk testified, however, that he was not privy to the details of the criminal investigation. He explained that, ordinarily, when there are parallel criminal and administrative investigations into the same matter, "we have to stay separate." He added that he sometimes may assist in a criminal investigation by seizing evidence on behalf of the prosecutor.
Sergeant Faulk testified that, on or around September 6, 2019, the State Prosecutor sent a letter to the Department. According to that letter, which was admitted into evidence, the Department's Commissioner had referred the case to the State Prosecutor for review. The letter stated: "After consulting with you and reviewing your investigative file in reference to allegations of misconduct in office and other crimes stemming from the dissemination of an expunged arrest record it is our determination no police officer's action constitutes criminal misconduct and we decline prosecution." Sergeant Faulk testified that, in addition to the aforementioned administrative charges, Pool had been administratively investigated for criminal misconduct. Sergeant Faulk stated that, due to the letter from the State Prosecutor, he decided not to pursue the allegation of criminal misconduct.
At the conclusion of that evidence, Pool moved to dismiss the charges pursuant to the LEOBR's statute of limitations. Under the LEOBR, "a law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official." Md. Code, Pub. Safety ("PS") § 3-106(a) (effective through June 30, 2022). The LEOBR included an exception to that rule, which stated that the one-year statute of limitations "does not apply to charges that relate to criminal activity or excessive force." PS § 3-106(b) (effective through June 30, 2022).
Pool argued that the act that gave rise to the charges - his receipt and dissemination of the booking photograph - occurred in January 2019 and that, as a result, the Department needed to bring any administrative charges within one year of that time. Pool argued that the Department failed to meet that deadline because the charges were not filed until April 2020. Pool argued further that the "criminal activity" exception to the statute of limitations did not apply because the Department did not present any evidence that he had been accused of or investigated for criminal activity.
The Department countered that Sergeant Faulk's testimony established that there had been a parallel criminal investigation that concluded on September 6, 2019, when the State Prosecutor sent the declination letter indicating that no officers would be prosecuted. The Department maintained, therefore, that the one-year statute of limitations would not apply in Pool's case.
The Board ultimately agreed with the Department and denied Pool's motion. The Board found that there was "sufficient evidence to show there was, in fact, a criminal investigation."
In the end, the Board sustained all charges against Pool. Pool thereafter filed a petition for judicial review in the circuit court. Following a hearing, the court affirmed the Board's decision. This timely appeal followed.
Parties' contentions
Pool contends that the Board erred in finding that the LEOBR's one-year statute of limitations was inapplicable under the "criminal activity" exception contained in the statute.[2] He argues that, because the administrative charges were not brought within one-year of the acts that gave rise to the charges, the Department was required to prove "with specificity" that the criminal activity exception was applicable. Pool argues that the Department failed to make such a showing and that, consequently, the Board erred as a matter of law in denying his motion to dismiss. Pool also argues that the Board did not make the requisite factual findings to support...
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