Kearney v. France

• Decision Date: 29 April 2015
• Docket Number: No. 622, Sept. Term, 2013.,622, Sept. Term, 2013.
• Citation: 222 Md.App. 542,114 A.3d 221
• Parties: Towanda KEARNEY et al. v. Wendell FRANCE et al.
• Court: Court of Special Appeals of Maryland

222 Md.App. 542

114 A.3d 221

Towanda KEARNEY et al.

v.Wendell FRANCE et al.

No. 622, Sept. Term, 2013.

Court of Special Appeals of Maryland.

April 29, 2015.

David G. Wright (Kahn, Smith & Collins, PA, on the brief), Pikesville, MD, for appellant.

Lisa O. Arnquist (Douglas F. Gansler, Atty. Gen., on the brief), Pikesville, MD, for appellee.

Panel: KRAUSER, C.J., KEHOE and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

Opinion

KENNEY, J.

This case arises under the Correctional Officer's Bill of Rights (“COBR”), which took effect on October 1, 2010. See Maryland Code (1999, 2008 Repl Vol., 2014 Cum Supp.) § 10–901 et seq. of the Correctional Services Article (“CS”); 2010 Maryland Laws Ch. 194 (S.B. 887). Appellant, Towanda Kearney, appeals from a decision of the Circuit Court for Baltimore City denying her Motion to Revise its order of March 20, 2013, permitting her to exercise rights afforded to her under the COBR. In the Motion to Revise, she requested that the order expressly award back pay and benefits for the period during which she was separated from her employment and litigating her rights under the COBR. In this timely appeal, she presents one question, which we have rephrased slightly:

Did the circuit court abuse its discretion or err as a matter of law when it refused to order the Department of Public Safety and Correctional Services (“DPSCS” or “the Department”) to pay her back pay and benefits after it terminated her employment in violation of her rights under COBR?

The Correctional Officer's Bill of Rights

Before October 1, 2010, the disciplinary procedure for state correctional officers was governed under Title II of the State Personnel and Pensions Article (“SPP”), along with other state employees. The COBR's roots are in the Law Enforcement Bill of Rights (“LEBOR”), which applies to certain police officers of state and local agencies, but which did not extend to any local or state correctional officers. See House Committee on Appropriations Floor Report, S.B. 887 (2010).

In 2008, the General Assembly passed the Cecil County Correctional Officer's Bill of Rights applicable to correctional officers in that county's detention center. See Maryland Laws Ch. 689 (H.B. 1245) (2008). As stated in the Floor Report for House Bill 1245, its provisions “are similar to the provisions of the Law Enforcement Officer's Bill of Rights.” The Floor Report for Senate Bill 887 of the 2010 General Assembly noted the Cecil County legislation under the then current law section of the report. Although provisions of the LEBOR and COBR may differ in certain aspects, we are persuaded that disciplinary cases decided under the LEBOR have instructive value on the question before us in this case. Except under limited circumstances not applicable in this case, both statutes preclude, pending the appeal process provided for in the respective statutes, the implementation of a disciplinary action against a covered officer, of which termination with loss of salary and benefit is one.

Factual and Procedural Background

On April 4, 2012, appellant was serving as a Correctional Officer III (Sergeant) at the Baltimore City Detention Center (“BCDC”), which is a unit of the Maryland State Department of Public Safety. She was the “Officer in Charge” at the receiving area post where detainees in the facility are prepared for transport to different locations. During her shift, a detainee was found unaccompanied in an unauthorized area of the BCDC. It appeared that the detainee had passed through the receiving area and several other presumably secured locations within the facility. This resulted in appellant and other correctional officers being investigated for failing to monitor and account for the detainee and allowing him authorized access to secure locations.

On June 18, 2012, Commissioner France, the appointing authority for BCDC, issued a Notice of Disciplinary Charges (the “Notice”), which gave appellant 15 days to appeal, and if she did not, advised that her failure to appeal “would constitute an election by [her] to accept the imposition of discipline.” The COBR limits the time to bring disciplinary charges against an officer to 90 days (in this case until July 3, 2012). CS § 10–907(a). Appellant was on leave from June 12, 2012, until July 6, 2012. Efforts to provide her with the Notice, including telephone, certified mail, and attempted hand-delivery of the Notice, failed.¹ She returned to work on July 6, 2012. According to appellees, an effort was made to provide her with a copy of the Notice and related paperwork when she returned on July 6, but that she refused to accept it. No further attempts were made to provide her with the Notice. Appellant denied receiving the Notice and refusing to accept and sign for it. She worked her normal shifts after she returned until August 28, 2012. When she did file an appeal, she was issued a final order of termination on August 28, 2012.

Appellant filed a Petition to Show Cause on September 27, 2012, along with a separate Petition for Judicial Review under CS § 10–906(a). The Petition to Show Cause alleged violations of the COBR and, more particularly, that neither she nor counsel or “the agent for the employee organization selected by the correctional officer” had been provided the charges and notice required under CS § 10–908(b) and that as a result she had been denied her “COBR rights to notice and to a hearing before a hearing board.”

In their response to the Petition, the Department and Commissioner France again set forth the attempts to provide appellant with notice beginning on June 26, 2012, with the certified letter to two different home addresses on file with the Department along with personal service attempts at those addresses, and, when there was no response, leaving a copy of the Notice attached to the door of each address. Because appellant had not identified legal counsel or “formally select[ed] an employee organization for service,” they contended that appellant “was not entitled to a hearing before a hearing board because she did not file an appeal of the Notice within 15 days after receiving the charges as required by CS § 10–908(c).”²

A hearing in the circuit court was held on February 6, 2013, and an Order dated March 20, 2013, was issued by the court. The court found: (1) that the appellant was entitled to procedural due process; (2) that the testimony that appellant had refused to sign and acknowledge receipt of the charges upon her return to work was not based on personal knowledge of the Warden or supported by any documentary evidence; and (3) that “posting the Statement of Charges at [appellant's] home under these circumstances does not rise to the level of notice contemplated under CS § 10–908.”³ Therefore, appellant was “entitled to exercise her rights under CS § 10–908(c) ” and the matter was “remanded to the [Department] for further proceedings consistent with [the] order.”

The circuit court's order triggered a series of email correspondence, beginning on March 27, 2013, between counsel for the parties regarding both reinstatement and back pay. The Department reinstated appellant on April 12, 2013, but refused her request for back pay. On April 15, 2013, appellant filed a Motion for Revision of the March 20, 2013 Order, requesting an order expressly awarding back pay.

Appellees responded to the Motion for Revision on April 30, arguing: (1) that appellant had been reinstated and afforded her right to appeal the charges against her; (2) that the court had not ordered back pay and that back pay is not “permitted by law or warranted under the circumstances of this case”; (3) that back pay was not requested and the issue of entitlement of back pay was not adjudicated; and (4) that back pay would be a “windfall” because appellant had received unemployment benefits during the months she was not employed by the Department.

On May 15, 2013, the court denied the Motion for Revision because the “nature of the relief requested” in appellant's petition for Judicial Review and at the February 6, 2013 hearing, but stated that the denial was “made without prejudice to the [appellant's] ability to seek appropriate relief following the resolution of the administrative hearing.”⁴

Discussion

We begin by addressing appellees' assertion that the appeal should be dismissed because the order appealed from is not a final order under Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings Article § 12–301. According to appellees, the “denial of the Motion for Revision did not conclude this action or finally settle [appellant's] rights to back pay and benefits,” because “the order clearly stated that it was without prejudice to [appellant's] ability to seek appropriate relief following resolution of the administrative hearing.”

In arguing that denying appellant's Motion for Revision was not a final judgment for appeal purposes because it “neither determined nor concluded the rights involved nor denied her the opportunity to further prosecute her claimed right to full back pay and benefits,” appellees cite Stuples v. Baltimore City Police Department, 119 Md.App. 221, 240–47, 704 A.2d 518 (1998). Stuples, a police officer was charged with sexual harassment of two female police officers. A hearing board determined that Stuples was guilty of sexual harassment and its recommendation that his employment be terminated was adopted by the Police Commissioner. On a petition for judicial review of the hearing board's determination, the circuit court found that the record supported a finding of sexual harassment and that Stuples's actions justified termination, but that Stuples had not been “properly charged.” Stuples, 119 Md.App. At 227, 704 A.2d 518. The inappropriate conduct had occurred “in the presence of two female police officers,” but it “had not, as charged, been specifically directed at them. ” Id. at 226, 704 A.2d 518 (emphasis in original). The circuit court remanded the case to the...