Manger v. Fraternal Order of Police, Montgomery Cnty. Lodge 35, Inc.

• Citation: 239 Md.App. 282,196 A.3d 511
• Decision Date: 05 November 2018
• Docket Number: No. 1021, Sept. Term, 2017,1021, Sept. Term, 2017
• Parties: J. Thomas MANGER v. FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, INC.
• Court: Court of Special Appeals of Maryland

239 Md.App. 282

196 A.3d 511

J. Thomas MANGER

v.FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, INC.

No. 1021, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 5, 2018

Argued by: Kathryn Lloyd, Edward B. Lattner, Chief (Marc P. Hansen, County Attorney, John P. Markovs, Deputy County Attorney, Sarah Daken, on the brief), Rockville, MD, for Appellant.

Argued by: Paul T. Stein (Micah L. Kanters, Stein, Sperling, Bennett, DeJong, Driscoll PC, on the brief), Rockville, MD, for Appellee.

Panel: Wright, Nazarian, Arthur, JJ.

Nazarian, J.

The Law Enforcement Officer's Bill of Rights ("LEOBR")¹ provides procedural protections to police officers who are the subjects of internal departmental investigations or disciplinary proceedings. If an officer fears that his rights under the LEOBR may be violated, LEOBR § 3-105 authorizes him to apply to the circuit court for an order directing the agency to show cause why the right should not be granted. If the court finds that the agency violated the officer's rights, it can craft relief appropriate to the circumstances.

In this case, the officer sought, and got, relief beyond what the circumstances supported. Officer John Doe of the Montgomery County Police Department ("MCPD") was charged, among others, with Conduct Unbecoming An Officer after he allegedly engaged in "counter measures" designed to thwart an investigative polygraph test. He filed a petition for an order to show cause in the Circuit Court for Montgomery County, and argued that the Conduct Unbecoming charge violated his right not to consent to the admission of the results of a polygraph in his forthcoming administrative hearing. The court agreed, granted his petition, and struck the charge in its entirety. We see no threshold conflict between the Officer's rights under the LEOBR and the charge itself, however, and reverse.

I. BACKGROUND

Officer Doe² was investigated for soliciting sexual activity from a cashier in a retail establishment in October 2015. As part of the MCPD's investigation, Officer Doe was ordered to submit to a polygraph examination. There is no dispute that MCPD could order him to do so. During the test, Officer Doe is alleged to have engaged in "counter measures" designed to subvert it. His behavior persisted, even after a warning from the person administering the test. The record doesn't reflect the precise actions Officer Doe took to sabotage the polygraph, but we do know the results were rendered "unreadable and inconclusive."

At the conclusion of the investigation, MCPD Chief J. Thomas Manger issued a Notice of Charges against Officer Doe.³ The first five charges related to the alleged solicitation and are not at issue here. Charge # 6 alleged that the Officer committed conduct unbecoming an officer when he attempted to sabotage his polygraph test:

CHARGE # 6 -Rule 14- Conduct Unbecoming

No employee will commit any act which constitutes conduct unbecoming an employee of the department. Conduct unbecoming includes, but is not limited to, any criminal, dishonest, or improper conduct.

Specification: It is alleged that on June 22, 2016 [Officer Doe] intentionally used counter measures during [his] polygraph examination which rendered the polygraph unreadable and inconclusive. [He] continued to use counter measures after being warned by the polygraph operator in an effort to sabotage the examination.

In response to the Notice of Charges, Officer Doe, through the FOP, filed a Petition for Show Cause Order under LEOBR § 3-105, which authorizes officers to seek relief in the circuit court prior to a disciplinary hearing when they believe their LEOBR protections have been violated. The FOP argued that Charge # 6's reference to the "unreadable and inconclusive" polygraph test violated LEOBR § 3-104(m)(1), which prohibits the use of "the results of [a] polygraph examination ... as evidence in an administrative hearing unless the law enforcement agency and the law enforcement officer agree to the admission of the results." Chief Manger responded first that the reference to the inconclusive result merely described the consequences of Officer Doe's counter-measures, not his truthfulness during the test, and second , that the results had not been used as evidence in an administrative hearing (since a hearing hadn't yet been held).

The circuit court agreed with the FOP and found that Charge # 6's reference to the polygraph examination, and especially its reference to the test's "unreadable and inconclusive" outcome, violated Officer Doe's rights under LEOBR § 3-104(m)(1). Because polygraph examinations aren't admissible, the court said, proving interference with the exam itself necessarily would involve proof of the exam results:

The Court of Appeals has decided that the results of polygraph examinations are not admissible. That [is] because they have determined as a matter of Frye-Reed that they are not sufficiently reliable. And that they are not generally accepted and that their reliability is such that in legal proceedings they should not be allowed. They have been ironclad in that determination and have repeatedly and regularly reversed cases, civil, criminal, administrative, when the result issue was mentioned.

The department argues that the inconclusive determination is not a result. I respectfully disagree. Passing it is a result. Failing it is a result. And being unable to complete it because you tried to allegedly submarine it is also a result. But the Court of Appeals has said that the result, period, is inadmissible. Therefore, until if ever the Court of Appeals changes its mind you cannot charge somebody based on that.

The court granted the petition and entered an order striking Charge # 6 in its entirety. The Chief appeals.

II. DISCUSSION

Officer Doe's petition asked the circuit court to do two things: first , to determine whether Charge # 6 violated Officer Doe's rights under LEOBR § 3-104(m)(1), and, second , if it did, to craft an appropriate remedy under LEOBR § 3-105. Those are questions of statutory interpretation and application that we review de novo . Schisler v. State , 394 Md. 519, 535, 907 A.2d 175 (2006).

A. The LEOBR

The LEOBR provides law enforcement officers, such as Officer Doe, with "certain procedural guarantees ... during an investigation or interrogation and any subsequent hearing that could lead to disciplinary action ...." Bray v. Aberdeen Police Dep't , 190 Md. App. 414, 424, 988 A.2d 1106 (2010). An officer who has been charged is entitled to the LEOBR's extensive procedural rights and protections which far exceed those available to the general public because of the special "nature of the duties of police officers ...." Coleman v. Anne Arundel Cty. Police Dep't , 369 Md. 108, 122, 797 A.2d 770 (2002) (quoting Cancelose v. City of Greenbelt , 75 Md. App. 662, 666, 542 A.2d 1288 (1988) ). If an officer's LEOBR protections are violated before the required disciplinary hearing under § 3-107(a),⁴ § 3-105⁵ authorizes the officer to petition the circuit court for relief:

A law enforcement officer who is denied a right granted by this subtitle may apply to the circuit court of the county where the law enforcement officer is regularly employed for an order that directs the law enforcement agency to show cause why the right should not be granted.

* * *

The law enforcement officer may apply for the show cause order ... at any time prior to the beginning of a hearing by the hearing board.

* * *

On a finding that the law enforcement agency obtained evidence against a law enforcement officer in violation of a right granted by this subtitle, the court shall grant appropriate relief.

The LEOBR also authorized the MCPD to order Officer Doe to take a polygraph exam. LEOBR § 3-104(l)(1). If the Officer had refused, the MCPD could have "commence[d] an action that may [have led] to a punitive measure as a result of the refusal." LEOBR § 3-104(l)(2). Even so, the results of a compelled polygraph aren't admissible or discoverable in a criminal proceeding against the officer, LEOBR § 3-104(l)(3), and "may not be used as evidence in an administrative hearing unless the law enforcement agency and the law enforcement officer agree to the admission of the results ." LEOBR § 3-104(m)(1) (emphasis added).

B. The Circuit Court Overstepped By Striking Charge # 6.

Chief Manger contends that Officer Doe's rights under the LEOBR were not violated by the mere fact of Charge # 6, and that because no administrative hearing had yet been held, there could not yet have been any violation of the Officer's right under LEOBR § 3-104(m)(1) to withhold his consent to its use as evidence.⁶ Chief Manger's argument suggests, without quite saying so, that there was nothing for the circuit court to decide, and that the Officer should have waited until after the administrative hearing to raise his issues about the polygraph results. We don't doubt that the Officer could have waited, but he didn't have to: LEOBR § 3-105 specifically vests the circuit court with authority to address (and redress) LEOBR violations before the hearing board takes any action and, depending on the violation at issue, even before the hearing board has an opportunity to act.

The LEOBR gives police officers an "unusual right to appeal to a higher authority before the administrative hearing begins." Mass Transit Admin. v. Hayden , 141 Md. App. 100, 111, 784 A.2d 627 (2001). Consistent with its purpose to provide law enforcement officers with the right to pre-hearing review, § 3-105 specifies that "[t]he law enforcement officer may apply for the show cause order: ... at any time prior to the beginning of a hearing by the hearing board." LEOBR § 3-105(b) (emphasis added). So the plain language of § 3-105 directed the Officer not to wait for the polygraph results to be offered (or admitted) in an administrative hearing. Hayden , 141 Md. App. at 112, 784 A.2d 627 ("[I]f an officer does not petition the circuit court for relief prior to the administrative...