Maryland State Police v. Zeigler

• Decision Date: 01 September 1991
• Docket Number: No. 9,9
• Citation: Maryland State Police v. Zeigler, 330 Md. 540, 625 A.2d 914 (Md. 1991)
• Parties: MARYLAND STATE POLICE v. John M. ZEIGLER. ,
• Court: Maryland Court of Appeals

Page 540

330 Md. 540

625 A.2d 914

MARYLAND STATE POLICE v. John M. ZEIGLER.

No. 9, Sept. Term, 1991.

Court of Appeals of Maryland.

June 7, 1993.

Diane Krejsa, Asst. Atty. Gen., Baltimore, argued and on brief (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Betty A. Stemley, Asst. Atty. Gen., Pikesville, on brief), for petitioner.

Byron L. Warnken and David L. Moore, Baltimore, argued, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ELDRIDGE, Judge.

The issue before us in this case is whether an administrative agency may reopen a contested case, after the hearing and after beginning its deliberations but before rendering a decision, in order to take additional testimony.

I.

John M. Zeigler is a first sergeant in the Maryland State Police (MSP). During 1986 and 1987, he was assigned to its Training Division as an instructor at the Police Academy.

On the evening of December 18, 1986, Zeigler stopped by the Police Academy to retrieve a forgotten item. While at the Academy he looked for, but could not find, Corporal Barry L. Smith, the Academy Duty Officer. He also discovered that one of the trainees at the Academy, Trooper Probationer Susan Lutz, was missing. Zeigler called First Lieutenant Stephen Geppi, and then Captain Patrick Bucher, and learned that neither officer had given Smith permission to leave his post. ¹

Captain Bucher told Zeigler that he should make a note of the incident and that they would discuss it in the morning. Zeigler hand wrote a report about the incident and submitted it the next morning, December 19, 1986, to Second Lieutenant J. Scott Whitney, his immediate supervisor. The report stated as follows:

"The duty officer tour begins at 4:00 p.m. on the date one is scheduled and continues until 8:00 a.m. on the following day.

"On December 18, 1986, Cpl. B.L. Smith was scheduled as the duty officer for the Police Academy. This writer arrived at the Academy at approximately 8:00 p.m. to pick up some forgotten items. Shortly after arriving, it was brought to my attention by Tpr. (P) Hollister, 92nd recruit class, that a classmate was missing and the whereabouts of that classmate, as well as Cpl. Smith, were unknown.

"A check was made of the compound for Cpl. Smith with negative results. Further investigation into the matter revealed that Cpl. Smith had been missing since approximately 7:30 p.m. Contact was made with Captain Bucher, Commander of the Training Division, and he was apprised of the situation. A message was then left by this writer for Cpl. Smith to contact Capt. Bucher upon his return."

Later that day, Zeigler was in the barracks in the room which he shared with Smith. Zeigler came across a note addressed to Smith from Lutz concerning a planned rendezvous between them. Zeigler left the note where he found it. That evening, Zeigler asked Smith where he had been the previous night. Smith told Zeigler that he had been out to dinner with Lutz and her family. Smith also told Zeigler that he and Lutz were romantically involved and planned to marry.

At a party that evening, Lieutenant Whitney observed Smith and Lutz holding hands. Whitney initiated an investigation into the entire incident, and asked Zeigler to write a report detailing his knowledge of Smith's unauthorized absence. ² On December 24, 1986, Zeigler submitted a typed version of the report which he had first submitted on December 19. Zeigler did not add any of the subsequently discovered information regarding Smith's whereabouts or about Smith's romance with Lutz.

As part of his investigation, Whitney served Smith with a "Notification of Complaint" regarding his unauthorized absence and his relationship with a trainee, and asked him to prepare a report. Smith prepared the report as requested. Several days later, however, Captain Bucher instructed Smith to complete another report, this time addressing only the unauthorized absence. Bucher expressed concern that Smith's rights had been violated by some aspects of the investigation into his romantic involvement with Lutz. Smith signed a new report which did not discuss the romantic involvement issue.

Bucher asked Zeigler to prepare an addendum (called an "indorsement") to Smith's new report. This indorsement stated as follows:

"On December 18, 1986 Cpl. B.L. Smith was scheduled to be the Police Academy Duty Officer and was to be on the Headquarters compound from 1600 hours on December 18th through 0800 hours on December 19, 1986.

"On December 18, 1986 at 2000 hours, I arrived at the Police Academy and was unable to locate Cpl. Smith. I soon learned that one of the recruits, Tpr. (P) Susan Lutz, was also missing from the compound.

"At approximately 2030 hours, I contacted 1/Lt. Geppi at his residence and learned that he neither gave Cpl. Smith permission to leave the compound nor knew of Cpl. Smith's whereabouts. I then contacted Captain Bucher and advised him of the situation.

"On December 19, 1986, I spoke with Cpl. Smith regarding his whereabouts the previous evening. Cpl. Smith replied that he left the compound for approximately two hours to eat dinner with Tpr. (P) Lutz and her family. Cpl. Smith further explained that a romantic relationship had developed between him and Lutz and that it was his intention to marry her.

"It is my feeling that Cpl. Smith committed a serious violation by leaving his assignment, and that he should be disciplined accordingly. I have attached an appropriately completed MSP Form 181 (Notification of Charges)."

Captain Bucher submitted Smith's revised report and Zeigler's indorsement to Lieutenant Colonel James A. Jones, Chief of the Services Bureau. No mention was made of Smith's initial report or of other information about Smith's romance with Lutz.

In February 1987, Zeigler discussed the whole matter with Captain W.R. Presley, Commander of the Staff Inspections Unit. Zeigler revealed that Smith had made a prior report which disclosed information about his romance with Lutz. Presley, apparently suspecting a cover-up of charges stemming from the romance, initiated an investigation into the Training Division's handling of the Smith matter.

On March 3, 1987, and March 16, 1987, Zeigler was interrogated by Captain Terrance B. Sheridan in connection with this secondary investigation. During the interrogation, Sheridan showed Zeigler the indorsement which he had submitted on January 7th and asked if Zeigler had submitted any other report. Zeigler answered that he had not. In fact, Zeigler had submitted the original December 19th report in addition to the indorsement.

Subsequently, Zeigler was charged with four violations of the MSP administrative regulations. He was alleged to have knowingly given a false response to Captain Sheridan's question during the interrogation, which constituted a violation of the prohibition against submission of a false report. ³ He was alleged to have failed to include all relevant information in his report, in violation of the prohibition against the submission of an incomplete report. ⁴ He was accused of interfering with the investigation into Smith's alleged misconduct by instructing a witness not to discuss the case with the investigators. ⁵ Finally, he was charged with neglecting his duty by not taking appropriate action to bring Smith's conduct to the agency's attention. ⁶

Initially, a five member hearing board was convened to hear the charges against Zeigler and charges against Lt. Geppi and Capt. Bucher. Zeigler successfully brought an action in the Circuit Court for Baltimore County to have a separate, three member hearing board established. See Maryland Code (1957, 1992 Repl. Vol.), Art. 27, § 734.

The hearing before the three member board commenced on September 22, 1988. The board heard opening statements from each party, testimony from five MSP witnesses, testimony from eight defense witnesses, testimony from one MSP witness in rebuttal, and closing statements from each party. The board received a total of eighteen exhibits into evidence. After the two-day hearing, the board adjourned to deliberate.

Approximately three and a half hours later, the board reconvened and made the following statement:

"Gentlemen, we have been in deliberation for some time now. We have spent our time reviewing the evidence and testimony that has been given so far in this case. It is the opinion of this board, of each member of this board, that there are additional witnesses who have not been called to this hearing who have evidence or testimony to give which is pertinent to this matter. We feel that it is in the best interest of the defendant and the agency, and in the best interest of fairness for the board to call additional witnesses to this hearing."

The board then announced that it would call Lieutenant Colonel J.A. Jones, Lieutenant Colonel Frank Mazzone, and someone from the personnel department, as additional witnesses. Zeigler's attorney objected to this procedure, stating that it was the duty of the board to decide the case based on the evidence presented by the parties, and that it was highly unusual and unfair for the board to call additional witnesses. The board noted his objection and adjourned.

In the interim before the hearing reconvened, Zeigler filed a written "Motion for Reconsideration," urging the board to reconsider its decision to call additional witnesses. The board reconvened about a month later, on October 18, 1988. At that time, the board allowed Zeigler's attorneys to argue in support of the Motion for Reconsideration. After argument from both sides, the board denied the motion. The chairman of the board stated:

"The board has discussed the argument put forth by ... [First Sergeant] Zeigler. [Counsel], I assure you this board is interested in fairness and the perception of fairness. That is the only reason that we adjourned back on September the 23rd and decided to call additional witnesses....