Moore v. Town of Fairmount Heights

• Decision Date: 25 July 1979
• Docket Number: No. 115,115
• Citation: 285 Md. 578,403 A.2d 1252
• Parties: Robert M. MOORE v. TOWN OF FAIRMOUNT HEIGHTS, Maryland.
• Court: Maryland Court of Appeals

Page 578

285 Md. 578

403 A.2d 1252

Robert M. MOORE v. TOWN OF FAIRMOUNT HEIGHTS, Maryland.

No. 115.

Court of Appeals of Maryland.

July 25, 1979.

Benjamin R. Wolman, Upper Marlboro (Wolman & Gushee, Upper Marlboro, on the brief), for appellant.

Alexander Williams, Jr., Hyattsville, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH, COLE and DAVIDSON, JJ.

ELDRIDGE, Judge.

The resolution of the dispute in this case depends upon our interpretation of the provisions of two statutes, the Law Enforcement Officers' Bill of Rights, Maryland Code (1957, 1976 Repl.Vol., 1978 Cum.Supp.), Art. 27, § 727 Et seq., and the Police Training Commission Act, Code (1957, 1978 Repl.Vol.), Art. 41, § 70A, relating to which police officers have "probationary status."

The plaintiff-appellant in this case, Robert M. Moore, was hired as a police officer in May 1970 by the Town of Fairmount Heights, located in Prince George's County. He was discharged in October 1974 but was rehired or "reinstated to duty" effective April 1, 1976. Officer Moore began attending the Prince George's County Police Academy in February 1978. According to the testimony below of the Fairmount Heights Chief of Police, Officer Moore's completion of the training course at the police academy was a requirement of the Police Training Commission, a state agency.

In March 1978, Officer Moore was accused by the police academy personnel of cheating on an examination at the academy, and he was told that the academy was going to dismiss him because of the accusation. Moore, according to his testimony below, informed the academy personnel that he wanted to discuss his situation with Fairmount Heights officials, whereupon the academy personnel required him to turn in the equipment and books which he was using. Fairmount Heights terminated Officer Moore's employment in a letter dated May 15, 1978, but effective March 16, 1978, the date he left the academy. The town cited as reasons Moore's withdrawal from the academy, his failure to complete the academy training course, and his failure to report to the Chief of Police. Moore, by counsel, requested that the town give him a hearing, but the request was denied.

Officer Moore then brought this action in the Circuit Court for Prince George's County, requesting a show cause order as to why the town should not be required to afford him a hearing under the provisions of the Law-Enforcement Officers' Bill of Rights and requesting an order enjoining the town from discharging him without first holding a hearing. ¹

The town defended the action principally on the ground that Officer Moore was in probationary status and that an officer in such status is not entitled to a hearing under the Law-Enforcement Officers' Bill of Rights. After a hearing in the circuit court, the trial judge delivered an oral opinion, finding that Officer Moore "was rehired into the force as of" April 1, 1976, that under the Police Training Commission Act, Art. 41, § 70A, he could not, from April 1976 on, attain permanent status until he had completed a training course at an academy, that his failure to complete a training course left him in probationary status at the time of his discharge, and that, therefore, he was not entitled to a hearing under the Law-Enforcement Officers' Bill of Rights. The circuit court expressed the opinion that, in light of Officer Moore's failure to complete the course, the town had no authority to retain him as a police officer.

Following a final judgment denying the requested relief, Officer Moore took an appeal to the Court of Special Appeals. Because the case presented an issue of statutory interpretation not previously dealt with by the Maryland courts, and which could affect a great many police officers in this State, we issued a writ of certiorari before the case was heard in the Court of Special Appeals. We shall affirm.

Before addressing the statutory interpretation question presented, it should be noted that the plaintiff has consistently based his claim of entitlement to a hearing solely on the provisions of the Law-Enforcement Officers' Bill of Rights, Art. 27, § 727 Et seq. At oral argument in this Court, plaintiff's counsel expressly disclaimed any reliance upon the due process clauses of the federal or state constitutions or upon any other grounds except Art. 27, § 727 Et seq. Consequently, we limit our consideration of the matter to the statutory ground asserted. ² In addition, since the Town of Fairmount Heights is the only defendant in this proceeding, we have not considered what procedural rights and remedies, if any, an officer might be able to assert against a government sponsored or approved police training academy which has discharged him before completion of a training course.

As previously mentioned, Supra, n. 1, the Law-Enforcement Officers' Bill of Rights, in § 730 of Art. 27, gives a "law-enforcement officer" the right to a hearing before dismissal. However, § 727(b-1) provides, with exceptions not here relevant, that a "Law-enforcement officer " for purposes of the Act "does not include an officer serving in a probationary status." The term "probationary status" is not defined in the statute, except that § 727(b-1) states that the "term 'Probationary status ' includes only an officer who is in that status upon initial entry into the Department. ³

Although the phrase "probationary status" is not defined in the Law-Enforcement Officers' Bill of Rights, it is dealt with in the statute relating to the Police Training Commission, Art. 41, § 70A. This Act establishes the Police Training Commission as a state agency within the Department of Public Safety and Correctional Services, § 70A(b). In § 70A(d), the Commission is authorized, Inter alia, to establish standards for the approval of state, regional, county and municipal police training schools (§ 70A(d)(1)); to approve such schools, inspect them from time to time and revoke approvals (§ 70A(d)(2)); to prescribe courses of study, attendance requirements, standards for operation, etc. (§ 70A(d)(3)); to prescribe qualifications for instructors (§ 70A(d)(4)); to certify police officers who have satisfactorily completed training programs (§ 70A(d)(5)); to itself conduct and operate police training schools (§ 70A(d)(6)); and to make such rules and perform such other acts as may be necessary or appropriate to attain the objectives of the statute and to carry out the Commission's functions (§ 70A(d)(9) and (13)). Subsection (e) of § 70A provides that a "probationary appointment as a police . . . officer . . . may be made for a total period not exceeding one (1) year for the purpose of enabling such a person seeking permanent appointment to take a training course." Subsection (f) states that no person shall be given "a probationary or permanent appointment as an entrance-level police . . . officer . . . unless such person satisfactorily meets such qualifications as may be determined by the Commission." ⁴

It would seem clear from the language of subsections (e) and (f) of § 70A that one cannot be a permanent police officer for a municipality unless he has taken the police training course at an approved training school. Subsection (e) authorizes only a Probationary Appointment as a police officer (and then for only one year) to enable one Seeking permanent appointment to take a training course. The import of the language is that one cannot Attain permanent status until he has finished the training course. Subsection (f) confirms this. It prohibits giving probationary or permanent status to anyone as an entrance-level police officer unless that person satisfactorily meets the qualifications established by the Commission, and the record in this case discloses without contradiction that one of the qualifications for permanent status required by the Commission is successful completion of a training course.

In arguing that he was in a permanent rather than a probationary status, the plaintiff relies upon his own testimony to this effect in the circuit court:

"Q. Are you serving on your initial probationary status in that department? A. No, sir.

"Q. Are you serving on any sort of probationary status in that department? A. No, sir.

"Q. Have you ever been advised in writing or any other means that you were in fact a probationary officer? A. No."

He also relies upon the following testimony of the town police chief:

"Q. Do you have any records, sir, indicating that he (Appellant) is a probationary officer. Did you ever send him a letter and tell him, for example, he was a probationary officer? A. No, I never sent him a letter.

"Q. It is your testimony then, sir, that there is nothing in your records to show that he is in fact a probationary policeman? A. Nothing that says that he is a probationary policeman."

However, the facts that the plaintiff regarded himself as a permanent officer, that he had not been sent a letter by the...