MTA v. Hayden

• Citation: 784 A.2d 627,141 Md. App. 100
• Decision Date: 02 November 2001
• Docket Number: No. 2260,2260
• Parties: MASS TRANSIT ADMINISTRATION v. Paul HAYDEN.
• Court: Court of Special Appeals of Maryland

784 A.2d 627

141 Md. App. 100

MASS TRANSIT ADMINISTRATION v. Paul HAYDEN.

No. 2260, Sept. Term, 2000.

Court of Special Appeals of Maryland.

November 2, 2001.

Irwin Brown, Baltimore, for appellant.

Michael Marshall (Schlachman, Belsky & Weiner, P.A., on the brief), Baltimore, for appellee.

Argued before ADKINS, CHARLES E. MOYLAN, Jr., (Retired, Specially Assigned) and PAUL E. ALPERT (Retired, Specially Assigned), JJ. ADKINS, Judge.

This case involves a police officer's efforts to protect his right to summon a witness to a disciplinary proceeding. It requires that we construe section 734 of the Law Enforcement Officers' Bill of Rights ("LEOBR"), Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 734, and address how the right of appeal in that section inter-relates with an appeal under section 732 of LEOBR.

This appeal presents two questions I. Did appellee have standing to bring a petition for pre-hearing relief under LEOBR section 734?

II. May the circuit court disturb a final administrative decision based on a petition brought under section 734 of LEOBR, or may it only alter a final agency decision when presented with an appeal under section 732?

We conclude that appellee had standing to file a petition under section 734 because he was denied the right to summon a witness under LEOBR section 730(j). Further, we hold that the circuit court, in the course of deciding appellee's section 734 appeal, properly vacated the decision on the merits of the disciplinary case. We shall affirm the circuit court's decision to remand appellee's case for a new administrative hearing.

FACTS AND LEGAL PROCEEDINGS

Maryland Transit Authority ("MTA"), appellant, employed Paul Hayden, appellee, as a transit law enforcement officer. Hayden was assigned to the Light Rail Division. MTA charged Hayden with several violations of agency policy, including failing to carry a weapon while responding to a call, improperly using emergency equipment on a police vehicle, and inadequately supervising subordinates. An administrative hearing to consider these charges was originally scheduled before a hearing board convened under LEOBR for May 7, 1999, but later rescheduled to July 2, 1999. Because the officer originally named to chair the hearing board retired, Lt. Richard Wheeler was appointed chair in his place, by order dated May 16, 1999.

Hayden testified that he learned Wheeler had been appointed as substitute chair on May 21, 1999. He also claimed that he had provided a list of mitigation witnesses, including Lt. Wheeler, to his attorney on April 28, 1999. Hayden included Lt. Wheeler on the witness list because he had worked for him for a period of approximately eight years, and believed that he would be able to testify as to Hayden's work habits during that time. At the time he submitted the witness list to his attorney, Hayden believed another officer would be chairing the hearing board. Hayden did not file his witness list with MTA, however, until June 22, 1999.

After seeing his name on Hayden's witness list, Wheeler asked Hayden whether it was a mistake that his name was included on the list. It is unclear from the record exactly when this conversation took place. According to Wheeler, Hayden responded that his attorney had advised him that putting Wheeler's name on the witness list would mean Wheeler would have to withdraw as chair of the hearing board. Wheeler then sought the advice of MTA counsel. He had no further personal contact with Hayden until the hearing.

A preliminary meeting was scheduled for July 1, 1999, "to discuss all outstanding issues." Hayden testified that he received notice of this meeting by letter, and that he was aware the issue of Wheeler being named as a witness would come up at that meeting. Neither Hayden nor his attorney attended the meeting.

The next day, on July 2, 1999, the administrative hearing was commenced. Both Hayden and his attorney were present. At the start of the hearing, the hearing board addressed Hayden's preliminary motion to sequester witnesses, including Wheeler. The board noted that this motion raised the issue of whether Wheeler could be summoned and, therefore, whether Wheeler could continue to chair the hearing board. At the end of the hearing, Wheeler stated that he would remain chair of the hearing board, and that the board would not issue a summons requiring him to testify.

After meeting with the Board members and consulting with the Board's legal advisor ..., the decision of the Board was not to issue a summons for Lt. Wheeler as it is an improper use of a summons to change a Board member and that I will remain as the Board Chairman and reaching a decision in this case, it is on the record that the Board will restrict all conclusions to the evidence as presented to the Board and nothing else.

In response, Hayden's attorney advised that he would be going to court that day to get a show cause order. Wheeler then replied, "O.K. I presume at this point the Board will sit in adjournment and re-proceed whenever the court's made a decision. Would that [be] a correct response." At this point, all parties agreed to await the circuit court's decision on Hayden's section 734 petition. The hearing board adjourned until October 14, 1999, to allow time for that resolution.

Four days later, on July 6, 1999, Hayden filed a petition in the Circuit Court for Baltimore City seeking an order "to show cause why he should not be afforded his rights under the LEOBR to call witnesses of his choice." The court issued a show cause order on July 9, 1999. MTA answered the order on August 3, 1999.

The circuit court did not hold a hearing on Hayden's section 734 petition before the October 14 date that the hearing board set to reconvene. On October 20, 1999, Lt. Wheeler notified Hayden that the hearing board would proceed with the disciplinary hearing. In a letter to Hayden's attorney, Wheeler explained why.

MTA has consistently attempted to elicit any proffer of testimony which you would expect in my role as a potential witness. You have refused to attend a pre-hearing meeting in an attempt to resolve this, and ... I have no personal knowledge as to your client's performance which would enable me to be a competent witness on his behalf. I still await to hear any proffer from you to the contrary.

Because of this, there seems to be no valid reason why this administrative proceeding can't proceed as planned.... We will convene the Board as previously scheduled. At that time, if a proffer is made which would indicate that I, as Chairman of the Board, could be a competent mitigation witness on your client's behalf, then, and only then, will this Board take action to ensure that a replacement Chairman is appointed.

The next day, on October 21, 1999, the hearing board resumed the disciplinary proceedings against Hayden. With the circuit court proceeding on Hayden's petition under section 734 still pending, the hearing board, chaired by Wheeler, considered MTA's charges of misconduct. Neither Hayden nor his attorney was present at the hearing. On October 26, the board found Hayden guilty of the three charges against him, and recommended a 14 day suspension. On February 17, 2000, the police chief adopted that recommendation, and ordered Hayden's suspension.

More than one year after the hearing board issued its recommendation, on October 27, 2000, the circuit court issued its decision on Hayden's petition. It reversed the hearing board's decision to deny Hayden's request to summon Wheeler, and vacated the disciplinary order against Hayden. MTA filed this appeal.

DISCUSSION

I.

The Hearing Board's Denial Of Appellee's Request To Summon Lt. Wheeler As A Witness Under LEOBR Section 730(j)

LEOBR was enacted "to guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal." Abbott v. Admin. Hearing Bd., 33 Md.App. 681, 682, 366 A.2d 756 (1976),cert. denied, 280 Md. 727 (1977). Section 734 of LEOBR provides that

[a]ny law enforcement officer who is denied any right afforded by this subtitle may apply at any time prior to the commencement of the hearing before the hearing board ... to the circuit court of the county where he is regularly employed for any order directing the law enforcement agency to show cause why the right should not be afforded.

The purpose of section 734 is "to enforce the accused officer's rights under the Act, not to restrict the agency's legitimate right to discipline errant officers." Cochran v. Anderson, 73 Md.App. 604, 616, 535 A.2d 955 (1988).

In his petition to the circuit court, Hayden asserted that the hearing board denied his right to summon an important witness under LEOBR section 730(j),¹ by refusing to summon Wheeler as a witness, or to force Wheeler to withdraw as chairman of the hearing board. The circuit court agreed. Based on Hayden's section 734 petition, it reversed the hearing board's denial of the summons, vacated the disciplinary order, and remanded for a new administrative hearing.

On appeal, MTA asserts that at the time Hayden filed his petition in the circuit court, he had not been "denied any right afforded" under LEOBR. Without such a denial, it argues, Hayden had no standing to seek relief under section 734. MTA relies on the hearing board's request that Hayden submit a proffer of Wheeler's expected testimony before the board ruled on Hayden's request to summon Wheeler as a witness. It insists that because Hayden failed to respond to the board's proffer request, the board never actually denied Hayden the right to call Wheeler as a witness.

We are not persuaded by MTA's contentions. Requiring a proffer before issuing a summons in an administrative hearing is approved procedure. See Forman v. MVA, 332 Md. 201, 208, 630 A.2d 753 (1993)

. There is nothing in the record, however, to indicate that the hearing board requested a...