Police Com'r of Baltimore City v. Dowling

• Citation: 379 A.2d 1007,281 Md. 412
• Decision Date: 04 November 1977
• Docket Number: No. 41,41
• Parties: POLICE COMMISSIONER OF BALTIMORE CITY v. Leslie P. DOWLING.
• Court: Court of Appeals of Maryland

Page 412

281 Md. 412

379 A.2d 1007

POLICE COMMISSIONER OF BALTIMORE CITY v. Leslie P. DOWLING.

No. 41.

Court of Appeals of Maryland.

Nov. 4, 1977.

Millard S. Rubenstein, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellant.

Herbert R. Weiner, Baltimore (Gomborov, Steinberg, Schlachman & Diener, Baltimore, on the brief), for appellee.

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

SMITH, Judge.

We shall here hold that the "Law-Enforcement Officers' Bill of Rights" found in Maryland Code (1957, 1976 Repl.Vol., 1976 Cum.Supp.) Art. 27, §§ 727 to 734A does not prevent the Police Commissioner of Baltimore City (the Commissioner) from dismissing an officer notwithstanding a recommendation for a lesser punishment by a hearing board, the Commissioner having made use of the powers vested in him under Code of Public Local Laws of Baltimore City (1969) §§ 16-1 to -40.

Appellee, Leslie P. Dowling (Dowling), takes no issue in this Court with the finding which was made by a Baltimore City Police Department hearing board (the board) that he had made false statements and misrepresented facts when he convinced a member of that department, contrary to the actual fact, that he was engaged in undercover work for the department. His defense was that he was joking, a defense which failed to convince the board. It recommended that he serve 80 hours of extra duty without pay. Appellant, the Commissioner, disapproved the recommendations of the board and directed that Dowling's employment be terminated.

Dowling appealed to the Baltimore City Court. There a trial judge "concluded . . . that the Law-Enforcement Officers' Bill of Rights permits only a direct judicial review of the actions of the hearing board but does not permit the Police Commissioner of the Baltimore City Police Department to increase the penalty imposed by that board." Accordingly, he reversed and directed reinstatement of "the action of the Department Trial Board of August 22, 1975 . . . ."

Article 27, § 727(b) includes within its definition of a "law-enforcement officer" a member of the Baltimore City Police Department. "Hearing Board" is defined by § 727(c) as:

"(A) board which is authorized by the chief (of police) to hold a hearing on a complaint against a law-enforcement officer and which consists of not less than three members, all to be appointed by the chief and selected from law-enforcement officers within that agency, or law-enforcement officers of another agency with the approval of the chief of the other agency, and who have had no part in the investigation or interrogation of the law-enforcement officer. At least one member of the hearing board shall be of the same rank as the law-enforcement officer against whom the complaint has been filed."

Section 728(b) is concerned with the procedures to be followed relative to investigation of a law-enforcement officer. Under § 730(a) an officer is to be notified "that he is entitled to a hearing on the issues by a hearing board" if, as a result of investigation or interrogation, a recommendation "such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure" is contemplated. An exception to this is made "in the case of summary punishment or emergency suspension as allowed by § 734A . . . ." The remaining subsections of § 730 deal with the mechanics of such a hearing.

The portion of the statute which it is said precludes the action of the Commissioner here is § 731 stating:

"Any decision, order or action taken as a result of the hearing shall be in writing and shall be accompanied by findings of fact. The findings shall consist of a concise statement upon each issue in the case. A copy of the decision or order and accompanying findings and conclusions, along with written recommendations for action, shall be delivered or mailed promptly to the law-enforcement officer or to his attorney or representative of record."

Section 732 provides that "(a)ppeal(s) from decisions rendered in accordance with §§ 730 and 731 sh(ould) be taken pursuant to Maryland Rule B2."

The Commissioner is appointed by the Governor of Maryland. Such has been the case for many years. ¹. The statutes providing the power and authority of the Commissioner and regulating the conduct of the Police Department of Baltimore City are enactments of the General Assembly of Maryland, just as the Law-Enforcement Officers' Bill of Rights is such an enactment. The laws relative to the Police Department of Baltimore City were extensively revised by Chapter 203 of the Acts of 1966, being then codified as Charter and Public Local Laws of Baltimore City (1949 ed.), (Article 4 of the Code of Public Local Laws of Maryland (1930 ed.)) where they appear as §§ 526-542, now Code of Public Local Laws of Baltimore City (1969) §§ 16-1 through -40. The powers of the Commissioner generally are found in § 16-7. Under § 16-7(7) he has the power to "discharge all members of the Department in the manner prescribed by law." This "manner" is found in § 16-11, providing for disciplinary proceedings, which states, among other things, that "(n)o member of the Department may be . . . dismissed or removed except after written charges have been preferred, reasonable notice provided, and full opportunity afforded to be heard in his own defense, either before the Commissioner, or before a Disciplinary Board which may be created by him, consisting of such members of the Department as he may from time to time determine." The statutory requirements relative to the conduct of hearings concerning a police officer in Baltimore City are similar to those provided in the Law-Enforcement Officers' Bill of Rights. Subsections (c) and (d) of § 16-11 are here relevant:

"(c) Punishment. The Commissioner, or Disciplinary Board, shall be empowered, after such disciplinary hearings, to impose such punishment as shall be deemed appropriate under the circumstances, including, but not limited to, dismissal or removal from the Department, fine or forfeiture of pay or leave time, reduction in rank, grade, or position, assignment of extra duty, or any other punishment deemed proper by the Commissioner or the Board.

"(d) Review. The Commissioner shall be empowered to review the findings and conclusions of the Disciplinary Board in connection with any disciplinary hearing held before it and he may, in his discretion, affirm, reverse, or otherwise modify the action taken by the Disciplinary Board."

The trial judge noted that Art. 27, § 732 provides that an "(a)ppeal from decisions rendered in accordance with Sections 730 and 731 shall be taken pursuant to Maryland Rule B2" and then said:

"Section 730 deals exclusively with the proceedings before the hearing board. Section 731 . . . requires the findings and recommendations 'of the hearing' to be delivered to the law enforcement officer or his attorney. No mention is made in either Section 730 or 731 of the police commissioner or of any further administrative review following the hearing board proceedings. In the total context of Sections 730 through 732, the use of the word 'recommendations' can be reasonably meant to contemplate the possibility of an appeal by the law enforcement officer, the person to whom the recommendations are sent; but if no appeal is forthcoming, the 'recommendations' will become operative.

"If the Legislature meant that the 'recommendations' were to be reviewed by the department head, it could easily have said so. Indeed, in the 1976 session of the General Assembly, a bill was introduced (H.B.No.1564) to amend Sec. 731 to expressly provide for review of the hearing board decision by the police chief. This bill did not pass. The Commissioner now attempts to read himself into Section 731, but he cannot do what the Legislature failed to do for him."

Dowling's bases for contending that the Commissioner is without authority to review the actions of a departmental trial board are: (1) the reasoning of the trial judge; (2) that there is an inconsistency between the Law-Enforcement Officers' Bill of Rights and § 16-11, and therefore § 16-11 stands repealed because the Law-Enforcement Officers' Bill of Rights was enacted by Chapter 722 of the Acts of 1974 and § 2 of that act provides, "That all laws or parts of laws, public general or public local, inconsistent with th(at) Act, are repealed to the extent of the inconsistency"; and (3) because Art. 27 "preempts by occupation the entire field of police discipline . . .."

The last argument relies on such cases dealing with preemption as County Council v. Montgomery Ass'n, 274 Md. 52, 333 A.2d 596 (1975), and City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A.2d 376 (1969). What this argument overlooks is that the statutes here in question were both passed by the General Assembly. The preemption doctrine is concerned with enactments by or for political subdivisions on the one hand and public general laws on the other. See McCarthy v. Bd. of Education of A. A. Co., 280 Md. 634, 638, 374 A.2d 1135 (1977). The statute granting the power to the Commissioner here being a public general law, the preemption argument is without merit.

Points one and two are intertwined since there can be no repeal as suggested under the second point unless an inconsistency between the two statutes is found. Accordingly, we shall consider them together.

There is no shortage of holdings of this Court relative to statutory construction. The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In determining that intent the Court considers the language of an enactment in its natural and ordinary signification. Comptroller v. Mandel Re-Election Com., 280 Md. 575, 578-79, 374 A.2d 1130 (1977); Harden v. Mass Transit Adm., 277 Md. 399, 406, 354 A.2d 817 (1976); Md.-Nat'l Cap. P. & P. v. Rockville, 272 Md. 550,...