PRINCE GEORGE'S PD v. Zarragoitia, 179

• Citation: 775 A.2d 395,139 Md. App. 168
• Decision Date: 02 July 2001
• Docket Number: No. 179,179
• Parties: PRINCE GEORGE'S COUNTY POLICE DEPARTMENT, v. Marcos ZARRAGOITIA.
• Court: Court of Special Appeals of Maryland

775 A.2d 395

139 Md. App. 168

PRINCE GEORGE'S COUNTY POLICE DEPARTMENT, v. Marcos ZARRAGOITIA.

No. 179, Sept. Term, 2000.

Court of Special Appeals of Maryland.

July 2, 2001.

Stephen C. Orenstein, Assistant County Attorney (Sean Wallace, County Attorney, on the brief), Palmer Park, for appellant.

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

Argued before MURPHY, C.J., and DEBORAH S. EYLER and CHARLES E. MOYLAN, Jr. (Ret'd Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

The Circuit Court for Prince George's County ruled that a disciplinary action by the Prince George's County Police Department ("the Department"), appellant, against Officer Marcos Zarragoitia, appellee, was time-barred. Specifically, the court decided that the approval, by the Commander of the Department's Internal Affairs Division, of a "Report of Investigation," did not constitute the filing of charges under section 730(b)(1) of the Law Enforcement Officers' Bill of Rights; instead, charges were filed several months later, and outside of the limitations period, when the Department issued a "Disciplinary Action Recommendation." The circuit court entered an order enjoining the Department from taking further action against Officer Zarragoitia.¹ On appeal from that order, the Department maintains that the circuit court's decision was legally incorrect. For the following reasons, we disagree and, therefore, we shall affirm the judgment.

THE LEOBR

Before recounting the particulars of this case, it will be of some help to review the pertinent aspects of the Law Enforcement Officers' Bill of Rights, Md. Code (1957, 1996 Repl.Vol., 2000 Supp.), art. 27, §§ 727-734D ("LEOBR"). The purpose of the LEOBR is "to guarantee certain procedural safeguards to law enforcement officers during any investigation or interrogation that could lead to disciplinary action, demotion, or dismissal." Meyers v. Montgomery County Police Dep't, 96 Md.App. 668, 686, 626 A.2d 1010 (1993) (citing DiGrazia v. County Executive, 288 Md. 437, 452-53, 418 A.2d 1191 (1980); Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682, 366 A.2d 756 (1976)); see also Chief, Baltimore County Police Dep't v. Marchsteiner, 55 Md.App. 108, 114-15, 461 A.2d 28 (1983)

(quoting Nichols v. Baltimore Police Dep't, 53 Md. App. 623, 455 A.2d 446 (1983)). "[T]hose safeguards include standards governing the investigation of complaints against an officer, the right to a hearing following a recommendation for disciplinary action, and standards governing the conduct of such a hearing and the decision of the hearing board." Cochran v. Anderson, 73 Md.App. 604, 612, 535 A.2d 955 (1988) (discussing Abbott v. Administrative Hearing Bd., supra, and citing Elliott v. Kupferman, 58 Md.App. 510, 473 A.2d 960 (1984)).

The LEOBR "looks to what is essentially a two-phase administrative process. The first phase involves an internal investigation to determine whether there is some substance to the complaint or suspicion." Chief, Montgomery County Dep't of Police v. Jacocks, 50 Md.App. 132, 135, 436 A.2d 930 (1981). Section 728(b) governs the manner in which the law enforcement agency conducts this internal investigation, spelling out the conditions under which the agency may investigate and interrogate a law enforcement officer and the officer's rights during the investigatory phase. Id.; DiGrazia, 288 Md. at 439-40,

418 A.2d 1191; Abbott, 33 Md.App. at 682-83,

366 A.2d 756. Sections 730 and 731 govern the second phase, i.e., "an adjudicatory hearing before a departmental hearing board to determine (1) whether the charge itself is valid, and (2) if so, what the punishment should be." Jacocks, 50 Md. App. at 135,

436 A.2d 930; see DiGrazia, 288 Md. at 440-41,

418 A.2d 1191; Abbott, 33 Md.App. at 683,

366 A.2d 756. Under section 731, the final decision is made by the Chief of Police, upon review of the findings, conclusions, and recommendations of the hearing board.

The LEOBR was enacted in 1974. See 1974 Md. Laws Chap. 722. The one-year statute of limitations contained in section 730(b)(1) was added in 1988, by passage of Senate Bill 632. 1988 Md. Laws Chap. 330. Currently, section 730(b)(1) provides:

Limitation of actions.—(1) Administrative charges may not be brought against a law enforcement officer unless filed within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.²

The Floor Report of the Senate Judiciary Committee for Senate Bill 632, at page 1-2, explained the purpose of the bill as follows:

Current law does not provide a time limit for the filing of administrative charges against a law enforcement officer under the Law Enforcement Officers' Bill of Rights.

Testimony indicated that there have been many instances where a law enforcement officer who has committed a minor infraction has had that minor infraction held over his head for an extended period of time, resulting in significant uncertainty as to when, or even if, any disciplinary action is to be taken. The types of minor infractions referred to in this bill include administrative offenses such as improper wearing of a uniform, or not completing or signing a gasoline trip ticket. It is unfair, unreasonable, and serves no useful purpose to allow a supervisor to withhold the filing of such administrative charges indefinitely.

At some point, supervisory officials should be required either to file the administrative charge against the officer or to drop the charge so that the officer is relieved of the anxiety and concern that results from not knowing if or when the charge will be officially brought against the officer.

See also Baltimore Police Department v. Etting, 326 Md. 132, 138, 604 A.2d 59 (1992)

.

FACTS AND PROCEEDINGS

The Incident

On November 23, 1997, Officer Zarragoitia attended a football game at Jack Kent Cooke Stadium (now FedEx Field), in Prince George's County. He was off-duty. During the game, Officer Zarragoitia allegedly got into an argument with a concessions vendor and used derogatory and foul language. Several officers in the Department were working as security for the game. When they responded to the incident, Officer Zarragoitia allegedly used abusive language toward them as well.

Report of Investigation

Captain Ellis G. Jones, the Commander of the Department's Internal Affairs Division, filed a formal complaint against Officer Zarragoitia based on the incident of November 23, 1997. The complaint alleged that Officer Zarragoitia had acted in a manner unbecoming to an officer and had used abusive language. On December 5, 1997, Sergeant Regina Taylor began a formal investigation of the complaint. It was her task to determine whether the allegations were "sustained," i.e., supported by sufficient evidence to warrant proceeding to the adjudicatory stage of the disciplinary proceedings.

Under the Internal Affairs Division Standard Operating Procedures ("SOP"), upon completion of her investigation, Sergeant Taylor was to prepare a final "Report of Investigation" ("ROI"). SOP, at 6. The Department's procedures provide that a ROI is to be prepared regardless of the outcome of an investigation and is to be "submitted to the Commander [of the] Internal Affairs Division, within 90 calendar days of initial assignment, for review." SOP, at 60. The ROI must include:

• [An] accounting of any evidence related to the incident

• [An] incident summary • Opinions as to the legitimacy of the allegations

• Recommendations to dismiss the complaint or recommendation for disciplinary action

• Written statements from all involved persons when pertinent

• If disciplinary action is recommended, [classification of] the violation(s) ... by category.

Department General Orders Manual, § 3/811.05. Although the ROI includes an account of the incident for which the Department may seek a recommendation of disciplinary action before an Administrative Hearing Board ("Board"), it does not require the exact language of the charges or reference the sections of the General Orders Manual or the Prince George's County Code on which the charges may be based. Nor does it necessarily provide a detailed description of the facts underlying the charges.

On June 12, 1998, Sergeant Taylor submitted a ROI to Captain Jones that sustained the allegations against Officer Zarragoitia and recommended that he be charged with one count of unbecoming conduct and three counts of abusive language.

Captain Jones's responsibilities as Commander of the Internal Affairs Division included overseeing internal investigations, reviewing the findings of those investigations, making recommendations based on those findings, and initiating formal disciplinary proceedings against law enforcement officers. On June 22, 1998, Captain Jones approved the ROI respecting Officer Zarragoitia, including Sergeant Taylor's finding that the allegations against him were sustained and her recommendation of charges.

Under section 3/811.05 of the Department's General Orders Manual, once a ROI is approved by the Commander of the Internal Affairs Division, it is to be sent "through the chain of command to the Chief [of Police]." The SOPs also provide that the Commander of Inspectional Services has final approval of all completed investigations before they are submitted to the Chief of Police. SOP, at 7. The Commander of Inspectional Services can uphold, revise, override, or add to the recommended charges. In addition, he can use the ROI to brief the Chief of Police.

Sometime between June 12, 1998, and the end of October 1998, Captain Jones sent the ROI in the Zarragoitia matter to the Commander of Inspectional Services, Major Robert Fuller.³ Major Fuller used the ROI to brief the Chief of Police on the status of the case. On November 5, 1998, Major John Lindsay, who had replaced Major Fuller on October 30, 1998, sent the case file to the Human Relations Committee ("HRC")...