Sewell v. Norris, No. 1980

• Court: Court of Special Appeals of Maryland
• Writing for the Court: MURPHY, Chief.
• Citation: 811 A.2d 349,148 Md. App. 122
• Parties: Brian SEWELL v. Edward T. NORRIS, Commissioner.
• Docket Number: No. 1980
• Decision Date: 26 November 2002

811 A.2d 349
148 Md. App. 122

Brian SEWELL
v.
Edward T. NORRIS, Commissioner

No. 1980, Sept. Term, 2001.

Court of Special Appeals of Maryland.

November 26, 2002.

811 A.2d 351

Kimberly A. Alley (Schlachman, Belsky & Weiner, P.A. on the brief), Baltimore, for appellant

Peter Saar (Thurman W. Zollicoffer, Jr., City Solicitor, William R. Phelan, Jr., Principal Counsel, Maria E. Korman, Asst. Solicitor and Sean Malone on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., RAYMOND G. THIEME, JR. (Ret'd, specially assigned), WILLIAM W. WENNER, (Ret'd, specially assigned), JJ.

811 A.2d 350

MURPHY, Chief Judge

In the Circuit Court for Baltimore City, Brian Sewell, appellant, an officer in the Baltimore City Police Department (BCPD or Department) charged with departmental violations to be considered by a hearing board, filed a petition in which he requested that the circuit court order that the officers appointed to the hearing board for his case be members of a law enforcement agency other than the BCPD. That request was denied and this appeal followed, in which a single question is presented for our review:

I. WHETHER THE TRIAL COURT WAS LEGALLY CORRECT IN DENYING APPELLANT'S REQUEST FOR A HEARING BOARD COMPRISED OF MEMBERS FROM ANOTHER AGENCY.

For the reasons that follow, we hold that the circuit court erred by denying appellant the relief that he requested. We shall therefore remand for further proceedings before a hearing board comprised of law enforcement officers who are not members of the BCPD.

Background

Appellant began his employment with the Department on October 7, 1993. On September 6, 2001, he was charged with five departmental violations,¹ all of which arose out of an incident that occurred on September 4, 2000, while he was on patrol in Central District and while officers of the BCPD's Internal Affairs Integrity Unit

811 A.2d 352

("IAIU") were conducting a random undercover sting operation.² The IAIU officers placed what appeared to be a package of crack cocaine on a bench in a park located on Presstman Street, made calls to the BCPD about the package, and waited to observe the officers who responded

Although the parties dispute what transpired when appellant arrived,³ he was indicted for perjury and misconduct in office. The criminal charges received extensive publicity, including thirty-three newspaper articles that appeared in the Baltimore Sun between October 5, 2000 and September 12, 2001.⁴ In addition, a break-in that occurred at the IAIU's office in December of 2000 generated intensive media speculation that this crime was related to appellant's case. On January 24, 2001, the State dismissed all criminal charges against appellant. After the dismissal of appellant's criminal charges, the Commissioner expressed the Department's disappointment with the decision not to prosecute appellant, and an intense political battle ensued between the Mayor and the State's Attorney.⁵ In its January 25, 2001 edition,

811 A.2d 353

the Baltimore Sun reported that the Commissioner had "held a news conference the day Sewell was arrested, Oct. 4, using the case to prove he was serious about targeting corruption." This article reprinted the Commissioner's previous characterization of appellant's alleged misconduct as "a horrible breach of the public trust," and quoted the Commissioner as stating that, "We are extremely disappointed in the State's Attorney's decision not to move forward with his [appellant's] case, but defer to their judgment in doing so," [and that the decision to drop the criminal case] "will certainly not deter the efforts of the ... Department in its commitment to root out corrupt police officers and to restore the integrity of the agency."

On October 17, 2001, appellant's attorney sent a letter to the Department's Chief Legal Advisor, citing the public comments made by the Commissioner and the Mayor, and requesting that the officers who would serve on appellant's hearing board be selected from another law enforcement agency. On October 23, 2001, the Chief Legal Officer denied that request.

Judicial Proceedings

On October 29, 2001, appellant filed with the circuit court a Petition to Show Cause, requesting that the circuit court order that the members of the hearing board in appellant's case be selected from another law enforcement agency. The petition asserted that appellant would not be able to have a fair hearing because of the public comments made by the Mayor and the Commissioner. During the hearing on that petition, appellant's attorney stated:

What I'm concerned about is when you have a three-member panel made up from the members of the ... Department ranking from major, lieutenant and someone of equal rank, which would be a police agent, when their boss and his boss have already come out and said he's guilty, I don't believe he can get a fair trial.

* * *

Whether intentionally or unintentionally these members have been with the police department, would like to get promoted within their police department, would like to get positions they would enjoy within their police department.

The circuit court responded by stating:

I understand your point. Let's assume that the wiser course might be for the commissioner to exercise his discretion in the fashion you seek.

What—in the statute what is there to require that he do so by my order? What gives me, empowers me to force him to exercise his discretion? I can say that your position is a wise one.

The circuit court ultimately denied appellant's petition, stating: "Well, I think that your cause here is not an unwise one, but I don't think I have the statutory authority to do, or the case law authority to do what you're proposing given the repercussions." The circuit court filed an order that concluded: "Because there is neither precedent nor law permitting a court to require the Commissioner to exercise his statutory discretion in a particular way, the Petition will be Denied." Appellant filed a notice of appeal on November 19, 2001.

Administrative Proceedings

Appellant's administrative hearing began on November 1, 2001. As a preliminary matter, appellant's counsel moved that the members of the hearing board

811 A.2d 354

recuse themselves because of the pre-hearing publicity and the negative comments made by the Commissioner and the Mayor. The Department's counsel argued that the circuit court had already ruled on this issue. The hearing board's Chairperson denied appellant's request, stating that no BCPD member had put any pressure on him or on the board.

The hearing board proceeded to decide the merits of the administrative charges brought against appellant, and ultimately found appellant guilty of all five charges. The board also recommended that appellant's employment be terminated as a result of each guilty finding. On December 11, 2001, the Commissioner approved the board's recommendation, and terminated appellant's employment with the BCPD. Appellant filed a Petition for Judicial Review of that decision, but the circuit court has stayed that proceeding pending the outcome of this appeal.

Discussion

I.

The Law Enforcement Officers' Bill of Rights ("LEOBR"), Md.Code (1957, 1996 Repl.Vol.) art. 27, §§ 727-734D was enacted by the General Assembly "`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.'" Mass Transit Admin. v. Hayden, 141 Md.App. 100, 107, 784 A.2d 627 (2001) (quoting Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 366 A.2d 756, cert. denied, 280 Md. 727 (1977)).

An officer who is aggrieved of a right protected by the LEOBR may petition the circuit court pursuant to the Md.Code Art. 27, § 734, which provides:

Any 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, either individually or through his certified or recognized employee organization, 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 § 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). Officers have used a " § 734 proceeding" to seek relief from alleged deprivations of a variety of rights.⁶

The LEOBR defines "hearing board" as

811 A.2d 355

A board which is authorized by the chief to hold a hearing on a complaint against a law enforcement officer and which consists of not less than three members, except as provided in paragraphs (2) and (3) of this subsection, 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.

Md.Code Art. 27, § 727(d)(1) (emphasis added).

We must first decide whether the circuit court had the authority to order that the hearing board be comprised of members from a law enforcement agency other than the BCPD. Because the LEOBR does not specifically address this issue, we must apply the canons of statutory interpretation "to discern and effectuate the intent of the Legislature." FOP, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 173-74, 680 A.2d 1052 (1996).⁷ In Mass Transit Admin. v. Hayden, 141 Md.App. 100, 784 A.2d 627 (2001), an officer facing administrative charges requested that a hearing board issue a summons to an officer who was subsequently appointed chair of the hearing board....