Stone v. Cheverly Police Dep't

• Decision Date: 31 March 2016
• Docket Number: No. 2526, Sept. Term, 2014.,2526, Sept. Term, 2014.
• Citation: 227 Md.App. 421,134 A.3d 365
• Parties: Earl STONE et al. v. CHEVERLY POLICE DEPARTMENT et al.
• Court: Court of Special Appeals of Maryland

227 Md.App. 421

134 A.3d 365

Earl STONE et al.

v.CHEVERLY POLICE DEPARTMENT et al.

No. 2526, Sept. Term, 2014.

Court of Special Appeals of Maryland.

March 31, 2016.

Ann E. Koshy (Patrick J. McAndrew, Sandra J. Strebel, Law Office of Patrick J. McAndrew, Greenbelt, MD, Brian R. Bregman, Bascietto & Bregman, LLC, Laurel, MD), on the briefs, for Appellant.

Karen J. Kruger (Funk & Bolton, PA, on the brief), Baltimore, MD, for Appellee.

Panel: DEBORAH S. EYLER, WRIGHT and FRIEDMAN, JJ.

DEBORAH S. EYLER, J.

The Cheverly Police Department ("CPD") and Police Chief Harold "Buddy" Robshaw (collectively "the Town"),¹ the appellee, brought disciplinary charges against Corporal Earl Stone and Corporal Edmund Gizinski,² the appellants, pursuant to the Law Enforcement Officers' Bill of Rights ("the LEOBR"), Md.Code (2003, 2011 Repl.Vol., 2015 Supp.), section 3–101 through 3–113 of the Public Safety Article ("PS").³ The officers elected to be tried by a hearing board. Before the trial commenced, they filed suit in the Circuit Court for Prince George's County, pursuant to section 3–105, seeking an order directing the Town to show cause why the charges should not be dismissed. They also asked the court to enjoin the Town from moving forward with the disciplinary charges until the court had ruled.

The court held a hearing and entered an order denying the request for a show cause order and to dismiss the charges, and also denying the request for injunctive relief. The Officers filed a notice of appeal from that order. Soon thereafter, the hearing board trial went forward. The Officers declined to participate. The hearing board found them guilty on all charges. Ultimately, they were terminated from employment as a sanction. Not having participated in the hearing board trial, the officers did not bring an action for judicial review.

The Officers pose two questions for review, which we have rephrased:

I. Did the circuit court err by denying their request for a show cause order and to dismiss the charges against them, when the charges were based on evidence the CPD obtained, in violation of their Fourth Amendment rights?

II. Did the circuit court err by not dismissing the charges against the Officers as being brought in unlawful retaliation for their testimony in favor of a fellow officer?

We shall dismiss the appeal for failure to exhaust administrative remedies.

The LEOBR

The purpose of the LEOBR is 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." Blondell v. Baltimore City Police Dep't, 341 Md. 680, 691, 672 A.2d 639 (1996) (quoting Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682, 366 A.2d 756 (1976) ).

When an investigation or interrogation of a law enforcement officer regarding alleged misconduct "results in a recommendation of demotion, dismissal, [or any other punitive measure], the law enforcement officer is entitled to a hearing on the issues by a hearing board before the law enforcement agency takes that action." § 3–107(a). Ordinarily, the hearing board shall be composed of no less than three law enforcement officers chosen by the chief of police, at least one of whom holds the same rank as the officer charged. § 3–107(c). The chief of police and the hearing board are authorized to issue subpoenas to compel the attendance of witnesses and the production of relevant documents and other evidence. § 3– 107(d)(1). The officer also may request the issuance of subpoenas. § 3–107(d)(3).

At the trial before the hearing board, the law enforcement agency and the officer both shall be given "ample opportunity to present evidence and argument about the issues involved" and shall be permitted to cross-examine witnesses called by the other party. § 3–107(e)(2) & (4). Evidence is admissible if it has "probative value that is commonly accepted by reasonable and prudent individuals in the conduct of their affairs," and is not "incompetent, irrelevant, immaterial, [or] unduly repetitious." § 3–107(f)(1) & (2).

The hearing board's decision "shall be in writing and accompanied by findings of fact." § 3–108(a)(1). If it finds the officer "not guilty," the disciplinary action ends. § 3–108(a)(3). If it makes a finding of guilt, it must reconvene to receive additional evidence, consider the law enforcement officer's past job performance, and make a recommendation to the chief of police about the appropriate sanction to impose. § 3–108(a)(4). Within thirty days of the hearing board's recommendation about a sanction, the chief of police shall issue a final disciplinary order. § 3–108(d).⁴ An officer aggrieved by a final disciplinary order may challenge it in the circuit court, in an action for judicial review. § 3–109(a).

Section 3–103 is entitled "Rights of law enforcement officers generally." One such right, as set forth in subsection (d), is as follows:

Retaliation. —A law enforcement officer may not be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise discriminated against in regard to the law enforcement officer's employment or be threatened with that treatment because the law enforcement officer:

(1) has exercised or demanded the rights granted by this subtitle; or(2) has lawfully exercised constitutional rights.

Finally, as relevant here, section 3–105, "Application for show cause order," allows a law enforcement officer, in certain limited circumstances, to seek judicial intervention other than in a post-decision action for judicial review. Specifically, an officer "who is denied a right granted by [the LEOBR] may apply to the circuit court ... for an order that directs the law enforcement agency to show cause why the right should not be granted." § 3–105(a). The officer only may do so "prior to the beginning of a hearing by the hearing board." § 3–105(b) ; see also Moose v. Fraternal Order of Police, 369 Md. 476, 482, 800 A.2d 790 (2002). If the circuit court finds "that [the] law enforcement agency obtained evidence against [the] officer in violation of a right granted by [the LEOBR], the court shall grant appropriate relief." § 3–105(c).

FACTS AND PROCEEDINGS

In their circuit court action invoking section 3–105, the officers complained 1) that the CPD intended to introduce, at the hearing board trial, evidence against them that was obtained in violation of their Fourth Amendment rights; and 2) that the CPD was pursuing the charges against them in retaliation for their having exercised their First Amendment rights. We shall summarize the facts related to both assertions, which are to some extent overlapping.

From July 16 through 18, 2012, Officer Francis Schmidt, who worked with the Officers, was tried by a hearing board on charges that he was involved in an accident in his police vehicle, but did not report it. The Officers testified on Officer Schmidt's behalf. The trial resulted in an administrative decision to terminate Officer Schmidt's employment. Officer Schmidt filed an action for judicial review.

More than a year later, in November and December of 2013, the Officers were working second jobs for a seasonal Christmas tree business owned and operated by one Elmer Ray Lynn. They formed the security detail for Lynn at his office, which was located in a hotel room at the Howard Johnson's Hotel ("the Hotel") in Cheverly. On November 27, 2013, the CPD issued a memorandum to all officers directing that any secondary employment at the Hotel was to be restricted to the parking lot and lobby areas and that officers were not permitted to enter Lynn's office.

On December 8, 2013, the CPD opened an investigation into whether the Officers were violating the November 27, 2013 memorandum. In the course of the investigation, Sergeant Jarod Towers, the officer in charge, viewed video surveillance footage from the Hotel recorded between November 29, 2013, and December 18, 2013. It showed the Officers entering Lynn's hotel room on more than one occasion. It also showed the Officers socializing with other officers during hours that they were on-duty with the CPD. Sergeant Towers reviewed the daily duty log each Officer had completed at the end of each on-duty shift and determined that the Officers had made false entries on their logs. The entries documented that they were conducting official police business at the very times the video surveillance footage showed them at the Hotel, socializing.

On December 15, 2013, the Officers filed sworn affidavits in favor of Officer Schmidt in an EEOC case he had brought. In that case, Officer Schmidt was claiming that Chief Robshaw had unlawfully retaliated against him after he filed a workers' compensation claim.

On December 18, 2013, Lynn terminated both Officers' secondary employment.⁵ The next day, the CPD issued a new memorandum to its officers prohibiting them from engaging in any secondary employment with Lynn's business.

On December 30, 2013, based on the information Sergeant Towers had obtained, the CPD installed global positional satellite ("GPS") tracking devices on the Officers' individually assigned police cruisers. The GPS devices were affixed without a warrant and without the Officers' knowledge or consent.⁶

In the meantime, Officer Schmidt had argued in his judicial review action that his hearing board had been improperly constituted because a police chief from another law enforcement agency had been a member. The circuit court agreed and on October 15, 2013, issued an order remanding the case for a new trial before a new hearing board. In that hearing board trial, in early March of 2014, the Officers again testified on behalf of Officer Schmidt. On March 7, 2014, the hearing board issued a decision finding Officer Schmidt guilty on several charges.⁷

On July 23, 2014, the CPD served the Officers with Notices of Interrogation in connection with an investigation into allegations of conduct unbecoming, insubordination, false...