Stover v. PG COUNTY

• Citation: 752 A.2d 686,132 Md. App. 373
• Decision Date: 02 June 2000
• Docket Number: No. 775,775
• Parties: George STOVER v. PRINCE GEORGE'S COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

752 A.2d 686

132 Md. App. 373

George STOVER v. PRINCE GEORGE'S COUNTY, Maryland.

No. 775, Sept. Term, 1999.

Court of Special Appeals of Maryland.

June 2, 2000.

Benjamin R. Wolman and Lynae Turner, Upper Marlboro, for appellant.

Robert J. Mellin, Associate County Atty. (Sean D. Wallace, County Atty., on the brief), Upper Marlboro, for appellee.

Argued before WENNER, HOLLANDER and KENNEY, JJ.

KENNEY, Judge.

Appellant, George Stover, was employed by the Prince George's County Department of Corrections ("the Department"), holding the rank of corporal. The Department charged appellant with eleven violations of the Department's regulations and of the Prince George's County Personnel Law. Appellant requested that an Administrative Hearing Board ("the Board") review these charges. The Board convened on June 26, 29, 30, and July 17, 1998, and found appellant guilty of eight of the charges and not guilty of three. The Board recommended penalties for each of the eight violations; for four of the violations, the recommended penalty was dismissal.

Appellant was dismissed by the Department on August 7, 1998. He appealed the Board's findings to the Circuit Court for Prince George's County. Oral argument on the case was heard on May 14, 1999, and the court subsequently affirmed the Board's findings. Appellant appeals from that ruling.

Facts

Except for periods from 1980 to 1983, and 1987 to 1990, appellant was employed by the Department from January 1978 to August 7, 1998. Immediately before his dismissal from the Department, he worked at the Prince George's County Correctional Center ("the facility"). Appellant's alleged violations of the Department's regulations and of the County's personnel law were:

Charges 1-3: delivering contraband to inmates Nicole Lancaster, Yassmin Lindo, and Debra Anderson.

Charge 4: granting or promising to inmate Nicole Lancaster special privileges or favors not available to all inmates.

Charges 5-7: improper fraternization with inmates Lancaster, Lindo, and Anderson.

Charge 8: committing an act or series of acts which have had or may be reasonably demonstrated to have an appreciable effect on the general public's confidence and/or trust in the Department.

Charge 9: failure to obey an order of a superior officer.

Charges 10-11: making false statements to investigators.

The Board found appellant not guilty of Charges 2, 10, and 11, but guilty of the other eight violations. Its recommended penalties for those eight violations were: for Charge 1, suspension for ten working days; for Charge 3, suspension for ten working days; for Charge 4, a fine of $150; for Charge 5, a fine of $150; for Charge 6, dismissal; for Charge 7, dismissal; for Charge 8, dismissal; and for Charge 9, dismissal.

The Department's Policy and Procedure Manual, pursuant to the County's personnel law, provides that the Director of the Department has the authority to make the final determination on all disciplinary actions. The Director issued a Disciplinary Action Memorandum on August 7, 1998. The Director concurred with the Board's factual findings and acted in accordance with the Board's recommended penalties, dismissing appellant effective immediately. Because of appellant's dismissal, the Director set aside the recommended suspensions and fines.

Issues Presented

Appellant presents three issues for our review:

1. Whether the circuit court erred in affirming the findings of the administrative hearing board as to contraband, fraternization, and an act affecting the public trust despite the absence of substantial evidence to support those findings?

2. Whether the circuit court erred in affirming the decision of the administrative hearing board that George Stover failed to obey a lawful order even though the order violated George Stover's constitutional rights?

3. Whether the circuit court erred in affirming the administrative hearing board's excessive, arbitrary, disparate and capricious penalties?

We find no error and shall affirm.

Discussion

1.

Standard of Review

When reviewing a decision of an administrative agency, this Court's role is "precisely the same as that of the circuit court." Department of Health and Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-304, 641 A.2d 899 (1994)(citation omitted). "Judicial review of administrative agency action is narrow. The court's task on review is not to `substitute its judgment for the expertise of those persons who constitute the administrative agency.'" United Parcel Service, Inc. v. People's Counsel for Baltimore County, 336 Md. 569, 576-577, 650 A.2d 226 (1994) (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 513, 390 A.2d 1119 (1978)).

Rather, "[t]o the extent the issues on appeal turn on the correctness of an agency's findings of fact, such findings must be reviewed under the substantial evidence test." Department of Health and Mental Hygiene v. Riverview Nursing Centre, Inc., 104 Md.App. 593, 602, 657 A.2d 372, cert. denied, 340 Md. 215, 665 A.2d 1058 (1995) (citation omitted). The reviewing court's task is to determine "whether there was substantial evidence before the administrative agency on the record as a whole to support its conclusions." Maryland Commission on Human Relations v. Mayor and City Council of Baltimore, 86 Md.App. 167, 173, 586 A.2d 37,cert. denied, 323 Md. 309, 593 A.2d 668 (1991). The court cannot substitute its judgment for that of the agency, but instead must exercise a "restrained and disciplined judicial judgment so as not to interfere with the agency's factual conclusions." State Administration Board of Election Laws v. Billhimer, 314 Md. 46, 58-59, 548 A.2d 819 (1988),cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989) (quoting Supervisor of Assessments of Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 625, 547 A.2d 190 (1988)).

The reviewing court's analysis has three parts:

1. First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order "is premised solely upon an erroneous conclusion of law."

2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency's factual findings to determine if they are supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. At this juncture,... "it is the agency's province to resolve conflicting evidence, and, where inconsistent inferences can be drawn from the same evidence, it is for the agency to draw the inference."

3. Finally, the reviewing court must examine how the agency applied the law to the facts. This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is "whether, ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles]."

Comptroller of the Treasury v. World Book Childcraft Int'l, Inc., 67 Md.App. 424, 438-439, 508 A.2d 148, cert. denied, 307 Md. 260, 513 A.2d 314 (1986) (quoting Ramsay, Scarlett & Co., Inc. v. Comptroller of the Treasury, 302 Md. 825, 834-838, 490 A.2d 1296 (1985)).

Charges 1 and 3

The Department's Policy & Procedure Manual ("the Manual") defines "contraband" as:

Any item, material, substance, or other thing of value that is not authorized for inmate possession by the Director or his Designee or is brought into the facility in a manner prohibited by departmental policy and procedure.

Section 3.2(IV)(B)(3) of the Manual provides: "Contraband will not be given or made accessible to inmates. Anything not issued to inmates or authorized for their use will be considered contraband." In this context "contraband" has no criminal connotation.

Appellant was found to have violated this provision by handing out certain cards to Nicole Lancaster and Debra Anderson at the facility. Both appellant and appellee describe these cards as "business cards," but appellant also calls them "ministerial cards." Appellant is a lay minister in his church, Restoration Temple. The cards, apparently in the size and shape of standard business cards, listed the name of appellant's church and the phone number that appellant uses for ministerial functions. This number rings at appellant's home, but it is a different line than that used by appellant and his family for personal calls.

At the Board hearing, Nicole Lancaster testified that, while she was an inmate at the facility, appellant gave her "a business card for Minister Stover" with a phone number on it.

Debra Anderson testified that she was incarcerated at the facility several times during 1997 and 1998. She answered affirmatively when she was asked if appellant gave her "a business card." She testified that the card had appellant's name and phone number on it; she did not notice if it referred to him as a minister.

Appellant testified that he has given inmates his business/ministerial cards. Based upon the testimony of these witnesses, we hold that the Board had substantial evidence upon which it could find appellant had given inmates "contraband" as that term is defined in the Department's Manual.

Charge 4

Section 3.2(B)(4) of the Manual provides: "Personnel will not grant or promise to an inmate special privileges or favors not available to all inmates."

At the Board hearing, Ms. Lancaster testified that on the day she was released from the facility, but before her release, appellant allowed her to use an office phone at the facility to call her mother in Utah and a cousin at an undisclosed location "so I could have someone come and sign me out." Ms. Lancaster testified that appellant used a phone card, apparently his own, to make the...