MICHAEL FOY v. BALTIMORE CITY DETENTION CENTER
Case No. 1472, September Term, 2016
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
Filed: December 4, 2017
Opinion by Harrell, J. Dissent by Eyler, Deborah S.
Arguеd, 9/12/2017. Circuit Court for Baltimore City, Case No. 24-C-16-000255.
HEADNOTES
JUDICIAL REVIEW – FINAL DECISION OF ADMINISTRATIVE AGENCY UNDER
A remand ordered by a circuit court pursuant to
STATUTES –
STATUTES –
REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 1472
September Term, 2016
MICHAEL FOY v. BALTIMORE CITY DETENTION CENTER
Eyler, Deborah S., Leahy, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Harrell, J.
Dissent by Eyler, Deborah S.
Filed: December 4, 2017
Circuit Court for Baltimore City Case No. 24-C-16-000255
The circuit court (in its remand order) found that:
[Commissioner] Wolfe failed to satisfy the final portion of [
Corr. Servs. § 10-910(b)(6)(ii) ] when the audio equipment failed to capture [Appellant‘s penalty increase meeting] on the record[,] . . . [and] a substantial right of [Appellant‘s] has been prejudiced when the penalty increase hearing, due to the failure ofthe audio recording equipment, was not captured on the record . . . .
(Alteration in original).
In this appeal, Appellant poses the following questions:
- Did Appellee [Commissioner Wolfe] violate Appellant‘s Rights under the COBR when he increased the recommended penalty of the Hearing Board without recording the penalty increase [meeting]; and
- Did the circuit court err in remanding the case to conduct another penalty increase [meeting]?
Foy contends that Appellees violated the COBR when Commissioner Wolfe failed to follow the mandatory requirements of
uncompliant alternative “record.” The window of opportunity for enhancing the Hearing Board‘s recommended sanction closed once Commissioner Wolfe failed to comply with
In its initial response to this judicial review action on appeal, Appellees filed with this court a motion to dismiss asserting that the circuit court‘s order of remand was not an appealable final judgment because the remand contemplated furthеr administrative proceedings. On the merits, Appellees argue that Commissioner Wolfe acted in good faith and complied substantially with the requirements of
His good faith efforts at substantial compliance are represented by a memorandum memorializing what, according to his recollection, was said at the uncaptured penalty increase meeting and his attempts to reschedule the meeting within the allowed timeframe, presumably to rectify the recording equipment malfunction that occurred earlier. In addition, Appellees point also to a lack of any prejudice suffered by Appellant due to the absence of a formal recording.
We deny Appellees’ motion to dismiss. We hold that Appellant‘s COBR rights were violated. Moreover, the circuit court remanded erroneously Appellant‘s case to Commissioner Wolfe to conduct a second, but untimely on-the-record meeting. The proper remedy is to reinstate the Hearing Board‘s penalty recommendation as the final administrative action (the computation of back-pay aside) under the circumstances of this case.
Statement of Facts
On 12 January 2014, Foy, a Lieutenant at the Baltimore City Detention Center (BCDC), was accused of using excessive force against a BCDC inmate.5 On 10 April 2014, the BCDC issued to Foy a notice of disciplinary charges recommеnding his termination.
Commissioner Wolfe received a copy of the Hearing Board‘s recommendation on 23 November 2015. He reviewed the administrative record made to that date, found the Hearing Board‘s penalty inadequate, and proposed to increase Foy‘s punishment under
discovered that the audio recording equipment used to make a verbatim record of the meeting malfunctioned, failed to capture what was said at the meeting, as required by
On 10 December 2015, Commissioner Wolfe memorialized his recollection of what transpired at the unrecorded penalty increase meeting in a written memorandum to Stephen T. Moyer, Secretary of Public Safety and Correctional Services.8 Foy‘s counsel confirmed with Commissioner Wolfe‘s office to hold a remedial penalty increase meeting on 16 December 2015. Later that day, however, Commissioner Wolfe canceled, without explanation, the meeting. Commissioner Wolfe made no further effort to reschedule a meeting. Rather, on December 16, Commissioner Wolfe, with the permission of Secretary Moyer, increased the Hearing Board‘s recommended punishment of Foy from “Transfer to Baltimore City Booking and Intake Center & Demotion to Sergeant” to termination of his employment. Foy filed an action for judicial review in the Circuit Court for Baltimore City, arguing solely that the Commissioner violated his rights under the COBR when he
increased the Hearing Board‘s recommended punishment without recording the penalty increase meeting. Foy requested the circuit court to rescind Commissioner Wolfe‘s increased penalty, re-impose the Hearing Board‘s recommended penalty, and reinstate
The circuit court found, in relevant part:
That an error of law occurred at the penalty increase hearing when the audio recording equipment failed and there was no audio record of the meeting; and it is further found . . . [that Commissioner] Wolfe failed to satisfy the final portion of [
Corr. Servs. § 10-910(b)(6)(ii) ] when the audio equipment failed to capture the hearing on the record . . . and a substantial right of [Foy] has been prejudiced when the penalty increase hearing . . . was not captured on the record.
(Emphasis omitted).
As a result, the circuit cоurt ordered that “this case be remanded for the purpose of conducting another penalty increase meeting so that a complete record of the administrative proceeding is available for the [c]ourt on [j]udicial [r]eview.”
Analysis
I. Appellees’ Motion to Dismiss.
a. Appellees’ Arguments.
Appellees move to dismiss this appeal on “the grounds that [we] lack[] jurisdiction over this matter because the order appealed from is not a final judgment.” They aver that Appellant has not been put out-of-court by the remand order from which he sought judicial review. As such, Appellant cannot satisfy the critical requirement for an appealable final
judgment. The circuit court ordered a remand for the appointing authority9 to conduct another penalty increase meeting so that a complete record might be available for any further judicial review.
b. Appellant‘s Arguments.
Appellant responds that the circuit court‘s remand order was authorized by
c. The Circuit Court‘s Remand Order is an Appealable Final Judgment.
The resolution of a motion to dismiss raised on appeal is left to the sound discretion of this Court.
matter in controversy; (2) unless the court acts pursuant to
Assessing specifically whether a circuit court‘s remand order entered in a judicial review action is an appealable final judgment, Milburn noted:
if, applying the appropriate standard of review, the [circuit] court finds that there was not substantial evidence to support the agency decision or that the agency made an error of law, it will likely remand the case to the agency, which will ultimately determine the parties’ rights by applying the law as directed by the circuit court. Such a remand may appear to be non-final in nature, but under the principles of finаlity in Maryland . . . many such remands are appealable final judgments.
Milburn, 442 Md. at 301, 112 A.3d at 436. When a circuit court considers a judicial review action from a state administrative agency decision, and remands the case because the agency‘s decision is inconsistent with law, that iteration of the case has reached its end. Id. Therefore, a remand after a circuit court has conducted a judicial review of the sole question raised in the administrative action, precluding the parties from further contesting or defending the validity of the agency‘s decision on the merits in that case, is an appealable final judgment. Milburn, 442 Md. at 305, 112 A.3d at 439. See also Hickory Hills Limited Partnership v. Secretary of State, 84 Md. App. 677, 686, 581 A.2d 834 (1990) (contrasting the type of remand occurring before judicial review occurs with a “remand that a court might order under the APA after the court has conducted judicial review and made its assessment of the agency decision.“).
Milburn declared that:
[A] remand, governed by . . . [
State Gov‘t] § 10–222(h) , is a final order because, when the circuit court orders a remand after judicial review, it does so because it has found that the agency‘s decision is inconsistent with law or unsupported by substantial evidence. The parties can no longer defend or challenge that agency decision in the circuit court and there is nothing further
for that court or the parties to do. Thus,
Milburn, 442 Md. at 307, 112 A.3d at 440.
The circuit court‘s order here is a hybrid of judicially-reviewed conclusions and a determination that the “record is insufficient to allow for a fair consideration of thе issue.”12 For this reason, we find Milburn and Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981) instructive.
Milburn noted, in the context of a challenge to the appealability of a circuit court‘s remand order, that the work of the circuit court was not done; the circuit court deferred further consideration of Milburn‘s challenges to the merits of the agency‘s decision pending remand and the agency‘s subsequent remedial decision. Milburn, 442 Md. at 308, 112 A.3d at 441. (“There was no discussion of the agency record or the merits of the case. The circuit court characterized the [agency‘s pre-emptive] motion as a request for a ‘do over’ that would precede the court‘s consideration ‘whether there‘s substantial evidence and . . . whether or not to affirm‘“). The “remand order did not involve a determination whether the agency decision is consistent with law or supported by substantial evidence.” Milburn, 442 Md. at 310, 112 A.3d at 441. Thus, Milburn held “that a remand that precedes any judicial review is not a final judgment.” Milburn, 442 Md. at 310, 112 A.3d at 442.
In Schultz, the context was of a local government board of zoning appeals denying property owners a requested special exception. Schultz, 291 Md. at 3-4, 432 A.2d at 1321.
The property owners appealed to the circuit court, which conducted a review of the administrative record and proceedings. Id. It “determined that there had been a denial of due process because the [b]oard had considered evidence submitted after the close of the hearing.” Id. Thе circuit court “reversed and remanded the matter to the [b]oard for a new hearing.” Schultz, 291 Md. at 4, 432 A.2d at 1321-22. On appeal, the Court of Appeals agreed that, under those circumstances, a circuit court‘s order remanding a proceeding to an administrative agency is an appealable final order. Schultz, 291 Md. at 6, 432 A.2d at 1322 (citing Department of Public Safety & Correctional Services v. Le Van, 288 Md. 533, 542-43, 419 A.2d 1052, 1057 (1980)). The circuit court‘s finding in its remand order that the agency‘s decision was inconsistent with law was an appealable final judgment. Id.
Here, the findings of the circuit court in its remand order are a mix of the characteristics of the orders in Milburn and Schultz, but, in our view, bear ultimately more resemblance to Schultz. The circuit court in the present case made findings of law based on the state of the record presented to it (vis a vis the statutory requirement for conducting an on-the-record penalty increase hearing within the allowable time period), finding that:
[n]either [Commissioner] Wolfe‘s written memorandum of [10 December 2015] to Secretary Stephen T. Moyer nor [Commissioner] Wolfe‘s Affidavit of [5 May 2016], meet the statutory requirements of a hearing on the record nor do these writings cure the defect as it is neither objective nor complete . . . , as [Appellant] asserts, as required by [
MD. RULE 7-113(d)(2) ], that an error of law occurred at the penalty increase hearing when the audio recording equipment failed and there was no audio record of the meeting . . . , [Commissioner] Wolfe satisfied the statutory requirement of [Corr. Servs. § 10-910(b)(6)(ii) ] by meeting with [Appellant] and his counsel,allowing [Appellаnt] to be heard but [Commissioner] Wolfe failed to satisfy the final portion of this particular statutory requirement when the audio equipment failed to capture the hearing on the record . . . , [and] a substantial right of
[Appellant‘s] had been prejudiced when the penalty increase hearing . . . was not captured on the record.
(Emphasis added).
In Schultz, the circuit court reviewed the agency decision, made a determination as to its legality, and remanded the case for additional proceedings. Schultz, 291 Md. at 4, 432 A.2d at 1321-22. The parties could take no further action in the circuit court at that point, and the court chose to do nothing more. Id. Analogously, the circuit court found here that Commissioner Wolfe violated Appellant‘s
Appellant did not contend (and has not contended) below or here that the Hearing Board erred regarding its findings of fact, conclusions of law, or its recommended punishment.13 Rather, Appellant contends solely that Commissioner Wolfe‘s failure to comply with the mandatory requirements of
Appellees point to the circuit court‘s findings that sound more like those in Milburn, however:
[Foy] demonstrated that the record is insufficient to allow for a fair consideration of the issues and simply cannot be reconstructed; and . . . it is hereby ordered, that this case be remanded for the purpose of conducting another penalty increase hearing so that a complete record of the administrative proceeding is available for the [c]ourt on [j]udicial [r]eview.
(Emphasis omitted).
Milburn noted that “there had been no judicial assessment of the legality of the agency‘s decision; the remand order merely acceded to the agency‘s request for a limited opportunity to reconsider and possibly modify its findings or decision [before] judicial review.” Milburn, 442 Md. at 309–10, 112 A.3d at 441. The circuit court did not discuss the agency record or the merits of the contentions put on-the-table by Milburn in the case. Milburn, 442 Md. at 296, 112 A.3d at 433. As in Milburn, here the circuit court‘s findings are premised on a similar basis, in part. They lack any discernable conclusions of law or findings of fact. Rather, the circuit court appeared to profess an inability to assess the merits of Commissioner Wolfe‘s conclusion to fire Foy, in light of the unrecorded penalty increase meeting.
Appellees’ life raft leaks, however. The sole dispute before the circuit court and here is not over whether the conclusion Commissioner Wolfe reached was supported by substantial evidence, but rather whether the process utilized to reach it violated Foy‘s COBR rights. Unlike Milburn, the circuit court here made clear findings on the merits of Appellant‘s sole appellate claim. Most notably, the circuit court found that “an error of law occurred
hearing on the record.” (emphasis added). The circuit court‘s findings that an error of law occurred and that Commissioner Wolfe failed to satisfy a statutory requirement are more in line with Schultz‘s holding that the zoning body denied the property owners due process. Schultz, 291 Md. at 4, 432 A.2d at 1321-22.
Finality is determined by what further proceedings, if any, will occur in the circuit court. Milburn, 442 Md. at 310, 112 A.3d 442. No further proceedings will occur on the circuit court‘s findings of law on the merits of Appellant‘s sole legal challenge. The circuit court found “that in a judicial review of an administrative hearing, the [c]ourt may ‘remand the case for further proceedings.‘” (citing
II. The Commissioner Violated Appellant‘s COBR Rights When He Failed to Record a Penalty Increase Meeting Within the Time Allowed By Law.
a. Appellant‘s Arguments.
Foy avers that
statutory time period exacerbates the circumstances. Such failures preclude Commissioner Wolfe from increasing the Hearing Board‘s proposed penalty.
Appellant maintains that Commissioner Wolfe‘s conduct evinces a disregard of the requirements of
b. Appellees’ Arguments.
Appellees respond thаt Commissioner Wolfe complied with the spirit and intent of
c. Standard of Review
On review of an administrative agency‘s ruling, this Court reviews the agency‘s decision, not the circuit court‘s decision. Halici v. City of Gaithersburg, 180 Md. App. 238, 248, 949 A.2d 85, 91 (2008) (citing Anderson v. Gen. Cas. Ins. Co., 402 Md. 236, 244, 935 A.2d 746, 750 (2007)). Our goal is to determine whether the agency‘s holding is in accordance with the law or whether it is arbitrary, illegal, or capricious. Md. Dep‘t of the Env‘t v. Ives, 136 Md. App. 581, 585, 766 A.2d 657 (2001) (citation omitted). We “apply a limited standard of review and will not disturb an administrative decision on appeal if substantial evidence supports factual findings and no error of law exists.” Long Green Valley Ass‘n v. Prigel Family Creamery, 206 Md. App. 264, 273-74, 47 A.3d 1087, 1092 (2012) (quoting Tabassi v. Carroll County Dep‘t of Soc. Servs., 182 Md. App. 80, 86, 957 A.2d 620, 623 (2008)).
When, however, “the question before the agency involves one of statutory interpretation or an issue of law, our review is more expansive.” Eastern Outdoor Advert. Co. v. Mayor & City Council, 146 Md. App. 283, 302, 807 A.2d 49, 60 (2002) (quoting Dep‘t of Labor, Licensing & Regulation v. Muddiman, 120 Md. App. 725, 734, 708 A.2d 47, 52 (1998)). We must determine whether аn agency‘s legal conclusions are correct. Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289, 297-298, 116 A.3d 507, 512 (2015) (quotations and citation omitted). It is for this reason that we review, without deference, the findings made below. See Ireton v. Chambers, 229 Md. App. 149, 155, 143 A.3d 215, 218 (2016) (citing Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142, 46 A.3d 443, 451 (2012)).
d. The Plain Language of Corr. Servs. § 10-910(b)(6) is Mandatory.
It is presumed that all “[l]egislation is created with a particular objective or purpose.” Bowers v. State, 227 Md. App. 310, 322 (2016) (citation omitted). As such, “[t]he cardinal rule of statutory construction is to effectuate and carry out legislative intent.” Duffy v. CBS Corp., 232 Md. App. 602, 612 (2017) (quoting Rose v. Fox Pool Corp., 335 Md. 351, 359, 643 A.2d 906, 909 (1994)), cert. granted, No. 41, Sept. Term, 2017 (Md. Sept. 12, 2017). Therefore, courts assume that every statute is enacted to further some underlying goal or purpose and must be construed according to its general purposes and policies. Rose v. Fox Pool Corp., 335 Md. 351, 358-59, 643 A.2d 906, 909 (citing Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987)).
When we are called upon to construe a statute, “we begin with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent.” Duffy, 232 Md. App. at 613, 161 A.3d at 7 (quoting Rose, 335 Md. at 359, 643 A.2d at 909 (citing Comptroller of the Treasury v. Jameson, 332 Md. 723, 732, 633 A.2d 93, 97-98 (1993))). “The statute must be construed as a whole so that no
Morris v. Prince George‘s County, 319 Md. 597, 603, 573 A.2d 1346, 1349 (1990), rationalized, however, that:
our endeavor is always to seek out the legislative purpose, . . . we are not limited to [the] study of the statutory language. The plain meaning rule is not a complete, all-sufficient rule for ascertaining a legislative intention. The meaning of the plainest language is controlled by the context in which it appears. Thus, we always are free to look at the context within which stаtutory language appears. Even when the words of a statute carry a definite meaning, we are not precluded from consulting legislative history as part of the process of determining the legislative purpose or goal of the law.
(Internal citations and quotation marks omitted).
If a statute‘s language is ambiguous or seems to run counter to its statutory purpose, however, we may:
search for [the General Assembly‘s intent] . . . , including the history of the [statute] or other relevant sources intrinsic and extrinsic to the legislative process[,] in light of: (1) the structure of the statute; (2) how [the statute] relates to other laws; (3) the statute‘s ‘general purpose; and (4) [the] relative rationality and legal effect of various competing constructions.
Hailes v. State, 442 Md. 488, 495-96, 113 A.3d 608, 612 (2015) (internal quotation marks omitted). With these principles in mind, we perceive no need to consider the legislative history of
We begin by considering the phrase “[w]ithin 30 days after receipt of the recommendations of the hearing board” in
As explained earlier, cases interpreting the LEOBR are persuasive when analyzing the provisions of the COBR. The LEOBR was the model for the COBR, e.g., the two bear a strong resemblance.
The Court of Appeals confirmed in Popkin v. Gindlesperger, 426 Md. 1, 5, 43 A.3d 347, 350 (2012), that the head of a law enforcement agency generally has the ultimate authority to sanction an officer under
“[T]he plain meaning rule is not a complete, all-sufficient rule for ascertaining a legislаtive intention. The meaning of the plainest language is controlled by the context in which it appears.” Morris, 319 Md. at 603, 573 A.2d at 1349 (1990).
It is not logical to conclude, from the plain language of
To conclude that the plain meaning of
Next, we consider the merits of the parties’ contentions regarding whether the terms of
We are obliged to agree with Appellant. Courts should neither add words nor delete words from a clear and unambiguous statute in order to give it a meaning not reflected by the language the Legislature chose to use. Taylor v. NationsBank, N.A., 365 Md. 166, 181, 776 A.2d 645, 654 (2001). Thus, we must consider the written words in conjunction with the context in which they appear in the statute.
As noted, three of the six subsections in
A plain reading indicates that the appointing authority must comply with (b)(6)(i), (ii), (iii), and (iv) before it may increase a hearing board‘s proposed penalty.
For example, in Dep‘t of Juvenile Services v. Miley, 178 Md. App. 99, 105-06, 940 A.2d 1137, 1141 (2008), and Ford v. Dep‘t of Pub. Safety & Corr. Services, 149 Md. App. 488, 497, 817 A.2d 264, 270 (2003), we found compliance mandatory for the steps promulgated in
Even if substantial compliance was a viable defense, we disagree with Appellees that the Commissioner‘s efforts would constitute substantial conformance, or satisfy the “letter and spirit” of the statute. If we were to recognize some sort of electrical equipment malfunction exception to
We hold that
When a statute specifies a “condition precedent for action authorized to be taken by an agency, the agency action may not validly be taken until that condition has been met.” Fraternal Order of Police, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 177, 680 A.2d 1052, 1063 (1996) (citing Pyle v. Brooks, 31 Or. App. 479, 570 P.2d 990 (1997)). If an appointing authority fails to follow
If that is so, moreover, it may well be that Commissioner Wolfe failed also to comply with
Although precedential guidance regarding appointing authority shortcomings in a COBR setting are not abundant, we find Hird v. City of Salisbury and VanDevander v. Voorhaar instructive.
In Hird, after a hearing board recommended a law enforcement officer‘s punishment on 24 April 1996, the chief (in compliance with what is now
We noted:
Until [the chief] satisfied every pre-condition for increasing the hearing board‘s recommended penalty for [the officer], including meeting with her and giving her the opportunity to be heard on the record, his action in increasing the penalty was not validly taken and could not be final. Clearly, as of [20 May 1996], there was something additional and indeed essentiаl for [the chief] to do to finalize his decision to increase the penalty to be imposed against [the officer]. Only after [the chief‘s 23 May 1996] meeting with [the officer] had taken
place did there exist a validly taken action and order that left nothing further for the agency to do.
Hird, 121 Md. App. at 504, 710 A.2d at 356 (quotation marks omitted).
Although the appellate issue here is different from that in Hird, Hird‘s underlying rationale remains apt. The chief in Hird failed to satisfy what is now
Appellees argue that ”Hird did not address a situation where the appointing authority fully complied with the law and took the actions required by statute . . . but the transcript of that meeting became unavailable due to a recording equipment malfunction.” To the contrary, Commissioner Wolfe failed to comply with the law.
Appellees argue also that Commissioner Wolfe‘s memorandum to Secretary Moyer setting forth his recollection of what transpired at the unrecorded penalty increase meeting and his efforts to reschedule another meeting to a date within the statutory period constitutes substantial compliance with
In our view, Commissioner Wolfe‘s actions occupy the same church, if not the same pew, as the sheriff‘s conduct in VanDevander. In VanDevander, the hearing board recommended punishment of a deputy, but the sheriff increased the penalty. VanDevander, 136 Md. App. at 627, 767 A.2d at 343. The deputy appealed the increased penalty. Id. The circuit court remanded the action for the sheriff to remedy an initial failure to comply with the third requirement of what is now
[e]ssentially ignored [
Pub. Safety § 3-108(d)(5) ] requirements as he enhanced the hearing board‘s recommended penalty . . . , [the sheriff failed] to review the hearing board‘s findings in a timely fashion, within the thirty-day window prescribed by statute . . . , [the sheriff] neither asked [the deputy] to concur in postponing the mandated meeting nor requested that he waive the time limits set forth in [Pub. Safety § 3-108(d)(1) ] . . . , and [the sheriff] failed to disclose and provide to [the deputy] in writing at least ten days prior to the meeting any oral or written communication not included in the hearing board record on which the decision to consider increasing the penalty is based.
VanDevander, 136 Md. App. at 628-32, 767 A.2d at 343-45 (emphasis added and quotation marks omitted). We held that “the passing of time and the [s]heriff‘s failure to place on the record all information [mandated] closed the window . . . fоr enhancing [the deputy‘s] penalty . . . [Thus, the] penalty enhancements were instated outside the clear boundaries of the law and cannot stand.” VanDevander, 136 Md. App. at 632, 767 A.2d at 345.
Although perhaps Commissioner Wolfe‘s actions do not suggest the same level of willfulness exhibited by the sheriff‘s conduct in VanDevander, we view nevertheless the Commissioner‘s conduct as troubling.
As in VanDevander, the appointing authority neglected to request the employee to waive his
Commissioner Wolfe knew (or should have known) of the COBR‘s waiver provision, and could have requested Appellant to waive his right to a have the remedial meeting within the 30-day period. Instead, Commissioner Wolfe wrote a December 10 memorandum summary of his version of what transpired at the unrecorded 9 December 2015 penalty increase meeting, which memorandum (as the circuit court found) was neither objective nor complete on its face. Just as in VanDevander where the sheriff failed to notify the deputy regarding any objection he may have to the postponement, it appears that Commissioner Wolfe failed equally to notify timely Foy or his counsel of the existence of his written memorandum to Secretary Moyer. Commissioner Wolfe gave Foy no chance to object timely to anything contained in (or omitted from) the memorandum.
Appellees assert that Appellant has not disputed on appeal the accuracy or scope of the statements in the memorandum. We do not expect Appellant to object to the contents of something he did not know existed until it was too late to remonstrate effеctively. The unilateral, one-sided memorandum is inadequate to comply (strictly or substantially) with the “on the record” requirement of
Thus, Commissioner Wolfe‘s action was not taken validly when he increased the Hearing Board‘s proposed punishment. It cannot stand. Foy‘s rights were violated under the COBR. Failure to comply timely with the requirements of
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THE CIRCUIT COURT WITH DIRECTIONS TO REINSTATE THE HEARING BOARD‘S PENALTY AND AWARD COMMENSURATE BACK-PAY CONSISTENT WITH THE BOARD‘S SANCTION. COSTS TO BE PAID BY APPELLEES.
MICHAEL FOY v. BALTIMORE CITY DETENTION CENTER
No. 1472
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
Filed: December 4, 2017
Eyler, Deborah S., Leahy, Glenn T. Harrell, Jr., (Senior Judge, Specially Assigned), JJ.
Dissent by Eyler, Deborah S., J.
I respeсtfully dissent from the well-crafted Majority opinion. In my view, the unfortunate failure of the tape recorder during a meeting that everyone in attendance thought was being recorded can be cured by a remand for a new meeting with a working tape recorder. Foy should not escape termination as the penalty for disciplinary offenses including use of excessive force against an inmate because a tape recorder malfunctioned. For that reason, I would affirm the judgment of the circuit court.
The numerous disciplinary charges against Foy arose out of an incident in which he stepped on an inmate‘s neck, pinning him to the ground, and then filed a false report about what had happened. The charges recommended termination. A Hearing Board was convened and issued its report on November 16, 2015, finding Foy guilty of ten of twelve charges and recommending as a penalty that he be transferred to Central Booking and demoted.
The Commissioner received the Hearing Board‘s report on November 23, 2015, and decided to pursue an increase in the penalty to termination. To that end, on December 9, 2015, he held a meeting with Foy and his lawyer. The meeting was tape recorded, or so everyone thought. Sometime after the meeting concluded, the Commissioner discovered that the tape recorder hаd malfunctioned. The next day, December 10, 2015, the Commissioner informed Foy‘s attorney of the malfunction and sought another date on which to hold a meeting with functional recording equipment. Between the two men, there was no available date before December 16. They scheduled a new meeting for December 17.
Also on December 10, 2015, the Commissioner wrote a memorandum to the Secretary of the Department of Public Safety and Correctional Services (“Secretary“), detailing what had happened at the December 9 meeting.1 The memorandum related the recording problem that later was discovered and the attempt to schedule a second meeting.
According to Foy‘s lawyer, the December 17, 2015 meeting was cancelled on December 16, with no explanation. It is
On December 16, 2015, the Commissioner issued his final order, by means of a letter addressed to Foy, explaining that he was increasing the penalty to termination and the basis for that decision. The final order thus was issued within 30 days of November 16, 2015 (the day everyone thought was the 30th day) and, more importantly, within 30 days of November 23, 2016 (the day that, as the Majority explains, and as I agree, in fact was the 30th day).
The only provision of the Correctional Officers’ Bill of Rights (“COBR“) governing review by the appointing authority of a hearing board‘s recommendations is
Within 30 days after receipt of the recommendations of the hearing board, the appointing authority shall: (i) review the findings, conclusions, and recommendations of the hearing board; and (ii) issue a final order.
Subsection (b)(5) requires the appointing authority to obtain the approval of the Secretary before terminating a correctional officer under this subsection. And subsection (b)(6) sets out the steps that must be taken for an increase in the recommended penalty:
With the approval of the Secretary, the appointing authority may increase the recommended penalty of the hearing board if the appointing authority:
(i) reviews the entire record of the proceedings of the hearing board;
(ii) meets with the correctional officer and allows the correctional officer to be heard on the record;
(iii) at least 10 days before the meeting, discloses and provides in writing to the correctional officer any oral or written communication not included in the record of the hearing board on which the decision to consider increasing the penalty is wholly or partly based; and
(iv) states on the record the substantial evidence on which the appointing authority relied to support the increase of the recommended penalty.
(Emphasis added.) Subsection (b)(6) does not expressly state that those steps all
The issue in this case only concerns the meeting required by subsection (b)(6)(ii), specifically that it was held but not recorded. I agree with the Majority that the Commissioner‘s written summary of the meeting did not comply with, or substantially comply with, the requirement that the meeting be “on the record.” I depart from the Majority with respect to the consequence of the Commissioner‘s having held a meeting, but not a meeting “on the record,” before issuing his timely final decision.
As the Majority acknowledges, Hird v. City of Salisbury, 121 Md. App. 496 (1998), is not on point. The issue there was whether an officer whose penalty for a disciplinary finding under the Law Enforcement Officers’ Bill of Rights (“LEOBR“) had been increased timely filed her petition for judicial review in the circuit court, under Rule 7-203. As pertinent, that rule required (and still does) the petition for judicial review to be filed “within 30 days after . . . the date of the order or action of which review is sought[.]” The police chief wrote a letter to the officer stating that he was increasing her penalty, but did not give it to her. Three days later he met with her, read the letter out loud, and handed it to her. She filed her petition for judicial review 30 days after the latter of those two days. The question was whether the 30-day deadline in Rule 7-203 began to run on the day the chief wrote the letter, or the day he met with the officer and presented the letter to her.
At that time, the LEOBR stated:
Before the chief may increase the recommended penalty of the hearing board, the chief personally shall (1) Review the entire record of the hearing board proceeding; (2) Meet with the law enforcement officer and permit [her] to be heard on the record; (3) Disclose and provide the officer in writing at least 10 days prior to the meeting any oral or written communication not included in the hearing board record on which the decision to consider increasing the penalty is based; and (4) State on the record the substantial evidence relied on to support the increase of the recommended penalty.
VanDevander v. Voorhaar, 136 Md. App. 621 (2001), also an LEOBR case, is more on point, but does not support the conclusion that the recording failure in this case is incurable. There, the sheriff increased to termination the hearing board‘s recommended penalty for a deputy. In an action for judicial review, the deputy complained that the sheriff had done so without complying with the step of notifying him of communications, under section 731(c)(3). The circuit court agreed, and remanded the case “for further proceedings intеnded to cure the fatal defect in the existing order.” Id. at 631. The sheriff reconsidered and reiterated his prior decision. In a second action
This Court reversed. We observed that “[a]s Hird requires, the [circuit] court remanded the [first] action [for judicial review] to give Sheriff Voorhaar [an] opportunity to cure the shortcoming [i.e., the disclosure failure.]” Id. at 629. We concluded, however, that the sheriff had “essentially ignored” all the steps that were required before increasing a recommended penalty, not just one step. Id. Therefore, he
could not have cured the defects under the LEOBR that the court below failed to recognize or were otherwise beyond repair. Instead, the passing of time and the Sheriff‘s failure to place on the record all information that should have been there closed the window of opportunity for enhancing [the deputy‘s] penalty.
Id. at 631–32 (emphasis added).
Thus, we recognized in VanDevander that there can be a failure by the appointing authority to comply with a step required to increase the recommended penalty that is curable after the final decision has been made. Sheriff Voorhaar‘s multiple failures were not curable, because they were tantamount to disregarding all the procedural requirements for increasing the penalty. In the case at bar, by contrast, there was a single, technical failure to fully comply with thе requirements of
The Majority holds, however, that once the 30-day time frame for making a final decision has passed, any failure to comply with a step required to increase the recommended penalty cannot be cured, and the increased penalty is invalid. The cases the Majority cites that would support such a rigid outcome, such as Dep‘t of Social Services v. Miley, 178 Md. App. 99 (2008), concern
[With an exception not relevant] an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.
In Miley, we held that because the appointing authority did not comply with the required step of giving the employee written notice of the disciplinary action within 30 days of his acquiring knowledge of the employee‘s misconduct, the disciplinary action was invalid. In doing so, we relied upon Western Corr. Inst. v. Geiger, 371 Md. 125 (2002), in which the Court of Appeals held that disciplinary actions against employees had to be dismissed because the discipline had not been imposed within 30 days of the appointing authority‘s having acquired knowledge of the misconduct. Id. at 151 (observing that
In my view, Geiger and its progeny do not compel the conclusion that, under the COBR, a failure to comply with a requirement to increase the penalty that is technical and capable of being cured cannot be cured after the appointing authority has issued his or her final order.
To be sure, the recording failure in this case could have been cured before the Commissioner issued his final order. That was not an impossibility. Unfortunately, the parties misunderstood (and still misunderstand) that December 16, 2015, was not the last day for the Commissioner to issue that order. Nevertheless, the COBR does not prohibit the Commissioner from taking action to cure the recording failure post-final decision, even if it could have been cured before. Especially given the technical nature of the failure here and the lack of any prejudice to Foy beyond the absence of a recording, this case should be remanded for a new meeting that is properly recorded.
Notes
- reviews the entire record of the proceedings of the hearing board;
- meets with the correctional officer and allows the correctional officer to be heard on the record;
- at least 10 days before the meeting, discloses and provides in writing to the correctional officer any oral or written communication not included in the record of the hearing board on which the decision to consider increasing the penalty is wholly or partly based; and
- states on the record the substantial evidence on which the appointing authority relied to support the increase of the recommended penalty.
The Hearing Board found that [Foy] failed to adhere to the Use of Force Policy, which required that when any form of force is used either spontaneous or planned it is to be reported with supporting documentation. [Foy] failed to report any type of Use of Force the day of the incident . . . Therefore, he is subject to disciplinary action by the appointing authority. . .
Foy has not challenged the Hearing Board‘s findings of fact or conclusions of law.Milburn, 442 Md. at 299-300, 112 A.3d at 435-36 (internal citations and quotation marks omitted).In order to be an unqualified, final disposition, an order of a circuit court must be so final as either to determine and conclude the rights involved or to deny the appellant the means of further prosecuting or defending his or her rights and interests in the subject matter of the proceeding. The order must be a complete adjudication of the matter in controversy, except as to collateral matters, meaning that there is nothing more to be done to effectuate the court‘s disposition.
An order need not resolve the merits of a case, however, to constitute a final judgment. Even if the order does not decide and conclude the rights of the parties, it nevertheless will be a final judgment if it terminates the proceedings in that court and denies a party the ability to further prosecute or defend the party‘s rights concerning the subject matter of the proceeding. Such an order has been described as one that has the effect of putting the party out of court.
In determining whether an order that terminates proceedings in a particular court can be said to put the party out of court the key question is whether the order contemplates that the parties will no longer litigate their rights in that court.
The order need only have the effect of terminating the proceedings in a particular court; the availability of another forum in which the parties may litigate their dispute is irrelevant to finality.
- the waiver is signed and acknowledged by the correctional officer; and
- the waiver is given after the correctional officer is given an opportunity to consult with legal counsel selected by the correctional officer or a representative from the correctional officer‘s employee organization.