Balt. City Police Dep't v. Robinson

BALTIMORE CITY POLICE DEPARTMENT v. ANDRE ROBINSON

No. 764

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

September 30, 2020

PUBLIC SAFETY — LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS — DISPOSITION OF ADMINISTRATIVE ACTION — PENALTY RECOMMENDATION

The Law Enforcement Officers' Bill of Rights ("LEOBR"), Md. Code Ann. (2018 Repl. Vol.), §§ 3-101-113 of the Public Safety Article ("PS"), guarantees law enforcement officers procedural safeguards before disciplinary action. The final decision of the head of a law enforcement agency (in this case, the "Commissioner") must be issued within 30 days after receipt of a recommendation by the disciplinary hearing board ("Board") regarding a proposed penalty for a law enforcement officer. The trigger for the 30-day deadline is when the Commissioner receives the recommendation, i.e., when he or she has actual physical possession of it, not when it was issued or sent by the Board. In this case, although the Board transmitted the recommendation to the Commissioner's office on September 25, 2018, there was substantial evidence supporting a factual finding that the Commissioner did not receive the recommendation until October 2, 2018. Accordingly, the final decision issued on October 30, 2018, was within the 30-day deadline.

PUBLIC SAFETY — LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS — DISPOSITION OF ADMINISTRATIVE ACTION — NOTICE AND DISCLOSURE REQUIREMENTS

PS § 3-108(d)(5) of the LEOBR requires the Commissioner to take certain procedural steps before he or she may increase the recommended penalty of the Board. In particular, PS § 3-108(d)(5)(iii) provides that the Commissioner must disclose and provide "in writing to the law enforcement officer, at least 10 days before the meeting, 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[.]" Although "communication" is not defined in the LEOBR, we interpret the plain meaning of the word to require the transmission of information or ideas from one person to another.

In this case, the officer's disciplinary records, which were not included in the Board's record, did not constitute the transmission of information or ideas from another person because they were part of the internal record maintained by the Department that the Commissioner was authorized, and in fact required, to review and consider pursuant to PS § 3-108(d)(4). Even if the disciplinary records were a "communication" within the meaning of the statute, they did not form the basis of the Commissioner's "decision to consider increasing the penalty[.]" PS § 3-108(d)(5)(iii). That the Commissioner ultimately relied on the disciplinary records in his ultimate decision does not mean that this was something on which the decision "to consider" increasing the penalty was based. To interpret PS § 3-108(d)(5)(iii) to require disclosure of all the materials relied on by the Commissioner in making the ultimate decision ten days in advance of the meeting would be an illogical construction of the statute because it would not permit the consideration of any new information that may come to light at the meeting, thus diluting the purpose of the meeting and opportunity to be heard. PS § 3-108(d)(5)(ii).

Circuit Court for Baltimore City

Case No. 24-C-18-006067

REPORTED

Graeff, Berger, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, J.

On January 11, 2017, Officer Andre Robinson, appellee, participated in the arrest of a suspected drug dealer. A single, unidentified pill was recovered. After the State declined to prosecute, Officer Robinson returned the pill to the suspect, in violation of the policy of the Baltimore City Police Department (the "BPD" or "Department"), appellant. His supervisor filed a misconduct report, and following a hearing, the administrative board recommended that Officer Robinson be given a severe letter of reprimand and lose 15 days of leave. On review, the BPD Commissioner increased his penalty to termination. Officer Robinson appealed to the circuit court, which reversed the Commissioner's penalty increase and ordered that Officer Robinson be reinstated, with full back pay and benefits.

On appeal, the BPD presents the following questions for this Court's review, which we have rephrased and consolidated, as follows:

1. Was the Commissioner's final order timely pursuant to Md. Code Ann. (2018 Repl. Vol.), § 3-108(d)(1) of the Public Safety Article ("PS") when it issued on October 30, 2018?

2. Did the BPD comply with the Law Enforcement Officers' Bill of Rights' ("LEOBR") disclosure and notice requirements pursuant to PS § 3-108(d)(5)(iii)?

3. If the BPD committed an administrative error, did the circuit court err in reversing the termination, rather than remanding for a correction of any error?

Officer Robinson filed a cross-appeal presenting the following question, which we have rephrased, as follows:

Did the circuit court err in denying Officer Robinson's request for attorneys' fees and costs pursuant to Maryland's Wage Payment and Collection Law?

For the reasons set forth below, we shall reverse the decision of the circuit court with regard to the issues on appeal and remand to that court with instructions to affirm the Commissioner's final administrative decision. Given our resolution of that appeal, we will dismiss the cross-appeal.¹

FACTUAL AND PROCEDURAL BACKGROUND

I.Underlying Incident

On January 11, 2017, Officer Robinson, a 25-year veteran of the Baltimore City Police Department, along with other officers, responded to complaints that an individual was selling drugs on a corner of Harford Road. After one of the officers observed what appeared to be a narcotics transaction, the suspect entered a nearby McDonald's restaurant. The officers approached the suspect, and a struggle ensued as the suspect attempted to ingest a green pill that he had removed from his pocket. The officers were able to recover the pill, and Officer Robinson took possession of it. The officers were not able to identify the pill at the scene, but the suspect admitted he had a drug problem and his drug of choice was Percocet.

Officer Robinson took the suspect and the pill to the police station and contacted the State's Attorney's Office. The Assistant State's Attorney ("ASA") advised that,because they were unable to identify the pill, the State would not pursue charges and Officer Robinson should release the suspect. Officer Robinson filed the required "Investigate and Release" report in accordance with the ASA's instructions.² Believing that the unidentified pill was the suspect's property, Officer Robinson returned the pill to the man and drove him home. Officer Robinson did not know the nature of the pill when he returned it to the suspect, and he was not advised by a superior to give back the pill. The BPD policy requires that "[a]ll suspected evidentiary CDS . . . must be brought to [Evidence Control Unit] immediately after packaging[.]"

On January 30, 2017, after Officer Robinson returned from a brief medical leave, his supervisor, Lieutenant Danita Boyd, asked him what he did with the pill that was recovered from the suspect. She needed to complete the unfinished incident report. She wanted to know if the pill had tested positive as CDS, in which case an arrest warrant would have been obtained for the suspect. Officer Robinson completed an administrative report, stating that he gave the pill back to the suspect because he thought it was the suspect's property. Lieutenant Boyd then filed an internal misconduct report against him for violating the BPD policy.

II.Administrative Board Hearing

On October 16, 2017, following an investigation, the BPD's Internal Affairs Division ("IAD") sustained the allegation against Officer Robinson for neglecting to submit the suspected CDS to the evidence unit for testing. A second allegation for insubordination was not sustained.

On August 23, 2018, an administrative trial board (the "Board") held a hearing on the matter. An administrative law judge presided, and three fellow BPD officers of varying ranks were selected to consider the charges. Officer Robinson, now represented by counsel, was charged with violating two BPD policies in connection with his failure to submit the pill for testing: (1) Policy 302, Rule 1, which provides that any neglect of duty or misconduct that "tends to undermine the good order, efficiency or discipline of the department" is considered conduct "unbecoming" of the BPD; and (2) Policy 1402, which requires the BPD to "properly control, maintain, inventory, and safeguard" CDS in its custody.³

The BPD introduced evidence regarding the incident in question, including witness testimony by Lieutenant Boyd, Officer Robinson, and other officers. Lieutenant Boyd testified that it was not appropriate for Officer Robinson to give the evidence back to the suspect; the pill should have been submitted to the Evidence Control Unit. Counsel for theBPD argued that the case warranted termination, stating: "When you give a pill that you don't know what it is back to a suspect, God only knows what danger he could have created by giving that back to him. That is a very dangerous thing for him to do." Counsel also noted that, although she did not have Officer Robinson's "personnel jacket," he had several previous policy violations, including a problem with his driving privileges.⁴ Counsel stated that she did not know what discipline he received for those incidents because she did not have his personnel jacket.

Officer Robinson argued that his actions did not violate the two policies in question because the pill was unidentified, and therefore, it had no evidentiary value pursuant to Policy 1402. Officer Robinson also suggested that he had been discriminated against by Lieutenant Boyd based on his gender, and that the current action was motivated by retaliation because he had complained about his unequal...