Manger v. FOP Montgomery Co., Lodge 35 , 239 Md. App. 282 ( 2018 )

Manger v. Fraternal Order of Police Montgomery County, No. 1021, September Term,
2017. Opinion by Nazarian, J.
MUNICIPAL CORPORATIONS – LAW ENFORCEMENT OFFICER’S BILL OF
RIGHTS – REVIEW IN GENERAL
Under § 3-105 of the Maryland Code, Public Safety Article, the circuit court can act before
a hearing to ensure that a police officer’s heightened procedural protections under the Law
Enforcement Officer’s Bill of Rights are upheld when the hearing occurs. The circuit
court’s review power is limited to this specific function and is not an opportunity to decide
the merits of the disciplinary charges leveled against the officer.
MUNICIPAL CORPORATIONS – LAW ENFORCEMENT OFFICER’S BILL OF
RIGHTS – POLYGRAPH TESTS
Law enforcement agencies can order their officers to sit for polygraph tests as a part of
internal departmental investigations. If an officer refuses, Maryland Code, Public Safety
Article § 3-104(l)(2) authorizes the agency to discipline the officer. The agency is likewise
authorized to discipline an officer for engaging in conduct designed to thwart the polygraph
results despite not being explicitly stated in the statute.
MUNICIPAL CORPORATIONS – LAW ENFORCEMENT OFFICER’S BILL OF
RIGHTS – POLYGRAPH TESTS
A reference in a charging document to the fact of a polygraph test does not violate per se
an officer’s rights under the Maryland Code, Public Safety Article § 3-104(m)(1), which
prohibits the use of polygraph test results as evidence in an administrative hearing absent
the officer’s consent.
Circuit Court for Montgomery County
Case No. 430528-V
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1021
September Term, 2017
______________________________________
J. THOMAS MANGER
v.
FRATERNAL ORDER OF POLICE,
MONTGOMERY COUNTY LODGE 35, INC.
______________________________________
Wright,
Nazarian,
Arthur,
JJ.
______________________________________
Opinion by Nazarian, J.
______________________________________
Filed: November 5, 2018
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
2018-11-05
15:25-05:00
Suzanne C. Johnson, Acting Clerk
The Law Enforcement Officer’s Bill of Rights (“LEOBR”)1 provides procedural
protections to police officers who are the subjects of internal departmental investigations
or disciplinary proceedings. If an officer fears that his rights under the LEOBR may be
violated, LEOBR § 3-105 authorizes him to apply to the circuit court for an order directing
the agency to show cause why the right should not be granted. If the court finds that the
agency violated the officer’s rights, it can craft relief appropriate to the circumstances.
In this case, the officer sought, and got, relief beyond what the circumstances
supported. Officer John Doe of the Montgomery County Police Department (“MCPD”)
was charged, among others, with Conduct Unbecoming An Officer after he allegedly
engaged in “counter measures” designed to thwart an investigative polygraph test. He filed
a petition for an order to show cause in the Circuit Court for Montgomery County, and
argued that the Conduct Unbecoming charge violated his right not to consent to the
admission of the results of a polygraph in his forthcoming administrative hearing. The court
agreed, granted his petition, and struck the charge in its entirety. We see no threshold
conflict between the Officer’s rights under the LEOBR and the charge itself, however, and
reverse.
I. BACKGROUND
Officer Doe2 was investigated for soliciting sexual activity from a cashier in a retail
1
Maryland Code (2003, 2011 Repl. Vol., Cum. Supp. 2018), §§ 3-101–3-113 of the Public
Safety Article. All citations to statute in this opinion refer to the LEOBR.
2
In response to an unopposed motion by Fraternal Order of Police (the “FOP”), the circuit
court agreed to keep Officer Doe’s identity confidential. It didn’t escape our notice, though,
that notwithstanding his efforts to protect his own privacy, Officer Doe revealed his alleged
victim’s first and last name in a public filing that didn’t involve her at all or require the
establishment in October 2015. As part of the MCPD’s investigation, Officer Doe was
ordered to submit to a polygraph examination. There is no dispute that MCPD could order
him to do so. During the test, Officer Doe is alleged to have engaged in “counter measures”
designed to subvert it. His behavior persisted, even after a warning from the person
administering the test. The record doesn’t reflect the precise actions Officer Doe took to
sabotage the polygraph, but we do know the results were rendered “unreadable and
inconclusive.”
At the conclusion of the investigation, MCPD Chief J. Thomas Manger issued a
Notice of Charges against Officer Doe.3 The first five charges related to the alleged
solicitation and are not at issue here. Charge #6 alleged that the Officer committed conduct
unbecoming an officer when he attempted to sabotage his polygraph test:
CHARGE #6 -Rule 14- Conduct Unbecoming
No employee will commit any act which constitutes conduct
unbecoming an employee of the department. Conduct
unbecoming includes, but is not limited to, any criminal,
dishonest, or improper conduct.
Specification: It is alleged that on June 22, 2016 [Officer Doe]
intentionally used counter measures during [his] polygraph
examination which rendered the polygraph unreadable and
inconclusive. [He] continued to use counter measures after
court to know her identity. This outing didn’t violate the letter of any Maryland Rules, but
is inconsistent with his request for anonymous relief in this case.
3
Chief Manger issued the Notice of Charges pursuant to LEOBR § 3-104(n)(1)(i), which
provides:
Information provided on completion of investigation. – (1) On
completion of an investigation and at least 10 days before a
hearing, the law enforcement officer under investigation shall
be: (i) notified . . . of each charge and specification against the
law enforcement officer; . . . .
2
being warned by the polygraph operator in an effort to sabotage
the examination.
In response to the Notice of Charges, Officer Doe, through the FOP, filed a Petition
for Show Cause Order under LEOBR § 3-105, which authorizes officers to seek relief in
the circuit court prior to a disciplinary hearing when they believe their LEOBR protections
have been violated. The FOP argued that Charge #6’s reference to the “unreadable and
inconclusive” polygraph test violated LEOBR § 3-104(m)(1), which prohibits the use of
“the results of [a] polygraph examination . . . as evidence in an administrative hearing
unless the law enforcement agency and the law enforcement officer agree to the admission
of the results.” Chief Manger responded first that the reference to the inconclusive result
merely described the consequences of Officer Doe’s counter-measures, not his truthfulness
during the test, and second, that the results had not been used as evidence in an
administrative hearing (since a hearing hadn’t yet been held).
The circuit court agreed with the FOP and found that Charge #6’s reference to the
polygraph examination, and especially its reference to the test’s “unreadable and
inconclusive” outcome, violated Officer Doe’s rights under LEOBR § 3-104(m)(1).
Because polygraph examinations aren’t admissible, the court said, proving interference
with the exam itself necessarily would involve proof of the exam results:
The Court of Appeals has decided that the results of polygraph
examinations are not admissible. That [is] because they have
determined as a matter of Frye-Reed that they are not
sufficiently reliable. And that they are not generally accepted
and that their reliability is such that in legal proceedings they
should not be allowed. They have been ironclad in that
determination and have repeatedly and regularly reversed
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cases, civil, criminal, administrative, when the result issue was
mentioned.
The department argues that the inconclusive determination is
not a result. I respectfully disagree. Passing it is a result. Failing
it is a result. And being unable to complete it because you tried
to allegedly submarine it is also a result. But the Court of
Appeals has said that the result, period, is inadmissible.
Therefore, until if ever the Court of Appeals changes its mind
you cannot charge somebody based on that.
The court granted the petition and entered an order striking Charge #6 in its entirety.
The Chief appeals.
II. DISCUSSION
Officer Doe’s petition asked the circuit court to do two things: first, to determine
whether Charge #6 violated Officer Doe’s rights under LEOBR § 3-104(m)(1), and,
second, if it did, to craft an appropriate remedy under LEOBR § 3-105. Those are questions
of statutory interpretation and application that we review de novo. Schisler v. State, 394
Md. 519, 535 (2006).
A. The LEOBR
The LEOBR provides law enforcement officers, such as Officer Doe, with “certain
procedural guarantees . . . during an investigation or interrogation and any subsequent
hearing that could lead to disciplinary action . . . .” Bray v. Aberdeen Police Dep’t, 190
Md. App. 414, 424 (2010). An officer who has been charged is entitled to the LEOBR’s
extensive procedural rights and protections which far exceed those available to the general
public because of the special “nature of the duties of police officers . . . .” Coleman v. Anne
Arundel Cty. Police Dep’t, 369 Md. 108, 122 (2002) (quoting Cancelose v. City of
Greenbelt, 75 Md. App. 662, 666 (1988)). If an officer’s LEOBR protections are violated
4
before the required disciplinary hearing under § 3-107(a),4 § 3-1055 authorizes the officer
to petition the circuit court for relief:
A law enforcement officer who is denied a right granted by this
subtitle may apply to the circuit court of the county where the
law enforcement officer is regularly employed for an order that
directs the law enforcement agency to show cause why the
right should not be granted.
***
The law enforcement officer may apply for the show cause
order . . . at any time prior to the beginning of a hearing by the
hearing board.
***
On a finding that the law enforcement agency obtained
evidence against a law enforcement officer in violation of a
right granted by this subtitle, the court shall grant appropriate
relief.
The LEOBR also authorized the MCPD to order Officer Doe to take a polygraph
exam. LEOBR § 3-104(l)(1). If the Officer had refused, the MCPD could have
“commence[d] an action that may [have led] to a punitive measure as a result of the
refusal.” LEOBR § 3-104(l)(2). Even so, the results of a compelled polygraph aren’t
admissible or discoverable in a criminal proceeding against the officer, LEOBR § 3-
104(l)(3), and “may not be used as evidence in an administrative hearing unless the law
4
LEOBR § 3-107(a) provides in relevant part:
(1) . . . if the investigation or interrogation of a law
enforcement officer results in a recommendation of demotion
. . . or similar action that is considered punitive, the law
enforcement officer is entitled to a hearing on the issues by a
hearing board before the law enforcement agency takes that
action.
5
LEOBR § 3-105 was derived without substantive change from the former Art. 27, § 734.
5
enforcement agency and the law enforcement officer agree to the admission of the results.”
LEOBR § 3-104(m)(1) (emphasis added).
B. The Circuit Court Overstepped By Striking Charge #6.
Chief Manger contends that Officer Doe’s rights under the LEOBR were not
violated by the mere fact of Charge #6, and that because no administrative hearing had yet
been held, there could not yet have been any violation of the Officer’s right under LEOBR
§ 3-104(m)(1) to withhold his consent to its use as evidence.6 Chief Manger’s argument
suggests, without quite saying so, that there was nothing for the circuit court to decide, and
that the Officer should have waited until after the administrative hearing to raise his issues
about the polygraph results. We don’t doubt that the Officer could have waited, but he
didn’t have to: LEOBR § 3-105 specifically vests the circuit court with authority to address
(and redress) LEOBR violations before the hearing board takes any action and, depending
on the violation at issue, even before the hearing board has an opportunity to act.
The LEOBR gives police officers an “unusual right to appeal to a higher authority
before the administrative hearing begins.” Mass Transit Admin. v. Hayden, 141 Md. App.
100, 111 (2001). Consistent with its purpose to provide law enforcement officers with the
6
The FOP argues that Chief Manger failed to preserve the MCPD’s arguments about the
court’s authority to issue a show cause order before an administrative hearing was held or
before the results were offered at a hearing. We disagree. The Chief asked the circuit court,
in so many words, to dismiss the officer’s show cause petition on the ground that the
Conduct Unbecoming charge didn’t violate the LEOBR. And he argued specifically, on
multiple occasions, that the administrative board should decide in the first instance whether
the Officer’s countermeasures constituted a “result” of the polygraph exam. We see no
meaningful difference between the substantive issues before the circuit court and the issues
the Chief raises here.
6
right to pre-hearing review, § 3-105 specifies that “[t]he law enforcement officer may apply
for the show cause order: . . . at any time prior to the beginning of a hearing by the hearing
board.” LEOBR § 3-105(b) (emphasis added). So the plain language of § 3-105 directed
the Officer not to wait for the polygraph results to be offered (or admitted) in an
administrative hearing. Hayden, 141 Md. App. at 112 (“[I]f an officer does not petition the
circuit court for relief prior to the administrative hearing, he or she cannot use section [3-
105] to challenge the administrative decision after the fact); Moose v. Fraternal Order of
Police, 369 Md. 476, 485 (2002) (“Once the first . . . hearing commenced, [officers] were
then barred from seeking a show cause order under section [3-105] . . .”). Section 3-105 is
not a mechanism to “review what the trial board or police chief has done but to assure that
the police agency will do what the law requires” in advance of the required administrative
hearing. Cochran v. Anderson, 73 Md. App. 604, 613 (1988) (emphasis in original).
The Chief argues as well that “[t]he Administrative Hearing Board . . . is the proper
forum to determine whether or not [the] charge is proper.” That’s true as far as it goes, but,
again, doesn’t preclude the Officer from seeking appropriate relief via § 3-105 before the
board considers the merits of the charge. As a general matter, parties must exhaust
administrative remedies before seeking relief from the circuit court. See Moose, 369 Md.
at 492. But “[§ 3-105] is, quite clearly, a statutory exception to the doctrine of exhaustion
of administrative remedies.” Hayden, 141 Md. App. at 113. And it’s a powerful and
unusual exception—when else can a party seek an interlocutory, preemptive, in limine
ruling from a superior tribunal before his rights are even violated?
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Even so, the right to seek preemptive relief from the circuit court isn’t boundless.
The circuit court’s authority under LEOBR § 3-105 is matter of statutory grace, and we
interpret the operative language in the context of the overall scheme:
When a statute is silent about an issue, we should consider its
purpose in construing it to address that issue. We construe the
statute as a whole, interpreting each provision of the statute in
the context of the entire statutory scheme. The statute should
be construed so as to avoid an illogical or unreasonable result,
or one which is inconsistent with common sense.
Hayden, 141 Md. App. at 110 (internal citations and quotations omitted).
The broad purpose of the LEOBR is to provide law enforcement officers with
heightened procedural rights and protections when they are under internal investigation.
Id. The narrower purpose of § 3-105 is to provide a forum for pre-hearing review that gives
officers the benefit of having the courts oversee the administrative process in advance. Id.
And the relief available under § 3-105 is a function of the alleged LEOBR violation at
issue. “[T]he § 3-105 circuit court process entitles an officer to obtain a ruling from the
circuit court that will be implemented at the hearing board trial . . . .” Stone v. Cheverly
Police Dep’t, 227 Md. App. 421, 438 (2016). “In most instances, injunctive or mandamus
relief will suffice; the court can order the agency to act in conformance with the law and,
if necessary, enforce its order through contempt or other appropriate proceedings.”
Cochran, 73 Md. App. at 614. In more extreme situations, the court may need to take more
extreme steps. See, e.g., Hayden (§ 3-105 necessarily includes the authority to vacate an
administrative decision that improperly denied an officer of his LEOBR rights when the
administrative hearing takes place before a timely requested § 3-105 hearing); Cochran,
8
73 Md. App. at 612–614 (§ 3-105 grants the circuit court the authority to terminate LEOBR
proceedings where the agency deliberately flouted its own prompt hearing requirement for
fifteen months). But before intruding further into the administrative process, the circuit
court “must also have some reasonable basis for concluding that less drastic relief—
injunctive or mandamus-type relief—would be inadequate or inappropriate.” Id. at 616.
The goal is not to thwart appropriate investigations or discipline, but rather to empower the
circuit court to take the steps necessary to “assure that the police agency will do what the
law requires.” Id. at 613.
In this case, the circuit court’s ruling striking Charge #6 went beyond ensuring that
the forthcoming administrative proceeding complied with the LEOBR. Officer Doe was
not entitled under the LEOBR to interfere with his polygraph with impunity. Rather, the
LEOBR required Officer Doe to sit for the polygraph but gave him the right to withhold
his consent to its admission as evidence at his administrative hearing. That is the LEOBR
right at issue, and the circuit court could have vindicated that particular right with less
drastic measures, perhaps by ordering the administrative board not to admit the polygraph
results.
The FOP argued, and the circuit court agreed, that any reference to the result of the
polygraph test would be impermissible in a disciplinary hearing without the officer’s
consent, including the “result” that the test was inconclusive. We agree that the results
themselves, at least embodied in the report resulting from the polygraph test, should be
excluded by § 3-104(m)(1) absent Officer Doe’s consent. We cannot agree, however, that
the mere reference to an unreadable outcome in a charge necessarily is tantamount to
9
admitting polygraph results as evidence in an administrative hearing or that the charge
cannot proceed to hearing without the polygraph result.
Charge #6 alleged that Officer Doe committed conduct unbecoming an officer when
he actively interfered with the polygraph test. The charge does not turn on whether Officer
Doe passed or failed his polygraph. It is aimed instead at Officer Doe’s alleged attempt to
thwart the internal investigation into his conduct as a law enforcement officer. It’s the
conduct itself, not the result of the conduct, that lies at the heart of the charge. To analogize
to the criminal context, Charge #6 is akin to an added charge for obstructing justice during
a criminal investigation. It doesn’t matter for our purposes whether the Chief can prove the
merits of the charge without the results of the polygraph—the issue is whether the
exclusion of the polygraph results necessarily precludes the charge. And it doesn’t, as a
matter of law or logic.
Officer Doe’s counsel conceded at oral argument that the logical conclusion from
an affirmance in this case is that the LEOBR permits officers to thwart polygraphs with no
consequences. Such a holding would send a message directly contrary to § 3-105’s purpose
“to enforce the accused officer’s rights under the [LEOBR], not to restrict the agency’s
legitimate right to discipline errant officers.” Cochran, 73 Md. at 616. More directly, since
LEOBR § 3-104(1)(2) empowers the MCPD to charge officers for refusing to take an
investigative polygraph, it makes no sense that Officer Doe couldn’t be charged for refusal-
by-sabotage.
We hold, therefore, that the court erred in concluding that the Chief would be unable
to prove Officer Doe’s misconduct without reference to the polygraph results and that,
10
therefore, Charge #6 must be stricken in its entirety. Until the Chief had the opportunity to
put on evidence—such as, for example, the first-hand observations of the person
administering the test—the viability of Charge #6 couldn’t have been known. And although
the court was entitled to consider measures to protect the Officer’s rights under the
LEOBR, its decision to strike the charge effectively allowed the Officer to leapfrog the
administrative hearing board, the body properly empowered to decide the substance of
Officer Doe’s charges under LEOBR §§ 3-107–3-108.
Although we are reversing the circuit court’s order, Officer Doe is not without
remedies. The plain language of § 3-104(m)(1) precludes the Chief from offering the
results of the investigative polygraph without the Officer’s consent, and we have no trouble
affirming that element of the court’s decision. If the Chief can’t make his case without the
polygraph results, Officer Doe won’t be punished (on that charge). And, of course, after
the hearing, Officer Doe will have the full array of administrative remedies, and then the
opportunity to seek judicial review of the hearing board’s decision, first in the circuit court
and then, if he is still dissatisfied, in the courts of appeal. LEOBR § 3-109. See Coleman,
369 Md. at 121–22. He was not, however, under the circumstance of this case, entitled to
have Charge #6 stricken altogether by way of an order to show cause.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
REVERSED. APPELLEE TO PAY COSTS.
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