Balt. Police Dept v. Brooks

233 A.3d 288, 247 Md. App. 193

• Court: Court of Special Appeals of Maryland
• Decided: July 30, 2020
• Docket: 0979/19
• Status: Published

Opinion

Baltimore Police Department v. James Brooks et al. Case Nos. 979, 980, 982, 983, 985, 988, 989, 991, 992, 993, 994, September Term 2019, Argued, 05/12/2020 Opinion by Harrell, J.

HEADNOTE

PUBLIC SAFETY – LAW ENFORCEMENT OFFICERS’ BILL OF RIGHTS – FILING ADMINISTRATIVE CHARGES

For a police department to “file[] the charges” under Md. Code, Pub. Safety § 3-106(a) in an administrative disciplinary action against an officer, it must act with some level of formality. The Baltimore City Police Department’s practice was to require a signature as the final step before charges may be served upon an officer. As the signatures in each of the disciplinary action cases here were affixed on dates after the expiration of the one-year limitation period in § 3-106, the police department failed to charge timely the covered officers. The circuit court was correct in dismissing the charges. Circuit Court for Baltimore City Case No. 24-C-19-001466, 67, 68, 69, 70, 71, 72, 1126, 1321, 1324, 1325

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 979, 980, 982, 983, 985, 988, 989, 991, 992, 993, 994

September Term, 2019 _____________________________________

BALTIMORE POLICE DEPARTMENT

v.

JAMES BROOKS, ET AL.

_____________________________________

Meredith, Beachley, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned),

JJ.

Opinion by Harrell, J. _____________________________________

Filed: July 30, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2021-01-11 17:40-05:00

Suzanne C. Johnson, Clerk “When will you make an end?

When I am finished.”

Exchange between Pope Julius II (Rex Harrison) and Michelangelo (Charlton Heston) (regarding painting the ceiling of the Sistine Chapel), “The Agony and the Ecstasy” (1965, 20th Century Fox).

These cases1 call upon us to engage in the frequent judicial task of interpreting

ambiguous language in a State statute—in this case, the Law Enforcement Officers’ Bill of

Rights (“LEOBR”).2 In doing so, we must reconcile the policy and practice of a specific

police department regarding that interpretation. This enactment regulated principally the

administrative process of how covered law enforcement employers investigate, charge, and

discipline their covered law enforcement personnel with regard to misconduct deemed to

have violated applicable laws, departmental regulations, and departmental policies. The

present cases focus on a single provision of the LEOBR, codified originally as Md. Code,

Art. 27 § 730(b)(1) in 1988, and revised in Md. Code, Pub. Safety § 3-106(a) in 2003

(without substantive change), that established a one-year period for the employer to decide

whether to charge an employee and the required act for tolling that limitation period. The

provision states that:

[A] law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1

1 Eleven cases, involving a total of fifteen police officers, are consolidated for purposes of this opinion because each case poses the same legal question. 2 LEOBR was adopted originally by the Maryland General Assembly in 1974 (1974 Md. Laws Chap. 722). year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.[3]

The parties disagree over what constitutes the filing of charges. The Legislature did

not provide a definition in the LEOBR. The relevant legislative history does not contain a

clear clue as to what would satisfy the act of filing of charges. This Court has twice

considered related questions regarding § 3-106(a), but neither involved circumstances like

those in the present cases, though there is much in the opinions in those two cases that we

find helpful here, as we shall explain shortly. See Wilson v. Baltimore City Police

Department, 91 Md. App. 436 (1992); see also Prince George’s County Police Department

v. Zarragoitia, 139 Md. App. 168 (2001).

I.

In enacting LEOBR, the Legislature appears to leave to local police departments the

task of putting in place their own policies and practices regarding what constitutes the filing

of charges. The Baltimore Police Department (“BPD”) enacted a departmental written

policy it believes complies with the LEOBR regarding administrative discipline of its

officers. Seeking discipline against the fifteen officers here, the BPD deemed the charges

filed when, during closed-door committee meetings4—the records in these cases contain

no evidence of any minutes of the meetings assertedly kept and which, even assuming

minutes were kept, would not be given to or made available otherwise to an ultimately

3 Emphasis is added to highlight the key phrase which is in dispute. 4 By “closed-door committee meetings,” we mean that only departmental personnel attended, but did not include the officer against whom a complaint was lodged or his/her counsel or union representative. 2 charged officer—held during the required one-year period, the police commissioner’s

designee orally approved the charges. In every case, however, the police commissioner’s

designee (who attended reportedly the committee meetings in person or by phone) did not

memorialize in writing his alleged oral approval until after the expiration of the one-year

limitation period. Nonetheless, the BPD urges that the oral approval given by the

commissioner’s designee at the meeting was sufficient to toll the limitation period.

The officers sued in the Circuit Court for Baltimore City to foreclose the

adjudication of the charges brought against them because the limitation period under § 3-

106(a) had run before the commissioner’s designee evinced timely his approval of filing

charges by signing the required paperwork generated by the closed meetings.5 The circuit

court determined that the phrase “files the charges” in § 3-106(a) “requires some measure

of formality,” in order to provide a court with a means to review the action should an officer

seek a judicial remedy. The court determined that the BPD had installed a practice or

policy of requiring the commissioner’s designee’s signature on the final draft of a charging

document. As a result, the one-year limitation period had run for each of the fifteen cases.

The circuit court dismissed the charges. The BPD appealed timely.

II.

A. Background – In a Nutshell

5 When an officer is denied a right granted by the LEOBR, he or she may apply to a circuit court for an order “that directs the law enforcement agency to show cause why the right should not be granted.” Md. Code, Pub. Safety § 3-105(a). 3 Md. Code, Pub. Safety § 3-106(a) states, as noted earlier, that:

A law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 year after the act that gives rise to the charges comes to the attention of the appropriate agency official.

As noted earlier, no further explanation, elaboration, or definition is provided in the statute

regarding the phrase “files the charges,” or in the legislative history of each relevant

enactment.

In the absence of legislative direction on when charges are deemed to be filed, police

departments are left to adopt their own policies and/or practices regarding the

administrative disciplinary process. The BPD adopted a relevant written policy, Policy

308, on 13 September 2017. It states, in relevant part, that its Office of Professional

Responsibility (the “OPR”) shall investigate allegations of misconduct by officers and

determine whether the allegations are sustained.6 If the allegations are deemed sustained,

the OPR submits proposed charges to the Disciplinary Review Committee (the “DRC”).

The DRC, consisting of sworn and civilian members of the BPD appointed by the police

commissioner, review the factual findings of the OPR and reputedly a draft of proposed

charges, before making a recommendation for discipline.

Once the DRC crafts its recommendations, the police commissioner’s designee7 is

tasked with approval responsibility over the recommendations, “as is” or as may be

6 “Sustained” means that, by a preponderance of the evidence, the record before the OPR establishes that the alleged misconduct occurred. 7 Although the police commissioner is authorized to perform this function personally, on the record before us, it was the police commissioner’s designee who attended the DRC meetings. 4 amended. It is claimed by the BPD that the designee’s approval occurs verbally initially

at the closed-door DRC meeting. According to the “Disciplinary Flow Chart” contained

in Policy 308, the commissioner’s designee’s approval of charges is the final step prior to

serving charges on the officer in question, who then either may accept or contest the

discipline. Neither the flow chart, nor the text of Policy 308, addresses, however, how or

when in the process the commissioner’s designee’s final approval is evinced. The Policy

fails also to provide a definition for when the charges are deemed filed.

It has been, at all times relevant to the present cases, the practice of the BPD that, at

some point following completion of a DRC meeting, a member of the DRC and the

commissioner’s designee, respectively, sign a form titled “Baltimore Police Department

Internal Affairs Transmittal Cover,” referred to also as the charging document. This

document lists the accused officer, the investigated allegations, whether the allegations

were sustained, a summary of the facts, and a handwritten recommendation for discipline.

Notably, on pages 4-6, the form document provides signature and dating lines. These lines

are signed and dated by first the DRC representative and then the commissioner’s designee,

which acts may be concurrent or sequential. It also has sections displaying the date the

charged officer is served and acknowledgement of service.8 Counsel for BPD, at the final

hearing before the circuit court regarding the present cases, claimed that the BPD did not

require the execution of this document by the DRC representative or the commissioner’s

8 The acknowledgement of service section provides the officer with three options: 1) Acceptance of Punishment; 2) Acknowledgement of Non-Punitive Counseling and/or Training; or 3) Request for an Administrative Hearing Board. 5 designee as part of the disciplinary process described in Policy 308; however, counsel

acknowledged also that, to her knowledge, the BPD had never participated in a hearing

based on charges without the signature of approval by the commissioner’s designee.

In each of the cases, the commissioner’s designee’s signature on the form signifying

approval was not affixed until after the expiration of the one-year period.9 The record

contains no basis for determining what any draft charges may have looked like if presented

to the DRC and, therefore, there is no basis to compare them to the final charges served

upon the officers. Thus, we have no way of knowing whether amendments were made

between the DRC meetings and the sign-offs by the commissioner’s designee.

B. More Background – A Deeper Dive

The BPD received a complaint regarding Officer James Brooks on 3 October 2017.

Officer Brooks was alleged to have failed to secure a building properly while detectives

were seeking a search warrant for the premises. The DRC met to review the OPR findings

and consider a discipline recommendation on 2 October 2018.10 The commissioner’s

designee signed-off on final charges and discipline on 4 October 2018.

The BPD received a complaint regarding Officer Damond Durant on 10 November

2017. Officer Durant was alleged to have failed to identify himself as a police officer and

9 In three instances, for unexplained reasons, officers were served prior to the commissioner’s designee signing-off on the final charging documents. Those charges were against Officers Damond Durant and Jonathan Boyer and Sergeant Steve Histon. We concluded in Wilson v. Baltimore City Police Dept. that providing notice to a police officer is not the same as filing the charges. 91 Md. App. 436 (1992). Thus, the early notice to these three officers plays no substantive role in our analysis of the question at hand. 10 In each case, the DRC meeting occurred within 365 days of the BPD learning of the complaint. 6 to have displayed his handgun during an off-duty encounter with two individuals suspected

to be engaged in a crime. The DRC met to review the OPR findings and consider a

discipline recommendation on 8 November 2018. The commissioner’s designee signed-

off on final charges and discipline on 31 January 2019.

The BPD received a complaint regarding Sergeant Jared Fried on 18 October 2017.

Sergeant Fried was alleged to have failed to: provide an individual stopped during an

investigative traffic stop with a citizen contact receipt before he left the scene, to obtain a

central complaint number; and, to document the stop properly. The DRC met to review

the OPR findings and consider a discipline recommendation on 17 October 2018. The

commissioner’s designee signed-off on final charges and discipline on 13 November 2018.

The BPD received a complaint regarding Sergeant Steve Histon and Officer

Jonathan Boyer on 27 September 2017. Officer Boyer was alleged to have failed to write

a report or take proper enforcement action after stopping four suspects, i.e., recovering the

cell phone of an alleged robbery victim. Sergeant Histon was alleged to have failed to

ensure Officer Boyer documented the alleged robbery properly and otherwise failing to

supervise his units. The DRC met to review the OPR findings and consider a discipline

recommendation on 26 September 2018. The commissioner’s designee signed-off on final

charges and discipline on 4 October 2018.

The BPD received a complaint regarding Officer Norman Jones on 10 November

2017. Officer Jones was alleged to have acted disrespectfully toward staff and failed to

follow a direct order and to write an administrative report explaining why he was missing

equipment and in possession of malfunctioning equipment at an annual Taser

7 recertification class. The DRC met to review the OPR findings and consider a discipline

recommendation on 9 November 2018. The commissioner’s designee signed-off on final

charges and discipline on 13 November 2018.

The BPD received a complaint regarding Sergeant Denishia Jordan on 18 December

2017. Sergeant Jordan was alleged to have been “disrespectful, insubordinate, and/or

aggressive towards” her captain. The DRC met to review the OPR findings and consider

a discipline recommendation on 13 December 2018. The commissioner’s designee signed-

off on final charges and discipline on 4 January 2019.

The BPD received a complaint regarding Officer Latasha McBride on 12 October

2017. Officer McBride was alleged to have challenged the authority of a commanding

officer and to have laughed at an instruction provided by the same officer. The DRC met

to review the OPR findings and consider a discipline recommendation on 11 October 2018.

The commissioner’s designee signed-off on final charges and discipline on 16 October

2018.

The BPD received a complaint regarding Officers Raul Rivera and Ryan Oliver on

16 December 2017. Officer Oliver was alleged to have failed to write a report on an assault

incident. Officer Rivera was alleged to have failed to ensure that Officer Oliver wrote the

report. The DRC met to review the OPR findings and consider a discipline

recommendation on 13 December 2018. The commissioner’s designee signed-off on final

charges and discipline for Officer Oliver on 4 January 2019 and for Officer Rivera on 7

January 2019.

8 The BPD received a complaint regarding Officer Richard Whittaker on 6 January

2018. Officer Whittaker was alleged to have been inebriated and in possession at the time

of his approved and loaded off-duty weapon. The DRC met to review the OPR findings

and consider a discipline recommendation on 3 January 2019. The commissioner’s

designee signed-off on final charges and discipline on 7 January 2019.

The BPD received a complaint regarding Sergeant Larry Worsley on 22 December

2017. Sergeant Worsley was alleged to have harassed another officer over a ten-month

period, challenged the same officer to a fist fight, and intimidated the officer such that he

began to fear for his life. The DRC met to review the OPR findings and consider a

discipline recommendation on 21 December 2018. The commissioner’s designee signed-

The BPD received a complaint regarding Officers Kent Sowers, Eric Baublitz, and

Isiah Smith on 18 January 2018. The Officers were alleged to have conducted an illegal

search at an incorrect address when responding to an alarm call. Officers Sowers and

Baublitz were alleged also to have deactivated their body cameras. The DRC met to review

the OPR findings and consider a discipline recommendation on 16 January 2019. The

commissioner’s designee signed-off on final charges and discipline on 29 January 2019.

Each officer filed a petition for a show cause order from the Circuit Court of

Baltimore City, alleging the BPD failed to file the charges timely, pursuant to Md. Code,

Pub. Safety § 3-106(a). The circuit court held a hearing 14 June 2019. The judge

determined that the BPD failed to satisfy the one-year limitation period. Although praising

generally the BPD’s procedure for handling charges against officers, the hearing judge

9 noted that a definition for what it means to “file” the charges under § 3-106(a) was never

established, e.g., Policy 308 did not state “whether filing occurs upon signing or not signing

[the departmental approved form] or oral approval or not oral approval [at the closed DRC

meeting].” The court determined that the BPD was not due judicial deference to its Policy

in this regard because it “does not give a definition parallel to the statute such that [the trial

court] would have to decide whether the Police Department’s adopted definition is

consistent with the statute and the General Assembly’s intent or not.”

Ultimately, the court concluded that the language of the statute “require[d] some

measure of formality” in departmental action evincing the filing of charges. Although that

“formality [is] not [the] equivalent of a court filing where there’s a clerk’s office charged

with maintaining records,” there must be a “way that that step in the process of approving

charges can be examined and scrutinized by the court” because the “statute provides

remedies for the officer to come to court . . . to challenge whether the charges have been

brought timely or not.” Although “a signature is not necessarily required,” a signature is,

according to the court, “what the Department has adopted” through its practice of having

the commissioner’s designee and a DRC member (on behalf of the DRC) sign and date

their respective approvals of the final charging document:

The charges that [the BPD] issues give places for the signatures and the date on which signed, which suggests that the Department treats the approval as being when it is signed.

As the commissioner’s designee’s signature was affixed after the one-year

limitation period expired, the court dismissed all charges against the officers.

10 III. QUESTION PRESENTED

Appellant frames one question for our consideration, which we have rephrased non-

substantively:

I. Did the circuit court err in its determination that the charges against appellees/officers were not filed timely within the one-year statutory limitation as required by Md. Code, Pub. Safety § 3-106(a) when the police commissioner’s designee approved the discipline prior to exhaustion of the one-year period but failed to sign the charging documents until after exhaustion?

IV. RELEVANT GENERAL STANDARDS OF REVIEW

When reviewing an action tried without a jury, we review the judgment of the trial

court “on both the law and evidence.” Banks v. Pusey, 393 Md. 688, 697 (2006). We defer

to the circuit court’s findings of fact, except where “the judgment of the trial court on the

evidence [is] clearly erroneous.” Md. Rule 8-131(c). Despite the deference given to its

findings of fact, legal analysis by a trial court receives no deference. Friendly Fin. Corp.

v. Orbit Chrysler Plymouth Dodge Truck, Inc., 378 Md. 337, 342–43 (2003). In that vein,

“[s]tautory construction is a legal question,” which we review using a non-deferential

standard. Miller v. Mathias, 428 Md. 419, 450 (2012).

V. DISCUSSION

The BPD argues that it, through its adherence to Policy 308, complied with Md.

Code, Pub. Safety § 3-106(a) and filed the charges within one year of when it was put on

notice of alleged misconduct. As there was no regulatory definition to determine what

constituted filing of charges in the Policy, the BPD claims it complied with the statute by

11 the act of the commissioner’s designee approving verbally the proposed charges and

discipline at the DRC meetings. As this argument continues, although a form document

calling explicitly for a signature and date of signing of the charges contemporaneous with

or following the DRC meeting was a part of departmental practice, signing of the form

document was not significant for purposes of determining when filing occurs as it was

nothing more than a form of proof of the earlier verbal approval by the commissioner’s

designee, rather than the approval in and of itself. The filing occurs when the designee

approves verbally at the DRC meeting the recommended discipline because the final step

in Policy 308, before presenting charges to the officer, is titled “Presentation of

Disciplinary Recommendation.” The BPD claims also that its interpretation of what it

means to file the charges is due deference from a reviewing court.

Appellees do not dispute a number of the claims about the LEOBR made by the

BPD. In particular, Appellees agree that the declination by the Legislature to define “files

the charges” leaves open the interpretation and implementation of the requirement by the

local police through adoption of local policies and practices. The officers note, however,

that some formal indicia—whether it be in the form of a signature, stamp, or other means—

is required to evince the final act of the filing of charges. Further, the officers claim that,

although the BPD claims that it adopted an interpretation that the charges are filed upon

verbal acceptance by the commissioner’s designee at the DRC meeting, the departmental

practice belies that position because the charges are not final, i.e., not filed, until the

designee signs-off on the charging document. In signing the charging document the

designee provided a proper indicia of formality required by the word “filing.” The officers

12 also disagree with the BPD’s claim that its interpretation of the phrase should be given any

deference as Policy 308 does not provide a definition of what represents filing the charges.

We shall agree with the circuit court and the officers and affirm the judgment of the circuit

court.

When considering ambiguous statutory language, we construe the ambiguous words

“as having their ordinary and commonly-accepted meaning.” Waters Landing Ltd. P’ship

v. Montgomery County, 337 Md. 15, 27–28 (1994). We are bound as well to give the words

“the contextual meaning most probably intended by the Legislature.” Deibler v. State, 365

Md. 185, 195 (2001). Framed another way, we must use “common sense to avoid illogical

or unreasonable constructions,” Armstead v. State, 342 Md. 38, 56 (1996), and “may not

extend statutes to make them say what the legislature, by choice or oversight, did not say.”

Dep’t of Nat. Res. v. Adams, 37 Md. App. 165, 173 (1977). “Even if the plain language of

the statute is clear and unambiguous, we may use extraneous interpretive aids, such as

legislative purpose, history, and context to confirm our interpretation.” Prince George’s

County Police Dept. v. Zarragoitia, 139 Md. App. 168, 180 (2001) (citing Smith v. State,

115 Md. App. 614, 621 (1997)).

In determining what the ordinary and commonly accepted meaning of a phrase or

word is (whether engaged in plain meaning or ambiguity analysis), we often consult an

appropriate dictionary for guidance, without losing sight of the context provided by the

statute and the Legislature. See State Dep’t of Assessments & Taxation v. Md.-Nat’l

Capital Park & Planning Comm’n, 348 Md. 2, 14 (1997) (“[I]n deciding what a term’s

ordinary and natural meaning is, we may, and often do, consult the dictionary”). But see

13 Friends of Frederick County v. Town of New Mkt., 224 Md. App. 185, 202 (2015)

(“Recourse solely to a dictionary is not the only way, nor indeed usually the best way, by

which a court can discern legislative intent . . . rather [courts] consider it within the context

of the statutory scheme”).

To keep it foremost in our minds in this analysis, we reiterate that Md. Code, Pub.

Safety § 3-106(a) provides in totality that:

Subject to subsection (b)[11] of this section, a law enforcement agency may not bring administrative charges against a law enforcement officer unless the agency files the charges within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.

The particular context of § 3-106(a) in LEOBR offers little to no help in discerning what

the Legislature meant by “filing.”

Looking to the legislative history, we find some guidance regarding the purpose of

the Statute. In enacting the pertinent bill, the Senate Judiciary Committee report explained

that:

Current law does not provide a time limit for the filing of administrative charges against a law enforcement officer under the Law Enforcement Officers’ Bill of Rights.

Testimony indicated that there have been many instances where a law enforcement officer who has committed a minor infraction has had that minor infraction held over his head for an extended period of time, resulting in significant uncertainty as to when, or even if, any disciplinary action is to be taken. The types of minor infractions referred to in this bill include administrative offenses such as improper wearing of a uniform, or not completing or signing a gasoline trip ticket. It is unfair, unreasonable, and

11 Subsection (b) excuses the one-year limitation period in cases of criminal activity or use of excessive force matters. None of the charges against Appellees involved either category. 14 serves no useful purpose to allow a supervisor to withhold the filing of such administrative charges indefinitely.

At some point, supervisory officials should be required either to file the administrative charge against the officer or to drop the charge so that the officer is relieved of the anxiety and concern that results from not knowing if or when the charges will be officially brought against the officer.

Floor Report of the Senate Judiciary Committee for Senate Bill, at page 1–2 (1988). We

discern from this language that, in order to deem charges filed, officers were to have some

protection against the threat of a charge or charges being dangled indefinitely over their

heads.

Black’s Law Dictionary defines “filed” as meaning when a paper is “delivered to

the proper officer, and by him received to be kept on file as a matter of record and

reference.” The BPD notes that this Court addressed the definition of “filed” previously,

having recourse to Black’s in the process. In Wilson v. Baltimore Police Department, we

held that charges were not filed, within the meaning of Md. Code Art. 27 § 730(b)(1) (the

predecessor to current § 3-106(a)),12 when they were served upon an officer, but rather

“when charges against a police officer recommending disciplinary actions are presented to

and approved by one authorized to initiate formal proceedings against the officer. At that

point, the charges against the officer become a matter of record, subject to adjudication.”

12 Section 730(b)(1) stated that: “administrative charges may not be brought against a law enforcement officer unless filed within 1 year after the act that gives rise to the charges comes to the attention of the appropriate law enforcement agency official.”

The Revisor’s Note for Md. Code, Pub. Safety § 3-106 clarifies that it contains “new language derived without substantive change from former Art. 27, §730(b). Subsection (a) of this section was revised to reflect the active voice to clarify that a law enforcement agency files administrative charges against a law enforcement officer.” 15 91 Md. App. 436, 438–39 (1992), cert. denied, 327 Md. 525 (1992). In reaching that

conclusion, we took into account the Black’s Law Dictionary definition and noted further

that the words “file” or “files” “is used loosely to denote official custody of the court or

the place in the offices of a court where the records and papers are kept.” On the record in

Wilson, we concluded that the charges were filed when the Deputy Commissioner of Police

signed-off on the charges against the officer.13

The relevant language of the LEOBR came under scrutiny next by this Court in

Prince George’s County Police Department v. Zarragoitia. 139 Md. App. 168 (2001). In

Zarragoitia, the Court was tasked with considering what constituted an administrative

charge under the LEOBR. Id. The Prince George’s County Police Department argued that

its practice was to treat a document known as a “Report of Investigation” or “ROI” as the

official charging document for filing purposes, despite the fact that the ROI did not provide

exact language regarding the charges or references to what the charges were based on, and

there was additional review mandated by the department’s written policy following signing

off on the ROI. We held that an “administrative charge . . . is a formal accusation of

misconduct that evidences a decision by the agency to proceed against the law enforcement

officer and marks the beginning of the adjudicatory phase of the proceeding.” Id. at 184.

13 Although a signature was deemed the time of filing in Wilson, we hasten to observe that that may not always be the case statewide. Determining when charges are filed under § 3- 106(a) is a fact-driven analysis that hinges on the particular police department’s policy and practice in handling disciplinary charges. The Legislature did not intend to make a signature on a specific document as a requirement for the time of filing across all police departments. Based on the record in Wilson, however, that was the determinative act of filing based on the department’s policy and practice in place at the time. 16 We noted that signing a document that was little more than a non-binding proposal to

charge did not qualify as filing charges under the LEOBR as the document did not rise to

the level of “charges.” To conclude otherwise would be improper as it was antithetical to

the legislative purpose of adding the one-year limitation period to the LEOBR. The

limitation period, added in 1988 as Section § 730(b)(1) of the LEOBR, “was enacted

because ‘[i]t is unfair, unreasonable, and serves no useful purpose to allow a supervisor to

withhold the filing of such administrative charges indefinitely.’” Id. at 186–87 (quoting

Floor Report for the Senate Judiciary Committee for Senate Bill 623, at 1). If the

Department’s practice was valid, “the Department would give itself an indefinite, unlimited

period of time in which to file charges. During that indefinite and unlimited period, the

officer would have no information about the proposed charges, no means to prepare a

defense, and no way to force a matter to a conclusion.” Id.

The BPD interprets these two cases as endorsing the notion that a filing occurs when

there is no further review to be undertaken and the charges have been approved by the final

supervisory person empowered to make the decision whether the final version of charges

are acceptable, e.g., the commissioner’s designee at the DRC meeting. As there was

assertedly no change between the draft charges alleged to have been presented at the DRC

meetings and the time the designees signed-off formally on the form document,14 the BPD

argues that it is appropriate that the final review occurs at the DRC meeting and thus

charges are filed formally upon the designee’s giving of his/her/their verbal approval. As

14 A claim which cannot be verified on these records. 17 such, the BPD states that “[a] signature is nothing more than a handwritten name . . . simply

one form of proof of the designees’ approvals, not approvals in and of themselves. The

approvals took place at the DRC meetings; the subsequent signatures merely evidenced

those approvals.” We reject this “rabbit-pulled-from-a-hat” position on the records before

us.

The record establishes that the full procedural panoply employed by the BPD in

disciplinary cases is not to consider the charges filed and final until the signing and dating

of the form document accompanying the final written statement of charges, regardless of

whether the final charges are unchanged as allegedly approved verbally at the DRC

meeting or have been revised or amended following the DRC meeting and before submittal

to the commissioner’s designee for his/her signature.

At the circuit court hearing, counsel for the BPD conceded that, although she did

not believe a signature was required necessarily, the Maryland Office of Administrative

Hearings (“OAH”), to which an appeal is available to a disciplined officer, had never

proceeded with a hearing based only on a charge approved at the DRC meeting, without

the signature on the charging document by the commissioner’s designee. As the circuit

court stated, “a signature . . . is what the Department had adopted. The charges that it issues

give places for the signatures and the date on which signed, which suggests that the

Department treats the approval as being when it is signed.” We agree with the circuit court

and hold that the BPD observed a policy and practice that formal filing of charges comes

upon the signature by the commissioner’s designee on the form document accompanying

the final version of the charging document and proposed discipline.

18 This holding is not inconsistent with BPD Policy 308. The policy does not provide

a definition of when charges are considered filed. According to the flow chart incorporated

in Policy 308, the relevant steps proceed from “Presentation of Disciplinary

Recommendations”15 to the officer’s opportunity to accept or contest the proposed

discipline contained in the charges. The BPD claims that the flow chart “makes clear that

review by the DRC is the final step before a charge is presented to the officer . . . .” The

lack of recognition in the policy of an otherwise formal practice occurring between the

presentation of the recommendations to the commissioner’s designee and the service of

charges on the officers makes problematic the BPD’s attempted reconciliation of what is

explicit in Policy 308 and what occurs in practice. Although the two ranking officers

designated as the commissioner’s designee in these respective cases provided affidavits in

this litigation stating (in conclusory fashion) that the charges are considered filed by the

BPD after the designee’s verbal approval at the DRC meetings, this conflicts with the

BPD’s actual practice of requiring a signature by the designee. As easily as appellate

counsel for the BPD imagines a scenario where an OAH hearing could be held in the

absence of the designee’s signature on the charging document, she admitted that she knew

of none ever held without that prerequisite act. This implies that the act of signing the

charging documents carries weight even outside the police department. Under the

administrative process followed by the BPD in these cases, nothing forecloses other

rational hypotheticals, such as where draft charges (with or without amendments/revisions)

15 This presentation is to the Police Commissioner or his/her designee presumably, but that is not explicit in Policy 308. 19 and proposed discipline are approved tentatively by the DRC (including a verbal

acquiescence by the commissioner’s designee), but new and relevant facts come to light in

the intervening time between the DRC meeting and before the designee signs-off formally,

or the DRC reopens its consideration for any reason, or the designee changes his/her mind

about the framing of charges as submitted or the appropriate discipline, or the designee

disagrees with the framing of revisions made in the draft charges subsequent to the DRC

meeting (whether contemplated or not at the meeting). Under any of these hypotheticals,

none of which would be inconsistent with Policy 308 as written, the filing does not occur

until the designee signs-off formally on the charging document form.

Were we to agree with the BPD and hold that Policy 308 establishes that the BPD

considers charges filed upon the verbal acceptance of the DRC recommendations by the

commissioner’s designee at the DRC meeting, there would arise a foreseeable danger that

the LEOBR sought to foreclose. It is clear from the text of the statute and our prior relevant

decisions that a level of formality is required for the filing of charges. See Wilson, 91 Md.

App. at 439 (holding that the triggering event is when formal proceedings are initiated and

“the charges against the officer become a matter of record, subjection to adjudication”);

see also Zarragoitia, 139 Md. App. at 184 (holding that a charge is a formal accusation

that sets off the adjudicatory process). If the charges were deemed filed upon verbal

approval alone, the adjudicatory process would be without the level of formality necessary

for proper review of the department’s compliance with § 3-106(a) of the LEOBR.

Moreover, adopting the BPD’s view might deny charged officers with a timely opportunity

to learn of possible violations of the one-year limitation period and contest the charges and

20 discipline meted-out to them. If, as on the records in the present cases, the only evidence

of what occurred at the meeting and the weight it carries with regard to interpreting and

applying § 3-106 are the after-the-fact litigation affidavits provided by the commissioner’s

designees, then there is no fair avenue for a contesting officer to challenge violations of §

3-106(a). That is contrary to the intent of the legislation as it is framed presently.16

As we noted in Zarragoitia, a legislative purpose behind § 3-106 is to ensure that

officers do not have the potential of administrative charges hanging-over them indefinitely.

As shown by this record, time passed after the DRC meetings before the signature of the

commissioner’s designee was placed on the form accompanying the final charging

document provided the officer. Although actual notice to the officer, as explained in

Wilson, is not necessary for charges to be filed, Policy 308, as read by the BPD, does not

require any formal action that would put the officer on notice of the date of the act that

charges had been approved finally. “During that [possible] indefinite and unlimited period

[that could follow the DRC verbal action], the officer would have no information about the

proposed charges, no means to prepare a defense, and no way to force a matter to a

conclusion,” but for the date of signing by the commissioner’s designee on the final version

of the charging document. Zarragoitia, 139 Md. App. at 186–87.

The BPD advances one final argument. Its interpretation of the statutory language

“files the charges” is entitled to deference by the courts. Indeed, “an administrative

16 If the Legislature thinks our position off-the-mark regarding a statutory interpretation question, it knows how to express its contrary will prospectively (or, in certain circumstances, retrospectively). 21 agency’s interpretation and application of the statute which the agency administers should

ordinarily be given considerable weight by reviewing courts,” unless it is “based upon

errors of law.” Coleman v. Anne Arundel Cty. Police Dep’t, 369 Md. 108, 121 (2002). The

level of deference we provide an administrative agency’s interpretation of a statute,

however, “depends on several factors,” including “the duration and consistency of the

administrative practice” and “the degree to which the agency’s construction was made

known to the public.” Marriott Emps. Fed. Credit Union v. Motor Vehicle Admin., 346

Md. 437, 445 (1997). Policy 308 was published on 13 September 2017. The LEOBR was

passed in its original form by the Maryland Legislature in 1974 and the one-year limitation

period in § 3-106 was added in 1988. The BPD’s interpretation of its written Policy attracts

less deference here than it would were the record to demonstrate that it was the

longstanding policy or practice of the Department.

Further, the BPD’s interpretation of the Policy does not appear explicitly or by

strong implication in its text. “Another important consideration is the extent to which the

agency engaged in a process of reasoned elaboration in formulating its interpretation of the

statute. When an agency clearly demonstrates that it . . . reached its interpretation through

a sound reasoning process, the agency’s interpretation will be accorded the persuasiveness

due a well-considered opinion of an expert body.” Baltimore Gas and Elec. Co. v. Public

Service Comm’n of Maryland, 305 Md. 145, 161–62 (1986). Additionally, “if the

interpretation is the product of neither contested adversarial proceedings nor formal rule

promulgation, it is entitled to little weight.” Id. at 162. For all that these records reveal,

the Department’s interpretation is made apparent solely in the litigation affidavits prepared

22 by the commissioner’s designees in these cases. Those affidavits are all dated 26 April

2019. The conclusory assertions in the affidavits relative to the Department’s interpretation

state starkly only that: “[t]hrough my approval of the disciplinary recommendation . . . the

disciplinary charges . . . were deemed formally filed.” From this record, no assessment is

possible as to the longevity or consistency over time of that interpretation as a departmental

position, nor is the presence of a sound reasoning process determinable. We think the

deference due in these cases is on the very low end of the spectrum.

Despite this minimal deference, the BPD requests that we extend still to its

interpretation, e.g., that charges are filed when verbally approved at the DRC meeting,

enough deference to allow its view safe passage. When presented this argument, the circuit

court determined, nonetheless, that the BPD’s interpretation was based on an error of law.

The judge explained that:

[Policy 308] certainly lays out a very orderly process for considering and approving charges, but it never defines one way or the other whether filing occurs upon signing or not signing or oral approval or not oral approval . . . it does not give a definition parallel to the statute such that I would have to decide whether the Police Department’s adopted definition is consistent with the statute and the General Assembly’s or not.

So I don’t see this as a situation where substantial deference is due to the Police Department for how it has defined an action relating to a statutory requirement.

The circuit court continued that, as Policy 308 did not define what it meant to file charges,

the proper course of action is to look at the actual practice followed by the BPD in these

cases. We agree with the circuit court.

23 JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

24 The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/0979s19cn.pdf