Hawkins v. Department of Public Safety & Correctional Services

602 A.2d 712, 325 Md. 621, 7 I.E.R. Cas. (BNA) 382, 1992 Md. LEXIS 41
CourtCourt of Appeals of Maryland
DecidedMarch 10, 1992
Docket63, September Term, 1991
StatusPublished
Cited by9 cases

This text of 602 A.2d 712 (Hawkins v. Department of Public Safety & Correctional Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkins v. Department of Public Safety & Correctional Services, 602 A.2d 712, 325 Md. 621, 7 I.E.R. Cas. (BNA) 382, 1992 Md. LEXIS 41 (Md. 1992).

Opinions

RODOWSKY, Judge.

This casé has been presented as one involving freedom of speech by a public employee. The question is whether a prison guard may be discharged, during the probationary employment period, based in substantial part on the guard’s abusive words and conduct directed toward a private citizen, while the guard was off duty, away from the prison, and out of uniform. The facts are straightforward; the procedural history is tangled; and directly applicable, controlling law appears to be sparse, if not nonexistent.

Appellant, Donald H. Hawkins (Hawkins), was employed on February 26,1985, by the Division of Correction, Department of Public Safety and Correctional Services of the State of Maryland, as a probationary correctional officer at the House of Correction. Approximately twenty years earlier Hawkins had worked at the House of Correction for about one and one-half years, and he had worked for five years as a guard at the Anne Arundel County Detention Center.

On November 27, 1985, Hawkins, in mufti, presented his State of Maryland payroll check for cashing to Ms. Hanaa Elabd (Elabd), a teller at the Maryland National Bank branch office on West Street in Annapolis. The check was drawn on First National Bank, and Hawkins had no account [623]*623with Maryland National Bank. Over the preceding nine months, however, Hawkins had been cashing his payroll checks at the West Street branch of Maryland National, an arrangement made possible by Hawkins’s acquaintanceship with the person who previously had been manager of that branch.

On the occasion in question the teller, Elabd, advised Hawkins that Maryland National would not cash the check, and she directed him to the nearest branch of First National Bank. Hawkins began arguing and requested to see the branch manager. The manager was not on the premises at the time, but Elabd explained that she, as head teller, was in charge. Hawkins left the tellers’ counter and spoke to a service representative who, after a lengthy discussion, authorized cashing the payroll check. In this discussion Hawkins exhibited a document identifying himself as a correctional officer at the House of Correction.

What thereafter transpired is described in a letter of December 10, 1985, written by the bank’s branch manager to the Warden, Maryland House of Correction.

“Mr. Hawkins returned to Mrs. Elabd’s window and passed a smug remark about his going over her head. Without incident, Mrs. Elabd cashed his check and gave him the money. He then walked away about 20' and loudly proclaimed ‘Hitler should have gotten rid of all you Jews’. Mrs. Elabd looked surprised and motioned to the teller next to her that she was not Jewish. Mr. Hawkins was watching her reaction, then continued, ‘and all the Poles too’. The teller’s response was ‘She’s not ignorant either’. With that said, he turned and left the bank. There were several other customers and Maryland National Bank employees who witnessed this scene.”

Shortly after this incident occurred, an official of the State of Maryland Department of Natural Resources who happened to come into the bank was told what had occurred. That official telephoned the House of Correction and reported the incident to Larry B. Anderson (Anderson), the personnel officer at the penal institution. Two or three [624]*624hours after the incident, Anderson telephoned the bank and spoke both to the manager and to Elabd, who was still upset and crying during the telephone conversation. In that conversation Anderson learned that Elabd is Egyptian. Subsequently, the bank manager confirmed the facts of the incident by the letter, above quoted.

On December 18, 1985, Hawkins was called before the warden who reviewed the information received concerning the incident at the bank. Hawkins denied making the statements attributed to him. The warden also apparently reviewed other deficiencies in Hawkins’s record, including failures to appear for work. At this meeting the warden rejected Hawkins from probation, i.e., terminated his employment.1

Hawkins appealed to the Secretary of Personnel (the Secretary), contending that his first amendment rights were infringed by the rejection.2 At an evidentiary hearing before a hearing officer Anderson and Hawkins testified. Anderson explained how correctional officers are on the “front line” in handling inmates, in observing their conduct, in maintaining order, in controlling their movement, and in intervening in disputes between inmates. The job is “a very stressful one under the best of circumstances.” Inmates are constantly shouting provocative remarks at the [625]*625correctional officers. The House of Correction has “a large black population, as well as white population of inmates and a variety of other racial, ethnic, and religious groups.” In Anderson’s opinion “the actions that Mr. Hawkins displayed in the bank in acting out what was apparently prejudice on his part is exactly the kind of behavior that has the potential to escalate the tensions inside of the institution rather than to produce the calming effect that’s desired.”

Hawkins denied making the statements. He said, “I don’t know where they got this. I mean anybody looking can tell when they are a Jew.” He further testified, “I don’t believe how anybody can say this because I believe that Jews are God’s chosen people.”

The hearing officer accepted the version of the incident described in the bank manager’s letter.

Hawkins filed exceptions with the Secretary. The Secretary’s designee concluded that “[t]he evidence in the record clearly indicated that Mr. Hawkins’ remarks on November 27, 1985, to the bank teller were mere personal abuse.” The Secretary’s designee could “not reasonably conclude that Mr. Hawkins’ abusive remarks directly to Ms. Elabd fall under the shield of the first amendment.” Inasmuch as the remarks were “unprotected under the first amendment” Hawkins’s rejection from employment was not for an illegal reason and, therefore, was effective.

Hawkins appealed to the Circuit Court for Baltimore City where the matter was heard by Judge Marvin B. Steinberg. Judge Steinberg determined that Hawkins’s remarks were not of public concern, but that this would not deny Hawkins protection from termination under the first amendment. The court referred to the test laid down in Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811, 817 (1968), of arriving “at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Judge [626]*626Steinberg viewed this balancing test to be applicable, as well, to comments upon matters which were not of public concern, including comments directed solely to individuals. The circuit court accordingly ordered this case remanded to the Secretary in order to make findings of fact concerning whether Hawkins’s “comments adversely affected the State’s ability to perform its functions.”

At a second administrative hearing held in August of 1989 the State produced as its witness Gary Hornbaker (Hornbaker), the Director of Security for the Division of Correction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brown v. City of Tulsa
N.D. Oklahoma, 2023
Attorney Grievance Commission v. Gansler
835 A.2d 548 (Court of Appeals of Maryland, 2003)
Smack v. Department of Health & Mental Hygiene
759 A.2d 1209 (Court of Special Appeals of Maryland, 2000)
Stover v. Prince George's County
752 A.2d 686 (Court of Special Appeals of Maryland, 2000)
Vinci v. NEB. DEPT. OF CORR. SERVICES
571 N.W.2d 53 (Nebraska Supreme Court, 1997)
Vinci v. Nebraska Department of Correctional Services
571 N.W.2d 53 (Nebraska Supreme Court, 1997)
McIntyre v. Guild, Inc.
659 A.2d 398 (Court of Special Appeals of Maryland, 1995)
Pruitt v. Howard County Sheriff's Department
623 A.2d 696 (Court of Special Appeals of Maryland, 1993)
Hawkins v. Department of Public Safety & Correctional Services
602 A.2d 712 (Court of Appeals of Maryland, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
602 A.2d 712, 325 Md. 621, 7 I.E.R. Cas. (BNA) 382, 1992 Md. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-department-of-public-safety-correctional-services-md-1992.