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Prince George's County v. Prince George's County Police Civilian Employees Association

Court of Special Appeals of Maryland

September 2, 2014

PRINCE GEORGE'S COUNTY, MD. ON BEHALF OF PRINCE GEORGE'S COUNTY POLICE DEPARTMENT
v.
PRINCE GEORGE'S COUNTY POLICE CIVILIAN EMPLOYEES ASSOCIATION, ET AL

Page 1095

Appeal from the Circuit Court for Prince George's County. Michael A. Pearson, Judge.

Argued by: Josue Pierre (M. Andree Green, County Attorney on the brief) all of Upper Marlboro, MD for Appellant.

Argued by: Abigail V. Carter and Daniel A. Zibel (Bredhoff & Kaiser, PLLC on the brief) all of Washington, D.C. for Appellee.

Zarnoch, Wright, Raker, Irma S. (Retired, Specially Assigned), JJ. Opinion by Wright, J.

OPINION

Page 1096

[219 Md.App. 112] Wright, J.

This appeal arises from the Circuit Court for Prince George's County's decision to uphold the opinion and award of an arbitrator in favor of appellee, Prince George's County Police Civilian Employees Association (" PCEA" ) against appellant, Prince George's County (" County" ). PCEA and the County are parties to a negotiated collective bargaining agreement (" CBA" ) concerning the wages, hours, and other terms and conditions of employment for civilian employees of the Prince George's County Police Department (" Department" ).

On December 27, 2012, the arbitrator issued an Opinion and Award sustaining a grievance filed by PCEA challenging the County's decision to terminate the employment of Marlon Ford, a civilian employee of the Department whose terms and conditions of employment are covered by the CBA. On the bases of the extensive record adduced during three days of " detailed testimony" from a " dozen witnesses," resulting in a transcript of nearly 1,000 pages, the arbitrator found that the factual record did not support the County's claim that it had " just cause" to terminate Ford's employment.

The County challenged the arbitrator's Order and Award in the circuit court, asserting that the Order and Award should be vacated because the County had met its burden of establishing that this case is within the narrow category of cases in which Maryland Courts may vacate an arbitration award. Specifically, the County claimed that the arbitrator (i) exceeded his authority by independently assessing facts and exercising his own judgment in concluding that the Department lacked " just cause" to terminate Ford's employment; and (ii) issued an award that is contrary to clear public policy insofar as he found that Ford was entitled to be informed of his right [219 Md.App. 113] to have a union representative present during an investigatory interview,

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when his employer was conducting a criminal investigation.

Citing Maryland's well-settled law that a court will not generally disrupt the fair decision of an arbitrator, the circuit court rejected the County's arguments. The County then filed this timely appeal.

The County raises the following issues on appeal, which we have reworded for clarity:[1]

I. Whether the circuit court erred in failing to vacate the award of the arbitrator when the arbitrator made his own judgments and factual assessments regarding whether the employer had " just cause" to discipline the employee in the context of the CBA?
II. Whether the circuit court erred in failing to vacate the award of the arbitrator when it found it was not a violation of public policy that a governing body may bargain away or compromise the statutory duties of its public safety agency to investigate criminal conduct?

We answer the first question in the negative and the second question in the affirmative and thus reverse the arbitrator's ruling for the reasons explained below.

FACTS

On May 15, 2011, a detective assigned to the Criminal Investigation Division (" CID" ), of the Department reported to her supervisor that her firearm was missing and possibly stolen from the ladies' bathroom at the Department's headquarters. An expansive search and investigation was immediately [219 Md.App. 114] initiated by the officer's fellow CID detectives to search for and retrieve the missing firearm. In the course of conducting the investigation of the missing firearm, Ford, his friend, Khari Grooms, who was in a volunteer position with the Department for individuals with a strong interest in joining the Department, as well as other civilian employees who were in headquarters at or about the time that the officer's firearm went missing, were all asked to return to headquarters to be questioned by CID detectives. During the investigation of Ford and Grooms for the missing firearm, they submitted to a voice stress analysis (" VSA" ) examination.[2] The results of the

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VSA examination indicated deception on the part of Ford and Grooms with regard to taking or finding the officer's missing firearm.

May 16, 2011, was an off-day for Ford, but he was called by the Department and asked to report to work. Upon his arrival, Ford's supervisor told Ford that she needed to speak to him " real quick" and that it would " only take a minute." Ford was then brought into a room and informed that an officer had misplaced her firearm. Ford was told that, after he provided a statement, he would be on his way. He provided a written statement at about 4:00 p.m.

[219 Md.App. 115] Instead of being released, Ford was advised of his Miranda [3] rights via the Advise of Rights and Waiver Form by Sergeant Tamer of the sexual assault unit and elected to waive his Miranda rights and provide a verbal statement. Ford was then interrogated for fourteen hours by twelve to fourteen detectives from the homicide, sexual assault, robbery, and child abuse units.

During this part of the investigation, the detectives " screamed" and cursed at Ford, took his cell phone away, and told him that " no one's going anywhere until the gun is found." Ford was told that he was " under arrest," and that he would be spending his birthday in jail. Ford was allowed one meal during the fourteen-hour ordeal, which he was allowed to eat at approximately 4:00 a.m. Ford allowed the Department to search his car and to search a room in his home but asked that he be allowed to alert his sickly grandmother before they searched his home so that she would not be startled when the police arrived. Ford was never given the opportunity to alert his grandmother and both his house and his car were " torn apart" and left in an " atrocious" condition. At no point before or during this interrogation was Ford advised that he had a right to union representation pursuant to Article 8 § C of the CBA between PCEA and the County.[4]

Ford was never connected to the missing firearm. However, during Grooms's interview, Grooms stated that on several [219 Md.App. 116] occasions, he was invited to accompany Ford as he drove around in marked and unmarked police vehicles, " pulled traffic

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stops," and responded to " calls for service." Grooms also disclosed that he witnessed Ford using the radio as well as activating the emergency equipment such as LED lights and the air horn. Grooms told the CID detectives that Ford represented, on several occasions, that he was a police officer of the Department, and Grooms referred to Ford as " Officer Ford" during the interrogation because he believed that Ford was a member of the Department. Ford, to the contrary, denied ever driving a marked vehicle. Ford did admit, however, that he had activated emergency equipment on one occasion when he used the air horn to attract the attention of a driver who was driving toward him in a reckless fashion. Ford also admitted to unauthorized use of the radio while operating one of the unmarked police vehicles.

On May 17, 2011, following the CID detectives' interrogation of Ford and Grooms, a referral was made to the Internal Affairs Division (" IAD" ) to initiate an internal investigation with regard to allegations of Ford's misconduct. Ford was at that time notified in writing that he was being placed on administrative leave pending the internal affairs investigation by the IAD investigator pursuant to the relevant provisions of the CBA. On July 26, 2011, Ford was notified in writing of his Weingarten [5] rights by the IAD investigator.

[219 Md.App. 117] On July 26, 2011, the IAD investigator produced a report of his investigation disclosing his findings and recommendations. The report recommended thirteen charges against Ford. The IAD commanding officer forwarded the report of the investigation to the Office of the Chief of Police with a recommendation that nine of the thirteen charges be sustained and Ford's employment with the Police Department be terminated. On August 12, 2011, the Chief issued a Notice of Intent of a Proposed Disciplinary Action against Ford for the nine charges sustained against him.

On or about August 26, 2011, PCEA submitted a Response to the Notice of Intent to Terminate Ford to the Chief. On August 26, 2011, the Chief issued his Notice of Final Disciplinary Action Terminating Ford effective August 29, 2011. On September 12, 2011, the Union timely issued a grievance letter stating that the disciplinary action against Ford was in violation of Article 8 of the CBA between PCEA and the County. Among the mutually agreed upon terms and conditions of employment enumerated in the CBA, Article 8 broadly outlines the situations in which the Department may discipline an employee and, in some detail, describes the disciplinary procedures that must be followed.

By its express terms, Article 8 of the CBA directly addresses discipline for administrative wrongdoing and conduct that constitute a " criminal violation[]" or is " related to an active criminal investigation." For example, Article 8 § I states that the County will not initiate disciplinary action against an employee later than ninety days after the County becomes aware of the alleged infraction, but that this ninety day rule shall not apply where the alleged infractions are either " criminal violations" or are " related to an active criminal investigation."

PCEA and the Department began a series of verbal negotiations to determine whether the Chief would be willing to reconsider Ford's termination. On February 8, 2012, a representative ...


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