EARL STONE ET AL.
CHEVERLY POLICE DEPARTMENT ET AL
DISMISSED. COSTS TO BE PAID BY THE APPELLANTS.
Appellant: Ann E. Koshy (Patrick J. McAndrew, Sandra J.
Strebel, Law Office of Patrick J. McAndrew, Greenbelt, MD;
Brian R. Bregman, Bascietto & Bregman, LLC, Laurel, MD) on
Appellee: Karen J. Kruger (Funk & Bolton, PA on the brief)
Deborah S., Wright, Friedman, JJ.
Md.App. 422] Deborah S. Eyler, J.
Cheverly Police Department (" CPD" ) and Police
Chief Harold " Buddy" Robshaw (collectively "
the Town" ), the appellee, brought disciplinary
charges against Corporal Earl Stone and Corporal Edmund
Gizinski, the appellants, pursuant to the Law
Enforcement Officers' Bill of Rights (" the
LEOBR" ), Md. Code (2003, 2011 Repl. Vol., 2015 Supp.),
section 3-101 through 3-113 of the Public Safety Article
(" PS" ). The Officers elected to be tried by a
hearing board. Before the trial commenced, they filed suit in
the Circuit Court for Prince George's County, pursuant to
section 3-105, seeking an order directing the Town to show
cause why the charges should not be dismissed. They also
asked the court to enjoin the Town from moving forward with
the disciplinary charges until the court had ruled.
court held a hearing and entered an order denying the request
for a show cause order and to dismiss the charges, and also
denying the request for injunctive relief. The Officers filed
a notice of appeal from that order. Soon thereafter, [227
Md.App. 423] the hearing board trial went forward. The
Officers declined to participate. The hearing board found
them guilty on all charges. Ultimately, they were terminated
from employment as a sanction. Not having participated in the
hearing board trial, the officers did not bring an action for
Officers pose two questions for review, which we have
I. Did the circuit court err by denying their request for a
show cause order and to dismiss the charges against them,
when the charges were based on evidence the CPD obtained, in
violation of their Fourth Amendment rights?
II. Did the circuit court err by not dismissing the charges
against the Officers as being brought in unlawful retaliation
for their testimony in favor of a fellow officer?
shall dismiss the appeal for failure to exhaust
purpose of the LEOBR is to " guarantee that certain
procedural safeguards be offered to police officers during
any investigation and subsequent hearing which could lead to
disciplinary action, demotion, or dismissal."
Blondell v. Baltimore City Police Dep't, 341 Md.
680, 691, 672 A.2d 639 (1996) (quoting Abbott v.
Administrative Hearing Bd., 33 Md.App. 681, 682, 366
A.2d 756 (1976)).
an investigation or interrogation of a law enforcement
officer regarding alleged misconduct " results in a
recommendation of demotion, dismissal, [or any other punitive
measure], the law enforcement officer is entitled to a
hearing on the issues by a hearing board before the law
enforcement agency takes that action." § 3-107(a).
Ordinarily, the hearing board shall be composed of no less
than three law enforcement officers chosen by the chief of
police, at least one of whom holds the same rank as the
officer charged. § 3-107(c). The chief of police and the
hearing board are authorized to issue subpoenas to compel the
attendance of witnesses and the production of relevant
documents and other evidence. § 3-107(d)(1). [227
Md.App. 424] The officer also may request the issuance of
subpoenas. § 3-107(d)(3).
trial before the hearing board, the law enforcement agency
and the officer both shall be given " ample opportunity
to present evidence and argument about the issues
involved" and shall be permitted to cross-examine
witnesses called by the other party. § 3-107(e)(2) &
(4). Evidence is admissible if it has " probative value
that is commonly accepted by reasonable and prudent
individuals in the conduct of their affairs," and is not
" incompetent, irrelevant, immaterial, [or] unduly
repetitious." § 3-107(f)(1) & (2).
hearing board's decision " shall be in writing and
accompanied by findings of fact." § 3-108(a)(1). If
it finds the officer " not guilty," the
disciplinary action ends. § 3-108(a)(3). If it makes a
finding of guilt, it must reconvene to receive additional
evidence, consider the law enforcement officer's past job
performance, and make a recommendation to the chief of police
about the appropriate sanction to impose. § 3-108(a)(4).
Within thirty days of the hearing board's recommendation
about a sanction, the chief of police shall issue a final
disciplinary order. § 3-108(d). An officer aggrieved
by a final disciplinary order may challenge it in the circuit
court, in an action for judicial review. § 3-109(a).
3-103 is entitled " Rights of law enforcement officers
generally." One such right, as set forth in subsection
(d), is as follows:
A law enforcement officer may not be discharged,
disciplined, demoted, or denied promotion, transfer, or
reassignment, or otherwise discriminated against in regard
to the law enforcement officer's employment or be
threatened with that treatment because the law enforcement
(1) has exercised or demanded the rights granted by this
[227 Md.App. 425] (2) has lawfully exercised constitutional
as relevant here, section 3-105, " Application for show
cause order," allows a law enforcement officer, in
certain limited circumstances, to seek judicial intervention
other than in a post-decision action for judicial review.
Specifically, an officer " who is denied a right granted
by [the LEOBR] may apply to the circuit court . . . for an
order that directs the law enforcement agency to show cause
why the right should not be granted." § 3-105(a).
The officer only may do so " prior to the beginning of a
hearing by the hearing board." § 3-105(b); see
also Moose v. Fraternal Order of Police, 369
Md. 476, 482, 800 A.2d 790 (2002). If the circuit court finds
" that [the] law enforcement agency obtained evidence
against [the] officer in violation of a right granted by [the
LEOBR], the court shall grant appropriate relief."
their circuit court action invoking section 3-105, the
officers complained 1) that the CPD intended to introduce, at
the hearing board trial, evidence against them that was
obtained in violation of their Fourth Amendment rights; and
2) that the CPD was pursuing the charges against them in
retaliation for their having exercised their First Amendment
rights. We shall summarize the facts related to both
assertions, which are to some extent overlapping.
July 16 through 18, 2012, Officer Francis Schmidt, who worked
with the Officers, was tried by a hearing board on charges
that he was involved in an accident in his police vehicle,
but did not report it. The Officers testified on Officer
Schmidt's behalf. The trial resulted in an administrative
decision to terminate Officer Schmidt's employment.
Officer Schmidt filed an action for judicial review.
than a year later, in November and December of 2013, the
Officers were working second jobs for a seasonal Christmas
tree business owned and operated by one Elmer Ray Lynn. They
formed the security detail for Lynn at his office, which was
located in a hotel room at the Howard Johnson's [227
Md.App. 426] Hotel (" the Hotel" ) in Cheverly. On
November 27, 2013, the CPD issued a memorandum to all
officers directing that any secondary employment at the Hotel