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Prince George's Coounty Police Civilian Employees Ass'n v. Prince George's County

Court of Appeals of Maryland

April 22, 2016

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

         Argued September 2, 2015.

         Reargued, March 8, 2016.

          Circuit Court for Prince George's County. Case No. CAL13-02378.

         Argued and Reargued by Abigail V. Carter (Bruce R. Lerner, Jacob Karabell, Bredoff & Kaiser, P.L.L.C. of Washington, DC) on brief for Petitioner/Cross-Respondent.

         Argued and Reargued by Josue Pierre, Associate County Attorney (Jared M. McCarthy, Deputy County Attorney, M. Andree Green, County Attorney of Upper Marlboro, MD) on brief for Respondent/Cross/Petitioner.

         Barbera, C.J.,[*] Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned), JJ.

          OPINION

Page 348

         [447 Md. 182] Watts, J.

         This case raises an important issue of first impression in Maryland--namely, whether a county has the authority under the county's code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county's police civilian employees, the employee be advised of the right to have a union representative present at the interview-- i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

          An employee's Weingarten right arises out of an employer-employee relationship where the employer subjects the employee to an investigatory interview. Generally, an employee's Weingarten right is the employee's right under the National Labor Relations Act " to refuse to submit without union representation to an interview [that the employee] reasonably [447 Md. 183] fears may result in [the employee's] discipline[.]" Nat'l Labor Relations Bd. v. J. Weingarten, Inc., 420 U.S. 251, 256, 260, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). Weingarten does not grant the members of the union in this case the Weingarten right, because the National Labor Relations Act does not apply to an employee of a State or local government. Here, we use the phrase " Weingarten right" to refer to the right to a union representative that is embodied in Article 8.C. of the instant collective bargaining agreement.

         This case emanates from the circumstance that Prince George's County (" the County" ), Respondent/Cross-Petitioner, terminated the employment of Marlon Ford (" Ford" ), a member of the Prince George's County Police Civilian Employees Association (" the Association" ), Petitioner/Cross-Respondent, after a criminal investigation during which Ford was questioned regarding alleged crimes and an internal affairs investigation during which Ford was questioned regarding alleged misconduct as an employee. Following Ford's termination, the Association filed a grievance on Ford's behalf, and the parties

Page 349

participated in arbitration. The arbitrator vacated the County's termination of employment, imposed a thirty-day suspension instead, and granted Ford back pay. The arbitrator based the arbitration award, in part, on the determination that the County had violated a collective bargaining agreement between the County and the Association because officers of the Prince George's County Police Department's Criminal Investigations Division failed to advise Ford of the right to have a representative from the Association present during the criminal investigative interview that yielded information that later formed part of the basis for his termination.

         The case involves a total of four issues: (I) whether the County had the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County's police civilian employees; (II) whether the provision in the collective bargaining agreement that mandates Weingarten advisements before investigatory interviews applies to criminal investigative interviews; (III) whether the arbitration award violates a [447 Md. 184] public policy of effective law enforcement; and (IV) whether the arbitrator had the authority to award reinstatement and back pay to the employee.

         We hold that, under the County's code, the County lacked the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County's police civilian employees; thus, the arbitrator exceeded his authority by basing the arbitration award on the determination that the County had violated the collective bargaining agreement because officers of the Criminal Investigations Division failed to make a Weingarten advisement.[1]

         BACKGROUND

         The Arbitration Award

         On August 26, 2011, the County terminated the employment of Ford, who had been working in a motor pool of the Prince George's County Police Department and who was a member of the Association. In issuing an award, the arbitrator construed Article 8.C. of the collective bargaining agreement to provide that Ford was entitled to a Weingarten advisement before the criminal investigative interview.

         The arbitrator found the following facts, which we summarize. Article 8.C. of the collective bargaining agreement states in pertinent part:

When an employee . . . is to be the subject of an investigatory interview or other meeting [that] may result in discipline, [447 Md. 185] he/she shall be informed in writing at least five (5) working days prior to the start of the interview . . . of his/her right to have present, upon request, a[n Association] representative . . . . [I]f an immediate interview is required[,] and the designated [Association] representative is unavailable, the employee may select another [Association] representative

Page 350

who can be present during the investigatory interview.

         Article 8.I. of the collective bargaining agreement stated in pertinent part:

The [County] will not initiate disciplinary action against an employee later than ninety (90) calendar days after the occurrence (or after the [County] was aware of the occurrence) of the alleged infraction or violation of Departmental rules or regulations or of the Personnel Law. . . . These time limits shall apply to alleged infractions or violations [that] affect only the [County]-employee relationship. They shall not apply to alleged violations or infractions [that] are also criminal violations nor to non-criminal violations [that] are related to an active criminal investigation.

         Ford was the subject of two investigations: a criminal investigation of allegations of theft of a handgun, impersonation of a law enforcement officer, and use of law enforcement vehicles; and an internal affairs investigation of Ford's conduct as an employee. On May 15, 2011, a law enforcement officer reported that her handgun was missing. On May 16, 2011, after advising Ford of his Miranda rights[2] (which Ford waived in writing), but without advising Ford of his Weingarten right, officers of the Prince George's County Police Department's Criminal Investigations Division interviewed Ford. The interview took fourteen hours and lasted into the morning of May 17, 2011. With regard to the interview, the arbitrator found:

After a very brief exchange about the missing [hand]gun, the [interview] focused entirely on [Ford]'s performance of [447 Md. 186] his job, especially whether [Ford] had on multiple occasions impersonated a [law enforcement] officer and had driven [law enforcement] vehicles as if he were an officer on duty, even pulling over speeding cars[] using [the law enforcement] vehicle's air horn . . . . [N]ot to characterize the [] interview . . . as an investigatory interview that may [have] result[ed] in discipline would be unrealistic . . . . [T]he inquiry became [about Ford]'s behavior as an employee who, from time to time, drove, refueled[,] and maintained [law enforcement] vehicles.[3]

         The arbitrator noted that, at the arbitration hearing, the County argued that the decision to discharge Ford was supported by Ford's own admissions.[4]

Page 351

          On the same day, the officers of the Criminal Investigations Division also interviewed Khari Grooms (" Grooms" ), an acquaintance of Ford's. Grooms told the officers of the Criminal Investigations Division that Ford had told Grooms that he was a law enforcement officer, and had taken Grooms on multiple [447 Md. 187] " ride-alongs." The arbitrator found: " Many of Grooms'[s] assertions were denied by [Ford], but[,] ultimately[,], the [officers of the Criminal Investigations Division] believed Grooms'[s] version of events."

         On May 17, 2011, Ford was placed on administrative leave due to the ongoing criminal investigation. In a written notice dated July 6, 2011, the Prince George's County Police Department's Internal Affairs Division notified Ford of an investigation regarding whether Ford had used law enforcement vehicles without authorization for personal reasons; in the notice, the Internal Affairs Division advised Ford of his Weingarten right. On the same day, with a representative from the Association present, a member of the Internal Affairs Division interviewed Ford. On July 19, 2011, with a representative from the Association present, a member of the Internal Affairs Division performed another interview of Ford. The arbitrator found: " It would be unrealistic to claim that [the May 1617 interview by the officers of the Criminal Investigations Division] was wholly unrelated to the [Internal Affairs Division] investigation that began on July 6," 2011.

         On August 12, 2011, Ford was issued a " Notice of Intent, Proposed Disciplinary Action (Conduct Related)." On August 26, 2011, Ford was issued a " Notice of Final Disciplinary Action (Conduct Related)," which advised that he had been terminated because of nine alleged violations of State and local law. Specifically, the Notice of Final Disciplinary Action advised that Ford had been terminated for allegedly violating: Prince George's Cnty. Code (" PGCC" ) § 18-160(b) (" No member of the Police Department, under any circumstances, shall make any . . . intentional misrepresentation of facts." ) by making a false statement during the May 16, 2011 interview and a false statement during the July 19, 2011 interview; [5] [447 Md. 188] PGCC § 18-160(a) (" No member of the Police Department shall intentionally violate any law of . . . any state[.]" ) and Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol.) (" CR" ) § 7-203 (Unauthorized Removal of Property) by " tak[ing] unmarked [law enforcement] vehicle[s] . . . without authorization" on six occasions; [6] and PGCC § 18-160(a) and Md. Code Ann., Pub. Safety (2003, 2011 Repl. Vol., 2015 Supp.) (" PS" ) § 3-502 (Impersonating Police Officer) by falsely identifying himself to Grooms as a law enforcement officer.[7]

Page 352

          The arbitrator found that Ford had not intentionally engaged in criminal behavior, but had used bad judgment by acting in ways that caused others to assume that he was a law enforcement officer, and by not disavowing that impression when it clearly had been internalized by Grooms and perhaps by others. The arbitrator sustained Ford's grievance, vacated the County's termination of his employment, imposed a thirty-day suspension instead, and granted back pay to Ford. The arbitrator based the arbitration award on the following findings: (1) Ford never " acted with the intent that would be required to prove that he [committed] the crimes [that were] enumerated in the charges against him" ; (2) the County's " personnel procedures . . . encourage progressive discipline" ; (3) the County's personnel " procedures also recommend that mitigating factors . . . be taken into consideration," and Ford's misconduct was mitigated by his " excellent employment record" ; and (4) the County violated the collective bargaining agreement because the officers of the Criminal Investigations [447 Md. 189] Division failed to advise Ford of his Weingarten right.[8] The County filed a petition to vacate the arbitration award, which the Circuit Court for Prince George's County (" the circuit court" ) denied.

         Proceedings in the Court of Special Appeals

         The County appealed, and the Court of Special Appeals vacated both the circuit court's judgment and the arbitration award and remanded for a rehearing before a new arbitrator, holding in pertinent part that the arbitration award was contrary to an explicit, dominant, and well-defined public policy of effective law enforcement. See Prince George's Cnty., Md. ex rel. Prince George's Cnty. Police Dep't v. Prince George's Cnty. Police Civilian Emps. Ass'n, 219 Md.App. 108, 137, 134, 98 A.3d 1094, 1111, 1109 (2014).

         In its analysis, the Court of Special Appeals did not address whether the County had the authority to enter into a collective bargaining agreement that requires a Weingarten advisement before a criminal investigative interview of one of the County's employees. Instead, the Court of Special Appeals held that " expanding the requirement of [the] Weingarten right[] to union employees [who] are the focus of a criminal investigation violates public policy[,]" id. at 129-30, 98 A.3d at 1107; that " the arbitrator's award. . . constrains the ability of the [Prince George's County Police Department] to conduct criminal investigations and interrogations of [Association] members[,]" id. at 132, 98 A.3d at 1108; and that " [t]he serious crime of theft of a [law enforcement] officer's [handgun] and impersonating a [law enforcement] officer cannot give way to an employee's Weingarten right[]. To do so . . . would interfere with the [Prince George's County Police Department]'s [447 Md. 190] ability to investigate crimes and violate the public policy of effective law enforcement," id. at 134, 98 A.3d at 1109.

         In other words, although the Court of Special Appeals held that the arbitrator's award violated public policy, the Court of Special Appeals did not assess whether the County had the authority to bargain/contract away the ability to conduct criminal investigations without making Weingarten advisements; rather, the Court of Special

Page 353

Appeals held that the violation of public policy arose because giving the Weingarten advisement would interfere with the police department's ability to investigate crime.

         Proceedings ...


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