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Breck v. Maryland State Police

Court of Appeals of Maryland

March 27, 2017


          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.


          Barbera, C.J.

         This case addresses the meaning of "secondary employment" as that phrase is used in the Law Enforcement Officers' Bill of Rights ("LEOBR"), codified in Title 3, Subtitle 1 of the Public Safety Article of the Maryland Code. See Md. Code Ann., Pub. Safety § 3-101(b) (2003, 2011 Repl. Vol., 2016 Supp.).[1] Under § 3-103(b), Maryland law enforcement agencies may not prohibit law enforcement officers from working secondary employment. Resolution of the dispute in the present case turns on what sort of work comes within the meaning of "secondary employment."

         Petitioner in this case is Sheila Breck, formerly a sergeant employed by the Maryland State Police Department ("MSP"). In 2013, she began working overtime, on average three days a month, in a law enforcement capacity securing National Security Agency ("NSA") facilities in Maryland, pursuant to an agreement between MSP and NSA. Ms. Breck's work at NSA was in addition to the 40 hours per week during which she performed her primary duties at MSP.

         In March 2014, MSP, pursuant to a practice it had recently developed, informed Ms. Breck that she could no longer work overtime at NSA. Ms. Breck brought a show cause action in the Circuit Court for Baltimore County, pursuant to § 3-105.[2] She alleged that MSP was violating § 3-103(b)(1) by prohibiting her from continuing to work at NSA. MSP defended on the ground that troopers who work overtime at NSA are not engaged in "secondary employment, " as that term is used in § 3-103(b)(1), but rather, "on duty overtime"; consequently, MSP's prohibiting Ms. Breck from working at NSA did not violate § 3-103(b)(1) and was not an unlawful punitive action.

         The circuit court dismissed the action and, on appeal, the Court of Special Appeals, essentially agreeing with MSP's argument, affirmed the dismissal in an unreported opinion. Breck v. Maryland State Police, No. 1661, Sept. Term, 2014 (filed January 5, 2016). We agree with the Court of Special Appeals and affirm the judgment of that Court.


         The Factual Context

         The present dispute has its roots in a disciplinary action brought against Ms. Breck, in early 2012, charging her with having filed a report containing false information. Her police powers were suspended pending disposition of that charge. In May and June 2012, a trial board conducted a hearing[3] and in July 2012 issued written findings determining that she was "guilty" of the charge. Pursuant to § 3-109, Ms. Breck sought judicial review of the trial board's decision in the Circuit Court for Baltimore County. The circuit court did not disturb the decision of the trial board. Ms. Breck noted an appeal to the Court of Special Appeals, which, in an unreported opinion, ordered that the administrative determination be vacated and a new hearing be conducted because the principal witness's testimony could not be located for inclusion in the appellate record.[4] Breck v. Maryland State Police, No. 75, Sept. Term 2014 (filed January 22, 2015).

         Meanwhile, in 2013, MSP restored Ms. Breck's police powers and, in July of that year, she began working an average of three days a month in an assignment at NSA. As later described at the hearing before the Circuit Court for Baltimore County in the present matter, Ms. Breck's work at NSA was in addition to her regular 40-hour work week at MSP.

         On January 7, 2014, MSP management met with Ms. Breck. At that meeting, Lieutenant Colonel William Pallozzi handed Ms. Breck a letter, dated November 5, 2013, addressed to her and signed by Marcus L. Brown, Superintendent of MSP. The body of the letter states:

Due to recent changes in Maryland law, we have began [sic] the process of reevaluating staffing assignments for those troopers who, like yourself, have an investigative or hearing board finding that could be deemed to involve untruthfulness. This duty has been thrust upon us by changes in the rules governing discovery in criminal cases, specifically MD Rule, 4-263, which requires Assistant State's Attorneys to disclose all impeachable material regardless of whether it is requested. A prior finding on a trooper's administrative record that could arguably involve untruthfulness and integrity falls into this category.
A recent Court of Appeals opinion, Fields v. State, 432 Md. 650 (July 9, 2013), makes it clear that failure to disclose this information is grounds for reversal of criminal convictions. Fields involved a murder case in which the primary Baltimore City Detectives involved in the case had previously falsified time sheets. The Court reversed the murder conviction, holding that the fact that the detectives falsified time sheets should have been disclosed to the defense because it "would be probative of the detectives' character for untruthfulness." Fields, 432 Md. at 674-675.
What this means is that troopers such as yourself can now have the prior "untruthfulness" finding used against them every time they testify in court. While it is unclear what every State's Attorney will do in this situation, many of them have decided they will not go forward with cases in which one of the primary investigators has this kind of finding on their record.
Regrettably, this situation requires us to place troopers with "untruthfulness" findings into positions in which they will not be called upon to testify in court. We must also instruct you to avoid situations that could result in requiring you to testify in court except for your obligations specified in PER 17.03 X (Neglect of Duty) or PER 13.01 C (Crimes witnessed by Troopers while engaged in Off-Duty Secondary Employment). If you are required to testify in Court, we will be obligated to inform the State's Attorney's Office of the finding on your record and the State's Attorney's Office will make a decision of how to proceed.
We realize that the finding on your record happened some time ago, but the recent changes in the law requires [sic] us to act now. We continue to value you as a member of the MSP family, but now we must have you make your contributions in a different manner. A member of the Senior Staff will meet with you in the near future to discuss this issue.

         At the time of the January 7, 2014, meeting, Ms. Breck was working in the Facilities Management Division of the MSP. Her duties in that Division did not include law enforcement.

         Following the January meeting, Ms. Breck continued to work overtime shifts at the NSA in a law enforcement role, providing security at that site. In March 2014, Ms. Breck's direct supervisor, David Manning, informed her that, under the new policy (reflected in the letter), she could no longer wear her uniform at any location or portray herself as a police officer; she could not continue working in the law enforcement role at NSA or perform other work that might cause her to testify in court; and, though she could keep her vehicle, the emergency lights and siren would be removed.

         Ms. Breck was informed on July 2, 2014, that MSP would be investigating her conduct, pursuant to § 3-104.[5] This investigation arose from a complaint accusing her of disobeying the Superintendent's instructions in his letter delivered to Ms. Breck by Lt. Col. Pallozzi on January 7, 2014, by continuing to perform secondary employment for the NSA until she was told to stop by Mr. Manning on March 26, 2014.

         A Pertinent Amendment to the LEOBR

         In the Spring of 2014, the General Assembly enacted § 3-106.1, as an amendment to the LEOBR. Effective October 1, 2014, § 3-106.1 allows law enforcement agencies to maintain a list of officers who have untruthfulness findings on their record but prohibits punitive action against those officers based solely on their inclusion on the list. That section reads:

(a)In general.
A law enforcement agency required by law to disclose information for use as impeachment or exculpatory evidence in a criminal case, solely for the purpose of satisfying the disclosure requirement, may maintain a list of law enforcement officers who have been found or alleged to have committed acts which bear on credibility, integrity, honesty, or other characteristics that would constitute exculpatory or impeachment evidence.
(b)Punitive action against officers on list prohibited.
A law enforcement agency may not, based solely on the fact that a law enforcement officer is included on the list maintained under subsection (a) of this section, take punitive action against the law enforcement officer, including:
(3)suspension without pay; or
(4)reduction in pay.
(c) Notice to officers of name placed on list.
A law enforcement agency that maintains a list of law enforcement officers under subsection (a) of this section shall provide timely notice to each law enforcement officer whose name has been placed on the list.

         The Present Legal Action

         On July 25, 2014, Ms. Breck filed the present show cause action in the Circuit Court for Baltimore County. In the Complaint to Show Cause, [6] Ms. Breck alleged that MSP had violated §3-103(b) by prohibiting her to engage in such employment, resulting in the "loss of thousands of dollars of wages." She sought in her prayer for relief an order directing MSP, in pertinent part, to show cause why she should not be afforded her right to perform secondary employment pursuant to § 3-203(b); and for entry of "a judgment of $50, 000 in favor of her and against MSP." MSP replied with a Response to the Complaint to Show Cause, arguing the Complaint should be dismissed because MSP never denied Ms. Breck a request for secondary employment; the LEOBR does not grant law enforcement officers a right to participate in or be assigned to an overtime assignment; and MSP was immune from suit except as provided in the Maryland Tort Claims Act, which Ms. Breck had not pursued.

         On October 6, 2014, the circuit court held a hearing on the Complaint. At the hearing, Ms. Breck asserted a new allegation that MSP had taken punitive action against her, in violation of then recently-enacted § 3-106.1.[7]

         Ms. Breck testified at the hearing that, although MSP prohibited her from working the law enforcement overtime opportunity at NSA, MSP did not prevent her from working off-duty for third parties. She pointed out that she was working at the time of the hearing as a private security guard at a McDonald's restaurant. Ms. Breck testified that her work both at NSA and at the McDonald's are forms of secondary employment.[8] She also testified that, at the conclusion of her January 7, 2014, meeting with Lt. Col. Pallozzi, he informed her that "nothing changes with you." She interpreted those words to mean that she could continue her work at NSA.

         Ms. Breck further testified that, on March 26, 2014, she received two telephone calls from her direct supervisor, David Manning. In the first call, Mr. Manning advised her, without explanation, that she "cannot work at NSA anymore." In a later call that same day, Ms. Breck testified that Mr. Manning told her that "he believed that there was a complaint that occurred, " and she was no longer to wear her uniform, activate the lights on her police vehicle, or wear anything identifying her as a police officer. Ms. Breck also testified about her interpretation of Personnel Directive PER 13.01 ...

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