SHEILA M. BRECK
MARYLAND STATE POLICE
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
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.). 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."
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.
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. 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.
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.
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 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. Breck v. Maryland State Police,
No. 75, Sept. Term 2014 (filed January 22, 2015).
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.
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
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.
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.
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.
Breck was informed on July 2, 2014, that MSP would be
investigating her conduct, pursuant to §
3-104. 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.
Pertinent Amendment to the LEOBR
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
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
(b)Punitive action against officers on list
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,
(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.
Present Legal Action
25, 2014, Ms. Breck filed the present show cause action in
the Circuit Court for Baltimore County. In the Complaint to
Show Cause,  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
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 §
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. 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.
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 ...