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Foy v. Baltimore City Detention Center

Court of Special Appeals of Maryland

December 4, 2017

MICHAEL FOY
v.
BALTIMORE CITY DETENTION CENTER

          Argued, 9/12/2017

         Circuit Court for Baltimore City Case No. 24-C-16-000255

          Eyler, Deborah S. Leahy, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Harrell, J.

         Appellant, Michael Foy, complains here that the Circuit Court for Baltimore City remanded erroneously his employment disciplinary case to Baltimore City Division of Pretrial Detention and Services (DPDS) Commissioner, John S. Wolfe, to conduct a second penalty increase meeting. Foy contends that remand to the Commissioner is inappropriate and that the Commissioner's prior decision to terminate him as a prison guard be reversed, without further administrative proceedings. He asserts Commissioner Wolfe abridged his rights under the Correctional Officers' Bill of Rights[1] (COBR)[2] when the Commissioner increased to termination the Baltimore City Department of Corrections' Hearing Board's (Hearing Board) recommended lesser punishment, without conducting a timely and proper on-the-record penalty increase meeting, and thus violated Md. Code (1999, 2017 Repl. Vol.), § 10-910(b)(6)(ii) of the Correctional Services Article (Corr. Servs.).[3]

The circuit court (in its remand order) found that:
[Commissioner] Wolfe failed to satisfy the final portion of [Corr. Servs. § 10-910(b)(6)(ii)] when the audio equipment failed to capture [Appellant's penalty increase meeting] on the record[, ] . . . [and] a substantial right of [Appellant's] has been prejudiced when the penalty increase hearing, due to the failure of the audio recording equipment, was not captured on the record . . . .

         In this appeal, Appellant poses the following questions:

I. Did Appellee [Commissioner Wolfe] violate Appellant's Rights under the COBR when he increased the recommended penalty of the Hearing Board without recording the penalty increase [meeting]; and
II. Did the circuit court err in remanding the case to conduct another penalty increase [meeting]?

         Foy contends that Appellees violated the COBR when Commissioner Wolfe failed to follow the mandatory requirements of Corr. Servs. § 10-910(b)(6)(ii)[4] in the course of increasing Appellant's disciplinary punishment. Specifically, Commissioner Wolfe failed to "allow[] [Appellant] to be heard on the record" by neglecting to capture the contents of the only penalty increase meeting convened and, in place of such a record, tendering an uncompliant alternative "record." The window of opportunity for enhancing the Hearing Board's recommended sanction closed once Commissioner Wolfe failed to comply with Corr. Servs. § 10-910(b)(6)(ii) within the time frame allowed by the statute.

         In its initial response to this judicial review action on appeal, Appellees filed with this court a motion to dismiss asserting that the circuit court's order of remand was not an appealable final judgment because the remand contemplated further administrative proceedings. On the merits, Appellees argue that Commissioner Wolfe acted in good faith and complied substantially with the requirements of Corr. Servs. § 10-910(b)(6)(ii).

         His good faith efforts at substantial compliance are represented by a memorandum memorializing what, according to his recollection, was said at the uncaptured penalty increase meeting and his attempts to reschedule the meeting within the allowed timeframe, presumably to rectify the recording equipment malfunction that occurred earlier. In addition, Appellees point also to a lack of any prejudice suffered by Appellant due to the absence of a formal recording.

         We deny Appellees' motion to dismiss. We hold that Appellant's COBR rights were violated. Moreover, the circuit court remanded erroneously Appellant's case to Commissioner Wolfe to conduct a second, but untimely on-the-record meeting. The proper remedy is to reinstate the Hearing Board's penalty recommendation as the final administrative action (the computation of back-pay aside) under the circumstances of this case.

         Statement of Facts

         On 12 January 2014, Foy, a Lieutenant at the Baltimore City Detention Center (BCDC), was accused of using excessive force against a BCDC inmate.[5] On 10 April 2014, the BCDC issued to Foy a notice of disciplinary charges recommending his termination. Foy appealed to the Hearing Board. The Hearing Board found Foy guilty of ten of twelve disciplinary charges brought against him. The Hearing Board recommended that his penalty be reduced to a "Transfer to Baltimore City Booking and Intake Center & Demotion to Sergeant."

         Commissioner Wolfe received a copy of the Hearing Board's recommendation on 23 November 2015. He reviewed the administrative record made to that date, found the Hearing Board's penalty inadequate, and proposed to increase Foy's punishment under Corr. Servs. § 10-910(b)(6). On 9 December 2015, the Commissioner conducted a penalty increase meeting with Foy and his counsel.[6] Following the meeting, Commissioner Wolfe discovered that the audio recording equipment used to make a verbatim record of the meeting malfunctioned, failed to capture what was said at the meeting, as required by Corr. Servs. § 10-910(b)(6)(ii). The Commissioner notified promptly Foy's counsel of the equipment failure. The Commissioner and Appellant's counsel agreed to reconvene, with Foy, on 17 December 2015 for another attempt at holding a recorded meeting.[7]

         On 10 December 2015, Commissioner Wolfe memorialized his recollection of what transpired at the unrecorded penalty increase meeting in a written memorandum to Stephen T. Moyer, Secretary of Public Safety and Correctional Services.[8] Foy's counsel confirmed with Commissioner Wolfe's office to hold a remedial penalty increase meeting on 16 December 2015. Later that day, however, Commissioner Wolfe canceled, without explanation, the meeting. Commissioner Wolfe made no further effort to reschedule a meeting. Rather, on December 16, Commissioner Wolfe, with the permission of Secretary Moyer, increased the Hearing Board's recommended punishment of Foy from "Transfer to Baltimore City Booking and Intake Center & Demotion to Sergeant" to termination of his employment. Foy filed an action for judicial review in the Circuit Court for Baltimore City, arguing solely that the Commissioner violated his rights under the COBR when he increased the Hearing Board's recommended punishment without recording the penalty increase meeting. Foy requested the circuit court to rescind Commissioner Wolfe's increased penalty, re-impose the Hearing Board's recommended penalty, and reinstate him accordingly, with commensurate back pay.

         The circuit court found, in relevant part:

That an error of law occurred at the penalty increase hearing when the audio recording equipment failed and there was no audio record of the meeting; and it is further found . . . [that Commissioner] Wolfe failed to satisfy the final portion of [Corr. Servs. § 10-910(b)(6)(ii)] when the audio equipment failed to capture the hearing on the record . . . and a substantial right of [Foy] has been prejudiced when the penalty increase hearing . . . was not captured on the record.

(Emphasis omitted).

         As a result, the circuit court ordered that "this case be remanded for the purpose of conducting another penalty increase meeting so that a complete record of the administrative proceeding is available for the [c]ourt on [j]udicial [r]eview."

         Analysis

         I. Appellees' Motion to Dismiss.

         a. Appellees' Arguments.

         Appellees move to dismiss this appeal on "the grounds that [we] lack[] jurisdiction over this matter because the order appealed from is not a final judgment." They aver that Appellant has not been put out-of-court by the remand order from which he sought judicial review. As such, Appellant cannot satisfy the critical requirement for an appealable final judgment. The circuit court ordered a remand for the appointing authority[9] to conduct another penalty increase meeting so that a complete record might be available for any further judicial review.

         b. Appellant's Arguments.

         Appellant responds that the circuit court's remand order was authorized by Md. Code (1984, 2014 Repl. Vol.) § 10-222(h)(1) of the State Government Article (State Gov't), and is an appealable final judgment under Metro Maint. Sys. S., Inc. v. Milburn, 442 Md. 289, 299-307, 112 A.3d 429, 435-40 (2015). Under Milburn, remands ordered pursuant to State Gov't § 10-222(h) are appealable immediately because the order terminates the judicial proceeding, and denies the parties any means of further prosecuting or defending the action.

         c. The Circuit Court's Remand Order is an Appealable Final Judgment.

         The resolution of a motion to dismiss raised on appeal is left to the sound discretion of this Court. MD. RULE 8-602. In the exercise of that discretion, we will dismiss an appeal if it is not a final judgment entered in a civil or criminal case by a circuit court, or if a non-final judgment does not fit within the statutory exceptions or the collateral order doctrine.[10] A ruling must have the following "three attributes to constitute a final judgment: 1) it must be intended by the court as an unqualified, final disposition of the matter in controversy; (2) unless the court acts pursuant to Maryland Rule 2-602(b) to direct the entry of a final judgment as to less than all of the claims or all of the parties, it must adjudicate or complete the adjudication of all claims against all parties; (3) it must be set forth and recorded in accordance with Rule 2-601."[11] Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773 (1989). The purpose of the final judgment rule is "to promote judicial efficiency by avoiding piecemeal appeals." Milburn, 442 Md. at 298, 112 A.3d at 435 (citing Brewster v. Woodhaven Bldg. & Dev., Inc., 360 Md. 602, 616, 759 A.2d 738 (2000)).

         Assessing specifically whether a circuit court's remand order entered in a judicial review action is an appealable final judgment, Milburn noted:

if, applying the appropriate standard of review, the [circuit] court finds that there was not substantial evidence to support the agency decision or that the agency made an error of law, it will likely remand the case to the agency, which will ultimately determine the parties' rights by applying the law as directed by the circuit court. Such a remand may appear to be non-final in nature, but under the principles of finality in Maryland . . . many such remands are appealable final judgments.

Milburn, 442 Md. at 301, 112 A.3d at 436. When a circuit court considers a judicial review action from a state administrative agency decision, and remands the case because the agency's decision is inconsistent with law, that iteration of the case has reached its end. Id. Therefore, a remand after a circuit court has conducted a judicial review of the sole question raised in the administrative action, precluding the parties from further contesting or defending the validity of the agency's decision on the merits in that case, is an appealable final judgment. Milburn, 442 Md. at 305, 112 A.3d at 439. See also Hickory Hills LimitedPartnership v. Secretary of State, 84 Md.App. 677, 686, 581 A.2d 834 (1990) (contrasting the type of remand occurring before judicial review occurs with a "remand that a court might order under the APA after the court has conducted judicial review and made its assessment of the agency decision.").

         Milburn declared that:

[A] remand, governed by . . . [State Gov't] § 10-222(h), is a final order because, when the circuit court orders a remand after judicial review, it does so because it has found that the agency's decision is inconsistent with law or unsupported by substantial evidence. The parties can no longer defend or challenge that agency decision in the circuit court and there is nothing further for that court or the parties to do. Thus, that remand terminates the circuit court proceedings.

Milburn, 442 Md. at 307, 112 A.3d at 440.

         The circuit court's order here is a hybrid of judicially-reviewed conclusions and a determination that the "record is insufficient to allow for a fair consideration of the issue."[12]For this reason, we find Milburn and Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981) instructive.

         Milburn noted, in the context of a challenge to the appealability of a circuit court's remand order, that the work of the circuit court was not done; the circuit court deferred further consideration of Milburn's challenges to the merits of the agency's decision pending remand and the agency's subsequent remedial decision. Milburn, 442 Md. at 308, 112 A.3d at 441. ("There was no discussion of the agency record or the merits of the case. The circuit court characterized the [agency's pre-emptive] motion as a request for a 'do over' that would precede the court's consideration 'whether there's substantial evidence and . . . whether or not to affirm'"). The "remand order did not involve a determination whether the agency decision is consistent with law or supported by substantial evidence." Milburn, 442 Md. at 310, 112 A.3d at 441. Thus, Milburn held "that a remand that precedes any judicial review is not a final judgment." Milburn, 442 Md. at 310, 112 A.3d at 442.

         In Schultz, the context was of a local government board of zoning appeals denying property owners a requested special exception. Schultz, 291 Md. at 3-4, 432 A.2d at 1321.The property owners appealed to the circuit court, which conducted a review of the administrative record and proceedings. Id. It "determined that there had been a denial of due process because the [b]oard had considered evidence submitted after the close of the hearing." Id. The circuit court "reversed and remanded the matter to the [b]oard for a new hearing." Schultz, 291 Md. at 4, 432 A.2d at 1321-22. On appeal, the Court of Appeals agreed that, under those circumstances, a circuit court's order remanding a proceeding to an administrative agency is an appealable final order. Schultz, 291 Md. at 6, 432 A.2d at1322 (citing Department of Public Safety & Correctional Services v. Le Van, 288 Md. 533, 542-43, 419 A.2d 1052, 1057 (1980)). The circuit court's finding in its remand order that the agency's decision was inconsistent with law was an appealable final judgment. Id.

         Here, the findings of the circuit court in its remand order are a mix of the characteristics of the orders in Milburn and Schultz, but, in our view, bear ultimately more resemblance to Schultz. The circuit court in the present case made findings of law based on the state of the record presented to it (vis a vis the statutory requirement for conducting an on-the-record penalty increase hearing within the allowable time period), finding that:

[n]either [Commissioner] Wolfe's written memorandum of [10 December 2015] to Secretary Stephen T. Moyer nor [Commissioner] Wolfe's Affidavit of [5 May 2016], meet the statutory requirements of a hearing on the record nor do these writings cure the defect as it is neither objective nor complete . . ., as [Appellant] asserts, as required by [MD. RULE 7-113(d)(2)], that an error of law occurred at the penalty increase hearing when the audio recording equipment failed and there was no audio record of the meeting . . ., [Commissioner] Wolfe satisfied the statutory requirement of [Corr. Servs. § 10-910(b)(6)(ii)] by meeting with [Appellant] and his counsel, allowing [Appellant] to be heard but [Commissioner] Wolfe failed to satisfy the final portion of this particular statutory requirement when the audio equipment failed to capture the hearing on the record . . ., [and] a substantial right of [Appellant's] had been prejudiced when the penalty increase hearing . . . was not captured on the record.

(Emphasis added).

         In Schultz, the circuit court reviewed the agency decision, made a determination as to its legality, and remanded the case for additional proceedings. Schultz, 291 Md. at 4, 432 A.2d at 1321-22. The parties could take no further action in the circuit court at that point, and the court chose to do nothing more. Id. Analogously, the circuit court found here that Commissioner Wolfe violated Appellant's Corr. Servs. § 10-910(b)(6) rights. Given Appellant's sole argument in the judicial review action, there was nothing more for the circuit court or either party to do regarding this finding.

         Appellant did not contend (and has not contended) below or here that the Hearing Board erred regarding its findings of fact, conclusions of law, or its recommended punishment.[13] Rather, Appellant contends solely that Commissioner Wolfe's failure to comply with the mandatory requirements of Corr. Servs. § 10-910(b)(6), especially when he still had time to do so after learning of the equipment malfunction, warrants vacation of Appellant's employment termination and reinstatement of the Hearing Board's recommendation, with commensurate back-pay.

         Appellees point to the circuit court's findings that sound more like those in Milburn, however:

[Foy] demonstrated that the record is insufficient to allow for a fair consideration of the issues and simply cannot be reconstructed; and . . . it is hereby ordered, that this case be remanded for the purpose of conducting another penalty increase hearing so that a complete record of the administrative proceeding is available for the [c]ourt on [j]udicial [r]eview.

(Emphasis omitted).

         Milburn noted that "there had been no judicial assessment of the legality of the agency's decision; the remand order merely acceded to the agency's request for a limited opportunity to reconsider and possibly modify its findings or decision [before] judicial review." Milburn, 442 Md. at 309-10, 112 A.3d at 441. The circuit court did not discuss the agency record or the merits of the contentions put on-the-table by Milburn in the case. Milburn, 442 Md. at 296, 112 A.3d at 433. As in Milburn, here the circuit court's findings are premised on a similar basis, in part. They lack any discernable conclusions of law or findings of fact. Rather, the circuit court appeared to profess an inability to assess the merits of Commissioner Wolfe's conclusion to fire Foy, in light of the unrecorded penalty increase meeting.

         Appellees' life raft leaks, however. The sole dispute before the circuit court and here is not over whether the conclusion Commissioner Wolfe reached was supported by substantial evidence, but rather whether the process utilized to reach it violated Foy's COBR rights. Unlike Milburn, the circuit court here made clear findings on the merits of Appellant's sole appellate claim. Most notably, the circuit court found that "an error of law occurred at the penalty increase hearing" and "Commissioner Wolfe "failed to satisfy the final portion of [Corr. Servs. § 10-910(b)(6)(ii)] when [he] . . . failed to capture the hearing on the record." (emphasis added). The circuit court's findings that an error of law occurred and that Commissioner Wolfe failed to satisfy a statutory requirement are more in line with Schultz's holding that the zoning body denied the property owners due process. Schultz, 291 Md. at 4, 432 A.2d at 1321-22.

         Finality is determined by what further proceedings, if any, will occur in the circuit court. Milburn, 442 Md. at 310, 112 A.3d 442. No further proceedings will occur on the circuit court's findings of law on the merits of Appellant's sole legal challenge. The circuit court found "that in a judicial review of an administrative hearing, the [c]ourt may 'remand the case for further proceedings.'" (citing State Gov't § 10-222(h)). Milburn held that a remand ordered under State Gov't § 10-222(h) is an appealable final judgment. Milburn, 442 Md. at 307, 112 A.3d at 440 (2015). We agree. Thus, we deny Appellees' motion to dismiss.

         II. The Commissioner Violated Appellant's COBR Rights When He Failed to Record a Penalty Increase Meeting Within the Time Allowed By Law.

         a. Appellant's Arguments.

         Foy avers that Corr. Servs. § 10-910(b)(6) requires, on the part of Commissioner Wolfe, the satisfaction of four requirements within 30 days after the Commissioner received the Hearing Board's decision before he may increase Appellant's penalty beyond that proposed by the Hearing Board. Commissioner Wolfe's failure to capture the penalty increase meeting on the audio record was in violation of Corr. Servs. § 10-910(b)(6)(ii). His unexplained failure to conduct and record a remedial meeting within the allowed ...


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