Summary
finding de novo review of questions of law "requires the Court to determine whether the [Council] erred in formulating and applying legal precepts"
Summary of this case from McGee v. Council on Police TrainingOpinion
C.A. No. 06A-07-003 WLW.
Submitted: October 22, 2006.
Decided: January 26, 2007.
Upon Appeal of a Decision of the Council on Police Training. Vacated and Remanded.
Ronald G. Poliquin, Esquire, Young, Malmberg Howard, P.A., Dover, Delaware; attorneys for Cameron Maurer.
W. Michael Tupman, Esquire, Department of Justice, Dover, Delaware; attorneys for the Council on Police Training.
OPINION AND ORDER
Cameron Maurer ("Mr. Maurer") appealed the Council on Police Training's July 18, 2006 decision decertifying Mr. Maurer as a police officer in the State of Delaware. In decertifying Mr. Maurer, the Council on Police Training ("COPT" or "Council") accepted the three member Hearing Board's May 31, 2006 unanimous recommendation that Mr. Maurer be decertified.
Statement of Facts
A recitation of the Hearing Board's finding of facts are as follows: Cameron Maurer was a police officer with the Smyrna Police Department for almost four years, until he resigned on October 19, 2005. Mr. Maurer was a K9 officer during the time period in question. He attended a K9 training session with the New Castle County Police K9 unit at Carousel Stables from June 19, 2005 through June 30, 2005.
Mr. Maurer locked the keys to his patrol car in his vehicle on June 23, 2005. Mr. Maurer's police dog was also locked in the car. Corporal Terrence O'Connor of the New Castle County Police ("NCCP") offered to drive Mr. Maurer to Smyrna to get another set of keys, but Maurer decided that it would take to much time. Officer Jennifer Bunora of the NCCP was concerned about Maurer's dog in the summer heat and suggested she might be able to access the vehicle using a tire iron, towel (to protect the roof) and coat hanger.
Mr. Maurer testified that he was able to pry open the driver's door of his patrol car using his fingers and that Officer Bunora used the tire-iron to secure the gap between the roof of the vehicle and the door frame, insert the coat hanger, and open the lock. Mr. Maurer testified that Officer Bunora used the tire-iron, and he never applied the iron to the door. He claimed to have merely helped position the iron to align it with the door's lock. Officer Bunora, on the other hand, testified that Mr. Maurer used the tire iron to pry open the car door, and that she utilized both her hands in negotiating the coat hanger to unlock the car door. Further, Officer Bunora testified that she advised Mr. Maurer before he applied the tire-iron that she had done this procedure before and it may cause damage to the patrol car. Mr. Maurer responded, "Don't worry about it, it has enough dings already."
Corporal O'Connor testified that he was in his patrol vehicle during the time when Mr. Maurer and Officer Bunora attempted to open the locked door, but O'Connor saw Mr. Maurer's patrol car shortly after the incident and noticed there was damage to the roof just above the door frame where the tire-iron had been used. Cpl. O'Connor believed that the damage was new, because there was no rust. Cpl. O'Connor commented on the damage to Mr. Maurer, and Maurer acknowledged that the forced entry had caused the damage but it [the damage] was insignificant because it was an older car (a 2003 Crown Victoria with approximately 65,000 miles) with a lot of other "dings".
Mr. Maurer did not report any damage to his vehicle as a result of the forced entry as required by Department rules. The patrol car in question was reassigned by the Department to Corporal William Duncan shortly after the incident. Cpl. Duncan pointed out the damage to Captain Weber at a K-9 training session. Corporal O'Connor overhead the discussion and informed them that Mr. Maurer had locked his keys in the patrol car and the damage was caused by a tire-iron, which was used to gain entry into the vehicle.
Mr. Maurer's explanation concerning the damage to the roof changed several times in a series of e-mail correspondence with Lieutenant Wood over the course of August 24th and August 25, 2005. First, Mr. Maurer stated that the damage occurred several months earlier when K9s had jumped on his car during training and he had so advised Lt. Wood and Cpt. Weber. Mr. Maurer then changed his story articulating that he first noticed the damage to the roof and reported it around the time when his K9 bag was stolen from the vehicle in February 2005.
Lt. Wood responded that he nor Cpt. Weber had ever been informed of the damage to Mr. Maurer's patrol car. Lt. Wood also stated that Mr. Maurer was required to either complete a crime mischief report if the damage was caused by someone else, or a Departmental property damage report.
Mr. Maurer prepared an initial crime report (#58-05-012929) on August 29, 2005. The report stated that sometime between December 29, 2003 and August 1, 2005, an unknown suspect had damaged the exterior of his patrol vehicle. The narrative section of t he rep ort re ads: "A t some point during the occurrence time listed on this report, I noticed dents in the area of the driver's side area of Unit 815. I noticed these dents while the driver's side door was open and I was obtaining fuel for the vehicle in the area of town garage and Smyrna P.D. Once I stopped at the police station, I informed Cpt. Weber and Lt. Wood of this damage. I cannot verify exactly when nor how the damage occurred to Unit 815."
After seeing Mr. Maurer's criminal mischief report, Cpt. Weber talked to Mr. Maurer and expressed concerns, because Cpt. Weber believed the damage to the roof was most likely caused by the forced entry with the tire-iron. Cpt. Weber told Mr. Maurer that this was his opportunity to correct or complete any report regarding the damage.
On August 27, 2005, Mr. Maurer supplemented his report stating that the forced entry of his vehicle at Carousel Stables on June 23, 2005 was "a possible source of further damage to the vehicle. I would like to stress that it was not included in the initial report, because I knew it was not the cause of the original damage, therefore, it did not occur to me at the time." The supplemental report continued: "I did not observe any further damage when we gained entry into the vehicle other than what was already there. It is possible that I did not closely observe the area in which we had been working on enough, if Officer Bunora still believes she caused some damage. It is impossible for me to say with absolute certainty that there was no damage done during this incident. Due to the fact that I knew she had not caused the original damage and did not believe she had caused any further damage I did not provide any type of damage report."
Among finding the record replete with evidence that Mr. Maurer was less than candid in his prior inconsistent statements, the Board also had the opportunity to inspect the vehicle in question and determined that the damage (consistent with the testimony about Mr. Maurer's use of the tire-iron) was clearly visible. The Board did not believe it credible that Mr. Maurer could not have noticed the damage while getting into his patrol car every day for over two months (Mr. Maurer testified he never noticed any damage until questioned about it in late August 2005).
Decision of the Council
The Council may suspend or revoke certification in the event that a legal standard under 11 Del. C. § 8404(a)(4) is met. Pursuant to 11 Del. C. § 8404(a), the Council may:
(4) suspend or revoke certification in the event that an individual;
e. Has received a hearing pursuant to the Police Officer's Bill of Rights, or who has knowingly and voluntarily waived that individual's right to such a hearing and:
2. Has retired or resigned prior to the entry of findings of fact concerning an alleged breach of internal discipline for which the individual could have been legitimately discharged had the individual not retired from or resigned that individual's position prior to the imposition of discipline by the employing agency.
The Hearing Board ("Board") recommended the revocation of Mr. Maurer's certification, because the Board concluded as a matter of law that there was substantial evidence in the record to satisfy 11 Del. C. § 8404(a)(4)e.2. The Board continued: On September 2, 2005, the Department notified Mr. Maurer that he was under investigation for misconduct. On October, 19, 2005, the Department charged
Mr. Maurer with five counts of misconduct, including lying during the investigation and falsifying an official report. Mr. Maurer tendered his resignation on October 19, 2005 effective November 2, 2005.
The Smyrna Police Department correctly notified the Administrator for the COPT that Mr. Maurer resigned after administrative charges (involving a matter of truthfulness) were brought against him. The COPT sent Mr. Maurer a notice that he might be decertified and that he had a right to a decertification hearing, which Maurer elected to have.
According to the Department's Rules of Conduct and Duty, falsifying an official record is a Group V offense which may result in dismissal. Lying during an internal affairs investigation is a Group VI offense for which the penalty is dismissal. Therefore, the Council had the discretion to decertify Mr. Maurer pursuant to the statute. The Board further articulated that decertification is a sanction that requires a finding that a police officer is a threat to the public safety, or whose misconduct so undermines the public trust that he should be barred from a job in law enforcement.
In the Matter of Cameron Maurer, COPT Hearing Board (May 31, 2006) citing In the Matter of Officer Whitney, COPT Hearing Board (Apr. 21, 2004).
The Board unanimously concluded that Mr. Maurer's dishonesty and lack of candor so undermined the public trust that he should be decertified and barred from a job in law enforcement in the State of Delaware. Specifically, the Board was particularly troubled by Mr. Maurer's criminal mischief report, which was vague and inconsistent with other contemporaneous statements he made to the Department about what caused the damage to the roof of his patrol car.
Standard of Review
The COPT is not one of the agencies listed in the Administrative Procedures Act ("APA") § 10161(a) (29 Del. C.). Therefore, pursuant to the APA § 10161(b), the APA's Review of Case Decision section, § 10142, does not apply to an appeal from the COPT. A party suffering an adverse ruling in a COPT hearing has a right to appeal to the Superior Court under title 11 Del. C. § 8404A(3). However, § 8404A(3) does not provide for the standard of review.In the absence of statutory direction, the proper standard of review is whether the agency's decision is supported by substantial evidence and is free from legal error. Substantial evidence equates to "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." This Court will not weigh the evidence, determine questions of credibility, or make its own factual findings. Questions of law that arise from the Board's decision are subject to de novo review which requires the Court to determine whether the Board erred in formulating or applying legal precepts. Absent error of law, the standard of review for a Board's decision is abuse of discretion. The Board has abused its discretion only when its decision has "exceeded the bounds of reason in view of the circumstances."
Phillips v. Div. of Prof'l Regulation, 2004 WL 440414, *2.
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) ( quoting Consolo v. Federal Mar. Comm'n, 383 U.S. 607, 620 (1966)).
Collins v. Giant Food, Inc., 1999 Del. Super. LEXIS 590 ( quoting Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965)).
Bermudez v. PTFE Compounds, Inc., 2006 WL 2382793, *3.
Digiacomo v. Bd. of Pub. Educ., 507 A.2d 542, 546 (Del. 1986).
Willis v. Plastic Materials, 2003 Del. Super. LEXIS 9 at *2-3.
Discussion
I. The Council did not abuse its discretion in determining that Mr. Maurer waived his right to a LEOBOR termination hearing.Mr. Maurer first argues that the COPT abused its discretion in decertifying him pursuant to 11 Del. C. § 8404(a)(4)e.2, because Mr. Maurer did not knowingly and voluntarily waive his right to a hearing under the Law Enforcement Officer's Bill of Rights ("LEOBOR"). Mr. Maurer claims that his resignation was coerced by the Smyrna Police Department, because it involved the Smyrna PD dropping the criminal charges and investigation against him in exchange for his resignation. Further, Mr. Maurer argues that he never waived his right to a LEOBOR hearing in writing as required for the waiver to be effective under 11 Del. C. § 9204.
Mr. Maurer did not receive a hearing pursuant to the Law Enforcement Officer's Bill of Rights. Mr. Maurer was not an "officer" as defined by the LEOBOR following his resignation from the Smyrna PD. Consequently, he was not entitled to a hearing under the Officer's Bill of Rights. Therefore, it had to be shown that Mr. Maurer waived the right to such a hearing in order to satisfy 11 Del. C. § 8404(a)(4)e.
The Smyrna Police Department served Mr. Maurer with a Notice of Proposed Disciplinary Action on October 19, 2005. The Notice stated in relevant part: "Pursuant to the provisions of 11 Del. C. Ch. 92, you have the right to a hearing on this matter. . . [or] you have the right to waive your rights [to a hearing] and to accept the sanctions as herein provided." A termination letter was typed by Cpt. Weber on behalf of Mr. Maurer on October 19, 2005. The letter was presented to and signed by Mr. Maurer on November 2, 2005. Mr. Maurer never signed the Notice of Proposed Disciplinary Action.
Mr. Maurer argues that he did not knowingly and voluntarily waive his right to a LEOBOR hearing, because his resignation was coerced by the Smyrna Police Department. Mr. Maurer was faced with two unpleasant alternatives when he decided to resign from his position with the Smyrna Police Department. First, Mr. Maurer could choose to tender his resignation, and he would no longer face criminal and civil penalties. Second, Mr. Maurer could choose not to tender his resignation and defend the allegations against him. Mr. Maurer had a choice, and he voluntarily choose to tender his resignation. To decide otherwise, would create a situation where an officer facing discipline could resign (without having a LEOBOR hearing), and the "coerced" resignation would not constitute a knowing and voluntary waiver of the officer's right to a LEOBOR hearing. The Council would then not be able to proceed with decertification under 11 Del. C. § 8404(a)(4)e. Consequently, an officer would then be able to resign when facing discipline to avoid a decertification hearing. Therefore, the Court finds that Mr. Maurer knowingly and voluntarily waived his right to a LEOBOR hearing when he choose to tender his resignation.
Mr. Maurer also argues that any waiver of his right to have a LEOBOR hearing was ineffective under 11 Del. C. § 9204, because he did not waive the right to a hearing in writing. Title 11 Del. C. § 9204 states in relevant part:
"In the event an officer is entitled to a hearing, a hearing shall be scheduled within a reasonable period of time from the alleged incident, but in no event more than 30 days following the conclusion of the internal investigation, unless waived in writing by the charged officer. . ."
Mr. Maurer was not "an officer" entitled to a LEOBOR hearing due to his resignation from the Smyrna Police Department. Even if Mr. Maurer was "an officer" entitled to a LEOBOR hearing, his failure to waive the right to a hearing in writing did not constitute an ineffective waiver.
The written waiver that is required by the charged officer, in 11 Del. C. § 9204, refers to the Police Officer's right to have a LEOBOR hearing within "30 days following the conclusion of the internal investigation." The section does not require a written waiver for the LEOBOR hearing itself. It requires a waiver to be in writing when the hearing is going to occur more than 30 days after the conclusion of the internal investigation.
By interpreting § 9204 in this manner, a Police Officer is prevented from simply refusing to sign a Notice of Proposed Disciplinary Action in order to avoid decertification. The Council may only decertify an officer under § 8404(a)(4)e. after the officer has either had a LEOBOR hearing (which would not occur after an Officer's resignation), or after the Officer has knowingly and voluntarily waived their right to such a hearing. An officer's knowing and voluntary waiver of a LEOBOR hearing would have to be in writing to be effective, if § 9204 were interpreted as requiring there be a written waiver of a LEOBOR hearing itself for the waiver to be effective. If § 9204 were interpreted in such a manner, an Officer could resign without signing a Notice of Proposed Disciplinary Action, and the Council would be unable to pursue decertification. Consequently, the Court finds that the required written waiver in § 9204 applies to the 30 day requirement, and an officer can knowingly and voluntarily waive their right to a LEOBOR hearing without having to waive the right in writing.
II. The COPT committed legal error when it failed to apply the APA rules governing hearings to Mr. Maurer's decertification hearing.
The APA statute, 29 Del. C. § 10161(a), enumerates a list of agencies in which Chapter 101 (Administrative Procedures) of the APA applies. The Council on Police Training is not an agency listed in § 10161(a). Section 10161(b) states that "all agencies which are not listed in subsection (a) of this section shall only be subject to Subchapters I and II of this Chapter and §§ 10141, 10144 and 10145 of this Title." Since the COPT is not an agency listed in § 10161(a), the APA subjects the COPT to the specific provisions of the APA listed in § 10161(b).
Chapter 101 Subchapter I is Policy and Definitions. Chapter 101 Subchapter II is Agency Regulations. Sections 10141, 10144 and 10145 are under Subchapter V (Judicial Review) and are Review of Regulations, Stay Pending Review and Commencement of Review, respectfully.
The COPT statute, 11 Del. C. § 8404A., states in relevant part: "In all situations where the provisions of § 8404(a)(4). . . of this title are to be applied to or invoked against any. . . individual,. . . that individual shall be entitled to a hearing in the manner prescribed herein:. . . (4) All hearings shall be conducted in accordance with the Administrative Procedures Act." Section 8404(a)(4) provides the COPT with the power to suspend or revoke certification of an individual. Therefore, when an individual is subject to decertification, the COPT statute entitles the individual to a hearing that "shall be conducted in accordance with the APA."
The State argues that the APA's Case Decision rules do not apply to the COPT, because it is not an agency listed in § 10161(a). The State further argues that if the COPT is covered by the APA Case Decision rules (Cpt. 101 Subchapter III), then Mr. Maurer cannot explain why the legislature would have provided for a shorter period of time in the COPT statute for judicial review as opposed to the APA. On the other hand, Mr. Maurer argues that the two statutes are conflicting, and that the COPT statute, applying APA procedures to decertification hearings, should govern due to the statute being more specific.
29 Del. C. § 10142(b) (APA statute) provides that an appeal from a case decision "shall be filed within 30 days of the day the notice of the decision was mailed. It is important to note that § 10142(b) is in Subchapter V (Judicial Review) of Cpt. 101. The COPT statute, 11 Del. C. § 8404A(3), provides for an appeal to this Court within 15 days of receipt of written notification of [the findings of Council].
The COPT statute and APA seem somewhat at odds, but they can be harmonized. The COPT statute affords an individual subject to decertification with special protections. The COPT statute states that an individual subject to [decertification] shall have a hearing "conducted in accordance with the Administrative Procedures Act." Although the APA § 10161(b) specifies what portions of the APA applies to agencies that are not enumerated in § 10161(a), the COPT statute independently adopts the APA rules governing hearings to COPT decertification hearings. This affords more due process protection to Officers subject to decertification. The APA rules governing hearings are, therefore, applicable to COPT decertification hearings pursuant to 11 Del. C. § 8404A.
The State's argument concerning differing time limits for judicial review is irrelevant, because the APA's Case Decision rules are applicable to COPT decertification hearings, but the APA's Judicial Review section (Cpt. 101 Subchapter V) is inapplicable, except to the extent § 10161(b) applies. The COPT statute can therefore proscribe a time limit for judicial review that is different from the time limit proscribed by the APA.
The COPT statute is adopting the APA's Cpt. 101 Subchapter III (Case Decision), and § 10142(b) is part of the APA's Cpt. 101 Subchapter V (Judicial Review), which the COPT statute does not adopt. Section 10161(b) applies §§ 10141, 10144 and 10145 to the COPT, but the APA does not impose its time limit for judicial review ( § 10142(b)) upon agencies not listed in § 10161(a). Therefore, agencies not in listed § 10161(a) are free to adopt their own time limit concerning judicial review.
Additionally, pursuant to the APA, specific provisions of the APA listed in § 10161(b) already apply to the COPT. Therefore, the provision in the COPT statute entitling an individual subject to decertification to a hearing "conducted in accordance with the Administrative Procedures Act" would be superfluous if it merely granted the individual the same protections already applicable to the COPT, afforded by the APA's § 10161(b). Further, decertification of an Officer is an extraordinary measure. By adopting the APA rules governing hearings, the COPT statute recognizes the significance of the decertification hearing and provides higher due process to an Officer concerning the Officer's decertification hearing. Therefore, in addition to the APA provisions applicable to the COPT pursuant to the APA's § 10161(b), the Court finds that the APA Case Decision rules, Subchapter III of Chapter 101, are also applicable to COPT decertification hearings under the COPT statute.
The provisions listed in FN 13.
Based on the foregoing, the COPT's decision is vacated and the matter is remanded to the COPT for the purpose of conducting a new decertification hearing consistent with this opinion.
Due to the Court's determination that a new decertification hearing is appropriate, Mr. Maurer's additional arguments need not be addressed by the Court.
IT IS SO ORDERED.