Can a state ethics board investigate and discipline a police officer, or does the Law Enforcement Officers Bill of Rights take over instead?

Plain-English summary

In 1987, the Executive Director of Maryland's State Ethics Commission asked the Attorney General how the Law Enforcement Officers Bill of Rights (LEOBR), which gives police officers procedural protections during disciplinary investigations, interacted with the Ethics Commission's own power to investigate and discipline State officials, including State law enforcement officers, for violations of the Public Ethics Law.

The Attorney General concluded that LEOBR did not strip the Ethics Commission of its authority to investigate complaints against State police officers for ethics violations, reasoning that reading LEOBR to block the Commission entirely would effectively exempt an entire class of State employees the Ethics Law was meant to cover. However, the opinion found that if Ethics Commission staff wanted to interrogate an officer as part of that investigation, the interrogation had to be conducted by a law enforcement officer and follow LEOBR's detailed procedural safeguards (timing, location, advance notice of the nature of the investigation, right to counsel, and so on), which the Ethics Commission could accomplish by coordinating with the officer's own agency. On discipline, the opinion concluded that a later-added provision making LEOBR supersede any conflicting state law meant that if the Ethics Commission found an ethics violation by a covered officer, any actual discipline had to be carried out through LEOBR's hearing board process by the officer's employing agency, not imposed directly by the Ethics Commission, though the Commission could refer its findings to the agency and recommend appropriate discipline.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Note that a 1988 amendment, referenced in the opinion's own editor's note, later added Article 40A, §1-104(b), providing that LEOBR does not apply to Ethics Commission activities under the Ethics Law.

Common questions

Could Maryland's Ethics Commission open an investigation into a state trooper or other state police officer in 1987?
Yes, according to this opinion. The Attorney General concluded that the Law Enforcement Officers Bill of Rights did not divest the Ethics Commission of its statutory authority to investigate State law enforcement officers for violations of the Public Ethics Law.

If the Ethics Commission wanted to question a police officer as part of an ethics investigation, could its own staff conduct that interview?
Not directly. The opinion concluded that any interrogation of the officer had to be conducted by a law enforcement officer under LEOBR's detailed procedural rules, though Ethics Commission staff could coordinate with the officer's agency, help determine what to ask, and even be present during the interrogation as long as a single law enforcement interrogator asked the questions.

Could the Ethics Commission itself discipline a police officer it found had violated the ethics law?
No. The opinion concluded that because LEOBR was later amended to supersede any conflicting state law, any actual disciplinary action against a covered officer had to go through LEOBR's hearing board process and be imposed by the officer's own employing agency, with the Ethics Commission limited to referring its findings and recommending discipline rather than imposing it directly.

Background and statutory framework

The Maryland Public Ethics Law, Article 40A of the Maryland Code, was enacted to guard against improper influence over public officials by regulating conflicts of interest in four areas: employment restrictions, use of the prestige of office, solicitation or acceptance of gifts, and disclosure of confidential information. The State Ethics Commission administers the law for executive branch employees, investigates complaints through its staff counsel, and can issue reprimands, orders of compliance, or refer matters for discipline including suspension of pay. The opinion confirmed prior office guidance that the Ethics Law applies to State agencies generally, including the State law enforcement agencies listed in LEOBR, such as the Maryland State Police, whose own administrative manual had already incorporated the Ethics Law's text and disciplinary rules addressing gifts, secondary employment, and use of official position.

LEOBR, codified at Article 27, §§727 through 734D, was enacted to guarantee police officers procedural protections during any investigation or hearing that could lead to discipline. It does not create new substantive rights but governs procedure: how investigations and interrogations must be conducted (§728) and how disciplinary hearings must be run (§§730, 731, 734A). The opinion traced case law establishing that LEOBR's protections are not limited to investigations conducted by the officer's own employer, citing Mayor and Commissioners of Westernport v. Duckworth, and noted a related, later-vacated Court of Special Appeals decision suggesting that non-law-enforcement agencies might lack authority to investigate certain complaint types under LEOBR's specific provisions.

On investigation, the opinion found no irreconcilable conflict between the Ethics Law's general investigative authority and LEOBR, since an ethics investigation can proceed without depriving the officer of LEOBR's procedural safeguards. On interrogation specifically, the opinion found LEOBR's detailed nine-part procedural checklist, covering reasonable hours, location, advance notice, a single interrogator, right to counsel, and a complete record, had to govern any questioning of the officer, which meant Ethics Commission staff counsel would need to work through the officer's agency to arrange a LEOBR-compliant interrogation rather than question the officer directly.

On enforcement and discipline, the opinion relied on Article 27, §734B, added after the Abbott v. Administrative Hearing Board decision, which makes LEOBR's hearing procedures supersede any conflicting state, county, or municipal law. Because LEOBR entitles an officer to a formal hearing before a board of peers prior to any punitive action, and because the Ethics Law's own enforcement provision contemplates that final disciplinary action may be carried out by the employing agency rather than the Commission itself, the opinion concluded that the Ethics Commission's role in a substantiated case is to transmit its findings to the officer's agency, which then initiates LEOBR's hearing board process and makes the final decision.

Citations

Statutes:

• Article 40A, §1-102 (Ethics Law statement of legislative policy)
• Article 40A, §1-102(d) (liberal construction of the Ethics Law)
• Article 40A, §1-104(b) (1988 amendment exempting Ethics Commission activities from LEOBR)
• Article 40A, §§3-103 and 3-105 (employment restrictions)
• Article 40A, §3-104 (use of the prestige of office)
• Article 40A, §3-106 (solicitation or acceptance of gifts)
• Article 40A, §3-107 (disclosure of confidential information)
• Article 40A, §2-105 (State Ethics Commission administration and enforcement authority)
• Article 40A, §2-105(d) (staff counsel investigation and hearing procedure)
• Article 40A, §2-105(d)(1) (staff counsel evidence-collection duty)
• Article 40A, §2-105(d)(3) (notice to complainant and respondent)
• Article 40A, §2-105(d)(4) (hearing required if complaint not dismissed)
• Article 40A, §2-105(d)(5) (presentation of evidence at hearing; Administrative Procedure Act)
• Article 40A, §2-105(d)(6) (Commission findings of fact and conclusions of law)
• Article 40A, §2-105(d)(7) (dismissal of complaint)
• Article 40A, §2-105(d)(8) (order of compliance, reprimand, or recommendation of discipline)
• Article 40A, §7-101 (Commission enforcement of orders)
• Article 40A, §7-103(1) (termination or other disciplinary action for a violation)
• Article 40A, §7-104(2) (suspension of pay pending compliance)
• Article 27, §§727 through 734D (Law Enforcement Officers Bill of Rights)
• Article 27, §727(b) (law enforcement agencies covered by LEOBR)
• Article 27, §727(d)(1) (right to a hearing before discipline)
• Article 27, §727H (definition of "interrogating officer")
• Article 27, §728(a) (substantive LEOBR provisions)
• Article 27, §728(b) (interrogation procedural requirements)
• Article 27, §728(b)(3) (disclosure of persons present during interrogation)
• Article 27, §728(b)(4) (investigation of brutality complaints)
• Article 27, §729 (limits on required disclosure of officer's personal financial information)
• Article 27, §729A (substantive LEOBR provision)
• Article 27, §730(a) (right to a hearing before discipline)
• Article 27, §731 (final decision by the agency chief)
• Article 27, §732 (appeal of disciplinary decisions to the courts)
• Article 27, §734 (aid of circuit court to obtain LEOBR rights)
• Article 27, §734A (hearing procedure)
• Article 27, §734B (LEOBR supersedes conflicting state, county, or municipal law)
• Article 27, §734C (substantive LEOBR provision)
• Article 27, §734D (written waiver of interrogation rights)
• Article 41, §4-201(d)(6) (Police Training Commission certification authority)
• Article 41, §4-201(i)(2) (certification hearings must follow LEOBR)
• Article 49B, §3(a) (Human Relations Commission surveys and studies authority)
• COMAR 19A.01.03.02 through .05 (Ethics Commission complaint and investigative procedures)
• COMAR 19A.01.03.02E (respondent's right to counsel)
• COMAR 19A.01.03.04B (notice to complainant and respondent before presenting evidence)
• Chapter 722, Laws of Maryland 1974 (original enactment of LEOBR)
• Chapter 366, Laws of Maryland 1977 (added §734B to LEOBR)
• Chapter 679, Laws of Maryland 1981 (amended §734B)
• Chapter 249, Laws of Maryland 1985 (amended definition of "interrogating officer")
• Chapter 405 (House Bill 428), Laws of Maryland 1988 (added Article 40A, §1-104(b))

Cases:

• DiGrazia v. County Executive, 288 Md. 437 (1980)
• Nichols v. Baltimore Police Department, 53 Md. App. 623 (1983)
• Windsor v. Bozman, 68 Md. App. 223, 228 (1986)
• Montgomery County Dep't of Police v. Lumpkin, 51 Md. App. 557, 567 (1982)
• Elliott v. Kupferman, 58 Md. App. 510, 523 (1984)
• Chief, Baltimore County Police Department v. Marchsteiner, 55 Md. App. 108, 115-16 (1983)
• Mayor and Commissioners of Westernport v. Duckworth, 49 Md. App. 236 (1981)
• Prince Georges County v. State Commission on Human Relations, 40 Md. App. 473 (1978), vacated 285 Md. 205 (1979)
• Kaczorowski v. City of Balto., 309 Md. 505, 517 (1987)
• Montgomery v. State, 292 Md. 155 (1981)
• Howard County Association for Retarded Citizens, Inc. v. Walls, 288 Md. 526 (1980)
• Comptroller of the Treasury v. Louis, 285 Md. 527 (1979)
• Hoyt v. Police Commissioner, 279 Md. 74 (1977)
• Abbott v. Administrative Hearing Board, 33 Md. App. 681 (1976)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC ETHICS

Law Enforcement Officers Bill Of Rights ("LEOBR")—Ethics Commission Has Authority To Investigate Officers Protected By LEOBR'S Requirements Concerning Investigations, Interrogations, Hearings, And Determinations.

October 30, 1987

Mr. John E. O'Donnell, Executive Director
State Ethics Commission

On behalf of the State Ethics Commission, you have requested our opinion concerning the relationship of the Law Enforcement Officers Bill of Rights ("LEOBR") and the Maryland Public Ethics Law ("Ethics Law"). Specifically, you ask about LEOBR's impact on (1) the "investigation and preliminary determination powers" of the Ethics Commission and (2) the Commission's "hearing provisions and final determination authority."

For the reasons stated below, we conclude as follows:

1. The Ethics Commission may conduct investigations of complaints against State law enforcement officers for violations of the Ethics Law. However, any interrogation of a State law enforcement officer during the course of an investigation by the Ethics Commission must be done by a law enforcement officer in accordance with LEOBR.

2. Any disciplinary action against a State law enforcement officer for a violation of the Ethics Law must be taken (i) in accordance with the hearing and decisional provisions of LEOBR; and (ii) by the agency employing the officer, not by the Ethics Commission.

I
Introduction

A. The Ethics Law

The Maryland Public Ethics Law, codified as Article 40A of the Maryland Code, is a comprehensive statutory scheme designed to assure the impartiality and independent judgment of public officials. Article 40A, §1-102 contains the following statement of legislative policy:

"(a) The General Assembly of Maryland, recognizing that our system of representative government is dependent in part upon the people maintaining the highest trust in their public officials and officers, finds and declares that the people have a right to be assured that the impartiality and independent judgment of public officials and officers will be maintained.

(b) It is evident that this confidence and trust is eroded when the conduct of the State's business is subject to improper influence and even the appearance of improper influence.

(c) For the purpose of guarding against improper influence, the General Assembly enacts this Public Ethics Law to require State officials and public officials to disclose their financial affairs and to set minimum standards for their conduct of State and local business.

(d) It is the intention of the General Assembly that this article, except its provisions for criminal sanctions, be liberally construed to accomplish this purpose."

Generally, the Ethics Law regulates conflicts of interest on the part of State officials and employees in four basic areas: employment restrictions (Article 40A, §§3-103 and 3-105); use of the prestige of one's office (§3-104); solicitation or acceptance of gifts (§3-106); and disclosure of confidential information (§3-107).

As to officers and employees of the executive branch of government, the Ethics Law is administered by the State Ethics Commission. The Commission is charged with the overall administration of the Ethics Law and the enforcement of its substantive provisions. The Commission is expressly empowered to receive and investigate complaints (§2-105) and to seek enforcement of its orders and other relief (§7-101).

B. The Law Enforcement Officers Bill of Rights

LEOBR, codified at Article 27, §§727 through 734D, was enacted primarily to assure certain procedural guarantees to police officers during any investigation or hearing that could lead to disciplinary action. DiGrazia v. County Executive, 288 Md. 437 (1980); Nichols v. Baltimore Police Department, 53 Md. App. 623 (1983).1

Subject to certain exceptions not relevant to this opinion, LEOBR applies to a person who in his or her official capacity is authorized by law to make arrests and who is a member of one of the law enforcement agencies enumerated in §727(b).2 Although LEOBR contains some substantive provisions, essentially it is a statute that deals with procedure, not substance.3 LEOBR addresses how investigations and interrogations of complaints against officers are to be handled (§728) and how hearings are conducted and decisions made (§§730, 731 and 734A).4 LEOBR is not itself a tenure statute, Windsor v. Bozman, 68 Md. App. 223, 228 (1986); does not apply to management decisions that are not punitive in nature, Montgomery County Dep't of Police v. Lumpkin, 51 Md. App. 557, 567 (1982); and does not create or remove unrelated substantive rights, Elliott v. Kupferman, 58 Md. App. 510, 523 (1984); Chief, Baltimore County Police Department v. Marchsteiner, 55 Md. App. 108, 115-16 (1983).

II
Applicability of State Ethics Law to State Law Enforcement Agencies

"[T]he Public Ethics Law applies to those agencies, officials, and employees generally deemed to be a part of our State government." 67 Opinions of the Attorney General 244 (1982). Police officers employed by the State agencies enumerated in Article 27, §727(b), and therefore subject to LEOBR, are also subject to the Ethics Law.5 Indeed, as pointed out in your letter, the Ethics Commission has issued several advisory opinions with regard to employees of the Maryland State Police, for the most part concerning secondary employment. See Commission Opinions 83-42, 83-26, 83-16, 83-10, 82-12, 81-36 and 79-2.

In recognition of the applicability of the Ethics Law, the Maryland State Police has incorporated the entire text of the Ethics Law in its manual governing the conduct of employees. See Maryland State Police Administrative Manual, Chapter 7, Section III, Subsection 3-0. Additionally, the rules of conduct for employees of the Maryland State Police, as found in Chapter 5, Section I of the Administrative Manual, contain a number of provisions dealing with matters that come under the aegis of the State Ethics Commission.6 See also, e.g., Chapter 4, Section XV of the Maryland State Police Administrative Manual (statement of policy and procedure concerning secondary employment by State Police officers).7

III
Investigatory Authority of the Ethics Commission

A. Generally

The Ethics Commission investigates alleged violations through its staff counsel. Article 40A, §2-105(d). Upon referral of a complaint, staff counsel is to "collect evidence relating to the allegations of the complaint and refer that evidence to the Commission for disposition." §2-105(d)(1). In the event of a hearing, staff counsel is to "present to the Commission all evidence available to him relating to the complaint." §2-105(d)(5).

The Ethics Law is otherwise silent as to the process of investigation of complaints. However, under its rulemaking authority, the Ethics Commission has adopted detailed complaint and investigative procedures. These procedures provide for confidentiality, prohibit ex parte communications, set forth the manner in which complaints are received and issued, provide for preliminary staff investigation and review, and provide for a preliminary Commission determination prior to any formal hearing. COMAR 19A.01.03.02 through .05.

B. Effect of LEOBR

In our view, LEOBR does not divest the Ethics Commission of its authority to investigate law enforcement officers covered by the Ethics Law. However, as discussed in Part III C below, LEOBR does impose certain requirements should the Commission's staff counsel seek to interrogate an officer.

As we read it, LEOBR does not preclude the investigation of an officer by an agency acting within the scope of its investigative authority, even if the agency is not one of the law enforcement agencies itemized in Article 27, §727(b).8 First, it is clear that LEOBR does not confine the power to investigate to the officer's own employer only. In Mayor and Commissioners of Westernport v. Duckworth, 49 Md. App. 236 (1981), the Chief of the Westernport Police Department had requested the Maryland State Police to investigate an officer's involvement in an accidental shooting and, based on that investigation, sought to fire the officer. The Court of Special Appeals found "no merit" in the argument that only the employing law enforcement agency had the authority to investigate the officer. 49 Md. App. at 241.9 At a minimum, then, other law enforcement agencies have authority to investigate. The unsettled question is whether an entity that is not a law enforcement agency may do so.10

One decision of the Court of Special Appeals, later vacated by the Court of Appeals and therefore without precedential value, suggests that when LEOBR specifies investigative criteria concerning a particular type of complaint, an agency that is not a law enforcement agency may not investigate a complaint of that type. In Prince Georges County v. State Commission on Human Relations, 40 Md. App. 473 (1978), vacated 285 Md. 205 (1979), the Human Relations Commission sought records from the Prince George's County Police Department concerning allegations of police brutality. The records were sought pursuant to the Human Relations Commission's authority under Article 49B, §3(a) to make "surveys and studies" concerning human relations and racial problems in the State. The Court of Special Appeals held that the Human Relations Commission was not a law enforcement agency as defined in LEOBR, and, in view of the specific provisions of LEOBR concerning the investigation of brutality complaints (§728(b)(4)), was not authorized to investigate the matter.11

Nevertheless, whatever might be the restrictions on investigations of brutality complaints, we do not believe that LEOBR ought to be read so as to preclude the Ethics Commission from investigating a violation of the Ethics Law by an officer protected by LEOBR. Were LEOBR construed so restrictively, the result would be that a class of State employees whom the Ethics Law purports to encompass would, in reality, be exempt. If the Ethics Commission received a complaint involving a potential violation of the Ethics Law by a State law enforcement officer subject to LEOBR, the Ethics Commission could do nothing. Its only possible recourse would be to refer the matter to the chief of the appropriate police department. The chief could potentially decide that no investigation would be conducted or action taken; the liberal construction to be given the Ethics Law would thereby be defeated. See Article 40A, §1-102(d). In reading statutes, we are to adopt a construction that "comports with common sense and avoids illogical or absurd results." Kaczorowski v. City of Balto., 309 Md. 505, 517 (1987). Statutes must be construed in a reasonable fashion, keeping in mind the purposes that each seeks to accomplish. See Montgomery v. State, 292 Md. 155 (1981); Howard County Association for Retarded Citizens, Inc. v. Walls, 288 Md. 526 (1980); Comptroller of the Treasury v. Louis, 285 Md. 527 (1979). LEOBR, too, must be read and interpreted in conjunction with other statutes and ordinances dealing with related matters. See, e.g., Hoyt v. Police Commissioner, 279 Md. 74 (1977).

We do not see any irreconcilable conflict between the investigative provisions of the Ethics Law and the investigative provisions of LEOBR. If conducted properly, an investigation by the Ethics Commission need not deprive an otherwise covered State law enforcement officer of the procedural safeguards contained in LEOBR.

C. Interrogation

Although there is no irreconcilable conflict between LEOBR and the Ethics Law concerning investigations in general, the investigatory powers of the Ethics Commission must be applied so as to give effect to the procedures specified in LEOBR regarding the interrogation of an officer.

Formal action of the Ethics Commission can be disciplinary in nature, given its authority to issue reprimands. Article 40A, §2-105(d)(8). Also, if the Commission finds that a person otherwise subject to its authority has violated any of its provisions, that person may be subject to termination and suspension of salary until compliance. §§7-103(1) and 7-104(2). These disciplinary sanctions trigger LEOBR's procedural requirements. Article 27, §728(b).12

The Ethics Law contains no detailed provisions concerning interrogation. In discussing investigations, it does make a brief reference to notification. Article 40A, §2-105(d)(3) provides that, before referring evidence to the Commission, the staff counsel is required to notify the complainant and respondent. The Commission's regulations elaborate slightly: "Before presenting any evidence to the Commission, the Staff Counsel shall notify the complainant and respondent and shall afford the respondent an opportunity to cure any alleged violation . . . ." COMAR 19A.01.03.04B. The regulations also provide that the respondent is "entitled to be represented by counsel during all stages of the proceeding." COMAR 19A.01.03.02E.

By contrast, LEOBR is extraordinarily detailed about all aspects of an interrogation. These interrogation provisions are meant as a key part of LEOBR's procedural safeguards. See Nichols v. Baltimore Police Department, 53 Md. App. 623 (1983); Montgomery County Department of Police v. Lumpkin, 51 Md. App. 557 (1982). Article 27, §728(b) provides that an interrogation of an officer on any matter that could lead to disciplinary action must be conducted under the following constraints:

1. The interrogation must occur at a reasonable hour at a time when the officer is on duty, except in unusual circumstances.

2. The interrogation must take place at the office of the command of the investigating officer or where the incident allegedly occurred, or at some other "reasonable and appropriate place."

3. The officer must be informed of the name, rank, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation.

4. All questions directed to the officer must be asked by and through one interrogator during any one interrogating session.

5. The officer must be informed in writing of the nature of the investigation prior to any interrogation.

6. Interrogation sessions must be for reasonable periods with allowance for any personal necessities and rest periods.

7. A complete record (written, taped, or transcribed) must be kept of the interrogation, including all recess periods.

8. If the officer under interrogation is under arrest or is likely to be placed under arrest as a result of the interrogation, he must be informed of all rights prior to the beginning of the interrogation.

9. The officer has a right to be represented at the interrogation by counsel or other representative of his choosing.

Section 728(b) of LEOBR provides that the interrogation requirements are triggered by an investigation that could lead to disciplinary action, if the agency chooses to interrogate the officer. An agency is not required to interrogate an officer. However, we can easily foresee that, in the "collection of evidence" by staff counsel of the Ethics Commission, staff counsel might wish to interview or otherwise interrogate the officer who is the subject of a complaint.

The Ethics Law stresses cooperation with State agencies in the Commission's carrying out of its statutory responsibilities. In light of the legislative purpose underlying the interrogation provisions of LEOBR, we believe that the Ethics Law must be applied consistently with them. See Article 27, §734B.13

To ensure compliance with LEOBR, the Ethics Commission staff counsel investigating a complaint should contact the State law enforcement agency employing the officer and request an interview of the officer. The agency then would become aware of the complaint and would initiate the procedural requirements of LEOBR. Staff of the Ethics Commission could meet with investigators assigned by the agency and determine the matters to be covered in an interrogation of the officer. The agency then would issue its notice to the officer under LEOBR and set up an interrogation.

Indeed, we see no reason why Ethics Commission staff could not be present during the interrogation. Section 728(b)(3) of LEOBR envisions the possible presence of persons other than the officer doing the questioning, because it requires disclosure to the officer concerning "all persons present during the interrogation."14 Staff of the Ethics Commission would not be prohibited from conducting discussions with the department interrogator during the course of the interrogation. The only requirement is that the questions must be asked through one interrogator. Likewise, staff counsel would not be prohibited from including the results of the interrogation with his or her findings to the Ethics Commission.15

Whether or not this somewhat cumbersome procedure would unduly interfere with the orderly process of the Ethics Commission, and therefore should be the subject of legislative attention, is a matter for determination by the Commission. We conclude only that the interrogation provisions of LEOBR, when read together with the investigative powers of the Ethics Commission, allow us to give effect to both statutes in the manner outlined above.

V
The Enforcement Provisions of the Ethics Law and the Hearing Provisions of LEOBR

LEOBR was originally enacted as Chapter 722 of the Laws of Maryland 1974. Uncodified section 2 of the enactment provided "that all laws or parts of laws, public general or public local, inconsistent with this Act, are repealed to the extent of the inconsistency."

In Abbott v. Administrative Hearing Board, 33 Md. App. 681 (1976), the Court of Special Appeals dealt with the question of "whether the provisions of the Prince George's County merit system ordinance and the County Charter governing employee appeals from administrative disciplinary actions are, when applied to cases involving police officers, preempted by [LEOBR]." 33 Md. App. at 682. The court held that, because the appeal provisions of the County ordinances concerning disciplinary actions conflicted with those of LEOBR, LEOBR prevailed. The Abbott decision made no mention of Section 2 of Chapter 722. The court instead relied on general principles governing conflicts between public general laws and locally enacted laws. 33 Md. App. at 687.

The Abbott decision left open the question of LEOBR's precedence over another public general law. Subsequently, the General Assembly added §734B to LEOBR. Chapter 366, Laws of Maryland 1977. Section 734B, as later amended by Chapter 679 of the Laws of Maryland 1981, reads as follows:

"Except for the administrative hearing process provided for in Article 41, §4-201 concerning the certification enforcement power of the Police Training Commission, the provisions of this subtitle shall supersede any State, county, or municipal law, ordinance, or regulation that conflicts with the provisions of this subtitle and any local legislation shall be preempted by the subject and material of this subtitle." (Emphasis added.)16

Hence, the hearing procedures of LEOBR are to prevail over those of the Ethics Law, to the extent of any conflict.

Under the Ethics Law, if a complaint is not dismissed, the Commission must hold a hearing. §2-105(d)(4). At the hearing, staff counsel presents evidence to the Commission regarding the complaint and may make recommendations. In general, the hearing is to be conducted under the provisions of the Administrative Procedure Act. §2-105(d)(5). The Commission makes findings of fact and conclusions of law and either dismisses the complaint (§2-105(d)(7)) or, if a violation is found, issues an order of compliance. §2-105(d)(6), (7), and (8).

Under LEOBR, an officer is entitled to a formal hearing before a hearing board of his or her peers prior to the imposition of any disciplinary action. Article 27, §§727(d)(1) and 730(a). Section 730(a) states in pertinent part:

"If the investigation or interrogation of a law enforcement officer results in the recommendation of some action, such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure . . . before taking that action, the law enforcement agency shall give notice to the law enforcement officer that he is entitled to a hearing on the issues by a hearing board. The notice shall state the time and place of the hearing and the issues involved."

The hearing is to be conducted in much the same fashion as any other administrative hearing. The officer has an opportunity for the presentation of evidence, cross-examination, representation, and written findings.

The hearing requirement is triggered by the results of any investigation or interrogation. LEOBR does not say that only an investigation conducted by the agency in question triggers a hearing requirement. In Mayor and Comm'rs of Westernport v. Duckworth, the Court of Special Appeals wrote as follows:

"[W]e think that the LEOBR read as a whole manifests a legislative intent that every law enforcement officer covered by the Act is entitled to a hearing before dismissal for disciplinary reasons. We reach this conclusion in spite of the inartfulness and lack of precision with which the Act, in many respects, is drawn." 49 Md. App. at 242.

The court rejected the argument that the hearing requirements of LEOBR did not apply because the investigation was not done by the agency employing the officer. 49 Md. App. at 243. Regardless of who conducts the investigation, compliance with LEOBR's hearing procedure is a prerequisite to any disciplinary action. See also DiGrazia v. County Executive, 288 Md. 437 (1980).

Moreover, while the decision of the Court of Special Appeals in Prince George's County v. State Commission on Human Relations was vacated, its analysis on this point is instructive:

"We do not believe that the legislature ever intended to erect a protective shield around a police officer when the officer is confronted by an investigation conducted by a law-enforcement agency and at the same time deny that protection to the officer if the investigation is made by another type of Commission or agency. Such a result would cause the 'Law Enforcement Officers Bill of Rights' to mean little more than a verbalizing of 'rights' which are devoid of substance." 40 Md. App. at 484.

In light of §734B and the case law, we conclude that the hearing provisions of LEOBR take precedence over the hearing authority of the Ethics Commission. Nevertheless, we believe that the Ethics Law can be administered in conformity with LEOBR's hearing requirement. Article 40A, §2-105(d)(8) provides as follows:

"If the Commission decides that the respondent has violated any of the provisions of this article, the Commission may issue an order of compliance to cease and desist from the violation, may issue a reprimand, or may recommend to the appropriate authority, if provided by law, for the censure, the removal, or other appropriate disciplining of the respondent." (Emphasis added.)

In this context, "appropriate authority" would be the chief administrative officer of the State law enforcement agency involved. While not crystal clear, the Ethics Law likewise envisions the possibility that final action of a disciplinary nature may be taken not by the Ethics Commission but by the agency employing the individual. Another enforcement provision of the Ethics Law provides as follows:

"In addition to any other enforcement provisions in this article, a person who is subject to the provisions of this article and who is found by the Commission or a court to have violated its provisions, is:

(1) In the case of a public official or employee, subject to termination or other disciplinary action as may be warranted; and

(2) In the case of a public official or employee who receives a salary or other compensation is suspended from receiving payment or salary or other compensation pending full compliance with the terms of an order of the Commission or a court." §7-103.

The Ethics Law is otherwise silent as to the manner in which, and by whom, disciplinary action should be taken against a State officer or employee for a violation of any of its provisions.

In the event that an investigation by the Ethics Commission's staff counsel results in a recommendation to the Commission that a formal proceeding be undertaken, the Ethics Commission is free to transmit the entire matter to the chief administrative officer of the State law enforcement agency involved. This transmittal could include a preliminary finding on the part of the Commission that some substantive provision of the Ethics Law had been violated and that appropriate disciplinary action should be initiated. Upon receipt, the chief administrative officer of the agency could then direct that administrative charges be placed against the individual.17 Thereafter, a hearing board would be established to hear and decide the violation and make findings and a recommendation to the chief, who then must make the final decision under §731.

This construction allows effect to be given to the legislative purpose of both statutes, avoids illogical and absurd results, and at the same time preserves the procedural safeguards granted to officers by LEOBR. If the Ethics Commission believes that, with regard to substantive matters within its purview, it should have independent authority to take enforcement action against State law enforcement officers covered by LEOBR, the Commission should seek corrective legislation.

VII
Conclusion

In summary, it is our opinion that:

1. The Ethics Commission, pursuant to its statutory authority, may conduct investigations of complaints against State law enforcement officers for violation of substantive provisions of the Ethics Law. However, any interrogation of a State law enforcement officer during the course of an investigation by the Ethics Commission must be done by a law enforcement officer in accordance with LEOBR.

2. Any disciplinary action against a State law enforcement officer subject to the provisions of LEOBR for a violation of the Ethics Law must be taken (i) in accordance with the hearing and decisional provisions of LEOBR; and (ii) by the agency employing the officer, not by the Ethics Commission.

J. Joseph Curran, Jr., Attorney General
Emory A. Plitt, Jr., Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: Since the issuance of this opinion, the General Assembly has amended the Ethics Law as follows: "The provisions of [LEOBR] do not apply to the activities carried out by the State Ethics Commission under this article." Article 40A, §1-104(b). See Chapter 405 (House Bill 428), Laws of Maryland 1988.

1 Maryland was the first state to enact LEOBR statewide. Other states (Virginia, California, Florida, Illinois) have followed the Maryland model. LEOBR, based on the Maryland model, has also been implemented in many places by city or county ordinance, pursuant to collective bargaining contracts, executive orders, and other methods.

2 The State law enforcement agencies whose officers come under the umbrella of LEOBR include: the Maryland State Police, the Police Department of the University of Maryland, the State Aviation Administration Police, the Mass Transit Administration Police, the Maryland Toll Facilities Police, the Maryland Port Administration Police, the Natural Resources Police, and the Alcohol and Tobacco Tax Enforcement Unit of the Comptroller's Office.

3 See Article 27, §§728(a), 729, 729A, and 734C for LEOBR's main substantive provisions.

4 LEOBR also provides that an individual who is otherwise subject to its coverage may seek the aid of a circuit court in obtaining any right otherwise provided for under LEOBR (§734) and may appeal any decision imposing disciplinary action to the courts (§732).

5 See note 2 above.

6 For example: "Rule 6-2: An employee is prohibited from using his official position or his official identification card or badge for personal or financial benefit or as a means of obtaining privileges not otherwise available to him. Rule 11-1: A police employee shall not solicit, seek or accept any gift or gratuity, including food or drink, for himself or another, from any individual, business establishment, or merchant, where such offer of acceptance can be construed to be an effort to influence his official conduct as a Maryland State Trooper. Rule 11-2: A police employee shall not receive, seek, solicit, or share in any fee, reward, or other reimbursement for the performance of his official duties, or for his failure to perform official duties, except as directed by the Superintendent. Rule 14-0: A police employee shall not be employed in any capacity in any other business, trade, occupation, or profession while employed by the Maryland State Police, except as established by agency policy and approved by the Superintendent."

7 One of the prohibitions on secondary employment of the Maryland State Police is worthy of particular note. Subsection 3-0(d)(7) of Section XV of Chapter 4 of the State Police Administrative Manual states, in pertinent part: "Secondary employment is also prohibited in any type of outside employment which could possibly impair the independence of judgment of a State employee in the performance of his duties or employment which comes about as a direct result of or for the intention or use of the prestige of a State office for the benefit of an employer or for the benefit of another. For example, no member of the agency could accept secondary employment as an accident reconstruction expert for private attorneys because the reason they would be employed as such would relate directly to their expertise gained as a Maryland State Trooper." We understand that this example was inserted into the State Police Administrative Manual as a direct result of an advisory opinion rendered by the Ethics Commission.

8 Article 27, §728(b) begins as follows: "Whenever a law enforcement officer is under investigation or subject to interrogation by a law enforcement agency . . . ." The term "law enforcement agency" has reference to the agencies itemized in §727(b). See note 2 above.

9 However, the Court of Special Appeals also held that the firing contravened LEOBR's hearing requirements. See Part IV below.

10 In Gerwig v. Maryland State Police, Civil No. 85CG447 (Cir. Ct. for Baltimore County March 6, 1985), then Lieutenant Colonel William T. Gerwig of the Maryland State Police challenged the authority of the Attorney General of Maryland to conduct an investigation of him. The Attorney General had been requested by the Superintendent of the Maryland State Police to conduct the investigation. One of Gerwig's claims was that only another law enforcement officer or agency could investigate a police officer under LEOBR. In its opinion, the Circuit Court agreed with this contention. This decision was appealed to the Court of Special Appeals but was dismissed as moot upon the enactment of Chapter 249 of the Laws of Maryland 1985, which amended the definition of "interrogating officer" in §727H of LEOBR to include "any sworn law enforcement officer or, if requested by the Governor, the Attorney General of Maryland." While instructive and entitled to due consideration, this case did not present for decision a situation involving another agency that had been granted, by statute, investigatory powers necessary to carry out the agency's functions. Here, the Ethics Commission has been empowered to conduct investigations, as discussed in Part III A above.

11 Upon appeal to the Court of Appeals, the judgment of the Court of Special Appeals was vacated, because in the interim the County Police Department and the Human Relations Commission had reached agreement regarding the records. The Court of Appeals stated: "Obviously, this action leaves open the issues decided in the opinion of the Court of Special Appeals." 285 Md. at 207.

12 "[D]emotion, dismissal, transfer, loss of pay, reassignment or similar action which would be considered a punitive measure . . ." are the disciplinary actions within the scope of LEOBR.

13 Section 734B provides that LEOBR supersedes any other law in the event of conflict. See Part IV below. As we construe it, the Ethics Law may be administered so as to avoid conflict with LEOBR.

14 Section 728(b)(3) contemplates that the persons present would ordinarily be law enforcement officers, because it requires disclosure of the "rank" of each. But neither this paragraph nor any other provision of LEOBR prohibits the presence of persons other than law enforcement officers. LEOBR should not be construed to prohibit the presence, for example, of an Assistant State's Attorney.

15 Of course, an officer may choose to waive his or her right for compliance with the interrogation provisions of §728 by executing a written waiver under §734D.

16 Article 41, §4-201(d)(6) provides that the Police Training Commission may certify as police officers persons who have complied with the Commission's standards. After completing the appropriate probationary period, a police officer must maintain current certification. In the event of a lapse of the certificate or of a certificate being in danger of lapsing, the Commission is empowered to hold a hearing to determine the circumstances of failure to meet certification. However, the hearing must be conducted pursuant to LEOBR. Article 41, §4-201(i)(2).

17 We note that LEOBR itself envisions that conflicts of interest may be an appropriate subject of disciplinary action. Section 729 of LEOBR provides: "A law enforcement officer may not be required or requested to disclose any item of his property, income, assets, source of income, debts, or personal or domestic expenditures (including those of any member of his family or household), unless that information is necessary in investigating a possible conflict of interest with regard to the performance of his official duties, or unless such disclosure is required by State or federal law." (Emphasis added.)