Application of the Full and Relevant Principles of Statutory Construction to the Statutes in Question

6Section 10-222 of the State APA provides:

(a) Review of fin al decision. - (1) Excep t as provide d in subsection (b) of this section, a party who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision as provided in this section.

(2) An agency, including an agency that has delegated a contested case to the Office, is entitled to judicial review of a decision as provided in this section if the agency was a party

(contin ued...) Turning to the statutes a t issue in this cas e, the legislative setting surrounding the enactment of the LEOBR and the APA compels the conclusion that the Legislature did not intend to preclude judicial review of a "not guilty" finding by the Board.

Section 10-222(a) of the APA Provides for Judicial Review

Section 10-222(a) of the A PA explicitly confers on covered State agencies the right to seek judicial review of the agency's final administrative decision where the decision was made by either an internal (i.e. the Board in the case sub judice) or external (i.e. an Administrative Law Ju dge of the Maryland O ffice of A dministrativ e Hearings) administrative tribunal, to which the agency, or, in this case, the LEOBR, delegated the authority to make a final decision in the agency's name.⁶ Before 1993, "Maryland

6(...continued)

before the agency or the Office.

We need not consider here whether a final administrative decision by the Chief of the Park Police (the "agency head" for purposes of most law enforcement officer disciplinary matters within the Com mission) in a contested c ase may there after be the s ubject of a petition for judicial review initiated by the Chief, although the language of § 10-222(a) is broad enough to make that a viable contention.

jurisprudence had traditionally taken a narrow view regarding the capacity of an administrative agency to seek judicial review of its own decisions." Comm'n on Human Relations v. Anne A rundel C ounty, 106 Md. App. 221, 236 , 664 A.2d 400, 408 (1995). Th is narrow view, referred to as the McKinney-Peco doctrine, evolved from two decis ions of this Court in Board of Zoning Appeals v. McKinney, 174 Md. 551, 199 A. 540 (1938), and Maryland Board of Pharmacy v. Peco, Inc., 234 Md. 200, 198 A.2d 273 (1964). These cases stood for the proposition that an agency was precluded from seeking appellate review of a circuit court decisio n when the circuit court overruled the agency's final administrative decision upon judicial review.

In McKinney, this Court was called upon to decide whether the Board of Zoning Appea ls was able properly to seek judicial review in an appe llate court, when a circuit court reversed and an nulled th e Boa rd's final zoning decisio n. 174 M d. at 556 , 199 A. at 542.

There, we reasoned that an administrative agency exercises quasi-judicial and judicial powers

when a djudicating cases befo re it, and has n o interests in its decisions other than to decide the cases that co me befo re it in a fair and im partial m anner. McKinney, 174 Md. at 564, 199 A. at 546. We therefore concluded that because

the Board [was] not a party to this proceeding, ha[d] no interest in it different from that which any judicial or quasi-judicial agency would have, which [was] to decide the cases coming before it fairly and impartially, [was] in no sense aggrieved by the decision of the Baltimo re City Court, and ha[d] no statutory right of appea l, it had no power to take this appeal, and the appea l must b e dismis sed.

Id.

In Peco, following the reasoning of McKinney, we held that the Maryland Board of Pharmacy was not entitled to app ellate review of a decision of the circuit court reversing the Boa rd's denial of a permit to open a pharmacy. We reasoned that "[t]he Board's fu nction in acting upon an application for permit und er th e sta tute i s qua si-ju dicia l and not a dve rsary.

It is only a party in the circuit court for the purpose of producing the record . . ., or notifying the parties 'to the proceeding before it.'" Peco, 234 Md. at 202, 198 A.2d at 274. The reasoning undergirding the McKinney-Peco doctrine was applied several times in subsequent years. See, fo r exam ple, Board of County Com m'rs v. H . Man ny Ho ltz, Inc., 60 Md. App.

133, 141 , 481 A.2d 513, 517 (1984), w here the C ourt of Sp ecial App eals held tha t:

[T]he disqualification, or lack of standing [of the agency], arises ultimately from the proposition that the agency is not a party to the administrative proceeding before it. That is why it has no cognizab le interest in the outcome of the proceeding; that is why it is not regarded as a proper pa rty in the circuit cou rt, even as a respondent/appellee; and that is why it has no authority to appeal

7In Comm'n on Human Relations, the Court of Special Appeals addressed whether the Commission on Human Relations could seek review in the Circuit Court of Anne Arundel Cou nty, when th e Comm ission's internal ap peals board dismissed the C omm issio n's complaint agai nst th e cou nty fir e dep artm ent f or em ploym ent discrimination. There, the Court of Special App eals held that it could not, because it app eared that the Com missioners themselves had not authorized the appeal. Instead, the Execu tive Director of the Commission and the Commission's general counsel unilaterally had done so. Comm'n on Human (contin ued...) from a judgme nt of the circu it court that reverses or modifie s its

administrative decision.

Although the McKinney-Peco doctrine applied primarily to an administrative agen cy's attempts to secure appellate review of a circuit court's reversal of the agency's final decision, the Court of Special A ppeals has held that the d octrine likely would have applied with equal force in instances where the agency sought circuit court reversal of its own final administrative decisio n. Comm 'n on Hu man R elations v. An ne Arun del County, 106 Md.

App. at 237-38, 664 A.2 d at 408 ("T he principle s espouse d in McKinney and Peco, although stated in the context of an agency's effort to overturn the circuit court's reversal of its own decision, would th us appea r to apply with equal force under circumstances in which an agency appears to seek a court reversal of its own final decision. In both instances, it can be said that, abse nt sta tuto ry aut hori ty, an administrative agency that has itself supplied the final decision of the agen cy is not an aggrieved party or a prope r party on appeal.").⁷

7(...continued)

Relatio ns, 106 Md. App. at 239-40, 664 A.2d at 409-10. The Court of Special Appeals concluded:

We believe that, for a petition for judicial review by the Commission to be proper under §§ 10-222 of the APA, it must be approved by the appro priate individual or group of individuals comprising the agency, with in whom is reposed the ultimate legal authority to pursue such review. Assuming, without deciding, that §§ 10-222 stands for the proposition that the Human Relations Commission can appeal from its own appeal board's decision, the authority to seek judicial review in a contested c ase rests with the nine Commissioners. Because the power to authorize judicial review rests exclusively in the

“age ncy” by statute, the Commissioners themselves must sanction any determination to adjudicate a contested employment discrimination case beyond the decision of an appeal board of the Commission.

Com m'n on Human Relations, 106 Md. App. at 241, 664 A.2d at 410. Thus, while the (contin ued...)

7(...continued)

language quoted in the main text above seemingly forbids judicial review of a decision like the one in the case sub judice, as will be described below, the McKinney-Peco doctrine, on which the quotation relied, since has been abrogated by the Legislature by the adoption of

§ 10-222(a).

Section 10-222(a) was added by the Legislature to the APA in 1993 by Chapter 59, of the Acts of 1993. In addition to "revising provisions of the Administrative procedure act relating to contested cases; [and] altering the scope of that law w ith regard to its a pplicability to certain agenc ies," the express purpose of these enactments was to alter the provisions of the APA relating to judicial review. Ch. 59, of the Acts of 1993.

The 1993 enactment was a direct result of a report and recommendation from the Commission to Revise the Administrative Procedure Act ("APA Commission"), which studied the need to revise the predecessor APA. One of the express issues the APA Commission engaged w as whether to continue to follow or overrule the McKinney-Peco doctrine prohibiting an agency from appealing from its own f inal adm inistrativ e action . With respect to state administrativ e agencie s subject to the APA, the APA Commission recommended that the General Assem bly enact § 10-222(a) in orde r to overturn the doctrine, and abrogate the principle that an administrative was not an "aggrieved party" for the purposes of judic ial review . See Report of the Commission to Revise the Adm inistrative Procedure Act: Initial Report on Subtitles 2 and 4 of the APA, 10, 55-57 (1 Sep tember 1992).

More specifically, the APA Commission recommended that "when final administrative

8Furthermore, as the employer of Officer Anderson, and as the promulgator of the "hot pursuit" policy which she was found "not guilty" of violating by the Board, the Commission had both an immediate and prospective interest in vindicating its view of the proper (contin ued...) decisions resolving issues between private parties and the government are issued by the OAH or an agency, the McKinney-Peco doctrine should not apply. Both parties should be permitte d to pursue judicial review of the decision." Report of the Commission to Review the Administrative Procedure Act: Initial Report of Subtitles 2 and 4 of the APA, 8, 334-35.

The Legislature agreed, and in Chapter 59 of the Acts of 1993 , enacted § 10-222(a ).

The General A ssembly also enacted § 10-223(b) at the same time, which overturned the specific appellate impact of the McKinney-Peco doctrine. Section 10-223(b) provides

(b) Right of Appeal. - (1) A party who is aggrieved by a final judgment of a circuit court under this subtitle may appeal to the Court of Special Appeals in the manner that law provides for appeal of civil cases.

(2) An agency that was a party in the circuit court may appeal under paragraph (1) of this subsection.

(emphasis added). Thus, under the prevailing iteration of the AP A, an age ncy is expressly entitled to seek judicial review of its final administrative decision in a contested case, provided that the agency was a party in the agency action. Md. Code (1984, 2004 Repl.

Vol.), State Gov't Art., § 10-222(a)(2). Because the Commission in the present case was the prosecutor of the charges brought against Officer Anderson, I would hold that the Commission clearly was entitled to judicial review under the State APA.⁸

8(...continued)

interpretation and application of its p olicy vís a vís the B oard's contra ry determination in Officer Anderson's case.

9Codified at Md. Code (2003), § 3-102(a) of the Public Safety Article, the LEOBR provides that "this subtitle supersedes any other law of the State, a county, or a municipal corpor ation tha t conflic ts with th is subtitle ."

Does APA § 10-222(a) Conflict with the LEOBR?

Taking into consideration the legislative context surrounding the enactment of §10-222(a) of the AP A, it is necess ary to determin e whethe r it conflicts with the provisions of the LEOBR. As the Majo rity Opinio n states, this is significant b ecause the LEOB R wou ld control if any con flict exis ted. Section 3-102(a) of the LEOBR.⁹ Thus, unless the LEOBR conflicts with § 10 -222 (a) o f the APA in so me w ay, the APA controls in the instant case and allows the Commission to seek judicial review of the Board's "not guilty" finding.

10 Ch. 722 of the Acts of 1974. The pred ecessor to § 3-108 was codified at Maryland Code (1957) Article 27, § 731, and provided:

Any decision, order or action taken as a result of the hearing shall be in writing and shall be accompanied by findings o f act.

The findings shall consist of a concise statement upon each issue in the case. A copy of the decision or order and accompanying findings and conclusions, along with written recommendations for action, shall be delivered or mailed promptly to the law enforcement officer or to his attorney or representative.

Ch. 722 at 2461 , the Acts of 1974, V ol. II.

Although the LEOBR reg ulatory scheme was adopted initially in 1974,¹⁰ Maryland Code (2003) § 3-108(a)(3) of the Public Safety Article, which states that "[a] finding of not guilty terminates the action," first saw light of day on or abo ut 28 M arch 197 7, when it was proposed by the House Judiciary Committee as an amendment to the version of S.B. 1026

11The bill file contains a “Master Copy” o f S.B. 102 6, as adopte d by the Sena te initially on 26 March 1977 and without this language, with the relevant provision as a handwritten, interlineated addition. The House Judiciary Committee’s notes on S.B. 1026 reflect the added language as Amendment No. 11. The House adopted its amended version of S.B. 1026 on 8 April 1977 and referred it back to the Senate which adopted the House-amended version on 19 April 1977. Thus, it can be said that §3-108 (a)(3) of the LEOBR was added in the relative haste of the final days o f the 197 7 ses sion of th e Ge nera l Ass emb ly.

12Md. Code (2003), § 3-109 of the Public Safety Article provides that "[a]n appeal from a decision made under § 3-108 of this subtitle shall be taken to the circuit court for the county in accord ance w ith Ma ryland R ule 7-2 02."

Maryland Rule 7-202 in turn provides, in pertinent part, that "[a] person seeking judicial review under this chapter shall file a petition for judicial review in a circuit court authorized to provide the review." The remainder of the Rule mandates the contents and procedures for filing the petition for judicial review.

referred to it by the Senate, without this language.¹¹ Nothing in that enactment, or for that matter a ny provis ion in th e LEO BR, h owev er, conf licts with § 10-2 22 (a) o f the A PA.

Section 3-109 of the Public Safety Article addre sses judicial rev iew of a " final"

administrative decision made under the LEOBR.¹² Section 3-1 08 merely addresses when the

13Section 3-108 provides

Section 3-108 . Disposition of administrative action.

(a) In general.– (1) A decision, order, or action taken as a result of a hearing u nder § 3-1 07 of this su btitle shall be in writing and accomp anied by find ings of fac t.

(2) The findings of fact shall consist of a concise statement on each issue in the case.

(3) A finding of not guilty terminates the action.

(4) If the hearing board makes a finding of guilt, the hearing bo ard shall:

(i) reconvene the hearing;

(ii) receive evidence; and

(iii) consider the law enforcement officer's past job perform ance and other releva nt informatio n as factors before making recommendations to the chief.

(5) A copy of the decision or order, findings of fac t, conclusion, and written recommendations for action shall be delivered or mailed promptly to:

(contin ued...) administrative decision actually becomes final,¹³ for purposes of triggering when an

13(...continued)

(i) the law enforcement officer or the law enforcement officer's counsel or representative of record; and

(ii) the chief.

* * * * *

(c) Final decision of hearing board. – (1) Notwithstanding any other provision of this subtitle, the decision of the hearing board as to findings of fact and any penalty is final if:

(i) a chief is an eyewitness to the incident under investigation; or

(ii) a law enforcement agen cy or t he ag ency's superior governmental authority has agreed with an exclusive collective bargain ing representative recognized or certified under ap plicable law that the decisio n is final.

(2) The decision of the hearing board then may be appealed in accordance with § 3-109 of this subtitle.

(3) Paragraph (1)(ii) of this subsection is not subject to binding arbitration.

(contin ued...)

13(...continued)

(d) Review by chief and final order. – (1) Within 30 days after receipt of the recommendations of the hearing board, the chief shall:

(i) review the findings, conclusions, and recommendation of the hear board; and

(ii) issue the final order.

(2) The final order and decision of the chief is binding and then may be appealed in accordance w ith § 3-109 of this subtitle.

(3) The recommendation of a penalty by the hearing board is not binding on the chief.

(4) The chief shall consider the law enfo rcem ent o ffic er's past job p erfo rma nce a s a fa ctor befo re im posi ng a pen alty.

(5) The chief may increase the recommended penalty of the h earin g bo ard o nly if t he ch ief p erso nally:

(i) reviews the entire record of the proceedings of the hearing board;

(ii) meets with law enforcement officer and allows the law enforcement officer to be heard on the record;

(contin ued...)

13(...continued)

(iii) discloses and provides in writing to the law enforcement officer, at least 10 days before the meeting, any oral or written communication not included in the record of the hearing board on which the decision to consider increasing the penalty is wholly or partly based; and

(iv) states on the record the substantial evidence relie d on to su ppo rt the incr ease of th e rec omm end ed p enal ty.

aggrieved party may seek judicial review under § 3-109.

The Majority Opinion essentially concludes th at because the Gene ral Assem bly repeatedly used the word "final" when discussing"guilty" findings by the Board, and did not use the word "final" when discussing a finding of "not guilty," the General Assembly did not intend for a finding of "not guilty" by the Board to be a final decision subject to judicial review in the circuit courts. Maj. slip op. at 18-19. I would hold that the Legislature's silence regarding the finality of a "not guilty" finding makes § 3-108(a)(3 ) ambiguo us, at most, rather than creating an express conflict between the judicial review provisions of the APA and the LEOBR.

As observed by the Majo rity, we previou sly have held that an agen cy order is "fina l"

and ripe fo r judicial review if it meets the f ollowing standard:

ordinarily[,] the action of an administrative agency, like the order of a court, is final it if d etermines o r conclude s the rights of the parties, or if it denies the p arties mean s of furth er prosecuting or defend ing their rights a nd interests in the subject matter in proceedings before the agency, thus leaving nothing further for the agency to do.

Com m'n on Hum an Relatio ns v. Balt. Gas & Elec. Co., 296 Md. 46, 56, 459 A.2d 205, 211 (1983). In the p resent c ase, a "not guil ty" finding by the Board is final, for contested cases purposes in the administrative ad judication p rocess, beca use "[a] fin ding of n ot guilty terminates the action" u nder § 3-1 08(a)(3). In o ther word s, it terminates the need for further administrative review, unlike an interlocutory finding of guilt by the Board, which requires subsequent review and action by the agency head, the Chief, under the remaining provisions of § 3- 108.

A reading of the plain language of § 3-108 supports this interpretation. Section 3-108 is entitled "Disposition of administrative action," and subsection (a)(3) expressly provides that a "not guilty" finding terminates the "action." The plain language of the statute makes it clear that when the Legislature referred to "action" in subsection (a)(3), it intended to refer to the administrative action itself, rather than the entire proceeding extending through judicial review or appe al. At that p oint, the action before the agency adm inistrative tribun al is concluded, and there is nothing left to do. The Board's action is final in such an instance.

Our case law bolsters the interpretation that a finding of "not guilty" is but a final administrative order of the Board in a contested case. The Majority relies on Miner v.

Novotny, 304 M d. 164, 173 -74, 498 A .2d 269, 27 3 (1985), w here we s aid that

[i]f the board finds the officer innocent of the charge, that ends the proceeding. If it finds him guilty, it then makes a

[i]f the board finds the officer innocent of the charge, that ends the proceeding. If it finds him guilty, it then makes a