Maryland Bill Of Rights Does Not Apply To Some Cases

Francis Schmidt worked for the Town of Cheverly, Maryland Police Department. On January 25, 2015, he was terminated by the Department. Among other reasons, Schmidt was terminated for taking leave in excess of the amount available to him.

Schmidt sued the Town, alleging that the failure to grant him a hearing in which he could challenge his termination was a violation of Maryland’s Law Enforcement Officers Bill of Rights (LEOBR). The Town responded with the argument that the Bill of Rights did not apply to all involuntary terminations.

An appeals court agreed with the Town, and upheld the termination. The Court held that “the protections of LEOBR are triggered only when there is a threshold investigation or interrogation resulting in a recommendation of punitive action. We have defined an investigation as a detailed examination; a searching inquiry; to observe or study closely. The intended procedural protections of the LEOBR apply only when an officer is investigated and/or interrogated as a result of a disciplinary-type complaint lodged against the officer.

“Officer Schmidt is not entitled to the procedural protections of the LEOBR because he was not under an investigation by the Department. His termination falls under the authority of the Department Chief’s ability to regulate the competent operations and management of the Department because it was based on administrative and performance reasons. Specifically, Officer Schmidt took unauthorized leave, failed to show up to work on days he was scheduled, and routinely exhibited substandard policing skills after his reinstatement.

“In our prior cases, we have held that the LEOBR is not triggered when leave usage is evaluated because tracking of a police officer’s use of sick leave was not an investigation triggering protections afforded to the police officer by the LEOBR. In one case, we noted that ‘examination of sick leave records and even comparing them with another employee’s is not an investigation as that word is normally and ordinarily used.’

“Officer Schmidt was also properly terminated because of his performance. Despite being a seasoned officer having over a decade of experience, Officer Schmidt exhibited significantly inadequate performances after being reinstated. To facilitate his re-entry into active uniform patrol activities from over a year of no duty and/or administrative, desk-type functions, Officer Schmidt was placed with a series of FTOs who were responsible for assessing and addressing his skills before he was able to perform his work on his own. The FTOs each noted numerous deficiencies in Officer Schmidt’s performance and documented these issues in daily evaluations as well as in-depth assessments. The FTOs noted a pattern of poor performance under stressful situations, poor officer safety skills, and a measureable lack of self-motivation and self-initiated action relative to proactive patrol, traffic enforcement, police vehicle operations, and the investigation of suspicious circumstances, persons, and/or vehicles.

“Upon his return, the Department placed Officer Schmidt on a Performance Improvement Plan. The plan detailed Officer Schmidt’s weak areas, provided a system for evaluation, including strength and weaknesses, and explicitly stated, ‘If you do not receive a Proficient rating in each category of the Performance Appraisal for Police Officer after at least 30 calendar days of additional training and appraisal by the supervisors listed in this report, you will be terminated.’

“Officer Schmidt now maintains that his individualized PIP constitutes an investigation that resulted in punitive action taken against him that entitled him to an administrative hearing board. We disagree. We have held that an officer whose termination was based on unsatisfactory work performance was not entitled to the procedural safeguards of the LEOBR. The procedural protections afforded by the LEOBR, therefore, are not applicable to Officer Schmidt. His termination was a result of his poor performance upon reinstatement and his taking of unauthorized leave.”

Schmidt v. Town of Cheverly Police Department, 2016 WL 3185228 (Md. App. 2016).