JOHN R. LEOPOLD v. STATE OF MARYLAND
Court of Special Appeals, Wright, Filed March 26, 2014,
Condition of Probation- Condition requiring that the defendant not run for public office was illegal in light of separation of powers.
This opinion, affirming the conviction of former AA county executive John Leopold, is hardly the height of jurisprudential clarity; it does however take a look at an uncommon criminal charge: misconduct in office.
Leopold challenged his conviction on “vagueness” grounds and also alleged an illegal sentence
Held:
– Misconduct in office is not unconstitutionally broad
– The condition of probation requiring that the defendant not run for public office was illegal
The innovation in this case is the Court’s expansion of “abuse of authority” to include asking if an employee minds changing a catheter leg-bag where there is no direct or implied threat or direction.
Skip to the bottom for more on that.
Notes from the case on Misconduct in Office:
– Misconduct in office is a common law misdemeanor defined as “corrupt behavior by a public officer in the exercise of the duties of his office or while acting under color of his office.”
– The “corrupt behavior” comes in 3 varieties: Malfeasance (wrongful act), Misfeasance (wrongful manner), and Nonfeasance (not performing required duty)
– Included in misconduct in office is the category of “oppressive and willful abuse of authority” (to be distinguished from mere error of judgment)
– “Abuse of authority” includes requiring an employee to perform “offensive and unnecessary tasks wholly beyond their job descriptions”
Notes from the case on Illegal Terms of Probation:
– An illegal condition of probation is an illegal sentence, and can therefore be challenged at any time
– Separation of powers requires that the judiciary not interfere with legislative or executive functions/designations-of-authority
– Separation of powers precludes trial courts from interfering where the Legislature left the question of eligibility for elected office to the County Council and General Assembly.
There were three key sets of facts leading to Leopold’s conviction: 1) using executive-protection police-officers to campaign (post and take down signs, collect and deposit campaign contributions, etc), 2) having these officers change his catheter-related urine-collection leg-bag, and 3) having his assistant change his leg-bag.
While directing police to put up campaign signs fits neatly into the “misconduct in office” charge and it appears from the facts set out that Leopold directed his protection detail to change his urine bag, the analysis conducted by the court regarding Leopold’s assistant leaves several questions open.
There’s no question that Leopold had surgery and a catheter was inserted with a leg-bag that collected urine. Leopold was advised that he would not be able to bend to empty the bag himself. After he returned to work, “Leopold called his assistant into his office and told her that he had a catheter bag that he would not be able to empty and that he would ‘require’ her assistance. When Leopold asked if she had a problem with it, Medlin said no because she ‘was afraid’ to say otherwise.”
The trial court simplistically concluded that because changing a bag of urine is distasteful and because Medlin was old and at-will that “his conduct appears predatory and cruel.”
While Leopold’s conduct may have BEEN predatory and cruel, there are other factors involved than a public official and his bag of urine. To hold otherwise would mean that every injured/disabled/ill public official who asks an at-will employee to help them with their injury/disability/illness is liable for misconduct in office (there will always be a power imbalance and an at-will employee will almost always want to ensure their future employment).
The failure of the trial court (and the Court of Special Appeals) to distinguish Leopold’s (apparently) abusive behavior and the behavior of a reasonable employer in need of assistance suggests that it is the assistance and not the abuse that is in issue.
Moreover, both the trial and appellate courts took issue with Leopold for not using the “tru-flo catheter plug” he was given two months after surgery (according to the website, it “eliminates the need for a leg bag” and “allows patients to drain their bladders in a much more normal way”). Neither court appears to address the intermediate period (would it have been misconduct in office if he didn’t have an option?) or explain why Leopold was required to use the tru-flo valve instead of the leg bag (using the plug would have required Leopold to empty it every 2 hours whereas his assistant was only emptying the leg-bag 2-3 times a day).