J. THOMAS MANGER v. FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35, INC.
Court of Special Appeals of Maryland, Nazarian, Nov. 5, 2018,
LEOBR – An officer could be charged departmentally for use of “counter measures” to sabotage a polygraph test even though the results of the polygraph could not have been used against him in an administrative hearing.
Facts:
A Montgomery County Police Department (MCPD) officer was being investigated for “soliciting sexual activity from a cashier in a retail establishment.” As part of the investigation, MCPD ordered the officer to submit to a polygraph examination.
During the examination, the officer engaged in “counter measures” to sabotage the polygraph (Note: what exactly he did was not explained in the opinion).
The officer was subsequently charged with five charges related to the solicitation and a sixth charge for “Conduct Unbecoming” related to intentionally sabotaging the polygraph.
Prior to his hearing, the officer requested pre-hearing relief under the LEOBR from the Circuit Court for Montgomery County under the LEOBR, arguing that his LEOBR rights were being violated because “sabotaging” a polygraph should not be a charge when the results of the polygraph aren’t admissible without his permission.
The circuit court agreed with the officer and ordered that the sabotage-related charge be removed.
MCPD appealed, arguing that sabotaging a polygraph is conduct, not a “result,” and therefore the officer can be charged.
Held: The Court of Special Appeals held that the officer could be administratively charged for sabotaging a polygraph, even though the actual results of the polygraph couldn’t have been used against him in an administrative hearing. Charge to be reinstated and the case was sent back for an administrative hearing to determine what happened.
LEOBR – Denial of Rights – An officer whose LEOBR rights have been violated by an agency can request relief from the circuit court prior to an administrative hearing
LEOBR – This LEOBR right to seek review from the circuit court is “not a mechanism to review what the trial board or police chief has done but to assure that the police agency will do what the law requires in advance of the required administrative hearing.”
From the Case: “In this case, the circuit court’s ruling striking Charge #6 went beyond ensuring that the forthcoming administrative proceeding complied with the LEOBR. Officer Doe was not entitled under the LEOBR to interfere with his polygraph with impunity. Rather, the LEOBR required Officer Doe to sit for the polygraph but gave him the right to withhold his consent to its admission as evidence at his administrative hearing. That is the LEOBR right at issue, and the circuit court could have vindicated that particular right with less drastic measures, perhaps by ordering the administrative board not to admit the polygraph results.”
LEOBR – Polygraph – An officer can be ordered to take a polygraph related to an investigation. Failure to obey this order can result in an administrative charge against the officer.
LEOBR – Polygraph – The results of the ordered polygraph cannot be used in an administrative hearing unless the agency and the officer agree.
LEOBR – Polygraph – Sabotaging a polygraph test is not a “result” that can be barred under the LEOBR
From the Case: “Charge #6 alleged that Officer Doe committed conduct unbecoming an officer when he actively interfered with the polygraph test. The charge does not turn on whether Officer Doe passed or failed his polygraph. It is aimed instead at Officer Doe’s alleged attempt to thwart the internal investigation into his conduct as a law enforcement officer. It’s the conduct itself, not the result of the conduct, that lies at the heart of the charge.”