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McClellan v. Dep't of Public Safety and Correctional Services9/19/2005
Hollander, Eyler, Deborah S., Alpert, Paul E. (Ret'd, Specially Assigned), JJ.
In a final administrative proceeding, Stanley McClellan, the appellant, was terminated from his employment as a Correctional Officer II with the Division of Pretrial Detention and Services ("Division"), which is part of the Department of Public Safety and Correctional Services ("Department"). He pursued an action for judicial review in the Circuit Court for Baltimore City. The Department appeared as the respondent. The circuit court affirmed the termination decision.
On appeal, the appellant poses three questions for review, which we have rephrased slightly:
I. Did the Administrative Law Judge ("ALJ") err in finding that the Department complied with the 30 day time limit for imposing discipline, under Md. Code (1993, 1997 Repl. Vol.), section 11-106(b) of the State Personnel and Pensions Article ("SPP")?
II. Did the ALJ err in finding that the appellant's relationship with a former inmate outside the institution was grounds for discipline?
III. Assuming contact with a former inmate is not a third category infraction, did the ALJ err in upholding the sanction of termination for the remaining second category infractions?
For the following reasons, we shall vacate the judgment of the circuit court and remand the matter for administrative proceedings not inconsistent with this opinion.
FACTS AND PROCEEDINGS
Events of November 28-29, 2001
At all relevant times, the appellant was employed by the Division as a Correctional Officer II, at the Baltimore City Detention Center ("BCDC").
The incident central to this case happened when the appellant was off-duty. On November 28, 2001, at about 8:00 p.m., the appellant approached a security guard at Mondawmin Mall in West Baltimore and reported that someone had fired shots at him. He told the security guard he had been driving nearby and stopped at Frederick Douglass High School, across the street from the mall, to urinate. As he was walking back to his car, in the school parking lot, he heard gunshots. He ran across Gwynns Falls Parkway to the mall, and immediately sought help. The appellant did not say anything to the security guard about anyone else.
The security guard called the Baltimore City Police Department ("BCPD"), and officers arrived. The appellant told the officers he had stopped at the high school to urinate and, as he was returning to his car, heard shots. He said he had not seen or spoken to anyone before the shooting, and did not see the shooter.
The investigating officers quickly learned that, at approximately the same time and the same location as the shooting reported by the appellant, a former BCDC inmate named Solothal Thomas had been shot and wounded. For five years, while incarcerated at the BCDC, Thomas had worked on a paint crew that the appellant supervised.
The police officers interviewed Thomas at the scene. Thomas told them the appellant had been present with him at the school parking lot when the shooting happened. According to Thomas, a man wearing a gray "hoodie" approached the two of them and started shooting, striking him (Thomas) in the back.
That same night, as part of their investigation, the BCPD officers performed a gunshot residue test on the appellant's hands. The materials gathered were sent to the BCPD laboratory for analysis.
Events from November 30, 2001, to March 14, 2002
On December 3, 2001, the BCPD investigating officers contacted the Division's Bureau of Special Operations ("Bureau") about their November 28 encounter with the a
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