The Law Enforcement Officers' Bill of Rights ("LEOBR") affords certain protections to officers who find themselves the subject of administrative disciplinary proceedings. While the language of the statute is clear as pertains to what rights an officer retains throughout the disciplinary process, it is entirely unclear with respect to when those rights are triggered. Specifically, the statute states that the LEOBR is implicated in any situation where an officer could face disciplinary action-a simple enough proposition-yet a recent unreported opinion by the Maryland Court of Special Appeals significantly complicates the application of the black letter law.
The issue presented for review in the case was whether an unofficial communication between a subordinate and supervisors required LEOBR safeguards. Bear in mind that the facts of the case indicate that the supervisors involved were aware of the respondent officer's commission of at least one violation of departmental policy, and were highly suspicious that additional transgressions had occurred. Despite these facts, the Court determined that no interrogation had occurred and, in support of this position, arrived at three distinct findings: first, the determination of whether a mere "inquiry" is an "interrogation" for purposes of LEOBR is fact-specific; second, that LEOBR is not implicated until a "disciplinary-type complaint" is filed with a law enforcement agency; and third, it is incumbent upon the officer to assert their LEOBR rights at the time of the communication at issue.
Of concern to those of us in the law enforcement field is that the Court of Special Appeals has essentially created grey areas wherein agencies can operate outside the protections offered by LEOBR. In other words, preventing an officer from having counsel present during an interrogation may be as simple as semantics: if the agency calls the interrogation an "inquiry," "meeting," or "conversation," it would appear that the lower appellate court would support them.
Is there a lesson to be learned in all of this? From a legal perspective, the answer is probably not. Those of us that practice in this very particularized subset of administrative law are waiting for a clear definition of terms such as "inquiry", "interrogation", and "investigation." Even if those phrases are never specifically spelled out under the law, I suspect most of us would settle for a bright-line rule that clearly establishes when LEOBR is triggered. On the other hand, the opinion offers us an opportunity to improve our standard practices when facing departmental investigation. Moving forward, any officer who finds themselves facing questioning related to any subject matter that could lead to discipline should remain silent until an order is issued by a superior officer and, subsequently, document in writing that they are asserting all of the rights afforded by LEOBR, including the right to counsel. Likely, the investigating officer will continue with the questioning-do not refuse to comply at this point as you have already done what is necessary to protect yourself. Remember, the key is preservation, and until we obtain a ruling that helps us understand where simple conversations end and investigations begin, it's the best thing we have going.