           UNREPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND



              No. 0622

       September Term, 2013




   TOWANDA KEARNEY ET AL.

                  v.

    WENDELL FRANCE ET AL.




   Krauser, C.J.,
   Kehoe,
   Kenney, James. A., III
        (Retired, Specially Assigned),

               JJ.


        Opinion by Kenney, J.


       Filed: March 2, 2015
       This case arises under the Correctional Officer’s Bill of Rights (“COBR”), which

took effect on October 1, 2010. See Maryland Code (1999, 2008 Repl Vol., 2014 Cum

Supp.) § 10-901 et seq. of the Correctional Services Article (“CS”); 2010 Maryland Laws

Ch. 194 (S.B. 887). Appellant, Towanda Kearney, appeals from a decision of the Circuit

Court for Baltimore City denying her Motion to Revise its order of March 20, 2013,

permitting her to exercise rights afforded to her under the COBR. In the Motion to Revise,

she requested that the order expressly award back pay and benefits for the period during

which she was separated from her employment and litigating her rights under the COBR.

In this timely appeal, she presents one question, which we have rephrased slightly:

                     Did the circuit court abuse its discretion or err as a
              matter of law when it refused to order the Department of Public
              Safety and Correctional Services (“DPSCS” or “the
              Department”) to pay her back pay and benefits after it
              terminated her employment in violation of her rights under
              COBR?

                         The Correctional Officer’s Bill of Rights

       Before October 1, 2010, the disciplinary procedure for state correctional officers

was governed under Title II of the State Personnel and Pensions Article (“SPP”), along

with other state employees. The COBR’s roots are in the Law Enforcement Bill of Rights

(“LEBOR”), which applies to certain police officers of state and local agencies, but which

did not extend to any local or state correctional officers. See House Committee on

Appropriations Floor Report, S.B. 887 (2010).

       In 2008, the General Assembly passed the Cecil County Correctional Officer’s Bill

of Rights applicable to correctional officers in that county’s detention center. See Maryland
Laws Ch. 689 (H.B. 1245) (2008). As stated in the Floor Report for House Bill 1245, its

provisions “are similar to the provisions of the Law Enforcement Officer’s Bill of Rights.”

The Floor Report for Senate Bill 887 of the 2010 General Assembly noted the Cecil County

legislation under the then current law section of the report. Although provisions of the

LEBOR and COBR may differ in certain aspects, we are persuaded that disciplinary cases

decided under the LEBOR have instructive value on the question before us in this case.

Except under limited circumstances not applicable in this case, both statutes preclude,

pending the appeal process provided for in the respective statutes, the implementation of a

disciplinary action against a covered officer, of which termination with loss of salary and

benefit is one.

                           Factual and Procedural Background

       On April 4, 2012, appellant was serving as a Correctional Officer III (Sergeant) at

the Baltimore City Detention Center (“BCDC”), which is a unit of the Maryland State

Department of Public Safety. She was the “Officer in Charge” at the receiving area post

where detainees in the facility are prepared for transport to different locations. During her

shift, a detainee was found unaccompanied in an unauthorized area of the BCDC. It

appeared that the detainee had passed through the receiving area and several other

presumably secured locations within the facility. This resulted in appellant and other

correctional officers being investigated for failing to monitor and account for the detainee

and allowing him authorized access to secure locations.

       On June 18, 2012, Commissioner France, the appointing authority for BCDC, issued

a Notice of Disciplinary Charges (the “Notice”), which gave appellant 15 days to appeal,

                                             2
and if she did not, advised that her failure to appeal “would constitute an election by [her]

to accept the imposition of discipline.” The COBR limits the time to bring disciplinary

charges against an officer to 90 days (in this case until July 3, 2012). CS     § 10-907(a).

Appellant was on leave from June 12, 2012, until July 6, 2012. Efforts to provide her with

the Notice, including telephone, certified mail, and attempted hand-delivery of the Notice,

failed.1 She returned to work on July 6, 2012. According to appellees, an effort was made

to provide her with a copy of the Notice and related paperwork when she returned on July

6, but that she refused to accept it. No further attempts were made to provide her with the

Notice. Appellant denied receiving the Notice and refusing to accept and sign for it. She

worked her normal shifts after she returned until August 28, 2012. When she did file an

appeal, she was issued a final order of termination on August 28, 2012.

       Appellant filed a Petition to Show Cause on September 27, 2012, along with a

separate Petition for Judicial Review under CS § 10-906(a). The Petition to Show Cause

alleged violations of the COBR and, more particularly, that neither she nor counsel or “the

agent for the employee organization selected by the correctional officer” had been provided

the charges and notice required under CS § 10-908(b) and that as a result she had been

denied her “COBR rights to notice and to a hearing before a hearing board.”

       In their response to the Petition, the Department and Commissioner France again

set forth the attempts to provide appellant with notice beginning on June 26, 2012, with the

certified letter to two different home addresses on file with the Department along with


1
 Certified letters were sent to two different addresses on file with the Department. Neither
was received by appellant and both were returned as “Not Claimed by Addressee.”
                                             3
personal service attempts at those addresses, and, when there was no response, leaving a

copy of the Notice attached to the door of each address. Because appellant had not

identified legal counsel or “formally select[ed] an employee organization for service,” they

contended that appellant “was not entitled to a hearing before a hearing board because she

did not file an appeal of the Notice within 15 days after receiving the charges as required

by CS § 10-908(c).”2

         A hearing in the circuit court was held on February 6, 2013, and an Order dated

March 20, 2013, was issued by the court. The court found: (1) that the appellant was

entitled to procedural due process; (2) that the testimony that appellant had refused to sign

and acknowledge receipt of the charges upon her return to work was not based on personal

knowledge of the Warden or supported by any documentary evidence; and (3) that “posting

the Statement of Charges at [appellant’s] home under these circumstances does not rise to

the level of notice contemplated under CS § 10-908.”3 Therefore, appellant was “entitled


2
  A review of the Waiver of COBR form indicates that the appellant only waived
“Representation during interrogation by legal counsel, agent of exclusive representative or
other employee organization of correctional officer’s choice, [CS § 10-905(i)].”
3
    CS § 10-908 provides:

(a) If the appointing authority brings charges recommending discipline against a
correctional officer, the charges shall contain:
(1) a statement of facts and offenses alleged; and
(2) notice of the correctional officer's appeal rights.
(b) The appointing authority shall provide the charges and notice required under subsection
(a)(2) of this section to the correctional officer and to the correctional officer's legal counsel
or the agent of the employee organization selected by the correctional officer under § 10-
907 of this subtitle.


                                                4
to exercise her rights under CS § 10-908(c)” and the matter was “remanded to the

[Department] for further proceedings consistent with [the] order.”

       The circuit court’s order triggered a series of email correspondence, beginning on

March 27, 2013, between counsel for the parties regarding both reinstatement and back

pay. The Department reinstated appellant on April 12, 2013, but refused her request for

back pay. On April 15, 2013, appellant filed a Motion for Revision of the March 20, 2013

Order, requesting an order expressly awarding back pay.

       Appellees responded to the Motion for Revision on April 30, arguing: (1) that

appellant had been reinstated and afforded her right to appeal the charges against her; (2)

that the court had not ordered back pay and that back pay is not “permitted by law or

warranted under the circumstances of this case”; (3) that back pay was not requested and

the issue of entitlement of back pay was not adjudicated; and (4) that back pay would be a

“windfall” because appellant had received unemployment benefits during the months she

was not employed by the Department.




(c) On receiving charges which recommend termination, demotion, or suspension without
pay of 10 days or greater, a correctional officer may:
(1) file an appeal under § 11-109 of the State Personnel and Pensions Article; or
(2) within 15 days after receiving the charges, file a request for a hearing by a hearing
board.

(Emphasis added).




                                            5
       On May 15, 2013, the court denied the Motion for Revision because the “nature of

the relief requested” in appellant’s petition for Judicial Review and at the February 6, 2013

hearing, but stated that the denial was “made without prejudice to the [appellant’s] ability

to seek appropriate relief following the resolution of the administrative hearing.”4

                                         Discussion

       We begin by addressing appellees’ assertion that the appeal should be dismissed

because the order appealed from is not a final order under Maryland Code (1974, 2013

Repl. Vol.), Courts and Judicial Proceedings Article § 12-301. According to appellees, the

“denial of the Motion for Revision did not conclude this action or finally settle [appellant’s]

rights to back pay and benefits,” because “the order clearly stated that it was without

prejudice to [appellant’s] ability to seek appropriate relief following resolution of the

administrative hearing.”

       In arguing that denying appellant’s Motion for Revision was not a final judgment

for appeal purposes because it “neither determined nor concluded the rights involved nor

denied her the opportunity to further prosecute her claimed right to full back pay and

benefits,” appellees cite Stuples v. Baltimore City Police Department, 119 Md. App. 221,

240-47 (1998). Stuples, a police officer was charged with sexual harassment of two female

police officers. A hearing board determined that Stuples was guilty of sexual harassment


4
 There was no resolution as to the administrative hearing because, while appellant’s appeal
was pending before the Office of Administrative Hearings, the matter was resolved by a
Disciplinary Action Settlement Agreement on August 19, 2013. The Department, on
behalf of Mr. France, agreed to rescind the proposed termination and appellant agreed to
waive her right to appeal under the COBR. The Settlement Agreement did not address
back pay and benefits.
                                              6
and its recommendation that his employment be terminated was adopted by the Police

Commissioner. On a petition for judicial review of the hearing board’s determination, the

circuit court found that the record supported a finding of sexual harassment and that

Stuples’s actions justified termination, but that Stuples had not been “properly charged.”

Stuples, 119 Md. App. At 227. The inappropriate conduct had occurred “in the presence

of two female police officers,” but it “had not, as charged, been specifically directed at

them.” Id. at 226 (emphasis in original). The circuit court remanded the case to the hearing

board “for further proceedings” to see “if in fact the decision would be sustained whether

this charge [the charge as to the two individuals] is part of the case or not. And two, [if it]

would be an alternative procedure to charge him properly, and take testimony on that

issue.” Id. at 228. Following the remand, Stuples filed a Motion to Exercise Revisory

Power in which he raised the issue of his payroll status and asked to be paid as of the circuit

court remand “pending further action by the Department.” Id. at 229. The motion was

denied. Id.

       The Stuples Court concluded that the denial of the Motion to Exercise Revisory

Power was not a final judgment because Stuples’s right to back pay had not been foreclosed

by the remand in that the “question of his entitlement to back pay [could] be fully

considered, litigated, and decided at that time.” Id. at 247. That conclusion rested on the

presumption that the matter of back pay would first be considered in further administrative

proceedings which, in turn, could be subject to further judicial review. We believe it is

significant for the purposes of a final judgment analysis that Stuples arises in the context

of a petition for judicial review following a termination hearing. Moreover, the evidence

                                              7
was sufficient to sustain the recommended termination, and the remand related to the

appropriateness of the charges in light of the evidence presented. There was no question

of notice and there had been no denial of the exercise of Stuple’s LEBOR right to the

prescribed administrative process of a hearing board prior to the imposition of discipline.

       Appellant responds that the order in this case ended “the circuit court’s jurisdiction

over the show cause proceeding” and that the “without prejudice” provision of the order is

“without legal basis.” She argues that “there is no statutory means, or case law precedent,

for a circuit court to return or resume jurisdiction in such a manner.” That is because, in

regard to a correctional officer’s resort to the courts, the COBR “‘establish[es] exclusive

procedures for the investigation and discipline of a correctional officer for alleged

misconduct,’” citing CS § 10-902. The first is CS § 10-906 which provides for the filing

of a show cause why rights under the COBR “should not be granted . . . at any time before

the beginning of a hearing by the hearing board,” which is in the nature of an equitable

proceeding. The second opportunity is judicial review, which is available after the hearing

and the final administrative order, and which is a different type of action and provides for

a different and more deferential review. CS       § 10-911(a); Maryland Rule 7-202.

       Under the circumstances of this case, we are persuaded that the show cause

proceeding under CS § 10-906 is the appropriate and exclusive procedure for enforcing

prehearing rights and the denial of the timely filed Motion for Revision was a final

appealable judgment. See generally, McDaniel v. Barnowski, 419 Md. App. 560, 573

(2011) (“a motion to revise judgment [is] ‘clearly subject to appellate review.’” (quoting



                                              8
Southern Mgt. Corp. v. Taha, 378 Md. 461, 495 (2003)). Accordingly, we will not dismiss

the appeal.

                               Error or Abuse of Discretion

       In appellant’s view, after she was terminated without the benefits of the COBR, it

was necessary that she be reinstated to her position along with back pay and other lost

benefits of her employment in order to vindicate her statutory rights and to make her whole.

Otherwise, she, rather than the Department would, “bear the cost of that violation of

rights.” She relies heavily on the case of Cave v. Elliott, 190 Md. App. 65 (2010).

       In Cave, Elliott was a Deputy Sheriff who, when terminated by the sheriff, Cave,

filed a Complaint for Show Cause Order Pursuant to the Law Enforcement Officers’ Bill

of Rights (“LEOBR”). Md. Code (2003, 2011 Repl. Vol.), §§ 3-101, et seq. of the Public

Safety Article (“PS”). The circuit court determined that Elliot was entitled to the due

process provisions of the LEOBR, and ordered his reinstatement to his former position,

along with back pay and benefits. Cave filed a Motion for Reconsideration in which he

argued that reinstatement was not a right guaranteed by the LEOBR. The circuit court

denied the motion and Cave appealed, arguing that the order for reinstatement, back pay,

and benefits was outside the circuit court’s authority.

       In affirming the denial of Cave’s Motion for Reconsideration, this Court stated

“that, when the circuit court finds that an officer’s right under the LEOBR has been denied,

[LEOBR] § 3-105 authorizes the court to grant or vindicate that right,” Id. at 91. We

explained further:



                                              9
                      To have ordered a hearing before a hearing board
              without reinstating Elliott as a Deputy Sheriff would have been
              a meaningless act, because the hearing was required by
              [LEOBR §] 3-105 to have been held before his termination. To
              have ordered such hearing with reinstatement, but without back
              pay and benefits, also would not have granted or vindicated
              Elliott’s right, because he was entitled to a hearing before any
              loss of salary or benefits. Stated otherwise, the only way for
              Elliott to have been granted the right that he was denied was
              to place him in the same position as he would have been prior
              to his termination, namely, a Deputy Sheriff having received
              full pay and benefits. Therefore, we hold that [LEOBR §] 3-
              105 authorizes the circuit court to order reinstatement with all
              back pay and benefits where a law enforcement officer is
              denied the right under [LEOBR §] 3-107(a)(1) to a hearing
              before a hearing board prior to the taking of disciplinary action
              by the law enforcement agency.

Id. at 92 (some emphasis added).

       Appellees contend that the denial of the Motion for Revision in this case was not

“so egregiously wrong . . . as to constitute a clear abuse of discretion,” again citing Stuples,

119 Md. App. at 232 (citing Tiller v. Elfinbien, 205 Md. 14, 18 (1954)). They point out

that appellant did not expressly request back pay and benefits relief in her show cause

petition or during the hearing and that her failure to do so “deprived the circuit court and

the Department, of the ability to adjudicate her entitlement to such relief under the specific

facts of this case.” Moreover, and “significantly,” she received unemployment benefits

and, thus, an order that she receive “full back pay would represent a windfall.”5


5
  Appellees do not specify those “specific facts” that would preclude her entitlement to
back pay, but we presume that they are referring to their position that their inability to
provide her with the charges in a timely manner was the result of her actions. In effect,
appellees are seeking to review the circuit court’s decision in regard to the failure of its


                                              10
       Appellees also contend that there was no legal error because the show cause

provision of the COBR does not “authorize a court to award back pay” but rather limits the

available remedies to enforcement of the rights guaranteed under the COBR.” They argue

that the statute “only authorizes the payment of back pay . . . when a correctional officer

charged with a felony is suspended without pay and later acquitted of the criminal charges,”

referring to CS 10-913(c)(3).6     This means, they assert, that “the State’s sovereign

immunity prohibits a court from ordering back pay against [the Department] because it is

a State agency.

       Appellant responds that COBR “establish[es] exclusive procedures for the

investigation and discipline of a correctional officer for alleged misconduct,” quoting CS

§ 10-902, and that the show cause proceeding is to enforce rights under the COBR and “to




attempts at service and to comply with the COBR and/or to conclude that appellant was
attempting to avoid or delay the service of notice. The issue of their failure to provide her
with the charges was resolved in appellant’s favor in the show cause proceeding, and no
appeal was taken from that decision. Those issues are not before us in this appeal and we
express no opinion as to them.
6
  Correctional Services § 10-913 relates generally to emergency suspensions. Subsection
(b) provides for suspensions of correctional powers of the officer with pay and
reassignment to restricted duty pending a determination of a court of a criminal violation
or a prompt hearing board of “a correctional facility violation.” Subsection (c) provides for
suspension “without pay’ if the officer is charged with a felony. If the officer is not
convicted of the felony (and remains a correctional officer) the suspension is to be
rescinded and the officer is entitled to have “any lost time, compensation, status, and
benefits restored.” Read in context with the statute as a whole, rather than authorizing the
payment of back pay in one particular instance, the provision recognizes the general
entitlement to back pay until termination with notice and a hearing under the COBR that
can be lost only when the officer is charged and convicted of a felony. In other words,
there can be no loss of position, back pay, or benefits except under certain circumstances
provided in subsection (c).
                                             11
cure any breach of those rights.” That is different, she contends, from a judicial review

procedure which is limited to ensuring “that the administrative decision is based on

substantial evidence and is not premised on an error of law or illegal procedure and is not

arbitrary and capricious.”    Therefore, the show cause court’s authority includes the

equitable powers necessary to grant or vindicate the right denied, because, otherwise, and

citing Cave at 94, it would be “inconsistent with the concept of equity jurisdiction to limit

the court’s authority in ruling on a show cause order such that the relief awarded will not

make the officer whole.”

       As to the failure to expressly request back pay and benefits, she argues that her

petition sought “[s]uch other and further relief as [her] causes require.” And, because the

Department’s termination in violation of her statutory rights voided the termination, both

her reinstatement and the payment of back pay was required as a matter of law until the

statutory breach has been cured. Therefore, an express request for reinstatement, back pay,

and benefits was not necessary because the relief “required and due” under these

circumstances was established by statute. In support of her position that an express request

order was not necessary, appellant observes that the Department reinstated her as the law

required without an express order to do so.

       She further argues that sovereign immunity is no bar to an order of back pay in this

situation because sovereign immunity serves to “prohibit suits against the State or its

entities absent its consent,” citing Magnetti v. University of Maryland, 402 Md. 548, 557




                                              12
(2007). But, here, the General Assembly has, in COBR expressly permitted a correctional

officer to sue to enforce their COBR rights in CS § 10-810-906.7

       We are persuaded that the show cause court had the authority to order back pay and

benefits under CS 10-906 when it determined that appellant had been denied a right granted

by the COBR. In regard to appellee’s claim of sovereign immunity, we agree with

appellant. Not only is the action authorized by statute, presumably her salary which is the

basis for the back pay to which the employee would be entitled has been budgeted and

funds are available to pay it. In sum, the award of back pay is not barred by sovereign

immunity. Nor do we believe unemployment benefits renewed by appellant presents a

“windfall” to her because under Labor and Employment §8-809(a)(2) benefits may be

recovered if a claimant “received or retroactively was awarded wages.” Moreover, the

award of unemployment benefits does not serve as a shield for appellees in failing to

comply with the notice requirements of the COBR. Thus, the question that is before us is

whether the failure to expressly request back pay as part of the relief sought in the show

case proceeding means that issue has not been preserved for appellate review. See

Maryland Rule 8-131(a).



7
  Appellees cite Frosburg v. State Department of Personnel, 37 Md. App. 18, 31-32 (1977),
for the proposition that, in the absence of “a specific waiver and a showing there were funds
available from which a monetary judgment could be paid, a suit for back pay is an attempt
to recover appropriated funds from the State Treasury.” Frosburg involves a
“reclassification case” in which it was determined that the employees should have been
reclassified. The Court, in stating that sovereign immunity precluded a payment of back
pay for positions to which the employees had not been appointed, distinguished from cases
involving an “improper discharge, suspension or demotion” under the Maryland Merit
System and for which, as here, a hearing was expressly provided.
                                             13
       Cave v. Elliott, 190 Md. 65 (2010), provides guidance to that query. Cave arose

under the Law Enforcement Officer’s Bill of Rights (“LEOBR”). Appellees, referring to

the LEOBR as “analogous” to COBR, seek to distinguish Cave on the basis that the award

of back pay and benefits was raised in the show cause proceeding, which permitted the

court to “exercise its discretion” to award them. In appellees’ view, Cave stands for the

proposition that the show cause “may” provide such relief. That, in our view, is too narrow

of a reading of Cave. The issue that was not preserved in Cave was not the officer’s right

to back pay and benefits, but rather, the Sheriff’s failure to contest such an award in his

Response to Order to Show Cause when back pay and benefits had been actively sought in

the petition for the Order to Show Cause. Back pay and benefits was not discussed by

either of the parties or by the trial court during the show cause hearing.

       The Cave Court found that the officer

              had the right under . . . of the LEOBR to a hearing before a
              hearing board prior to the Sheriff’s Office taking any
              disciplinary action resulting from an investigation or
              interrogation. To afford [the officer] the right he was denied,
              the court reinstated him to his former position as a Deputy
              Sheriff, including the payment of all back pay and benefits. To
              do anything less, in our view, would not have granted or
              vindicated the right that [the officer] was denied.

Id. at 90-92 (emphasis added). In other words, both the LEOBR and the show cause court’s

“constitutionally-based and statutorily recognized, equitable jurisdiction to provide

complete relief” provided the authority to award back pay and benefits and to do so was

“the only way for [the officer] to have been granted the right that he was denied.” Id. at

92. (Emphasis added).


                                             14
       Here, appellant requested in her show cause proceeding that appellees “be directed

to appear and show cause why: (1) she should not receive “the rights and protections of the

COBR[;]” (2) the charges should not be dismissed for the COBR violation; (3) should not

be offered a hearing before a hearing board; and (4) “[s]uch other and further relief” as her

case required. Appellees opposed her requested relief based on the failed attempts to

provide her with notice and the resulting failure on her part to request a hearing in a timely

manner.

       Rejecting that defense, the show cause court concluded instead that appellant was

entitled to exercise her rights under CS § 10-908(c) and remanded for “further proceedings

consistent” with that determination. As in Cave, the result of that determination was to

return appellant to the starting line of the COBR disciplinary process in her status as a

correctional officer with full back pay and benefits until there was a hearing board decision.

That could only be done through reinstatement with back pay, but, appellees provided only

reinstatement. Reinstatement without back pay and benefits was a denial of her rights

under the COBR and most especially her right to a hearing before there was any

disciplinary action implemented by the Department. Back pay and benefits flow from

reinstatement after an improper termination because there can be no change in her

employment status until her rights under the COBR were exercised.

       The court denied the motion on the grounds of the “nature of the relief requested,”

but “without prejudice to [appellant’s] ability to seek appropriate relief following the

resolution of the administrative hearing.”        This suggests that the show cause court

understood that in the COBR cases that reinstatement and back pay and benefits was

                                             15
dependent on the outcome of the appeal process and that there was an administrative

vehicle to do so later. To be sure, it would have been appropriate to request that specific

relief (and we would encourage it), but we believe that the general prayer for relief under

these circumstances was sufficient and not beyond the general scope and object of the show

cause petition. See Terry v. Terry, 50 Md. App. 53, 61-62 (1981) (“While a complainant

is not entitled to relief beyond the general scope and object of the bill or inconsistent with

it, the court is left free to adopt any mode by which it can most readily and effectually

administer that relief which the equity of the case may require.” (internal quotation and

citation omitted)). In absence of an adequate statutorily required notice and the opportunity

for a hearing, appellant could not be terminated. Therefore, under these facts, she was

entitled as a matter of law to reinstatement, back pay, and benefits. That was not a matter

of judicial discretion but rather the required consequence of the improper termination. As

we said in Cave, “[t]o do anything less . . . would not have granted or vindicated the right

that [the officer] was denied.” Cave, 190 Md. App. at 92.

       In our view, this is one of those “exceptional” cases in which “a serious error has

occurred.” Central Truck Center, Inc. v. Central GMC, Inc., 194 Md. App. 375, 398

(2010). The court determined that appellant was entitled to exercise her rights under the

COBR. Once the show cause court was made aware that appellant had been reinstated, it

was an abuse of discretion not to award back pay and benefits.




                                             16
     JUDGMENT REVERSED. COSTS
     TO BE PAID BY APPELLEES.




17
