Boyle v. Park and Planning

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In the Circu it Court for P rince Geo rge s Cou nty Case No. CAE 01-18944 IN THE COURT OF APPEALS OF MARYLAND No. 53 September Term, 2004 ______________________________________ TIMOTHY B. BOYLE, ET AL. v. MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: February 9, 2005 Petitioners Timothy Boyle and Jeffrey Pauley were once employed as park police officers by the Mo ntgomery C ounty Park Police Division of the Maryland-National Capital Park and Planning Commission (Commission). In April, 2000, the Park Police Division commenced an investigation into secondary business activities pursued by petitioners through a Delaware company they had formed, Mobile Data Technologies, LLC (MDT). The investigation focused on whether Boyle and Pauley were using their official positions and Commission proper ty and reso urces to further conflic ting priv ate intere sts. As it initially proceeded, the investiga tion was su bject to the L aw Enf orcemen t Officers B ill of Rights (LEOB R), formerly codified in Maryland Code, Art. 27, §§ 727-734D and now codified as §§ 3-1 01 thro ugh 3- 113 of the Pub lic Safe ty Article. In May, 2000, during the pendency of the investigation, Boyle and Pauley resigned their positions with the Commission, and the Park Police Division eventually terminated further LEO BR p roceed ings. The Division turned over the results of the investigation to the Commission s General Counsel, however, and General Counsel then filed a petition with the Commission s Purchasing Manager to debar Boyle and Pauley from participating in any procurement activity before the Commission.1 While that petition was pending and before any resolution of it by the Purchasing Manager, Boyle, Pauley, and MDT filed an action in the Circuit Court for Prince George s 1 Debarment is a term commonly used in public procurement laws and regulations. It d enotes an o rder or ruling that renders a person or e ntity ineligible to bid on or be awarded a public contract by reason of conduct that, in conformance with an authorizing statute or regulation and in the judgment of the procuring agency, makes the pers on o r entity unfit to be a c ontracto r with tha t age ncy. County seeking, among other things, (1) a declaratory judgment that the debarment proceeding conflicted with LEOBR, and (2) an injunction to restrain the Commission from proceeding with th e deba rment. The basic issue was whether debarment constituted punitive action within the meaning of the LEOBR and thus made applicable the procedural rights afforded under that statute, notwithstanding that Boyle and Pauley were no longer employed by the Commission a s law enforcement officers. Although Boyle and Pauley represented that they had n o intention of ever seeking procurement contracts from the Commission, they claimed that debarment by the Comm ission migh t affect their a bility to bid on contracts with other government agencies. After ruling on some preliminary motions and staying proceedings to permit the parties to attempt to resolve their dispute through mediation, the court ruled that any debarment proceeding by the Commission must be conducted in conformance with LEOBR essentially, a hearing before a police hea ring board with the Chief of Po lice ultimately determinin g whether they had eng aged in co nduct w arranting de barment. 2 The Court of Special Appeals reversed that determination, concluding, in an unreported opinion, that debarment proceedings do not constitute punitive action within the meaning of LEOBR and that LEOBR procedures were therefore inapplicable. We granted certiorari to review 2 The trial judge regarded MDT as having been dismissed from the action in the Circuit Court, although there is nothing in the record to do cument any such dism issal. It is unimportant, as all parties agree that, as an en tity and not a law enforcem ent officer, MD T is not entitled to any bene fit unde r LEO BR. -2- the judgm ent of th e interm ediate a ppellate court. W e agree with th at judgm ent but, for technic al reaso ns, shall v acate it a nd rem and the case fo r entry of a n ame nded ju dgme nt. BACKGROUND The Commission is a bi-coun ty agency created by the Gene ral Assem bly to develop both general and functional plans of proposed land development for the Washington Metropolitan District, which consists of most of Montgomery and Prince George s Counties. See Maryland Code, Art. 28, § 7-108. That is the main planning function. In carrying out the general pla n, the Commission is authorized to acquire property within the District for roads, parks, forests, and other recreation facilities, and to improve and contro l such prop erty for tho se purp oses. See id. § 5-10 1. Tha t is the m ain pa rk fun ction. The Commission c urrently administers about 56,000 acres of park and recreation land in the District. In furtherance of its park function, the Commission is authorized by § 5114 to appoint park police officers to provide protection for the Commission s activities and prop erty. Those officers have concurrent general police jurisdiction, in and on Commission prop erty, with Montg omery and Prince G eorge s County police of ficers, but they are respon sible to a nd are u nder th e super vision o f the C omm ission. Id. § 5-114(a). Although the record is skimpy in this regard, it appears that some functions of the Commission are handled by the central Commission staff wh ile others are implemented by geographically-based Divisions of the Commission within each of the two counties. Among -3- the functions handled centrally are human resources, finance, and general counsel, and included within the finance department is general procurement for the Commission. Among the functions handled by Divisions within th e respective counties is the police function. There is a separate Park Police Division, headed by a Chief and having its own command and administrative structur e, in each of the two counties. Whether there is an overall chief of police at the central headquarters level is unclear to us from the record we have.3 Boyle and Pauley worke d for the Mon tgomery County Park Police D ivision and were under the supervision of Elizabeth Kreiter, who was then the Chief of the Montgom ery County Park Police Division. Chief Kreiter reported to Donald C ochran, Chief of Park Police. Chief Cochran had delegated certain LEOBR duties to Chief Kreiter, including the authority to initiate investigations and rule on a ll punishment other than su mmary punish ment, b ut he, ap parently, w as the u ltimate c hief fo r LEO BR p urpose s. In 1998, Boyle, by then a lieutenant, became commander of the Management and Technology Branch of the Division, and he later assumed the position of Acting Assistant 3 The record is woefully deficient in a number of important respects, among which is a clear description of the structure and organization of the Commission generally and the Park Police Division in particular. How procurement authority is allocated is also unclear. There are references to Boyle having procurement authority indeed that lies at the heart of the Com mission s ca se yet it appear s that procu rement au thority rests with the Purchasing Manager and the Finance Department. There is no clear delineation of the duties of the Chief of the Montgomery County Park Police Division (Kreiter) and the Chief of Park Polic e (Cochr an) wh ether Coc hran wa s part of the M ontgom ery County Park Police Division o r was the super ch ief at the Comm ission central headquarters level to supervise the Division chiefs in the two counties. -4- Chief of that Branch.4 The dutie s and respo nsibilities of the branch co mmand er were q uite general and somewhat vague: supervision and management of areas within the Management and Technology Branch as assigned by the branch Assistant Chief. As Acting Assistant Chief of the Branch, Boyle became responsible for all of the functions of that branch, including budget an d pro cure men t, researc h and develo pme nt, an d tec hnology p rojects.5 One of the units in the Management and Technology Branch was the Information Technology Systems Unit which, in September, 1998, Boyle appointed Pauley, a sergeant, to head. That unit had a d efined fu nction. It wa s responsib le for cond ucting all tech nolo gyrelated research, the developm ent of plans for the implementation of new programs and systems, and the updating of existing programs and systems. That included, according to the Commission, researching and testing hardware and software for possible use by the Montgom ery County Park Police, initiating the procurement of contracts with hardware and software vendors, administerin g those co ntracts and monitoring the vendors, and authorizing payments to the vendors. A major part of that responsibility was administering a program designed to equip P ark Police v ehicles with mobile data capability laptop computers and 4 There appears, now, to be seven branches of the Montgomery County Division of the Commission Park Police Professional Standards, Field Operations, Management and Techno logy, Patrol, Spe cial Opera tions, Investiga tive Service s, and Spe cial Services all reporting to and under the supervision of the Chief. Whether that is the Division Chief (Kreiter) or th e Chief o f Park Po lice (Coch ran) is unclea r. Accord ing to the ap plicable Division D irective, one n eeded to b e a lieutenan t to be a bran ch comm ander and a captain to be an assistan t chief o f a bran ch. 5 As noted, the record does not make clear what procurement authority Boyle or Pauley actually had. -5- accompanying software that would enable officers to access vehicle records, criminal history informatio n, and othe r law enfo rcement in formation while on p atrol. In November, 1998, while employed in those capacities, Boyle and Pauley created MDT as a Delaware Limited Liability Company. The nature of the business, according to the tax returns filed by Boyle and Pauley, was consulting on public safety. They did not disclose the existence of MDT to the Commission. On April 10, 2000, Division Chief Kreiter, upon information received from a subordinate, check ed the w eb site f or MD T and learned that, through MDT, Boyle and Pauley appeared to be dealing with vendors who supplied goods and services to the Commission. Concerned that such activity might constitute a conflict of interest, she immedia tely initiated an LEO BR inve stigation, to fo cus on (1) w hether Bo yle or Pauley had violated any Commission rules in their relationship with outside vendors who were also Commission vendors, and (2) whether they had used Commission property or equipment for person al use. Two weeks la ter, on Apr il 27, 2000, C hief Coc hran susp ended B oyle and Pau ley, with pay, pending the outcome of the investigation and advised them of their right to a hearing on the suspension. That same day, Division Chief Kreiter sent two directives. One, addressed to Pauley, requested his consent to a search of h is office, his assigned vehicle, and other areas in his workp lace. Pauley sign ed the con sent. 6 The second directive, addressed to both Bo yle 6 The record does not reveal whether a similar request was sent to Boyle. -6- and Pauley, ordered them among other things, (1) not to return to their office or any other Park Police facility without permission from her, not to access any computer or communication system operated by the Park Police, and not to represent MDT or any other entity with any entity that did or had don e business w ith the Com mission, an d (2) to disclose, by May 5, 2000, a wide range of re cords and informatio n, including all financial ac counts held or accessible by them or held by MDT from and after January 1, 1995, tax returns, records relat ing to the ir relation ship with MD T or any other entit y, and records showing or relating to appo intmen ts from and af ter Janu ary 1, 199 5. At the request of Boyle and Pauley, the deadline for producing the records was extended to May 12, but, when no response to the demand was forthcoming by then, they were, on Ma y 17, formally cha rged with failure to obey that order and informed of the Commission s intention to fine them one day s pay, commencing as of May 13, for each day until they complied with the orde r.7 Upon re ceipt of that in subordina tion charge , Boyle and Pauley requested an LEOBR hearing but immediately resigned their positions, as of May 19, 2000. Notwithstanding their resignations, the investigation and the LEOBR proceeding continued. Chief Kreiter explained that the investigation proceeded because she was not sure at that point whether any of the Commission vendors or any other Commission staff were 7 It is not clear whether that charge was made by Division Chief Kreiter or Acting Director of Parks Lester Straw. It appears to have been made by Straw and countersigned by Kreiter. -7- involved and had v iolated Co mmission directives an d policies; the investigation, in other words, was broader than just Boyle and Pauley. On June 30, 2000, the hearings requested by Boyle and Pauley were scheduled for July 25 and 26, 2000, but, when their attorney advised that he h ad a trial c onflict, th e hearin gs we re postp oned. The Commission continued to press for compliance with the directive to produce records. In response, counsel asserted that the Commission no longer had jurisdiction over the two men because they had retired, but, after some further correspondence, some docu ments were turned over in Septemb er, 2000. The hearings were apparently never rescheduled, and the LEOBR proceeding against Boyle and Pauley was ad ministrativel y closed on January 11, 2001. A final report of the investigation was not p repared un til June, 2001, however. Chief Kreiter, who had briefed General Counsel s office a nd the Purchasing Manager for the Commission as the investigation proceeded, sent a copy of that report to G eneral Co unsel. Wo rking with General Counsel s office, she prepared a summary of the report for the Purchasing Manager and ultimately assisted in drafting the Petition for Debarment that was filed before the Purchasing Manager on or about July 17, 2001. The petition is based to a large extent on the inform ation that cam e to light through the LEOBR investigation, including that part of the investigation that occurred after Boyle and Pauley resigned. W e need no t recite, or even summa rize, all of the allegations in the 48page petition. It basically ave rs that Boyle an d Pauley, in sec retly pursuing th eir private -8- business while working for the Commission, violated a number of ethical and procedural requirements, including conflict of interest provisions relating directly to procurement and their own official duties, and that they misappropriated and misused Commission property and funds. The petition alleges, in those regards, that they steered substantial Commission business to three vendors w ith which th ey, or MD T on their behalf, had established p rivate business relationships. Section 16 of the C ommissio n s Purch asing M anual, dealin g with deb arment, lists among the grounds for debarment [v]iolation of the ethical standards set forth in Section 2 of this manual, and [a]ny other cause the Purchasing Manager determines to be so serious and compelling as to affect responsibility as a Comm ission contractor. Section 2 of the Manu al, dealing with Ethics in Purchasing, makes it a breach of eth ical standards for a Commission employee (1) to participate directly or indirectly in a procurement a ction in which a conflict of interest may ex ist, or (2) to use th e employee s public po sition for priv ate gain. Debarment is determined by the Purchasing Manager, subject to an appeal to the Executive Director of the Commission and judicial review. On the allegations of the petition, General Counsel and Chief Kreiter asked that Boyle, Pauley, MDT, and a company that they believed had purchased MDT be barred from participating in any procurement activity that the Commission may undertake for the maximum period of time allowed by law. On August 31, 2001, before any proceedings took place on th e pet ition , Boyl e, Pa uley, and MDT brought th is action for declaratory and injunctive relief to thwart the debarment -9- proceeding. They alleged that (1) debarment proceedings are controlled by Maryland Code, §§ 16-101 et seq. of the State Finance and Procurement Article, which preempt the Commission s procedures; (2) the pendin g debarm ent procee ding is subje ct to, but fails to comply with, LEOBR; and (3) the lack of procedural protections afforded by the pending debarment proceedin g would deprive the plaintiffs of their right to procedural due process of law under Article 24 o f the Ma ryland Decla ration of R ights. They sou ght a declaratory judgment confirming those averments and, through injunctive and mandamus relief, an order barring the Co mmiss ion fro m proc eeding with th e deba rment. The Commission resp onded with a m otion to dismiss and fo r summ ary judgm ent. With respect to the LEOBR claim, it asserted that, by resigning, the plaintiffs had waived their right to LEOBR proceedings and that such proceedings, in any event, we re inapprop riate in light of the plaintiffs resignation in that they could not result in any punitive action against them. It is not clear whether the court ever ruled definitively on the first and third complaints made by Boyle and Pauley preemption and due process but those issues were not raised in their petition for certiorari and are therefore no t before us. On March 10, 2003, the court filed a Memorandum Opinion and Order in which it concluded that Boyle and Pauley were entitled to the procedural rights afforded by the LEOBR, notwithstan ding their resignations, and [t]he fact that disciplinary sanctions are no longer available to remedy the alleged wrongdoing does not preclude the dete rminatio n by [an L EOB R] hea ring bo ard. The court formally denied the request for declaratory judgment on the ground that a statutory -10- remedy the LE OBR proceedin g was a vailable, but it did enjoin the Commission from continuing debarment proceedings unless and until charges against [Boyle and Pauley] are sustaine d in pro ceedin gs purs uant to [ LEO BR]. 8 As noted, the Court of Special Appeals reversed that judgment. It looked to the relevant provision of LEOBR, at the time Article 27, § 730(a) and now § 3-107(a) of the Public Sa fety Article, wh ich reads, in re levant part: [i]f the investigation or interrogation of a law enforcement officer results in a recommendation of de motion, dism issal, transfer, loss of pay, reas signmen t, or similar action tha t is considered punitive, the law en forceme nt officer is entitled to a hearing on the issues by a hearing board before the law enforc emen t agenc y takes tha t action. (Emphasis add ed). 9 The issue, recog nized by both the Circuit Court and the Court of Special Appeals, was whether debarment was a similar action that is considered punitive within the meaning of that statute. If not, the r ight to an LEO BR h earing d id not ap ply. The interm ediate appe llate court noted that the enumerated list demotion, dismissal, transfer, loss of pay, reassignment 8 The court s conclusion that declaratory relief was inappropriate because a statutory procedure was available is puzzling. It may have had more merit had it been based on the availability of, and failure to exhaust, the administrative remedy before the Purchasing Manager, but not based on the court s determination that the LEOBR procedure was available. That was the very issue presented to the court whether the LEOB R procedure w as applicable and bo th sides were entitled to a declaratory judgmen t resolving it. 9 We shall use the current articulation in the Public Safety Article, which was taken without substantive change from former Article 27. -11- were all punitive actions related to the office r s employment relationship, and, applying the doctrine of ejusdem generis, concluded that the general reference to similar action that is considered punitive was likewise intended to include only those actions that are of the same nature as the e numerate d actions, tha t is, punitive actio ns related to th e law enforcement officer s employment [as a law enfo rcement o fficer]. A s debarm ent could have no effect on B oyle s or Pauley s employme nt with the C ommissio n in any capa city, it was not a similar punitive measure within the meaning of the statute, and the LEO BR sim ply did n ot ap ply. Before us, Boyle and Pauley urge that debarment is punitive in nature, that the doctrine of ejusdem generis does not apply, and that, even if it did, it would not preclude applica tion of L EOB R to the debarm ent pro ceedin g. DISCUSSION The parties agree, and properly so, that the issue is one of statutory construction the scope of the phrase or similar action that is considered punitive, as used in what is now § 3-107(a) of the P ublic S afety Ar ticle. As we have so often held, when construing a statute, [o]ur preemine nt goal is to disce rn and i mplem ent legis lative inte nt, and, to do that, we begin with the plain meaning of the statutory language. Walker v. Human Resources, 379 Md. 407, 420, 842 A.2d 53, 61 (2004); (citing Allstate v. Kim , 376 Md. 276, 290, 829 A.2d 611, 619 (2003)). Important in determining legislative intent, however, is the purpose of -12- the statutory scheme of which the statute under review is a part. Breitenbach v. N.B. Handy, 366 M d. 467, 4 74, 784 A.2d 5 69, 573 (2001 ). Thus the issue: Did the Legislature intend that phrase to include a proceeding by an agency to prevent persons w ho had once b een, but were no lon ger, law enforcement of ficers employed by the agency from bidding on and being awarded procurement contracts due to conduct committed while so employed? As Boyle and Pauley seem to concede that no one in the Park P olice Division, including the Chief of the Park Police, is authorized to debar them from bidd ing on or being awarded procurement contracts, the question becomes whether they are nonetheless entitled to have a police hearing board, selected in accordance with LEOBR, determine whether they committed conduct during their employment that cou ld then serve as a basis for debarment by the Purchasing Manager or the Executive Director of the Commission. Instructive is Fraternal Order of Police v. Mehrling, 343 M d. 155, 680 A.2d 1052 (1996). A Montgomery County police officer was charged with and found guilty of having engaged in secondary employment without approval from the Chief of Police and the Coun ty Ethics Commission, approval that was required by a county regulation as a condition to such employme nt. The question was whether the Chief of Police was authorized under LEOBR, as a punitive measure, to prohibit the officer from engaging in any secondary employment for three months. Our answer was no, because we conclude d that the relev ant county regulations dealing with secondary employment did not vest the Chief of Police, -13- substan tively, with that auth ority. Citing several earlier cases, we confirmed that the purpose of LEOBR was to provide procedural safeguards for law enforcement officers during any investigation and subsequent hearing that might result in disciplinary action. We quoted from Moats v. City of Hagerstown, 324 Md. 519, 526, 597 A.2d 972, 975 (1991) that the purpose of LEOBR was to establish an exclusive procedural remedy for a police officer in departmental disciplinary matters . (Empha sis added). Noting that the primary function of LEOBR was to provide a procedural framework for the protection of law enforcem ent officers subject to disciplinary action, we concluded that the statute was not an effective vehicle for defining the types of disciplinary sanctions a vailable to the Chief. Mehrling, supra, 343 Md. at 183, 680 A.2d at 1066. Implicit in that conclusion is that the LEOBR procedural protections apply only when there is a prospect of disciplinary action or punitive measure that is within the substantive authority of the Chief of Police to impose. The function of the hearing board is to make findings of fact and conclusions of law in aid of a recommendation to the Chief of the penalty it considers appropriate under the circumstanc es, including demotion , dismissal, transfer, loss of pay, reassignment, or other similar action that is considered punitive. Public Safety A rticle, § 3 -108(b ). It is the Chief who makes the final decision. If there is no possible disciplinary action that the Chief can impose, even upon a sustaining of every charge made against the officer, the hearing board procedure serves no function; it leads nowhere. -14- That is precisely the situation here. Because of the ir resignation, the employment relationship that Boyle and Pauley had with the Park Police has been entirely terminated; there is no lingering connection that can be affected by any order that the Chief of Police can make. Boyle and Pauley were not seeking reinstatement as police officers; they were not seeking to withdraw their resigna tions. There is no sanction no punitive measure that the Chief of Poli ce can impos e. As noted , the parties agree that the Chief of Police has no authority whatever to order debarment. Under Section 16 of the Commission Purchasing Manu al, only the Purchasing Manager, subject to appeal to the Executive Director of the Commission, may ord er, termin ate, or modify debarment. There is no provision for any LEOBR hearing board to make recommendations to the Purchasin g Manager regarding debarm ent. Two other considerations also coalesce in support of the conclu sion that LE OBR is inapplicab le in this situation. The first is the ejusdem generis doctrine applied by the Cou rt of Specia l Appe als. Ejusdem generis is a canon o f statutory cons truction that when a general word or phrase follows a list of specifics, the general word or phrase w ill be interpreted to include o nly items of the same type as those listed. B LACK S L AW D ICTIONARY 556 (8 th ed. 2004). Quoting from 2A SUTHERLAND S TAT. C ONST. § 47.18, at 200 (5th e d. 1992), this C ourt has no ted that: The doctrine of ejusdem generis applies when the following conditions exist: (1) the statute contains an enumeration by specific words; (2) the members of the enu meration su ggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, -15- usually following it; and (5) there is not clearly manifested an intent that the genera l term be given a broade r mean ing than the doc trine req uires. In re Wallace W., 333 Md. 186 , 190, 634 A.2d 5 3, 55-56 (1993) (italics supplied); see also Degren v. State, 352 Md. 400, 427, 722 A.2d 887, 900 (1999). Although the doctrine, being only a rule of construction, should not be invoked to restrict the meaning of word s within narrower limits than the statute intends, so as to subvert its obvious purpose, Blake v. Sta te, 210 Md. 459, 462, 124 A.2d 273, 274 (1956 ), State Dep t. of Assess. & Tax v. Belcher, 315 Md. 111, 121, 553 A.2d 691, 696 (1989), its use here supports, rather than subverts, the statutory intent. The specific kinds o f sanctions listed all relate, and are limited, to actions affecting the officer s employment relationship as an officer, and there is no clearly manifested intent that the catchall phrase similar action that is considered punitive cover actions that do not and cannot affect the officer s employment relationship.10 Fina lly, despite Bo yle and Paule y s contention to the contrary, debarment, as provided for in the C ommissio n s purcha sing man ual, is not a punitive measure, but a remedial one. Their position rests largely on their stated intention never to bid on Commission contracts. In light of that, they claim, debarment cannot be remedial, as there is nothing to remedy, so it must be punitive. Its only effect, the y assert, is to make it difficult for th em to obta in 10 We do n ot mean to suggest tha t the resignatio n or retireme nt of an of ficer while an LEOBR investigation is pending necessarily requires that the investigation be terminated. For one thing, as here, the investigation may explore activity or culpability on the part of other persons. There may, in addition, possibly be punitive measures that could be imposed notwithstanding the resignation or retirement, although that is an issue we need not and do not address here. -16- contracts from other government agencies to whom they will be required to disclose debarm ent by the Com mission . There are thre e respo nses to th at argum ent. The most obvious, of course, is that they could change their currently stated position at any time. More significantly, debarme nt is intended to wor k pro spec tivel y, before bidding starts. If there is cause to debar a prospective bidder, even one who, at the momen t, claims no in terest in bidding, that ought to be resolved, whenever possible, in a proceeding unconnected to any pendin g procu remen t action. Otherwise, if Boyle or Pauley or some entity with w hich they ma y be connec ted were to attempt to submit a b id on som e future co ntract, the bidding proc ess could b e seriously disrupted by an attempt then to debar them or no t accept their b id. Their current disinterest in doing business with the C ommission ma y be considered by the Purcha sing Manag er in deciding whether to proceed, but it does not preclude her from proceeding. Fina lly, in presenting that argument, Boyle and Pauley rely on three cases, none of which are on p oint. In Wisconsin Dept. of Industry v. Gould, Inc., 475 U.S . 282, 106 S . Ct. 1057, 89 L. Ed.2d 223 (1986), the Court struck down, as preempted by the National Labor Relations Act (NLRA), a Wisconsin statute that precluded State procurement agents from purchasing any product known to be manufactured or sold by a person who had been found to have viola ted the NL RA in th ree separate cases within a five year perio d. The C ourt held that, [b]ecause Wisconsin s debarment law functions unambiguously as a supplemental sanction for violations of the NLRA, it conflicts with the [National L abor Relations] Bo ard s -17- comprehensive regulation of industrial relations in precisely the same way as would a state statute preventing repeat labor law violators from doing any business with private parties within the State. Id. at 288, 106 S. Ct. at 1062, 89 L. Ed.2d at 229. In a footnote to a succeeding sentence, th e Court ob served that [t]he conf lict between the challenged debarment statu te an d the NLRA is ma de al l the m ore o bvio us by t he essentially punitive rather than corrective nature of W isconsin s supplemen tal remedy . . . . Wisconsin s debarment sanction [in contrast to the rem edial nature of NLR A regulation] functions as punishment and serves no corrective purpose. Id. at 288 n.5, 106 S. Ct. at 1062 n.5, 89 L. Ed.2d at 229 n.5. The Wisconsin case certainly illustrates that a debarment statute, depending on how it is drafted, can be punitive in nature. As the other two cases cited by Boyle and Pauley also make clear, how ever, that is not how the more traditional debarment statutes are construed. In United Sta tes v. Hatfield, 108 F.3d 67 (4 th Cir. 1997), the court conside red whether a Federal debarme nt regulation was sufficiently punitive in nature as to bar, on double jeopardy grounds, the subsequent criminal prosecution of a debarred contractor based on the same conduct that led to his debarment. Writing for the court, Judge Niemeyer observed that the debarment proceeding was informal, that it was designed as a civil proceeding subject to a preponderance of evidence standard, that debarment could not be imposed to punish, but only to serve the remedial goal of protecting the government, and that debarment for 26 months was not so excessive as to transform what was designed as a civil remedy into a -18- criminal penalty. Id. at 69. United States v. Stoller, 78 F.3d 710 (1 st Cir. 1996) is to the same effect. The debarment provision a t issue here is n othing at all like the Wisco nsin statute found pree mpted by the S upre me C ourt. For one thing, it d oes n ot co nflic t, sub stantivel y, with any preemptive Federa l or State law. It does not seek to punish, or pu nish more seve rely, conduct that any preemp tive law pe rvasively regula tes in some other wa y. There is no automatic debarment based on any event. The causes for debarment include a criminal conviction for certain kinds of offenses, particularly serious violation of existing contracts, the violation of ethical standards set forth in Section 2 of the purchasing manual, violation of the anti-discrimination program set forth in Section 3 of the manual, and, as noted, any other cause that the Purchasing Manager determines to be so serious and compelling as to affect responsibility as a Commission contractor, including debarment by another governmental entity for any cause listed above. The contractor is entitled to notice and an opportun ity to be heard. Follo wing a h earing, if on e is requested, the Purchasing manager must render a written decision stating the reasons for the action taken and inform the contractor of his/her right to administrative and judicial review.11 These circumstances convince us that, like mo st traditional d ebarment laws, this one is remedial rather than punitive. 11 Although Boyle and Pauley have at times complained about the lack of clear procedures in a debarment proceeding, that issue is not presently before us. -19- For all of these reasons, we hold that the LEOBR was inapplicable to the debarment proceeding and the Circuit Cou rt erred in conclu ding ot herwis e. In light of that conclusion, we need not address whether Boyle and Pauley waived any LEOBR rights by resigning or by reason of some ad mission by the ir attorney. The mandate of the Court of Special A ppeals simply reversed the order gr anting the re quested inju nction. It shou ld have gone a b it further. As noted above, the parties were entitled to a declaratory judgment on the LEOBR issue, and the case must be remanded so that such a judgment can be entered. JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE JUDGMENT OF CIRCU IT COURT FOR PRINCE GEORGE S COUNTY AND TO REMAND TO THAT COURT WITH INSTRUCTIONS TO ENTER PROPER DECLARATORY JUDGMENT IN CONFORMANCE WITH THIS OPINIO N AND TO DENY REQUEST FOR INJUNCTIVE AND MANDAMUS RELIEF. COSTS IN THIS C OURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONERS BOYLE AND PAULEY. -20-

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