Do not overestimate the exceptions to the exhaustion of administrative remedies

By Karen Federman Henry

When evaluating a new case, the focus often relates to the merits of the claim: Is your client credible? Are there witnesses who can corroborate your client’s position? Are there documents that substantiate the claim? What legal theories apply? Has the statute of limitations run yet?

All of these elements play a significant role in advising a client and deciding to pursue the case.  When handling matters before administrative agencies, however, it also is essential to consider the hierarchy of remedies that are available. Some administrative remedies must be pursued before filing a complaint in court, while others may proceed concurrently or without affecting other legal processes. Knowing where to go first can be tricky, as two police officers learned the hard way.

In Stone v. Cheverly Police Department, Ct. Spec. App., No. 2526, Sept. Term 2014 (filed March 31, 2016), the police chief brought disciplinary charges against two police officers pursuant to the Law Enforcement Officers’ Bill of Rights (“LEOBR”). The LEOBR permits a show cause proceeding in a circuit court in advance of a trial before the hearing board. Although the officers elected to have a hearing board adjudicate the charges, they also filed a lawsuit in the circuit court seeking a show cause order, as well as dismissal of all charges and an injunction against further administrative proceedings until the court ruled.

The show cause complaint raised two main issues. First, the officers claimed that the evidence that the department planned to use before the hearing board was obtained in violation of the officers’ Fourth Amendment rights, because information was obtained from global positional satellite (“GPS”) tracking devices on their police cruisers without a warrant. Second, the officers argued that the charges were retaliatory, because they had testified in favor of another officer in separate disciplinary proceedings.

The circuit court denied the requested relief and the officers appealed that order to the Court of Special Appeals. Meanwhile, the hearing board held a trial after the court’s ruling. The officers did not participate in that proceeding, and the board found them guilty of all charges and terminated their employment. Having not participated, the officers did not have the ability to challenge the hearing board’s decision on judicial review or appeal.

When the Court of Special Appeals reviewed the circuit court’s ruling on appeal, the merits of the officers’ complaint could not be addressed — the officers had failed to exhaust their administrative remedies by not appearing at the trial before the hearing board. The Court explained that the LEOBR authorized a show cause complaint in the circuit court prior to the hearing board trial, but the law did not allow for the postponement of the administrative hearing while the outcome of the circuit court proceeding was appealed.  Because the circuit court denied the officers’ relief prior to the hearing board trial, the officers needed to participate in the hearing to ensure that they exhausted their administrative remedies.

Had the officers appeared before the hearing board, they could have argued the same challenges they made in the circuit court regarding the tracking devices and retaliation.  The hearing board would have ruled on the merits of the issues and the officers then could have obtained judicial and, if needed, appellate review. By assuming that the appeal of the outcome of the show cause hearing in the circuit court would excuse them from participating in the hearing board trial, the officers lost the opportunity to obtain appellate review of the merits of their complaint.