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Montgomery County v. Krieger7/1/1996
ut of a desire to exact retribution from appellee or to deter such incidents in the future.
We hold, therefore, that the counselling and inclusion of the above-discussed documentation in appellee's personnel file was not punishment under the Double Jeopardy Clause. This holding notwithstanding, we recognize that it is possible that the collection of these documents in appellee's file might negatively reflect upon appellee, and that the counselling might have been an embarrassing or negative experience for appellee. This negative impact on appellee, however, does not transform the action into punishment. In this regard, appellee may have felt the "sting of punishment." As the cases demonstrate, however, the "sting of punishment," is not invariably caused by punishment within the contemplation of double jeopardy principles. Accordingly, we agree with the County that the "counseling of a police officer and the recording of that event in the personnel record is more purely remedial in purpose than either the sanction of suspension imposed in Ward or the administrative license suspension imposed in Johnson. "
In addition to holding that appellee was not punished within the contemplation of the Double Jeopardy Clause, we hold that appellee was not successively prosecuted. Appellee has offered no authority to support her position that a second prosecution commenced with the second Form 242. Appellee is assigning too much significance to the fact that she received two Form 242's pertaining to the same incident. We explain.
Our review of the record indicates that the exchange between Buchanan and appellee's representative during the November 2, 1994 tape recorded interrogation is the only place where an explanation can be found for why appellee received two Form 242's. Therein, Buchanan explained that Sterling issued the first Form 242 for purposes of Sterling's preparation of the SIIR. The clear implication of Buchanan's explanation is that the scope of Sterling's investigation was limited to the documentation of property damage for the SIIR, whereas Buchanan would handle matters beyond that, i.e., the formal discipline of appellee, as part of his investigation. There is no evidence in the record indicating anything else to the contrary. Thus, we are not faced with two separate and distinct investigations culminating with two administrative dispositions. Rather, the investigation of the nozzle incident was an investigation with two concerns -- the ministerial documentation of property damage and the administrative disciplinary action against an officer. Sterling was responsible for the former and Buchanan was responsible for the latter. Appellee has failed to demonstrate why the two cannot constitutionally co-exist.
II
Next, we hold that there was no violation of LEOBR in this case. Nothing in LEOBR -- expressly or implicitly -- precluded appellee from being served with a second Form 242 and from ultimately being fined by the Chief, after having been counselled and the documents having been inserted into appellee's file.
As we explained, the placement of the documents into appellee's file was not a final punishment, but rather was a legitimate administrative step taken during the course of an ongoing investigation. Under § 728(b) (12) of LEOBR,
(i) A law enforcement agency may not insert any adverse material into any file of the officer, except the file of the internal investigation or the intelligence division, unless the officer has an opportunity to review, sign, and receive a copy of, and comment in writing upon the adverse material, unless the officer waives these rights.
(ii) A law enforcement officer, upon writte
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