In this subtitle the following words have the meanings indicated. “Appointing authority” has the meaning stated in § 1–101 of the State Personnel and Pensions Article. “Correctional officer” means an employee of the Department working in a State correctional facility who serves in the classification of correctional officer II, sergeant, lieutenant, captain, or major, and includes: a correctional dietary officer; a correctional maintenance officer; a correctional laundry officer; a correctional recreation officer; and a correctional supply officer. “Hearing” means a proceeding during an investigation conducted by a hearing board to take testimony or receive other evidence, or a contested case proceeding before the Office of Administrative Hearings, elected by the correctional officer. “Hearing” does not include an interrogation at which no testimony is taken under oath. “Hearing board” means a hearing board that is authorized under § 10–908 of this subtitle to hold a hearing on a complaint against a correctional officer. “Intelligence and Investigative Division” means the Intelligence and Investigative Division established under § 10–701 of this title. “Misconduct” means: engaging in intentional behavior, without justification, that injures another person, causes damage to property, or threatens the safety of the workplace; engaging in unjustifiably offensive conduct toward fellow employees, incarcerated individuals, or the public; using excessive force in the treatment or care of an incarcerated individual; possessing or trafficking in contraband at a Department facility; being on duty while under the influence of alcohol or a controlled dangerous substance, or while engaged in the illegal use of a prescription drug; engaging in a social, personal, intimate, or sexual relationship with an incarcerated individual; stealing State property with a value of $300 or less; engaging in conduct involving dishonesty, fraud, deceit, misrepresentation, or illegality; willfully making a false official statement or report; violating a lawful order or failing to obey a lawful order given by a superior; engaging in any of the actions that are cause for automatic termination of employment under § 11–105 of the State Personnel and Pensions Article; or committing any violation of the Department’s Standards of Conduct.

The purpose of this subtitle is to establish exclusive procedures for the investigation and discipline of a correctional officer for alleged misconduct. The disciplinary actions authorized under this subtitle are those authorized under §§ 11–104 and 11–105 of the State Personnel and Pensions Article.

Except as otherwise provided, the provisions of this subtitle supersede any inconsistent provisions of any other State law, including § 11–106 of the State Personnel and Pensions Article, that conflict with this subtitle to the extent of the conflict. This subtitle does not limit the authority of the appointing authority to regulate the competent and effective operation and management of a State correctional facility by reasonable means including the transfer and reassignment of employees if: that action is not punitive in nature; and the appointing authority determines that action to be in the best interests of the internal management of the correctional facility.

A correctional officer may not be required or requested to disclose an item of the correctional officer’s property, income, assets, source of income, debts, or personal or domestic expenditures, including those of a member of the correctional officer’s family or household, unless the disclosure is required by federal or State law or the information is necessary to investigate a possible conflict of interest with respect to the performance of the correctional officer’s duties. A correctional officer may not be discharged, disciplined, or demoted, denied promotion, transfer, or reassignment, or otherwise discriminated against in regard to the correctional officer’s employment or be threatened with that treatment because the correctional officer: has exercised or demanded the rights granted by this subtitle; or has lawfully exercised constitutional rights. The right of a correctional officer to bring suit arising out of the correctional officer’s duties as a correctional officer may not be abridged by rule, regulation, or policy. A correctional officer may waive any or all of the rights under this subtitle if: the waiver is signed and acknowledged by the correctional officer; and the waiver is given after the correctional officer is given an opportunity to consult with legal counsel selected by the correctional officer or a representative from the correctional officer’s employee organization.

The investigation or interrogation by the appointing authority or by the Intelligence and Investigative Division of a correctional officer for a reason that may lead to disciplinary action, demotion, or dismissal shall be conducted in accordance with this section. The investigating officer or interrogating officer shall be a member of the Intelligence and Investigative Division or a designee of the appointing authority. At least 24 hours before an interrogation, the correctional officer under investigation shall be informed of the name, rank, and command of: the person in charge of the investigation; the interrogating officer; and each individual who will be present during the interrogation. At least 24 hours before an interrogation, the correctional officer under investigation shall be informed in writing by the appointing authority of: the nature of the investigation; and the correctional officer’s rights under this subtitle. If the correctional officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, the correctional officer shall be informed completely of the correctional officer’s constitutional rights before the interrogation begins. Unless the seriousness of the investigation is of a degree that an immediate interrogation is required, the interrogation shall be conducted at a reasonable hour, preferably when the correctional officer is on duty. The interrogation shall take place at: the appointing authority’s office; the appointing authority’s conference room; or another reasonable and appropriate place. All questions directed to the correctional officer under interrogation shall be asked by one person during any one session of interrogation. Each session of interrogation shall allow for personal necessities and rest periods as reasonably necessary. The correctional officer under interrogation may not be threatened with criminal prosecution, transfer, dismissal, or disciplinary action. If requested by or on behalf of the correctional officer under investigation, the correctional officer may not be questioned or interrogated, and any current questioning or interrogation must cease, unless: the correctional officer is represented by legal counsel selected by the correctional officer; the correctional officer is represented by an agent of the exclusive representative of the correctional officer designated under § 3–406 of the State Personnel and Pensions Article; or the correctional officer chooses an agent of the employee organization selected by the correctional officer for an investigation under this subtitle if the correctional officer is not within the bargaining unit for which an exclusive representative is designated; and the legal counsel or the agent selected by the correctional officer is present and available for consultation at all times during the interrogation. Subject to subparagraph (ii) of this paragraph, if representation is not available, the interrogation shall be suspended until representation is obtained. A suspension of interrogation under subparagraph (i) of this paragraph may not exceed 10 days unless the appointing authority, for good cause shown, extends the period for obtaining representation. During the interrogation, the correctional officer’s counsel or representative may: request a recess at any time to consult with the correctional officer; object to any question posed; and state on the record outside the presence of the correctional officer the reason for the objection. A complete record shall be kept of the entire interrogation, including all recess periods. The record shall be made by electronic equipment or by a stenographer. On completion of the investigation, and on request of the correctional officer or the correctional officer’s counsel or representative, a copy of the record of the interrogation shall be provided within 5 days of the request. The person assigned to conduct the investigation may order the correctional officer under investigation to submit to blood alcohol tests, blood, breath, or urine tests for controlled dangerous substances, polygraph examinations, or interrogations that specifically relate to the subject matter of the investigation. If the correctional officer is ordered to submit to a test, examination, or interrogation described in paragraph (1) of this subsection and the correctional officer refuses to do so, the appointing authority may commence an action that may lead to discipline as a result of the refusal. If a correctional officer is ordered to submit to a test, examination, or interrogation described in paragraph (1) of this subsection, the results of the test, examination, or interrogation are not admissible or discoverable in a criminal proceeding against the correctional officer. If the correctional officer is ordered to submit to a polygraph examination, the results of the polygraph examination may not be used as evidence in a hearing board or an administrative hearing unless the appointing authority and the correctional officer agree to the admission of the results. The correctional officer’s counsel or representative need not be present during the actual administration of a polygraph examination by a certified polygrapher if: the questions to be asked are reviewed with the correctional officer or the counsel or representative before the administration of the examination; the counsel or representative is allowed to observe the administration of the examination; and a copy of the final report of the examination by the certified polygrapher is made available to the correctional officer or the counsel or representative within a reasonable time, not exceeding 10 days, after completion of the examination. On completion of an investigation and at least 20 days before a hearing, the correctional officer under investigation shall be: notified of the name of each witness and of each charge and specification against the correctional officer; and provided with a copy of the investigatory file and any exculpatory information, if the correctional officer and the correctional officer’s counsel or representative agree to execute a confidentiality agreement with the appointing authority or the Intelligence and Investigative Division not to disclose any material contained in the investigatory file or exculpatory information for any purpose other than to defend the correctional officer. A person may not insert adverse material into a file of the correctional officer, except the file of the Intelligence and Investigative Division, unless the correctional officer has an opportunity to review, sign, receive a copy of, and comment in writing on the adverse material.

A correctional officer who is denied a right granted by this subtitle may apply to the circuit court of the county where the correctional officer is regularly employed for an order to show cause why the right should not be granted. The correctional officer may apply for the show cause order: either individually or through the correctional officers’ exclusive bargaining representative who shall have standing for that purpose; and at any time before the beginning of a hearing by the hearing board.

The appointing authority may not bring charges recommending the imposition of discipline more than 90 days after the Intelligence and Investigative Division or the appointing authority acquires knowledge of the action that gives rise to the discipline. The 90–day limitation established under subsection (a) of this section does not apply to charges that relate to criminal activity if the criminal activity: relates to the correctional officer’s official duties; arises from events that occur at a correctional facility; or involves an incarcerated individual or detainee at a correctional facility. An appointing authority may not recommend disciplinary action against a correctional officer for excessive use of force against an incarcerated individual based solely on the uncorroborated statement of the incarcerated individual unless the appointing authority determines that there exists any indicia of reliability to support the incarcerated individual’s allegation. This section does not limit the right of the Department to investigate claims of excessive force against incarcerated individuals to ensure the safety and security of its correctional facilities, or for any other legitimate purpose.

If the appointing authority brings charges recommending discipline against a correctional officer, the charges shall contain: a statement of facts and offenses alleged; and notice of the correctional officer’s appeal rights. 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. On receiving charges which recommend termination, demotion, or suspension without pay of 10 days or greater, a correctional officer may: file an appeal under § 11–109 of the State Personnel and Pensions Article; or within 15 days after receiving the charges, file a request for a hearing by a hearing board. If a correctional officer receives charges which recommend discipline other than termination, demotion, or suspension without pay of 10 days or greater, before the appointing authority takes action on the discipline, the correctional officer may appeal only under § 11–109 of the State Personnel and Pensions Article. An emergency suspension is not subject to appeal. An action which does not constitute discipline under § 11–107 of the State Personnel and Pensions Article is not subject to appeal.

A correctional officer who has been charged with a felony may request a stay of all charges and proceedings under this section until after a verdict has been reached in the felony case. A correctional officer who has been convicted of a felony is not entitled to a hearing under this section. The hearing board authorized under this section shall consist of at least three members. For correctional officers holding the rank of sergeant or below, the hearing board shall be composed of two correctional officers who are members of the bargaining unit, one of whom is the same rank as the correctional officer facing charges, and one correctional officer ranked lieutenant or higher. For correctional officers holding the rank of lieutenant and above, the hearing board shall be composed of one correctional officer of equal rank, one correctional officer of equal or lower rank, and one correctional officer of equal or higher rank. Correctional officers assigned to serve on a hearing board shall be randomly selected from a rotating list of correctional officers eligible to serve on disciplinary hearing boards maintained by the Department. The Department, after consultation with the exclusive representative for the correctional officers who are covered by this subtitle, shall determine: the manner of selection of correctional officers who are eligible to serve on a rotating list; and the manner of the selection of correctional officers for a hearing board. Correctional officers assigned to serve on a hearing board shall be from a facility other than the facility to which the correctional officer facing charges is regularly assigned, and may not have had a role in the investigation or the interrogation of the correctional officer against whom the charges are filed, or be involved in any way with the incidents that are the subject of the complaint. The highest ranking member of the hearing board shall serve as the hearing board chair. The chair of the hearing board: shall participate in any deliberations; but may only vote on the decision in the event of a tie; and may file a statement of position for the record. The chair of the hearing board shall be from a different facility than the other board members. The appointing authority and the exclusive bargaining representative may negotiate an alternative method of forming the hearing board for members of the collective bargaining unit. Decisions of the hearing board shall be by majority vote of all members of the board. The votes of the hearing board are confidential, and decisions shall be reported by the chair. In connection with a disciplinary hearing, the hearing board may issue subpoenas to compel the attendance and testimony of witnesses and the production of documents as relevant or necessary. The subpoenas may be served without cost in accordance with the Maryland Rules that relate to service of process issued by a court. Each party may request the hearing board to issue a subpoena or order under this subtitle. In case of refusal to obey a subpoena served under this subsection, the parties to the proceeding may apply without cost to the circuit court of a county where the subpoenaed party resides or conducts business, for an order to compel the attendance and testimony of the witness or the production of the documents sought. On a finding that the attendance and testimony of the witness or the production of the documents sought is relevant or necessary, the court may: issue without cost an order that requires the attendance and testimony of witnesses or the production of documents; and impose punishment for failure to obey the order. The hearing shall be conducted by the hearing board. The hearing board shall give the Department and correctional officer ample opportunity to present evidence and argument about the issues involved. The correctional facility and correctional officer may be represented by legal counsel they each may select. In the alternative, a correctional officer may be represented: by an agent of the exclusive representative of the correctional officer designated under § 3–406 of the State Personnel and Pensions Article; or if the correctional officer is not within the bargaining unit for which an exclusive representative is designated under § 3–406 of the State Personnel and Pensions Article, by any person chosen by the correctional officer. Each party has the right to cross–examine witnesses who testify, and each party may submit rebuttal evidence. Evidence with probative value that is commonly accepted by reasonable and prudent individuals in the conduct of their affairs is admissible and shall be given probative effect. The hearing board shall give effect to the rules of privilege recognized by law and may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. Each record or document that a party desires to use shall be offered and made a part of the record. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference. The hearing board may take notice of: judicially and administratively cognizable facts; and general, technical, or scientific facts within its specialized knowledge. The hearing board shall: notify each party of the facts so noticed either before or during the hearing or by reference in preliminary reports or otherwise; and give each party an opportunity and reasonable time to contest the facts so noticed. The hearing board may use its experience, technical competence, and specialized knowledge in the evaluation of the evidence presented. The officiating member of a hearing board shall administer oaths or affirmations and examine individuals under oath. A correctional officer shall be granted release time from the correctional officer’s normal work schedule to attend a conference or hearing as a witness. Expenses incurred in connection with attendance by a correctional officer at conferences or hearings, whether as a grievant, as a grievant’s representative, or as a witness, shall be borne by the Department. An official record, including testimony and exhibits, shall be kept of the hearing. To the extent that any provision of this section is inconsistent with the Administrative Procedure Act, the Administrative Procedure Act shall govern.

A decision, order, or action taken as a result of a hearing under § 10–909 of this subtitle shall be in writing and accompanied by findings of fact. The findings of fact shall consist of a concise statement on each issue in the case. A finding of not guilty by the hearing board terminates the action. The hearing board may make a finding of guilty on a preponderance of the evidence that establishes that the correctional officer engaged in misconduct on any of the charges. The hearing board shall make a separate finding of guilty or not guilty as to each offense alleged. If the hearing board makes a finding of guilt, the hearing board shall: reconvene the hearing; receive evidence; and consider the correctional officer’s past job performance, the relation of the contemplated disciplinary action to any prior disciplinary action, and other relevant mitigating information as factors before deciding a penalty. The hearing board shall recommend the penalty it considers appropriate under the circumstances, including disciplinary suspension without pay, demotion, dismissal, transfer, loss of pay, reassignment, or other similar action that is considered punitive. For the purposes of this subsection, performance–based offenses shall be considered one type of offense and attendance–based offenses shall be considered another type of offense. A copy of the decision or order, findings of fact, conclusions, and a written determination of penalty shall be delivered or mailed promptly to: the correctional officer and the correctional officer’s counsel or representative of record; the appointing authority of the correctional facility; and the Secretary. Within 30 days after receipt of the recommendations of the hearing board, the appointing authority shall: review the findings, conclusions, and recommendations of the hearing board; and issue a final order. The final order and decision of the appointing authority is binding, but may be appealed in accordance with § 10–911 of this subtitle. The recommendation of a penalty by the hearing board is not binding on the appointing authority. The appointing authority shall consider the correctional officer’s past job performance and the relation of the contemplated disciplinary action to any prior disciplinary action before imposing a penalty. Before terminating a correctional officer under this subsection, the appointing authority shall obtain approval from the Secretary. With the approval of the Secretary, the appointing authority may increase the recommended penalty of the hearing board if the appointing authority: reviews the entire record of the proceedings of the hearing board; meets with the correctional officer and allows the correctional officer to be heard on the record; at least 10 days before the meeting, discloses and provides in writing to the correctional officer any oral or written communication not included in the record of the hearing board on which the decision to consider increasing the penalty is wholly or partly based; and states on the record the substantial evidence on which the appointing authority relied to support the increase of the recommended penalty. The Correctional Training Commission may revoke the certification of a correctional officer in conjunction with disciplinary action taken under this subtitle. If a hearing board rescinds or modifies a disciplinary action against a correctional officer, the hearing board may reinstate the correctional officer’s certification with no further examination or condition.

An appeal from a decision made under § 10–910 of this subtitle shall be taken to the circuit court for the county in accordance with Maryland Rule 7–202. A party aggrieved by a decision of a court under this subtitle may appeal to the Appellate Court of Maryland.

On request, a correctional officer may have expunged from any file the record of a formal complaint made against the correctional officer if: the Intelligence and Investigative Division that investigated the complaint: exonerated the correctional officer of all charges in the complaint; or determined that the charges were unsustained or unfounded; or a hearing board acquitted the correctional officer, dismissed the action, or made a finding of not guilty. There is no time requirement for expungement under paragraph (1) of this subsection.

This subtitle does not prohibit emergency suspension with pay by a correctional officer of higher rank as designated by the appointing authority. The appointing authority may impose emergency suspension with pay if it appears that the action is in the best interest of the incarcerated individuals, the public, and the correctional facility. If the correctional officer is suspended with pay, the appointing authority may suspend the correctional powers of the correctional officer and reassign the correctional officer to restricted duties pending: a determination by a court with respect to a criminal violation; or a final determination by the hearing board or the Office of Administrative Hearings with respect to a correctional facility violation. A correctional officer who is suspended under this subsection is entitled to a prompt hearing. The appointing authority may impose an emergency suspension of correctional powers without pay if: a correctional officer is charged with a felony; a correctional officer is charged with a violation of § 9–415, § 9–416, or § 9–417 of the Criminal Law Article; or a correctional officer is charged with a violation of § 9–412 of the Criminal Law Article involving contraband that is: money or a money equivalent; or an item or substance intended to cause physical injury. A correctional officer who is suspended under paragraph (1) of this subsection is entitled to a prompt hearing, held no more than 90 days after the suspension. Except as provided in paragraph (4) of this subsection, a correctional officer who is suspended under paragraph (1) of this subsection and who is not convicted of the felony or misdemeanor for which the suspension was imposed shall have: the suspension rescinded; and any lost time, compensation, status, and benefits restored. Paragraph (3) of this subsection does not apply to a correctional officer who: resigns before the disposition of the criminal matter for which the suspension was imposed; or is no longer employed by the Department when a determination is made by a court with respect to the criminal matter for which the suspension was imposed.