Sheila M. Breck v. Maryland State Police, No. 13, September Term, 2016

 

STATE EMPLOYEE LAW — LAW ENFORCEMENT OFFICERS’ BILL OF 

RIGHTS — DEFINITION OF SECONDARY EMPLOYMENT — The Law 

Enforcement Officers’ Bill of Rights, codified as Maryland Public Safety Article Title 3, 

Subtitle 1, prevents law enforcement agencies from prohibiting “secondary employment” 

by law enforcement officers. Secondary employment for purposes of the Law Enforcement 

Officers’ Bill of Rights means off-duty employment and does not include on-duty 

overtime. Work in addition to the officer’s primary, full-time role that is performed under 

the supervision of the police department—even when MSP is reimbursed for that work by 

a third party—is on-duty overtime work, not secondary employment. 
IN THE COURT OF APPEALS 

OF MARYLAND 

No. 13 

September Term, 2016 

______________________________________ 

SHEILA M. BRECK 

v. 

MARYLAND STATE POLICE 

______________________________________ 

Barbera, C.J. 

Greene

Adkins

McDonald

Watts 

Hotten

Getty, 

JJ.

______________________________________ 

Opinion by Barbera, C.J.

______________________________________ 

Filed: March 27, 2017 

Circuit Court for Baltimore County

Case No. 03-C-14-7995

Argued: October 13, 2016
This case addresses the meaning of “secondary employment” as that phrase is used 

in the Law Enforcement Officers’ Bill of Rights (“LEOBR”), codified in Title 3, Subtitle 

1 of the Public Safety Article of the Maryland Code. See Md. Code Ann., Pub. Safety § 3-

101(b) (2003, 2011 Repl. Vol., 2016 Supp.).1 Under § 3-103(b), Maryland law 

enforcement agencies may not prohibit law enforcement officers from working secondary 

employment. Resolution of the dispute in the present case turns on what sort of work 

comes within the meaning of “secondary employment.” 

Petitioner in this case is Sheila Breck, formerly a sergeant employed by the 

Maryland State Police Department (“MSP”). In 2013, she began working overtime, on 

average three days a month, in a law enforcement capacity securing National Security 

Agency (“NSA”) facilities in Maryland, pursuant to an agreement between MSP and NSA. 

Ms. Breck’s work at NSA was in addition to the 40 hours per week during which she 

performed her primary duties at MSP. 

In March 2014, MSP, pursuant to a practice it had recently developed, informed Ms.

Breck that she could no longer work overtime at NSA. Ms. Breck brought a show cause 

action in the Circuit Court for Baltimore County, pursuant to § 3-105.2

 She alleged that 

 

1 Section 3-103(b) of the LEOBR provides: 

A law enforcement agency: 

(1) may not prohibit secondary employment by law enforcement officers; but 

(2) may adopt reasonable regulations that relate to secondary employment by 

law enforcement officers. 

Hereinafter, unless otherwise identified, all statutory references are to the LEOBR.

2

 Section 3-105(a) provides: “A law enforcement officer who is denied a right granted by 

[LEOBR] may apply to the circuit court of the county where the law enforcement officer 
2

MSP was violating § 3-103(b)(1) by prohibiting her from continuing to work at NSA. MSP

defended on the ground that troopers who work overtime at NSA are not engaged in 

“secondary employment,” as that term is used in § 3-103(b)(1), but rather, “on duty 

overtime”; consequently, MSP’s prohibiting Ms. Breck from working at NSA did not 

violate § 3-103(b)(1) and was not an unlawful punitive action. 

The circuit court dismissed the action and, on appeal, the Court of Special Appeals, 

essentially agreeing with MSP’s argument, affirmed the dismissal in an unreported opinion. 

Breck v. Maryland State Police, No. 1661, Sept. Term, 2014 (filed January 5, 2016). We 

agree with the Court of Special Appeals and affirm the judgment of that Court. 

I 

The Factual Context 

The present dispute has its roots in a disciplinary action brought against Ms. Breck, 

in early 2012, charging her with having filed a report containing false information. Her 

police powers were suspended pending disposition of that charge. In May and June 2012, 

a trial board conducted a hearing3

and in July 2012 issued written findings determining that 

she was “guilty” of the charge. Pursuant to § 3-109, Ms. Breck sought judicial review of 

 

is regularly employed for an order that directs the law enforcement agency to show cause 

why the right should not be granted.” 

3

 Section 3-107 provides that a law enforcement officer who is the subject of an 

interrogation or investigation resulting in a recommendation of some form of discipline has 

the right to a hearing on the issues before a trial board. If the trial board finally decides 

that the officer is guilty of one or more of the charges, the trial board may recommend the 

penalty it feels is appropriate. The chief of the law enforcement agency reviews the 

recommendation and issues a final order. See § 3-108. 
3

the trial board’s decision in the Circuit Court for Baltimore County. The circuit court did 

not disturb the decision of the trial board. Ms. Breck noted an appeal to the Court of Special 

Appeals, which, in an unreported opinion, ordered that the administrative determination be 

vacated and a new hearing be conducted because the principal witness’s testimony could 

not be located for inclusion in the appellate record.4

 Breck v. Maryland State Police, No. 

75, Sept. Term 2014 (filed January 22, 2015). 

Meanwhile, in 2013, MSP restored Ms. Breck’s police powers and, in July of that 

year, she began working an average of three days a month in an assignment at NSA. As 

later described at the hearing before the Circuit Court for Baltimore County in the present 

matter, Ms. Breck’s work at NSA was in addition to her regular 40-hour work week at 

MSP.

 On January 7, 2014, MSP management met with Ms. Breck. At that meeting, 

Lieutenant Colonel William Pallozzi handed Ms. Breck a letter, dated November 5, 2013, 

addressed to her and signed by Marcus L. Brown, Superintendent of MSP. The body of 

the letter states: 

 Due to recent changes in Maryland law, we have began [sic] the 

process of reevaluating staffing assignments for those troopers who, like 

yourself, have an investigative or hearing board finding that could be deemed 

to involve untruthfulness. This duty has been thrust upon us by changes in 

the rules governing discovery in criminal cases, specifically MD Rule, 4-263, 

which requires Assistant State’s Attorneys to disclose all impeachable 

material regardless of whether it is requested. A prior finding on a trooper’s 

 

4

 A new hearing on the administrative charge was scheduled for September 28, 2015. It 

is not clear from the record whether that hearing occurred. MSP informs us, however, that 

the administrative charge ultimately was resolved by agreement and Ms. Breck retired from 

MSP as of May 1, 2016. 
4

administrative record that could arguably involve untruthfulness and 

integrity falls into this category. 

 A recent Court of Appeals opinion, Fields v. State, 432 Md. 650 (July 

9, 2013), makes it clear that failure to disclose this information is grounds 

for reversal of criminal convictions. Fields involved a murder case in which 

the primary Baltimore City Detectives involved in the case had previously 

falsified time sheets. The Court reversed the murder conviction, holding that 

the fact that the detectives falsified time sheets should have been disclosed 

to the defense because it “would be probative of the detectives’ character for 

untruthfulness.” Fields, 432 Md. at 674-675. 

 What this means is that troopers such as yourself can now have the 

prior “untruthfulness” finding used against them every time they testify in 

court. While it is unclear what every State’s Attorney will do in this situation, 

many of them have decided they will not go forward with cases in which one 

of the primary investigators has this kind of finding on their record. 

 Regrettably, this situation requires us to place troopers with 

“untruthfulness” findings into positions in which they will not be called upon 

to testify in court. We must also instruct you to avoid situations that could 

result in requiring you to testify in court except for your obligations specified 

in PER 17.03 X (Neglect of Duty) or PER 13.01 C (Crimes witnessed by 

Troopers while engaged in Off-Duty Secondary Employment). If you are 

required to testify in Court, we will be obligated to inform the State’s 

Attorney’s Office of the finding on your record and the State’s Attorney’s 

Office will make a decision of how to proceed. 

 We realize that the finding on your record happened some time ago, 

but the recent changes in the law requires [sic] us to act now. We continue 

to value you as a member of the MSP family, but now we must have you 

make your contributions in a different manner. A member of the Senior Staff 

will meet with you in the near future to discuss this issue. 

At the time of the January 7, 2014, meeting, Ms. Breck was working in the Facilities 

Management Division of the MSP. Her duties in that Division did not include law 

enforcement. 

Following the January meeting, Ms. Breck continued to work overtime shifts at the 

NSA in a law enforcement role, providing security at that site. In March 2014, Ms. Breck’s 

direct supervisor, David Manning, informed her that, under the new policy (reflected in the 

letter), she could no longer wear her uniform at any location or portray herself as a police 
5

officer; she could not continue working in the law enforcement role at NSA or perform 

other work that might cause her to testify in court; and, though she could keep her vehicle, 

the emergency lights and siren would be removed. 

Ms. Breck was informed on July 2, 2014, that MSP would be investigating her 

conduct, pursuant to § 3-104.5 This investigation arose from a complaint accusing her of 

disobeying the Superintendent’s instructions in his letter delivered to Ms. Breck by Lt. Col. 

Pallozzi on January 7, 2014, by continuing to perform secondary employment for the NSA 

until she was told to stop by Mr. Manning on March 26, 2014. 

A Pertinent Amendment to the LEOBR 

In the Spring of 2014, the General Assembly enacted § 3-106.1, as an amendment 

to the LEOBR. Effective October 1, 2014, § 3-106.1 allows law enforcement agencies to 

maintain a list of officers who have untruthfulness findings on their record but prohibits 

punitive action against those officers based solely on their inclusion on the list. That 

section reads: 

(a) In general.

A law enforcement agency required by law to disclose information for use as 

impeachment or exculpatory evidence in a criminal case, solely for the 

purpose of satisfying the disclosure requirement, may maintain a list of law 

enforcement officers who have been found or alleged to have committed acts 

which bear on credibility, integrity, honesty, or other characteristics that 

would constitute exculpatory or impeachment evidence. 

(b) Punitive action against officers on list prohibited. 

A law enforcement agency may not, based solely on the fact that a law 

enforcement officer is included on the list maintained under subsection (a) 

 

5

 Section 3-104 sets forth the procedures a law enforcement agency is to follow when 

conducting an investigation or interrogation of a law enforcement officer concerning 

possible disciplinary action, demotion, or dismissal. 
6

of this section, take punitive action against the law enforcement officer, 

including: 

(1) demotion; 

(2) dismissal; 

(3) suspension without pay; or 

(4) reduction in pay.

(c) Notice to officers of name placed on list. 

A law enforcement agency that maintains a list of law enforcement officers 

under subsection (a) of this section shall provide timely notice to each law 

enforcement officer whose name has been placed on the list. 

The Present Legal Action 

 On July 25, 2014, Ms. Breck filed the present show cause action in the Circuit Court 

for Baltimore County. In the Complaint to Show Cause,6

 Ms. Breck alleged that MSP had 

violated §3-103(b) by prohibiting her to engage in such employment, resulting in the “loss 

of thousands of dollars of wages.” She sought in her prayer for relief an order directing 

MSP, in pertinent part, to show cause why she should not be afforded her right to perform 

secondary employment pursuant to § 3-203(b); and for entry of “a judgment of $50,000 in 

favor of her and against MSP.” MSP replied with a Response to the Complaint to Show 

Cause, arguing the Complaint should be dismissed because MSP never denied Ms. Breck 

a request for secondary employment; the LEOBR does not grant law enforcement officers 

a right to participate in or be assigned to an overtime assignment; and MSP was immune 

from suit except as provided in the Maryland Tort Claims Act, which Ms. Breck had not 

pursued. 

On October 6, 2014, the circuit court held a hearing on the Complaint. At the 

hearing, Ms. Breck asserted a new allegation that MSP had taken punitive action against 

 

6

 See supra, note 2. 
7

her, in violation of then recently-enacted § 3-106.1.7

Ms. Breck testified at the hearing that, although MSP prohibited her from working 

the law enforcement overtime opportunity at NSA, MSP did not prevent her from working 

off-duty for third parties. She pointed out that she was working at the time of the hearing 

as a private security guard at a McDonald’s restaurant. Ms. Breck testified that her work 

both at NSA and at the McDonald’s are forms of secondary employment.8

 She also 

testified that, at the conclusion of her January 7, 2014, meeting with Lt. Col. Pallozzi, he 

informed her that “nothing changes with you.” She interpreted those words to mean that 

she could continue her work at NSA.

Ms. Breck further testified that, on March 26, 2014, she received two telephone calls 

from her direct supervisor, David Manning. In the first call, Mr. Manning advised her, 

without explanation, that she “cannot work at NSA anymore.” In a later call that same day, 

Ms. Breck testified that Mr. Manning told her that “he believed that there was a complaint 

that occurred,” and she was no longer to wear her uniform, activate the lights on her police 

vehicle, or wear anything identifying her as a police officer. Ms. Breck also testified 

about her interpretation of Personnel Directive PER 13.01 (“Directive”). The six-page 

Directive, which was issued January 1, 2013, and revised on October 11, 2013, provides, 

in subsection .03: 

EXTRA-DUTY SECONDARY EMPLOYMENT (EDSE): employment that 

 

7

 MSP has not argued that Ms. Breck is foreclosed from raising a violation of § 3-106.1(b) 

based on conduct by MSP that occurred prior to the effective date of that provision. 

8

 MSP had no connection to Ms. Breck’s work at the third party site and has never 

challenged it as improper.
8

is supervised by the MSP which includes performing tasks such as escorting 

oversize and overweight vehicles, State Highway Administration projects 

and other reimbursable overtime projects when compensation is paid through 

the MSP.

OFF-DUTY SECONDARY EMPLOYMENT (ODSE): the participation in 

any activity where compensation is derived from any source other than the 

MSP including military reserve components and any form of selfemployment. 

SECONDARY EMPLOYMENT (ODSE): when used alone, includes both 

extra-duty secondary employment and off-duty secondary employment. 

Subsequent provisions of the Directive focus primarily on off-duty secondary employment, 

addressing such matters as: the procedure for obtaining approval for off-duty secondary 

employment; the procedure for handling crimes witnessed while working on off-duty 

secondary employment; the types of employment that will not be approved for off-duty 

secondary employment; limitations on the amount of overtime permitted in off-duty 

secondary employment and the amount permitted in extra-duty; and provisions attendant 

to the employee’s informing his commander of the employee’s termination of his 

secondary employment. Ms. Breck testified that she understood the work she performed 

at NSA to be off-duty secondary employment. 

MSP’s Director of Human Resources, Don Lewis, testified at the hearing as a 

witness for MSP. Mr. Lewis described the type of employment Ms. Breck had been 

performing at NSA as an example of an “on duty, reimbursable overtime project,” much 

like similar projects that MSP has with other state governmental agencies. Mr. Lewis gave 

the example of MSP’s arrangement with the State Highway Administration (“SHA”) to 

provide on-duty trooper escorts when needed. When troopers are assigned to such duty, 
9

over and above their regularly assigned duties, they are paid by MSP at an overtime rate, 

for which, in the case of the example Mr. Lewis provided, the SHA would then reimburse 

MSP. Mr. Lewis testified that the troopers, while engaged in such on-duty overtime work, 

“retain full immunity that’s provided to any police officer through their State employment.” 

 Mr. Lewis also testified to the details of MSP’s arrangement with NSA. MSP 

provides NSA with troopers in uniform who drive marked police vehicles. Troopers 

working the NSA detail are supervised by MSP personnel and continue to work their 

standard 40-hour week at MSP. MSP pays the troopers for their work at NSA at the 

respective trooper’s overtime rate. The additional money is added to the troopers’ regular 

MSP paychecks, attributed to a special accounting code for this type of work. MSP is then 

reimbursed by the NSA. 

 Mr. Lewis explained that on-duty overtime, like that outlined in the agreements 

between MSP and SHA and MSP and NSA, is “extra duty secondary employment.” A 

second type of duty, termed “off duty secondary employment”, refers to employment 

arrangements “between the trooper and a third party entity.” The trooper is not paid 

through the State police payroll and, while working in that off-duty capacity, is “required 

to act as a private citizen, unless there is . . . a witnessed serious crime, such as a felony.” 

Mr. Lewis added that troopers engaged in off-duty secondary employment are paid directly 

by the third party and are required to pursue a process that requires the approval of the 

trooper’s commander, in order to undertake such employment. In addition, “[t]he Troopers 

are permitted to drive their vehicles to and from the secondary employment,” as 

“[c]ontractually, all State Troopers have off duty use of their police cars. But they’re not 
10 

permitted to use it during their secondary employment and the police does require that it 

be parked in an unobtrusive location.” MSP permits troopers “to have their vest and 

firearm and agency-issued badge with them when they’re working these secondary 

employment projects,” but the troopers “are not permitted to wear any part of their 

uniform” or “identify themselves as Maryland State Troopers while they’re working the 

secondary employment, unless they witness a serious crime.” 

Following Mr. Lewis’s testimony, the court heard closing arguments, then issued 

its decision: 

[T]his record does not support any finding that there’s been any punitive 

action against Sgt. Breck. Sgt. Breck does have secondary employment, 

based on her own testimony. I do not find there’s been any violation of the 

Law Enforcement Officer[s’] Bill of Rights on this record. 

Sgt. Breck has not demonstrated to this Court on this record at this 

time that she’s entitled to any relief. 

 The Complaint to show cause is dismissed. 

The Court of Special Appeals affirmed the circuit court’s dismissal of the 

Complaint. The intermediate appellate court considered the meaning of secondary 

employment, as that phrase is used in § 3-103, and concluded: 

[S]econdary employment within the meaning of § 3-103 means off-duty 

secondary employment and does not include on-duty overtime, identified by 

MSP as extra-duty secondary employment. Secondary employment within 

the meaning of § 3-103 means employment directly by a third party, i.e., a 

party other than the agency for whom the employee primarily works. Extraduty secondary employment means employment by an officer performing 

other than his/her primary duties either for the MSP directly or pursuant to a 

contractual assignment to a third party after the officer has worked 40 hours 

performing his/her primary duties. The officer is paid overtime 

compensation by the MSP, and the MSP is reimbursed by the third party. . . 

.

The directive PER 13.01 is consistent with this conclusion in that, after 
11 

defining two types of secondary employment, the detailed portion of the 

directive addresses only off-duty secondary employment. We conclude that 

the MSP definitions are merely an internal reference to distinguish one type 

of employment from another. 

The Court of Special Appeals further held that MSP did not take unlawful punitive action 

against Ms. Breck in prohibiting her from working at the NSA, given the untruthfulness 

finding in her personnel record. 

Ms. Breck’s petition for writ of certiorari presents four questions, which we have 

condensed into two: 

Did the Court of Special Appeals err in holding that Ms. Breck’s work at 

NSA was on-duty overtime work, rather than secondary employment 

protected by § 3-103(b)? 

Did the Court of Special Appeals err in holding that MSP did not take 

punitive action in prohibiting Ms. Breck from working at NSA? 

We answer “no” to both questions. 

II

Standard of Review

The questions presented require us to construe and apply two provisions of the 

LEOBR §§ 3-103(b) and 3-106.1, to the undisputed facts of this case. Those questions are 

purely legal in nature; therefore, our review is de novo. Schisler v. State, 394 Md. 519, 

535 (2006). 

What is “secondary employment” as that term is employed in § 3-103(b)? 

The term “secondary employment” is not defined in the LEOBR and, insofar as our 

research discloses, no reported decision of this Court or the Court of Special Appeals has 
12 

addressed the meaning of this term or the scope of its application.9 We therefore must 

discern what the General Assembly intended by the words “secondary employment.” 

To that end, we turn first to the well-settled rules of statutory interpretation. “[T]he 

prime objective in construing statutes is to determine and implement the legislative intent.” 

Evans v. State, 396 Md. 256, 340-41 (2006). “Statutory construction begins with the plain 

language of the statute, and ordinary, popular understanding of the English language 

dictates interpretation of its terminology.” Kushell v. Dep't of Natural Res., 385 Md. 563, 

576 (2005). If the language used by the General Assembly is clear and unambiguous, we 

need go no further. At that point, “the inquiry as to legislative intent ends; we do not then 

need to resort to the various, and sometimes inconsistent, external rules of construction, for 

‘the Legislature is presumed to have meant what it said and said what it meant.’” The 

Arundel Corp. v. Marie, 383 Md. 489, 502 (2004) (quoting Toler v. Motor Vehicle 

Admin., 373 Md. 214, 220 (2003)). “If, however, the meaning of the plain language is 

ambiguous or unclear, we seek to discern legislative intent from surrounding 

circumstances, such as legislative history, prior case law, and the purposes upon which the 

statutory framework was based.” Lewis v. State, 348 Md. 648, 653 (1998). 

 We have noted that “secondary employment” is not among those terms that are 

 

9

 Maryland courts have addressed law enforcement agencies’ ability to regulate secondary 

employment. In every reported decision on the subject, however, the work at issue was 

clearly off-duty work performed directly for a third party and unconnected with agency 

management and operations. See, e.g., Fraternal Order of Police, Montgomery Cty. Lodge 

No. 35 v. Mehrling, 343 Md. 155 (1996) (officer worked as private security guard for an 

apartment complex); Howard Cty. Police Officers Ass’n v. Howard Cty., 126 Md. App. 

319 (1999) (officers worked in security-related function for a retailer). 
13 

defined in the LEOBR, see § 3-101 (“Definitions”), and, other than § 3-103(b) itself, no 

section of the LEOBR uses the term or hints at its meaning. All that we know from the 

plain language of § 3-103(b) is that law enforcement officers have a right to engage in 

secondary employment and that right is subject to reasonable regulation by the agency. 

Fraternal Order of Police, Montgomery Cty. Lodge No. 35 v. Mehrling, 343 Md. 155, 176 

(1996) (declaring that the right to secondary employment is clear from the plain language 

of § 3-103(b)(1) and it is “equally as clear” that law enforcement agencies have the right 

to control the extent and form of their officers’ secondary employment through “reasonable 

regulation”).

 The legislative history underlying the enactment of § 3-103(b) is sparse, but it is 

worth noting that the iteration of the secondary employment provision first proposed in 

1984 was concerned with conflicts of interest, a worry that would not be applicable to onduty overtime work, which is Department-controlled. See Committee Report System Bill 

Analysis, Senate Judicial Proceedings Committee, House Bill 915 (1984). The original 

version of the provision stated that secondary employment could be subject to reasonable 

regulation “as necessary to prohibit a conflict of interest in the performance of the officer’s 

official duties.” Id. That phrase appears to have been removed following a letter to the 

Chair of the House Judiciary Committee from the Maryland State Lodge, Inc. of the 

Fraternal Order of Police (“FOP”). The letter explained that, although the FOP supported 

a right in law to secondary employment, there was no need to restrain law enforcement 

agencies with the conflict of interest language, recommending instead that the modifier 

“reasonable” was sufficient to cabin agency regulations appropriately. The requested 
14 

amendment was adopted, yet there is no indication that the General Assembly, in making 

that change, had intended to ignore, among other matters of agency concern, the avoidance 

of conflicts of interest or other unwanted outcomes to the agency as the result of an 

employee’s engagement in secondary employment. See also Mehrling, 343 Md. at 174-

76 (reviewing the legislative history of what is now § 3-103(b)). 

MSP has not promulgated a formal regulation, set forth in the Code of Maryland 

Regulations (COMAR), that addresses secondary employment. Instead, the agency issued 

the Directive, which we outlined earlier in this opinion and was the subject of much 

discussion at the hearing before the circuit court.10

 The Directive distinguishes between 

what MSP considers extra-duty secondary employment—that which, at the direction of 

MSP exceeds the law enforcement officer’s normal assignment and over which the MSP 

has full control and authority—and off-duty employment directly with a third party. We 

conclude that only the latter is “secondary employment”, as that term is used in § 3-

103(b)(1), and therefore subject to reasonable regulation under § 3-103(b)(2). 

 

10 At oral argument, the Court questioned MSP’s counsel as to why the agency had not 

promulgated, in COMAR, a formal regulation dealing with secondary employment. 

Counsel replied that the subject matter is exempt from the formal procedural requirements 

of the Administrative Procedure Act, see § 10-101 et seq. of the State Government Article 

(“SG”) (“Administrative Procedure Act—Regulations”), because what is and is not 

secondary employment, and how it is to be regulated, relates solely to the internal 

management of MSP and its staff and, as such, does not fall within the ambit of a 

“regulation”, as defined by that subtitle. See SG § 10-101(h)(1) and (2) (2014 Repl. Vol., 

2015, 2016 Supp.). We agree. See Evans, 396 Md. at 348 (explaining that a matter that 

relates solely to the “internal management of the agency and does not affect public rights” 

is not governed by the requirements of the Administrative Procedure Act); see also Massey 

v. Sec’y, Dep’t of Pub. Safety & Corr. Servs., 389 Md. 496, 499 (2005) (same). 
15 

Review of the entirety of the Directive reflects MSP’s reasonable regulation of 

third-party employment. The regulations in large part concern the prevention of conflicts 

of interest, maintaining the integrity of the agency, and ensuring that its law enforcement 

officers’ third-party, secondary employment does not interfere with their effectiveness in 

their on-duty work. For example, sections 13.06D(1)(a), (d) and (g) of the Directive 

prohibit secondary employment that would bring discredit to MSP, employment that results 

from an officer using the prestige of his public office, and employment by an entity subject 

to the officer’s law enforcement authority. These portions of the Directive have meaning 

only if understood to apply to off-duty employment with a third party, not on-duty 

employment—whether it be regular or overtime—that is subject to MSP’s direct control 

and oversight. 

 In addition, interpreting “secondary employment” to include on-duty overtime work 

would undermine another key part of the LEOBR, found in § 3-102(c). This section 

provides: 

[The LEOBR] does not limit the authority of the chief [11] to regulate the 

competent and efficient operation and management of a law enforcement 

agency by any reasonable means including transfer and reassignment if: 

(1) that action is not punitive in nature; and 

(2) the chief determines that action to be in the best interests of the internal 

management of the law enforcement agency. 

The provision ensures that law enforcement leadership retains the flexibility and 

management discretion to run an agency that is responsible for a critical public service. 

 

11 Section 3-101(b) defines “chief” as “the head of a law enforcement agency.... includ[ing] 

the officer designated by the head of a law enforcement agency.” 
16 

Section 3-102(c) balances the procedural safeguards of the LEOBR with the practicalities 

of institutional management. And it clarifies that MSP may make any reasonable 

managerial decision for the benefit of the institution. 

This authority is limited by the rights granted to employees in the LEOBR and other 

statutes. We do not discern here, however, an unreasonable management decision 

subverting employee rights. MSP made a decision, based on this Court’s holding in Fields 

v. State, 432 Md. 650 (2013), and state prosecutors’ warning that they may not go forward 

on cases where a police officer witness is impeachable on veracity, that MSP would not 

place officers with impeachable records in front-line law enforcement positions. This 

statutory management authority would be undercut if “secondary employment,” as used in 

§ 3-103(b), included on-duty overtime. If that were the case, law enforcement agencies 

could implement a sensible duty assignment for an officer in her primary role, yet then be 

bound to place that officer in non-suitable work should she seek it as on-duty overtime. 

This absurd result cannot be what the legislature intended. In our task of statutory 

interpretation, we avoid any construction of a statute that would lead to “illogical, absurd, 

or anomalous results.” Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 122 (2014).

 Petitioner points out that “secondary employment” as used in the Directive includes 

both off-duty work for a third party and on-duty overtime, but MSP’s use of that term in 

an internal agency document is neither controlling nor persuasive here. By using 

“secondary employment” as a catch-all term in the Directive, MSP was likely dealing with 

confusion that could arise from the two different types of work at issue here that employees 

may perform in addition to their primary role. Because certain issues of concern to MSP 
17 

will be equally relevant for both types of work,12 it makes sense for the Directive’s

drafter(s) to have used “secondary employment” to pertain to certain circumstances within 

the Directive as inclusive of both. While it may have been wiser to use words that do not 

also have special meaning in the statute closely associated with the Directive, MSP’s use 

of those words in the Directive does not change the meaning of secondary employment, as 

that term is employed in § 3-103(b). 

 Given the statutory history and context, the case law consistently treating 

“secondary employment” as off-duty work for a third party, and the need for law 

enforcement leadership discretion to manage their human resources appropriately, we hold 

that for purposes of the LEOBR, secondary employment means off-duty work, arranged 

between the officer and a third party.13 Applying that construction to the present case, we 

further hold that MSP did not violate § 3-103(b)(1) by denying Ms. Breck the opportunity 

to engage in work at the NSA, because such work does not come within the ambit of 

“secondary employment”, as that term is used in that section of the LEOBR. 

 

12 For instance, one prohibition in the Directive prevents officers from taking a sick day 

excusing them from their primary duties, but then performing overtime or secondary work 

in the same day. Directive 13.06.A.3. If officers are sick, the State and MSP have an 

interest in the officers’ recovery before returning to work. Additionally, an officer who 

calls in sick but then reports for what could be higher-paid additional work raises concerns 

about the officer’s truthfulness. These considerations apply equally to both types of 

additional work. Another example from the Directive is § 13.06.F.5, which prohibits 

employees from working a maximum of 16 consecutive hours when combining their 

primary duties with additional work. This rule helps ensure that an employee has time to 

rest and sleep before reporting for work, a common sense rule that applies equally to onduty overtime work and off-duty work for a third party. 

13 We have no need in the present case to determine whether “self-employment” would 

also come within the meaning of secondary employment, as the term is used in § 3-103(b). 
18 

Was MSP’s direction that Ms. Breck would no longer be eligible for the on-duty lawenforcement related overtime assignment at NSA punitive action prohibited by § 3-

106.1(b)? 

 At the hearing before the circuit court, Ms. Breck argued that MSP’s directive that 

she no longer wear her uniform or operate an emergency vehicle with lights and siren, 

which rendered her ineligible to participate in overtime security-related work at NSA, was 

“punitive action” prohibited by § 3-106.1. For convenience, we restate the text of that 

section: 

(a) In general.

A law enforcement agency required by law to disclose information for use as 

impeachment or exculpatory evidence in a criminal case, solely for the 

purpose of satisfying the disclosure requirement, may maintain a list of law 

enforcement officers who have been found or alleged to have committed acts 

which bear on credibility, integrity, honesty, or other characteristics that 

would constitute exculpatory or impeachment evidence. 

(b) Punitive action against officers on list prohibited. 

A law enforcement agency may not, based solely on the fact that a law 

enforcement officer is included on the list maintained under subsection (a) 

of this section, take punitive action against the law enforcement officer, 

including: 

(1) demotion; 

(2) dismissal; 

(3) suspension without pay; or 

(4) reduction in pay.

(c) Notice to officers of name placed on list. 

A law enforcement agency that maintains a list of law enforcement officers 

under subsection (a) of this section shall provide timely notice to each law 

enforcement officer whose name has been placed on the list. 

 The record does not support Ms. Breck’s argument. No evidence was introduced in 

the circuit court that MSP has a “list” of officers with integrity violations or that Ms. Breck 

was included on it. 

 Beyond that, even if MSP had created such a list, and Ms. Breck’s name was on it, 
19 

we fail to see how MSP’s action here would have violated the statute through an unlawful 

“punitive action”, as Ms. Breck alleges. The action to which she refers is MSP informing 

her that, because of her integrity violation, she no longer was permitted to wear her uniform 

at any location or portray herself as a police officer, or use an emergency vehicle with lights 

and siren, rendering her ineligible to work in the overtime security assignment at NSA. 

In considering this issue, we again look to § 3-102. That section provides: 

[The LEOBR] does not limit the authority of the chief to regulate the 

competent and efficient operation and management of a law enforcement 

agency by any reasonable means including transfer and reassignment if: 

(1) that action is not punitive in nature; and 

(2) the chief determines that action to be in the best interests of the internal 

management of the law enforcement agency. 

We agree with the Court of Special Appeals in Chief, Baltimore County Police Dep’t v.

Marchsteiner that no bright-line rule exists that distinguishes actions that are “punitive” 

from those that are reasonable management decisions. 55 Md. App. 108 (1983). And, “[i]t 

is probably not feasible to fashion a simple litmus test for determining whether any given 

personnel action of a law-enforcement agency falls within the punitive category. The law 

in this area must be developed on a case-by-case basis, with due regard to the particular 

facts of each situation.” Id. at 117.

The courts have engaged repeatedly in this fact-based inquiry. In Marchsteiner, the 

petitioner was an officer assigned to the Youth Services Division of the Baltimore County 

Police Department. Id. at 110. After serving successfully in that role for several years, his 

performance deteriorated. He expressed a poor attitude and initiative, and was subject to 

multiple complaints that he used foul and abusive language when engaging with the youths 
20 

in his charge. After attempts at counseling, police department management involuntarily 

transferred Marchsteiner to patrol duty. Id. at 110-12. Marchsteiner claimed that was 

punitive action, taken without observing the procedural protections afforded under the 

LEOBR. The Court of Special Appeals held that the transfer was not punitive. Id. at 117. 

While complaints were made about Marchsteiner, there was no investigation or inquiry 

beginning an administrative process towards formal discipline. “The complaints were not 

the essential, motivating events” for the transfer, but rather part of the factual context used 

by the agency in “an effort to place Marchsteiner where his abilities could be used for the 

benefit of the law enforcement agency, rather than to its detriment.” Id. at 117. The 

transfer was a managerial decision intended “to enhance departmental effectiveness, and 

to improve Marchsteiner’s own performance, not to punish him.” Id. at 118. 

Similarly, in Montgomery County Dep’t of Police v. Lumpkin, 51 Md. App. 557 

(1982), the Court of Special Appeals held that an agency decision to transfer motorcycle 

unit officers to another division based on their productivity was a managerial action, not a 

punitive action. Id. at 569. In that case, the police department undertook an agency-wide 

resource assessment, the results of which showed an overinvestment in traffic squads. Id.

at 559-60. At the same time, the agency was confronting a rise in violent and serious street 

crime. Id. at 560. To address this resource assessment finding and the urgent issue of 

increasing crime, the agency made multiple officer transfers including the reassignment of 

several motorcycle officers to basic patrol. Id. at 561-62. One of the factors considered in 

reassignment was the relative productivity of motorcycle officers; more productive 

employees were more likely to keep their assignment, which included 5% hazard pay. Id. 
21 

The transferred officers challenged the action as punitive, but the Court of Special Appeals 

disagreed, holding that “the police department made a management decision to reduce the 

size of a particular specialized enforcement unit, the motorcycle division. The subsequent 

determination of the specific officers involved in the reduction and transfer was within the 

powers and authority granted the chief of police.” Id. at 567-68. 

Leibe v. Police Dep’t of the City of Annapolis, 57 Md. App. 317 (1984), also 

involved whether an agency action was punitive or managerial in nature. Leibe had been 

promoted to patrolman first class, subject to a probationary period, but over the months 

following his promotion was rated “below average” on some performance measures and 

was suspected of misusing sick leave. Id. at 319-20. After reviewing his performance 

during the probationary period, agency management rescinded his promotion. Leibe 

challenged the rescission as a punitive action taken without the procedural safeguards of 

the LEOBR. Id. at 320. The trial court disagreed, finding: 

[T]he actions of the [police department] in demoting [Leibe] 

were supervisory and administrative, not investigatory and punitive, in 

nature. The demotion was not punishment for any wrongdoing nor the result 

of a disciplinary type complaint and investigation. The demotion was an 

exercise of the Chief’s power and responsibility to effectively and efficiently 

operate the law enforcement agency. 

 

Id. (emphasis in original). The Court of Special Appeals affirmed, holding that the 

rescission of Leibe’s promotion was an allowable exercise of management discretion, not 

an investigation leading to potential disciplinary action. See id. at 323. The Court of 

Special Appeals explained that the procedural protections of the LEOBR only apply where 

an investigation potentially leading to punitive action has occurred, and the agency’s 
22 

routine managerial performance review and its administrative tracking of sick leave usage 

did not constitute an “investigation” in any usual sense of the term. Id. at 322-23. 

These cases, taken together, teach that the resolution of what constitutes a punitive 

action turns on the agency’s motivation for that action. If based on an investigation and 

hearing process addressing an alleged wrongful act, potentially leading to punishment for 

that act, the action is punitive. But if based in the pursuit of sensible agency administration 

in the best interests of the internal management, the action is managerial, not punitive. A 

useful marker in this inquiry is whether the agency has acted in a quasi-judicial role 

(performing an administrative investigation and hearing process) or in its native executive 

role (routine management of the human resources of the governmental unit to achieve 

maximum efficiency and effectiveness in its public mission). 

Nothing in the legislative history of § 3-106.1 suggests that “punitive action”, as 

that term is used in that section, means anything other than the meaning given to it in 

applying § 3-102. We note, too, that § 3-106.1 directly addresses the holding in Fields by 

allowing law enforcement agencies to create a list of officers with untruthfulness findings 

solely for the purpose of disclosing the information to defense counsel for impeachment or 

exculpatory purposes. See § 3-106.1(a). The purpose of the prohibition on punitive action 

appears to be prevention of any disciplinary action beyond that which is formally decided, 

and formally appealable, through the administrative discipline process. Forms of discipline 

tied solely to appearing on the list are prohibited. In essence, this rule prevents an officer 

from being punished twice for the same violation. This does not mean, however, that MSP

cannot make reasonable management decisions regarding work assignments based on the 
23 

abilities of the officer and the needs of the agency. 

Here, MSP’s motivation for not assigning Ms. Breck to front-line law enforcement 

activities was reasonable and reflected a common sense approach to the best use of MSP’s 

resources. State prosecutors, also reflecting on the best use of their resources, advised MSP

that they might not proceed with cases in which the police officer witness is impeachable 

for veracity. To put Ms. Breck or similarly-situated officers in front-line law enforcement 

positions could jeopardize otherwise viable criminal cases. MSP reacted to this missioncritical concern reasonably, by using such officers in desk jobs. “It was an effort to place 

[the police officer] where [his or her] abilities could be used for the benefit of the law 

enforcement agency, rather than to its detriment.” Marchsteiner, 55 Md. App. at 117. This 

was a decision made entirely in agency leadership’s executive role, separate from the prior 

quasi-judicial investigation and hearing into the allegations of untruthfulness against Ms. 

Breck. 

MSP’s decision to keep Ms. Breck from front-line law enforcement was a 

management decision prompted by MSP’s institutional needs and Ms. Breck’s finding of 

untruthfulness, not a decision intended to punish Ms. Breck for her acts already addressed 

in a separate process. Based on a reasonable management motive, it was not a punitive 

action.

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS AFFIRMED; 

COSTS TO BE PAID BY 

PETITIONER.