Maryland Attorney General Opinion 110OAG003

PUBLIC SAFETY

POLICE OFFICERS – POLICE ACCOUNTABILITY AND DISCIPLINE

– PREEMPTION – WHAT PROCEDURES APPLY TO A

COMPLAINT OF DISCRIMINATION AGAINST A COUNTY

POLICE OFFICER NOT INVOLVING A MEMBER OF THE

PUBLIC

February 13, 2025

The Honorable Steuart L. Pittman, Jr.

County Executive, Anne Arundel County

The Maryland Police Accountability Act of 2021 (the “Police

Accountability Act” or the “Act”) created a new framework for

handling complaints of police misconduct. See 2021 Md. Laws,

ch. 59 (codified as amended at Md. Code Ann., Pub. Safety (“PS”)

§§ 3-101 to 3-114). The Act establishes detailed procedures for

misconduct complaints involving a member of the public. But

some complaints originate within the law enforcement agency and

allege police misconduct that does not involve any member of the

public. Anne Arundel County requested an official opinion of the

Attorney General to clarify what procedures govern these “fully

internal” complaints.

The County’s opinion request specifically concerns one

category of fully internal complaints: complaints of discrimination

involving a police officer but not involving a member of the public.

The County has a general policy governing discrimination

complaint against County employees, but the County Police

Department has its own procedures for fully internal misconduct

complaints against officers. The County asked which policy would

govern a fully internal discrimination complaint against a County

police officer. As a general rule, we will issue official opinions of

the Attorney General only on substantial questions of State law

with ramifications beyond the specific local facts giving rise to the

request. Here, although the County’s question on its face addresses

local law, it requires us to consider legal questions of statewide

importance: the Act’s procedural requirements for fully internal

complaints and its relationship with local laws generally.

The County Attorney’s view is that, as a matter of County

law, the general County policy would govern, except where State

law or regulations require otherwise. The relationship between two

county policies adopted by different agencies of county

government is normally a question of local law, on which we would

defer to a local jurisdiction’s attorney. We thus accept the County

3

4 [110 Op. Att’y

Attorney’s conclusion for purposes of our analysis. Unless State

law requires otherwise, the County’s antidiscrimination policy

controls over the Police Department disciplinary policy to the

extent of a conflict.

Our opinion concerns that caveat: “unless State law requires

otherwise.” Under the doctrine of preemption, State law can

occupy a field of regulation to the exclusion of local law or override

local law in case of a conflict. The County’s question thus does

raise a substantial issue of State law: whether the Act or its

implementing regulations preempt all or part of the County

antidiscrimination policy (as it applies to police officers) or give

the Police Department policy priority over the general County

policy.

We first conclude that the Act and its regulations do not

occupy the field of police discipline. That is, local law can set

procedures for fully internal police discipline matters if that local

law does not conflict with State law. Nor does State law require

that a county police department’s disciplinary policy must always

supersede a countywide personnel law or policy. Although the

head of a law enforcement agency has power to promulgate

disciplinary procedures, those procedures remain subject to

otherwise applicable law, including local law. When a county

police department policy conflicts with a county government

personnel policy, and State law does not address the issue, county

attorneys will need to decide which policy controls as a matter of

local law.

The Act and regulations do, however, impose certain

requirements on the handling of fully internal complaints. These

requirements override the County’s antidiscrimination policy to the

extent of a conflict. We identify two areas where State law

overrides the County policy. First, the imposition of discipline on

an officer, even on a fully internal complaint, must follow the

uniform State disciplinary matrix promulgated by the Maryland

Police Training and Standards Commission (the “Commission”).

Second, an officer who disputes the proposed imposition of

discipline has a right to a hearing before a trial board under the

provisions of the Act. These two requirements must be observed

even when a County policy does not provide for them. Other than

these two items, however, we see no conflict between the County

policy and State law.

Gen. 3] 5

I

Background

A. The Police Accountability Act

The Act deals with “police misconduct,” defined as:

[A] pattern, practice, or conduct by a police

officer or law enforcement agency that

includes:

(1) depriving persons of rights protected by

the constitution or laws of the State or the

United States;

(2) a violation of a criminal statute; and

(3) a violation of law enforcement agency

standards and policies.

PS § 3-101(g). Conduct falling into any one of these three

categories qualifies as “police misconduct.” See Letter from

Sandra Benson Brantley, Counsel to the General Assembly, to Sen.

Michael A. Jackson (Apr. 18, 2023).

The General Assembly passed the Act in 2021, effective July

1, 2022. 2021 Md. Laws, ch. 59. The Act repealed the Law

Enforcement Officers’ Bill of Rights (“LEOBR”), which had

governed police discipline in Maryland since 1974. Id. § 2; see

also 1974 Md. Laws, ch. 722. LEOBR specified the steps a law

enforcement agency had to take before it could impose punitive

disciplinary measures on a police officer. 86 Opinions of the

Attorney General 94, 98-99 (2001). It not only preempted local

law but also controlled over any conflicting State statute. Md.

Code Ann., Pub. Safety § 3-102(a)-(b) (2018 Repl. Vol.).

The Act replaced LEOBR’s disciplinary system with a new

one incorporating more civilian oversight. See, e.g., House Floor

Proceedings No. 21A, 2021 Leg., Reg. Sess., at 1:09:21-1:09:40

(Mar. 10, 2021) (statement of Del. Atterbeary). Complaints of

police misconduct under the Act fall into one of three categories:

first, complaints filed by a member of the public; second,

complaints that originate within the law enforcement agency but

still involve a member of the public (for example, an officer or

supervisor might file a complaint alleging that another officer used

6 [110 Op. Att’y

excessive force during an arrest); and third, complaints that do not

involve a member of the public at all.

We will call complaints in this third category “fully internal”

complaints. Again, a complaint counts as “fully internal” if it does

not “involv[e] a member of the public.” See PS § 3-104(d). A fully

internal complaint might originate within an officer’s chain of

command, resembling employee discipline in the traditional sense.

For example, a supervisor might allege that an officer has been

insubordinate or absent without leave. Alternatively, one officer

could file a fully internal complaint against another, as in the case

of workplace discrimination.

Whether a complaint of misconduct involves a member of the

public might sometimes present a close question. But because the

County limited its question to misconduct not involving a member

of the public and did not ask us to draw that line, we will focus our

analysis on misconduct that clearly does not involve a member of

the public, such as where one officer makes an allegation of

discrimination or harassment against another officer or a

supervisor. There is no question that such discrimination by an

Anne Arundel County police officer is “police misconduct” under

the Act’s definition, because it violates department policy and,

depending on the facts, possibly State law as well. PS

§ 3-101(g)(1), (3) (defining “police misconduct” to include “a

violation of law enforcement agency standards and policies” and a

violation of State law); Anne Arundel County Police Dep’t, Index

Code 302, Rule 25 (2023) (prohibiting discrimination and

harassment); id. Rule 1 (prohibiting violations of County law,

including County personnel regulations, by officers); see also Md.

Code Ann., State Gov’t § 20-901 (prohibiting discrimination by

county employees).

We summarized the Act’s procedures for complaints

involving a member of the public in a recent opinion. 109 Opinions

of the Attorney General 61, 62-63 (2024). Such a complaint may

be filed either with the county’s police accountability board (by a

member of the public) or with the law enforcement agency itself

(by any individual). PS §§ 3-102(a)(3), 3-103(a). When a law

enforcement agency finishes its investigation of a complaint of

misconduct involving a member of the public, it forwards its

findings to an all-civilian administrative charging committee. PS

§ 3-104(d). The committee decides whether to bring

administrative charges and, if it does, recommends discipline

consistent with the uniform State disciplinary matrix. See PS

§ 3-104(e)(2), (3); COMAR 12.04.10.05. The head of the law

Gen. 3] 7

enforcement agency then makes an “offer of discipline” to the

officer that equals or exceeds the committee’s recommendation.

PS § 3-105(c). If the officer refuses the agency head’s offer, the

case proceeds to a three-member trial board. PS §§ 3-105(c)(4),

3-106. Collective bargaining may not vary these procedures. PS

§ 3-111.

Two aspects of this process, the disciplinary matrix and the

trial board, are especially relevant here. The disciplinary matrix is

a tool for determining the appropriate penalty for an instance of

misconduct: a table of disciplinary penalties ranging from formal

written counseling to termination. COMAR 12.04.10.04D. The

recommended penalty depends on the nature of the violation, the

officer’s history of similar violations, and any aggravating or

mitigating factors. See id.; see also COMAR 12.04.10.03B(2), (9)

(defining aggravating and mitigating factors). For complaints

involving a member of the public, when an administrative charging

committee administratively charges an officer with misconduct, the

committee chooses an appropriate penalty from the matrix. See

COMAR 12.04.10.05. The head of the agency then may offer the

same penalty or a more severe penalty, but not a lesser penalty, to

the officer. PS § 3-105(c)(2).

The second important component of the process for our

purposes is the trial board. If the officer refuses the offer of

discipline, they are entitled to a trial board hearing. PS

§ 3-105(c)(4). Although the agency has some flexibility to develop

its own “trial board process,” see PS § 3-106(a)(1), the process

must comply with the Act, which addresses important details of the

composition, powers, and hearing procedures of the board, see id.

(b)-(j). For local law enforcement agencies, a trial board must

consist of: “an actively serving or retired administrative law judge

or a retired judge of the District Court or a circuit court,” appointed

by the county’s chief executive; a civilian who is not a member of

an administrative charging committee, appointed by the county’s

police accountability board; and a police officer of equal rank to

the charged officer, appointed by the head of the law enforcement

agency. PS § 3-106(b)(1). The law enforcement agency has the

burden of proof, and the officer may be disciplined only for cause.

PS § 3-106(h), (i). The officer may appeal an adverse decision to

the circuit court. PS § 3-106(k), (l).

As these examples demonstrate, the Act specifies detailed

procedures for some aspects of the disciplinary process. However,

there are other important aspects of the police discipline process

that the Act does not directly address. For example, the Act offers

8 [110 Op. Att’y

few guidelines for how complaints should be investigated or

officers interrogated. See 109 Opinions of the Attorney General at

66. Most importantly, because the Act’s primary focus is the

administrative charging committee process, which is limited to

complaints involving members of the public, the Act says relatively

little, at least explicitly, about the handling of fully internal

complaints.

The Act authorizes the Commission to adopt implementing

regulations. PS § 3-114. The Commission’s regulations clarify

some aspects of disciplinary procedure that the Act leaves

unaddressed. For instance, the regulations clarify that the law

enforcement agency must generally investigate all complaints of

misconduct involving members of the public. COMAR

12.04.09.06B; see 109 Opinions of the Attorney General at 66, 71-

72.

Unlike LEOBR, the Act contains no provision expressly

preempting local law. In fact, the Commission’s implementing

regulations provide for local policy to govern fully internal

complaints: “The agency head of each law enforcement agency

shall develop the agency’s own procedures to process complaints

of misconduct that do not involve a member of the public.”

COMAR 12.04.09.01B. But, of course, local law and policy can

come from many sources, including the head of the local law

enforcement agency, the local County Council or Commissioners,

and other local executive branch agencies outside the police

department. What happens when more than one of these policies

appears to apply to a category of police misconduct cases? That

problem gave rise to Anne Arundel County’s question.

B. The Anne Arundel County Policies

Two potentially conflicting local policies might govern a fully

internal complaint of discrimination against an officer of the Anne

Arundel County Police Department. The first is the general Anne

Arundel County antidiscrimination policy that governs all county

employees (the “County policy”). Because county police officers

are employees of the county, this policy appears to apply to them.

The second policy is the disciplinary policy specific to the Police

Department, as promulgated by the County’s Chief of Police (the

“Police Department policy”).

Gen. 3] 9

1. The County Policy

County Policy K-01 sets forth the process for handling

discrimination and harassment complaints in Anne Arundel

County government. It applies to “all classified, exempt,

temporary, seasonal and contractual employees” of the County.

Anne Arundel County, Employee Relations Manual No. K-01, at 1

(2019) (“County Policy K-01”). Under the policy, “[a]n employee

who believes that he or she has been subject to harassment or

discrimination should immediately bring the behavior to the

attention of a supervisor, the Office of Personnel and/or the [Equal

Employment Opportunity (“EEO”)] Director.” Id. at 3.

Employees are encouraged to file a complaint with the Office of

Personnel and/or the EEO Director if they are uncomfortable filing

with their employing agency directly. Id. All complaints “will be

investigated” upon filing. Id. “The County will make a decision

as to who will investigate the alleged incident,” which may be the

Office of Personnel and/or the EEO Director rather than the

employing department. Id. at 3-4.1

Once the investigation is complete, “[t]he County will make

a determination and issue a report as to whether the allegations of

harassment or discrimination were substantiated.” Id. at 5. “If the

allegations are proved, the County will issue remedial action and

disciplinary action as appropriate, up to and including termination

of employment.” Id. The County does not have a precise

disciplinary matrix but instead follows a policy of “progressive

discipline” under which discipline generally begins with less

severe penalties and progresses to greater penalties only if the

violation is serious in nature or reflects a repeated pattern of

misconduct. See Anne Arundel County, Employee Relations

Manual No. F-01, at 1 (2024) (“County Policy F-01”).

If the County proposes to terminate an employee for

misconduct, including discrimination, the employee has a right to

a hearing before the appointing authority or their designee. Id. at

4. Suspension, demotion, or termination of classified employees

may be appealed to the County’s Personnel Officer, then the

County Personnel Board, and then the circuit court. Anne Arundel

County Charter § 521(a)(2), (b); Anne Arundel County, Employee

Relations Manual No. F-02 (2024) (“County Policy F-02”).

1

When the policy speaks of “the County” making certain decisions,

we understand this normally means the County’s Chief Administrative

Officer, although the County Executive can also exercise this authority.

See Memorandum from Gregory J. Swain, County Attorney, to Amal

Awad, Police Chief 1, 3 (July 22, 2024).

10 [110 Op. Att’y

Alternatively, the employee may request binding arbitration. See

Anne Arundel County Code § 6-4-113. An applicable collective

bargaining agreement might provide for different procedures. See

Anne Arundel County Code § 6-4-104(a).

2. The Police Department Policy

The Anne Arundel County Police Department’s policies,

promulgated by the Chief, cover all types of misconduct

complaints and generally track the Police Accountability Act. A

fully internal complaint may be submitted to a supervisor, to the

Internal Affairs Section, or through the Department’s public

complaints portal. Anne Arundel County Police Dep’t, Index Code

303.2, § III.A.2 (2023) (“Index Code 303.2”). The Department’s

Office of Professional Standards (which includes Internal Affairs)

oversees the investigation of complaints and may conduct the

investigation itself or delegate it to the officer’s supervisor. Anne

Arundel County Police Dep’t, Index Code 303.1, §§ II.A,

II.C, III.A (2023) (“Index Code 303.1”); Anne Arundel County

Police Dep’t, Index Code 303, § VI.B.3 (2023) (“Index Code

303”).

The investigating officer will make a recommendation on

whether the complaint should be sustained. Index Code 303.2,

§ VIII.B. If the complaint is sustained, either the Chief of Police

or the Commander of the Office of Professional Standards may

offer discipline to the officer in accordance with the disciplinary

matrix. Id.; see also Index Code 303.1, §§ III.B, IV.B. The officer

may accept the offered discipline, in which case the discipline is

imposed and the process ends, or instead may refuse the offered

discipline and request a trial board hearing. Index Code 303.2,

§ VIII.B, VIII.C.

II

Analysis

Anne Arundel County has asked which of two policies—the

County policy or the Police Department policy—would govern a

fully internal discrimination complaint against a County police

officer. The relationship between two local regulations or policies,

and more specifically the question of which one controls in the

event of a conflict, would ordinarily be a question of local law. We

do not usually opine on questions of local law, instead deferring to

the attorney for the local jurisdiction. See, e.g., 89 Opinions of the

Attorney General 76, 79 n.4 (2004). But we can and will consider

Gen. 3] 11

what requirements, if any, State law imposes on the resolution of

fully internal complaints of police misconduct.

The doctrine of preemption determines when State law

supersedes local law. There are three forms of preemption. First,

express preemption “occurs when a State statute explicitly

precludes local governments from making law in a certain area.”

108 Opinions of the Attorney General 81, 92 (2023). Second,

implied preemption precludes local governments from making law

when “the General Assembly has acted with such force that an

intent to occupy the entire field must be implied.” Id. (quoting

Board of County Comm’rs v. Perennial Solar, LLC, 464 Md. 610,

619 (2019)). Third, conflict preemption “occurs when a local law

directly conflicts with State law.” Id. Because the Act lacks an

express preemption provision, we will consider only implied and

conflict preemption.

The County Attorney concluded that, except as required by

State law, the County policy rather than the Police Department

policy governs fully internal discrimination complaints against

County police officers. Memorandum from Gregory J. Swain,

County Attorney, to Amal Awad, Police Chief 1, 5 (July 22, 2024)

(“Swain Memorandum”). The County Attorney relied on a recent

County Council enactment, Council Bill 21-24. Id. at 2-5. That

legislation requires “a claim of discrimination arising out of county

employment” to be “initiated, investigated, and resolved pursuant

to” the general County personnel law and the County employee

relations manual. Anne Arundel County Council Bill No. 21-24

(Apr. 24, 2024) (enacting County Code § 1-9-401(b)).2 We

therefore start from the baseline that the County policy rather than

the Police Department policy governs fully internal complaints of

discrimination against Anne Arundel County police officers.

2

To be clear, although we accept the County Attorney’s conclusion

of Anne Arundel County law for purposes of answering the County’s

question, we are not concluding that a policy adopted by the county

government necessarily always controls over a policy adopted by the

head of the law enforcement agency on matters of police discipline. The

relationship among local policies is a question for each jurisdiction’s

attorney to resolve by interpreting the local government’s charter (if

any), the local laws and ordinances that grant rulemaking authority, and

the relevant policies themselves. It is possible that in some jurisdictions,

the specific authority of a police chief to make rules for their department

may override the general authority of a county personnel agency to make

personnel regulations. But, according to the County Attorney, that is not

the case in Anne Arundel County. The analysis may also be different for

law enforcement agencies that are not county police departments. Infra

note 6.

12 [110 Op. Att’y

The question thus becomes: when, if ever, does State law

require a different result? We will consider three possible

scenarios. First, under the doctrine of implied preemption, State

law could occupy the field of police discipline to the exclusion of

any local law or policy. Second, State law could provide that a

police department’s disciplinary policy controls over a county’s

general personnel policy to the extent of a conflict. In that second

scenario, a local law requiring a different order of priority, like

Anne Arundel County’s Council Bill 21-24, would be preempted

by conflict. Third, even if application of the County policy is not

preempted across the board, particular features of that policy could

conflict with the Act or its regulations.

We examine each possibility in turn. We first conclude that

State law and regulations do not demonstrate an intent to occupy

the field of police discipline because they leave significant aspects

of the process unaddressed. Infra Part II.A. Second, we conclude

that the Act and regulations do not categorically elevate an internal

police department disciplinary policy above a County personnel

policy on the same topic. Infra Part II.B.1. Finally, we examine

the areas of potential conflict between the requirements of State

law and the County policy. We explain that the imposition of

discipline on a County police officer must follow the State

disciplinary matrix and afford the officer the right to a trial board

under the Act. But we otherwise identify no conflict between the

County policy and State law. Infra Part II.B.2.

A. Implied Preemption

Implied preemption, also known as field preemption, occurs

when the General Assembly intends to reserve an entire field of law

for itself. See, e.g., Perennial Solar, 464 Md. at 619. Because the

Police Accountability Act does not comprehensively cover the

entire field of police disciplinary procedures but instead leaves

significant areas unaddressed, our view is that the General

Assembly did not intend to preempt that entire field. This lack of

field preemption leaves local governments free to make law in the

area, assuming that the law neither exceeds the powers of the local

government nor conflicts with State law. We will discuss the

possibility of conflict with State law further below. Infra Part II.B.

“There is no particular formula for determining whether the

General Assembly intended to preempt an entire area.” Perennial

Solar, 464 Md. at 620. But “[t]he primary indicia of legislative

purpose to preempt an entire field of law is the comprehensiveness

with which the General Assembly has legislated in the field.” Id.

Gen. 3] 13

(alteration in original) (quoting Board of Child Care of Baltimore

Annual Conf. of the Methodist Church, Inc. v. Harker, 316 Md.

683, 696-97 (1989)).

Aside from the primary question of comprehensiveness, the

implied preemption analysis also considers certain “secondary

factors”:

1) whether local laws existed prior to the

enactment of state laws governing the same

subject matter, 2) whether the state laws

provide for pervasive administrative

regulation, 3) whether the local ordinance

regulates an area in which some local control

has traditionally been allowed, 4) whether the

state law expressly provides concurrent

legislative authority to local jurisdictions or

requires compliance with local ordinances, 5)

whether a state agency responsible for

administering and enforcing the state law has

recognized local authority to act in the field,

6) whether the particular aspect of the field

sought to be regulated by local government

has been addressed by state legislation, and 7)

whether a two-tiered regulatory process

existing if local laws were not preempted

would engender chaos and confusion.

Id. at 620-21 (quoting Allied Vending, Inc. v. City of Bowie, 332

Md. 279, 299-300 (1993)). Maryland courts do not mechanically

apply all seven of these factors in every case but will instead weigh

them as appropriate in relation to the primary question of

comprehensiveness. See, e.g., Montgomery County v. Complete

Lawn Care, Inc., 240 Md. App. 664, 693 (2019); see also Perennial

Solar, 464 Md. at 633-35; 98 Opinions of the Attorney General 60,

93-94 (2013).

In our view, the Police Accountability Act does not occupy

its field so comprehensively as to preclude all local lawmaking.

The Act specifies detailed rules on some subjects, like the

administrative charging process for public complaints of

misconduct, PS § 3-104; the composition of trial boards, PS

§ 3-106(b); and the rules for suspending officers accused of

misconduct, PS § 3-107. But the statute also “leave[s] gaps.” 98

Opinions of the Attorney General at 94. For example, it addresses

the investigation of complaints and interrogation of officers only

14 [110 Op. Att’y

briefly and indirectly, see 109 Opinions of the Attorney General at

66, in contrast to LEOBR, which had covered these subjects in

great detail, see, e.g., 72 Opinions of the Attorney General 246,

254-55 (1987). Most importantly for our purposes, the Act is silent

on most (but not all) questions regarding how fully internal

complaints should be handled. But see infra Part II.B.2.i

(explaining that the Act requires the use of the disciplinary matrix

and trial board process for fully internal complaints).

Far from evincing an intent to occupy the field, the Act

delegated important decisions about the discipline process to local

governments and/or local law enforcement agencies. For example,

it tasked localities to determine the membership of the county

police accountability boards and the details of each agency’s trial

board process. PS §§ 3-102(b)(1)(i)(1), 3-106(a)(1). It is true that

the General Assembly can carve out specified areas for a local

government to regulate while still preempting the field. See, e.g.,

Altadis U.S.A., Inc. v. Prince George’s County, 431 Md. 307, 317

(2013). But here we think these express delegations, viewed

alongside the gaps in the statutory scheme more generally, are

evidence of a broader intent not to preempt. The express

delegations are in areas where the General Assembly had otherwise

made specific rules, such as the function of the police

accountability boards and the composition and procedures of the

trial boards. Those delegations thus may have been intended to

provide some local authority even on these topics that the Act does

expressly address. Therefore, we cannot conclude that the absence

of an express delegation on other matters signifies an intent to

reserve them.

The Act’s omission of any express preemption language is

especially significant because LEOBR did have such language.

The older law had provided that “[a]ny local law is preempted by

the subject and material of this [statute].” Md. Code Ann., Pub.

Safety § 3-102(b) (2018 Repl. Vol.). The General Assembly knew

that the purpose of the Act was to replace LEOBR. See, e.g., H.B.

670, 2021 Leg., Reg. Sess. (Third Reader) (purpose paragraph);

Revised Fiscal & Policy Note, H.B. 670, 2021 Leg., Reg. Sess. at

1. We also assume the Legislature was aware of LEOBR’s major

provisions, because we presume it to be familiar with existing law

when it legislates. See, e.g., Criminal Injuries Compensation Bd.

v. Gould, 273 Md. 486, 498 (1975). Preemption of local law had

been a significant feature of LEOBR. See, e.g., Moats v. City of

Hagerstown, 324 Md. 519, 526-27 (1991). We also note that the

General Assembly in 2021 adopted the House’s police discipline

bill in preference to the Senate’s, which did include preemption

Gen. 3] 15

language. S.B. 627, 2021 Leg., Reg. Sess. (Senate Third Reader)

(proposed PS § 3-102). We infer that the General Assembly

deliberately chose not to include a preemption provision analogous

to LEOBR’s in the Police Accountability Act.

This omission in turn implies a legislative intent not to

preempt the field of police disciplinary procedures. The General

Assembly’s affirmative refusal to add an express preemption

provision to a legislative scheme is evidence that the scheme does

not impliedly preempt local law. For example, the General

Assembly’s rejection of an amendment that would have added

express preemption to a law can be evidence against implied

preemption, depending on the circumstances. See Complete Lawn

Care, 240 Md. App. at 698-99. More generally, our opinions have

noted that comparison of old and new regulations’ provisions on

local involvement is relevant to preemption analysis. 85 Opinions

of the Attorney General 271, 280 (2000). Thus, although the

General Assembly did not reject preemption on repeated up-or-

down votes as in Complete Lawn Care, there is still significant

evidence that the General Assembly affirmatively rejected express

preemption, which is important to the implied preemption analysis.

The legislative history of the Act further demonstrates an

intent to balance statewide uniformity with local control. Delegate

Atterbeary, the lead House sponsor, explained that the purpose of

the bill was to create one uniform disciplinary process for the entire

State. House Floor Proceedings No. 21A, 2021 Leg., Reg. Sess.,

at 1:32:00-1:32:45 (Mar. 10, 2021) (statement of Del. Atterbeary);

see also Letter from Sandra Benson Brantley, Counsel to the

General Assembly, to Del. Julian Ivey 3 (Apr. 21, 2023) (“Ivey

Letter”).

But, at the same time, legislators recognized that local

governments would determine certain important details like the

composition of the police accountability boards and the contours of

the trial board process. See, e.g., Senate Floor Proceedings No. 42,

2021 Leg., Reg. Sess., at 5:56:18-5:56:33, 6:21:00-6:22:00 (Apr. 7,

2021) (statements of Sens. Smith, Cassilly, and Eckardt); Voting

Session on H.B. 670 Before the Senate Judicial Proceedings

Comm., Part 3, at 11:09-11:20 (Mar. 30, 2021) (statement of Sen.

Smith) (suggesting a general understanding that issues not

addressed in the legislation would be left to localities to determine);

see also Letter from Sandra Benson Brantley, Counsel to the

General Assembly, to Del. Elizabeth Embry (May 23, 2024)

(recognizing that, “due to the silence of State law on the manner of

filling vacancies for” Baltimore City’s Police Accountability Board

16 [110 Op. Att’y

and Civilian Review Board, “the City Charter and Code would

apply”). In other words, it appears that the General Assembly

pursued uniformity by defining many aspects of the process in

State law, but did not pursue it to the extent of precluding all local

law on the same subject.

The “secondary factors” are also either inconclusive or weigh

against preemption:

1. Whether local laws previously existed on the subject. It is

true that local law generally did not exist in this area prior to the

Police Accountability Act, which would normally weigh in favor

of preemption. But because this absence of local law was the result

of LEOBR’s preemption provision, which the General Assembly

chose not to import into the Act, this factor holds little weight.

2. Whether the State laws provide for “pervasive

administrative regulation.” The Act does provide for

administrative regulation but without the level of detail held to

support preemption in earlier cases. Compare PS § 3-114, with,

e.g., Talbot County v. Skipper, 329 Md. 481, 489 (1993), and 85

Opinions of the Attorney General at 279.

3. Whether the local law regulates an area of traditional

local control. The local policy addresses an area where local

control has not traditionally been allowed—discipline of police

officers—but again, this was because of LEOBR, which has now

been repealed. And more broadly, the terms and conditions of local

government employment are a longstanding area of local control.

See, e.g., Md. Code Ann., Local Gov’t § 10-303.

4. Whether the State law provides for concurrent local

legislative authority. As discussed, the Act does expressly provide

concurrent legislative authority to local jurisdictions on some

subjects, although the express delegations are relatively few.

5. Whether the responsible State agency has recognized local

authority to act. The Commission’s regulations do respect the

ability of local governments to flesh out various aspects of the

police discipline process, subject to State law. See, e.g., COMAR

12.04.09.01B.

6. Whether the State law addresses the specific subject where

the locality has acted. The particular subject addressed here—the

process for handling fully internal complaints—is mostly left

Gen. 3] 17

unaddressed by the Act, with certain exceptions. See infra Part

II.B.2.i.

7. Whether local action in the area would create “chaos and

confusion” by establishing a two-tiered regulatory process.

Because the Act and regulations generally leave the development

of the fully internal complaint process to local governments,

recognizing local authority in this area would not lead to a “two-

tiered regulatory process” engendering “chaos and confusion.”

Allied Vending, 332 Md. at 300.

For all these reasons, we do not think that the Police

Accountability Act impliedly preempts the field of police

disciplinary procedures generally, or procedures for handling fully

internal complaints of police misconduct specifically.

The Commission’s implementing regulations also do not

occupy the field. In fact, we have expressed doubts that an

agency’s regulations can establish field preemption when the

governing statute does not. See 69 Opinions of the Attorney

General 183, 193 n.7 (1984). But even assuming field preemption

by regulation were possible, we do not think the Commission has

attempted to preempt the field here.

The Commission’s regulations on the police discipline

process, like the statute, are not comprehensive. They focus on

certain specific aspects of the process—the establishment of Police

Accountability Boards, COMAR 12.04.09.03, the establishment

and procedures of administrative charging committees for

complaints involving the public, COMAR 12.04.09.04-.07, and the

uniform disciplinary matrix, COMAR 12.04.10.01-.05. They also

incidentally and briefly address certain other topics, such as the

requirement to investigate complaints, though even then the focus

remains on complaints within an administrative charging

committee’s jurisdiction. See COMAR 12.04.09.06B. Finally, the

Commission’s regulations explicitly leave open the development

of procedures for fully internal complaints. COMAR

12.04.09.01B, .04B. We thus conclude that there is no field

preemption in this area either by statute or by regulation.

B. Conflict Preemption

Because State law does not occupy the field of police

discipline, local governments have some ability to make law or

policy in the area. This is not the end of the preemption analysis,

however.

18 [110 Op. Att’y

We still must consider conflict preemption: local law yields

when it conflicts with State law. Conflict preemption can take the

form of “verbal conflict,” when “local law would authorize

something State law prohibits or would prohibit something State

law expressly authorizes.” 108 Opinions of the Attorney General

at 92 (citing 98 Opinions of the Attorney General at 91). It

alternatively can take the form of “functional conflict” which arises

when there is “some element of irreconcilability or legal

inconsistency . . . such that both the State and local laws cannot be

applied together.” Id. Both State statutes and State regulations

may preempt local law by conflict. See, e.g., 68 Opinions of the

Attorney General 242, 246-47 & n.5 (1983); 89 Opinions of the

Attorney General 195, 203 (2004); see also 69 Opinions of the

Attorney General 183, 200 (1984) (noting that local law may not

conflict with State permit conditions).

To identify potential conflicts, we must first determine what

the State statute and regulations require or prohibit. The “cardinal

rule of statutory interpretation” is to “ascertain and effectuate the

General Assembly’s purpose and intent when it enacted the

statute.” E.g., Wheeling v. Selene Fin. LP, 473 Md. 356, 376

(2021). This analysis begins with the “normal, plain meaning” of

the language the General Assembly used, interpreted in the context

of the statutory scheme and the legislative purpose. E.g., id. at 376-

77. We may also consult other indicia of legislative intent, such as

legislative history, to confirm our reading of the text or to resolve

ambiguities. E.g., Blackstone v. Sharma, 461 Md. 87, 113-14

(2018). And we must give the statute “a reasonable interpretation”

that aligns “with common sense.” Wheeling, 473 Md. at 377

(quoting Lockshin v. Semsker, 412 Md. 257, 276 (2010)). The

same principles govern interpretation of regulations, see, e.g.,

Thanner Enters., LLC v. Baltimore County, 414 Md. 265, 277

(2010), though we must examine the intent of the promulgating

agency rather than the General Assembly, see, e.g., Kor-Ko Ltd. v.

Maryland Dep’t of Env’t, 451 Md. 401, 417-18 (2017) (quoting

Lockshin, 412 Md. at 275-76).

Before finding a conflict, however, we will attempt to

harmonize State and local enactments—to find a reading under

which they do not conflict, so that both can be given effect—as far

as we reasonably can. See, e.g., 88 Opinions of the Attorney

General 76, 85 (2003); see also Mayor & Council of Forest

Heights v. Frank, 291 Md. 331, 337 (1981) (applying the same

principle to the relationship between county and municipal

enactments).

Gen. 3] 19

As we will explain, the application of a County personnel

policy to police disciplinary matters does not categorically conflict

with State law. But certain specific aspects of Anne Arundel

County’s antidiscrimination policy do conflict with the Act and its

regulations: State law requires the use of the uniform disciplinary

matrix and the Act’s trial board process for all police discipline

matters. This means, in practice, that in those areas, police

discipline will follow the Police Department policy, which

incorporates those aspects of the Act, rather than the County policy.

1. Whether State Law Exempts the Police Discipline

Process from General County Personnel Rules

Under local law, the County’s antidiscrimination policy

supersedes the police department policy to the extent of a conflict.

But we must consider whether that order of priority conflicts with

State law. In particular, the Commission’s regulations provide that

“[t]he agency head of each law enforcement agency shall develop

the agency’s own procedures to process complaints of misconduct

that do not involve a member of the public.” COMAR

12.04.09.01B; see also COMAR 12.04.09.04B (“A law

enforcement agency shall establish written procedures for handling

complaints of police officer misconduct that do not involve

members of the public.”).

One might argue that, under these regulations, the procedures

developed by the Chief of Police control to the exclusion of any

other County law, because COMAR 12.04.09.01B expressly

provides that the agency head shall develop the law enforcement

agency’s “own procedures.” On this view, the State regulation

would preclude the application of any procedures to a fully internal

complaint of police misconduct other than the law enforcement

agency head’s in-house procedures.

But we do not read the Commission’s regulations that way. It

would be very unusual for a State regulation to grant a subordinate

officer of a county’s or municipality’s executive branch, whose

position is created by local law, the power to make rules

independent of the local legislative body or the head of the

executive branch. It would be equally unusual for a State

regulation to exempt a core department of County government, like

the police department, from otherwise applicable County law.

Such a regulation would clash with the common-sense

understanding of how an executive branch typically functions.

Normally, the chief executive can control the policies of executive

departments. Cf. 81 Opinions of the Attorney General 58, 60

20 [110 Op. Att’y

(1996) (observing that generally, the Governor can control the

exercise of the powers vested in the core departments of the State’s

executive branch). Of course, there are many exceptions to that

general rule; an agency can be made independent by law. Cf., e.g.,

Letter from Adam D. Snyder, Chief Counsel, Opinions & Advice,

to Sen. Paul G. Pinsky & Del. Anne R. Kaiser 18 (Sept. 16, 2016).

But we are not aware of any examples of a local police department,

that is, the primary general law enforcement agency established by

a local government, having that status, let alone a State law

conferring that status on a local law enforcement agency.3

Reading the Commission’s regulation to mean that the Chief

of Police’s policy always controls over local law would produce

incongruous results. Anne Arundel County itself illustrates those

incongruities. The Chief of Police is a subordinate officer in the

executive branch of the Anne Arundel County government. The

County Executive appoints the Chief, and both the County

Executive and the Chief Administrative Officer have supervisory

and management authority over her. See Anne Arundel County

Charter §§ 401, 405, 543.4 The County Executive, in turn, must

take care that the County Council’s enactments are faithfully

executed. See id. § 405(g). It would upend that structure to give

the Chief independent policymaking authority outside the County

Executive’s control or to make the Police Department exempt from

otherwise applicable County law.

At the very least, if the Commission intended to give police

chiefs the power to develop disciplinary procedures exclusive of

3

The Baltimore Police Department is a special case because until

recently it was considered a State agency for most if not all purposes.

See, e.g., Baltimore Police Dep’t v. Cherkes, 140 Md. App. 282, 303-04

(2001); see also 2021 Md. Laws, ch. 133 (converting the department into

a City agency contingent on the enactment of a City Charter

amendment). Our analysis here focuses on police departments, like the

Anne Arundel County Police Department, that are agencies of the local

government only.

4

The Charter does not explicitly state that the Chief serves at the

pleasure of the County Executive. But the Chief lacks a defined term of

office. See Anne Arundel County Charter § 543; see also 68 Opinions

of the Attorney General 315, 315-16 (1983) (noting that officers without

defined terms are presumed to serve at the appointing authority’s

pleasure). She also is not covered by the County’s merit system. See

Anne Arundel County Charter § 802(a)(3). Whether the Chief serves at

the County Executive’s pleasure is a question of local law, but assuming

she does, that would make it even more unusual for her to have

policymaking authority independent of the County Executive.

Gen. 3] 21

any other local law, we would have expected the Commission to

say so clearly. But the regulations do not clearly compel that

reading. They could also be read—and were more likely

intended—as merely clarifying that neither the Act nor the

Commission dictates the content of the procedures for fully internal

complaints and that each law enforcement agency can have its own

procedures. So understood, the regulation imposes a duty and

authority on the chief in each jurisdiction to develop those

procedures in the first instance but subject to otherwise applicable

law. That understanding aligns with how rulemaking at

administrative agencies normally works. The agency has power to

promulgate rules, but the rules must comply with other governing

law. See, e.g., Board of Liquor License Comm’rs v. Hollywood

Prods., Inc., 344 Md. 2, 11 (1996).

Some statements during the Commission’s drafting process

supported the idea that the agency head should be the one to

actually promulgate the governing procedures, with local

government superiors having only a consultative role. See, e.g.,

Maryland Police Training & Standards Comm’n, Mar. 2, 2022

Meeting, at 37:20-38:02 (statement of Joseph J. Gamble, Talbot

County Sheriff). One speaker even went further, suggesting that

chiefs and sheriffs alike should have independent policymaking

authority. See id. at 49:18-49:50 (statement of David Morris,

Maryland Chiefs of Police Ass’n).

But because of the variety of views expressed at the

Commission meeting on this issue, it is difficult to identify any

consensus. Other speakers indicated that the Commission would

not, or should not, disrupt the normal allocation of legislative

authority in local governments. For example, the chair of the

commission said that “[t]he autonomy” to develop procedures is

“still going to fall [on] the . . . local law enforcement agencies,

whether it’s the sheriffs themselves that come up with the process

or it’s the chief through his Council or Mayor [who] comes up with

the process.” Id. at 57:20-57:40 (statement of Troy Berry, Charles

County Sheriff and Commission Chair) (emphasis added). As

another speaker put it: “I don’t think there’s any reason or any

interest that the Commission would have to step on a locality’s

legislative authority.” Id. at 13:29-13:38 (statement of John

Fitzgerald, Chief of Police, Chevy Chase Village).5 We thus do not

5

The draft regulation originally contained an express reference to

disciplinary policy being made by or through a “local governing

authority,” and this reference was removed in the drafting process. But

it appears the main objection to the language was from sheriffs’ office

22 [110 Op. Att’y

see clear evidence of intent on the part of the Commission to

exempt local police chiefs’ procedures from otherwise applicable

local law.

What is more, there is no doubt that the agency’s process for

fully internal complaints must be consistent with all requirements

of the Act itself. For example, the internal process must use the

State disciplinary matrix. See infra Part II.B.2.i. Thus, the law

enforcement agency’s internal policy cannot possibly control over

all “higher law”—it must adhere to State law—and there is no way

to read the regulation’s text that would distinguish some categories

of “higher law” (State statutes) from others (County Council

enactments) and exempt the Police Department from the latter

only.

To the extent any doubt remains, we have an obligation to

reconcile State and local law to the extent there is a “reasonable

construction” that allows both to operate harmoniously. 88

Opinions of the Attorney General at 85-86 (quoting 1A Singer,

Statutes and Statutory Construction §30:5 (6th ed., 2002 rev.)).

Such a harmonizing construction exists here. Under COMAR

12.04.09.01B and .04B, each law enforcement agency must

develop procedures for handling fully internal complaints. But

these procedures must also comply with otherwise applicable local

law, just as the law enforcement agency must follow the directives

of the local legislature and chief executive in other cases. If, under

local law, a general law or policy of the local government would

apply to some category of fully internal complaints (or all of them),

and if the head of the law enforcement agency would not normally

have authority to deviate from that local law, the State regulations

do not confer that authority.6 This interpretation gives effect to

representatives who thought it would create confusion about whether

sheriffs would be subject to county law. See Maryland Police Training

& Standards Comm’n, Mar. 2, 2022 Meeting, at 33:00-40:11, 41:30-

46:30 (statements of various speakers); see also infra note 6. We do not

think the removal of this language signifies an intent to deprive county

legislatures or chief executives of authority over county police

department disciplinary matters.

6

We conclude only that the Commission’s regulations do not grant

law enforcement agency heads authority that they would otherwise lack

to develop disciplinary procedures independent of otherwise applicable

law. For some agencies, other law might grant the necessary rulemaking

authority or exempt the agency from local law. Sheriffs in particular are

independent State officers with common-law authority to make rules for

their personnel. See 84 Opinions of the Attorney General 158, 159

Gen. 3] 23

both the Commission’s regulations and an applicable local law’s

(here, the Anne Arundel County Charter’s) allocation of authority

in local government.

2. Whether Any Particular Procedures in the County

Policy Conflict with State Law

We have concluded that the Act and the Commission’s

regulations allow local law, promulgated by County authorities

other than the police chief, a place in the discipline process for fully

internal complaints. We have also accepted, for purposes of our

analysis, the County Attorney’s conclusion that the County policy

generally governs fully internal complaints of discrimination

against County police officers. We must now consider whether any

specific feature of the County policy conflicts with the Act or the

Commission’s regulations. Again, where possible, we will attempt

to harmonize the applicable enactments.

An opinion of our Office offers some guidance on

harmonizing laws that govern police misconduct. In 72 Opinions

of the Attorney General 246 (1987), we considered how to apply

the State Ethics Law’s investigatory and enforcement procedures

to officers of State law enforcement agencies consistent with

LEOBR. Although the opinion involved two State statutes,

LEOBR and the Ethics Law, it applied a conflict-preemption-like

analysis because LEOBR expressly provided that the statute

controlled over any conflicting State law. Md. Code Ann., Pub.

Safety § 3-102(a) (2018 Repl. Vol.). So even though LEOBR has

been repealed, the opinion’s analysis is still useful in evaluating

conflict preemption questions in the context of police discipline.

The 1987 opinion concluded that LEOBR did not divest the

Ethics Commission of its statutory authority to investigate ethics

complaints against police officers because there was no

“irreconcilable conflict” between the two statutes’ investigation

provisions. 72 Opinions of the Attorney General at 252-53. We

also concluded, however, that any Ethics Commission

investigation would need to comply with LEOBR’s restrictions. Id.

at 253. For example, Ethics Commission staff would need to

initiate an interrogation of an officer through the officer’s

employing agency, and Ethics Commission investigators could not

directly interrogate the officer. Id. at 255-56. The Ethics

(1999). Only “clear and unambiguous” legislation may abrogate that

authority. Id. at 162. As such, our opinion should not be construed as

addressing the extent to which deputy sheriffs are subject to county

personnel laws and policies.

24 [110 Op. Att’y

Commission also could not take enforcement action against the

officer itself but could forward its findings to the chief and

recommend that the chief do so, whereupon the chief had the option

to initiate LEOBR’s trial board process. Id. at 259-60. “This

construction allow[ed] effect to be given to the legislative purpose

of both statutes, avoid[ed] illogical and absurd results, and at the

same time preserve[d] the procedural safeguards granted to officers

by LEOBR.” Id. at 260. We will take a similar approach to

harmonizing the Police Accountability Act with the County’s

antidiscrimination policy.

We will first address those areas where State law requires a

different procedure than the County policy. We will then explain

why the County policy otherwise does not conflict with State law

and may be given effect.

i. Areas Where State Law Supersedes the County

Policy

1. The Disciplinary Matrix. The first area in which the Act

supersedes the County antidiscrimination policy is the use of the

disciplinary matrix. The County antidiscrimination policy does not

specify a particular penalty for discrimination. See County Policy

K-01 at 7. Under the general County employee discipline policy,

what disciplinary penalty to impose for misconduct is left to the

discretion of the appointing authority, subject to certain broad

guidelines like the notion of progressive discipline. Supra Part

I.B.1. In contrast, the Act requires the use of the Commission’s

disciplinary matrix to determine penalties for police misconduct.

Supra Part I.A. The Police Department policy requires use of the

disciplinary matrix in all cases. Supra Part I.B.2.

In considering whether the Act requires the use of the

disciplinary matrix for fully internal complaints, we read the

relevant provisions in the context of the statute as a whole. See,

e.g., Berry v. Queen, 469 Md. 674, 687 (2020) (quoting Brown v.

State, 454 Md. 546, 550-51 (2017)). The Act as a whole is

concerned predominantly with misconduct involving members of

the public. Section 3-102 of the Act requires each county to have

a police accountability board whose purpose is to provide public

oversight of law enforcement in the county, including appointing

the civilian members of charging committees and trial boards,

receiving misconduct complaints from the public, and reviewing

disciplinary matters considered by the administrative charging

committees, which have jurisdiction over misconduct involving the

public. Section 3-103 empowers an “individual” to file a complaint

Gen. 3] 25

of misconduct with a law enforcement agency, though as we will

discuss below, see infra Part II.B.2.ii.1, this provision may also be

concerned with allegations of misconduct involving the public.

Section 3-104 governs the administrative charging committee

process, which applies only to allegations of misconduct involving

the public. Section 3-105’s provision for the offer of discipline by

the chief assumes that the chief is acting on administrative charges

initiated by the administrative charging committee. See PS

§ 3-105(c). Section 3-107’s provision on temporary suspension of

officers applies “[p]ending an investigatory, administrative

charging committee, and trial board process” and allows an officer

suspended without pay to receive back pay if the administrative

charging committee decides not to issue charges. See PS

§ 3-107(a). Section 3-108 requires law enforcement agencies to

have a victims’ rights advocate and a case tracking database so that

members of the public can be informed about the progress of

disciplinary cases in which they may be interested. And § 3-113,

which governs the timing of review of complaints, deals only with

the review of complaints from members of the public that are under

consideration by an administrative charging committee. The Act,

then, is mostly focused on the administrative charging committee

process, which is in turn limited to complaints of misconduct

involving the public.

The legislative history of the Act also demonstrates this focus

on police misconduct involving the public. The original impetus

behind the General Assembly’s 2021 police reform efforts was the

murder of George Floyd and similar incidents where members of

the public were injured or killed by police officers. See 107

Opinions of the Attorney General 33, 41 (2022). The Act, in

particular, was motivated by the desire to reform police discipline

in order to prevent further such incidents in Maryland,7 to restore

trust between the public and law enforcement,8 and to provide

greater public oversight of law enforcement.9 That is to say, the

7

See, e.g., Senate Floor Proceedings No. 38A, 2021 Leg., Reg. Sess.,

at 2:34:30-2:39:55 (Apr. 1, 2021) (statement of Sen. Carter); Senate

Floor Proceedings No. 45, 2021 Leg., Reg. Sess., at 2:10:00-2:10:45

(Apr. 10, 2021) (statement of Sen. Ellis).

8

See, e.g., Senate Floor Proceedings No. 38A, 2021 Leg., Reg. Sess.,

at 2:07:33-2:12:40 (Apr. 1, 2021) (statement of Sen. Augustine); Senate

Floor Proceedings No. 45, 2021 Leg., Reg. Sess., at 2:24:39-2:25:02

(Apr. 10, 2021) (statement of Sen. Smith).

9

See, e.g., House Floor Proceedings No. 21A, 2021 Leg., Reg. Sess.,

at 1:09:21-1:09:35 (Mar. 10, 2021) (statement of Del. Atterbeary).

26 [110 Op. Att’y

relationship between law enforcement agencies and the public was

the Legislature’s main focus.

Statements by sponsors and others with knowledge of the bill

further support the idea that, with certain exceptions, the Act’s

procedures were expected to govern complaints of misconduct

involving the public. For example, the chair of the Senate Judicial

Proceedings Committee explained on the Senate floor that “this

process that we’ve set up is generally . . . from the PAB to the

charging committee, that’s for public [complaints].” Senate Floor

Proceedings No. 42, 2021 Leg., Reg. Sess., at 6:03:30-6:03:38

(Apr. 7, 2021) (statement of Sen. Smith). The counsel to the

Speaker, asked by a legislator whether the bill’s process was “just

for public complaints,” told a House subcommittee that it was, and

that “the internal stuff to the police department, insubordination,

showing up late, all of that stuff will still be handled internally.”

Work Session on H.B. 670 Before the House Judiciary Comm., Pub.

Safety Subcomm., 2021 Leg., Reg. Sess., at 1:21:16-1:21:46 (Feb.

26, 2021) (statement of Matthew Jackson, counsel to the Speaker).

And the chair of the House Judiciary Committee asked the House

to reject a floor amendment that would have applied the bill’s

procedures to internal complaints, without questioning the

amendment sponsor’s suggestion that, absent the amendment, the

bill would not cover such complaints. See House Floor

Proceedings No. 21A, 2021 Leg., Reg. Sess., at 4:08:22-4:11:24

(Mar. 10, 2021) (statements of Dels. Kipke and Clippinger). The

House followed the Chair’s recommendation and rejected the floor

amendment. Id. at 4:11:28-4:11:58.

It thus appears that the Legislature understood that, for the

most part, the Act as enacted in 2021 did not address the process

for handling fully internal misconduct complaints. As a result,

given our mandate to construe statutory provisions in light of the

broader statutory scheme, we will look for relatively clear evidence

of legislative intent before we conclude that a particular provision

of the Act was intended to have broader application.

On the specific question of applicability of the disciplinary

matrix, however, we do see the necessary evidence of intent to

require application of the matrix to fully internal complaints as well

as complaints involving the public. In 2022, the year after enacting

the Act, the General Assembly enacted further legislation to clarify

the applicability of certain provisions. 2022 Md. Laws, ch. 141.

The amendment provided that the administrative charging

committee’s jurisdiction would cover complaints “involving a

member of the public and a police officer, regardless of whether

Gen. 3] 27

the complaint originated from within the law enforcement agency

or from an external source.” Id. (amending PS § 3-104(d)). The

new legislation then added still broader language to govern the

coverage of the disciplinary matrix: each agency would be

required to adopt the matrix “for all matters that may result in

discipline of a police officer.” Id. (amending PS § 3-105(b)).

The language of this latter amendment is clear. The

disciplinary matrix applies to “all matters that may result in

discipline,” regardless of whether a member of the public is

involved. The contrast between the amendment to § 3-104(d),

which limited the charging committee’s jurisdiction to complaints

“involving a member of the public,” and the amendment to

§ 3-105(b), which included no such limiting language, is also

significant. “[W]hen a legislature uses different words . . . it

usually intends different things.” E.g., Toler v. Motor Vehicle

Admin., 373 Md. 214, 223 (2003).

The 2022 legislation’s purpose paragraph aligns with this

understanding as well. Among the 2022 bill’s stated purposes was

“specifying that [the uniform] disciplinary matrix applies to all

complaints of police misconduct.” 2022 Md. Laws, ch. 141

(purpose paragraph). The Commission seems to share this

understanding that the disciplinary matrix covers fully internal

complaints, and the matrix itself reflects that understanding. It

covers (for instance) minor damage to a police vehicle, attire and

grooming violations, and tardiness, all of which would most likely

only be the subject of a fully internal complaint. COMAR

12.04.10.04D(8)(c); Commission, Statewide Police Disciplinary

Matrix Resource Guide 6 (2022). For all these reasons, we agree

with the County Attorney’s conclusion that the Act, as amended,

requires that the disciplinary matrix apply to fully internal

complaints of discrimination against police officers. Swain

Memorandum at 5.

2. The Trial Board. The Act and the County policy also

provide for different processes in the case where the employee

challenges the proposed discipline. Under the County policy, more

severe sanctions like demotion, suspension, and termination may

be appealed by a multi-step process through the County personnel

office and then to circuit court. Supra Part I.B.1. There is, by

default, no appeal process for lesser sanctions, although a collective

bargaining agreement may provide a different grievance process

for a particular group of employees. See County Policy F-02, at 1.

The Act gives an officer who refuses the agency head’s proposed

discipline (of whatever severity) the right to a hearing before a

28 [110 Op. Att’y

three-member trial board, composed as the Act directs, and from

there to circuit court. PS §§ 3-105(c)(4), 3-106. The Police

Department policy provides for a trial board in all disciplinary

matters. Supra Part I.B.2.

We again agree with the County Attorney that the trial board

process applies to fully internal complaints of misconduct against

police officers. Swain Memorandum at 5. At least one circuit court

has reached the same conclusion. Opinion and Order, Handler v.

City of Brunswick, No. C-10-CV-24-000331 (Frederick County

Cir. Ct. Aug. 30, 2024). Under the Act as originally enacted in

2021, the applicability of the trial board process to fully internal

complaints was less clear. As we have explained, the Legislature’s

main focus in 2021 was on complaints involving the public.

Again, however, the 2022 amendment clarified matters. In

particular, the Legislature specifically inserted the word “all” into

PS § 3-106(a)(1), such that the provision now says that “each law

enforcement agency shall establish a trial board process . . . to

adjudicate all matters for which a police officer is subject to

discipline.” 2022 Md. Laws, ch. 141 (emphasis added). According

to the bill title, the purpose of this change was to “specif[y] that the

purpose of [the] trial board process is to adjudicate all internal and

external matters for which a police officer is subject to discipline.”

2022 Md. Laws, ch. 141 (purpose paragraph). As mentioned

above, the same legislation applied the administrative charging

committee process to “complaint[s] of police misconduct involving

a member of the public and a police officer.” 2022 Md. Laws, ch.

141 (amending PS § 3-104(d)). Thus, if the General Assembly had

wanted to establish a narrower scope for the trial board process—

narrower than the broad language, “all matters,” would otherwise

indicate—it knew how to do so.

The legislative history of the 2022 amendment confirms our

conclusion. A representative of the Maryland Sheriffs’ Association

told the House Judiciary Committee that the bill would apply the

trial board process to internal complaints, including complaints by

one officer against another. Hearing on S.B. 389 Before the House

Judiciary Comm., 2022 Leg., Reg. Sess., at 14:00-16:30 (Apr. 8,

2022) (statements of Darren Popkin, Montgomery County Sheriff);

see also Senate Floor Proceedings No. 56, 2022 Leg., Reg. Sess.,

at 1:19:52-1:22:23 (Mar. 29, 2022) (statements of Sens. Kramer

and Smith) (committee chair assuming that the trial board process

would apply to all misconduct allegations, including minor uniform

Gen. 3] 29

violations).10 The legislative history is thus consistent with the text.

The General Assembly meant the trial board process to govern all

disciplinary matters involving police officers. The Act preempts

the County policy to the extent that it mandates a different process.

ii. Areas Where the County Policy Is Not Preempted

Apart from the requirement to use the disciplinary matrix to

determine disciplinary penalties, and the right of an officer who

refuses discipline to request a trial board under PS § 3-106, there

are several other areas where the Police Department policy differs

from the County policy. First, the County policy allows complaints

of discrimination or harassment to be filed with the County’s

personnel office or equal employment opportunity office, County

Policy K-01 at 3, whereas the Police Department policy requires

fully internal complaints of police misconduct to be filed with the

Department, supra Part I.B.2. Second, the County policy allows

the County personnel office or equal employment opportunity

office to investigate complaints, including complaints originally

filed with the Police Department, County Policy K-01 at 3-4, while

the Department policy provides that the Department will

investigate all internal allegations of police misconduct, supra Part

I.B.2. Finally, the County policy allows County officials outside

the Department to decide that there is sufficient evidence of

misconduct to initiate formal charges, and to determine the initial

offer of discipline, County Policy K-01 at 7, whereas the

Department policy vests this authority solely in the Chief or her

designee, supra Part I.B.2. The question is whether any of these

aspects of the County policy conflict with the Act or its

implementing regulations.

We conclude that none of these aspects of the County policy

conflict with State law because both the Act and the implementing

regulations are silent on all three of these questions: where fully

internal complaints may be filed; who may, or must, investigate

10

The 2022 clarifying amendments to the Act originally passed the

Senate as part of S.B. 389 and were heard by the House Judiciary

Committee under that bill number. S.B. 389, 2022 Leg., Reg. Sess.

(Senate Third Reader). The House committee took no action on S.B. 389

but instead amended the relevant provisions into S.B. 763, a previously

unrelated bill that had already passed the Senate, in place of S.B. 763’s

original content. Amend. No. 843225/1, S.B. 763, 2022 Leg., Reg. Sess.

(House Judiciary Comm.). After a conference committee restored some

of the original S.B. 763, the amended bill passed both chambers.

Conference Comm. Report 853327/1, S.B. 763, 2022 Leg., Reg. Sess.;

2022 Md. Laws, ch. 141.

30 [110 Op. Att’y

fully internal complaints; and who may initiate disciplinary charges

and make the initial offer of discipline when there is a fully internal

complaint of misconduct. Although LEOBR addressed some of

these issues, there is no question that the General Assembly in 2021

intended to repeal LEOBR in its entirety. And when the General

Assembly chose not to import some aspect of LEOBR into the new

Act, we presume, absent contrary evidence, that the omission was

intentional. See supra Part II.A.

As we have explained, the predominant focus of the Act, as

enacted in 2021, is on complaints of misconduct involving

members of the public. And although the 2022 amendments

clarified that certain provisions of the Act extend beyond public

complaints, those amendments were limited in scope to particular

aspects of the process, namely the trial board and disciplinary

matrix. See 2022 Md. Laws, ch. 141; supra Part II.B.2.i. While

the bill also made changes to the administrative charging

committee process, it did not expand that process to cover fully

internal complaints. 2022 Md. Laws, ch. 141 (amending PS

§ 3-104(d)). Because the General Assembly, in enacting the 2022

amendments, extended only certain limited provisions of the Act to

apply to fully internal complaints, there is support for an inference

that, in other areas not addressed by the 2022 amendments, the

General Assembly understood that other aspects of the process

would not govern fully internal complaints. That understanding

also aligns with the legislative history of the original 2021 bill.

Supra Part II.B.2.i.

This is not to say that explicit language is always required for

us to conclude that some other aspect of the Act’s process, aside

from the disciplinary matrix and trial board provisions, governs

fully internal complaints. But some relatively clear evidence of

legislative intent, like the language in § 3-105(b) and § 3-106(a)

discussed in the previous section, is necessary before we will

conclude that the Legislature intended a particular provision of the

Act to have broader application.

The Commission’s regulations, when read as a whole, show a

similar focus on misconduct involving the public. The Act’s

implementing regulations span two chapters. The first chapter

covers the disciplinary process generally. Its purpose provision

states that the chapter “establishes a civilian process to receive and

process allegations of police officer misconduct involving a

member of the public.” COMAR 12.04.09.01A. This chapter,

then, is focused on complaints involving the public. Its only

reference to internal complaints is to require each agency to

Gen. 3] 31

develop its own procedures for them. See supra Part II.B.1. The

other chapter, COMAR 12.04.10, establishes the disciplinary

matrix along with procedures for applying the matrix in particular

cases. Chapter 10 does not have limiting language akin to Chapter

09’s purpose provision. But while the matrix itself applies to all

misconduct complaints, supra Part II.B.2.i.1, at least some of the

procedural provisions of Chapter 10 assume a complaint that is

proceeding through the administrative charging committee

process. See, e.g., COMAR 12.04.10.05B-C.

During the regulatory drafting process, the Commission

initially assumed that both the disciplinary procedures of the Act

and the disciplinary matrix would apply only to misconduct

involving the public. See Maryland Police Training & Standards

Comm’n, Feb. 16, 2022 Meeting, at 3:05:03-3:05:20, 3:18:20-

3:19:47 (adopting motion to construe the Act as governing only

public complaints); id., Mar. 2, 2022 Meeting, at 1:23:02-1:36:13

(same for disciplinary matrix). The 2022 amendments to the Act,

which passed while the Commission was still working on its

regulations, required that the matrix itself apply to all complaints.

Supra Part II.B.2.i.1. But, as we have discussed, the legislative

amendments did not extend to all aspects of the disciplinary

process. And we see no indication in the Commission’s

deliberations that the Commission intended to expand the scope of

its regulations on subjects other than the applicability of the matrix

itself. Consistent with our treatment of the Act, then, we will look

for evidence of regulatory intent to apply a particular provision of

the Commission’s regulations to fully internal complaints before

we conclude that the provision so applies.

Thus, in areas where neither the Act nor the regulations

establish a procedural rule applicable to fully internal complaints,

we start with the presumption that the handling of such complaints

is left to local law. The Anne Arundel County Police Department

is a department of county government like any other, and police

officers are county employees. Absent State law requiring

different treatment, a charter county has authority over personnel

matters for its own employees. See Md. Code Ann., Local Gov’t

§ 10-303; Anastasi v. Montgomery County, 123 Md. App. 472, 490

(1998). In some jurisdictions, as a matter of local law, a police-

department-specific policy may control over the personnel policies

for local employees generally. Supra note 2. But that is not the

case for Anne Arundel County, at least for claims of discrimination

or harassment covered by the County policy. See Swain

Memorandum at 1. And as we will explain, in the three areas

discussed below, namely the filing of complaints, investigations,

32 [110 Op. Att’y

and initiation of charges, we have identified nothing in State law

that conflicts with the County policy. The County thus may apply

the County policy to fully internal complaints of discrimination

against its police officers.

1. Where Complaints May Be Filed. The Act has two

provisions on filing complaints. First, the county’s police

accountability board shall “receive complaints of police

misconduct filed by members of the public.” PS § 3-102(a)(3).

Second, “[a]n individual may file a complaint of police misconduct

with the law enforcement agency that employs the police officer

who is the subject of the complaint.” PS § 3-103(a). The use of

the different terms “member[] of the public” in § 3-102(a)(3), and

“individual” in § 3-103(a), suggests that the General Assembly

intended § 3-103(a) to have broader scope, potentially including

“individuals” who are not “members of the public,” such as other

police officers. See Toler, 373 Md. at 223.

But recall that a police officer can file a complaint of

misconduct involving a member of the public, such as a complaint

that another officer used excessive force on an arrestee. Those

complaints go through the administrative charging committee

process. PS § 3-104(d). The use of “individual” in § 3-103(a) may

have been intended simply to encompass that category of

complaints: complaints by officers that do involve members of the

public. Perhaps more tellingly, § 3-103(a) is framed in permissive

rather than restrictive terms. See PS § 3-103(a) (“An individual

may file a complaint . . . .” (emphasis added)). That phrasing

suggests that the language was merely intended as an authorization

for complaints to be filed with the law enforcement agency, not a

requirement that they must be. Based on these considerations,

together with the Act’s overall focus on complaints of misconduct

involving the public, we do not think that § 3-103(a) (or any other

provision of the Act) reflects a legislative intent to restrict where

fully internal complaints may be filed. Local law or policy could

authorize a category of fully internal complaints to be filed with a

different agency.

2. Who May Investigate Complaints. The second question is

who may investigate fully internal complaints of misconduct

against police officers. Does the Act require that such complaints

be investigated only by the law enforcement agency? We do not

think so. The Act addresses investigations only indirectly. 109

Opinions of the Attorney General at 66. Even then, it speaks only

to complaints that are subject to review by an administrative

charging committee, that is, complaints of misconduct involving a

Gen. 3] 33

member of the public. See PS §§ 3-104(d), (e)(1), (f)(1), 3-108,

3-113. The Commission’s regulations impose an explicit duty to

investigate on the law enforcement agency. COMAR

12.09.04.06B; 109 Opinions of the Attorney General at 65-66. But

that regulation is part of a COMAR chapter that generally applies

only to complaints of misconduct involving the public. See

COMAR 12.09.04.01A. Nothing in the Act, then, provides that

fully internal complaints of police misconduct must always and

exclusively be investigated by the law enforcement agency. A

County policy providing for outside investigations in some

circumstances does not conflict with the Act.

The Act’s history supports the conclusion that it does not

forbid outside investigations. LEOBR allowed investigations of

police misconduct by investigators outside the law enforcement

agency. For example, the State Ethics Commission could

investigate ethics violations by officers. 72 Opinions of the

Attorney General at 252-56. We also opined that the City of

Frederick could establish an independent review commission to

investigate police misconduct provided that the commission could

not impose discipline itself. 86 Opinions of the Attorney General

94, 102-03 (2001); see also Letter from Kathryn M. Rowe,

Assistant Attorney General, to Del. Salima Siler Marriott (Apr. 1,

1999) (same for Baltimore City). We presume the General

Assembly, in passing the Act, was aware of that background. See,

e.g., Donlon v. Montgomery County Pub. Schs., 460 Md. 62, 95

(2018).

These earlier opinions did have one important limitation: an

outside agency, like the Ethics Commission or a municipality’s

independent review board, could investigate police misconduct but

could not interrogate an officer themselves, or compel an officer to

participate in the investigation or answer questions. See 72

Opinions of the Attorney General at 256; 86 Opinions of the

Attorney General at 102. But that was because a provision of

LEOBR explicitly restricted who could interrogate an officer in a

disciplinary investigation. Md. Code Ann., Pub. Safety § 3-104(b)

(2018 Repl. Vol.). That provision has, of course, been repealed

along with the rest of LEOBR. Although the Senate-proposed bill

to replace LEOBR would have retained a similar requirement, see

S.B. 627, 2021 Leg., Reg. Sess. (Third Reader) (proposed PS

§ 3-105(a)(3)), that bill did not pass. The House’s bill passed

instead and became the Act. H.B. 670, 2021 Leg., Reg. Sess.

By repealing this aspect of LEOBR without replacing it, the

General Assembly in effect restored the default rule that a public

34 [110 Op. Att’y

employer may order an employee to answer job-related questions

and impose disciplinary action if the employee refuses. See

Department of Pub. Safety & Corr. Servs. v. Shockley, 142 Md.

App. 312, 323-24 (2002); Letter from Robert N. McDonald, Chief

Counsel, Opinions & Advice, to Del. Shane Pendergrass at 2 (May

23, 2003).11 A county police officer is an employee of the county.

See Hines v. French, 157 Md. App. 536, 573 (2004) (recognizing

that county police departments do not have legal existence

independent of the county). So in the absence of any law to the

contrary, this principle would apply to police officers.

Indeed, one provision of the Act could be read as

affirmatively authorizing such interrogations. Section 3-107(d)

provides that “[i]n connection with a disciplinary matter under [the

Act], a police officer may be required to submit to . . .

interrogations that specifically relate to the subject matter of the

investigation.” Notably, in using the passive voice, the statute does

not limit who may conduct such an “interrogation.” In fact, this

provision appears to be derived from an earlier provision of

LEOBR, but with one key difference: the LEOBR provision stated

that “[t]he law enforcement agency may order the law enforcement

officer under investigation to submit to . . . interrogations that

specifically relate to the subject matter of the investigation.” Md.

Code Ann., Pub. Safety § 3-104(l)(1) (2018 Repl. Vol.). The

change in language from “the law enforcement agency may order”

to “a police officer may be required to submit” suggests that the

General Assembly did not intend, in the Act, to limit compulsory

interrogation authority to the law enforcement agency alone.

One paragraph within this provision does create uncertainty.

Section 3-107(d)(2) states that if a police officer refuses to be

interrogated, “the law enforcement agency may commence an

action that may lead to a punitive measure as a result of the refusal.”

Perhaps this could imply that only the law enforcement agency may

conduct compulsory interrogations or impose discipline for refusal.

But this provision may simply reflect that the General Assembly

was primarily focused on complaints of misconduct involving the

public, where generally the law enforcement agency will be

responsible for the investigation. See 109 Opinions of the Attorney

General at 72.

Given the overall context of the changes from LEOBR to the

Act, § 3-107(d)(2) taken in isolation is a weak reed on which to rest

11

However, the constitutional privilege against self-incrimination

limits the use, in a later criminal proceeding, of any statements

compelled under threat of discipline. Shockley, 142 Md. App. at 323-24.

Gen. 3] 35

a total prohibition on non-law-enforcement-agency interrogations

of officers.12 This is especially true given that the primary purpose

of § 3-107(d) was apparently just to codify the constitutional rule

on how compelled statements by officers may be used, see supra

note 11, rather than to limit who may compel such statements, see

Voting Session on H.B. 670 Before the House Judiciary Comm.,

2021 Leg., Reg. Sess., at 30:00-32:15 (Mar. 5, 2021) (statements

of Dels. Clippinger and Atterbeary).

As noted, the Commission’s regulations provide that “[a] law

enforcement agency shall complete a thorough investigation upon

receipt of a complaint of alleged police officer misconduct.”

COMAR 12.04.09.06B. But, again, this regulation is part of a

chapter governing the administrative charging committee process

for misconduct involving the public. See COMAR 12.04.09.01A.

The specific regulatory subsection establishing the duty to

investigate is flanked on both sides by provisions that explicitly

deal with complaints from the public and/or involving the public.

See COMAR 12.04.09.06A, C. Thus, the regulation does not

appear to govern who may investigate complaints that are not

subject to the administrative charging committee process.

In our view, then, there is no State-law barrier to a local law

authorizing an agency of county government outside the police

department to investigate fully internal allegations of police

misconduct and to require the officer to participate in the

investigation.

3. Who May Initiate Discipline. We turn now to the third and

final point of possible conflict: who may initiate formal charges

and make the original offer of discipline. Again, the Act is silent

on this question in the context of fully internal complaints.

Although the disciplinary matrix must be used for any matter that

12

Our Office has also previously advised that a local government may

not empower its police accountability boards to conduct independent

investigations of misconduct or grant them subpoena power. Ivey Letter

at 2-3. But that advice was in the context of complaints of misconduct

involving the public (the only type of complaint the police accountability

boards receive), where the Act and regulations are much more

prescriptive. Additionally, the Counsel to the General Assembly noted

in that advice that the General Assembly had specified the functions and

powers of the police accountability boards, thus implying that they did

not intend local governments to grant them additional powers. See id.

However, she was not asked and so did not consider whether other

agencies of local government, especially in a charter county, might be

able to investigate fully internal misconduct complaints.

36 [110 Op. Att’y

may result in discipline, see PS § 3-105(b), there are no provisions

specifying who may initiate discipline based on a complaint that

did not pass through an administrative charging committee. The

provision requiring the chief to offer discipline assumes that the

chief is acting upon an administrative charging committee’s

charge. See PS § 3-105(c). Because the statutory scheme as a

whole is concerned primarily with misconduct involving the

public, we conclude that the Act leaves open the question of who

may offer discipline for fully internal complaints.

Some aspects of the Commission’s regulations do assume that

only the administrative charging committee, law enforcement

agency head, or trial board will be in the position of applying the

disciplinary matrix. For example, the regulations provide that

when multiple sustained violations arise from the same incident,

“as applicable, an agency head or Administrative Charging

Committee” may consolidate multiple violations into a single

penalty. COMAR 12.04.10.02B(2). This assumes that there are

only two “applicable” authorities who could be making a

disciplinary determination: the administrative charging committee

or the agency head. Other provisions use similar language, though

some also include the trial board. See, e.g., COMAR

12.04.10.04C(1),(2), .04D(9)(b), .05D, .05G(1).

But if the Commission only intended those procedural

provisions to govern the public complaints process in the first

place, this limitation makes sense. After all, in the disciplinary

process for misconduct involving the public specified by the Act,

only the administrative charging committee, head of the law

enforcement agency, and trial board will be in the position of

applying the matrix or offering discipline. These provisions thus

equally support the conclusion that the Commission did not intend

for them to govern fully internal complaints at all.

One might also argue that because the General Assembly

required administrative charging committee and trial board

members to be trained in police procedures, the Legislature must

have intended that only individuals with such training may take

part in the police discipline process. See PS §§ 3-104(c), 3-106(d).

But just because the General Assembly thought that training was

necessary for part-time members of charging committees and trial

boards does not necessarily mean that they thought the same would

be necessary for local government personnel professionals who

regularly handle disciplinary matters in the course of their work.

Thus, these training requirements still make logical sense if the

Gen. 3] 37

statute as a whole is read as governing only the public complaints

process (except where specified).

Local personnel discipline is ordinarily a matter for local

governments. A local government may establish procedures for

discipline of local employees, including specifying who may

formally prefer charges or initiate discipline, unless State law

preempts those local procedures. Police departments are no

exception. See Fraternal Order of Police, Montgomery County

Lodge No. 35 v. Mehrling, 343 Md. 155, 183-84 (1996); City of

Hagerstown v. Blenard, 268 Md. 382, 385-87 (1973). And as we

have explained, the Act generally addresses only the handling of

complaints of misconduct involving the public, except where there

is clear evidence of legislative intent to apply a particular provision

more broadly. See supra Part II.B.2.i.

We therefore conclude that the Act does not address the issue

of who may initiate discipline. If authorized by local law, an

official of county government may initiate disciplinary charges

against a county police officer based on a fully internal complaint

of misconduct and offer discipline based on the disciplinary matrix.

As always, if the officer refuses that discipline, they are entitled to

a trial board hearing under PS § 3-106.

4. Application of Conflict Preemption Principles. Having set

forth our understanding of the Act and regulations, we apply the

principles of conflict preemption to the County policy. As we have

explained, there are two recognized forms of conflict preemption

under Maryland law: verbal conflict and functional conflict.

Verbal conflict exists when local law permits something State law

prohibits, or prohibits something State law expressly permits.

Because the Act does not prohibit the filing of fully internal

complaints outside the law enforcement agency, the investigation

of such complaints other than by the law enforcement agency, or

the initiation of disciplinary charges outside the law enforcement

agency, a local law establishing these possibilities would not create

a verbal conflict. Although the closest question is perhaps whether

the Act requires the original offer or imposition of discipline to be

made only by the chief, nothing in the Act’s or the regulations’ text

clearly establishes a rule governing who may initiate discipline

based on a fully internal complaint, nor is there any other evidence

of intent on the part of the General Assembly or the Commission

to make a rule on that specific issue.

Nor does a local law or policy establishing these procedures

create a functional conflict. Though courts have not been as clear

38 [110 Op. Att’y

about what a functional conflict involves, “[i]n general, some

element of irreconcilability or legal inconsistency is required, such

that both the State and local laws cannot be applied together.” 93

Opinions of the Attorney General 126, 135 (2008). But, if we

conclude that the Act generally does not address the subject of fully

internal complaints (except in certain specified respects), local laws

on that subject would not functionally conflict with the Act. The

scenarios where functional conflicts have been recognized include

cases where it would have been impossible to comply with both

State and local law; cases where a local government would have

been prohibited from taking action mandated by the State; and

other cases of conflicting State and local directives in the same

subject area. 108 Opinions of the Attorney General at 105-06. But

none of those circumstances exist here, where the State and local

laws address two separate, albeit related, subjects. See id.

One might argue that our interpretation, allowing local law to

govern aspects of the fully internal complaints process, conflicts

with the General Assembly’s purpose of establishing a uniform

police discipline process for the whole State. See Ivey Letter at 3.

But the Legislature did not pursue that purpose “at all costs.”

Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). Rather,

it provided for complaints of misconduct involving a member of

the public and complaints of misconduct not involving a member

of the public, to follow different tracks. See PS § 3-104(d). Only

the former would fall within the administrative charging

committee’s jurisdiction and the related procedures. See id. The

statute also allowed local variation in the trial board process. PS

§ 3-106(a)(1) (authorizing each law enforcement agency to

establish its own trial board process). The General Assembly, then,

apparently sought to accommodate two important values:

uniformity and local control.

We therefore conclude that, except for the need to follow the

disciplinary matrix and trial board process, we have identified

nothing in the County policy that conflicts with any rule for fully

internal complaints established by the Act or the Commission’s

regulations. And where no such conflict exists, the County policy

may govern a fully internal complaint of discrimination against a

County police officer.

III

Conclusion

Neither the Police Accountability Act nor its implementing

regulations occupy the field of police disciplinary procedures. And

Gen. 3] 39

the Commission’s regulations do not authorize a law enforcement

agency to develop procedures for fully internal complaints that are

independent of otherwise applicable local law. Thus, the County

can apply the procedures in its general nondiscrimination policy to

fully internal complaints against police officers, unless a particular

procedure conflicts with the Act or its regulations. Under its

policy, the County, including the County’s personnel office and

equal employment opportunity office, may receive complaints of

discrimination filed by one police officer against another,

investigate fully internal discrimination complaints, and initiate

discipline against an officer based on a fully internal discrimination

complaint. But the offer of discipline, if any, must follow the

uniform State disciplinary matrix, and the officer may refuse that

discipline and request a trial board hearing that follows the Act’s

procedures.

Anthony G. Brown

Attorney General of Maryland

Thomas S. Chapman

Deputy Chief, Opinions and

Advice

Patrick B. Hughes

Chief Counsel, Opinions and Advice