# Maryland Attorney General Opinion 110OAG003

> Maryland Attorney General Reports · February 13, 2025

URL: https://www.frixlaw.com/law-library/cases/11315649

## Case

- **Court:** Maryland Attorney General Reports
- **Decided:** February 13, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11315649

## How later opinions describe it (automated extraction)

- applying the same principle to the relationship between county and municipal enactments
- recognizing that county police departments do not have legal existence independent of the county

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11315649. Public record. Not legal advice.