Please ensure Javascript is enabled for purposes of website accessibility

Somerset deputy gets police powers back

A year after the Court of Special Appeals ordered his reinstatement, a Somerset County sheriff’s deputy has regained his police powers but is still suing over the delay.

James “Troy” Durham claims the Maryland Police and Correctional Training Commission withheld his law enforcement certification in retaliation for another action he filed against his former boss.

Durham was fired from his job in 2009 for complaining about being ordered to tamper with information in a police report. The appeals court ordered his reinstatement in August 2012, and he was in fact sworn in October. However, without certification, his police powers were curtailed and, after a year, he faced possible termination.

Durham filed suit in May in U.S. District Court in Baltimore to force the 15-member training commission to recertify him. The commission voted to reinstate his certification Friday — the same day the Office of the Attorney General filed a motion to dismiss the suit.

Durham’s attorney, Howard B. Hoffman, says Durham will still pursue the case because his civil rights were violated.

“When an officer is … reinstated through due process and the Maryland Police Training Commission still declines to follow suit and reinstate his police powers, we believe it is a denial of constitutional due process,” said Hoffman, a solo practitioner focusing on employment law at Howard B. Hoffman, Attorney at Law in Rockville.

While Hoffman expects the state to argue that Durham’s recertification makes his lawsuit moot, the attorney general’s contemporaneous motion to dismiss does not mention it.

In fact, the motion was written as though Durham’s application remained pending.

“The Commission has not denied Plaintiff’s request for recertification, but has simply not yet made a determination whether recertification will be granted,” the motion to dismiss said.

The attorney general’s office declined to comment for this article, citing the ongoing litigation. Albert Liebno, deputy director of the Maryland Police and Correctional Training Commission and one of the defendants named in the case, also declined to comment.

The current lawsuit is one of many that stems from Durham’s termination.

He filed a wrongful termination lawsuit in state court, which is the case the Court of Special Appeals decided last August.

He also sued his former boss, Sheriff Somerset County Sheriff Robert N. Jones, and obtained a $1.1 million verdict from a U.S. District Court jury in May 2012. That verdict is on appeal.

In the current lawsuit, Durham alleges that he is suffering retaliation for exercising his First Amendment rights. In addition to the injunctive relief on his recertification request, he is seeking at least $5 million in economic and non-economic damages.

Durham claimed the lack of certification made him an officer “in name only” — he received wages, but had no police powers.

A police certification is a statutory license needed to work as a law enforcement officer. Under state law, officers cannot be employed for more than a year without certification, which put Durham’s job at risk, according to the complaint.

“So by refusing to provide [Durham] with law enforcement certification, [the MPTC] are deliberately working with the Sheriff to run the clock and provide the Sheriff with grounds to terminate [Durham],” the suit alleges.

The complaint suggests the sheriff’s office and commission were working “hand-in-glove” to block Durham’s certification.

To apply for certification, a law enforcement officer has to undergo background checks, polygraph exams and psychological testing.

“What ends up happening in these situations is the department [psychologists] are close to the department and it’s not uncommon to see individuals who have been ordered reinstated by the court to have problems getting past a psychologist, which I believe is caused by conflict of interest,” Hoffman said.

In its motion to dismiss, the attorney general’s office said Durham’s certification is not a constitutionally protected property interest and that he has failed to identify any retaliatory actions by the defendants with regard to the license.

The attorney general’s office also argued that state personnel cannot be sued for performing their public duties and have immunity under the Maryland Tort Claims Act.

Arrest report changed

The long-running controversy stems from an August 2008 incident in which Durham struggled with a motorcyclist during an arrest after a high-speed chase. Durham reportedly kneed him in the ribs, doused him with pepper spray and slapped him.

Durham, however, did not charge the motorcyclist with resisting arrest or assault. A detective sergeant told Durham to add assault and resisting arrest charges to his report as well as delete three supplemental reports and any mention of use of force from his original report.

When Durham refused, the detective told him he would be suspended or face assault charges himself. Durham then changed the report, but filed a grievance with the Somerset County Commissioners over the incident.

The commissioners voted to suspend him for disseminating police department material and unbecoming conduct. An administrative trial board recommended a 10-day suspension.

Jones, however, fired Durham.

In his retaliation lawsuit, Durham also claims one count of due process violation against the commission members and First Amendment retaliation against two of the board members — Leibno and Charles W. Rapp, the executive director of the commission.