Submitted May 28, 2014.
Case Closed June 18, 2014.
Court Below: Superior Court of the State of Delaware, in and for New Castle County. N12A-12-001 DCS.
Rae M. Mims, Esquire, State of Delaware Department of Justice, Dover, Delaware for Appellant.
Stephani J. Ballard, Esquire, Wilmington, Delaware for Appellee.
Before STRINE, Chief Justice, HOLLAND, and BERGER, Justices.
STRINE, Chief Justice:
This appeal requires us to address a situation where a police officer retired while his conduct was under investigation
by his employing police force. After the officer retired, the Council on Police Training (the " Council" ) revoked his certification as a police officer in the State of Delaware under its authority in 11 Del. C . § 8404(a)(4)(e), on the grounds tat the officer's retirement itself constituted a knowing and voluntary waiver of his right to a hearing under the Law Enforcement Officer's Bill of Rights. Because the plain language of § 8404(a)(4)(e) provides that the Council may only revoke the certification of a retired officer if the officer both retired pending the resolution of an investigation that could have resulted in his discharge from the police force and " knowingly and voluntarily waived" his right to a hearing under the Law Enforcement Officer's Bill of Rights, the Council erred. Because the only evidence of waiver is the very fact that the officer retired while under investigation, the Council's finding of waiver ignores the plain statutory requirement that the retiring officer not only have retired while under the cloud of an investigation that could result in his discharge from the police force, but also that the officer knowingly and voluntarily have waived his right to a hearing under the Law Enforcement Officer's Bill of Rights. Because the officer here did not do so, the Superior Court's reversal of the Council's revocation of his certification must be affirmed.
Warren C. McGee, a Master Corporal with the Delaware State Police, was summoned to testify in a trial on February 16, 2012. McGee was off that day. When an officer is summoned to testify when he is otherwise off, he is considered to be on standby duty and receives at least two hours of overtime regardless of whether he is called to testify. But when the court liaison officer contacted McGee to notify him that the trial was going forward and request that he appear in court, McGee was not available because he was undergoing a previously scheduled colonoscopy instead. The next day, February 17, 2012, McGee was not feeling well and asked another police officer to submit his overtime sheets. McGee's overtime sheets, which had been prepared in advance, included an overtime slip claiming overtime for the two hours when he was supposed to be available to testify, but was not.
Two days later, McGee was notified that he had been suspended for an unspecified criminal matter. McGee was not paid for the two hours of overtime. The matter of the inaccurate overtime sheet was referred for criminal investigation, but the State ultimately declined to prosecute McGee and no criminal charges were brought ...