A State employee succeeded in having his termination rescinded by an administrative law judge who concluded that the appointing authority had not met its obligation to “give the employee a written notice of the disciplinary action to be taken” within 30 days, as required by Maryland Code (1993, 2004 Repl.VoL), State Personnel and Pensions Article (“SPP”), § ll-106(a)(5). Both the administrative law judge (“ALJ”) and the Circuit Court for Baltimore City interpreted the statute to require that, in order to terminate a State employee for misconduct, the employee must receive notice of the termination within the 30-day time limit imposed
Statement of Facts and Procedural History
Leonard Miley, the appellee, was a Resident Group Life Manager at the Thomas J.S. Waxter Children’s Center, run by the Department of Juvenile Services (“DJS”), the appellant. On February 1, 2006, an incident occurred that involved Miley and one of the youths at the center. The facts found by the ALJ were as follows:
2. On February 1, 2006, [Miley] was working at the Thomas J.S. Waxter Children’s Center in Laurel, Maryland.
3. During an organized movement of female youth in the facility, one of the youths, W.C., became loud and boisterous, and was acting in a disruptive manner.
4. [Miley] separated the youth from the rest of the group and guided her to the “tour office” where there are individual confinement rooms.
5. The youth continued to act in a disorderly manner[,] striking [Miley] and knocking his eyeglasses from his face, damaging them and scratching [Miley’s] face in the process.
6. The youth continued to repeatedly strike [Miley]; two female staff members responded to his location to assist in controlling the youth.
7. Even after the two additional staff members took over control of the youth and had her somewhat controlled, the youth had a grip on [Miley’s] shirt collar and would not let him loose. The other staff members finally pried [Miley] from the youth’s grasp.
8. Even after the two additional staff members had assumed control of the situation, the youth was able to kick [Miley] in the groin area, and spit directly in his face.
9. [Miley] became upset and clenched his fists; the other staff members persuaded him to leave the area.
10. At no time did [Miley] strike the child.
11. This incident was witnessed by Katherine Perez, Director of the Office of Independent Juvenile Service Monitors, and her assistant, Kimberly Bones.
12. Ms. Perez’s and Ms. Bones’ view of the area in the confinement room was through a window in “the cage” and much of the view was obstructed. They were unable to clearly see all of the activities actually occurring in the room.
13. The incident was reported to DJS, as well as to the Department of Social Services and the Maryland State Police on February 1, 2006.
14. Gerald D. Sullivan, an Investigator with the DJS Office of Professional Responsibility and Accountability (“OPRA”), Investigations and Child Advocacy Unit, began an investigation on February 1, 2006.
15. On February 1, 2006, Mr. Sullivan interviewed [Miley] and several of the other witnesses.
16. The Investigator completed his report, concluding that [Miley’s] behaviorhad not been in compliance with the established procedures.
17. On February 28, 2006, [Miley] met with Reginald C. Garnett, Superintendent of Cheltenham Youth Facility and Gregory McDowell, Assistant Superintendent, to present a memorandum containing information [Miley] wished DJS to consider before determining whether to take disciplinary action and if it elected to do so, in deciding what action to impose.
18. On March 2, 2006,[*] Carl V. Sanniti, Deputy Secretary, and Kenneth D. Montague, Jr., Secretary of DJS, signed a Notice of Termination, advising [Miley] that his employment was terminated effective with the close of business on March 3, 2006.
[*ALJ’s footnote 3:] Although the signature date is listed as March 2, 2006, the space for “Notice Date” was left blank.
19. At some time on Friday, March 3, 2006, DJS mailed to [Miley] the Notice of Termination, along with a cover letter advising him of the decision and explaining his appeal rights.
The Notice of Termination included the following finding of misconduct that, DJS concluded, warranted termination:
The Department’s investigation regarding the allegations made against Leonard Miley, DJS Resident Group Life Manager I, has clearly established that his actions on February 1, 2006, towards W.C., Resident, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident, was intentional conduct without justification that seriously threaten the workplace; and unwarrantable excessive force in his treatment towards W.C., Resident, an individual in the care, and custody of the State of Maryland, Department of Juvenile Services. Mr. Miley was guilty of conduct toward W.C., Resident, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C. Resident, that has brought or if publicize^,] would bring the State into disrepute.
Mr. Miley willfully made false verbal and written reports regarding his actions towards W.C., Resident, on February 1, 2006. Mr. Miley engaged in actions toward W.C., Resident, including clenching his fingers into a fist, jumping on W.C.’s bed at he time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident, were violations of the lawful orders given by his superiors pertaining to the use of force towards residents.
Mr. Miley’s actions toward W.C., Resident, on February 1, 2006, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident, caused a potential breach of security by jeopardizing the safety and security of Ms. Hudson-Willies, Ms. Willoughby, and W.C., Resident.
Mr. Miley’s actions toward W.C., Resident, on February 1, 2006, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident^] warrant termination of his employment with the Department of Juvenile Services.
Miley appealed his termination, and the matter was referred to the Office of Administrative Hearings, pursuant to SPP § 11-110, which provides in subsection 11—110(d)(3): “The decision of the Office of Administrative Hearings is the final administrative decision.” Miley contended that his termination was arbitrary and capricious, and that DJS had not complied with SPP § 11-106 because he did not receive his notice of termination within 30 days of the incident. DJS argued that the termination was justified, and that the statute required only that the notice of termination be mailed—not received—within 30 days. The ALJ found that the termination was invalid because it had not been imposed in a timely manner, holding that the Court of Appeals’s decision in WCI v. Geiger,
DJS sought judicial review in the Circuit Court for Baltimore City, which affirmed the final decision of the ALJ. The circuit court was persuaded that the ALJ’s interpretation of the notice requirement was correct because it followed the “general rule” that, where the statute does not specify the method of service, notice is deemed to have been given on the date that such notice is received. DJS timely appealed to this court.
Analysis
On appeal, we review the decision of the agency—in this case, the decision of the ALJ—not that of the circuit court. Department of Health and Mental Hygiene v. Campbell,
(a) Procedure.—Before taking any disciplinary action related to employee misconduct, an appointing authority shall:
(1) investigate the alleged misconduct;
(2) meet with the employee;
(3) consider any mitigating circumstances;
(4) determine the appropriate disciplinary action, if any, to be imposed; and
(5) give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights.
(b) Time limit.—Except as provided in subsection (c) of this section, an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.
The parties dispute whether the appointing authority’s obligation to “give the employee a written notice” was completed when DJS mailed the notice of termination to Miley or when Miley actually received it. There are reasonable arguments supporting each side’s position. Ultimately, we are persuaded that mailing the required notice on the 30th day and concurrently imposing the disciplinary action on the 30th day does not satisfy the appointing authority’s obligation under § 11— 106, as interpreted in Geiger, supra,
We need not address in this case hypothetical situations in which an employee might somehow preclude timely delivery of a notice that was transmitted well before the expiration of the 30 day period. Cf. Rockwood Casualty Ins. Co. v. Uninsured Employers’ Fund,
Miley argues that the outcome of this case is governed by a general rule of construction pertaining to statutes that include a notice requirement. Although the Court of Appeals has observed that “a notice requirement generally imports receipt,” Grubbs v. Prince George’s County,
More recent Court of Appeals cases have made plain, however, that the issue cannot be resolved by mechanical application of a “general rule,” but rather, each
In Centre Ins. Co. v. J.T.W.,
To take an appeal, a person shall file a petition for judicial review with the appropriate circuit court within 30 days after:
(1) the order resulting from the hearing was served on the persons entitled to receive it;....
Although the Court in Centre acknowledged it had held in Rockwood that the term serve “implies actual receipt,” the Court reiterated that, in each case, the interpretation is be determined by application of the general rules of statutory construction. Centre, supra,
In the statute that is the focus of Miley’s case, the phrase “give the employee a written notice” is not further defined by the statute, nor does it appear elsewhere in Title 11, Subtitle 1: Disciplinary Actions. Nor is the phrase “give notice” defined in
A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording.
In Merriam Webster’s Dictionary of Law, the relevant definitions of “give” are “to execute and deliver” and “to communicate or impart to another.” Merriamr-Webster’s Dictionary of Law, Merriam-Webster, Inc. (1996), available at http:// dictionary.lp.findlaw.com/ (search for “give”). Both of these definitions imply receipt by the other party of whatever is “given.” The legal definition of a gift in other contexts requires acceptance as one of its elements. See, e.g., Dulany v. Taylor,
More helpful is the guidance provided by the Court of Appeals’s decision in Geiger, supra,
As we observed in Danaher v. Dep’t of Labor, Licensing & Regulation,
Section ll-106(a) “prescribes what must be done before imposing discipline....” Geiger,371 Md. at 143 ,807 A.2d 32 . As noted, S.P.P. § ll-106(a) provides that, “before” any disciplinary action is taken, the appointing authority “shall” follow certain procedural steps. When the word “shall” appears in a statute, it generally has a mandatory meaning.
(Citation omitted).
More recently, in PSC v. Wilson,
Some cases have discussed the rationale and importance behind § 11-106 and its comprehensive scope. In Maryland Reception, Diagnostic & Classification Center v. Watson,144 Md.App. 684 , 691,800 A.2d 16 , 20 (2002), the Court of Special Appeals opined that thepurpose of the statutory protections outlined in § 11-106 “can be discerned from an overview of the entire statutory scheme for imposing discipline on State employees: to prevent an appointing authority from imposing discipline on the basis of an unsubstantiated accusation.” See also W. Corr. Inst. v. Geiger, 371 Md. 125 , 144,807 A.2d 32 , 43 (2002) (stating that “[i]t is significant that one of the prerequisites for the imposition of discipline is the conduct of an investigation of the alleged misconduct”). In Danaher, the Court of Special Appeals affirmed this protective aspect of § 11-106 in the context of a management service employee.148 Md.App. at 166 ,811 A.2d at 375 . In holding that the investigation undertaken by the employer pursuant to § 11-106 was deficient, the intermediate appellate court stressed that the statute’s purpose, in part, was to provide an extra layer of protection, even with respect to at-will employees, to prevent the collateral consequences that may result when an employee is found culpable for “employee misconduct.” See id. at 176-78,811 A.2d at 381-82 (noting that, because Danaher, a 25 year veteran of state service, was found responsible for “employee misconduct” and thus terminated “with prejudice,” he was subject to possible disqualification from employment with the State for up to three years).
Although we too acknowledge this protective characteristic of § 11-106, we are also mindful that its less than careful application has the potential to alter fundamentally the scope of at-will employment with respect to the management service. Nonetheless, the language of § 11-106 is clear: “Before taking any disciplinary action related to employee misconduct, an appointing authority shall ” follow specific investigatory procedures. (Emphasis added) Based on this plain and unambiguous language, we conclude that, if it appears that a disciplinary action may have been based, even sub silentio, on alleged facts constituting “employee misconduct,” the “appointing authority” must be held accountable to follow the procedures outlined in § 11-106.
Id. at 82-83,
One of the steps § ll-106(a) sets forth that must be completed before an employee can be disciplined requires the appointing authority to “give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights.” SPP § ll-106(a)(5). We note that the tense used in this phrase to describe what the employer is giving notice of— “the disciplinary action to be taken”—implies that when the employee receives the notice, the disciplinary action will not yet have been taken.
In this case, the incident occurred on February 1, and February 2006 had 28 days, so discipline had to be imposed no later than March 3, 2006 (because the first day, February 1, is not counted). See Reier, supra,
DJS argues that its mailing of the notice to Miley fully satisfied its obligation to give the employee the specified notice, regardless of whether the employee received that notice before 30 days had elapsed. Such an interpretation could create a situation in which the employee’s discipline takes effect before the employee is made aware that the employee has been disciplined. In fact, that is what happened to Miley. Because all of the other steps listed in SPP § 11— 106(a) are tasks that must be completed prior to the expiration of 30 days, it follows that the employer must complete giving the employee the required written notice within the 30 days as well. Under such circumstances, we conclude that the notice mailed to Miley on the 30th day did not satisfy the requirement imposed by SPP § 11—106(a)(5).
This interpretation of the statute is supported by the regulations promulgated by the State. See, e.g., Smack v. Dep’t of Health and Mental Hygiene,
D. Before an employee may be disciplined for conduct-related reasons, the appointing authority shall:
(1) Notify the employee of the misconduct and provide an explanation of the employer’s evidence;
(2) Investigate the alleged misconduct;
(3) Meet with the employee, unless the employee is unavailable or unwilling to meet;
(4) Consider any mitigating circumstances;
(5) Determine the appropriate disciplinary action, if any, to be imposed; and
(6) Give the employee written notice of the disciplinary action to be taken and the employee’s appeal rights, and inform the employee of the effective date of the disciplinary action.
E. Unless otherwise provided by law, an appointing authority shall take each of the actions required in § D of this regulation within the time limits provided in State Personnel and Pensions Article, § 11-106, Annotated Code of Maryland.
(Emphasis added). If the notice must inform the employee of the date the discipline takes effect “[b]efore an employee may be disciplined,” then such duty to give prior notice and inform the employee would not be satisfied by mailing a notice at such a late date that it had no possibility of being received by the employee within the 30 day time period.
We recognize that the relatively short time limit imposed by SPP § 11-106 will sometimes place a burden on the appointing authority that may not be met easily or even with great effort. But, as we noted in White v. Workers’ Compensation Com’n,
For the forgoing reasons, we agree with the ALJ’s decision in this case, which was
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY IS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. The ALJ found that Miley’s testimony that he received the notice on or after March 4, "was not refuted or rebutted." The ALJ also noted that "it is reasonable to infer from Management's failure to produce the [notice’s] delivery record that the information contained in that record was consistent with [Miley's] position." In his brief in this Court, Miley asserts in his Statement of Facts: "DJS mailed the Notice of Termination on March 3, and [Miley] received it on March 4.”