Kevin MIHAILOVICH v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE
No. 573, Sept. Term, 2016
Court of Special Appeals of Maryland.
September 28, 2017
170 A.3d 870
APPEAL DISMISSED IN CASE NO. 524, SEPT. TERM 2016. APPELLANT TO PAY COSTS.
Argued by: Nicholas E. Johansson (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.
Panel: Woodward, C.J., Friedman, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.
Sharer, J.
In this appeal we shall resolve conflicting interpretations of the “five workdays” requirement of
The issue before us, which we have recast, is:
Whether the Department of Health and Mental Hygiene (“DOH“),1 appellee, gave timely notice of a suspension without pay to appellant, Kevin Mihailovich.2
We shall hold that the DOH did nоt give timely notice pursuant to the statute; hence, we shall reverse the judgment of the Circuit Court for Baltimore City.
BACKGROUND
Although the circumstances of appellant‘s employment and asserted misconduct are not necessary for our review, we provide a brief factual recitation for procedural context.
Mihailovich is a Certified Nursing Assistant employed by the Thomas B. Finan Center, an in-patient psychiatric facility
On March 30, 2015, Mihailovich noted a timely appeal to the Secretary of the Department of Budget and Management. Following an unsuccessful settlement conference, the case was forwarded to the Office of Administrative Hearings. On July 27, 2015, a merits hearing was conducted, following which, on September 9, 2015, the Administrative Law Judge (ALJ) issued a written decision reversing the suspension, and ordered back pay.
The DOH moved for reconsideration, challenging the ALJ‘s interpretation and application of
Standard of Review
Within the context of the present appeal, “[t]he decision of thе Office of Administrative Hearings [was] the final administrative decision[,]”
It is “[b]ecause an appellate court reviews the agency decision under the same statutory standards as the circuit court,” Consumer Prot. Div. v. George, 383 Md. 505, 512 (2004) (quotations and citation omitted), that “wе analyze the agency‘s decision, not the [circuit] court‘s ruling.” Martin v. Allegany County Bd. of Educ., 212 Md.App. 596, 605 (2013) (citation omitted). We are “limited to determining if there is substantial evidence in the record as a whole to support the agency‘s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” W.R. Grace & Co. v. Swedo, 439 Md. 441, 453 (2014) (quoting Bd. of Physician Quality Assur. v. Banks, 354 Md. 59, 67-68 (1999)).
In fact, “when the question before the agency involves one of statutory interpretation or an issue of law, our review is more expansive.” E. Outdoor Advert. Co. v. Mayor of Baltimore, 146 Md.App. 283, 302 (2002) (quoting Dep‘t of Labor, Licensing & Regulation v. Muddiman, 120 Md.App. 725, 734 (1998)). As such, “it is always within our prerogative to determine whether an agency‘s conclusions of law are correct.” Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289, 298 (2015) (quotations and citation оmitted). It is for this reason that we review the agency‘s statutory interpretation de novo. See Ireton v. Chambers, 229 Md.App. 149, 155 (2016) (citing Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142 (2012)). See also Fraternal Order of Police Montgomery Cty. Lodge 35 v. Montgomery Cty. Exec., 210 Md.App. 117, 128 (2013).
DISCUSSION
This appeal requires us to review the ALJ‘s interpretation and application of
(1) An appointing authority3 may suspend an employee without pay no later than 5 workdays following the close of the employee‘s next shift after the appointing authority acquires knowledge of the misconduct for which the suspension is imposed.
(2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection.
When assessing the timeliness of the suspension, the ALJ was tasked with answering two underlying questions posed by Mihailovich: “[f]irst, what qualifies as a ‘workday’ under SPP section 11-106(c)[;] [a]nd second, what constitutes ‘the employee‘s next shift’ under that same provision when, as here, the appointing authority has placed the employee on administrative leave ... [?]” The ALJ concluded that the term “workday” was intended to relate to the employee‘s schedule, rather than the appointing authority‘s schedule, and that the employee‘s next shift is not affected by being placed on administrative leave.
The ALJ found that, “[a]ssuming further thаt the Employee normally maintains a Wednesday-through-Sunday workweek, his next five workdays would have been: (1) Thursday, March 5; (2) Friday, March 6; (3) Saturday, March 7; (4) Sunday, March 8; and (5) Wednesday, March 11.”4 Based on that interpretation, the ALJ found the suspension imposed on March 17 to be untimely, reversed the suspension, and ordered back pay.
We address the first of these two questions in our review of the ALJ‘s decision and dispose of the second, accordingly.
By whose schedule is a “workday” determined?
Since the question presented in this appeal is based largely on the interpretation of
All “[l]egislation is created with a particular objective or purpose.” Bowers v. State, 227 Md.App. 310, 322 (2016) (citation omitted). As such, “[t]he cardinal rule of statutory construction is to effectuate and carry out legislative intent.” Duffy v. CBS Corp., 232 Md.App. 602, 612 (2017) (quoting Rose v. Fox Pool Corp., 335 Md. 351, 358 (1994)), cert. granted, 456 Md. 53 (2017).
When this Court is “called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent.” Duffy, 232 Md.App. at 613 (quoting Rose, 335 Md. at 359). However, “[w]here the statute‘s language is ambiguous or not clearly consistent with the statute‘s apparent purpose, the court ‘search[es] for [the General Assembly‘s] intent in other indicia, including the history of the [statute] or other relevant sources intrinsic and extrinsic to the legislative process[,]’ in light of: (1) ‘the structure of the statute‘; (2) ‘how [the statute] relates to other laws‘; (3) the statute‘s ‘general purpose‘; and (4) ‘[the] relative rationality and legal effect of various competing constructions.‘” Hailes v. State, 442 Md. 488, 495-96 (2015) (quoting Gardner v. State, 420 Md. 1, 9 (2011)). See also Patton v. Wells Fargo Fin. Maryland, Inc., 437 Md. 83, 97 (2014) (“Where, as here, there appears to be ambiguity or uncertain meaning in a statute, the Court ‘may and often must consider other external manifestations or persuasive evidence, including a bill‘s title and function paragraphs, ... its relationship to earlier and subsequent legislation, and other material
The parties agree that the ALJ erred in the manner in which the 5-workday period was counted. However, they disagree about the statutory meaning of “workday“—that is, whether workdays are to be counted from the pеrspective of the appointing authority or the employee. Mihailovich contends that “workday” refers to the appointing authority‘s schedule; DOH avers that it pertains to the employee‘s schedule. We have found no reported opinions of either this Court or the Court of Appeals that directly answer the question.
As a matter of first impression, we conclude that the “workday” specified in the statute pertains to the schedule of the appointing authority, not the employee, for the purpose of establishing the temporal parameters within which disciplinary action must be tаken. We gather support for our conclusion from related case law and the statute‘s legislative history, as we shall discuss, infra.
In W. Corr. Inst. v. Geiger, 371 Md. 125 (2002), the Court of Appeals reviewed
All three subsections of
§ 11-106 are interrelated; one can not be read and interpreted without reading and interpreting the others. Subsection (a) prescribes what must be done before imposing discipline, subsection (b) sets the general time limitation on when the imposition of discipline mustoсcur and subsection (c) provides a special time limit for suspensions without pay.
Although the Court‘s discussion in Geiger does not specifically answer the subsection (c) “workday” question presented by this appeal, the Court opined that “[s]ection 11-106 ... is not person specific; it is situation and fact based.” Id. at 144. Additionally, the Geiger Court stated that “the knowledge that triggers the running of the thirty day period need not, and may not, although it generally will, identify the employee ultimately disciplined.” Id. In conclusion, the Court held that, “viewed in context,
As we discussed in White v. Workers’ Comp. Comm‘n, 161 Md.App. 483 (2005), the same interpretation is applicable to the more stringent temporal requirements of subsection (c). 161 Md.App. at 491. There, we held, “[t]he reasoning articulated in Geiger requires us to hold, sub judice, that any suspension imposed outside of the 5 workday time limit is violative of the statute and cannot stand.” Id. Therefore, the appointing authority‘s knowledge of misconduct is the triggering factor to commence the calculation of the 5-workday period. It is important to note, however, that the issue presented in White did not require an analysis of the 5-workday notice requirement; rather, as in Geiger, it pertained to the degree of knowledge of misconduct that triggers the counting of those days. Additionally, because White‘s work schedule was Monday through Friday, inferably the same as the appointing authority, there was no need to address by whose schedule the 5-workday period is to be applied.
Adhering to Geiger, and considering the statute as a whole, we conclude that the term “workday” was intended to refer to that of the appointing authority for the purposes of calculating
Of significance is the express language of the first clause in subsection (a): “[b]efore taking any disciplinary action related to employee misconduct ....”
[A]n 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.
Id. (emphasis added).
Subsection (b) then provides the time frame for imposing any disciplinary actions, other than an unpaid suspension, by limiting the period to “no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.”
In contrast, subsection (c) provides, effectively, two additional restrictions beyond the disputed “workday” limitation. First, counting does not commence until after the end of the employee‘s next shift following the appointing authority‘s knowledge of misconduct. See
Additional support for our interpretation is found by examining the statutory history and legislative resources utilized in the drafting and enactment оf the statute. Particularly useful in our consideration is the 1996 Task Force to reform the State Personnel Management System‘s Report to the Governor (“Governor‘s Report” or “Report“), which was likewise discussed in part by the Court of Appeals in Geiger, as well as the ALJ in the instant case.
Legislative History
The General Assembly, in 1920, enacted Md. Code, Article 64A—Merit Systems, Section 17 of which provided, in pertinent part: “The appointing authority may for disciplinary
Except as otherwise provided in this section, a suspension for disciplinary purposes: (1) Shall be served on consecutive days; and (2) Shall begin within 2 workdays from the close of the employee‘s next shift after: (I) The allеged infraction occurred; or (II) The appointing authority learned of the alleged infraction.
1993 Md. Laws, ch. 10.
In 1994, that provision was further amended to substitute “2 workdays” for simply “2 days” and added a provision to allow an appointing authority five days for employees who are exempt from the Federal Fair Labor Standards Act overtime provisions. 1994 Md. Laws, ch. 466. The “workday” language was reinstated through the 1995 amendments with the introduction of the provision that excludes certain days from the calculation. 1995 Md. Laws, ch. 199. However, the current language of the disciplinary suspensions provisions of the statute did not appеar in the statute until 1996.
The codification of the 1996 State Personnel and Pensions—Division I.—State Personnel code was the product of an extensive effort to reform the entire Maryland State Personnel Management System.
The efforts of the Task Force resulted in the enactment of the State Personnel Management System Reform Act of 1996, through cross-filed House Bill 774 and Senate Bill 466, which rewrote and reorganized what are now the existing personnel management statutes.6 See 1996 Md. Laws, ch. 347. In particular, the proposed legislation made significant changes to the statute governing disciplinary actions. See
1996 Governor‘s Report
The 1996 Task Force to Reform the State Personnel Management System‘s Report to the Governor provides insight as to the legislative intent and support for our interpretation of “workday” under
The Highlights of Proposals Adopted by the Task Force—Disciplinary Process—section of the Report addressed the time frame for imposing a disciplinary action and recommended to “[i]ncrease[ ] the time allowed an appointing authority to investigate and imposе disciplinary suspension from two days to five days following the close of the employee‘s next shift; allow[ing] an appointing authority up to thirty calendar days to impose any other form of discipline.” Task Force to Reform the State Personnel Management System, Report to the Governor, vi (January 23, 1996).
Finally, the Report‘s Disciplinary Policy Proposal expressly outlined the proposed legislation relating to Conduct-Related Discipline. That proposal became, in part,
After acquiring knowledge of alleged employee misconduct, an appointing authority shall have five (5) work days after the close of the employee‘s next shift after the alleged infraction occurred, or the appointing authority learned of the alleged infraction, to impose a suspension without pay. Within that time period, the appointing authority must investigate; meet with the employee; consider mitigating circumstances and determine the duration of the suspension. Saturdays, Sundays, legal holidays, and employee leave days do not count when calculating the five work day period.
Report to the Governor, 44.
The proposed legislation included requisite actions an appointing authority must take before a disciplinary suspension can be imposed, which was ultimately codified separately under
In addition to the Governor‘s Report being circulated with the cross-filed Bills, the Department of Personnel submitted a written memorandum to the House Subcommittee on Personnel and the Deputy Legislative Officer, Richard A. Montgomery, III, and Acting Secretary of Personnel, Michael A. Glass, submitted written testimony before the Senate Finance and Budget and Taxation Committees (“Glass and Montgomery testimony“), in support of the proposed legislation. The memorandum and testimony each explain the key features of the proposed bill and the reasons for the proposed differences from the then-existing statutes.
In particular, the memorandum from the Department of Personnel emphasizes the biggest changes to the disciplinary actions provisions of
imposes the general rule that the appointing authority has 30 days after acquiring knowledge of the misconduct to impose discipline. In cases where suspension is determined to be the appropriate penalty, the appointing authority has 5 work days following the close of business after the employee‘s next shift after acquiring knowledge to impose the suspension.
The written testimony by Glass and Montgomery provides a more detailed explanation of the changes to the statute. Glass and Montgomery Testimony, Senate Fin. and Budget and Tax. Comms. (1996). The first noteworthy section of the written testimony addresses the proposed definitions and general provisions subtitles of Title 1, in which it “[d]efines a day to mean a calendar day to eliminate confusion as to whether holidays and leave days are to be considered in calculating
The second section of import is the discussion of subtitle 1—Disciplinary Actions—of Title 11, which distinguishes the two types of disciplinary actions as conduct-related and performance-related. The dialogue about conduct-related discipline, as relevant here, provides that “[i]n cases of conduct related discipline, the proposal establishes a uniform 30 day time period in which management may investigate, meet with the employee, and impose discipline with one exception: to impose a disciplinary suspension, the appointing authority must act within 5 workdays.” Id. at 19.
As to conduct-related discipline, the testimony outlines the three step process for imposition of discipline by an appointing authority and the sequence of appeal rights of the employеe. The first step addresses the appointing authority‘s obligations, providing that “the appointing authority will determine the appropriate disciplinary action[,] [however,] [t]he appointing authority must first meet [sic] investigate the alleged misconduct, meet with the employee, and consider any mitigating evidence.” Id. at 18.
In short, we glean the intent of the legislature to have “workday” pertain to the appointing authority‘s schedule. It is manifest throughout the extensive commentary that such was intended in the proposed bills which, as we have noted, were cross-filed.
The Parties’ Arguments
With that background, we address the respectivе positions taken by the parties.
Mihailovich averred that, although the ALJ erred in counting the employee‘s workdays and in counting days that are expressly required to be excluded, the same result would have been reached had the count, and the statute, been properly interpreted and applied. He asserts that the “workdays” to be counted are those of the appointing authority. His construction of the counting requirement of the statute is that the days ought to have been counted as follows: (1) Thursday, March 5; (2) Friday, March 6; (exclude Saturday, March 7 and Sunday, March 8); (3) Monday, March 9; (4) Tuesday, March 10; (exclude Wednesday, March 11 as an employee holiday/leave day); and (5) Thursday, March 12. Thus, he concludes, the suspension should have been imрosed no later than March 12; and, it having been ordered on March 17, was five days beyond the 5-workday limit. Mihailovich supported his interpretation by reference to the Governor‘s Report, as we have discussed. He proffered that the explanations in the Report focus on the appointing authority‘s timeframe in which to act, thereby concluding that it is the appointing authority‘s workday that is to be counted.
We agree, as discussed above, and find his calculation to be an accurate reflection of which days were to be counted—or excluded—had the ALJ properly interpreted and applied the statute.
Mihailovich also highlights the statutory reference to “workday” rather than “employee shift” or “employee workday.” He elaborated on this point by concluding that the only logical reason for the statutory reference to the employee‘s work
The DOH, however, argues that the same provision that commences the calculation “following the close of the employee‘s next shift,” places emphasis on the employee‘s schedule. See
The ALJ also utilized the Governor‘s Report in analyzing the statute. However, contrary to Mihailovich‘s understanding, and ours, the ALJ determined that the 5-day count should be based on the employee‘s workdays. Compounding that error, the ALJ also erroneously counted Saturdays and Sundays as well as the employee hоliday of Wednesday, March 11.10 Such days are expressly required to be excluded from the count under the statute. See
Hence, we hold that, under
Notwithstanding the ALJ‘s misinterpretation and misapplication of the statute, the determination that the DOH failed to timely impose an unpaid suspension was correct. Therefore, we reverse the order of the circuit court and remand with instructions that the circuit court issue an order affirming the ALJ‘s decision on grounds consistent with this opinion.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED; CASE REMANDED TO THAT COURT FOR THE ENTRY OF AN ORDER CONSISTENT WITH THIS OPINION. COSTS ASSESSED TO THE MAYOR AND CITY COUNCIL OF BALTIMORE.
Notes
- The ALJ Correctly Concluded That The Department Violated SPP § 11-106 (c) By Not Suspending Mr. Mihailovich Within Five Workdays After The Appointing Authority Acquired Knowledge Of Alleged Misconduct.
- The Circuit Court Erred In Reversing the ALJ.