Abbey v. University of Maryland

EYLER, Judge. Penny Abbey and fourteen other appellants, 1 at all times relevant to this appeal, were State employees who worked in the physical plant department at the College Park location of the University of Maryland, appellee. Appellants were designated as essential employees by appellee, and pursuant to policies and procedures relating to emergency situations adopted by the Board of Regents of the University of Maryland System, 2 appellants were expected to report to work regardless of weather conditions. From January 7 to 13, 1996, there was a heavy snowfall in the State of Maryland.

On January 8 and 9, Monday and Tuesday, respectively, appellants took one of four actions: (1) some appellants reported to work, (2) some appellants did not report to work and used accrued leave time (sick, vacation, or personal leave), (3) some appellants did not report, and gave prior notice of their absences, and (4) some appellants did not give prior notice of ⁴⁹ their absences, and were disciplined and not paid for the two days in question. On February 1, 1996, the Governor’s Chief of Staff issued a memorandum, on behalf of the Governor, directed to all cabinet secretaries and heads of independent agencies. The memorandum was entitled, “Weather Related Closing of January 8 and 9, 1996,” and announced that all “emergency essential employees” who were unable to report for duty on January 8 and 9 because of weather conditions were “to be granted emergency release time for the period of their absence.” The memorandum further provided that contractual State employees would be paid for the two-day closure. Appellee determined that the Governor’s memorandum did not require it to grant administrative leave to appellants, and it did not do so.

Appellants filed a grievance on February 5, 1996 and, after it was denied, appealed to the Office of Administrative Hearings. A hearing was held by an administrative law judge (“ALJ”) on January 22, 1997, at which exhibits were introduced into evidence. No testimony was presented. The ALJ, in a decision dated August 20, 1997, ruled in favor of appellants and ordered that they be granted administrative leave for January 8 and 9, 1996.

The basis of the decision was that the memorandum issued on behalf of the Governor applied to appellants and was binding on appellee. Appellee filed a petition for judicial review in the Circuit Court for Montgomery County. The circuit court, after a hearing on April 20, 1998, reversed the ALJ’s decision and ruled in favor of appellee. Question Presented and Contentions The parties each present several questions for our consideration, but they are really in the nature of sub-questions that can best be presented as contentions.

The single basic question for our consideration is whether the circuit court erred in reversing the decision of the ALJ. Appellants first contend that the ALJ found as a matter of fact that the Governor’s memorandum was intended to apply ⁵⁰ to all State employees. This finding, according to appellants, was supported by substantial evidence, but the circuit court ignored it, conducted a de novo review, and concluded that it was not intended to apply to appellants. Appellants conclude that this constituted an error of law because the circuit court failed to apply the correct standard of review to the factual conclusions of the ALJ.

Second, appellants assert that the circuit court, relying on Maryland Code (1997) Education § 12-104,. erroneously decided that the Board of Regents of the University of Maryland System has sole authority to create policies governing the University. Appellants assert that this power is limited, that the University must comply with laws of general application, and that the Governor has ultimate authority over appellee. Appellants argue that the Governor’s memorandum directly applied to them, and that appellee is bound to comply with the Governor’s mandate. Third, appellants contend that, while appellee’s employees are not covered by the State Personnel Management System, they are to be treated in the same manner as those employees, under the Education article, § 12-lll(b).

With reference to § 12-104, appellants acknowledge that the Board of Regents is given responsibility for the management of the University System, including appellee, but argue that such powers are subject to “any ... restriction expressly imposed by law.” Md.Code (1997) Educ. § 12-104(a). Appellants argue that the provisions contained in Education, § 12-111 constitute such other restrictions. Appellants assert that those provisions prohibit the Governor from disadvantaging appellee’s employees vis-a-vis classified State employees. Section 12-lll(b), as it existed at the time of the administrative proceedings, provided: Classified employees — In general. — After appointment, employees in positions designated by the University shall be regarded and treated in the same manner as classified service employees of this State and: ⁵¹ (1) Have all rights and privileges of classified service employees; (2) Have the right of appeal as provided by law in any case of alleged injustice; (3) Shall be paid salaries not less than those paid in similar classifications in other State agencies; and (4) Shall retain their vacation privileges, retirement status, and benefits under the State retirement systems. [3] Md.Code (Supp.1996) Edue. § 12 — 111(b), Specifically, appellants contend that the leave benefits at issue in this case are within the “rights and privileges” of classified employees under § 12 — 111(b)(1). 4 In essence, this argument holds that the Governor’s memorandum applies to appellants vicariously, through the operation of § 12 — 111(b).

Appellee responds that the circuit court did not engage in any fact finding but ruled as a matter of law. Second, appellee asserts that, as a matter of law, it was not required to follow the Governor’s memorandum. Appellee relies on (1) Education § 12-104, which gives responsibility for management of the University System of Maryland to the Board of Regents, (2) the fact that the Board of Regents has adopted a ⁵² policy dealing with emergency weather conditions and the release of employees, and (3) the view that the memorandum issued by the Governor’s office on its face did not apply to appellants. In connection with the third point, appellee points out that the memorandum expressly referenced procedures that had been revised in October, 1994, and that the University System of Maryland was exempt from those procedures. 5 With respect to Education § 12-111, appellee points out that subsection (a) acknowledges that the University System of Maryland has an independent personnel system and subsection (c) provides that, subject to subsection (b), the Board of ⁵³ Regents shall establish general policies and guidelines governing classified personnel.

Appellee argues that if subsection (b) requires that its employees be treated precisely the same as employees in the State Personnel Management System, it would vitiate the authority given to the University System of Maryland in subsections (a) and (c). Consequently, according to appellee, subsection (b)(1) must mean that the University shall provide the same general types of rights and privileges available to State Personnel Management System Classified (now skilled and professional service) employees but that details are within the discretion of the Board of Regents. Discussion The proceedings before the ALJ were governed by the Administrative Procedure Act, Maryland Code (1995 & Supp. 1996) State Government article §§ 10-201 to 10-226, see Md. Code (1997) Educ. § 12-104(h)(2), which authorizes further review by a circuit court and the Court of Special Appeals. See State Gov’t §§ 10-222 to 10-223 (1995).

This Court reviews the decision of the ALJ, not the decision of the trial court, Public Serv. Comm’n v. Baltimore Gas & Elec. Co., 273 Md. 357, 362 , 329 A.2d 691 (1974); Consumer Protection Div. v. Luskin’s, Inc., 120 Md.App. 1, 22 , 706 A.2d 102 (1998), rev’d in part on other grounds, Luskins’s, Inc. v. Consumer Protection Div., 353 Md. 335 , 726 A.2d 702 (1999), and pays no deference to the legal conclusions of the ALJ. See Md.Code (1995) State Gov’t § 10-222(h)(3); Baltimore Lutheran High Sch. v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701 (1985); Maryland Securities Comm’r v. U.S. Securities Corp., 122 Md.App. 574, 587 , 716 A.2d 290 (1998).

The issue presented in this case is purely one of law. The written decision of the ALJ in this case set forth a “Findings of Fact ” section containing several enumerated facts. The parties apparently do not contest any of the factual conclusions of the ALJ, or inferences that may have been derived from those facts. The issue presented for our review is simply whether the Governor’s memorandum of February 1, 1996, supercedes the employment policy in effect at the Uni ⁵⁴ versity of Maryland College Park, either directly or by operation of Education § 12-111.

Appellant asserts that the ALJ made a factual finding relating to the “intent” of the Governor in issuing the memorandum, and that findings with respect to intention are factual findings. None of the ALJ’s enumerated factual findings refer to the intent of the Governor in any respect, however, and in the absence of an ambiguity in the language of the memorandum, the subjective intent of the Governor in authorizing the memorandum would be immaterial to the question of its legal effect. We conclude from our review of the written decision of the ALJ that the decision is not based on a conclusion as to the intent of the Governor, but is instead based on legal conclusions as to the effect of the memorandum on Appellants. The administrative decision in this case apparently makes two legal conclusions, in the alternative, as to the effect of the memorandum: (1) that the memorandum includes designated employees of the University within its scope, and therefore, for the days in question, directly supercedes the subordinate policy of the University with regard to essential employees, and (2) that even if the memorandum covers only certain classified employees of the State within its scope, appellants are entitled to the same “rights and privileges” thereby conferred on those classified state employees by operation of § 12-111 of the Education article.

We note that, of these two legal conclusions, the administrative decision appears to present the first conclusion as the primary basis of decision, since the second conclusion is evidenced by a quotation of § 12-111 without a separate discussion of the language or applicability of that section to the appellants. We nevertheless believe that the ALJ concluded that § 12-111 applied to the case in some way, and we will therefore consider appellant’s arguments with respect to the applicability of this statute. The ALJ stated in his written decision, “Such directives by the Governor have precedent (sic) over the policies of the Board [of Regents]. This directive applied to all State emergency essential employees and the Employees involved in this ⁵⁵ grievance are State employees and are deemed essential by the University.” We conclude, however, that the Governor’s memorandum does not include appellants within its scope — it does not mandate by its own terms that they be given emergency release time for January 8 and 9.

The memorandum was addressed primarily to “emergency essential employees” and ordered that these employees be given “emergency release time” for their absences from work. The memorandum also mandated that such employees not be disciplined for their absences, and that agency heads and cabinet secretaries notify emergency essential employees of their designation, develop and maintain an agency information system to inform employees about emergency release conditions, and require employees to call their agency for instructions prior to their shifts in the event of an emergency. The memorandum stated that the Procedure for the Release of State Employees Under Emergency Conditions (“Procedure”) would be amended in accordance with the new requirements. A review of this Procedure reveals that there are many references to the Procedure in the memorandum.

The Governor’s memorandum referred to the written Procedure in effect at that time, mandated additional action not required under the Procedure, and stated that the Procedure would be amended as a consequence of changes in the Procedure announced in the memorandum. The terms “emergency essential employee” and “emergency release time” in the memorandum were references to those terms as defined in the Procedure at §§ IV. E. and IV. H., respectively.

Action by the Governor was necessary because under § VI. of the Procedure, the authority of the Secretaries of Transportation, Personnel, and General Services to grant release time is limited to one day unless the Governor authorizes a longer period of time. Given this scheme, the operation of the memorandum is clear: it granted a one-time benefit not available as a matter of course under the Procedure, mandated additional agency action not required under the Proce ⁵⁶ dure, and stated that the Procedure would be amended accordingly. The Procedure applied to a class of employees defined in the Procedure and granted a benefit also defined in the Procedure. The difficulty for appellants is that they are explicitly excluded from the Procedure.

Section III of the Procedure provides as follows: SCOPE This procedure applies to all agencies in the Executive Branch, EXCEPT the following: educational institutions under the jurisdiction of the University of Maryland System, Morgan State University, St. Mary’s College, the Maryland School for the Deaf and Baltimore City Community College. There is no language in the memorandum that suspends or overrides the maintenance of distinct emergency release policies for the above educational institutions and all other executive departments of the State. Far to the contrary, the memorandum includes many explicit references to the Procedure, including reference to the primary class of employees to be benefitted, “emergency essential employees,” which is defined to exclude appellants and other employees of the University System. In light of the existence of entirely separate policies on emergency situations, and the broad autonomy accorded to the Board of