Andre v. Montgomery County Personnel Board

Gilbert, C. J., delivered the opinion of the Court. A merit system for officers and employees for Montgomery County was established pursuant to the county charter in 1948. Montgomery County Code, Ch. 33 sets out what is stylistically known as the “County Personnel Act.” That act or ordinance provides in pertinent part: “ARTICLE II. PERSONNEL REGULATIONS GENERALLY.

Sec. 33-5. Definitions; applicability of article; employee categories. (1) Merit system defined and general purpose. The general purpose of this chapter is to establish regulations not in conflict with the Charter of Montgomery County to implement a system of personnel administration that meets the social, economic and program needs of the people of Montgomery County based upon merit principles and facilitates the organizational and program objectives of the county government.

These regulations provide for the appointment, advancement and retention of employees on the basis of merit and fitness to be ascertained in most cases by competitive examination without regard to sex, marital status, race, religion, national origin or political affiliation. Provision has been made in these regulations for appeal to the personnel board ⁵⁰ by any applicant or employee who believes that the intent of article IV of the Charter of Montgomery County or of these regulations has been violated. Sec. 33-9. Applicants and applications. * * * (i) Employment policy and prohibition against discrimination.

It is the employment policy of Montgomery County to provide for appointment, advancement and retention of applicants and employees on the basis of merit factors to be ascertained in most cases by competitive examination without regard to sex, marital status, race, religion, national origin or political affiliation. The discrimination in employment or discrimination in advancement of any person who is an applicant or promotional candidate for a merit system position because of sex, marital status, race, . religion, national origin or political affiliation is prohibited. Any applicant or promotional candidate for a county position who believes that the application filed for employment or promotion may have been processed in violation of the provisions of this section may. appeal to the chief administrative officer within fifteen days of receiving written notification of the decision on the application for employment or promotion. Such appeal must be accompanied by substantiating evidence.

The chief administrative officer shall take appropriate and prompt action in rendering a decision on the appeal. The appellee shall be notified by the chief administrative officer of the decision and the chief administrative officer shall forward all information on the appeal to the county personnel board. Whenever an appellant does not concur in the action taken by the chief administrative officer, the appellant may appeal to the county personnel board ⁵¹ within fifteen days of receipt of the notification of the chief administrative officer’s decision. Such appeal shall be accompanied by a statement of the reasons.

In such cases, or on its own initiative, if it does not concur with the action taken by the chief administrative officer, the county personnel board shall conduct such further investigation, including a hearing, as it deems necessary to ascertain whether the provisions of the county’s employment policy against discrimination have been violated. The decision of the board shall be final and the chief administrative officer shall take all necessary actions to implement the board’s decision.” An old and perhaps shop-worn cliche' reminds us that a chain is only as strong as its weakest link. When the weakest link is fashioned from a flimsy fabric the strength of the chain is virtually non-existent. Despite the high sounding language of the Personnel Act, and its apparent objectivity, a practice prevailed in the County’s Department of Recreation whereby at least two of its employees were denied the opportunity for advancement.

The denial took the form of what seemed to be favoritism superimposed upon “cronyism.” 1 The case now before us arises from an order entered in the Circuit Court for Montgomery County (Frosh, J.) which affirmed action taken by the Montgomery County Personnel Board. The complaint had been brought before the Montgomery County Personnel Board (Board) by two employees of the Department of Recreation. Carroll J. Andre and Ciaron McDaniel, the employees and appellants, asserted that actions of the Department of Recreation (Department) violated the county merit system, Mont. Co. Code, Ch. 33, and thereby deprived them of advancement opportunities under the merit system. ⁵² Andre and McDaniel challenged the appointment process used in filling nine positions within the Department.

McDaniel had applied for two positions — Recreation Program Coordinator (Sports) and Recreation Program Coordinator for Special Programs. Andre had applied for one — Recreation Program Coordinator- for Community Centers. After nine days of hearings, the Board made findings of fact which illustrate the extent to which the “merit system” was ignored by the Director of the Department. The Board stated: “Both appellants are well-qualified, have satisfactorily performed their present duties and have demonstrated potential for professional growth and promotion.

The Qualifications Appraisal Boards which interviewed candidates for the nine positions were comprised solely of Department of Recreation management personnel, usually the Director and Deputy Director. In a majority of the challenged appointments, the Director himself served as Chairman of the Qualifications Appraisal Board. Most of the appointees had either worked with him or were known to him prior to their appointments with Montgomery County. Evaluation of applicants was based on subjective judgments and personal knowledge of the candidates.

In 1973, the Personnel Board became aware that the Personnel Office had not been adhering to closing date requirements on vacancy announcements. On September 21, 1973, the Personnel Board informed the Personnel Director that closing dates on employment opportunity announcements must be strictly adhered to as required by Section 33-9, Applicants and Applications, Subsection ⁵³ (c), Limited Application Acceptance Period, of the Personnel Regulations. In each of the cited cases, appointments were made on the basis of ratings by the Qualifications Appraisal Board, without reference to the available eligible list in accordance with Section 33-10 (r), Use of Eligible Lists of the Personnel Regulations. Several of the candidates were appointed at salaries higher than Step A without prior written approval of the Chief Administrative Officer as required by Section 33-13 (1), Within-Grade Appointments, of the Personnel Regulations.

However, there is no evidence that any of these actions were disapproved and testimony indicated that oral approval had been given by the Chief Administrative Officer.” The Board then proceeded to declare “specific findings” as to each of the nine positions that was filled under the guidance, if not instruction, of the Director, saying: “1. Associate Director of Recreation Programs Vacancy had been advertised on April 5, 1973, with a closing date of April 12, 1973 and was filled on July 30, 1973. Due to resignation of the incumbent in August 1973, the vacancy was readvertised on August 30, 1973, even though there was an eligible list containing four qualified candidates. Two additional names were added to the list on September 12 and 21, 1973 respectively, and one of these individuals was appointed.

The candidate selected received a ‘Well-Qualified’ rating and was in the highest rated category. The Qualifications Appraisal Board consisted of the Director and Deputy Director. Neither appellant applied for this position. 2. Associate Director of Facilities and Finance Vacancy was advertised on April 5, 1973, with a closing date of April 12, 1973.

Testimony ⁵⁴ revealed that four individuals were interviewed and found qualified by the Qualifications Appraisal Board, but only one name was placed on the eligible list. That individual was appointed. Testimony revealed that this individual was a friend and former co-worker of the department head and did not apply for the position until June J), 1973. No records are available on the other applicants.

The appellants did not apply for this position. It is evident that the Personnel Office failed to follow-up on the actions of the Qualifications Appraisal Board and was remiss in not placing the names of all qualified candidates on the eligible list as required by Section 33-10 (p), Eligible Lists of the Personnel Regulations. 3. Recreation Program Coordinator (Sports) Vacancy was advertised on March 22, 1973, with a closing date of March 29, 1973. Four persons were placed on the eligible list.

Mr. McDaniel was interviewed and rated ‘Qualified’ by the Qualifications Appraisal Board. Subsequently, he was found not qualified by the Personnel Office. Accordingly, Mr. McDaniel was asked by the Deputy Director of the Department of Recreation to withdraw his application, which he did. Testimony indicated he actually was qualified at the time of application.

The highest rated applicant, who received an ‘Outstanding’ rating was appointed. 4. Recreation Facilities Supervisor Vacancy was advertised on May 6,1974, with a closing date of May 17, 197U. Interviews were held on August 14 and 15, 1974 and five applicants were placed on the eligible list. The highest rated candidate received a ‘Well-Qualified’ rating and was placed on the eli ⁵⁵ gible list on August 15 while the other four candidates were not placed on the list until September 9.

Prior to placing all candidates on the eligible list, the successful candidate was notified by the Director of the Department of Recreation that he was to be appointed effective September 16,1974. The record shows that the appointee submitted a resume in June 197k, which was followed by an application submitted on August 16, 197k- The appellants did not apply for this position. The Personnel Office was remiss in accepting the resume and subsequent application after the closing date of the announcement, which violated Section 33-9 (c), Limited Application Acceptance Period of the Personnel Regulations. 5. Recreation Program Coordinator (Arts) Vacancy was advertised on March 22, 1973, with a closing date of March 29,1973.

Only two persons were placed on the eligible list. The highest rated candidate, who received a rating of ‘Qualified Plus-Plus’, was selected for appointment. This candidate’s application had been submitted two weeks before the issuance of the announcement. The appellants did not apply for this position. 6.

Recreation Program Coordinator (Community Centers) Vacancy was advertised in June 1973; eight qualified applicants were placed on the eligible list on May 31, June 20 and June 21, 1973 respectively. Two applicants were rated ‘Well-Qualified’ and six were rated ‘Qualified’. Mr. Andre was among the eight qualified applicants, with a rating of ‘Qualified’. The position was never filled and the list was allowed to expire in December 1973.

The position was readvertised on February 11, ⁵⁶ 1974, with a closing date of February 22, 197k. The candidate subsequently appointed submitted an application to the Department of Recreation on February 23, 197k, which was after the closing date and in violation of Section 33-9 (c), Limited Application Acceptance Period of the Personnel Regulations. The application was not forwarded to the Personnel Office until March 11, 197k, the date of the appointment, which was after the interview had been conducted and the candidate selected. The appointee received an ‘Outstanding’ rating.

The eligible list in March 197k contained only one name as none of the previous applicants had been recertified after the expiration date in December 1973. There was no evidence that the eight qualified applicants on the original eligible list were aware that that particular eligible list had expired. When the position was reannounced, apparently none of the eight reapplied. Failure to notify them of this fact and to provide them an opportunity to reapply is a reflection on the ethics of both the Department of Recreation and the Personnel Office. 7.

Recreation Program Coordinator (Roving Youth Leader) The record shows that this position was created for a particular individual. Evidence of this fact is contained in a memorandum dated November 13, 1973 from Neil A. Ofsthun, Director, Department of Recreation to William H. Hussmann, Chief Administrative Officer. The vacancy was advertised on January 21,. 197k, with a closing date of January 25, 197k. Four names were placed on the eligible list although one of the individuals had not even ⁵⁷ applied for this position.

There is a discrepancy between the eligible list furnished to the Personnel Board staff in early 1975 and the one presented at the hearing. Specifically, the list submitted at the hearing showed the same name with a rating of ‘Qualified’. The record shows that this individual was rated ‘Outstanding’ by the Qualifications Appraisal Board, but was later found to be ‘Not Qualified’ by the Personnel Office. On March 11, 197k, this applicant submitted a personal letter claiming additional experience acquired as an undergraduate student.

The Personnel Office, without verification to substantiate this claim, revised the rating to ‘Qualified’and allowed the individual to be appointed effective March 11, 197k■ Establishment and use of this eligible list suggests an improper practice and abuse of the merit system. Neither appellant applied for this position. 8. Recreation Program Coordinator (Special Programs) Vacancy was advertised on April 5, 1973, with a closing date of April 12, 1973. Mr. McDaniel was interviewed and rated ‘Qualified’ by the Qualifications Appraisal Board.

However, his name does not appear on the eligible list in accordance with Section 33-10 (p) Eligible Lists of the Personnel Regulations. No clarification or evidence was offered to support his exclusion from the eligible list. The appointee, the only outside candidate, applied on April k, 1973 before the vacancy was announced. He was given the highest rating, ‘Well-Qualified Plus’.

The handling of this case is further evidence of the improper and inefficient administration of the examination and eligibility certification process. ⁵⁸ 9. Program Supervisor (Aquatics) Vacancy was advertised on April 11, 1973, with a closing date of April 18, 1973. Only one individual was placed on the eligible list. This individual applied on March 12, 1973, was interviewed and placed on the eligible list on April 3, 1973, eight days before the vacancy was announced.

Testimony indicated one other person was interviewed, but there are no records to substantiate the testimony. The appellants did not apply for this position.” (Emphasis supplied). Little, if