Bailey v. Maryland State Department of Public Safety & Correctional Services

CHASANOW, Judge. Lieutenant Ronnie Bailey appeals from a decision of the Court of Special Appeals denying him the right, as a supervisory employee of the Maryland State Department of Public Safety and Correctional Services (hereinafter “Department of Public Safety”), to represent other State employees in grievance proceedings against the State. Bailey raises the following principal issues for review by this Court: 1. Does he possess the requisite standing to challenge the Department of Public Safety’s policy of denying management-level employees from representing fellow employees in grievance proceedings? 2.

Does the case of a management-level employee, who represents other employees in grievance proceedings, constitute a conflict of interest as a matter of law? 3. Does the -Department of Public Safety’s policy improperly infringe upon Bailey’s first amendment right to free speech? For the reasons stated below, we hold that Bailey has standing to challenge the Department of Public Safety’s denial of his right to represent other employees in grievance proceedings and such representation does not constitute a conflict of interest as a matter of law. 1. Ronnie Bailey is a correctional officer employed by the Division of Correction (hereinafter “Division”) at its Brock-bridge Correctional Facility in Jessup, Maryland.

The Division is a branch of the Department of Public Safety, which is ⁴⁰⁰ the Respondent in this appeal. In February of 1989, Bailey was promoted from the position of “Correctional Officer III” to that of “Correctional Officer IV” (Lieutenant). According to the State Department of Personnel’s job description, the Correctional Officer TV position is considered the “first level of supervisory work in the maintenance of security at adult correctional facilities.” The primary responsibility of these officers is to supervise Correctional Officers I, II and III in carrying out the duties of their respective posts and assignments. A Correctional Officer IV directly supervises a unit of at least four Correctional Officers I, II, and III on an assigned shift at an institution.

A Correctional Officer IV may also be required to assume the duties of a Correctional Officer V or VI in the latter officer’s absence. The Correctional Officer IV position is considered lower-level management unlike Bailey’s prior position of Correctional Officer III. At the time of his promotion to Correctional Officer IV, Bailey represented fellow employees in various grievance proceedings. Bailey’s representation of his fellow employees may have been in part related to his union activities.

Bailey was the President of local chapter 1678 of a Maryland state employees union. Even though the Department of Public Safety contends that it is an inherent conflict of interest for Lieutenant Bailey to represent employees in such grievance proceedings, it has not prohibited him from engaging in any other union activities. On February 22, 1989, Bailey met with his shift commander and with the Brockbridge Correctional Facility’s Assistant Warden, William O. Filbert, Jr. At that meeting, Bailey was advised that he could no longer represent employees in grievance proceedings. A follow-up memorandum, dated February 23, 1989, advised Lieutenant Bailey that this decision was based on three declaratory rulings issued by the Department of Personnel. 1 It is important to note that Bailey volunteered ⁴⁰¹ to refrain from representing any employee of the Brockbridge Correctional Facility, or any other employee in a grievance where his representation might present an actual conflict of interest.

On May 10, 1989, Bailey met with Fred E. Jordan, Jr., the Commissioner of the Division of Correction. On May 31,1989, the Commissioner sent Bailey a memorandum which consisted of the following directives: “(1) You may not represent other current or previous employees of the Division of Correction or its institutions and agencies at hearings conducted by the Department of Personnel, the Department of Public Safety and Correctional Services, the Division of Corrections or any agency of the Division of Corrections. (2) You may continue to represent in any case which was initially appealed and in which the employee requested your assistance prior to your receipt of this memo. (3) Within one week of your receipt of this memo you will submit to Acting Warden Leftridge a list of all cases in which you are the representative as of that time.” ⁴⁰² On June 8, 1989, Bailey filed a grievance appeal petition claiming that he was aggrieved by the Division’s denial of his “right to function as [an] employee representative[ ] in accordance with ...

Article 64A of the [Annotated Code.” See Maryland Code (1957, 1988 Repl.Vol.), Article 64A, § 53(b) (providing that “[a]ny employee authorized to present a grievance may be represented at any stage of the grievance procedure by any person or persons of his choice”). 2 A hearing was eventually held before a hearing officer of the State Department of Personnel. Lieutenant Bailey was the only individual to testify at this hearing. On December 18, 1989, the hearing officer dismissed Bailey’s appeal on the grounds that the grievance was not timely filed. Bailey appealed that decision to the Circuit Court for Baltimore County.

The circuit court reversed and remanded the case for a decision on its merits. On January 25, 1991, a hearing on the merits was held before an Administrative Law Judge (hereinafter “ALJ”) in the Office of Administrative Hearings. 3 In his decision regarding Bailey’s grievance, the ALJ concluded that “[i]t is unreasonable to believe that [a] supervisor could represent employees with grievances against management where that representative is part of the management team.” The ALJ also determined that Article 64A, § 53(b), which provides that an employee with a grievance may be represented “by any ⁴⁰³ person or persons of his choice,” governs the employee with a grievance but not the representative. The ALJ finally concluded that, because § 53(b) is directed at a grievant, the representative of said grievant “does not have standing to use this section of the law.” Bailey again appealed the decision to the Circuit Court for Baltimore County (Hinkel, J.), and the court reversed the ALJ’s decision. The circuit court found that the General Assembly placed no limitations on “management representation” in the provisions of § 53, and that such a restriction should not be implied unless an actual conflict of interest exists.

The Department of Public Safety appealed to the Court of Special Appeals which reversed the circuit court’s decision. See Dep’t of Public Safety v. Bailey, 95 Md.App. 12 , 619 A.2d 176 (1993). The Court of Special Appeals held that Bailey lacked standing under § 53(b) because he was not an “aggrieved” party. Bailey, 95 Md.App. at 26 , 619 A.2d at 183 .

The court also held that Bailey lacked standing to assert that the Division infringed upon his first amendment right to free speech. Subsequently, this Court granted Bailey’s petition for a writ of certiorari to address these issues.

II

As a preliminary matter, Bailey contends that the standing issue was “not raised or briefed by either party in the appeal to the Court of Special Appeals” and, therefore, the intermediate appellate court should not have reviewed the issue. Even assuming the Department of Public Safety failed to contest Bailey’s standing, the record in this case indicates the issue was specifically decided at the administrative level and by the Court of Special Appeals. We also concur with the Court of Special Appeals’ conclusion that the circuit court implicitly decided the standing issue by reversing the ALJ’s decision, even though the circuit court made no explicit statement as to standing. See Bailey, 95 Md.App. at 26 , 619 A.2d at 183 . ⁴⁰⁴ Judicial review of the standing issue is, therefore, appropriate in the instant case. 4 The circuit court’s review of the ALJ’s decision was governed by § 10-215(g) of the State Government Article, which provided as follows: “In a proceeding under this section, the court may: * * * * * * (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the agency; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.” Md.Code (1984), State Gov’t Art., § 10-215(g).

See Md.Code (1984, 1993 Repl.Vol., 1993 Cum.Supp.), State Gov’t Art., § 10-222(h) (providing standard for judicial review previously found in § 10-215(g)). This Court held that the “substantial evidence” test of § 10-215(g)(3)(v) is a deferential one, and a court should not substitute its own judgment for that of the ⁴⁰⁵ administrative agency in question. Caucus v. Maryland Securities, 320 Md. 313, 324 , 577 A.2d 783, 788 (1990). The Court explained, however, that such deference pertains to an agency’s factual determinations and the inferences drawn therefrom, but when the agency’s decision is “predicated solely on an error of law, no deference is appropriate.... ” Id.

Consequently, even if we determine that the AL J’s decision concerning Bailey’s alleged lack of standing is based upon substantial evidence, reversal would still be warranted if the decision is also “affected by any other error of law.” Section 10-215(a) of the State Government Article states that a “party who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision as provided in this section.” Md.Code (1984), State Gov’t Art., § 10-215(a). See Md.Code (1984, 1993 Repl.Vol., 1993 Cum.Supp.), State Gov’t Art., § 10-222(a). In order for standing to be properly conferred under § 10-215(a), one must meet the following requirements: (1) the dispute must constitute a “contested case”; and (2) “one must both be a ‘party’ to the administrative proceedings and be ‘aggrieved’ by the final decision of the agency.” Medical Waste Associates, Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 611 , 612 A.2d 241, 248 (1992); Md.-Nat’l Cap. P. & P. Comm’n v. Friendship Hts., 57 Md.App. 69, 77 , 468 A.2d 1353, 1357, cert. denied, 300 Md. 89 , 475 A.2d 1200 (1984); Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 143 , 230 A.2d 289, 293 (1967).

Lieutenant Bailey’s grievance is the result of a direct order issued individually to him by the Division of Correction which prohibits him from representing fellow employees in grievance proceedings. Bailey claims he was specifically denied the right to continue an activity in which he was engaging at the time of his promotion, and which he wishes to continue in the future. An appeal from the denial of such a right constitutes a “contested case” under § 10-215. Bailey was also the complainant at the administrative level and a named party in each appellate proceeding thereafter.

Consequently, ⁴⁰⁶ he has achieved the status of a “party” to the proceedings in the case. The remaining issue is, therefore, whether Lieutenant Bailey was “aggrieved” according to the provisions of §§ 52 and 53(b) of Article 64A, which governed employee grievances against the State. Section 53(b) provides that “[a]ny. employee authorized to present a grievance may be represented at any stage of the grievance procedure by any person or persons of his choice.” The ALJ determined that § 53(b) is directed toward an “employee authorized to present a grievance” against the State, but not the “person or persons” chosen to represent that