Baltimore County v. Penn

ADKINS, Judge. This case involves two former Baltimore County police officers, appellees Charles Penn and Wayne Henninger, who were granted accidental disability retirement benefits. Appellant, Baltimore County, thinks they did not deserve such generous treatment. The principal legal question presented is the nature and effect of a presumption contained in the County’s disability retirement law. ²⁰² The law in question consists of §§ 20-22 and 20-22.1 of the Baltimore County Code.

Those provisions read as follows: Sec. 20-22. Accidental disability benefit. Upon the application of a member [of the Baltimore County employees’ retirement system] in service, ... any member who has been totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty at some definite time and place, without wilful negligence on his part, shall be retired by the board of trustees; provided that the medical board shall certify that such member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that such member should be retired. No beneficiary entitled to an accidental disability retirement allowance shall receive any allowance on account of ordinary disability.

Sec. 20-22.1. Accidental disability presumption. (a) Commencing as of July 1, 1980, and subject to the provisions of subsections (b) and (c) hereof, any condition or impairment of health of any sworn personnel in the police or fire departments, who is a member of the employee’s retirement system of Baltimore County caused by lung diseases, heart diseases, or hypertension resulting in permanent physical disability, which shall prevent the member from engaging in the scope of employment consistent with his normal previous duties, shall be presumed to have been suffered in the course of and arising from his employment; and such member shall be subject to retirement under the provisions of this Code relating to accidental disability retirement. (b) Sworn personnel in the police department shall have successfully passed a physical examination upon entering into service as a police officer which failed to reveal any evidence of such condition or impairment of health as described herein. ²⁰³ (c) In the case of sworn personnel in the fire department as of July 1, 1980, who successfully pass a physical examination between July 1 and August 16, 1980, which fails to reveal any evidence of such condition or impairment of health or those sworn personnel entering the fire department after July 1, 1980, and successfully passing a physical examination which fails to reveal any evidence of such condition or impairment of health, the presumption established may be rebutted only by clear and convincing evidence to the contrary.

The importance of these accidental disability provisions lies in the fact that one retired under them is entitled to an allowance equivalent to 66%% of his or her final average compensation, as opposed to the maximum 50% allowance for those who retire under ordinary disability. Baltimore County Code §§ 20-23(a)(2); 20-21(b). Appellees Charles Penn and Wayne Henninger sought and obtained the generous accidental disability benefits under the following circumstances: Penn was a lieutenant and Henninger a sergeant in the Baltimore County Police Department. On April 15, 1982, following an internal investigation, both were charged with numerous violations of departmental rules and regulations.

Soon after that both men called in sick. They were placed on sick leave status. Because of their conditions the disciplinary proceedings against them were never scheduled for hearing and, therefore, never terminated either adversely or favorably to them. On February 1, 1983, Penn and Henninger applied for accidental disability pensions, based on hypertension.

The medical board certified to the board of trustees that both men suffered from hypertension and because of that were permanently incapacitated from the performance of their regular duties as police officers. Those findings are not contested on this appeal. The trustees, nevertheless, denied accidental disability benefits, awarding only the lesser ordinary disability benefits. Penn and Henninger appeal ²⁰⁴ ed to the board of appeals.

At a de novo hearing, that body-considered the record made before the trustees, as well as medical reports and portions of the internal investigation report. On August 24, 1984, the board of -appeals reversed the trustees and authorized accidental disability retirement for Penn and Henninger. Baltimore County’s appeal to the circuit court resulted in affirmance of the Board of Appeal’s decision. Before us, the County asks: 1.

Was the trial court correct in its interpretation of the statutory presumption found in § 20-22.1(a)? 2. Did the trial court commit error in ruling that Penn and Henninger were entitled to accidental disability benefits? 3. Did the trial court and the Board of Appeals have jurisdiction over the appeal from the Board of Trustees? Because the third question presents a threshold issue, we shall address it first.

It will not detain us long. Jurisdiction Section 602 of the Baltimore County Charter deals with powers and functions of the Board of Appeals. Subsection (a) pertains to appeals from orders relating to zoning, as does subsection (e). Subsection (b) covers appeals from orders relating to licenses and subsection (c) with appeals from orders relating to building.

Subsection (d) provides: The county board of appeals shall hear and decide appeals from all other administrative and adjudicatory orders as may from time to time be provided by Article 25A of the Annotated Code of Maryland ... or by legislative act of the county council not inconsistent herewith. There is no other pertinent “legislative act of the county council____” Maryland Code, Article 25A, § 5(U), however, allows a charter county to authorize the county board of appeals to hear and decide appeals regarding the following matters: ²⁰⁵ An application for a zoning variation or exception or amendment of a zoning ordinance map; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; and the assessment of any special benefit tax. Baltimore County argues that because neither of these provisions expressly refers to personnel matters or to retirement benefits, the board of appeals lacked jurisdiction to hear the appeal from the trustees. If that is so, it avers, the circuit court also lacked jurisdiction to hear the appeal to it.

We do not read § 5(U) as the County does. As we see it, it deals with a broad variety of zoning matters, a broad variety of license and permit matters, special benefit taxes, and adjudicatory orders of any type. To eliminate “adjudicatory orders” as a separate category would be to fail to give effect to some of the legislative language, an improper approach to statutory construction. See State v. Fabritz, 276 Md. 416 , 848 A.2d 275 (1975), cert. denied, 425 U.S. 942 , 96 S.Ct. 1680 , 48 L.Ed.2d 185 (1976).

Section 602(d) reflects that reading of § 5(U). See Hope v. Baltimore County, 288 Md. 656, 663 , 421 A.2d 576 (1980) in which the Court of Appeals, although in the context of a subdivision plat appeal, suggested that § 602(d) refers to all adjudicatory and administrative orders. Thus, if the board of trustees’ decision was an “adjudicatory order” it was appealable to the board of appeals and thence to the circuit court. We have no doubt that the trustees’ decision was an “adjudicatory order.” In our view an adjudicatory order is one that decides what the Administrative Procedure Act defines as a “contested case” — an agency proceeding that involves “a right, duty, statutory entitlement, or privilege of a person.... ” State Govt.

Art. § 10-201(c)(1). See Donocam Associates v. Washington Suburban Sanitary ²⁰⁶ Commission, 302 Md. 501 , 489 A.2d 26 (1985). Certainly Penn’s and Henninger’s “statutory entitlement” to pensions, or to some level of pension, was involved here. And the trustees decided that question of statutory entitlement after a hearing at which counsel for both sides were present and evidence was reviewed.

It was not legislating; it was not rule-making; it was adjudicating two specific claims for statutory entitlement. Its decision was an adjudicatory order. Judge Sfekas did not err when he rejected Baltimore County’s jurisdictional argument.. The Section 20-22.1 Presumption The presumption upon which we now focus is found in § 20~22.1(a).

So far as this case is concerned, that subsection provides that a police officer whose (1) health is impaired because of hypertension, and who has because of that impairment, (2) a “permanent physical disability” which prevents the officer (3) “from engaging in the scope of employment consistent with his normal previous duties, [4] shall be presumed to have ... suffered [that impairment] in the course of and arising from his employment ” and is “subject to” accidental disability retirement [emphasis supplied]. No one contends that conditions (1), (2), and (3) were not met. The dispute is over the nature of the presumption and how it should be applied. Baltimore County insists that it is a Thayer-Wigmore presumption.

The Thayer-Wigmore tradition shifts to the party against whom the presumption operates [here, the County] only the burden of producing evidence and not the ultimate burden of persuasion. Under that type of presumption, only the burden of going forward is dissipated (the bubble bursts), whenever the evidence to the contrary is sufficient to generate a genuine jury issue. Montgomery County Fire Board v. Fisher, 53 Md.App. 435, 446 , 454 A.2d 394 , aff'd. 298 Md. 245 , 468 A.2d 625 (1983) [emphasis in original]. Once the bubble has burst, the presumption no longer has any effect. ²⁰⁷ Penn and Henninger, on the contrary, are convinced that the presumption is of the Morgan type. [A] presumption in the Morgan tradition, may shift the ultimate burden of persuasion, as well as the burden of producing evidence.

Such a presumption does not disappear like the bursting bubble ... rather, it remains in the case as one of the elements to be considered in determining whether [the party who has the burden of ultimate persuasion has met it]. Id. To perceive the critical nature of these conflicting contentions on the outcome of this case, we must refer to the proceedings before the board of appeals. All evidence was presented to the board by way of stipulation.

That evidence consisted of the record before the board of trustees, a number of medical reports, and extensive documents stemming from the internal investigation of Penn and Henninger. As to these last, it was further stipulated that Penn and Henninger denied the truth of much of the material contained in the investigation reports. They agreed, however, that that information formed the basis for the disciplinary charges lodged against them. In argument before the board, the County asserted that the hypertension problems concededly present in both Penn and Henninger really began to manifest themselves about the time the investigation commenced and became worse when the charges were filed. 1 Because “being under investigation, having charges, are not normal police activities ... they are duties outside of normal duties” the County posited that the ailments “did not arise from a history of police work that produced a gradual onset” and could not have been suffered in line of duty (in the course of employment).

Consistent with its Thayer-Wigmore theory, it concluded ²⁰⁸ that the bubble had been burst and that the presumption no longer operated in favor of the officers. The board saw it differently. After reviewing the evidence before it, including that relating to the investigation, it observed that a finding of guilt on the charges against Penn and Henninger “may have provided the basis for a determination that notwithstanding the presumption of accidental disability such disability would not be ‘without wilful negligence’ on the part of these employees and thus would not meet the standard stated in Section 20-22 of the Baltimore County Code.” But, as the board pointed out, there was no finding of guilt, and under