Bond v. Department of Public Safety & Correctional Services

¹¹⁷ DAVIS, J. The appellant, Gertrude Bond, tested positive for using marijuana and was fired from her secretarial job with the Department of Public Safety and Correctional Services (DPSCS). She challenged her termination in an intra-agency appeal, and an administrative law judge (ALJ) affirmed the DPSCS’s decision. When appellant sought judicial review, a Baltimore City Circuit Court judge affirmed the ALJ’s decision. Having noted a timely appeal, appellant presented three questions for our review.

Our resolution of the following question, which we have rephrased, renders appellant’s other two questions 1 moot: Was the ALJ’s conclusion that appellant used or possessed marijuana while at work supported by substantial evidence, when the only evidence bearing on that issue was appellant’s positive drug test? We conclude that the ALJ’s decision was not supported by substantial evidence, and we shall, therefore, reverse the judgment of the circuit court. FACTUAL BACKGROUND According to the ALJ, the DPSCS employed appellant as a secretary at a prison in Baltimore City. Because appellant’s job was classified as “non-sensitive” under the DPSCS’s internal regulations, she was not subject to random drug testing.

Appellant was, however, subject to drug testing if her “ap ¹¹⁸ pointing authority” 2 had “reasonable suspicion to believe that the employee [had] illegally used drugs.” COMAR 17.04.09.04(B)(1). Reasonable suspicion of drug use exists when “the appointing authority has reasonable and specific grounds to believe that a drug abuse test of an employee shall produce evidence of illegal use of drugs.” COMAR 17.04.09.04(B)(2)(a). Appellant’s direct supervisor, Lisa Lewis, worked part-time at Anderson Automotive Group in Baltimore, and she recommended appellant for a job at Anderson. Appellant applied and was required to take a drug test, which she failed; she tested positive for using marijuana.

Appellant told Lewis that she did not get the job because she had tested positive for using marijuana. Before then, Lewis had never suspected that appellant used illegal drugs. Lewis told her supervisor about appellant’s drug test and, based on Lewis’s report, the warden ordered appellant to take a drug test for the DPSCS. Appellant failed that drug test.

Appellant later admitted that she had smoked marijuana on a Saturday afternoon two or three weeks before the drug tests. Under S.P.P. § 11-105(3), the “illegal sale, use, or possession of drugs on the job” is “cause[ ] for automatic termination of employment.” In accord with S.P.P. § 11-106, the DPSCS met with appellant to discuss her drug test and to consider mitigating circumstances before determining the appropriate disciplinary action. The DPSCS ultimately fired appellant based on her positive drug test. State employees and the State are encouraged to enter into settlement agreements to resolve their disputes when the employees contest disciplinary actions.

See S.P.P. § 11— 108(a)-(d); see also McKay v. Dep’t of Pub. Safety and Corr. ¹¹⁹ Servs., 150 Md.App. 182 , 819 A.2d 1088 , cert. denied, 376 Md. 50 , 827 A.2d 113 (2003). In accordance with § 11-108, while appellant pursued her intra-agency appeal, she continued negotiating with the DPSCS for a less severe discipline. Before the ALJ, appellant contended that she and a personnel representative had reached a binding settlement agreement including reinstatement; the DPSCS, however, presented evidence to the contrary, and the ALJ agreed with the DPSCS that no agreement had been reached.

Based on the positive drug tests, the ALJ concluded that appellant violated the following provisions: • S.P.P. § 11-105; • COMAR 17.04.09.04; • DPSCS “Standards of Conduct and Internal Administrative Disciplinary Process,” §§ IIB, IV; • Executive Order 01.01.1991.16. The ALJ never specified which subsection of S.P.P. § 11-105 that appellant had violated, but the DPSCS agrees with appellant’s assumption that the ALJ focused on subparagraph (3), prohibiting the “illegal sale, use, or possession of drugs on the job.” Strictly speaking, COMAR 17.04.09.04 does not prohibit anything; rather, the regulation implements a procedure for drug testing and disciplining employees. It does not, itself, impose a substantive prohibition of drug use beyond that of S.P.P. § 11-105. Appellant thus could not have “violated” that regulation.

The relevant portions of the DPSCS’s Standards of Conduct guidelines, which we quote below, do not enlarge upon the prohibitions of S.P.P. § 11-105 and the process in COMAR 17.04.09.04. In the following section on drug use, the Standards begin with a declarative preamble: G. Drugs. All institutions, facilities, and offices of the Department of Public Safety and Correctional Services are drug free work ¹²⁰ places. As a condition of employment, an employee shall refrain from using illegal drugs and abusing legally prescribed or over-the-counter drugs on and off the work place.

The Standards then summarize the investigative and disciplinary processes for on-the-job drug violations: 1. CDS Violations at the Workplace. a. Reporting to work under the influence of CDS, [and] being in possession of or using CDS at the workplace is forbidden. When there is reasonable suspicion, (sensitive and nonsensitive employees) or [a] triggering incident has occurred (sensitive employees only)[,] the supervisor shall complete the Suspected Substance Use Observation Record and contact the IU (for employees of DOC, PATX or DPDS) or the designated ATR (for employees of all other agencies). b.

The IU or ATR shall report to the work site to arrange for a drug test. The employee shall be given two forms: Written Order to Submit to a Urine Test and CDS Test Order. c. The IU or ATR shall direct the employee to the designated testing site. d. An employee who tests positive for CDS shall be suspended pending termination from State service.

Finally, the Standards summarize a more lenient procéss for off-the-job drug violations: 2. CDS Violations Off the Workplace. ■ a. Non-sensitive classes or positions. 1) An employee who is arrested for a CDS violation shall be subject to action based on a review of his/her case. 2) An employee who (i) is found guilty of a CDS violation prior to 10/1/95, or (ii) is convicted of a CDS violation thereafter, or (iii) receives a PBJ disposition and for whom there is a demonstrable relationship between the offense and job duties, shall: a) On the first occasion, be suspended for a minimum of 15 working days, be referred to the EAP, be required to ¹²¹ participate successfully in a treatment program designated by the EAP, and in addition, be subject to other appropriate disciplinary actions, up to and including termination from State service. b) On the second occasion, be suspended pending termination from State service. The relevant portions of Executive Order 01.01.1991.16 are as follows: B. General Policy.

The State of Maryland establishes and adopts the following substance abuse policy for the Executive Branch of State Government: (1) The State of Maryland is committed to making good faith efforts to insure a safe, secure, and drug-free workplace for its employees consistent with the Drug-Free Workplace Act as enacted by Congress. (5) Employees are prohibited from: (a) Abusing alcohol or drugs; (b) Committing a controlled dangerous substance offense; * * * D. Drug Abuse Policy. (2) Working under the influence of a controlled dangerous substance is a violation of this policy; (3) An employee charged with a controlled dangerous substance offense shall report a finding of guilty, an acceptance of a plea of nolo contendere, or a probation before judgment to the appointing authority within 5 work days. Appellant argues that all of these legal provisions require, as a prerequisite to appellant’s automatic termination, that she used, possessed, or was under the influence of drugs while at work.

The DPSCS does not dispute that argument, but contends that substantial evidence in the record supports the ALJ’s conclusion that appellant used, possessed, or was under the influence of drugs at work. ¹²² DISCUSSION I Standard of Review We refer to the decision of the ALJ, but in judicial review actions such as this, the decision under review is the final decision of the agency. See, e.g., Mehrling v. Nationwide Ins. Co., 371 Md. 40, 57 , 806 A.2d 662 (2002). Even though our mandates in administrative law cases remand, affirm, reverse, or modify the circuit court’s judgment, we are reviewing the agency’s decision, not that of the circuit court.

Id. In this case, the final agency decision is the ALJ’s decision, because S.P.P. § 11 — 110(b)(1) requires the DPSCS to delegate final decision-making authority to the Office of Administrative Hearings for employee discipline cases. We may only reverse an administrative agency’s decision if it prejudiced appellant because it: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by 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 (1999 Repl.Vol.), State Gov’t, § 10-222(h); see also Gigeous v. Eastern Corr.

Inst., 363 Md. 481, 496 , 769 A.2d 912 (2001). The Court of Appeals has explained that those six specific grounds for reversal can be grouped into three levels of judicial review, depending on the amount of discretion an agency is afforded for the challenged action. See Spencer v. Md. State Bd. of Pharmacy, 380 Md. 515, 528-30 , 846 A.2d 341 (2004). First, subsections (i) through (iv) govern the agency’s purely legal conclusions.

Administrative agencies have no discretion to commit legal error. Therefore, we will not ¹²³ hesitate to overturn an agency’s erroneous legal conclusions, although we generally respect the agency’s expertise in its field and extend some degree of deference to an agency’s interpretation of the laws it administers. See, e.g., Gigeous, 363 Md. at 496 , 769 A.2d 912 . Because agencies have more discretion in making factual determinations, our review of subsection (v) is more deferential to