Brown v. Wash. Suburban Sanitary Comm'n

Amy E. Brown v. Washington Suburban Sanitary Commission, No. 2347, September Term, 2019. Opinion by Nazarian, J. JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY DECISION – PROCEDURES FOR REVIEW – TRANSMISSION OF RECORD Maryland Rule 7-206 requires the agency to transmit, or cause the Office of Hearing and Appeals to transmit, the record to the circuit court for judicial review of its decision, whichever party petitioned for judicial review. The agency is the initial decisionmaker. The Office of Administrative Hearings is not an agency itself, but is a neutral arbitrator for administrative agency decisions.

Circuit Court for Prince George’s County Case No. CAL 19-16546 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2347 September Term, 2019 ON MOTION FOR RECONSIDERATION ______________________________________ AMY E. BROWN v. WASHINGTON SUBURBAN SANITARY COMMISSION ______________________________________ Kehoe, Nazarian, Reed, JJ. ______________________________________ Opinion by Nazarian, J. ______________________________________ Filed: May 3, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-04 08:59-04:00 Suzanne C. Johnson, Clerk Amy Brown worked for the Washington Suburban Sanitary Commission (“WSSC”) until August 24, 2018, when WSSC terminated her employment. She challenged her termination within WSSC unsuccessfully, then appealed. The Office of Administrative Hearings (“OAH”) held a hearing, and in a decision issued on April 16, 2019, upheld WSSC’s decision to terminate her. Ms. Brown filed a petition for judicial review in the Circuit Court for Prince George’s County on May 15, 2019.

WSSC moved to dismiss the petition on the grounds that the OAH hearing record had not been transmitted to the circuit court. The circuit court granted WSSC’s motion to dismiss, and we reverse. I. BACKGROUND On August 24, 2018, WSSC recommended that Ms. Brown be removed from her job after she received two suspensions within a twelve-month period. WSSC issued a Final Decision and Order upholding the termination on September 10, 2018, and Ms. Brown appealed WSSC’s final decision of termination.

Pursuant to Maryland Code (2010, 2020 Repl. Vol.), § 18-123(b) of the Public Utilities Article, Ms. Brown appealed the termination decision to OAH, which assigned the case to an Administrative Law Judge. On March 12, 2019, OAH conducted a hearing and on April 16 issued a decision affirming WSSC’s decision to terminate Ms. Brown. Ms. Brown filed a timely petition for judicial review in the circuit court.

The circuit court received WSSC’s response to Ms. Brown’s petition for judicial review, then scheduled a hearing for November 15, 2019. On November 4, 2019, WSSC filed a motion to dismiss the petition on the ground that Ms. Brown had not complied with Maryland Rule 7-206. The hearing went forward as scheduled, but the court heard WSSC’s motion to dismiss and not the merits of Ms. Brown’s petition, and after the hearing the court promptly dismissed the case. Ms. Brown filed separate motions to alter or amend and to revise the court’s judgment and the court denied both.

Ms. Brown filed a timely appeal, and we supply additional facts below as necessary.

II

DISCUSSION Ms. Brown challenges the circuit court’s decisions to grant WSSC’s motion to dismiss and to deny her motions to alter or amend and revise the judgment.1 For the reasons we explain, we hold that the circuit court erred in dismissing the petition, and we don’t need to address the post-judgment motions. 1 Ms. Brown listed the Questions Presented in her brief as follows: 1. Did the circuit court err or abuse its discretion in dismissing Appellant’s petition for judicial review for failure to submit the record of the agency proceeding? 2. Did the circuit court err or abuse its discretion in dismissing Appellant’s petition for judicial review when the transcript of the agency proceeding was before the circuit court while it was considering post-trial motions filed by the Appellant? WSSC phrased its Questions Presented like this: 1.

Did the Circuit Court correctly dismiss Appellant’s petition for judicial review, when, on the day that it had scheduled a hearing on the appeal, Appellant had yet to make any effort to ensure that the Office of Administrative Hears (“OAH”) had transmitted the record? 2. Does the Appellant’s attachment of exhibits to the motions filed after the Circuit Court dismissed her appeal, namely, the OAH’s decision and a transcript of the proceeding, constitute substantial compliance with her obligation to secure transmission of the record? 2 The circuit court dismissed Ms. Brown’s petition not for failure to state a claim, but for failure to comply with Rule 7-206. That decision involves the interpretation and application of Maryland statutes and rules. See Schisler v. State, 394 Md. 519, 535 (2006).

We “must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review.” Id. The circuit court needs the administrative record in order to review the case, and failure to transmit it requires that the action be dismissed. Md. Rule 7-206(e). That’s because the circuit court “‘is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’” Bd. of Physician Quality Assurance v. Banks, 354 Md. 59 , 67–68 (1999) (quoting United Parcel Service, Inc. v. People’s Counsel for Balt.

Cty., 336 Md. 569, 576 (1994)). There is no dispute here that the record underlying Ms. Brown’s termination wasn’t transmitted to the circuit court—the issue is who was responsible to transmit it and, therefore, on whom the failure falls. A. The Agency Is Responsible To Transmit The Record. A party seeking judicial review of an administrative agency’s decision “shall file a petition for judicial review in [the appropriate] circuit court.” Md. Rule 7-202(a). “Upon filing the petition [for judicial review], the petitioner shall deliver to the clerk a copy of the petition for the agency whose decision is sought to be reviewed.

The clerk shall promptly mail a copy of the petition to the agency.” Md. Rule 7-202(d)(1). Upon receiving that notice, the responsibility of transmitting the record falls to the 3 agency (not the petitioner). The clerk of the circuit court shall receive the record within sixty days of the agency receiving the “first petition for judicial review”: Except as otherwise provided by this Rule, the agency shall transmit to the clerk of the circuit court the original or a certified copy of the record of its proceedings within 60 days after the agency receives the first petition for judicial review. Md. Rule 7-206(d).

Yes, the record must include a transcript of any testimony, but it also includes all exhibits or other papers that were part of the administrative proceedings. Md. Rule 7-206(b). The Rule allows the agency to charge a petitioner with the cost of obtaining the transcript. Id.

(“[T]he first petitioner, if required by the agency, . . . shall pay the expense of transcription . . . ,” if it has not already been transcribed when judicial review is filed. (emphasis added)). And, if it does, the agency shall include the certification of costs within the record that it is required to transmit to the circuit court clerk: If the testimony has been recorded but not transcribed before the filing of the petition for judicial review, the first petitioner, if required by the agency and unless otherwise ordered by the court or provided by law, shall pay the expense of transcription, which shall be taxed as costs and may be apportioned as proved in Rule 2-603. A petitioner who pays the cost of transcription shall file with the agency a certification of costs, and the agency shall include the certification in the record.

Md. Rule 7-206(b). Both parties in this case conflate the responsibility to transmit the record and the responsibility to order and pay for transcription of the OAH hearing transcript. Again, the record includes the transcript, exhibits, and any other papers, and it is the agency’s responsibility to transmit it to the circuit court. See Md. Rules 7-202, 7-206.

And although 4 the petitioner can be required to pay the cost of the transcript, which is part of the record, the petitioner is not responsible to transmit or pay for the record as a whole. Id. All of this raises a