D'ANNA v. Secretary of Personnel

¹⁸¹ Lowe, J., delivered the opinion of the Court. Asking for a declaratory judgment in the Baltimore City Court, Joseph D’Anna, Jr. contended that State Employees Personnel Regulation 06.01.01.13 (hereafter, Rule .13) was in conflict with the legislative scheme established in the Merit System Law, Md. Code, Art. 64A, specifically §§ 31, 18 (c), 18 (g) and 22 (b). Appellant contends here, as he did below, that the regulation providing for an employee’s promotion without competitive examination — by reclassification of a position — contradicts the legislative intent that all positions under the State Merit System be filled by examination. By a written opinion the trial judge perceptively and analytically reached the opposite conclusion.

Appellant contends, however, that the trial court failed to apply rules of statutory construction which he feels were appropriate. "The cardinal rule to be applied in the construction of Maryland statutes is to ascertain the intention of the Legislature and to effectuate the legislative intention. Casey Development Corp. v. Montgomery County, 212 Md. 138 , 129 A.2d 63 (1957); Maryland Medical Service, Inc. v. Carver, 238 Md. 466 , 209 A.2d 582 (1965); Guy v. Director of Patuxent Institute, 279 Md. 69 , 367 A.2d 946 (1977). First, the Court of Appeals and this Court have repeatedly directed that the intention of the Legislature must be sought in the first instance in the words of the statute.

Board of Supervisors of Elections of Baltimore City v. Weiss, 217 Md. 133 , 141 A. 2d 734 (1958); Kimbrough v. Giant Food, Inc., 26 Md. App. 640 , 339 A. 2d 688 (1975); Mauzy v. Hornbeck, 285 Md. 84 , 400 A.2d 1091 (1979). Second, where a law, such as the Merit System Law, has various parts, provisions, or sections, it has been a long-standing and accepted rule of statutory construction that all parts, provisions, or sections of a law should be read, considered, or construed together so that all of its parts harmonize with one ¹⁸² another and are consistent with its general object and scope and so as to give effect, if possible, to all of its parts. Thomas v. Police Commissioner of Baltimore City, 211 Md. 357 , 127 A.2d 625 (1957); Thomas v. State, 227 Md. 314 , 353 A.2d 256 (1976); Maguire v. State, 192 Md. 615 , 65 A.2d 299 (1949); Fisher v. Bethesda Discount Corp., 221 Md. 271 , 157 A.2d 265 (1960). The third rule of statutory construction to be applied in determining the intention of the Legislature is that the Court should consider the object or purpose to be attained by the statutes in question and the evils or mischief sought to be remedied, and the Courts should construe the law so as to carry out, effectuate, or aid in its general purposes and policies, thereby suppressing the mischief and advancing the remedy.

State Department of Assessments and Taxation v. Ellicott-Brandt, Inc., 237 Md. 328 , 206 A.2d 131 (1965); State v. Fabritz, 276 Md. 416 , 348 A.2d 275 , on remand 30 Md. App. 1 , 351 A.2d 477 , cert. den. 425 U.S. 942 , 96 S. Ct. 1680 , 48 L. Ed. 2d 185 ; Prince George’s County v. Bahrami, 33 Md. App. 644 , 365 A.2d 343 (1976); Cooley v. White Cross Health and Beauty Aid Discount Centers, Inc., 229 Md. 343 , 183 A.2d 381 (1962); Department of Tidewater Fisheries v. Sollers, 201 Md. 603 , 95 A.2d 306 (1953); Mackie v. Mayor and Commissioners of Town of Elkton, 265 Md. 410 , 290 A.2d 500 (1972); Liquor Dealers Credit Control, Inc. v. Comptroller of Treasury, 241 Md. 656 , 217 A.2d 571 (1966); Chambers v. State, 6 Md. App. 339 , 251 A.2d 30 (1969); Parkinson v. State, 14 Md. 184 (1859).” While appellant has picked selectively from the multitude of guidelines judicially established for gleaning legislative intent, 1 there is one rather obvious consideration that he has ¹⁸³ overlooked. The regulation which he contends is in conflict with the legislative scheme was itself approved by the Legislature, at least sub silentio, without any recognition of a conflict. Rule .13 was published in the Maryland Register on August 31, 1977, and became effective on October 21, 1977. At that time, Md. Code, Art. 40, § 40A (f) provided that at least 45 days prior to the adoption, amendment, or repeal of any rule, regulation or standards by any of the several departments, boards, commissions or other agencies of the executive branch, the rule, regulation or standard shall be submitted to the Joint Standing Committee on Administrative, Executive and Legislative Review (AELR) of the General Assembly. 2 That committee was charged with reporting to the General Assembly, as well as to the Legislative Council, any recommendation for appropriate legislative action necessary to modify, change or reverse any rule, regulation or standard which the committee has considered.

Art. 40, § 40A (e). 3 The proposed regulation had been sent to the AELR committee on August 16,1977, and the 1977 Interim Report of the committee to the General Assembly, dated November 1, 1977, contained no recommendation for "appropriate legislative action” in regard to Rule .13; nor did it indicate in any way that the regulation should have been modified, changed or reversed. When the Legislature charges itself directly, not only with the responsibility to review each regulation as enacted, but also to consider precisely the possible conflicts with its own scheme of things, with which appellant has charged the regulation here, we must infer that the AELR committee has performed its statutory responsibility. In the absence of critical comment, a legal presumption arises that the regulation does not conflict. The burden to rebut that presumption falls upon he who asserts the conflict, and as pointed out by the well-reasoned ¹⁸⁴ opinion of Judge Joseph H. H. Kaplan, appellant has failed to meet that burden.

We adopt that opinion and append it here as reflective of our own analysis. Judgment affirmed. Costs to be paid by appellant. MEMORANDUM OPINION AND ORDER Petitioner requests a declaratory judgment as provided for in Article 41, Section 249 (Administrative Procedure Act) of the Annotated Code of Maryland to determine the validity of State Employees Personnel Regulation 06.01.01.13 (hereinafter "Rule .13”), which provides that an employee within the State Merit System may be promoted without requiring that the employee be on an eligible list for that position established by competitive examination.

Petitioner argues that this regulation conflicts with the legislative intent that all positions shall be filled by examination. Petitioner further contends that the Secretary of Personnel (hereinafter "Secretary”) had exceeded his authority by promulgating a regulation which is in conflict with the statute. A hearing was held before this Court on January 2, 1980, at which time testimony was taken, documentary evidence presented and arguments on behalf of Petitioner and Respondent were heard. Article 64A, Section 18(e), Promotions, provides: "(e) Promotions. — Promotion is a change from one class to another class with a higher maximum compensation, and vacancies shall be filled by promotion as far as is consistent with the best interests of the classiffed service, in the judgment of the Secretary... ."(emphasis added) Rule .13, Statement of Duties and Responsibilities of Positions, provides in pertinent part: ¹⁸⁵ "C. Documentation.

"(1) When additional duties are assigned to a filled position that may warrant its reclassification and there is more than one employee in an organizational unit who meets all requirements of the job specification for the prospective higher class, documentation shall be retained indicating the reasons for assigning these additional duties to the employee holding the position. "(2) An appointing authority may promote from