Department of Juvenile Services v. Miley

MEREDITH, Judge. A State employee succeeded in having his termination rescinded by an administrative law judge who concluded that the appointing authority had not met its obligation to “give the employee a written notice of the disciplinary action to be taken” within 30 days, as required by Maryland Code (1993, 2004 Repl.VoL), State Personnel and Pensions Article (“SPP”), § ll-106(a)(5). Both the administrative law judge (“ALJ”) and the Circuit Court for Baltimore City interpreted the statute to require that, in order to terminate a State employee for misconduct, the employee must receive notice of the termination within the 30-day time limit imposed by SPP § 11— 106(b). Because the termination notice in this case was mailed on the 30th day and received on the 31st day, it was ruled untimely.

The employer appeals, arguing that it complied with the statute by mailing the notice on the 30th day, and that it properly terminated the employee within 30 days. For the reasons that follow, we conclude that mailing the notice on the 30th day did not satisfy the employer’s obligation to give a written notice of the discipline before imposing the discipline. We therefore affirm the judgment of the circuit court. Statement of Facts and Procedural History Leonard Miley, the appellee, was a Resident Group Life Manager at the Thomas J.S. Waxter Children’s Center, run by the Department of Juvenile Services (“DJS”), the appellant.

On February 1, 2006, an incident occurred that involved Miley ¹⁰¹ and one of the youths at the center. The facts found by the ALJ were as follows: 2. On February 1, 2006, [Miley] was working at the Thomas J.S. Waxter Children’s Center in Laurel, Maryland. 3. During an organized movement of female youth in the facility, one of the youths, W.C., became loud and boisterous, and was acting in a disruptive manner. 4. [Miley] separated the youth from the rest of the group and guided her to the “tour office” where there are individual confinement rooms. 5.

The youth continued to act in a disorderly manner[,] striking [Miley] and knocking his eyeglasses from his face, damaging them and scratching [Miley’s] face in the process. 6. The youth continued to repeatedly strike [Miley]; two female staff members responded to his location to assist in controlling the youth. 7. Even after the two additional staff members took over control of the youth and had her somewhat controlled, the youth had a grip on [Miley’s] shirt collar and would not let him loose. The other staff members finally pried [Miley] from the youth’s grasp. 8.

Even after the two additional staff members had assumed control of the situation, the youth was able to kick [Miley] in the groin area, and spit directly in his face. 9. [Miley] became upset and clenched his fists; the other staff members persuaded him to leave the area. 10. At no time did [Miley] strike the child. 11. This incident was witnessed by Katherine Perez, Director of the Office of Independent Juvenile Service Monitors, and her assistant, Kimberly Bones. 12. Ms. Perez’s and Ms. Bones’ view of the area in the confinement room was through a window in “the cage” and much of the view was obstructed.

They were ¹⁰² unable to clearly see all of the activities actually occurring in the room. 13. The incident was reported to DJS, as well as to the Department of Social Services and the Maryland State Police on February 1, 2006. 14. Gerald D. Sullivan, an Investigator with the DJS Office of Professional Responsibility and Accountability (“OPRA”), Investigations and Child Advocacy Unit, began an investigation on February 1, 2006. 15. On February 1, 2006, Mr. Sullivan interviewed [Miley] and several of the other witnesses. 16.

The Investigator completed his report, concluding that [Miley’s] behavior had not been in compliance with the established procedures. 17. On February 28, 2006, [Miley] met with Reginald C. Garnett, Superintendent of Cheltenham Youth Facility and Gregory McDowell, Assistant Superintendent, to present a memorandum containing information [Miley] wished DJS to consider before determining whether to take disciplinary action and if it elected to do so, in deciding what action to impose. 18. On March 2, 2006,[*] Carl V. Sanniti, Deputy Secretary, and Kenneth D. Montague, Jr., Secretary of DJS, signed a Notice of Termination, advising [Miley] that his employment was terminated effective with the close of business on March 3, 2006. [*ALJ’s footnote 3:] Although the signature date is listed as March 2, 2006, the space for “Notice Date” was left blank. 19. At some time on Friday, March 3, 2006, DJS mailed to [Miley] the Notice of Termination, along with a cover letter advising him of the decision and explaining his appeal rights.

The Notice of Termination included the following finding of misconduct that, DJS concluded, warranted termination: ¹⁰³ The Department’s investigation regarding the allegations made against Leonard Miley, DJS Resident Group Life Manager I, has clearly established that his actions on February 1, 2006, towards W.C., Resident, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident, was intentional conduct without justification that seriously threaten the workplace; and unwarrantable excessive force in his treatment towards W.C., Resident, an individual in the care, and custody of the State of Maryland, Department of Juvenile Services. Mr. Miley was guilty of conduct toward W.C., Resident, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C. Resident, that has brought or if publicize^,] would bring the State into disrepute. Mr. Miley willfully made false verbal and written reports regarding his actions towards W.C., Resident, on February 1, 2006. Mr. Miley engaged in actions toward W.C., Resident, including clenching his fingers into a fist, jumping on W.C.’s bed at he time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident, were violations of the lawful orders given by his superiors pertaining to the use of force towards residents.

Mr. Miley’s actions toward W.C., Resident, on February 1, 2006, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to hit and or hitting W.C., Resident, caused a potential breach of security by jeopardizing the safety and security of Ms. Hudson-Willies, Ms. Willoughby, and W.C., Resident. Mr. Miley’s actions toward W.C., Resident, on February 1, 2006, including clenching his fingers into a fist, jumping on W.C.’s bed at the time that W.C. was being restrained by Ms. Hudson-Willies and Ms. Willoughby, and attempting to ¹⁰⁴ hit and or hitting W.C., Resident^] warrant termination of his employment with the Department of Juvenile Services. For the purpose of this appeal, the critical dates are the following. On February 1, 2006, the appointing authority acquired knowledge of the alleged misconduct.

After investigating the alleged misconduct and meeting with the employee, the Secretary of DJS signed a notice of termination on March 2, 2006 (which was the 29th day after February 1, 2006). The notice said that Miley’s termination would be effective at the close of business on March 3, 2006. The notice of termination was mailed by DJS on March 3, 2006 (the 30th day after the incident), and was not received by Miley until March 4, 2006 (the 31st day after the incident). 1 Miley appealed his termination, and the matter was referred to the Office of Administrative Hearings, pursuant to SPP § 11-110, which provides in subsection 11—110(d)(3): “The decision of the Office of Administrative Hearings is the final administrative decision.” Miley contended that his termination was arbitrary and capricious, and that DJS had not complied with SPP § 11-106 because he did not receive his notice of termination within 30 days of the incident. DJS argued that the termination was justified, and that the statute required only that the notice of termination be mailed—not received—within 30 days.

The ALJ found that the termination was invalid because it had not been imposed in a timely manner, holding that the Court of Appeals’s decision in WCI v. Geiger, 371 Md. 125 , 807 A.2d 32 (2002), required that all steps prior to and including termination occur within 30 days of the incident, which meant that Miley should have received the notice of termination before 30 days had elapsed. The ALJ ¹⁰⁵ rescinded the termination and ordered that Miley be reinstated with back pay. DJS sought judicial review in the Circuit Court for Baltimore City, which affirmed the final decision of the ALJ. The circuit court was persuaded that the ALJ’s interpretation of the notice requirement was correct because it followed the “general rule” that, where the statute does not specify the method of service, notice is deemed to have been given on the date that such notice is received.

DJS timely appealed to this court. Analysis On appeal, we review the decision of the agency—in this case, the decision of the ALJ—not that of the circuit court. Department of Health and Mental Hygiene v. Campbell, 364 Md. 108, 123 , 771 A.2d 1051 (2001). Our role 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.” Maryland-National Capital Park and Planning Comm’n v. Anderson, 395 Md. 172, 180-81 , 909 A.2d 694 (2006) (citations omitted).

In reviewing the agency’s decision, we must respect the agency’s expertise in its own field, and we are mindful that “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Maryland Aviation Admin, v. Noland, 386 Md. 556, 572 , 873 A.2d 1145 (2005) (citations omitted). The statute at issue here, SPP § 11-106, provides in pertinent part: (a) Procedure.—Before taking any disciplinary action related to employee misconduct, an appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating circumstances; ¹⁰⁶ (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights. (b) Time limit.—Except as provided in subsection (c) of this section, an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed. The parties dispute whether the appointing authority’s obligation to “give the employee a written notice” was completed when DJS mailed the notice of termination to Miley or when Miley actually received it.

There are reasonable arguments supporting each side’s position. Ultimately, we are persuaded that mailing the required notice on the 30th day and concurrently imposing the disciplinary action on the 30th day does not satisfy the appointing authority’s obligation under § 11— 106, as interpreted in Geiger, supra, 371 Md. at 144-45 , 807 A.2d 32 , to (a) impose the disciplinary action “no later than 30 days after the appointing authority acquires knowledge of the misconduct,” and (b) “give the employee a written notice of the disciplinary action to be taken” “[bjefore taking any disciplinary action.” (Emphasis added.) We need not address in this case hypothetical situations in which an employee might somehow preclude timely delivery of a notice that was transmitted well before the expiration of the 30 day period. Cf. Rockwood Casualty Ins.

Co. v. Uninsured Employers’ Fund, 385 Md. 99 , 116 n. 9, 867 A.2d 1026 (2005) (“In view of our holding that the statute requires actual notice, we note that in such a case, deliberate ignorance or intentional avoidance of notice is the equivalent of actual notice.”) (citation omitted). Here, the agency knew, or should have known, when it mailed the notice to Miley on the 30th day, that there was no possibility of the employee receiving the notice before the expiration of the 30th day. Miley argues that the outcome of this case is governed by a general rule of construction pertaining to statutes that include ¹⁰⁷ a notice requirement. Although the Court of Appeals has observed that “a notice requirement generally imports receipt,” Grubbs v. Prince George’s County, 267 Md. 318, 323 , 297 A.2d 754 (1972), the Court has also recognized that when the legislature specifically states that notice can be by registered or certified mail, it is “strongly indicative of a legislative intent that a notice sent by registered mail within the statutory period complies even though receipt occurs beyond the statutory period.” Riley v. Abrams, 287 Md. 348, 356 , 412 A.2d 996 (1980).

See also Wheeler v. Unsat. C. & J. Fund, 259 Md. 232 -33, 239, 269 A.2d 593 (1970) (interpreting statute governing claims against the Unsatisfied Claim and Judgment Fund, and concluding that requirement that claimant “give notice” of intent to assert claim “within 30 days” after insurer’s denial of liability was satisfied by notice postmarked within the time period but received beyond such period). More recent Court of Appeals cases have made plain, however, that the issue cannot be resolved by mechanical application of a “general rule,” but rather, each statute must be separately analyzed and construed in the context of the applicable statutory scheme. In Rockwood, supra, 385 Md. 99 , 867 A.2d 1026 , analyzing whether a notice required by a provision in the Insurance Article was complete upon actual delivery or upon mailing, the Court held that where a statute required notice to be “serve[d] on the employer, by personal service or certified mail,” Md.Code (1996, 2006 Repl.

Vol.), Insurance Article (“IA”), § 19-406, the term serve “implies actual receipt.” Rockwood, supra, 385 Md. at 110 , 867 A.2d 1026 . Noting that “[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature,” id.