Desser v. Department of Health & Mental Hygiene

POLLITT, Judge. This appeal presents a most anomalous situation. A classified employee of the State of Maryland, after having been found in violation of numerous regulations proscribing conduct on his part for which the Secretary of Personnel could have permanently removed him from the classified service, appeals because he was denied back pay when the Secretary magnanimously reinstated him. Never hesitating to look a gift horse in the mouth, he asserts that a delay of some four and one-half years between his ineffective discharge and his ultimate reinstatement deprived him of due process of law.

His employer, the Department of Health and Mental Hygiene (DHMH), cross-appeals asserting that it was denied due process when the Secretary received evidence which the Department had no opportunity to cross-examine. The Circuit Court for Baltimore City affirmed the Secretary and this appeal ensued. Irwin Desser began employment with the DHMH in 1961 and was appointed Chief of the Division of Reimbursements in November 1977. Appellant Desser was suspended from this position on 18 June 1981, pending an evidentiary hearing on charges DHMH filed seeking his removal from State service.

The charges alleged violations of the Code of Maryland Regulations (COMAR) 06.01.01.47 Sections A, B, D, G, J, L, and M, which proscribe specific types of conduct which are sufficient cause for removal of classified state emplovees. Desser was also charged with misfeasance in ⁴ office and with having violated agency policies governing outside employment activities. An eight-day evidentiary hearing was conducted before the Department of Personnel’s hearing officer, Joan C. Ross, between the dates of October 19 and 30, 1981. On 11 December 1981, Examiner Ross issued a “Proposal for Decision” in which she dismissed the charges of violating COMAR 06.01.01.47, Sections A and B, which entail incompetency, inefficiency, or negligence in the performance of duty.

She upheld each of the other charges against Mr. Desser, and recommended his permanent removal from state classified service, effective as of the date of the final order in the matter. Specifically, Examiner Ross found that: 1. ... 2. Mr. Desser was engaged in a private business or occupation when the duties of his position as prescribed by law or regulation require his entire time for their performance and accordingly violated COMAR 06.01.01.-47, Section G. 3. Mr. Desser violated COMAR 06.01.01.47, Section D in failing to obey the reasonable direction of his superior officer to cease the private practice of law during State working hours which resulted in loss to the State through this employee’s subsequent charges of time and expenses to the State while engaged in his private occupation. 4.

Through his willful conduct of charging time and expenses to the State while engaged in his private occupation and the concomitant use of State secretarial services in the furtherance of his private occupation, the employee has violated COMAR 06.01.01.47, Sections J and L. 5. Mr. Desser’s conduct is such as to bring the classified service into public disrepute and he has thereby violated COMAR 06.01.01.47, Section M. 6. Through his activities, Mr. Desser is guilty of misfeasance in office and to the extent that he engaged in the private practice of law while on State time has violated Department of Health and Mental Hygiene Policy 2.0. ⁵ Accordingly, Irwin H. Desser, is to be permanently removed from State service effective the date of the final order in this matter, and he is further to be barred from future State service. Desser filed exceptions to the Proposal for Decision and on 18 January 1982, oral argument was held before the Director of the State Employer-Employee Relations Division, Charles R. Hennick.

On 25 January 1982, Hennick issued an “Order of the Director” in which he adopted all of Arbitrator Ross’ findings of fact and conclusions of law, and upheld Desser’s permanent removal from state service, effective as of the date of his original suspension. The order, however, was not submitted to the Secretary of Personnel for his review, and was never officially considered or approved by him. On 24 February 1982, Desser entered an appeal from Director Hennick’s decision to the Circuit Court for Baltimore City. While the appeal was pending, this Court, on 10 May 1984, issued its opinion in Comptroller v. Myers, 59 Md.App. 118 , 474 A.2d 941 (1984).

Myers was a directly analogous case in which Director Hennick had purported to give final approval to an arbitrator’s decision to terminate another classified employee. The employee challenged the Director’s authority to make a final decision on behalf of the DOP, and we held that the agency had, in fact, failed to follow proper procedure. Construing the applicable statute, Maryland Code (1957, 1979 Repl.Vol.), Art. 64A, § 38, we determined that “although the Secretary may delegate to an appointee his authority to hear, investigate, and determine charges brought against a classified employee, the decision of that appointee is not final until approved by the Secretary.” Myers, supra, 59 Md.App. at 126 , 474 A.2d at 946 . Consequently, the Director’s decision had resulted in “no final action or decision by the agency____” Myers, supra, 59 Md.App. at 128 , 474 A.2d at 947 .

Recognizing that this case had been subject to the same procedural flaw, Desser and the DHMH, on 18 March 1985, jointly moved for an order remanding the case to the ⁶ Department for further proceedings. The case was remanded on 26 March 1985. On 30 April 1985, Desser filed the requisite exceptions to Examiner Ross’ Proposal for Decision and requested an opportunity for oral argument before the Secretary of Personnel. The exceptions hearing was conducted before the new Secretary of Personnel, John F.X. O’Brien on 13 May 1985. 1 On 24 December 1985, the Secretary issued an order in which he sustained each of the violations cited by Examiner Ross with regard to Mr. Desser.

In the true spirit of Christmas, however, and “in recognition of Mr. Desser’s nineteen years of successful State service and the evidence that he can function as a competent and responsible manager ...” the Secretary found the penalty of discharge “excessive under the circumstances.” The Secretary concluded that “Mr. Desser should be restored to duty” but that “[s]uch factors do not mitigate in favor of granting him any back pay.” Both Desser and DHMH appealed to the Circuit Court for Baltimore City. The DHMH challenged any reinstatement, arguing that such a remedy was completely inconsistent with both the previous discharge proceedings and with Secretary O’Brien’s own findings. Desser, on the other hand, argues that the four and one-half year delay between the time of his suspension and reinstatement violated his rights to due process, and that he is entitled to back pay and benefits for the “excessive, unreasonable, and unfair delay and deprivation.” After a hearing on 26 November 1986, Judge David Ross affirmed the Secretary’s decision, finding that it was supported by substantial evidence. ⁷ Based on the undisputed findings with regard to Mr. Desser’s conduct, 2 and on the fact that he was at least equally responsible for any “delay” in the resolution of his case, we shall affirm the circuit court’s decision. We begin by addressing Mr. Desser’s contentions.

I Desser’s Grounds for Seeking Back Pay Desser does not contend that the entire period from the time of his suspension to the time of his final reinstatement constituted unreasonable delay. He acknowledges that the time prior to Director Hennick’s 25 January 1982 Order “could not be considered ‘delay’ because the events that took place during that period substantially complied with the procedural requisites” of the applicable agency statute and regulations. Instead, he argues that it was the time between Hennick’s 25 January 1982, decision and the Secretary’s 24 December 1985, final decision which constituted the impermissible delay in his administrative review. This was a period of 47 months.

The case had been pending in the Circuit Court for Baltimore City for approximately 37 of those months. Desser contends that, as a result of his prolonged “suspension,” he suffered undue prejudice in the form of lost wages and pension benefits, and opportunities to obtain group insurance coverage and join employee investment programs. He additionally claims to have suffered “the obvious professional and career hardships that went along with the excessively long ‘suspension.’ ” He asks this Court to provide a remedy by: “reverspng] the decision of the trial court, determinpng] the length of the constitutionally impermissible delay of administrative proceedings in this case, and directpng] the trial court to remand the case to the Secretary for a determination of the amount of back ⁸ pay, pension, and other benefits to which [he may] be entitled.” a. Desser’s Right to Assert Due Process/Delay Claim As a preliminary matter, appellee/cross-appellant, DHMH argues that we should dismiss Desser’s claim of “excessive delay” because he failed to assert this claim earlier in this proceeding.

DHMH contends that when the case was remanded to the agency in 1985, Desser raised only the limited issue of “whether due process required the reinstatement of a discharged employee following the issuance of a termination decision by someone other than the final agency decision-maker”—but not any issue related to administrative delay in ordering such reinstatement. This court has consistently held that no issue of fact may be submitted to a court or jury on appeal where it does not appear from the record that the question involved was before an agency. However, “[t]hat does not mean that a formal issue, specifically directed to such fact, must be presented first to the [agency]. It means that there must have been at least, evidence before the [agency] which would give it the opportunity to pass upon the fact.” Jackson v. Beth.-Spar.

Pt. Shipyard, 189 Md. 583, 589 , 56 A.2d 702, 705 (1948). To support issues on appeal from the agency decision “[i]t is not requisite that the evidence before the [agency] should be legally sufficient to support the issues. It is sufficient if there is enough evidence to bring the question to the attention of the [agency], so that it can be passed upon.” Id. 189 Md. at 590 , 56 A.2d at 705 .

Desser’s claim of impermissible delay was preserved for appeal because it was effectively “raised” in both his administrative hearing and before the trial court. In the March, 1985 joint motion for remand, the parties came to a consensus that “[a]t no time subsequent to the entry of the [January 25, 1982] order ... did the Secretary of the Maryland State Department of Personnel approve the Order of the Director ...” and significantly, that “absent action by the Secretary below, the decision below was and is not ⁹ final.” This language clearly advised both the agency and DHMH counsel that Desser had, at that point, awaited a final disposition of the case for a period of 38 months. It was only after his reinstatement that the question of back pay became an issue. The issue was effectively raised before the circuit court.

In his petition on appeal in that court, Desser alleged that he had been deprived of due process in that he “had remained suspended without pay and allowances for four (4) full years; had Desser been accorded due process of law in 1982, his reinstatement would have occurred in 1982____” Desser’s memorandum in support of this appeal contained extensive argument regarding his “effective suspension of nearly four years.” Since the issue was clearly raised in the trial court, it is properly before this Court. b. The “Administrative Delay” in the Instant Case While Desser has effectively preserved the issue of “unconstitutional delay” for appeal, his calculation of the period of delay attributable to the agency is seriously flawed. Desser maintains that the agency should be held responsible for “delaying” his reinstatement from 25 January 1982 to 24 December 1985—a period of three years and eleven months. In so arguing, however, he fails to recognize that for 37 months of this time, it was the circuit court—and not the agency—which had sole jurisdiction over the case.

Had DHMH substantially contributed to this delay, there may have been some merit in Desser’s position, but the record is completely lacking any evidence indicating acts on the part of the agency which delayed the resolution of the case. In fact, a substantial portion of the time the case spent in the circuit court is directly attributable to the appellant’s own dilatory action. Desser clearly took no affirmative action to expedite the proceedings during this period. Director Hennick issued his decision on 25 January 1982.

On 15 September 1982, DHMH moved to dismiss the case because Desser had failed to comply with Maryland Rule ¹⁰ B7(a), which required Desser, as the party requesting the transcript of oral hearings, to pay in advance the cost of transcription. As a