Dozier v. Department of Human Resources

⁵²⁸ KENNEY, J. Levi Dozier, III, appeals the dismissal of his petition for judicial review by the Circuit Court for Baltimore City. He raises two questions, which we have consolidated as follows: 1 Whether the circuit court erred in dismissing Dozier’s petition for judicial review? Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY Dozier was employed by the Baltimore City Department of Social Services (“BCDSS”) from August 6, 1986, until March 5, 2004. 2 During his eighteen years of service, Dozier was never the subject of any disciplinary action.

He rose from a “front line social worker” to a Program Administrator II. 3 As a Program Administrator II, Dozier was an “employee at will,” serving “at the pleasure of the employee’s appointing authori ⁵²⁹ ty,” and subject to termination “for any reason, solely in the discretion of the appointing authority.” Maryland Code (1993, 2004 Repl.Vol.), § 11-305 of the State Personnel and Pensions Article (“SPP”). On February 20, 2004, Dozier was presented with a notice of termination from the Department of Human Resources Secretary, Christopher J. McCabe. The letter, dated February 19, 2004, with an effective termination date of March 5, 2004, provided no justification for the termination and explained Dozier’s right to appeal as follows: In accordance with § 11-113 of the State Personnel and Pensions Article, you may appeal the termination by filing a written appeal within 15 days of your receipt of this memorandum. Your appeal should be sent to the Employer-Employee Relations Unit, Department of Human Resources, 311 West Saratoga Street, Baltimore, Maryland 21201, and may only be based on the grounds that the action was illegal or unconstitutional.

The decision on your appeal is the final decision in this matter. Dozier filed a written appeal on March 1, 2004. Three days later, his counsel filed an addendum to the appeal providing ⁵³⁰ four reasons why his termination was unlawful: (1) it was procedurally defective because it was not signed by his immediate appointing authority; (2) he would not have accepted a promotion 3 months earlier, which subjected him to reclassification and removed him from the “protections of the merit system,” had he known he would be terminated; (3) counsel was conducting an investigation to determine if there was a violation of Dozier’s civil rights; and (4) several days after the termination, the BCDSS Interim Director made a certain statement that Dozier interpreted to be defamatory. On March 24, 2004, the Employer-Employee Relations Unit (“Unit”) held a discretionary conference with Dozier pursuant to SPP § 11-113. 4 Thereafter, on April 6, 2004, the Unit issued a written decision concluding that: (1) Dozier had not sustained his burden of proving that the Secretary of Human Resources did not have authority to terminate appointments within BCDSS; (2) Dozier’s promotion in November 2003, had “no bearing [] on the legality or constitutionality of [his] termination”; and (3) Dozier had failed to prove that any defamatory statements were actually made, and that, in any event, any statements made after the termination did not demonstrate that the termination was illegal or unconstitutional.

The decision by the Unit, pursuant to SPP § 11-113(d)(3), was the “final administrative decision.” 5 Dozier filed a petition for judicial review on May 6, 2004, which was dismissed by the circuit court on September 2, 2004. After the court denied Dozier’s Motion to Alter Judgment, he filed this appeal. DISCUSSION Dozier contends that the circuit court improperly dismissed his petition for judicial review because it was authorized by ⁵³¹ statute and because he was denied due process. We shall address each contention individually.

I. Statutory Right to Judicial Review The Maryland Rules provide that judicial review of “an order or action of an administrative agency” is permitted only when “authorized by statute.” 6 Md. Rule 7-201. In this case, Dozier, an employee at will, was terminated pursuant to SPP § 11-305, which grants a right of appeal pursuant § 11-113. It provides: 7 (a) Applicability of section. — This section only applies to an employee: (1) in the management service; (2) in executive service; or (3) under a special appointment described in § 6-405 of this article. ⁵³² (b) Procedure. — (1) An employee or an employee’s representative may file a written appeal of a disciplinary action with the head of the principal unit. (2) An appeal: (i) must be filed within 15 days after the employee receives notice of the disciplinary action; and (ii) may only be based on the grounds that the disciplinary action is illegal or unconstitutional.

(3) The employee has the burden of proof in an appeal under this section. (c) Conference. — The head of the principal unit may confer with the employee before making a decision. (d) Disposition. — (1) The head of the principal unit may: (1) uphold the disciplinary action; or (ii) rescind or modify the disciplinary action and restore to the employee any lost time, compensation, status, or benefits. (2) Within 15 days after receiving an appeal, the head of the principal unit shall issue the employee a written decision.

(3) The decision of the head of the principal is the final administrative decision. (e) Expungement of personnel records. — Within 15 days after issuance of a decision to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records. The permitted appeal can “only be based on grounds that the [termination] is illegal or unconstitutional.” SPP § 11— 113(b). On review, the head of the principal unit may “uphold the [termination],” or “rescind or modify” it as he sees fit.

SPP § ll-113(d). But, as Dozier concedes, that decision is “the final administrative decision” and there is no express provision for judicial review contained in SPP § ll-113(d). Dozier contends, however, that the Administrative Procedure Act (“APA”) provides him with a statutory right to ⁵³³ judicial review. 8 Relying on Maryland Code (1984, 2004 Repl. Vol.), § 10-222 of the State Government Article (“SG”), which authorizes judicial review to “a party who is aggrieved by the final decision in a contested case,” he argues that the appropriateness of his termination constituted a “contested case” within the meaning of the APA and the upholding of his termination was the “final decision” in the case.

SG § 10-202(d) defines a “contested case” as: (d) Contested case. — (1) “Contested case” means a proceeding before an agency to determine: (i) a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing; or (ii) the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by statute or constitution to be determined only after an opportunity for an agency hearing. (2) “Contested case” does not include a proceeding before an agency involving an agency hearing required only by regulation unless the regulation expressly, or by clear implication, requires the hearing to be held in accordance with this subtitle. In Maryland Pharmacists Ass’n, Inc. v. Office of the Attorney General, 115 Md.App. 650, 656-57 , 694 A.2d 492 (1997) (citations omitted), this Court indicated that the definition of “contested case” was further refined to include only those disputes that, by their nature, entitle a party to an agency hearing, regardless of whether a hearing was in fact held. The entitlement to an agency hearing does not arise from the Administrative Procedure Act, but must originate from another source such as a statute, regulation, or due process principles.

Thus, in order to ⁵³⁴ decide that a “contested case” existed, we must discern from some other source that the local Association would have ultimately been entitled to an agency hearing on the facts of this case. The Court concluded that “a ‘contested case’ is a proceeding before, or dispute with, an agency that entitles a party to an agency hearing. The definition of ‘contested case’ contemplates only an agency hearing. In every instance, S.G. § 10-202(d) limits the scope of contested cases to those proceedings entitling a party to an agency hearing....” Id. at 658, 694 A.2d 492 .

At oral argument, Dozier contended that his right to appeal his termination was, in effect, an entitlement to an agency hearing within the meaning of the APA. 9 Relying on Modular Closet Systems, Inc. v. Comptroller of the Treasury, 315 Md. 438, 444 , 554 A.2d 1221 (1989), he argues that no “formal agency hearing” must be held for a case to constitute a “contested case.” In that case, Modular contested the imposition of assessments that had been levied against it by the 'Comptroller and requested a formal hearing to review the charges. Before an agency hearing could be held on the matter, however, the Comptroller abated the assessment. Modular moved for litigation expenses, arguing that the assessment was imposed without “substantial justification.” Id. at 443 , 554 A.2d 1221 . The Comptroller denied the request, and Modular petitioned for judicial review.

The Comptroller responded that judicial review was not appropriate because the dispute had not risen to the level of a “contested case.” The Court of Appeals disagreed and concluded that a “formal hearing” need not to have been conducted for there to be a “contested case.” Id. at 445 , 554 A.2d 1221 . It indicated that “a dispute resolved prior to a formal hearing may, nonetheless, be a contested case.” Id. The Court explained ⁵³⁵ that a dispute is considered a contested case when a statute or regulation “entitles” the party to a hearing. Id. at 444 , 554 A.2d 1221 .

Whether the hearing was actually conducted is irrelevant. See also Donocam Associates v. Washington Suburban Sanitary Comm’n, 302 Md. 501, 513 , 489 A.2d 26 (1985) (indicating that the aggrieved party must have had a right to an agency hearing for there to be a “contested case”). In Sugarloaf v. Waste Disposal, 323 Md. 641, 651 , 594 A.2d 1115 (1991), the Court indicated that for a proceeding to meet the definition of “contested case” certain “trial type” procedures must be afforded to the complaining party in a hearing. See also North v. Kent Island Ltd. P’ship, 106 Md.App. 92, 103 , 664 A.2d 34 (1995) (stating that “trial type” procedures must be provided in a “contested hearing”).

In C.S. v. Prince George’s County Department of Social Services, 343 Md. 14, 32 , 680 A.2d 470 (1996), the Court indicated that “[o]ne of the key elements of a contested case hearing is whether the entity conducting the hearing acts in an adjudicatory capacity, i.e. by determining the facts of the case and applying those facts to some legal standard in order to reach a conclusion.” In fact, SG § 10-208 provides that the following rights are to be afforded in a contested hearing and should be outlined in the Notice of Hearing: (a) In general.- — An agency or the Office shall give all parties in a contested case reasonable written notice of the hearing. (b) Contents of notice. — The notice shall state: (1) the date, time, place, and nature of the hearing; (2) the right to call witnesses and submit documents or other evidence under § 10-213(f) of this subtitle; 10 ⁵³⁶ (3) any applicable right to request, subpoenas for witnesses and evidence and specify the costs, if any, associated with such a request; (4) that a copy of the hearing procedure is available on request and specify the costs associated with such a request; (5) any right or restriction pertaining to representation; (6) that failure to appear for the scheduled