Ford v. Department of Public Safety & Correctional Services

WENNER, J. Appellant, Barbara Ford, was employed as a correctional officer by the Department of Public Safety and Correctional Services (“the Department”). On 14 April 1999, the Department filed a Notice of Termination against appellant, charging her with having violated various standards of conduct applicable to correctional officers, and she appealed to the Office of Administrative Hearings (“OAH”). On 5 May 1999, appellant filed a complaint pursuant to Md. State Pers. & Pens. Code Ann. § 5-305 (hereinafter referred to as the Whistleblower Statute) concerning her termination from the Department.

The Department denied the complaint, and appellant appealed that decision to the OAH. The appeals were consolidated, and Administrative Law Judge (ALJ) Leah J. Seaton heard the matter over the course of several days in November and December 1999. The ALJ dismissed the complaint, concluding that appellant’s termination did not constitute a reprisal under the Whistleblower Statute. With respect to the appeal from the Notice of Termination, ALJ Seaton concluded that the Department had failed to comply with the requirements of State Pers. & Pens.

Article § 11-106, reversed appellant’s termination, and reinstated her with back pay. Appellant appealed the dismissal of her whistleblower complaint and the Department appealed the reversal of appellant’s termination. The Circuit Court for Somerset County affirmed the dismissal of appellant’s whistleblower complaint but reversed and remanded ALJ Seaton’s decision with respect to appellant’s termination. This appeal followed. ⁴⁹² ISSUES PRESENTED On appeal, .appellant presents us with several issues for our consideration, which we have rephrased as follows: I. Whether the appointing authority 1 properly investigated the alleged misconduct before imposing discipline; II.

Whether the appointing authority erred in imposing discipline more than 30 days after the investigation was complete; III. Whether the appointing authority failed to consider properly certain mitigating circumstances before imposing discipline; IV. Whether the Whistleblower Statute applies to an employee’s complaint about the behavior of a supervisor; V. Whether Mr. Kaloroumakis is immunized from the retaliatory animus attributable to the appointing authority; and, VI. Whether the circuit court erred in ordering a remand because the appointing authority failed to identify any rule or regulation violated by appellant.

FACTUAL BACKGROUND The central facts underlying this appeal are undisputed. Appellant began working as a Correctional Officer I at the Eastern Correctional Institute (ECI) in August 1987. Shortly after becoming employed there, appellant met Ralph Logan, a co-worker at ECI. In 1988, appellant and Logan became involved in an intimate relationship, during the course of which Logan, on numerous occasions, successfully pressured appellant into loaning him money, or providing him with various other financial favors.

In or about 1990, Logan became ECI’s Chief of Security. When appellant attempted to end their relationship, Logan said that “things will change” and that “life will not be good.” Even after their relationship ⁴⁹³ ended in 1991, Logan continued to pressure appellant for money and to resume their relationship. Logan received a number of promotions, first serving as Assistant Warden, then Acting Warden. In 1998, Logan became Warden.

In the meantime, appellant had unsuccessfully sought numerous promotions, including one on which she had the highest score on a test for the position. In July 1996, appellant filed a grievance because she had not been promoted, but, according to her, she withdrew the grievance when Logan advised her not to pursue it. In addition, appellant filed a complaint with the Commission on Human Resources against Logan but did not pursue it because she feared Logan would retaliate. In about 1991, appellant began a romantic relationship with Joann Diggs, another co-worker at ECI.

They lived together from 1991 until their relationship ended in approximately June 1998. During this period, Diggs witnessed telephone calls from Logan to appellant. On one occasion, Diggs confronted Logan over the telephone, warning him that such calls constituted sexual harassment. As a result of her warning, Logan threatened Diggs.

In about June 1998, Diggs was assaulted by Anna Allen, another correctional officer. Diggs charged Allen with criminal assault, and Allen responded with allegations that Diggs had been sexually harassing her. As a result of this incident and Allen’s allegations, Diggs was demoted. Diggs appealed that action, believing that she had been demoted in retaliation for her having earlier warned Logan that his pursuit of appellant constituted sexual harassment.

A hearing on Diggs’ appeal was scheduled for 16 March 1999. After the June 1998 altercation between Diggs and Allen, Logan contacted appellant, requesting information about the altercation. During that conversation, Logan mentioned that promotions were pending, and appellant received a promotion in September 1998. One month later, appellant filed a written complaint charging Logan with discrimination and sexual harassment.

On 4 March, 1999, appellant filed a complaint ⁴⁹⁴ with the Division of Corrections, repeating the allegations of discrimination and sexual harassment and complaining that ECI had not properly investigated her complaint. The 4 March 1999 letter was actually written by Diggs but had been signed by both Diggs and appellant. Appellant was scheduled to appear as Diggs’ witness at the 16 March 1999 appeal hearing. On approximately three occasions, appellant had been interviewed by Dale McCloud, who was the Department’s representative for the Diggs’ hearing.

It is undisputed that, during the course of those interviews, appellant told McCloud that she had not had any contact with Diggs from January through March 1999. It is also undisputed, however, that appellant had met with Diggs in order to cosign the 4 March 1999 letter charging Logan with sexual harassment and discrimination. When McCloud received a copy of the 4 March 1999 letter, the signatures of both appellant and Diggs on the letter revealed that appellant had lied to McCloud in telling him that she had not had any recent contact with Diggs. As the circuit court noted in its written opinion, a separate chain of events commenced in January 1999 when Sgt.

Edmund O’Leary, an investigator with the Internal Investigations Unit of the Division of Corrections, was contacted by one Thomas Eichelberger, an inmate at ECI. During a meeting, Eichelberger informed O’Leary that appellant hated Allen because of her role in breaking up her relationship with Diggs. According to Eichelberger, appellant wanted to retaliate by planting a nude photograph of Allen in an inmate’s cell. She also proposed giving Eichelberger Allen’s bank account number so that an inmate could deposit money into the account.

Although O’Leary and Eichelberger met on three occasions, Eichelberger was unable to provide O’Leary with any corroborating evidence to support his claims. Consequently, O’Leary did not further pursue the matter. The two chains of events converged in March 1999 when O’Leary was assisting McCloud in serving subpoenas for the Diggs appeal that was scheduled to be heard on 15 March ⁴⁹⁵ 1999. Prior to his role in serving the subpoenas, O’Leary had never met McCloud.

On the day before the scheduled hearing, McCloud conducted a third interview with appellant. Prior to the commencement of the interview, McCloud became aware of Eichelberger’s allegations and taped the last portion of his interview with appellant and arranged for O’Leary to be present. When confronted with the 4 March 1999 letter she had cosigned with Diggs, appellant admitted that she lied to McCloud when she previously denied having had any recent contact with Diggs. She also admitted having participated in conversations with Eichelberger about planting a photograph of Allen and making a deposit into Allen’s bank account.

Appellant claimed, however, that Eichelberger had initiated the contact and that she had no intention of providing Eichelberger with the nude photograph or providing him with the bank account number, but she admitted not having reported her conversations with Eichelberger to her supervisor. At the conclusion of the third interview, McCloud informed appellant that he would recommend her termination from employment because of her admitted lying about contacts with Diggs and her failure to report her conversations with Eichelberger to her supervisor. On 16 March 1999, Logan met with appellant, told her that she could avoid being terminated by accepting a demotion, and appellant declined to do so. Due to his past romantic involvement with appellant, Logan concluded that it would be necessary for him to designate someone else to deal with appellant’s personnel matter.

At some time between 16 and 19 March 1999, Logan informed Assistant Warden Kaloroumakis that appellant had admitted to conspiring with an inmate to set up another officer, and on 18 March 1999 designated Kaloroumakis to handle all appointing authority matters on 19 March 1999. Neither Logan nor any other official of the Department instructed Kaloroumakis to recommend that appellant be terminated. ⁴⁹⁶ The necessary paperwork for appellant’s termination was prepared by ECI’s personnel office before it was seen by Kaloroumakis. The notice of termination identified the factual causes for termination: that appellant had engaged in a series of conversations with an inmate concerning a plan that would likely result in the termination of another officer, and that appellant had done nothing to dissuade or discipline the inmate nor to inform her supervisor of the matter. It also noted that appellant had said that she had never intended to pursue the matter.

Moreover, the notice of termination also indicated that appellant had admitted lying to McCloud during the course of his investigation of another personnel matter. Prior to his 19 March 1999 meeting with appellant, Kaloroumakis became aware of the contents of O’Leary’s two-page report, which summarized his investigation with respect to appellant’s contacts with Eichelberger. O’Leary’s report indicated that it had been prepared for Logan as an Internal Investigation Unit case. Kaloroumakis met with ECI’s personnel officer on 19 March 1999; then both met with appellant.

Kaloroumakis read the charges to appellant and told her that he intended to recommend that she be terminated. He neither asked appellant if the allegations were true, nor if she had any mitigating information. When the personnel officer left the room to make photocopies of documents for appellant, appellant said she believed she was being harassed and that Eichelberger had entrapped her. Not only did Kaloroumakis not ask appellant for any details, he did not investigate her allegations.

We shall include additional facts as necessary in our discussion of the issues presented. STANDARD OF REVIEW Our standard of review in the instant case was declared by the Court of Appeals in Curry v. Dep’t of Public Safety and Correctional Servs., 102 Md.App. 620 , 651 A.2d 390 , cert. dismissed, 340 Md. 175 , 665 A.2d 1038 (1995), as follows: ⁴⁹⁷ We review an administrative agency’s decision under the same standard as the circuit court. In each case, the court must determine whether the agency’s decision is “in accordance with the law or whether it is arbitrary, illegal, and capricious.” The court will not overturn the agency’s factual findings or its application of law to facts if the decision is supported by substantial evidence considered in light of the record taken as a whole. When reviewing issues of law, on the other hand, the court’s review is expansive and it may substitute its judgment for that of the agency.

Our role is to be certain that the circuit court did not err in its review. Curry, 102 Md.App. at 627-28 , 651 A.2d 390 (citations omitted). DISCUSSION I. Appellant first contends that, as the appointing authority in this case, Kaloroumakis failed to comply with § 11-106 of the State Personnel and Pensions Article 2 in failing to investigate appellant’s alleged misconduct prior to imposing discipline; relied uncritically upon misinformation supplied by others; drew false conclusions from that misinformation; and decided to impose discipline based upon his misconception of the case. Section 11-106 provides, in relevant part: (a) Procedure.—Before taking any disciplinary action related to employee misconduct, and appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating