Kensington Volunteer Fire Department, Inc. v. Montgomery County

ADKINS, Judge. Appellants Kensington Volunteer Fire Department (“KVFD”) and Keith Golden challenge the Circuit Court for Montgomery County’s ruling that a volunteer firefighter cannot recover attorney’s fees under a county code provision allowing county employees to recover fees in certain appeals from personnel actions. For the following reasons, we hold that appellants are entitled to attorney’s fees, to the same extent as county employees, and therefore, reverse the circuit court’s denial of such fees. ²⁸¹ FACTS AND LEGAL PROCEEDINGS Golden is a volunteer firefighter at KVFD. Following two separate complaints regarding Golden’s conduct toward subordinate firefighters in 2000 and 2001, Golden was twice investigated and disciplined by KVFD.

During the second KVFD investigation, the Fire Administrator (“FA”), the highest official of the Montgomery County Fire and Rescue service, ordered an internal investigation into Golden’s behavior and the sanctions imposed by KVFD. At the conclusion of the internal investigation, the FA imposed additional, more onerous punishment on Golden. KVFD and Golden appealed the FA’s decision to the Montgomery County Fire and Rescue Commission (“the Commission”), arguing that the FA exceeded the scope of his authority under applicable county law in rendering additional punishment of Golden. The Commission affirmed the FA.

KVFD and Golden then appealed to the Montgomery County Merit System Protection Board (“the Board”), which ruled in appellants’ favor by written order dated August 19, 2002. On September 9, 2002, appellee Montgomery County (“the County”) filed a petition for judicial review in the Circuit Court for Montgomery County. Over one month later, on October 21, 2002, KVFD and Golden submitted to the Board a petition for attorney’s fees, covering the proceedings before the Commission and the Board. The Board denied the request in a supplemental order and decision issued on November 25, 2002.

KVFD and Golden took no appeal from the Board’s denial of their request for attorney’s fees. On October 20, 2003, the circuit court filed its opinion and order, affirming the Board’s decision in favor of appellants. Thirty days later, KVFD and Golden filed a petition for attorney’s fees with the circuit court, seeking fees for proceedings before not only the circuit court, but also before the Commission and the Board. That petition was denied, as was appellants’ subsequent motion for reconsideration. ²⁸² Appellants filed this timely appeal and present the following question for our review: Does the Montgomery County Code provide for the award of legal expenses to local fire and rescue departments, and volunteer fire fighters?

We hold that appellants are entitled to recover circuit court attorney’s fees. DISCUSSION Appellants argue that they are entitled to attorney’s fees for proceedings at both the circuit court and the administrative levels. We shall address these separate fees in turn. As a preliminary matter, we note that, in reviewing an administrative decision, 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.” Bucktail, LLC v. County Council of Talbot County, 352 Md. 530, 552-53 , 723 A.2d 440 (1999) (citation omitted).

Circuit Court Fees Appellants contend that sections 21-7(g) and 33-15(c) of the Montgomery County Code (“Code”), 1 when read together, mandate that the County pay their reasonable attorney’s fees associated with judicial review in the circuit court. Code section 21-7(g), governing appeals to and from the Commission, states: Appeals of Commission decisions. Any employee of or volunteer at a local fire and rescue department or any other aggrieved person may appeal a decision of the Commission involving a specific personnel action ... to the Merit System Protection board as if the aggrieved person were a County merit system employee. (Emphasis added.) ²⁸³ Code section 33-15(c), governing judicial review and enforcement, states: When the chief administrative officer is the party seeking judicial review of a board order or decision in favor of a merit system employee, the county shall be responsible for the employee’s legal expenses, including attorney’s fees which result from the judicial review and are determined by the county to be reasonable under the criteria set forth in subsection (c)(9) of section 33-14. 2 (Emphasis added.) Appellants argue that, because volunteers are to be treated as if they are merit system employees for purposes of appeals taken under section 21-7(g), they are entitled to attorney’s fees under section 33-15(c) when the County seeks judicial review of a Board decision.

They assert that denying volunteers the same rights to fees enjoyed by employees is inconsistent with the legislative intent of the Code. The County counters that the “as if’ language in section 21-7(g) provides volunteers with only the right to appeal a Commission decision to the Board, without giving them the concomitant right to attorney’s fees enjoyed by employees under section 33-15(e) when the County seeks judicial review. The County also questions the circuit court’s jurisdiction to consider appellants’ fee petition, as well as the circuit court’s authority to order the County to pay reasonable fees under section 33-15(c). We shall begin our analysis by summarizing the well settled rules of statutory construction, “recognizing that they are aids to assist us in determining the legislative intent.” Montgomery County v. Jamsa, 153 Md.App. 346, 354 , 836 A.2d 745 (2003).

The Court of Appeals has stated that “the cardinal ²⁸⁴ rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Marzullo v. Kahl, 366 Md. 158, 175 , 783 A.2d 169 (2001)(internal quotes and citations omitted). As we recently noted in Jamsa, 153 Md.App. at 354-55 , 836 A.2d 745 , [t]he actual language of the statute itself is the starting point for interpreting a statute. “Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute to determine legislative intent.” “But where the statutory language is ambiguous, we will look to other sources, such as relevant case law and legislative history, to aid us in determining the legislature’s intent.” In such instances where a court seeks to ascertain the legislative intent, the statutory language “is not read in isolation, but ‘in light of the full context in which [it] appears, and in light of external manifestations of intent or general purpose available through other evidence.’ ” “To this end, when we pursue the context of statutory language, we are not limited to the words of the statute as they are printed.” Often a court may consider external evidence, in addition to the relevant statutory provisions, such as the legislative history surrounding the statute, the context of the statute and “other material that fairly bears on the fundamental issue of [the] legislative purpose or goal” of the statute. (Citations omitted). Turning first to the statutory language, section 21-7(g) states that “[a]ny ... volunteer at a local fire and rescue department ... may appeal a decision of the Commission involving a specific personnel action ... to the Merit System Protection board as if the aggrieved person were a County merit system employee.” (Emphasis added.) The text of the Code contains nothing that cross-references section 21-7(g) with section 33-15(c), or vice versa.

Section 21-7(g) does not mention section 33-15(c) or attorney’s fees, and section 33-15(e) does not mention section 21-7(g) or volunteer firefighters. In the absence of such language, we consider section 21-7(g) ambiguous because there are two reasonable alternative ²⁸⁵ interpretations. See Price v. State, 378 Md. 378, 388 , 835 A.2d 1221 (2003)(noting that a statute is ambiguous if two or more reasonable alternative interpretations exist). See also Town & Country Mgmt.

Corp. v. Comcast Cablevision of Md., 70 Md.App. 272, 280 , 520 A.2d 1129 , cert. denied, 310 Md. 2 , 526 A.2d 954 (1987)(recognizing that statutory language can be intrinsically ambiguous, or despite clear intrinsic meaning, ambiguous due to its application in a particular circumstance). As a result of this ambiguity, we must consider both “the literal or usual meaning of the words as well as their meaning in light of the objectives and purposes of the enactment.” Price, 378 Md. at 388 , 835 A.2d 1221 . We conclude that the “as if” language means that volunteers are to be treated as though they are employees throughout the statutory appellate scheme, and not just for section 21-7 purposes. This reading of section 21 — 7(g) is consistent with the stated policies and purpose of Chapter 21 of the Code.

Section 21-1(a)(2) states, in pertinent part, that “[t]he [Montgomery County] Council hereby declares its policy that all County officials, employees, volunteers, and local fire and rescue departments actively encourage a combined service delivery system provided by local and County resources which strives to offer equal opportunities and fair treatment for all personnel.” (Emphasis added.) Likewise, section 21-l(b)(3) states: Purpose. This Chapter is intended to promote the achievement of the following goals regarding the provision of fire, rescue and emergency medical services: (3) Optimum Personnel Practices. Promote equity and harmony among County, local fire and rescue department, and volunteer personnel^] (Emphasis added.) The desire to promote equality of volunteers and employees is also reflected in the legislative history of County Council Bill 37-97, the 1997 bill that restructured Chapter 21 of the Code. 3 A memorandum discussing Bill 37-97 from Michael ²⁸⁶ Faden, Senior Legislative Attorney, to the County Council noted that the bill’s language stressed “that the County law and Commission regulations and policies create a uniform set of rules that apply to all elements of the fire and rescue system, including career Service employees and local department volunteers.” Memorandum of Michael Faden, Senior Legislative Attorney, to County Council at 3 (March 10, 1998). The County’s reading of section 21-7(g) is inconsistent with the purpose and legislative history of Chapter 21, because it does not promote equal treatment of volunteers and employees.

Reading the two Code sections together, in light of the statement of purpose and legislative history, we conclude that the County Council intended that volunteer firefighters be treated as employees, and thus be entitled to attorney’s fees. Therefore, we reject the County’s argument that the “as if’ language in section 21-7(g) only provided volunteers with the right to appeal a Commission decision to the Board. We are also unpersuaded by the County’s assertion that the circuit court had no jurisdiction to rule on appellants’ petition for fees. 4 Specifically, the County contends that under Md. Rule 7-209, the circuit court only has authority to affirm, reverse, or modify the agency’s decision, and to remand the action to the Board or dismiss the action. Because the fee petition was filed after the circuit court affirmed the Board’s decision, the County argues that the circuit court had no jurisdiction to entertain any new claims or motions.

We do not agree. ²⁸⁷ Md. Rule 7-209, governing disposition of administrative appeals in the circuit court, states: Unless otherwise