Maryland State Department of Education v. Shoop

DAVIS, Judge. The Maryland State Department of Education (MSDE) appeals from the judgment of the Circuit Court for Washington County reversing the decision of an Administrative Law ¹⁸⁷ Judge (ALJ) of the Office of Administrative Hearings (OAH). 1 The ALJ’s decision upheld appellee Douglas Shoop’s suspensions and subsequent termination from employment as an automobile mechanics instructor in the Maryland Correctional Training Center (MCTC). The suspensions and termination were based on multiple infractions of a regulatory policy designed for the security and safety of inmates, personnel, and the general public. Originally, appellee received a one-day suspension for allowing inmate students to have unsupervised access to tools in the auto mechanic shop where he taught.

After further investigation, MSDE found that the violations were not isolated and more egregious than previously thought and appellee was suspended without pay pending charges for removal. He was eventually terminated. Appellee separately appealed the suspensions and the termination with all being affirmed through the administrative process. On appeal in the circuit court, however, appellee prevailed.

The circuit court reversed the second suspension and termination on res judicata and due process grounds. This appeal followed, in which MSDE presents two issues that we reframe below: I. Whether proceedings for employment termination based on two policy violations are precluded by res judicata when there has already been an informal proceeding for suspension based on the same two violations.

II

Whether appellee received adequate procedural due process before being terminated. FACTS On January 25, 1995, the State Superintendent of Schools permanently removed appellee from his position as a vocational auto mechanics instructor at MSDE’s correctional education program at MCTC. MSDE sought appellee’s termination on the grounds of misconduct, insubordination, and willful neglect of duty. All grounds were based on appellee knowingly ¹⁸⁸ violating tool security policies by allowing inmates unsupervised access to the tools and equipment in his auto-mechanic shop.

When terminated, appellee had been employed by MSDE for approximately six years and was designated as unclassified Instructional Personnel-Auto Mechanics. In that capacity, he was assigned to teach vocational automotive mechanics to inmate students at MCTC, a Division of Correction (DOC) institution within the Department of Public Safety and Correctional Services. Appellee was generally assigned approximately fifteen inmates per twenty-six week program. He generally used two inmate aides for assistance in shop activities.

Appellee was responsible for the inmates’ vocational training and for adherence to all security precautions prescribed by the DOC. On April 7, 1993, the MCTC Correctional Security Chief issued the following tool control policy: In light of recent concerns regarding the legitimacy of Required changes to the Tool Control Procedures in the Vocational Shops, it appears necessary to reduce to writing the essence of those changes. By way of this memo, I am therefore giving notice of the following requirements: 1. Whenever a tool crib storage area is opened, the instructor must be present. 2.

Instructors must be physically present in tool cribs during the issue and receipt of any tool. 3. An inmate may be present in the tool crib to assist the instructor, however, the instructor must provide direct supervision and must personally account for all tools issued and received. 4. The instructor will sign for all tools issued and received. 5. No inmate is allowed to be left alone in the tool crib. 6.

The tool crib is to be locked at all times when the instructor is not in it. ¹⁸⁹ Whether or not you personally agree with these Tool Control Regulations, compliance is mandatory. These regulations are a direct result of DOC Headquarters decision and denial of requested variances. A new Institutional Directive on Tool Control is being formulated. Until the new directive is issued, Sgt.

Gregory (Tool Control Officer) is charged with interpretation and implementation of all tool control practices. Utilize him as a resource person. He is, in effect, the final authority at the institutional level. (Items 5 and 6 were added as of April 7, 1993.

The other requirements were already in effect.) The policy was issued to all vocational instructors, including appellee. On August 10, 1993, during a routine inspection of MCTC’s vocational education facilities, MCTC Tool Control Officer, Sergeant Craig Gregory, discovered three unsupervised inmates in the unlocked tool crib in appellee’s auto shop. He found appellee outside the shop smoking a cigarette. Sergeant Gregory warned appellee that further tool control violations would not be tolerated.

According to Sergeant Gregory, appellee nodded in response, but expressed no regret for the violation. The next day, Sergeant Gregory again inspected the shop. Upon entering, he observed one inmate speaking to someone in the direction of the tool crib and another inmate leaving the tool crib. The inmates were unsupervised.

Sergeant Gregory found appellee sitting in the shop office with his feet on his desk and reading a newspaper. When Sergeant Gregory approached appellee to discuss the unsupervised inmate in the tool crib, appellee belligerently told Sergeant Gregory to “write [him] up!” Sergeant Gregory filed an incident report recounting appellee’s tool control violations with MCTC Warden Joseph Sacchet and MCTC Principal Carolyn Suman. Upon receipt of the report, Principal Suman confronted appellee with the violations. He responded that on August 10,1993 the inmates were in the tool crib in contravention of his instructions.

He ¹⁹⁰ stated further that no inmate was in the tool crib unsupervised on August 11, 1993. He also denied reacting belligerently to Sergeant Gregory on August 11,1993. 2 He contended that he regularly enforced the tool security policy, and that the incident of August 10,1993 was the result of his inmate tool aide’s disobedience of his instructions. Based on Sergeant Gregory’s report and appellee’s explanation, Principal Suman recommended to John Linton, Director of the Correctional Education Program, that appellee be suspended for one day. Linton approved that recommendation.

Appellee served that one-day suspension on August 17, 1993. Nevertheless, he appealed the suspension and a grievance hearing was held on August 25, 1993. The hearing officer affirmed the one-day suspension. Appellee appealed that decision on an untimely basis and it was dismissed accordingly- Meanwhile, MSDE closed the MCTC auto shop and temporarily re-assigned appellee to low-level clerical duties at another correctional education facility.

In that position, he had no contact with the tool crib or any duties with respect to tool control procedures. Because of appellee’s assertion that the inmates in the tool crib on August 10, 1993 were acting in violation of his instructions, Principal Suman confronted the inmate tool aide. The inmate admitted that he was in the tool crib unsupervised on August 10,1993 and August 11,1993. He stated that he often worked alone or with other inmates in the tool crib unsupervised.

He confirmed that this was done with appellee’s knowledge and, sometimes, by his instruction. Principal Suman informed the warden of these new disclosures. Because of the inmate’s allegations, MCTC’s Chief of Investigations, Lieutenant Robert Tichnell, began an investigation of tool control procedures and practices in appellee’s shop. ¹⁹¹ Between August 17 and 19,1993, Lieutenant Tichnell reviewed shop documents and investigated the shop facility. He interviewed appellee, Principal Suman, and nine inmates who had been students or aides in the auto shop from April to August 1993.

Eight of the nine interviewees confirmed that inmates had unsupervised access to appellee’s tool crib. Most of the interviewees characterized the unsupervised access as a regular occurrence that happened with appellee’s knowledge and approval. Additionally, the interviewed inmates confirmed the existence of fabricated wire “keys” that were available for inmates to unlock the tool crib. During his interview with Lieutenant Tichnell, appellee gave contradictory responses to questions regarding the accessibility of the tool crib to inmates and the availability of wire “keys.” Lieutenant Tichnell’s review of the August 1993 tool sign-out logs revealed that various individuals other than appellee were signing tools out of the tool crib.

Upon inspection of the auto shop, Lieutenant Tichnell determined that the tool crib could be opened with a simple wire device and such devices were found in the tool crib area. Based on the investigation, Lieutenant Tichnell concluded that appellee had violated DOC standards for personal conduct, control of tools, performance of duties, handling of State property, reports, and attitude toward inmates, and “blatantly disregarded the tool control policy.” Lieutenant Tichnell submitted his investigation report to MCTC Warden Sacchet. Linton also interviewed appellee after the suspension. He found that appellee gave inconsistent and evasive responses to questions as to whether he allowed inmates in the tool crib unsupervised.

Linton testified at the OAH hearing that appellee’s explanations for his failure to supervise activities adequately in his shop on August 10 and 11, 1993, were not credible. Linton also testified that appellee refused to accept responsibility for his conduct or to demonstrate that he understood the importance of the tool security policies or could be trusted to uphold them in the future. ¹⁹² On August 22, 1993, Warden Sacchet telephoned Linton to inform him of the content of Lieutenant TichnelTs investigatory report, request that appellee be barred from the MCTC facility, and request that appellee’s employment be terminated. On October 14, 1993, MSDE filed charges for removal of appellee and suspended him without pay pending resolution of the charges. He was sent a copy of those charges along with a .letter explaining the reasons for the charges and the accompanying suspension.

The charges included detailed descriptions of the August 10 and 11,1993 incidents, noting appellee’s failure to supervise the inmates in his classroom, and to enforce the tool control policies on those dates, and his defiance of Sergeant Gregory on August 11, 1993. The charges concluded that “[t]hese incidents are in direct violation of written procedures regarding Tool Control ... made known to appellee on March 2,1993 and April 7,1993.” Appellee appealed the suspension pending charges for removal. At the hearing, appellant presented evidence regarding the August 10 and 11,1993 incidents, as well as Lieutenant TichnelTs report and Linton’s post-suspension interview with appellee. The suspension was upheld.

Appellee also appealed his termination. On June 6, 1994, appellant gave written notice to appellee’s attorney of the witnesses it planned to call and the documents it intended to introduce as evidence at the termination hearing. The list of witnesses included Lieutenant Tichnell, and the document fist included his August 1993 report and all of its exhibits. Before the termination hearing, appellee’s counsel requested to inspect all documents in appellant’s files that appellant deemed relevant to the termination proceedings.

Those documents were made available to appellee’s counsel for inspection on or-about June 6,. 1994, and they included Lieutenant TichnelTs report. The termination hearing occurred on June 13, 1994, and resulted in a finding that appellee’s appeal was without merit. Appellee filed exceptions to the State Board of Education and, ¹⁹³ after a January 24, 1995 exceptions hearing, appellee’s employment was terminated. Appellee filed a timely appeal to the circuit court seeking reversal of his termination on the following grounds: (1) his termination, based on the same August 10 and 11, 1993 violations of tool security policies as his one-day suspension, was barred by the prohibition against double jeopardy, (2) he lacked proper notice that the charges for removal were founded, in part, on the results of Lieutenant Tichnell’s investigative report, and (3) evidence contained in that report regarding inmate statements was inadmissible hearsay.

At the hearing in circuit court, appellee’s attorney argued that the attorney at the OAH termination hearing was unaware, until the day of the hearing, that MSDE intended to introduce any evidence regarding the investigative report. MSDE objected to this argument, averring that it was a misrepresentation. On August 31, 1995, the circuit court issued an opinion and order reversing appellee’s termination. In response to appellee’s double-jeopardy argument, the court first held that collateral estoppel barred MSDE from seeking appellee’s removal for reasons arising from the same events that led to the one-day suspension.

Second, the court held that the termination should be overturned because MSDE’s written charges for removal failed to include charges related to incidents other than the August 10 and 11, 1993 infractions. Specifically, the court stated that “[h]ad [appellee] been notified that there would be charges of improprieties beyond those specifically described in the notice, he would have been given an opportunity to prepare a response.” On August 21, 1995, shortly before the trial court filed its opinion and order, the Court of Appeals issued a slip opinion in an employee termination case with facts and legal issues almost identical to those of the case at bar. Ward v. Dep’t of Public Safety, 339 Md. 343 , 663 A.2d 66 (1995). In Ward, the Court of Appeals held that a DOC employee who had been suspended on numerous occasions and then subsequently ter ¹⁹⁴ minated based on the same infractions did not have a double-jeopardy defense.

Specifically, the Court stated that “[b]e-cause the discipline is not imposed for the purpose of punishment, the principles of double jeopardy do not apply.” Ward, 339 Md. at 351 , 663 A.2d 66 . MSDE filed a Motion to Alter or Amend the Judgment based on the decision in Ward . The Motion was also grounded on the argument that appellee’s counsel had misrepresented whether appellee had actual notice of appellant’s intention to present evidence regarding Lieutenant Tichnell’s investigation report at the June 13, 1994 termination hearing. The court held a hearing on November 21,1995.

On March 5, 1997, the circuit court issued an opinion and order, again reversing appellee’s termination, but on different grounds. In its March 5, 1997 order, the trial court held that the doctrine of res judicata, as opposed to collateral estoppel, barred appellee’s removal for the August 10 and 11, 1993 conduct. In support of its opinion and order, the circuit court reasoned as follows: Appellant should not be required to repeatedly defend against suits based on the same cause of action. He should be entitled to believe that the one day suspension was the sanction imposed for the alleged violations and that the litigation had ended.

Finality is needed in every case and this one is no exception. Therefore, based on res judicata and the related prohibition against splitting a cause of action, the removal proceeding should be reversed. The circuit court also suggested that its previous opinion and order reversing the termination because the charges of removal did not specifically refer to Lieutenant Tichnell’s report was moot because MSDE conceded, in its hearing on its motion to alter or amend the judgment, “that the sole basis for the removal from employment was the tool control policy violations of August 10 and 11.” The court noted, however, that “if [MSDE] attempts to review this issue on appeal, this court reaffirms” its earlier decision with respect to notice. This appeal followed. ¹⁹⁵ DISCUSSION Standard of Review An employee may “appeal” disciplinary suspensions, suspensions -without pay pending filing of charges for removal, and charges for removal to the OAH.

Code of Mabyland Regulations (COMAR) 06.01.01.57, 06.01.01.61, 06.01.01.65. An ALJ from that office conducts a hearing and issues a “written proposal for decision,” that is subject to approval by the Secretary of the Department of Personnel (Secretary). Id. If the employee is dissatisfied with the proposed decision, the employee may file exceptions with the Secretary and present oral argument.

Id. The Secretary (or designee of the Secretary) issues a final decision that is subject to judicial review in a circuit court, pursuant to the Administrative Procedure Act. Id.; Md.Code Ann. (1994 RepLVol.), State Gov’t (S.G.), § 10-222. When exercising such judicial review, a circuit court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.

S.G. § 10-222. “A court’s 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 erro ¹⁹⁶ neous conclusion of law.” United Parcel v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). Because this is an appeal from a circuit court’s review of an agency’s final decision, our role in this appeal “‘is precisely the same as that of the circuit court.’” Dept. of Human Resources v. Thompson, 103 Md.App. 175, 188 , 652 A.2d 1183 (1995) (quoting Dept. of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994)). Accordingly, we have the same recourse given to the circuit court by S.G. § 10-222(h). A reviewing court may not make its own findings of fact, Board of County Comm’rs v. Holbrook, 314 Md. 210, 218 , 550 A.2d 664 (1988), or supply factual findings that were not made by the agency.

Ocean Hideaway Condo. Ass’n v. Boardwalk Plaza, 68 Md.App. 650, 662 , 515 A.2d 485 (1986). Findings of fact are essential in order for the reviewing court meaningfully to review the agency’s decision. See Gray v. Anne Arundel Co., 73 Md.App. 301, 307-09 , 533 A.2d 1325 (1987).

Moreover, it is the agency’s function to determine the inferences to be drawn from the facts. On review, neither the circuit court nor this Court may substitute its judgment for that of the agency. Eberle v. Baltimore County, 103 Md.App. 160, 165 , 652 A.2d 1175 (1995). To the extent that issues on appeal turn on the correctness of an agency’s findings of fact, such findings must be reviewed under the substantial evidence test.

Thompson, 103 Md.App. at 190 , 652 A.2d 1183 (citing State Election Bd. v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 191 , 652 A.2d 1183