Maryland State Department of Public Safety & Correctional Services v. Bailey

CATHELL, Judge. The Maryland State Department of Public Safety and Correctional Services (hereinafter “DPSCS”), appellant, appeals from an order of the Circuit Court of Baltimore County, permitting Ronnie Bailey, appellee, a supervisory ¹⁵ employee of the Division of Correction (hereinafter “DOC”), to represent employees who are not under appellee’s direct supervision in grievance procedures where no alleged conflict of interest exists. Appellant raises three issues for our review: I. Whether the circuit court incorrectly ruled that the administrative law judge’s decision was based on an error of law.

II

Whether the decision of the administrative law judge was supported by substantial evidence.

III

Whether the decision of the administrative law judge was arbitrary or capricious. Appellee presents one issue for our determination: IV. Whether the circuit court was correct in finding that appellee’s First Amendment rights were not affected by the administrative law judge’s order. Facts Appellee is a Correctional Officer IV, a Lieutenant, at the Brockridge Correctional Facility.

After his promotion to a Correctional Officer IV, 1 appellee became a manager and ¹⁶ supervisor of lower-level correctional officers. When appellee was a Correctional Officer III, 2 he did not have any management responsibilities. At that time, he represented employees in grievance proceedings within the DOC. The DOC is a division within the DPSCS.

After assuming a management-level position as a Correctional Officer IV, appellee volunteered to cease representation of aggrieved employees of the Brockridge facility. He did, however, wish to continue representing employees who were not working in that facility and where such representation did not directly cause a conflict of interest. The DOC did not agree with appellee’s wishes, and a conference took place between appellee, appellee’s shift commander, and the Assistant Warden of Brockridge, William Filbert. Filbert advised appellee in a follow-up memo to the conference that “supervisors may not represent employees at grievance, suspension appeal, or discharge hearings.

That decision is based on three Declaratory Rulings issued by the [DOP].” Filbert’s advice was based on a memo from Larry Anderson, Chief of Personnel Services of the DOC, to Mary Leftridge, Assistant Warden. In Anderson’s memo, he stated that the DOC’s position was that (1) any supervisory DOC employee may not act as a ¹⁷ union representative for any employee of the DPSCS, and (2) any DOC employee having significant supervisory responsibilities was precluded from representing any DPSCS employee at a grievance hearing. After meeting with Fred Jordan, Jr., the Commissioner of the DOC, appellee was directed on May 31, 1989, that he “may not represent other current or previous employees of the [DOC] or its institutions and agencies at hearings conducted by the [DOP], the [DPSCS], the [DOC] or any agency of the [DOC].” Appellee was authorized to continue representation of any employee who had requested his assistance prior to the Commissioner’s directive. On June 8, 1989, appellee filed a grievance petition, pursuant to the Maryland State Employee Grievance Procedures (hereinafter “procedures”).

Md.Ann.Code art. 64A, §§ 52-57 (1988). Appellee filed his petition with the warden claiming, “I am aggrieved because [I] have been denied the right to function as [an] employee representatives [sic] in accordance with commar [sic] regulations and Article 64A of the annotated Code [sic].” On October 31, 1989, a hearing was held, and appellant moved to dismiss on the grounds that the grievance was not timely filed. The hearing officer deferred ruling on the motion to dismiss and accepted evidence in the case. On December 18, 1989, the hearing officer found that the grievance was untimely and dismissed the case.

No determination on the merits was made. Appellee appealed the dismissal, and on October 15, 1990, the trial court found that the appeal was timely filed. The case was remanded to the DOP to determine the merits. A hearing was held on January 25, 1991, before John T. Madden, administrative law judge (hereinafter “AU”) of the Office of Administrative Hearings (hereinafter “OAH”). 3 Both parties agreed that the transcript of the ¹⁸ October 1989 hearing plus any additional evidence and closing arguments would be the basis of the decision.

The ALJ found that appellee did not have standing to bring suit. He also found that it was a conflict of interest for appellee, a manager-supervisor, to uphold the DOC’s policies on the one hand, and, on the other hand, to represent an employee who had allegedly violated those policies. Appellee appealed the AU’s order to the circuit court. The trial court reversed on the grounds that the order was “premised on an erroneous conclusion of the law,” i.e., an incorrect application of Article 64A, section 53(b). 4 In construing the meaning of the word “any” in section 53(b), the trial court found that since there was “notably absent [from the statute] ... a restriction on management representation,” the Legislature did not intend to exclude managers and supervisors from acting as grievant representatives.

Relying on three declaratory rulings issued by the DOP, the trial judge concluded that “[u]nless otherwise shown to be a conflict, an employee who does not have direct supervision over an employee, should not be per se barred from representing grievants because the representative is a supervisor.” The trial judge also found that it was proper for appellee to represent employees in grievance proceedings “except in cases of demonstrated conflict of interest which must be determined on a case by case basis.” 5 Legal Analysis The trial judge applied the standard for reviewing an administrative agency’s decision of a contested case as set ¹⁹ forth in the Maryland Annotated Code, section 10-215(g) of the State Government Article (1991), otherwise known as the Maryland Administrative Procedure Act (hereinafter the “APA”), which provides as follows: (g) Decision. — In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the decision of the agency; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the agency; (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. Appellant contends that (1) the trial court incorrectly applied the standard of review; (2) the ALJ’s decision was not based on an erroneous conclusion of the law; (3) the ALJ’s decision was supported by substantial evidence; and (4) the ALJ’s decision was not arbitrary or capricious. We agree with appellant. We believe, however, that it is necessary to address those issues only to the extent that they relate to our holding that appellee lacked standing to bring suit.

We explain. Standing A. The finding The AU ruled that appellee did not have standing to bring suit under Article 64A, section 53(b), because it is “directed to a grievant. The representative, not being a grievant, does not have standing to use this section of the law.” The trial court, reversed, stating: ²⁰ Although the right of choice of representative is given to the grievant in the statute, it is clear that it impacts the individual who seeks to be a representative____ The ruling of the AU must be consistent with the legislative mandate to allow a grievant the ability to choose anyone to represent the grievant, including management level people, like appellant. Impact alone, however, is insufficient to confer standing under the APA. 6 In Maryland Waste Coalition, Inc. v. Maryland Department of the Environment, 84 Md.App. 544 , 581 A.2d 60 (1990), rev’d on other grounds sub nom., Medical Waste Assoc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 622 , 612 A.2d 241 (1992), an environmental association brought suit against the Maryland Department of the Environment in response to its issuance of two permits to Medical Waste Associates, Inc., to construct and operate an infectious medical waste incinerator.

In addressing the issue of standing under the APA, this Court held that: In order to have standing to appeal to the circuit court from an administrative decision, a person must (1) have been a party to the proceeding before the agency; and (2) be aggrieved by the agency decision____ ... In order for a person to be aggrieved by an agency decision, that decision must affect a specific interest or property right in a way different from that suffered by the public generally. Id. at 554-55, 581 A.2d 60 . See also Medical Waste, 327 Md. at 611-13 , 612 A.2d 241 .

The association failed to allege any property interest separate and distinct from its members; this Court held that it was not aggrieved and therefore lacked standing under both the APA and Maryland common law. Maryland Waste, 84 Md.App. at 555-56 , ²¹ 581 A.2d 60 . The Court of Appeals expressly affirmed that portion of the holding referred to above. 7 Medical Waste, 327 Md. at 612-14 , 612 A.2d 241 . See also Comptroller of the Treasury v. Myers, 59 Md.App. 118, 120, 125-26 , 474 A. 2d 941 (1984) (holding that the Comptroller had standing to bring suit since he was authorized to file charges against the employee, he was a party in the proceedings before the agency, and he was “clearly aggrieved” by the court’s imposition of a sanction of only thirty days suspension in lieu of discharging the employee).

Appellee in the present case, although the case is contested and although he was a party to the proceeding below, has failed to allege that he has been aggrieved, ie., that any interest of his has been injured separate and apart from an employee who might be precluded from choosing him as his representative. As we shall explain, the statute confers a right of representation upon an aggrieved employee; it does not confer a right upon a person to represent such an employee. Appellee therefore lacks standing under Article 64A, section 53(b), because he is not aggrieved. B. Statutory Construction The appellee contends that the interpretation of the word “any” in section 53(b) must conform to its plain and ordinary meaning, i.e., “any” includes management-level employees where no actual conflict of interest exists.

We do not agree with the appellee that the intent of the statute is gleaned solely from the word “any”. We explain. ²² The Court of Appeals, in its recent case of Tracey v. Tracey, 328 Md. 380 , 614 A.2d 590 (1992) was asked to construe the equally unambiguous words “all income” and held that these words were not to be interpreted as literally meaning all income. 328 Md. at 387 , 614 A.2d 590 . In Tracey , the Court reiterated the primary rules relating to statutory construction as follows: While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which the statutory language appears.

Construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided. Considering the statute as a whole, and within the context of its larger purpose, we do not interpret § 11— 106(b)(ll)(i) as requiring a blanket inclusion of wages earned from temporary, part-time work. 328 Md. at 387-388 , 614 A.2d 590 (citations omitted). See also Motor Vehicle Admin. v. Shrader, 324 Md. 454, 462-63 , 597 A.2d 939 (1991) (holding that the “plain meaning rule” is not rigid and “does not force us to read legislative provisions in rote fashion and in isolation ... results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning.”); Kaczorowski v. City of Baltimore, 309 Md. 505, 513-14 , 525 A.2d 628 (1987) (“legislative intent must be gleaned from the entire statute, rather than from only one part.”). In Tucker v. Fireman’s Fund Ins.

Co., 308 Md. 69, 71-72 , 517 A.2d 730 (1986), the Court was asked to construe the meaning of the word “pedestrian,” under Article 48A, sec ²³ tion 539(a) (1986 Repl.Yol.) of the Annotated Code of Maryland, the statute that provides for a measure of compensation to victims of motor vehicle accidents without regard to fault. Pedestrian was not defined in section 539(a). It was, however, defined in the Transportation Article, section 11-145 (1984 Rep. Vol.), as “an individual afoot.” Id. at 72 , 517 A.2d 730 .

The plaintiff was employed as a parking lot attendant and was struck by the defendant’s automobile while sitting on a stool inside the attendant’s booth. Id. The Court opined: Nor do we think that a literal application of the word “pedestrian,” in the context of its usage in § 539, was necessarily intended by the legislature in view of the unjust and unreasonable consequences that would obviously flow from such an interpretation____ Thus, under such a limited application, an individual seated on the steps of a building in front of a public highway who is struck by a motor vehicle would be unable to collect PIP benefits while another individual walking on the steps of the same building would be covered. Id. at 74-75, 517 A.2d 730 .

In the instant case, we perceive that the Legislature wanted to assure that State employee grievants would not be limited to a certain class of representation, i.e., attorneys or union agents. We believe it was in this context that the word “any” was used. As we interpret the statute, it was not meant to interfere with management’s ability to make policy decisions limiting the role of its supervisors in the context of management-employee disputes. We explain.

Article 64A, sections 52 through 55 of the Annotated Code of Maryland (1991), provide the procedures for a State employee to file a grievance. The General Assembly enacted the legislation “[f]or the purpose of providing a procedure by means of which all State employees of the executive branch of the State government with certain exceptions may present grievances; and relating generally to State employee grievances.” Act effective July 1, 1977, ch. 727, 1977 Md. Laws 2919 , 2920. An additional purpose, as ²⁴ stated in a hand-written note contained in the Senate Bill File, was “to codify a procedure [DOP Policy #9 and Governor’s Executive Order of July 3, 1974] so that it will not change if administration changes.” House Committee on Appropriations, S.B. 677, B.F. (1977).

The DOP’s policy that was purported to be codified stated: In order that public employee relations be improved____ ... It is the responsibility of all supervisors, administrators, program directors, appointing authorities, and employees to establish and maintain a work climate within which an employee’s problem or complaint may be promptly identified, presented, discussed and given fair, timely consideration. Id. (emphasis added).

As codified, there are three steps in the procedures which must be exhausted before judicial review is permitted. Md. Ann.Code art. 64A, § 54(a) (1988 & Supp.1992). The first step is the initiation of the complaint, beginning with an “informal discussion with the supervisor." Art. 64A, § 54(a)(1). The procedures require that “[e]very effort shall be made by both parties 8 to resolve the grievance at the lowest possible level.” Art. 64A, § 55(d).

The employee must then submit a written grievance to the “appointing authority,” 9 or a designated representative. Art. 64A, § 54(a)(1). The authority is required to hold a conference with the aggrieved employee or his representative and must issue a “written decision to the aggrieved within 15 days after the conclusion of the conference.” Art. 64A, § 54(a)(2). In step three, if the employee