Mayer v. Montgomery County

DEBORAH S. EYLER, Judge. In an action for judicial review, the Circuit Court for Montgomery County affirmed a decision by the Montgomery County Merit System Protection Board (“Board”) denying a grievance filed by Daniel C. Mayer, the appellant, against Montgomery County, his employer and the appellee in this ²⁶⁴ case. On appeal from the ensuing judgment, the appellant presents three issues for review, which we have rephrased: I. Did the Board err in deciding it was not improper for the appellee’s Chief Administrative Officer to designate a Step III hearing officer for the appellant’s grievance hearing who was a subordinate of the Step II responder for the grievance?

II

Did the Board err in deciding that the appellee had properly refused to provide the appellant certain documents he had requested?

III

Was there substantial evidence to support the Board’s decision on the merits of the appellant’s grievance? For the following reasons, we answer “Yes” to the first question. Accordingly, we shall vacate the judgment of the circuit court with instructions that it vacate the decision of the Board and remand the case for a Step III hearing before a hearing officer who is not a subordinate of the Step II responder. We shall address the second question presented for guidance on remand.

Because of our disposition of the first question, we do not reach the third question. FACTS AND PROCEEDINGS The appellant holds the rank of sergeant in the Montgomery County Police Department. In 1997, he sought a promotion to the rank of lieutenant. His lack of success in that endeavor spawned this litigation.

The promotional examination for the rank of police lieutenant took place on September 19,1997. It was designed jointly by the Montgomery County Office of Human Resources (“OHR”) and the Montgomery County Police Department. The promotional examination worked as follows. Applicants for the position of police lieutenant took the examination before a panel of three “raters,” who were police captains and lieutenants from police departments in neighboring jurisdictions.

The examination had two components: a “presentation exercise,” consisting of an oral presentation and ²⁶⁵ a written essay; and a “structured oral interview,” consisting of a series of oral questions and answers. Each applicant had 45 minutes to prepare for the oral presentation and 80 minutes to give it; 90 minutes to complete the written essay; 45 minutes to prepare for the oral examination; and 45 minutes to answer the oral examination questions. The three-member panel of raters evaluated each applicant’s performance on each part of the examination on the basis of seven “managerial dimensions”: problem analysis, decision making, planning and organization, leadership/supervision, sensitivity, oral communication, and written communication. After observing an applicant’s performance, the raters conferred and assigned the applicant a consensus raw score of between 1 and 7 on each of the seven managerial dimensions.

Thus, the highest total raw score an applicant could receive was 49. The raw scores were then “adjusted” to a 1 to 100 scale. Applicants receiving a total adjusted score of 80 or above were placed in the “well qualified” category. Those receiving a total adjusted score of 79 or lower were placed in the “qualified” category.

The Montgomery County Police Department could choose any person from the highest rating category (“well qualified”) to fill the position of police lieutenant. The promotion eligibility list became effective October 1, 1997, and expired on September 30, 1999. On September 23, 1997, the appellant was notified in writing of his final promotional examination score. His total raw score was 34.5, which translated into a total adjusted score of 71.

He thus was placed in the “qualified” category. Twenty-six other applicants had placed in that category as well. Eight applicants had placed in the “well qualified” category. The scoring sheet the appellant received in the mail gave his consensus score for each of the seven, managerial dimensions (which produced the 34.5 total raw score) and also gave the average, high, and low scores for all applicants on each of the seven dimensions.

Also included with the documentation notifying the appellant of his examination result was a four page ²⁶⁶ “feedback sheet.” The feedback sheet is a form document listing each of the seven managerial dimensions. Each applicant’s feedback sheet was filled out at the end of the examination day by one of the three raters on the panel assigned to that applicant. Under each listing on the feedback sheet, there appears a category for “areas handled well” and “areas to improve.” Additional subheadings are listed under those two areas. For example, under “Problem Analysis — Areas to Improve,” the subheadings listed are: consider relevant facts or information; pay attention to interrelationships or conflicts; don’t jump to conclusions before properly defining problem; and avoid illogical or incomplete analysis.

Next to each such subheading are spaces in which the rater filling out the feedback sheet can mark a check or other written indication that this was an area in which the applicant had a problem or performed well. There also is space under each subheading in which the rater can write comments about the applicant’s performance. A memorandum that accompanied the examination results stated, however, that the feedback sheet, “[was] not intended to be all inclusive of [the applicant’s] performance nor [was] it intended to provide feedback relating directly to [the applicant’s] scores.” The feedback sheet for the appellant contained several checks marked off for areas to improve and areas handled well. Under the heading, “Oral Communication Areas to Improve,” checks were placed next to the following four printed comments: “try to relax, show confidence when speaking before a group”; “try to be persuasive”; “keep consistent eye contact”; and “watch for distracting gestures.” The rater who filled out the appellant’s feedback sheet also hand wrote comments under several of the subheadings, and in the margins.

One of the written comments, under “Leadership/Supervision Areas to Improve,” reads: “Needs to interrelate issues. Homeless issues, Response times. Could of [sic] Done much more with officer.” Another written comment, under “Written Communication Areas Handled Well,” states: ²⁶⁷ “Written [sic] was pretty good — Had some mistakes of grammar.” On October 17,1997, the appellant filed a grievance with the OHR in which he complained, inter alia, that the raters who evaluated him during the examination were incompetent. 1 He alleged that his feedback sheet contained grammatical errors evidencing that the raters “were not qualified to judge [him] on grammar.” He further alleged that the raters “were required to evaluate candidates on ‘eye contact’ and ‘gestures’ but they never looked at [him] while [he] was speaking ... [they] all had their heads down writing furiously.” As relief, the appellant requested, inter alia, “immediate promotion to the rank of police lieutenant”; that he be given “a list of all professionals, along with their credentials, who have certified the instrument and process, or issued any opinion thereof’; and that he be “made whole” and be given such “other and further relief as may be requisite.” On November 5, 1997, the appellant received a written “Step II” response from Marta Brito Perez, Director of the OHR, denying his grievance. In answer to the appellant’s allegation that the raters who assessed him were not competent, Perez stated, in pertinent part: I am confident that the raters were qualified to assess your performance in all of the dimensions being tested.

Each of the dimensions evaluated by this examination process were defined in Personnel Bulletin No. 441. While grammar is certainly a part of written communication, this dimension is more broadly defined as including the ability to convey ideas accurately, clearly, concisely, and in an organized manner, including the use of correct grammar, spelling, punctuation, etc. So too is eye contact but one part of oral communication, which includes not only the ability to convey ideas ²⁶⁸ verbally in an accurate, clear and concise manner, but also verbal and nonverbal communications such as gestures, eye contact, voice volume, articulation, etc. The scores that you received in each of - these areas are indicative of your performance as it related to the entire definition of each dimension, not just one facet. On November 12, 1997, the appellant appealed the denial of his grievance by asking the appellee’s Chief Administrative Officer (“CAO”) for a Step III hearing. The CAO then designated Human Resources Specialist Carol Rollins to conduct that hearing.

Rollins works as a subordinate of Perez, who, as stated above, issued the Step II response. The appellant lodged an objection with the CAO to his appointing Rollins as his designee for the Step III hearing. He argued that Rollins would be subject to “command influence,” ie., that she would be loath to render a decision adverse to that of her superior and therefore would not be impartial, or at least would not appear to be impartial. The appellant argued that the CAO’s appointment of a Step III hearing officer who was subject to “command influence” contravened the County’s stated policy, at section 3.0 of Montgomery County Administrative Procedure 4-4, to “resolve grievances ... in an environment of impartiality and mutual respect.” The appellant requested that the CAO designate a hearing officer who would not be subject to “command influence.” The CAO overruled the appellant’s objection and denied his request for a different hearing officer.

The Step III hearing was held on May 18 and 20, 1999. 2 The appellant participated in the hearing “under protest,” noting his objection to the presiding designee. The appellant testified, as did a number of witnesses called by the appellee. Twenty-six documents were introduced into evidence. ²⁶⁹ On August 10, 1999, James E. Torgesen, Labor/Employee Relations Manager for the OHR, furnished the parties proposed “Findings of Fact,” and gave them an opportunity to submit comments. 3 They did so, and their comments were incorporated into the final Grievance Decision, which was prepared by Torgesen, based on Rollins’s findings, and was adopted and signed by the CAO on December 30, 1999. The Grievance Decision, which is 22 pages long, sets forth findings of fact, arguments of the parties, conclusions, and a disposition denying the appellant’s grievance.

The appellant took a timely appeal to the Board. The parties filed written submissions, which the Board reviewed, together with the Step III Grievance Decision and the documents introduced into evidence at the Step III hearing. Neither party timely requested a hearing and the Board did not hold one. On April 26, 2000, the Board issued a written decision denying the appeal.

The Board concluded, inter alia, that the CAO had not acted contrary to the governing county laws, regulations, or procedures in designating a Step III hearing officer who was a subordinate of the Step II responder. Specifically, the Board ruled that “[t]he use of an OHR staff member to conduct the Step 3 fact-finding portion of the grievance was not improper” and the appellee did not deny the appellant the rights due to him under the merit system law by having the Step III hearing conducted by a subordinate of the Step II responder. The Board characterized its review of the appellant’s grievance as “de novo,” and suggested that any potential for bias due to “command influence” was eliminated by the nature of the Board’s review. The Board added, inconsistently with that suggestion, that it is authorized to ²⁷⁰ hold an evidentiary hearing in a grievance appeal when there are genuine disputes of material fact, but that the appellant’s grievance only involved an issue of law, and therefore an evidentiary hearing was not called for.

It also pointed out that the appellant had not requested an evidentiary hearing in any event. On the merits of the grievance, the Board ruled that the promotional examination as given did not violate any county law or regulation, and was not otherwise improper. The appellant brought an action for judicial review of the Board’s decision, in the Circuit Court for Montgomery County. The appellee participated, and both parties submitted memo-randa of law to the court.

The court held a hearing and thereafter affirmed the Board’s decision. The appellant noted a timely appeal to this Court. We shall provide additional facts as necessary to our discussion of the issues. STANDARD OF REVIEW In Ahalt v. Montgomery County, 113 Md.App. 14 , 686 A.2d 683 (1996), we explained the standard of appellate review of administrative agency decisions: Our role in reviewing an administrative decision is “precisely the same as that of the circuit court.” Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 [ ] (1994); see Moseman v. County Council, 99 Md.App. 258, 262 , 636 A.2d 499 ,[] cert. denied, 335 Md. 229 , 643 A.2d 383 (1994).

Like the circuit court, we must review the administrative decision itself. Public Serv. Comm’n v. Baltimore Gas & Elec. Co., 273 Md. 357, 362 , 329 A.2d 691 [] (1974); see Dep’t of Econ. & Employment Dev. v. Hager, 96 Md.App. 362 , 625 A.2d 342 [] (1993). “Judicial review of administrative agency action is narrow.” United Parcel Serv. v. People’s Counsel for Baltimore County, 336 Md. 569, 576 , 650 A.2d 226 [](1994).

In reviewing the Board’s decision, this Court must not engage in judicial fact finding. Anderson v. Dep’t of Pub. Safety, 330 Md. 187, 212 , 623 A.2d 198 [] (1993); Board of County ²⁷¹ Comm’rs v. Holbrook, 314 Md. 210, 218 , 550 A.2d 664 [] (1988) . Nor may we supply factual findings that were not made by the Board.

Ocean Hideaway Condo. Ass’n v. Boardwalk Plaza Venture, 68 Md.App. 650 , 515 A.2d 485 [] (1986). Moreover, this Court may not uphold the agency’s decision “unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” United Parcel Serv., 336 Md. at 577 , 650 A.2d 226 (quoting United Steelworkers v. Beth. Steel, 298 Md. 665 , 472 A.2d 62 [] (1984)); see Harford County v. Preston, 322 Md. 493, 505 , 588 A.2d 772 [] (1991).

Id. at 20-21 , 686 A.2d 683 . In contrast to the deferential review accorded to an agency’s factual findings, questions of law receive no deference on review; we are not bound by the agency’s interpretation of law. Caucus Distributors v. Maryland Sec. Comm'r, 320 Md. 313, 324 , 577 A.2d 783 [] (1990); State Admin. Bd. of Election Laws v. Billhimer, 314 Md. 46, 59 , 548 A.2d 819 [] (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989).

Indeed, “a reviewing court is under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law.” People’s Counsel for Baltimore County v. Maryland Marine Mfg. Co., Inc., 316 Md. 491, 497 , 560 A.2d 32 [] (1989) .... To the contrary, the reviewing court “must substitute its judgment for that of the agency if ... [its] interpretation of the applicable legal principles is different from that of the agency.” Perini Services, Inc. v. Maryland Health Resources Planning Comm’n, 67 Md.App. 189, 201 , 506 A.2d 1207 ,[ ] cert. denied, 307 Md. 261 , 513 A.2d 314 (1986). Carriage Hill v. Md. Health Resources Planning Com’n, 125 Md.App. 183, 213-14 , 724 A.2d 745 (1999).

DISCUSSION I. Pursuant to section 401 of the Montgomery County Charter, the Montgomery County Council has enacted legislation estab ²⁷² lishing a merit system for all officers and employees of the county government, with certain exceptions not applicable here. Montgomery County Code, § 33-3(a) (1994, Nov. 1997 Supp.) (“Code”). The merit system is administered by the CAO, under the direction of the county executive, and is governed by and subject to applicable provisions of the Montgomery County Charter, Chapter 33 of the Code, and the personnel regulations adopted by the county executive. Code, § 33-3(b).

The Montgomery County Council’s statement of legislative intent for the merit system law provides: It is the legislative intent of the county council that this article foster excellence in the public service; high individual competence among employees; recognition that respect for the employee as an individual is first required for achieving such excellence and competence; and harmonious and efficient operation within the various components of county government. Code § 33-5(b) states, at subsections (2), (6), and (8): The recruitment, selection and advancement of merit system employees shall be on the basis of their relative abilities, knowledge and skills, including the full and open consideration of qualified applicants for initial appointment.' All applicants to and employees of the county merit system shall be assured fair treatment without regard to political affiliation or other nonmerit factors in all aspects of personnel administration. The merit system established under this chapter shall be interpreted in accordance with these principles. Code § 33-12(b) governs grievance procedures.

It directs the county executive to prescribe personnel regulations adopting “procedures which seek to secure at the lowest possible level a fair, prompt and mutually satisfactory resolution to a grievance.” The procedures “shall ensure that any grievance based upon an alleged improper application of a merit' system law or regulation concerning a disputed issue of fact is entitled ²⁷³ to resolution after a fact-finding inquiry authorized by the [Bjoard.” The Montgomery County Personnel Regulations (“MCPR”), as adopted by the county executive, define “Due Process” as “[t]he right of a County employee to be afforded those procedural and substantive protections established by applicable provisions of the Charter, merit system law, regulations or administrative procedures in any matter affecting terms or conditions of employment.” MCPR, 3.2. Grievances are addressed in section 29 of the MCPR. A grievance may be filed, inter alia, for an alleged “[improper, inequitable or unfair act in the administration of the merit system, which may include promotional opportunities.. .. ” MCPR 29 — 2(c). Under MCPR 29-3, the CAO is directed to establish a procedure for reviewing and processing grievances.

The procedure is to “assure prompt, objective, and impartial resolution at the lowest level of supervision possible.” MCPR 29-3. Administrative Procedure 4-4, entitled “Grievances,” was adopted by the CAO pursuant to the regulations quoted above. It provides, at section 3.0: It is County policy to resolve grievances in an orderly and timely manner in an environment of impartiality and mutual respect, with the objective of resolving job-related problems in order to encourage excellence of work and improved level of service. The appellant contends that the Board was legally incorrect in concluding that the fairness requirements of the applicable Montgomery County personnel laws and procedures were satisfied in his grievance when his CAO-designated Step III hearing officer was a subordinate of the Step II responder.

He argues, as he did below, that a hearing officer who is subject to “command influence” either does not act impartially or does not appear to be acting impartially; and, in either circumstance, the employee/grievant does not receive fair treatment. In support of his “command influence” argument, the appellant cites West Virginia v. Kelly, 145 W.Va. 70 , 112 S.E.2d 641 ²⁷⁴ (1960). In that case, the West Virginia Department of Motor Vehicles revoked a used car dealer’s business license on the ground of record-keeping violations. The used car dealer was charged with the violations as a result of an investigation by the commissioner of the Department of Motor Vehicles.

A revocation hearing was held and was presided over by one of the commissioner’s deputies. The commissioner appeared and testified about the findings of his investigation. The used car dealer gave contrary testimony. The' deputy commissioner chose to believe his superior over the used car dealer, and ruled to revoke the dealer’s license.

On appeal, the used car dealer argued that having the deputy commissioner. serve as the fact-finder and decision-maker in a hearing in which his superior’s investigation and findings were at issue created “command influence” that undermined his due process rights to a fair and impartial hearing. The Supreme Court of West Virginia agreed. It noted that due process requires that a trial or hearing ... be fair, unbiased and by an impartial tribunal, whether the tribunal be administrative or judicial, and that the power exercised by the tribunal ... not be exercised in an arbitrary or capricious manner. Id. at 74 , 112 S.E.2d 641 .

The court then stated: In Tumey v. State of Ohio, 273 U.S. 510 , 47 S.Ct. 437, 444 , 71 L.Ed. 749 [] (1927), Mr. Chief Justice Taft ... stated: “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” [Therefore], remembering the history giving rise to the adoption of the due process provisions, and keeping in mind the freedoms assured the people thereby, we are of the view that the record discloses that [the used car dealer] has been denied due process of law and that, for that reason, the order should be set aside and the writ prayed for awarded. ²⁷⁵ It can hardly be contended that the commissioner, in the making of the investigation and in testifying before the deputy commissioner appointed by him and responsible to him, beyond any reasonable probability, did not become biased and prejudiced in the matter being heard. It would seem to be beyond human experience and expectation for impartiality to result where the officer is investigator, prosecutor, witness and trier of facts. It would seem clear, in these circumstances, that the deputy commissioner could not have acted with impartiality in the consideration of [the used car dealer’s] rights. His actions were for the commissioner, and could not be expected to be free and independent of his influence.

Such procedure would most certainly “offer a possible temptation to the average man to forget the burden of proof.” This, of course, is not to intimate that the commissioner or deputy commissioner acted with any evil intention or design. But denial of due process, within the meaning of the law, is of itself arbitrary and capricious action, though the officer or tribunal may have acted with the most worthy intentions. Id. at 75-76, 112 S.E.2d 641 . The appellant also points out that the General Assembly recognized the unfairness of “command influence” when it enacted legislation creating the Office of Administrative Hearings.

As the Court of Appeals explained in Anderson v. Department of Public Safety and Correctional Services, 330 Md. 187 , 623 A.2d 198 (1993): One of the main objectives of the Legislature in establishing the OAH was to provide an impartial hearing officer in contested cases. A hearing officer employed by and under the control of the agency where the contested case or other disputed action arises, often results in the appearance of inherent unfairness or bias against the aggrieved. See the Final Report of the “Governor’s Task Force on Administrative Hearing Officers.” (1988). Id. at 213-14 , 623 A.2d 198 .

The appellee’s response to the appellant’s “command influence” argument is three-fold. First, it argues that, just as ²⁷⁶ administrative proceedings in which agencies serve both pros-ecutorial and adjudicatory roles have been held not to violate due process, the designation in this case of a Step III hearing officer subordinate to the Step II responder did not violate due process. Second, it argues that the appellant’s position “ignores the purpose and reality of an internal grievance review process,” which, it asserts, is not a substitute for the quasi-judicial review afforded by the Board, but is a preliminary internal dispute resolution mechanism designed to promptly resolve grievances at the lowest possible level. If that objective is not attained, the employee’s grievance is decided by the Board, in what the appellee terms a “de novo review.” Thus, any impartiality or appearance of impartiality due to “command influence” is a necessary by-product of the process and in the final analysis does not matter, because the Board determines the grievance anew.

Finally, the appellee argues in the alternative that by failing to request a hearing before the Board, and not challenging the written record with disputed facts, the appellant deprived himself of the sort of evidentiary hearing that would have cured any procedural unfairness resulting from “command influence” at the Step III hearing, and thus waived the issue for review. The grievance procedure as described in MCPR 29-3 requires that there be “levels of review,” otherwise designated as “steps,” and that there be a “[wjritten decision or disposition at each level of review.” MCPR 29-3(c). The “steps” in the formal grievance procedure as set forth in section 6.1 et seq. of Administrative Procedure 4-4, adopted by the CAO, include a single opportunity, at the Step III hearing, for the grievant and the department against which the grievance is lodged to present and respond to the grievance by, inter alia, calling witnesses and furnishing documents. Administrative Procedure 4-4, section 6.4.

Thus, the Step III hearing officer presides over the only internal grievance hearing at which the parties may present evidence. The hearing officer makes ²⁷⁷ findings of fact based in part on credibility assessments of the witnesses and reaches a conclusion about the merits of the grievance. The hearing officer’s factual findings and conclusion either will be consistent with or will reject the already stated findings and conclusion of the Step II responder. We agree with the appellant that when, in such a process, the Step III hearing officer is a subordinate of the Step II responder, there is a substantial likelihood that the hearing officer’s view of the case will be tainted and that he therefore will not render an impartial decision; and even if there is no actual partiality, the process appears not to be impartial.

A grievant in the appellant’s position reasonably would think that the Step III hearing officer’s interest in pleasing his superior, the Step II responder, by resolving the grievance as the Step 11 responder did, would interfere with his ability to make a neutral decision. In either case, the process is not “fair,” as required by the governing statute, regulations, and rules. The appellee does not argue directly that when the Step III hearing officer for a grievance is a subordinate of the Step II responder, there is not at least an appearance of impartiality in the process. Rather, the appellee attempts to analogize the process used here to processes in which members of a single agency serve both prosecutorial and quasi-judicial functions, without principles of due process being offended.

We do not find this argument persuasive. The appellee quotes a general statement by the Court of Appeals in Montgomery County v. Stevens, 337 Md. 471 , 654 A.2d 877 (1995), that: It is ... very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law. ²⁷⁸ Id. at 485 , 654 A.2d 877 (quoting Withrow v. Larkin, 421 U.S. 35, 55-56 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975)). The Stevens case involved a complaint against a police officer that was initiated by the Chief of Police after he was told about the officer’s misconduct by a lawyer who witnessed it.

The case did not concern an internal complaint or grievance process in which members of an agency were passing judgment on their superiors’ fact-finding and decision-making. The appellee next cites Consumer Protection Div. Office of the Attorney Gen. v. Consumer Publ’g Co., Inc., 304 Md. 731 , 501 A.2d 48 (1985), in which the Court held that it was not a violation of due process of law when the Consumer Protection Division of the Attorney General’s Office investigated a business’s advertising practices, filed charges based on the investigation, and held hearings to determine whether the business had violated the Consumer Protection Act. The Court pointed out that the mere fact that both the prosecutorial and adjudicatory functions occurred within the Attorney General’s Office was not a due process violation and, in fact, those in the Attorney General’s Office who participated in the investigation and filing of charges did not participate in the adjudicatory phase of the case. 304 Md. at 763 , 501 A.2d 48 .

In the case sub judice, by