McKay v. Department of Public Safety & Correctional Services

¹⁸⁶ BARBERA, Judge. This appeal has its genesis in the suspension and subsequent termination of appellant, Corporal Kevin McKay, a corrections officer at the Maryland Correctional Adjustment Center (“MCAC”) in Baltimore City. Appellee, the Department of Public Safety and Correctional Services (“the Department”), initially entered into a disciplinary settlement agreement (“the Agreement”) with appellant that called for his one-day suspension and forfeiture of two annual leave days. Twenty-six days later, the Department rescinded that agreement and terminated appellant.

Appellant appealed to the Secretary of Budget and Management, who referred the matter to the Office of Administrative Hearings (“OAH”) for decision. Following a hearing, the administrative law judge (“ALJ”) upheld the termination. Thereafter, appellant petitioned the Circuit Court for Baltimore City for judicial review. That court affirmed the AL J’s decision.

Appellant noted this appeal and asks: Did the Administrative Law Judge err, as a matter of law, by failing to decide all material issues raised by Officer McKay? We hold that the ALJ erred in failing to rule on the legal significance of the Agreement when it decided that the Department was entitled to terminate appellant. As we shall explain, the final and binding nature of the Agreement precluded the Department from rescinding it and imposing the more severe sanction of termination. We therefore vacate the judgment of the circuit court and remand to that court with directions to remand the case to the OAH, with directions to rescind appellant’s termination and to undertake further action as is necessary consistent with that rescission.

FACTS AND PROCEEDINGS On the morning of June 9, 2000, appellant reported for duty at MCAC. He was assigned to work in the control center of ¹⁸⁷ the housing unit known as Delta Pod. Each pod at MCAC is comprised of four quads, with each quad containing six inmate cells. The control center is a glass-enclosed work area from which corrections officers control the doors to the inmates’ cells and the security doors of the housing unit, and from which the officers monitor the activity of the inmates in the housing unit.

The control center log indicates that between 9:10 a.m. and 9:31 a.m. on that day, six inmates were released from their respective cells to participate in indoor recreation activities. Between 9:31 a.m. and 10:18 a.m., one of the six recreating inmates was stabbed fourteen times with a homemade weapon by one or more inmates. At approximately 10:18 a.m., a corrections officer conducting routine security rounds found the victim lying on the floor outside of the control center. The victim was unresponsive.

Several corrections officers, a prison nurse, and Baltimore City Fire Department personnel tried, without success, to revive the victim. The victim was pronounced dead at 10:40 a.m. from having bled to death. As required by departmental and institutional directives, Warden Thomas Corcoran (“the Warden”) advised the Division of Correction’s Internal Investigations Unit (“IIU”) and the Maryland State Police (“MSP”) of the homicide. Shortly thereafter, representatives from both IIU and MSP arrived at the crime scene to begin their respective investigations.

The Warden undertook an immediate investigation. 1 The Warden’s investigation was independent of the IIU and MSP ¹⁸⁸ investigations and, in its initial hours, included conducting an examination of the crime scene, talking with the chief of security, and reviewing reports of officers at the scene and others who responded to it. The Warden also interviewed appellant, who shared his account of the homicide. As the Warden later explained at the hearing before the AL J, “the purpose [of the investigation] was to get a sense for what happened there, and for — if there was culpability on the part of staff to impose timely discipline in the least restrictive form necessary to send a message about the performance.” Based on the information he had gathered that day, the Warden decided that appellant’s actions were negligent and constituted a breach of security, thereby warranting a three-day suspension. Before finalizing the disciplinary action, however, the Warden later that same day conducted a “mitigation conference” with appellant. 2 At this conference the Warden reviéwed appellant’s personnel file, which included his time of service, a weapons discharge violation, and a letter of commendation for his efforts in increasing the level of sanitation in the institution.

Appellant repeated his version of events, but provided no new information for the Warden to consider. The Warden suspended appellant for three days. The Warden gave appellant the option of using two annual leave days in place of two days of suspension. Appellant accepted this option; he agreed to a one-day suspension and forfeiture of two annual leave days in lieu of a three-day suspension.

The agreement was immediately reduced to writing in a document entitled “Acceptance of Disciplinary Action Waiver of Appeal Rights.” Appellant signed this document, witnessed by two individuals, the same day as the incident, June 9, 2000. Ten days later, appellant and the Warden signed a “Notice of Disciplinary Action.” This document listed the charges and the discipline imposed, which was identical to that agreed upon by the parties. ¹⁸⁹ On July 5, 2000, twenty-six days after the incident and original suspension, the Warden notified appellant that he was rescinding the Agreement. That same day, the Warden served a notice of termination upon appellant. The Secretary of the Department agreed with the Warden’s recommendation and approved appellant’s termination.

In a timely fashion, appellant appealed his termination to the Secretary of Budget and Management, who referred the matter to the OAH for decision, pursuant to § 11 — 110(b) and Md.Code (1984,1999 RepLVol.), § 10-205 of the State Government Article. Thereafter, the ALJ conducted a full evidentiary hearing and took testimony from appellant, the Warden, and several correctional officers who had been present at or responded to the scene of the stabbing. The hearing focused on two issues: Whether the alleged actions of appellant justified termination, and whether, in any event, the Department was precluded by § 11 — 108(a)(2) from taking action to terminate appellant after it had agreed to and then rescinded a more lenient disciplinary sanction. As we will discuss, § ll-108(a)(2) permits the appointing authority and an employee to negotiate and agree upon a lesser disciplinary action that is “a final and binding action, not subject to any further review.” At the hearing, the Warden explained his rationale for agreeing initially to suspend appellant.

The Warden testified, in particular, that appellant “may not have been doing his job for a very brief period,” and “although [the incident] was so extremely serious that an inmate lost his life, [he] didn’t want to go beyond the real culpability of [appellant’s] performance.” The Warden then testified that as “more information became available, [he] began to get quite a different picture of what went on. And it became obvious that [appellant] was way less than truthful in the description of his performance that day.” The Warden stated that, in the several weeks following the day the inmate was killed, he obtained additional information concerning appellant’s conduct on the morning of the stabbing. This included that: (1) no log entries were made between 9:31 ¹⁹⁰ a.m. and 10:18 a.m., despite appellant’s contention that he was visually scanning the pod and making the appropriate log entries; (2) the radio located in the victim’s cell was blaring, indicating that appéllant “must have electronically unlocked the cell, in violation of institutional procedure and policy, to afford [an inmate the] opportunity to return to the cell to turn up the radio”; (3) at the time the victim’s body was discovered, four inmates were observed to be on the upper tier of the facility in violation of institutional policy; and (4) the victim’s blood was in a congealed condition at the time the emergency team responded, indicating that he had been lying on the floor in front of the control center for twenty to thirty minutes. The Warden explained that, together, this evidence demonstrated that appellant’s failure to observe the inmates was not momentary, as previously thought, but continuous over a period of time.

The Warden consequently determined that termination, rather than the initial discipline, was the more appropriate sanction for appellant’s misconduct. After “consulting] the Attorney General’s office and personnel,” the Warden rescinded the Agreement, compensated appellant for the day he was suspended, restored the two annual leave days, and recommended to the Secretary of the Department that appellant be terminated. As we will discuss, § 11-103, upon which the Warden relied in taking this action, permits an appointing authority to impose additional disciplinary action if additional information comes to light after the initial disciplinary action was taken. In March 2001, the ALJ issued his decision in the case.

Regarding the question whether the Warden was permitted to increase the sanction initially imposed upon appellant, the ALJ stated only that “I am not aware, nor have I been directed to, any statute or law which would preclude the rescission of the initial sanctions and the imposition of a new sanction, so long as the action is timely.” 3 Regarding the ¹⁹¹ question whether appellant had committed one or more of the charged offenses in the notice of termination, the ALJ concluded as a matter of law that [appellant] has violated section 11-105(8) of the Code by being wantonly careless in the performance of his duties. [Appellant] also violated the provisions of COMAR 17.04.05.04B (1) and (3) which provide that an employee may be disciplined for engaging in any of the following actions: (1) Being negligent in the performance of duties and/or (3) Being guilty of conduct that has brought or, if publicized, would bring the State into disrepute. [Appellant] also violated Standards of Conduct for his position: Standards of Care, section II, B(l), subsection J (performance of duties); subsection M (breach of duty) and subsection X (attitudes toward inmates). Accordingly, the ALJ affirmed the Department’s decision to terminate appellant. Appellant filed a petition for judicial review in the Circuit Court for Baltimore City. The circuit court affirmed the decision of the ALJ and thereafter issued an order, without opinion, stating same.

This appeal followed. DISCUSSION Appellant argues that the ALJ erred in failing to determine whether the initial discipline imposed by the Department pursuant to the Agreement between the Warden and appellant was a “final and binding action, not subject to any further review,” as prescribed by § 11-108. The Department responds that this issue is not preserved for appeal and that, in any event, the ALJ properly determined that the Warden had ¹⁹² the authority to rescind the Agreement and impose the additional consequence of termination. We hold that the issue presented in this appeal is preserved for our review.

We also hold that the ALJ erred in ruling that the Department was entitled to rescind the Agreement and impose upon appellant the more severe sanction of termination. I. Ordinarily, the appellate courts will not decide an issue-unless the record plainly shows it to have been raised in or decided by the trial court. Md. Rule 8 — 131(a). The Department argues that appellant failed to preserve the issue he asks us to consider because it varies from the argument he pressed before the circuit court.

To be sure, the wording of appellant’s contention differs on appeal from that presented below. Before this Court, appellant argues that the ALJ’s failure to determine the legal effect of the Agreement in light of § 11 — 108(a)(2), discussed infra, warrants a remand to the ALJ for such a determination. In the circuit court, appellant argued that the ALJ erred as a matter of law in finding that § ll-108(a)(2) does not bar the Department from rescinding the Agreement. In both fora, appellant argues, in effect, that § 11 — 108(a)(2) controls this case and precluded the Department from rescinding the Agreement it had reached with appellant.

We conclude that the claims are the same; thus, the issue is preserved for our consideration.

II

In deciding that the Department could rescind its prior disciplinary agreement with appellant and thereafter terminate him, the ALJ concluded that no “statute or law ... would preclude the rescission of the initial sanctions and the imposition of a new sanction.” In deciding whether the ALJ was correct, we stand in the same shoes as did the circuit court in the first instance. Gigeous v. Eastern Corr. Inst., 363 Md. ¹⁹³ 481, 495-96, 769 A.2d 912 (2001); Ford v. Dep’t of Pub. Safety and Corr.

Servs., 149 Md.App. 488, 497 , 817 A.2d 264 (2003) (quoting Curry v. Dept. of Pub. Safety and Corr. Servs., 102 Md.App. 620, 627 , 651 A.2d 390 (1994), cert. dismissed, 340 Md. 175 , 665 A.2d 1038 (1995)). We review the decision of the ALJ, not the decision of the circuit court.

Dep’t of Pub. Safety and Corr. Servs. v. Beard, 142 Md.App. 283, 294 , 790 A.2d 57 , cert. denied, 369 Md. 180 , 798 A.2d 552 (2002). We do “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.” Ford, at 497, 817 A.2d 264 .

When reviewing the ALJ’s legal conclusions, however, “the court ‘must determine whether the agency interpreted and applied the correct principles of law governing the case and no deference is given to a decision based solely on an error of law.’ ” Eastern Outdoor Adver. Co. v. Mayor and City Council of Baltimore, 128 Md.App. 494, 514 , 739 A.2d 854 (1999), cert. denied, 358 Md. 163 , 747 A.2d 644 (2000) (quoting Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 652 , 701 A.2d 879 (1997) (citations omitted)). The issue in this case is solely a question of, statutory interpretation. We thus review the ALJ’s decision de novo.

Total Audio-Visual Systems, Inc. v. Dep’t of Labor, Licensing and Regulation, 360 Md. 387, 394 , 758 A.2d 124 (2000). In doing so we do not hesitate to substitute our judgment for that of the ALJ. “ ‘[T]he cardinal rule of statutory construction is to ascertain and effectuate the legislative intention.’ ” State v. Green, 367 Md. 61, 81 , 785 A.2d 1275 (2001) (quoting Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987 (2000)). The starting point is the language of the statute itself. Western Corr.

Inst. v. Geiger, 371 Md. 125, 141 , 807 A.2d 32 (2002); Adamson v. Corr. Med. Seres., Inc., 359 Md. 238, 251 , 753 A.2d 501 (2000). “[I]f the plain meaning of the statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the ¹⁹⁴ specific purpose of the provision being interpreted, our inquiry is at an end.” Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 , 784 A.2d 569 (2001). The plain meaning rule, however, is not absolute.

Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590 (1992); Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 513 , 525 A.2d 628 (1987). “The plain meaning rule is ‘elastic, rather than cast in stone [,]’ and if ‘persuasive evidence exists outside the plain text of the statute, we do not turn a blind eye to it.’ ” Hams of Southern Maryland, Inc. v. Nationwide Mutual Ins. Co., 148 Md.App. 534, 540 , 813 A.2d 325 (2002) (quoting Adamson, 359 Md. at 251 , 753 A.2d 501 ). In determining the meaning of a statute, we are