Mihailovich v. Department of Health & Mental Hygiene

Sharer, J. In this appeal we shall resolve conflicting interpretations of the “five workdays” requirement of Maryland Code (1993, 2015 Repl. Vol.) State Personnel & Pensions, Section ll-106(c) (“SPP”) as that term pertains to the disciplinary suspension of a State employee. The issue before us, which we have recast, is: Whether the Department of Health and Mental Hygiene (“DOH”), 1 appellee, gave timely notice of a suspension without pay to appellant, Kevin Mihailovich. 2 We shall hold that the DOH did not give timely notice pursuant to the statute; hence, we shall reverse the judgment of the Circuit Court for Baltimore City. BACKGROUND Although the circumstances of appellant’s employment and asserted misconduct are not necessary for our review, we provide a brief factual recitation for procedural context.

Mihailovich is a Certified Nursing Assistant employed by the Thomas B. Finan Center, an in-patient psychiatric facility under the management of the DOH, located in Allegany County. On the evening of March 3, 2015, Finan Center management learned of an incident involving Mihailovich and a patient that resulted in injury to the patient requiring medical treatment at a local hospital. Management determined that Mihailovich engaged in “misconduct” by failing to follow DOH-approved de-escalation techniques. On the next day— March 4—Mihailovich was placed on paid administrative leave pending an investigation into the incident.

The administrative leave extended from March 4 through March 17, when Mihail-ovich was notified that he was to be suspended for 15 days without pay. On March 30, 2015, Mihailovich noted a timely appeal to the Secretary of the Department of Budget and Management. Following an unsuccessful settlement conference, the case was forwarded to the Office of Administrative Hearings. On July 27, 2015, a merits hearing was conducted, following which, on September 9, 2015, the Administrative Law Judge (ALJ) issued a written decision reversing the suspension, and ordered back pay.

The DOH moved for reconsideration, challenging the ALJ’s interpretation and application of SPP § 11—106(c), which was summarily denied. The DOH filed a request for judicial review of the ALJ’s decision in the Circuit Court for Baltimore City. Following a hearing, the circuit court reversed the decision of the ALJ, thus reinstating the suspension. Standard of Review Within the context of the present appeal, “[t]he decision of the Office of Administrative Hearings [was] the final administrative decision[,]” SPP § 11—110(d)(3), and not that of the DOH or the Secretary of the Department of Budget and Management.

As the final adjudicator of contested DOH’s disciplinary decisions, the ALJ’s review of those decisions, “is bound by any agency regulation, declaratory ruling, prior adjudication, or other settled, preexisting policy, to the same extent as the agency is or would have been bound if it were hearing the case.” SG § 10-214(b), See also SPP § 11-110(c)(2). It is “[bjecause an appellate court reviews the agency decision under the same statutory standards as the circuit court,” Consumer Prot. Div. v. George, 383 Md. 505, 512 , 860 A.2d 896 (2004) (quotations and citation omitted), that “we analyze the agency’s decision, not the [circuit] court’s ruling.” Martin v. Allegany County Bd. of Educ., 212 Md.App. 596, 605 , 69 A.3d 1224 (2013) (citation omitted). We are “ ‘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.’ ” W.R. Grace & Co. v. Swedo, 439 Md. 441, 453 , 96 A.3d 210 (2014) (quoting Bd. of Physician Quality Assur. v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376 (1999)).

In fact, “when the question before the agency involves one of statutory interpretation or an issue of law, our review is more expansive.” E. Outdoor Advert. Co. v. Mayor of Baltimore, 146 Md.App. 283, 302 , 807 A.2d 49 (2002) (quoting Dep’t of Labor, Licensing & Regulation v. Muddiman, 120 Md.App. 725, 734 , 708 A.2d 47 (1998)). As such, “it is always within our prerogative to determine whether an agency’s conclusions of law are correct.” Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289, 298 , 116 A.3d 507 (2015) (quotations and citation omitted). It is for this reason that we review the agency’s statutory interpretation de novo.

See Ireton v. Chambers, 229 Md.App. 149, 155 , 143 A.3d 215 (2016) (citing Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142 , 46 A.3d 443 (2012)). See also Fraternal Order of Police Montgomery Cty. Lodge 35 v. Montgomery Cty. Exec., 210 Md.App. 117, 128 , 62 A.3d 238 (2013).

DISCUSSION This appeal requires us to review the ALJ’s interpretation and application of SPP § ll-106(c), which provides, relevant to the issue presented: (1) An appointing authority[ 3 ] may suspend an employee without pay no later than 5 workdays following the close of the employee’s next shift after the appointing authority acquires knowledge of the misconduct for which the suspension is imposed. (2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection. When assessing the timeliness of the suspension, the ALJ was tasked with answering two underlying questions posed by Mihailovich: “[fjirst, what qualifies as a ‘workday’ under SPP section ll-106(c)[;] [a]nd second, what constitutes ‘the employee’s next shift’ under that same provision when, as here, the appointing authority has placed the employee on administrative leave ... [?[?] ” The ALJ concluded that the term “workday” was intended to relate to the employee’s schedule, rather than the appointing authority’s schedule, and that the employee’s next shift is not affected by being placed on administrative leave. The ALJ found that, “[ajssuming further that the Employee normally maintains a Wednesday-through-Sunday workweek, his next five workdays would have been: (1) Thursday, March 5; (2) Friday, March 6; (3) Saturday, March 7; (4) Sunday, March 8; and (5) Wednesday, March ll.” 4 Based on that interpretation, the ALJ found the suspension imposed on March 17 to be untimely, reversed the suspension, and ordered back pay.

We address the first of these two questions in our review of the ALJ’s decision and dispose of the second, accordingly. Statutory Interpretation By whose schedule is a “workday” determined? Since the question presented in this appeal is based largely on the interpretation of SPP § 11—106(c), we look first to the plain meaning of the statute. All “[(legislation is created with a particular objective or purpose.” Bowers v. State, 227 Md.App. 810 , 322, 133 A.3d 1254 (2016) (citation omitted).

As such, “[t]he cardinal rule of statutory construction is to effectuate and carry out legislative intent.” Duffy v. CBS Corp., 232 Md.App. 602, 612 , 161 A.3d 1 (2017) (quoting Rose v. Fox Pool Corp., 335 Md. 351, 358 , 643 A.2d 906 (1994)), cert. granted, 456 Md. 53 , 170 A.3d 290 (2017). When this Court is “called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent.” Duffy, 232 Md.App. at 613 , 161 A.3d 1 (quoting Rose, 335 Md. at 359 , 643 A.2d 906 ). However, “[wjhere the statute’s language is ambiguous or not clearly consistent with the statute’s apparent purpose, the court ‘searches] for [the General Assembly’s] intent in other indicia, including the history of the [statute] or other relevant sources intrinsic and extrinsic to the legislative process[,]’ in light of: (1) ‘the structure of the statute’; (2) ‘how [the statute] relates to other laws’; (3) the statute’s ‘general purpose’; and (4) ‘[the] relative rationality and legal effect of various competing constructions.’ ” Hailes v. State, 442 Md. 488, 495-96 , 113 A.3d 608 (2015) (quoting Gardner v. State, 420 Md. 1, 9 , 20 A.3d 801 (2011)). See also Patton v. Wells Fargo Fin.

Maryland, Inc., 437 Md. 83, 97 , 85 A.3d 167 (2014) (“Where, as here, there appears to be ambiguity or uncertain meaning in a statute, the Court ‘may and often must consider other external manifestations or persuasive evidence, including a bill’s title and function paragraphs, ... its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal[.]” (quoting Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515 , 525 A.2d 628 (1987))). With this in mind, in our statutory interpretation inquiry, we will consider the “legislative history of [SPP § 11-106], including amendments that were considered and/or enacted as the statute passed through the Legislature,” Duffy, 232 Md.App. at 614 , 161 A.3d 1 (quoting Rose, 335 Md. at 360 , 643 A.2d 906 ), as well as the related legislative documents and reports that were circulated during the pendency of the statute’s enactment. The parties agree that the ALJ erred in the manner in which the 5-workday period was counted. However, they disagree about the statutory meaning of “workday”—that is, whether workdays are to be counted from the perspective of the appointing authority or the employee.

Mihailovich contends that “workday” refers to the appointing authority’s schedule; DOH avers that it pertains to the employee’s schedule. We have found no reported opinions of either this Court or the Court of Appeals that directly answer the question. As a matter of first impression, we conclude that the “workday” specified in the statute pertains to the schedule of the appointing authority, not the employee, for the purpose of establishing the temporal parameters within which disciplinary action must be taken. We gather support for our conclusion from related case law and the statute’s legislative history, as we shall discuss, infra.

In W. Corr. Inst. v. Geiger, 371 Md. 125 , 807 A.2d 32 (2002), the Court of Appeals reviewed SPP § ll-106(c) in the context of the extent of “knowledge” necessary to trigger commencement of the 30-day period to impose a disciplinary action. 371 Md. 125 , 807 A.2d 32 . In its analysis, the Court considered the statute as a whole, noting that: All three subsections of § 11-106 are interrelated; one can not be read and interpreted without reading and interpreting the others. Subsection (a) prescribes what must be done before imposing discipline, subsection (b) sets the general time limitation on when the imposition of discipline must occur and subsection (c) provides a special time limit for suspensions without pay.

Id. at 143-44, 807 A.2d 32 . Although the Court’s discussion in Geiger does not specifically answer the subsection (c) “workday” question presented by this appeal, the Court opined that “[s]ection 11-106 ... is not person specific; it is situation and fact based.” Id. at 144 , 807 A.2d 32 . Additionally, the Geiger Court stated that “the knowledge that triggers the running of the thirty day period need not, and may not, although it generally will, identify the employee ultimately disciplined.” Id. In conclusion, the Court held that, “viewed in context, § 11-106 gives the appointing authority 30 days to conduct an investigation, meet with the employee the investigation identifies as culpable, consider any mitigating circumstances, determine the appropriate action and give notice to the employee of the disciplinary action taken.” Id. at 144-45, 807 A.2d 32 .

As we discussed in White v. Workers’ Comp. Comm’n, 161 Md.App. 483 , 870 A.2d 1241 (2005), the same interpretation is applicable to the more stringent temporal requirements of subsection (c). 161 Md.App. at 491 , 870 A.2d 1241 . There, we held, “[t]he reasoning articulated in Geiger requires us to hold, sub judice, that any suspension imposed outside of the 5 work day time limit is violative of the statute and cannot stand.” Id. Therefore, the appointing authority’s knowledge of misconduct is the triggering factor to commence the calculation of the 5-workday period.

It is important to note, however, that the issue presented in White did not require an analysis of the 5-workday notice requirement; rather, as in Geiger, it pertained to the degree of knowledge of misconduct that triggers the counting of those days. Additionally, because White’s work schedule was Monday through Friday, inferably the same as the appointing authority, there was no need to address by whose schedule the 5-workday period is to be applied. Adhering to Geiger, and considering the statute as a whole, we conclude that the term “workday” was intended to refer to that of the appointing authority for the purposes of calculating the 5-workday notice period. As the Court noted in Geiger, each of the subsections are related, and should be read as such. 371 Md. at 143-44 , 807 A.2d 32 .

Specifically, subsection (a) 5 provides the requisite actions that an appointing authority must complete in order to take disciplinary action under either subsection (b) or (c). Subsections (b) and (c) both provide the timeframes within which the appointing authority must complete the actions in subsection (a) as a prerequisite to the imposition of a disciplinary action. Each subsection provides insight to the understanding of the others. Of significance is the express language of the first clause in subsection (a): “[b]efore taking any disciplinary action related to employee misconduct ....” SPP § ll-106(a) (emphasis added).

That language provides a strict limitation on the ability of an appointing authority to impose a disciplinary action, by prefacing any action with five prerequisites. In that regard, subsection (a) requires: [A]n appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating circumstances; (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights. Id. (emphasis added).

Subsection (b) then provides the time frame for imposing any disciplinary actions, other than an unpaid suspension, by limiting the period to “no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.” SPP § ll-106(b). Subsection (c), on the other hand, addresses the significantly shorter time period within which to impose an unpaid suspension, by providing the limitation of “no later than 5 workdays.” SPP § ll-106(c). Our conclusion that the legislature intended “workday” to pertain to the appointing authority’s schedule, not the employee’s schedule, is supported by our consideration of the statute as a whole, then comparing the language of subsections (b) and (c). As we have noted, subsection (b) has no limitation on which days can be counted, or excluded from the count, within the 30 day period.

It is clear to us that the judicial interpretation that has been given to the 30-day requirements of 11-106(b) is that the 30-day investigatory period is measured in consecutive calendar days. It follows, then, that the 5-workday notice period of subsection (c) should likewise be measured in consecutive calendar days. In contrast, subsection (c) provides, effectively, two additional restrictions beyond the disputed “workday” limitation. First, counting does not commence until after the end of the employee’s next shift following the appointing authority’s knowledge of misconduct.

See SPP § 11—106(c)(1). Then, the succeeding provision expressly excludes weekends, legal holidays, and employee leave days from the calculation. SPP § ll-106(c)(2). Those two restrictions can be read in one of two ways; either, to put the focus on the employee’s schedule, as DOH argues, or to allow the appointing authority more time to complete the requirements of subsection (a) by excluding days in which it would not be functioning, as well as the days the employee would be unavailable to meet.

Additional support for our interpretation is found by examining the statutory history and legislative resources utilized in the drafting and enactment of the statute. Particularly useful in our consideration is the 1996 Task Force to reform the State Personnel Management System’s Report to the Governor (“Governor’s Report” or “Report”), which was likewise discussed in part by the Court of Appeals in Geiger, as well as the ALJ in the instant case. Legislative History The General Assembly, in 1920, enacted Md. Code, Article 64A—Merit Systems, Section 17 of which provided, in pertinent part: “The appointing authority may for disciplinary purposes suspend an employee[]