Miller v. Dept. of Public Safety & Correctional Services

⁴⁴² FRIEDMAN, J. This appeal raises the question of whether the Maryland Correctional Training Commission may revoke a correctional officer’s certification (which the officer must have to work) after that officer has been recertified pursuant to an administrative order. We hold that, under these convoluted circumstances, the Commission may revoke the correctional officer’s certification. PROCEDURAL AND FACTUAL BACKGROUND Shania Miller was a correctional officer at the Maryland Reception, Diagnostic & Classification Center (“MRDCC”). As a requirement of her employment, she held a certification from the Correctional Training Commission.

In 2010, Warden Solomon Hejirka of the MRDCC terminated Miller’s employment after he learned that Miller was engaged in a sexual relationship with an inmate (“First Termination”). Miller appealed her termination to the Office of Administrative Hearings (“OAH”) 1 (“First Appeal”) and, following a hearing, an Administrative Law Judge (“ALJ”) ordered that the notice of termination be rescinded. The ALJ determined that the Warden had terminated Miller’s employment more than thirty days after discovering Miller’s misconduct, and thus the termination came too late under the governing law. SP § ll-106(b) (stating that an appointing authority may impose disciplinary action no later than 30 days after acquiring knowledge of the misconduct).

As a result, an ALJ ordered that Miller be reinstated with full back pay and benefits but did not reinstate her certification without further examination (“First ALJ Order”). ⁴⁴³ Miller was reinstated to her position and was assigned to non-inmate-related tasks pending her recertification. During the recertification process, the Correctional Training Commission (the “Commission”) discovered that Miller had failed to disclose a prior employment on her application. As a result of this nondisclosure, the Commission refused to recertify Miller and she was again terminated (“Second Termination”). Miller appealed her second termination (“Second Appeal”).

Following a hearing, an ALJ found that Miller’s Second Termination was pretextual and that the Department failed to follow the recertification process. An ALJ ordered that Miller’s Second Termination be rescinded and that she be reinstated “with no further examination or condition” (“Second ALJ Order”) as is specifically permitted pursuant to CS § 8-209.2(a). Miller was again reinstated to her position and was issued a new certification. Following Miller’s second reinstatement, the Commission convened a hearing to determine if Miller’s certification should be revoked due to her alleged sexual relationship with an inmate.

The Commission considered the investigation by the Internal Investigation Unit of the Department of Public Safety and Correctional Services and concluded that Miller was indeed involved in a sexual relationship with the inmate. Based on that conclusion, the Commission issued a decision ordering that Miller’s certification be revoked and, as a result, she was again terminated (“Third Termination”). Miller appealed the revocation of her certification (“Third Appeal”). Following a hearing, an ALJ concluded that the Commission did not violate the Second ALJ Order by revoking Miller’s certification after she had been reinstated (“Third ALJ Order”). “Nothing in section 8-209.[2](b) 2 of the Correc ⁴⁴⁴ tional Services Article prevents [the Commission] from revoking [Miller’s] certification after it was reinstated according to the ALJ’s order.” Miller filed a petition for judicial review in the Circuit Court for Baltimore City.

Following an unfavorable decision in the circuit court, Miller has appealed to this Court. STRUCTURE OF THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES There are two paths through which a correctional officer may lose his or her position. To understand Miller’s various firings, certifications, reinstatements, and recertifications, it is necessary to understand the structure of the Department of Public Safety and Correctional Services (“the Department”) and those two paths. At the top of the organizational chart for the Department is the Secretary of Public Safety and Correctional Services.

CS § 2-102(a)(2). There are several units below the Secretary, each with its own distinct duties. CS § 2-201. Relevant to this appeal are the two units that participate in the certification, supervision, and termination of correctional officers.

Those units are (1) the Correctional Training Commission (referred to above as “the Commission”), CS §§ 2-201(7), 8-203; and (2) the Operations unit. While the Commission comprises the entirety of its unit, the Operations unit further divides. At the top of the Operations unit is the Commissioner of Correction. CS § 3-202.

Below the Commissioner of Correction is the Warden of each facility. CS § 3-211. One of the facilities included in the Operations unit is MRDCC. The powers of a Warden are limited to the specific facility that the Warden supervises.

CS § 3-211 (stating that each Warden “is in direct charge of the correctional facility to which the warden ... is appointed” and that the warden shall “supervise the government, discipline, and policy of the correctional facility.”). If a correctional officer is ⁴⁴⁵ accused of misconduct, the Warden, as the appointing authority for that facility, is tasked with investigating the alleged misconduct, meeting with the employee, and determining the appropriate disciplinary action. SP § ll-106(a). The Warden may take a number of disciplinary actions including a written reprimand, suspension without pay, up to termination of employment.

SP § 11-104. A correctional officer’s certification, which is issued by the Commission, is no longer valid upon termination by a Warden. COMAR 12.10.01.06B(2)(a). A correctional officer may appeal his or her termination to the Secretary, who then may refer the appeal to the OAH.

SP §§ 11-109; 11-110. On appeal, an ALJ may uphold, rescind, or modify the termination. SP § 11 — 110(d)(1). The ALJ may also order recertification with or without examination.

CS § 8-209.2(b). When a correctional officer is hired, he or she must “meet[ ] minimum qualifications established by the Commission” and apply for certification. CS §§ 8-209; 8-209.1. Correctional officer candidates must obtain certification from the Commission within one year of appointment.

CS § 8-209 (allowing probationary appointment of correctional officers for no more than one year “for the purpose of enabling the individual seeking permanent appointment to take a training course prescribed by the Commission.”). The Commission also has the power to revoke a certification. CS § 8-209.2. If an ALJ rescinds or modifies a disciplinary action, at the ALJ’s discretion, the ALJ may order the Commission to reinstate the correctional officer’s certification -with no further examination or condition.

CS § 8-209.2(b). Thus, there are two paths, or chains of command, through which a correctional officer may be terminated. The correctional officer may be directly terminated through a disciplinary action by the Warden of the institution at which he or she is employed. SP §§ 11-104; 11-106.

Or, the Commission may revoke the correctional officer’s certification, CS § 8-209.2(a), the result of which is that the officer may no longer perform his or her job functions and must be terminated. COMAR 12.10.01.06D(2) (stating that “An agency head may ⁴⁴⁶ not permit a mandated employee to perform the duties of a mandated position if the mandated employee’s certification has lapsed.”). With that framework in mind, we turn to the merits of this appeal. ANALYSIS Miller presents a two-part question for our review: did the ALJ err in finding that the Department complied with the Second ALJ Order to reinstate Miller’s certification “with no further examination or condition?” This question requires a two-step analysis: first, did the Department comply with the Second ALJ Order to reinstate Miller’s certification “with no further examination or condition”; second, did the Commission violate the Second ALJ Order by subsequently revoking Miller’s certification.

Miller argues that the Department circumvented the Second ALJ Order by issuing her certification and then imposing the examination and conditions, because, according to her theory, the Commission had no authority to subsequently revoke her certification. By contrast, the Department argues that it complied with the Second ALJ Order because Miller was issued her certification. The Commission’s subsequent revocation of Miller’s certification, argues the Department, was proper because the Commission retained its authority to investigate and had not yet considered the “derogatory information” about Miller. Thus, the Department concludes, all proper procedures were followed.

Our review of administrative decisions looks through the circuit court’s decision and evaluates the decision of the agency, or, as in this case, the ALJ’s decision. People’s Counsel for Baltimore Cnty. v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007). The reviewing court “may not substitute its judgment for the administrative agency’s in matters where purely discretionary decisions are involved, particularly when the matter in dispute involves areas within that agency’s particular realm of expertise, so long as the agency’s determination is based on “substantial evidence.” Id. (internal cita ⁴⁴⁷ tions omitted). “A conclusion ... satisfies the substantial evidence test if a reasonable mind might accept as adequate the evidence supporting it.” Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore Cnty., 407 Md. 53, 78 , 962 A.2d 404 (2008).

When there is a conclusion of law, however, we must “determine if the administrative decision is premised upon an erroneous conclusion of law.” Maryland Aviation Admin. v. Noland, 386 Md. 556 , 573 n. 3, 873 A.2d 1145 (2005) (internal