Montgomery County v. Anastasi

BISHOP, Judge. The appellees filed a complaint with the Montgomery County Merit System Protection Board (“the Board”) in which they challenged the legality of the promotion procedures followed by the Montgomery County Police Department. The Board upheld the procedures and the complainants filed an appeal with the Circuit Court for Montgomery County (Weinstein, J.) which reversed the Board. We now affirm the decision of the circuit court.

Montgomery County raises three questions: I. Did the Board commit an error of law when it upheld the county police chiefs reliance, during the promotion process, on personal recommendations from several senior staff members regarding a minority of the qualified candidates for promotion where no information was solicited or obtained on the remaining qualified candidates and where the candidates were not informed of the use of such personal recommendations?

II

In upholding the unregulated use in the selection process of personnel files and the use of outside persons, ¹²⁸ other than the decision maker, did the Board act arbitrarily in their deviation from a prior ruling in which it held that the unregulated use of outside sources and personnel files in the promotion process violated County Regulations?

III

Was the Board clearly erroneous in upholding the validity of the selection process where the decision maker made use of a file containing outdated information adverse to that candidate but where the decision maker denied reading the outdated materials? Procedural Background The appellees challenged the Montgomery County Police Department’s (“the Department”) promotion procedures by filing a grievance with the county personnel director. Appellees alleged that the Department violated the law when during their promotion process they considered information on some of the candidates which was not provided for in the Department’s announced procedures and in their unannounced deviation from the Department’s long established practice of promoting in strict test score order. The personnel director denied the complaint based upon his determination that the procedures were lawful because “the Chief of Police had the prerogative to select any individual in the highest rating category,” and was not required to promote in numerical test score order.

The Chief Administrative Officer affirmed, and an appeal was noted to the Merit System Protection Board. The Board in its decision titled Re: Appeal of Anastasi, Et. Al.—Case # 87-17 (“Anastasi”) affirmed the Chief Administrative Officer and an appeal was noted to the circuit court. The circuit court reversed the Board’s decision and remanded the case to the Board.

The court held that the promotion selection procedures followed by the Department violated the County Code and County Personnel Regulations, and that the Board acted arbitrarily in upholding the Department’s procedures in contravention of the Board’s previous decision in Re: Appeals of E. Clarke, W. Fryer, J. Logan and J. Quinn, (“Clarke”) in MSPB Case No. 86-12, April 8, 1986. Mont ¹²⁹ gomery County now claims that the circuit court applied the wrong standard of review to the Board’s decision. FACTS In reviewing the decisions of administrative agencies, the Court must accept the agencies findings of fact when such findings are supported by substantial evidence in the record. See, Baltimore Lutheran High School v. Employment Security Administration, 302 Md. 649, 662 , 490 A.2d 701 (1985).

The parties have not challenged the Board’s findings of fact and, accordingly, we accept those findings as the facts on appeal. The appellees in this case are seventeen (17) members of the Department who sought promotions, eight to the rank of Master Police Officer, eight to the rank of Sergeant and one to Lieutenant. Each appellee completed a written examination and was placed on a promotion list for the position sought. The lists classified applicants as either “qualified” or by the more superior rating of “well qualified”, depending on their numerical score.

Each of the appellees scored in the “well qualified” category. The past practice of the Department had been to promote from each list in the order of the candidates’ examination scores; the highest scoring applicant being promoted first. Under a departmental change in policy, however, each of the appellees was passed over and a person of lower score but also on the well qualified list was promoted ahead of him. The Personnel Bulletins, supplied to each candidate, notified the candidates that “an eligible list will be established and each promotional candidate will be placed in alphabetical order in the adjective category of either ‘well qualified’ or ‘qualified’ ... the promotional list will be used to fill vacancies____” This notice was supplemented, for candidates for Master Police Officer, by a letter of January 2, 1986, which provided that “the appointing authority shall be free to choose any individual from the highest category based on that person’s overall rating, character, knowledge, ¹³⁰ skill, ability and fitness for the job as well as possible future advancement”.

The Board found that, in the procedures actually followed, the Police Chief (“the Chief”) solicited and received personal recommendations from several of his ranking subordinates (3 majors and a lieutenant colonel) concerning some of the candidates on the “well qualified” list. The Board adopted the conclusion of the factfinder that, except for the promotion to lieutenant: To the extent the Police Chief discussed promotional selections with his ranking subordinates (three majors and Lt. Col. Brooks) the process was casual, unmethodical and unrecorded.

These subordinates submitted recommendations only for candidates whom they personally observed. Information on each and every promotional candidate was neither sought nor considered. The Board also found that most of the appellees had minimal contact with the four officers with whom the Chief consulted; that the four officers had “no contact whatsoever” with at least two of the Master Police Officer applicants; and that “the immediate supervisors of the [appellees] were not contacted or consulted about [the] promotional capabilities” of the appellees. Finally, the Board found that: [T]he Department of Police has utilized the numerical rank order for promotions below Police Sergeant since at least 1968.

This is the first deviation from that practice at this level and this change was never officially communicated to the rank and file employees. Standard of Review Judicial review of Merit Board decisions must be made in accordance with the judicial review standards as set forth in the Maryland Administrative Procedures Act, which is codified in the State Government Article at § 10-215 (1984), see, Montgomery Code, § 33-15(b) (1984), which requires in part: ¹³¹ (a) Filing authorized.—A party who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision as provided in this section. (g) Decision.—In a proceeding under this section, the court may: (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: (iv) is affected by any other error of law; (v) is supported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. The circuit court reversed the Board because of the court’s findings that the Board’s decision is affected by an “error of law”, § 10-215(g)(3)(iv), and is “arbitrary and capricious”, § 10-215(g)(3)(vi).

We review the court’s findings under each of these standards. DISCUSSION Legality The Montgomery County Charter provides that: “The council shall prescribe by law a merit system for all officers and employees of the county government---The merit system shall provide the means to recruit, select, develop, and maintain an effective, non-partisan, and responsive work force with personnel actions based on demonstrated merit and fitness.” Montgomery County, Md., Charter § 401 (1984). The law enacted pursuant to the mandate of § 401 is Section 33-5 of the Montgomery County Code, 1984: (a) Statement of legislative intent. It is the legislative intent of the county council that this article foster ¹³² 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.

(b) Merit system principles. The merit system established by this chapter encompasses the following principles: (2) 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; (6) 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. Montgomery County Charter, Montgomery County, Md. Code § 33-5 (1984) (Emphasis added). None of the parties deny that the system of promoting based on numerical test score order, which was used prior to the 1985-1986 boards, was in full compliance with the above statutory mandates.

Also, the appellees have not challenged the Department’s right to rely on information other than test scores in the promotional system. Indeed, the Department’s authority to do so cannot be disputed as there is no statutory mandate that the test scores control the decision and, in fact, the personnel regulations adopted pursuant to the Code § 33-7(b), specifically provide that: [W]hen a position is to be filled, the appointing authority shall be provided an eligible list that has been certified by the personnel office. Subject to affirmative action objectives, the appointing authority shall be free to choose any individual from the highest rating category based ¹³³ on that person’s overall rating, character, knowledge, skill, ability and physical fitness for the job as well as possible future advancement. If an individual from a lower rating category is selected, the appointing authority must submit written justification for such action, which must then be approved by the chief administrative officer and made a part of the selection record.

Montgomery County Personnel Regulations, Section 5.6 (Emphasis added). The present dispute concerns whether the County Charter and Code impose legal constraints on the Department’s ability to factor into the selection procedure the additional sources which the Chief utilized in making the promotional selections in the case sub judice and whether those additional constraints, if any, have been violated. The Board itself has previously ruled on this specific issue. In Re: Appeals of E. Clarke, W. Fryer, J. Logan and J. Quinn —Case # 86-12, April 18, 1986, a thorough and well reasoned opinion, the Board addressed the use of “irrelevant personnel records” in the Department’s promotion process and the use of additional persons in the final selection process where there were no guidelines or standards to assure fairness and consistency of review and selection.

The Board summarized, in Anastasi, its holding in Clarke: The use of additional persons in the final selection process is an acceptable practice, provided guidelines or standards are provided to them to assure fairness and consistency of review and selection. There is no evidence of this in this case, which resulted in uncertainty as to how each person decided who to recommend for promotion ____ Based on the total set of facts [in Clarke ], with particular emphasis on the maintenance and review of irrelevant documents, the Board ordered the promotion of the appellants. Due to the Board's thorough and sound reasoning in Clarke, we will accord considerable deference to the conclu ¹³⁴ sions reached in that case. Balto.

Gas & Elec. v. Public Serv. Comm’n, 305 Md. 145, 161 , 501 A.2d 1307 (1986), aff'g, 60 Md.App. 495 , 483 A.2d 796 (1984). The Board declined to follow Clarke as precedent in the case sub judice. It reasoned that Clarke is inapplicable because in Clarke “prejudicial materials” were reviewed and it was that combination of prejudicial materials and the uncontrolled use of additional personnel in the final process which resulted in the Clarke decision.

We do not find this reasoning persuasive and unlike the Board’s decision in Clarke, we do not feel compelled to grant this conclusion any