Prince George's County Health Department v. Briscoe

ROSALYN B. BELL, Justice. The Prince George’s County Health Department (PG 1 Health Department) and the Department of Health and Mental Hygiene for the State of Maryland (HMH) appeal from a decision of the Circuit Court for Montgomery County 2 in favor of C. Elaine Briscoe and 18 other social workers employed at two HMH mental health facilities. These social workers asserted that, since they did the same work as psychiatric nurses employed at these facilities, they were entitled to be paid at the same grade level. The issues we shall consider in this appeal are: —Did the trial judge err by reversing the decision of the State Department of Personnel and remanding for reclassification? —Did the trial judge err in permitting some of the social workers to intervene at the circuit court level? —Did the trial judge err by awarding attorney’s fees to the social workers?

We reverse and explain, after first setting forth the pertinent facts. On July 30, 1985, C. Elaine Briscoe and 11 other social workers (PG social workers) filed the grievance that is the subject of this appeal. They alleged that the PG Health ³²⁹ Department had violated Art. 64A, § 27(a), which provides, inter alia, that “all positions in the service involving comparable duties, experience, responsibilities and authority shall be paid comparable salaries in accordance with the relative value of the services to be performed.” The PG social workers sought to have their salaries upgraded two levels to make them equivalent to the salaries received by the psychiatric nurses. 3 They also sought retroactive pay. At the grievance hearing, the PG social workers presented some evidence showing that the clinical social workers and psychiatric nurses both performed primarily psychotherapy, and that cases were assigned based only on scheduling considerations; that is, there were no particular groups of cases assigned only to social workers or to nurses, although the nurses occasionally gave injections of prolixin, a psychotropic drug.

A witness testifying on behalf of the PG social workers stated that “she was told” 4 ³³⁰ when she was interviewed that she would be hired to relieve the nurses with more education so that they could do more psychotherapy. The social workers’ representative made it clear that the grievance was limited to the situation at the PG Health Department and was not predicated on the relationship between psychiatric nurses and social workers throughout the State. The State presented evidence that its Department of Personnel’s Division of Salary Administration and Position Classification (DSAPC) had conducted a study at the request of the House Appropriations Committee in its 1986 session to determine whether the creation of one class called “Clinical Mental Health Therapist” for psychotherapists, which would include both social workers and psychiatric nurses, was appropriate. DSAPC conducted interviews with HMH program administrators to understand the multidisciplinary team approach used in HMH facilities and the role of each professional within the team.

These teams consisted of employees classified as social workers, psychologists, and psychiatric nurses. DSAPC determined in its study that the professional personnel were not used interchangeably in all HMH facilities. In the HMH hospital setting, the professionals functioned within the boundaries of their discipline; that is, psychiatric nurses performed direct nursing patient care, psychologists did testing and evaluation, and social workers coordinated housing, knowledge of community resources and social services, and family counseling. DSAPC determined, however, that at the PG Health Department and at the Regional Institute for Children and Adolescents (RICA) 5 the professionals’ functions overlapped: “In the local mental health clinic and RICA there appears to have evolved a function of ‘case manager.’ Persons ³³¹ functioning in this manner are providing services required by the patient regardless of the area of training and experience of the professional: for example, the nature of the out patient care provided in the mental health clinic setting is such that a nurse does not provide traditional nursing/patient care.

Because psychological testing and assessment are generally provided by the school or hospital from which the patient was referred, the psychologist is not frequently called upon to provide those services. In fact, the nurse and psychologist may be as involved in the traditionally social worker areas of coordinating community services (housing, employment, etc.) and evaluating social and family history as the social worker. To the extent, then, that there is a commonality of function of the professionals in the mode of operation in the outpatient clinic and Regional Institute for Children and Adolescents, it is reflective of psychologists and nurses performing duties related to social services rather than reflection of social workers performing duties of nurses or psychologists, or reflective of functions (such as psychotherapy) which have been common to all these professionals.” DSAPC concluded that, under these circumstances, “we do not recommend creating a single classification spanning all three professions.” DSAPC did recommend, however, that a new clinical social worker classification be created in order to attract social workers with qualifications relevant for clinical work. In addition to the study, the State offered evidence that the grievance was moot because the Legislature had adjusted the social workers’ salaries twice since their grievance was filed, leaving only a one-grade disparity- On July 15, 1987, the hearing examiner issued her opinion denying relief and dismissing the social workers’ grievance.

In her opinion, the hearing examiner observed that the DSAPC study indicated that social workers were not being over-utilized or under-compensated, but rather that the psychologists and psychiatric nurses were being under-utilized ³³² and over-compensated. That is, there was no evidence to show that the PG social workers were under-paid — at most, it appeared that the psychiatric nurses were being over-paid for the duties they actually performed. The hearing examiner concluded that an additional salary increase was unsupported in light of the fact that the PG social workers were not acting as psychiatric nurses. Therefore, the hearing examiner concluded that the PG social workers had failed to satisfy their burden of proof as per COMAR 06.01.03.05. 6 They failed to show by a preponderance of the evidence that the State violated a law or regulation or had acted arbitrarily in denying a two-grade salary adjustment for the Social Worker series to establish parity with the Community Health Nurse series.

The hearing examiner also concluded that Art. 64A, § 27, which relates specifically to the annual salary review process, indicates that pay plan amendments must address specific classes, rather than individual positions. The PG social workers noted an appeal to the circuit court on August 13, 1987. In their subsequently filed petition, they asked the trial court to reverse the Department of Personnel’s (DOP) decision and to increase their salaries to make them equal to the salaries of psychiatric nurses performing “similar” duties. They also requested retroactive pay.

In addition, for the first time, they requested reclassification of their positions to make them equal to psychiatric nurses performing similar duties. The trial court permitted social workers employed at RICA to intervene in the appeal. Two hearings were conducted in regard to the social workers’ appeal. At the close of the first hearing, the trial judge stated: ³³³ “THE COURT: Well, I can tell you, Madam State, that I am impressed with the arguments of appellant that are essentially in a broad scope due process kind of argument and equal protection like.

I feel very strongly here that there is a strong reason, legal reasons, for bringing these people, if they are going to continue to be working in the same facility, on par, level with each other. “Now, I am going to give you two choices. I am going to rule in favor of the appellant if I need to. I recognize that the State might have a vested interest in trying to do what they can to carve out an exception here so that they don’t open those flood gates that I have talked about before. “I will give you an opportunity to back away, knowing the way that I am intending to rule and see whether or not you can, in effect, cut a deal with [social workers’ counsel] and these particular [social workers] so that you can perhaps exercise some damage control. “On the other hand, if you wish, and I will let you have time to caucus with your co-counsel on it, I will rule, and I have told you the way I am going to rule, and then you will have a choice. You can take it down to Annapolis and see what the Appellate Courts have to say about it, or you can live with it.” It was decided that the parties would continue discussions.

The parties were unable to reach an agreement, and on July 15, 1988, after a second hearing, the trial judge reversed the DOP’s decision, remanding the case with instructions that DOP reclassify all the social workers, including the RICA intervenors. The trial judge, in his order, directed DOP “to revise an existing classification (such as that of Social Worker IV or Community Health Nurse IV, with appropriate change of title) or create a new classification to accommodate such reclassification.” It was further ordered that DOP should consider in good faith awarding back pay retroactive to July 30, 1984 (a date one year prior to the filing of the grievance). The trial judge also directed the State to pay reasonable attorney’s fees and expenses ³³⁴ and costs to the social workers. The trial judge did not issue an opinion, or state the precise ground for his decision. —Standard of Review— The standard of review of the DOP decision is set forth in § 10-215(g)(3) of the Maryland Administrative Procedure Act, which provides that a reviewing 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: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the agency; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.” Md. State Gov.Code Ann. (1984).

A reviewing court’s role under this statute of an agency decision goes very little beyond its inherent power of review to prevent illegal, unreasonable, arbitrary or capricious administrative action. Harford Memorial Hosp. v. Health Servs. Cost Review Comm’n, 44 Md.App. 489, 506 , 410 A.2d 22 (1980). In State Administration Board of Election Laws v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988), the Court described two different standards of review.

The first standard applies to the agency’s finding of facts, as well as the inferences to be drawn from these facts. In these situations, the “substantial evidence test” is applied; that is, if the agency decision is supported by substantial evidence, it will not be overturned. In applying the substantial evidence test, a reviewing court must not substitute its own judgment for that of the agency, as the agency is presumed to have some expertise — “the test is a deferential one, requiring ‘restrained and disciplined judicial judgment so as not to interfere with the agency’s factual conclu ³³⁵ sions.” Billhimer, 314 Md. at 58-59 , 548 A.2d 819 , quoting Supervisor of Assessments of Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 625 , 547 A.2d 190 (1988). On the other hand, if the agency’s decision “is predicated on an error of law, no deference is appropriate and the reviewing court may substitute its judgment for that of the agency.” Billhimer, 314 Md. at 59 , 548 A.2d 819 .

These relatively simple standards are somewhat problematical when one tries to apply them to the instant case because the trial judge did not explicitly indicate the precise grounds on which he was reversing the DOP decision. To have reversed the DOP’s decision based on its factual conclusions or inferences would have been unreasonable because the facts in the instant case were essentially uncontroverted. Indeed, the State stipulated that the PG social workers and the PG psychiatric nurses who testified at the grievance hearing perform substantially the same duties. Thus, we have no difficulty in holding that the agency’s factual findings were adequately 7 supported by the evidence presented.

The record indicates that the trial judge asked many questions and made statements during both hearings that indicated he was concerned with the underlying fairness of the situation; he referred at one point, in the passage we set forth previously, to due process and equal protection. It therefore seems fair to assume that he was reversing the DOP’s decision as unconstitutional, as per § 10-215(g)(3)(i). We see, however, no colorable violation of the social workers’ (appellees) constitutional right to due process or equal protection. We fail to see how procedural due process is even remotely an issue, as there are no allegations ³³⁶ that any State action was taken without an opportunity for the appellees to present their grievance and be heard.

Assuming the trial judge was referring to substantive due process, we also fail to see a violation. The due process clause of the 14th amendment has substantive as well as procedural content. See, generally, Moore v. East Cleveland, 431 U.S. 494, 501-02 , 97 S.Ct. 1932, 1936-37 , 52 L.Ed.2d 531 (1977). Substantive due process means that state action which deprives a person of life, liberty or property must have, at the very least, a rational basis.

The essence of substantive due process is protection from arbitrary and unreasonable action. Babineaux v. Judiciary Commission, 341 So.2d 396, 400 (La.1976). Put another way, the due process clause has been construed to proscribe matters of substance, as well as inadequate procedures, and to protect from State invasion all fundamental rights. Whitney v. California, 274 U.S. 357, 373 , 47 S.Ct. 641, 647 , 71 L.Ed. 1095 (1927) (Brandéis, J., concurring).

But fundamental rights are limited to those Bill of Rights provisions that the Supreme Court has selectively incorporated. 8 Absent an infringement of a fundamental right or use of a suspect classification (such as race), the rational basis test is the proper standard of review for both substantive due process and equal protection challenges. Chesapeake Bay Village, Inc. v. Costle, 502 F.Supp. 213, 226 (D.C.Md.1980). Not all minor variations in the application of state laws to different groups violate the 14th Amendment’s equal protection command. Unity Party v. Wallace, 707 F.2d 59, 63 (2d Cir.1983).

A standard equal protection analysis encompasses three phases. First, it must be determined whether persons similarly situated are in fact being treated differently. If ³³⁷ this is the case, then it must be ascertained whether the difference in treatment operates to the disadvantage of a suspect class or impinges upon a fundamental right, in which case strict judicial scrutiny must be applied. If it can find no such detriment, then the court must ascertain whether the difference in treatment furthers some legitimate state purpose.

See, e.g., San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 17 , 93 S.Ct. 1278, 1288 , 36 L.Ed.2d 16 (1973). In the instant case, we are not convinced that similarly situated persons are being treated differently. The appellees and the psychiatric nurses may be seen as similarly situated only by virtue of the fact that the appellees and nurses perform many similar duties. They do not, however, have identical qualifications.

The appellees simply cannot perform some of the functions that are performed by nurses. At the grievance hearing, one of the nurses who testified on behalf of the appellees stated that she was occasionally called upon to give shots and administer medication, a task the appellees cannot perform by virtue of licensing requirements and lack of training. The fact that the nurse was not often called upon to do this is irrelevant. Even if a nurse at one of these facilities was never called upon to administer medication, the fact remains that he or she could do so, if necessary, in an emergency or if the facilities change their present structure or treatment policies.

The fact that the State does not choose to take advantage of the nurses’ special capabilities, using them mostly to perform psychotherapy, does not erase the basic difference in qualification and background between the two groups. We fail to find these two groups similarly situated for equal protection purposes. Even if we were to consider the two groups similarly situated, the State would have a legitimate interest in paying the nurses on a different scale as their qualifications do differ. Moreover, the State might wish to attract more nurses to State positions.

The State would also have a legitimate interest in retaining the flexibility to operate its outpatient-type facilities (PG Health ³³⁸ Department and RICA) in a different manner from its psychiatric hospitals. To impose any other standard in the instant case would have the effect of mandating what was rejected in the legislative study in regard to a proposed single position for clinical mental health therapists. We hold that the DGP’s decision did not violate any constitutional right of the appellees. —Pay Plan— The only other ground on which the trial judge could have reversed the DOP’s decision would be in regard to that agency’s interpretation of Art. 64A, § 27(a), 9 which in pertinent part provides: “(a) Establishing and recommending pay plan. — After consultation with appointing authorities, the Secretary of Personnel shall prepare and recommend to the Governor a pay plan for all classes of positions in both the classified and unclassified service to the end that all positions in the service involving comparable duties, experience, responsibilities and authority shall be paid comparable salaries in accordance with the relative value of the services to be performed. In establishing rates of pay, the Secretary shall give consideration to experience, the prevailing rates of pay for the services performed, and for comparable services in public and private employment, living costs, maintenance or other benefits received by employees, and the State’s financial condition and policies.

The pay plan shall take effect and shall have the force and effect of law after approval by the Governor, at the time the next State budget takes effect, if funds for the pay plan are provided therein. Amend- ³³⁹ merits to the pay plan may be made from time to time for specific classes of positions when recommended by the Secretary and approved by the Governor and so presented to the General Assembly on or before December 20 of each year.” (Emphasis added.) Md. State Gov.Code Ann. (1988). The DOP hearing examiner concluded that this statute addresses specific classes, i.e., the statewide Social Worker series and the statewide Community Health Nurse series, rather than particular positions within the series. We agree.

Article 64A, § 27 establishes the procedure for establishing or changing the rate of pay. It does not, however, apply to pay changes in regard to individual positions — it applies to “classes of positions.” The Merit System, of which this section is a part, was intended to provide standards of employment and advancement through testing in order to prevent problems such as nepotism and related abuses. Secretary, Maryland Dept. of Personnel v. Bender, 44 Md.App. 714, 715 , 411 A.2d 107 (1980), aff'd, 290 Md. 345 , 430 A.2d 66 (1981). By its very terms, it is a system of statewide classification.

Article 64A, § 1(4) of the Merit System defines “class” as: “a grouping of one or more positions sufficiently similar with respect to duties and responsibilities that the same descriptive title may be used to designate each position in that grouping and that the same general qualifications are needed for performance of the duties, that the same tests of fitness shall be used to select employees, and that the same rates of pay shall be applied to all positions in that grouping.” (Emphasis added.) Section 27(a), the provision upon which the social workers rely, requires that changes to the pay plan must be recommended by the Secretary of Personnel, approved by the Governor, and ultimately presented to the General Assembly. The hearing examiner did not have the power to effect a modification in regard to the pay scale or classification system of the appellees. ³⁴⁰ Evidence presented at the hearing showed that the secretary had acted, even before this grievance was filed, making recommendations that resulted in class-wide salary increases for the social workers’ fiscal years 1987 and 1988. Moreover, the testimony presented at the grievance hearing did not establish, nor was it meant to establish, an entitlement for the entire social worker series. The testimony was addressed only to the situation in the PG Health Department.

Additionally, the DSAPC study conducted at the request of the Legislature made clear that, while a commonality of functions had been found at the PG Health Department and at RICA,