Smack v. Department of Health & Mental Hygiene

³⁰¹ BELL, C.J. Presented in this case is the issue whether termination of a probationary employee, for whom cause for termination may exist and of which the probationary employee has been apprised as the basis for the termination, may proceed without complying with Maryland Code (1987, 1997 Replacement Volume) § 11-106 of the State Personnel and Pensions Article. 1 Stated differently, the issue is whether a termination “related to employee misconduct,” occurring during an employee’s probationary period, a “disciplinary action” within the meaning of § 11-106, is subject to the requirements of that provision. The trial court determined that the probationary employee could be terminated without regard to § 11-106. The Court of Special Appeals agreed and, therefore, affirmed. Smack v. Department of Health and Mental Hygiene, 134 Md.App. 412 , 759 A.2d 1209 (2000).

We issued the writ of certiorari to review this important question. 362 Md. 359 , 765 A.2d 142 (2001). The facts out of which the present controversy arose are not in dispute. At the time of her termination, the petitioner, ³⁰² Stephanie Smack, was a probationary employee of the Somerset County Health Department. See § 7-402 of the State Pensions and Personnel Article. 2 Having been employed on October 8, 1997 as a Social Worker I and assigned to the Addiction Unit, her probationary period would not have expired until April 8,1998. § 7-402(a).

The petitioner’s duties required her to conduct weekly group therapy sessions in Crisfield, Maryland. The group therapy session scheduled for January 29, 1998 was to begin at 2:00 p.m. On that day, there was flooding in the area, the result of a “nor’easter,” as the major storm causing it was described. The petitioner’s supervisor and three of the group members nevertheless were able to get to the group session and therefore, were present.

The petitioner did not attend the group therapy session. According to the petitioner, she left her office at approximately 1:45 p.m., the location of the group therapy session being approximately a ten-minute drive. When the petitioner approached the location of the session, she was told by an unnamed person that the street leading to the group therapy location was under water and that members of the group had not been able to make it because of the flooding. The ³⁰³ petitioner also observed two vehicles having difficulty traversing the flooded street, and a radio broadcast reported rising tides.

As a result, she determined that her car could not make it through the flooded streets. Consequently, she returned to her office, from where she called, without success, the facility where the group therapy session was to be held. The petitioner stated that she did not call before because she had neither money for a telephone call nor a cell phone. Following discussions with her supervisor and the head of the Agency over the next several days, the petitioner was terminated on February 9, 1998.

She was told that it was for failing to attend the group session and failing to report her absence to her supervisor. The petitioner appealed the termination pursuant to State Personnel & Pensions Article, § 11-110. 3 At the hearing before the Administrative Law Judge, she complained that the respondent had failed to follow the procedure for “taking ... disciplinary action related to employee misconduct ...” prescribed by § 11-106. The respondent conceded the point, but it argued that the section was inapplicable to the termination of a probationary employee. The respondent submitted that such terminations are not firings for “misconduct.” The Administrative Law Judge agreed and, subsequently affirmed the decision to terminate the petitioner’s employment.

The petitioner then filed a petition for judicial review in the Circuit Court for Worcester County. That court also affirmed the termination. ³⁰⁴ The petitioner noted an appeal to the Court of Special Appeals. That court likewise affirmed, as we have seen. Smack, supra. 134 Md.App. at 417 , 759 A.2d at 1212 .

It reasoned that resolution of the issue of the petitioner’s termination is controlled by § 11-303, id. at 419, 759 A.2d at 1213 , and not by § 11-106, as the petitioner maintains. 4 Resolution of the issue this case presents is a matter of statutory construction, the .canons of which are well settled and have been oft repeated. The predominant goal of statutory construction “is to ascertain and implement, to the extent possible, the legislative intent.” Witte v. Azarian, 369 Md. 518, 525 , 801 A.2d 160, 165 (2002). See Toler v. Motor Vehicle Administration, 373 Md. 214, 220 , 817 A.2d 229, 233 (2003); Dyer v. Otis Warren Real Estate, 371 Md. 576, 580-581 , 810 A.2d 938, 941 (2002) (“The goal with which we approach the interpretation of a statute is to determine the intention of the Legislature in enacting it.”). We begin the interpretive analysis with the words of the statute and, when they are clear and ³⁰⁵ unambiguous, there is no need to search further.

Medex v. McCabe, 372 Md. 28, 38 , 811 A.2d 297, 303 (2002); Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 301 , 783 A.2d 667, 670 (2001); Harris v. State, 353 Md. 596, 606 , 728 A.2d 180, 184 (1999); Degren v. State, 352 Md. 400, 417 , 722 A.2d 887, 895 (1999). “[W]e look first to the words of the statute, on the tacit theory that the Legislature is presumed to have meant what it said and said what it meant.” Witte, 369 Md. at 525 , 801 A.2d at 165 . In that regard, the statute must be given a reasonable interpretation, “not one that is illogical or incompatible with common sense.” Whiting-Turner, 366 Md. at 302 , 783 A.2d at 671 ; State v. Brantner, 360 Md. 314, 322 , 758 A.2d 84, 88-89 (2000). Moreover, statutes are to be interpreted so that no portion is rendered superfluous or nugatory. See Taylor, 365 Md. at 181, 776 A.2d at 654; Blondell v. Baltimore City Police Dep’t, 341 Md. 680, 691 , 672 A.2d 639, 644-45 (1996).

Words may not be added to, or removed from, an unambiguous statute in order to give it a meaning not reflected by the words the Legislature chose to use, Medex, 372 Md. at 38 , 811 A.2d at 303 , “[n]or [may we] engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Taylor v. Nations-Bank, 365 Md. 166, 181 , 776 A.2d 645, 654 (2001); Mid-Atlantic Power Supply Ass’n v. Public Serv. Comm’n, 361 Md. 196, 204 , 760 A.2d 1087, 1091 (2000). When the statute is ambiguous — the words do not clearly disclose the legislative intention or, while clear and unambiguous viewed in isolation, the terms are ambiguous when it is part of a larger statutory scheme, Mayor & City Council of Baltimore v. Chase, 360 Md. 121, 130 , 756 A.2d 987, 992 (2000), we look for legislative intent in other indicia, including the history of the legislation or other sources extraneous to the statute itself, see Medex, 372 Md. at 38 , 811 A.2d at 303 ; Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992), as well “as the structure of the statute, how it relates to other laws ... its general purpose, and the ‘relative rationality and legal effect of various competing constructions.’ ” ³⁰⁶ Toler, 373 Md. at 220 , 817 A.2d at 233 , quoting Witte , 369 at 525-26, 801 A.2d at 165 . We pointed out in Witte that “[o]ne aspect of examining these indicia is the presumption, which itself is a rule of construction, that the Legislature ‘intends its enactments to operate together as a consistent and harmonious body of law,’ State v. Ghajari, 346 Md. 101, 115 , 695 A.2d 143, 149 (1997) (quoting State v. Harris, 327 Md. 32, 39 , 607 A.2d 552, 555 (1992)), such that no part of the statute is rendered meaningless or nugatory.

Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426, 428 (2002); Montgomery County v. Buckman, 333 Md. 516, 523-24 , 636 A.2d 448, 452 (1994).” Id. In that regard, where the statute to be construed is a part of an entire statutory scheme, construction of the provisions of the scheme must be done in the context of that scheme. Whiting-Turner, 366 Md. at 302-303 , 783 A.2d at 671 ; Blondell, 341 Md. at 691 , 672 A.2d at 645 . When, in that context, two statutes conflict and one is general and the other specific, “the statutes may be harmonized by viewing the more specific statute as an exception to the more general one.” Government Employees Ins.

Co. v. Insurance Comm’r, 332 Md. 124, 133 , 630 A.2d 713, 718 (1993). See State v. Kennedy, 320 Md. 749, 755 , 580 A.2d 193, 196 (1990); Kee v. State Hwy. Admin., 313 Md. 445, 458 , 545 A.2d 1312, 1319 (1988), Prince George’s County v. Fitzhugh, 308 Md. 384 , 390 n. 4, 519 A.2d 1285 , 1288 n. 4 (1987); Farmers & Merchants Nat’l Bank v. Schlossberg, 306 Md. 48, 63 , 507 A.2d 172, 180 (1986); Lumbermen’s Mutual Casualty v. Ins. Comm’r, 302 Md. 248, 268-69 , 487 A.2d 271, 281-82 (1985); DeJarnette v. Federal Kemper Ins.

Co., 299 Md. 708, 717-18 , 475 A.2d 454, 459 (1984); A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 40-41 , 464 A.2d 1068, 1076 (1983); Employ. Sec. Adm. v. Browning-Ferris, 292 Md. 515, 526 , 438 A.2d 1356, 1363 (1982). The provisions of Maryland law governing probationary employees are a part of a comprehensive statutory scheme.

See WCI v. Geiger, 371 Md. 125 , 807 A.2d 32 (2002). That scheme is embodied in the State Personnel Management System Reform Act of 1996, see 1996 Md. Laws, ch. 347, the ³⁰⁷ product of the deliberations of the Governor’s Task Force to Reform the State Personnel Management System, which, by Executive Order No. 01.01.1995.15, dated June 9, 1995, was established to address the need for “a personnel management system that is more flexible, decentralizes personnel management functions, simplifies and streamlines personnel procedures and provides for the consistent application of personnel policies throughout a diverse State government.” Its charge, more specifically, was to conduct a “comprehensive review of the Maryland State Personnel Management System contained in Division I of the State Personnel and Pensions Article to determine necessary and appropriate revisions to that law.” WCI, 371 Md. at 145-146, 807 A.2d at 45 . The requisites of, and for, employment in the State Personnel Management System are treated in Title 7. That Title “applies to all employees in the State Personnel Management System,” § 7-101(a), except temporary employees. § 7-101(b).

Probationary employees are the subject of Subtitle 4. Its provisions make clear that employees in the skilled and professional service, § 7-401 (a), must serve a probationary period, upon initial appointment, following a competitive promotion and, under some circumstances, see § 7-402(b), following a reinstatement, § 7-402(a), but that employees in the management service or who are special appointments, whatever the service to which appointed, do not. § 7-401 (b). The probationary period, which may be extended, see § 7-403, 5 is ³⁰⁸ six months, § 7-402(a), and is concluded when the employee “demonstrate[s] proficiency in the assigned duties and responsibilities of the position to which the employee is appointed.” § 7-402(c). Responsibility for orientation and evaluation, including holding conferences with the employees, is placed on the appointing authority and the supervisor, § 7-404, with, given the goal of the probationary period — to allow an opportunity for gaining proficiency in the position — , the emphasis being on timely assessment of the employee’s work and progress and providing the employee with timely feedback.

Section 7-404 provides: “(a) Duties of appointing authority and supervisor generally. — Each appointing authority and, where applicable, supervisor has the responsibility of properly explaining the duties and responsibilities of an employee’s position to the employee, providing the employee with a written position description and otherwise orienting the employee to the operations of the employee’s unit. “(b) Conferences with employee. — Periodically during the probationary period, an appointing authority or an employee’s supervisor, as appropriate, shall confer with the employee about the employee’s performance and improvements in that performance that are necessary to satisfactorily complete probation. “(c) Evaluations.— “(1) An appointing authority shall ensure that at the end of an employee’s first 90 days of probation the employee receives a written evaluation of the employee’s performance and any recommendations for improvement. “(2) If the appointing authority extends an employee’s probationary period, the appointing authority shall ensure that the employee receives additional written evaluations: ³⁰⁹ “(i) at the end of the employee’s initial probationary period; and “(ii) at the mid-point of the extension period.” The question of how probationary employees are to be terminated or disciplined is the subject of § 7-405, captioned “Disciplinary actions.” It instructs: “An appointing authority may take disciplinary action against or terminate the employment of a probationary employee in accordance with Title 11 of this article.” Title 11 covers “Disciplinary Actions, Layoffs, and Employment Terminations in State Personnel Management System.” Subtitle 1 applies to “Disciplinary actions” and, like Subtitle 4 of Title 7, extends to all employees in the executive branch, except temporary employees. § 11-102. Thus, the provisions in this Subtitle, including § 11-106, would appear to be applicable to probationary employees. Subtitle 3 narrows the focus, governing “Employment separations and terminations.” Sections 11-303 and 11-304 address specifically probationary employees, their termination and demotion and removal, respectively. Therefore, there are at least three provisions in Title 11 that apply to the discipline and termination of probationary employees.

Two of them may apply to the termination of a probationary employee’s employment; one definitely applies and the other only arguably may apply. The first, on which the petitioner relies, is, as we have seen, § 11-106, “Duty of the appointing authority prior to imposing sanctions.” See note 1. That section, as we pointed out in Geiger, 371 Md. at 143 , 807 A.2d at 43 , prescribes the prerequisites that must be met before the appointing authority may impose disciplinary action for employee misconduct. Specifically, we held in that case, see id., the appointing authority has thirty (30) days from when it “acquires knowledge of the misconduct for which the disciplinary action is imposed,” to investigate the alleged misconduct, meet with the accused employee, consider mitigating circumstances, decide on the discipline to be imposed and give the accused employee writ ³¹⁰ ten notice of the disciplinary action and of his or her appeal rights. § ll-106(a).

The employee in Geiger was not a probationary employee and we have not construed § 11-106 in that context. As we have previously pointed out, see note 1, COMAR 17.04.05.04D, the regulation implementing § 11-106, is worded almost identically, adding only that which almost necessarily is implicit, that the appointing authority shall “[n]otify the employee of the misconduct and provide an explanation of the employer’s evidence.” Another regulation, COMAR 17.04.03.17, deals with probation and presumably was promulgated to- implement the provisions that comprise Subtitle 4 of Title 7 of the State Personnel and Pensions Article. As pertinent to the issue sub judice, it provides: “F. Discipline of Probationary Employees. “(1) Initial appointment. “(c) The provisions of State Personnel and Pensions Article, § 11-106, Annotated Code of Maryland, control the discipline of a probationary employee for misconduct.” The second provision, § 11-303, clearly applies to a probationary employee. Indeed, located in Subtitle 3, Employment Separations and Terminations, of Title 11, it is captioned, “Termination of probationary employees.” Section 11-303 provides: “(a) Authorized. — An appointing authority may terminate the employment of a probationary employee. “(b) Notice. — Before terminating an employee who is on probation, the appointing authority shall give the employee a notice of termination at least 10 days before the effective date of the termination. “(c) Suspension during interim. — An appointing authority may suspend a