STATE ADMINISTRATIVE BOARD OF ELECTION LAWS v. Billhimer

GILBERT, Chief Judge. Andrew Jackson, the seventh President of the United States, is quoted as having said: “The duties of all public offices are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance, and I cannot but believe that more is lost by a long continuance in office than is generally gained by their experience.” 1 With that statement President Jackson justified his philosophy of “to the victor belong the spoils.” 2 This appeal tests whether the position of Deputy State Election Administrator is part of the “spoils” of election. Phrased less bluntly: Is the office of the Deputy State Election Administrator a classified or non-classified position? The Facts Edwin Billhimer was employed by the State Administrative Board of Election Laws (SABEL) on August 11, 1971.

His position at that time was “unclassified.” Approximately five months later, January 15,1972, he took an examination for the position of “Chief Clerk,” a job that would ⁵⁸¹ qualify him for State merit system status. 3 Billhimer received a “qualifying” rating as a result of the examination, but he was not placed on an eligibility list, a point repeatedly stressed by the State in its brief. 4 Six years later, February 8, 1978, Mr. Billhimer was promoted from the position of “Supervisor of Voting Machines” to “Deputy Administrator.” The Deputy Administrator's position was intended to be a new title, rather than a new job. 5 The creation of the title was the result of a survey conducted by the Maryland State Department of Personnel at the request of the Administrator of SABEL. In its draft proposal the survey team recommended the designation of one of the existing positions as “Deputy Administrator,” so as to remedy what the team believed was a serious weakness in the organizational structure of SABEL. The survey team opined that there was a need for someone with the authority to take charge of the routine day-to-day decisions in the administrator’s absence. The draft report specifically stated that because of “the sensitive nature of such a position placement in the unclassified service is also warranted.” When Billhimer was designated as the Deputy Administrator, he was assigned an unclassified position code number. 6 ⁵⁸² On December 10,1982, SABEL, through its then Administrator, mailed Billhimer a letter terminating him as Deputy Administrator of SABEL, effective as of December 31, 1982.

No reason for the termination was stated in the letter. Billhimer was, however, notified of his right to appeal pursuant to Personnel C.O.M.A.R. 06.01.01.60. An appeal under that particular rule is limited to an inquiry into whether illegal or unconstitutional reasons exist for the termination of employment. Billhimer asserted that he was a classified employee and could not be terminated without cause.

He appealed to the Secretary of Personnel. That agency sustained the Administrator’s position. Eventually, after exhausting his administrative appeal, Billhimer sought redress in the Circuit Court for Anne Arundel County. Judge James C. Cawood remanded the matter to the Secretary of Personnel for further proceedings.

At the conclusion of those proceedings, Billhimer again sought judicial review. After a hearing, Judge Cawood reversed the decision of the Department of Personnel. The effect of that decision is to continue Billhimer as a state employee. Aggrieved by Judge Cawood’s decision, the State has appealed.

It initially presented us with two issues, namely: “1. Whether the determination of the Department of Personnel that the former Deputy Administrator for the State Election Board was properly terminated as an unclassified employee is supported by substantial evidence? 2. Whether the court below erred in substituting its judgment for the judgment of the agency?” In its reply brief the State raised an additional issue: “3. Whether appellee should benefit from his delay in challenging his employment status?” The Law The resolution of this case requires an understanding of the State Merit System.

Little would be gained from refer ⁵⁸³ ring to “classified” or “unclassified” employees unless we first define and explain the terms. Therefore, we shall briefly sketch the State Merit System. A “classified service position” is “any office or place of employment in the classified service.” Md.Ann.Code, art. 64A, § 1 (1957). The “classified service” includes “all offices of profit or trust and all places of employment, whether permanent or temporary, in the service of any State officer, department, commission, board, or institution, other than those in the military forces, and other than those enumerated in § 3 oí this article.” Id.

(emphasis added). That section, in pertinent part, provides an exemption from classified service for “[a]ll positions in State offices, boards, departments and institutions which the Secretary [of Personnel] may determine, with the approval of the Governor, require medical, engineering, scientific, educational or expert training and qualifications.” Section 3(13). To qualify for a classified position, a candidate must pass an examination, Md.Ann.Code art. 64A, § 18, be included in a list of persons eligible for appointment, and compete with the others on the list for the purpose of filling any vacancy. Id. at § 22.

A classified employee may be removed only for cause, and the employee has a right to challenge the sufficiency of the cause. Id. at § 33. Unclassified employees, on the other hand, are not subject to the merit system. They need not submit to qualifying examinations, nor need they compete with other listed candidates.

They may, however, be removed “at will” unless the termination is illegal or unconstitutional. C.O.M. A.R. 06.01.01.60A. SABEL is charged specifically with supervising election practices throughout the state. County Council v. Montgomery Ass’n, 274 Md. 52 , 333 A.2d 596 (1975).

It was ⁵⁸⁴ created by 1969 Md.Laws, Ch. 555. That chapter added § 1A-1 to Md.Ann.Code art. 33, the State Election Code. One of the avowed purposes of § 1A-1 was to create the office of State Administrator of Election Laws and to spell out his “powers, ... duties, ... tenure, salary, and office staff.” Notwithstanding the avowed purposes, there is no reference in the body of the statute itself to the Administrator’s “office staff.” Indeed, the only reference whatsoever to “office” is found in Md.Ann.Code art. 33, § 1A-I(d) which provides: “The office [of the Administrator] shall be located in Annapolis and shall consist of employees at salaries provided in the annual State budget from time to time.” The statute is silent with respect to exemption of the employees from the classified service. In 1971 the Legislature amended both the Merit System Law and the Election Code.

The purpose of the amendments was to place all continuously employed permanent employees of the boards of supervisors of elections in the various subdivisions of the State in the State’s classified service and, therefore, under the jurisdiction of the Secretary of Personnel. See Md.Ann. Code art. 64A, § 9G and art. 33, § 2-6. The 1971 amendment did not explicitly place SABEL employees under the classified service. It did, however, embrace within the classified system all employees of the local political subdivisions’ boards of supervisors of elections, except those that specifically opted to remain in a local merit system.

In any event, the Legislature did not expressly exempt the SABEL staff from the classified service or from the jurisdiction of the Department of Personnel. The State argues that the circuit court ran afoul of the rule that a review court may not substitute its judgment for that of the Department of Personnel, if the agency’s decision was supported by substantial evidence. A review of the record before us reveals that Judge Cawood reversed the agency as a “matter of law” and not on the basis of the ⁵⁸⁵ agency’s factual findings. The judge held that the agency misconstrued and misapplied the law. “Under, or apart from statutes, a standard of review is whether the administrative agency has acted in accordance with, or contrary to, the law.

The reviewing court may correct an administrative action where the agency has either violated, misconceived, improperly construed, or failed to follow, the law. The court may also interfere where the agency has proceeded on an erroneous theory of law, or has otherwise applied the law incorrectly or committed an error of law.” 73A C.J.S. Public Administrative Law and Procedure § 242 (1983) (footnotes omitted). Judge Cawood found that the conclusion reached by the agency was not supported by evidence demonstrating that the statutory criteria for exemption from classified service had been satisfied. Under the Administrative Procedure Act, Md.State Gov’t Code Ann. § 10-215(g)(3), a circuit court may: “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.” Indubitably, an error of law is a statutorily prescribed basis for reversing a decision of an administrative agency.

Recently this Court reiterated that the proper standard of review of agency action is that the administrative decision will not be disturbed on appeal if substantial evi ⁵⁸⁶ dence supports the factual findings and no error of law exists. Howard County v. Davidsonville Area Civic Ass’n, Inc., 72 Md.App. 19 , 527 A.2d 772 (1987). In contrast to factual findings, no deference is accorded to an agency’s legal conclusions once a reviewing court determines them to be erroneous. United Parcel Service v. Comptroller, 69 Md.App. 458 , 518 A.2d 164 (1986).

See generally 73A C.J.S. Public Administration Law and Procedure § 242 (1983). We must now determine whether the hearing judge was correct in his ruling that the agency misconstrued and misapplied the law. The role of this Court, as stated in Public Serv. Comm’n v. Balto.

Gas & El., 273 Md. 357 , 329 A.2d 691 (1974), is essentially to repeat the task performed by the circuit court. “We do not, therefore, in considering the legality and reasonableness of the ... [agency’s] decision ..., accord prima facie correctness to the decree of the [circuit] court____” Id. In short, we do not directly review the judgment of the circuit court, but “consider whether there was substantial evidence before the ... [agency] on the record as a whole to support its ... [conclusions].” Id. at 362 , 329 A.2d 691 . The crux of this case is statutory construction. “When engaged in ... [that pursuit], it is well settled that not only should this Court begin its investigation with the words of the statute, but we are bound by those words if their import is clear and unambiguous.” United Parcel Service v. Comptroller, 69 Md.App. at 469 , 518 A.2d 164 . “The statutory language itself provides the clearest indication of the legislative intent and is thus the primary source for all statutory construction.” Id., citing Board v. Stephans, 286 Md. 384 , 408 A.2d 1017 (1979). The statutory language in Md.Ann.Code art. 64A is clear and unambiguous.

Under § 1 of that article all employees of the State are deemed “classified” unless they have been specifically exempted from