State Department of Assessments & Taxation v. Reier

DAVIS, J. The State Department of Assessments and Taxation (SDAT) appeals from an Opinion of the Circuit Court for Baltimore County. SDAT assigns error to the decision of the Office of Administrative Hearings (OAH) to rescind SDAT’s termination, and reinstate the employment of David Reier as an assessor for SDAT. It also challenges the court’s decision to award Reier reinstatement of his employee benefits and the OAH decision to award Reier full back pay. SDAT presents three questions for our review, which we rephrase as follows: 1.

Did OAH improperly re-decide previously determined facts, upon remand from this Court, when it answered two questions under the new statutory interpretation of State Personnel and Pensions Article § 11-106? 2. If new fact-finding was required, did OAH abuse its discretion when it refused to accept and review evidence addressing the circumstances surrounding an exhibit, when that very exhibit was now being highlighted by Reier in a new way and was relied upon by OAH as the primary point of reference when re-deciding the sequence of events? ⁵⁶³ 3. Did the circuit court improperly reverse the decision of OAH when it held that the statutory remedy in § 11-110(d)(l)(iii) included all lost employee benefits? We answer the first and second questions in the negative, and the third question in the affirmative.

We shall therefore affirm OAH’s decision, and reverse the decision of the lower court. FACTUAL AND PROCEDURAL BACKGROUND As this appeal represents the second occasion for this Court to review arguments in this case, we liberally quote from the background facts set forth in our review of the first appeal, including footnotes, 1 reproduced from the unreported opinion of Reier v. State Dep’t. of Assessments and Taxation, No. 2456, September Term 2001, slip op. at 2-25 (filed December 19, 2002): On October 7, 1996, SDAT terminated Reier from his position as a property assessor for Carroll County. Reier appealed his termination to the Director of SDAT, who affirmed the termination. Reier then appealed to the Office of Administrative Hearings (“OAH”), and the matter was assigned to Administrative Law Judge (“ALJ”) Gayle Haf-ner.

ALJ Hafner held hearings on April 17 and May 7 of 1997 to determine the legality of Reier’s termination. She filed a decision on June 23, 1997, in which she upheld appellant’s termination. Reier then filed a petition for judicial review in the Circuit Court for Baltimore County. Prior to hearing the matter, the trial judge learned that we would interpret [State Personnel and Pension] section ll-106(b)’s thirty-day time limit in the Geiger case, which was then pending before this Court.

The trial judge postponed the hearing of the matter pending our decision in that case. After we decided the Geiger case, Western Correctional Institution v. Geiger, 130 Md.App. 562 [ 747 A.2d 697 ] (2000), the circuit court heard arguments and determined ⁵⁶⁴ that the administrative record was insufficient to make a proper decision. He remanded the case to the agency for further findings of fact as to “whether the investigation was carried out with reasonable diligence.” This remand was necessary due to the test we enunciated in Geiger . On remand, another ALJ (Spencer) heard additional evidence and concluded that Reier had not met his burden to establish a prima facia [sic] case that SDAT had violated section ll-106(b)’s time requirement.

On December 31, 2000, the circuit court filed a memorandum opinion and order, affirming the original administrative decision, which had upheld Reier’s termination. This appeal followed.

II

EVIDENCE PRESENTED AT THE TWO ALJ HEARINGS David Reier began his employment with SDAT in March of 1990 as an Assessor I. In the next three years, he advanced to the position of Assessor III. He was reassigned from SDAT’s Baltimore City office to the Carroll County office in 1993. Reier worked at SDAT’s Carroll County office from 1993 until his termination in October of 1996. The Carroll County SDAT office is charged, inter alia, with performing physical inspections of each of the county’s approximately 48,000 residential properties.

As a part of this process, the office receives copies of residential building permits involving improvements. Residents are required to bring their building permits to the SDAT office where the clerical staff enters the information into the data system. Office personnel then file the building permits in a file cabinet in a small “permit” room in the office. The permits remain filed until an assessor inspects the property.

Reier’s job duties included performing field inspections and assessing residential properties, reviewing building permits for each property, reviewing and noting sales data concerning properties to be assessed, conducting field interviews with adults residing at the properties, making comparison between his physical review and the pre-existing assessment, noting any changes on the field card kept for ⁵⁶⁵ each property, and completing all associated paperwork. Assessors also are required to be available in the office once a week to answer questions from the public. SDAT management periodically assigns the assessors a list of properties to be inspected. After receiving their assignments, assessors are required to pull their properties’ field cards and check the building permit file to see if any building permits have been submitted for the properties since the date of the last inspection.

If a building permit has been submitted for an assigned property, the assessor is required to attach it to the property field card, and bring both the field card and permit along when an inspection of the property is made. The purpose of this requirement is to aid the inspectors in gaining knowledge of all assessable changes made to the properties since the previous inspection. At the time of inspection of the properties, assessors are required to note on the building permits (1) what progress, if any, has been made towards completion of the improvements, (2) the date on which they performed the inspections, and (3) their assessor numbers. If the assessor finds that the improvement has been completed, they are required to mark the permit as “assessed,” perform the assessment, and return the marked permit to a specific individual in the office.

Tf the assessor finds the improvement has not been completed, he or she must note that fact on the permit and then re-file it in the filing cabinet from which it was obtained. This cabinet is called the un-assessed building permit filing cabinet. In addition, after completing each inspection, the assessor must mark the field card so that it reflects any changes made to the property, the date of the most recent assessment, and the assessor’s number. The assessor then values the properties according to the physical characteristics recorded on the field cards.

At all times here relevant, Larry C. White was the Supervisor of Assessments for Carroll County. The Assistant Supervisor of Assessments for Carroll County was ⁵⁶⁶ William F. Norris, Jr. Mr. Norris was Reier’s direct supervisor. On July 24, 1996, Messrs. White and Norris called a meeting of all the assessors in the Carroll County office.

At that meeting, they distributed a memorandum entitled “Department Guidelines for Job Performance,” which outlined the proper methods for performing field inspections. This memorandum, among other things, reminded the assessors that they should make notes on the building permits at the time they inspect the properties. A few weeks later, in early August of 1996, Mr. Norris found a group of eight to ten building permits stacked on a cabinet in the permit room. There were no notations on these permits.

At the April 1997 hearing before ALJ Hafner, Mr. Norris testified as to this discovery: I found [the permits] in a stack on a corner of the cabinet, and I wondered why they were there. There was no notation on them that they had been assessed or visited or anything. From checking further I found that they were accounts which had been assigned to Mr. Reier, and that’s why we checked those. They should not have been there.

They should have either been back in the file with a notation that work was underway, or they should have been assessed and put in the assessed file. Q. So you found the permits in a pile? A. Um-hum. Stacked.

Q. And when was this? A. I think it was in the first part of August. [2] * * * Q. ... Had you started reviewing [Mr. Reier’s] work at the time that you found that pile? A. No. ⁵⁶⁷ Q. Okay.

What did you do with the permits? A. I went out and checked them in the field to see if they were in fa,ct any degree of completion, not completion, not started or whatever. Q. Why didn’t you just give the pile to Mr. Reier, since they were his accounts? A. I could have done that.

This is a good way to check to see if anybody was there. It’s a quality control check. Q. Well, how do you know if he had been there? A. Because I pidled the card and the card said May of 1996.

So that indicates to me that the — it said on the field card with his number that he was there in May of 1996 or whenever. That indicated to me that he had already been there, but yet there was no indication on these permits that anybody was there. Q. How do you know the permits had been available or pulled prior to his visit? A. They were in the file.

Some of them had been in the office since 1993. It’s the assessor’s job to pull the permits when he gets these cards. Q. But you have no way of knowing that the permits were even available? A. They are in the office in the permit file.

I don’t know what you mean by available. Q. Well, this group of permits were in a pile. They obviously weren’t where they should have been, and you don’t know how they got there. So how do you know that they were ever where they were supposed to be?

A. I’m assuming that they weren’t where they were supposed to be, and if someone was at the property, they would have noticed these changes. Whether you ham a permit or not, when you go to a property and there is something added, you pick it up. You go to a property and you don’t have a permit, and there’s an attached garage there that is not on the card, you just ignore that? That’s not the procedure. ⁵⁶⁸ (Emphasis added.) Mr. Norris further testified that after finding the permits he discussed the matter with Mr. White, who said, “Let’s go out and look at [the properties mentioned in the permits].” According to Mr. Norris, they went to the properties and found that, even though Reier’s records showed that he had visited the properties and even though the improvements to the properties had been made, Reier had failed to note the improvements even though those improvements would have been open and obvious if Reier had walked to the rear of the premises as required.

Mr. White testified at the ALJ hearing conducted in April 1997 as follows: Q. Now, when did you first become aware that there was any kind of a problem with Mr. Reier’s work performance? A. I found [their] permits. Q. You found them? A. Well, Lou [Norris] found them, actually — Mr. Norris found them.

Q. Where did he find them? A. Somewhere over where he was supposed to have his permits. They were in the vicinity of the permits where they were located. Q. And you told [Mr. Norris] to give them back to Mr. Reier.

A. No. I said, well, this will be a good test. We’re checking everybody’s work anyway. Let’s go look and see if he’s — (inaudible)—these things up, and low and behold, he hadn’t. Q. So, at that point, did you speak with Mr. Reier about this?

A. No. Q. And why was that? ⁵⁶⁹ A. I didn’t think it was a concern at that point. Q. You didn’t think it was a concern at that point, deficiencies weren’t worth — weren’t enough for you to have a counseling session with him? A. Not at that time. Neither Mr. White nor Mr. Norris was asked at the April 1997 hearing when they went to the properties — mentioned on the permits — to check to see if Reier had performed his duties properly.

But Jack Ferguson, [3] an Assessor III, testified that in “either late August or early” September 1996, he was asked by Mr. White and Mr. Norris to check “20 or 30” properties that Reier had already visited. Ferguson [sic] testified: Q. Okay. Did you ask them what the reason was, why you’re going out and rechecking? A. No. Yeah.

Became they thought some of them, had been missed or something. Just wanted to make sure stuff wasn’t missed. Q. Is this something you had ever done before? A. No. No. Q. Did you ask the reasons why you were going about rechecking?

A. No. I just assumed I was supposed to, because we had found some discrepancies in some of the work that ivas done. So we just wanted to check all the work and make sure it was right for that, you know, the end of that year. Q. What, if anything, did they say to you about these particular permits that you were given to check? A. Just to go out and look at the properties and see if the additions and the decks and whatever that were on the permits were there. ⁵⁷⁰ Q. How many errors did you find out of this group of 20 or 30?

A. About 20. (Emphasis added.) According to a notation on one of the permits for one of the premises re-inspected by Ferguson [sic], a re-inspection was done by Ferguson [sic] on September 4, 1996, ie., more than thirty days before Reier was fired. The original hearing before ALJ Hafner was continued until May 7, 1997. When the hearing resumed, Mr. White testified that he first realized there was a problem with Reier’s work when he visited the properties — which he said was during the week of September 9, “like the 9th, 10th, and 11th.” In that hearing, he contradicted his earlier testimony and swore that finding the permits on the cabinet did not alert him that there were problems with Reier’s work.

He stressed that management did not immediately check the field cards to see which assessor had been assigned to evaluate the properties mentioned in the report and that Reier did not advise management until September 2, 1996, that he had completed his field work. Mr. White also testified more than three years later, at the hearing before ALJ Spencer, on September 6, 2000, as follows: MR. LYON [4] [ATTORNEY FOR SDAT]: And what triggered the investigation? MR.

WHITE: The missed permits. MR. LYON: And— MR. WHITE: Well, we did a review of the permits that were found, which at the time we found them was — you know, like I said, Mr. Reier didn’t finish his work until September 3rd.

There was a holiday I think in there, too. And I was away that Friday and anyway, I came back and we started his check on his quality control, for lack of a better word. ⁵⁷¹ Once I found out that — I don’t think he was in any of these properties. And then it just, you know, kind of like snowballed. You know, I called downtown and of course-advise me on what to do on something like this.

Mr. White also testified in September 2000 that, after each assessor finishes physically inspecting each group of properties assigned to him or her, the assessor is required to let Management know. Management then performs routine quality control “spot” checks or audits of a sampling of the assessor’s field work. According to Mr. White’s testimony in 2000, the supervisors routinely performed these quality-control checks every September as a means of assuring adequate assessor performance. The audit process usually entails randomly selecting approximately fifteen properties from each assessor’s file and performing an independent field inspection of the selected properties to determine whether an assessor’s inspections have picked up any relevant improvements/changes to the property and whether all proper notations on the field cards and building permits have been made.

In Reier’s case, however, management did not begin with a random selection of the properties Reier had inspected; instead, the audit began with an inspection of the properties mentioned in the misplaced building permits. The audit was completed by September 13, 1996, according to Mr. White’s testimony. That audit revealed that the improvements listed on the building permits had been completed in all cases and all the improvements were visible from the outside of the property. This was important because SDAT expected its assessors to note on the building permits and field cards any visible improvements.

Reier had uniformly failed to do this according to Mr. White. Mr. White additionally testified at the September 2000 hearing that, after completing the initial audit, SDAT’s management undertook a full-scale investigation of Reier’s assessments, which revealed numerous and substantial deficiencies in his performance. SDAT completed its full investigations by the end of September 1996, whereupon Reier ⁵⁷² met with Mr. White on October 3, 1996. At that meeting, Reier was given an opportunity to defend his poor performance.

Reier did not cooperate, refused to even look at the examples of his errors, and responded three times to inquiries by saying that he was just a “bad assessor.” Additionally, he admitted to not getting out of the car and walking the properties he inspected as required by departmental procedures. On October 7, 1996, Reier was given a termination notice that advised him of his termination and the reasons for it: 1. That the employee has been negligent in the performance of his duties. 2. That the employee has been guilty of conduct such as has brought or, if published, would bring the State into disrepute. 3.

That the employee has violated any lawful order or has failed to obey any lawful order given by a superior officer when the violation or failure to obey amounts to insubordination. 4. That the employee has engaged in insolent behavior constituting a serious breach of discipline that undermines management’s authority and lowers employee morale. 5. That the employee is incompetent, inefficient, or indolent in the performance of his duties. 6. That the employee has engaged in willful misconduct, without justification, that has compromised the integrity of real property assessments in Carroll County. 7.

That the employee has displayed indifference towards his job and responsibilities as a State employee.

III

ALJ HAFNER’S FINDINGS OF FACT ALJ Hafner, the first ALJ to consider this case, found, inter alia, the following facts to be true: 9. The Employee knew the standards for field assessments and documentation requirements. ⁵⁷³ * * * 11. In August 1996 Management discovered a stack of building permits which were inappropriately stored on the corner of a filing cabinet. The properties reflected in the permit were assigned to the Employee.

Of the permits reviewed, Management found more than 50% of the assessments had errors significant enough to affect the valuation and the reassessment of the property. The errors reflected that the Employee did not visit the property or did not go to the back or side of the property. The permits should have been filed with the property cards that were already filed as completed assessments. 12. In early September 1996 Management reviewed the Employee’s assessments for 68 sold properties.

Management discovered 21 significant errors which affected property valuations. 13. In mid-September 1996 Management selected and reviewed an entire box of the Employee’s completed assessments and computer sheet edits, a total of 300, and found 87 properties with significant errors affecting valuation. 14. On September 30, 1996, an assessment from the State Office reviewed the field work on 33 properties. Of the 24 properties with changes from the previous assessment, the Employee had accurately reflected one change, incorrectly noted five of the changes that he identified, and failed to reflect 18 significant changes, including a variety of add-on decks and additional buildings. 15.

The Employee usually did not walk around the property, often did not get out of his car, and did not attempt to contact the homeowner or an adult household member. The Employee did not correct data entry errors in the computer sheets as required. (Emphasis added.) IV. THE TWO GEIGER DECISIONS As mentioned earlier, the trial court remanded this case to the OAH for additional fact-finding.

This additional fact- ⁵⁷⁴ finding was necessary in order to comply with the opinion of this Court in Western Correctional Institution v. Geiger. We said in Geiger : We reject appellee’s contention that the 30-day limitation period begins the moment that the appointing authority acquires any knowledge, however slight, of the incident for which disciplinary action is ultimately imposed. There is an important distinction between (1) information that indicates the necessity for an investigation, and (2) the completion of an investigation by § ll-106(a)(l). The statutory check found in § 11 — 106(b) does not start until the appointing authority had [sic] — or, in the exercise of reasonable diligence, should reasonably have — acquired enough knowledge to justify the imposition of discipline.

Geiger, 130 Md.App. at 569 , 747 A.2d 697 (emphasis added). In Geiger , we also said: [W]hen a disciplined employee contends that the time limitation of § ll-106(b) has not been complied with, the employee must overcome the presumption of correctness by making a prima facia [sic] showing that the appointing authority was “on notice” of the alleged misconduct more than 30 days before the disciplinary action was imposed. If the employee does succeed in showing, prima facie, that the appointing authority was on notice of the purposed [sic] misconduct on a day more than 30 days before the employee was ultimately disciplined, the disciplinary action shall be rescinded unless that appointing authority proves by a preponderance of the evidence that (1) the investigation required by § 11-106(a)(1) was conducted with reasonable diligence and (2) the disciplinary action at issue was imposed no later than 30 days after the required investigation had been completed. Id. at 569-70[, 747 A.2d 697 ].

The Court of Appeals, in its Geiger decision, explicitly rejected our reading of [State Personnel and Pension] section ll-106(b)(¿). See Geiger, 371 Md. at 144, 807 A.2d 32 . According to the Court of Appeals, the thirty-day clock does ⁵⁷⁵ not start when the employer has enough knowledge to justify the imposition of discipline; instead, the clock starts to run when the employer acquires knowledge sufficient to order an investigation of the misconduct for which discipline is imposed. Id.

V. ALJ SPENCER’S DECISION One of the main problems we face in reviewing this case is that ALJ Spencer made her fact-finding applying the test set forth in our Geiger decision, which has since been overturned. ALJ Spencer ruled: The Employee was terminated because of negligent, incompetent and inefficient work performance that compromised the integrity of the real property assessment in Carroll County. The initial discovery of the permits, however, was not sufficient notice to support terminating the Employee. A review of the properties reflected on the permits confirmed that the Employee had been to the properties but had not placed notations on the permits.

Clearly the failure to compute the permits was an error but at the time the permits were discovered, the Employee had not completed his field work. If Management had discovered that the Employee had not reported to the properties, that would have indicated the need for an immediate investigation. However, the Employee was performing his duties, he had just failed to complete the permits. Since the Employee had not completed his fieldwork, it was reasonable for Management to wait until the Employee had completed his fieldwork before conducting an audit of his work.

While I agree with the Employee that the initial discovery of the incomplete permits was notice of errors in performance, it was not notice of misconduct to justify termination. ... It is clear from the evidence presented by Management in support of the charges that Management was not on notice of the misconduct that resulted in the charges until the audit began on September 9, 1996. Management initially only discovered 8 to 10 permits ⁵⁷⁶ while the initial audit involved 68 properties with 21 errors. The initial discovery of the permits did not form the basis for the Notice of Termination and the investigation of those permits did not produce notice of misconduct to justify the imposition of the discipline.

In light of the above, I find that the Employee has failed to overcome the presumption of correctness by making a prima facie showing that Management was on notice of the alleged misconduct more than 30 days before the Employee was disciplined. Based on the facts in this appeal, Management was on notice as of September 9, 1996 of the alleged misconduct that justified the Notice of Termination. The notice of termination was filed on October 7, 1996, less than SO days after Management acquired sufficient notice of the misconduct. Accordingly, the notice of termination was filed in a timely manner.

(Emphasis added.) Earlier in her opinion, ALJ Spencer set forth her factual findings concerning “the thirty-day-clock” issue as follows: 3. In early August 1996, Lumen [sic] Norris, Assistant Supervisor of Assessments for Carroll County, found a stack of 8 to 10 building permits on a cabinet. There were no notations of [sic] the permits. The properties reflected on the permits were assigned to the Employee. 4.

Mr. Norris discussed the permits with Larry White, Supervisor of Assessments for Carroll County. Mr. Norris and Mr. White took the permits and went to the properties to determine if work had been performed pursuant to the permits. They discovered that the Employee had been to the properties but had not made any notations on the permits. 5. On September 3, 1996, the Employee completed his fieldwork. 6.

As part of a quality control review, once an assessor completes his fieldwork, Mr. White conducts a random audit of the assessor’s work. ⁵⁷⁷ 7. On September 9, 1996, Mr. White conducted a field audit of the Employee’s completed fieldwork. The assessments for 68 properties were reviewed and 21 errors, which affected property valuations, were discovered. 8. Between September 14 and September 30, at least three more audits of the Employee’s work were conducted.

One of the audits revealed 87 out of a total of 300 properties with errors affecting evaluation. Another audit reviewed the fieldwork on 33 properties. Of the 24 properties with changes from previous assessments, the Employee accurately reflected one change, incorrectly noted five changes that he identified!!,] and failed to reflect 18 changes, including decks and additional buildings on the properties. (Emphasis added.) The chronology set forth above suggests — but does not definitively establish — that prior to September 3, 1996, Messrs.

Norris and White went to the property mentioned on the mislaid permits and discovered that Reier had not noted the improvements on the permits even though he had claimed to have been on the premises. If that suggestion is accurate, management would have known by at least September 3, 1996, that Reier was not performing his job properly — provided that management looked at the field cards for the properties prior to September 3, 1996. 5 If the field cards were reviewed shortly after the permits were discovered (as suggested by Mr. Norris’s April 17, 1997, testimony quoted supra), there is no doubt that the employer would have then known not only that Reier had failed to note improvements on the permits but that he had claimed to have been to the properties but had failed to see the improvements and note them on the field cards. Thus, under that scenario, at least by September 3, 1996, when ⁵⁷⁸ Reier reported that he had completed his field work, the employer’s knowledge clearly would have been sufficient to launch an investigation. The trouble is, however, we cannot know for sure, because no explicit determination was made by either ALJ Hafner or ALJ Spencer as to when management looked at Reier’s field notes. 6 VI.

THE COURT OF APPEALS’ GEIGER DECISION AS APPLIED TO THIS CASE Both parties wrote their initial briefs based on the assumption that our decision in Geiger accurately enunciated the applicable law. After the Court of Appeals’s decision, Reier wrote a reply brief in which he contended that SDAT “actually launched its investigation” into the misconduct that led to his termination prior to September 7, 1996. Because knowledge of facts sufficient to launch an investigation into the misconduct for which Reier was terminated on October 7, 1996, started the thirty-day clock to tick, appellant argues that the disciplinary action for which he was fired must be rescinded. In its brief, SDAT asserts that the core reason Reier was terminated was “that his field inspections and final work product were so poor that they indicated he was intentionally not performing his duties or just superficially doing them.” We agree.

The question then becomes: Did the employer have knowledge sufficient to order an investigation into the question of Reier’s poor performance prior to September 7, 1996? SDAT asserts that the answer to that question is “no.” It further assert [sic] that it was not put on notice of Reier’s poor performance until September 9, 1996 — when Messrs. White and Norris went to the premises (mentioned in the permits discovered in early August 1996) and found that various improvements mentioned in those permits had been completed but had not had been discovered by Reier. SDAT further asserts that the inspec ⁵⁷⁹ tion of the premises (mentioned in the misplaced permits) was in lieu of the usual random re-inspections that are routinely performed concerning the work of all their assessors.

Reier counters that the evidence is clear that in the various hearings before the two ALJs, SDAT consistently pointed to the discovery of the permits in August 1996 as its initial notice that there were problems with the employee’s performance. Reier also points out that the notation on one of the building permits for one of the properties the employer ordered reinspected indicates that the inspection was made on September 4, 1996. Additionally, Mr. White testified, at one point, that he and Mr. Norris first began to check Reier’s work on September 2,1996. 7 Taking the evidence produced at the various hearings before the ALJ in the light most favorable to Reier, one could find the following facts: 1. That eight to ten permits were found in early August 1996 laying atop a file cabinet; 2.

Mr. Norris determined immediately that the properties mentioned in the permits had all been assigned to Reier to assess. 3. That management knew prior to September 3, 1996, that there was a problem with Reier’s work, and prior to September 4, 1996, management asked Jack Berleson [sic] to investigate the quality of Reier’s work. 4. That by September 4, 1996, Jack Berleson [sic] started to investigate whether Reier had properly inspected the various premises mentioned in the eight to ten misplaced permits. On the other hand, if we take the evidence in the light most favorable to SDAT, the employer never suspected that Reier had not been properly performing his job until September 9, 1996, which was the date Messrs.

White and Norris visited the various premises mentioned in the mis ⁵⁸⁰ placed permits and found that Reier had failed, on repeated occasions, to note on the assessment records that various open and obvious improvements had been made to the properties mentioned in the misplaced permits. In our view, the date that SDAT acquired knowledge sufficient to order an investigation into whether Reier had been properly performing his field work was when the employer discovered (1) that improvements (mentioned on the misplacement [sic] permits) had been performed and (2) that Reier had visited the premises but had failed to note on SDAT’s field cards that the improvements had been completed. As already noted, the evidence presented to the two ALJ’s is conflicting as to when the employer received the knowledge necessary to launch an investigation. ALJ Spencer (understandably) never answered that question.

Instead, she answered the question posed by the Geiger decision by this Court: “When did the employer acquire sufficient knowledge of the alleged misconduct to justify the termination?” she answered, “September 9, 1996.” In arriving at that answer, ALJ Spencer said that it was “reasonable for Management to wait until the employer completed his fieldwork before conducting an audit of work.” Because Reier’s field work was completed on September 3, 1996, this at least suggests, but does not compel, the conclusion that the ALJ thought that the employer, as of September 3, 1996, had good reason to believe that Reier’s field work was being done incompetently. The employer asserts: Consistent with White’s normal practice, the field audit of Reier’s work was not done until after he had indicated his field work was finished on September 3, 1996. Neither Mr. Norris nor Mr. White reviewed the assessment work sheets when the permits were found or before they subsequently visited the properties on September 9th. Consequently, when they visited the properties, they did not know whether the improvements had been started or finished or whether the assessment records reflected those improvements.

However, the September 9th field ⁵⁸¹ audit revealed that the improvements on the permits had been completed. When they returned to the office and checked the work sheets, Mr. White and Mr. Norris learned for the first time that Reier had failed to record the new improvements. (References to record extract and footnotes omitted.) There is evidence in the record to support each of the facts set forth in the paragraph just quoted. But, as we have already noted, many of those facts were contrary to earlier testimony by Reier’s witnesses.

And, while ALJ Spencer did find that Mr. White “conducted a field audit of the Employee’s fieldwork” on September 9, 1996 (Finding No. 7), it is not at all clear that the “field audit” she is referring to is the audit of the premises (referred to in the misfiled permits) because (1) she says in Finding No. 4 that White and Norris visited the premises (mentioned in the misplaced permits) on a date, which she does not specify, and then discovered that Reier “had been to the properties but had not made any notation on the permits” and (2) in Finding No. 7, she indicates (but does not say explicitly) that the audit performed on September 9, 1996, was far more extensive than merely checking the premises mentioned in the misplaced permits. As stated earlier, Finding No. 7 was that the September 9 audit uncovered the fact that Reier had assessed 68 properties and had made 21 errors “which affected property valuations.” We shall remand this case to the Circuit Court for Baltimore County with instructions to once again remand the case to the OAH. Upon remand, the ALJ shall answer the following question: When did SDAT acquire information sufficient to launch an investigation into whether Reier’s work performance was “negligent, incompetent,