Sturdivant v. Maryland Department of Health & Mental Hygiene

KEHOE, J. The primary issue in this case is whether a State agency is required—as opposed to authorized—to fill vacant positions by reinstating laid-off State employees. In 2009, the Maryland Department of Health and Mental Hygiene (“DHMH”) closed the Rosewood Center, a facility that provided treatment services to developmentally disabled individuals, and transferred a number of its staff members to Spring Grove Hospital, a psychiatric hospital. As a result of the consolidation of the two facilities, a number of Spring Grove staff members were laid off, 1 including the 17 appellants in this case. 2 Some of the laid-off workers were then rehired. Asserting that they should have been included among the rehired staffers, appellants filed a grievance, which was denied by an administrative law judge.

They then filed a petition for judicial review in the Circuit Court for Baltimore City. The court affirmed the ALJ’s decision. Appellants present one issue which we have reworded and divided into two: I. After a layoff, do laid-off State employees have a statutory right to reinstatement by seniority if the unit seeks to fill vacancies in the same class?

II

Did Spring Grove Hospital fill the job vacancies in question by reinstating laid-off employees or by recruiting candidates and appointing the most qualified? We conclude that Title 7 and 11 of the State Personnel and Pensions Article (“SPP”) (1994, 2009 RepLVol.) gave Spring Grove two means of filling the vacancies in question: recruit ³⁶ ment and reinstatement. Because there is no statutory preference for either method, we answer appellants’ first question in the negative. As to the second issue, if the agency decides to fill the vacancies through recruitment, it must follow the procedures mandated by the General Assembly in Title 7.

These requirements are manifold but the most important in our view pertain to public notice, thus assuring that all interested individuals have an opportunity to apply, and transparency, so that applicants and would-be applicants will know what criteria will be used in making hiring decisions. The degree to which Spring Grove complied with these statutory mandates is problematic. The administrative law judge made findings of fact regarding some but not all of these compliance issues. We will remand this case to the administrative law judge for further proceedings.

For its part, DHMH advances an additional question, which we have also rephrased: Did the ALJ err by permitting 17 additional grievants to join the original grievance petition, even though those grievants were no longer employed by DHMH? This issue is not preserved for judicial review. Background We summarize some of the uncontested factual findings made by the ALJ as part of her decision. The Closure of Rosewood and Layoffs at Spring Grove Direct Care Assistants (“DCAs”) are responsible for assisting patients with their daily activities, escorting patients to and from appointments and performing similar direct services related to patient care.

Prior to 2009, appellants were employed as DCAs at Spring Grove Hospital. In 2008, the State began to consolidate DHMH’s long-term care facilities. The Rosewood Center was scheduled for permanent closure. As the Rosewood Center was in the process of shutting down, DHMH transferred employees from that facility to Spring ³⁷ Grove Hospital.

The first group of displaced Rosewood employees arrived at Spring Grove Hospital in January 2009. Successive groups of Rosewood employees followed in February, May, June, and July 2009. In August 2009, DHMH employed approximately 176 DCAs at Spring Grove Hospital, all of whom occupied positions subject to the State Personnel Management System (“SPMS”). 3 In June and July 2009, after Rosewood closed, Spring Grove began to determine how many Rosewood employees arrived and how many employees would be laid off as a result. For purposes of a layoff, an employer must compute the number of “seniority points” that each employee has accumulated while working for the State.

SPP § ll-205(a). DCAs accumulate seniority points on account of their service record: one point for each month of State employment, one point for each month of employment in DHMH, and one point for each month of employment in the job series 4 in which the layoff will occur. Id. DHMH calculated the seniority points of employees at Spring Grove Hospital.

A list of the seniority points computations prepared by DHMH was forwarded to Dr. David Helsel, Spring Grove’s Superintendent, who in turn shared it with Judy Tullius, Spring Grove’s Personnel Director. ³⁸ Spring Grove determined that approximately 50 Spring Grove DCAs needed to be laid off. Spring Grove identified the DCAs with the lowest seniority (fewest seniority points) based on the list of seniority points furnished by DHMH. Tullius prepared a form letter to send to each Spring Grove DCA scheduled to lose his or her job. All the identified DCAs were given the same letter and it was dated August 12, 2009.

The letter stated: It is with regret that I must inform you that you will be laid off effective Monday, October 12, 2009. As you may be aware, you will receive the benefit of the application of COMAR 17.04.04.01, which provides for lay off/displacement procedures based on seniority, and reinstatement procedures. Please be advised that the Department has limited displacement to Baltimore County. Unfortunately, there are no employees in your classification who are less senior in Baltimore County displacement area.

Therefore, you will be laid off. Your last day of employment will be Monday, October 12, 2009. (Emphasis added). Rehiring Some of the Laidr-Off DCAs Enclosed with the August 12 layoff letter was an employment application.

Tullius orally explained to affected DCAs that they needed “to fill out the application, get it back to [her] as quickly as possible, [and] that [Spring Grove was] working on trying to identify positions to go ahead and recruit.” Most of the laid-off DCAs, including all of the appellants, filed an employment application for their previous positions. At the direction of Tullius, Angela Hayes, Spring Grove’s Nurse Recruiter, organized a committee to interview DCAs who applied for the open positions. The interview panel was assigned to determine who among the applicants would be best qualified to fill the vacancies. The interview panel conducted interviews on August 26, 27, and 28, 2009.

Spring Grove also reviewed the personnel file of all employees who ³⁹ applied. It noted the amount of sick leave each DCA used and the number of disciplinary actions received by each DCA. The interview panel presented each DCA with a list of ten questions. Each of the four panelists graded the response given to each of the ten questions based on a four level score: “Best-Better-Good-Fair.” The scripted questions included: 1. “How can [Spring Grove] be assured that you will come to work?” 2. “Give some examples of how the hospital can depend on you.” 3. “Considering that you are laid-off, give examples as to why you would like to remain employed here at [Spring Grove]?” 4. “How can you help to decrease patient-to-patient or patient-to-staff assault?” The scored result of each interview, along with the result of the personnel file review, were summarized on a document prepared by Hayes entitled the “Interview Process” table.

Based on this information, the director of nursing at Spring Grove determined which employees would be offered DCA positions. Tullius extended offers of employment to approximately 22 DCAs. The offers of employment and rejection letters were issued by letter dated September 16, 2009. Laid-off DCAs who were junior in seniority points to appellants were offered employment as DCAs, and subsequently employed by Spring Grove on October 13, 2009.

The Grievance The September 16th letters did not mention seniority points and appellants soon realized that seniority had not been honored. On October 2, 2009, the American Federation of State, County, and Municipal Employees, Council 982 (“AFSCME”), the bargaining representative for DCAs and other employees of DHMH, filed a grievance with DHMH, signed by Ms. Sturdivant and Mr. Opoku. The grievance identified the employees as “Peter Opoku; Adeline Sturdivant, et al.” and asserted: ⁴⁰ DHMH and its Spring Grove Hospital took action and initiated the process to lay off employees and to conduct “rehiring interviews” with certain employees in disregard of employees’ seniority rights as mandated by applicable statutes. Management initiated the lay off process in spite of the fact that approximately 30[ 5 ] vacancies in the same classification from which employees are being laid off existed at the time.

Further, Management is also failing to follow procedures stated in statutes and regulations for the reinstatement of separated employees due to abolition of positions mandated by the State Governor and the Board of Public Works. Shortly after the grievance was filed, AFSCME’s representatives met with officials of DHMH and the Department of Budget and Management (“DBM”) to identify which laid-off DCAs would be eligible to join in the grievance and to discuss the layoff and rehiring process. One result of the discussions was an agreement between the Director of DBM’s Employee Relations Division and an AFSCME representative that AFSCME would have until April 15, 2010 to identify laid-off DCAs who wished to participate in the grievance proceedings. AFSCME identified seventeen additional grievants who were consolidated with the original October 2, 2009 grievance.

Pursuant to SPP §§ 12-201-12-205, the grievants and DHMH attempted to resolve their dispute first within that department and then by an appeal to the Secretary of the DBM. Those efforts failing, the Secretary referred the grievance to the Office of Administrative Hearings for an adjudicatory hearing before an administrative law judge. The ALJ’s decision is DBM’s final decision. See SPP § 12-205(c)(2)(ii).

After an evidentiary hearing, the ALJ issued a 32 page decision denying the grievance. Appellants filed a petition for judicial review. On April 18, 2011, the circuit court issued an ⁴¹ order affirming the ALJ’s decision. Appellants filed a notice of appeal.

Standard of Review This case involves a judicial review of a decision issued by a State administrative agency. In such a case, “we review directly the action of the agency, rather than the decision of the intervening reviewing courts.” Md. Ins. Comm’r v. Cent. Acceptance Corp., 424 Md. 1, 14 , 33 A.3d 949 (2011).

Our “review of the administrative agency’s factual findings is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions.” Kim v. Md. State Bd. of Physicians, 423 Md. 523, 536 , 32 A.3d 30 (2011) (quotation marks and citation omitted). “We uphold the agency’s factual conclusion if a reasoning mind could have reached that conclusion.” Id. In contrast, we review an administrative agency’s conclusions of law de novo. Schwartz v. Md. Dep’t of Natural Res., 385 Md. 534, 554 , 870 A.2d 168 (2005) (“[I]t is always within our prerogative to determine whether an agency’s conclusions of law are correct, and to remedy them if wrong.”). “When considering a question of statutory interpretation by an agency, we review the agency’s interpretation according to a non-deferential standard of review.” Acceptance Corp., 424 Md. at 16 , 33 A.3d 949 . Discussion There are three issues before us in this appeal.

First, we must determine whether the ALJ erred when she concluded that SPP § 11-208 does not establish a right of reinstatement for laid-off State employees. Second, we must address whether DHMH complied with Title 7 of the State Personnel and Pensions Article when it conducted its hiring process. Finally, we will discuss DHMH’s contention that the ALJ erred in permitting 17 former employees to participate in the grievance. ⁴² I. A Right to Reinstatement? At the heart of the parties’ dispute is SPP § 11-208, which states: § 11-208.

Order of reinstatements. (a) Within same class.—The employee with the most seniority points shall be the first employee to be reinstated in the class from which the employee was laid off or from which the employee was separated under § 11-302[ 6 ] of this title or to any lower class in the same job series within the principal department or other independent unit in which the layoff or separation under § 11-302 of this title occurred, (b) Within comparable class.—Reinstatement to a comparable class to which the Secretary has certified employees who were laid-off or who were separated under § 11-302 of this title shall be made from among the five laid-off or separated employees with the most seniority points who are certified to the class. In her analysis, the ALJ concluded that SPP § 11-208 does not give laid-off workers a statutory right of reinstatement. She reasoned that: If the Legislature intended to require the appointing authority to give laid off employees priority over others for vacant State positions, it would have enacted language ... imposing such a requirement on appointing authorities.

It did not do so, however, so I cannot impose that obligation on Spring Grove. Appellants contend that, although Spring Grove was not required to fill its vacant DCA positions, when the hospital decided to do so, it was required by SPP § ll-208(a) and COMAR 17.04.04.05(C) 7 to reinstate the laid-off DCAs by ⁴³ seniority. In their view, the ALJ erred as a matter of law when she concluded otherwise. DHMH’s position is that the ALJ’s legal analysis was correct.

Whether SPP § ll-208(a) establishes a right of reinstatement is a matter of statutory construction. This Court recently summarized the appropriate judicial approach to these questions in Powell v. Breslin, 195 Md.App. 340, 351-53 , 6 A.3d 360 (2010), affirmed, 421 Md. 266, 299 , 26 A.3d 878 (2011): The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. [T]o determine [the legislative] purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning.... If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. In addition, [w]e neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.

If there is no ambiguity in th[e] language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends.... ⁴⁴ In addition, the meaning of the plainest language is controlled by the context in which it appears. As this Court has stated, [bjecause it is part of the context, related statutes or a statutory scheme that fairly bears on the fundamental issue of legislative purpose or goal must also be considered. Thus, not only are we required to interpret the statute as a whole, but, if appropriate, in the context of the entire statutory scheme of which it is a part. (Internal quotation marks and citations omitted).

We turn to the statutes. Overview Title 7 sets out the procedures for “filling] vacant skilled service and professional service positions” in the SPMS. SPP § 7-201(b). An appointing authority 8 may fill job vacancies in one of three ways.

As outlined in SPP § 7-203: An appointing authority may select candidates for a position: (1) from an existing list of eligible candidates; (2) if the appointing authority decides to recruit for the position, by recruitment; or (3) from a special list of eligible candidates whom the Division of Rehabilitation Services of the Department of Education certifies as being physically capable and adequately trained to qualify for the position. In this case, neither party contends that subsection (3) applies to the facts before us. The only relevant options under Title 7 are SPP § 7-203(1) and (2), which allow an appointing authority to select candidates for a position either from an existing list of eligible candidates or by recruitment. ⁴⁵ Title 11 addresses, inter alia, “(1) the layoff of employees in the skilled service or the professional service; and (2) the reinstatement of laid-off and separated skilled service or professional service employees to comparable positions in State employment.” SPP § 11-202 (emphasis added). When an agency seeks to fill vacant job positions by reinstatement, Title 11 provides that positions are filled according to seniority, where “[t]he employee with the most seniority points [is] the first employee to be reinstated....” SPP § ll-208(a).

Title 11 operates in concert with Title 7. Laid-off employees eligible for reinstatement form “an existing list of eligible candidates” within the purview of SPP § 7-203(1). Appellants assert that, under § ll-208(a), if there is a list of eligible candidates and that list includes, or consists entirely of, laid-off employees, the appointing authority must rehire the laid-off employees by seniority before considering any other candidate. We are not persuaded by appellants’ contention.

Before addressing this matter, we will provide a more detailed explanation of the two hiring schemes relevant to this appeal. Title 7, Subtitle 2: Appointments Title 7 sets out a detailed scheme that an appointing authority must follow when it chooses to fill a vacant position. The process begins, conceptually, with a description of the position to be filled. Under SPP § 7-102(a)(l), “[e]ach employee ... shall be provided with a written position description which describes the essential duties and responsibilities the employee is expected to perform and the standards for satisfactory performance on a form approved by the Secretary [of DBM].” The position description must be approved by the appointing authority.

SPP § 7-102(b). Supervisors are obligated to “give each supervised employee a copy of the position description for the employee’s position.” SPP § 7—102(c)(l)(iii). Position Selection Plans While the written position description can serve other pur ⁴⁶ poses, 9 it has a role in the recruitment process authorized by Subtitle 7. Under SPP § 7—201(b), “[e]ach unit shall fill vacant skilled service and professional service positions in accordance with a position selection plan.” 10 The position selection plan must contain “the information about the position that the Secretary [of DBM] requires,” including: (1) a position description described in § 7-102 of this title; (2) the minimum qualifications for the class of the position and any selective qualifications required for appointment to the position; (3) any limitations on selection for the position ... [e.g.] ... candidates indicating a willingness to work in a location.

SPP § 7-202(b). Moreover, “if applicants for the position are to be recruited,” the position selection plan must also contain the: (i) location for submitting applications; (ii) manner for posting the position announcement in the unit; (iii) method and length of time for advertising the position; (iv) closing date to receive applications for the position; (v) plan of development of any selection test to be administered to qualified applicants; and (vi) duration of the list of eligibles that results from the recruitment. ⁴⁷ SPP § 7-202(b)(4). When a draft of a position selection plan is completed, “[t]he appointing authority shall: (1) approve or disapprove each position selection plan; (2) authorize funding for approved plans; and (3) send a copy of an approved selection plan to the equal employment opportunity officer of the unit [in this case, Spring Grove Hospital].” SPP § 7-202(c). Selection of Candidates From here, an appointing authority may select candidates for a position pursuant to SPP § 7-203, which we discussed earlier.

Again, under this section, there are two primary ways to fill vacant positions: (1) by selecting “from an existing list of eligible candidates”; or (2) “if no existing list of eligible candidates exists or if the appointing authority decides to recruit for the position, by recruitment....” 11 Reading § 7-203 and § 11-208 in conjunction, we conclude that § 7-203(l)’s “existing list of eligible candidates” encompasses, among others, laid-off employees eligible for reinstatement under § 11— 208. Job Announcements If an appointing authority decides to pursue option number two and recruit candidates, then the “appointing authority shall prepare a job announcement for the position and conduct recruitment in accordance with the position selection plan.” SPP § 7-204(a). The job announcement must contain: (1) a summary of the position description; (2) the minimum qualifications for the class and any selective qualifications necessary for consideration; (3) the type of selection test that will be administered to those meeting the position’s minimum qualifications; ⁴⁸ (4) the location and deadline for submitting applications; and (5) the duration of the list of eligibles derived from the announcement. SPP § 7-204(b).

The appointing authority must also “send a copy of the selection plan and job announcement to the Secretary [of DBM] at least 1 week before posting the job announcement to assure public access.” SPP § 7-204(c)(l). Furthermore, it is incumbent upon the appointing authority to: advertise the position vacancy at least 2 weeks before the deadline for submitting applications by: (i) making available a job announcement to all appropriate State agencies, based on selection limitations; and (ii) using any other method that is reasonably calculated to ensure a sufficient pool of applicants, including printed advertisements in newspapers and journals, paper and electronic bulletin board postings, and special notices. SPP 7-204(c)(3). Rating Qualified Applicants After the close of a position announcement, the appointing authority must: (1) review the applications received to determine the applicants who meet the minimum qualifications for the position; (2) prepare a register of qualified applicants in random order; (3) send to unqualified applicants a notice that they have failed to meet the minimum qualifications for the position; and (4) as provided in subsection (b) of this section/[ 12 ] if a competitive examination that requires attendance at a test site is required for the position, send a notice of the ⁴⁹ examination to qualified applicants on the register at least 10 days before the test administration date.

SPP § 7-205. In rating qualified applicants, an appointing authority “may use any appropriate selection process,” but the “unit must be able to establish the job relatedness, reliability, and validity of the selection tests that it uses.” SPP § 7-206(a). If an appointing authority uses a selection test, the test must be free of charge and open to all qualified applicants. SPP § 7-206(b).

Once the appointing authority has rated the qualified applicants, it must, “based on appropriate standards, place the candidates within the following categories”: (i) best qualified; (ii) better qualified; (iii) qualified; (iv) unsatisfactory; (v) certified by the Division of Rehabilitation Services; (vi) eligible for reinstatement after layoff or after a separation under § 11-302 of this article; (vii) eligible for reinstatement; or (viii) eligible for transfer SPP § 7-208(a)(l). In addition, the appointing authority must “place the candidates on a list of eligible candidates by category in random order within the category except for candidates eligible for reinstatement after layoff or separation under § 11-302 of this article who shall be placed in that category in seniority point order.” SPP § 7-208(a)(2) (Emphasis added). Subsequently, the appointing authority must file this list of eligible candidates with DBM. Appointments Finally, Title 7 provides the framework that an appointing authority must follow in selecting its new employees.

Under SPP § 7-209(a), “[ejxcept as otherwise provided by law, an appointing authority shall make an appointment from among ⁵⁰ the candidates in a rating category on a list of eligible candidates as follows”: (1) if there are at least five candidates rated best qualified, from that rating category; (2) if there are fewer than five candidates rated best qualified, from the candidates in the best qualified and better qualified categories; and (3) if