Tochterman v. Baltimore County

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). If there is one overarching principle of administrative law, it is that the courts should never lose sight of the separation of ³⁸⁸ powers doctrine when, periodically, they are asked to intervene in the operations of a separate and equal branch of government. An employee of the Baltimore County government, unhappy at his non-consensual lateral transfer, had available to him an established grievance procedure, with three levels of review, within the executive branch of government. Only when he failed to prevail at any of those levels did he ask the judicial branch to intervene.

Failing again at the circuit court level, he has appealed to this Court. As we accept this or any other administrative appeal, we must be poignantly sensitive 1) to the need to resist the temptation to behave as an imperial judiciary and 2) to the institutional deference we owe to the executive branch of government. An administrative appeal is not simply a routine appeal from lower down the ladder of our own judicial branch. Procedural History of the Case At the time of the action which is the subject of this appeal, the appellant, Edward S. Tochterman, Jr., had been an employee of Baltimore County, the appellee, for twenty-nine years.

The appellant, who first came to work for the County in September of 1974, served as the Bureau Chief of the Bureau of Building and Equipment Services in the Department of Public Works from May of 1995 until November of 2002. In November of 2002, he was transferred to the position of Management Assistant IV in the Department of Recreation and Parks. Unhappy at being transferred, the appellant, on November 20, 2002, followed the established grievance procedure set up for employees of the Baltimore County government and submitted two separate grievances to the Director of Public Works, Edward J. Adams. After meeting with the appellant on December 11, 2002, Mr. Adams denied both grievances.

The appellant then appealed that decision of Mr. Adams to the County Administrative Officer. A meeting was held between the Administrative Officer and the appellant on January 8, 2003. On January 17, the Administrative Officer issued a seven-page written decision, denying the grievances. ³⁸⁹ The appellant further appealed that decision to the Personnel and Salary Advisory Board (“PSAB”). A hearing was held before the PSAB on April 16, 2003, with the appellant being represented by counsel.

Nine witnesses gave testimony, five for the appellant and four for the County. On May 7, the PSAB issued its seven-page Order, also denying the grievances and upholding the decision of the Administrative Officer. The appellant filed a petition for judicial review in the Circuit Court for Baltimore County. Following a full hearing on March 23, 2004, Judge J. Norris Byrnes, on July 12, 2004, issued a well reasoned, seven-page Order affirming the decision of the PSAB.

This appeal followed. The Issue On this appeal, the appellant raises six questions: 1. Did the PSAB err in its findings that Baltimore County had the authority to remove the Appellant from his position of Bureau Chief pursuant to the alleged “emergency conditions” as set forth in Personnel Regulations 9.01; § 25-126 and § 25-9(b) of the County Code? 2. Did the Circuit Court err in affirming the PSAB in light of its finding that the words “emergency conditions” encompass emergencies such as natural disasters which require employee transfers on a temporary basis and was not intended as a catch-all to provide unlimited authority and contradiction of regulations set forth to resolve disciplinary action?

Did the Court err by then affirming the action of the PSAB? 3. Did the PSAB err in its findings that “no employee has a legal entitlement to any specific position?” 4. Did the PSAB err in its findings that the County Code and Charter permit part-time employees to serve in a supervisor capacity? 5. Did the PSAB err in its finding that the County did not violate Tochterman’s rights afforded to him under the County Classified System when he was not interviewed for the position of Bureau Chief? ³⁹⁰ 6.

Did the PSAB err by failing to address the question presented to them by the Appellant that in replacing the Appellant, the County acted illegally in soliciting the applications for a position that was still occupied by the Appellant? We decline to frame the issue (or issues) before us as the appellant has done. The profligate proliferation of closely related issues serves only to trivialize the core question and to distract attention from it. We are not marking the PSAB’s paper or deciding whether it lapsed into inartful phraseology or inapt characterization, and we do not intend to parse every sentence of the PSAB opinion as if we were exegizing a sacred text.

Our only concerns are 1) whether Baltimore County had the authority to transfer the appellant from one position in the Baltimore County government to another position of comparable rank and salary and 2) whether the County properly executed that authority. If so, the PSAB had, as a matter of fact, a substantial basis for deciding as it did, and we,' affirming, will be content. 1 The Factual Background The appellant, as a bureau chief, bore the primary responsibility for seeing that his bureau was a smoothly operating branch of the Baltimore County government. Beginning in November of 2001, however, unrest and discontent became rampant in the upper echelons of the appellant’s bureau. The appellant himself was at the very vortex of that unrest.

The bureau itself was divided into three main divisions. The three division managers, in theory, reported directly to the appellant. By May of 2003, the appellant was in a state of virtually ³⁹¹ open warfare with two of his three division managers and the working environment of the entire bureau was in a shambles. As a universal management principle, when a crew is in open revolt, it is the captain who is deemed to bear the ultimate responsibility.

In his opinion and order, Judge Byrnes described the employment environment in the bureau at the time that Mr. Adams, as Director of Public Works, found it necessary to intervene. [Tjhere was ample evidence that in 2001 through 2002 Petitioner exhibited very poor behavior and displayed very poor judgment. Mr. Adams characterized his behavior as having resulted in “continuing unrest” and a “poor work climate” within the Bureau. The record reflects that there had been a number of employees that were complaining about Petitioner’s management style. (Emphasis supplied).

The rupture in a healthy working relationship spread downward in at least three directions from the appellant to his immediate executive staff and, arguably, in one direction upward to his own immediate superior, Mr. Adams. 1. Discord With The Building Operations Manager Ada Peggy Spriggs, as Building Operations Manager, was one of the three managers working directly with the appellant. Trouble between the appellant and Ms. Spriggs began in November of 2001. Judge Byrnes’s opinion described the initial breach.

In November of 2001, Ada Peggy Spriggs, the Building Operations Manager, made a telephone call to Joann F’Amolaro, an employee in the Bureau’s Glen Arm office. During this conversation, she apparently made reference to the fact that Petitioner’s secretary had received a promotion “on her knees.” This comment was overheard by another employee and was repeated to Petitioner, who became quite upset. Petitioner brought this to Mr. Adams’ attention and ³⁹² attempted to have Ms. Spriggs demoted and transferred from the Bureau. At that point, the appellant’s legitimate complaint was properly placed in the hands of Mr. Adams.

Mr. Adams determined that Ms. Spriggs had, indeed, been guilty of making an inappropriate comment and he imposed on her the sanction of a five-day suspension without pay. In his testimony before the PSAB, Mr. Adams described his reasoning process in trying to determine an appropriate sanction. I tried to come up with a punishment — I tried to come up with discipline that I considered reasonable. And I was not alone in this issue.

Due to the level that it was occurring, this is probably the senior African American woman in the work place, as far as pay rate, supervision, definitely in Public Works. I don’t know about the County. Many people do know her. So, I wanted to make sure that I was doing the right thing.

I consulted with the Office of Law, I consulted with the Budget Office, I considt- . ed with Personnel, I consulted with the previous Director. Ted made a comment to me at one time that he thought Bob Olson would do something different. I informed him that I did consult with Mr. Olson and, in fact, he suggested that he would have probably have done a three day. And this was prior to me instituting a five day suspension.

The way I look at it, the lady, Ms. Spriggs, she basically lost a week’s worth of pay, a week’s worth of time for making a comment. Inappropriate. And we need to pick up from there and keep going forward. Q. Did you make that decision — you actually made that final decision?

A. That decision is mine to make. I did have — I’m not saying that I didn’t consult with somebody else. No one else told me to do that. There was a range of suggestions.

The five days is what I felt comfortable with. The five days is what I felt is appropriate and would stick. (Emphasis supplied). That should have ended the matter.

The problem lay not with the appellant’s initial complaint about Ms. Spriggs (it was ³⁹³ legitimate), but with his adamant refusal to accept the fact that she was to be punished by a five-day suspension rather than by being removed from the bureau, as he wished. He emotionally refused to accept the final decision made by the appropriate authority. If one were to sum up this case in a single sentence, it would be that Ms. Spriggs became for the appellant an idee fixe that he could not thereafter see beyond. That obsession was ultimately self-destructive.

In its decision, the PSAB described how the appellant allowed his resentment at what he deemed to be an inadequate punishment to fester and, ultimately, to poison the larger work environment for which he was responsible. While it is clear that all of the responsibility cannot be fairly placed upon the Appellant for all of these concerns, the Appellant was the manager in charge arid, as such, has a direct responsibility to find a way to resolve or effectively work around concerns and/or problem employees. The Appellant failed, to do this specifically with regard to his work relationship with Spriggs. It is apparent that neither the Appellant nor Spriggs liked or respected each other.

While it is understandable that the Appellant could be upset with the remark that Spriggs made to Famolaro, the record, suggests that his reaction was far stronger and more sustained than a reasonable person might have in a similar situation. Activities undertaken by the Appellant consistent with his reaction continued even after Adams had moved to address the Appellant’s concerns about having to deal with Spriggs by transferring supervisory responsibility for her from him to Sproles. Had this course of conduct been confined solely to Spriggs, it would have been disruptive to the workplace but the Appellant’s continued, focus on the situation had serious consequences on the workplace overall and on a number of other employees. (Emphasis supplied).

Judge Byrnes’s opinion referred both to this progressively deteriorating relationship between the appellant and Ms. ³⁹⁴ Spriggs and also to the breach in a good working relationship between the appellant and his own supervisor, Mr. Adams. After considering Ms. Spriggs’ twenty-three (23) year employment, Mr. Adams concluded that Petitioner’s request was inappropriate, and he instead imposed a five-day suspension. Petitioner never fully accepted Adams’ decision. Petitioner was even childish enough to refuse to speak to Mr. Adams without having his attorney present.

To show his displeasure at Mr. Adams’ decision, Petitioner refused to evaluate Ms. Spriggs. In Petitioner’s February 13, 2002 memo to Mr. Adams, Petitioner again complained that Mr. Adams was negligent in the manner in which he had disciplined Ms. Spriggs. (Emphasis supplied). 2. Discord With The Account Clerks In May of 2002, a delegation of two account clerks and Joann F’Amolaro, a management assistant, also came to Mr. Adams and complained that the appellant was bullying them and they felt as if they were being subjected to a hostile work environment.

The order and opinion of the PSAB summarized Ms. F’Amolaro’s testimony. She described the Bureau when the Appellant was there as a hostile and oppressive environment. She described the Appellant as being on a power trip and interested in causing dissension and dividing people. ³⁹⁵ He indicated that he was aware of tension and other problems within the Bureau beginning sometime in 2000-1. Sproles stated that the Appellant told him that he should not support or assist Spriggs and that he should let her fail. ³⁹⁴ (Emphasis supplied). 3.

Discord With The Equipment Maintenance Manager Another of the three managers working directly under the appellant was Arthur K. “Bud” Sproles, the Equipment Maintenance Manager. When the appellant refused to have anything further to do with the supervision of Ms. Spriggs, that supervisory responsibility was reassigned to Mr. Sproles. The reassignment was not without strings attached. The PSAB opinion and order summarized his testimony with respect to how the appellant had instructed him to handle Ms. Spriggs. ³⁹⁵ (Emphasis supplied). 4.

Discord With The Building Maintenance Manager According to Mr. Adams, the “straw that broke the camel’s back” was the May 23, 2002 confrontation between the appellant and Ray Reider, the Building Maintenance Manager, the third of the appellant’s division managers. That development was particularly compelling to Mr. Adams because Ray Reider “is someone, I view, as being very loyal to [the appellant].” In his testimony before the PSAB, Mr. Adams took special note of the theretofore close relationship. Basically, when I heard about what he did to Ray Reider, straight from Ray Reider, and Ray Reider was willing to testify to it ... I knew I had, to react. ...

Ray was extremely loyal to Ted, extremely loyal to Ted. And I would not react unless Ray was willing to tell me that this is what happened to him. (Emphasis supplied). The PSAB opinion and report summarized the testimony of Ray Reider.

Reider stated that in 2002 that relationship changed. He described times when he drove Spriggs to County buildings as situations where both of them were going to the same or many of the same locations; regarding the May 23, 2002 incident, Reider stated that he drove Spriggs because she appeared to be too visibly upset to drive; he linked this condition to concerns that Spriggs had because her mother was very sick. He recalled a request from Adams to meet with him about the incident with the Appellant; this occurred about 3 weeks after the incident. He recalled being instructed by the Appellant that he should not support ³⁹⁶ Spriggs and the Appellant told him that he would find out if support were given to her.

He described himself as fearful of doing the wrong thing, of incurring the Appellant’s adverse reaction, of potential violence in the workplace and of losing his job. Because of this incident, he stated that he did not speak to the Appellant for 3 weeks. The witness believed that the Appellant was setting Spriggs up for failure. Reider indicated that the Appellant’s rocky relationship with Spriggs had progressed from a work level to a personal level.

(Emphasis supplied). Judge Byrnes also characterized the reaction of the appellant to the fact that Reider had given a ride to Ms. Spriggs. In Mr. Adams’ words, “the straw that broke the camel’s back” occurred when Ray Reider, a highly-rated Building Maintenance manager, gave Ms. Spriggs a ride to the east side of the County. Both Mr. Reider and Ms. Spriggs were traveling on County business.

When Petitioner found out about this, he called Mr. Reider, demanded that he report to the Glen Arm office, and gave him a brow beating in the presence of another employee. Mr. Reider became physically ill as a result of the incident, and experienced stress in subsequent weeks. (Emphasis supplied). At that point, the appellant’s relationship with one of his three division managers (Ms. Spriggs) was non-existent, was severely damaged with a second (Reider), and was to some extent compromised with the third (Sproles).

It was the appellant’s excessive reaction to Reider that convinced Mr. Adams that immediate action was necessary. He testified: The thing that really drove me was Pve had this organization that’s basically been misfiring and I can’t get it right. I can’t get it right. Management is just not clicking up there with the office staff and there’s a big problem.

Again, it was an organization that functioned so well for a good period of time. ³⁹⁷ Now I had to give that a whole lot more validity. It was no longer an issue of, “Was this just simply a female jealousy issue in the work place?” And based on that, and based on the fact that it had gone on for so long, I did make the decision along with counsel — I’m talking the counsel of my peers in the administration, personnel, and based on Ted’s years of service, we did make the move to transfer Ted. Not fire him, not discipline him, but transfer him to another department. And this is the way it was explained to him, was to get a fresh start for him and fresh start for this Bureau.

(Emphasis supplied). The Appellant Was Fully Apprised Of Official Concern Over His Job Performance In “beweep[ing] his outcast state,” 2 the appellant describes himself as one who, completely unaware of trouble in the wind, was suddenly “blindsided” by his unexpected transfer. Treating that transfer as if it were, ipso facto, a “disciplinary action” pursuant to § 25-15 of the County Code — notwithstanding the fact that he was neither dismissed from employment pursuant to subsection (a), nor demoted pursuant to subsection (b), nor suspended without pay pursuant to subsection (c) — he complains that he received 1) no “reasons or charges, stated in writing” for the transfer; 2) no warning that his superiors were unhappy with his performance; and 3) no opportunity to correct the situation. He claims that he was denied the due process guaranteed by § 25-15 before discipline can be imposed.

In his brief, the appellant states: [The appellant] then testified that he had never been criticized by Director Adams, never given an order that he did not follow, never been disciplined or counseled in any way. Adams never indicated the he was ever dissatisfied with ³⁹⁸ Tochterman’s performance or the Bureau’s performance. Tochterman was never advised that Adams was not happy with the way he was running the Department. (Emphasis supplied).

The appellant “doth protest too much” for that is just not the case. Quite aside from the fact that a lateral transfer is not a disciplinary action pursuant to § 25-15, the appellant was, in indisputable fact, not caught unaware. He was not notified of his transfer until June 14, 2002. The apparent trigger for the managerial implosion that ultimately caused the transfer, the overheard telephone call by Ms. Spriggs to Joann F’Amolaro, had occurred on November 2, 2001, seven months earlier.

Mr. Adams’s decision to impose a five-day suspension without pay on Ms. Spriggs was announced by him in February of 2002. Edward Adams had become the Director of Public Works, and the-immediate supervisor of the appellant, in July of 2000. From the outset of that relationship, Adams was alerted to problems in the appellant’s bureau involving 1) the account clerks and 2) pervasive resentment in the ranks about allegedly favored treatment given by the appellant to his secretary. Before the PSAB, Adams described both the problems themselves and his confronting of the appellant about the problems.

When I took over as Director, it became apparent to me that there were some issues. [Tjhere had been testimony to describe them, some of doe female jealousy issues that were prevalent in the office staff. ... The account clerks, I did get involved because people asked me to get involved. I wanted to find out what was going on up here in this shop where these individuals were bickering with each other and more or less going after each other.... Q Did you identify any particular problem that needed to be addressed or that you thought may be causing the situation?

A There was no doubt that there was this underlying element that many of the staff, including several of his ³⁹⁹ closest advisors and people that he worked with, did point to the issue that he gave specialized treatment to Jeane Ahmer, his secretary. The testimony of Ms. Joann F’Amolaro was something I had heard previously in regards to three, four hour counseling sessions when they could not get into the room. I did ask Ted about that, question you know, you understand that this rumor is out there about you and Jeane. You know, why are you sitting — he said it was perfectly appropriate for a supervisor to be counseling a subordinate, and he felt it was part of his job duties.

That was the response that he gave to me. A This is part of the underlying current that was going on. Again, the account clerks or other office staff — they felt that, even though Ted was the Bureau Chief, Jeane was calling the shots through Ted. ... Or I would actually talk to Ted and ask him, he mentioned, he talked with the account clerks.

That was something I asked him to do. They felt that they had been shut out by him completely. And the account clerks and Joann, they just basically wanted to be able to talk to him again. They could not go into the room again, it was that underlying current that Jeane just basically got everything she wanted.

(Emphasis supplied). As a result of ongoing discussions between them, it was obvious to the appellant that Adams was concerned about widespread unrest and resentment within the bureau’s top managerial staff resulting from the perception that the appellant was showing favoritism toward his secretary and extending preferential treatment to her. The fall-out from the overheard telephone conversation of November 2, 2001, was not one-directional. Ms. Spriggs filed a complaint against the appellant with the Office of Fair Practice.

Several other employees of the bureau were threatening to file similar complaints against the appellant. The ⁴⁰⁰ dramatic rupture in the relationship between the appellant and his supervisor, Adams, occurred, however, when the appellant refused to accept what he deemed to be the overly lenient sanction imposed on Ms. Spriggs. Adams and the appellant had several conversations in Adams’s office about the sanction. After the appellant filed several memoranda, one of which referred to the discipline deserved by Ms. Spriggs as having been “negligently not administered to her,” Adams attempted to meet with the appellant but was rebuffed.

He testified: Q Now, having received that second memorandum did you ask Ted that you wanted to speak to him? A Yes, I did. Q And what was his response? A His response was he would not speak to me unless he had a lawyer present.

(Emphasis supplied). Adams conferred with the County Law Office and was reassured that the appellant had no such right not to meet with him on matters concerning the operation of the bureau. [T]he Law Office basically informed me that he has no rights to attorney when we’re talking a business issue, the running of the Department. Ms. Spriggs was on leave and Adams had to know how the appellant intended to deal with her upon her imminent return to work. [T]he key thing I needed was to get him into the office to discuss, you know, Peggy’s first day back and how we were going to handle this. ... I fully expect people to get upset with certain decisions that they may not like.

But I also expect them to get over it so we can move forward. Again, I did give him some breathing time, but I needed to have a meeting prior to Peggy’s return to work. That’s what I was trying to set up. Q Did you have that meeting? ⁴⁰¹ A Yes, sir.

I think the date here is February 19th. (Emphasis supplied). At that meeting, the appellant stated he refused to supervise or evaluate Ms. Spriggs, although she was one of his three division managers. It was agreed that Arthur “Bud” Sproles, another of the three division managers, would assume that responsibility.

Also present at that meeting with the appellant was Tom Hamer, the Deputy Director of Public Works. A brief colloquy at the PSAB hearing shed light on Adams’s concerns. BOARD MEMBER: Can I ask a question. He refused to do the performance evaluation; is that correct?

THE WITNESS: Yes, sir. BOARD MEMBER: Why at that point didn’t you consider that insubordination on his pari? THE WITNESS: At one level I could, but at the other level I’m also trying to work with an employee-=-a valued supervisor over the years that — I’m just trying to get us back on to the right track. I guess I’m saying I’m trying to pick my battles.

(Emphasis supplied). Adams conferred with the appellant about the future of the bureau and about the dissension that was disrupting it. The appellant’s only suggested strategy was to “purge” the people with whom he could not get along. At that point in time we talked about the future and the fact that the purge is where he felt the Bureau needed to go.

In other words, to make this Bureau better for the Director for Baltimore County, I need to purge certain individuals. Specifically he did name Peggy Spriggs, Joann F’Amolaro and a couple of the account clerks. Q Did he specifically use that word, purge? A Yes, that was his word, that is not mine.

And, again, Tom Hamer reviewed these before I signed them, too (Emphasis supplied). Judge Byrnes referred to the appellant’s projected purge of his bureau as a “vendetta.” ⁴⁰² Adams and the appellant discussed how personal relations within the bureau that had once been good had so sadly deteriorated. I asked Ted at that time, and I’ve always been asking this question even as late as having the grievance hearing a couple months ago. What happened to the personnel staff between '95 and '98 when you managed to gain the respect and admiration of the staff versus the past two years when several of these same individuals needed to be purged?

I never really could get a direct answer from him because (inaudible) he did make the statement of female jealousy within the office staff. And, again, that’s something that seemed to have come out a lot since Jeane got there. (Emphasis supplied). With respect to a prognosis for the bureau’s future, it was the appellant’s firm opinion that the situation was going to get worse, not better.

His thing on that was, If you think it’s going to go away, it’s not. Three years it’s going to be in Circuit Court. Some comment in regards to that. I did ask him at that time, are you talking about suing the County, [or] myself?

He was a little hesitant on that. He really didn’t give a specific answer. Based on that comment, based on my concerns from him making the comment with the Circuit Court, I did have further conversation with the Law Office just to review the situation and make sure that we were doing everything appropriate or I was doing everything appropriate for the sake of Baltimore County. (Emphasis supplied).

At the appellant’s request, that meeting of February 19, 2002, was memorialized by a memorandum. Q All right. So you had this meeting and as a result then you sent a memorandum to Ted which is dated February 20th; is that correct? A Yes, sir. ...

Ted asked for it to be in uniting. ⁴⁰³ Q So you told him at the meeting that’s what was going to happen? A Yes. It’s written in the notes, but he wanted it in writing. Q And this is a written confirmation of what had been decided and told to Ted at the meeting?

A Yes, sir. (Emphasis supplied). In May of 2002, two of the account clerks and Joann F’Amolaro complained to Adams about the appellant. Adams met with the appellant to discuss that issue.

So I did go up and meet with Ted and I said, you