Anderson v. Department of Public Safety and Correctional Services, 115

• Court: Court of Appeals of Maryland
• Citation: 623 A.2d 198,330 Md. 187
• Docket Number: No. 115,115
• Parties: William ANDERSON v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES et al. ,
• Decision Date: 01 September 1992

Page 187

330 Md. 187 623 A.2d 198 William ANDERSON
v.
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES et al. No. 115, Sept. Term, 1992. Court of Appeals of Maryland. April 23, 1993.

[623 A.2d 199]

Page 189

Joel A. Smith (Christyne L. Neff, Kahn, Smith and Collins, P.A., on brief), Baltimore, for appellant.

Edward R.K. Hargadon, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Susan L. Howe, Asst. Atty. Gen., on brief), Glen Burnie, for appellee.

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Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr. Associate Judge of the Court of Appeals (retired) Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

We are asked on this appeal whether, upon judicial scrutiny, the administrative removal of William Henry Anderson, Jr. from State service was legally justified.

BACKGROUND

Anderson had been an employee of the Department of Correction (DOC) for a decade when he was fired. His entire tenure had been spent in a security environment, the last nine years as a correctional guard in the South Wing Segregation Unit of the Maryland Penitentiary which housed the most violent and uncooperative inmates. He had attained the rank of Sergeant and the classification of Correctional Officer III. He was suspended by the DOC pending charges for his removal for allegedly using excessive force on an inmate, Glen Wooden. Formal charges against him were filed by the Warden of the Maryland Penitentiary and the charges were approved by the Department of Public Safety and Correctional Services. At a preliminary hearing he was barred from the worksite, so his suspension was without pay. He was notified of the charges by the Department of Personnel (DOP).

The DOP was "created as a principal department of the State government" by Md.Code (1957, 1990 Repl.Vol.) Art. 41, § 9-101(a). The head of the Department is the Secretary of Personnel (SOP). Id.

The [SOP] shall be responsible for promulgating rules and regulations for his office. He shall review and shall have the power to approve or disapprove or revise the

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rules and regulations of all of the boards, offices and agencies within the jurisdiction of the [DOP].

Art. 41, § 9-105(b).

The SOP is also the head of the State Merit System. Md.Code (1957, 1988 Repl.Vol.) Art. 64A.

[623 A.2d 200] All employees of the Maryland Penitentiary ... shall be included in the classified service and subject to all of the provisions of [Art. 64A].

Art. 64A, § 2. "It shall be the duty of the [SOP] to carry out the provisions of [Art. 64A], and to make such rules as he deems necessary or proper to that end." Art. 64A, § 11. Art. 64A, § 33(d)(1) provides:

The [SOP] shall, by rule, prescribe what may constitute cause for removal, but no removal shall be allowed because of the religious or political opinions or affiliations of any employee.

As required, the SOP has promulgated rules and regulations. They are published in the Code of Maryland Regulations (COMAR). COMAR 06.01.01.61A permits a classified employee against whom charges have been filed to submit a written appeal to the Office of Administrative Hearings (OAH).

The OAH was established by act of the General Assembly in 1989 and was codified in the Md.Code (1984) as Title 9, subtitle 16 of the State Government article (SG). The OAH is "an independent unit in the Executive Branch of State government," SG § 9-1602, headed by a Chief Administrative Law Judge, SG § 9-1603(a). The SOP may designate an official whose duties and responsibilities are unrelated to the hearing process to conduct a hearing in contested removal cases. Art. 64A, § 36A(c)(3).

The OAH statute must be read in tandem with the contested cases provisions of the Administrative Procedure Act (APA), formerly codified in Md.Code (1957), Art. 41. In 1984 the provisions of the APA were transferred to the new State Government article as Title 10, subtitle 2, in revised language but without substantive change. In 1989 the

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APA was amended to accommodate the provisions of the OAH statute. An agency may "delegate to the [OAH] the authority that the agency ... has to hear particular contested cases," SG § 10-207(a)(1), and "may delegate to [the OAH] the authority to issue the final administrative decision of the agency in a contested case," SG § 10-207(a)(2). Section 10-207(b) spells out the duties of the OAH. It shall:

(1) conduct the hearing; and

(2) submit in writing to the parties involved in the administrative action ...:

(i) proposed findings of fact and proposed conclusions of law; or

(ii) if the agency has delegated the authority to issue a final decision to the [OAH], final findings of fact and conclusions of law.

The Chief Administrative Law Judge may designate an Administrative Law Judge (ALJ) "to conduct hearings in contested cases." SG § 9-1604(a)(4). "In any contested case conducted by an [ALJ], the [ALJ] may"

(1) authorize the issuance of subpoenas for witnesses;

(2) administer oaths;

(3) examine an individual under oath; and

(4) compel the production of documents or other tangible things.

SG § 9-1605(c). Inasmuch as an agency may delegate to the OAH "the authority that the agency ... has to hear particular contested cases," the ALJ is told by the APA through authority granted an agency how the hearing is to be conducted. SG §§ 10-208 and 10-209 speak with particularity of the evidence which may be offered and considered. Translating the authority of the agency to the ALJ, SG § 10-210 dictates that the ALJ shall make a record that includes:

(1) all motions and pleadings;

(2) all documentary evidence that the agency receives;

(3) a statement of each fact of which the agency has taken official notice;

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(4) any staff memorandum submitted to an individual who is involved in the decision making process of the contested case by an official or employee of the agency who is not authorized to participate in the decision making process;

(5) each question;

(6) each offer of proof;

(7) each objection and the ruling on the objection;

(8) each finding of fact or conclusion of law proposed by:

[623 A.2d 201] (i) a party; or

(ii) a hearing officer;

(9) each exception to a finding or conclusion proposed by a hearing officer; and

(10) each intermediate proposed and final ruling by or for the agency, including each report or opinion issued in connection with the ruling.

Unless the agency has authorized the ALJ to make a final decision, the ALJ may only propose a decision which is subject to review by the agency which then renders the final decision. "The finding and decision of the [SOP] ... shall be final, and shall be certified to the appointing authority and shall forthwith be enforced by such authority." Md.Code, Art. 64A, § 33(c). SG § 10-214(a) requires that "[a] final decision or order in a contested case that is adverse to a party shall be in writing or stated on the record." Subsection (b) concerns the contents of the decision. In relevant part, it provides:

(1) A final decision in a contested case shall contain separate statements of:

(i) the findings of fact; and

(ii) the conclusions of law.

(2) If the findings of fact are stated in statutory language, the final decision shall state concisely and explicitly the facts that support the findings.

In the case before us, the SOP as the head of the DOP delegated to the OAH only the authority to conduct the hearing on the charges and to propose a decision. The ALJ

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assigned to conduct the hearing proposed that Anderson be reinstated to State service. The Penitentiary filed exceptions to the proposed decision, and the SOP appointed a designee to conduct a hearing to review the proposed decision of the ALJ. The designee renounced the decision of the ALJ. She ordered that Anderson be separated from state service. Anderson appealed the order to the Circuit Court for Baltimore City as authorized by SG § 10-215. The court affirmed the order of the designee for the SOP. See SG § 10-215(g)(2). Anderson looked to Court of Special Appeals pursuant to § 10-216(b). See Md.Rule B2. We ordered the issuance of a writ of certiorari on our own motion before decision by the intermediate appellate court.

Thus it is that the case has wended its way to this Court through the maze of administrative proceedings for the contested removal of a classified employee from State service. There has been complete compliance with the procedural particularities of the gaggle of statutes, rules and regulations; there is no claim of a procedural irregularity. So what is before us is the propriety of the affirmance by the Circuit Court for Baltimore City of the final order of the SOP which cost Anderson his job.

THE CHARGES

Md.Code, Art. 64A, § 33(b)(2)(i) commands:

No employee who has completed his probation may be permanently removed from the classified service except for cause, upon written charges and after an opportunity to be heard in his own defense.

The Division of Correction (DOC) was established by § 4-105(a) of Art. 41 of the Maryland Code as a part of the Department of Public Safety and Correctional Services. Md.Code (1957, 1992 Repl.Vol., 1992 Cum Supp.), Art. 27, § 673 creates the office of the Commissioner of Correction (COC). The COC "is in sole and active charge of the [DOC] and of its several institutions and agencies, subject only to his responsibility to the Secretary of Public Safety and

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Correctional Services and to the Governor." Art. 27, § 674. The COC is empowered to adopt and promulgate "reasonable rules and regulations" including those providing for

the duties, discipline and conduct of officers and employees of the several institutions and agencies [in the DOC].

Art. 27, § 676. The Maryland Penitentiary is one of those institutions.

[623 A.2d 202] Anderson was charged with violating a rule of COMAR, four regulations of the DOC (DCRs), ¹ and a Post Order of the Maryland...