Comptroller of Treasury v. Myers
| Decision Date | 10 May 1984 |
| Docket Number | No. 1040,1040 |
| Parties | COMPTROLLER OF the TREASURY v. Muriel T. MYERS, Successor of Interest of Thomas A. Myers, Jr. Sept. Term 1983. |
| Court | Court of Special Appeals of Maryland |
James F. Truitt, Jr., Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Gerald Langbaum, Asst. Atty. Gen., on the brief, for appellant.
Charles F. Morgan, Baltimore, for appellee.
Argued before WILNER, WEANT and BISHOP, JJ.
For the second time, the Comptroller of the Treasury complains to us that he has been improperly thwarted in his effort to discharge Thomas A. Myers, Jr. from employment. On the first occasion, he was thwarted by the Secretary of Personnel who, though finding a violation of Personnel Rule .47E (COMAR 06.01.01.47E: That the employee has been wantonly offensive in his conduct toward fellow employees, wards of the State, or the public), nevertheless, in an order dated April 19, 1979, imposed a sanction of only thirty days suspension. When the Baltimore City Court (now the Circuit Court for Baltimore City) affirmed that order, the Comptroller appealed.
In an unreported opinion, we remanded the case for further proceedings. Comptroller of the Treasury v. Myers, S.T.1979, No. 1316, Op. filed June 12, 1980. The crux of the charges filed by the Comptroller was that Myers had attempted surreptitiously to tape record an interview with his supervisor regarding a possible promotion. Myers conceded that he had in fact commenced to record the conversation without the supervisor's knowledge or consent and acknowledged that what he had done was wrong. When the supervisor heard a "beeping" sound coming from the recorder and discovered what he was doing, Myers stopped the recording, erased what had already been recorded, and apologized. In discussing the event and its consequences, the Secretary of Personnel expressed the belief that, whatever else the attempted taping might be, it was not illegal, at least not until a court determined it so to be. He balanced what he found was "the single admittedly wrong act" against Myers' "many years of unblemished State service," and decided that dismissal was too harsh a penalty.
We disagreed with the Secretary's determination that the taping was not illegal. We concluded that the taping did indeed constitute a criminal violation of the State wiretap law (Md.Code Ann.Cts. & Jud.Pr. art., § 10-402(a)(1)), and that it could be regarded as illegal even without adjudication in a criminal action. We therefore remanded the case so that the Secretary, in light of that conclusion, might reconsider his decision as to the appropriate sanction. We noted in our opinion that Myers had not raised the question of whether the Comptroller had standing to appeal either the decision of the Secretary of Personnel or the trial court judgment affirming it, and we therefore did not address that issue.
The case returned to the Secretary of Personnel. On November 6, 1980, the Secretary approved an order prepared by his Employee Relations Arbitrator removing Myers from State service effective the next day, November 7, 1980. Though acknowledging that Myers had in fact been reinstated following the April, 1979 order, and that he had done nothing offensive since then, the Secretary nevertheless concluded that the commission of an act, stemming from Myers' employment, that we had held to be unlawful "severely compromises the employer-employee relationship particularly in so sensitive an office as the Comptroller of the Treasury and this compels the removal of the offender."
Myers appealed, but on January 3, 1981, before the court was able to consider the appeal, he died. That, of course, resolved with absolute finality the question of his continued employment, but it did not render the case entirely moot. Under the State Employees' Retirement System law, Md.Code Ann. art. 73B, § 11(9), when a "member in service" dies, his estate or his spouse is entitled to a certain death benefit. If the Secretary's decision removing Myers from State service as of November 7, 1980, were upheld, Myers' estate or spouse would not be entitled to that benefit, because he would not have been a "member in service" at the time of his death. If, on the other hand, that order were reversed, one or the other of those beneficiaries might be entitled to the benefit. Thus, Myers' Personal Representative was substituted as the appellant and the case proceeded in the Baltimore City Court.
Both parties agreed that the Secretary's decision was procedurally deficient. Md.Code Ann. art. 41, § 253, which is part of the Administrative Procedure Act, provides that when, in a contested case, the official who is to render the final decision has not heard the evidence, the decision, if adverse to a party, may not be made until a "proposal for decision," including findings of fact and conclusions of law, has been served upon the parties and the parties are afforded an opportunity to file exceptions and present argument to the person or persons who are to render the final decision. Apparently, that was not done. The Employee Relations Arbitrator heard the evidence and prepared findings, conclusions, and a decision, and the Secretary approved the same without the required notice and opportunity to except and present argument. 1 Accordingly, the court, on March 20, 1981, vacated the November, 1980 order and remanded the matter to the Secretary "for such further proceedings as are proper."
When the case returned to the Secretary, it was referred again to the Employee Relations Arbitrator, who, on May 14, 1981, issued a "Proposal For Decision," containing certain "proposed findings of fact" and "proposed conclusions of law," all leading to a reaffirmation of the 1980 determination that Myers be removed effective November 7, 1980. On May 28, 1981, in a letter to the Arbitrator, counsel for Myers 2 noted exceptions to the Proposal and requested argument before the Director of the Division of Employer-Employee Relations, Charles R. Hennick.
Argument was held before Mr. Hennick on June 29, 1981. Pursuant to leave granted by Mr. Hennick, the Comptroller filed a post-hearing memorandum on September 17, 1981, and Myers filed a reply memorandum on October 6, 1981. Further oral argument was heard November 4, 1981. Nothing more happened until March 9, 1982--125 days later--at which time Mr. Hennick issued an "Order Of The Director" permanently removing Myers from State service as of November 7, 1980. In this order, Mr. Hennick adopted "all proposed findings of fact and conclusions of law as final findings of fact and conclusions of law"; he also discussed and rejected certain additional legal arguments raised in Myers' exceptions. The order was not, however, submitted to the Secretary of Personnel for his review, and was never officially considered or approved by him.
On April 8, 1982, Myers filed an appeal to the Baltimore City Court "from the order of the Director entered on March 9, 1982...." In his Petition of Appeal, among many other complaints, Myers claimed that the order of the Director was (1) in violation of Md.Code Ann. art. 64A, § 33 and COMAR 06.01.01.61C, which require the Secretary to make the final decision to remove a classified employee from State service, (2) in contravention of our decision of June, 1980, remanding the case for the Secretary to reconsider his April, 1979 order, and (3) in violation of art. 64A, § 33 and COMAR 06.01.01.61C in that the decision was rendered more than forty-five days after the final proceedings before the Director on November 4, 1981.
The court, by order dated June 14, 1983, agreed with the first of these claims, concluding that "the clear legislative intent [in § 33] is that the Secretary of Personnel be personally involved in the removal decision" and "[h]ad the Secretary reviewed the exceptions taken by [Myers] to the Proposal for Decision, he may have decided to modify his November 6, 1980, decision." Accordingly, the court vacated the order of the Director and remanded the case to the Secretary of Personnel "for further proceedings consistent with this Opinion." We presume by that the court meant for the Secretary personally to review the findings and conclusions of the Director.
On July 12, 1983, an appeal was noted "on behalf of the State of Maryland, Comptroller of the Treasury, Appellant." The order for appeal was signed by counsel to the Department of Personnel, counsel to the Comptroller, and Chief General Counsel in the Attorney General's Office.
Myers' initial response to this appeal was a motion to dismiss on the basis that neither the Secretary of Personnel nor the Comptroller has standing to appeal the judgment of the Circuit Court.
Although, as we have noted, counsel to the Department of Personnel signed the order for appeal (and, curiously, the State's answer to the motion to dismiss), it does not appear that the Secretary or the Department of Personnel actually regards himself or itself as an appellant. Indeed, in the answer to the motion, it is conceded that, since it was acting in a quasi-judicial capacity, "the Department would lack standing necessary to challenge the Circuit Court's decision in this case." The Secretary has no greater standing in this regard than the Department, but, to the extent that there may be any doubt as to their status, we shall resolve that doubt by concluding that neither the Secretary nor the Department has standing to bring or to join this appeal.
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