Curry v. Department of Public Safety and Correctional Services

• Decision Date: 01 September 1994
• Docket Number: Nos. 360,553,s. 360
• Citation: 651 A.2d 390,102 Md.App. 620
• Parties: Herman L. CURRY v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. Paul O. FLAGG. ,
• Court: Court of Special Appeals of Maryland

Page 620

102 Md.App. 620

651 A.2d 390

Herman L. CURRY v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES.

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. Paul O. FLAGG.

Nos. 360, 553, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Dec. 30, 1994.

Thomas P. Lydon, Towson, for appellant, Curry.

Susan L. Howe, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellant Dept. of Public Safety and Correctional Services.

Thomas P. Lydon (Law Offices of J. Edward Davis, on the brief), Towson, for appellee Flagg and appellant Curry.

Alan D. Eason and Susan L. Howe, Asst. Attys. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee Dept. of Public Safety and Correctional Services.

Argued before BISHOP, WENNER and DAVIS, JJ.

DAVIS, Judge.

We consider in these two appeals the issue of whether the State may impose a disciplinary suspension upon an employee in a sensitive classification for an off-duty alcohol-related offense for which he received probation before judgment.

Herman L. Curry, appellant in Appeal No. 360 and Paul O. Flagg, appellee in Appeal No. 553, are corrections officers employed by the Department of Public Safety and Correctional Services (Department). Curry and Flagg were separately arrested for driving under the influence of alcohol. Curry was found guilty by the Circuit Court for Anne Arundel County; Flagg was found guilty by the Circuit Court for Washington County; and both were granted probation before judgment. ¹ Each employee was suspended from work without pay for five days on the basis of Division of Correction Directive (DCD) 50-2. Directive 50-2 contains the Division of Correction's internal disciplinary rules and procedures and allows the Department to discipline employees who are convicted of alcohol-related offenses. The directive defines "conviction" to include situations where the employee is granted probation before judgment. The employees appealed their suspensions to the Office of Administrative Hearings, and two administrative law judges (ALJs) recommended that the Secretary of Personnel (Secretary) uphold the suspensions. After hearings before the Secretary's designees, the Secretary adopted the ALJs' findings and conclusions of law and sustained both suspensions. The Circuit Court for Anne Arundel County affirmed Curry's suspension, from which Curry appeals. The Circuit Court for Washington County reversed Flagg's suspension, from which the Department appeals.

Appellant Curry asks us to determine the following question:

In light of Md.Ann.Code Art. 27, Sec. 641, can the Division of Correction legally impose a five (5) day suspension under its regulations upon a correctional officer when the District Court has granted that officer Probation Before Judgment for an alcohol related offense which occurred off the work place?

The Department in Appeal No. 553 phrases the issue as follows:

Did the lower court err in holding that a Division of Correction regulation is inconsistent with and in defiance of legislative intent and therefore invalid because it includes probation before judgment in its definition of conviction?

FACTS

Appeal No. 360

Appellant Herman Curry is a corrections officer at the Maryland Correctional Institution in Jessup, Maryland. On May 30, 1992, Curry was arrested and charged with driving under the influence of alcohol. Curry was off duty at the time of the incident. On September 14, 1992, the Baltimore County District Court found Curry guilty of driving under the influence and granted him probation before judgment. The following day, Curry's superiors at the Maryland Correctional Institution suspended him for five days without pay.

The Institution justified the suspension on the basis of DCD 50-2(III)(F)(2)(b). The directive provides, in pertinent part:

An employee in a sensitive class or position who is convicted for any alcohol related offense not at the work place shall:

(1) On the first conviction be suspended for a minimum of five (5) working days, be referred to the E[mployee] A[ssistance] P[rogram], be required to participate successfully in a treatment program designated by the EAP, and in addition, be subject to other appropriate disciplinary actions, up to and including termination from State service.

Section I of the directive defines conviction as follows:

"Conviction" means a judgment of conviction, whether entered upon a finding of guilt or acceptance of a plea of nolo contendere and the imposition of a sentence or the staying of the entry of judgment and the placing of the defendant on probation after a finding of guilty or the acceptance of a plea of nolo contendere.

(emphasis added). The definition of "conviction" in DCD 50-2 parallels a governor's executive order establishing the State Substance Abuse Policy.

The parties did not dispute that Curry qualifies as an employee in a sensitive class or position, ² or that he was arrested for an alcohol-related offense not at the work place. Curry argues that DCD 50-2 violates Article 27, § 641 of the Maryland Code. Section 641 provides:

(a) Probation after plea or finding of guilt; terms and conditions; waiver of right to appeal from judgment of guilt.--(1)(i)1. Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court ... may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate....

. . . . .

(c) Fulfillment of terms of probation.--Upon fulfillment of the terms and conditions of probation, the court shall discharge the person from probation.... Discharge of a person under this section shall be without judgment of conviction and is not a conviction for purposes of any disqualification or disability imposed by law because of conviction of crime.

MD.ANN.CODE art. 27, § 641 (1992 Repl.Vol.). Curry contends that § 641 prohibits the Department from imposing disciplinary sanctions on him by defining "conviction" to include a crime for which he received probation before judgment. Curry also asserts that the suspension imposed under DCD 50-2 was a violation of the governor's executive order.

Appeal No. 553

Appellant Paul O. Flagg is a corrections officer at the Maryland Correctional Training Center in Hagerstown, Maryland. On June 7, 1992, Flagg was arrested and charged with driving under the influence of alcohol. Flagg was off duty at the time of the incident. On August 5, 1992, the District Court for Washington County found Flagg guilty of driving under the influence and granted him probation before judgment. The following day, Flagg's superiors suspended him for five days without pay.

The Department justified the suspension on the basis of DCD 50-2(III)(F)(2)(b). As with Curry, it was undisputed that Flagg is an employee in a sensitive class or position and that he was arrested for an alcohol-related offense not at the work place. Like Curry, Flagg challenged his suspension on the ground that DCD 50-2 violates Article 27, § 641 of the Maryland Code. Although the Secretary of Personnel upheld the suspension, the Circuit Court for Washington County held that DCD 50-2 was "in direct contradiction of" § 641 and reversed the Secretary's order. The court reasoned that allowing Flagg to be suspended based on a probation before judgment would nullify the protection that § 641 affords to persons who receive probation before judgment.

LEGAL ANALYSIS

We review an administrative agency's decision under the same standard as the circuit court. In each case, the court must determine whether the agency's decision is "in accordance with the law or whether it is arbitrary, illegal, and capricious." Moseman v. County Council, 99 Md.App. 258, 262, 636 A.2d 499 (1994). The court will not overturn the agency's factual findings or its application of law to facts if the decision is supported by substantial evidence considered in light of the record taken as a whole. Mortimer v. Howard Research and Dev. Corp., 83 Md.App. 432, 441, 575 A.2d 750, cert. denied 321 Md. 164, 582 A.2d 499 (1990). When reviewing issues of law, on the other hand, the court's review is expansive and it may substitute its judgment for that of the agency. Columbia Road Citizens' Ass'n v. Montgomery County, 98 Md.App. 695, 698, 635 A.2d 30 (1994); Gray v. Anne Arundel County, 73 Md.App. 301, 309, 533 A.2d 1325 (1987). Our role is to be certain that the circuit court did not err in its review. Moseman, 99 Md.App. at 262, 636 A.2d 499.

I

Both Curry and Flagg argue that the Department may not impose disciplinary suspensions on them by defining "conviction" to include a crime for which they received probation before judgment. According to the employees, such a definition would impermissibly use a finding of guilt that did not result in a true "conviction" to impose a legal disability or disqualification in direct contravention of § 641(c).

Although both circuit courts focused on the term "conviction," ³ the real issue is whether a state employer's disciplinary suspension of an employee falls within the scope of "a disqualification or disability imposed by law." This is an issue of statutory interpretation. Such an issue is a question of law; therefore, our review is expansive. Gray, 73 Md.App. at 309, 533 A.2d 1325.

The cardinal rule of statutory interpretation is to ascertain and give effect to the legislative intent. Rose v. Fox Pool Corp., 335 Md. 351, 358, 643 A.2d 906 (1994). The primary source of legislative intent is the language of the statute itself. Gray, 73 Md.App. at 309, 533 A.2d 1325. Where the language is unambiguous, we must accord the language its plain and ordinary meaning in light of the statute's objective. Chesapeake Indus. Leasing Co. v. Comptroller of the Treas., 331 Md. 428, 440, 628 A.2d 234 (1993). All relevant parts of the statute should be read together and, to the extent...