Dept. of Taxation v. Reier
| Decision Date | 03 March 2006 |
| Docket Number | No. 273, September Term, 2005.,273, September Term, 2005. |
| Citation | 167 Md. App. 559,893 A.2d 1195 |
| Parties | STATE DEPARTMENT OF ASSESSMENTS AND TAXATION v. David REIER. |
| Court | Court of Special Appeals of Maryland |
David M. Lyon (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellant.
Hillary G. Davis (Davis & Associates Law Office, PA, on the brief), Towson, for appellee.
Panel: DAVIS, DEBORAH S. EYLER and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.
The State Department of Assessments and Taxation (SDAT) appeals from an Opinion of the Circuit Court for Baltimore County. SDAT assigns error to the decision of the Office of Administrative Hearings (OAH) to rescind SDAT's termination, and reinstate the employment of David Reier as an assessor for SDAT. also challenges the court's decision to award Reier reinstatement of his employee benefits and the OAH decision to award Reier full back pay. SDAT presents three questions for our review, which we rephrase as follows:
1. Did OAH improperly re-decide previously determined facts, upon remand from this Court, when it answered two questions under the new statutory interpretation of State Personnel and Pensions Article § 11-106?
2. If new fact-finding was required, did OAH abuse its discretion when it refused to accept and review evidence addressing the circumstances surrounding an exhibit, when that very exhibit was now being highlighted by Reier in a new way and was relied upon by OAH as the primary point of reference when re-deciding the sequence of events?
3. Did the circuit court improperly reverse the decision of OAH when it held that the statutory remedy in § 11-110(d)(1)(iii) included all lost employee benefits?
We answer the first and second questions in the negative, and the third question in the affirmative. We shall therefore affirm OAH's decision, and reverse the decision of the lower court.
As this appeal represents the second occasion for this Court to review arguments in this case, we liberally quote from the background facts set forth in our review of the first appeal, including footnotes,1 reproduced from the unreported opinion of Reier v. State Dep't. of Assessment and Taxation, No. 2456, September Term 2001, slip op. at 2-25 (filed December 19, 2002):
On October 7, 1996, SDAT terminated Reier from his position as a property assessor for Carroll County. Reier appealed his termination to the Director of SDAT, who affirmed the termination. Reier then appealed to the Office of Administrative Hearings ("OAH"), and the matter was assigned to Administrative Law Judge ("ALJ") Gayle Hafner. ALJ Hafner held hearings on April 17 and May 7 of 1997 to determine the legality of Reier's termination. She filed a decision on June 23, 1997, in which she upheld appellant's termination. Reier then filed a petition for judicial review in the Circuit Court for Baltimore County.
Prior to hearing the matter, the trial judge learned that we would interpret [State Personnel and Pension] section 11-106(b)'s thirty-day time limit in the Geiger case, which was then pending before this Court. The trial judge postponed the hearing of the matter pending our decision in that case. After we decided the Geiger case, Western Correctional Institution v. Geiger, 130 Md. App. 562 (2000), the circuit court heard arguments and determined that the administrative record was insufficient to make a proper decision. He remanded the case to the agency for further findings of fact as to "whether the investigation was carried out with reasonable diligence." This remand was necessary due to the test we enunciated in Geiger. On remand, another ALJ (Spencer) heard additional evidence and concluded that Reier had not met his burden to establish a prima facia [sic] case that SDAT had violated section 11-106(b)'s time requirement. On December 31, 2000, the circuit court filed a memorandum opinion and order, affirming the original administrative decision, which had upheld Reier's termination. This appeal followed.
II. EVIDENCE PRESENTED AT THE TWO ALJ HEARINGS
David Reier began his employment with SDAT in March of 1990 as an Assessor I. In the next three years, he advanced to the position of Assessor III. He was reassigned from SDAT's Baltimore City office to the Carroll County office in 1993. Reier worked at SDAT's Carroll County office from 1993 until his termination in October of 1996.
The Carroll County SDAT office is charged, inter alia, with performing physical inspections of each of the county's approximately 48,000 residential properties. As a part of this process, the office receives copies of residential building permits involving improvements. Residents are required to bring their building permits to the SDAT office where the clerical staff enters the information into the data system. Office personnel then file the building permits in a file cabinet in a small "permit" room in the office. The permits remain filed until an assessor inspects the property.
Reier's job duties included performing field inspections and assessing residential properties, reviewing building permits for each property, reviewing and noting sales data concerning properties to be assessed, conducting field interviews with adults residing at the properties, making comparison between his physical review and the pre-existing assessment, noting any changes on the field card kept for each property, and completing all associated paperwork. Assessors also are required to be available in the office once a week to answer questions from the public.
SDAT management periodically assigns the assessors a list of properties to be inspected. After receiving their assignments, assessors are required to pull their properties' field cards and check the building permit file to see if any building permits have been submitted for the properties since the date of the last inspection. If a building permit has been submitted for an assigned property, the assessor is required to attach it to the property field card, and bring both the field card and permit along when an inspection of the property is made. The purpose of this requirement is to aid the inspectors in gaining knowledge of all assessable changes made to the properties since the previous inspection.
At the time of inspection of the properties, assessors are required to note on the building permits (1) what progress, if any, has been made towards completion of the improvements, (2) the date on which they performed the inspections, and (3) their assessor numbers. If the assessor finds that the improvement has been completed, they are required to mark the permit as "assessed," perform the assessment, and return the marked permit to a specific individual in the office. If the assessor finds the improvement has not been completed, he or she must note that fact on the permit and then re-file it in the filing cabinet from which it was obtained. This cabinet is called the un-assessed building permit filing cabinet. In addition, after completing each inspection, the assessor must mark the field card so that it reflects any changes made to the property, the date of the most recent assessment, and the assessor's number. The assessor then values the properties according to the physical characteristics recorded on the field cards.
At all times here relevant, Larry C. White was the Supervisor of Assessments for Carroll County. The Assistant Supervisor of Assessments for Carroll County was William F. Norris, Jr. Mr. Norris was Reier's direct supervisor.
On July 24, 1996, Messrs. White and Norris called a meeting of all the assessors in the Carroll County office. At that meeting, they distributed a memorandum entitled "Department Guidelines for Job Performance," which outlined the proper methods for performing field inspections. This memorandum, among other things, reminded the assessors that they should make notes on the building permits at the time they inspect the properties.
A few weeks later, in early August of 1996, Mr. Norris found a group of eight to ten building permits stacked on a cabinet in the permit room. There were no notations on these permits.
At the April 1997 hearing before ALJ Hafner, Mr. Norris testified as to this discovery:
I found [the permits] in a stack on a corner of the cabinet, and I wondered why they were there. There was no notation on them that they had been assessed or visited or anything. From checking further I found that they were accounts which had been assigned to Mr. Reier, and that's why we checked those. They should not have been there. They should have either been back in the file with a notation that work was underway, or they should have been assessed and put in the assessed file.
Q. So you found the permits in a pile?
A. Um-hum. Stacked.
Q. And when was this?
A. I think it was in the first part of August.2
* * *
Q. ... Had you started reviewing [Mr. Reier's] work at the time that you found that pile?
A. No.
Q. Okay. What did you do with the permits?
A. I went out and checked them in the field to see if they were in fact any degree of completion, not completion, not started or whatever.
Q. Why didn't you just give the pile to Mr. Reier, since they were his accounts?
A. I could have done that. This is a good way to check to see if anybody was there. It's a quality control check.
Q. Well, how do you know if he had been there?
A. Because I pulled the card and the card said May of 1996. So that indicates to me that the—it said on the field card with his number that he was there in May of 1996 or whenever. That indicated to me that he had already been there, but yet there was no indication on these permits that anybody was there.
Q. How do you know the permits had been available or pulled prior to his visit?
A. They were in the file. Some of them had been in the office since 1993. It's the assessor's job to pull the permits when he gets these cards.
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Reier v. Dept. of Assessments
...reinstatement, but concluded that back pay was limited to wages and did not include benefits. Dep't of Taxation v. Reier, 167 Md.App. 559, 597, 893 A.2d 1195, 1218 (2006) (Reier II). We are asked, at this point, on cross-petitions for certiorari, to resolve two questions. We are called upon......
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