Fisher v. E. Corr. Inst., 90

• Decision Date: 26 April 2012
• Docket Number: Sept. Term, 2011.,No. 90,90
• Citation: 43 A.3d 338,425 Md. 699
• Parties: Vanessa FISHER v. EASTERN CORRECTIONAL INSTITUTION, Department of Public Safety & Correctional Services.
• Court: Maryland Court of Appeals

425 Md. 699

43 A.3d 338

Vanessa FISHER

v.EASTERN CORRECTIONAL INSTITUTION, Department of Public Safety & Correctional Services.

No. 90, Sept. Term, 2011.

Court of Appeals of Maryland.

April 26, 2012.

Robin R. Cockey (Cockey, Brennan & Maloney, P.C., Salisbury, MD), on brief, for Petitioner.

Lisa O. Arnquist, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, ADKINS, BARBERA and McDONALD, JJ.

BARBERA, J.

We are called upon in this case to interpret several provisions of the State Personnel Management System, codified in Title 11, Subtitle 1 of the Maryland Code (1993, 2009 Repl.Vol.), State Personnel and Pensions Article.¹ In particular, we must determine the interplay of three provisions, §§ 11–108, 11–109, and 11–110.²Section 11–109(c)(1) provides that, within 15 days of receiving discipline, “[a]n employee or an employee's representative may file with the head of the principal unit a written appeal of a disciplinary action that ... the employee believes would warrant rescinding the disciplinary action.” Section 11–109(e)(2) in turn provides that, “[w]ithin [425 Md. 703]15 days after receiving an appeal, the head of the principal unit shall issue to the employee a written decision that addresses each point raised in the appeal.” Section 11–108(b)(2), though, states that “[a] failure to decide an appeal in accordance with this subtitle is considered a denial from which an appeal may be made.” Section 11–110(a)(1) provides that, “[w]ithin 10 days after receiving a decision under § 11–109 of this subtitle, an employee or an employee's representative may appeal the decision in writing to the Secretary [of the Department of Budget and Management (DBM) ].”

The case at bar requires us to ascertain how these provisions are to be implementedwhen, as here, a terminated employee notes a timely appeal to the head of the principal unit and the head of the principal unit fails within fifteen days thereafter to issue a written decision. Specifically, we must decide whether an employee in that circumstance must assume at the end of the fifteen-day period that the appeal has been denied and take any further appeal within ten days thereafter. The Administrative Law Judge (ALJ) read the pertinent provisions as requiring any further appeal to be taken within 10 days of a deemed denial. The Circuit Court for Somerset County and Court of Special Appeals agreed. So do we.

I.

In November 2008, Vanessa Fisher, Petitioner, was in the employ of the Eastern Correctional Institution, Respondent. Petitioner was notified in December 2008 that her employment was terminated.³ Petitioner submitted a timely written appeal of her termination to the head of her principal unit, Gary D. Maynard, Secretary of the Department of Public Safety and Correctional Services (DPSCS).⁴ Petitioner's filing consisted of a letter sent by Petitioner's counsel to the Secretary that briefly described the factual circumstances of the incident leading to termination of Petitioner's employment and summarily outlined the argument against termination. After requesting relief in the form of reinstatement and back pay, counsel's letter concluded: “I await your response.”

On February 5, 2009, having received no response, Petitioner, through counsel, sent a second letter to Secretary Maynard inquiring into “the status of this proceeding.” Petitioner's counsel wrote again on July 29, 2009, noting Secretary Maynard's lack of response and requesting a decision at the Secretary's “earliest convenience.” Counsel added: “If I have not received your decision by August 7, 2009, I shall assume you have decided to uphold [Petitioner's] termination, albeit without written opinion, and file an appeal on her behalf to the Office of Administrative Hearings.”

On August 20, 2009, Petitioner, through counsel, sent a letter to the Secretary of DBM. In it, Petitioner stated that she had assumed from Secretary Maynard's silence that “her appeal has been denied pursuant to ... § 11–108(b)(2),” and Petitioner “now seeks to have this matter appealed to the Secretary of [DBM].” After attempting to resolve the matter through the settlement conference process, the Secretary of DBM forwarded the appeal to the Office of Administrative Hearings.

Respondent filed a motion to dismiss, or, in the alternative, a motion for summary decision. Respondent asserted that the appeal to DBM was untimely because Petitioner did not file it “[w]ithin 10 days after receiving a decision” from Secretary Maynard, as required by § 11–110(a)(1). Citingthe language of § 11–108(b)(2) that “[a] failure to decide an appeal in accordance with this subtitle is considered a denial from which an appeal may be made,” Respondent argued that Secretary Maynard's failure to issue a decision within 15 days was a denial of Petitioner's appeal and, because Petitioner transmitted her appeal approximately 230 days after it was “deemed denied” by operation of law, her appeal was untimely under § 11–110(a)' s 10–day limitation, necessitating dismissal.

Petitioner offered several arguments in response. She first argued that § 11–109(e)(2) mandates that the head of a principal unit “shall” issue a decision, making issuance of a decision a mandatory duty. In Petitioner's view, Secretary Maynard's fulfillment of that mandatory decision-making duty was a prerequisite to her taking a further appeal to the Secretary of DBM. Petitioner relied for that argument on § 11–110(a)(1), which provides that an appeal may be filed only “[w]ithin 10 days after receiving a decision under § 11–109 of this subtitle.” (Emphasis added.) Petitioner further argued that her appeal to the Secretary of DBM was timely because, for eight months after taking her appeal to Secretary Maynard, she had corresponded repeatedly with him to resolve the appeal, in accordance with the declaration in § 11–108(d) that each party “shall make every effort to resolve an appeal at the lowest level possible.” Petitioner maintained that only when she deemed her efforts at resolution to have failed (having received no response from Secretary Maynard for 230 days) did she take a further appeal to the Secretary of DBM.

The ALJ disagreed with Petitioner's interpretation of the statutory provisions. The ALJ noted in the order dismissing the appeal that, under the plain language of § 11–108(b)(2), “[t]he consequence of the head of the principal department's failure to obey the ‘shall’ in [§ 11–109(e)(2) ] ... is that an employee can proceed with the appeal process without having to wait for a decision that might never come.” The ALJ further noted that Petitioner spent a fruitless eight months attempting to resolve her appeal at Secretary Maynard's level because “any decision [by Secretary Maynard] rendered after the fifteen-day period [of § 11–109(e)(2) ] would have been a legal nullity.” The ALJ added that, “if it were ‘mandatory’ for the head of the principal department to actually render a decision, the language of [§ 11–108(b)(2) ] would be rendered superfluous.”

Petitioner filed in the Circuit Court for Somerset County a Petition for Judicial Review. That court affirmed the decision of the ALJ. The Court of Special Appeals later affirmed the judgment of the Circuit Court, holding in an unreported opinion that the court did not err in affirming the ALJ's dismissal of the appeal.

We issued a writ of certiorari, Fisher v. Eastern Correctional Institution, 423 Md. 450, 31 A.3d 919 (2011), to address the following question presented by Petitioner:

Whether the lower court correctly dismissed [Petitioner's] appeal on the grounds that, by allowing the Secretary of her agency additional time to meet his statutory responsibility to decide her appeal, she inadvertently rendered her appeal untimely?

II.

At base, this case is one of statutory construction, the rules for which are well known. We have said time and again that “the paramount object of statutory construction is the ascertainment and effectuation of the real intention of the Legislature.” In re Gloria H., 410 Md. 562, 579–80, 979 A.2d 710, 720 (2009) (quoting W. Correctional Inst. v. Geiger, 371 Md. 125, 140, 807 A.2d 32, 41 (2002)). The process of statutory interpretation begins with the plain language of the statute, where we “read[ ] the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Moore v. State, 424 Md. 118, 127, 34 A.3d 513, 518 (2011) (quoting Ray v. State, 410 Md. 384, 404, 978 A.2d 736, 747–48 (2009)). If the plain language of the statute is clear and unambiguous, the process ends and “no further sleuthing of statutory interpretation is needed.” Breslin v. Powell, 421 Md. 266, 287, 26 A.3d 878, 891 (2011).

When the words of the statute are ambiguous, we resolve the ambiguity using a wider range of interpretive aids, including legislative history, prior case law, statutory purpose and statutory structure. Briggs v. State, 413 Md. 265, 275, 992 A.2d 433, 439 (2010) (quoting Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC, 412 Md. 308, 315, 987 A.2d 48, 52 (2010)). We may also consider the “relative rationality and legal effect of various competing constructions.” Gardner v. State, 420 Md. 1, 9, 20 A.3d 801, 806 (2011) (quoting State v. Johnson, 415 Md. 413, 422, 2 A.3d 368, 373 (2010)). Finally, we are guided by the presumption that “the Legislature intends its enactments to operate together as a consistent and harmonious body of law, such that no part of the statute is rendered meaningless or nugatory.” Smack v. Dep't of Health and Mental Hygiene, 378 Md. 298, 306, 835 A.2d 1175, 1179 (2003) (quoting Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002) (quotation marks and citation omitted)).

The ambiguity that prompts our use of these aids can arise when the words of the section at issue themselves are ...