Hughes v. Moyer
| Decision Date | 24 March 2017 |
| Docket Number | No. 21,Sept. Term,2016,21,Sept. Term,2016 |
| Parties | Laura Lynn HUGHES v. Stephen MOYER, Secretary of Public Safety and Correctional Services |
| Court | Court of Special Appeals of Maryland |
E. Peter Melcavage II (Law Office of E. Peter Melcavage II, Halethorpe, MD; Adam C. Zimmerman, Wase, Wase & Grace, LLC, Lutherville, MD), on brief, for petitioner.
Lisa O. Arnquist, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Towson, MD), on brief, for respondent.
Opinion by McDonald, J.
It is often the task of lawyers and judges to parse the meaning of language—in constitutions, statutes, contracts, documentary exhibits, or testimony. Silence may also have legal significance. This case turns on two instances of silence. In one instance, a statute tells us what it means. In the other, we must decide its significance.
This case arises out of the termination of Petitioner Laura Lynn Hughes from her job with the Department of Public Safety and Correctional Services ("DPSCS"). The personnel law governing an employee like Ms. Hughes requires, among other things, that the agency advise a disciplined employee of the employee's appeal rights. That statute allows a disciplined employee to seek to overturn the discipline through a two-tier administrative appeal process with tight timelines. Under the statute, a failure of an agency official to respond to a first-tier appeal by the statutory deadline is deemed to be a denial of that appeal, thereby allowing the employee to move to the next level of appeal, at which there is an opportunity for a hearing. In other words, silence equals denial.
In Ms. Hughes' case, the agency sent her a notice of termination that informed her of the first tier of the administrative appeal process—an appeal to the Respondent Secretary of DPSCS. However, the notice was silent as to the second tier of the process. Nor did the notice inform her that a failure of the Secretary of DPSCS to respond to her first-tier appeal within the time limit would trigger the time for her to invoke the second tier and the opportunity for a hearing.
Ms. Hughes followed the directions for invoking the first tier of the administrative appeal process. The Secretary of DPSCS failed to respond within the statutory time limit, thus denying her first-tier appeal. Apparently unaware that this silent denial triggered the limited time for her to invoke a second-tier appeal, Ms. Hughes did nothing before the deadline passed. When she belatedly attempted to pursue her administrative appeal and the agency did not respond, she commenced this action in the Circuit Court for Baltimore County.
We hold that, in order to discharge its responsibility to provide a disciplined employee with notice of the employee's administrative appeal rights, an agency cannot remain silent as the second tier appeal, but must advise the employee of the possibility of a second-tier appeal and alert the employee as to the significance of silence in response to a first-tier appeal.
To place the issues in this case in context, we first describe the key provisions of the statute that governs discipline of certain employees of the executive branch of State Government, and a recent decision of this Court construing that statute.
Disciplinary actions concerning employees in the State Personnel Management System are governed by Maryland Code, State Personnel and Pensions Article ("SPP"), § 11–101 et seq. That statute sets forth the various types of disciplinary action that may be taken against an employee—e.g. , written reprimand, forfeiture of leave, suspension, demotion, and termination—and specifies certain types of misconduct that result in automatic termination of employment. SPP §§ 11–104, 11–105, 11–107. The statute also sets forth procedures and time constraints for agencies to investigate alleged misconduct, impose discipline, and consider administrative appeals of disciplinary action. SPP §§ 11–106, 11–108 through 11–113.
If an agency decides to impose discipline, the appropriate agency official—the "appointing authority" in the parlance of the statute1 —is to give the employee "written notice of the disciplinary action ... and the employee's appeal rights."
SPP § 11–106(a)(5). With certain exceptions not pertinent here, an employee in the skilled service or professional service2 who is the subject of disciplinary action may file a written appeal of that action with the "head of the principal unit"3 of the agency within 15 days after the employee receives notice of the disciplinary action. SPP § 11–109(c). The statute provides that, within 15 days after receiving the appeal, the head of the principal unit is to issue a written decision that either upholds, modifies, or rescinds the disciplinary action. SPP § 11– 109(e). The employee has a further right to appeal that decision to the Secretary of Budget and Management ("Secretary of DBM") if the employee acts within 10 days of receiving the decision of the head of the principal unit. SPP § 11–110. The Secretary of DBM may in turn refer the matter to the Office of Administrative Hearings ("OAH") for a hearing and final administrative decision. Id. The statute encourages parties to resolve any appeals "at the lowest level possible." SPP § 11–108(d). The statute also authorizes the parties to extend or waive time limits by agreement. SPP § 11–108(c).
The statute contains default provisions that specify the consequences if the employee or agency does not act within the specified deadlines or any agreed-upon extension. An employee who fails to appeal a decision in accordance with the statute is deemed to have accepted it. SPP § 11–108(b)(1). A failure by an agency to decide an appeal in accordance with the statute is deemed to be a denial from which a further appeal may be made. SPP § 11–108(b)(2).
This Court recently discussed the interplay of the statutory provisions concerning administrative appeals of disciplinary actions, including one of the default provisions, in Fisher v. Eastern Correctional Institution , 425 Md. 699, 43 A.3d 338 (2012). In that case, an employee of a State prison, who had been terminated as a result of a disciplinary investigation, filed a timely administrative appeal with the head of her principal unit—as in this case, the Secretary of DPSCS. After approximately nine months had passed without a response from the Secretary of DPSCS, the employee sent a letter to the Secretary of DBM to appeal what she assumed was the denial of her appeal by the Secretary of DPSCS. The Secretary of DBM referred the matter to OAH. The administrative law judge ("ALJ") assigned by OAH granted a motion to dismiss the appeal on the ground that the failure of the Secretary of DPSCS to respond to the appeal within 15 days had triggered the 10–day period for the second-tier administrative appeal to the Secretary of DBM—a period that had long passed by the time the employee had contacted the Secretary of DBM. The ALJ's decision was ultimately affirmed by this Court.
In reaching that decision, the Court noted that the apparently unqualified command set forth in SPP § 11–109(e)(2) that the head of the principal unit "shall issue a written decision" on a first-tier administrative appeal was rendered somewhat ambiguous by the default provision of SPP § 11–108(b)(2) that makes the failure to do so a denial of the appeal that allows an employee to move on to the next stage of the appeal process. This Court concluded that the best way to read the two provisions together meant that an appeal that remained unanswered after 15 days was a denial of the appeal as of that time. The Court reasoned:
The most commonsensical way to interpret the two seemingly inconsistent provisions is to read § 11–109(e)(2) to mean that, regardless of the reason for a failure of decision within the allotted period of fifteen days—be it error, negligence, or, more likely, a determination by the head of the principal unit not to issue a written decision—the failure of decision is, by operation of § 11–108(b)(2), a denial of the appeal. Any other interpretation, short of one that is strained and, in the end, nonsensical, would render nugatory § 11–108(b)(2).
The Court observed that this construction was supported by the statute's legislative history. The disciplinary actions subtitle—subtitle 1 of Title 11 of the State Personnel and Pensions Article—had been enacted by the Legislature in 1996 based on the recommendations of the Task Force to Reform the State Personnel Management System. Chapter 347, Laws of Maryland 1996. Prior to 1996, administrative appeals were decided solely by the Secretary of Personnel4 under a process with certain timing benchmarks that were difficult to meet, with the result that the average appeal took 225 days to resolve. Id. at 711, 43 A.3d 338. To "streamline ... and simplif[y]" that system, the 1996 amendments substituted a two-tier administrative appeals system that would process appeals more efficiently and effectively with initial consideration at the agency level and with the potential for a further appeal to the Secretary of DBM, where there would be an opportunity for a hearing. The Court noted that SPP § 11–108(b)(2) —the deemed denial provision—had been added by the General Assembly to expedite the process to the second tier. The Court stated:
The General Assembly's action evidences an appreciation for the notion that the head of a principal unit could not, or even should not, author in every appeal presented to him or her "a written decision that addresses each point raised in the appeal," much less do so within fifteen days of receipt of the appeal. As we have construed it, § 11–108(b)(2) ensures that an employee's appeal of disciplinary action is always ripe for pursuit of further appellate review...
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