Kram v. MARYLAND MILITARY DEPT.

• Decision Date: 12 May 2003
• Docket Number: No. 99,99
• Parties: Christopher KRAM, et al. v. MARYLAND MILITARY DEPARTMENT.
• Court: Maryland Court of Appeals

824 A.2d 99

374 Md. 651

Christopher KRAM, et al. v. MARYLAND MILITARY DEPARTMENT.

No. 99, September Term, 2002.

Court of Appeals of Maryland.

May 12, 2003.

John F. Conwell (Davis & Associates Law Offices, P.A., on brief), Towson, for petitioners.

Lieutenant Colonel Stephen M. Doyle (Judge Advocate General's Corps., J. Joseph Currran, Atty. Gen., Laura C. McWeeney, Asst. Atty. Gen., on brief), Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, J.

We must decide whether several State employees, employed as military airport firefighters by the Maryland Military Department, may grieve under Maryland Code (1993, 1997 Repl.Vol.) § 12-101 et seq. of the State Personnel and Pensions Article.¹ The employees contest a requirement of their employment, imposed upon all military airport firefighters by the Adjutant General of Maryland, that such employees maintain membership in the Maryland Air National Guard. The requirement, claim the employees, violates their rights under both the State and Federal Constitutions, as well as their retirement rights under the State Personnel and Pensions Article and the Employee Retirement Income Security Act, 29 U.S.C. §§ 21-101.

Administrative Law Judge (ALJ) Marleen Miller denied the grievance, determining that the National Guard requirement was a "classification standard" outside the scope of a statutory grievance and, therefore, that she had no authority to rule on the issue. The employees filed a petition for judicial review in the Circuit Court for Baltimore County, which affirmed the decision of the ALJ on two grounds: (1) that the National Guard requirement fell within the statutory exception to the grievance procedure; and (2) that the federal regulation imposing the requirement, Chapter 36 of National Guard Regulation 5-1/Air National Guard Instruction 63-101, preempted the State grievance process.

The Court of Special Appeals affirmed. Kram v. Md. Military Dept., 146 Md.App. 407, 807 A.2d 120 (2002). We granted the employees' petition for writ of certiorari to consider the question of whether these State employees could use the grievance procedure to resolve the question of whether, as a condition of their employment, management could require them to be members of the Maryland Air National Guard. Kram v. Md. Military, 372 Md. 429, 813 A.2d 257 (2002). We agree with the Court of Special Appeals, and shall affirm. The ALJ's denial of the employees' grievance was a correct conclusion of law because the firefighters' demand to eliminate the National Guard requirement is a challenge to the establishment of a classification standard, one that, based on the plain language of the statute, is not the proper subject of a grievance.

I.

The following relevant facts, either stipulated to by the parties below or found as facts by the ALJ, are not in dispute. The employees in this case have all been employed as Military Department firefighters at the Warfield Maryland Air National Guard Base in Essex, Maryland. They provide fire protection for military and civilian aviation activities at both Martin's Airport and Warfield. Military Department firefighters are classified into four separate employment classes: (1) Airport Firefighter Trainee Military (class code 1506); (2) Airport Firefighter I Military (class code 1507); (3) Airport Firefighter II Military (class code 1508); and (4) Airport Firefighter Lieutenant Military (class code 1509). While rates of pay and some job functions may be similar, the four Military Department firefighter classifications are separate and distinct from airport firefighters employed by other State agencies.

All Military Department firefighters are required to maintain membership in the Maryland Air National Guard as a condition of employment. The Court of Special Appeals set out the requirement of the employment as follows:

"The requirement exists by order of the Maryland Adjutant General, the highest ranking State official in the Military Department and appellants' appointing authority. The Adjutant General's power to impose the requirement is based on federal National Guard Bureau Regulation (NGR)5-1/Air National Guard Instruction (ANG)63-101, chapter 36, paragraph 36-10(h). Paragraph 36-10 is entitled `Standards for Employment' and lists prerequisites for employment as a military airport firefighter, including age, education, physical fitness, training, medical requirements, security clearance requirements, and driver's license requirements. Subsection (h) provides that the requirement of military membership will be determined at the Adjutant General level on a state by state basis."

Kram, 146 Md.App. at 410, 807 A.2d at 121.

Each employee was aware of this requirement when he accepted a position as a Military Department firefighter. A Military Department firefighter who ceases to be a member of the National Guard, for any reason, is terminated from his position with the State.² As a result, military firefighters may be ineligible for certain State retirement benefits.

II.

The Maryland Administrative Procedure Act, Maryland Code (1984, 1999 Repl.Vol.) § 10-101 et seq. of the State Gov't. Article, sets forth the procedure for judicial review of an administrative agency decision. Section 10-222(h) of the Act specifies that the court may:

"(1) remand the case for further proceedings;

(2) affirm the final decision; or

(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision:

(i) is unconstitutional;

(ii) exceeds the statutory authority or jurisdiction of the final decision maker;

(iii) results from an unlawful procedure;

(iv) is affected by any other error of law;

(v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or

(vi) is arbitrary and capricious."

We recently set forth the standard of review of an agency decision in Motor Vehicle Admin. v. Atterbeary, 368 Md. 480, 796 A.2d 75 (2002). We stated:

"Upon judicial review, the Circuit Court is limited to determining whether there was substantial evidence on the record as a whole to support the agency's findings of fact and whether the agency's conclusions of law were correct. In reviewing the administrative agency's decision, we apply the same statutory standards as the Circuit Court."

Id. at 490-91, 796 A.2d at 81-82 (citations omitted). We review the decision of the agency, not that of the circuit court. See Mehrling v. Nationwide Ins. Co., 371 Md. 40, 57, 806 A.2d 662, 672 (2002); Gigeous v. Eastern Correctional Institution, 363 Md. 481, 495-96, 769 A.2d 912, 921 (2001).

Upon judicial review, the reviewing court does not substitute its judgment for the expertise of the administrative agency. See Jordan Towing Inc. v. Hebbville Auto Repair Inc., 369 Md. 439, 450, 800 A.2d 768, 774 (2002). We noted in Jordan Towing as follows:

"Despite some unfortunate language that has crept into a few of our opinions, a `court's task in review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency.' ... Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.... Furthermore, the expertise of the agency in its own field should be respected."

Id.,800 A.2d at 775 (quoting Board of Physician v. Banks, 354 Md. 59, 68-69, 729 A.2d 376, 381 (1999)). We may always determine whether the agency made an error of law. Id.

III.

The Legislature has enacted a uniform grievance procedure for employees to invoke to resolve certain disputes. See § 12-101 et seq. A "[g]rievance means a dispute between an employee and the employee's employer about the interpretation of and application to the employee of (i) a personnel policy or regulation adopted by the Secretary; or (ii) any other policy or regulation over which management has control." § 12-101(b)(1). Section 12-101(b)(2) excepts six subject areas from this general definition of "grievance." They are as follows:

"(i) a pay grade or range for a class;

(ii) the amount or the effective date of a statewide pay increase;

(iii) the establishment of a class;

(iv) the assignment of a class to a service category;

(v) the establishment of classification standards;

(vi) an oral reprimand or counseling."

§ 12-101(b)(2). Thus, if a subject falls within the excepted categories, it is not a basis for a grievance.

The ALJ found that the National Guard requirement was a "classification standard" for each of the four classes of military airport firefighters. The Circuit Court and the Court of Special Appeals agreed. If the ALJ, Circuit Court and Court of Special Appeals are correct in concluding that the National Guard requirement is a classification standard, then, according to the plain language of § 12-101(b)(2)(v), the requirement was not the proper subject of a grievance. The employees argue that the ALJ was wrong in categorizing the National Guard requirement of employment as a "classification standard."

A "position" in the State Personnel and Pensions Article, is defined as "an employment assignment of duties and responsibilities that requires the full-time employment of one individual or less than full-time employment of one or more individuals." § 1-101(j). In contrast, a "class" is defined as "a category of one or more similar positions, as established by the Secretary in accordance with this article." § 4-201(b)(3). Classes are comprised of one or more positions that have similar duties and responsibilities and have similar qualifications to perform those duties and responsibilities. § 4-201(b)(3)(i) to (iii). The Secretary of the Department...