Livingston v. Harford Cnty. Bd. of Elections
| Decision Date | 13 August 2021 |
| Docket Number | 0452-2020 |
| Parties | DALE LIVINGSTON v. HARFORD COUNTY BOARD OF ELECTIONS |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Harford County Case No. C-12-CV-19-000572
Beachley, Shaw Geter, Zic, JJ.
Ms Dale Livingston, appellant, appeals from the Circuit Court for Harford County's decision affirming the order of the Office of Administrative Hearings ("OAH") denying her right to appeal her termination from her position as Deputy Director of the Harford County Board of Elections (the "Board"). After receiving a Disciplinary Form from the Board advising her of her termination, Ms. Livingston signed a letter of resignation drafted by the Board's attorney. Ms. Livingston filed an appeal of her termination. The Administrative Law Judge ("ALJ") granted the Board's Motion to Dismiss, or in the Alternative for Summary Judgment, finding that because Ms. Livingston signed the letter of resignation, she no longer had the right to appeal the termination. The Circuit Court for Harford County affirmed the OAH's ruling. We shall vacate and remand because it is unclear whether Ms. Livingston was given written notice of her appeal rights upon being presented with the Disciplinary Form as required by § 11-106(a)(5) of the Maryland State Personnel and Pensions Article. We explain.
Ms. Livingston presents three questions for appellate review:
Because the record is deficient as to whether the Board gave Ms. Livingston written notice of her appeal rights as required by § 11-106(a)(5), our analysis ends there. We therefore decline to rule on the additional issues presented.
On November 28, 2018, Ms. Livingston was presented with and signed a Disciplinary Form indicating that the Board had decided to terminate her from her position as Deputy Director of the Board. As stated on the Disciplinary Form, the date of Ms. Livingston's alleged misconduct was October 30, 2018. After receiving allegations of misconduct committed by Ms. Livingston, the Board placed her on administrative leave for 10 days beginning on October 31, 2018 in order to conduct an investigation. The Disciplinary Form includes a section titled "Disciplinary Action" under which the boxes for "Policy and/or Procedure Violation" and "Conduct" are checked.
The Disciplinary Form provides the following explanation of Ms. Livingston's alleged misconduct: Additionally, the Disciplinary Form includes a section titled "Disciplinary Action Being Taken" and the box next to "Termination of Employment effective November 28, 2018 at 5:00 p.m." is checked.
On November 28, 2018, Ms. Livingston was called into a meeting where she was given the Disciplinary Form by both the Board's Acting Director, Cynthia Remmey, and the Board's attorney, Brian Young. Mr. Young informed Ms. Livingston that she could resign "in lieu of termination" and then provided her a resignation letter that he drafted, which Ms. Livingston signed and dated November 28, 2018. The resignation letter drafted by Mr. Young states "I hereby offer my resignation in lieu of termination from my position in state employment as the Deputy Director of the Harford County Board of Elections." There is no evidence in the record to suggest that Ms. Livingston was given written notice of her appeal rights when she was given the Disciplinary Form.
On December 10, 2018, Ms. Livingston filed an appeal of her termination with the Board. The Board interpreted Ms. Livingston's appeal as a request to withdraw her resignation and subsequently denied that request. On January 3, 2019, Ms. Livingston noted her appeal of the Board's decision to the Office of the Secretary of the Maryland Department of Budget and Management's Employee Relations Division. In response, the Board filed a Motion to Dismiss, or in the Alternative for Summary Judgment. The ALJ granted the Board's motion, finding that no issue of material fact existed because Ms. Livingston resigned, thereby foreclosing her ability to appeal her termination, and concluding that the Board "is entitled to summary decision as a matter of law." [1]Following the dismissal of her appeal, Ms. Livingston sought judicial review of the OAH's decision in the Circuit Court for Harford County. The circuit court upheld the OAH's decision, concluding, in relevant part, that Ms. Livingston resigned and thus forfeited her right to appeal.
"As in any appeal from judicial review of an agency decision, we look through the decision of the circuit court to examine the agency's ruling." Maryland Off. of People's Couns. v. Maryland Pub. Serv. Comm'n, 246 Md.App. 388, 400 (2020) (citing Maryland Off. of People's Couns. v. Maryland Pub. Serv. Comm'n, 461 Md. 380, 391 (2018)). When "reviewing a decision of an administrative agency, we directly evaluate that decision under the same standard of review as a circuit court" and thus inquire "whether there is substantial evidence in the record to support the decision and whether the decision is based upon an error of law." Motor Vehicle Admin. v. Krafft, 452 Md. 589, 602-03 (2017). Additionally, summary judgment is appropriate "where 'there is no genuine dispute as to any material fact and . . . the [moving] party is entitled to judgment as a matter of law.'" State v. Rovin, 472 Md. 317, 341 (2021) (alteration in original) (quoting Md. Rule 2-501(a)).
Section 11-106(a) provides:
(emphasis added).
The Board posits that because Ms. Livingston signed the resignation letter drafted by its attorney and did so prior to 5:00 p.m. November 28, 2018, when her termination was to become effective, she resigned and was not terminated. Consequently, she forfeited her right to an appeal.[2] Ms. Livingston argues that she was terminated prior to submitting her resignation and that she was not given written notice of her appeal rights as required by § 11-106(a)(5). The Board maintains that, because Ms. Livingston resigned, it does not matter whether she was given her appeal rights. The Board further argues that "[Ms.] Livingston provides no citation for the position that a resignation may somehow be rendered void by procedural deficiencies in a disciplinary action."
The OAH and the circuit court agreed with the Board's arguments. The ALJ determined that it was immaterial whether Ms. Livingston was given written notice of her appeal rights. The ALJ reasoned as follows:
[T]he present case involves an Employee who knowingly resigned after meeting with [the Board] and learning of the agency's intent to impose disciplinary action. I believe the Employee, the former Deputy Director, was well aware of the difference between a resignation and a disciplinary action such as termination. I believe the Employee was aware of the appeal rights available as a result of the proposed termination and what was available as a result of a resignation. The Employee's argument of not being advised of the appeal rights may be true, but it does not change the ultimate result that on November 28, 2018, the Employee resigned from employment. The Employee did not offer any argument or facts to dispel me of the belief that she understood the clear difference between resignation and termination from State service.
(emphasis added). The circuit court upheld the OAH's ruling, explaining that:
The court can find no provision in the State Personnel and Pensions Article which requires that an employee must be given advice of rights before her resignation may be accepted. The fact that Petitioner did not receive the advice of rights pertinent to the disciplinary action is not determinative of the agency's ability to accept and stand upon Petitioner's resignation.
We do not agree. The requirements enumerated in § 11-106(a) are mandatory. The statutory provision provides that "[b]efore taking any disciplinary action related to employee misconduct, an appointing authority shall . . give the employee a written notice of the disciplinary action to be taken and the employee's appeal rights." Md. Code Ann., State Pers. & Pens. § 11-106(a)(5) (emphasis added). "The word 'shall' is ordinarily construed as...
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