Mihailovich v. Dep't of Health & Mental Hygiene, 573, Sept. Term, 2016.

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Sharer, J.
• Citation: 234 Md.App. 217,170 A.3d 870
• Parties: Kevin MIHAILOVICH v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE
• Docket Number: No. 573, Sept. Term, 2016.,573, Sept. Term, 2016.
• Decision Date: 28 September 2017

234 Md.App. 217
170 A.3d 870

Kevin MIHAILOVICH
v.
DEPARTMENT OF HEALTH AND MENTAL HYGIENE

No. 573, Sept. Term, 2016.

Court of Special Appeals of Maryland.

September 28, 2017

Argued by: David G. Wright (Kahn, Smith & Collins, PA on the brief) all of Baltimore, MD, for Appellant.

Argued by: Nicholas E. Johansson (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Panel: Woodward, C.J., Friedman, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.

Sharer, J.

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In this appeal we shall resolve conflicting interpretations of the "five workdays" requirement of Maryland Code (1993, 2015 Repl. Vol.) State Personnel & Pensions, Section 11–106(c) ("SPP") as that term pertains to the disciplinary suspension of a State employee.

The issue before us, which we have recast, is:

Whether the Department of Health and Mental Hygiene ("DOH"),¹ appellee, gave timely notice of a suspension without pay to appellant, Kevin Mihailovich.²

We shall hold that the DOH did not give timely notice pursuant to the statute; hence, we shall reverse the judgment of the Circuit Court for Baltimore City.

BACKGROUND

Although the circumstances of appellant's employment and asserted misconduct are not necessary for our review, we provide a brief factual recitation for procedural context.

Mihailovich is a Certified Nursing Assistant employed by the Thomas B. Finan Center, an in-patient psychiatric facility

234 Md.App. 221

under the management of the DOH, located in Allegany County. On the evening of March 3, 2015, Finan Center management learned of an incident involving Mihailovich and a patient that resulted in injury to the patient requiring medical treatment at a local hospital. Management determined that Mihailovich engaged in "misconduct" by failing to follow DOH-approved de-escalation techniques. On the next day—March 4—Mihailovich was placed on paid administrative leave pending an investigation into the incident. The administrative leave extended from March 4 through March 17,

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when Mihailovich was notified that he was to be suspended for 15 days without pay.

On March 30, 2015, Mihailovich noted a timely appeal to the Secretary of the Department of Budget and Management. Following an unsuccessful settlement conference, the case was forwarded to the Office of Administrative Hearings. On July 27, 2015, a merits hearing was conducted, following which, on September 9, 2015, the Administrative Law Judge (ALJ) issued a written decision reversing the suspension, and ordered back pay.

The DOH moved for reconsideration, challenging the ALJ's interpretation and application of SPP § 11–106(c), which was summarily denied. The DOH filed a request for judicial review of the ALJ's decision in the Circuit Court for Baltimore City. Following a hearing, the circuit court reversed the decision of the ALJ, thus reinstating the suspension.

Standard of Review

Within the context of the present appeal, "[t]he decision of the Office of Administrative Hearings [was] the final administrative decision[,]" SPP § 11–110(d)(3), and not that of the DOH or the Secretary of the Department of Budget and Management. As the final adjudicator of contested DOH's disciplinary decisions, the ALJ's review of those decisions, "is bound by any agency regulation, declaratory ruling, prior adjudication, or other settled, preexisting policy, to the same extent as the agency is or would have been bound if it were

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hearing the case." SG § 10–214(b). See also SPP § 11–110(c)(2).

It is "[b]ecause an appellate court reviews the agency decision under the same statutory standards as the circuit court," Consumer Prot. Div. v. George , 383 Md. 505, 512, 860 A.2d 896 (2004) (quotations and citation omitted), that "we analyze the agency's decision, not the [circuit] court's ruling." Martin v. Allegany County Bd. of Educ. , 212 Md.App. 596, 605, 69 A.3d 1224 (2013) (citation omitted). We are " ‘limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ " W.R. Grace & Co. v. Swedo , 439 Md. 441, 453, 96 A.3d 210 (2014) (quoting Bd. of Physician Quality Assur. v. Banks , 354 Md. 59, 67–68, 729 A.2d 376 (1999) ).

In fact, "when the question before the agency involves one of statutory interpretation or an issue of law, our review is more expansive." E. Outdoor Advert. Co. v. Mayor of Baltimore , 146 Md.App. 283, 302, 807 A.2d 49 (2002) (quoting Dep't of Labor, Licensing & Regulation v. Muddiman , 120 Md.App. 725, 734, 708 A.2d 47 (1998) ). As such, "it is always within our prerogative to determine whether an agency's conclusions of law are correct." Hranicka v. Chesapeake Surgical, Ltd. , 443 Md. 289, 298, 116 A.3d 507 (2015) (quotations and citation omitted). It is for this reason that we review the agency's statutory interpretation de novo . See Ireton v. Chambers , 229 Md.App. 149, 155, 143 A.3d 215 (2016) (citing Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142, 46 A.3d 443 (2012) ). See also Fraternal Order of Police Montgomery Cty. Lodge 35 v. Montgomery Cty. Exec., 210 Md.App. 117, 128, 62 A.3d 238 (2013).

DISCUSSION

This appeal requires us to review the ALJ's interpretation and application of SPP § 11–106(c), which provides, relevant to the issue presented:

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234 Md.App. 223

(1) An appointing authority³ may suspend an employee without pay no later than 5 workdays following the close of the employee's next shift after the appointing authority acquires knowledge of the misconduct for which the suspension is imposed.

(2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5–workday period under this subsection.

When assessing the timeliness of the suspension, the ALJ was tasked with answering two underlying questions posed by Mihailovich: "[f]irst, what qualifies as a ‘workday’ under SPP section 11–106(c) [;] [a]nd second, what constitutes ‘the employee's next shift’ under that same provision when, as here, the appointing authority has placed the employee on administrative leave ... [?]" The ALJ concluded that the term "workday" was intended to relate to the employee's schedule, rather than the appointing authority's schedule, and that the employee's next shift is not affected by being placed on administrative leave.

The ALJ found that, "[a]ssuming further that the Employee normally maintains a Wednesday-through-Sunday workweek, his next five workdays would have been: (1) Thursday, March 5; (2) Friday, March 6; (3) Saturday, March 7; (4) Sunday, March 8; and (5) Wednesday, March 11."⁴ Based on that interpretation, the ALJ found the suspension imposed on March 17 to be untimely, reversed the suspension, and ordered back pay.

We address the first of these two questions in our review of the ALJ's decision and dispose of the second, accordingly.

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Statutory Interpretation

By whose schedule is a "workday" determined?

Since the question presented in this appeal is based largely on the interpretation of SPP § 11–106(c), we look first to the plain meaning of the statute.

All "[l]egislation is created with a particular objective or purpose." Bowers v. State , 227 Md.App. 310, 322, 133 A.3d 1254 (2016) (citation omitted). As such, "[t]he cardinal rule of statutory construction is to effectuate and carry out legislative intent." Duffy v. CBS Corp. , 232 Md.App. 602, 612, 161 A.3d 1 (2017) (quoting Rose v. Fox Pool Corp. , 335 Md. 351, 358, 643 A.2d 906 (1994) ), cert. granted , No. 41, Sept. Term, 2017 (Md. Sept. 12, 2017).

When this Court is "called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent." Duffy , 232 Md.App. at 613, 161 A.3d 1 (quoting Rose , 335 Md. at 359, 643 A.2d 906 ). However, "[w]here the statute's language is ambiguous or not clearly consistent with the statute's apparent purpose, the court ‘search[es] for [the General Assembly's] intent in other indicia, including the history of the [statute] or other relevant sources intrinsic and extrinsic to the legislative process [,]’ in light of: (1) ‘the structure of the statute’; (2) ‘how [the statute] relates to other laws'; (3) the statute's ‘general purpose’; and (4) ‘[the] relative rationality and legal effect of various competing constructions.’ " Hailes v. State , 442 Md. 488, 495–96, 113 A.3d 608 (2015)

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