Montgomery County v. McDonald

• Citation: 68 Md.App. 307,511 A.2d 560
• Decision Date: 01 September 1985
• Docket Number: No. 1507,1507
• Parties: MONTGOMERY COUNTY, Maryland, et al. v. Anthony K. McDONALD. ,
• Court: Court of Special Appeals of Maryland

Page 307

68 Md.App. 307

511 A.2d 560

MONTGOMERY COUNTY, Maryland, et al. v. Anthony K. McDONALD.

No. 1507, Sept. Term, 1985.

Court of Special Appeals of Maryland.

July 10, 1986.

Linda D. Berk, Asst. Co. Atty. (Paul A. McGuckian, Co. Atty. and Bruce P. Sherman, Sr. Asst. Co. Atty., on brief), Rockville, for appellants.

Gary L. Crawford (Henry C. Clarke, Jr. and Clarke & Crawford, on brief), Gaithersburg, for appellee.

Argued before GARRITY AND ROBERT M. BELL, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ROBERT M. BELL, Judge.

This appeal by Montgomery County and Lewis T. Roberts, Chief Administrative Officer of Montgomery County, appellants, from the judgment of the Circuit Court for Montgomery County presents two questions:

1. Did the Merit System Protection Board lack jurisdiction to grant reconsideration on May 15, 1985, when the request for reconsideration was automatically denied by operation of law ten days after its receipt by the Merit System Protection Board?

2. Did the Lower Court err as a matter of law in determining that there existed such an irregularity as would permit the Merit System Protection Board to reconsider its earlier decision.

The first question requires us again to construe § 2A-10(f) of the Montgomery County Code (part of the County's Administrative Procedure Act), this time on an issue, related, though not identical, to that so recently decided in Robinson v. Montgomery County, 66 Md.App. 234, 503 A.2d 275 (1986). Its resolution, which we conclude, consistent with Robinson, must be in favor of appellants, is dispositive of the appeal, relieving us of the obligation to consider and decide the second question. Therefore, we will reverse and remand to the circuit court for entry of an order consistent with this opinion.

The facts essential to the resolution of the issue sub judice are not really in dispute. Anthony K. McDonald, appellee, ranked eleventh for promotion to sergeant on a Montgomery County police department eligibility list, which had been established on December 29, 1981. When that list expired thirty months later, ¹ the top ten persons on the list had been promoted, leaving appellee next in line for the next available vacancy. He filed an administrative grievance because, although shortly prior to expiration of the list, an eleventh sergeant's vacancy had occurred, management elected not to fill it.

Appellee's grievance was investigated by a special investigator appointed by the County's Personnel Office. The investigator's report, although noting that appellee "was treated in an unfair manner", recommended denial of the grievance. This recommendation was adopted by the Chief Administrative officer and appellee's "grievance and relief requested", were denied.

Appellee's appeal to the County Merit System Protection Board was unsuccessful. By decision dated November 21, 1984, the Board agreed with the County that the management decision not to fill a vacancy was within the County's prerogative, finding inter alia:

Based on past promotional opportunities and practices within the Department of Police, the Board appreciates and understands your disappointment in not being promoted to a vacant position prior to expiration of the eligible list. There is no legal requirement for filling vacancies within a certain period of time, and historically, the County has left positions vacant for extended periods because of salary lapses necessitated to pay for accrued annual leave of the prior incumbent. Additionally, the County is involved in a law suit concerning promotional practices of the Department of Police, and the Chief Administrative Officer determined that it was in the County's best interest to allow the list to expire and to defer any further promotions.

...With the expiration of the list and no immediate plans to conduct a promotional examination, the Department of Police is in the position of not being able to fill any Sergeant vacancies until a new list is certified, which could impact on the Department's ability to function effectively. However, this is a management problem, and is not a grievable issue to be addressed by this Board.

No appeal from this decision was taken.

Having learned of the announcement by the police department that, effective April 7, 1985, five white male officers would be promoted to sergeant from a new eligible list for sergeant, appellee, on April 2, 1985, filed a Request for Reconsideration of the Board's prior decision. Alleging "fraud or irregularity perpetrated by the County in the Board's earlier decision," his request, in relevant part, stated:

On March 27, 1985, the Police Department announced the promotion of five (5) officers to the rank of Sergeant effective April 7, 1985. All five officers are white males.

I contend the ruling of the Board in my grievance should be rescinded and that a new ruling in my favor, be rendered. I suggest that a proper resolution of my grievance would order the Department of Police to promote me to the next vacant Sergeant position retroactive to April 7, 1985. In this manner, no unfair action would affect those officers already notified of a pending promotion. It should be noted that I am also on the current eligible list, however, I am no longer in the highest category.

As in my original grievance, I cite Section 4.1 of the Personnel Regulations where it states that it is the policy of Montgomery County to treat employees in a fair and equitable manner. I have been unfairly denied an opportunity for upward mobility and the County has used fraudulent information to support that denial. I again ask the Board to perform its duty and to support me in my quest for fair treatment.

Appellant received, in response to his Request, a letter, dated April 3, 1985, signed by Gerald L. Moser, Executive Secretary of the Merit Board.

By letter dated May 15, 1985, the Merit Board found appellee's "request [for reconsideration] to be reasonable and herein does reconsider." (Emphasis supplied). It did so after reviewing the record, reciting what it deemed to be significant events, and observing:

[t]he fact that the County knew it was going to proceed with the promotional process at the time it denied [appellee's] grievance, "in consideration of pending litigation", and then failed to provide this Board with proper information concerning that situation in the judgment of this Board, was highly irregular and inappropriate.

It then vacated its earlier decision and ordered appellee promoted to the next available vacancy, retroactive to the date of the first promotions from the new eligible list.

Being unhappy with the Board's decision, appellants appealed to the circuit court, where they argued that: (1) appellee's request for reconsideration, filed some four months after the original decision, was untimely; (2) the request for reconsideration, lacking specificity as to how the fraud or irregularity occurred, was illegally granted by the Board; (3) the County did not fail to provide pertinent information; and (4) the failure to provide the information relied upon by the Board was, as a matter of law, neither fraud, nor an irregularity. The court sided with the Board and affirmed.

Appellants contend, for the first time in this Court, that pursuant to § 2A-10(f), appellee's request for reconsideration automatically was denied, by operation of law, when the Board did not issue its decision granting reconsideration within ten days of receipt of the request. Perhaps anticipating the objection that the issue, not having been raised in, or decided by, the lower court, is not preserved for appellate review, Md. Rule 1085, [an argument, interestingly, not raised by appellee], they proffer that it is a "question as to the jurisdiction of the lower court [which] may be raised and decided in this Court whether or not raised and decided in the lower court." Id. This threshold issue having been presented, we pause, as we must, to consider it. Stewart v. State, 287 Md. 524, 527, 413 A.2d 1337 (1980); Rowe v. Chesapeake & Potomac Tel. Co., 56 Md.App. 23, 36, 466 A.2d 538 (1983); Russell v. Russell, 50 Md.App. 185, 186-87, 436 A.2d 524 (1981).

Section 2A-10(f) provides:

Where otherwise permitted by law, any request for rehearing or reconsideration shall be filed within ten (10) days from a final decision. Thereafter a rehearing or reconsideration may be approved only in the case of fraud, mistake or irregularity. Any request for rehearing or reconsideration shall be in writing, containing supporting reasons therefore, with copies served on all parties of record. Any decision on a request for rehearing or reconsideration not granted within ten (10) days following the receipt of the request therefor in accord with Subsection (c) of this section shall be deemed denied. Any request for rehearing or reconsideration shall stay the time for any administrative appeal pursuant to judicial review until such time as the request is denied or in the event such a request is granted such further time or [sic] a subsequent decision is rendered. A request for reconsideration or rehearing shall not stay the operation of any order unless the hearing authority so states. (emphasis supplied)

An examination of the term "jurisdiction" in the context of this case makes clear that appellants' failure to raise the issue below does not prevent it being raised or decided here. In Stewart v. State, supra, the Court of Appeals explained:

"[j]uridicially, jurisdiction refers to two quite distinct concepts: (i) the power of the court to render a valid [final judgment], and (ii) the propriety of granting the relief sought. 1 Pomeroy, Equity Jurisprudence (5th ed. 1941), Secs. 129-31." First Federated Com. Tr. v. Comm'r, 272 Md. 329, 334, 322 A.2d 539, 543 (1974) (quoting Moore v. McAllister, 216 Md. 497, 507, 141 A.2d 176, 182 (1958)). Thus, it is only when a court lacked fundamental...