Reier v. Dept. of Assessments

• Decision Date: 05 February 2007
• Docket Number: No. 29, Sept. Term., 2006.,29, Sept. Term., 2006.
• Citation: 915 A.2d 970,397 Md. 2
• Parties: David REIER v. STATE DEPARTMENT OF ASSESSMENTS AND TAXATION.
• Court: Court of Special Appeals of Maryland

915 A.2d 970

397 Md. 2

David REIER v. STATE DEPARTMENT OF ASSESSMENTS AND TAXATION.

No. 29, Sept. Term., 2006.

Court of Appeals of Maryland.

February 5, 2007.

Hillary Galloway Davis (Davis & Associates Law Office, P.A. of Towson), on brief, for petitioner/cross respondent.

David M. Lyon, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, of Baltimore), on brief, for respondent/cross petitioner.

Argued before BELL, C.J., RAKER^*, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

HARRELL, J.

The controversy presented in this case bounced back and forth between the Maryland Office of Administrative Hearings (OAH), the Circuit Court for Baltimore County, and the Court of Special Appeals over the past 10 years. The litigation began as an administrative appeal by David Reier from the State Department of Assessments and Taxation's (SDAT) termination of him as an Assessor III in its Carroll County office. The SDAT ceded authority to the OAH to conduct evidentiary hearings and render final administrative decisions in such personnel matters. The initial Administrative Law Judge (ALJ) at the OAH assigned to adjudicate Reier's appeal affirmed the validity of the termination upon a finding that Reier was given timely notice of his termination within 30 days of the SDAT's "discovering the depth of [his] misconduct and performance failure," pursuant to § 11-106(b) of the State Personnel and Pensions Article, Maryland Code (1993, 2004 Repl.Vol.).¹ The Circuit Court for Baltimore County, on Reier's petition for judicial review of the ALJ's decision, remanded the matter to the OAH. The court instructed the ALJ to reconsider her decision in light of the Court of Special Appeals's newly announced interpretation of § 11-106(b)'s 30 day notice requirement found in Western Correctional Institute v. Geiger, 130 Md. App. 562, 747 A.2d 697 (2000) (Geiger I).² Aggrieved by the Remand Decision rendered by a different ALJ, Reier again sought judicial review in the Circuit Court, which affirmed the ALJ's decision. On appeal to the Court of Special Appeals (Reier I), that court remanded the case to the OAH to apply the yet newer judicial gloss given the 30 day notice standard announced in this Court's Western Correctional Institute v. Geiger, 371 Md. 125, 807 A.2d 32 (2000) (Geiger II).³

The same ALJ undertook this case for a third time and, after rendering factual findings varying as to some key dates from her previous findings, determined that more than 30 days passed between when the SDAT became aware of facts sufficient to prompt an investigation into Reier's job performance and the termination. The ALJ thus ordered that Reier be reinstated and awarded back pay, consisting only of lost monetary wages. Both the SDAT and Reier turned again to the Circuit Court: the SDAT disputing the new factual finding that its managers in the Carroll County office were aware of Reier's asserted poor performance for more than 30 days before Reier was terminated, and Reier arguing that it was error to exclude from the back pay award benefits and the other accoutrements of State employment. The Circuit Court affirmed Reier's reinstatement and directed that he be awarded benefits as part of his back pay. On appeal by the SDAT, the Court of Special Appeals affirmed Reier's reinstatement, but concluded that back pay was limited to wages and did not include benefits. Dep't of Taxation v. Reier, 167 Md.App. 559, 597, 893 A.2d 1195, 1218 (2006) (Reier II). We are asked, at this point, on cross-petitions for certiorari, to resolve two questions. We are called upon by the SDAT to decide whether the ALJ, in applying the Geiger II notice standard, erred in reformulating the factual findings concerning the point in time when the SD AT became sufficiently aware of Reier's misconduct and poor performance to trigger the statutory investigation and disciplinary action period. We also consider, upon Reier's petition, whether the phrase "full back pay", as it is used in Maryland Code (1993, 2004 Repl.Vol.), State Personnel and Pensions Article, § 11-110(d)(1)(iii),⁴ encompasses other State-offered benefits such as medical, dental, and life insurance; leave; and retirement credit.

I. FACTS

David Reier, until his termination on 7 October 1996, was employed as an Assessor III for the SDAT office in Carroll County. As an assessor, Reier was expected to conduct assessments of real property "accounts", or individual properties, assigned to him by his superiors, to establish their fair market value for taxation purposes. A typical assessment would entail a preliminary review of building permits for each property, editing the computer database corresponding to each property (referred to as a Computer Assisted Mass Appraisal ("CAMA")), reviewing and noting comparable sales data, conducting an external physical inspection of each property, measuring new improvements, and speaking with the homeowner or appropriate adult occupant of a given property. This process is commonly referred to as an assessor's "fieldwork". The SDAT conducts assessments on a triennial cycle, completing assessments or re-assessments of one-third of the State's taxable properties each year of the cycle. The SDAT generally strives to finish this task each year prior to 1 October in anticipation of the assessment notices being dispatched on 1 January of the following year. Before the process is considered complete, however, local supervisors typically carry out field audits of its assessors for quality control purposes. This auditing process generally does not commence for a given assessor until after the assessor reports that he or she has completed all of his or her field work for all assigned property accounts.

The events leading up to Reier's termination occurred during the final months of the 1996 assessment year. In early August 1996, the Assistant Supervisor of Assessments for Carroll County, Lumen Norris,⁵ found a stack of 8 to 10 building permits on top of, or otherwise in close proximity to, a filing cabinet designated for the storage of such permits. This caught Norris's attention because assessors ordinarily commence their field work by locating and extracting from the cabinet permits linked to their assigned properties by account number so that the progress of any new construction may be evaluated properly. If permits were not in their proper place, filed in the cabinet, as was the case here, it may indicate that they were not being considered in the assessment process. Norris identified the misplaced permits by their account numbers as linked to properties assigned to Reier. Shortly after his discovery, Norris brought the misplaced permits to the attention of the Supervisor of Assessments for Carroll County, Larry White, during a discussion about quality control and the pending field audits. White decided to use the permits as a sampling of Reier's work for audit purposes.

The timeline of the particular audit of Reier's work, as one may imagine, is a source of considerable dispute in this record because of its significance to the determination of the date on which SDAT became aware of the extent of Reier's asserted poor performance and misconduct. Because Reier was terminated on 7 October 1996, a finding that the SDAT was aware of Reier's deficient work prior to 7 September 1996 would render the discipline untimely under the Geiger II standard for calculating the 30 day period in which the State as an employer has to investigate and effectuate discipline. As noted earlier, there was a divergence of findings on this point between the first and second remand hearings at the OAH. We shall explore these findings in greater detail infra.

The remainder of the factual background is uncontested. On 13 September 1996, White met with the State Supervisor of the SDAT, Joseph Szabo, and Personnel Administrator, Emory Rudy, about Reier's performance as an assessor. On 24 September 1996, Assessor Supervisor Gail Trawinski of the Carroll County office reported the findings of her review of Reier's "edits"⁶ of properties that recently had been sold.⁷ Her initial review uncovered 21 errors in Reier's editing of 68 properties.⁸ Trawinski's subsequent review of 300 other edits performed by Reier yielded a finding of 87 mistakes. Trawinski communicated her findings to White in late September. Around that same time, the SDAT headquarters dispatched Assessor Manager, Joseph Wagner, to audit Reier's work. Upon a drive-through of the geographical area containing the properties assigned to Reier, Wagner identified 24 properties exhibiting visible, new improvements that had been present for more than one month. Wagner determined that, of the 24, Reier's fieldwork correctly noted improvements on one account, incorrectly noted five, and entirely missed improvements on 18 properties.

Satisfied that the audit established thoroughly the pervasiveness and unacceptable frequency of Reier's assessment errors,⁹ White convened a meeting with Reier on 3 October 1996 to discuss the audit's findings and determine the appropriate sanction. White terminated Reier after weighing Reier's previously satisfactory job performance evaluation against the recent audit results and Reier's unsatisfactory explanation of the audit results.

II. PROCEDURAL HISTORY — A CLOSER EXAMINATION

After 10 years of litigation, the procedural history of this case is admittedly protracted. We commence our close review of this history necessarily with the first remand to the OAH because it resulted in the pertinent factual findings later revised in the course of the second remand.

OAH Remand Decision I (8 December 2000)

As a result of the Court of Special Appeals's decision in Geiger I, the Circuit Court for Baltimore County remanded Reier's appeal to the OAH for more detailed findings of fact pertaining to the SDAT's actions after the initial discovery of the out-of-place building permits. The court, quoting the...