Small v. Secretary of Personnel, 135

• Decision Date: 03 January 1973
• Docket Number: No. 135,135
• Citation: 267 Md. 532,298 A.2d 173
• Parties: Albert SMALL v. SECRETARY OF PERSONNEL of the State of Maryland.
• Court: Maryland Court of Appeals

Page 532

267 Md. 532

298 A.2d 173

Albert SMALL v. SECRETARY OF PERSONNEL of the State of Maryland.

No. 135.

Court of Appeals of Maryland.

Jan. 3, 1973.

Edward F. Seibert, Baltimore (Alan Edgar Harris and Harris & Seibert, Baltimore, on the brief), for appellant.

James F. Truitt, Jr., Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and McWILLIAMS, SINGLEY, SMITH and LEVINE, JJ.

MURPHY, Chief Judge.

By letter dated October 30, 1970, the Director of the Maryland State Department of Juvenile Services notified appellant Small that '(p)ending further approval of the State Secretary of Personnel, this will confirm your temporary appointment to the Classification, Juvenile Transportation Officer, effective October 29, 1970 at the rate of $6224 per annum.' The Director's letter advised Small that '(s)ince permanent appointment to the Classified Service (of the State) are made through the selection from eligible lists established as a result of Merit System examinations, it is essential that you take the next scheduled examination for your Classification and attain that final score which would place your name within the first five eligibles for this Classification.'

On January 25, 1971, Small took the Merit System examination. On February 9, 1971, he was notified by the Director that his services had been unsatisfactory and since he was 'a temporary pending examination employee and have not served a probationary period' he was being terminated as of February 24, 1971 'in full compliance with the State of Maryland Employees' Personnel Rules.' ¹ On February 17, 1971 the Merit System eligible list was published; Small placed third on the list.

Promptly after his discharge from State employment, Small filed a petition for a writ of mandamus against the Secretary of Personnel alleging that his services had been terminated 'in a manner not complying with the Merit System outlined in Article 64A of the Annotated Code of Maryland, 1957 Edition'; that '(s)aid termination was and is based on fabrication and the egotistical whims of those in power as the appointing authorities'; and that 'your petitioner seeks no more than a just and fair hearing before the Secretary of Personnel and let the Secretary of Personnel's decision be the deciding authority in your Petitioner's termination.'

The Secretary, answering the petition, claimed that Small was a temporary appointee under § 22(b) of Article 64A and, as such, his temporary appointment could in no event last longer than the period of time required to establish an eligible list; and that § 33 of Article 64A, which afforded a hearing as a prerequisite to removal from the classified service, did not apply to temporary employees appointed pending examination.

Judge Charles D. Harris, in the Superior Court of Baltimore City, agreed with the Secretary's position. He said:

'There is nothing in the Merit System which gives any temporary employee the right to a hearing before discharge. He can be discharged at any time. It is only after you have taken the examination, passed the examination, and appointed as a result of that examination that your probationary period even begins. . . . The only employees under the State Merit System who are entitled to a hearing are permanent employees who have taken and passed the examination, and have been appointed to a permanent position as a result of that examination. It is then, and then only, that the period of probation begins.

'During that ensuing probationary period, even though that employee is a permanent employee, he can be discharged without reason and without cause. After that period he is entitled to a hearing.'

On appeal,...