WCI v. Geiger

• Decision Date: 18 September 2002
• Docket Number: No. 2000., No. 41, No. 31 September Term
• Citation: 371 Md. 125,807 A.2d 32
• Parties: WESTERN CORRECTIONAL INSTITUTION, Department of Public Safety & Correctional Services. v. Jeffrey GEIGER. William Mullen & Robert Pflaumer, v. Department Of Public Safety & Correctional Services.
• Court: Maryland Court of Appeals

807 A.2d 32

371 Md. 125

WESTERN CORRECTIONAL INSTITUTION, Department of Public Safety & Correctional Services. v. Jeffrey GEIGER.

William Mullen & Robert Pflaumer, v. Department Of Public Safety & Correctional Services.

Nos. 41, .

Court of Appeals of Maryland.

September 18, 2002.

Michele J. McDonald, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for Western Correctional Institution and Dept. of Public Safety and Correctional Services.

Lisa M. O'Mara (Davis and Associates Law Offices, P.A., on brief), Towson, for Jeffrey Geiger.

Travis M. Mastroddi (Joel A. Smith of Kahn, Smith & Collins, P.A., on brief), Baltimore, for Robert Pflaumer and William Mullen.

Argued before BELL, C.J. ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL, and HARRELL JJ BELL, Chief Judge.

This appeal² requires the Court to interpret a portion of the State Personnel Management System Reform Act of 1996. See Md.Code (1993, 1997 Repl.Vol.) § 11-106 of the State Personnel & Pensions Article.³ More particularly, we must determine whether the thirty day period prescribed by § 11-106(b) for the imposition of disciplinary action commences when the appointing authority⁴ is first informed of the allegation of misconduct, as the disciplined employees contend, or, as argued by the State, only when the appointing authority is informed of the results of an investigation that substantiates such allegation. We must also decide whether § 11-106(b) envisions a burden-shifting analysis, as the Court of Special Appeals held. If the answer to the first question is that the period is inclusive of the allegation, we finally must address the significance of there being no sanction for violation, prescribed in the statute.⁵ We shall hold that the thirty day period includes the time necessary for the appointing authority to conduct its investigation and meet the other requirements specified in § 11-106(a), in the process rejecting the intermediate appellate court's burden shifting analysis. We also shall hold that rescission of the discipline imposed is the appropriate sanction for the appointing authority's failure to meet § 11-106(b)'s time limit.

I

The employees in each of the cases under review were disciplined pursuant to § 11-106, which prescribes the "[d]uty of appointing authority prior to imposing sanctions." Section 11-106 provides:

"(a) Procedure.—Before taking any disciplinary action related to employee misconduct, an appointing authority shall:

"(1) investigate the alleged misconduct;

"(2) meet with the employee;

"(3) consider any mitigating circumstances;

"(4) determine the appropriate disciplinary action, if any, to be imposed; and

"(5) give the employee a written notice of the disciplinary action to be taken and the employee's appeal rights.

"(b) Time Limit.—Except as provided in subsection (c) of this section, an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed.

"(c) Suspension.—

"(1) An appointing authority 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."

In each case, the appointing authority disciplined the employee more than thirty days after receiving knowledge of an allegation that the employee had engaged in misconduct or of a situation that could have resulted in that employee's being disciplined.⁶ Jeffrey Geiger, a Correctional Officer II at the Western Correctional Institution ("WCI"), was terminated for making offensive racial comments, including use of the word "nigger," in a conversation with Regina Waites, a nurse at the facility. On March 7, 1997, Mrs. Waites met with WCI's Warden, the appointing authority, and reported the offensive conversation. The Warden requested that the Internal Investigation Unit ("IIU") investigate the allegations, the result of which—the investigating officer concluding that, in fact, Mr. Geiger had used the racial slur, "nigger," during his conversation with Mrs. Waites, in violation of state and departmental standards ⁷—he received on April 11, 1997. Thereafter, on April 21, 1997, having conducted a mitigation conference with Mr. Geiger, who admitted using the racial slur,⁸ the Warden completed a Notice of Termination charging Mr. Geiger with violating departmental standards and MD. REGS.CODE tit. 01, § 01.1995.19 (1995), which prohibits harassment and discrimination. The Notice was sent to the Secretary of the Department of Public Safety and Correctional Services ("DPSCS"), who, as required by § 11-104(7),⁹ approved the termination on May 2, 1997. Mr. Geiger received and signed the Notice on May 6,1997.

On August 29, 1997, William Mullen, a Correctional Officer II of the Roxbury Correctional Institution, was given a written reprimand for initiating an unsanctioned investigation of a fellow officer, Officer Brenda Shepherd, in violation of departmental standards of conduct and performance. The allegations were communicated to the Warden, the appointing authority, on March 27, 1997 and the Warden caused an investigation to be initiated. That investigation was completed on August 6, 1997 and forwarded to the Warden on August 8, 1997.¹⁰

Robert Pflaumer, a Correctional Officer II at the Eastern Correctional Institution was terminated following an internal investigation into the disappearance of a set of "grand master" keys, while he was the key control officer for the institution.¹¹ On January 28, 1997 the Warden and appointing authority was informed that the keys charged to Mr. Pflaumer's care were missing. On January 31, 1997, the Warden instituted an investigation into the disappearance of the keys, which was concluded on February 19, 1997. Thereafter, on February 25, 1997, the Warden met with Mr. Pflaumer to discuss the incident and, on the same date, completed a Notice of Termination, which after approval of the Secretary of DPSCS on March 4, 1997, was served on Mr. Pflaumer on March 10, 1997.

In each case, the discipline imposed was overturned by administrative law judges ("ALJ") of the Office of Administrative Hearings ("OAH"), each finding that the discipline was untimely under § 11-106, it having been imposed more than thirty days after the allegation of misconduct, or a situation from which misconduct could be found, had been reported to the appointing authority. The reasoning of the ALJ in the Geiger case is typical. Rejecting the State's argument that the thirty day period prescribed by § 11-106(b) is flexible and runs from the completion of the investigation mandated by § 11-106(a), it proceeded:

"A reading of the statute ... reveals that the appointing authority has thirty days to conduct an investigation, meet the employees, consider any mitigating circumstances, determine the appropriate action and to give notice to the employee. Implicit in these requirements is that the appointing authority acquire knowledge of the misconduct, be it as an allegation or as a conclusion after investigation."

Thus, in Geiger, the ALJ concluded:

"I am not convinced that the narrow reading of ... § 11-106 suggested by Management is required. Instead, I find that a reading of this section of law imposes a thirty day window for Management to receive the allegations of misconduct, to investigate and to impose sanctions. As such, I conclude that the thirty day window began with the reporting of the allegation to the Warden on March 7, 1997 and that the Warden contacted the DOC/IIU who opened their investigation on March 11, 1997. The appointing authority thus had 30 days from March 7, 1997 to investigate the allegations and to then impose any disciplinary sanctions deemed to be warranted after the completion of the investigation. Because this time frame was not met in this case the Employee's argument must prevail and the Notice of Termination issued by Management on May 2,1997 must be rescinded."

Similarly, in Mullen, the ALJ stated:

"The Employee has adequately shown that the thirty day window began with the reporting of the allegation to the Warden in February, 1997 and that the Warden contacted DOC/IIU on March 27, 1997. The Appointing authority thus had 30 days from at least March 27, 1997 to investigate the allegations and to then impose any disciplinary sanctions deemed to be warranted after the completion of the investigation. Because this time frame was not met in this case, the Employee's argument must prevail and the reprimand issued by management must be rescinded."

And in Pflaumer, the ALJ

"Construed the Notice to show that the appointing authority acquired knowledge of the misconduct on January 28, 1997, the day the Warden was given the Employee's January 27, 1997 report. Within the next thirty days, the investigation was completed (2/19/97), the Warden met with the Employee to discuss the matter (2/25/97), and the Warden signed the Notice of Termination (2/25/97).¹²

"The Notice terminated the Employee on March 10,1997."

On judicial review, the Circuit Court for Washington County and the Circuit Court for Somerset County reversed the Mullen and Pflaumer decisions respectively. Both Circuit Courts concluded that the thirty day period prescribed by § 11-106(b) does not commence with a mere allegation of misconduct. The Mullen court, relying on the absence of the word "alleged" to modify "misconduct" in § 11-106(c)(1), when its predecessor provision so provided, opined that "[i]t is patently obvious that the Legislature intentionally decided to change the triggering event for the appointing authority's duty to act from a date when he learned of the alleged misconduct under the old law to a...