Workers' Compensation Com'n v. Driver

• Decision Date: 01 September 1992
• Docket Number: Nos. 79,76,s. 79
• Parties: WORKERS' COMPENSATION COMMISSION v. Norman DRIVER and Joan N. Parker. Michael ADAMS et al. v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES et al. ,
• Court: Maryland Court of Appeals

Page 105

336 Md. 105

647 A.2d 96

WORKERS' COMPENSATION COMMISSION v. Norman DRIVER and Joan N. Parker.

Michael ADAMS et al. v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES et al.

Nos. 79, 76, Sept. Term, 1992.

Court of Appeals of Maryland.

Sept. 9, 1994.

Marlene Trestman, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Bruce P. Martin, David R. Durfee, Jr., Julia M. Freit, Asst. Attys. Gen., all on brief), Baltimore, for petitioner in No. 79.

Barry C. Steel, Towson, for respondent in No. 79.

J. Edward Davis (Davis & Associates and Charles R. Hennick, all on brief), Towson, for petitioner in No. 76.

Marlene Trestman, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Bruce P. Martin, David R. Durfee, Jr., Asst. Attys. Gen., all on brief), Baltimore, for respondent in No. 76.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE ^*, CHASANOW, KARWACKI and BELL, JJ.

ELDRIDGE, Judge.

The issues in these two cases concern the applicability of the statutory provisions governing the layoff of state employees and the reinstatement rights of laid-off employees.

I.

At the time when the events leading to the present appeals occurred, Maryland Code (1957, 1988 Repl.Vol., 1991 Cum.Supp.), Art. 64A, § 35, provided in subsection (b) as follows:

" § 35. Laying off employees.

* * * * * *

"(b) In general.--Employees who are in positions that are to be abolished, discontinued, or vacated, because of a change in departmental organization or a stoppage or lack of work, shall be laid off."

* * * * * *

Subsection (c) of § 35 required the Secretary of Personnel to promulgate rules and regulations establishing procedures for the layoff of state employees and the reinstatement of laid-off employees to comparable occupational positions. ¹ Subsection (d) specified various requirements for the Secretary's rules and regulations, including a provision that a laid-off employee may displace another employee with less seniority in the same job classification in the same department. ² Section 35(e) stated that the Secretary of Personnel "shall adopt rules and regulations for reinstatement of unclassified employees that are similar to the rules and regulations for reinstatement of classified employees." ³

The provisions of Art. 64A, § 35, originated with Ch. 41 of the Acts of 1920. Subsection (b) has remained almost unchanged since 1920, and the subsection (c) requirement of administrative rules for reinstatement has similarly been in the statute from the beginning. Thus, Code (Bagby, 1924), Art. 64A, § 16, provided as follows:

"16. An employee in a position that is to be abolished, discontinued, or vacated, because of change in departmental organization, or through stoppage or lack of work, shall be laid off and his name placed, in the order provided in the rules of the [State Employment] Commissioner, on the eligible list for the class of the position from which he was laid off."

In Hopper v. Jones, 178 Md. 429, 13 A.2d 621 (1940), this Court construed Art. 64A, § 16, holding that the statute does not apply when the enacted budget bill deleted the appropriation for a specific position. The facts of Hopper were as follows. For the fiscal year ending September 30, 1939, the claim staff of the State Accident Fund consisted of five investigators with the following annual salaries: $2,200, $2,200, $2,000, $1,800, and $1,500. The plaintiff Hopper was employed as one of the five investigators, being paid the $1,500 annual salary. The investigator in charge testified that the " 'duties that the investigators perform are all different, one from another.' " 178 Md. at 432, 13 A.2d at 622. The budget bill for the fiscal year 1940, as enacted by the General Assembly in 1939, contained appropriations for only four investigators with annual salaries of $2,200, $2,200, $2,000, $1,800. See Ch. 284 of the Acts of 1939, at 540-541. ⁴ At the beginning of the new fiscal year, the State Employment Commissioner issued an order "laying off" Hopper because the Legislature made no appropriation for his salary. Hopper then filed in the Baltimore City Court a petition for a writ of mandamus against the Commissioner, seeking rescission of the lay-off order and reinstatement to one of the investigator positions.

Hopper contended that the Commissioner's action was inconsistent with Art. 64A, § 16, and with the Commissioner's rules and regulations adopted pursuant to § 16. According to Hopper, his position as an investigator had been "abolished ... because of change in departmental organization, or through stoppage or lack of work" within the meaning of Art. 64A, § 16, and therefore he was entitled to the protection of the merit system rules promulgated by the Commissioner. Under those rules, when positions were abolished, the appointing authority was required to lay off those employees having the lowest "service ratings." The investigator among the five who had the lowest service rating was investigator Griebel who occupied the $1,800 per year position. Hopper argued that investigator Griebel should be laid off and that Hopper should be reinstated to the $1,800 position. The trial court dismissed Hopper's mandamus petition, and the Court of Appeals affirmed. This Court indicated that, if the purpose of the enacted budget were simply to abolish any one of the five positions, rather than a specific position, and if the choice of which position to abolish were for the agency, then Art. 64A, § 16, and the rules pursuant to that section, would have been applicable and Hopper would prevail. 178 Md. at 431, 13 A.2d at 622. In the Court's view, however, the purpose of the enacted budget was to abolish the specific position held by Hopper, because of the different salaries and the designation of the $1,500 position for deletion. 178 Md. at 431-432, 13 A.2d at 622. The Court held that Hopper's position was abolished "by operation of law," and that such action was not within Art. 64A, § 16. The Court stated (178 Md. at 433, 13 A.2d at 623):

"Our conclusion is that since the Legislature has discontinued the appropriation for an annual salary of $1500 for an industrial accident investigator, and the appellant was the only investigator receiving that salary, he lost his position by operation of law."

The administrative rules and regulations adopted pursuant to the statute have changed somewhat since the decision in the Hopper case. Nevertheless, as previously discussed, the statutory provision construed in Hopper remained virtually unchanged.

II.

As this opinion resolves two separate cases, we shall separately set forth the facts of each case.

A. No. 79, Workers' Compensation Commission v. Driver and Parker

Prior to July 1, 1991, Norman Driver held the position of Chief of the Hearing Division for the Workers' Compensation Commission. Also prior to July 1, 1991, Joan Parker held the position of Administrator III with the Commission, at the annual salary of $44,350. She was the only Administrator III at that salary. The budget bill for fiscal year 1992, beginning July 1, 1991, as submitted by the Governor to the General Assembly, retained the positions of both Mr. Driver and Ms. Parker.

During the 1991 legislative session, the House Appropriations Committee's staff indicated to the Workers' Compensation Commission that the staff intended to recommend the deletion of five "lower level" positions from the portion of the budget applicable to the Commission. The Chairman of the Commission responded by opposing the deletion of any positions. Alternatively, the Chairman urged that if Commission positions were to be eliminated by the General Assembly, the Commission would recommend the deletion of Mr. Driver's and Ms. Parker's positions rather than the five lower level positions suggested by the Committee's staff. Subsequently, the House Appropriations Committee and the Senate Budget and Taxation Committee recommended to the entire General Assembly the deletion of Mr. Driver's and Ms. Parker's positions. The General Assembly passed the budget bill for the fiscal year beginning July 1, 1991, with Mr. Driver's and Ms. Parker's positions abolished.

Both Mr. Driver and Ms. Parker were denied layoff and reinstatement rights pursuant to Art. 64A, § 35, and the administrative rules promulgated under the statute. The two employees filed grievances and pursued their cases through the State Employees' Grievance Procedure, culminating in hearings before Administrative Law Judges. In both cases, the Administrative Law Judges issued opinions holding that Hopper v. Jones, supra, was dispositive. Because each position was specifically eliminated by the budget enacted by the General Assembly, the Administrative Law Judges held that Mr. Driver and Ms. Parker had no layoff and reinstatement rights under Article 64A, § 35. Both grievances were "denied and dismissed."

The two employees filed in the Circuit Court for Baltimore County an action for judicial review, and the cases were consolidated for purposes of hearing and decision. Thereafter the circuit court rendered an opinion and order which reversed the administrative decisions and remanded the cases for further proceedings. The circuit court found a critical factual distinction between the present cases and Hopper v. Jones, supra, saying:

"This Court finds an important distinction between the instant case and Hopper. Hopper involves the application of a lay off statute analogous to Article 64, Section 35. The lay off provisions provided for benefits based upon performance evaluation. In Hopper, the legislature was the sole basis for the abolition of the subject employee's position, which was identified by salary, and did not receive appropriation for the budget year. The employee was deemed to be laid off by 'an act of law and denied lay off benefits.' In Hopper, there were no facts indicating that the department had any input into the legislature's act.... Under the instant facts, the ...