Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hughes v. Moyer

Court of Appeals of Maryland

March 24, 2017

Laura Lynn Hughes
v.
Stephen Moyer, Secretary of Public Safety and Correctional Services

         Circuit Court for Baltimore County Case No. 03-C-14-013661

          Argument: October 7, 2016

          Barbera, C.J., Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          McDonald, J.

         It is often the task of lawyers and judges to parse the meaning of language - in constitutions, statutes, contracts, documentary exhibits, or testimony. Silence may also have legal significance. This case turns on two instances of silence. In one instance, a statute tells us what it means. In the other, we must decide its significance.

         This case arises out of the termination of Petitioner Laura Lynn Hughes from her job with the Department of Public Safety and Correctional Services ("DPSCS"). The personnel law governing an employee like Ms. Hughes requires, among other things, that the agency advise a disciplined employee of the employee's appeal rights. That statute allows a disciplined employee to seek to overturn the discipline through a two-tier administrative appeal process with tight timelines. Under the statute, a failure of an agency official to respond to a first-tier appeal by the statutory deadline is deemed to be a denial of that appeal, thereby allowing the employee to move to the next level of appeal, at which there is an opportunity for a hearing. In other words, silence equals denial.

         In Ms. Hughes' case, the agency sent her a notice of termination that informed her of the first tier of the administrative appeal process - an appeal to the Respondent Secretary of DPSCS. However, the notice was silent as to the second tier of the process. Nor did the notice inform her that a failure of the Secretary of DPSCS to respond to her first-tier appeal within the time limit would trigger the time for her to invoke the second tier and the opportunity for a hearing.

         Ms. Hughes followed the directions for invoking the first tier of the administrative appeal process. The Secretary of DPSCS failed to respond within the statutory time limit, thus denying her first-tier appeal. Apparently unaware that this silent denial triggered the limited time for her to invoke a second-tier appeal, Ms. Hughes did nothing before the deadline passed. When she belatedly attempted to pursue her administrative appeal and the agency did not respond, she commenced this action in the Circuit Court for Baltimore County.

         We hold that, in order to discharge its responsibility to provide a disciplined employee with notice of the employee's administrative appeal rights, an agency cannot remain silent as the second tier appeal, but must advise the employee of the possibility of a second-tier appeal and alert the employee as to the significance of silence in response to a first-tier appeal.

         I Background

         A. Administrative Appeals of Discipline of State Employees

         To place the issues in this case in context, we first describe the key provisions of the statute that governs discipline of certain employees of the executive branch of State Government, and a recent decision of this Court construing that statute.

         1. Statutory Provisions

         Disciplinary actions concerning employees in the State Personnel Management System are governed by Maryland Code, State Personnel and Pensions Article ("SPP"), §11-101 et seq. That statute sets forth the various types of disciplinary action that may be taken against an employee - e.g., written reprimand, forfeiture of leave, suspension, demotion, and termination - and specifies certain types of misconduct that result in automatic termination of employment. SPP §§11-104, 11-105, 11-107. The statute also sets forth procedures and time constraints for agencies to investigate alleged misconduct, impose discipline, and consider administrative appeals of disciplinary action. SPP §§11-106, 11-108 through 11-113.

         If an agency decides to impose discipline, the appropriate agency official - the "appointing authority" in the parlance of the statute[1] - is to give the employee "written notice of the disciplinary action . . . and the employee's appeal rights." SPP §11-106(a)(5). With certain exceptions not pertinent here, an employee in the skilled service or professional service[2] who is the subject of disciplinary action may file a written appeal of that action with the "head of the principal unit"[3] of the agency within 15 days after the employee receives notice of the disciplinary action. SPP §11-109(c). The statute provides that, within 15 days after receiving the appeal, the head of the principal unit is to issue a written decision that either upholds, modifies, or rescinds the disciplinary action. SPP §11-109(e). The employee has a further right to appeal that decision to the Secretary of Budget and Management ("Secretary of DBM") if the employee acts within 10 days of receiving the decision of the head of the principal unit. SPP §11-110. The Secretary of DBM may in turn refer the matter to the Office of Administrative Hearings ("OAH") for a hearing and final administrative decision. Id. The statute encourages parties to resolve any appeals "at the lowest level possible." SPP §11-108(d). The statute also authorizes the parties to extend or waive time limits by agreement. SPP §11-108(c).

         The statute contains default provisions that specify the consequences if the employee or agency does not act within the specified deadlines or any agreed-upon extension. An employee who fails to appeal a decision in accordance with the statute is deemed to have accepted it. SPP §11-108(b)(1). A failure by an agency to decide an appeal in accordance with the statute is deemed to be a denial from which a further appeal may be made. SPP §11-108(b)(2).

         2. Fisher v. Eastern Correctional Institution

         This Court recently discussed the interplay of the statutory provisions concerning administrative appeals of disciplinary actions, including one of the default provisions, in Fisher v. Eastern Correctional Institution, 425 Md. 699 (2012). In that case, an employee of a State prison, who had been terminated as a result of a disciplinary investigation, filed a timely administrative appeal with the head of her principal unit - as in this case, the Secretary of DPSCS. After approximately nine months had passed without a response from the Secretary of DPSCS, the employee sent a letter to the Secretary of DBM to appeal what she assumed was the denial of her appeal by the Secretary of DPSCS. The Secretary of DBM referred the matter to OAH. The administrative law judge ("ALJ") assigned by OAH granted a motion to dismiss the appeal on the ground that the failure of the Secretary of DPSCS to respond to the appeal within 15 days had triggered the 10-day period for the second-tier administrative appeal to the Secretary of DBM - a period that had long passed by the time the employee had contacted the Secretary of DBM. The ALJ's decision was ultimately affirmed by this Court.

         In reaching that decision, the Court noted that the apparently unqualified command set forth in SPP §11-109(e)(2) that the head of the principal unit "shall issue a written decision" on a first-tier administrative appeal was rendered somewhat ambiguous by the default provision of SPP §11-108(b)(2) that makes the failure to do so a denial of the appeal that allows an employee to move on to the next stage of the appeal process. This Court concluded that the best way to read the two provisions together meant that an appeal that remained unanswered after 15 days was a denial of the appeal as of that time. The Court reasoned:

The most commonsensical way to interpret the two seemingly inconsistent provisions is to read §11-109(e)(2) to mean that, regardless of the reason for a failure of decision within the allotted period of fifteen days - be it error, negligence, or, more likely, a determination by the head of the principal unit not to issue a written decision - the failure of decision is, by operation of §11-108(b)(2), a denial of the appeal. Any other interpretation, short of one that is strained and, in the end, nonsensical, would render nugatory §11-108(b)(2).

425 Md. at 710.

         The Court observed that this construction was supported by the statute's legislative history. The disciplinary actions subtitle - subtitle 1 of Title 11 of the State Personnel and Pensions Article - had been enacted by the Legislature in 1996 based on the recommendations of the Task Force to Reform the State Personnel Management System. Chapter 347, Laws of Maryland 1996. Prior to 1996, administrative appeals were decided solely by the Secretary of Personnel[4] under a process with certain timing benchmarks that were difficult to meet, with the result that the average appeal took 225 days to resolve. Id. at 711. To "streamline … and simplif[y]" that system, the 1996 amendments substituted a two-tier administrative appeals system that would process appeals more efficiently and effectively with initial consideration at the agency level and with the potential for a further appeal to the Secretary of DBM, where there would be an opportunity for a hearing. The Court noted that SPP §11-108(b)(2) - the deemed denial provision - had been added by the General Assembly to expedite the process to the second tier. The Court stated:

The General Assembly's action evidences an appreciation for the notion that the head of a principal unit could not, or even should not, author in every appeal presented to him or her "a written decision that addresses each point raised in the appeal, " much less do so within fifteen days of receipt of the appeal. As we have construed it, §11-108(b)(2) ensures that an employee's appeal of disciplinary action is always ripe for pursuit of further appellate review exactly 15 days after filing.

Id. at 712-13. The Court observed that an interpretation of SPP §11-108(b)(2) that allowed an employee to delay filing a further appeal of a deemed denial of a first-tier appeal would have resulted in the lengthy delays in appeals experienced prior to the 1996 amendments. Id.

         Based on this reasoning, the Court held that an employee must invoke the second tier of the administrative appeal process within 10 days after the earlier of (1) receipt of an adverse written decision under SPP §11-109(e)(2) or (2) a deemed denial under SPP §11-108(b)(2). Id. at 713.

         B. Ms. Hughes is Disciplined and Appeals

         1. Termination of Ms. Hughes

         Although the procedural posture of this case at the time it was dismissed in the Circuit Court is somewhat unclear, [5] there does not appear to be any significant dispute as to the facts material to the issues before us. We glean the following basic facts from the pleadings and motions papers.

         Ms. Hughes was employed by DPSCS as a Parole and Probation Agent - a skilled service position in the State Personnel Management System. On August 13, 2013, shortly after Ms. Hughes arrived at work, she was observed by her supervisor as "disheveled, slurring her speech, rubbing her eyes and incoherent in thought and delivery." She was sent for a urinalysis drug test based on reasonable suspicion of substance abuse. On September 4, 2013, the medical review officer reported the results of that test as positive for illegal use of drugs.[6]

         In early October 2013, DPSCS sent Ms. Hughes a Notice of Termination from her position with the agency effective at the close of business on October 2, 2013.[7] The notice was signed by a Regional Executive Director of DPSCS as her appointing authority on September 24, 2013 - which was indicated as the "date of notice." The notice was also signed that same date by the Director of the Division of Parole and Probation. A final signature block, labeled "Approved by: Head of Principal Unit, " was signed by the Secretary of DPSCS on September 30, 2013. The notice advised her that she had 15 days, upon receipt of the notice, to file an appeal in writing to the Secretary of DPSCS. The notice did not mention that, if the Secretary of DPSCS did not respond to such an appeal within 15 days, the appeal would be deemed denied. Nor did the notice mention the right to a second-tier appeal to the Secretary of DBM for a hearing or provide a statutory citation for the administrative appeal rights (although it did generically refer to "Title 11 of the State Personnel and Pensions Article" as the authority for terminating her).

         2. First-Tier Administrative Appeal

         Ms. Hughes mailed a written appeal to the Secretary of DPSCS on October 17, 2013. The Secretary of DPSCS did not reply to Ms. Hughes' appeal. Nearly a year later, on September 16, 2014, after Ms. Hughes had obtained counsel, her lawyer sent the Secretary of DPSCS a letter requesting a meeting to discuss the matter.[8] The Secretary of DPSCS did not respond.

         3. Proceedings in the Circuit Court

         On December 18, 2014, Ms. Hughes filed a Petition for Writ of Mandamus in the Circuit Court for Baltimore County asking that court to compel DPSCS to respond to her appeal.[9] In that pleading she asserted that she had been wrongfully terminated from her position. In addition, apparently unaware of SPP §11-108(b)(2) or its significance as construed in Fisher v. Eastern Correctional Institution, she asserted that the Secretary of DPSCS had failed to respond to her timely administrative appeal and that she was entitled to a detailed written response by the Secretary of DPSCS under SPP §11-109(e)(2). She asked the court to order the Secretary to provide that response. She also asked the court to reinstate her employment with DPSCS, award her back pay and back leave time, and grant "such other relief as the Court deems fair, just and necessary."

         Ms. Hughes' reliance on SPP §11-109(e)(2) set her complaint on a collision course with this Court's decision in Fisher. Unsurprisingly, DPSCS filed a motion to dismiss that relied on SPP §11-108(b)(2), as construed in Fisher. Among other things, DPSCS argued in that motion that Ms. Hughes was not entitled to a writ of mandamus because she had failed to pursue the available administrative remedy - in particular, the second-tier administrative appeal to the Secretary of DBM under SPP §11-110. DPSCS argued that Ms. Hughes' first-tier appeal had ended with a deemed denial under SPP §11-108(b)(2) when the Secretary of DPSCS had not responded to it by the 15th day. Applying this Court's holding in Fisher, DPSCS reasoned that the deadline for seeking a second-tier review with the Secretary of DBM was, per SPP §11-110(a), 10 days after that date - a date that had long since passed. Accordingly, DPSCS concluded, her failure to pursue the available administrative remedy meant she had not been denied any right to which she was entitled and there was therefore no basis for issuing a writ of mandamus.[10]

         Confronted with SPP §11-108(b)(2) and the Fisher decision, Ms. Hughes conceded that the deemed denial provision applied to her situation, but pivoted in her response to the motion to dismiss to assert - for the first time - that she had not received adequate notice of her appeal rights, as required by SPP §11-106(a)(5). Notice was inadequate, she argued, because DPSCS had not informed her of the effect of the deemed denial provision of SPP §11-108(b)(2) on her right to seek a second-tier administrative appeal. In a supplemental response, she argued that the guarantees of procedural due process in the federal and State constitutions also required fuller notice.

         After hearing legal argument at a hearing on April 14, 2015, the Circuit Court agreed with DPSCS that, under SPP §11-108(b)(2) as construed in Fisher, Ms. Hughes' initial appeal had been denied and the 10-day period for pursuing a second-tier administrative appeal had expired. The court rejected Ms. Hughes' argument that she was entitled to fuller notice of her appeal rights, noting that DPSCS had informed her of her right to a first-tier appeal - the appeal to which she was eligible upon termination. The court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.