Court for Baltimore City Case No. 24-C-15-005164
Woodward, C.J., Friedman, Sharer, J. Frederick (Senior Judge,
Specially Assigned), JJ.
appeal we shall resolve conflicting interpretations of the
"five workdays" requirement of Maryland Code (1993,
2015 Repl. Vol.) State Personnel & Pensions, Section
11-106(c) ("SPP") as that term pertains to the
disciplinary suspension of a State employee.
issue before us, which we have recast, is:
Whether the Department of Health and Mental Hygiene
("DOH"),  appellee, gave timely notice of a
suspension without pay to appellant, Kevin
shall hold that the DOH did not give timely notice pursuant
to the statute; hence, we shall reverse the judgment of the
Circuit Court for Baltimore City.
the circumstances of appellant's employment and asserted
misconduct are not necessary for our review, we provide a
brief factual recitation for procedural context.
is a Certified Nursing Assistant employed by the Thomas B.
Finan Center, an in-patient psychiatric facility under the
management of the DOH, located in Allegany County. On the
evening of March 3, 2015, Finan Center management learned of
an incident involving Mihailovich and a patient that resulted
in injury to the patient requiring medical treatment at a
local hospital. Management determined that Mihailovich
engaged in "misconduct" by failing to follow
DOH-approved de-escalation techniques. On the next day -
March 4 - Mihailovich was placed on paid administrative leave
pending an investigation into the incident. The
administrative leave extended from March 4 through March 17,
when Mihailovich was notified that he was to be suspended for
15 days without pay.
March 30, 2015, Mihailovich noted a timely appeal to the
Secretary of the Department of Budget and Management.
Following an unsuccessful settlement conference, the case was
forwarded to the Office of Administrative Hearings. On July
27, 2015, a merits hearing was conducted, following which, on
September 9, 2015, the Administrative Law Judge (ALJ) issued
a written decision reversing the suspension, and ordered back
moved for reconsideration, challenging the ALJ's
interpretation and application of SPP § 11-106(c), which
was summarily denied. The DOH filed a request for judicial
review of the ALJ's decision in the Circuit Court for
Baltimore City. Following a hearing, the circuit court
reversed the decision of the ALJ, thus reinstating the
the context of the present appeal, "[t]he decision of
the Office of Administrative Hearings [was] the final
administrative decision[, ]" SPP § 11-110(d)(3),
and not that of the DOH or the Secretary of the Department of
Budget and Management. As the final adjudicator of contested
DOH's disciplinary decisions, the ALJ's review of
those decisions, "is bound by any agency regulation,
declaratory ruling, prior adjudication, or other settled,
preexisting policy, to the same extent as the agency is or
would have been bound if it were hearing the case." SG
§ 10-214(b). See also SPP § 11-110(c)(2).
"[b]ecause an appellate court reviews the agency
decision under the same statutory standards as the circuit
court, " Consumer Prot. Div. v. George, 383 Md.
505, 512 (2004) (quotations and citation omitted), that
"we analyze the agency's decision, not the [circuit]
court's ruling." Martin v. Allegany County Bd.
of Educ., 212 Md.App. 596, 605 (2013) (citation
omitted). We are "'limited to determining if there
is substantial evidence in the record as a whole to support
the agency's findings and conclusions, and to determine
if the administrative decision is premised upon an erroneous
conclusion of law.'" W.R. Grace & Co. v.
Swedo, 439 Md. 441, 453 (2014) (quoting Bd. of
Physician Quality Assur. v. Banks, 354 Md. 59, 67-68
fact, "when the question before the agency involves one
of statutory interpretation or an issue of law, our review is
more expansive." E. Outdoor Advert. Co. v. Mayor of
Baltimore, 146 Md.App. 283, 302 (2002) (quoting
Dep't of Labor, Licensing & Regulation v.
Muddiman, 120 Md.App. 725, 734 (1998)). As such,
"it is always within our prerogative to determine
whether an agency's conclusions of law are correct."
Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289,
298 (2015) (quotations and citation omitted). It is for this
reason that we review the agency's statutory
interpretation de novo. See Ireton v.
Chambers, 229 Md.App. 149, 155 (2016) (citing Gomez
v. Jackson Hewitt, Inc., 427 Md. 128, 142 (2012)).
See also Fraternal Order of Police Montgomery Cty. Lodge
35 v. Montgomery Cty. Exec., 210 Md.App. 117, 128
appeal requires us to review the ALJ's interpretation and
application of SPP § 11-106(c), which provides, relevant
to the issue presented:
(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
(2) Saturdays, Sundays, legal holidays, and employee leave
days are excluded in calculating the 5-workday period under
assessing the timeliness of the suspension, the ALJ was
tasked with answering two underlying questions posed by
Mihailovich: "[f]irst, what qualifies as a
'workday' under SPP section 11-106(c)[;] [a]nd
second, what constitutes 'the employee's next
shift' under that same provision when, as here, the
appointing authority has placed the employee on
administrative leave . . . [?]" The ALJ concluded that
the term "workday" was intended to relate to the
employee's schedule, rather than the appointing
authority's schedule, and that the employee's next
shift is not affected by being placed on administrative
found that, "[a]ssuming further that the Employee
normally maintains a Wednesday-through-Sunday workweek, his
next five workdays would have been: (1) Thursday, March 5;
(2) Friday, March 6; (3) Saturday, March 7; (4) Sunday, March
8; and (5) Wednesday, March 11." Based on that
interpretation, the ALJ found the suspension imposed on March
17 to be untimely, reversed the suspension, and ordered back
address the first of these two questions in our review of the
ALJ's decision and dispose of the second, accordingly.
whose schedule is a "workday" determined?
the question presented in this appeal is based largely on the
interpretation of SPP § 11-106(c), we look first to the
plain meaning of the statute.
"[l]egislation is created with a particular objective or
purpose." Bowers v. State, 227 Md.App. 310, 322
(2016) (citation omitted). As such, "[t]he cardinal rule
of statutory construction is to effectuate and carry out
legislative intent." Duffy v. CBS Corp., 232
Md.App. 602, 612 (2017) (quoting Rose v. Fox Pool
Corp., 335 Md. ...