Richardson v. Md. Dep't of Health

247 Md.App. 563

239 A.3d 695

Ronald RICHARDSON

v.MARYLAND DEPARTMENT OF HEALTH

No. 998, Sept. Term, 2018

Court of Special Appeals of Maryland.

September 29, 2020

Argued by: Hillary Galloway Davis (Davis Law Office, PA, on the brief), Baltimore, MD, for Appellant.

Argued by: Adam J. Storch (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.

Nazarian, Reed, Keith R. Truffer (Specially Assigned), JJ.

Truffer, J. Appellant Ronald Richardson was employed at the John L. Gilder Regional Institute for Children and Adolescents ("RICA" or the "Agency"), an agency within the Appellee, Maryland Department of Health ("MDH"). On September 2, 2016, Mr. Richardson was terminated for what was stated to be a failure to use proper hiring and classification procedures. Mr. Richardson challenged the termination of his employment pursuant to MD. CODE ANN., STATE PERS. & PENS. ("SPP") § 11-109. The Office of Administrative Hearings ("OAH") held a contested case hearing on March 31, 2017 and May 10, 2017. The Administrative Law Judge ("ALJ") affirmed Mr. Richardson's termination in a written decision dated June 22, 2017. Mr. Richardson sought judicial review of the ALJ's decision before the Circuit Court for Baltimore City. On May 9, 2018, the court issued a memorandum opinion and order affirming the ALJ's decision.

On appeal to this Court, Mr. Richardson contends that his termination was erroneous as a matter of law because the MDH did not satisfy the procedural requirements of MD. CODE ANN. , SPP § 11-106 prior to taking disciplinary action.

BACKGROUND

The relevant facts found by the ALJ are set forth below.

Mr. Richardson was employed as a Personnel Director at RICA from 2004 until he was terminated on September 2, 2016. Mr. Richardson was responsible for hiring and recruiting new employees. At all times relevant to this appeal, Kenneth Basler, the Chief Executive Officer at RICA, was Mr. Richardson's appointing authority.

In November 2014, the MDH implemented a policy in which all new hires, including contractual positions, were to be processed using JobAps, a computer software application. Mr. Richardson was trained to use JobAps for hiring and recruitment purposes. The hiring and recruitment policies implemented through the JobAps system were designed to ensure qualified candidates were hired.

On or about July 26, 2016, Mr. Richardson hired Maurice Nelson as a Direct Care Trainee, but did not use the JobAps system for the recruitment or hiring process. On the very date of his hire, Mr. Nelson was reclassified as an Office Services Clerk and then further reclassified as a Computer Specialist Trainee.¹ No documentation was provided to support the reclassifications. In August of 2016, the Department of Budget and Management ("DBM") discovered that Mr. Richardson had not followed the proper procedures in hiring Mr. Nelson and contacted the Office of Human Resources ("OHR") about the hire. Between August 8, 2016 and August 12, 2016 OHR staff made multiple requests to Mr. Richardson for documents regarding the hire of Mr. Nelson. Mr. Richardson failed to provide any of the requested documents.

Mr. Richardson's lack of response prompted OHR staff to contact Mr. Basler about their concerns with Mr. Richardson's hiring of Mr. Nelson. The concerns triggered an investigation, which Mr. Basler conducted with assistance from the OHR, into all of the appointments that had been processed or approved by Mr. Richardson. The details of that investigation, significant to the outcome of this appeal, are as follows.

On August 22, 2016, Mr. Basler first interviewed Mr. Richardson about his hiring of Mr. Nelson. On August 30, 2016, Mr. Basler met with Mr. Richardson again for a mitigation conference. At that meeting, Mr. Basler advised Mr. Richardson that he was being disciplined for his failure to follow proper hiring procedures. Mr. Richardson made no effort to refute the allegations and maintained only that he had not been trained in JobAps. Immediately following the mitigation conference, Mr. Richardson was given written notice that he was being placed on paid administrative leave. The notice stated that, while on leave, Mr. Richardson was required to "be available at [his] home address and telephone number during normal business hours."

On September 2, 2016, while Mr. Richardson remained on paid administrative leave and was required to be available, Mr. Basler sent Mr. Richardson a text message at 8:55 a.m., requesting that he attend a 12:30 p.m. meeting that day at the RICA facility. Mr. Richardson did not respond. Mr. Basler called Mr. Richardson twice on September 2, 2016, once at 9:00 a.m. and once at 12:15 p.m. After Mr. Richardson failed to respond to Mr. Basler's phone calls or text message, and failed to appear for the meeting, Mr. Basler arranged to have the Notice of Termination personally delivered to Mr. Richardson at his home address. The notice terminated Mr. Richardson's employment without prejudice effective September 2, 2016. The process server attached the Notice of Termination to Mr. Richardson's door at approximately 8:25 p.m. on September 2, 2016. By 8:55 p.m. that same evening the notice had been removed from the door.

STANDARD OF REVIEW

When an appellate court reviews the final decision of an administrative agency, we look through the circuit court's decision, and review the decision of the agency, here the ALJ. Cosby v. Dep't of Human Res. , 425 Md. 629, 637, 42 A.3d 596, 601 (2012). Our role is "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." Milliman, Inc. v. Md. State Ret. and Pension Sys. , 421 Md. 130, 151, 25 A.3d 988, 1001 (2011) (citation omitted).

In applying the substantial evidence test, we must decide, "after reviewing the evidence in a light most favorable to the administrative agency, ‘whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ " Colburn v. Dep't of Pub. Safety & Corr. Serv. , 403 Md. 115, 128, 939 A.2d 716, 724 (2008) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68, 729 A.2d 376, 380 (1999) ). We defer to the agency's (i) assessment of witness credibility, (ii) resolution of conflicting evidence, and (iii) inferences drawn from the evidence. Schwartz v. Md. Dep't of Nat. Res. , 385 Md. 534, 554, 870 A.2d 168 (2005). When determining the validity of an agency's conclusions of law, we give appropriate deference to the agency's expertise in its own field. People's Counsel for Balt. Cnty. v. Surina , 400 Md. 662, 682, 929 A.2d 899, 911 (2007). Thus, "an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts." Md. Aviation Admin. v. Noland , 386 Md. 556, 572, 873 A.2d 1145, 1154 (2005) (quoting Banks, 354 Md. at 69, 729 A.2d at 381 ).

DISCUSSION

Title 11, Subtitle 1 of the State Personnel and Pensions Article governs disciplinary actions concerning state employees. See MD. CODE ANN ., SPP § 11-101 et seq . The statute sets forth certain procedures that the appointing authority must follow prior to taking any disciplinary action. See MD. CODE ANN. , SPP § 11-106. Section 11-106 provides in pertinent part:

(a) 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) [A]n 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.

Mr. Richardson presents three procedural challenges to his termination from State employment which we have summarized as follows:

1. The notice of termination was untimely because the appointing authority did not take disciplinary action within 30 days after acquiring knowledge of Mr. Richardson's alleged misconduct, in violation of MD. CODE ANN. , SPP § 11-106(b) ;

2. The appointing authority failed to provide Mr. Richardson with notice of the termination before such termination was effective, in violation of MD. CODE ANN. , SPP § 11-106(a)(5) ; and

3. The appointing authority failed to provide Mr. Richardson with an explanation of the evidence against him or to consider any mitigating circumstances, in violation of MD. CODE ANN. , SPP § 11-106(a)(3) and Code of Maryland Regulations ("COMAR") 17.04.05.04(D)(1) and (4).

We must determine whether there was substantial evidence to support the ALJ's findings and conclusions as to each of these issues.

I. Timeliness of Disciplinary Action

Mr. Richardson first argues that the September 2, 2016 Notice of Termination was untimely, in violation of MD. CODE ANN. , SPP § 11-106(b). Specifically, Mr. Richardson contends that his appointing authority first had notice of the alleged misconduct on June 6, 2016, when Mr. Basler was copied on an email message from OHR staff regarding Mr. Richardson's attempt to appoint an employee without going through the recruitment process in JobAps.

MD. CODE ANN. , SPP § 11-106(b) sets the general time limitation for an agency's disciplinary action. The statute prohibits the imposition of discipline more than thirty days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed. MD. CODE ANN. , SPP § 11-106(b) ; see also W. Corr. Inst. v. Geiger, 371 Md. 125, 144, 807 A.2d 32, 44 (2002).

The appointing authority acquires knowledge of misconduct, triggering the running of the thirty-day period, when such knowledge is ...