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HEADNOTE Department of Public Safety & Correctional Services v. Constance Thomas, No. 1015, September Term, 2003 Public Employment - Correctional officer, absent from duty without notice for more than five days, was considered to have resigned, per COMAR 17.04.04.03D ("The Rule"). Thereafter, seeking to justify absence and lack of notice, the former employee An ALJ that

submitted certain written material from her physician. ruled that the termination was not disciplinary

and

resignations are not grievable. Held: The Rule provides for a post-termination review, with

discretionary power in the appointing authority to expunge the resignation under extenuating circumstances where former employee had good cause for failure to notify. This provision was

sufficiently invoked by former employee and produced a grievable issue on which she was entitled to an administrative hearing.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1015 September Term, 2003

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v.

CONSTANCE THOMAS

Eyler, James R. Adkins Rodowsky, Lawrence F. (retired, specially assigned), JJ. Opinion by Rodowsky, J. Filed: September 9, 2004

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1015 September Term, 2003

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v.

CONSTANCE THOMAS

Eyler, James R. Adkins Rodowsky, Lawrence F. (retired, specially assigned), JJ. Opinion by Rodowsky, J. Filed:

The appellee, Constance Thomas, was a correctional officer employed by the appellant, Department of Public Safety and

Correctional Services (the Department).

After Ms. Thomas had been

absent from duty without notifying her supervisor why she was absent, the Department considered that she had resigned without notice. This is the second judicial review action involving this Under the applicable

separation of Ms. Thomas from State service.

personnel regulation, the appointing authority has a discretion to expunge the resignation. For the reasons that follow, we shall We

affirm the agency's finding of resignation without notice.

shall remand in part, however, because the record fails to reveal that the Department exercised its discretion as to whether to expunge the resignation. Ms. Thomas was employed in the Division of Pretrial Detention and Services (the Division). The regulation that is pertinent to

this action is Maryland Regs. Code (COMAR) Title 17, "Department of Budget and Management," Chapter 4, Subtitle 04, "Personnel Services and and

Benefits,"

"Separations,

Reemployment,

Reinstatement," .03, "Resignations." as follows:

It provides in relevant part

"A. An employee may separate from employment by resigning. .... "D. An employee who is absent from duty without notifying the supervisor of the reasons for the absence and of the employee's intention to return to duty is absent without leave. After 5 working days from the first day of absence, the appointing authority shall

-2advise the employee by certified and regular mail sent to the employee's last address of record that the employee is considered to have resigned without notice. A resignation without notice may be expunged by the appointing authority when extenuating circumstances exist, and the employee had good cause for not notifying the appointing authority. "E. Resignations shall be reported to the Secretary. Resignations that are tendered without the proper notice or resignations without notice shall be entered in the employee's personnel record."1 COMAR 17.04.04.03D is hereinafter referred to as "the Rule." The Department also has adopted Standards of Conduct, a copy of which Ms. Thomas acknowledged receiving. Standard of Conduct III, "ATTENDANCE In relevant part, Part A,

REQUIREMENTS,"

"Employee Responsibilities," reads as follows: "2. In situations where an employee does not have leave approved and will not be reporting for duty as required, he/she shall contact his/her supervisor with a request for unscheduled leave.

Resignations based on 17.04.04.03C which provides:

1

notice

are

addressed

in

COMAR

"C. An employee who wishes to resign in good standing shall give the appointing authority, in writing, at least 2 weeks notice of resignation. If more than 2 weeks notice is required by an appointing authority, it must be approved by the Secretary. An appointing authority may not require more than 30 days notice of a resignation. If more than 2 weeks notice is required, the employee shall be informed of the longer notice requirement during the orientation required by State Personnel and Pensions Article,

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