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REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 306

September Term, 2000 _________________________________

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

v.

JOSEPH WILLIAM BEARD AND MARY W. OWENS, PERSONAL REPRESENTATIVES OF THE ESTATE OF JEFFREY BEARD

_________________________________

Hollander Krauser, Dugan, Robert N. (Specially assigned) JJ. ________________________________

Opinion by Krauser, J.

________________________________ Filed: January 30, 2002

The issue before us is whether the Department of Public Safety and Correctional Services, appellant, can terminate the employment of a Drinking Driver Monitor because he was convicted of driving while under the influence of alcohol. The answer to

that question is neither as simple nor as predictable as it might appear at first blush. Our review of relevant law reveals, on the one hand, an Executive Order that imposes a progressive scheme of

disciplinary action and appears to prohibit termination for a first offense of this nature, and, on the other, an

administrative regulation that mandates automatic termination for such an offense. The relationship between the two lies at It is our task to determine which In the course

the core of this appeal.

governs appellant's dismissal and to what effect.

of doing so, we hope to clarify the nature of executive orders and their relationship to regulations propounded by state

agencies. The employee, whose misadventure gave rise to this case, was Jeffrey Beard. Monitor Mr. Beard's employment as a Drinking Driver

with appellant was terminated when he was convicted of

driving while under the influence of alcohol by the District Court for Allegany County. Beard appealed that termination to

the Secretary of Budget and Management, who referred the matter to the Office of Administrative Hearings. A hearing was then

held

before

an

Administrative

Law

Judge

("ALJ").

Citing

Executive Order 01.01.1991.16, containing Maryland's Substance Abuse Policy for Executive Branch employees, the ALJ ordered, among other things, that Beard's termination be reversed and that he be reinstated under certain conditions. Following that

decision, appellant filed a petition for judicial review in the Circuit Court for Baltimore City. That court, after conducting Appellant then noted

a hearing, affirmed the ALJ's decision. this appeal.

While this appeal was pending, Mr. Beard passed away. Thereafter, counsel for Mr. Beard filed a motion to substitute the estate of Mr. Beard as appellee. We granted that motion and

ordered that Joseph William Beard and Mary W. Owens, personal representatives of the Estate of Jeffrey Beard, be substituted as appellees. Appellant presents three questions for our review. are: I. Did the administrative law judge err in holding that the Substance Abuse Policy, contained in Executive Order 01.01.1991.16, applied to the termination of appellee's state employment as a Drinking Driver Monitor? Did the administrative law judge err in holding that the Substance Abuse Policy prevented the termination of appellee's employment? -2They

II.

III.

Did the administrative law judge err by reinstating appellee under certain conditions with back pay rather than remanding the case to the Division of Parole and Probation for disposition?

For the reasons that follow, we hold that the ALJ did not err in applying the disciplinary provisions of the Substance Abuse Policy to the case sub judice. That policy, promulgated

by Executive Order 01.01.1991.16, is applicable to an employee of the Executive Branch of State Government who is convicted1 of an "off-the-workplace alcohol driving offense." And it governs

the disciplinary actions that may be taken against such an employee for that offense. We further hold that the ALJ correctly concluded that the Substance Abuse Policy prohibited appellant from terminating Beard's employment for his first conviction of an "off-theworkplace alcohol driving offense." the ALJ did not exceed his Finally, we conclude that by conditionally

authority

reinstating Beard with back-pay rather than remanding the matter

1 Because probations before judgment are frequently granted by trial courts in such situations, we note that, pursuant to State Personnel and Pensions

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Maryland Law