Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1391 September Term, 2004

STANLEY McCLELLAN v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES

Hollander, Eyler, Deborah S., Alpert, Paul E. (Ret'd, Specially Assigned), JJ. Opinion by Eyler, Deborah S., J.

Filed: September 19, 2005

In a final administrative proceeding, Stanley McClellan, the appellant, was terminated from his employment as a Correctional Officer II with the Division of Pretrial Detention and Services ("Division"), which is part of the Department of Public Safety and Correctional Services ("Department"). He pursued an action for The

judicial review in the Circuit Court for Baltimore City. Department appeared as the respondent. the termination decision.

The circuit court affirmed

On appeal, the appellant poses three questions for review, which we have rephrased slightly: I. Did the Administrative Law Judge ("ALJ") err in finding that the Department complied with the 30 day time limit for imposing discipline, under Md. Code (1993, 1997 Repl. Vol.), section 11-106(b) of the State Personnel and Pensions Article ("SPP")? Did the ALJ err in finding that the appellant's relationship with a former inmate outside the institution was grounds for discipline?

II.

III. Assuming contact with a former inmate is not a third category infraction, did the ALJ err in upholding the sanction of termination for the remaining second category infractions? For the following reasons, we shall vacate the judgment of the circuit court and remand the matter for administrative proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS
Events of November 28-29, 2001 At all relevant times, the appellant was employed by the Division as a Correctional Officer II, at the Baltimore City Detention Center ("BCDC").

The incident central to this case happened when the appellant was off-duty. On November 28, 2001, at about 8:00 p.m., the

appellant approached a security guard at Mondawmin Mall in West Baltimore and reported that someone had fired shots at him. He

told the security guard he had been driving nearby and stopped at Frederick Douglass High School, across the street from the mall, to urinate. As he was walking back to his car, in the school parking He ran across Gwynns Falls Parkway to the The appellant did not say

lot, he heard gunshots.

mall, and immediately sought help.

anything to the security guard about anyone else. The security guard called the Baltimore City Police Department ("BCPD"), and officers arrived. The appellant told the officers he had stopped at the high school to urinate and, as he was returning to his car, heard shots. He said he had not seen or spoken to

anyone before the shooting, and did not see the shooter. The investigating officers quickly learned that, at

approximately the same time and the same location as the shooting reported by the appellant, a former BCDC inmate named Solothal Thomas had been shot and wounded. For five years, while

incarcerated at the BCDC, Thomas had worked on a paint crew that the appellant supervised. The police officers interviewed Thomas at the scene. Thomas

told them the appellant had been present with him at the school parking lot when the shooting happened. According to Thomas, a man

2

wearing a gray "hoodie" approached the two of them and started shooting, striking him (Thomas) in the back. That same night, as part of their investigation, the BCPD officers performed a gunshot residue test on the appellant's hands. The materials analysis. Events from November 30, 2001, to March 14, 2002 On December 3, 2001, the BCPD investigating officers contacted the Division's Bureau of Special Operations ("Bureau") about their November 28 encounter with the appellant. Internal Investigations Unit ("IIU"). The Bureau includes the gathered were sent to the BCPD laboratory for

At the relevant time, Major

Melvin Richardson was the commander of the Bureau. Also on December 3, 2001, the appellant submitted a "Matter of Record" ("MOR") to the Division, setting forth his version of the November 28 incident. He said he had been walking back to his car He ran

when he heard gunshots and "the clicking sound of a gun." toward the mall;

as he did so, he turned and saw an "unknown Black

male, wearing a short red jacket," running across the school parking lot "near [his] car." He further recounted reporting the

shooting to a mall security guard; being taken to the school parking lot; being transported to the Central District station house, where his hands were tested for gunshot residue; and then being transported to the Western District station house, where he was interrogated by BCPD Detective Russell Robar and his partner

3

(whose name does not appear in the record).

The appellant stated

that, during the interrogation, Detective Robar's partner said he "did not like Jail Guards" and that one correctional officer already had lost his job "over the victim Thomas." The appellant

asked the officers whether they were talking about Solothal Thomas, and what that had to do with him; and told them, "No one was with me at the time, someone was shooting at me. I did not see Solothal

Thomas or anyone else I knew during the time of the shooting." The next day, December 4, the appellant submitted a second MOR, stating that he had noticed a red car following him on December 1, and that its occupants were looking at him; that he had seen the red car on the day of the shooting; and that he had given that information to a "Detective Robinson" of the BCPD and she had promised to investigate.1 Also on December 4, Detective Robar wrote a memorandum to his superior officer, Lieutenant Deborah Owens, about his interrogation of the appellant on November 28. He commented that the appellant

was not cooperative during the interview and his version of events was inconsistent with Thomas's version of events and with evidence found at the scene of the shooting. (He did not specify what

evidence he was referring to.) Detective Robar also noted that the

The appellant also noted that he had contacted "Internal Investigations" about filing a complaint against one of the detectives who had interrogated him, but had yet to hear anything in response. 4

1

appellant and Thomas were "previous friends and [had] known each other for several years." to schedule another He stated that an attempt would be made with the appellant to gather

interview

additional information. And also on December 4, 2001, Major Richardson submitted a memorandum to Lamont Flanagan, Commissioner of the Division,

informing him that the appellant had been questioned by the BCPD about a November 28 shooting in West Baltimore involving former inmate Thomas; and that "a case [was] being developed to ascertain [the appellant's] involvement[.]" Major Richardson further stated

in the memorandum that Thomas had worked under the appellant's supervision at the BCDC and the appellant had admitted to knowing Thomas outside of that setting. He concluded by noting, "Case

assessment is to be provided by BCPD after their reinterview of [the appellant] on 12-4-01." Sometime in December 2001, on a date not disclosed in the record, Major Richardson and Captain Frank Day, another employee with the Bureau, questioned the appellant about the November 28 incident and his relationship with Thomas. Bureau staff also

questioned Thomas at a date "close to the time that the incident occurred." On December 20, 2001, Detective Robar's December 4 memorandum was received by the Division, and was signed by Major Richardson. Events from March 15, 2002, to June 26, 2002

5

Nothing further happened until March 15, 2002. BCPD issued a Gunshot Primer Residue Report

That day, the Report")

("the

documenting the results of the test performed on the appellant's hands. The Report showed that gunshot residue was found on the

appellant's left hand and stated that the most likely explanation for that was that the appellant's hands had been "immediately adjacent to a discharging firearm or were themselves used to fire the firearm within a few hours" of the time the test was taken on November 28, 2001. The Division received the Report on April 10, 2002. Deputy

Commissioner Benjamin Brown learned of the Report that same day. On April 11, 2002, the appellant was asked to submit another MOR to explain the gunshot residue test results. The appellant did so. In an MOR that same day, the appellant said: I know that a mistake or error was made on the Report. Reason Being; at the time of the incident I had not handled or touch[ed] any firearms since the last time I went to the range at work! And that was more than a few hours, that was months. I did not shoot any person or [see] anyone get shot on the date of November 28, 2001 or any other date. The next day, April 12, 2002, Major Richardson submitted to Commissioner Flanagan a written investigative report about the November 28 incident, the appellant's MORs, and the Report. Major

Richardson noted that the results of the gunshot residue test "were in direct opposition to the statements provided by [the appellant] of his involvement and or knowledge of the November incident." He

6

concluded

that

the

appellant and

had

violated of the

several Code

Department of Maryland

Standards of

Conduct

provisions

Regulations ("COMAR"). On April 25, 2002, Deputy Commissioner Brown signed the appellant's Notice of Termination, as his "appointing authority." As pertinent to the case, the Notice of Termination advised the appellant that he was being terminated for violating provisions of COMAR 17.04.05.04B prohibiting conduct that would bring the State into disrepute; involving dishonesty, fraud, deceit,

misrepresentation, or illegality; willfully making a false report; knowingly assisting another in unlawful conduct; insubordination; and committing an act, other than those already specified,

detrimental to the State.2

The provisions of COMAR 17.04.05.04B that the appellant was charged with violating are: B. An employee may be disciplined for engaging in any of the following actions: (3) Being guilty of conduct that has brought or, if publicized, would bring the State into disrepute; (8) Engaging in conduct involving dishonesty, fraud, deceit, misrepresentation, or illegality; (10) Wilfully making a false official statement or report; (11) Knowingly assisting another in conduct in violation of State Personnel and Pensions Article, Annotated Code of Maryland, the regulations in this chapter, or any other lawful agency policy; (12) Violating a lawful order or failing to obey a lawful order given by a superior, or engaging in conduct, violating a lawful order, or (continued...) 7

2

The Notice of Termination further advised the appellant that he had violated provisions of the Department Standards of Conduct prohibiting conduct unbecoming an employee of the Department; failure to perform duties in a manner consistent with Standards; making a false or an inaccurate report; committing second category infractions by making a false report and by insubordination; and committing a third category infraction or by engaging in an [an]

"[u]nprofessional

personal

relationship

contacts

with

inmate, offender or client."3

2

(...continued) failing to obey a lawful order which amounts to insubordination; (15) Committing another act, not previously specified, when there is a connection between the employee's activities and an identifiable detriment to the State.

The Standards of Conduct that the appellant was charged with violating are: II.B. Personal Conduct 1. Each employee shall conduct him/herself at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any employee of the Department, either within or outside of his/her place of employment, which tends to undermine the good order, efficiency, or discipline of the Department, or which reflects discredit upon the Department or any employee thereof, or which is prejudicial to the efficiency and discipline of the Department, even though these offenses may not be specifically enumerated or stated, shall be considered conduct unbecoming an employee of the Agency, and subject the employee to disciplinary (continued...) 8

3

Under "Explanation For Termination," the Notice stated: On December 3, 2001, the Bureau of Special Operations of the Department of Pretrial Detention and Services [r]eceived information that Correctional Officer II Mr. Stanley McClellan had been questioned by the Baltimore City Police Department in reference to a shooting incident that occurred in West Baltimore on November 28, 2001. According to the police, the victim in the shooting was a former inmate, Solothal Thomas. At the time of the shooting, Officer McClellan claimed that he had stopped his vehicle at Douglas[s] High School to urinate. While he was so engaged, he claimed he heard gunshots, and the gunshots were directed at him. Officer

(...continued) action by the Agency. . . . II.J. Performance of Duties An employee of the Department shall be responsible for his/her own actions, as well as the proper performance of his/her duties. In carrying out the functions and objectives of the Department, an employee shall perform his/her duties in a manner that will maintain the highest standards of efficiency. . . . II.S. Reports 1. An employee may not make any false oral or written statement or misrepresent any material fact, under any circumstance, with the intent to mislead any person or tribunal. Reports submitted by employees shall be clear, concise, factual and accurate. There is a distinction between the two kinds of reports: a. A false report is one which is intentionally untrue, deceptive or made with the intent to deceive the person to whom it is directed. b. An inaccurate report is one that is untrue by mistake or accident and made in good faith. . . . IV.E. 2(a) Second Category Infractions (9) Insubordination. (14) Filing of a false report. 3(a) Third Category Infractions (10) Unprofessional personal relationship or contacts with inmate, offender or client. 9

3

McClellan stated to police that he then ran across the street to Mondawmin Mall and contacted security to report the shooting. When the police arrived, Officer McClellan was uncooperative and evasive about the circumstances surrounding the shooting. Based on his lack of cooperation and the statements of former inmate Solothal Thomas'[s] statement that Officer McClellan was there to meet him, the police requested that a gunshot residue test be conducted on Officer McClellan. During the shooting, former inmate Solothal Thomas was shot and wounded. On April 11, 2002, Officer McClellan was questioned again concerning the incident and denied any involvement. However, the gunshot residue test conducted by the Baltimore City Police Department proved positive for gunshot residue on Officer McClellan's left hand. Clearly the positive gunshot residue test results revealed that Officer McClellan was less than truthful about the incident. Moreover, Officer McClellan knew former inmate [Thomas] from the paint crew at the institution. Office[r] McClellan's failure to provide an accurate account of the shooting incident, his inappropriate relationship with a former inmate and his failure to cooperate with police during the investigation make him an unacceptable candidate for continued employment as a correctional officer. Officer McClellan has failed to offer any facts to establish how the gunshot residue came to be on his hand. Honesty and integrity are essential characteristics for correctional officers. Mr. McClellan has failed to demonstrate either. Therefore, the proposal to terminate his employment is the most prudent course of action. The Notice of Termination was approved by Stuart Simms, who was then Secretary of the Department, on April 30. On May 8, the appellant appealed his termination to Secretary Simms. The appeal was denied on May 24. The appeal then was

forwarded to the Office of Administrative Hearings on June 26, 2002, pursuant to SPP section 11-110. handle the matter. Motion Proceedings Before the ALJ 10 An ALJ was assigned to

On October 4, 2002, the appellant filed a "motion to dismiss" the termination, alleging that it was untimely under SPP section 11-106(b), which states, in relevant part, that "an 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." An evidentiary hearing on the motion was held on April 25, 2003. The appellant testified that he immediately informed his about the November 28 incident; that he was

shift commander

instructed to write a report about what had happened, which he did; and that he was interviewed by Major Richardson "a couple days" after the incident. The Division called Deputy Commissioner Brown and Major

Richardson as witnesses. Deputy Commissioner Brown testified that it was "normal" for the Bureau to conduct investigations of employee misconduct and that Major Richardson "works for" Commissioner Flanagan. Deputy

Commissioner Brown learned of the November 28 incident on December 4, when he read Major Richardson's memorandum to Commissioner Flanagan. In his view, there was "nothing in that report to

indicate a need to consider" taking action against the appellant. The MORs and Major Richardson's December 4 memorandum were not part of an "ongoing investigation." Rather, they were "normal and routine communications." An investigation was not conducted until

11

April 10, when the Division received the Gunshot Residue Test Report. The bases for the appellant's termination were "the

charges that came out of the investigation, all of which were sustained during the investigation, specifically that investigation started from the report by the police of the positive test for gunshot residue." Deputy Commissioner Brown never saw the December 4 memorandum from Detective Robar to Lieutenant Owens. He acknowledged that the presence of Major Richardson's signature on that document showed that Major Richardson received it on December 20. Departmental requirement for the IIU to There was no its own

conduct

investigation when the BCPD was investigating an employee, absent a "formal allegation" by the BCPD. According to Deputy

Commissioner Brown, Detective Robar's December 4 memorandum was not "prima facie evidence of alleged false statements given to a law enforcement official" and thus Major Richardson was not required to conduct any investigation upon receiving it. Major Richardson testified that an "investigation" by the Bureau started upon receipt of information from the BCPD about the shooting. He acknowledged that, if a law enforcement agency

reported to the Bureau that a Division employee was "impeding the process of an investigation," the Bureau would "approach that employee, ask for some clarification, and as to conducting an

12

investigation or interrogation or whatever you want to call it with that employee, it would be done." According to Major Richardson, sometime in December 2001, the Bureau staff, including Captain Day, questioned the appellant and Thomas. He (Richardson) questioned the appellant "in reference to This questioning was an "internal"

the clarity of the reports."

investigation. Also as part of the investigation "stemming from the [December 4 memorandum by Detective Robar,]" Major Richardson questioned the appellant and Thomas about "issues of

fraternization." In deciding what action to take, Major Richardson gave "equal weight" to the appellant's statements and Detective Robar's

December 4 memorandum.

He had "no reason to believe that [the

appellant's] involvement" in the shooting incident "was anything but what he had indicated to us"; therefore, he accepted the appellant's portrayal of himself as a victim in the events of November 28. At that point, according to Major Richardson, "we He did not

could proceed no further" and no action was taken.

inform his "appointing authority" about the investigation because there "was nothing to tell. Unless it could be substantiated,

there was nothing that we felt we needed to tell the appointing authority about at that time." "The investigation as far as

information gathering, continuing to interview [the appellant], came to an end in November or December[.]"

13

Major Richardson testified that everything changed when the Bureau received the gunshot residue test report: difference . . . in the entire investigation." that made "the He acknowledged

knowing in December that the BCPD had gathered the material from the appellant for testing on November 28, and that it would take "some time" for the test results to come back. The investigation

"took on a different phase, if you want to call it that, once the information about the gunshot residue came in." At that point,

Major Richardson notified the "appointing authority" of the results of the gunshot residue test. The appellant's lawyer argued in closing that the triggering date for the Division to take disciplinary action under SPP section 11-106(b) Richardson was at the latest December Robar's 20, 2001, 4 when Major

received

Detective

December

memorandum.

Counsel for the Division responded that the triggering date was April 10, 2002, when Deputy Commissioner Brown received the Gunshot Residue Test Report. The ALJ took the case under advisement. On June 5, 2003, he

issued a written decision finding that the Division had complied with the 30 day time period established by SPP section 11-106(b). We shall discuss the basis for that decision later in this opinion. Merits Proceedings Before ALJ An evidentiary hearing on the merits of the appellant's termination from employment was held on November 26, 2003. The

14

Division called as witnesses Joseph Harant, a criminalist with the BCPD, and Major Richardson. Harant was qualified as an expert in trace analysis and gunshot residue testing. He testified that the gunshot residue test on the appellant's hands revealed residue on his left hand, but not on his right hand, even though the appellant is right-handed, and opined that those findings could be explained on several bases: residue particles could have fallen off the appellant's right hand; he could have been wearing a glove on his right hand; or he could have been in close proximity to the weapon (within three feet of it) when it was fired. Major Richardson testified that the appellant was terminated because he did not give a truthful statement about the November 28 incident, and that, in the view of the administration, this was not acceptable behavior for a correctional officer. length of service, his overall performance, The appellant's and his clean

disciplinary record were taken into account when, at the time of the November 28 incident, management made the decision to believe the appellant's statements and not to take any action. The appellant testified on his own behalf. He gave his He denied

account of the events leading up to his termination.

having a relationship that was "other than professional" with Thomas. He acknowledged having seen Thomas several times subsequent to Thomas's release from the BCDC. He denied having handled a gun

15

on November 28, 2001.

He attempted to explain the gunshot residue

test results by saying that he must have picked up residue "when [he] went into the door into the garage" at the police station. The appellant also called three witnesses: Michele Edwards,

a co-worker, who testified that the appellant had told her about being questioned by the police on December 3; Stacey Lyles, the appellant's supervisor, who testified that the appellant was a "good officer"; and he had Kenneth no Bartee, to another question co-worker, the who

testified that

reason

appellant's

integrity as it related to dealing with inmates. The Division's lawyer argued in closing that the appellant violated the provisions of the Standards of Conduct and COMAR by giving false reports, "particularly the report of April 11th, 2002." He also argued that the appellant had violated the

provisions of the Standards of Conduct dealing with fraternization because Thomas was an "offender." Counsel for the appellant responded that several employees had testified that he was a good officer, and that Harant had not testified that he had fired a weapon, only that a weapon had been fired near him. The ALJ took the case under advisement. On January 9, 2004, the ALJ issued a written decision He made

affirming the appellant's termination by the Department. the following first level factual findings.

16

The appellant intentionally met with Thomas on the parking lot of Frederick Douglass High School on the night of November 28, 2001. During that meeting, shots were fired and Thomas suffered a The appellant ran across the street to the mall and

gunshot wound.

reported that shots had been fired at him, without making reference to Thomas. When the police came, the appellant gave them the same

story, without any reference to Thomas, and saying that he did not see the shooter. In his MORs of December 3 and 4, 2001, the appellant denied seeing or speaking to Thomas on the night of November 28, firing a weapon that night, or knowing anything about the shooting of Thomas. In fact, based on the gunshot residue test results

obtained by the Division on April 10, 2002, the appellant either fired a gun that night, or was within three feet of someone who fired a gun. The appellant's April 11, 2002 MOR failed to account

for the presence of gunshot residue on his left hand on November 28; and in that MOR, he said he had not fired a weapon that day, or within several months prior. The appellant received a Notice of

Termination based on his alleged failure to provide an accurate account of the shooting incident, his inappropriate relationship with a former inmate, and his failure to cooperate with the police during the investigation of the shooting incident. On those findings, and based on a negative demeanor-based credibility assessment of the appellant, the ALJ concluded that the

17

Department proved, by a preponderance of the evidence, that the appellant violated COMAR sections 17.04.05.04B(3), (8), (10), (11), (12), and (15); and Standards of Conduct II.B(1), (J), (S),

IV.E.2.(a)(14), and IV.E.3.(a)(10).4

The ALJ determined that,

"even without the gunshot residue evidence," the evidence supported findings that the appellant "failed to provide an accurate account of the shooting incident . . .; that he did not cooperate fully with the police investigation [of] the matter; and that he

maintained an inappropriate relationship with a former inmate[.]" The ALJ rejected the appellant's arguments that the gunshot residue test results were contaminated, or that chain of custody had not been proven, and, crediting Harant's testimony, concluded that the test results showed that the appellant "was not

forthcoming as to his involvement in the incident." Circuit Court Judicial Review On judicial February review 6, in 2004, the the appellant court, filed an action the for

circuit

challenging

ALJ's

The Notice of Termination also had advised the appellant that he had violated SPP section 11-105(1)(i), which provides that "intentional conduct, without justification, that seriously injures another person" is a cause for automatic termination of employment. The ALJ concluded that the Department did not meet its burden of showing a violation of that statute. The ALJ found that the "circumstances of the discharge of a firearm during the incident remain sufficiently murky as to preclude a finding that the Appellant in fact shot Thomas." Also, the ALJ made no mention or finding in his written decision about the insubordination charge (violation of Standard of Conduct IV.E.2(a)(9)). 18

4

decision.

Both parties filed legal memoranda.

On August 2, 2004,

the court issued a memorandum opinion and order affirming the ALJ's decision. The appellant noted a timely appeal.

DISCUSSION
Standard of Review When reviewing a decision of an administrative agency, our role is "precisely the same as that of the circuit court." B&S

Marketing Enterprises, LLC v. Consumer Protection Div., 153 Md. App. 130, 150 (2003) (quoting Dep't Of Health and Mental Hygiene v. Shrieves, 100 Md. App. 283, 303-04 (1994)). decision of the administrative agency itself. We review only the Maryland Dep't. of

Public Safety & Correctional Services v. PHP Healthcare Corp., 151 Md. App. 182, 194 (2003). Our review is a two-fold inquiry: we determine whether there is substantial evidence in the record to support the agency's findings and conclusions and whether the agency's decision is premised upon an erroneous conclusion of law. Motor Vehicle

Administration v. Lytle, 374 Md. 37, 56 (2003); Kram v. Maryland Military Dep't., 146 Md. App. 407, 411-12 (2002). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sadler v. Dimensions

Healthcare Corp., 378 Md. 509, 529-30 (2003); Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 19 369 Md. 439, 451 (2002).

Substantial evidence review is narrow; the question is not whether we would have reached the same conclusions, but merely whether "a reasoning mind" could have reached those conclusions on the record before the agency. Stansbury v. Jones, 372 Md. 172, 182-83 (2002). We appraise an agency's fact finding in the light most

favorable to the agency, and this deference extends to subsequent inferences drawn from that fact finding, so long as supported by the record. Schwartz v. Maryland Dep't. Of Natural Resources, 385 Md. 534, 554 (2005). We give great deference to the agency's assessment of the credibility of the witnesses. Gigeous v. Eastern Correctional Institution, 363 Md. 481, 504 (2001); Finucan v. Maryland State Bd. of Physician Quality Assurance, 151 Md. App. 399, 421 (2003). When an issue is a pure question of law, a reviewing court may always substitute its judgment for that of the administrative agency. Spencer v. Maryland State Bd. of Pharmacy, 380 Md. 515, 528 (2004); Ocean City Police Dep't v. Marshall, 158 Md. App. 115, 122 (2004). I. The appellant contends the ALJ erred in denying his motion to dismiss the disciplinary action for failure to comply with the 30day time limit for imposing discipline under SPP section 11-106(b). (a) SPP section 11-106 provides: 20

(a)

(b)

(c)

Procedure - 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. Time limit - Except as provided in subsection (c) of this section, an 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. Suspension - (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 is imposed. (2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection.

(Emphasis added.) Pursuant to SPP section 1-101(b), the "appointing authority" is "an individual or a unit of government that has the power to make appointments and terminate employment." In Western Correctional Institution v. Geiger, 371 Md. 125, 144 (2002), the Court of Appeals held that an appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed, within the meaning of SPP section 11-106(b), when the appointing authority has "knowledge sufficient to order an investigation" into the alleged misconduct.

21

In the Court of Appeals, Geiger was a consolidated review of three cases, from three different counties, in which correctional employees were disciplined more than 30 days after their appointing authorities learned of an allegation of misconduct. In an action

for judicial review in one case (employee Pflaumer), the circuit court affirmed the disciplinary action. section 11-106(b) be could not be 30 It reasoned that SPP as requiring that

construed days of

discipline

imposed

within

acquiring

knowledge

sufficient to initiate an investigation, because, if that were the case, and an appointing authority discovered the "most credible evidence of misconduct" on the 31st day, disciplinary action could not be taken. The circuit court concluded that that would lead to Id. at 136.

"absurd results."

In separate appeals, this Court affirmed the disciplinary actions. Our opinions in the Pflaumer case and the case involving In a published opinion regarding

employee Mullen were unreported.

employee Geiger, we recognized an exception to the 30-day time limit, permitting the appointing authority to show that its

investigation "was conducted with reasonable diligence" and that the disciplinary action was imposed no later than 30 days after the required investigation had been completed." Western Correctional

Institution v Geiger, 130 Md. App. 562, 569-70 (2000). The Court of Appeals granted a writ of certiorari. Before

that Court, the agency argued that the 30-day period under SPP

22

section 11-106(b) does not commence until the appointing authority is informed of the results of an investigation substantiating the allegations of misconduct. The Court of Appeals, finding the language of SPP section 11106 unambiguous, and looking also to the supporting legislative history, held that the General Assembly intended to create, and did create, a bright-line rule making uniform what must be done by the agency before taking disciplinary action related to employee

misconduct and when disciplinary action must be taken. 144-45.

371 Md. at

Rejecting the agency's argument and the analyses of the

circuit court and this Court, the Court of Appeals explained: Knowledge sufficient to order an investigation is knowledge of the misconduct for which discipline was imposed, if discipline ultimately is imposed for that misconduct. It is not at that stage in the process, to be sure, proof as to who is the responsible person and may not even be knowledge as to who that person is. Section 11-106, however, is not person specific; it is situation and fact based. Thus, the knowledge that triggers the running of the thirty day period need not, and may not, although it generally will, identify the employee ultimately disciplined. We hold that, viewed in context,

Download McClellan v. Dept. of Corrections.pdf

Maryland Law