State Administration Board of Election Laws v. Billhimer

ADKINS, Judge,

dissenting, in which COLE, J., joins.

Edwin Billhimer (Billhimer) once was the deputy administrator of the State Administrative Board of Election Laws (SABEL). In 1982 he was separated from that position, pursuant to procedures applicable to State employees in the unclassified service. His claim to the protection of procedures available to those in the classified service or merit system was rejected by the Department of Personnel. The Circuit Court for Anne Arundel County (Cawood, J.) and the Court of Special Appeals, State Administrative Bd. of Election Laws v. Billhimer, 72 Md.App. 578, 531 A.2d 1298 (1987), saw it otherwise. A majority of this Court now holds that Billhimer was indeed in the unclassified service. Because the majority, in reaching its conclusion, has failed to construe the statutes here involved in a manner consistent with the legislative goals sought by those statutes, I respectfully dissent.

By Ch. 41, Acts of 1920, the General Assembly added to the Annotated Code Article 64A, entitled “Merit System.” In so doing, Maryland became the tenth state to enact a merit system law. See O. Stahl, Public Personnel Administration 33 (6th ed. 1971). This State was, therefore, in the forefront of the movement to bring about more efficient state government and, what is more important, to try to exclude from government service aspects of corruption and political patronage that had so concerned reformers of the late nineteenth and early twentieth centuries. See R. Vaughn, Principles of Civil Service Law, § 1.2 (1976). As the Court of Special Appeals has recognized, “[o]ne of [the] purposes [of Article 64A] is to provide standards of employment and advancement through testing, etc., intending to avoid problems inherent in political spoils systems such as nepotism and related abuses.” Sec., Dep’t of Personnel v. *64Bender, 44 Md.App. 714, 715, 411 A.2d 107, 108 (1980), aff'd and rem’d, 290 Md. 345, 430 A.2d 66 (1981).1

Cynics or pragmatists may argue that one cannot take the politics (i.e., patronage) out of politics and that Governors and others who occupy the seats of power will find methods of achieving what they wish despite merit system laws. It may be that laws of this sort are subject to evasion, avoidance, and misadministration. But a court should not countenance efforts of those kinds when a proper construction of the law will tend to prevent them. Our task is to effectuate the legislative goal embodied in the statute. Kaczorowski v. City of Baltimore, 309 Md. 505, 513-515, 525 A.2d 628, 632-633 (1987).

Article 64A, § l,2 places within the classified service (the merit system) essentially all State positions, other than those in the military and those expressly exempted by specific statutory provision. This statement of almost total preference for the classified service demonstrates the powerful thrust of Article 64A as remedial legislation that must be liberally construed to implement its purpose. E.g., Neal v. Fisher, 312 Md. 685, 693-694, 541 A.2d 1314, 1318-1319 (1988); Carolina Freight Carriers v. Keane, 311 Md. 335, 339, 534 A.2d 1337, 1338 (1988); Culotta v. Raimondi, 251 Md. 384, 387, 247 A.2d 519, 521 (1968). By the same token, exemptions from remedial legislation must be narrowly construed. 3 C. Sands, Sutherland’s Statutes and Statutory Construction § 60.01 (4th ed. rev. 1986); see Saunders v. Unemployment Compensation Board, 188 Md. 677, 683, 53 A.2d 579, 581 (1947) (this Court, in general, agreed with *65the rule that “exclusions in remedial statutes should be strictly construed”; the Court, however, did not apply the rule in that case).

The exemption before the Court in this case is § 3(13). It excludes from the classified service “[a]ll positions in State offices, boards, commissions, departments and institutions, which the Secretary [of Personnel] may determine, with the approval of the Governor, require medical, engineering, scientific, educational or expert training and qualifications.” The trial court and the Court of Special Appeals viewed and the majority views this provision as requiring four elements for exemption:

the existence of a State position; [2] the Secretary’s determination that the position requires medical, engineering, scientific, educational, or expert training and qualifications; [3] the Governor’s approval of the Secretary’s determination; and [4] a showing, applicable here, that the position is one requiring ‘expert training and qualifications.’

314 Md. at 60, 548 A.2d at 826, 827. I agree with this analysis of the statute, but cannot agree that it was complied with here. I believe that at the agency level this statute was misconstrued — a misconstruction also adopted by the majority. Because, however, the agency decision was predicated on an error of law, “no deference is appropriate and the reviewing court may substitute its judgment for that of the agency.” Id. at 59, 548 A.2d at 826; Washington Nat’l Arena v. Comptroller, 308 Md. 370, 378-379, 519 A.2d 1277, 1281 (1987).

In a cursory manner, the majority concludes that the “expert training and qualifications” factor of § 3(13) was met because Deputy Administrator Billhimer’s “responsibilities required a broad knowledge of the electoral process, as well as the expertise needed to assume the functions of the Administrator.” 314 Md. at 61, 548 A.2d at 827. The need for expertise is said to be demonstrated in a draft survey report prepared by the Department of Personnel, *66and by a December 1981 questionnaire describing the deputy administrator’s duties.

The 1976 draft report reviews job descriptions and staffing patterns as they then existed at SABEL — a staff which contained but five full-time positions. As to Billhimer’s then position, the report says it “serves as the technical expert in charge of voter registration, ballot layout and arrangement, and voting machines____” The report also identifies the need for a deputy administrator who could “take charge of the routine day-to-day decisions in the Administrator’s absence and the ability to assume his responsibilities in the event the Administrator’s position is suddenly vacated for any reason....” The report’s authors suggest that the deputy administrator’s position “be filled by someone who possesses either a college degree with considerable administrative experience or someone with considerable experience in the electoral process and proven administrative ability.” Because of “the sensitive nature of the position,” and not because of any purportedly necessary expertise, the authors conclude that “placement in the unclassified service is also warranted.”

The 1981 document, a position questionnaire prepared by Billhimer, lists the deputy’s duties as

to assist in all phases of the election process that are the statutory duties of the Administrator and of SABEL. In addition, the Deputy assumes full authority for the day to day operations and policy decisions in the Administrator’s absence and assumes temporarily the responsibilities if that position is suddenly vacated for any reason.

Other duties listed include such matters as “[sjupervise the collection and tabulation of voter statistics,” “maintain inventory of all voting equipment used by local boards,” “[sjupply applicants with voter lists,” “[pjrepare ... ballot ... form and layouts for each local board,” “[mjaintain a general overview of all office operations,” and “[sjerve as office parking coordinator.” The “expertise” revealed by these documents is not the sort of “expert training and knowledge” demanded by § 3(13).

*67I again emphasize that § 3(13) is a narrow exception to the fundamental principle of inclusion of position within the classified service.3 The specific sorts of expertise it identifies are “medical, engineering, scientific [and] educational____” No one contends that Billhimer possesses any particular expertise in any of these areas. But the specification of these fields sheds light on the meaning of “expert training and qualifications.” Each of the specified areas is likely to involve not only a high degree of professional skill, but also substantial, degree-level academic qualifications. Persons possessing these qualifications, the legislature may well have thought, need not have their proficiency determined by competitive examination. Moreover, professionalism and ethical standards related to these fields lessen other concerns addressed by a merit system. See Vaughn, § 3.2 for examples of types of positions typically excluded from the examination requirement. It is “expert training and qualifications” of this sort to which § 3(13) refers.

It must be so, because the construction adopted by the majority is wholly inconsistent with the legislative goal of Article 64A. As a factual matter, the record shows that Billhimer’s position demanded, at best, modest middle management abilities and some understanding of the electoral process and the equipment and forms used in it. The latter knowledge is of the type that may be readily garnered by on-the-job training or simply job experience. If that is all that is demanded by “expert training and qualifications” then every second or third level manager in State service may be exempted from the classified service, along with others not even at the managerial level. Such a reading of § 3(13) is simply not consistent with the legislature’s tightly-drawn exclusion from its basic merit system *68scheme. A reading that requires “expert training and qualifications,” to include academic requirements and high skills of a professional nature, is consistent with this scheme.4 This reading implements the legislative goal, rather than frustrating it. NCR Corp. v. Comptroller, 313 Md. 118, 146, 544 A.2d 764, 767 (1988).

I do not believe there is substantial evidence in this record to support the agency finding that the Secretary of Personnel determined that the deputy administrator position fell within the requirements of § 3(13). The purported evidence in this regard is a 1977 letter from the Department of Personnel to the Secretary of Budget and Fiscal Planning advising that a recommendation that the position be unclassified was contained in the 1976 report. There was such a recommendation in that report, but it was not based on any § 3(13) findings. That statute was not even mentioned in the report. As we have seen, the recommendation was based on the notion that the position was “sensitive.” That is totally irrelevant to § 3(13). Nor do I think that the Governor’s unexplained vote at the 16 December 1977 Board of Public Works meeting demonstrates that he approved the position as being within the requirements of § 3(13).5 It is all very well to speak of inferences, as the *69majority does, 314 Md. at 59, 548 A.2d at 826. But surely, exclusion from the legislatively established merit system, pursuant to a narrow exemption provision, requires the dotting of a few more “i’s” and the crossing of a few more “t’s” than we have here. I suggest we are dealing with rank speculation, not rational inferences.6

None of that really matters, however, if, as I contend, § 3(13) simply does not permit the deputy administrator provision to be exempted from the merit system. Even had the Secretary of Personnel unequivocally found (on the facts in this record) the position to be within § 3(13) and had recommended exemption, even had the Governor unquestionably approved the recommendation, it would make no difference. As a matter of law, this position was not one that met the strict exemption requirements of § 3(13).

Nor can it matter that the Department of Personnel coded the position as an unclassified one. Article 64A does not permit the department to remove an employee from the *70classified service by attaching a code number to his or her position; so far as this case is concerned, that could be done, if at all, via § 3(13), a provision not applicable to the deputy administrator slot as a matter of law. Like the Court of Special Appeals, I reject the State’s “theory of bureaucratic osmosis____” State Election Bd. v. Billhimer, 72 Md.App. 578, 591, 531 A.2d 1298, 1304 (1987).

So Billhimer cannot have been in the unclassified service. Where, then, was he? The majority, with some force, says he could not have been in the classified service either, because he had taken no examination and was not placed there pursuant to any statute, 314 Md. at 69, 548 A.2d at 826. Nevertheless, I believe the majority incorrectly concludes that he did not “hold a classified position under the terms of this article.” Art. 64A, § 1.

It is true that Billhimer did not meet the ordinary prerequisites for entry into the classified service. But § 1, in effect, presumes that every position not exempted is in the classified service. “ ‘The classified service’ means and includes all offices of profit or trust and all places of employment, whether permanent or temporary, other than those in the military forces, and other than those enumerated in § 3 of this article” (or some other express statutory exemption). That presumption is consistent with the legislative decision that inclusion in the classified service or the merit system is the overarching rule whereas exemption is the relatively rare exception. See n. 3, supra, and accompanying text. When a position falls through the cracks, thanks, perhaps, to inept work at the Department of Personnel, the legislature has decided, as a matter of policy, that the position is in the classified service.

I would affirm the decision of the Court of Special Appeals.

Judge COLE has authorized me to say that he joins in this dissenting opinion.

. "The merit system plank was the chief pledge of the Democratic party’s platform" in the 1919 campaign, and there' was considerable pressure on Governor Ritchie's administration to assure the enactment of a broad and "efficient merit system applicable to the offices of the State government.” Editorial, Baltimore Sun, Feb. 25, 1920, at 10, col. 1.

. Unless otherwise noted, all section references are to sections of Article 64A. And the sections are taken as they stood at the times relevant to this case.

. Indeed, the very provision that is now § 3(13) was criticized as being too broad an exemption. The Ritchie administration defended against this attack by arguing that the exemption was in reality a narrow one, since the positions mentioned in the section were included in the merit system unless excluded by the Governor pursuant to the section’s provisions. Baltimore Sun, March 3, 1920, at 7, col. 2.

. Although canons of statutory construction should not be applied in a mechanical or mindless fashion, NCR Corp. v. Comptroller, 313 Md. 118, 145, 544 A.2d 764, 777 (1988), "[t]o a considerable extent, they are founded on both logic and common sense ... [and] properly used, they afford an opportunity for principled decision making____” Kaczorowski v. City of Baltimore, 309 Md. 505, 512, 525 A.2d 628, 631 (1987). In this case, the rule of ejusdem generis supports the construction I give to the statute; it advances rather than frustrates the purpose of the statute. Culotta v. Raimondi, 251 Md. 384, 387, 247 A.2d 519, 521 (1968). I apply to the general phrase "expert qualifications and training” the same meaning contained in the particular items “medical, engineering, scientific, educational....” See State v. 149 Slot Machines, 310 Md. 356, 363-364, 529 A.2d 817, 820-821 (1987). It is as though the statute read "medical engineering, scientific, educational or similar expert training and qualifications."

. The Board of Public Works agenda for that meeting sets up the matter as involving no more than an emergency amendment to the pay plan, requiring approval of the Board pursuant to Art. 64A, *69§ 27(a). Neither the agenda nor the relevant portion of the transcript of the Board meeting contains any hint that the agenda item dealt with creation of the unclassified position pursuant to § 3(13).

. The absence of any real sort of administrative paper trail to substantiate the State’s position is, perhaps, explained by a 3 December 1969 memo to the file from Robin Zee, then director of the Division of Classification and Compensation in the Department of Personnel. Regarding SABEL, Zee wrote:

Commissioner [later Secretary of Personnel] Bosz contacted the Governor’s Office and it is their intention that all positions in this agency [SABEL] should be exempt____ There is a feeling that this new agency is directly tied to the Executive Department which is exempt from the Merit System. The Governor had promised the new Administrator that he could employ any person he desired.

That an agency designed to assure compliance with the election laws should be the last to be exempt from the merit system is a proposition that need not now be debated. See, however, Ch. 351, Acts of 1971, placing most permanent employees of local boards of supervisors of elections in the merit system. What is at least arguable from this memo is that SABEL positions were exempted because the Governor’s Office wanted it that way and because the Governor had given the new administrator leave to hire by way of patronage. Obviously, this approach to exemption is the antithesis of the merit system and is not a basis for exemption warranted by § 3(13).