Circuit Court for Baltimore City
Case No. 24-C-15-005164
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 573
September Term, 2016
______________________________________
KEVIN MIHAILOVICH
V.
DEPARTMENT OF HEALTH AND
MENTAL HYGIENE
______________________________________
Woodward, C.J.,
Friedman,
Sharer, J. Frederick
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Sharer, J.
______________________________________
Filed: September 28, 2017
In this appeal we shall resolve conflicting interpretations of the “five workdays”
requirement of Maryland Code (1993, 2015 Repl. Vol.) State Personnel & Pensions,
Section 11-106(c) (“SPP”) as that term pertains to the disciplinary suspension of a State
employee.
The issue before us, which we have recast, is:
Whether the Department of Health and Mental Hygiene (“DOH”), 1 appellee,
gave timely notice of a suspension without pay to appellant, Kevin
Mihailovich.2
We shall hold that the DOH did not give timely notice pursuant to the statute; hence,
we shall reverse the judgment of the Circuit Court for Baltimore City.
BACKGROUND
Although the circumstances of appellant’s employment and asserted misconduct are
not necessary for our review, we provide a brief factual recitation for procedural context.
Mihailovich is a Certified Nursing Assistant employed by the Thomas B. Finan
Center, an in-patient psychiatric facility under the management of the DOH, located in
Allegany County. On the evening of March 3, 2015, Finan Center management learned of
an incident involving Mihailovich and a patient that resulted in injury to the patient
requiring medical treatment at a local hospital. Management determined that Mihailovich
1
The Department of Health and Mental Hygiene was renamed as the Department of Health
effective July 1, 2017. We shall refer in the opinion to “the Department” or “DOH.”
2
As asserted in his brief, appellant posits:
1. The ALJ Correctly Concluded That The Department Violated SPP § 11-106 (c) By
Not Suspending Mr. Mihailovich Within Five Workdays After The Appointing
Authority Acquired Knowledge Of Alleged Misconduct.
2. The Circuit Court Erred In Reversing the ALJ.
engaged in “misconduct” by failing to follow DOH-approved de-escalation techniques. On
the next day – March 4 – Mihailovich was placed on paid administrative leave pending an
investigation into the incident. The administrative leave extended from March 4 through
March 17, when Mihailovich was notified that he was to be suspended for 15 days without
pay.
On March 30, 2015, Mihailovich noted a timely appeal to the Secretary of the
Department of Budget and Management. Following an unsuccessful settlement
conference, the case was forwarded to the Office of Administrative Hearings. On July 27,
2015, a merits hearing was conducted, following which, on September 9, 2015, the
Administrative Law Judge (ALJ) issued a written decision reversing the suspension, and
ordered back pay.
The DOH moved for reconsideration, challenging the ALJ’s interpretation and
application of SPP § 11-106(c), which was summarily denied. The DOH filed a request
for judicial review of the ALJ’s decision in the Circuit Court for Baltimore City. Following
a hearing, the circuit court reversed the decision of the ALJ, thus reinstating the suspension.
Standard of Review
Within the context of the present appeal, “[t]he decision of the Office of
Administrative Hearings [was] the final administrative decision[,]” SPP § 11-110(d)(3),
and not that of the DOH or the Secretary of the Department of Budget and Management.
As the final adjudicator of contested DOH’s disciplinary decisions, the ALJ’s review of
those decisions, “is bound by any agency regulation, declaratory ruling, prior adjudication,
2
or other settled, preexisting policy, to the same extent as the agency is or would have been
bound if it were hearing the case.” SG § 10-214(b). See also SPP § 11-110(c)(2).
It is “[b]ecause an appellate court reviews the agency decision under the same
statutory standards as the circuit court,” Consumer Prot. Div. v. George, 383 Md. 505, 512
(2004) (quotations and citation omitted), that “we analyze the agency's decision, not the
[circuit] court's ruling.” Martin v. Allegany County Bd. of Educ., 212 Md. App. 596, 605
(2013) (citation omitted). We are “‘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.’” W.R.
Grace & Co. v. Swedo, 439 Md. 441, 453 (2014) (quoting Bd. of Physician Quality Assur.
v. Banks, 354 Md. 59, 67-68 (1999)).
In fact, “when the question before the agency involves one of statutory interpretation
or an issue of law, our review is more expansive.” E. Outdoor Advert. Co. v. Mayor of
Baltimore, 146 Md. App. 283, 302 (2002) (quoting Dep't of Labor, Licensing & Regulation
v. Muddiman, 120 Md. App. 725, 734 (1998)). As such, “it is always within our prerogative
to determine whether an agency's conclusions of law are correct.” Hranicka v. Chesapeake
Surgical, Ltd., 443 Md. 289, 298 (2015) (quotations and citation omitted). It is for this
reason that we review the agency’s statutory interpretation de novo. See Ireton v.
Chambers, 229 Md. App. 149, 155 (2016) (citing Gomez v. Jackson Hewitt, Inc., 427 Md.
128, 142 (2012)). See also Fraternal Order of Police Montgomery Cty. Lodge 35 v.
Montgomery Cty. Exec., 210 Md. App. 117, 128 (2013).
3
DISCUSSION
This appeal requires us to review the ALJ’s interpretation and application of SPP §
11-106(c), which provides, relevant to the issue presented:
(1) An appointing authority[3] 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.
When assessing the timeliness of the suspension, the ALJ was tasked with
answering two underlying questions posed by Mihailovich: “[f]irst, what qualifies as a
‘workday’ under SPP section 11-106(c)[;] [a]nd second, what constitutes ‘the employee’s
next shift’ under that same provision when, as here, the appointing authority has placed the
employee on administrative leave . . . [?]” The ALJ concluded that the term “workday”
was intended to relate to the employee’s schedule, rather than the appointing authority’s
schedule, and that the employee’s next shift is not affected by being placed on
administrative leave.
The ALJ found that, “[a]ssuming further that the Employee normally maintains a
Wednesday-through-Sunday workweek, his next five workdays would have been: (1)
Thursday, March 5; (2) Friday, March 6; (3) Saturday, March 7; (4) Sunday, March 8; and
3
An appointing authority is “an individual or a unit of government that has the power to
make appointments and terminate employment.” SPP § 1-101(b).
4
(5) Wednesday, March 11.”4 Based on that interpretation, the ALJ found the suspension
imposed on March 17 to be untimely, reversed the suspension, and ordered back pay.
We address the first of these two questions in our review of the ALJ’s decision and
dispose of the second, accordingly.
Statutory Interpretation
By whose schedule is a “workday” determined?
Since the question presented in this appeal is based largely on the interpretation of
SPP § 11-106(c), we look first to the plain meaning of the statute.
All “[l]egislation is created with a particular objective or purpose.” Bowers v. State,
227 Md. App. 310, 322 (2016) (citation omitted). As such, “[t]he cardinal rule of statutory
construction is to effectuate and carry out legislative intent.” Duffy v. CBS Corp., 232 Md.
App. 602, 612 (2017) (quoting Rose v. Fox Pool Corp., 335 Md. 351, 358 (1994)), cert.
granted, No. 41, Sept. Term, 2017 (Md. Sept. 12, 2017).
When this Court is “called upon to construe a particular statute, we begin our
analysis with the statutory language itself since the words of the statute, construed
according to their ordinary and natural import, are the primary source and most persuasive
evidence of legislative intent.” Duffy, 232 Md. App. at 613 (quoting Rose, 335 Md. at 359).
However, “[w]here the statute’s language is ambiguous or not clearly consistent with the
statute’s apparent purpose, the court ‘search[es] for [the General Assembly’s] intent in
other indicia, including the history of the [statute] or other relevant sources intrinsic and
4
The Thomas B. Finan Center is a “24/7” facility.
5
extrinsic to the legislative process[,]’ in light of: (1) ‘the structure of the statute’; (2) ‘how
[the statute] relates to other laws’; (3) the statute’s ‘general purpose’; and (4) ‘[the] relative
rationality and legal effect of various competing constructions.’” Hailes v. State, 442 Md.
488, 495-96 (2015) (quoting Gardner v. State, 420 Md. 1, 9 (2011)). See also Patton v.
Wells Fargo Fin. Maryland, Inc., 437 Md. 83, 97 (2014) (“Where, as here, there appears
to be ambiguity or uncertain meaning in a statute, the Court ‘may and often must consider
other external manifestations or persuasive evidence, including a bill’s title and function
paragraphs, … its relationship to earlier and subsequent legislation, and other material that
fairly bears on the fundamental issue of legislative purpose or goal[.]” (quoting
Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 515 (1987))). With this in mind, in our
statutory interpretation inquiry, we will consider the “legislative history of [SPP § 11-106],
including amendments that were considered and/or enacted as the statute passed through
the Legislature,” Duffy, 232 Md. App. at 614 (quoting Rose, 335 Md. at 360), as well as
the related legislative documents and reports that were circulated during the pendency of
the statute’s enactment.
The parties agree that the ALJ erred in the manner in which the 5-workday period
was counted. However, they disagree about the statutory meaning of “workday” – that is,
whether workdays are to be counted from the perspective of the appointing authority or the
employee. Mihailovich contends that “workday” refers to the appointing authority’s
schedule; DOH avers that it pertains to the employee’s schedule. We have found no
reported opinions of either this Court or the Court of Appeals that directly answer the
question.
6
As a matter of first impression, we conclude that the “workday” specified in the
statute pertains to the schedule of the appointing authority, not the employee, for the
purpose of establishing the temporal parameters within which disciplinary action must be
taken. We gather support for our conclusion from related case law and the statute’s
legislative history, as we shall discuss, infra.
In W. Corr. Inst. v. Geiger, 371 Md. 125 (2002), the Court of Appeals reviewed SPP
§ 11-106(c) in the context of the extent of “knowledge” necessary to trigger
commencement of the 30-day period to impose a disciplinary action. 371 Md. 125. In its
analysis, the Court considered the statute as a whole, noting that:
All three subsections of § 11–106 are interrelated; one can not be read and
interpreted without reading and interpreting the others. Subsection (a)
prescribes what must be done before imposing discipline, subsection (b) sets
the general time limitation on when the imposition of discipline must occur
and subsection (c) provides a special time limit for suspensions without pay.
Id. at 143–44.
Although the Court’s discussion in Geiger does not specifically answer the
subsection (c) “workday” question presented by this appeal, the Court opined that
“[s]ection 11–106 . . . is not person specific; it is situation and fact based.” Id. at 144.
Additionally, the Geiger Court stated that “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.” Id. In conclusion, the Court held that, “viewed in context, § 11–
106 gives the appointing authority 30 days to conduct an investigation, meet with the
employee the investigation identifies as culpable, consider any mitigating circumstances,
7
determine the appropriate action and give notice to the employee of the disciplinary action
taken.” Id. at 144–45.
As we discussed in White v. Workers’ Comp. Comm’n, 161 Md. App. 483 (2005),
the same interpretation is applicable to the more stringent temporal requirements of
subsection (c). 161 Md. App. at 491. There, we held, “[t]he reasoning articulated in Geiger
requires us to hold, sub judice, that any suspension imposed outside of the 5 work day time
limit is violative of the statute and cannot stand.” Id. Therefore, the appointing authority’s
knowledge of misconduct is the triggering factor to commence the calculation of the 5-
workday period. It is important to note, however, that the issue presented in White did not
require an analysis of the 5-workday notice requirement; rather, as in Geiger, it pertained
to the degree of knowledge of misconduct that triggers the counting of those days.
Additionally, because White’s work schedule was Monday through Friday, inferably the
same as the appointing authority, there was no need to address by whose schedule the 5-
workday period is to be applied.
Adhering to Geiger, and considering the statute as a whole, we conclude that the
term “workday” was intended to refer to that of the appointing authority for the purposes
of calculating the 5-workday notice period. As the Court noted in Geiger, each of the
subsections are related, and should be read as such. 371 Md. at 143-44. Specifically,
subsection (a)5 provides the requisite actions that an appointing authority must complete in
order to take disciplinary action under either subsection (b) or (c). Subsections (b) and (c)
5
Unless noted otherwise, discussion about subsections (a), (b), and (c) refer exclusively to
SPP § 11-106.
8
both provide the timeframes within which the appointing authority must complete the
actions in subsection (a) as a prerequisite to the imposition of a disciplinary action. Each
subsection provides insight to the understanding of the others.
Of significance is the express language of the first clause in subsection (a): “[b]efore
taking any disciplinary action related to employee misconduct . . . .” SPP § 11-106(a)
(emphasis added). That language provides a strict limitation on the ability of an appointing
authority to impose a disciplinary action, by prefacing any action with five prerequisites.
In that regard, subsection (a) requires:
[A]n 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.
Id. (emphasis added).
Subsection (b) then provides the time frame for imposing any disciplinary actions,
other than an unpaid suspension, by limiting the period to “no later than 30 days after the
appointing authority acquires knowledge of the misconduct for which the disciplinary
action is imposed.” SPP § 11-106(b). Subsection (c), on the other hand, addresses the
significantly shorter time period within which to impose an unpaid suspension, by
providing the limitation of “no later than 5 workdays.” SPP § 11-106(c).
Our conclusion that the legislature intended “workday” to pertain to the appointing
authority’s schedule, not the employee’s schedule, is supported by our consideration of the
statute as a whole, then comparing the language of subsections (b) and (c). As we have
noted, subsection (b) has no limitation on which days can be counted, or excluded from the
9
count, within the 30 day period. It is clear to us that the judicial interpretation that has been
given to the 30-day requirements of 11-106(b) is that the 30-day investigatory period is
measured in consecutive calendar days. It follows, then, that the 5-workday notice period
of subsection (c) should likewise be measured in consecutive calendar days.
In contrast, subsection (c) provides, effectively, two additional restrictions beyond
the disputed “workday” limitation. First, counting does not commence until after the end
of the employee’s next shift following the appointing authority’s knowledge of
misconduct. See SPP § 11-106(c)(1). Then, the succeeding provision expressly excludes
weekends, legal holidays, and employee leave days from the calculation. SPP § 11-
106(c)(2). Those two restrictions can be read in one of two ways; either, to put the focus
on the employee’s schedule, as DOH argues, or to allow the appointing authority more
time to complete the requirements of subsection (a) by excluding days in which it would
not be functioning, as well as the days the employee would be unavailable to meet.
Additional support for our interpretation is found by examining the statutory history
and legislative resources utilized in the drafting and enactment of the statute. Particularly
useful in our consideration is the 1996 Task Force to reform the State Personnel
Management System’s Report to the Governor (“Governor’s Report” or “Report”), which
was likewise discussed in part by the Court of Appeals in Geiger, as well as the ALJ in the
instant case.
Legislative History
The General Assembly, in 1920, enacted Md. Code, Article 64A – Merit Systems,
Section 17 of which provided, in pertinent part: “The appointing authority may for
10
disciplinary purposes suspend an employee[] [and] [e]very such suspension shall be
without pay[.]” 1920 Md. Laws, ch.41. The ostensibly unrestricted original statute
regarding disciplinary suspensions has since evolved, as legislative enactments are wont to
do, into what is now codified as SPP § 11-106(c). Article 64 saw many amendments,
reorganizations and recodifications when, in 1993, it was repealed and reenacted as the
State Personnel and Pensions Article. In the reenacted article, the disciplinary suspensions
provisions – then codified under Title 9 – added, for the first time, a time restriction on the
imposition of a suspension. Section 9-403 – Suspension Period – provided:
Except as otherwise provided in this section, a suspension for disciplinary
purposes: (1) Shall be served on consecutive days; and (2) Shall begin within
2 workdays from the close of the employee’s next shift after: (I) The alleged
infraction occurred; or (II) The appointing authority learned of the alleged
infraction.
1993 Md. Laws, ch. 10.
In 1994, that provision was further amended to substitute “2 workdays” for simply
“2 days” and added a provision to allow an appointing authority five days for employees
who are exempt from the Federal Fair Labor Standards Act overtime provisions. 1994 Md.
Laws, ch. 466. The “workday” language was reinstated through the 1995 amendments
with the introduction of the provision that excludes certain days from the calculation. 1995
Md. Laws, ch. 199. However, the current language of the disciplinary suspensions
provisions of the statute did not appear in the statute until 1996.
The codification of the 1996 State Personnel and Pensions – Division I. – State
Personnel code was the product of an extensive effort to reform the entire Maryland State
Personnel Management System. SPP §§ 1-101, et seq. The legislation grew out of a
11
thorough investigation by the designated Task Force to Reform the State Personnel
Management System that was established by Governor Parris N. Glendening by a June
1995 executive order, which charged the task force to design a “personnel management
system that is more flexible, decentralizes personnel management functions, simplifies and
streamlines personnel procedures and provides for the consistent application of personnel
policies throughout a diverse State government.” Exec. Order No. 01.01.1995.15, 46 (June
9, 1995).
The efforts of the Task Force resulted in the enactment of the State Personnel
Management System Reform Act of 1996, through cross-filed House Bill 774 and Senate
Bill 466, which rewrote and reorganized what are now the existing personnel management
statutes.6 See 1996 Md. Laws, ch. 347. In particular, the proposed legislation made
significant changes to the statute governing disciplinary actions. See SPP §§ 11-101, et
seq.
1996 Governor’s Report
The 1996 Task Force to Reform the State Personnel Management System’s Report
to the Governor provides insight as to the legislative intent and support for our
interpretation of “workday” under SPP § 11-106(c). Numerous references throughout the
Report provide background to the enactment of the temporal limitations in SPP § 11-106
and demonstrate the intent to benefit both the employer and the employee.
6
As noted in Geiger, the proposed legislation was passed and codified in substantially the
same form as recommended in the Report. 371 Md. at 146.
12
The Highlights of Proposals Adopted by the Task Force – Disciplinary Process –
section of the Report addressed the time frame for imposing a disciplinary action and
recommended to “[i]ncrease[] the time allowed an appointing authority to investigate and
impose disciplinary suspension from two days to five days following the close of the
employee’s next shift; allow[ing] an appointing authority up to thirty calendar days to
impose any other form of discipline.” Task Force to Reform the State Personnel
Management System, Report to the Governor, vi (January 23, 1996).
The Report expresses the Task Force’s rationale for extending the time allotted to
an appointing authority to act – that is, to expand the time parameters. That premise was
later reinforced in the Highlights of the State Personnel Management System Reform Act
of 1996, a comprehensive published guide to understanding the changes in the State
Personnel Management System as a result of the newly enacted Reform Act. Task Force
to Reform State Personnel, Highlights of the State Personnel Management System Reform
Act of 1996 (May 8, 1997). In addressing the changes to the disciplinary appeal process,
it clarified that “[m]anagement has only five work days from the employee’s last shift to
complete these tasks if a suspension without pay is to be imposed.” Highlights of the State
Personnel Management System Reform Act of 1996, 13.
Finally, the Report’s Disciplinary Policy Proposal expressly outlined the proposed
legislation relating to Conduct-Related Discipline. That proposal became, in part, SPP §
11-106(c), and provided:
After acquiring knowledge of alleged employee misconduct, an appointing
authority shall have five (5) work days after the close of the employee’s next
shift after the alleged infraction occurred, or the appointing authority learned
13
of the alleged infraction, to impose a suspension without pay. Within that
time period, the appointing authority must investigate; meet with the
employee; consider mitigating circumstances and determine the duration of
the suspension. Saturdays, Sundays, legal holidays, and employee leave days
do not count when calculating the five work day period.
Report to the Governor, 44.
The proposed legislation included requisite actions an appointing authority must
take before a disciplinary suspension can be imposed, which was ultimately codified
separately under SPP § 11-106(a).7
In addition to the Governor’s Report being circulated with the cross-filed Bills, the
Department of Personnel submitted a written memorandum to the House Subcommittee on
Personnel and the Deputy Legislative Officer, Richard A. Montgomery, III, and Acting
Secretary of Personnel, Michael A. Glass, submitted written testimony before the Senate
Finance and Budget and Taxation Committees (“Glass and Montgomery testimony”), in
support of the proposed legislation. The memorandum and testimony each explain the key
features of the proposed bill and the reasons for the proposed differences from the then-
existing statutes.
In particular, the memorandum from the Department of Personnel emphasizes the
biggest changes to the disciplinary actions provisions of SPP § 11-106, by stating that
“[t]his provision provides for the first time that the appointing authority has to conduct its
7
This language also effectively eliminated the distinction between employees who are
exempt from the Federal Fair Labor Standards Act overtime provisions and those who are
not, when calculating the timeframe for imposing disciplinary actions, as was apparent in
the 1994 and 1995 versions of the statute.
14
investigation within a certain amount of time for all cases of discipline.” Geiger, 371 Md.
at 147. It goes further to explain that it
imposes the general rule that the appointing authority has 30 days after
acquiring knowledge of the misconduct to impose discipline. In cases where
suspension is determined to be the appropriate penalty, the appointing
authority has 5 work days following the close of business after the
employee’s next shift after acquiring knowledge to impose the suspension.
Id.
The written testimony by Glass and Montgomery provides a more detailed
explanation of the changes to the statute. Glass and Montgomery Testimony, Senate Fin.
and Budget and Tax. Comms. (1996). The first noteworthy section of the written testimony
addresses the proposed definitions and general provisions subtitles of Title 1, in which it
“[d]efines a day to mean a calendar day to eliminate confusion as to whether holidays and
leave days are to be considered in calculating time limits.”8 Glass and Montgomery
Testimony, 2. When viewing this definition in the context of the current SPP § 11-106(c),
it is apparent that clarification was necessary to implement the express limitation of which
days are to be counted, or excluded, under this provision of the statute.
The second section of import is the discussion of subtitle 1 – Disciplinary Actions
– of Title 11, which distinguishes the two types of disciplinary actions as conduct-related
and performance-related. The dialogue about conduct-related discipline, as relevant here,
provides that “[i]n cases of conduct related discipline, the proposal establishes a uniform
8
The definition of a day has been codified under SPP § 1-201, with slight modification,
providing that “[u]nless specifically provided otherwise, in this Division I of this article a
reference to a ‘day’ or ‘days’ means a calendar day or calendar days.”
15
30 day time period in which management may investigate, meet with the employee, and
impose discipline with one exception: to impose a disciplinary suspension, the appointing
authority must act within 5 workdays.” Id. at 19.
As to conduct-related discipline, the testimony outlines the three step process for
imposition of discipline by an appointing authority and the sequence of appeal rights of the
employee. The first step addresses the appointing authority’s obligations, providing that
“the appointing authority will determine the appropriate disciplinary action[,] [however,]
[t]he appointing authority must first meet [sic] investigate the alleged misconduct, meet
with the employee, and consider any mitigating evidence.” Id. at 18.
In short, we glean the intent of the legislature to have “workday” pertain to the
appointing authority’s schedule. It is manifest throughout the extensive commentary that
such was intended in the proposed bills which, as we have noted, were cross-filed.
The Parties’ Arguments
With that background, we address the respective positions taken by the parties.
It is undisputed that the incident resulting in Mihailovich’s suspension occurred in
the evening on March 3, 2015 and that management, as the appointing authority, was
immediately made aware of the situation, thus starting the clock. It is also undisputed that,
pursuant to SPP 11-106, the commencement of the 5-workday counting period was to begin
on March 5, the day following the end of Mihailovich’s next shift on March 4. The point
of contention rests solely in how the remaining four days are to be counted.
Mihailovich averred that, although the ALJ erred in counting the employee’s
workdays and in counting days that are expressly required to be excluded, the same result
16
would have been reached had the count, and the statute, been properly interpreted and
applied. He asserts that the “workdays” to be counted are those of the appointing authority.
His construction of the counting requirement of the statute is that the days ought to have
been counted as follows: (1) Thursday, March 5; (2) Friday, March 6; (exclude Saturday,
March 7 and Sunday, March 8); (3) Monday, March 9; (4) Tuesday, March 10; (exclude
Wednesday, March 11 as an employee holiday/leave day); and (5) Thursday, March 12.
Thus, he concludes, the suspension should have been imposed no later than March 12; and,
it having been ordered on March 17, was five days beyond the 5-workday limit.
Mihailovich supported his interpretation by reference to the Governor’s Report, as we have
discussed. He proffered that the explanations in the Report focus on the appointing
authority’s timeframe in which to act, thereby concluding that it is the appointing
authority’s workday that is to be counted.
We agree, as discussed above, and find his calculation to be an accurate reflection
of which days were to be counted – or excluded – had the ALJ properly interpreted and
applied the statute.
Mihailovich also highlights the statutory reference to “workday” rather than
“employee shift” or “employee workday.” He elaborated on this point by concluding that
the only logical reason for the statutory reference to the employee’s work shifts, is the
intent that it be the triggering event to start the calculation. He argues that the purpose was
so the 5-workday calculation does not commence until the day following the end of the
employee’s next shift, not the employee’s current shift, thereby providing the appointing
authority the use of the next full day to initiate the subsection (a) requirements. He further
17
claimed that the legislature’s failure to include the term “employee shift” or distinguish
“workday” from “employee workday” anywhere within the statute, further demonstrates
the limited purpose for that language was to extend the time allotted for the appointing
authority to act.
The DOH, however, argues that the same provision that commences the calculation
“following the close of the employee’s next shift,” places emphasis on the employee’s
schedule. See SPP § 11-106(c)(1). Further, the DOH points out that the succeeding
provision expressly excludes employee leave days. See SPP § 11-106(c)(2). Thus, when
an employee is on leave, that day should not be counted. The DOH also presented an
alternative argument that since Mihailovich was immediately placed on paid administrative
leave following the incident, those days should be excluded as “employee leave” days, as
required for the 5-workday calculation.9
The ALJ also utilized the Governor’s Report in analyzing the statute. However,
contrary to Mihailovich’s understanding, and ours, the ALJ determined that the 5-day count
should be based on the employee’s workdays. Compounding that error, the ALJ also
erroneously counted Saturdays and Sundays as well as the employee holiday of
Wednesday, March 11.10 Such days are expressly required to be excluded from the count
9
Because we find that the “workday” referenced in SPP § 11-106(c) pertains to that of the
appointing authority, we need not address the Department’s alternative argument.
10
According to the record, Mihailovich had utilized either compensatory holiday leave
time or employee leave on March 11, 2015, as allowed under SPP § 9-205(a)(1). See also
COMAR 17.04.11.08.
18
under the statute. See § 11-106(c)(2). Those errors resulted in the ALJ’s finding that the
fifth day to be counted was Wednesday, March 11. However, the ALJ then appears to have
added a sixth day by concluding, without explanation, that “[five] workdays following the
close of the Employee’s shift on Wednesday, March 4, would have been 11 p.m. on
Thursday, March 12, 2015.” (internal quotation marks omitted). Accordingly, we conclude
that the ALJ erred in the interpretation of “workday” and its application of the statute.
Hence, we hold that, under SPP § 11-106(c), once the appointing authority acquires
knowledge of employee misconduct, it has five of the agency workdays to investigate, meet
with the employee in question, consider any mitigating factors, determine the appropriate
disciplinary action, and give written notice of the suspension and appeal rights, to the
employee. The 5-workday period commences on the day following the end of the
employee’s next shift after the appointing authority acquires knowledge of the misconduct.
The days to be excluded from the calculation are Saturdays, Sundays, employee leave days,
and legal holidays as recognized by Maryland law. As in the case of the Thomas B. Finan
Center, and other “24/7” agencies, the 5-day count would be five consecutive calendar
days, subject to any such statutory exclusions.
Notwithstanding the ALJ’s misinterpretation and misapplication of the statute, the
determination that the DOH failed to timely impose an unpaid suspension was correct.
Therefore, we reverse the order of the circuit court and remand with instructions that the
circuit court issue an order affirming the ALJ’s decision on grounds consistent with this
opinion.
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JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY
REVERSED; CASE REMANDED TO
THAT COURT FOR THE ENTRY OF
AN ORDER CONSISTENT WITH
THIS OPINION. COSTS ASSESSED
TO THE MAYOR AND CITY
COUNCIL OF BALTIMORE.
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