Dept. of Corrections v. Donahue

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Department of Public Safety & Correctional Services v. John Donahue, No. 84, Septemb er Term 2006. Headnote: Under State Personnel and Pensions Article § 11-106(a)(2) and COMAR 17.04.05.04D3, in a disciplinary action, a State employee may be deemed unavailable to meet with the appointing authority when, after the appointing authority has made a reasonable, good faith effor t to notify the em ployee of the meeting a nd the em ployee has be en given a reasonab le amount of time to receive and respond to the notice, the employee fails to respond to the notice or appear at the meeting. IN THE COURT OF APPEALS OF MARYLAND No. 84 September Term, 2006 ______________________________________ DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL SERVICES v. JOHN DONAHUE ______________________________________ Bell, C.J. Raker *Cathell Harrell Battaglia Greene Wilner, A lan M. (R etired, specially assigned) JJ. _______________________________________ Opinion by Wilner, J. Harrell, J., Concurs. Bell, C.J. and Raker, J., Dissent _______________________________________ Filed: August 1, 2007 *Cathell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. 2 John Donahue was a correctional officer for the Department of Public Safety and Correctional Services (D PSCS). He held the rank of lieutenan t and served at the Eastern Correctional Institution (ECI) in Somerset County. On March 10, 1997, DPSCS discharged Donahue. That action inaugurated a saga that has lasted, so far, more than a decade and has involved three administrative hearings, three judicial review actions in the Circuit Court for Somerset County, three appeals to the Court of Special Appeals, and two petitions for certiorari in this Cou rt, the latter of w hich we g ranted. Th e issue now is whether he was p roperly dischar ged a seco nd time, in N ovembe r, 2002. W e shall hold that he was. BACKGROUND Donahue s first discharge, in March, 1997, arose from the disappearance of a set of keys at ECI. In his capacity as key control supervisor, Donahue was responsible for conducting a pre-audit inventory of emergency keys stored in Tower 8. He conducted such an inventory in November, 1996, and, although he noted a number of errors in the log book, he did not report any missing keys. In January, 1997, the key control officer reported that a set of emergency keys in Tower 8 was missing, including a master key that was ca pable o f open ing lock s throug hout th e institutio n. Tho se keys w ere nev er foun d. There was never any allegation that Donahue had, himself, taken or lost the keys; he was charged, in stead, with f ailing to con duct a prop er inventory of the keys and f ailing to cooperate in the ensuing investigation.1 Donahue s grievance over that termination eventually went to a hearing before an Administrative Law Judge (ALJ) at the Office of Administrative Hearings. In a decision and order filed in September, 1998, the ALJ sustained the termination. She found insufficien t evidence to support the charges re lating to the alleg ed failure to c ooperate with the investigation but sustained the termination upon a finding that Donahue had violated a number of Division of Corrections Directives relevant to the duties of a key control supervisor and, in doing so, failed to perform those duties properly. In an action for judicial review, however, the Circuit Court for Somerset County, in August, 1999, reversed the termination decision and ordered that Donahue be reinstated to his position as Correctional Officer Lieutenant, with full back pay and restoration of benefits. At the request of DPSCS, the Circuit Court stayed its order pending an appeal to the Court of Specia l Appe als. In an unreported opinion filed in June, 2000, the Court of Special Appeals agreed 1 Donahue was charged with violating a number of specific Division of Correction Directives. T he notice o f termination stated as the re ason for te rmination: Due to L t. Donahue s assigned key control responsibility, the likelihood that he last handled and/or misinventoried the keys, along with his attempts to deceive the investigators, proves that he canno t be trusted to p rotect the sec urity of this institution and his rem oval from state service is required. This conc lusion by the warden seem ed to be based on Donahue s alleged admission that he was the last person to have seen the missing keys, that he supposedly conducted an inventory of the keys in November, 1996, that the log book page where the inventory would have been entered was missing, and that some witnesses had state d tha t Do nahue w as no t in th e tow er long enough to have con ducted a n inv ento ry. -2- with the Circuit Court that the ALJ had erred in finding violations of the Directives pertaining to the conduc t of the pre-audit inventory and thus in sustaining Donah ue s termina tion. DPSCS v. Donahue, S.T. 1999 , No. 2031 (June 16, 2 000). The appellate court concluded, however, that Maryland Code, § 11-110(d)(1) of the State Personnel and Pensions Article (SPP ) allowed the AL J some discretion as to the pro per remedy. It therefore vacated that part of the Circuit Court s order requiring that Donahue be reinstated with full back pay and directed that the case be remanded to the ALJ for consideratio n of the a ppro priate rem edy. Followin g his termina tion and w hile the judicia l review ac tion was w ending its way throug h the courts , Donah ue obtaine d employm ent with the U.S. Posta l Service in Easton. On September 17, 1999, a postal inspector reported to a detective with the Easton Police Department that Donahue had been observed opening yellow envelopes used for the payment of City of Easton parking citations and stealing the contents. The postal inspector had a videotape showing Donahue placing envelopes under his work table, opening those envelopes, placing the contents in his left pocket, resealing the envelopes, and pla cing the m bac k in the m ail system. On this evidence, the two officers conducted a sting operation. The detective gave the postal inspector ten fictitious City of Easton parking citations. The inspector placed money with the citations and mailed them in the yellow parking ticket envelopes used by the City. On September 21, 1999, they surreptitiously observed Donahue place -3- yellow parking ticket envelopes into the bin under his work station. He then went under the work station and, when he emerged, was seen placing something in his left front pocke t. Dona hue als o open ed seve ral enve lopes th at were not par t of the s ting op eration. Postal inspectors stopped Donahue outside the post office when he went on his lunch break and discovered in his pocket a $20 bill, a $10 bill, and ten $1 bills that matched the bills placed in the envelopes b y the postal inspector. Donah ue was a rrested and charged w ith two cou nts of wro ngfully open ing mail and one count of theft under $300. On December 15, 1999, he pled guilty in the District Court of Maryland to one count each of wrongfully opening mail and theft under $300, for which he received, on each conviction, a 60-day sentence, suspended in favor of probation and 100 hours of community service. It goes without saying that he was discharged from his employment with the Postal Service. When, p ursuant to th e Court of Special A ppeals ma ndate, the ca se was retu rned to the Offic e of Ad ministrative H earings, D PSCS sought an evidentiary hea ring in orde r to present evid ence of D onahue s post-termin ation crimin al activity. It urged tha t his convic tion ren dered h im unq ualified for rein stateme nt. The ALJ r ejected that entr eaty. In essence, he conclud ed that the subsequen t conviction was no t a basis for Donah ue s termination in that case and that the only issue open on remand was whether, in light of the judicial conclusions that D PSCS had failed to provide sufficient ev idence to support the charges underlying the termination, anything less than reinstatement with full back -4- pay was warranted. The ALJ found that no evidentiary hearing was required on that issue that Donahue was entitled to be reinstated with full back pay and benefits and, on February 14, 2001, he so ordered. DPSCS again sought judicial review. In an order entered in September, 2001, the Circuit Court for Somerset County affirmed the ALJ s decision, rejecting the effort of the Department to shoehorn into these proceedings evidence of misconduct on the part of Lieutenan t Donah ue that wo uld or cou ld lead to his te rmination if he had be en fully employed at the time of the misconduct. As it had done in the earlier proceeding, the Circuit C ourt staye d its judg ment p ending any appe al. DPSCS did appeal. In another unreported opinion, filed July 3, 2001, the Court of Special A ppeals aff irmed the C ircuit Court ju dgment, a greeing tha t the reman d ordered in June, 2000, was a very limited one that did not encompass conduct occurring after Dona hue s te rminatio n. DPSCS v. Donahue, S.T. 2001, No. 1705. The Court of Special Appeals man date issued Augu st 2, 2002. DPSC S then filed a petition for certiorari with this Co urt, wh ich we denied on Oc tober 1 0, 2002 . See Department of Corrections v. Donahue, 371 M d. 262, 8 08 A.2 d 807 ( 2002) . A week later, on October 17, 2002, ECI Warden Robert Kupec received a memorandum from the Assistant Attorney General who had been handling the case for DPS CS sta ting that the Co urt of S pecial A ppeals had ord ered D onahu e s reins tateme nt. The warden believed that his duty to reinstate Donahue commenced either on October 10, -5- 2002, when this Court denied the pe tition for certiorari, or on October 17, when he received the Attorney General s memorandum. It appears that the memorandum also informed Warden Kupec of Donahue s criminal conduct, which the warden, who had assumed his position long after Donahue had been discharged, claimed to have been unaware of e arlier. Upon b eing appris ed of the m andate ord ering restatem ent and D onahue s posttermination conduct, Warden Kupec ordered a background check to determine whether Donahue could maintain his certification by the Maryland Correctional Training Commission which, in the warden s view, was a qualification for employment as a correctional officer. In part upon the advice of the Assistant Attorney General, the warden concluded that Donahue s conviction would render him ineligible for employment, but, aware that the law required him to provide Donahue with an opportun ity to present an ything in mitigatio n as to wh y we should not take actio n to prohibit him from returning as a correctional officer, the warden scheduled a mitigation conference for Friday, November 1.2 On October 25, 2002, Warden K upec wrote to Donahue at his last known address in Salisbury, which was, in fac t, his then-current address, informing him that the Court 2 As w e sha ll discuss later , SPP § 11-106 (a) re quires an appointing a utho rity, before taking any disciplinary action related to employee misconduct, to investigate the misconduct, meet with the employee, consider any mitigating circumstances, determine the appropriate disciplinary action, if any, to be imposed, and give the employee a written notice of the disciplinary action. -6- of App eals had d irected his rein statement w ith full back p ay and restoratio n of bene fits and that the effective date of your return would be Friday, November 1, 2002. The warden actually sent two letters, one by certif ied mail and the other by reg ular mail, neither of w hich was returned to th e sender. T he identical le tters directed D onahue to report to the warden s office at 8:00 a.m. on November 1 for a mitigating conference regarding your continued employment and admonished that he was not to enter any other part of t he institu tion. Unknown to the warden, or anyone else at ECI, Donahue was out of State at the time and did not return home until November 8, 2002, and he apparently had made no arrangement to check on voice-mail messages or for anyone to pick up his mail. He discovered what he said was a termination notice attached to his door when he arrived home and picked up his mail the next day, on November 9. He therefore did not receive the Octob er 25 letter, or an y other comm unication, un til then and, as a result, failed to report on November 1. Upon his non-appearance that morning and unaware that Donahue was out-of-State, the personnel officer for ECI, Laura Dorsey, called Donahue at his home on three occasions. She said that she let the phone ring at least ten times, but there was no answ er and no voice-ma il pickup. Th e calls were to inform D onahue to report on Monday, November 4 for a rescheduled mitigation conference. Unable to reach Donah ue, Ms. D orsey asked C aptain M atthews, w ho work ed the 3:00 to 11:00 p .m. shift, to try to reach him. Matthews stated that he called Donahue s number at least nine times -7- on Frid ay night a nd Satu rday, and possib ly once o n Sun day (No vemb er 1, 2, an d 3). Matthews indicated that, on at least one occasion, an answering machine responded.3 Warden Kupec stated that sev eral letters we re sent to D onahue, th at he had se nt his adm inistrativ e cap tain t o Do nahue s house in an at temp t to delive r the letter per sona lly, and that the captain had posted the letter on Donahue s door. Donahue said that, when he returned home o n Novem ber 9, he found tw o notices taped to his doo r but that they were both notices of his termination. When Donahue failed to report on November 4, Warden Kupec scheduled a mitigation conference for November 7. There is no indication that any attempt was made to inform Donahue of that conference, and, of course, he did not appear. The warden met with Ms. Do rsey, reviewed the procedu ral history of the case, including Don ahue s conviction, and concluded that, because the theft charge carried a possible prison sentence of more than one year and because he had been fired by another employer for theft, he was disqualified for employment under hiring guidelines established by the 3 Captain Matthews testified at the subsequent hearing before an ALJ on December 9, 2003. In support of his testimony regarding the telephone calls, a document evidencing those calls was marked for identification but, inexplicably, was not offered into evidence by the Assistant Attorney General. Matthews said that he provided the information in the document to Ms. Dorsey. In a November 7, 2002, memorandum from Ms. Dorsey to the warden, which was admitted into evidence at that hearing without objection, Ms. Dorsey recounted that Captain Matthews told her on Monday, November 4, that he had called Donahue s number nine times on Friday evening, that once it rang busy, once he got the answering machine and did leave the message to report to your office at 8:00 AM on Mon day; the o ther sev en time s he go t no ans wer. -8- Correctional Training Commission. The warden recommended to the Secretary of DPSC S that Do nahue be terminated f rom State s ervice, on th e ground s that: Mr. D onahue h as demo nstrated beh avior that ref lects negativ ely on the role of a profes sional c orrectio nal off icer. Specifica lly, he has been convicted of theft an d with his conviction his ability to provide the care and custody of inmates is seriously jeopardized; his theft, that is stealing money from mail is evidence of his moral turpitude and knowledge of his continued employment under these circumstances would be disruptive and offensive to his coworkers and the public and would have the effect of bringing the State into disr epute. The next day, Nov ember 8, 2002, the S ecretary approved the w arden s recommend ation and signed a N otice of Termination. T he Notice stated that D onahue s conduct clearly indicates behavior considered inappropriate, unbecoming and unprofessional for any Public Safety employee, that he was in violation of DPSCS Standards of Conduct, Section II.B. Personal Conduct, paragraphs 1 & 10; COMAR 17.04.05.04B. (3), (4), (8), & (15) and COMAR 12.10.01.03, and that termination was the appro priate di sciplina ry action. 4 The n otice w as poste d on D onahu e s resid ence d oor. 4 The DPSCS Standards of Conduct were adopted pursuant to Division of Correction Directive 50-43. Part II sets forth Standards of Personal Conduct and Performance. Paragraph B. 1 of Part II provides, in relevant part, that each employee shall conduct himself, both on duty and off duty, in such manner as to reflect most favorably on the Department and that any conduct, within or without the place of employment, which tends to undermine the good order, efficiency, or discipline of the Department or reflects discredit on the employee or the Department shall subject the employee to disciplinary action. Paragraph 10 is more specific. It prohibits an employee from viola ting any State. F ederal, or loca l law. CO MAR 17.04.05.0 4B prov ides, in relevant pa rt, that an emp loyee may be dis ciplined fo r engaging in conduc t which, if -9- The effect of this action was (1) to reinstate Donahue as an employee as of November 1, 2002, with back pay and restoration of benefits from March, 1997 through November 8, 2002, but (2) to terminate his employment, prospectively, effective November 8, 2002. Donah ue returned home on Novem ber 8 and learned at tha t time of his termination. He filed a grievance which, thirteen months later, ended up before an ALJ. 5 The AL J saw the c ase as prese nting two basic issues: (1) whether DPSCS complied with two requirements of SPP § 11-106 subsection (a), which requires that the appointing authority meet with the employee and consider any mitigating circumstances before taking any disciplinary action, and subsection (b), which requires that a ny disciplinary action be taken w ithin 30 days af ter the appo inting autho rity acquires knowledge of the misconduct for which the disciplinary action is imposed, and (2) whether the criminal conduct that occurred at a time when Donahue was not an emplo yee of E CI con stitutes g round s for term ination. The ALJ concluded that the Department had satisfied the requirement of § 11106(b) but not that of § 11-106(a), and, for that reason, reversed the termination and, once again, ordered that Donahue be reinstated. Although that ruling made the second issue publicized , would b ring the State into disrepu te or which involves fr aud, dece it, misr epre sentation , or ill egal ity. 5 The case was refe rred to the Of fice of A dministr ative Hea rings in F ebru ary, 2003, following an unsuccessful conference before the Department of Budget and Management. It was set for hearing in June, 2003, but was postponed at least twice. The hearing commenced December 9, 2003. -10- moot, the A LJ addre ssed it anywa y and conclu ded that D onahue s conduc t could constitute grounds for termination, even though it occurred after his employment had been te rminate d and th us wh en he w as not a n ECI emplo yee. With respect to SPP § 11-106(b) the requirement that disciplinary action be taken within 30 days after the a ppointing a uthority acquire s know ledge of th e miscond uct Donahue argued that ECI was aware by early 2000 of his conviction for theft and opening the mail and that the 30-day clock began running on August 2, 2002, when the Court of Special Appeals issued its mandate affirming the Circuit Court judgment. The ALJ rejected that argument. Concluding that ECI had no authority to terminate or take any other disciplinary action against Donahue until be became reemployed, she found that the 30-day time period did not begin to run until Donahue was reinstated as an employee on November 1, 2002, and that, as the action was taken on November 8, there was no violation of § 11-106 (b). ECI did not fare so well with respect to the requirement in § 11-106(a) that the warden meet with Donahue and consider mitigating circumstances before taking disciplinary action. The ALJ noted that the statutory requirement, which facially seemed absolute, was qualified by a regulation of the Department of Budget and Management (COMAR 17.04.05.04D(3)), which added an exception to that requirement: unless the employee is unavailable or unwilling to meet. The ALJ felt it unnecessary to consider whether the exception in the regulation was valid because she found that Donahue did not -11- refuse to meet with the warden. Notwithstanding that the warden believed that the 30-day time period allowed under § 11-106(b) began to run either on October 17, 2002, when he was informed of the denial of certiorari by this Court, or October 10, when the petition for certiorari was actually denied, the ALJ found that it was unreasonable for the warden to proceed with a mitigation conference in the absence of Donahue when he had no proof that Donahue had received notice of the conference. The ALJ noted that the warden could hav e contacted counsel fo r Donah ue and tha t, upon rece iving notice that his certified letter to Donahue had been picked up on November 9, he could have rescheduled a meeting thereafter. Indeed, the ALJ expressed doubt that ECI ever intended to consider such mitigating circumstances as the fact that Donahue had stolen only $40, that he was under s tress, and that he h ad a pre viously g ood rec ord of fourtee n years of service . Although, as indicated, the ALJ concluded that, in light of her reversal of the termination under SP P § 11-106(a), it was n ot necessary to determine w hether Donah ue s criminal conduct while employed with the USPS would constitute grounds for termination of emplo yment with E CI, she con cluded tha t it would. Sh e observe d that, if Donahue had been an active employee of EC I at the time, there is no doubt that these conviction s would s upport his te rmination f rom emp loyment, that th ey plainly constitute violations of the Standards of Conduct and COMAR regulations cited by the warden , and that [a ]s the War den credib ly testified, he cou ld not trust the E mployee in ongoing employment, given his criminal record. The ALJ rejected Donahue s argument -12- that his convictions would not have prevented him from being hired and concluded instead that, be cause the th eft convic tion carried a possible sen tence of 1 8 month s in jail, Donahue would not have b een eligible for hire under DPSCS regulations. DPSCS sought judicial review of the ALJ s determination that the warden was required to reinstate a person who was not eligible for employment and whom the warden credibly stated he could n ot trust. This tim e, the Circuit C ourt for So merset Co unty reversed the ALJ decision, finding several legal and factual errors in the ALJ s opinion. The court first noted that, although the ALJ correctly determined that Donahue had not demonstrated an unwillingness to meet with the Warden, she had failed to address or resolve whether the warden s unsuccessful attempts to notify Donahue prior to the mitigation conference rendered him unavailable, and that she erred in leaving that issue unanswered: by neglecting to make an unavailability determination, the ALJ has failed to correctly interpret and apply the principles of law governing this case. Upon the evidence presented, the court concluded that Donahue did, indeed, render himself unavailable. Recognizing that the warden, in hindsight, could have contacted Donahue s attorney (who acknowledged at oral argument before us that she had no idea where her client was), the court nonetheless found that the warden s efforts to notify Donahue were not unreasonable. The bottom line, so to speak, was that [i]t seems contrary to notio ns of com mon sen se to conclu de that in leav ing the state an d failing to take the simple steps of checking his phone messages, accounting for his mail, or -13- informing his employer of his whereabouts for a period of 17 days, [Donahue] should not be considered una vailable. In her opin ion, the AL J consistently refe rred to the m itigating conf erence, held without Donahue, as having occurred on November 1, 2002, when, in fact, it was held on November 7. Donahue conceded that the conference was held on November 7, but regarded the ALJ s contrary finding as merely a typographical and harmless error. The Circuit Co urt was no t convince d. The A LJ s opinio n, it noted, w as littered w ith reference s to a No vember 1 meeting th at were ju xtaposed with analysis p ertaining to the reasonableness, appropriateness, or good faith of [the warden s] conduct, and the court was concerned that the damaging impact of the ALJ s error of fact lies too perilously close to the underpinnings of her reasoning to conclude that [DPSCS s] substantial rights were not prejudiced. On those findings, the court, on October 4, 2004, reversed the ALJ s decision. That produced an appeal by Donahue. In an unreported opinion filed August 8, 2006, the C ourt of Sp ecial App eals reversed the Circuit C ourt judgm ent. It agreed w ith the Circuit Court (and the ALJ) that the warden had not violated SPP § 11-106(b), in that the 30-day period for taking a disciplinary action did not commence until November 1, 2002, w hen Do nahue w as reinstated a s an emp loyee. It disagreed with the C ircuit Court, however, regarding the issue of unavailability and with the effect of the ALJ s erroneous reference to a Nov ember 1, 2 002 mitiga ting confe rence. As to the latter, the ap pellate -14- court concluded that, [a]lthough it is a close question, we agree that the date was most likely a typographical error. With respect to unavailability, the Court of Special Appeals believed that the ALJ had considered whether Donahue was unavailable, even though she articulated no specific finding of availability. It agreed with the standard of unavailability adopted by the Circuit Court that the employee is unavailable when the employer undertakes reasonab le, good-fa ith efforts to lo cate and p rocure the e mployee fo r the meeting but is nevertheless unable to do so but simply disagreed w ith the Circuit Court s determination that, under that stand ard, Donahue w as unavailable. The ap pellate court observed that the warden had until November 30 to take disciplinary action, and, though acknowledging that the warden was under no duty to contact Donah ue s lawyer, concluded that by failing to take such an obvious step when the warden had good reason to know that [Donahue] was not at home and that there was a substantial likelihood that he had not received any notice of the mitigation hearing strongly indicates that a goodfaith ef fort to m ake sur e appe llant had a chan ce to atte nd the h earing w as not m ade. Neither party was happy with the Court of Special Appeals decision. We granted cross-petitions for certiorari and shall reverse the judgment of the Court of Special Appeals. DISCUSSION -15- DPSC S makes two com plaints: that the C ourt of Sp ecial App eals erred bo th in holding that Donahue was not unavailable and in determining that the ALJ s erroneous references to a November 1 mitigating hearing constituted merely a harmless typographical error. Donahue also makes two complaints: that reversal of the termination is required as a matter of law because it was not imposed within the 30 days allowed by SPP § 11-106(b) and that the ALJ erred in finding that his convictions relieved DPSCS from its obligation to reinstate him pursuant to the Court of Special Appeals August 2, 2002 m andate . SPP § 11-106 SPP § 11-106 imposes certain conditions on the taking of disciplinary action against a State employee. Subsection (a) requires the appointing authority, prior to taking a disciplinary action related to employee misconduct, to: (1) investiga te the alleged miscond uct; (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 emplo yee s app eal right s. Section 11-106(b) puts a time limit on this process. With an exception not relevant here dealing with the suspension of an employee, subsection (b) allows the appointing authority to impose any disciplinary action no later than 30 days after the appointing -16- authority acqu ires know ledge of th e miscond uct for w hich the disc iplinary action is imposed. We made clear in WCI v. Geiger, 371 Md. 125, 129-30, 807 A.2d 32, 35 (2002) that the 30-day period allowed by § 11-106(b) includes the time necessary for the appointing authority to con duct its investig ation and m eet the other r equireme nts specified in § 11-106 (a) and tha t rescission o f the disciplin e imposed is the appro priate sanction for the appointing authority s failure to meet § 11-106(b) s time limit. The Thirty-Day Requirement Often, as in Geiger, the issue with respect to the 30-day requirement is when the appointing authority first acquired sufficient knowledge of the misconduct to trigger the commencement of the period, and, indeed, the parties quibble about that here. The warden insists that he was unaware of Donahue s criminal conduct until apprised of it by a memorandum from the Assistant Attorney General on October 17, 2002, whereas Donahue contends that the appointing authority knew of that conduct in 2000. Donahue is clearly correct on that point, but it is not the relevant issue here.6 As the ALJ and the 6 Robe rt Kup ec assu med th e positio n of w arden o f ECI on Oc tober 1 4, 1999 . Donahue had been discharged in March, 1997, and apparently had no contact with the institution or its warden since then. Warden Kupec said that he did not know Donahue and was unaware of the December, 1999 convictions until informed of them by the Assistant Attorney Gene ral s letter in October, 2002. Tha t may well be the case, but there can be no doubt that his predecessor as appointing authority was aware of the convictions when the matter of Donahue s first termination was remanded to the ALJ by the Court of Special Appeals in June, 2000. Upon that remand, DPSCS, through its Assistant Attorney General, in sisted that it be p ermitted to p resent evide nce of tho se convictio ns in -17- Circuit Co urt recogniz ed, the duties and time lim it specified in S PP § 11- 106 app ly only to incumb ent emplo yees. An app ointing auth ority can neither la wfully nor p ractically terminate the employme nt of som eone w ho is not cu rrently employed in the unit. W hat is there to terminate? Thus, the pertinent question is not when the appointing authority first became aware of the misconduct but when Donahue first became subject to discipline by the warden at what point, charged with the institutional knowledge of the 1999 convictions, could the warden have commenced the process required by § 11-106, so that it could be completed w ithin 30 days thereafter? Donahue urges that he was effectively reinstated, and thus became an employee subject to discipline, on August 2, 2002, when the mandate of the Court of Special Appea ls in No. 17 05 issued. T hat mand ate affirme d the judgm ent of the C ircuit Court, which , in turn, a ffirme d the ru ling of th e ALJ that Do nahue be reins tated w ith back pay. Unquestionably, upon the issuance of that mandate, Donahue was entitled to be reinstated furtherance of its position that Donahue should not be reinstated. In determining when the appointing authority first had knowledge of the misconduct ultimately relied on for the disciplinary action, we must look at when the appointing authority who first acquired knowledge of the misconduct obtained that knowledge. SPP § 1-101(b) defines appointing authority as an individual or unit of government that has the power to make appointments and terminate employment. Section 3-215(b)(3)(i) of the Correctional Services Article provides that [t]he warden of a correctional facility is the appointing officer for the officers and other employees of that facility. In this context, the appointing authority is the of fice of the w arden, and knowle dge of the miscond uct is acquired by that office when it is first imparted to an incumbent in that office. If that person the n leaves, the office an d any succes sor incum bent is nece ssarily charged with that kno wledg e. -18- as directed by the ALJ. Th e filing of a petition for certiorari by DPSCS did not stay that mandate , and so D onahue s right to be rein stated was not placed in suspens ion until this Court denied the D epartment s petition for certiorari. The right arose on August 2, 2002. The ALJ s order of reinstatement was not self-executing, however, even when ultimately affirmed by the Circuit Court and the Court of Special Appeals. Like orders of reinstateme nt generally, issue d upon a finding tha t the emplo yee was w rongfully terminated, it was in the nature of an injunctive order or one for specific performance, directing that Donahue be reinstated, but it did not, of itself, recreate the employment relationship; nor, as a practical matter, could it have that effect. Reestablishment of the employment relationship in conformance with the reinstatement order must be done by the parties themselves the em ployer notifying the employee when and where to rep ort and the em ployee reportin g, prepared to resume work, or a t least having the obligation to do so. Until that happens, the employment has not, in fact, been restored. From the employee s perspective, if, during the pendency of the litigation, the employee has obtained another job or is engaging in other activities, he or she may continue in those endeavors until directed to report for work pursuant to the reinstatement order. The employer certainly could not legitimately contend that the reinstatement order was immediately self-executing and that the employee abandoned the employment by failing to report the next day. On the other hand, the employee may decide, for whatever reason, -19- not to resum e the emp loyment, in w hich even t there wou ld be no ef fective reins tatement. 7 If the employee desires to be reinstated but the employer refuses to co mply with the order, the employee or, when the order is issued by a regulatory agency, the agency itself, may institute statutory or c ommo n law enf orcemen t proceedin gs against th e employer to coerce complianc e. That is why regulatory agencies are u sually given statutory enforcem ent pow ers and w hy commo n law rem edies such as mand amus ha ve been h eld availab le to enf orce rei nstatem ent ord ers. See, for example, 42 U .S.C. § 2000e-5(i), authorizing EEOC to commence proceedings to enforce court orders; Maryland Code, Art. 49B, § 12 (same for Maryland Human Relations Commission); and Mayor of Ocean City v. Johnson, 57 Md . App. 502 , 470 A.2d 1308 (19 84); State ex rel. O lander v. O hio Environmental Protection Agency, 543 N.E.2d 1262 (Ohio 1989); and State v. Civil Service Board, 32 N.W.2d 583 (Minn. 1948), enforcing reinstatement orders through mandamus actions. 7 Even upon a finding of wrongful termination for which reinstatement may ordinarily be the preferred remedy, courts and agencies may deny reinstatement when special circumstances make that remedy inappropriate, including situations in which the emplo yee mak es kno wn his or her re luctanc e to con tinue the emplo yment. See Bledsoe v. Wilker Bros.. Inc., 33 Fair Em pl. Prac. Ca s. (BNA ) 127 (W .D. Tenn . 1980); Hutchisson v. Amateu r Elec. Sup ply, 42 F.3d 1037 (7 th Cir. 1994) ; Cowa n v. Strafford R-VI Sch . Dist., 140 F.3d 115 3 (8 th Cir. 1998) ; EEOC v. Pacific Press Publ g A ss n, 482 F. Supp. 1291 (N.D. C al. 1979 ), aff d, 676 F.2d 1272 (9 th Cir. 1982). When that reluctance arises after the reinstatement order is entered which, if there are judicial review proceedings, could be several years, the employee is f ree to waiv e the reinstatem ent and no t seek or act to restore th e emp loyment. See Zigmon d v. Civil Serv. Com m n, 186 S.E.2d 696 (W. Va. 1972). -20- The mandate that issued on August 2, 2002, did not, therefore, of itself, restore the employment relationship between DPSCS and Donahue. DPSCS, or its counsel, was apparently hoping that this Court would review the case and reverse the reinstatement order; that ho pe was n ot dashed until Octob er 10, 2002 . Donah ue, in the me anwhile, d id nothing to jump start the restoration process, but seemed content to accrue back pay without having to return to work. The warden s letter of October 25, 2002, set November 1 as the date of reinstatement. That is the date Donahue was directed to report for work; that is the date he was obliged to report; that is the date upon which his back pay was calcula ted; that is the first d ate upo n whic h Don ahue b ecame subjec t to furth er discip line. The ALJ was correct in regarding November 1 as the commencement of the 30-day period for imposing discipline based upon the 1999 convictions. As the termination at issue occurred November 8, it was well within the 30-day period allowed by SPP § 11106(b). Unavailability As noted, SPP § 11-106(a) requires the appointing authority to meet with the employee and con sider any mitigating circumstances b efore taking any disciplinary action. That requirement, seemingly absolute, has been construed by regulation of the Department of Budget and Management to be conditioned on the employee being available and willing to meet. COMAR 17.04.05.04D.(3). In a footnote in his brief, -21- Donahue challenges the authority of the Department to adopt such a regulation. He asserts, [a]s a preliminary matter, that the statutory requirement to meet is absolute and unconditional and tha t the Department is not au thorized to overrule or ob viate a statutory requirement. The argu ment, relega ted to a foo tnote, has no merit. Statutes m ust be con strued in a reaso nable w ay. See Stodd ard v. State , 395 Md. 653, 663, 911 A.2d 1245, 1250 (2006) (confirming the well-established principle that, in construing a statute, we avoid a construction that is unreasonable, illogical, or inconsistent with common sense. ). We cannot conceive that the Legislature would have countenanced the ability of an employee to preclude a State agency from ever taking proper disciplinary action by simply refusing to meet with the appointing authority or by making himself unavailable for such a meeting during the 30-day period allowed to the appointing authority under SPP 11106(b). The statutory requirement to meet with the employee necessarily assumes a willingness on the part of the employee to meet in a timely manner with the appointing authority and to make himself/herself reasonably available for that purpose. The regulation, expressly conditioning the requirement on the willingness and availability of the employee, adds nothing that is not implicit in the statute. We turn, then, to the critical issue of whether the ALJ properly held that Donahue was not unavailable. In examining that issue, w e do need to take ac count of two su bsidiary matters raised in the record. First, although the Circuit Court was correct in its observation that -22- the ALJ had made no specific finding regarding Donahue s unavailability, but determined only that the Employee did not refuse to meet with Management, we agree with the Court of Special Appeals that, implicit in her other discussion was an indication that the AL J did not reg ard Don ahue as b eing unav ailable. She s aid, [t]hrou gh no fau lt of his o wn, he never k new a bout th e mitiga tion me eting. We agree with the Circuit Court, however, that the ALJ s frequent and consistent reference to the mitigation conference as having occurred on November 1, 2002, rather than November 7, cannot be taken as a mere harmless typographical error. The Court of Special Appeals was wrong in simply assuming that it was likely otherwise. The ALJ stated in her Finding of Fact No. 23 that [t]he Warden conducted the November 1, 2002 mitigation conference without the Employee. In discussing Donahue s charge that the warden had f ailed to conduct a mitigation co nference at all, the ALJ re sponded that [i]n fact, Management did conduct a mitigation conference, albeit in the Employee s absence on No vemb er 1, 200 2, the date he was reinstated. (Emphasis added). At least three more times in her opinion, the ALJ referred to the mitigation conference as having occurred on November 1. Nowhere in her opinion does she give the correct date. The fact that the ALJ stated at least five times in her opinion that the conference occurred on November 1 and never did allude to the correct date of November 7 militates against a ca sual conclu sion that this w as a mere typo graphical e rror. That co nclusion is belied as well by the ALJ s reference to the mitigation conference as occurring on the -23- date he was reinstated, which was November 1. It seems clear to us that the ALJ made a finding that the in absentia mitigation conference actually occurred on November 1, and that she was simply mistaken in that belief. On this record, that finding was unsupported by substantial evidence, or, indeed, any evidence, and was therefore clearly erroneous. We agree as well with the Circuit Court that, given the context of that erroneous finding by the ALJ, it lies to o perilously clos e to the und erpinnings of her reas oning to conclude that [DPSCS s] substantial rights were not prejudiced. On one occasion, the ALJ found that it was certainly not reasonable to conduct the fundamental procedural rights of §11-106 in [Donahue s] absence, when they had no proof he had received notice of the November 1, 2002 meeting. In the same paragraph, she concluded that [e]ven under Management s incorrectly perceived timeline, there was no reason to rush the mitigation m eeting on N ovembe r 1, 2002, sin ce they had u ntil Novem ber 16, 200 2, to impose discipline. Whethe r the mitigation conferen ce occurre d on No vember 1 or Nove mber 7 is highly relevant to the issue of Donahue s availability and the reasonableness of the warden s attempts to n otify him. The warden made but one a ttempt, by letter, to inform Donahue to report on November 1. Had he proceeded with a mitigation conference that day, in the absence of Donahue and without any knowledge whether Donahue had received his letter, the ALJ could rightly have concluded that the warden had not complied with SPP § 11-106 (a). As we shall explain , the situation is q uite differen t with -24- a mitigation c onferenc e held on N ovembe r 7. By then, fu rther efforts h ad been m ade to notify Donahue multiple telephone calls extending over November 1, 2, and 3, and the alleged posting of a letter on h is residence door. The f acts bearing on D onahue s unavailab ility for a meeting on Nov ember 7 w ere quite diff erent than th ose bearing on his unavailability for a conference on November 1. The ALJ s clear error was not harmless. In determin ing whe ther, on this rec ord, any reason able trier of fa ct could law fully conclude that Donahue was not unavailable during the period from October 25, 2002, when the warden sent his letter directing Donahue to report on November 1, to November 7, when the mitigation session actually occurred, we first need to set the standard for defining u navailability, wh ich the regu lation fails to do . DPSC S takes a rath er rigid position. Relying on a dictionary definition of available accessible for use; at hand; usable it urges that, because Donahue was out-of State, he was unavailable, and that simple fact should control. The ALJ and the courts, it contends, erred in focusing on the warden s efforts to locate Donahue; they should have looked only to whether he was at hand, which he was not. Donahue agrees with the ALJ s and the courts standard whether the warden undertook reasonable, good-faith efforts to locate and procure the emp loyee for the m eetin g but [was] n ever thele ss un able to do so. We a gree , esse ntial ly, with Do nahue on this point. Under DPSCS s theory, the warden would not have had to make any effort to notify Donahue of the November 1 or November 4 meeting; because he was out-of-State, -25- it would have made no difference. That cannot be what the Legislature, in enacting the requirement of a meeting to consider mitigating circumstances, or the Department of Budget and Management, in adopting the COMAR regulation, had in mind. The requirement of a meeting prior to the appointing authority taking disciplinary action is an important right given to the employee, and that right can have meaning only if the employer makes a reasonable effort to notify the employee of the meeting. That imperative, which underlies the standard adopted by the Court of Special Appeals, is consistent with the definitions given to the word unavailable in similar contexts. Health General Article, § 5-605 specifies a priority among surrogate decision makers for purposes of the Health Care Decisions Act. A person of lower priority may be selected only when a person with higher priority is unavailable. Section 5-605(a) defines unav ailable, in the clo sest con text to th is case, a s whe n [a]f ter reaso nable in quiry, a health care provider cannot ascertain the whereabouts of a surrogate decision maker. Education Article, § 8-412, dealing with the appointment of parent surrogates when a parent is unavailable, defines unavailable as being when a public agency after reasonable efforts, cannot discover the physical whereabouts of a child s parent. See also Environment Article, § 6-833(a), declaring a parent or legal guardian unavailable if, following reasonable efforts, the offeror is unable to locate or communicate with the parent or guardian of the minor. Finally, we note Maryland Rule 5-804, which creates certain exceptions to the hearsay rule when the declarant is unavailable and defines -26- unavailability, in the closest context here, as existing when the declarant is absent from the hearing and the proponent of the statement has been unable to procure the declara nt s atten dance . . . by proce ss or oth er reaso nable m eans. Incorporating those principles, to the extent relevant, we conclude that, for purposes of SPP § 11-106 (a), an emp loyee may be reg arded as u navailable to meet with the appointing authority when (1) the appointing authority has made a reasonable, good faith effort to notify the employee of the meeting, (2) the employee has been given a reasonab le amoun t of time to rec eive and re spond to th e notice, and (3) the emp loyee fails to make a reasonable response to the notice and to appear at the meeting. Applying th at standard, w e hold that, on this record, the warden could pro perly conclude that Donahue was unavailable. Donahue was as aware of the mandate of the Court of Special Appeals and the denial of certiorari by this Court as DPSCS, and, although it was the obligation of DPSCS to implement the reinstatement and call any meeting that would be necessary if the warden intended to take further disciplinary action, Donahue certainly could have made an inquiry at any time following the issuance of the mandate and, if he knew that he was going to be out-of-State for seventeen days and unavailable to receive communications from DPSCS during that time, he could have alerted the Department. In the mistaken, but not wholly unreasonable, belief that he was not obliged to reinstate Donahue until advised by the Assistant Attorney General on October 17, 2002 (or, at the earliest, O n Octob er 10), the w arden acte d promp tly in -27- attempting to inform D onahue, o n Octob er 25, 2002 , by both certified and regu lar mail delivered to his most recently known, and correct, address, to report on November 1. Had Donahue been home, he would have had nearly a week s notice of the meeting. The wa rden, of co urse, did no t know, an d could no t have kno wn, that D onahue d id not receive the two letters. When Donahue did not appear on November 1, the warden postpone d the mee ting to No vember 4 the follow ing Mo nday and h ad his assistan ts call Donahue s correct telephone number multiple times throughout the day and evening of Nov ember 1, a nd on N ovembe r 2 and po ssibly Novem ber 3, as w ell. Captain Matthews reported that, on at least one occasion, an answering machine activated. When Donah ue failed to a ppear on Novem ber 4, the w arden po stponed th e meeting to November 7. The ALJ found as a fact that the warden acted in good faith, and we agree with that conclusion. Donahue complains that, with no response from him to the letters and telephone calls, the warden was obliged to call his lawyer or his union. Apart from the conceded fact that the lawyer did not know where Donahue was and there is no indication in the record that the union did either, the warden was not required to search the ends of the earth to find him. This was not a police investigation into a missing person. The warden had but thirty days to hold the meeting, give fa ir consideration to any mitigating factors that Donahue or anyone else might present, and complete the process, which required an approval from the Secretary of DPSCS. In the absence of any information indicating -28- where Donahue might be or, if he was not, in fact, at home and was simply ignoring the communications, when he might be returning, the warden was not required to keep postponing the meeting from day to day or week to week, waiting to see if Donahue might call, write, or appear. Wardens have other things to do. We hold that the warden made a reasonable, good faith effort to notify Donahue, that Donahue was given a reasonable amount of time to receive and respond to the notice, and that he failed to do so. Tha t equate s to his u navaila bility. Effect of the 1999 Convictions In his cross-petition, Donahue argues that the ALJ erred in concluding that the Employee s conviction s relieve the A gency of its ob ligation to reins tate him pu rsuant to the Mandate of the Court of Special Appeals. He regards the ALJ s decision as viewing the appellate mandate as less as an order to reinstate Donahue to his position . . . and more as an invitation to Donahue to apply for and be considered for that position. That is not, however, how the ALJ viewed the matter. She stated the issue as whether an Employee who has won reinstatement can be terminated for misconduct occurring when he was not employed by the State and in her discussion of that issue, she made clear that the warden had not denied reinstatement to Donahue. The question was wheth er, following reinstatement, Donahue s employment could be terminated for conduct that occurred prior to the reinstatement when he was not an employee. The -29- ALJ expressed no doubt that the conduct in question, if it had occurred while Donahue was an employee, would warrant the termination of his employment and likened the situation to tha t of off-du ty misconduc t. We agree entirely with the ALJ s conclusion. The simple fact is that DPSCS is not required to hire, rehire, or keep a convicted thief as a correctional officer in a penal institution, and it does not m atter wheth er the conv iction, or the co nduct that led to it, occurred while the person was an employee, before the person was an employee, or during an interv al betw een em ploymen ts. Maryland Code, §§ 8-201through 8-210 of the Correctional Services Article (CS) create the Maryland Correctional Training Commission and provide for its duties. CS § 8-209(a) provides that a person may not be given or accept a probationary or permanent appointment as correctional officer unless the person meets minimum qualifications established by the Commission. Section 8-208(9) authorizes the Commission to adopt regulations to carry out the subtitle, and it has done so. COMAR 12.10.01.03A provides that applican ts for correc tional office r positions m ay receive pro visional app ointments if they meet the se lection stand ards in CO MAR 12.10.01.0 4. One o f the require ments in COM AR 12 .10.01.04 is a backgro und chec k and crim inal history investig ation in accord ance w ith CO MA R 12.1 0.01.05 . See COM AR 1 2.10.01 .04D. The investigations required under COMAR 12.10.01.05 are, among other things, to determine whether the applicant [i]s of good moral character and reputation and -30- [d]isplays the suitable behavior necessary to perform the duties of the mandated position. COMAR 12.10.01.05A(1)(a) and (c). If the criminal history investigation reveals that the applicant has been convicted of a felony or a misdemeanor for which a sentence of one year or more may be imposed, the correctional unit must provide the Commission with available information. COMAR 12.10.01.05B(4)(a). That regulation requires the Commission to disqualify an applicant for a conviction listed in COMAR 12.10.01.17B. Because Donahue s sentences of incarceration for 60 days were suspended but only for that reason his convictions did not fall within the list, and so the Comm ission was not required to disqualify him.8 COMAR 12.10.17B., however, makes clear that the regulation does not require a correctional unit to employ a correctional officer with a criminal reco rd or prevent the unit from setting higher criminal history standards than specified in this regulation. DPSCS did, in fact, promulgate hiring standards that are more restrictive than those governing the Commission. Those standards, adopted in May, 2000, were in effect when th e reinstatem ent order be came eff ective. On e of them provides th at [a]pplica nts 8 COMAR 12.10.01.17A(3) lists as a conviction requiring disqualification [a] misdemeanor conviction that resulted in incarceration when less than 5 years have elapsed since the applicant was released from incarceration or terminated from parole or probation, whichever last occurred. A conviction for theft under $300 (now $500) carries a possib le senten ce of 1 8 mon ths. See Maryland Code, Criminal Law Art. § 7104(g)(2). Had Donahue s 60-day sentences not been suspended, his 1999 convictions, which o ccurred less than five years before N ovembe r 1, 2002, w ould have required his disqualification by the Commission. -31- for the position of Correctional Officer shall be disqualified from employment consideration for . . . [a] conviction in any court . . . for a crime punishable by imprisonment for a term of one year or mo re. That is consistent with the C ommission s regulation excepts that it deletes the requirement of incarceration and is a permanent disqualification. Under the DPSCS hiring standards, therefore, Donahue was not qualified fo r re-employm ent. Donahue seeks to escape this disqualification on the ground that those regulations apply only to ne w hires a nd not to h im. He w as not, he cla ims, a new hire but a permane nt employee who w as wrong fully terminated and orde red to be rein stated. It is not clear that he is correct in that view,9 but even if he is, it avails him naught. If he is not a new hire, he remained subject to the Directives and Standards of Conduct established for DPSCS employees, and his conduct and convictions most assuredly violated them and warra nted the disciplin e adm inistered by the w arden. See infra, n. 4. 9 COM AR 12 .10.01.06B (2) makes clear that a C ommissio n certification loses its validity when the employee is separated from employment. COMAR 12.10.01.03F provides for a new provisional certificate for a formerly certified mandated employee who: (1) H as not been in a correctio nal mand ated position for over 3 years; and (2) M eets the appropriate selection standards under Regulation .04 of this chapter. We need not resolve here whether those regulations apply to an employee whose employment was terminated, who has not worked in a correctional mandated position for over three years, but who is later ordered to be reinstated. -32- JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM JUDGMENT OF CIRCU IT COU RT FO R SOM ERSET COUN TY; CO STS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. -33- IN THE COURT OF APPEALS OF MARYLAND No. 84 September Term, 2006 ______________________________________ _ DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL SERVICES v. JOHN DONAHUE Bell, C.J. Raker *Cathell Harrell Battaglia Greene, Wilner, A lan M. (R etired, specially assigned), JJ. Concurring Opinion by Harrell, J. Filed: August 1, 2007 *Cathell, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. I concur in the Majority opinion for the reason that, even were I to assume the view of the Dissent as to the DPSCS s asserted error regarding its interpretation of Donah ue s unav ailability for the N ovembe r 2002 m itigation conf erence(s), the result nonetheless would be the same as reached by the Majority opinion because Donahue was ineligib le to bec ome a DPS CS em ployee ag ain by rea son of his crim inal con victions . See Maj. slip op. at 31-32. Even though the suspension of any period of incarceration pursuant to the convictions (to which charges Donahue plead guilty) did not mandate that Donahue necessarily be deemed ineligible for employment under the relevant COMAR provisions (see Maj. slip op. at 31), the DPSCS s permissibly more restrictive hiring standards (promulgated in May 2000) made plain that Donahue was not qualified for reemployment. There is no indication in the record extract that Donahue at any time sought to withdraw his 19 99 guilty pleas or coram n obis relief because of the collateral consequences that his convictions would have on his employment situation with the DPSCS. Moreover, there is no proffer in the record extract of anything Donahue might have offered in mitigation of his admitted criminal activities that could have changed the result. It is abundantly clear to me, on this record, that the result reached by Warden Kupec and the Secretary of DPSCS was foreordained, as a matter of law. -1- IN THE COURT OF APPEALS OF MARYLAND No. 84 September Term, 2006 DEPARTMENT OF PUBLIC SAFETY & CORRECTIONAL SERVICES v. JOHN DONAHUE Bell, C.J. Raker *Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) JJ. Dissen ting op inion b y Raker, J ., which Bell, C.J., joins. Filed: August 1, 2007 *Cathell, J., now retired, participated in the hearing and conf erence of this case w hile an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Raker, J., dissenting, Bell, C.J., joining: I respectfully dissent. I would affirm the Court of Special Appeals holding and the ruling of the ALJ that it was unreasonable, under the circumstances presented herein, for the Warden to proceed with a mitigation conference in the absence of Donahue. In my view, Donahue was not unavailable. I agree with the Court o f Special A ppeals that, alth ough the W arden had no duty ordinarily to contact D onahue s lawyer, by failing to take such an obviou s step when the Warden had good reason to know that [Donahue] was not at home and that there was a substantial likelihood that he had not received any notice of the mitigation hearing, stron gly indicates that a good-faith effort to make sure appellant had a chance to attend the meeting was not made. Even if Donahue was ineligible for rehiring ultimately, he should have had the oppor tunity to attend a h earing and to present an y mitigation he d eemed re levant. Chief Judge Bell has authorized me to state that he joins in this dissenting opinion.

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