Public Safety v. Myers

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In the Circu it Court for B altimore C ounty Case No. 03-C-03-006816 IN THE COURT OF APPEALS OF MARYLAND No. 51 September Term, 2005 ______________________________________ DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. DIANE MYERS, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: May 9, 2006 The final administrative authority under the statutory grievance procedure for most State Executive Branch employees is an administrative law judge (ALJ) from the Office of Administrative Hearings (OAH). T he principal question bef ore us is whether, in a grievance based on the alleged placement of an employee into an inappropriate classification, the ALJ has a utho rity, if he or she concludes that the employee is performing duties that entitle the employee to be in a different classification, to direct that the employee be placed into the proper classification. We agree with the ALJ in this case and with the Court of Special Appe als that th e ALJ does h ave tha t author ity. BACKGROUND In 1996, the General Assembly made a number of substantial changes to the State personnel law and the State Perso nnel M anagem ent System (S PMS ), which inc ludes all positions in the Executive Branch of the State Government not specifically excepted. The issue before us involves two major aspects of the SPMS the procedure for classifying positions included within it and the griev ance me chanism th at allows em ployees to com plain about whether they are in the proper classification. The SP MS co mprises six categories of employees those in the skilled service, the professional service, the management service, the executive service, special appointees, and temporary emplo yees. See Maryland Code §§ 6-401 through 6-406 of the State Personnel and Pension A rticle (SPP). A ll employees not in one of the other categories are in the skilled service. Basic administration of the SPMS is vested in the Secretary of Budget and Managem ent (Secretary). The SPMS is based largely on classes of positions, the development of which is essentially a joint effort between the heads of the principal units of the Executive Branch and the Secretary. The process is set forth in SPP §§ 4-201 through 4-205. Section 4-201 gives the Secretary the authority (1) to establish classes, (2) to assign a rate of pay to each class, (3) to ensure that each class comprises one or more positions that are similar in their duties and responsibilities , similar in the general qualifications required to perform those duties and responsibilities, and to which the same standards and tests of fitness and the same rates of pay can be applied, (4) to give each class a descriptive classification title, (5) to prepare a description of each class, and (6) to create additional classes and abolish, combine, or modify existing ones. Section 4-202 directs the Secretary to establish standards and general procedures for classifying positions in the skilled and other services. The actual classification plans for the variou s units in the Executive B ranch are prepared by the heads o f the units and submitted for the Secretary s approval. SPP § 4-203. Once the plan is ap proved, the unit head is directed to classify positions in a ccordanc e with the plan, and each employee in a position assumes the classification title given to the class to which that pos ition bel ongs. To assure that positions are classified properly, the Secretary is directed, at least once every three years, to conduct position classification audits and operational audits of classification practices and records. Id. Section 4-204 authorizes the Secretary to classify positions in a unit when necessary to preserve the integrity of the -2- classification system and to order the head of a principal unit to ta ke action to properly classify a position or to comp ly with a classifica tion audit. The grievance procedu re for SPM S emplo yees is set forth in title 12 of SPP. Th e term grievance is define d in § 12-1 01(c ) as a disp ute b etween a n em ploye e and the employer about the interpretation, and application to the employee, of a personnel policy or regulation adopted by the Secretary or any other policy or regulation over which management has control. It does not include, however, a dispute about (1) a pay grade or range for a class, (2) the amount or effective date of a statewide pay increase, (3) the establishment of a class, (4) the assignment of a class to a service category, (5) the establishment of classification standards, or (6) an oral reprim and or c ounse ling. Unless another procedure is provided by SPP, the grievance procedure is the ex clusive remedy through w hich a non-tempo rary employee in the SPMS may seek an administrative remedy for a violation of SPP § 12-103. With an exception not relevant here, there are three steps (and one pre-step) to the grievance procedu re. The pre -step, set forth in § 12-202 , is informal discussion between the employee and his or her immediate supervisor. The first formal step (§ 12-203) is initiation of the procedure by filing a grievance with the e mployee s appointing authority. The second step (§ 12-204 ) is an appea l from the appointing authority s decision to the head of the grievant s principal unit, and the third step, which has several phases to it, is an appea l to the Secretary of Bud get and M anagem ent (§ 12-2 05). If the Se cretary is unable to resolve the grievance through a settlement, the grievance must be referred to OAH for a hearing and -3- decision by an ALJ . The decis ion of the A LJ is the fina l administrative decision. § 12205(c)(2)(ii). This case involves seven em ployees wo rking at vario us correction al institutions in the Department of Public Safety and Correctional Services (DPSCS) Dian e Myers, B everly Smith, Jane Dryden, Tracey Lunkin, Behira Said, Kevin Hunt, and Debbie Carty each of whom is involved in procurement for the Department. Prior to 1999, DPSCS used the unitary Agency Buyer classification series for all of its procurement positions. Smith was an Agency Buyer I, Grade 10; Myers, Hunt, and Lunkin were each an Agency Buyer V, Grade 14; and Carty, Dryden, and Said were each an Agency Buyer IV, Grade 13. Other State agenc ies had two cla ssificatio n series f or proc ureme nt perso nnel, one of which included posi tions wit h a highe r level of com plex ity. In 1999, as the result of a classification study, the Secretary created a second classification series for procurement personnel in DPSCS the Agency Procurement Specialist (APS) series. The APS series was intended for employees who purchased items using the competitive bidding or negotiation process. The APS II classification is for the full performance level of work in the procurement of equipment, services, construction, supplies, information technology, and other needs, which must be obtained through the competitive or negotiated procurement process. Persons in that classification do not supervise other APS personnel but may supervise or give guidance to agency procurement associates and su pport sta ff. The APS Supervisor classification is for the supervisory work -4- in that kind of procurement; employees in that class supervise APS employees and paraprofessional staff. In January, 2001, after creation of this new classification series, DPSCS requested clarification from the Department of Budget and Management (DBM) regarding the distinction between the Agency Buyer and the new APS series, noting th at there seem ed to be some c onfus ion reg arding the pur pose o f the A PS seri es, in particula r whether it was intended to replace the Agency Buyer series. The confusion, DPSCS said, is compounded by the fact that the job specifications reference similar areas of responsibility. In March, 2001, a classification analyst for DBM responded by noting that (1) the APS series was designed to recognize work related to the competitive or negotiated procurement process and that employees in those positions are re sponsible for the entire procurement process, and (2) agency buyers are not responsible for procurements made through the competitive or negotiated process and do not determine the most app ropriate procurement methods to use in accordan ce with COMAR Title 21. Only certain types of procurem ent were d elegated to the correctional institutions, and the ag ency buyers app ly the State procurement regulations only to those types of procurement delegated to their institutions. The letter stated that the APS series was not designed to replace the agency buyer series in its entirety but that DBM planned to review the agency buyer series to determine if the specifications accurately addressed the work performed. Following that response, DBM examined the 23 positions in D PSCS that w ere -5- involved with procurement activities and, on May 31, 20 01, issued a report with respect to those positions. One person in each of the correctional institutions was identified as the procurement officer, and that person w as recommen ded for reclassification as an A PS II (grade 15). One person in the office of the Secretary of DPSCS was found to meet the criteria for DPS Supervisor (grade 17). As a result of these evaluations, the seven employees who are parties to this case were dealt with as follows: (1) Ms. Myers was found to function as the procurement officer for the three consolidated DPSCS institutions in the Jessup area and to su pervise two Ag ency Buyer II positions; she was reclassified f rom Agenc y Buyer V (grade 14) to A PS II (grade 15); (2) Ms. Smith was found to be an assistant to the Procurement Officer at one institution and was reclassified from Agency Buyer I (grade 10) to Agency Buyer V (grade 14); (3) Ms. Dryden was found to function as the procurement officer for one institution and to supervise two agency buyers; she w as reclassified from A gency Buyer IV (grade 13) to AP S II (grade 15); (4) Ms. Lunkin was found to function as the procurement officer for the Division of Pretrial Detention and Services and to supervise one Agency Buyer II position; she was reclassified from Agency Buyer V (grade 14) to AP S II (grade 15); (5) Ms. Said wa s found to function as the procurement officer for one institution and to supervise one Agency Buyer I and a fiscal clerk. She was reclassified from -6- Agency Buyer IV (g rade 13) to APS II (grade 15); (6) Mr. Hu nt was fo und to function as the procurement officer for a pre-release center and to supervise one Agenc y Buyer. He was reclassified fro m Agency B uyer V (grade 14) to APS II (grad e 15); (7) Ms. Carty was fou nd to function as the p rocurement office r for maintenance contracts, supplies, equipment, and services for the three institutions at the Hagerstown complex and to supervise three Agency Buyer I positions. She was reclassified from Agency Buyer I (grade 13) to A PS II (grade 15). None of these employees were entirely happy with those reclass ifications, and , in September, 2001, they each filed a grievance seeking a further reclassification. Ms. Smith contended that her duties were at last equal to APS II and sought reclassification to that position, retroactive to December 1, 1999. The other employees, in a joint grievance, averred that their duties w ere at least equ al to APS Sup ervisor, and they sought reclassification to that position, retroactive to December 1, 1999. The grievances proceeded through the three steps noted. When, at step three, the parties failed to reach agreement, the Secretary s designee, in conformance with SPP § 12-205(b)(2)(ii), referred the grievances to OAH. After an evidentiary h earing, the ALJ, on May 22, 2003, filed a memorandum and order in which he granted the grievances filed by Ms. Myers and Ms. Smith but denied the others. He concluded from the evidence that Ms. S mith s respo nsibilities dealt prim arily with the competitive or negotiated procurement process and that she performed the kind of -7- work set forth in the specifications for the APS II position. Accordingly, the ALJ found that management erred in retaining her in the Agen cy Buyer classific ation and n ot placing h er in the APS series, an d he ord ered tha t she sho uld be r eclassif ied to A PS II. He noted that SPP § 12-402(b)(2) provided that, in a reclassification grievance back pay may be awarded for a period no t exceeding one year bef ore initiation of the grievan ce proced ure, that M s. Smith had initiated the grievance on September 11, 2001, and that she had been performing the duties of A PS II for at le ast a year prior to that date. He therefore determined that she was entitled to back pay commencing September 11, 2000. Ms. Myers, the ALJ concluded, was placed in an APS II position, rather than an APS Supervisor, beca use D BM had dete rmin ed th at she did not s upervise an A PS e mployee, which is a prerequisite for the APS Supervisor position. One of the persons she supervised was Ms. Smith. As the ALJ found that Ms. Smith was entitled to be reclassified, retro activ ely, to APS II, it was clear that Ms. Myers did, indeed supervise an A PS II employee, and, accordingly, she was there fore entitled to be reclassifie d, retroactively, to APS Sup ervisor. As to the five o ther grievan ts, seeking to become APS Supervisors, the ALJ iterated his conclusion that, in order to sustain their grievances, they had the burden of establishing in the con tested ca se proc eeding that they, in fact, supervised APS employees, and he concluded that they had fa iled to offer proof that they did so. For that reason failure to sustain their respective burdens of proof he denied the grievances. -8- DPSCS filed a petition in the Circuit Court for Baltimore County for judicial review of the ALJ s decision to reclassify Ms. Smith and Ms. Myers. The other five grievants filed a cross-petition seeking review of the denial of relief to them. The Department made two argumen ts that the ALJ erred in finding that Smith and M yers were improperly classified by DBM and that, even if he did not err in that rega rd, he had n o authority to reclassify those employees that only DBM had authority to reclassify em ployees and th at the AL J s only author ity was to a ward b ack pa y. The court found no error in the ALJ s determ ination that Smith and M yers were entitled to reclassification but concluded that he had exceeded the scope of his authority by actually ordering the reclassification. As to those employees, the court therefore directed the ALJ to modify his order and rema nd the case s of Smith and Myers to DBM for restudy. The court affirmed the ALJ s decision as to the other five employees, noting that the employees that they apparently supervised were still classified as Agency Buyers and had not filed grievances to be reclassified to APS status. The seven employees noted an appeal to the Court of Special Appeals, which essentially affirmed what the ALJ had done. Myers v . Public Safety, 162 Md. App. 272, 873 A.2d 1225 (2005). The intermediate appellate c ourt held tha t the ALJ d id not exce ed his authority in ordering that Smith and Myers be reclassified, and it reversed the judgment of the Circuit Court on that po int, but it affirmed the Circuit Cou rt ruling that the ALJ did not err in declining to reclassify the other five employees. We granted certiorari to consider -9- both of those issues, and we shall affirm the judgment of the Court of Special Appeals. DISCUSSION Smith and Myers DPSCS is no longer contesting the ALJ s factual determinations bearing on whether Smith was performing duties assigned to the APS II position or that, as a result, Myers was performing duties assigned to the APS Supervisor position. Its only point now is that, at least in the absence of finding some defect in DBM s reclassification procedure, the ALJ had no authority to direct the reclassifications. Its view see ms to be tha t the ALJ s hould either have denied the grievances or, at most, directed a restudy of the grievants situations by DPSCS in consultation with DBM. We disagree. As we have observed, grievance is defined very broadly. With only those exceptions enumerated in SPP § 12-101(c)(2), the term includes any dispute between an employee and the State agency about the interpretation of and application to the employee of a personnel policy or regulation adopted by the Secretary or any other policy or regulation over which mana geme nt has c ontrol. See SPP § 12-10 1(c)(1) . The only kinds of disputes excluded from that definition are disputes over (1) a pay grade or range for a class, (2) the amount or effective date of a statewide pay increase, (3) the establishment of a class, (4) the assignment of a class to a service category, (5) the establishment of classification standards, and (6) an oral r eprima nd or co unselin g. -10- There is nothing in the definition remotely suggesting that a dispute over whether an employee is performing duties that have been assigned to a different position and, for that reason, is entitled to be reclassified to the position to which those duties have been assigned, is excluded from the grievance procedure, and, indeed, both the statute and the regulations promulgated by DBM expressly recognize that kind of reclassification grievance. SPP § 7102(e) requires that the duties an d respons ibilities assigned to a position shall be consistent with the duties and responsibilities for the position s assigned class a nd provides that [a]n employee may griev e the ass ignme nt of du ties and respon sibilities . . . if those assigned duties and responsibilities clearly are applica ble to a d ifferen t class. That was precisely the nature of Smith s and Myers s grievances. The regulations adopted by DBM expressly reference SPP § 7-102. COMAR 17.04.02.01B states that a grievance involving a position reclassification is governed by SPP §§§ 7-102(e), 12-101(b)(2), 12-205, and COMAR 17.04.06.05. That latter regulation requires that, if a grievance is base d on a p osition s classif ication, the head of the principal unit must assure that a classification study of the employee s position was made w ithin a year prior to the initiation of the griev ance. Tha t was don e in this case. The DBM study that led to the grievances was completed May 31, 2001, and the grievances we re filed in September, 2001. Unq uestiona bly, an employee may use the grievance procedure to complain that the employee s duties and responsibilities are those assigned to a different classification. Indeed, -11- as we observed, SPP § 12-103(b) provides that, unless another procedure is provided by SPP, the grievance procedure is the exclusive remedy through which a nontemporary employee in the [SPMS] may seek an administrative remedy for violations of the provisions o f this article. The administrative procedure ends with the decision of an ALJ, who is the final decision maker. 1 SPP § 12-401 provides that the decision maker at any step in the grievance procedure shall determin e not only the prop er interpretat ion o r app lication o f the policy, procedure, or regulation involved in the grievance but also the appropriate remedy. It would seem virtua lly axiomatic that, if the final decision maker the ALJ determines, as he did here, that the employee s duties and responsibilities are those assigned to another classification, the p rincipal r eme dy would have to be either to strip those duties or responsibilities from the employee or direct a reclassification of the employee to the position to which those du ties and responsibilities are assigned. Otherw ise, the grievance procedu re would be a farce. SPP § 12-402 m akes that au thority clear. Sectio n 12-402 (a) provide s that, except as provided in subsection (b), dealing with back pay orders, the remedies a vailable to a grievant un der this title are lim ited to the restoration of the rights, p ay, status, or bene fits 1 Because that is so clear f rom the statu te itself, it is not nec essary to resort to extrinsic evidence to establish the legislative intent. We do note that, prior to the rewriting of the personnel law in 1996, the State Department of Personnel was the final decision maker with respect to grievances and that one of the key and deliberate changes effected by the 1996 legislation was to do away with that Department, place much of the authority formerly exercised by it with DBM, but to make the independent ALJ, rather than DBM, the final decision maker with respect to grievances. -12- that the grievant otherwise would have had if the contested policy, procedure, or regulation had been applied appropriately as determined by the final decision maker. Restoration of such rights, pay, status, o r benefits m ay well require a reclassificatio n; otherw ise, the rights, pay, status, and be nefits awa rded to the s uccessfu l grievant w ould be inc ompatible with th e emp loyee s po sition an d thus in comp atible w ith SPP § 4-20 1. Section 12-402(b ) supports th at principle. It pro vides, in relevant part, that [i]n a reclassification grievance back pay may be awarded for a period not exceeding 1 year before the grievance procedure was initiated. The back pay necessarily must reflect the additional compensation attached to the position that the employee should have had if the contested policy, procedure, or regulation had been applied appropriately as determined by the final decision maker. See § 12-402(a). We do not share DPSCS s view that allowing the ALJ, as the final decision maker in a grievance proceeding, to direct an appropriate reclassification will significantly impinge upon the jurisdiction and responsibility of either the principal unit or DBM in devising or implementing the classification system; nor will it jeopardize the integrity of the SPMS. The ALJ is not changing the definition or description of classes o r positions bu t is simply determining, based on the facts presented, that a particular employee is executing duties and responsibilities that those ag encies hav e assigned to a differen t position and that the employee is therefore entitled to be in that position. -13- The Oth er Grievants The argument made by the other five grievants Dryden, Lunkin, Said, Hunt, and Carty is that they were performing the same duties as Myers and were supervising employees who, though placed in the Agency Buyer series, properly should have been reclassified to the AP S series. Th e problem was that th ose employees had not sought reclassification and therefore remained in the Agency Buyer positions. As a result, Dryden, Lunkin, Said , Hunt, an d Ca rty did not s upervise any APS employees and, for that reason, were not entitled to be in an APS S upervisor position. We a gree with the Cou rt of Special Appea ls that the ALJ committed no error in that conclusion or in denying the five grievances. JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. -14-

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