Miller v. Comptroller
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Janet M. Miller v. Comptroller of Maryland No. 70, September Term, 2006 Headnote: The Court was presented with the issue of how a State employee is to be compensated for time spent commuting to and from an out-of-regular work site and the issue of whether a State employee is entitled to an award of compensation for acts occurring outside a 20 day perio d prior to the f iling of a grie vance. Th e Court h eld that COM AR17 .04.11.02B (1)(j) does not entitle employees to compensation for all time spent traveling between home and a work site other than their assigned office and that Maryland Code (1993, 2004 Repl. Vol.), § 12-203(b) of the State Personnel and Pensions Article requires a remedy to be limited to compensation for claims e xisting with in 20 days prio r to the initiation of a grievance. Circuit Co urt for Baltim ore City Case # 24-C-04-005315 IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term, 2006 Janet M. Miller v. Comptroller of Maryland Bell, C. J. Raker Cathell Harrell Battaglia Greene Wilne r, Alan M . (Retired, Specially assigned), JJ. Opinion by Cathell, J. Harrell and Battaglia, JJ., D issent. Filed: April 10, 2007 Janet Miller, petitioner, seeks review of a decision rendered by the Court of Special Appeals, Comptroller of Maryland v. Miller, 169 M d. App. 32 1, 901 A .2d 229 (2 006), in favor of the Comptroller of Maryland, respondent. In simple terms, this case involves wheth er an employee of the State is entitled to be paid as work time for the entire time spent driving from hom e directly to an out-of-regular work place site, or whether the employee s normal commute time to the regular workplace is to be deducted from the time spent driving to the out-of-w orkplace site . To resolv e this issue, we must examine the relationship between two regulatory schemes pertaining to State employees.1 1 The regulation, w hich is the focus of this dispute, is found in Title 17 of the Code of Maryland Regulations, COMAR, subtitle 04, Personnel Services and Benefits, Chapter 11, Leave, section 02, Workweek, Overtime and Compensatory Time, subsection B, Work Time. As relevant to the issues before this Court, COMAR 17.04.11.02B provides: B. Work Time. (1) Work time includes time during which an employee: ... (j) Travels be tween home and a work site other than the assigned office, in accordance with the Standard Travel Regu lations u nder C OM AR 2 3.02.01 . The seco nd regulatio n is COM AR 23 .02.01.01, w hich prov ides in releva nt part: A. Un less otherw ise provide d by law, these regulations a pply to all travel fo r officia l busine ss unde rtaken b y . . . employe es . . . . ... C. T hese regu latio ns do not a pply: ... (2) To State-owned, State-leased, or privately owned motor vehicles. Reimbu rsement to e mployees . . . w ho use Sta te-owned, Stateleased, or privately owned motor vehicles to conduct official business for the State is within the jurisdiction of the State Fleet Administrator, Department of Budget and Fisca l Planning , and subje ct to policies issued by the Secretary of Budget and Fiscal Planning. (Em phasis a dded.) (continued...) The problem in this case arises because the provision of the Code of Maryland Regulations (COMAR) that regulates the entitlement of time compensation requires that such compensation be awarded in accordance w ith the provisions of anothe r regulatory scheme that regulates the entitleme nt to mileage compen sation. Petitioner asserts that the time compen sation statute should not be deemed to be qualified by the limitation language of the mileage compensation. Respondent argues otherwise, in the process pointing out certain absurd results that might occur if the Court were to adopt petitioner s position.2 In separate proceedings before an Administrative Law Judge (ALJ) and the C ircuit Court for Baltimore City, petition er s position p revailed. Th e Court of Special A ppeals 1 (...continued) The applicable section of the provisions relating to the State Fleet Adm inistrator, provides th at: Reimbursement is based on the principle that the employee should be reimbursed for all official business mileage accumulated in a private v ehicle which is beyond the normal round trip mileage incurred from the emplo yee s home to the permanently assigned office/work station and back home again. (1) A State employee who leaves home to conduct business without stopping at the assigned office may be reimbursed for all m ileage direc tly connected with the business trip, which is in excess of the commute miles norma lly traveled, i.e., total official m iles driven m inus norm al daily commu te miles. In this situation, the driver has not driven his normal daily commu te and therefore must subtract it from the total official miles dr iven. State of Maryland Department of Budget a nd M anage ment D ivision o f Policy A nalysis, State Vehicle Fleet Policies and Procedures, § 5.01.05 (emphasis added) (Section 5.01.05 appe ars to be misnumbered. There are four subparagraphs in that section. Th ere are tw o (1)s, a (2), and a (4). The present matter only concerns what should be, sequentially, (2), but in reality is the second (1). ). 2 Neither party has challenged before this Court the enactment of the various regulations at issue. Their validity is not at issue in this case. -2- reversed. We gr anted c ertiorari. Miller v. Comptroller, 395 Md. 56, 909 A.2d 259 (20 06). Before this Court, petitioner presents two questions: I. Does C OMA R 17.04.1 1.02B(1 )(j) entitle employees to compensation for all time spen[t] traveling between home and a work site other than the assigned office? II. Does the law req uire that Petitioner[ s] remedy be lim ited to compensation for 20 days prior to the filing of her grievance? We answer no to the first question, yes to the second and, in so doing, affirm the judgment of the Court of Special Appeals. I. Procedural History Petitioner s job in the Comptroller s office, Financial Compliance Officer, required her to conduct audits at field locations going directly to remote locations from her home. At the time petitione r began w orking in that office, the Comptroller s policy was that an employee who was required to drive directly to a remote work site from her home was entitled to time compensation 3 for only that period of tim e that excee ded her n ormal com mute time by th irty minute s. Approx imately two years after she began her employment, she met with a representative of the Maryland Classified Employees Association who informed her that the Comptroller was required to pay her for the time from when she left her home, until she 3 As far as we know, the time compensation at issue in this case involves financial compensation, or not, for the time expended. We need not address time for time compensation in this case. They may, or may not, be the same. -3- arrived at a remote au dit location. Pe titioner then file d a grievan ce with the Com ptroller in which she sought payment for her time from home to the remote audit location. A decision was issued in the first step of the grievance process which authorized compen sation for all travel time in excess of p etitioner s no rmal commute time, but the period of such compensation was limited to commutes taking place within a 30 day period prior to the filing of the grievance.4 Petitioner appealed that first-step decision, contending that she should be entitled to compensation for the entire period of her travel to a remote site and not just the period of time in excess of her normal commute. She also challenged the 30 day limitation. The decision in the second-step appeal was rendered by a Deputy Comptroller who affirmed the first-step decision except that he reduced th e 30 day perio d to 20 days in order to comply with Maryland Code (1993, 2004 Repl. Vol.), § 12-203(b) of the State Personnel and Pensions Article.5 In affirmin g the com mute-time issue, the Deputy Comptroller recognized the interrelationship between the two regulations at issue here a nd quoted with approval the finding of the Director of the Compliance Division: 4 At approximately the same time, the Comptroller formally changed the policy, eliminating the compensation condition that limited compensation to periods of time in excess of thirty minutes of an employee s normal commute. The new policy permitted compensation for any such period that was in excess of normal commute times. 5 Section 12-203, in relevant part, provides: (b) Time limitations. A grievance procedure must be initiated by an employee within 20 days after: (1) the occurrence of the alleged act that is the basis of the grievance; or (2) the employee first knew of or reasonably should have known of the alleged act that is the basis of the grievance. -4- I believe that COMAR 17.04.11.02B(1)(j), incorporating the Standard Travel Regulations, is intending to apply the quoted mileage reimbursement concept in determining whether an employee is on work time or commute time. App lying that c oncept to this s ituat ion, f or those d ays when Ms. Miller does not travel to h er assigned office, she would properly be viewed as being on work time for all tim e directly connected with the business trip, in excess of her normal com mute time. Petitioner then filed a third-step appeal to the Secretary of Budget and M anagem ent, who delegated the case to the Office of Administrative Hearings. Petitioner s position appeared to be that she was entitled to financial time compensation for every minute of time she was driving directly from her home to a remote w ork site, even if the com mute time to the remote site was less than her normal commute time.6 The Com ptroller argued that adopting petitioner s position on this point could lead to absurd results. Petitioner also asserted that she was entitled to back compensatory pay despite the limitation of the 20 day period that h ad been o ne aspect o f the Dep uty Comp troller s decision . Both sides , with an important exception, then proffered testimony with respect to their positions to the Administrative Law Judge (ALJ). The excep tion was that petitioner chose not to put on evidence of the actual hours for which she contended she was entitled to compensation.7 6 By this point in the proceedings, the Deputy Comptroller had brought the pregrievance period from 30 days down to 20 days in order to comply with the statute mentioned, supra. Additionally, the Office of the Comptroller had conceded that its former policy of not compensating for any time until an employee had exceeded the period of his normal commute by more than 30 minutes was incorrect and had changed the policy. 7 Apparently, petitioner had elected to address the issue of the actual entitlement after a ruling by the ALJ, if that ruling was in her favor, by then submitting time sheets and the like to the Office of the Comptroller or other appropriate agency. This lack of evidence (continued...) -5- On the primary issue, the ALJ decided on behalf of petitioner and against the Comptroller. In pertinent part, the ALJ opined: The Board of Pu blic Work s Standard Travel R egulations a pply to all executive branch State em ployees. COMAR 23.02.01.02B(14) provides as follows: (14) Travel status means the condition of a State employee while traveling on State business. An employee is not in travel status while com muting fro m hom e to the employee s assigned office , regard less of th e length of time of that c omm ute. Thus, by promulg ated regula tion, it is the policy of all executive agenc ies in the State (unless otherwise exempted) that an employee traveling from home to a field site, and not to the em ployee s assign ed office , is on work time and in travel status. An employee is to be paid or compensated for work time. When traveling to a field site, an employee is working for the State, on the clock so to speak, from the time the employee leaves the residence or the place from which the normal commute to the assigned office would begin. ... With regard to reimbursing travel time, the Agency currently subtracts out the estimated, round trip travel time to the assigned office on those days when an employee does not commute to the employee s assigned office. There is no direct legal authority to allow the agency to deduct from an employee compensation for the wo rk time w hile on tr avel stat us. . . . I am not persuaded by the agenc y s argumen t on that poin t. I conclude that [petitioner] has met her burdens to show that the Agency misapplied the statewide policy in fo rmulatin g its o wn trave l time policy. ... [Petitioner] offered no credible evidence regarding the calculation of uncom pensat ed wo rk hou rs . . . . (Cita tions om itted.) Ultimately, however, the ALJ dismissed the grievance, finding: I conclude , as a matter of law, that [petitioner] demonstrated that the Agency s revised travel time policy did not conform to law and regulation. I 7 (...continued) would impact one aspect of the ALJ s decision. -6- further conclude , howev er, that [petition er] did not meet her b urdens w ith regard to demonstrating that she is entitled to compensation for certain, uncom pensat ed wo rk time. (Citatio ns omi tted.) Both parties sought judicial review. T he Circuit Court agreed with the ALJ that the Comptrollers revised travel policy was n ot supp orted b y law. That court, however, remanded the case back to the Off ice of Ad ministrative H earings fo r a further he aring, presu mably in order for petitioner to present evidence before an ALJ to establish what compensation she was due. The Comptroller appealed to the Court of Special Appeals and that court reversed the decision of the Circuit Court and the decision of the ALJ.8 II. Standard of Review In Kane v. B oard of A ppeals of P rince Ge orge s Co unty, we recen tly noted that: We review an administrative agency's decision under the same statutory standards as the C ircuit Co urt. Annapolis Market Place, L.L.C. v. Parker, 369 Md. 689, 703, 802 A.2d 1029, 1037 (2002) (quoting Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439 , 449-52, 800 A .2d 768 (2002)). In Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69, 729 A.2d 376, 380-81 (1999), Judge Eldridge, writing for the Court, explained the standard of review for administrative agency decisions: A court s role in reviewing an administrative agency adjudicatory decision is narrow, United Parcel v. Peop le s Counsel, 336 Md. 5 69, 576, 65 0 A.2d 2 26, 230 (1 994); it is limited to determining if there is substantial evidence in the record as a whole to support the agency s findings and conclusions, and to determ ine if the adm inistrative decis ion is premised upon an erroneous conclusion of law . United Parcel, 336 Md. at 57 7, 650 A.2d at 23 0. 8 Generally, in such procedural circumstances, it is the ALJ s decision that is reviewed on appeal. -7- Kane, 390 Md. 145, 159, 887 A.2d 1060, 1068 (2005). When reviewing agency decisions of law, such as the meaning of full back pay in § 11-110(d)(1)(iii) of the State Personnel and Pensions Article, we: [C]onduct[ed] a de novo review of the ALJ s legal conclusion that benef its are not included in full back pay as the question is one o f statutory interpretation and, theref ore, a purely legal inquiry. Schwartz v. Dep t of Natural Res., 385 Md. 534, 554 , 870 A.2d 168, 180 (2005); Charles C ounty Dep t of Soc. Servs. v. Vann, 382 Md. 286, 295, 855 A .2d 313, 319 (200 4); Spencer v. Bd. of Pharmacy, 380 Md. 515, 528-29, 846 A.2d 341, 348-49 (2004); Coleman v. Anne Arundel County Police Dep t, 369 Md. 108, 121, 797 A.2d 7 70, 778 (2002 ). Reier v. State Dept. of Assessments and Taxation, __ M d. __ (2 007) (N o. 29, S eptember Term, 2006) (filed F ebruary 5, 2007). With respect to the distinction between the standard of review used for agency findings of fact, which we are not asked to review herein,9 and agency conclusions of law, which we are asked to review, we have said: Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative 9 There is no dispute of fact in the present case that is pertinent to our present inquiry. The issues before this Court involve pure questions of law. Moreover, we have been directed to no prior agency, or ALJ decisions, construing the statutes at issue here and their relationship with each other. There appears to be no longstanding, or any prior, position at the administrative level in respect to these statutes, thus, this appears to be a case of first impression. As such, in the present case, the decision of the agency below is owed less deference then that owed to longstanding positions of administrative bodies. In cases such as that here presented, where the delegated ALJ takes a position exactly opposite of the position directly taken by the Agency, an issue can also arise as to what entity does a court owe deference (if any is due). This is a determination that will ultimately need to be decided. In light of our decision, it need not be done in the present case. -8- agency s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Lussier v. Md. Racing Commission, 343 Md. 681, 696-697, 684 A.2d 804, 811-12 (1996), and cases there cited; McCullough v. Wittner, 314 Md. 602, 612, 552 A.2d 881, 886 (1989) ( The interpretation of a statute by those officials charged w ith adminis tering the statute is . . . entitled to weight ). Furthermore, the expertise of the agency in its own field should be respected. Maryland Aviation Admin. v. Noland, 386 Md. 556, 572, 873 A.2d 1145, 1154-55 (2005) (footnote omitted). In Schwartz v. M aryland Depa r t of Natural Resources, 385 Md. 534, 870 A.2d 168 (2005), we more specifically addressed the deference due administrative decisions, depending on whether the issue was factual or legal and we described the lesser degree of deference due by courts of legal decisions of administrative entities: With respect to an agency s conclusions of law, we have often stated that a court reviews de novo for correctness. We frequently give weight to an agency s experienc e in interpretatio n of a statute that it administe rs, but it is always within our prerogative to determine whether an agency s conclusions of law are corr ect, and to reme dy them if wron g. Schwa rtz, 385 Md. at 554, 870 A.2d at 180 ( citations omitted ). See also Christopher v. Montgomery County Department of Health and Human Services, 381 Md. 188, 198, 849 A.2d 46, 52 (2004) ( Determining whether an agency s conclusions of law are correct is always, on judicial review, the court s prerogative, although we ordinarily respect the agency s expertise an d give w eight to its interpretation of a statute that it administers. Of course, even though an agency s interpretation of a statute is often persuasive, the reviewing court m ust app ly the law as it und erstand s it to be. (citation s omitte d)). -9- III. Discussion A. Compensation for Commuting to a Non-Regular Work Site. This case requires us to interpret the ru les of an ag ency of this Sta te. We stated in Maryland Comm n on Human Relations v. Bethlehem Steel Corp., 295 Md. 586, 592-93, 457 A.2d 1146, 11 49 (1983 ), that the interp retation of an agency rule is governed by the same principles that govern the interpretation of a Statute. We have often stated the rules of statutory construction: The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature. Fish Market v. G.A.A., 337 Md. 1, 8, 650 A.2d 705 (1994). See also Jones v. State, 336 Md. 255, 260, 647 A.2d 1204 (1994); Parrison v. State, 335 Md. 554, 559, 644 A.2d 537 (1994); Rose v. Fox Pool, 335 Md. 351, 358, 643 A.2d 906 (1994). The first step in determining legislative intent is to look at the statutory language and [i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. Jones, supra, 336 Md. at 261, 647 A.2d [][at 1206]. See also Parrison, supra, 335 Md. at 559, 644 A.2d [][at 539]; Rose, supra, 335 Md. at 359, 643 A.2d [][at 909]; Outmezguine v. State, 335 Md. 20, 41, 641 A.2d 870[, 880] (1994). See also Greco v. State, 347 Md. 423, 429, 701 A.2d 419, 422 (1997) (noting that our goal is to give statutes their most reasonable interpretation, in accord with logic and common sense, and to avoid a construction not otherwise evident by the words actually used ); Frost v. State, 336 Md. 125, 137, 647 A.2d 106, 112, (1994) (stating that we will seek to avoid statutory constructions that are illogical, unreasonable, or inconsistent with common sense ). Rockwood Casualty Ins. Co. v. Uninsured Employers Fund, 385 Md. 99, 108-09, 867 A.2d 1026, 1031 (2005) (quoting Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995)). -10- With these principles of construction guiding us, we turn to Judge H ollander s w ellreasoned opinion where she explained the Court of Specials Appeals position on the com mute-tim e issu e we address toda y: We agree with appellant [the Comptroller of Maryland] that the ALJ s conclusion is inconsistent with the plain meaning of the regulations. Therefore, the ALJ s decision is premised on an erroneous conclusion of law. . . . COMAR 17.04.11.02B([1 ])(j) plainly defines work time as the time during which an employee [t]ravels between home and a w ork site other than the assigned o ffice, in acco rdance w ith the Standard Travel Regulations under COMAR 23.02.0 1. . . . How ever, the Standard Travel Regulations under COMAR 23.02.01.0 1(c)(2) prov ide: Reimbursement to employees . . . who use State-ow ned, Stat e-lea sed o r priv ately o wned motor vehicles to conduct official business fo r the State is within the jurisdiction of the State Fleet Administrator, Department of Budget and Fiscal Planning [now Department of Budg et and M anage ment DBM ] . . . and subject to policies issued by the Secretary . . . . (Emp hasis ad ded.) We ag ree with the Comp troller that it is[:] [C]lear what the plain language of COMAR 17.04.11.0 2B([1])(j) both does and does not do. It does not provide that the entir e home to re mote site co mmute constitutes work time. The language of the regulations does require, by its incorporation by reference of the Standard Travel Regulations, resort to the [S]tate [F]leet [P]olicies to determine what is to be co nsidere d wor k time. ... The regulations set out in the State Vehicle Fleet Policies and Procedures manual are incorporated by reference into COMAR 17.04.11.02B([1 ])(j). To conclude o therwise would d efeat the ordinary and natural m eaning of the w ords of the statu te . . . . ... The Secretary of DBM, who administers both work time and travel reimburse ment, has chosen to apply to travel time the policy applicable for mileage, i.e., awarding compensation for travel time minus normal commuting time. -11- Miller, 169 Md. App. at 348-51, 901 A.2d at 245-46. We agree. For us to adopt petitioner s position, would requ ire us to read, [i]n accordance with th e Stand ard Tra vel Re gulation s unde r COM AR 2 3.02.01 [,] out of the regulation. The only logical interpretation of that language, used in this context, is that the regulation contemplates the application of the requirements of the Standard Travel Regulations. There is simply no other meaning that could app ly under these circumstances. Additionally, Judge Hollander pointed out below: Under [petitioner s] analysis, an employee assigned to a remote work site that requires less travel time than the normal, daily commute would have a shorter work day, yet earn compensation in excess of a full day s pay. Compensating employees for their entire travel time to a remote work site, without consideratio n of regular commute time, would lead to unjust enrichment of the employee, w ho wou ld ordinarily have spent a portion of that time traveling to the regular work site. Commute time is not work time, and an employee who is on travel status is not entitled to compensation for either the mileage o r the time that th e employee r egularly spend s to commute. We decline to endorse a facially absurd result that is blatantly unfair to the taxpayer s and re sults in a windf all to the e mployee . Miller, 169 Md. App. at 352, 901 A.2d at 247. We too decline to endorse a result that w ould require employees to be paid for non-work time just bec ause they w ere at a remo te work site when they would not be entitled to be paid for non-work time if they were assigned and traveling to their regular work site. Such a result is clearly illogical and absurd. The on ly logical interpretation f or the inclusio n in the regulation at issue here of the requirement that the Standard Travel Regulations apply, was to make the process of mileage and time compensation consistent. We affirm the Court of Special Appeals on the first -12- issue presented. C. Twenty Day Limitation on Filing of Grievances. There is no authority for petitioner s claim, by way of the grievance process, for an award of any compensation claimed prior to 20 days from the filing of her grievance. Petitioner is entitled to be compensated as provided in D eputy Comptroller Cord i s Novemb er 12, 2003, M anagement D ecision. In order to com ply with § 12-303(b) of the State Personnel and Pensions Article, Deputy Comptroller Cordi correctly changed the Comptroller s policy to allow a grievant to recover for acts occurring within 20 days prior to the filing of the grievance (as opposed to the pre vious, and incorrect, 30 day limitation). Thus, the Depu ty Comptrolle r s decision c orrectly allowe d petitioner to be compensated for all acts occurring within the 20 days prior to her filing a grievance on August 7, 2003. We affirm the Court of Special A ppeals on this second question as well. IV. Conclusion For the foregoing reasons, we hold that COMAR 17.04.11.02B(1)(j) does not entitle employees to compen sation for all time spent traveling betw een home an d a work site other than their assigned office and that § 12-203(b) of the State Personnel and Pensions Article requires a remedy to be limited to compensation for claims existing within 20 days prior to the initiation of a grievance. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. -13- IN THE COURT OF APPEALS OF MARYLAND No. 70 September Term, 2006 Janet M. Miller v. Comptroller of Maryland Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, Specially Assigned), JJ. Dissen ting Op inion b y Battaglia , J., which Harrell, J., joins. Filed: April 10, 2007 I respectfully diss ent. The crux of the present case requires us to determine whether a State em ployee is entitled to be paid f or the time sp ent driving f rom hom e to a work site other than the assigned workplace. The ma jority holds that an employee is not entitled to be paid fo r the entire commute, but only for the amount of time exceeding the employee s normal commute. Add ition ally, the majority finds that an employee seeking compensation for that time wou ld only be entitled to compensation for acts occurring twenty days prior to the filing of the grievance. A. In the present case, the Administrative Law Judge determined that under COMAR 17.04.11.02 B(1)(j), an employee is to be compensated for work time when traveling between home and a work site other than the assigned office: No statute directly addresses how executive branch agencies are to define, and comp ensate e mployee s for, w ork time , comm ute time or trav el time. COMAR 17.04.11.02B provides . . . Work time includes time during which an employee . . . [t]ravels between home and a work site other than the assigned office, in accordance with the Standard Travel Regu lations u nder C OM AR 2 3.02.01 . The Board o f Public W ork's Standa rd Travel R egulations a pply to all executive branch State employees. COMAR 23.02.01.02B(14) provides as follows: (14) Travel status means the condition of a State employee while traveling on State business. An employee is not in travel sta tus while commuting from home to the employee's assigned office, regardless of the length of time of that commute. Thus, by promulgated regulation, it is the policy of all executive agencies in the State (unless otherwise exempted) that an employee traveling from home to a field site, and not to the employee's assigned office, is on work time and in travel status. An employee is to be p aid or compensa ted for work time. See COMAR 17.04.11.02B(1)(a) through ( l ) (list of instances that q ualif y as compensable work time). When traveling to a field site, an employee is work ing for the State, on the clock so to speak, from the time the employee leaves the residence or the place from which the normal commu te to the assigned office would begin. In the instant case, under its revised policy (Joint Ex. # 2) the Agency auto mati cally, subtracts ou t (refuses to c ompens ate for) time equal to an employee s normal, estimated commute time from home to the employee s assigned office and back home again when th e employee tra vels to a field site. The Agency argues that the policy is analogous to the Private Mileage Reimbursement policy contained in the Department of Budget and Management s Vehicle Fleet policy (Joint Ex. # 3, p. 1718). That policy is one in which mileage equal to an estimated, average round trip commute to an assigned office is subtracted out of the total miles traveled to and from a field site, for purposes of reimbursing an employee who uses a personal automob ile for travel to a field site. With rega rd to reimbursing travel time, the Ag ency currently subtracts out the estimated round trip travel time to the assigned office on those days when an employee does not commute to the employee s assigned office. I conclude that the present policy of the Agency is arbitrary and inconsistent with law and regulations. There is no direct legal authority to all ow the A gency to deduct from an employee compensation for the work time while on travel status. Moreover, if an employee has two or more residences, or two or more places from which an estimated co mmute to the assigned office begins, the automatic deduction policy becomes unmanageable. The Agency attempted to argue that if the travel time to a field site were shorter than the estimated commute time to the assigne d office, th en the employee would somehow be unjustly compensated and therefore that interpretation of the law and regulations would lead to an absurd result. I am not -2- persuaded by the Agency s argument on that point. I conclude that [Ms. Miller] has met her burdens to show that the Agency misapplied the statewid e policy in formulating its own travel time policy. The Circuit Court for Baltimore City agreed with the Administrative Law Judge that the Comptroller s revised trave l policy was no t supported by law; the Circuit Court, howev er, remanded the case back to the Off ice of Ad ministrative H earings fo r further hea rings to establish the a ppro priate rem edy: The Court has further reviewed the entire record and finds that there is substantial evidence to support the findings of the Administrative Law Ju dge that the Comp troller of Maryland (the Age ncy) misapplied the statewid e policy in formulating its own travel policy (A.L.J. Decision at 8). The C ourt further finds that the Administrative Law Judge applied the correct principles of law to this matter. The Court, though, is not persuaded that the Comptroller of Maryland, on these facts, should prevail in having the grievance denied and complaint dismissed by the Administrative Law Judge because of a finding that Petitioner Miller offered no credible evidence regarding the calculation of uncompensated work ho urs. Acco rdingly, this Court remands the case to the Administrative Law Judge for further proceedings to determine what, if any, compensation should be awarded Petitioner M iller for travel sh e undertoo k to any remo te work site. Consistent with all other aspects of the decision of the Admin istrative Law Judge, Pe titioner Mille r s grievance will be granted. The Court of Special Appeals disagreed with the Circuit Court and the Administrative Law Judge, and reversed; the majority affirms the Court of Special Appeals. What the majority do es is fail to app ly the appropria te standard o f review a nd it further confuses our jurisprudence, which we recently correctly explicated in Maryland -3- Aviation Administration v. Noland, 386 Md. 556 , 873 A.2d 114 5 (2005): A court's role in reviewing an administrative agency adjudicatory decision is n arrow; it is limite d to determinin g if there is substantial evidence in the record as a whole to supp ort the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law . In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. A reviewing court should defer to the agency's fact-finding and drawing of inferences if they are supp orted b y the reco rd. A reviewing court must review the agency's decision in the light most favorable to it; . . . the agency's dec ision is prima fac ie correct and presumed valid, and . . . it is the agency's province to resolve conflicting evidence and to draw inferences from that evidence. Despite some un fortunate language that has crept into a few of our opinions, a court's task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency. Ev en with regard to some legal issues, a degree of deference should often be accorded the position of the administrativ e agency. Th us, an adm inistrative a gency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the age ncy in its own f ield sho uld be r especte d. Id. at 571-72, 873 A.2d at 1154-55, quoting Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-69, 729 A.2d 376 , 380-81 (1999) (citations omitted) (footnotes omitted) (emphas is in original). The majority concludes, however, that the Administrative Law Judge s decision in the present case p ermitting payment to the emp loyee for the entire time she is at a remote work site and in transit thereto should be given only slight deference at best. Slip Op. at 9. This is clearly wrong. -4- As pointed out in Banks, [d]espite some unfortunate language that has crept into a few of our op inions, a cou rt s task on rev iew is not to substitute its judgment for the expertise of thos e perso ns wh o cons titute the a dminis trative ag ency . 354 Md. at 68, 729 A.2d at 381 (footnote omitted). Judge Eldridge, writing for this Court in Noland, further agreed that such language is disapproved: The substituted ju dgment language is misleading and inaccurate for severa l reasons. It sug gests, with re spect to legal issues, that no deference w hatsoever is o wed to the age ncy's decision. That is not the law. In an action for judicial review of an administrative agency's decision, the cou rt must review the agen cy's decision in the light most favorable to it, and the agen cy's decision is p rima facie correct and presum ed valid. In addition, the agency's interpretations and applications of statutory or regulatory provisions which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected. In the context of a determination by an agency or official in the Executive Branch o f the State Government, the term judgmen t is often used to mean the exercise of discretion, such as an official exercising good judgment. Obviously a court may not substitute its exercise of discretion for that exercised by the Executiv e Branch agency or of ficial. *** If there is a need to articulate a standard for judicial review of an agency s legal rulings, it is sufficient to say that a reviewing court must dete rmine if the administrative decision is premised upon a n erron eous co nclusio n of law . Id. at 573-74 n.3, 873 A.2d at 1155-56 n.3 (emphasis added) (citations omitted). He emphasized that [i]f there is a need to a rticulate a standard for judicial review of an -5- agency s legal rulings, it is sufficient to say that a reviewing court must determine if the administrative decision is premised upon an erroneous conclusion of law. Id. The majority s assertion, then, that the deference, if any, . . . is slight at best, does not accord with our jurisprudence. B. The Administrative Law Judge determined that an employee is entitled to be compensated for the entire time she was traveling from home to a work site other than the assigned office. This is not an erro neous conclu sion of law. Section 17.04.11.02 of the Code of Maryland Regulations defines Work Time in the context of employee compensation: A. Workweek. (1) The regular workweek consists of 40 hours in a 7-day period. *** (7) Work in excess of an employee s regular workweek shall be compensated by overtime payments or compensatory time . . . . B. Work Time. (1) Work time includes time during which an employee: (a) Is on duty, whether at the employee s principal job site or at a remote location as part of the State s telecommuting program; *** (j) Travels between home and a work site other than the -6- assigned office, in accordance with the Standard Travel Regu lations u nder C OM AR 2 3.02.01 . . . . Clea rly, then, work time includes time spent at a rem ote site a nd tran sit time, in accordance with the Standard Travel Regulations. The majority, nevertheless, refuses to apply those Standard Travel Regulations to the remote workplace commute, interpreting them to not apply because of the following language: C. T hese regu latio ns do not a pply: *** (2) To State-owned, State-leased, or privately owned motor vehicles. Reimbursement to employees or officials who use State-owned, State-leased, or privately owned motor veh icles to conduct official business for the State is within the jurisdiction of the State Fleet Administrator, Department of Budget and Manag ement, and subject to policies issued by the Secretary of Budge t and M anagem ent. COMAR 23.02.01.01 C. The m ajority interprets the reimburse ment lan guage in juxtaposition to the State Fleet Administrator language to deny State employees their just due. This is the erroneous interpretation. Because we interpret language in regulations according to its na tural and ordina ry meanin g, Ins. Comm r v. Engelmen, 345 Md. 402, 692 A.2d 474, 485 (1997) ( The Commissioner s decision to promulgate and adopt COMAR §§ 09.30.94.09B and 09.30.94.11B without any reference to §§ 226(a), 230(b), and 242(e) belies [application of those sections to the regulation]. ), citing Messitte v. Colonial Mortgage Service Co., 287 Md. 289, 295-96, 411 A.2d 1051, 1054 (1980) (when words of an -7- administrative regulation are unambiguous, they will be accorded their na tural and ordinary meaning), reimburs ement in C(2) clearly ref ers to mileag e reimbursement, not work commu te time, as is revealed in the ordinary meaning of reimbursement, connoting repayment of prio r incurre d expe nses. See Black s Law Dictionary 1312 (8th ed. 2004) (defining reimb ursem ent, as repayment ); Merriam-Webster s College Dictionary 1049 (11th ed. 2003) (defining reimburse as to pay back to someone, to make restoration or payment of an equivalent to and cites as an example the repayment of travel expenses); Random House Dictionary of the English Language 1625 (2nd ed. 1987) (defining reimburse as to mak e payment to for expense or loss incurred, or to pay back, refund, repay ). Thus, the exception in the Standard Travel R egulations b y its terms only applie s to reimbursement for travel expenses such as mileage, tolls, etc. The applicab le lan guage of the Stan dard Trav el Re gula tions is re ally: A. In this chapter, the following terms have the meanings indicated. B. Terms Defined. *** (7) "Official business" means the authorized duties performed by an employee or official of the State in the employee's or officer's defined capacity under the duties and responsibilities prescribed by the employment or office. *** (10) "Routine business trav el" means authorized travel on a daily basis or periodic basis to a jobsite other than the -8- employee's assigned office for official business. *** (14) "Travel status" means the condition of a State employee while traveling on State business. An employee is not in travel status while commuting from home to the employee's assigned office, regardless of the length of time of that commute. COMAR 23.02.01.02. This language, because of the explicit reference to the S tandard Travel Regulations in COMAR 17.04.11.02 B(1)(j), authorizes payment for the comm ute to and from a remote workplace. Unlike the indirect regulation skipping incorporation utilized by the majority, incorporation by reference has only been permitted when the reference is direct and ex plicit. See Adventist Healthcare Midatlantic, Inc. v. Suburban Hospital, Inc., 350 Md. 104, 107, 711 A.2d 158, 160 (1998) (stating that state health plan incorporated Specialized Health Care Services-Cardiac Surgery and Percutaneous C oronary Intervention Services with the langu age in COM AR 10.24.17 .01: Specialized Hea lth Care Services-Cardiac Surgery and Percutaneous Coronary Intervention Services is incorporated by reference ); JBG/Twinbrook Metro Ltd. P ship v. Wheeler, 346 Md. 601, 617, 697 A.2d 898, 907 (1997) (noting that language in COMAR 26.10.11.01 [t]he Department incorporates by reference the provisions contained in 40 CFR §§ 280.90-280.116" was sufficient to incorpor ate by referenc e); Getson v. WM Banco rp, 346 Md. 48, 57, 694 A.2d 961, 965 (199 7) ( CO MAR 14.09.04 re ads: . . . Those provisions of Guides to the Evaluation of Permanen t Impairment (A merican Medical Association, 3rd ed. 1988) specified in Regulation .02 are incorporated by reference . ). -9- The majority s conclusion directly contradicts the ordinary and plain language of COMAR 17.04.11.02 B(1)(j), supplanting the language in accordanc e with the Standard Travel Regulations with in accordance with the State Vehicle Fleet Policies and Proced ures. If the Departm ent of Bu dget and M anagem ent intende d to incorpo rate the State Vehicle Fleet Policies and Procedures , it would h ave do so with a direc t and explic it reference to such policies. Furthermore, the majority s conclusion is dubious because the purpose of the State Vehicle F leet Policies an d Proced ures is to ensure the economical and efficient use of motor vehicles by units of the E xecutive B ranch of S tate Gove rnment, S tate Vehicle Fleet Policies and Proc edures, Se ction 1.01, n ot to regulate c ompens ation to employees.1 The majority conten ds that its holding is consistent with the principle that we seek to 1 The majority s holding also may have ramifications, unfortunately, for the doctrines of vicarious liability and respondeat superior. By sanctioning the interpretation that some amount of time during which an employee is traveling to a remote work site at the direction of her employer is not compensable, the majority appears to be saying that she would not be acting within her scope of employment. Our jurisprudence has supported the notion that a person traveling to a remote work site, other than her normal commute, is acting within the scope of emp loym ent, with out elim inating t he norm al com mute d istance. See Regal Laundry Co. v. A.S. Abell Co., 163 Md. 525, 163 A. 845 (1933). In Regal Laundry Co., the contention was that a reporte r for the Ba ltimore Sun was not a cting in the scope of employment when he was traveling to Crisfield and back on Sunpaper business. W e held that he was acting within the scope of his employment at the time of the accident when he was returning from his assignment to the Sunp aper s o ffice in Baltim ore. Id. at 533, 163 A. at 848. See also Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 631, 506 A.2d 224, 228 (1986) (recognizing that remote work place travel, if authorized by the employer, and in employee s vehicle as authorized by the emp loyer, can be the basis for respondeat superior liability). -10- avoid regulatory interp retations that ar e illogical, unre asonable, o r inconsistent with common sense; the majority decline[s] to endorse a [clearly illogical and absurd] result tha t would require an employee to be paid for non-work time just because he or she was at a remote work site when they would not be entitled to be paid for non-work time if they were assigned and traveling to their regula r work site, asserting that s uch a resu lt would c reate a w indfall for emplo yees. Slip Op. at 12. The w indfall, how ever, wou ld only occur w hen the len gth of the commute is less than the norma l commu te, which is n ot in issue in the instant case it is a chimerical bête noire. On the o ther hand, n o one sho uld be forc ed to work beyond the normal work day without remuneration, such as what happened in the present case. COMAR 17.04.11.02 B(1)(j), which permits compensation for commuting to and from a remote work site, clearly refers to the Standard Travel Regulations, and therefore we should give effect to it as written. C. The grievance procedures pertaining to employees in the State Personnel Management System within the E xecutive B ranch are c odified in th e State Personnel and Pensions Article of the M aryland C ode. Section 12-203 of the State Personnel and Pensions Article provides the relevant procedure for initiating an employment grievance: (a) Initiation. A grievant may initiate a grievance proceeding by filing a written grievance with the grievant's appointing auth ority. The grievant shall provid e a copy of th e grievanc e to the grievant's supervisor when the grievance is filed. (b) Time Limitations. A grievance procedure must be initiated by an employee within 20 d ays after: -11- (1) the occurrence of the alleged act that is the basis of the grievance; or (2) the employee first knew o f or reason ably should have known of the alleged act that is the basis of the grievance. Maryland Code (1993 , 2004 Repl. Vo l.), Section 12 -203 of th e State Personnel and Pensions Article. The remedies available to a successful grievant are enumerated under Section 12402, which in part provides that the remedies a vailable to a g rievant und er this title are limited to the restoration of the rights, pay, status, or benefits that the grievant otherwise would have had if the c onte sted policy, procedure, or regulation had been applied appropriately as determined by the final decision m aker. Maryland Code (1993, 2004 Repl. Vol.), Section 12-402 of the State Personnel and Pensions Article. The majority s conclusion that a grievant s remedy is limited to recovery for a cts occurring within the tw enty days prior to the filing of the grievance, however, creates an unfounded connection between Sections 12-203 and 12-402. Section 12-303 delineates the requirement of whe n an individ ual must file a grievanc e, and Sec tion 12-40 2 indepen dently supplies the remedies available if the grievance is successful, without any twenty-day limitation. We have noted the independence of the state employee grievance system steps, remarking in Walker v. Department of Human Resources, 379 Md. 407, 842 A.2d 53 (2004): With certain exceptions, §§ 12-201 through 12-205 create a three-step procedure for resolving grievances. Step 1, provided for in § 12-203, is the filing of a written grievance with the employee's appointing authority within 20 days after (1) the occurrence of the alleged act that is the basis of the grievance, -12- or (2) the employee first knew or should ha ve know n of that ac t. Within 10 days after receiving the grievance, the appointing auth ority, through its designee, is required to confer with the employee and attempt to resolve the grievance, and within 10 days after that conference, to issue a written decision in which any relief permissible under § 12-402(a) may be awarded. That relief is limited to restoration of righ ts, pay, status, or ben efits that the employee otherwise would have had if the contested policy, procedure, or regulation had been properly applied. Id. at 410, 842 A .2d at 55 . See also Wilson v. Simms, 380 Md. 206, 225, 844 A.2d 412, 424 (2004) ( In a grievance proceeding, an administrative law judge or final decision maker is authorized by Section 12-303 of the State Personnel and Pensions Article (199 3, 1997 R epl. Vol.) to gran t any appropr iate r eme dy available under Section 12-402 (a) . . . . Section 12402 (a) defines the remedies that may be provided to aggrieved state em ployees ); Comptroller v. Nelson, 345 Md. 706, 710 n.6, 694 A.2d 468, 470 n.6 (1997) (remarking that Section 12-402 provides the remedies available successful grievants under the state employee grievance system). The G eneral As sembly could not have in tended the remedies a vailable under Section 12-402 to b e restricted by Section 12-203's filing require ments when the grievant, such as Ms. Miller in this case, timely files her grievance. By holding as it does, the majority adopts a view of work time unsupported by the express definition of the term and impermissibly restricts the statutorily prescribed remedies available to successful grievants. I disagree, and would reverse the judgment of the Court of Special Appeals. Judge Harrell has authorized me to state that he joins in this dissenting opinion. -13-
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