BELL, C.J.
We granted certiorari in this case to determine whether an individual accused of, but not found responsible for, child abuse or neglect has a right to appeal
At all times relevant to this appeal, the respondents, Angela Hayward, an instructional
Both respondents, in separate cases, requested, pursuant to Maryland Code (1984, 2006 Repl.Vol., 2011 Supp.) § 5-706.1(c)
(Emphasis in original). Faced with an interpretation of FL § 5-706.1 and the regulations promulgated pursuant to, and in clarification of, it that precluded appeal when the finding of the investigation was "unsubstantiated," the respondents sought review of that interpretation by filing mandamus actions in the Circuit Court for Baltimore City. The petitioner subsequently filed motions to dismiss in both cases, and the respondents moved for summary judgment. The Circuit Court, after consolidating the actions, granted the petitioner's motion, thus disposing of the cases.
The Court of Special Appeals reversed the judgment of the Circuit Court, concluding that it would be unjust if the respondents, "whose identifying information was placed in the central registry despite a finding of insufficient evidence, were denied their right to appeal and thus their opportunity to clear their names." Hayward, 177 Md.App. at 416-17, 935 A.2d at 501. The intermediate appellate court, thus, held that "[t]he Circuit Court for Baltimore City erred when it refused to issue mandamus and dismissed the cases of ... Hayward and Dixon on the ground that it left them with no alternative means to legally resolve their dispute." Id., 177 Md.App. at 417, 935 A.2d at 502. The Department petitioned this Court for a writ of certiorari, which we granted, Social Services v. Hayward, 403 Md. 304, 941 A.2d 1104 (2008). The issue we are asked to consider is whether "the Department of Human Resources properly interpreted the law as providing standing to appeal solely to individuals found responsible for `unsubstantiated' or `indicated' child abuse or neglect and, if not, what is the scope of the appeal right?" We shall hold, like the Court of Special Appeals, that the Department failed to interpret FL § 5-706.1(c) properly, and that individuals who are investigated by a local department, with a resultant finding of "unsubstantiated," have a right to appeal, regardless of any additional findings of actual responsibility.
Although, at bottom, the issue to be resolved is the correctness of the Department's interpretation of FL § 5-706.1, it is presented in the context of the common law writ of mandamus; under review is the Circuit Court's dismissal of the respondents' consolidated Complaints for Writ of Mandamus. We begin, therefore, with a review of the nature and office of that writ. Ordinarily, mandamus does not lie where the action to be reviewed is discretionary or depends on personal judgment. Goodwich v. Nolan, 343 Md. 130, 145, 680 A.2d 1040, 1047 (1996); Board of Education of Prince George's County v. Secretary of Personnel, 317 Md. 34, 46, 562 A.2d 700, 706 (1989); In re Petition for Writ of Prohibition, 312 Md. 280, 305-06, 539 A.2d 664, 676 (1988); see also Tabler v. Medical Mutual Liability Insurance Society, 301 Md. 189, 202, 482 A.2d 873, 880 n. 7 (1984); Bovey v. Executive Director, HCAO, 292 Md. 640, 646, 441 A.2d 333, 337 (1982); Maryland Action for Foster Children v. State, 279 Md. 133, 138-39, 367 A.2d 491, 494 (1977). Indeed, the writ generally is used "to compel inferior tribunals, public officials or administrative agencies to perform their function, or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party applying for the writ has a clear legal right." Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 514, 331 A.2d 55,
This case reaches this Court in a somewhat unusual circumstance. As indicated, dispositive of the resolution of this case is the determination of which of the interpretations of FL § 5-706.1(c) offered by the parties and it is this difference in interpretation that precipitated the mandamus action. Although the respondents have, at all times, interpreted FL § 5-706.1(c) as affording them the right to a conference and subsequently an appeal,
The petitioner — the Department — does not dispute that the effect of its interpretation of § 5-706.1(c) is to restrict the respondents' entitlement to a conference and, thus an appeal, and that this results in the occurrence of one of the circumstances that our cases indicate entitle a party to mandamus relief. Indeed, the respondents, with ample justification, could have argued that they were entitled to administrative mandamus pursuant to Maryland Rule 7-401.
As we will demonstrate below, the plain language of § 5-706.1 expressly provides a right to conference, and, subsequently, to appeal, whenever the investigation of an individual for child abuse or neglect results in an "unsubstantiated" finding. The Department, however, did not apply the statute as required by its plain language and, consequently, foreclosed to respondents the right to appeal and ultimately judicial review. Had the Department adhered to the express directives of § 5-706.1, the respondents would have had access to appeal procedures and, thus, would not have been required to — nor been able to — request a writ of mandamus. The Circuit Court drew two erroneous conclusions: the first was to adopt the Department's interpretation of § 5-706.1, that the respondents were not entitled to a conference or an appeal; the second, only erroneous
We now review, in greater detail, the Department's interpretation of § 5-706.1. It is a well-settled principle that the primary objective of statutory interpretation is "to ascertain and effectuate the intention of the legislature." Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). The first step in this inquiry is to examine the plain language of the statute, 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 v. State, 336 Md. 255, 261, 647 A.2d 1204, 1206-07 (1994). Thus, "where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent." Montgomery County Dept. of Social Services v. L.D., 349 Md. 239, 264, 707 A.2d 1331, 1343 (1998). Furthermore, "[w]ords may not be added to, or removed from, an unambiguous statute in order to give it a meaning not reflected by the words the Legislature chose to use...." Smack v. Dept. of Health and Mental Hygiene, 378 Md. 298, 305, 835 A.2d 1175, 1179 (2003) (citation omitted).
We also are mindful that this Court's review of an agency's decision is narrow. United Parcel Service, Inc. v. People's Counsel for Baltimore County, 336 Md. 569, 576, 650 A.2d 226, 230 (1994). When we interpret a statute that governs an administrative body, "a degree of deference should often be accorded the position of the administrative agency," and the "agency's interpretation and application of the statute which [it] administers should ordinarily be given considerable weight by reviewing courts." Marzullo v. Kahl, 366 Md. 158, 172, 783 A.2d 169, 177 (2001) (citations omitted). While we are certainly not to "substitute [our] judgment for the expertise of those persons who constitute the administrative agency," it remains our role to determine "if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." United Parcel, 336 Md. at 576-77, 650 A.2d at 230.
The petitioner's construction of FL § 5-706.1 is colored by its conclusion that subsection (a) is ambiguous and, thus, must be interpreted as clarified by COMAR 07.02.07.16B and, especially, COMAR 07.02.26.05B. With regard to the ambiguity, it reasons that, while § 5-706.1(a) requires the Department to provide notice, in cases of "indicated" or "unsubstantiated" abuse or neglect, to individuals "alleged to have abused or neglected a child," and in subsections (b) and (c), as to each, prescribes a right to an appeal, the statute does not indicate who must make the abuse or neglect allegation. COMAR 07.02.07.16B resolves this ambiguity, the petitioner submits, by requiring a local department, prior to closing its record of investigation, to "send notice to the individual found responsible for alleged abuse or neglect of the finding and, if applicable, of the right to appeal under COMAR 07.02.26,"
The petitioner finds additional support for its position in COMAR 07.02.26.05B, which provides:
(Emphasis added). The petitioner argues that this regulation also clarifies what it perceives to be the ambiguous language of FL § 5-706.1(a). Specifically, the petitioner, in its brief, asserts that this regulation,
The petitioner also argues that the Court of Special Appeals failed to accord the appropriate level of deference to the Department's construction of FL § 5-706.1. It accordingly urges this Court to treat the agency's construction deferentially and, consequently, uphold the Department's decision.
The respondents do not agree that § 5-706.1(a) is, in any way, ambiguous. Indeed, they believe it to be clear and unambiguous. They argue, conversely, therefore, that COMAR 07.02.26.05B, on which the Department heavily relies, rather than clarifying § 5-706.1(c), as the petitioner argues, actually conflicts with its unambiguous language. The respondent notes, in that regard, that the phrase, "found responsible," is nowhere found in subsection (a) or (c), nor does § 5-706.1, at any time, use the word "responsible" in setting forth the departmental findings that entitle an individual to appeal the results of a conference. Accordingly, they submit, COMAR 07.02.26.05B, by including this additional limiting language, conflicts with § 5-706.1(c) and, most important, it does so in a manner that deprives the respondents of their rights. In addition, the respondents note that "the Department's definition of an `alleged abuser' as an individual `found responsible' for abuse, is an oxymoron" since "[o]nce an individual has been `found responsible,' it makes no sense to continue to refer to that person as an `alleged abuser.'"
Applying the applicable principles of statutory construction to the case sub judice, it is readily apparent that § 5-706.1(c), read together with § 5-706.1(a), establishes clear guidelines regarding the rights of accused individuals following an investigation by the Department which results in a finding of "unsubstantiated." There is no ambiguity in its terms concerning the rights that are implicated in "indicated" and "unsubstantiated" abuse cases; its language sets forth, with a great deal of clarity, that individuals as to whom allegations have been determined to be unsubstantiated are entitled to an appeal process. Thus, it was unnecessary to look beyond the plain language of § 5-706.1 for further guidance, Jones, 336 Md. at 261, 647 A.2d at 1206-07 and, consequently, the petitioner's reliance on COMAR 07.02.26.05B is misplaced.
FL § 5-706.1 prescribes the notice, conference and hearing requirements, as well as the appeal rights, applicable to individuals who have been investigated by the Department with respect to child abuse or neglect when the investigation culminates in either a finding of "indicated," or "unsubstantiated." FL § 5-701(y) defines "unsubstantiated," the finding that resulted from the Department's investigation of the respondents, as a conclusion "that there is an insufficient amount of evidence to support a finding of indicated or ruled out." A finding of "indicated," on the other hand, is defined by § 5-701 (m) as a finding that demonstrates "credible evidence which has not been satisfactorily refuted, that abuse, neglect, or sexual abuse did occur."
After an investigation, the Department determined that the allegations of abuse made against the respondents were "unsubstantiated." FL § 5-706.1(a) governs notice and prescribes when, to whom and of what it is to be given. It provides:
According to the plain language of § 5-706.1, the respondents were clearly entitled to notice. Moreover, there is no dispute that, with regard to the "unsubstantiated" finding, the respondents received timely notice.
The respondents both properly and timely complied with subsection (c)(1): within 60 days of receiving the notice from the local board, they responded, in writing, with a request for a conference. Notwithstanding that subsection (c)(2) requires the local department supervisor, in response to a timely request, to schedule a conference, the Department denied those requests. In so doing, it also denied the respondents the right to any judicial review. See supra note 4. This is because, under § 5-706.1(c)(4), the right to an appeal, in cases of "unsubstantiated" abuse, is intertwined with and dependent on, there being a conference with respect to that finding. Pursuant to subsection (c)(4)(iii), "An individual may request a contested case hearing in
The problem here presented arose when the Department, believing § 5-706.1 to be ambiguous, sought to clarify it by regulation. In so doing, it became subject to two conflicting sets of rules, as the respondents correctly point out. Administrative agencies have broad authority to promulgate regulations, to be sure, but the exercise of that authority, granted by the Legislature, must be consistent, and not in conflict, with the statute the regulations are intended to implement. We have consistently held that the statute must control. Lussier v. Maryland Racing Com'n, 343 Md. 681, 688, 684 A.2d 804, 807 (1996) ("[W]here the Legislature has delegated such broad authority to a state administrative agency to promulgate regulations in an area, the agency's regulations are valid under the statute if they do not contradict the statutory language or purpose."); Christ by Christ v. Maryland Dept. of Natural Resources, 335 Md. 427, 437-38, 644 A.2d 34, 39 (1994) ("[T]his Court has upheld [an] agency's rules or regulations as long as they did not contradict the language or purpose of [a] statute."). Both COMAR 07.02.07.16B and 07.02.26.05B conflict with the plain language of § 5-706.1, as well as other relevant provisions in Title 5, Subtitle 7. As such, they must yield to the statute.
To begin, the petitioner's argument, urging this Court to recognize a distinction between "alleged" abuse or neglect, and "suspected" abuse or neglect, and to adopt COMAR 07.02.07.16B's formulation of the former, as meaning "found responsible" for "suspected" abuse or neglect, is not only in conflict with statutory authority, it is simply incorrect English. An "allegation" is defined by WEBSTER'S NEW INTERNATIONAL DICTIONARY 55 (3d ed.1986) as "an assertion unsupported and by implication regarded as unsupportable." To "allege," accordingly, is "to assert, affirm, state without proof or before proving" (emphasis added); Id. Similarly, to "suspect" is defined as the act of imagining one "to be guilty or culpable on slight evidence without proof," while "suspected" is defined as "believed guilty, likely, or doubtful." Id. at 2303 (emphasis added). In contrast to these definitions, a person "found responsible" for, in this context, neglect or abuse, is one who is "answerable as the primary cause, motive, or agent." Unlike "suspicion" or "allegation," which involves conjecture in the absence — and often, contingent on the discovery — of proof, being "found responsible" is a final, unequivocal conclusion. The plain meaning of these words, alone, renders COMAR 07.02.07.16B, and the petitioner's position in support of it, untenable.
Additionally, the Department's provision of notice to the respondents is inconsistent with the petitioner's interpretation of § 5-706.1(a) and its argument. Subsection (a) requires that notice be provided, "[w]ithin 30 days after the completion of an investigation in which there has been a finding of indicated or unsubstantiated abuse or neglect" to any individual "alleged to have abused or neglected a child." Accepting the Department's interpretation of this provision, as "clarified" by COMAR
A review of COMAR 07.02.07.16B, in comparison to § 5-706.1(a), as well as other provisions in Title 5, Subtitle 7, further illuminates the inconsistencies between the regulation and the statute. When we undertake to interpret a statute, we do not review it in a vacuum, "nor do we confine strictly our interpretation of [the] statute's plain language to the isolated section alone." Lockshin v. Semsker, 412 Md. 257, 275, 987 A.2d 18, 29 (2010). Instead, "we analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the same subject so that each may be given effect." Kushell v. Dept. of Natural Resources, 385 Md. 563, 577, 870 A.2d 186, 193 (2005). Accordingly, the respondents draw our attention, for instance, to § 5-701(v), which defines a "report" as "an allegation of abuse or neglect...." (Emphasis added). In other portions of the statute, a report is the action that initiates the investigation by the Department, not the final conclusion the Department makes at the close of its investigation. See §§ 5-704, 5-705. COMAR 07.02.07.16B interprets an "allegation" as a finding of responsibility. That is in clear conflict with multiple statutory provisions which define it otherwise.
COMAR 07.02.26.05B, which was the Department's stated basis for its denial of the respondents' requests for conference, is also incompatible with the plain language of § 5-706.1(c). Specifically, while § 5-706.1(c)(1) expressly grants the right to a conference, and the right to an appeal, to those individuals who wish to contest findings of "unsubstantiated abuse or neglect," COMAR 07.02.26.05B states that only "[a]n individual found responsible for unsubstantiated child abuse or neglect may appeal the finding." (emphasis added). This language conflicts with § 5-706.1(c) because, unlike 07.02.26.05B, the statute does not differentiate between individuals who are found responsible for "unsubstantiated" child abuse, and those who are not. Indeed, in contrast to the agency regulation, subsection (c) grants the right to a conference in all "unsubstantiated" cases, with no further limiting language. This language plainly and unambiguously demonstrates the legislative intent to make an appeal right available in all such instances. Had the Legislature intended to limit the right, as COMAR 07.02.26.05B seeks to do, it simply could have inserted qualifying language. This is further buttressed by looking to § 5-706.1(a)(3), which specifically requires that individuals who have been "found responsible for indicated abuse or neglect" also be notified, as a separate and additional matter, that they "may be identified in a central registry." As we stated in Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002), we presume, looking to the plain language of a statute, that the Legislature "meant what it said and said what it meant."
COMAR 07.02.26.05B not only clearly conflicts with the statutory language in question, but it is illogical in meaning, and in effect. As we have seen, "unsubstantiated" is defined by § 5-701(y) as "a finding that there is an insufficient amount of evidence to support a finding of indicated or ruled out." Stated differently, an "unsubstantiated" finding demonstrates that the Department's investigation did not, or was unable to, find sufficient proof to support "indicated" abuse — that is, to find the individual responsible for such abuse — and was also unable to uncover a sufficient basis to "rule[] out" entirely the allegations against the accused individual. It is an oxymoron to state that an individual could be "found responsible" or "not found responsible" for "unsubstantiated abuse or neglect." It would also be improper, on the basis of admittedly insufficient evidence, for the Department to make any such declarations of responsibility, a principle reflected by § 5-714(e). Furthermore, with an "indicated" finding essentially denoting responsibility, FL § 5-701 (m), and "ruled out" establishing an individual's innocence, FL § 5-701(w), it would be redundant and arbitrary to, again, bifurcate the category of "unsubstantiated" findings in such a manner.
The effect of the Department's arbitrary reorganization of § 5-701(y), § 5-706.1(a), and § 5-706.1(c) is to perpetrate an injustice on the respondents, and other similarly situated individuals, by denying them the right to review the evidence against them, to appeal the findings of the Department and the opportunity to clear their names. This, too, is illogical, since an individual, whom the Department finds responsible for "unsubstantiated" abuse is provided with the opportunity to challenge that finding and clear his or her name, whereas an individual, whom it finds not responsible pursuant to the same finding is denied that right and, in addition and with no avenue for recourse, is listed in the central registry as associated with a case of suspected child abuse.
The Court of Special Appeals addressed this issue, stating:
Hayward, 177 Md.App. 402, 413, 935 A.2d 493, 499-500 (emphasis added). The intermediate appellate court went on to note:
Id., 177 Md.App. at 415-16, 935 A.2d at 501.
It is rather difficult to imagine how, in the words of the petitioner, "no adverse inference can be drawn" from the information entered into the central registry. Information identifying the respondents
We dealt with a similar issue in Montgomery County Dept. of Soc. Servs. v. L.D., 349 Md. 239, 707 A.2d 1331. There, we undertook to clarify what, exactly, constitutes a central registry. Id., 349 Md. at 247, 707 A.2d at 1335. We held that two computerized central databases, the Automated Master File (AMF), and the Client Information System (CIS), are both central registries, because they are "statewide, comprehensive databases containing information identifying suspected child abusers, available on a statewide basis...." Id., 349 Md. at 260, 707 A.2d at 1341. The petitioner cites that case in support of its position, arguing that our holding in that case establishes appeal rights only for individuals found responsible of abuse or neglect. It does not. Our holding in L.D. did not address that issue, nor did we articulate any limits on the right to appeal based on the nature of a local department's findings. In fact, as we see it, our analysis cuts against the petitioner's arguments.
The local department in L.D., as does the petitioner in this case, argued that since individuals subject to "unsubstantiated" findings of abuse or neglect were not specifically denoted as the perpetrators of abuse or neglect in the central registry, but rather, were simply listed as being "associated with the incident," that scheme did not "enable others accessing the records to discern from the list who committed the abuse or neglect." Id., 349 Md. at 266, 707 A.2d at 1344. We disagreed with the local department, observing:
Id., 349 Md. at 266-67, 707 A.2d at 1344-45 (citations omitted).
This analysis, regarding the effect of a central registry, is fully applicable to the facts of this case. While the respondents are not explicitly named as responsible for abuse in the central registry, as the petitioner explained in its oral argument before the Circuit Court, they are listed as being "associated" with the case. It would not be difficult for an interested party to determine, upon even a cursory review of § 5-701 and § 5-714, that those individuals are listed because they were, at some point, suspected of abusing or neglecting a child. This suspicion, as we have stated, is enough to raise a question about the character of those individuals. They are certainly entitled to the opportunity to erase this doubt.
This Court has recognized that although a central registry serves an important function in deterring and preventing child abuse and neglect, we must seek "a balance between the critical need to investigate and prosecute child abusers and neglectors and the equally critical need to allow persons accused of abuse and neglect the opportunity to clear their names before dissemination throughout the entire state." L.D., 349 Md. at 275, 707 A.2d at 1349. This is especially the case where such identification is based upon an investigation that did not uncover sufficient information to declare, definitively, either responsibility, or the lack thereof. We believe that the respondents were unjustly denied this opportunity as a result of the Department's denial of their appeal rights.
The petitioner also misconstrues the holding of C.S. v. Prince George's County Dept. of Soc. Servs., 343 Md. 14, 680 A.2d 470
We reiterate the principle that while administrative agencies have broad authority to promulgate regulations, that authority is granted by the Legislature; thus, where, as here, an agency regulation conflicts with a statute, the statute must control. Christ by Christ, 335 Md. at 437-38, 644 A.2d at 39. COMAR 07.02.07.16B and COMAR 07.02.26.05B both conflict with the plain language of § 5-706.1, as well as other provisions of Title 5, Subtitle 7 and, as a result, we do not, and cannot, give effect to those regulations. The controlling statute, § 5-706.1(c), requires that the respondents' request for a conference be granted, and that they be afforded a right to an appeal.
Additionally, as we have consistently stated when interpreting statutes, "[i]n every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense." Lockshin, 412 Md. at 276, 987 A.2d at 29. Construing the statute as the petitioner suggests we do, as we have seen, would result in just such illogical consequences. The plain language of § 5-706.1(c) expressly grants appeal rights to individuals who have been investigated by the Department, which determined that the allegations against them were "unsubstantiated."
The Circuit Court for Baltimore City erred by adopting the Department's interpretation of § 5-706.1 and, as a result, dismissing the respondents' consolidated Complaints for Writ of Mandamus. That interpretation was "arbitrary" and "capricious," Nolan, 343 Md. at 146, 680 A.2d at 1048, because, as we have seen, the plain language of the statute required the Circuit Court to find that the respondents were entitled to an appeal, which, in turn, would have provided the respondents with a basis to obtain judicial review of any adverse administrative decision. By failing to give effect to the plain language of the statute, by ratifying a construction that denied the respondents any review, the court gave substance to, and, in fact, proved, their argument that there was "a lack of an available procedure for obtaining
The "appeal," which is at issue here, is that intra-agency contested case hearing, which is only available when, in "unsubstantiated" cases, a § 5-706.1(c) conference has been sought and held. Thereafter, in order for an individual to access the courts for judicial review of the agency decision, he or she would have to be "a party who is aggrieved by the final decision in a contested case...." SG § 10-222(a)(1). Therefore, the individual affected by an "unsubstantiated" finding, who is denied a conference under § 5-706.1(c), is not only foreclosed from an intra-agency appeal, but is thereby also denied the opportunity for judicial review of the agency's decision.
The notice required by subsection (a)(3) is not applicable, by its own terms, to a subject of an "unsubstantiated" finding of abuse or neglect. That notice must be given only "if the individual has been found responsible for indicated abuse or neglect," and, therefore, is intended only for those found to have abused or neglected a child. It follows that the registry should not list the names of those whose investigation report concluded that the alleged abuse or neglect was "unsubstantiated." It is unclear whether the respondents were informed that their names would be listed in the registry.