KEHOE, J.
The primary issue in this case is whether a State agency is required — as opposed to authorized — to fill vacant positions by reinstating laid-off State employees.
In 2009, the Maryland Department of Health and Mental Hygiene ("DHMH") closed the Rosewood Center, a facility that provided treatment services to developmentally disabled individuals, and transferred a number of its staff members to Spring Grove Hospital, a psychiatric hospital. As a result of the consolidation of the two facilities, a number of Spring Grove staff members were laid off,
We conclude that Title 7 and 11 of the State Personnel and Pensions Article ("SPP") (1994, 2009 Repl.Vol.) gave Spring Grove two means of filling the vacancies in question: recruitment and reinstatement. Because there is no statutory preference for either method, we answer appellants' first question in the negative.
As to the second issue, if the agency decides to fill the vacancies through recruitment, it must follow the procedures mandated by the General Assembly in Title 7. These requirements are manifold but the most important in our view pertain to public notice, thus assuring that all interested individuals have an opportunity to apply, and transparency, so that applicants and would-be applicants will know what criteria will be used in making hiring decisions. The degree to which Spring Grove complied with these statutory mandates is problematic. The administrative law
For its part, DHMH advances an additional question, which we have also rephrased:
This issue is not preserved for judicial review.
We summarize some of the uncontested factual findings made by the ALJ as part of her decision.
Direct Care Assistants ("DCAs") are responsible for assisting patients with their daily activities, escorting patients to and from appointments and performing similar direct services related to patient care. Prior to 2009, appellants were employed as DCAs at Spring Grove Hospital. In 2008, the State began to consolidate DHMH's long-term care facilities. The Rosewood Center was scheduled for permanent closure. As the Rosewood Center was in the process of shutting down, DHMH transferred employees from that facility to Spring Grove Hospital. The first group of displaced Rosewood employees arrived at Spring Grove Hospital in January 2009. Successive groups of Rosewood employees followed in February, May, June, and July 2009.
In August 2009, DHMH employed approximately 176 DCAs at Spring Grove Hospital, all of whom occupied positions subject to the State Personnel Management System ("SPMS").
In June and July 2009, after Rosewood closed, Spring Grove began to determine how many Rosewood employees arrived and how many employees would be laid off as a result.
For purposes of a layoff, an employer must compute the number of "seniority points" that each employee has accumulated while working for the State. SPP § 11-205(a). DCAs accumulate seniority points on account of their service record: one point for each month of State employment, one point for each month of employment in DHMH, and one point for each month of employment in the job series
DHMH calculated the seniority points of employees at Spring Grove Hospital. A list of the seniority points computations prepared by DHMH was forwarded to Dr. David Helsel, Spring Grove's Superintendent, who in turn shared it with Judy Tullius, Spring Grove's Personnel Director.
(Emphasis added).
Rehiring Some of the Laid-Off DCAs
Enclosed with the August 12 layoff letter was an employment application. Tullius orally explained to affected DCAs that they needed "to fill out the application, get it back to [her] as quickly as possible, [and] that [Spring Grove was] working on trying to identify positions to go ahead and recruit." Most of the laid-off DCAs, including all of the appellants, filed an employment application for their previous positions.
At the direction of Tullius, Angela Hayes, Spring Grove's Nurse Recruiter, organized a committee to interview DCAs who applied for the open positions. The interview panel was assigned to determine who among the applicants would be best qualified to fill the vacancies. The interview panel conducted interviews on August 26, 27, and 28, 2009. Spring Grove also reviewed the personnel file of all employees who applied. It noted the amount of sick leave each DCA used and the number of disciplinary actions received by each DCA.
The interview panel presented each DCA with a list of ten questions. Each of the four panelists graded the response given to each of the ten questions based on a four level score: "Best-Better-Good-Fair." The scripted questions included:
The scored result of each interview, along with the result of the personnel file review, were summarized on a document prepared by Hayes entitled the "Interview Process" table. Based on this information, the director of nursing at Spring Grove determined which employees would be offered DCA positions. Tullius extended offers of employment to approximately 22 DCAs. The offers of employment and rejection letters were issued by letter dated September 16, 2009.
Laid-off DCAs who were junior in seniority points to appellants were offered employment as DCAs, and subsequently employed by Spring Grove on October 13, 2009.
The September 16th letters did not mention seniority points and appellants soon realized that seniority had not been honored. On October 2, 2009, the American Federation of State, County, and Municipal Employees, Council 982 ("AFSCME"), the bargaining representative for DCAs and other employees of DHMH, filed a grievance with DHMH, signed by Ms. Sturdivant and Mr. Opoku. The grievance identified the employees as "Peter Opoku; Adeline Sturdivant, et al." and asserted:
Shortly after the grievance was filed, AFSCME's representatives met with officials of DHMH and the Department of Budget and Management ("DBM") to identify which laid-off DCAs would be eligible to join in the grievance and to discuss the layoff and rehiring process. One result of the discussions was an agreement between the Director of DBM's Employee Relations Division and an AFSCME representative that AFSCME would have until April 15, 2010 to identify laid-off DCAs who wished to participate in the grievance proceedings. AFSCME identified seventeen additional grievants who were consolidated with the original October 2, 2009 grievance. Pursuant to SPP §§ 12-201-12-205, the grievants and DHMH attempted to resolve their dispute first within that department and then by an appeal to the Secretary of the DBM. Those efforts failing, the Secretary referred the grievance to the Office of Administrative Hearings for an adjudicatory hearing before an administrative law judge. The ALJ's decision is DBM's final decision. See SPP § 12-205(c)(2)(ii).
After an evidentiary hearing, the ALJ issued a 32 page decision denying the grievance. Appellants filed a petition for judicial review. On April 18, 2011, the circuit court issued an order affirming the ALJ's decision. Appellants filed a notice of appeal.
This case involves a judicial review of a decision issued by a State administrative agency. In such a case, "we review directly the action of the agency, rather than the decision of the intervening reviewing courts." Md. Ins. Comm'r v. Cent. Acceptance Corp., 424 Md. 1, 14, 33 A.3d 949 (2011). Our "review of the administrative agency's factual findings is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions." Kim v. Md. State Bd. of Physicians, 423 Md. 523, 536, 32 A.3d 30 (2011) (quotation marks and citation omitted). "We uphold the agency's factual conclusion if a reasoning mind could have reached that conclusion." Id.
"When considering a question of statutory interpretation by an agency, we review the agency's interpretation according to a non-deferential standard of review." Acceptance Corp., 424 Md. at 16, 33 A.3d 949.
There are three issues before us in this appeal. First, we must determine whether the ALJ erred when she concluded that SPP § 11-208 does not establish a right of reinstatement for laid-off State employees. Second, we must address whether DHMH complied with Title 7 of the State Personnel and Pensions Article when it conducted its hiring process. Finally, we will discuss DHMH's contention that the ALJ erred in permitting 17 former employees to participate in the grievance.
At the heart of the parties' dispute is SPP § 11-208, which states:
In her analysis, the ALJ concluded that SPP § 11-208 does not give laid-off workers a statutory right of reinstatement. She reasoned that:
Appellants contend that, although Spring Grove was not required to fill its vacant DCA positions, when the hospital decided to do so, it was required by SPP § 11-208(a) and COMAR 17.04.04.05(C)
Whether SPP § 11-208(a) establishes a right of reinstatement is a matter of statutory construction. This Court recently summarized the appropriate judicial approach to these questions in Powell v. Breslin, 195 Md.App. 340, 351-53, 6 A.3d 360 (2010), affirmed, 421 Md. 266, 299, 26 A.3d 878 (2011):
(Internal quotation marks and citations omitted). We turn to the statutes.
Title 7 sets out the procedures for "fill[ing] vacant skilled service and professional service positions" in the SPMS. SPP § 7-201(b). An appointing authority
Title 11 addresses, inter alia, "(1) the layoff of employees in the skilled service or the professional service; and (2) the reinstatement of laid-off and separated skilled service or professional service employees to comparable positions in State employment." SPP § 11-202 (emphasis added). When an agency seeks to fill vacant job positions by reinstatement, Title 11 provides that positions are filled according to seniority, where "[t]he employee with the most seniority points [is] the first employee to be reinstated...." SPP § 11-208(a). Title 11 operates in concert with Title 7. Laid-off employees eligible for reinstatement form "an existing list of eligible candidates" within the purview of SPP § 7-203(1).
Appellants assert that, under § 11-208(a), if there is a list of eligible candidates and that list includes, or consists entirely of, laid-off employees, the appointing authority must rehire the laid-off employees by seniority before considering any other candidate. We are not persuaded by appellants' contention. Before addressing this matter, we will provide a more detailed explanation of the two hiring schemes relevant to this appeal.
Title 7 sets out a detailed scheme that an appointing authority must follow when it chooses to fill a vacant position. The process begins, conceptually, with a description of the position to be filled. Under SPP § 7-102(a)(1), "[e]ach employee... shall be provided with a written position description which describes the essential duties and responsibilities the employee is expected to perform and the standards for satisfactory performance on a form approved by the Secretary [of DBM]." The position description must be approved by the appointing authority. SPP § 7-102(b). Supervisors are obligated to "give each supervised employee a copy of the position description for the employee's position." SPP § 7-102(c)(1)(iii).
While the written position description can serve other purposes,
SPP § 7-202(b). Moreover, "if applicants for the position are to be recruited," the position selection plan must also contain the:
SPP § 7-202(b)(4). When a draft of a position selection plan is completed, "[t]he appointing authority shall: (1) approve or disapprove each position selection plan; (2) authorize funding for approved plans; and (3) send a copy of an approved selection plan to the equal employment opportunity officer of the unit [in this case, Spring Grove Hospital]." SPP § 7-202(c).
From here, an appointing authority may select candidates for a position pursuant to SPP § 7-203, which we discussed earlier. Again, under this section, there are two primary ways to fill vacant positions: (1) by selecting "from an existing list of eligible candidates"; or (2) "if no existing list of eligible candidates exists or if the appointing authority decides to recruit for the position, by recruitment...."
If an appointing authority decides to pursue option number two and recruit candidates, then the "appointing authority shall prepare a job announcement for the position and conduct recruitment in accordance with the position selection plan." SPP § 7-204(a). The job announcement must contain:
SPP § 7-204(b). The appointing authority must also "send a copy of the selection plan and job announcement to the Secretary [of DBM] at least 1 week before posting the job announcement to assure public access." SPP § 7-204(c)(1). Furthermore, it is incumbent upon the appointing authority to:
SPP 7-204(c)(3).
After the close of a position announcement, the appointing authority must:
SPP § 7-205. In rating qualified applicants, an appointing authority "may use any appropriate selection process," but the "unit must be able to establish the job relatedness, reliability, and validity of the selection tests that it uses." SPP § 7-206(a). If an appointing authority uses a selection test, the test must be free of charge and open to all qualified applicants. SPP § 7-206(b).
Once the appointing authority has rated the qualified applicants, it must, "based on appropriate standards, place the candidates within the following categories":
SPP § 7-208(a)(1). In addition, the appointing authority must "place the candidates on a list of eligible candidates by category in random order within the category except for candidates eligible for reinstatement after layoff or separation under § 11-302 of this article who shall be placed in that category in seniority point order." SPP § 7-208(a)(2) (Emphasis added). Subsequently, the appointing authority must file this list of eligible candidates with DBM.
Finally, Title 7 provides the framework that an appointing authority must follow in selecting its new employees. Under SPP § 7-209(a), "[e]xcept as otherwise provided by law, an appointing authority shall make an appointment from among the candidates in a rating category on a list of eligible candidates as follows":
To help decide between candidates within a rating category, SPP § 7-209(c) allows appointing authorities to conduct interviews, as long as it interviews at least three candidates.
After completing these requirements, "[t]he appointing authority must certify to the Secretary [of DBM] that the hiring process was conducted in accordance with the selection plan and this subtitle." SPP § 7-209(d).
The Title 11 scheme governing layoffs and reinstatements is more straightforward. Under SPP § 11-203, a layoff is required when a position is abolished or vacated due to a lack of work. Notice of a layoff must be given "to each employee to be affected" at least 60 days before the layoff "is effective." SPP § 11-204. For purposes of a layoff, SPP § 11-205(a) provides that the appointing authority "shall compute the total number of seniority points for each employee subject to the layoff." The order of the layoff according to SPP § 11-206(a)(1) is by seniority points. The employee in the classification with less seniority points "shall be laid off before others in the class with higher seniority points." SPP § 11-206(a)(2).
Under SPP § 2-601(a), when subjected to layoff, each former employee retains reinstatement rights under the SPMS "within 3 years from separation." If reinstated, the employee will be given credit for past State service for seniority, leave accrual and other benefits. PPS § 2-601(b) and (c). If a position is vacant within the same class of jobs and the appointing authority decides to reinstate, the order of reinstatement is governed by "seniority points." SPP § 11-208(a) provides:
Under SPP § 7-208(a), the appointing authority must maintain a list of laid-off employees and produce such a list for each vacancy that occurs. The list of laid-off employees eligible for reinstatement must be "in seniority point order." SPP § 7-208(a)(2). Eligible candidates have the right to know "their relative standing on the list of eligible candidates." SPP § 7-208(b).
From these statutes, DHMH argues that "the ALJ correctly concluded that applicable statutes authorized Spring Grove, in its discretion, to recruit applicants and fill vacancies by selecting from among the best qualified eligible candidates [pursuant to Title 7], without any obligation to select from lists of laid off employees [pursuant to Title 11], such as the grievants." We agree with the ALJ's interpretation of the statute.
While the statutory scheme is complicated, it is not ambiguous. Read together, Titles 7 and 11 provide two paths by which a State agency can fill vacant positions: recruitment through Title 7 or reinstatement pursuant to Title 11. There is nothing in either Title 7 or Title 11 that suggests that, if an agency decides to recruit, it cannot recruit among laid-off employees.
In contending that § 11-208 gives laid-off employees an absolute right of reinstatement if the agency subsequently fills vacancies in the same position, appellants rely on SPP § 7-209. The statute provides in relevant part (emphasis added):
Appellants assert that:
(Emphasis in original).
We do not read the qualifying preface in SPP § 7-209(a), viz., "[e]xcept as otherwise provided by law," as broadly as do appellants. Section 7-209(a) requires an agency to hire from among the most qualified eligible candidates. An individual's qualifications are irrelevant if a laid-off employee is reinstated because, by statute, reinstatements are on the basis of seniority. The qualifying language in § 7-209 simply reflects that, under some circumstances, an appointing authority is barred from considering qualifications. We could only reach the result suggested by appellants by reading into Subtitle 7 a prohibition against filling a vacant position by recruitment when laid-off employees are also eligible for reinstatement. This we cannot do. See, e.g., Taylor v. Nations-Bank, N.A., 365 Md. 166, 181, 776 A.2d 645 (2001); Powell v. Breslin, 195 Md.App. at 351, 6 A.3d 360.
In conclusion, SPP § 7-203 clearly states that an agency can fill vacancies by recruitment or selection from an existing list of eligible candidates. If the list of eligible candidates includes laid-off employees, the laid-off employees must be rehired on the basis of seniority as mandated by Title 11's reinstatement procedure. If the agency makes the effort to recruit in accordance with Title 7, it can hire the candidates it deems to be the best suited for the position. There is no statutory
Appellants contend that Spring Grove did not comply with most of the requirements of SPP §§ 7-202-7-204 in its efforts to recruit among the laid-off DCA's and that, regardless of its protestations to the contrary, Spring Grove:
Appellants argue that this characterization of the recruitment process is supported by several first-level findings of fact made by the ALJ. In effect, they argue that the findings by the ALJ point ineluctably to the conclusion that Spring Grove's recruitment process was nothing more than a pretext to disguise the fact that Spring Grove was reinstating laid-off DCAs but not on the basis of seniority.
As we will explain, we agree that several findings of fact by the ALJ support appellants' theory. However, for reasons that are not clear from the decision, the ALJ did not make findings of fact as to other relevant issues regarding Spring Grove's compliance with Title 7's requirements for recruiting.
The ALJ concluded that Spring Grove's hiring process was valid because it involved a recruitment, pursuant to Title 7, and not a reinstatement, pursuant to Title 11. It is true that the hiring process resembled a recruitment: as expressed in DHMH's brief, "the Hospital developed a position selection plan ..., conducted a competitive recruitment to fill the DCA positions, and made offers of employment to those eligible candidates who were determined to be in the `best qualified' category of candidates for those positions." This notwithstanding, some of the ALJ's findings are not consistent with her ultimate conclusion.
First, SPP § 7-204(a) states that the appointing authority must "conduct [the] recruitment in accordance with the position selection plan." Thus, the position selection plan must be completed before recruitment commences. On this point, the ALJ found that: (1) "Spring Grove
Second, pursuant to SPP § 7-202(b), a position selection plan must list "the minimum qualifications for the class of the position and any selective qualifications required for appointment to the position" and "any limitations on selection for the position." On this point, the ALJ found that:
Spring Grove also considered the number of times "the applicant had been late." The ALJ noted that these "`Selective Qualifications' were used to limit which employees would be selected for rehire" and that these "Selective Qualifications were not noted by Ms. Tullius on the Position Selection Plans...." (Emphasis added).
Our own independent review of the position selection plans confirms that nothing was listed on the forms under "Minimum Qualifications," "Selective Qualifications" or "Limitations On Selection." Because the position selection plans did not list the minimum qualifications or selection qualifications required for the position, Spring Grove did not comply with the recruitment requirements set out in SPP § 7-202(b).
Third, under SPP § 7-202(b)(4), if an appointing authority chooses to recruit, the position selection plan must contain the following information:
None of the position selection plans listed this information. In fact, the preprinted versions of the position selection plan signed by Tullius contained spaces for "Where Job Announcement Will Be Posted" and "Where Candidates Will Apply," (information required under SPP § 7-202(b)(4)), but these spaces were left blank on all of the forms. From this one can infer that no notice of the job openings was posted but, because there might be other explanations for the failure to complete the forms, the matter should be addressed by an ALJ.
Fourth, SPP § 7-204 requires an appointing authority to "prepare a job announcement for the position." This job announcement, together with a copy of the position selection plan, must be sent "to the Secretary [of DBM] at least 1 week before posting the job announcement to assure public access." SPP 7-204(c)(1). Moreover, the appointing authority must "advertise the position vacancy at least 2 weeks before the deadline for submitting the applications...." While there is nothing in the record that indicates that Spring
Fifth, SPP § 7-209(d) states that "[t]he appointing authority must certify to the Secretary that the hiring process was conducted in accordance with the selection plan and this subtitle." Again, there is nothing in the record that indicates that Spring Grove complied with this requirement but the ALJ made no finding on this issue.
Of all of these requirements, we view SPP § 7-204's provisions relating to public notice and advertising as the most critical. The statute states that "[t]o recruit candidates..., an appointing authority shall prepare a job announcement for the position and conduct recruitment in accordance with the position recruitment plan." SPP § 7-204(a) (emphasis added). The job announcement shall contain, among other information, "a summary of the position description [and] the minimum qualifications for the class and any selective qualifications necessary for consideration." SPP § 7-204(b) (emphasis added). The statute further requires an appointing authority to forward copies of the position selection plan and the job announcement to the Secretary of DBM "at least one week prior to posting to assure public access." SPP § 7-204(c)(1). Finally the statute requires an appointing authority to "advertise the vacancy at least 2 weeks before the deadline for submitting applications" by, among other things, "making available a job announcement to all appropriate State agencies based on selection limitations...." SPP § 7-204(c)(3)(i).
Applicants for a State job have a right to know the actual — not merely the purported — criteria by which a position is filled. Equally as important, when a State agency recruits, all persons — not only those contacted by the agency — have a right to apply. While some of Title 7's requirements may be technical and primarily designed to facilitate efficient government operations, § 7-204's requirements serve a larger purpose because they assure an open, transparent and fair recruiting process. While appointing authorities are appropriately vested with broad discretion in deciding how to recruit for vacant positions, nothing in Title 7 gives an agency the right to disregard § 7-204's statutory mandates.
It follows that, if Spring Grove failed to comply with § 7-204, its efforts to fill the vacant DCA positions cannot be deemed a recruitment. If Spring Grove did not recruit but instead merely appointed candidates from among those recently laid off, it filled the positions through reinstatement. The ALJ found that "[s]eniority points were not considered as a qualification in the hiring decision." If Spring Grove filled the positions through reinstatement, it did so in violation of SPP § 11-208(a)'s mandate that laid-off employees be reinstated solely on the basis of seniority.
We will remand this case to the Office of Administrative Hearings so that an ALJ can complete the fact-finding process as to Spring Grove's compliance with SPP § 7-204 and make conclusions of law based upon those findings and this opinion. If
As a final matter, DHMH asks us to consider its contention that 17 of the grievants are not eligible to participate in this proceeding because they were not employees at the time the grievance was filed.
This argument is not preserved. In the proceedings before the ALJ, DHMH moved to dismiss the grievance as to all grievants on the basis that it was not timely filed. DHMH asserted that SPP § 12-203 provides that an employee must file a grievance within 20 days of either the date of "the occurrence of the alleged fact that is the basis for the grievance" or the day that the employee became aware of the act. DHMH took the position that the 20 day deadline was triggered by the layoff notices, which were dated August 12, 2009. Thus, the Agency reasoned that the grievance was not timely because it was not filed until October 2. The ALJ denied the motion, stating:
Before this Court, DHMH takes a different tack. It asserts:
DHMH's new theory is that the 17 former employees should be excluded because they were no longer employees of the State when they were joined to the grievance. As appellants observe in their reply brief, this argument was not raised at the administrative hearing, thus it cannot be asserted for the first time upon judicial review. Parham v. DLLR, 189 Md.App. 604, 615-16, 985 A.2d 147 (2009) (citing Department of Employment v. Owens, 75 Md.App. 472, 477, 541 A.2d 1324 (1988)).