In an opinion issued on September 28, 2017, the Court of Special Appeals ordered that the untimely suspension of a State employee be rescinded. The opinion clarifies State law regarding the timely imposition of suspensions on State employees.
The opinion is captioned Mihailovich v. Department of Health and Mental Hygiene, No. 573, Sept. Term, 2016. A copy of opinion is available here. The opinion was written by Senior Judge Frederick Sharer. The employee was represented by David Gray Wright.
In the opinion, the Court reviewed an administrative law judge’s (“ALJ”) interpretation and application of § 11-106(c) of the State Personnel and Pensions Article (“SPP”) of the Maryland Code. The ALJ had been tasked with answering two questions: what qualifies as a “workday” under § 11-106(c) and what constitutes “the employee’s next shift” under that same provision.
These were matters of first impression, as no reported opinions answered these questions. The Court of Special Appeals answered these questions in favor of the employee and consistent with the interpretation argued by Mr. Wright.
The Court concluded “the ‘workday’ specified in the statute pertains to the schedule of the appointing authority, not the employee, for the purpose of establishing the temporal parameters within which disciplinary action must be taken.” The Court relied on the plain language of the law and also its legislative history – dating back to 1920. The Court agreed with the employee and Mr. Wright. It disagreed with the Department, which contended that “workday” referred to the employee’s workday.
The Court summarized its holding:
Hence, we hold that, under SPP § 11-106(c), once the appointing authority acquires knowledge of employee misconduct, it has five of the agency workdays to investigate, meet with the employee in question, consider any mitigating factors, determine the appropriate disciplinary action, and give written notice of the suspension and appeal rights, to the employee. The 5-workday period commences on the day following the end of the employee’s next shift after the appointing authority acquires knowledge of the misconduct. The days to be excluded from the calculation are Saturdays, Sundays, employee leave days, and legal holidays as recognized by Maryland law. As in the case of the Thomas B. Finan Center, and other “24/7” agencies, the 5-day count would be five consecutive calendar days, subject to any such statutory exclusions.
The holding makes certain the timeline for State executive branch employers to suspend employees as a disciplinary action.