Monday, February 5, 2007

Reier v. SDAT (Ct of Appeals)

Issued February 5, 2007 -- Opinion of Judge Glenn T. Harrell, Jr.

Petitioner David Reier, until his termination on 7 October 1996 for asserted misconduct and poor performance, was employed as an assessor in the Carroll County office of the State Department of Assessments and Taxation (SDAT). As an assessor, Reier was responsible for conducting assessments of individual property "accounts" to determine their fair market value for taxation purposes. Reier’s work, like that of all assessors, was subject to audit by supervisors upon its completion. Events leading up to the audit process in the final months of the 1996 assessment cycle lead to Reier’s eventual termination.

In early August 1996, the Assistant Supervisor of Assessments for Carroll County, Lumen Norris, found a stack of 8 to 10 building permits on top of, or otherwise in close proximity to, a filing cabinet designated for the storage of such permits. Shortly after his discovery, Norris brought the misplaced permits to the attention of the Supervisor of Assessments for Carroll County, Larry White. White decided to use the permits as a sampling of Reier’s work for audit purposes. The timeline of the proceeding audit process became the subject of great dispute because of its significance to the determination of the date on which SDAT became aware of the extent of Reier’s poor performance and misconduct. The audit revealed excessive errors in Reier’s work and evidence that he had derogated his duties as an assessor. After the conclusion of the audit and a conference with Reier as to the audit results, White terminated Reier. Reier pursued an administrative appeal of his termination to the Maryland Office of Administrative Hearings (OAH).

The Administrative Law Judge (ALJ) presiding over the first OAH hearing on the matter affirmed the timeliness of the termination, finding that Reier was given notice of his termination within 30 days of the commencement of the investigation in accord with Maryland Code (1993), State Personnel and Pensions Article, § 11-106(b). Reier sought judicial review of the decision in the Circuit Court for Baltimore County, which remanded the case to the OAH for application of the Court of Special Appeals’ interpretation of § 11-106(b) then just announced in Western Correctional Institute v. Geiger, 130 Md. App. 562,747 A.2d 697 (2000) (Geiger I). Aggrieved by the Remand Decision rendered by a different ALJ, Reier again sought judicial review in the Circuit Court, which affirmed the ALJ. On appeal to the Court of Special A ppeals (Reier I), the intermediate appellate court remanded the case to the OAH to apply the yet newer judicial gloss giv en § 11-1 06(b) in the Court of Appeals’ Western Correctional Institute v. Geiger, 371 Md. 125, 807 A.2d 32 (2000)(Geiger II).

The same ALJ undertook this case for a third time and, after rendering factual findings varying as to some key dates from her previous findings regarding when the SDAT was on notice of Reier’s misconduct, determined that more than 30 days had passed since the SDAT became aware of facts sufficient to prompt an investigation into Reier’s job performance. The ALJ ordered that Reier be reinstated and awarded back pay, consisting solely of lost monetary wages. The Circuit Court affirmed Reier’s reinstatement and awarded him benefits as part of his back pay. On appeal by the SDAT, the Court of Special Appeals affirmed Reier’s reinstatement, concluding that the intermediate appellate court’s decision in Reier I and the opinion in Geiger II effectively vacated the factual findings made by the ALJ on the first remand. The appellate court panel, however, concluded that back pay was limited to monetary wages. Dep’t of Taxation v. Reier, 167 Md. App. 559, 893 A.2d 1195 (2006) (Reier II).

The Court of Appeals rejected the SDAT’s arguments that the findings of fact made by the ALJ on the first remand, and relied upon by the Court of Special Appeals in Reier I, could not be disturbed under the doctrine of the law of the case. The Court noted that the doctrine, which prevents par ties from re-litigating issues already decided by a higher tribunal, is generally invoked only for decided questions of law, rather than pure questions of fact. Thus, because the ALJ upon the second remand revised only her findings of fact, which had not been relied upon by the intermediate appellate court in any event, the doctrine of the law of the case did not apply here . Instead, the revised factual findings were determined to be within the ambit of the mandate and opinion of Reier I, which had requested a clarification of certain key facts made more significant in light of the new interpretation of the statutory 30-day notice standard interpreted in Geiger II.

The phrase "full back pay", as it is used in Maryland Code (1993), State Personnel and Pensions Article, § 11-110(d)(1)(iii), does not explicitly include State-offered benefits.. The Court looked to the legislative history of the statute to determine its meaning, paying particular attention to Governor’s Task Force Report that indicated that the word "full" had significance apart from a deleted set-off provision in an earlier iteration of the bill before enactment.

Several factors led the Court to conclude that "full back pay" must embrace also State-offered benefits. First, Maryland courts previously conflated the provisions of § 11-110(d )(1)(ii) and (iii) to both reinstate and provide back pay with benefits to erroneously terminated employees. Second, the Court held that the entire State Personnel and Pension Article addresses the pay scheme in a manner that contemplates benefits, such as health care and leave, to be inextricably linked with pay. Third, the Task Force Report belies the notion that § 11-110(d)(1) was written in the disjunctive with respect to pay and benefits. Finally, the Court held it to be unreasonable for the General Assembly to permit recipients of lesser wrongful discipline to be made whole entirely, while simultaneously depriving wrongfully terminated employees of their accrued State benefits.

The full opinion is available here in PDF.

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