State has just five days to suspend workers without pay MD Court of

The state needs to act quickly - very quickly - if it wants to suspend an employee without pay for misconduct.

While state employers get 30 days to investigate claims of misconduct and impose other forms of discipline, the window shrinks to a five-day work week for suspensions without pay, the Court of Special Appeals has held.

The decision rescinds a suspension against Christina White, an assistant commissioner at the Workers' Compensation Commission, because it was imposed three weeks after Chairman Thomas O'Reilly learned of the allegations against her.

The appeals court adopted a bright-line view of the five-day limit in State Personnel and Pensions Section 11-106(c), saying it was constrained to do so by the Court of Appeals' 2002 decision in Western Correctional Institute v. Geiger.

In Geiger, the top court rejected fears of a rush to judgment and found that state employers had just 30 days to investigate claims of misconduct, consult with the employee, consider mitigating factors and impose an appropriate sanction (other than suspension) under Section 11-106(b).

The Legislature has had ample opportunity to respond in the years since Geiger was decided, the court reasoned.

Since it has not legislatively overturned the interpretation articulated in Geiger, we can only conclude that the General Assembly has acquiesced in that interpretation, wrote retired Judge Paul E. Alpert, who was specially assigned to the panel.

Subsection (c) of the statute is similar to Section 11-106(b), but imposes a five-day limit for the employer to notify the state worker of a suspension without pay. The five days include only work days and the clock starts ticking at the end of the employee's next shift, after the employer has acquired knowledge of misconduct sufficient to order an investigation, Alpert said.

White was accused in January 2003 of testifying falsely about the duties of some of her co-workers before the Office of Administrative Hearings, two months earlier.

O'Reilly became aware of allegations on Jan. 14, 2003. He immediately took steps to investigate, ordering a copy of the transcript from OAH.

The transcript arrived on Jan. 31. After reviewing it, O'Reilly concluded that White had not testified truthfully.

He met with White on Feb. 4, 2003. Two days later, he informed her that she was to be suspended for the next five days without pay.

The Notice of Disciplinary Action (dated Feb. 6, 2003) advised White that she had violated COMAR provisions against engaging in conduct that would bring the state into disrepute; engaging in conduct involving dishonesty, fraud, deceit, misrepresentation or illegality; and willfully making a false official statement or report.

White contested the suspension. An administrative law judge ruled in her favor, finding that O'Reilly had knowledge of the alleged misconduct on Jan. 14, 2003; that White's next shift ended on Jan. 15, 2003; and that five work days from Jan. 15 - the last day for imposing a suspension without pay - was Jan. 23, 2003.

Upon the commission's petition for judicial review, the Baltimore City Circuit Court reversed, reinstating the suspension.

Last week's decision by the Court of Special Appeals reversed the circuit court, saying the ALJ's findings were supported by substantial evidence and correctly interpreted the law.

WHAT THE COURT HELD

Case:

Christina White v. Workers' Compensation Commission, CSA No. 2645, Sept. Term 2004. Reported. Opinion by Alpert, Paul E., retired, spec. assigned. Filed April 1, 2005.

Issue:

Did the lower court err in reversing an ALJ's determination that a suspension without pay, imposed on a state worker more than five working days after the relevant authority had notice of alleged misconduct, violated SPP Section 11-106(c)?

Holding:

Yes; reversed; suspension rescinded. Under the Court of Appeals' 2002 decision in WCI v. Geiger, the time limits set forth in Section 11-106 are bright lines that encompass the investigative process and all other steps required by the statute.

Counsel:

Jeffrey M. Ross for appellant; Kimberly Smith Ward for appellee.

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