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Dashiell v. Maryland State Department of Health and Mental Hygiene. Daniel Coles6/23/1992
important, independent tasks that employees in sensitive classifications must perform. Specifically, it contends that employees' use of alcohol, even while not on duty, is likely to have a deleterious effect on their health and their ability to render safe, quality care to the disabled, vulnerable patients at the Holly Center. Furthermore, it says, there is a significant risk that the employees' performance, if impaired, could result in serious harm before it is detected.
The Department also argues that because the Substance Abuse policy sets forth the characteristics of sensitive positions, and the employees acknowledged having read the policy, they had notice that their jobs were destined to be classified as sensitive sometime in the future. The Department views the Secretary's finding that the employees had notice of their sensitive classification as supportive of a factual determination that any reasonable State employee who read the Substance Abuse Policy would know from the definitional criteria in the Executive Order whether his position would ultimately be classified as sensitive.
III.
The Administrative Procedure Act, Maryland Code (1984), §§ 10-101 to 10-405 of the State Government Article, provides
for judicial review of the decisions of State administrative agencies. It provides, inter alia, in § 10-215:
"(g) Decision. -- In a proceeding under this section, the court may:
"(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency:
"(iv) is affected by error of law.
"(v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or
"(vi) is arbitrary or capricious."
We think the agency decisions in this case were wrong as a matter of law. There is no ambiguity in the wording of the Governor's Executive Order. It makes clear that the automatic termination provision of paragraph B(11) applies to those individuals whose positions were classified as sensitive at the time that their conduct violated the Governor's policy. In this regard, the precise language of paragraph B(11) calls for automatic termination of employees who violate the policy if "they are assigned to designated sensitive classes." (Emphasis added.) The first sentence of paragraph A(6), in which the characteristics of sensitive employment are set forth, provides that sensitive positions are those "in which the Secretary of Personnel has determined that all of the [enumerated] conditions exist." (Emphasis added.) As to the conduct that requires automatic termination, the policy speaks only in the present tense. It assigns to the Secretary of Personnel the ultimate task of determining sensitivity; no job is sensitive until the Secretary officially so declares. The sensitivity determination, accordingly, cannot be applied until it is made.
In this case, the employees were not assigned to sensitive classifications at the time they committed the acts that gave rise to their convictions. The provisions of the Substance
Abuse policy were triggered on the day each employee committed the offense, not the day on which each was convicted. When the proscribed conduct occurred, the position of Direct Care Assistant II had not yet been declared as sensitive. The position became sensitive only after the Secretary declared it so, and then only to misconduct occurring after that date.
Even if the Department had been correct in its interpretation of the Executive Order, it is clear that
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