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Curry v. Department of Public Safety and Correctional Services12/30/1994
the employee's prior criminal proceeding to prove that the employee engaged in conduct that violated COMAR §§ 06.01.01.47E ("wantonly offensive conduct") and 06.01.01.47M ("such conduct as to bring the classified service into public disrepute"). Accordingly, the agency was required to prove that the employee engaged in the proscribed conduct. In the case sub judice, by contrast, the Department suspended Curry and Flagg for being "convicted" of an alcohol-related offense, which the Department defines to include probation before judgment. The fact that the employees each received probation before judgment satisfied the definition of conviction in DCD 50-2.
The crucial distinction is between punishing a person for misconduct and punishing a person for being "convicted." Where a state agency wishes to discipline an employee for misconduct, it must prove the fact that the employee engaged in the conduct. In such a situation, as was the case in Powell, the agency may not use the fact that the employee received probation before judgment to prove the underlying conduct. Where the agency wishes to discipline an employee for being "convicted," by contrast, the agency is not required to prove the fact of the employee's misconduct. Rather, it need only prove the fact that the employee was "convicted" under the relevant definition of conviction. In essence, because the Department's disciplinary sanctions are not disqualifications or disabilities imposed by law, as we indicated in Part I, supra, it does not matter how the Department defines the conduct or activities upon which it imposes disciplinary measures.
Neither § 641(c) nor Executive Order 01.01.1991.16 prohibit the Department from suspending Curry and Flagg based on a first alcohol-related offense for which each received probation before judgment. Accordingly, the ALJs correctly interpreted those provisions of DCD 50-2 and Executive Order 01.01.1991.16 to uphold Curry's and Flagg's suspensions.
IN APPEAL NO. 360, JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
IN APPEAL NO. 553, JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY REVERSED.
COSTS TO BE PAID BY APPELLEE.
Disposition
IN APPEAL NO. 360, JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. IN APPEAL NO. 553, JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY REVERSED. COSTS TO BE PAID BY APPELLEE.
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