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Civil Servant Wins Second Chance To Contest Hiring of Subordinates

Baltimore City may not fill a vacant position by using its administrative policy manual’s “in lieu of” clause to promote a subordinate unless there are no names on the reemployment list for that vacancy, the Court of Special Appeals held yesterday.The opinion sends former City Planner Supervisor Margaret A. Ross’ case against the city back to Baltimore City Circuit Court. Ross is a 14-year city civil service veteran who lost her job as a result of a June 1996 reduction-in-force. She sued the city after subordinates, who effectively were given “acting” responsibility for similar positions that came open in July 1996, were promoted into those slots after Ross’ year on the reemployment list had expired.Ross never was rehired.“She had built up seniority there. When this came down it was just devastating for her … which is why she fought it so long, under circumstances that were so unfair — and actually illegal,” said her attorney, Alane Tempchin.The intermediate appeals court agreed.“It makes no sense to argue, as the city does, that on the one hand the city could [use] the ‘in lieu of clause’ when positions became vacant and, on the other hand, contend that the city never filled the city planner supervisor position,” Judge James P. Salmon wrote for the court.“By its plain and unambiguous terms, the ‘in lieu of’ clause only comes into play when the city elects to fill a vacancy,” the judge said.Tempchin said she was encouraged by yesterday’s opinion.“We still have a long row to hoe, but we’ve made it this far, so we’ll see,” she said.The Court of Special Appeals held that the case had to go back to the trial court because Baltimore City Circuit Judge Evelyn O. Cannon did not issue a written opinion declaring the rights of the parties, as required on a motion for summary judgment.

“The city can’t resort to bureaucratic subterfuge to circumvent fundamental civil service employment rights.”-Howard J. Schulman&nbsp

Baltimore City Solicitor Thurman W. Zollicoffer Jr. said he agreed with this part of the opinion, but that it was unfortunate the case had to be retried. Zollicoffer and Deborah K. St. Lawrence, the assistant city solicitor who argued the case, expressed confidence in the city’s chances the second time around.“When we go before the trier of fact again,” said St. Lawrence, “we will be better prepared to show that the city did what it needed to do under the civil service rules.”But employment litigator Howard J. Schulman said the appeals court could not have made it clearer.“What it says is that the city can’t resort to bureaucratic subterfuge to circumvent the fundamental civil service employment rights conferred by the city charter,” Schulman said.While Schulman was not involved in the present case, he noted its similarities to the 1993 discrimination lawsuit former Assistant Comptroller Erwin A. Burtnick won against the city of Baltimore last April. Among his claims in that case, Burtnick alleged that then-city Comptroller Jacqueline McClean created “substantially similar” positions to replace the ones she abolished, but did not put him on the re-employment list for the new position. Schulman represented Burtnick in that matter.<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

[IMGCAP(1)]Case: Margaret A. Ross v. Mayor and City Council of Baltimore, CSA No. 2476, Sept. Term 1999. Reported. Opinion by Salmon, J. Filed Nov. 29, 2000.Issue: Did the trial court err in concluding that the city properly used the “in lieu of” clause set forth in its administrative policy manual to fill a job vacancy to which appellant, who was never rehired, claimed absolute priority as a laid-off worker on re-employment list? Holding: Yes; reversed and remanded for further proceedings. The trial court first erred in granting summary judgment without issuing a written opinion declaring the rights of the parties. The city may fill a vacant position using its “in lieu of” clause only if a job is vacant and there are no names on the re-employment list for that position.Counsel: Alane Tempchin for appellant; Deborah K. St. Lawrence for appellees.RecordFax: 0-1129-01(15 pages)