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Laid-off state workers get no dibs on hiring

A civil-service union will seek to change Maryland law after the state’s top court ruled last week that state agencies need not reinstate laid-off workers when similar positions open up but can advertise to fill the vacant posts.

In its unanimous decision, the Court of Appeals rejected the argument of 17 former direct-care assistants at the now-closed Rosewood Center in Owings Mills. The laid-off employees argued that the law required the state to ask them back before other people were invited to apply.

“I think we definitely have to consider changing the law,” said Sue Esty, legislative director for the American Federation of State, County and Municipal Employees Maryland.

“If you are laid off, you will be given priority when it comes to rehiring: That is what the practice had been for many years,” Esty said. “That is the common understanding of the term laid off: When there is an opening, you will get your job back.”

The Court of Appeals did not elaborate on its decision, saying it was adopting by reference last year’s Court of Special Appeals’ opinion in the same case. The intermediate appellate court held that the State Personnel & Pensions Article allows agencies to fill vacant positions through recruitment, reinstatement or a combination of both.

Judge Robert N. McDonald, writing for the high court, explained why the judges opted to simply adopt the lower court’s opinion.

“The intermediate appellate court has thoroughly and, in our view, correctly analyzed the legal issues concerning the interpretation of the state personnel law,” McDonald stated. “There is little gained in our restating at length what has already been well said by the intermediate appellate court. What we add is an endorsement that removes any doubt as to the standing of that decision as the law of Maryland.”

The Court of Special Appeals, in its reported decision on Aug. 31, 2012, remanded the laid-off workers’ case to an administrative law judge to determine if the agency complied with statutory recruitment procedures in filling the positions.

The 17 workers were laid off in 2009 when the Department of Health and Mental Hygiene closed the Rosewood Center, which provided treatment for developmentally disabled people. A number of staff members were transferred to Spring Grove Hospital in Catonsville, which provides psychiatric care. Other positions at Spring Grove were filled by new recruits without first being offered to the laid-off workers, they claimed.

An administrative law judge upheld the agency’s actions, saying the workers had no statutory right to reinstatement in those positions. A Baltimore City Circuit Court judge agreed, as did the Court of Special Appeals.

The law “clearly states that an agency can fill vacancies by recruitment or selection from an existing list of eligible candidates,” the intermediate court stated. “There is no statutory preference for either method — an agency may fill a vacancy through Title 7 recruitment or a Title 11 reinstatement, or, conceivably, a combination of both.”

The laid-off workers then sought review by the Court of Appeals.

Joel A. Smith, the workers’ attorney, said he hopes to show on remand that the transfers to Spring Grove were not true recruitments of new employees but “selective reinstatement” of laid-off employees, without regard to seniority.

“We will accept the remand and show pretextual recruitment,” said Smith, of Kahn, Smith & Collins P.A. in Baltimore. “A selective reinstatement was conducted, which is contrary to law.”

The department disputes the allegation of improper recruitment.

WHAT THE COURT HELD

Case:

Abilene Sturdivant et al. v. Maryland Department of Health and Mental Hygiene. CA No. 309, Sept. Term 2011. Reported. Opinion by McDonald, J. Argued June 11, 2013. Filed Nov. 25, 2013.

Issue:

Do laid-off state employees have a statutory right to reinstatement in a similar open position?

Holding:

No; state law permits the agency to recruit new employees rather than reinstate those who have been laid off.

Counsel:

Joel A. Smith for petitioners; Sarah Rice and David Morgan for respondent.

RecordFax # 13-1125-21 (7 pages).