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Agencies must provide record to judge reviewing workers’ firing, Md. court says

Onus is on employer, not employee

In its 3-0 decision, written by Judge Douglas R.M. Nazarian, the Court of Special Appeals cited Maryland Rule 7-206(d), which requires the “agency” to “transmit to the clerk of the circuit court” a copy of the administrative proceedings within 60 days of being notified of the challenge in circuit court. (The Daily Record/File Photo)

In its 3-0 decision, written by Judge Douglas R.M. Nazarian, the Court of Special Appeals cited Maryland Rule 7-206(d), which requires the “agency” to “transmit to the clerk of the circuit court” a copy of the administrative proceedings within 60 days of being notified of the challenge in circuit court. (The Daily Record/File Photo)

Maryland’s second highest court has resolved in favor of fired employees the procedural issue of whether they, the administrative agency they worked for or the Office of Administrative Hearings has the legal obligation to submit the record of the termination proceedings to the circuit court reviewing the firings’ validity.

In a reported decision last week, the Court of Special Appeals said the obligation rests with the agency whose action is being challenged and not with the challenger or the OAH, which upheld the agency’s termination.

The appellate court’s ruling overturned a Prince George’s County Circuit Court judge’s dismissal of Amy E. Brown’s challenge to the Washington Suburban Sanitary Commission’s firing of her.

The judge had dismissed the challenge because the circuit court had not received the record of the OAH proceedings, a failure the judge had erroneously blamed on Brown and not the WSSC, the Court of Special Appeals said in permitting Brown to pursue her circuit court challenge to the firing.

In its 3-0 decision, the Court of Special Appeals cited Maryland Rule 7-206(d), which requires the “agency” to “transmit to the clerk of the circuit court” a copy of the administrative proceedings within 60 days of being notified of the challenge in circuit court.

Agencies may bill the former employee for the cost of transcribing the record but the agency retains the obligation to transmit the record to the court after receiving the notification, the Court of Special Appeals held.

The court rejected WSSC’s arguments that the OAH was the agency referenced in the rule and that Brown remained obligated to submit the administrative record to the circuit court.

The Court of Special Appeals noted that Brown had worked for WSSC, not for OAH.

“So before going any further, it’s important to clarify that WSSC is the agency that matters here, not OAH,” Judge Douglas R.M. Nazarian wrote for the court.

“WSSC employed Ms. Brown, paid her checks, suspended her, and made the decision to terminate Ms. Brown,” Nazarian added. “Although the decision was upheld on appeal after a hearing OAH conducted, the agency action Ms. Brown petitioned the circuit court to review was WSSC’s. OAH conducts hearings for agencies but its administrative law judges are not employees of the agency, and OAH itself doesn’t assume the role of the acting agency when it handles hearings on the agency’s behalf, notwithstanding its role to issue the final decision.”

Neither Brown’s attorney, Charles E. Walton, nor WSSC Associate Counsel Rahel J. Kifle immediately returned messages Monday seeking comment on the court’s decision. Walton is with the Walton Law Group LLC in Fort Washington.

Laurel-based WSSC notified Brown of her termination on Sept. 10, 2018, after she had been suspended twice during a 12-month period. Brown appealed her firing to OAH, but the assigned administrative law judge upheld the termination on April 16, 2019.

Brown then sought judicial review in Prince George’s County Circuit Court. WSSC submitted a response to Brown’s petition but did not include a record of the administrative proceedings.

WSSC subsequently moved for dismissal, arguing that Brown had not complied with the requirement that she provide the circuit court with the administrative record.

The circuit court judge granted the motion for dismissal, prompting Brown to seek review by the Court of Special Appeals.

Nazarian was joined in the opinion by Judges Christopher B. Kehoe and Michael W. Reed.

The appellate court issued its decision in Amy E. Brown v. Washington Suburban Sanitary Commission, No. 2347, September 2019.


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