Laura Lynn Hughes v. Stephen Moyer, Secretary of Public Safety and Correctional
Services
No. 21, September Term 2016

State Personnel Law – Employee Discipline – Administrative Appeals. Under the State
Personnel Law, an employee in the skilled or professional service who has been disciplined
may appeal that discipline through an administrative appeal process. That process includes
an initial appeal to the head of the employee’s agency and, if unsuccessful, a further appeal
to the Secretary of Budget and Management for referral to a contested case hearing at the
Office of Administrative Hearings. Failure of the agency head to respond to the initial
appeal within the statutory time limit is deemed to be a denial of the first-tier appeal that
triggers the limited time frame for the employee to invoke the second-tier appeal. The
statute requires that the agency send a written notice of disciplinary action that advises the
employee of the employee’s appeal rights. To comply with the statutory directive, the
notice should advise the employee of the possibility of a second-tier appeal and of the
significance of an agency’s failure to respond to a first-tier appeal within the statutory time
limit. Maryland Code, State Personnel & Pensions Article, §11-101 et seq.
Circuit Court for Baltimore County
Case No. 03-C-14-013661
Argument: October 7, 2016
                                           IN THE COURT OF APPEALS
                                                OF MARYLAND

                                                     No. 21

                                              September Term, 2016


                                              LAURA LYNN HUGHES

                                                       V.

                                       STEPHEN MOYER, SECRETARY OF PUBLIC
                                        SAFETY AND CORRECTIONAL SERVICES

                                     _____________________________________

                                                     Barbera, C.J.,
                                                     Greene
                                                     Adkins
                                                     McDonald
                                                     Watts
                                                     Hotten
                                                     Getty,

                                                              JJ.

                                     ______________________________________

                                             Opinion by McDonald, J.

                                     ______________________________________

                                               Filed: March 24, 2017
       It is often the task of lawyers and judges to parse the meaning of language – in

constitutions, statutes, contracts, documentary exhibits, or testimony. Silence may also

have legal significance. This case turns on two instances of silence. In one instance, a

statute tells us what it means. In the other, we must decide its significance.

       This case arises out of the termination of Petitioner Laura Lynn Hughes from her

job with the Department of Public Safety and Correctional Services (“DPSCS”). The

personnel law governing an employee like Ms. Hughes requires, among other things, that

the agency advise a disciplined employee of the employee’s appeal rights. That statute

allows a disciplined employee to seek to overturn the discipline through a two-tier

administrative appeal process with tight timelines. Under the statute, a failure of an agency

official to respond to a first-tier appeal by the statutory deadline is deemed to be a denial

of that appeal, thereby allowing the employee to move to the next level of appeal, at which

there is an opportunity for a hearing. In other words, silence equals denial.

       In Ms. Hughes’ case, the agency sent her a notice of termination that informed her

of the first tier of the administrative appeal process – an appeal to the Respondent Secretary

of DPSCS. However, the notice was silent as to the second tier of the process. Nor did the

notice inform her that a failure of the Secretary of DPSCS to respond to her first-tier appeal

within the time limit would trigger the time for her to invoke the second tier and the

opportunity for a hearing.

       Ms. Hughes followed the directions for invoking the first tier of the administrative

appeal process. The Secretary of DPSCS failed to respond within the statutory time limit,

thus denying her first-tier appeal. Apparently unaware that this silent denial triggered the
limited time for her to invoke a second-tier appeal, Ms. Hughes did nothing before the

deadline passed. When she belatedly attempted to pursue her administrative appeal and

the agency did not respond, she commenced this action in the Circuit Court for Baltimore

County.

       We hold that, in order to discharge its responsibility to provide a disciplined

employee with notice of the employee’s administrative appeal rights, an agency cannot

remain silent as the second tier appeal, but must advise the employee of the possibility of

a second-tier appeal and alert the employee as to the significance of silence in response to

a first-tier appeal.

                                              I

                                        Background

A.     Administrative Appeals of Discipline of State Employees

       To place the issues in this case in context, we first describe the key provisions of the

statute that governs discipline of certain employees of the executive branch of State

Government, and a recent decision of this Court construing that statute.

       1.      Statutory Provisions

       Disciplinary actions concerning employees in the State Personnel Management

System are governed by Maryland Code, State Personnel and Pensions Article (“SPP”),

§11-101 et seq. That statute sets forth the various types of disciplinary action that may be

taken against an employee – e.g., written reprimand, forfeiture of leave, suspension,

demotion, and termination – and specifies certain types of misconduct that result in


                                              2
automatic termination of employment. SPP §§11-104, 11-105, 11-107. The statute also

sets forth procedures and time constraints for agencies to investigate alleged misconduct,

impose discipline, and consider administrative appeals of disciplinary action. SPP §§11-

106, 11-108 through 11-113.

       If an agency decides to impose discipline, the appropriate agency official – the

“appointing authority” in the parlance of the statute1 – is to give the employee “written

notice of the disciplinary action . . . and the employee’s appeal rights.” SPP §11-106(a)(5).

With certain exceptions not pertinent here, an employee in the skilled service or

professional service2 who is the subject of disciplinary action may file a written appeal of

that action with the “head of the principal unit”3 of the agency within 15 days after the

employee receives notice of the disciplinary action. SPP §11-109(c). The statute provides

that, within 15 days after receiving the appeal, the head of the principal unit is to issue a

written decision that either upholds, modifies, or rescinds the disciplinary action. SPP §11-




       1
        The term “appointing authority” is defined as “an individual or a unit of
government that has the power to make appointments and terminate employment.” SPP
§1-101(b).
       2
        The State personnel law defines various categories of executive branch employees,
including skilled service, professional service, management service, and executive service.
See SPP §6-301 et seq., §6-401 et seq.
       3
         The term “principal unit” is defined, in pertinent part, as a “principal department
or other principal independent unit of State government.” SPP §1-101(k)(1). The principal
departments of State government are listed in Maryland Code, State Government Article
(“SG”), §8-201(b). That list includes DPSCS.


                                             3
109(e). The employee has a further right to appeal that decision to the Secretary of Budget

and Management (“Secretary of DBM”) if the employee acts within 10 days of receiving

the decision of the head of the principal unit. SPP §11-110. The Secretary of DBM may

in turn refer the matter to the Office of Administrative Hearings (“OAH”) for a hearing and

final administrative decision. Id. The statute encourages parties to resolve any appeals “at

the lowest level possible.” SPP §11-108(d). The statute also authorizes the parties to

extend or waive time limits by agreement. SPP §11-108(c).

       The statute contains default provisions that specify the consequences if the

employee or agency does not act within the specified deadlines or any agreed-upon

extension. An employee who fails to appeal a decision in accordance with the statute is

deemed to have accepted it. SPP §11-108(b)(1). A failure by an agency to decide an appeal

in accordance with the statute is deemed to be a denial from which a further appeal may be

made. SPP §11-108(b)(2).

       2.     Fisher v. Eastern Correctional Institution

       This Court recently discussed the interplay of the statutory provisions concerning

administrative appeals of disciplinary actions, including one of the default provisions, in

Fisher v. Eastern Correctional Institution, 425 Md. 699 (2012). In that case, an employee

of a State prison, who had been terminated as a result of a disciplinary investigation, filed

a timely administrative appeal with the head of her principal unit – as in this case, the

Secretary of DPSCS. After approximately nine months had passed without a response from

the Secretary of DPSCS, the employee sent a letter to the Secretary of DBM to appeal what


                                             4
she assumed was the denial of her appeal by the Secretary of DPSCS. The Secretary of

DBM referred the matter to OAH. The administrative law judge (“ALJ”) assigned by OAH

granted a motion to dismiss the appeal on the ground that the failure of the Secretary of

DPSCS to respond to the appeal within 15 days had triggered the 10-day period for the

second-tier administrative appeal to the Secretary of DBM – a period that had long passed

by the time the employee had contacted the Secretary of DBM. The ALJ’s decision was

ultimately affirmed by this Court.

       In reaching that decision, the Court noted that the apparently unqualified command

set forth in SPP §11-109(e)(2) that the head of the principal unit “shall issue a written

decision” on a first-tier administrative appeal was rendered somewhat ambiguous by the

default provision of SPP §11-108(b)(2) that makes the failure to do so a denial of the appeal

that allows an employee to move on to the next stage of the appeal process. This Court

concluded that the best way to read the two provisions together meant that an appeal that

remained unanswered after 15 days was a denial of the appeal as of that time. The Court

reasoned:

            The most commonsensical way to interpret the two seemingly
            inconsistent provisions is to read §11-109(e)(2) to mean that, regardless
            of the reason for a failure of decision within the allotted period of
            fifteen days – be it error, negligence, or, more likely, a determination
            by the head of the principal unit not to issue a written decision – the
            failure of decision is, by operation of §11-108(b)(2), a denial of the
            appeal. Any other interpretation, short of one that is strained and, in
            the end, nonsensical, would render nugatory §11-108(b)(2).

425 Md. at 710.



                                               5
       The Court observed that this construction was supported by the statute’s legislative

history. The disciplinary actions subtitle – subtitle 1 of Title 11 of the State Personnel and

Pensions Article – had been enacted by the Legislature in 1996 based on the

recommendations of the Task Force to Reform the State Personnel Management System.

Chapter 347, Laws of Maryland 1996. Prior to 1996, administrative appeals were decided

solely by the Secretary of Personnel4 under a process with certain timing benchmarks that

were difficult to meet, with the result that the average appeal took 225 days to resolve. Id.

at 711. To “streamline … and simplif[y]” that system, the 1996 amendments substituted a

two-tier administrative appeals system that would process appeals more efficiently and

effectively with initial consideration at the agency level and with the potential for a further

appeal to the Secretary of DBM, where there would be an opportunity for a hearing. The

Court noted that SPP §11-108(b)(2) – the deemed denial provision – had been added by

the General Assembly to expedite the process to the second tier. The Court stated:

           The General Assembly’s action evidences an appreciation for the
           notion that the head of a principal unit could not, or even should not,
           author in every appeal presented to him or her “a written decision that
           addresses each point raised in the appeal,” much less do so within
           fifteen days of receipt of the appeal. As we have construed it, §11-
           108(b)(2) ensures that an employee’s appeal of disciplinary action is
           always ripe for pursuit of further appellate review exactly 15 days after
           filing.




       4
         The position of Secretary of Personnel was eliminated in 1996, and many of the
duties associated with that position were re-assigned to the Secretary of DBM. See Chapter
349, §3, Laws of Maryland 1996.


                                              6
Id. at 712-13. The Court observed that an interpretation of SPP §11-108(b)(2) that allowed

an employee to delay filing a further appeal of a deemed denial of a first-tier appeal would

have resulted in the lengthy delays in appeals experienced prior to the 1996 amendments.

Id.

       Based on this reasoning, the Court held that an employee must invoke the second

tier of the administrative appeal process within 10 days after the earlier of (1) receipt of an

adverse written decision under SPP §11-109(e)(2) or (2) a deemed denial under SPP §11-

108(b)(2). Id. at 713.

B.     Ms. Hughes is Disciplined and Appeals

       1.       Termination of Ms. Hughes

       Although the procedural posture of this case at the time it was dismissed in the

Circuit Court is somewhat unclear,5 there does not appear to be any significant dispute as

to the facts material to the issues before us. We glean the following basic facts from the

pleadings and motions papers.

       Ms. Hughes was employed by DPSCS as a Parole and Probation Agent – a skilled

service position in the State Personnel Management System. On August 13, 2013, shortly

after Ms. Hughes arrived at work, she was observed by her supervisor as “disheveled,

slurring her speech, rubbing her eyes and incoherent in thought and delivery.” She was

sent for a urinalysis drug test based on reasonable suspicion of substance abuse. On



       5
           See Part II.A of this opinion below.


                                                  7
September 4, 2013, the medical review officer reported the results of that test as positive

for illegal use of drugs.6

       In early October 2013, DPSCS sent Ms. Hughes a Notice of Termination from her

position with the agency effective at the close of business on October 2, 2013.7 The notice

was signed by a Regional Executive Director of DPSCS as her appointing authority on

September 24, 2013 – which was indicated as the “date of notice.” The notice was also

signed that same date by the Director of the Division of Parole and Probation. A final

signature block, labeled “Approved by: Head of Principal Unit,” was signed by the

Secretary of DPSCS on September 30, 2013. The notice advised her that she had 15 days,

upon receipt of the notice, to file an appeal in writing to the Secretary of DPSCS. The

notice did not mention that, if the Secretary of DPSCS did not respond to such an appeal

within 15 days, the appeal would be deemed denied. Nor did the notice mention the right

to a second-tier appeal to the Secretary of DBM for a hearing or provide a statutory citation




       6
          Ms. Hughes has denied using illegal drugs and questioned the accuracy of the test
result, although she does not contest the fact that the medical review officer reported that
result. She asserts that she had taken certain drugs as part of her recovery from an
automobile accident that year which she believes might account for a positive drug test.
The truth of this assertion is not material to the resolution of the legal issues before us.
       7
         Ms. Hughes asserts in her complaint that she did not receive the notice until
October 3, 2013. Resolving the date of receipt would be important if, as earlier in this case,
the parties were disputing the timeliness of her initial appeal. That issue, however, is not
before us. See footnote 10 below.


                                              8
for the administrative appeal rights (although it did generically refer to “Title 11 of the

State Personnel and Pensions Article” as the authority for terminating her).

       2.     First-Tier Administrative Appeal

       Ms. Hughes mailed a written appeal to the Secretary of DPSCS on October 17, 2013.

The Secretary of DPSCS did not reply to Ms. Hughes’ appeal. Nearly a year later, on

September 16, 2014, after Ms. Hughes had obtained counsel, her lawyer sent the Secretary

of DPSCS a letter requesting a meeting to discuss the matter.8 The Secretary of DPSCS

did not respond.

       3.     Proceedings in the Circuit Court

       On December 18, 2014, Ms. Hughes filed a Petition for Writ of Mandamus in the

Circuit Court for Baltimore County asking that court to compel DPSCS to respond to her

appeal.9 In that pleading she asserted that she had been wrongfully terminated from her

position. In addition, apparently unaware of SPP §11-108(b)(2) or its significance as

construed in Fisher v. Eastern Correctional Institution, she asserted that the Secretary of

DPSCS had failed to respond to her timely administrative appeal and that she was entitled

to a detailed written response by the Secretary of DPSCS under SPP §11-109(e)(2). She




       8
         Neither the October 17, 2013, administrative appeal nor the September 16, 2014,
letter appears in the record of this case.
       9
         Ms. Hughes originally named Gregg Hershberger, then Acting Secretary of
DPSCS, as the defendant. Stephen Moyer succeeded Mr. Hershberger as Secretary in
January 2015 and was substituted as the defendant in the case.


                                             9
asked the court to order the Secretary to provide that response. She also asked the court to

reinstate her employment with DPSCS, award her back pay and back leave time, and grant

“such other relief as the Court deems fair, just and necessary.”

       Ms. Hughes’ reliance on SPP §11-109(e)(2) set her complaint on a collision course

with this Court’s decision in Fisher. Unsurprisingly, DPSCS filed a motion to dismiss that

relied on SPP §11-108(b)(2), as construed in Fisher. Among other things, DPSCS argued

in that motion that Ms. Hughes was not entitled to a writ of mandamus because she had

failed to pursue the available administrative remedy – in particular, the second-tier

administrative appeal to the Secretary of DBM under SPP §11-110. DPSCS argued that

Ms. Hughes’ first-tier appeal had ended with a deemed denial under SPP §11-108(b)(2)

when the Secretary of DPSCS had not responded to it by the 15th day. Applying this

Court’s holding in Fisher, DPSCS reasoned that the deadline for seeking a second-tier

review with the Secretary of DBM was, per SPP §11-110(a), 10 days after that date – a

date that had long since passed. Accordingly, DPSCS concluded, her failure to pursue the

available administrative remedy meant she had not been denied any right to which she was

entitled and there was therefore no basis for issuing a writ of mandamus.10




        10 In the Circuit Court, DPSCS also argued that Ms. Hughes had been late in filing
her first-tier administrative appeal when she mailed, rather than filed, her appeal on the last
day of the 15-day period for filing that appeal, with the result that the agency received her
appeal several days later. Ms. Hughes countered that the date of mailing should be
regarded as the date of filing. The Circuit Court declined to decide the motion on that basis
– or on a potential argument that Ms. Hughes was barred by laches for having waited more
than a year from the filing of her first-tier administrative appeal to seek relief – because the

                                              10
       Confronted with SPP §11-108(b)(2) and the Fisher decision, Ms. Hughes conceded

that the deemed denial provision applied to her situation, but pivoted in her response to the

motion to dismiss to assert – for the first time – that she had not received adequate notice

of her appeal rights, as required by SPP §11-106(a)(5). Notice was inadequate, she argued,

because DPSCS had not informed her of the effect of the deemed denial provision of SPP

§11-108(b)(2) on her right to seek a second-tier administrative appeal. In a supplemental

response, she argued that the guarantees of procedural due process in the federal and State

constitutions also required fuller notice.

       After hearing legal argument at a hearing on April 14, 2015, the Circuit Court agreed

with DPSCS that, under SPP §11-108(b)(2) as construed in Fisher, Ms. Hughes’ initial

appeal had been denied and the 10-day period for pursuing a second-tier administrative

appeal had expired. The court rejected Ms. Hughes’ argument that she was entitled to

fuller notice of her appeal rights, noting that DPSCS had informed her of her right to a

first-tier appeal – the appeal to which she was eligible upon termination. The court also

observed that “people are presumed to know the law.” The court issued a written order

dismissing her mandamus action that same day.




court would need to look to facts outside those alleged in the complaint to decide the case
on those grounds. DPSCS has not pressed either of those arguments in the appellate courts.


                                             11
       4.     Judicial Appeal

       Ms. Hughes appealed. The Court of Special Appeals affirmed the decision of the

Circuit Court, also relying on Fisher. The intermediate appellate court opined that Ms.

Hughes had made a “compelling argument” that, as a matter of policy, a disciplined

employee should receive a more complete notice of appeal rights, but believed that it was

an argument to be made to the General Assembly.

       We granted Ms. Hughes’ petition for certiorari. Ms. Hughes asks us to reverse the

dismissal of her complaint for two reasons, which we re-order and summarize as follows.11

First, she argues that we should reconsider or overrule our recent decision in Fisher v.

Eastern Correctional Institution concerning the relationship of SPP §11-109(e)(2) and SPP




       11 As they were in the Circuit Court, Ms. Hughes’ contentions before us are a
moving target. In her petition for certiorari, Ms. Hughes phrased her two questions, as she
had in her brief to the Court of Special Appeals, as follows:

       Did the lower Court err in failing to consider the notice requirements imposed on
the State by [SPP] §11-106(a)(5)?

        Did the lower Court err in failing to consider the minimum level of due process due
to the Petitioner prior to the State’s deprivation of a property right?

       In her brief before us, she has recast them as follows:

       Was the State’s notice to Appellant sufficient under [SPP] §11-106(a)(5) and
consistent with the Court of Appeals’ holding in Fisher v. Eastern Correctional Institution,
425 Md. 699, 43 A.3d 338 (2012)?

      Did the Court of Appeal[s] fail to consider the minimum level of due process due to
an Appellant prior to the State’s deprivation of a property right in Fisher v. Eastern
Correctional Institution, 425 Md. 699, 43 A.3d 338 (2012)?


                                             12
§11-108(b)(2), in light of the due process concerns that she believes were neglected in that

opinion. Second, in the alternative, she asserts that, in light of Fisher’s holding that the

deemed denial provision of SPP §11-108(b)(2) triggers the time for seeking a second-tier

appeal, DPSCS failed to provide her with adequate notice of her appeal rights, as required

by SPP §11-106(a)(5).

       DPSCS takes a contrary position on both issues raised by Ms. Hughes. In the

alternative, it asserts that she is disqualified from seeking relief in this action because she

failed to exhaust her administrative remedies.

                                                 II

                                             Discussion

A.     Standard of Review

       As a preliminary matter, we take brief detour to sort out a procedural ambiguity that

bears on the standard of review and ultimately on the disposition of this appeal.12 Ms.

Hughes titled her initial pleading a “Petition for Writ of Mandamus,” but did not indicate

what type of mandamus proceeding she intended. A common law mandamus proceeding

seeks to compel a public official to perform a clear legal duty that is not discretionary and

that does not depend on personal judgment. Falls Road Community Ass’n v. Baltimore

County, 437 Md. 115, 139 (2014). It is initiated by a pleading entitled a “complaint.” See

Maryland Rule 15-701. By contrast, a proceeding for administrative mandamus seeks



       12
            See Part II.E of this opinion.


                                                13
judicial review of administrative action that is not otherwise subject to judicial review.

Maryland Rule 7-401. It is initiated by filing a “petition” in accordance with the rules

governing review of administrative agency action.            See Maryland Rule 7-402

(incorporating procedures set forth in Maryland Rules 7-202 and 7-203).

       Ms. Hughes’ initial pleading seems to straddle these two procedures. On the one

hand, it is entitled a “petition” and asks the Circuit Court to overturn the agency action,

reinstate her employment, and award her back pay – factors that suggest an administrative

mandamus proceeding for review of agency action. On the other hand, she also asks the

court to direct the Secretary of DPSCS to carry out specific actions to process her

administrative appeal under the statute to which she claims a clear legal right – which

sounds more like common law mandamus. In addition, administrative mandamus is only

available when “review is not expressly authorized by law,”13 and there is already a

statutory path for judicial review of an agency’s disciplinary decisions.14 Thus, common

law mandamus is the more viable action. Moreover, the parties have litigated the case to

date as though this is a common law mandamus proceeding. Finally, neither of the issues

identified for decision concerns the merits of Ms. Hughes’ termination – which depended




       13
            Maryland Rule 7-401(a).
       14
        In particular, SPP §11-110(d) provides that the OAH decision at the second-tier
of the administrative appeal process is the final administrative decision. The State
Administrative Procedure Act provides for judicial review of such a decision. SG §10-
222.


                                            14
on an exercise of judgment – but rather whether Ms. Hughes has a “clear legal right” to

continue her administrative appeal seeking review of that decision.

       Having found our way to the right ballpark, we now establish our position on the

field of play. DPSCS responded to the “Petition for Writ of Mandamus” with a “Motion

to Dismiss,” presumably under Maryland Rules 15-701(c) and 2-322(b) for failure to state

a claim on which relief could be granted (although the motion did not so state). DPSCS

attached a copy of the Notice of Termination to that motion and relied on that exhibit, as

did the Circuit Court, effectively converting the motion to dismiss into a motion for

summary judgment. See Maryland Rule 2-322(c). As was evident in Ms. Hughes’

opposition to the motion, she does not contest the accuracy of that exhibit. The bottom line

was that the parties did not dispute the facts material to the Circuit Court’s decision.

       In any event, whether we view the Circuit Court’s action as the grant of a motion to

dismiss or of a motion for summary judgment, that decision turned on a legal issue. In

either case, appellate review is conducted without deference to the Circuit Court. See

Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598-99 (2013) (summary

judgment); Scull v. Groover, Christie & Merritt, P.C., 435 Md. 112, 119 (2013) (grant of

motion to dismiss for failure to state a claim).

B.     Whether Fisher Should be Reconsidered

       With respect to her first argument, Ms. Hughes relies on SPP §11-109(e)(2) and

repeats the argument that was made in Fisher that we should ignore the deemed denial

provision of SPP §11-108(b)(2) and forgive a belated second-tier administrative appeal


                                              15
when the agency fails to issue a written denial at the first tier. As outlined earlier in this

opinion, the Fisher decision construed the administrative appeal provisions of the State

personnel law with careful attention to the plain language of the statute and its legislative

history. This Court concluded that “[r]egardless of whether the head of the principal unit

issues a written decision within fifteen days after receipt of the employee’s appeal in

accordance with [SPP] §11-109(e)(2), or the appeal is denied by operation of [the deemed

denied provision of SPP] §11-108(b)(2), the employee who desires to take a further appeal

must do so within ten days after the earlier of these occurrences, pursuant to [SPP] §11-

110(a)(1).” Fisher, 425 Md. at 713.

       Ms. Hughes asserts that the Fisher court failed to take into account constitutional

due process concerns in construing the statute. Ms. Hughes’ preferred construction would

essentially read SPP §11-108(b)(2) – a provision designed to expedite a disciplined

employee’s appeal, presumably to the benefit of the employee – out of the statute. We

decline to reconsider our construction of the deemed denial provision in Fisher. Ms.

Hughes’ due process concerns are more appropriately considered with regard to her second

argument – the adequacy of notice.

C.     Whether Ms. Hughes Received Appropriate Notice of Her Appeal Rights

       Ms. Hughes’ second argument raises an issue not addressed in Fisher: What, if any,

notice must be given under SPP §11-106(a)(5) to a disciplined employee concerning the

second tier of the administrative appeal process and of the effect of the deemed denial

provision on the deadline for invoking that appeal?


                                             16
       1.     Preservation of the Issue

       A potential obstacle to addressing that issue in this case is that it is only tenuously

related to the “Petition for Writ of Mandamus” that initiated this action and whose

dismissal is the subject of this appeal. That petition does not allege inadequate notice, does

not refer to SPP §11-106(a)(5) or the notice element of procedural due process, and does

not relate the requested relief to a lack of adequate notice. However, as explained above,

the issue was raised in and decided by the Circuit Court – as well as the Court of Special

Appeals – and was raised in Ms. Hughes’ petition for certiorari. Accordingly, we will

exercise our discretion to address it in this opinion. See Maryland Rule 8-131.

       2.     Different Views of the Notice Requirement

       SPP §11-106(a)(5) requires a State agency to provide a disciplined employee with

written notice of the employee’s appeal rights. Here, the appointing authority, a Regional

Director of DPSCS, sent Ms. Hughes a Notice of Termination that explained the agency’s

reasons for ending her employment and informed her that she had 15 days to file an appeal

to the Secretary of DPSCS. The notice did not mention that a failure of the Secretary of

DPSCS to reply to such an appeal within 15 days would effectively deny her appeal. Nor

did it disclose that a denial by silence would trigger a 10-day deadline for Ms. Hughes to

take further appellate action. Nor did the notice cite the statutory sections – as opposed to

the generic subtitle authorizing employee discipline – that provided Ms. Hughes with her

administrative appeal rights.




                                             17
       The parties disagree as to whether the notice provided to Ms. Hughes by the

Regional Director was adequate under SPP §11-106(a)(5). Ms. Hughes interprets the

statute to require DPSCS to provide her with written notice of all administrative appeal

rights as part of a notice of termination. Ms. Hughes argues that, by failing to do so, DPSCS

failed to comply with SPP §11-106(a)(5) and also violated the due process guarantees of

the State and federal constitutions.

       DPSCS has a different interpretation of the statute. DPSCS counters that the Notice

of Termination adequately informed Ms. Hughes of the specific administrative appeal right

that was available to her at the time she received the notice.      DPSCS reasons that the

second-tier appeal right was not yet “ripe” and, indeed, would never have become available

if Ms. Hughes had been successful at the first tier. The agency concludes that it would not

make sense for it to inform Ms. Hughes of a second-tier appeal right that might never apply.

Lastly, DPSCS argues that further elaboration of administrative appeal rights was not

required, citing the legal maxim that “everyone is presumed to know the law.”15




       15
          See Benik v. Hatcher, 358 Md. 507, 532 (2000) (“[E]veryone is presumed to know
the law regardless of conscious knowledge or lack thereof, and are presumed to intend the
necessary and legitimate consequences of their actions [or inactions] in its light.”) (internal
citations and quotation marks omitted).




                                              18
       3.     Construing SPP §11-605(a)(5)

       Determining the nature of the notice required under SPP §11-106(a)(5) is an issue

of statutory construction. Statutory construction is a quest for legislative intent. As always,

we begin with the language of the statute considered in context, refer to its legislative

history to resolve ambiguities, and consider the consequences of alternative interpretations

in light of that context and history. Blue v. Prince George’s County, 434 Md. 681, 689

(2013).

       Statutory Language

       We look first to the language of the statute. In pertinent part, SPP §11-106(a)(5)

states: “(a) Before taking any disciplinary action related to employee misconduct, an

appointing authority shall: ... (5) give the employee a written notice of the disciplinary

action to be taken and the employee's appeal rights.” (emphasis added). As is evident, the

plain language of SPP §11-106(a)(5) uses the plural form in directing agencies to give a

disciplined employee written notice of the employee’s appeal rights. This suggests that an

agency would give some information as to the overall administrative appeal process, and

not just the immediately available procedure. At the very least, it is ambiguous as to the

extent of detail required. Consideration of context may provide some clarity.

       Context – Due Process

       When a State employee has tenure or may be dismissed only for cause – as was the

case with Ms. Hughes – the employee has a property interest in public employment. Due

process ordinarily requires the opportunity for a hearing in connection with a deprivation


                                              19
of that interest. See Maryland Classified Employees Ass’n. Inc. v. State, 346 Md. 1, 21-22

(1997); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).               The

administrative appeal process created in SPP §11-101 et seq. provides for such a hearing –

a contested case hearing at the second tier of the process. The opportunity for such a

hearing was considered a key element to ensure that the disciplinary process complied with

the dictates of due process, as the legislative history of the statute demonstrates.

       Context - Legislative History

       As outlined in detail in Fisher, the disciplinary and appeal procedures set forth in

SPP §11-101 et seq. were enacted in 1996 based on the recommendations of the Task Force

to Reform the State Personnel Management System. See Chapter 347, Laws of Maryland

1996; Fisher, 425 Md. at 711-13. Prior to the enactment of that law, the termination of a

State employee like Ms. Hughes was governed by procedures set forth in SPP §9-201 et

seq. (1994). Those procedures allowed for termination for cause – called “removal” at that

time – only upon written charges given to the employee and only after the employee was

given “an opportunity to be heard on appeal.” SPP §9-204 (1994). If an employee appealed

the termination, the Secretary of Personnel was required to hold a hearing within 90 days.

SPP §9-206 (1994). An opinion of the Attorney General had reviewed those procedures

and concluded that they complied with the mandates of due process as set forth in the




                                              20
Supreme Court’s Loudermill decision. See 70 Opinions of the Attorney General 151, 155-

59 (1985).16

       When the termination procedures were revised as part of the 1996 legislation, a

question apparently arose as to whether the procedures continued to comply with the

requirements of due process. The Attorney General’s Office reviewed the legislation,

noted that the Secretary of Personnel17 would now serve an intermediate step in the

disciplinary process before the matter was referred to OAH for a hearing, and observed

that the opportunity for a hearing as well as final decision making authority were being

transferred to OAH – part of what is now the second tier of the administrative appeal

process.18 The Attorney General concluded that the new procedures would not create a

due process issue that would render the bill unconstitutional. See Letter of Attorney

General J. Joseph Curran, Jr. to Governor Parris N. Glendening (May 6, 1996)




       16
         The Attorney General’s opinion evaluated the procedures as then codified in
former Article 64A, §33. In 1993, that statute was recodified as part of the new State
Personnel & Pensions Article. Chapter 10, Laws of Maryland 1993.
       17
         As noted earlier, the Secretary of DBM was soon to succeed to this role. See
footnote 4 above.
       18
           It is perhaps also notable that the Task Force had originally recommended that
the first-tier appeal be automatically waived in the case of an appeal of an employee’s
dismissal from employment – with the result that such an appeal would go directly to the
second tier. Task Force to Reform the State Personnel Management System, Report to the
Governor (January 1996) at 46. However, the first-tier appeal for terminated employees
remained in the legislation as ultimately passed, perhaps because it was more consistent
with the general policy of the statute that appeals should be resolved “at the lowest level
possible.” See SPP §11-108(d).


                                            21
(incorporating memorandum of Assistant Attorney General David Durfee dated April 26,

1996).

         Consequences

         A construction of SPP §11-605(a)(5) that requires notice only of the first tier of the

administrative appeal process could result in an employee inadvertently forfeiting access

to the second tier of the appeal process and the opportunity for a hearing. If the employee

is unaware of the deemed denial provision and its significance for the second-tier appeal

deadline – as might well be the case with a lay employee without legal or union

representation – the employee might give the agency head the benefit of a few weeks to

decide the employee’s appeal and miss the deadline for moving to the second tier. The

deemed denial provision would then have the perverse effect not of facilitating the

employee’s route to an administrative hearing, as originally intended, but of denying it on

the basis of ignorance, contrary to the underlying purpose of the notice requirement. In

our view, the General Assembly could not have contemplated that its carefully constructed

system for employee discipline would operate in that fashion. 19 As Justice Jackson put it




         19
          In reaching this conclusion we do not mean to suggest bad faith on the part of the
agency in this case. In other respects, the Notice of Termination could be held up as a
model, as government notice documents go. It provides elaborate detail as to the factual
basis for the termination, quotes the various regulations that apply to those facts, and
explains why termination was considered the appropriate form of discipline. It specifies
in detail where to send a first-tier appeal. It may be that the failure to allude to the second-
tier appeal or possibility of a deemed denial was an oversight. We were advised by agency
counsel at oral argument that the notice form was being reviewed for clarification.


                                               22
in the course of his classic description of the notice element of due process, the right to be

heard “has little reality or worth unless one is informed . . . and can choose for himself

whether to appeal or default, acquiesce or contest.”20 If the statutory notice requirement is

construed to alert the disciplined employee to the possibility of the second-tier appeal, the

deadline for invoking it, and the fact that silence as to the first-tier appeal would trigger

that timeline, the employee can choose whether to appeal or default, acquiesce or contest.

       4.       Presumption that Individuals Know the Law

       The agency points out that neither the possibility of a second-tier appeal nor the

deemed denial provision was concealed from Ms. Hughes – i.e., they are clearly and

publicly spelled out in the statute. Invoking the legal maxim that individuals are presumed

to know the law, the agency concludes that, regardless of the precise content of the Notice

of Termination, she was effectively on notice as to her appeal rights.

       It is true that we would typically indulge the presumption that a person is presumed

to know the law – in other words, that “ignorance of the law is no excuse.” That

presumption is a useful and necessary fiction in the legal system, lest litigants skirt legal

obligations through simple protestations of ignorance. But there are instances where a

legislature has superseded this common law principle by requiring specific notice to the




       20
            Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).


                                             23
public or to specific parties of specific legal rights.21 One such instance is the requirement

in SPP §11-106(a)(5) that an agency provide a disciplined employee with notice of the

employee’s appeal rights. The statute indicates that the General Assembly believed that a

fair process required not only written notice of the specific discipline to be imposed in the

employee’s case (unsurprising as that notice would the only writing in which one could

find the answer to that question), but also specific notice of appeal rights, even if those

rights can be found in the pertinent statutes and regulations. It may be that the Legislature

recognized that such a notice would be particularly helpful, if not necessary, in a context

where the employee might not have access to an attorney versed in the State personnel law.

       It is common to find similar requirements in other statutes governing administrative

adjudication, particularly when the adjudication may involve lay parties. For example, the

State Administrative Procedure Act requires that “[a] written statement of appeal rights

shall be included with [a final] decision.” Maryland Code, State Government Article

(“SG”), §10-221(b)(2).22 And such requirements are not peculiar to Maryland. The model

State Administrative Procedure Act, adopted by many jurisdictions, states in relevant part:

            The order must state the available procedures and time limits for
            seeking reconsideration or other administrative relief and must state the


       21
          Indeed, if one fully embraced this maxim, there would be no need to advise a
disciplined employee of a first-tier appeal right and SPP §11-605(a)(5) would be
superfluous.
       22
           This requirement applies to a final decision by OAH at the second tier of the
administrative appeal process that is the subject of this case. See SPP §11-110(d)(3)
(stating that the OAH decision is the final administrative decision)


                                               24
            time limits for seeking judicial review of the agency order. A
            recommended or initial order must state any circumstances under which
            the order, without further notice, may become a final order.

Uniform State Administrative Procedure Act (2010), §413(d), 15 Uniform Laws Annotated

(2016 Cum. Supp.) at 59.23 In other contexts, courts have held that the failure to adequately

provide an accurate or complete notice of administrative appeal rights, as required by law,

violates procedural due process and may entitle a party to pursue an administrative appeal

that otherwise would be time-barred. See Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th

Cir. 1990); Shiflett v. U.S. Postal Service, 839 F.2d 669 (Fed. Cir. 1988).

       5.       Summary

       In our view, the plain language of SPP §11-106(a)(5), its evident purpose to

facilitate a fair process, and its legislative history all favor an interpretation that requires

an agency to provide more notice of appeal rights than just a simple reference to a first-tier

appeal that does not include an opportunity for a hearing. Does this mean that an agency

must include a mini-treatise in its decision that describes every potential level of appeal

and review24 of that decision up to and including how to seek a writ of certiorari in the



       23
        Similar language appeared in the prior version of the model act. See Uniform
State Administrative Procedure Act (1981), §4-215(c), 15 Uniform Laws Annotated at 95.
       24
          In a technical sense, the judicial review by a circuit court that may follow an
administrative appeal is not in fact an “appeal.” See A. Rochvarg, Principles and Practice
of Maryland Administrative Law (2011), §13.4 at 160; see also Driggs Corp. v. Maryland
Aviation Administration, 348 Md. 389, 398-99 (1998) (“a petition for judicial review of an
administrative agency order invokes the original, not the appellate, jurisdiction of the
circuit court”).


                                              25
United States Supreme Court? No. But it surely means a meaningful signpost on the path

to administrative appellate review. There must be some notice that there is a second tier to

the administrative appeal process with an opportunity for a hearing and that silence from

the agency at the first tier will trigger a deadline for the employee to decide whether to

pursue that opportunity.25 A form of notice that has the effect of inducing an employee to

unintentionally forgo the opportunity for a hearing would be contrary to the statute.

D.     Whether Ms. Hughes Failed to Exhaust Administrative Remedies

       DPSCS argues that this Court need not reach the merits of Ms. Hughes’ appeal and

should uphold the Circuit Court’s dismissal of the petition for writ of mandamus on the

alternative ground that she failed to exhaust her administrative remedies. As a general rule,

if there is an available primary administrative remedy, it must be exhausted before a party

may seek relief from a court. Forster v. State, Office of Pub. Defender, 426 Md. 565, 581

(2012). DPSCS posits that the administrative remedy available to Ms. Hughes was the two

tier administrative appeal provided in SPP §11-101 et seq. It reasons that Ms. Hughes

failed to invoke the second tier which, under SPP §11-108(b)(1), means that she is

considered to have accepted the deemed denial at the first tier of the process; accordingly,

she did not exhaust the available administrative remedy before filing suit.



       25
          Given this interpretation of SPP §11-106(a)(5), we need not determine whether
the constitutional guarantees of procedural due process in the federal and State
constitutions required DPSCS to provide a “fuller notice” of appeal rights to Ms. Hughes.
At oral argument Ms. Hughes’ counsel conceded that providing notice of the second tier
and the significance of silence at the first tier would satisfy any constitutional requirement.


                                              26
       This argument is somewhat circular. Ms. Hughes’ complaint, at least in its final

metamorphosis, is that she was not adequately informed about the deemed denial provision

of SPP §11-108(b)(2) and the deadline for seeking second-tier review – with the result that

the deadline passed before she invoked it, and she was deemed to have accepted it under

SPP §11-108(b)(1). The failure to exhaust administrative remedies argument is, at bottom,

that she cannot complain about her deemed acceptance of the deemed denial of her appeal

because she is deemed to have accepted it. We will not avoid the issue on that basis.26

E.     Disposition of this Appeal

       Although we have determined that the notice of administrative appeal rights that

Ms. Hughes received was insufficient in these circumstances, that does not mean that we

will direct entry of judgment in favor of Ms. Hughes. At this juncture, all that has happened

in the Circuit Court is the granting of the agency’s motion to dismiss. The agency has not

answered the complaint and, as the Circuit Court perceptively noted, there may be other

defenses available to the agency, such as laches.27 Nor has Ms. Hughes yet asked for



       26
           It is true that, unlike the employee in Fisher, Ms. Hughes never attempted to
pursue an appeal before the Secretary of DBM but simply demanded a response from the
Secretary of DPSCS. In that sense, she was less exhaustive in pursuing an administrative
remedy than Ms. Fisher. However, it appears that such an effort would likely have been
futile as DPSCS would have argued that she was time-barred from presenting the merits of
her appeal at the second tier – an argument accepted by the ALJ in Fisher.
       27
          This is not an instance where a terminated employee failed to seek a second-tier
appeal on the 11th day after a deemed denial – or even the 111th day. On the bare record
before us, there is no indication that Ms. Hughes took any steps toward a second-tier appeal
until nearly a year after her termination.


                                             27
judgment – and ultimately she may not be entitled to the judgment she seeks in her

complaint.28 In this context, our recourse is to vacate the dismissal of the complaint and

remand for further proceedings in the Circuit Court.

       What Ms. Hughes had a clear legal right to was adequate notice of her administrative

appeal rights pursuant to SPP §10-106(a)(5). If the Circuit Court concludes that the agency

has no other valid defenses that preclude consideration of the merits of this action, it may

remand for completion of the administrative appeal process. A remand that directs the

Secretary of DPSCS simply to provide fuller notice without more would, of course, be a

futile gesture. It is only meaningful if Ms. Hughes also is able to invoke the second-tier of

the administrative appeal process, should she choose to do so.

       We recognize that a remand is often an unsatisfactory outcome for all concerned –

like a sporting event that ends in a tie. But sometimes it is the best that an appellate court

can do.




       28
           Ms. Hughes does not have a “clear legal right” to the specific relief sought in her
complaint. As noted earlier, the specific relief Ms. Hughes requested in the petition for
writ of mandamus was an order directing the Secretary of DPSCS to (1) issue a written
decision on her appeal and (2) reinstate her employment with back pay and back leave. It
is clear from the Fisher decision that she has no entitlement to the former and there is no
basis at this juncture to say that she has a clear legal right to the latter. While the rules
allow amendment of pleadings, see Maryland Rule 2-341, there is no indication that Ms.
Hughes has amended her petition to include her claims relating to notice.


                                             28
                                               III

                                          Conclusion

        For the reasons set forth above, we hold:

        1 – The failure of the head of a principal unit to respond to a first-tier administrative

appeal within 15 days is deemed to be a denial of that appeal under SPP §11-108(b)(2), as

previously construed in Fisher v. Eastern Correctional Institution.

        2 – In order to comply with its obligation under SPP §11-106(a)(5) to provide a

disciplined employee with notice of the employee’s administrative appeal rights, the

agency must advise the employee that there are two potential tiers of administrative review

and that the agency’s failure to respond within the time limits to a first-tier appeal will

trigger the timeline for invoking the second tier of that process.

        In light of those holdings, we shall reverse the dismissal of the complaint in this

case and remand for consideration whether Ms. Hughes should be afforded the opportunity

to pursue a second-tier appeal or whether there are other defenses that preclude providing

that relief.


                                     JUDGMENT OF THE COURT OF SPECIAL APPEALS
                                     REVERSED AND CASE REMANDED WITH DIRECTION
                                     TO REMAND THE CASE TO THE CIRCUIT COURT FOR
                                     BALTIMORE COUNTY FOR FURTHER PROCEEDINGS
                                     CONSISTENT WITH THIS OPINION. COSTS TO BE PAID
                                     BY RESPONDENT.




                                               29
