Opinion
C.A. No. 00A-08-004-JEB.
Submitted: January 17, 2001.
Decided: March 19, 2001.
Upon Appeal from the Merit Employee Relations Board: Reversed and Remanded
Appearances:
Ilona M. Kirshon, Esquire, Deputy Attorney General Attorney for DNREC
Roy S. Shiels, Esquire, Attorney for Margaret L. Murphy
Louanne Vari, Esquire, and Michael Tisher, Esquire. Attorneys for Merit Employee Relations Board
MEMORANDUM OPINION
The State of Delaware, Department of Natural Resources and Environmental Control (DNREC or Employer-Appellant) has appealed a decision of the Merit Relations Employee Board (Board) regarding a termination grievance filed by Margaret L. Murphy (Murphy or Employee-Appellee). The Board found that Murphy, despite having been hired as a non-merit seasonal employee, was in the classified service at the time of her termination and therefore had standing to grieve her termination as a violation of the merit rules. The Board ordered that Murphy be reinstated to a permanent position in the classified service with back pay. Having reviewed the parties' written submissions as well as the record below, the Court concludes that the Board's finding that Murphy was an employee in the classified service was an error of law. The Board's decision is therefore REVERSED, and cause is REMANDED to the Board for further proceedings.
FACTS
The certified record shows the following facts. In February 1991, DNREC offered Murphy a seasonal position as an Environmental Scientist II (ESII) with the Division of Air and Waste Management (Division). Upon accepting the position, Murphy signed a form acknowledging her understanding that the position was not a full-time position or an offer of a future full-time position.
At the time that Murphy was hired, there was a statutory cap of 129 working days for seasonal employees. Because of this cap, Murphy was terminated and immediately rehired several times during the course of her employment with DNREC. The last time this systemic hire/rehire occurred was December 30, 1993, when DNREC simultaneously terminated Murphy's employment and offered her a new seasonal appointment starting January 3, 1994. Murphy accepted the offer, and her employment resumed.
In 1996, in response to a concern throughout state government about the proper use of temporary positions, the Division initiated a review of its temporary staff. As a result of this review, the Division decided to eliminate the seasonal ESII position, which was filled by Murphy, and to create instead a permanent ESII position in the classified service. The new position included Murphy's duties as well as additional responsibilities.
The job was announced in October 1996, and Murphy was one of more than 15 candidates for the position. The applicants did not take an examination but were interviewed in February and March 1997 and were ranked according to their training and experience. In April 1997, the Division announced its decision to hire a candidate other than Murphy. The permanent position took effect July 1997, and Murphy was terminated from her employment on June 30, 1997.
In response to these events, Murphy filed two grievances with the State Personnel Office. In her first grievance, Murphy argued that she should have been promoted to the full-time ESII position and that DNREC violated the merit rules in its hiring process. A hearing officer denied Murphy's promotional grievance on January 20, 1998, and she appealed to the Board. On February 18, 1999, the Board denied Murphy's grievance, finding that she had not proven a gross abuse of discretion in either the selection process or the ultimate hiring decision. Murphy did not appeal that decision.
Murphy's second grievance challenged her termination. After a hearing on September 25, 1998, a hearing officer issued a written denial of the grievance on March 12, 1999, and Murphy appealed to the Board on March 29, 1999. She argued that she had been terminated without notice, a hearing or a finding of just cause. DNREC argued that Murphy was a seasonal employee who was not entitled to the protections afforded to classified employees under 29 Del. C. Chapter 59 and the Merit Rules.
The Board conducted hearings on November 18, 1999, and January 20, 2000. At the second hearing, the Board denied DNREC's motion to dismiss, and the parties agreed that Murphy would return to work on February 22, 2000, pending the Board's final decision. The Board issued a written decision on July 23, 2000, concluding that Murphy had been a classified employee and therefore could not be terminated without notice, a pre-termination hearing and a finding of just cause. For this reason, the Board ordered that Murphy be reinstated to a permanent ESII position. The Board also awarded Murphy back pay from the date of her termination through February 1, 2000. DNREC filed with the Superior Court a timely appeal of the Board's decision. Briefing is complete, and the issues are ripe for decision.
ISSUES
DNREC raises numerous issues on appeal. The primary argument is that Murphy was a seasonal employee at the time of her termination and that she therefore had no standing to file a grievance and that the Board lacked jurisdiction to hear her grievance. Murphy argues that the Board's decision contains no error of law and is a proper exercise of its jurisdiction.
STANDARD OF REVIEW
The function of this Court on review of a decision of the Merit Employee Relations Board is to determine "whether the [Board] acted within its statutory authority, whether it properly interpreted and applied the applicable law, whether it conducted a fair hearing, and whether its decision is based on sufficient substantial evidence and is not arbitrary." Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Where the Board finds against the appointing authority, which in this case is DNREC, the appointing authority has the right of appeal to the Superior Court on the question of whether the appointing authority acted in accordance with law. The burden of proof of any such appeal to the Superior Court is on the appointing authority. The Superior Court reviews questions of law de novo in an appeal from an administrative agency.
Warrington v. State of Delaware, Personnel Commission, Del.Super., C.A. No. 93A-09-002, (July 14, 1994) (Opinion) (citing Hopson v. McGinnes, Del.Supr., 391 A.2d 187, 189 (1978)).
Oceanport Ind. v. Wilmington Stevedores, Del.Supr., 636 A.2d 892, 899 (1994).
Title 29 Del. C. § 5949(b).
Hubbard v. Hibbard Brown Co., Del.Supr., 633 A.2d 345, 348 (1993) (noting that questions of law are reviewed de novo by both the Supreme Court and the Superior Court incident to the two-tiered appellate process from decisions of administrative agencies).
DISCUSSION
The primary issue before the Court is whether Murphy held a position in the classified service at the time of her termination. If she held a classified position, she had standing to file a grievance, the Board had jurisdiction to hear it and authority to reinstate her to her position. If she held an exempt position, the Board erred as a matter of law in denying DNREC's motion to dismiss. Thus the Court begins by reviewing the Board's finding that Murphy was included in the classified service at the time of her termination.Title 29 Del. C. Chapter 59 creates the Merit System of Personnel Administration, which includes a Director of Personnel, the Merit Employee Relations Board, the merit rules, and a grievance system for redress of violations of the merit rules. The General Assembly established this system to provide a "personnel administration based on merit principles and scientific methods governing the employees of the State in the classified service consistent with the right of public employees to organize under Chapter 13 of Title 19." In other words, the protections of Chapter 59 are available only to employees in the classified service.
Title 29 Del. C. § 5914; Dep't of Correction v. Worsham, Del.Supr., 638 A.2d 1104, 1106 (1994).
Title 29 Del. C. § 5902 (emphasis added).
Title 29 Del. C. § 5903 specifies which positions of state employment are included in the classified service, and which are exempted from it. At the time Murphy was hired by DNREC, § 5903 defined seasonal employment as follows:
Unless otherwise provided by law, as used in this chapter, "classified service" or "state service" means all positions of state employment other than the following positions, which are excluded: . . .
(17) Temporary, casual and seasonal employees employed for less than 130 working days in any fiscal year.
In the case at bar, the Board found this statute to mean that an employee's status as casual/seasonal could change to classified with the passage of time: "The omission of the `over 129' group from subsection (17) creates the legal presumption that these employees fall within the general rule, i.e., that they are included in the classified service."
Board Decision at 7-8 (emphasis in the original).
The Court is not persuaded by this reasoning. The statute does not unambiguously create a presumption that a seasonal/casual employee who works longer than the defined time period is automatically included in the classified service. An equally viable reading of the statute is that the 129-day time frame simply defines a casual-seasonal employee and has no bearing on classification as a permanent employee. The Court finds that § 5903(17) is ambiguous to the extent that it is susceptible to these two different meanings.
Coastal Barge Corp. v. Coastal Zone Ind. Control Bd., Del.Supr., 492 A.2d 1242, 1246 (1985) (noting the time-honored rule that a statute is ambiguous if it is reasonably susceptible to different conclusions or interpretations).
Where uncertainty exists as to the meaning of a statute, the Court must determine and give effect to the legislature's intent. To do so, the Court must consider all pertinent statutory language and find the most harmonious result therefrom. Likewise, each section of a particular chapter must be construed in relation to every other section to produce a consistent whole. Thus, a court cannot interpret a term or phrase in one statute in a manner that nullifies the plain intent of another statute in the same chapter.
Murphy v. Bd. of Pension Trustees, Del.Supr., 442 A.2d 950, 951 (1982).
Nationwide Ins. Co. v. Graham, Del.Supr., 451 A.2d 823, 834 (1982); Streett v. State, Del.Supr., 669 A.2d 9 (1995; State v. Cooper, Del.Supr., 575 A.2d 1074, 1075 (1990) (in construing a statute, a court must seek to harmonize its parts and avoid mischievous or absurd results).
George Lynch, Inc. v. Div. of Parks and Recreation, Dep't of Natural Resources and Environ. Control, Del.Supr., 465 A.2d 345, 350 (1983). See also 2A Sutherland, Statutes and Statutory Construction, at 56 (6th ed. 2000).
Id.
Chapter 59 contains several statutes which collectively enumerate the requirements for entry into the classified service. The requirements include an examination, an eligibility list, and a one-year probationary period. The merit rules elaborate on these requirements. Furthermore, procedures for classification of certain exempt employees are set forth in § 5904, but the classification of seasonal employees is not mentioned. Chapter 59 contains no provision, either explicit or implicit, for a seasonal employee's entry into the classified service merely by working a certain number of days. In fact, such an interpretation of § 5903(17) would be inconsistent with the statutory requirements for entry into the classified service. Thus, this interpretation of § 5903(17) violates the so-called "golden rule" of statutory interpretation, which provides that an unreasonable result produced by one interpretation of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result. The Court concludes that neither Chapter 59 nor the merit rules lend any support to the Board's conclusion that an exempt seasonal employee would be included in the classified service if he or she worked 130 days or more in a fiscal year.
Title 29 Del. C. § 5917.
Title 29 Del. C. § 5919.
Title 29 Del. C. § 5922.
Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d at 1247; 2A Sutherland Statutory Construction, § 45.2.
The 1996 amendment to § 5903(17) supports this conclusion. As amended, subsection (17) establishes the duration of a seasonal appointment as nine months and, more importantly for present purposes, provides that an agency must submit to an administrative approval cycle if it retains seasonal employees for longer than one year:
(17)a. Casual seasonal employees may be employed by the State on a temporary basis in order to assist agencies in the following situations: . . .
2. Seasonal assistance — employee is needed for peak operating seasons not to exceed 9 months. . . .
c. Agencies that experience circumstances that require the use of casual seasonal employees that are not defined in subsection (a) of this section must submit a request to the Budget Director, State Personnel Director and the Controller General for approval. Upon completion of 1 year of work from [a] casual seasonal employee, the Budget Director, the State Personnel Director and the Controller General must review the agency need for such casual seasonal employment; . . .
This added provision negates any possibility of a presumption that a seasonal employee who exceeds the time frame for seasonal employment automatically qualifies for classified status. Rather, the end of the time period signifies the need for the agency to assess its personnel needs and take appropriate action. In the case at bar, DNREC replaced the temporary ESII position with a permanent ESII position, thereby avoiding the review process.
It could be argued that the amended § 5903(17) does not clarify the meaning of the previous enactment but rather attaches an altogether different significance to the time frame allotted to a seasonal worker. The argument would be that, under the previous version of § 5903(17), the time frame meant that a seasonal worker who worked 130 days or more in a fiscal year is included in the classified service, but that under amended § 5903(17), the time frame marks the point at which the appointing agency must seek approval to retain seasonal employees. However, this argument is dispelled by 70 Del. Laws, c. 425, § 26, which was enacted simultaneously with the § 5903 amendments:
See 1A Sutherland Statutory Construction, § 22.30
Any agencies employing casual seasonal employees who are currently working for the State who are not defined in § 29 Del. C. § 5903(17)(a) of Title 29 by the appointing authority may retain such employees until a review process is completed by the Budget Director, the State Personnel Director and the Controller General. The Budget Director, the State Personnel Director and the Controller General shall present recommendations to the Governor and the Joint Finance Committee by February 1, 1997. Further employment of such employees beyond FY 1997 shall be contingent upon review of the Joint Finance Committee.
Senate Bill 460 (July 1, 1996).
These provisions apply to Murphy. At the time that the amended version of § 5903(17) was enacted on July 1, 1996, Murphy was a seasonal employee, but her employment was not defined by the statute, that is, she had already worked 130 days or more in the fiscal year. Section 26 allowed DNREC to retain her services beyond fiscal year 1997 subject to review by the three state administrators, as well as the Joint Finance Committee. Nothing in section 26 suggests that a seasonal employee in these circumstances would automatically become eligible for a permanent position.
The record does not show whether the section 26 review ever took place throughout DNREC. However, it does show that the Division of Air and Waste Management, where Murphy worked, conducted its own review and accordingly established a new permanent ESII position in 1996. When the permanent position was filled, the seasonal position which had been filled by Murphy was eliminated. These facts reflect DNREC's understanding that the statutory time frame for seasonal employees had concrete meaning and that ignoring the time frame would have concrete consequences.
Although there are no Delaware cases construing § 5903(17), Murphy argues that her position is supported by State of Delaware, Dep't of Correction v. Showell. In Showell, a group leader in a juvenile facility within DOC was temporarily promoted to acting superintendent. He served in this position for a year and a half, at which time another applicant was appointed to the permanent position. After being returned to his previous job, the employee filed a grievance, alleging that he had been demoted in violation of the merit rules. The applicable rule provided that a temporary promotion was not to exceed six months. This Court found no statutory support for the Personnel Commission's conclusion that the temporary position ripened into a permanent position simply because the employee held the position for more than six months. The Supreme Court agreed, stating that the rule contained "neither an express nor an implied requirement that a temporary employee who holds a position for more than six months be granted permanent status or equivalent compensation." Although the case at bar pertains to § 5903(17) rather than to a merit rule, both provisions define a temporary position in terms of a specific time frame. The Court is satisfied that § 5903(17), like the merit rule considered in Showell, does not imply a change in status for an employee who holds the position for longer than the prescribed period of time.
Del.Super., Bifferato, J., (March 18, 1987), aff'd, Del.Supr., No. 111, 1987, Walsh, J. (Nov. 5, 1987) (ORDER).
The applicable merit rule provided as follows:
A temporary position for a specified period of time not to exceed six (6) months, may be requested by an appointing authority, with the approval of the Director. In any such case, eligible lists will be canvassed and the employee being promoted temporarily must beet all minimum requirements of the class specification.
In 1994, the General Assembly abolished the State Personnel Commission's authority to hear merit rule grievances. The Merit Employee Relations Board was established in its stead. 69 Del. Laws c. 436 (1994).
Showell v. State of Delaware, Dep't of Corrections, supra at 2.
The Court concludes that the General Assembly did not intend a seasonal employee to enter the classified service by working longer than the statute specified. The statutory time frame was intended to be a definition of a seasonal employee, not a waiver of the statutory requirements for becoming a classified employee. The Court finds that the Board's interpretation of § 5903(17) was an error of law and cannot stand. At the time of her termination, Murphy was an exempt employee who could not lay claim to the protections of Chapter 59 and the merit rules.
CONCLUSION
For all these reasons, the Board's decision is hereby REVERSED and the cause is REMANDED to the Board for further proceedings consistent with this Opinion.
It Is So ORDERED .