Employees' Retirement Sys. v. Bradford

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2266
September Term, 2014
______________________________________
EMPLOYEES’ RETIREMENT SYSTEM
OF BALTIMORE COUNTY
v.
BRANDT BRADFORD
______________________________________
Nazarian
Reed,
Sharer, J. Frederick
(Retired, Specially Assigned),
JJ.
______________________________________
Opinion by Reed, J.
______________________________________
Filed: February 24, 2016
*Judge Dan Friedman and Judge
Christopher Kehoe did not participate,
pursuant to MD. Rule 8-605.1, in the
Court’s decision to report this opinion.
The Employees’ Retirement System of Baltimore County, Maryland (“ERS”),
appellant, seeks to reverse the decision of the Baltimore County Board of Appeals (the
“Board”), which found that ERS improperly denied Police Officer Brandt Bradford,
appellee, the ability to choose a particular retirement option based upon the circumstances
of his 2012 retirement from the Baltimore County Police Department (“BCPD”). ERS filed
a Petition for Judicial Review in the Circuit Court for Baltimore County, which affirmed
the Board’s decision slightly over a year later. ERS noted timely appeal, and presents one
question for our review, which we have rephrased:
Did the circuit court err in affirming the Board’s decision that the
Baltimore County Code did not prevent Officer Bradford from changing his
retirement option upon his second retirement from the BCPD?
For the reasons that follow, we answer in the negative, and affirm the decision of
the circuit court.
BACKGROUND AND PROCEDURAL HISTORY
The facts of this case are not in dispute.
Officer Bradford joined the BCPD on December 16, 1974. On February 18, 1998,
he retired from the force, with approximately 23.5 years of service with Baltimore County
(the “County”). In addition to his service retirement allowance provided under the
Baltimore County Code (the “Code”),1 Officer Bradford was also entitled to select one of
several “optional allowances,” which provide for different means by which the service
retirement allowance is paid to a retired employee’s beneficiary after the retiree’s death.
1
Unless otherwise noted, all Code references are to the Balt. Co. Code, 2003.
1
See Code § 5-1-231. Officer Bradford elected Option 4 under what was, at the time, § 23-
61 of the Baltimore County Code, 1988 (now § 5-1-231 of the Baltimore County Code,
2003), which provided a fixed dollar amount to his wife in the event of his death. Shortly
thereafter, he began receiving his monthly retirement allowance, which was reduced by
approximately $250.00 a month, the amount designated by Officer Bradford.
Less than 18 months later, Officer Bradford was rehired by the BCPD on December
1, 1999. The record reflects that Officer Bradford was rehired pursuant to “Special Rule
No. 2.14,” found in Code § 4-8-102 regarding “SPECIAL PERSONNEL RULES FOR
POLICE AND FIRE DEPARTMENTS, which states:
Special Rule 2.14. Former sworn employees.
A. Notwithstanding any other provision of these rules and subject
to the conditions of this section, the Director of Human Resources, upon
written recommendation from the Chief of Police, may hire former
employees of the Police Department who previously have been separated
from employment from any sworn position in the Department into the
position of police office within twenty-four (24) months of the effective date
of their separation from employment if:
1. The separation from employment is without prejudice;
and
2. The employee has previously been certified as eligible
for rehire.
B. The former sworn employee may be considered without further
competition for the class of police officer, if a vacant position exists, subject
to reasonable inquiries into the background and physical status of the
employee between the time of separation from employment and application
for rehire as may be deemed appropriate by the Chief of Police. The rehired
employee’s anniversary date shall be the date of rehire. Time away shall be
considered as leave without pay for the purposes of calculating service and
longevity credit. The rehired employee’s sick leave balance at the time of
resignation shall be restored unless it was used to determine the creditable
service requirement, and other leave accruals shall be based on the adjusted
2
service time. Benefits may not be earned for the time away from county
service.
Essentially, the effect of Special Rule 2.14 was to place Officer Bradford in the same
position he was before he had retired.
Following his return, Officer Bradford worked an additional 13 years as a police
officer, giving him a total of more than 35 years of County employment.
On June 12, 2012, Officer Bradford retired from the BCPD for the second time.
Once again Officer Bradford submitted a retirement application, but this time selected
Option 7 for his optional allowance; an option that was not available at the time of his 1998
retirement. Option 7 reads, in pertinent part:
(7) Option 7. Subject to subsection (d) of this section, an employee
who has completed at least twenty-five (25) years of actual service as a sworn
Baltimore County police officer . . . may retire with the option of having fifty
(50) percent of the retired member’s retirement allowance continued
throughout the life of and paid to the original beneficiary upon the retired
member’s death. This option shall be provided at no cost to the employee.
Code § 5-1-213(a)(7). As Officer Bradford puts it in his brief: “In other words, while
County employees who choose to designate a portion of their monthly pension benefit to
their beneficiaries upon their death receive a reduced monthly pension benefit, for police
officers with at least 25 years of service, the County Code provides that the designation by
an officer to his or her beneficiary does not reduce the officer’s monthly pension benefit.”
Sergeant Cole Weston, President of the Baltimore County Fraternal Order of Police Lodge
No. 4 (“FOP”), testified before the Board that Option 7 was negotiated between the FOP
and the County around 1999 in order to encourage police officers to extend their careers
beyond the “normal twenty year service requirement.”
3
Notwithstanding the fact that Officer Bradford met the eligibility requirements for
Option 7 and had not begun to collect any retirement payments based on his June 2012
retirement, the Board of Trustees (“BOT”) of ERS denied his request and instead required
him to select Option 4, the election he made in 1998. According to the ERS, his request
was denied pursuant to Code § 5-1-231(a), which reads, in pertinent part: “A member who
has elected an optional benefit may not change such election after the first payment of the
member’s allowance becomes normally due, except as provided below.” In short, because
Officer Bradford had already retired and already received benefits under Option 4, the ERS
believed that he was no longer allowed to change his selection.
On June 11, 2012, in response to a request from the administrator of the ERS for a
legal opinion on whether Officer Bradford could change his optional allowance, the County
Attorney issued an interoffice memorandum, opining that “the language of the statute is
unambiguous” and “[a]s the statute clearly provides that the option may not be changed
after ‘first payment’ and [Officer Bradford] received more than a first payment, it clearly
provides that he may not change his option.” On June 20, 2012, Officer Bradford appealed
the decision to the Board.
An evidentiary hearing was held before the Board on April 4, 2013, and both sides
were permitted to submit post-hearing briefs. Based on their review of the record, the Board
reversed the decision of the ERS in a written opinion dated October 18, 2013, finding that
§ 5-1-231(a) was “not applicable” to the circumstances of Officer Bradford’s 2012
retirement. Because the Board’s reasoning is important under this case’s standard of review
(discussed infra), we set out the pertinent parts of their opinion at length:
4
[Officer Bradford] contends that his “rehire” in 1999 effectively
rendered his retirement in 1998 a nullity. [Officer Bradford’s] argument is
based upon the provisions of Special Rule 2.14, supra. The argument is that
upon his return to service [Officer Bradford] was no longer retired and
therefore not covered by the benefits or restrictions of the retirement. While
clearly [Officer Bradford] could no longer receive the monthly benefits of
his retirement the question remains a[s] to whether he was forever barred
from selecting a retirement option upon his second retirement which did not
exist at the time of his first retirement. The County Code does not specifically
address this situation.
In opposition to the foregoing the County Office of Law argues that a
“plain reading” of Code section 5-[1-]231(a) establishes that a retiree’s
receipt of a retirement allowance forecloses any future benefit option
selection. The Office of Law contends the Baltimore County [ERS] is an
administrative agency and therefore deference should be given to the ERS
with respect to its own regulations and orders. It is noteworthy that the
retirement decision in this matter was made by the Baltimore County Board
of Trustee[s] which was established pursuant to Article 3, Title 3, Subtitle 9
of the Baltimore County Code for the purpose of administering the Baltimore
County Retirement System.
Irrespective of which of the two foregoing County entities is
considered as an agency, the courts have recognized that that [sic] the
expertise of an agency in its own field should be respected. Salerian v. Md
State Board of Physicians, 176 Md. App. 231, (2007). However, agency
decisions receive no special deference on questions of law, which we review
de novo. Talbot County v. Miles Point Property, LLC, 415 Md. 372, 384
(2010).
The essential first inquiry in a matter of statutory interpretation is the
plain meaning of the language of the statute.
Section 5-1-231 is silent as to effect of a rehire of a sworn police
officer pursuant to Special Rule 2.14 (supra). Likewise Special Rule 2.14 is
silent as to the intended effect of an employee's rehire upon past and future
retirement option selection. A plain reading of Section 5-1-231 clearly bars
a retiree from making certain option selections after the first receipt of
retirement allowances absent a finding by this Board that the language of
Section 5-1-231 creates an ambiguity as to the intended effect of the law as
drafted by the Baltimore County Council.
In this case it appears that there is an ambiguity in the law. A rehired
employee pursuant to Special Rule 2.14 is clearly no longer retired. As such,
is an employee considered a retiree at all? The provisions of Special Rule
2.14(b) create a situation in which the period of retirement is specifically
treated as "leave without pay for the purposes of calculating service and
longevity credit.” The net effect of the provision would appear to be that the
5
Appellant and other sworn officers similarly situated have an opportunity to
change the nature and value of their retirement conditions based upon the
continuation of their employment after the period of leave without pay.
The reasoning of the ERS as contained in the June 11, 2012 legal
opinion from the County Office of Law is as follows as it concerns the effect
of Special Rule 2.14 and the provisions 5-1-231 of the County Code:
"It may be argued that later enacted law should be read
as affording Group 4 retires [sic] the right to change options.
Courts also hold that statutes should not be read in a vacuum
and that we should consider the larger statutory scheme when
considering a statute that otherwise appears to be clear and
unambiguous. (citations omitted)”
The Maryland Court of Appeals has made it clear that when a body is
engaged in statutory interpretation, its goal is to effectuate the intent of the
Legislature. Mayor and Town of Oakland v. Mayor and Town Council of
Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006).
Where, as in the instant case, a perceived ambiguity in the law exists, a
reviewing court then turns its attention to other tools of statutory
interpretation including: the construction of the statute, the relation of the
statute to other laws in a legislative scheme; the legislative history and [t]he
general purpose and intent of the statute. Lewis v. State, 348 Md. 648, 653
(1998).
The operative law before this Board is Special Rule 2.14. It was
enacted after Section 5-1-231 of the Code. With the enactment of Special
Rule 2.14 there was no accompanying language concerning the effect of a
retired police officer returning to duty beyond those provisions above cited
[sic]. It appears to this Board that the underlying "legislative scheme" was to
encourage retired officers to return to duty in exchange for their
reinstatement as sworn officers with their prior retirement being treated as
leave without pay. Clearly if one has received monetary retirement benefits
which are no longer considered retirement benefits it can be interpreted as
the legislative body’s intent to render the prior retirement a nullity. Based
upon this reasoning the Board concludes that the provisions of 5-1-231 of the
County Code are not applicable to the instant situation where a sworn police
officer returns to active service with the Police Department pursuant to
Special Rule 2.14.
ERS filed a timely petition for judicial review, and on December 12, 2014, a hearing was
held in the Circuit Court for Baltimore County. That same day, after hearing arguments
6
from each side, the circuit court issued an order affirming the Board’s decision, for the
following reasons as stated on the record during the hearing:
So, the facts in this case are that the employee, Officer Bradford retired in
1998. He was rehired by the county almost two years later, in 1999. In other
words he was if you will un-retired. He was no longer retired. He was
employed again. And the officer worked another thirteen years with the
county. And during that time he was not receiving retirement benefits. In
June of 2012 the employee retired again and in—the June, 2012 retirement
was a new and distinct retirement event. He had been re-employed. Stopped
retirement benefits. He was not retired. Was working and he retired a new, a
second time, in June of 2012. Again, I believe this is a, a [sic] new retirement
event. So, reading together Section 5-1-214(b) and Section 5-1-231 of the
retirement allowance or the retirement options are made quote, “upon
retirement by” by a quote, “a member” who may elect one of the seven
options. Again, the member may make his or her election of an option under
Section 5-1-231 at the time of his or her retirement. Officer Bradford was
quote, “a member” at that time. He was not yet a retired member. And this
was, June of 2012 was at the time of his retirement under, in fact and under
the statute. In this case Officer Bradford’s retirement date is June 30, 2012.
At that time I’m told today [ERS’s counsel] doesn’t believe that Officer
Bradford had received his first payment of retirement allowance with respect
to his retirement in June of 2012. Therefore, the language of Section 5-1-231
regarding changing an election does not apply and does not bar his election
of option 7.
On January 12, 2015, ERS noted a timely appeal.
DISCUSSION
A. Parties’ Contentions
ERS’s primary argument is that the circuit court erred in affirming the Board’s
decision to allow Mr. Bradford to change his retirement option, “when the plain and
unambiguous language of County Code § 5-1-231 precludes such a change.” In ERS’s
view, because § 5-1-231(a) explains that the only exceptions to the general prohibition are
found in § 5-1-231(b) and (c), and neither of those subsections are applicable to Officer
7
Bradford, Officer Bradford should not be allowed to change his option now. ERS contends
that Officer Bradford’s reliance on Special Rule 2.14 is “misguided,” because that rule is
“a personnel rule in Article 4 of the Baltimore County Code and not a retirement system
statute in Article 5 of the Baltimore County Code.” ERS concludes by arguing that
“[d]espite the considerable weight traditionally given in Maryland to an administrative
agency’s interpretation and application of the statute the agency administers, . . . the Board
of Appeals explicitly gave no deference” to ERS, and that error was further compounded
when the circuit court “gave only lip service to judicial deference as it went to extraordinary
lengths to avoid the plain and unambiguous language of § 5-1-231.”
Officer Bradford argues that the Board correctly ruled in his favor, because § 5-1-
231 applies only to retirees, and at the time he opted for Option 7, he was an active
employee with more than 30 years of sworn service. Officer Bradford contends that ERS’s
interpretation would “lead to absurd and harsh results and would render meaningless parts
of the County Code,” because to interpret § 5-1-231 to preclude Officer Bradford from
changing his option now would invalidate the Code’s “mandate” in Special Rule 2.14 that
“a rehired employee’s retirement is to be converted to a leave without pay status.” Finally,
Officer Bradford argues that ERS’s argument that neither the Board nor the circuit court
afforded sufficient deference to its interpretation of § 5-1-231 is mistaken, because (1) it is
the Board’s decision that is to be given deference, and (2) ERS’s claim that it interpreted
its own statute is “belied by the fact that the interpretation was not their own but instead
performed by a third party, the Baltimore County Office of Law, who has no agency
expertise in administering this statute.”
8
B. Standard of Review
It is well established that “[a] court's role in reviewing an administrative agency
adjudicatory decision is narrow,” and “limited to determining if there is substantial
evidence in the record as a whole to support the agency's findings and conclusions, and to
determine if the administrative decision is premised upon an erroneous conclusion of law.”
Maryland Aviation Administration v. Noland, 386 Md. 556, 571 (2005) (quoting Board of
Physician Quality Assurance v. Banks, 354 Md. 59, 67-69 (1999). It is equally well
established that a “reviewing court must ‘look through’ the judgments of the preceding
reviewing courts, and examine the agency's decision.” Employees’ Retirement System of
City of Baltimore v. Dorsey, 430 Md. 100, 110 (2013). “With respect to the agency's
conclusions of law, a certain amount of deference may be afforded when the agency is
interpreting or applying the statute the agency itself administers.” Id. at 111. “We are under
no constraint, however, ‘to affirm an agency decision premised solely upon an erroneous
conclusion of law.’” Id. (quoting Thomas v. State Ret. & Pension Sys., 420 Md. 45, 54–55
(2011)).
C. Analysis
As an initial matter, we feel it is important to first point out that in this case, the
conclusion of the “agency” for our review is that of the Board of Appeals, not ERS. See,
e.g., Hill v. Baltimore County, Md., 86 Md. App. 642, 650-52 (1991) (discussing the role
of the Baltimore County Board of Appeals as designated by the County Charter). While
ERS understandably urges us to afford its interpretation a degree of deference of
“considerable weight,” we are unpersuaded. As this Court noted in Hill, “Sections 602 and
9
603 of the [Baltimore County] Charter provide for a de novo hearing and the ability to
‘decide’ all the issues before the Board of Appeals. The Charter does not limit how the
Board of Appeals may decide the issues.” Hill, 86 Md. App. at 651. Thus, that the Board
“explicitly gave no deference to [ERS] in its decision and order” is of no moment, and any
‘deference’ to be allotted in this case belongs to the Board, not to ERS or the County
Attorney.
Moreover, ERS misreads Comptroller of Treasury v. Blanton, 390 Md. 528 (2006),
the case it uses to support its assertion that it is the agency to be afforded deference, not
the Board. In Blanton, the taxpayers appealed their income tax assessment by filing a
complaint with the Comptroller. Id. at 531. A hearing officer from the Comptroller’s office
affirmed the assessment, and the taxpayers again appealed. Id. The hearing officer’s
decision was affirmed by the Maryland Tax Court, but, after the taxpayers filed a petition
for judicial review, the Tax Court’s decision was reversed by the Circuit Court for
Baltimore County. Id.
The Comptroller appealed, and, after issuing a writ of certiorari on its own initiative,
the Court of Appeals reversed the circuit court’s decision. Blanton, 390 Md. at 531. The
Court explained that “[u]nless the Tax Court's decision was erroneous as a matter of law,
or its conclusion was not supported by substantial evidence, we must affirm that decision.”
Id. at 535 (emphasis added). Clearly, the only deference paid by the Court was to the Tax
Court, even though the initial decision in question was made by the hearing officer from
the Comptroller’s office. Here, instead of a hearing examiner, the decision was made by
the BOT of ERS. That decision was appealed to the Board, and later to the circuit court for
10
judicial review. As such, it is the Board’s interpretation and application of the statute that
will be given “considerable weight,” and not that of ERS. See Board of Physician Quality
Assurance, 354 Md. at 69. Accordingly, our review is solely regarding the decision of the
Board to allow Officer Bradford to switch his retirement option to Option 7.2
Here, because the facts are not in dispute, we review only the legal conclusions of
the agency’s statutory interpretation. See Carven v. State Retirement & Pension System of
Maryland, 416 Md. 389, 406 (2010) (“An agency decision based on regulatory and
statutory interpretation is a conclusion of law.”). In Carven, (now Chief) Judge Barbera
explained how a reviewing court determines whether such an interpretation is an erroneous
conclusion:
“[E]ven when reviewing an agency's legal conclusions, an appellate court
must respect the agency's expertise in its field.” Crofton Convalescent Ctr. v.
Dep't of Health & Mental Hygiene, 413 Md. 201, 215, 991 A.2d 1257, 1265
(2010). When an agency interprets its own regulations or the statute the
agency was created to administer, we are especially mindful of that agency's
expertise in its field. See Adventist Health Care [v. Maryland Health Care
Com’n], 392 Md. [103,] 119, 896 A.2d [320,] 330 [(2006)] (“Administrative
agencies possess an ‘expertise’ and, thus, have a greater ability to evaluate
and determine the matters and issues that regularly arise, or can be expected
to be presented, in the field in which they operate or in connection with the
statute that they administer.”); Md. Aviation Admin. v. Noland, 386 Md. 556,
573 n.3, 873 A.2d 1145, 1155 n.3 (2005) (“[An] agency's interpretations and
applications of statutory or regulatory provisions which the agency
2
We note that after Officer Bradford’s hearing in front of the Board, but before the Board
issued its opinion, it appears that the Baltimore County Council passed a bill that changed
the procedure by which an employee can appeal a decision of the BOT. See Baltimore
County Council Bill No. 7-13 (Passed on January 22, 2013). Article 5 now provides that
an employee who wishes to appeal the decision of the BOT now must appeal that decision
to the Baltimore County Office of Administrative hearings first, and only then may an
aggrieved party appeal to the Board of Appeals. See Code § 5-1-220.2. This does not affect
Officer Bradford’s appeal, however, because the bill applied prospectively from the
effective date of the bill, on March 4, 2013. See Bill No. 7-13 §§ 2 & 3.
11
administers should ordinarily be given considerable weight by reviewing
courts.” (internal quotation marks and citations omitted)). “Despite [this]
deference, it is always within our prerogative to determine whether an
agency's conclusions of law are correct.” Crofton Convalescent, 413 Md. at
215, 991 A.2d at 1265 (internal quotation marks and citations omitted).
Keeping in mind the deference owed to administrative decisions, we
shall conduct an independent review of the regulations and statutory
provisions upon which the Board rests its decision to determine whether the
Board's decision is “‘plainly erroneous or inconsistent with the
regulation.’” Id., 991 A.2d at 1265 (quoting Md. Transp. Auth. v. King, 369
Md. 274, 288–89, 799 A.2d 1246, 1254 (2002)); see also Noland, 386 Md. at
574 n.3, 873 A.2d at 1156 n.3 (“[A] reviewing court must determine if the
administrative decision is premised upon an erroneous conclusion of law.”
(internal quotation marks and citations omitted)).
Carven, 416 Md. at 406-07.
With respect to statutory interpretation, the Court of Appeals has frequently
reiterated the principles that guide such a review, which the Court has summarized as
follows:
• give effect to legislative intent
• look first to the “ordinary, plain meaning” of the language
• do not add or delete language
• do not apply forced or subtle interpretations
• keep in mind the statutory context
• consider the purpose, aim, or policy of the Legislature
• avoid constructions inconsistent with common sense
• presume that each section is to work harmoniously with others
TransCare Maryland, Inc. v. Murray, 431 Md. 225, 232 (2013) (citation omitted).
12
Looking to the plain language of § 5-1-231, we agree with ERS, insofar as its belief
that the language of the section itself—in isolation—is “plain and unambiguous.” Again,
that section provides, in pertinent part:
In lieu of the disability or service allowances payable under the
provisions of this subtitle, any member may, prior to the first retirement
allowance payment normally due, elect a retirement allowance of equivalent
actuarial value in one (1) of the optional forms set out below. . . . A member
who has elected an optional benefit may not change such election after the
first payment of the member's allowance becomes normally due, except as
provided below.
Code § 5-1-231(a). The exceptions referenced in subsection (a) are found in subsections
(b) and (c), which allow for certain retired members who chose Options 2 or 3 (subsection
(b)), or for certain retired members who chose Options 5 or 6 (subsection (c)), to change
their options after they have already received their first payment. See Code § 5-1-231(b)-
(c). It is undisputed that Officer Bradford received payments under Option 4 before
returning to work, and that Officer Bradford does not fit into the exceptions of § 5-1-
231(b)-(c).
We do not agree with ERS, however, that the circuit court “went to extraordinary
lengths” to “avoid” the plain language of § 5-1-231, or even, as ERS puts it, that “the
language of § 5-1-231 is so clear that deference is unnecessary.” As the Court of Appeals
has stated, “[t]he ‘plain meaning’ of a statute can only be assessed in the context in which
it appears.” Patton v. Wells Fargo Financial Maryland, Inc., 437 Md. 83, 96-97 (2014).
Here, the Board correctly noted in its opinion that the ambiguity in this case exists not
within the language of § 5-1-231 itself, but rather how that language applies to an officer
in Officer Bradford’s situation. Had Officer Bradford not returned to the BCPD in 1999,
13
there would be no ambiguity, and Officer Bradford would not be able to change his
allowance option now, as he fits into neither of the listed exceptions.
It is undisputed, however, that Officer Bradford did in fact return to the BCPD for
13 additional years, pursuant to Special Rule 2.14, before retiring a second time in 2012.
The question then becomes: what is—as the Board called it—the “net effect” of § 5-1-231
and Special Rule 2.14? In order to resolve that ambiguity, “we turn to our arsenal of other
statutory interpretation forensic tools.” Maryland Ins. Comm’r v. Central Acceptance
Corp., 424 Md. 1, 36-37 (2011) (citing Breslin v. Powell, 421 Md. 266, 287 (2011)).
First, we agree with the Board that Special Rule 2.14 is the “operative law” in terms
of this review.3 “Under the standard rules of statutory construction, to the extent that there
is a conflict between the two provisions, the later enacted provision . . . prevails.” Patton,
437 Md. at 107. Special Rule 2.14 was enacted by the County Council of Baltimore County
on May 3, 1999, as Bill No. 35-99, as “an act concerning personnel law of Baltimore
County.” Subsection (a) of the rule, in effect, allows the County to rehire a former sworn
officer within 24 months of the officer’s separation, provided the separation was “without
prejudice” (i.e., not for disciplinary reasons) and the officer met certain eligibility
requirements. Especially relevant here is subsection (b), which essentially explains the
circumstances of an officer’s rehiring under the Rule. It provides, in pertinent part:
3 We also note that we disagree with ERS’s implied assertion that Officer Bradford’s
reliance on Special Rule 2.14 is “misguided,” simply because Special Rule 2.14 appears in
Article 4, rather than Article 5. To view the optional allowance section in such extreme
isolation would be illogical for any number of reasons; not least of which being that Article
5 is not, and does not purport to be, a self-contained article within the Code.
14
The rehired employee’s anniversary date shall be the date of rehire. Time
away shall be considered as leave without pay for the purposes of calculating
service and longevity credit. The rehired employee’s sick leave balance at
the time of resignation shall be restored unless it was used to determine the
creditable service requirement, and other leave accruals shall be based on the
adjusted service time. Benefits may not be earned for the time away from
county service.
(emphasis added). Clearly, Special Rule 2.14 was written to ensure that a returning officer
will be treated in almost the exact same way he was before he left. As the circuit court
pointed out, Special Rule 2.14’s language notably addresses only the effect on the
separation from employment, and has no such language with respect to a retirement. Those
involved in the negotiations surely would have recognized that—at the very least—a large
portion of those officers with a “separation” that was “without prejudice” would have been
retired, and if they wanted to ensure that any subsequent retirement was to be in the exact
circumstances of the first, they could have done so.
Furthermore, we believe this result is in accordance with the principle that,
“[w]henever possible, the various parts of a statute should ‘be reconciled and harmonized
to be consistent with the statute's object and scope.’ Our interpretation should avoid
illogical, absurd, or anomalous results.” Blackburn Ltd. Partnership v. Paul, 438 Md. 100,
122 (2014) (citation omitted). In our view, the record reflects that the statutory scheme was
enacted by the County as a way to entice officers into staying with the BCPD beyond the
twenty-year service requirement.
For example, Code § 5-1-214(b)(2), provides that an officer that is rehired pursuant
to Special Rule 2.14 is not eligible to receive an increased service retirement allowance
until the officer has stayed an additional five years—in the County Attorney’s words, “a
15
sort of vesting requirement.” Section 5-1-214(b)(2) was enacted in Bill No. 38-99, which
passed as a companion bill with Bill No. 35-99, the bill that enacted Special Rule 2.14.
While ERS is correct in asserting that § 5-1-214(b)(2) is not an additional exception to §
5-1-231(a), it does not appear to purport to be one. It does, however, support the Board’s
finding that “the underlying ‘legislative scheme’ was to encourage retired officers to return
to duty in exchange for their reinstatement as sworn officers with their prior retirement
being treated as leave without pay.”
Moreover, we are unpersuaded by ERS’s reliance on § 5-1-231(b) and (c) as proof
that “[t]he County Council specifically chose not to allow a member who chose Option 4
to change his or her election after receiving a first payment, although the Council clearly
could have and knew how to do so as evidenced in subsections (b) and (c),” for two reasons.
First, as we have pointed out, when Officer Bradford was rehired pursuant to Special
Rule 2.14, he was just that—rehired. Officer Bradford was reinstated at the same level he
was, and worked an additional 13 years before retiring in 2012. To interpret § 5-1-231 as
requiring him to keep Option 4 after the County, for all intents and purposes, treated him
as a fully-restored police officer for an 13 extra years would be the “illogical, absurd, and
anomalous result” we seek to avoid in interpreting statutes.
Second, ERS’s invocation of the maxim of statutory construction known as
expressio unius est exclusio alterius—meaning that the expression of one thing implies the
exclusion of another thing not mentioned—is belied by the language of § 5-1-231(b) and
(c). Subsection (b) allows “retired members” who chose Option 2 or 3 to change their
option in the event of the death of or divorce from their beneficiary, and subsection (c)
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allows “retired members” who chose Option 5 or 6 to designate a new beneficiary and
change their option if their beneficiary has died or been divorced and had their allowance
recalculated as a result. See Code § 5-1-231(b)-(c). Clearly, those exceptions were designed
only for “retired members” who were remaining retired— which, at the time he attempted
to switch options, Officer Bradford was not. By including language that applied to retired
members, it does not automatically follow that the County Council was impliedly
excluding members who were once, but were then no longer, retired.
CONCLUSION
For the above reasons, we agree with the Baltimore County Board of Appeals. The
circumstances of Officer Bradford’s rehiring meant that his 1998 retirement was
“render[ed] . . . a nullity,” and therefore, he should not be prevented from changing his
retirement option. Accordingly, we affirm the decision of the Circuit Court for Baltimore
County.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
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