White v. Register of Wills of Anne Arundel County , 217 Md. App. 187 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 677
September Term, 2013
DARLENE WHITE
v.
REGISTER OF WILLS OF
ANNE ARUNDEL COUNTY, MARYLAND
Graeff,
Berger,
Arthur,
JJ.
Opinion by Arthur, J.
Filed: May 1, 2014
This case concerns whether appellant Darlene White, the former Chief Deputy
Register of Wills for Anne Arundel County, was an employee of the executive branch or
of the judicial branch. If Ms. White was an executive branch employee, she can bring a
whistleblower complaint under the Maryland Whistleblower Law, Md. Code (1993, 2009
Repl. Vol.) § 5-305 of the State Personnel and Pensions Article; if she was a judicial
branch employee, she cannot.
The Department of Budget and Management, the Office of Administrative
Hearings, and the Circuit Court for Anne Arundel County concluded that Ms. White was
a judicial branch employee and, thus, was not permitted to bring a whistleblower
complaint. We agree and, therefore, affirm.
F ACTUAL AND P ROCEDURAL H ISTORY
This appeal stems from Ms. White’s termination as Chief Deputy Register of Wills
for Anne Arundel County on January 31, 2012. Ms. White contends that she was
terminated in retaliation for a complaint that she filed against her former boss, the
Register of Wills for Anne Arundel County, with the Department of Budget and
Management (“DBM”) on December 19, 2011. She seeks protection under the Maryland
Whistleblower Law, Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State Personnel
and Pensions Article.
Before her termination, Ms. White called the DBM to inquire about whether the
Maryland Whistleblower Law, Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State
Personnel and Pensions Article, would protect her from reprisals if she filed a complaint.
According to Ms. White, an employee of DBM told her that she would be protected
because her position as Chief Deputy Register of Wills made her an executive branch
employee. She claims that, in reliance on that advice, she filed a whistleblower complaint
under Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State Personnel and Pensions
Article with DBM.
After Ms. White was terminated, DBM dismissed her complaint for lack of
jurisdiction, reasoning that Ms. White was a judicial branch employee, but that the
whistleblower statute applied only to executive branch employees.1 Ms. White appealed
to the Office of Administrative Hearings (“OAH”), which affirmed that DBM did not
have jurisdiction over the complaint because Ms. White was a judicial branch employee.
As stated above, Ms. White filed a petition for judicial review in the Circuit Court
for Anne Arundel County. The circuit court affirmed OAH’s dismissal, and Ms. White
noted a timely appeal.
Q UESTION P RESENTED
Ms. White presents a single question for our review:
Is the Office of Administrative Hearings’ finding that Ms. White was
not an executive branch employee capable of filing a whistleblower
complaint under Maryland Whistleblower Law, and was instead a judicial
branch employee, supported by substantial evidence and legally correct?
For the reasons that follow, we answer yes and affirm.
1
Md. Code (1993, 2009 Repl. Vol.) § 5-301 of the State Personnel and Pensions
Article provides that the statute applies only to executive branch employees.
2
D ISCUSSION
Ms. White argues that OAH erred when it concluded that she was an employee of
the judicial branch, not the executive branch, and thus, not permitted to file a
whistleblower action under Md. Code (1993, 2009 Repl. Vol.) § 5-305 of the State
Personnel and Pensions Article. We disagree.
In reviewing an administrative agency’s decision, we pass over the circuit court
decision, and we examine the administrative decision using the same standard as the
circuit court. Motor Vehicle Admin. v. Shea, 415 Md. 1, 15 (2010). The Court’s role “is
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.” United Parcel Service, Inc. v. People’s
Counsel for Baltimore County, 336 Md. 569, 577 (1994).
At the outset, we note that the Office of the Register of Wills itself is indisputably
part of the judicial branch. The Office of the Register of Wills was created by Article IV
of Maryland’s Constitution (Md. C ONST. art. IV, § 41), the article that creates and
empowers the judicial branch. Moreover, the Register of Wills functions as the clerk of
the orphans’ court (Dan Friedman, The Maryland State Constitution 251 (G. Tarr ed.
2011)), by, for example, receiving, filing, and storing papers and records, keeping the
docket, making out and issuing summonses and orders, issuing and certifying copies of
the proceedings in the court, making entries of court proceedings, auditing accounts, etc.
3
See generally Md. Code (1974, 2011 Repl. Vol.) § 2-208(c)-(k) of the Estates and Trusts
Article. Thus, the only question is whether Ms. White, in her role as the Chief Deputy of
the Register of Wills, is considered part of the judicial branch as well.
At first glance, it would appear that if the Register of Wills is part of the judiciary,
then the Chief Deputy of the Register of Wills must also be part of the judiciary. Ms.
White, however, points to several statutes that give the Comptroller some control over
the staff of the Register of Wills. Because the Comptroller is part of the executive branch
(M D. C ONST. art. II, § 18), Ms. White argues that the staff of the Register of Wills must
also be part of the executive branch.
In support of her contention, Ms. White specifically cites Md. Code (1997, Repl.
Vol. 2009), § 4-108(a) and (c) of the State Government Article, which allow the
Comptroller to set “the number and compensation of assistant clerks or deputies
employed by each register of wills” and to increase the salary of the staff in the offices of
the registers of wills “commensurate with the increases granted to State employees
generally.” She also cites Md. Code (1974, 2011 Repl. Vol.) § 2-208(b) of the Estates
and Trusts Article, which gives the Comptroller the power to approve the appointments
and compensation of deputies and clerks (after they have been appointed by the Register
of Wills). On the basis of these enactments, Ms. White argues that the Comptroller’s
powers over the staff of the Register of Wills are sufficient to convert what would
otherwise be a judicial branch position into an executive branch position. In our view,
4
Ms. White overstates the importance of these statutes.
When we interpret statutes, we begin by examining the “normal, plain meaning of
the language of the statute.” Doe v. Montgomery Cnty. Bd. of Elections, 406 Md. 697,
712 (2008). We think that the plain language here shows that the Comptroller’s authority
is limited in its reach.
The statutes give the Comptroller no explicit control over the core actions and
operations of the deputies and clerks in the Office of the Register of Wills. In particular,
the statutes do not empower the Comptroller to supervise the deputies and clerks or to
decide whether to hire or fire them. To the contrary, the Register of Wills has the
statutory power to appoint deputies and clerks. Md. Code (1974, 2011 Repl. Vol.) §
2-208(b) of the Estates and Trusts Article. The Comptroller simply serves as a fiscal
watchdog, determining the number of deputies and clerks and approving their
appointments and compensation.
It makes perfect sense for the Comptroller to serve in that role. The salaries and
expenses of the Office of the Register of Wills are paid from the fees and receipts of the
office (Md. Code (1974, 2011 Repl. Vol.) § 2-205(d) of the Estates and Trusts Article),
after which the excess goes to the State’s General Fund. M D. C ONST. art. XV, § 1.
Moreover, if the Office of the Register of Wills does not have sufficient funds to pay its
salaries and expenses, the deficiency is funded from the taxes that the Register remits to
the Comptroller during that fiscal year. Md. Code (1974, 2011 Repl. Vol.) § 2-205(e). In
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these circumstances, the State has an obvious economic interest in ensuring that the
Register of Wills does not appoint unnecessary deputies or clerks and does not overpay
the deputies and clerks whom she has appointed. In setting the number and compensation
of the deputies and clerks and approving their appointments and compensation, the
Comptroller protects the State’s economic interest.2
Not only do basic canons of statutory interpretation favor the conclusion that Ms.
White is a judicial employee, but administrative deference favors it as well. We
recognize that “an administrative agency’s interpretation and application of the statute”
that the agency administers should be given “considerable weight” by reviewing courts.
Bowen v. City of Annapolis, 402 Md. 587, 612 (2007). Here, DBM, the agency
responsible for overseeing the Whistleblower Act, did not think the Act applied to Ms.
White. Thus, we should accord DBM’s view substantial weight. Moreover, DBM has
acted consistently with this view because it never classified Ms. White as an employee of
the executive branch.
Even if we credited the argument that the Comptroller’s statutory powers could
transform the staff of the Register of Wills into executive branch employees, that would
2
Before 1990, the Comptroller had similar authority over the compensation of the
clerks of the circuit courts. See 69 Op. of the Att’y Gen’l 57 (1984). In discussing that
authority, this Court stated that its “‘manifest purpose’” was “‘to prevent the wrongful
absorption of the receipts of the office by excessive salaries on the one hand, and to
secure the services of competent persons by the assurance on the other hand of just and
reasonable compensation.’” Chester v. State, 32 Md. App. 593, 609 (1975), cert. denied,
278 Md. 718 (1976) (quoting State, Use of Smith v. Turner, 101 Md. 584, 590 (1905)).
6
not help Ms. White, because the Chief Deputy of the Register of Wills is not a mere clerk
or deputy. By statute, the Chief Deputy can act in place of the Register of Wills, and all
actions taken by the Chief Deputy while substituting for the Register of Wills have “the
force and effect as if performed by the register.” Md. Code (1974, 2011 Repl. Vol.) §
2-208 of the Estates and Trusts Article. For that reason, the Chief Deputy acts as the
Register of Wills’s alter ego, and she should be classified in the same way as the Register
of Wills herself. See Rucker v. Harford Cnty., 316 Md. 275, 281 (1989) (holding that
because a deputy sheriff functions as the alter ego of the sheriff, and exercises the same
authority, deputy sheriffs are classified the same way as sheriffs as employees of
Maryland). Given that the Register of Wills is a judicial employee, it follows that the
Chief Deputy will be classified that way as well.
Having rejected Ms. White’s argument that statutory interpretation favors her
classification as an executive branch employee, we turn next to her other main argument,3
concerning whether her classification as a judiciary employee would raise a separation of
powers concern. We hold that it does not.
3
Although Ms. White makes several other arguments as to why she should be
considered an executive branch employee, her arguments make unwarranted inferences
and are ultimately grounded in the issues of statutory interpretation that we have already
discussed. For instance, Ms. White cites a letter that she received from former Chief
Judge Robert M. Bell in response to an inquiry that she sent to him. Contrary to Ms.
White’s characterization, the letter did not state that she was a judicial employee. Instead,
it stated that the Chief Judge could not offer an advisory opinion as to how Ms. White
was classified. The Chief Judge then merely reiterated the plain language of the statute
that gives the Comptroller administrative oversight over the staff of the Register of Wills.
7
Article 8 of the Maryland Declaration of Rights states that “[t]he Legislative,
Executive and Judicial powers of Government ought to be forever separate and distinct
from each other; and no person exercising the functions of one of said Departments shall
assume or discharge the duties of any other.” Ms. White argues for a literal reading of
this provision, under which an employee from one branch of government could not have
any degree of control over an employee from another branch. In her view, therefore, the
Comptroller, as part of the executive branch, could not exercise any control over the staff
of the Register of Wills, unless the staff members were also executive branch employees.
Prior Maryland cases have, however, shown that a strict reading of the separation
of powers doctrine is inappropriate. See Baltimore v. State, 15 Md. 376, 457 (1860)
(stating that “[t]he words of [Article 8] appear to be plain enough, but they have not been
accepted in their literal sense”); see also McCulloch v. Glendening, 347 Md. 272, 283
(1997) (stating that “the doctrine has never been rigidly applied”); Dep’t of Natural Res.
v. Linchester Sand & Gravel Co., 274 Md. 211, 220 (1975) (stating that the separation of
powers doctrine encompasses “a sensible degree of elasticity”); Dan Friedman, The
Maryland State Constitution, supra, 34 (stating that “Maryland courts have never
interpreted Article 8 in an unqualified fashion”).
Moreover, the Court of Appeals has held that the main purpose of the separation of
powers clause is to prevent one branch of government from usurping the essential
functions and powers of another branch. See Shell Oil Co. v. Supervisor of Assessments
8
of Prince George's Cnty., 276 Md. 36, 46 (1975) (stating that courts cannot perform “non-
judicial functions” and that administrative agencies cannot perform “judicial functions”);
accord O’Hara v. Kovens, 92 Md. App. 9, 22-23, cert. denied, 328 Md. 93 (1992) (stating
that “the separation of powers doctrine preserves to the one branch of government its
essential functions and prohibits any other branch from interfering with or usurping those
functions”) (emphasis in original).
Here, the Comptroller does not perform any core or essential judicial functions,
such as rendering final judgments that adjudicate a party’s rights (Dan Friedman, The
Maryland State Constitution, supra, 35; see Shell, 276 Md. at 46) or even hiring, firing, or
supervising court clerks. Instead, in furtherance of the State’s fiscal interest in the
efficient operation of the Register of Wills’ office, the Comptroller merely maintains
some administrative control over the size and compensation of the Register’s staff. This
is no more of an encroachment on a core judicial function than is legislation establishing
minimum standards for bar admission, which has been upheld. See Dan Friedman, The
Maryland State Constitution, supra, 35 & n. 52-53 citing Attorney General v. Waldron,
289 Md. 683 (1981)).
On the other hand, a serious separation of powers issue would arise if Ms. White,
as Chief Deputy, were an executive branch employee. As previously stated, there is no
dispute that the Register of Wills herself is a judicial officer. Yet, under Md. Code (1974,
2011 Repl. Vol.) § 2-208(b) of the Estates and Trusts Article, Ms. White, as Chief
9
Deputy, had the “power and authority to act in the place of the register.” In addition,
“every act” that Ms. White performed when acting as the Register of Wills had “the force
and effect as if performed by the register” herself. Id. Under Ms. White’s view,
therefore, not only would an executive branch employee have the “power and authority to
act in place” of a judicial officer, but the actions of that executive branch employee would
have “the force and effect” of those of the judicial officer herself. In view of our
obligation to avoid an interpretation that would raise the serious constitutional objections
that Ms. White’s interpretation raises, we reject her contention that she is an executive
branch employee.
In summary, we conclude that OAH did not err in finding that Ms. White was a
judicial branch employee and that she does not, therefore, have the protections of the
Whistleblower Act. We affirm.
JUDGMENT OF THE CIRCUIT
COURT FOR ANNE ARUNDEL
COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
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