Which Maryland state employees were covered by the old Merit System's EEO, whistleblower, leave, and overtime rules?

Plain-English summary

As chairman of a committee revising Maryland's old Merit System Law (Article 64A), the Chief Judge of the Court of Special Appeals asked the Attorney General to sort out which categories of state employees, classified, unclassified, or employees of "independent" personnel systems like the University of Maryland, were covered by five different personnel statutes, and whether those statutes reached employees of the legislative and judicial branches as well as the executive branch.

The Attorney General concluded that coverage varied statute by statute. The equal employment opportunity program (Article 64A, §§12A-12E) and the whistleblower law (§§12F-12K) were read as limited to the executive branch, based on their statutory text, their legislative history as codifications of an executive order, and the fact that most legislative and judicial employees worked under separate personnel systems. Within the executive branch, the EEO program covered classified employees only, while the whistleblower law had been amended in 1988 to cover unclassified employees too, though not applicants for unclassified jobs. By contrast, the leave statute (§37, covering annual, sick, personal, and accident leave) was read, based on decades of administrative practice the legislature had tacitly approved, to cover unclassified as well as classified employees. The holiday statute and the law protecting promotional opportunities for employees on sick or maternity leave (Article 89, §§28 and 29) were read to apply to all state employees in all three branches, because the legislature placed them outside the Merit System Law and used the broad phrase "every State employee." Finally, the overtime statute (Article 89, §27(c)) was read to reach all state employees in all three branches, subject to a constitutional limit: the Secretary of Personnel could not exercise that authority in a way that intruded on the core functions of the legislative or judicial branch.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here. The opinion's own Editor's Note already flags that, following recodification, these provisions have moved: equal employment opportunity to Title 5, Subtitle 2 of the State Personnel and Pensions ("SPP") Article; the whistleblower law to SPP Title 5, Subtitle 3; annual, personal, sick, and accident leave to SPP Title 9, Subtitles 3, 4, 5, and 7 respectively; State holidays to SPP Title 9, Subtitle 2; promotional-opportunity protection to SPP §2-303(c); and overtime compensation to SPP Title 8, Subtitle 3.

Common questions

Under Maryland's old Merit System Law, were unclassified state employees covered by the equal employment opportunity program?
No. The opinion concluded the EEO program in Article 64A, §§12A-12E applied to classified service employees in the executive branch only, following a 1978 opinion that reached the same conclusion for University of Maryland employees.

Were unclassified employees protected by Maryland's whistleblower law in 1992?
Yes, but only in the executive branch. The opinion explained that a 1988 amendment extended the whistleblower law to unclassified as well as classified executive branch employees, though it did not extend to applicants for unclassified jobs, and it did not reach the legislative or judicial branches.

Did legislative and judicial branch employees get any of these protections?
Some, but not all. The opinion concluded the EEO program and whistleblower law were limited to the executive branch, but the holiday statute, the sick/maternity leave promotional-opportunity protection, and the overtime statute all applied to employees in all three branches of Maryland government.

Could the Secretary of Personnel set overtime rules for judicial branch employees?
The opinion said yes, with a limit: the Secretary's overtime authority under Article 89, §27(c) reached all state employees except those specifically excluded by statute, but she could not exercise that authority in a way that would intrude on the core functions of the judicial or legislative branches, and the opinion noted the Court of Appeals could adopt its own overtime rules by court rule that would prevail until changed by the court or the legislature.

Were unclassified state employees entitled to annual and sick leave under the old law?
Yes. Although the leave statute's text technically referred to "classified" employees for annual leave, the opinion concluded decades of administrative practice, treating classified and unclassified employees alike for leave purposes, together with the legislature's repeated tacit approval of that practice, meant unclassified employees earned annual, sick, personal, and accident leave too.

Background and statutory framework

Maryland's Merit System Law, enacted in 1920, divided state service into "classified" and "unclassified" employees, with the Secretary of Personnel's authority generally limited to the classified service unless a statute said otherwise. Over time, the General Assembly extended pieces of the Merit System Law to unclassified employees, and some employees, such as those at the University of Maryland or the Maryland Transportation Authority, fell into a third category the opinion called "independent employees," governed by their own personnel systems largely outside the Secretary's control.

Against that backdrop, the opinion worked through five separate statutes. For the EEO program, the opinion relied on the statutory text (which spoke of the "executive branch" and agency heads), the program's legislative history as a codification of a prior executive order (and executive orders bind only the executive branch), and the fact that most legislative and judicial employees were covered by independent personnel systems rather than the Merit System Law. For the whistleblower law, the opinion traced a 1988 amendment extending coverage to unclassified employees, but found no similar legislative intent to cover applicants for unclassified jobs, and read the law's remedies as supplemental to the Merit System Law's grievance procedures, which the opinion read as limited to the executive branch.

For leave, the opinion acknowledged that a strict textual reading of §37's annual leave provision, which speaks of "classified" employees, would exclude unclassified employees. But the opinion relied on the Secretary of Personnel's leave regulations, which had treated classified and unclassified employees alike since at least the late 1950s, on a series of statutory amendments (1966, 1973, 1975, 1976) that assumed unclassified employees already earned leave, and on the principle that longstanding administrative interpretations the legislature has acquiesced in are entitled to considerable weight in construing an ambiguous statute. For holidays and the sick/maternity-leave promotional protection, the opinion found that placing these provisions in Article 89 rather than the Merit System Law, combined with the broad statutory phrase "every State employee," showed the legislature meant to cover all state employees regardless of branch or classification. For overtime, the opinion followed a 1968 opinion that had already read the Secretary's authority as extending beyond classified and unclassified employees to independent personnel systems, and concluded the legislature had since acquiesced in that reading, subject to a constitutional limit against the Secretary using her overtime authority to interfere with the legislative or judicial branches' core functions.

Citations and references

Statutes:

• Article 64A, §§12A through 12E, the equal employment opportunity program, held limited to classified executive branch employees
• Article 64A, §§12F through 12K, the whistleblower law, held to cover classified and unclassified executive branch employees but not applicants for unclassified jobs
• Article 64A, §37 and its subsections, governing annual, sick, personal, and accident leave, held to cover both classified and unclassified employees
• Article 64A, §37A, defining the scope of the Secretary of Personnel's leave rulemaking authority
• Article 89, §§28 and 29, State holidays and promotional-opportunity protection for employees on sick or maternity leave, held to apply to all state employees in all three branches
• Article 89, §27(c) and (d), the overtime compensation statute, held to reach all state employees except those specifically excluded
• SG §§2-1207 and 2-1307, governing personnel systems for the Department of Legislative Reference and Department of Fiscal Services
• CJ §2-601(b), governing the classification of District Court clerical, administrative, and constabulary employees
• CJ §2-505(b) and §2-5A-02, giving the Court of Appeals rulemaking authority over circuit court clerks' office personnel
• Article III, §52(11) of the Maryland Constitution, denying the executive branch revisory power over the legislative and judicial branches' budgets
• Article IV, §18(a) of the Maryland Constitution, giving the Court of Appeals authority to adopt rules for court administration
• 5 U.S.C. §2302(a)(2)(A) and (C), the federal whistleblower provision Maryland's law was patterned on, limited to executive branch employees

Cases:

• State Administrative Bd. of Election Laws v. Billhimer, 314 Md. 46, 63, 548 A.2d 819 (1988), cited for the history of Maryland's Merit System Law
• Morris v. Prince George's County, 319 Md. 597, 604, 573 A.2d 1346 (1990), cited for the principle that legislative history may be considered even where statutory text seems plain
• Sinai Hosp. v. Dep't of Employment, 309 Md. 28, 46, 522 A.2d 382 (1987), cited for the deference owed to a longstanding administrative construction of a statute
• Maryland Pennysaver Group, Inc. v. Comptroller, 323 Md. 697, 707, 594 A.2d 1142 (1991), cited alongside Sinai Hospital on administrative deference
• Falik v. Prince George's Hosp., 322 Md. 409, 416, 588 A.2d 324 (1991), cited for the weight given to an agency's consistent statutory construction known to the legislature
• Maryland Classified Employees v. Schaefer, 325 Md. 19, 34, 599 A.2d 91 (1991), cited for the presumption that the legislature acts with knowledge of prior law and for the limits on customs that conflict with a later-enacted statute
• Board of Educ. v. Lendo, 295 Md. 55, 63, 453 A.2d 1185 (1982), quoted for the presumption the legislature knows existing law when it legislates
• Lumberman's Mut. Casualty v. Ins. Comm'r, 302 Md. 248, 268-69, 487 A.2d 271 (1985), cited for the rule that a specific statute governs over a conflicting general one
• Crest Investment v. Cohen, 245 Md. 639, 648, 227 A.2d 8 (1967), cited for the presumption the legislature is aware of prior administrative and Attorney General interpretations
• Department of Transportation v. Armacost, 311 Md. 64, 72, 532 A.2d 1056 (1987), cited on separation-of-powers limits applicable to both statutes and regulations
• Abshire v. County of Kern, 908 F.2d 483 (9th Cir. 1990), cert. denied, 111 S.Ct. 785 (1991), cited for federal Fair Labor Standards Act overtime considerations relevant to policy recommendations
• County Fed. Sav. & Loan Ass'n v. Equitable Savings and Loan Ass'n, 261 Md. 246, 274 A.2d 363 (1971), cited for the principle that a court rule prevails until modified by the court or the legislature

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed pages 147-169 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Personnel - Applicability of Equal Employment
Opportunity, Whistleblower, Leave, Holiday,
Preservation of Promotional Opportunities, and
Overtime Provisions

                         May 20, 1992

The Honorable Alan M. Wilner
Chief Judge
Court of Special Appeals
of Maryland

  As Chairman of the Code Revision Committee, you have asked us

several questions relating to the scope of authority of the Secretary of
Personnel over different categories of State employees under several
different statutes. These questions have arisen during the Committee's
efforts to revise the present Merit System Law, Article 64A of the
Maryland Code, as well as several other statutes not found in that article
but that nonetheless relate to the Secretary of Personnel.

  Your specific questions, and our responses, are as follows:

  1. What employees are covered by Article 64A, §§12A through

12E, which establish an equal employment opportunity program under the
auspices of the Secretary of Personnel?

    Article 64A, §§12A through 12E apply to classified service

employees in the executive branch only.

 2. What employees are covered by Article 64A, §§12F through

12K, which establish a whistleblower protection program?

      Article 64A, §§12F through 12K apply to classified service

employees, unclassified employees, and applicants for classified
employment in the executive branch; these provisions do not apply to
applicants for unclassified employment.

  3. What employees are covered by the provisions of Article 64A,

§37, which relate to employee annual, sick, personal, and accident leave?

      The provisions governing these forms of leave apply to all

classified and unclassified employees over whom the Secretary of
Personnel exercises leave authority.

   4. What employees are covered by Article 89, §28, which provides

certain State holidays, and Article 89, §29, which protects against the
denial of promotional opportunity caused by use of sick or maternity leave?

     Article 89, §§28 and 29 apply to all State employees in all three

branches of government.

  5. What employees are covered by Article 89, §27(c), which grants

the Secretary of Personnel authority to regulate the payment of overtime
compensation?

       Article 89, §27(c) applies to all State employees in all three

branches of government, although the Secretary of Personnel may not
exercise the authority granted by that provision in a manner that would
interfere with the essential functions of the legislative and judicial branches.

                                   I

                             Background

  In 1920, Maryland enacted its Merit System Law, becoming the

tenth state to enact such a law. See State Administrative Bd. of Election
Laws v. Billhimer, 314 Md. 46, 63, 548 A.2d 819 (1988) (Adkins, J.,
dissenting). At the time of its enactment, the Merit System Law divided
the public service into two groups: the classified service and the
unclassified service. In 1928, Oliver Short, the second State Employment
Commissioner, distinguished the classified service from the unclassified
service as follows:

       The term "classified service" is used to describe
       positions which come under the provision of the Merit
       System law and its rules and regulations, and under the
       jurisdiction of the public personnel administrator. The
       unclassified service refers to all other positions in the
        service. This division of public employees is known as
       jurisdictional classification and is made either by direct
        legal provision in the basic law or by the civil service
        commission, with or without the approval of the chief
        executive, by authority so delegated in the Merit
        System law. Such a division is necessary in order that
        the personnel agency may know its authority with
        regard to the various positions in the service. The
        personnel agency has no authority, either in the
        selection or in the regulation of the personnel filling
        unclassified positions. Its authority is confined to
        those in the classified service.

O. Short, The Merit System 27 (1928). The original Merit System Law
defined the terms "classified service employee" and "employee" to mean
the same thing: "a person who holds under the terms of this Article, a
position in the classified service." Article 64A, §1 (1924 Repl. Vol.).

   This definition remained substantially unchanged for the next 68

years, until the passage of Chapter 543 of the Laws of Maryland 1988,
which rewrote many of the definitions used in Article 64A. The "classified
service" is now defined to mean "all positions for which persons are
selected on a competitive basis in accordance with §§17 and 18 of this
article and from which a non-probationary employee may be dismissed only
for cause."1 Article 64A, §1(6). The unclassified service is now defined to
mean "all positions specifically excluded from the classified service by the
Annotated Code of Maryland." Article 64A, §1(20). The term "employee"
is no longer defined.

  Despite the recent change in the definition of "classified service

position," the basic jurisdictional dichotomy established by the original
Merit System Law continues to the present. Article 64A, §44 describes
the purpose of the Merit System Law as follows:

        [The law's] purpose is to provide candidates for
        appointment to positions in the classified service after
        determining by practical tests of the fitness of such
        candidates for the positions which they seek, without
        regard to the political or religious opinions or
        affiliations of such candidates, or of any other standard
        except the business efficiency of the classified service,
        and to provide adequate means for the prompt removal
        from positions in the classified service of all persons
        therein who may be indolent, incompetent, inefficient,
        or otherwise unfit to remain therein, and to keep in a
        workable state the provisions for the promotion of
        employees as provided in this article to the end that the
        same shall be so administered as to attract the best
        class of candidates to the classified service.

Article 64A, §44. As the quoted language demonstrates, the purpose of
the Merit System Law is to set up a system of administration for classified
service employment.2 Accordingly, our office has determined that the
Secretary possesses no authority over unclassified employment unless a
statute provides otherwise. See 63 Opinions of the Attorney General 524,
525 (1978); 58 Opinions of the Attorney General 503 (1973).

   Over the history of the Merit System Law, the General Assembly

gradually has made the unclassified service subject to many of the
provisions of the law. The first instance was its bringing unclassified
service classifications into the State's pay plan through Chapter 395 of the
Laws of Maryland 1941.3 More recently, unclassified employees were
given the right to file grievances. See 62 Opinions of the Attorney General
686 (1977).

   In addition to the unclassified and classified services, some positions

in State employment fall outside the provisions of the Merit System Law
altogether. For lack of a statutory definition, we referred to such
employees in a 1988 opinion as "independent employees." 73 Opinions of
the Attorney General 285, 286 (1988). See also 61 Opinions of the
Attorney General 596 (1976); 41 Opinions of the Attorney General 250,
262 (1956). These employees are neither classified nor unclassified as
those terms are used in the Merit System Law. Instead, these employees
work in personnel systems that the General Assembly has established,
explicitly or by necessary implication, largely free from the Secretary of
Personnel's control.4 See 73 Opinions of the Attorney General at 288.

  Even this category of "independent employees," however, defies

application of any hard-and-fast rule regarding the Secretary of Personnel's
authority. For example, despite the fact that University of Maryland
System employees are governed by an independent personnel system, the
General Assembly nevertheless has given the Secretary of Personnel
authority over them with respect to the promulgation of rules on all aspects
of annual leave, sick leave, personal leave, compensatory time, the keeping
of time records, and the filling of a full-time position by two or more part-
time employees. See Article 64A, §37A.

  To summarize, the State service presently is broken into three

general groupings: the classified service, the unclassified service, and
employees of independent personnel systems.5 The underlying theme of
the questions posed by the Code Revision Committee is how far the
Secretary of Personnel's authority extends to these groups of employees
under particular statutes, given statutory language that is used
inconsistently. Although the conclusions that we reach in the following
analysis represent our best efforts to fathom current law, the General
Assembly should be urged to express its policy determinations
unambiguously in the revised law.

                                   II

        The Equal Employment Opportunity Program

   You have asked whether unclassified employees are covered by

Article 64A, §§12A through 12E, which establish an equal employment
opportunity ("EEO") program. The stated purpose of §§12A through 12E
"is to establish under the auspices of the Secretary of Personnel an equal
opportunity program to ensure that State Merit System employees and
applicants for State Merit System employment are provided equal
opportunity in employment on the basis of merit and fitness." §12A. See
also §12B (Secretary to administer EEO program "for State Merit System
employees and applicants..."). The program, enacted by Chapter 306 of the
Laws of Maryland 1978, was a codification of an earlier executive order
of the Governor on this subject.

   Shortly after the passage of Chapter 306, this office responded to a

request by the Secretary of Personnel for an opinion whether the
Secretary's EEO program extended to employees of the University of
Maryland. 63 Opinions of the Attorney General 524 (1978). Attorney
General Burch concluded that the Secretary did not have jurisdiction over
University of Maryland employees because they were not "Merit System
employees." Although the law giving the University of Maryland
autonomy over its personnel system stated that its employees were to be
regarded and treated as classified employees, the fact remained that they
were not actually classified employees. 63 Opinions of the Attorney
General at 527-28 and 530 n.3. Therefore, they did not fall within the
Secretary of Personnel's jurisdiction over the equal employment
opportunity program. Since that opinion, the General Assembly has not
acted in any way to alter its conclusion, to which we adhere: that the EEO
program is limited to classified service employees.

   You also ask whether the Secretary's jurisdiction extends over the

legislative and judicial branches of government. We conclude that it does
not, for three reasons.

  First, the statutory text on balance indicates that the EEO program

applies to executive branch employees only. Section 12B states that "[t]he
head of each agency within the executive branch of State government shall
comply with the rules, regulations, and guidelines issued by the
Department of Personnel and shall prepare an annual affirmative action
plan in accordance with them." See also §12D (executive branch
departments to appoint fair practices officers). Although §12D also speaks
of the duty of "[a]ll State agencies" to cooperate with the Secretary of
Personnel and comply with her rules, we interpret this phrase to refer to all
executive branch agencies.

  In addition, the legislative history indicates that the General

Assembly intended to codify an existing executive order. Executive orders
are confined in their applicability to the executive branch. See SG §3-302.
See also 74 Opinions of the Attorney General 200, at 206 n. 8 (1989).

   Finally, most legislative and judicial employees are subject to

statutorily authorized independent personnel systems and therefore are not
"Merit System employees" subject to the control of the Secretary of
Personnel. The term "Merit system employees" refers to employees in the
classified service.6

   With respect to the Legislature, all positions within the Department

of Legislative Reference and Department of Fiscal Services are unclassified
and subject to personnel systems managed by the Legislative Policy
Committee. SG §§2-1207(b) and 2-1307(b).7 For each of these legislative
departments, "[t]he Legislative Policy Committee shall adopt guidelines
that are not inconsistent with law and that, for professional and non-
professional employees of the Department, govern hiring, tenure,
promotion, grievance procedures, and political activity." SG §§2-1207(c)
and 2-1307(c). This office has concluded that the quoted phrase "not
inconsistent with law" does not require that the guidelines be consistent
with laws governing State personnel generally. Instead, that language
merely requires that the guidelines be consistent with the provisions of the
State Government Article and with more broadly applicable laws. See
Opinion No. 86-006 (February 10, 1986) (unpublished). Therefore, we
conclude that Article 64A, §§12A through 12E do not place "unclassified"
legislative branch employees under the authority of the Secretary.

  Judicial branch employees are, with one exception, likewise outside

the Secretary's jurisdiction. See §2-601(b) of the Courts Article ("CJ"
Article). As this office has concluded previously, appellate court
employees and employees of the Administrative Office of the Courts are
not merit system employees. See CJ §§2-402, 2-403, and 13-101. See
also 62 Opinions of the Attorney General 61A (1977). Furthermore, CJ
§2-505(b) gives the Court of Appeals rulemaking authority to determine
whether personnel in circuit court clerks' offices are "classified,
unclassified, or in the personnel system of the judicial branch."8 Rule
1212(b) indicates that the Court has opted to establish an independent
personnel system, which "shall provide for equal opportunity, shall be
based on merit principles, and shall include appropriate job classifications
and compensation scales." (Emphasis supplied). Rule 1212(d) directs the
State Court Administrator "to develop standards and procedures for the
selection and appointment of new employees and the promotion,
reclassification, transfer, demotion, suspension, discharge or other
discipline of employees in the clerks' offices." Plainly, the clerks' offices
are independent of the Secretary's authority under the Merit System Law.

    The one group of judicial branch employees who remain part of the

classified service comprises "the clerical, administrative, and constabulary
employees of the District Court," except for certain court officials. CJ
§2-601(b). But since we have concluded that the requirements of §§12A
through 12E are limited by its text and history to executive branch
agencies, even these classified employees are excluded. Thus, in our view,
no judicial branch employee is within the Secretary's EEO program
jurisdiction.

                                III

                    The Whistleblower Law

   You have asked whether Article 64A, §§12F through 12K, the

Whistleblower Law, apply to applicants for unclassified employment, or
within those sections are limited to classified employees, unclassified
employees, and applicants for classified employment. You also have asked
whether the Whistleblower Law applies to employees in the legislative and
judicial branches of government.

  The Whistleblower Law was enacted as Chapter 850 of the Laws of

Maryland 1980. The evident purpose of the law is to protect certain
employees from reprisals by their employer for making certain disclosures.
Section 12G(a) provides that, in general, "an appointing authority may not
take or refuse to take a personnel action with respect to an employee or
applicant for employment as a reprisal for any disclosure of information ...
which disclosure the employee or applicant reasonably believes evidences"
certain unlawful, wasteful, or hazardous practices.9

  As originally enacted, the Whistleblower Law covered only classified

employees and applicants for classified employment. However, the law
was amended by Chapter 232 of the Laws of Maryland 1988 to apply to
unclassified as well as classified employees. Section 12F(a) now defines
"employee," for purposes of the Whistleblower Law, to mean "a classified
or unclassified employee of the State."

   The history of the 1988 bill indicates a legislative purpose to extend

the scope of the Whistleblower Law to unclassified employees but it does
not reveal any purpose to include applicants for unclassified employment
as well. The bill's title stated that its purpose was to clarify that both
classified and unclassified State employees are covered by the
Whistleblower Law. Delegate Rosenberg, the sponsor of the bill, testified
that the amendments to the Whistleblower Law were a direct response to
reprisals taken against unclassified employees in two instances. The bill file
contains no mention of an objection to expand the scope of the
Whistleblower Law to applicants for unclassified employment as well.

   Inasmuch as neither the language of the statute nor its legislative

history indicate that applicants for unclassified employment are protected
under the Whistleblower Law, we conclude that they are not protected.
This conclusion is consistent with other elements of the Merit System Law.
With regard to applicants for classified employment, the Secretary of
Personnel has statutory authority to set qualifications standards, control
recruitment procedures, and oversee the selection process. See Article
64A, §§17, 18, 22 and 44. By contrast, the Secretary has no control over
the hiring of unclassified employees. Cf. 58 Opinions of the Attorney
General 503 (1973) (the Secretary had no authority to extend the
grievance procedure to unclassified employees).10 The General Assembly
would not likely have intended to extend the Whistleblower Law to protect
individuals from reprisals arising from a hiring process over which the
Secretary otherwise has no control.

   We also conclude that the Whistleblower Law extends only to

executive branch employees. The Whistleblower Law provides remedies
that "are supplemental to ordinary grievance procedures prescribed by this
article and rules and regulations promulgated thereto." §12G(a)(2).
Grievance procedures are limited to the executive branch. See Article
64A, §53(a).11 Additionally, the State's law was patterned on the federal
whistleblower protections in the Civil Service Reform Act, which applies
only to executive branch employees. See 5 U.S.C. §2302(a)(2)(A) and
(C).

    Accordingly, we conclude that the Whistleblower Law is limited to

classified and unclassified employees in the executive branch and applicants
for classified employment in the executive branch.12

                                   IV

                                 Leave

A. Introduction

   Article 64A, §37, contains provisions relating to employee annual,

sick, personal, and accident leave. Some of the provisions in §37
specifically refer to "classified" or "unclassified" employees, while others
refer to "an employee," "any employee," and "every employee." This
statutory inconsistency has led you to ask us to differentiate the provisions
of §37 that apply to classified employees only from those that apply to both
classified and unclassified employees.

  Confronted with the statute's terminological inconsistency, our

search for a construction that furthers the legislative objective is further
hampered by the fact that since at least the late 1950's the Secretary of
Personnel's leave regulations have made no distinction between classified
employees and unclassified employees.13 We find it difficult to untangle
those leave policies that are based on the statute from those that derive
from the Secretary's exercise of rulemaking authority. With these barriers
to understanding the statute acknowledged, we turn to the specific
provisions themselves.

B. Annual and Sick Leave

  Article 64A, §37(a) discusses annual and sick leave. With respect

to annual leave, §37(a)(1)(i) provides as follows:

           Every classified employee shall receive as annual
       vacation in each calendar year, a leave of absence with
       pay as follows:

        Less than 5 years of service - 10 working days

         5 to less than 10 years of service - 15 working days

         10 to less than 20 years of service - 20 working days

         20 years of service and more - 25 working days. The
       term "years of service," as used herein shall include
       any previous continuous State service.

With respect to sick leave, §37(a)(3)(i) provides that:

           In addition to annual vacation leave, any employee
       shall be entitled to sick leave with sick pay for not in
       excess of 15 working days in any calendar year;
       provided, however, that if any employee in any
      calendar year uses less than the full amount of sick
      leave allowable, such unused leave shall be
      accumulated and shall be available to such employee
      for sick leave at any time. Nothing in this section may
      cause an employee to lose any sick leave accumulated
      as of December 21, 1974.

     Were we constrained to follow the plain meaning rule in the

construction of statutes, we would have to conclude that annual and sick
leave are available under §37 to classified employees only. At the time that
employees were first given the right to earn sick leave by the predecessor
statute to §37, the term "employee" was defined by §1 of Article 64A to be
synonymous with "classified employee." Further, §37(a)(1)(i) expressly
states that annual leave is earned by "classified" employees.

   However, we are not bound to read a statutory text literally, without

regard to its purpose and context. In particular, we are not precluded from
studying the legislative history of the statute as part of the task of
determining the legislative purpose or goal underlying the law. Morris v.
Prince George's County, 319 Md. 597, 604, 573 A.2d 1346 (1990). We
may also take note of any longstanding administrative construction of a
statute and its predecessor statutes by the agency charged with
administering them. That construction is entitled to deference, and
legislative acquiescence in a longstanding administrative construction
"gives rise to a strong presumption that the interpretation is correct."
319 Md. at 613 (quoting Sinai Hosp. v. Dep't of Employment, 309 Md.
28, 46, 522 A.2d 382 (1987)). See also, e.g., Maryland Pennysaver
Group, Inc. v. Comptroller, 323 Md. 697, 707, 594 A.2d 1142 (1991).
"In a like vein," the Court has written, "the consistent construction by an
administrative agency responsible for administering a statute, particularly
where the administrative interpretation has been made known to the
legislature in various annual reports of the agency ... is entitled to
considerable weight." Falik v. Prince George's Hosp., 322 Md. 409, 416,
588 A.2d 324 (1991). Furthermore, the Legislature is presumed to have
acted with full knowledge and information as to prior and existing law on
the subject of the statute and policy of the prior law. Maryland Classified
Employees v. Schaefer, 325 Md. 19, 34, 599 A.2d 91 (1991) (quoting
Board of Educ. v. Lendo, 295 Md. 55, 63, 453 A.2d 1185 (1982)).

   Prior to 1957, Article 64A, former §32 (the predecessor statute to

§37) established a formula for the rate of earning of vacation leave by
classified employees based on years of service. However, Chapter 485 of
the Laws of Maryland 1957 amended the statute to define "years of service
... [to] include any previous State service in excess of one year as an
unclassified employee." Shortly thereafter, Commissioner of Personnel
Davis received correspondence from the Maryland Port Authority to the
effect that he had no authority with respect to the accrual of vacation leave
credits by unclassified employees of the Port. In a letter dated May 14,
1958 to the Executive Director of the Port, Commissioner Davis
responded as follows:

        It is our understanding, that Ch. 377, Acts of 1957
        exempted key personnel from the jurisdiction of the
        Standard Salary Board and from the Merit System
        regarding appointment and separation; however, it
        appears any application for the granting of annual or
        sick leave, would be the same as that applying to all
        other State employees. By action of the Board of
        Public Works, it was established that leave with pay
        provisions could be applied to Unclassified employees,
        and in conformity therewith, the current Merit System
        Rule 1 was established, viz. "***the Merit System
        Rules shall to the extent permitted by law also apply to
        unclassified positions with the exception of
        appointment and discharge****". Further Ch. 485,
        Acts of 1957 excluded the first year of service for
        Unclassified employees; however, knowing the intent
        was to cover certain hourly paid employees, we have
        ignored the limitation of excluding the first year of
        service for annual paid employees, and intend to have
        such section (37) of Article 64A, 1957 amended by the
        next legislative session.

Commissioner Davis evidently was of the view that he had authority to
promulgate vacation and sick leave rules with respect to unclassified as
well as classified employees. Further, he viewed Chapter 485 of the Laws
of Maryland 1957 as having been intended to extend benefits to certain
hourly paid employees and therefore felt free to ignore the limitation that
years of service did not include the first year of service as an unclassified
employee.14

   In 1966 the General Assembly amended the leave statute, now

Article 64A, §37, to redefine the term "years of service." In Chapter 659
of the Laws of Maryland 1966, the term "years of service" was redefined
to "include any previous State service." The former language, "in excess
of one year as an unclassified employee," was deleted. The Commissioner
of Personnel summarized this bill as having "eliminated the requirement
that the first year of service as an unclassified employee does not count
toward the earning of leave credits." Forty-Eighth Annual Report of the
Commissioner of Personnel 35-36 (1968). Thus, in the view of the
Commissioner, the purpose of Chapter 659 was not to restrict the earning
of leave by unclassified employees. Rather, the effect was to liberalize the
law so that unclassified employees no longer had to wait until the end of
their first year to earn leave credits. In other words, the legislative intent
was to eliminate the distinction between classified and unclassified
employees with respect to earning annual leave.

  Seven years later, the Legislature enacted Chapter 660 of the Laws

of Maryland 1973, creating a new §37A of Article 64A. Section 37A
provided as follows:

          Notwithstanding any other provisions of any law to
      the contrary, the Secretary shall promulgate rules and
      regulations for all persons paid by the State except
      employees of the offices of clerks of the court and
      registers of wills, whether or not in the classified
      service, including but not limited to, all appointed
      officials and employees, all key employees and
      officials, all employees or officials holding totally or
      partially federally funded positions, all attorneys in the
      State Law Department, all hourly-paid employees, all
      employees and officials specifically exempted from the
      classified service by any statute, all employees and
      officials exempted under §3 of this Article, all persons
      employed        or    appointed,     whether      faculty,
      administrative, clerical or any other form of
      employment at all State educational institutions,
      including but not limited to, all State colleges, and the
      University of Maryland, concerning all aspects of
      annual leave, compensatory time, the keeping of time
      records, and the filling of any one full-time position by
      two or more part-time employees.

   In an unpublished opinion the next year, Attorney General Burch

advised the Secretary of Personnel that unclassified employees were
entitled to earn sick leave. Opinion No. 74-121 (June 19, 1974)
(unpublished). The Attorney General based that conclusion on the
Department of Personnel's longstanding practice of construing §37 and its
implementing rule, COMAR 06.01.42C, as applying to all employees,
classified and unclassified, except employees appointed by the Governor
or with the Governor's concurrence. The Attorney General also based his
conclusion on the fact that the Legislature had tacitly approved the
Department's construction of §37 by its longstanding acquiescence.

   Legislative affirmation of the scope of the Secretary's leave policies

was further evidenced by a 1975 change in §37A. The law, as originally
enacted, was silent on the question of sick leave and personal leave.
Consequently, the Department of Personnel sponsored Senate Bill 253 in
the 1975 Session in order to include sick leave and personal leave within
the Secretary of Personnel's rulemaking authority. Senate Bill 253 also
clarified §37A by substituting the term "all State employees, classified or
unclassified, and appointed officials" for the more general term "persons
paid by the State." Senate Bill 253 was enacted as Chapter 302 of the
Laws of Maryland 1975. As we view it, §37A establishes the contours of
the Secretary's authority over employee leave, listing those employees
whose leave the Secretary has jurisdiction to regulate.

   The Department's interpretation of §37, that unclassified employees

were entitled to earn annual leave, was tacitly approved again in 1976
through passage of Chapter 651 (House Bill 351) of the Laws of Maryland
1976. Chapter 651 amended §37(b) to permit unclassified employees and
appointed officials to be compensated for earned and unused annual leave
upon separation from State service. Previously, only classified employees
received compensation at the time of separation.15 The minutes of the
House Committee on Appropriations indicate that Francis X. O'Brien of
the Department of Personnel (later to become Secretary of Personnel)
testified that House Bill 351 "would bring the law to conform with the
rules already adopted by the Secretary of Personnel." By enacting Chapter
651, the General Assembly recognized that unclassified employees had the
right to earn annual leave; otherwise this law, providing compensation for
unused annual leave upon separation from State service, would make no
sense.

  This lengthy history supports our view that Article 64A, §37 gives

unclassified employees the right to earn annual and sick leave.16

C. Accident Leave

  You have also asked whether unclassified employees are entitled to

accident leave. We conclude that they are. Section 37(g)(1) states that an
employee who is accidentally injured in the actual performance of his or
her job duties and receives a personal injury that would be compensable
under the Workers' Compensation Law "shall be granted accident leave
with full sick pay." See generally 77 Opinions of the Attorney General
207 (1992). See generally Falik v. Prince George's Hosp., 322 Md. at
415-16.

   As is true of sick leave, the Secretary of Personnel's longstanding

construction of this aspect of §37 is that all employees, classified and
unclassified, are entitled to this form of leave. See COMAR 06.01.11.09.
Recent changes to the accident leave provisions did not disturb this
construction and therefore imply legislative acquiescence. See Chapter 21
of the Laws of Maryland 1991.

D. Personal Leave

   Section 37(a)(5) states that "[e]very employee shall be entitled to

personal leave with pay for not in excess of three days in any calendar year
...." Personal leave was added to §37 by Chapter 581 of the Laws of
Maryland 1971. Immediately after the passage of Chapter 581, the
Secretary of Personnel adopted Rule 42E.3, which provided in part that
"[e]mployees shall be entitled to three days personal leave in any calendar
year." See Letter of William Smearman, Director, Administrative Division,
to the Court of Appeals (announcing amendments to Rule 42, effective
July 1, 1971). As we have previously noted, Rule 1 of the State Employees
Personnel Rules provides that, for the purposes of the Secretary of
Personnel's rules and regulations, "The State Employees Personnel Rules
shall to the extent permitted by the law also apply to unclassified positions
with the exception of appointment and discharge." Therefore, it appears
that the Department of Personnel has always viewed personal leave as
applying to both classified and unclassified employees.

   Given this longstanding administrative practice, which has never

been disturbed by the Legislature, we conclude that every employee subject
to the Secretary of Personnel's authority, classified or unclassified, is
entitled to personal leave with pay pursuant to Article 64A, §37(a)(5).

                                  V

                              Holidays

  Article 89, §28 provides that "[e]very State employee is entitled to

observe with pay" certain legal holidays. Section 28 is a recodification of
former Article 100, §77, which originally was enacted as part of Chapter
130 of the Laws of Maryland 1956.

   Chapter 130 dealt with three related subjects. First, it established the

number of days of annual leave every classified employee was entitled to
receive, amending §32 of the Merit System Law. Second, it amended
Article 100, §76 to establish criteria for awarding overtime compensation
to different categories of State employees. See Maryland Classified
Employees Assoc. v. Schaefer, 325 Md. at 31. It also amended §76 to give
the Secretary of Personnel the power to approve the designation of
supervisory employees who were not eligible for overtime compensation
and the power to adopt regulations to prevent an abuse of that section.
See Part VII below. Third, it enacted a new §77 to Article 100 to provide
that "every State employee" was entitled to observe with pay certain legal
holidays.

   While Article 89, §28 does not explain what it means by "every State

employee," we believe that the statute does apply to every State employee,
including employees in the unclassified service, employees in independent
personnel systems, and employees in all three branches of government. We
think it significant that the section was not enacted within the framework
of the Merit System Law but instead was placed in Article 100. This
choice had the effect of avoiding any confusion over what was meant by
the term "every State employee." Article 64A, §1 at the time defined the
term "employee" to mean "classified service employee" when those terms
were used in Article 64A. However, that definition would not apply to
Article 100. Furthermore, the General Assembly's use of the term "every
State employee" demonstrates that the General Assembly was not limiting
the statute to employees in any particular category of public service -
classified, unclassified, or independent - but rather wanted the statute to
apply to all categories of employees of the State.

  Thus, we conclude, Article 89, §28 applies to all State employees.


                                 VI

              Denial of Promotion Opportunities
              Because of Sick or Maternity Leave

  Article 89, §29 provides:

           No State employee shall be denied the opportunity
      to seek, to qualify for and to be awarded any
      promotion in State government service solely on the
      ground that the employee is currently on sick leave or
      maternity leave if that employee is expected to return
      to active State service within sixty days after
      notification of the availability of the promotional
      opportunity. Notification shall have been given when
      the job-seeker receives a request that the employee call
      for an interview for the position.

Section 29 was enacted as Chapter 698 of the Laws of Maryland 1974.

   For reasons similar to those which lead us to conclude that the

holiday leave statute applies to all categories of employees in State service,
we conclude that §29 likewise applies to all categories of employees in
State service. Article 89, §29 was not placed in the Merit System Law and
therefore was evidently intended to have a broad application. Moreover,
the statute speaks in terms of State employees generally and therefore was
intended to extend beyond employees of any particular personnel system.
Accordingly, the protection of promotional opportunities for persons on
sick or maternity leave found in Article 89, §29 applies to all State
employees throughout State service.

                                 VII

                              Overtime

  Article 89, §27(c) provides as follows:

            The Secretary of Personnel is authorized and
        empowered to designate those bona fide
        administrative, executive, and professional employees
        who shall not be eligible to receive overtime
        compensation but who may be compensated by
        compensatory time. The Secretary of Personnel is
        authorized and empowered to adopt and promulgate
        reasonable regulations to prevent an abuse of this
        section by the granting of unnecessary and
        unwarranted overtime or by the failure to grant
        overtime compensation when the employee is eligible
        to receive it under the provisions of this section.

As we have previously discussed, this provision was enacted originally as
part of Chapter 130 of the Laws of Maryland 1956, which amended former
Article 100, §76. The principal substantive difference between Chapter
130 and Article 89, §27(c) today is that the provision as originally enacted
limited the Secretary's rulemaking authority to the prevention of the
granting of unnecessary and unwarranted overtime. By Chapter 31 of the
Laws of Maryland 1958, the Secretary also gained the authority to prevent
an abuse of the law by "the failure to grant overtime compensation when
the employee is eligible to receive it ..."

  You have asked whether the Secretary's authority under §27 extends

to the judicial and legislative branches. We conclude that §27 gives the
Secretary authority over all employees in all three branches of government,
with the exception of employees of the Comptroller's Alcohol and
Tobacco Tax Enforcement Unit, who are expressly excluded in the statute.
See Article 89, §27(d).

   In 53 Opinions of the Attorney General 241 (1968), Attorney

General Burch considered a somewhat similar question from the
Commissioner of Personnel. The Commissioner advised that it was the
practice of his office to determine the eligibility for overtime payments only
for those positions that were within the jurisdiction of the Standard Salary
Board. The Attorney General disagreed with the Commissioner's
interpretation, concluding that his authority to approve exemptions from
overtime and to promulgate rules and regulations to guide department
heads in determining whether an eligible employee was entitled to overtime
was broader than the jurisdiction of the Standard Salary Board. 53
Opinions of the Attorney General at 242. The only exceptions were
employees who were expressly exempted under the statute. 53 Opinions
of the Attorney General at 242-43.

The significance of that earlier opinion lies in its conclusion that the

Commissioner's authority to regulate in the area of overtime extended
beyond classified and unclassified employees. At the time of the 1968
opinion, the Salary Board had jurisdiction to prepare a pay plan "for all
classes of positions in both the classified and unclassified service." Article
64A, §27(a) (1968 Repl. Vol.). Therefore, Attorney General Burch
necessarily concluded that the Commissioner's overtime authority
extended even to employees who were in independent personnel systems

• that is, who were in neither the classified nor the unclassified services.

  The overtime statute has not been amended subsequently in a way
  that would call into question this conclusion. Nor do we read any of the
  statutes authorizing various units of the judicial and legislative branches to
  establish independent personnel systems as depriving the Secretary of her
  overtime authority. While we recognize that several statutes give various
  units of the judiciary and the Legislature independent personnel authority,
  none of those general statutes specifically discusses the ability of those
  independent systems to regulate in the area of overtime. When the General
  Assembly has enacted both a specific and a general statute and the general
  statute includes the same subject matter as the more specific, the general
  statute governs only those provisions that do not fall within the provisions
  of the specific statute. See Lumberman's Mut. Casualty v. Ins. Comm'r,
  302 Md. 248, 268-69, 487 A.2d 271 (1985) (citing earlier authority).

  Article 89, §27 is such a specific statute, and in our view it prevails
  over other legislation that only generally authorizes creation of independent
  personnel authorities. Furthermore, the Legislature must be presumed to
  have been aware of the construction given the overtime statute by the 1968
  Attorney General's opinion. Crest Investment v. Cohen, 245 Md. 639,
  648, 227 A.2d 8 (1967). Therefore, when the General Assembly has
  enacted legislation creating independent personnel systems, it has been
  aware of the opinion's conclusion that the only employees who did not fall
  under the Secretary's overtime jurisdiction were those specifically named
  in the statute. Thus, the Secretary's authority to determine eligibility for
  overtime and to adopt regulations applies to all State employees except
  those specifically excluded in Article 89, §27.

  We realize that our conclusion runs counter to the prevailing
  practices of units in the judicial and legislative branches. We also realize
  that the Department of Personnel has long acquiesced in independent
  personnel systems' making their own determinations as to which
  employees are entitled to overtime. Nevertheless, while we recognize that
  certain customs and understandings may have developed, those customs,
  however venerable, must now conform to Article 89, §27. See Maryland
  Classified Employees v. Schaefer, 325 Md. at 33.

  We do not view the Secretary of Personnel's authority as unlimited,
  however. She cannot exercise her authority to determine which employees
  are eligible to receive overtime in such a way as to interfere with the core
  functions of the judicial or legislative branches.

  In 62 Opinions of the Attorney General 674, 678 (1977), Attorney
  General Burch concluded that positions in the Administrative Office of the
  Courts and in the appellate courts were not under the Secretary's salary-
  setting authority, because the inclusion of such positions in the pay plan
  would be violative of the separation of powers doctrine in Article 8 of the
  Maryland Declaration of Rights.17 However, in 65 Opinions of the
  Attorney General 309 (1980), Attorney General Sachs significantly
  narrowed that conclusion. According to the later opinion, the doctrine of
  separation of powers did not require that the judiciary be given exclusive
  control over its personnel system. Rather, the General Assembly could
  establish a personnel system "governing matters [such] as the hiring,
  compensation, promotion, or discipline of employees in the Judicial
  Branch, whether those employees are compensated by the State or the
  subdivisions, so long as the courts can still exercise their judicial powers
  effectively." 65 Opinions of the Attorney General 309. The 1980 opinion
  distinguished the earlier opinion by pointing out that the focus of the earlier
  opinion was on intrusion by the executive into the judiciary, whereas the
  focus of the later opinion was the plenary authority of the General
  Assembly to enact authorizing legislation. 65 Opinions of the Attorney
  General at 314-15 n.2.

  As we see it, the analysis is the same whether the focus is on a
  legislative intrusion into the judiciary's authority through the legislature's
  enactment of a statute or an executive intrusion into the judiciary's
  authority through adoption of a regulation promulgated pursuant to a
  delegation of legislative power. See Department of Transportation v.
  Armacost, 311 Md. 64, 72, 532 A.2d 1056 (1987). The separation of
  powers doctrine imposes the same limits on the Legislature in enacting a
  statute and an executive agency in adopting a rule: Neither a statute nor
  a rule may intrude upon the core functions of another branch. See 73
  Opinions of the Attorney General 92 (1988).

  In general, the authority to determine overtime eligibility is
  distinguishable from the authority to establish a position's salary, because
  salary-setting authority is a direct exercise of control over the budget. A
  statute may not effectively give the executive branch the power to revise
  the budget of the legislative or judicial branches. See Article III, §52(11)
  of the Constitution. A determination of overtime eligibility only has an
  indirect effect, however, and the employer retains the authority to control
  the employee's work hours so that the employee does not exceed 40 hours
  per week and does not earn overtime. Hence, in our view, the Secretary
  of Personnel may exercise the authority given her by Article 89, §27 over
  all employees in State government except those expressly excluded in that
  statute, provided that any particular exercise of that authority does not
  intrude into the core functions of the legislative and judicial branches.

  Our legal conclusion should not be taken for a policy endorsement.
  Ultimately the General Assembly should consider whether the preferable
  policy might be to integrate the decision of which employees should
  receive overtime with the decision of what the proper rates of pay should
  be. Furthermore, recent federal court decisions in the area of overtime
  eligibility under the federal Fair Labor Standards Act point to the
  importance of controlling the use of unpaid leave by employees exempt
  from overtime. See Abshire v. County of Kern, 908 F.2d 483 (9th Cir.
  1990), cert. denied, 111 S.Ct. 785 (1991). These policy considerations
  suggest that the decision about who should receive overtime compensation
  should be made by the same official who has control over leave policies.
  Therefore, the General Assembly should be asked to consider giving the
  heads of the various salary-setting authorities and personnel systems the
  authority to determine which employees are eligible to receive overtime
  compensation and which are not.

  Finally, we point out that Article IV, §18(a) of the Constitution of
  Maryland authorizes the Court of Appeals to adopt rules and regulations
  concerning the administration of the courts. These rules have the force of
  law until they are rescinded, changed, or modified by the Court of Appeals
  or otherwise by law. Therefore, the Court of Appeals has the authority to
  adopt its own overtime compensation procedures by court rule for judicial
  employees, despite the fact that Article 89, §27 now gives that authority
  to the Secretary of Personnel, and the court rule would prevail until
  modified by the Court or by act of the Legislature. See County Fed. Sav.
  & Loan Ass'n. v. Equitable Savings and Loan Ass'n., 261 Md. 246, 274
  A.2d 363 (1971).

                             VIII
  
                         Conclusion
  

  In summary, it is our opinion that:

  1. Article 64A, §§12A through 12E, which establish an equal
     employment opportunity program under the auspices of the Secretary of
     Personnel, apply to classified service employees in the executive branch
     only.

  2. Article 64A, §§12F through 12K, which establish a
     whistleblower protection program, do not apply to applicants for
     unclassified employment, but do apply to classified service employees,
     unclassified service employees, and applicants for classified service
     employment in the executive branch.

  3. The provisions of Article 64A, §37, which relate to employee
     annual, sick, personal, and accident leave, apply to all classified and
     unclassified employees over whom the Secretary of Personnel exercises
     leave authority.

  4. Article 89, §§28 and 29, which provide State holidays and
     protect against the denial of promotional opportunity caused by use of sick
     or maternity leave, apply to all State employees in all three branches of
     government.

  5. Under Article 89, §27(c) the Secretary of Personnel may regulate
     the payment of overtime compensation for all State employees in all three
     branches of government, subject to constitutional limits on the manner in
     which she may exercise that authority with respect to employees in the
     legislative and judicial branches.

                                    J. Joseph Curran, Jr.
                                    Attorney General
     
                                    David R. Durfee, Jr.
                                    Assistant Attorney General
     
                                    Jack Schwartz
                                    Chief Counsel
                                     Opinions and Advice
     

Editor's Note:

   Following extensive recodification, the provisions on equal

employment opportunity may be found in Title 5, Subtitle 2 of the State
Personnel and Pensions ("SPP") Article; the whistleblower law, in SPP
Title 5, Subtitle 3; the provisions on annual, personal, sick, and accident
leave, in SPP Title 9, Subtitle 3, 4, 5, and 7, respectively; the provisions on
State holidays, SPP Title 9, Subtitle 2; the protection of promotional
opportunities for those who use sick or maternity leave, SPP §2-303(c);
and the provisions on overtime compensation, SPP Title 8, Subtitle 3.

1
Article 64A, §17 pertains to the creation of eligible lists for filling
vacant positions and the selection process from the lists. Section 18 pertains to the
form and character of examinations and special preference points awarded to some
applicants, like veterans, in order to raise their examination scores.

2
Historically, classified service employees also have been referred to as
merit system employees. See Ahlgren v. Cromwell, 179 Md. 243, 248, 17 A.2d
134 (1941). See also 63 Opinions of the Attorney General 524, 525 (1978); 24
Opinions of the Attorney General 547, 548-50 (1939).

3
Although it may seem counterintuitive, positions in the unclassified
service nevertheless are placed in "classifications" or "classes" for the purpose of
determining their proper pay grade. See Article 64A, §§1(4) and 27.

4
In the legislative session just ended, the General Assembly created a
separate personnel system, which it called a "human resources management
system," for the Department of Transportation. Chapter 168 (House Bill 610),
Laws of Maryland 1992.

5
The Merit System Law also authorizes the employment of another
category of employee under the general control of the Secretary: the contractual
employee. A contractual employee is defined as "a person with whom the State has
an employer-employee relationship but whose employment is not dependent on a
budgeted position." Article 64A, §1(7). The law elsewhere requires that there be
a written agreement between the contractual employee and the State, specifying the
services and remuneration to be provided, and that the person "not [be] employed
as a classified, unclassified, or temporary extra employee." Article 64A,
§15A(a)(2). The employment of a contractual employee is generally authorized
only under certain limited circumstances. See §15A(b)(l).

6
See note 2 above.

7
Although the statutes say that employees of the Department of Fiscal
Services and Department of Legislative Reference are "unclassified," it seems to us
that the employees should more properly be considered "independent." When the
General Assembly grants an agency plenary authority to establish its own personnel
system, the provisions of Article 64A that give the Secretary of Personnel authority
over "unclassified" employees do not give her authority over employees in those
separate personnel enclaves. When the General Assembly has wanted to extend the
Secretary's authority over employees in independent personnel systems, it has done
so clearly and directly. See Article 64A, §37A (giving Secretary authority over
University of Maryland employees with respect to leave). Unfortunately, the reality
of the administration of public service in this State has advanced beyond the
terminology used in the statutes. There is no adequate definition in the Merit
System Law or elsewhere for employees in public service who are neither
unclassified nor classified.

8
CJ §2-5A-02 establishes an independent personnel merit system for the
Office of the Clerk of the Circuit Court for Baltimore City.

9
The practices about which the law safeguards disclosures are these:
(i) A violation of any law, rule, or regulation;
(ii) Gross mismanagement, gross waste of funds, or
abuse of authority; or
(iii) A substantial and specific danger to public health or
safety.
§12G(a)(l).

10
The General Assembly amended Article 64A, §53 to permit some
unclassified employees to file grievances. See 62 Opinions of the Attorney General
686 (1977).

11
The 1988 amendments to the Whistleblower Law stemmed from two
incidents involving executive branch employees. No changes were made that would
indicate an intent to extend the reach of the law to other branches.

12
We also conclude that the Whistleblower Law does not extend to
employees in the executive branch who work for independent personnel systems,
such as the University of Maryland System, the Maryland Transportation Authority,
the Mass Transit Administration, or the Maryland Wholesale Food Center. See 73
Opinions of the Attorney General 285 (1988). If the General Assembly creates an
independent personnel system in the executive branch, the employees within that
system fall wholly outside the provisions of the Merit System Law, unless there is
a clear indication of legislative intent otherwise.

13
The chapter of the regulations dealing with paid leave, COMAR
06.01.11, became effective December 9, 1991. Regulation .01A states that "[t]his
regulation applies to all employees and appointed officials except employees of the
offices of the clerks of the circuit courts and registers of wills." This provision
formerly was found in the preface to COMAR 06.01.01.42 and can be traced back
to 1976. See 6:17 Md. Reg. 1392 (May 12, 1976). Additionally, the introductory
provision to the chapter that until 1991 included leave regulations, COMAR
06.01.01.01A, provides as follows: "The regulations of this chapter, to the extent
permitted by law, apply to classified positions, with the exceptions of appointment
and discharge." That provision can be traced back to Rule 1 of the Commissioner
of Personnel's State Employees Personnel Rules as it existed in the late 1950's.

14
The dispute between the Commission of Personnel and the Port
Authority was directed to the Attorney General. In 43 Opinions of the Attorney
General 237 (1958), Attorney General Sybert concluded that unclassified
employees of the Port Authority were subject to Rule 42 of the Merit System rules,
which prescribed the conditions of vacation and sick leave.

15
In 58 Opinions of the Attorney General 506, 510-11 (1973), this office
concluded that under Article 64A, §37(b) an employee had to be compensated for
earned and unused annual leave at the time of termination of service as a classified
employee. In Opinion 75-079 (June 17, 1975) (unpublished), this office further
concluded that unclassified employees were entitled to be compensated for earned
and unused annual leave at the end of their unclassified service pursuant to Rule 42
of the Merit System Rules. Consequently, a State employee who left the classified
service for the unclassified service would be compensated twice for unused annual
leave: once at the end of classified service employment and again at the end of
unclassified service employment.

16
We acknowledge our office's prior opinions on this subject might have
contributed to the present confusion over the meaning of the statute. In 58
Opinions of the Attorney General 69 (1973), Attorney General Burch addressed
the question whether Clerks and deputy clerks (with the exception of those in
Washington County) were subject to the State vacation and sick leave plan set forth
in Article 64A, §37. The opinion concluded that because Clerks and deputy clerks
were excluded from the merit system, the State vacation and sick leave plan was
inapplicable.
The reasoning in that opinion is faulty, at least by contemporary principles
of statutory construction, because it reflects too rigid an application of the plain
meaning rule and too little attention to the true legislative purpose underlying §37.
Moreover, 58 Opinions of the Attorney General 69 (1973) is inconsistent with 43
Opinions of the Attorney General 237 (1958), in which Attorney General Sybert
concluded that unclassified employees were subject to the State vacation and sick
leave plan.

17
The opinion based its conclusion not only on Article 8 of the Declaration
of Rights but also on Article III, §§52(11) and (12) of the Constitution, which deny
the Governor any revisory power over the budgetary estimates submitted to him by
the legislative and judicial branches. 62 Opinions of the Attorney General at 678.