In this title, “employee” includes a former State employee.

This subtitle applies to all employees in the State Personnel Management System within the Executive Branch except temporary employees.

Except as otherwise provided, the appointing authority has the burden of proof by a preponderance of the evidence in any proceeding under this subtitle. The head of a principal unit, the Secretary, and the Office of Administrative Hearings shall apply that standard of proof in appeals under this subtitle. After taking a disciplinary action against an employee, an appointing authority may not impose an additional disciplinary action against that employee for the same conduct unless additional information is made known to the appointing authority after the disciplinary action was taken. The suspension of an employee who is exempt from the overtime pay requirements of the Fair Labor Standards Act, and under any changes to the Fair Labor Standards Act, shall be done so that the employee’s overtime exemption will not be lost. An employee may choose any person to assist or represent the employee during an appeal under this subtitle and shall notify the employer of that choice. All written appeal documents and all decisions rendered under this subtitle may be transmitted electronically to the appropriate parties.

An appointing authority may take the following disciplinary actions against any employee: give the employee a written reprimand; direct the forfeiture of up to 15 work days of the employee’s accrued annual leave; suspend the employee without pay; deny the employee an annual pay increase; demote the employee to a lower pay grade; or with prior approval of the head of the principal unit: terminate the employee’s employment, without prejudice; or if the appointing authority finds that the employee’s actions are egregious to the extent that the employee does not merit employment in any capacity with the State, terminate the employee’s employment, with prejudice.

The following actions are causes for automatic termination of employment: intentional conduct, without justification, that: seriously injures another person; causes substantial damage to property; or seriously threatens the safety of the workplace; theft of State property of a value greater than $300; illegal sale, use, or possession of drugs on the job; conviction of a controlled dangerous substance offense by an employee in a designated sensitive classification; conviction of a felony; accepting for personal use any fee, gift, or other valuable thing in connection with or during the course of State employment if given to the employee by any person with the hope or expectation of receiving a favor or better treatment than that accorded to other persons; violation of the Fair Election Practices Act; or using, threatening, or attempting to use political influence or the influence of any State employee or officer in securing promotion, transfer, leave of absence, or increased pay; wantonly careless conduct or unwarrantable excessive force in the treatment or care of an individual who is a client, patient, prisoner, or any other individual who is in the care or custody of this State; and violation of § 3–314 of the Criminal Law Article.

Before taking any disciplinary action related to employee misconduct, an appointing authority shall: investigate the alleged misconduct; meet with the employee; consider any mitigating circumstances; determine the appropriate disciplinary action, if any, to be imposed; and give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights. Except as provided in subsection (c) of this section, an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed. An appointing authority may suspend an employee without pay no later than 5 workdays following the close of the employee's next shift after the appointing authority acquires knowledge of the misconduct for which the suspension is imposed. Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection.

Issuing a counseling memorandum is an instructional communication and is not a disciplinary action within the meaning of this subtitle. Within 5 days after receiving a counseling memorandum, an employee may submit to the employee's appointing authority a written response to the memorandum. The response shall be placed in the employee's file and attached to any record of the memorandum. An employee may not take any other action in response to a counseling memorandum. Placing an employee on leave without pay when the employee is absent without approval is not a disciplinary action within the meaning of this subtitle. An employee who is placed on leave without pay for an unapproved absence also may be subject to disciplinary action for the unapproved absence. Requiring an employee to make restitution to the State for loss or damage to State property due to the employee's negligence is not a disciplinary action within the meaning of this subtitle. An appointing authority may not require an employee to pay restitution exceeding 3% of the employee's annual base pay. An employee who is ordered to make restitution under this subsection also may be subject to civil prosecution or criminal prosecution for wanton destruction of property under the State law.

This subtitle does not preclude an appointing authority and an employee from agreeing to the: holding in abeyance of a disciplinary action for a period not to exceed 18 months in order to permit an employee to improve conduct or performance; or imposition of a lesser disciplinary action as a final and binding action, not subject to any further review. If an employee fails to appeal a decision in accordance with this subtitle, the employee is considered to have accepted the decision. A failure to decide an appeal in accordance with this subtitle is considered a denial from which an appeal may be made. The parties may agree to waive or extend any time stated in this subtitle. Each party shall make every effort to resolve an appeal at the lowest level possible.

Except as provided in paragraph (2) of this subsection, this section applies only to employees in the skilled service or the professional service. This section does not apply to an employee under a special appointment described in § 6-405 of this article. Except as provided in paragraph (3) of this subsection, an employee in the skilled service or the professional service may appeal a disciplinary action taken while the employee is on probation only on the basis that the action was illegal or unconstitutional. The employee has the burden of proof in an appeal under this subsection. The limitations in paragraphs (1) and (2) of this subsection do not apply to an employee in the skilled service or the professional service who is on probation following a promotion or reinstatement. An employee or an employee’s representative may file with the head of the principal unit a written appeal of a disciplinary action that states, to the extent possible, the issues of fact and law that the employee believes would warrant rescinding the disciplinary action. An appeal under this subtitle must be filed within 15 days after the employee receives notice of the appointing authority’s action. The head of the principal unit may confer with the employee before making a decision. The head of the principal unit may: uphold the disciplinary action; or rescind or modify the disciplinary action taken and restore to the employee any lost time, compensation, status, or benefits. Within 15 days after receiving an appeal, the head of the principal unit shall issue to the employee a written decision that addresses each point raised in the appeal. Within 15 days after issuance of a decision to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records.

Within 10 days after receiving a decision under § 11–109 of this subtitle, an employee or an employee’s representative may appeal the decision in writing to the Secretary. An appeal shall state, to the extent possible, the issues of fact and law that are the basis for the appeal. Within 30 days after receiving an appeal, the Secretary or designee shall: mediate a settlement between the employee and the unit; or refer the appeal to the Office of Administrative Hearings; and advise the employee in writing of the Secretary’s action. Within 30 days after receiving the appeal, the Office of Administrative Hearings shall schedule a hearing and notify the parties of the hearing date. The Office of Administrative Hearings shall dispose of the appeal or conduct a hearing on each appeal in accordance with Title 10, Subtitle 2 of the State Government Article. The Office is bound by any regulation, declaratory ruling, prior adjudication, or other settled, preexisting policy, to the same extent as the Department is or would have been bound if it were hearing the case. Except as otherwise provided by this subtitle, the Office of Administrative Hearings may: uphold the disciplinary action; rescind or modify the disciplinary action taken and restore to the employee any lost time, compensation, status, or benefits; or order: reinstatement to the position that the employee held at dismissal; full back pay and benefits; or both 1 and 2. Within 45 days after the close of the hearing record, the Office of Administrative Hearings shall issue to the parties a written decision. The decision of the Office of Administrative Hearings is the final administrative decision. The principal unit that employs the employee shall pay all costs related to the appeal that are incurred by the Office of Administrative Hearings. If a written decision issued under subsection (d) of this section is not appealed in accordance with § 10–222 of the State Government Article, within 45 days after issuance of a decision to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records. If a written decision issued under subsection (d) of this section is appealed in accordance with § 10–222 of the State Government Article, within 45 days after the issuance of a final decision on appeal to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records.

The Secretary, by regulation, shall establish policies and procedures for disciplinary actions related to employee performance, that include procedures for: providing counseling to an employee with deficiencies in performance; allowing an employee the opportunity to improve deficiencies in performance; imposing disciplinary actions, if warranted; and providing notice to an employee of any disciplinary action and the employee’s appeal rights.

If the principal unit has established a peer review panel for disciplinary actions in accordance with regulations adopted by the Secretary, the employee and the principal unit may agree in writing to submit the appeal to the peer review panel, instead of using the appeal procedures in §§ 11–109 and 11–110 of this subtitle. The peer review panel may take action as set forth in § 11–110(d)(1) of this subtitle. Within the time required by regulation, the peer review panel shall issue to the parties a written decision. The decision of the peer review panel is the final administrative decision. If a written decision issued under subsection (c) of this section is not appealed in accordance with § 10–222 of the State Government Article, within 45 days after issuance of a decision to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records. If a written decision issued under subsection (c) of this section is appealed in accordance with § 10–222 of the State Government Article, within 45 days after the issuance of a final decision on appeal to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records.

This section applies only to an employee: in the management service; in executive service; or under a special appointment described in § 6–405 of this article. An employee or an employee’s representative may file a written appeal of a disciplinary action with the head of the principal unit. An appeal: must be filed within 15 days after the employee receives notice of the disciplinary action; and may only be based on the grounds that the disciplinary action is illegal or unconstitutional. The employee has the burden of proof in an appeal under this section. The head of the principal unit may confer with the employee before making a decision. The head of the principal unit may: uphold the disciplinary action; or rescind or modify the disciplinary action and restore to the employee any lost time, compensation, status, or benefits. Within 15 days after receiving an appeal, the head of the principal unit shall issue the employee a written decision. The decision of the head of the principal unit is the final administrative decision. Within 15 days after issuance of a decision to rescind a disciplinary action, the disciplinary action shall be expunged from the employee’s personnel records.