Legality of state firings challenged by workers Choice of words called into question

October 04, 1991|By Sandy Banisky

Two recent legal rulings undermine Gov. William Donald Schaefer's firings of 1,766 state employees this week, a lawyer who has represented fired state employees said yesterday.

Mr. Schaefer's careful decision to call this week's firings "terminations" instead of "layoffs" does not alter an employee's right to be given 90 days' notice, to displace less senior workers and to be recalled if a new state job should become vacant, Stephen B. Awalt, who has argued cases involving members of the Maryland Classified Employees Association, said.

But the Maryland attorney general's office maintained that the law allows the state to fire workers without layoff protections if their jobs are abolished for lack of money.

"We think it not only is legally sound, but in a time when the money is simply not there, it makes policy sense," said Jack Schwartz, theattorney general's chief counsel for opinions.

Both sides concede the debate over the firings, prompted by Maryland's $450 million budget deficit, ultimately will be settled in court.

The distinction between a layoff and a termination makes a big financial difference to the Schaefer administration.

State officials estimate that the the governor can save $25 million to $30 million by terminating employees rather than laying them off.

Workers fired this week were given 30 days' notice, to Nov. 1. Under the state layoff statute, the notification period would have been a minimum of 90 days.

If the workers were deemed "laid off," they could bump less senior workers from their jobs. That could allow a worker from a state office on the Eastern Shore to displace an employee in Baltimore -- an unwieldy domino effect for state personnel.

Difficult as that bumping process may be, Mr. Awalt maintains that any firing approved Wednesday by the Board of Public Works is "a layoff for the purposes of Maryland law."

To bolster his argument, he cited decisions in two recent personnelcases, both filed earlier this year by fired state workers. In both cases, administrative law judges ruled that workers let go because their jobs were abolished for lack of funds are covered by the state's layoff law.

"It doesn't matter what you call it," said Mr. Awalt, who has been receiving calls from fired state workers.

"A layoff by any name is a layoff, and rights attach. The statute does not make exceptions for the things [the attorney general's office] is talking about."

In one case, two inspectors for the state Department of Agriculture filed a grievance over their firing last January when the governor and the Board of Public Works abolished the department's meat and poultry inspection program.

"The governor exercised his authority to reduce the appropriation to zero," Administrative Law Judge Cornelia Bright Gordon wrote in an Aug. 1 ruling. "This action triggers the applications of the layoff provisions of the Merit System Law."

In a second case, an administrative judge ruled Sept. 24 that employees of the state Department of Licensing and Regulation whose jobswere abolished for budget reasons may file grievances and are not automatically terminated.

The state, which disagrees with the findings, may challenge both rulings.

Mr. Awalt says state workers -- including several state troopers -- have been calling for days for advice on how to protest their firings. He said he expects dozens to file suit.

Robert A. Zarnoch, the attorney general's chief counsel for legislation, said that the attorney general's legal reasoning is sound. "When the position is abolished because of lack of funding, and you can identify the position at issue," he said, "then the layoff statute does not apply."

"I'm not so naive as to think this won't end up in court," MrSchwartz added.

"Of course it will. And ultimately, the Court of Appeals will let us know what the law will be on this subject."

But if the state loses and has to find funds to pay layoff benefits, Mr. Schwartz said, "It only means different people will be on the street -- and a lot more people. There's a fundamental point here: The money isn't there, and it can't be manufactured. That's the hard legal fact."

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