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 through 12E) and the whistleblower law (Article 64A, §§12F through 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 classified and unclassified employees under the Secretary’s leave authority. 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 through 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, if they were among the classified or unclassified employees over whom the Secretary of Personnel exercised leave authority. The opinion relied on longstanding leave practices and legislative acceptance of those practices when reading the old statute.

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 for classified and unclassified employees under the Secretary's leave authority
• 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.