What in the world does “honorable and faithful” service mean?
Believe it or not, as an employee of Baltimore County, even having been employed for several years, you could be denied the retirement benefits you have come to expect. What’s worse is that the denial of these benefits may have nothing to do with the economy and the restructuring of State and County retirement plans. It may actually be as a result of actions taken on personal, non-work time.
When it comes time for retirement, each employee must submit an application to the Employee’s Retirement System’s Board of Trustees (“ERS”). That application is reviewed by the ERS and either approved or denied. One of the considerations in approval or denial of the application is the employee’s “membership service.” Membership service is defined in Section 5-1-201(p) of the Baltimore County Code as “honorable and faithful service as an employee rendered while a member of the retirement system.” Unfortunately the Code does not provide for a definition of the term “honorable and faithful.” That lack of definition has led to the denial of retirement benefits under the claim that an employee did not perform his or her service honorably and faithfully.
As would be expected, the commission of a crime during the performance of one’s duties is not honorable and faithful service. Even the dismissal of criminal charges does not preclude a finding at an administrative hearing that the employee is guilty of the things with which he or she was charged and that finding could mean the denial of retirement benefits.
Honorable and faithful service is not limited solely to actions taken during work hours; personal time can also be taken into account. A criminal act that would cause the denial of retirement benefits does not have to take place during work hours or in the performance of the duties of employment, especially if an employee handbook prohibits a certain act. The use of controlled dangerous substances is a good example of this.
Maryland courts acknowledge that the Board of Appeals is left in the position of making “judgment calls” as to whether there was a breach of the duty of honorable and faithful service, how serious that breach was and whether it warrants the denial of benefits. The Board’s decision is to be left standing provided a reasonable person could have reasonably reached the same conclusion. There is a requirement that there be “substantial evidence” of the misconduct – in other words, substantial enough evidence that a reasonable person reviewing the same evidence could reach the same conclusion. Note the use of the word “could” and not “would”. Higher courts are not to substitute the judgment of the Board of Appeals.
As the employee defending your retirement benefits, it is best to fight fire with fire. No employee should ever appear before the Board of Appeals without knowledgeable counsel to ensure not only that ERS is forced to meet their own burden, but that they have their own “substantial evidence” showing their service to be honorable and faithful.
For more information, please contact the Towson Lawyers at Bodie.