MARYLAND TRANSPORTATION AUTHORITY POLICE LODGE # 34 OF the FRATERNAL ORDER OF POLICE, INC., et al.
v.
MARYLAND TRANSPORTATION AUTHORITY, et al.
Court of Special Appeals of Maryland.
*1178 Michael Marshall (Schlachman, Belsky & Weiner, PA, on the brief) Baltimore, MD, for appellant.
Kathleen E. Wherthey (Joshua N. Auerbach, Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: HOLLANDER, MATRICCIANI, RAYMOND G. THIEME, JR., (Retired, specially assigned), JJ.
HOLLANDER, J.
This appeal involves a dispute between the Maryland Transportation Authority Police Lodge # 34 of the Fraternal Order of Police, Inc. ("FOP" or the "Lodge"), appellant/cross-appellee, and the Maryland Transportation Authority ("MdTA" or the "Authority"), appellee/cross-appellant. At issue is a "Memorandum" signed in February 2006 by Trent M. Kittleman, then the Executive Secretary of the MdTA, and Cpl. John Zagraiek, the President of the Lodge (the "Agreement"). The Agreement committed the MdTA to fund a "Personal Patrol Vehicle program" (sometimes referred to as the "PPV program" or "take-home vehicle program"), whereby each officer of the MdTA Police Force was to receive a "personally-assigned patrol vehicle" for the officer's official use and for commuting. Pursuant to the Agreement, the FOP was obligated to request the withdrawal of proposed State legislation authorizing the MdTA and its police officers to engage in collective bargaining.
In 2007, the MdTA informed the Lodge that it would not proceed with the PPV program.[1] In response, the Lodge and eleven individual MdTA police officers, appellants,[2] filed suit in the Circuit Court for Baltimore County against the MdTA, the State of Maryland, the "Maryland Transportation Authority Board,"[3] the MdTA's Executive Secretary, its Chairman,[4] and nine individual current and former MdTA *1179 members,[5] seeking relief on the basis of breach of contract and promissory estoppel.
The MdTA moved to dismiss the Lodge's Complaint. It asserted that the Agreement was not a valid contract, nor could it be enforced by promissory estoppel.
After reviewing documentary submissions from the parties, the circuit court granted summary judgment in favor of the MdTA. It also denied as moot a motion by the MdTA to disqualify appellants' counsel due to alleged ethics violations. The court subsequently denied the Lodge's motion for reconsideration. This appeal followed.
The Lodge presents four questions, which we have reformulated as a single inquiry: Did the circuit court err in determining that the Agreement was legally unenforceable and on that basis granting summary judgment to the Authority?[6] The MdTA has noted a conditional cross-appeal, pertaining to the denial of its motion to disqualify appellants' counsel. It asks:
If the Court remands this case (which it should not), is it appropriate to disqualify the Lodge's counsel, and exclude certain evidence, due to ethical violations relating to the retention of the former Maryland Transportation Authority police chief as a consultant to the Lodge in this litigation?
For the reasons that follow, we shall affirm in part and reverse in part as to the grant of summary judgment. In addition, we shall vacate the denial of the Authority's motion to disqualify, and remand to the circuit court for consideration on the merits.
I. Background of the MdTA
Although the MdTA has been featured in a handful of prior reported cases,[7] we *1180 have not uncovered any case that has comprehensively described the agency and its functions. In the context of this case, an overview of the agency, and what appellants describe as its "uniquely independent budgetary authority," will be helpful to an analysis of the issues.[8]
The MdTA is an agency created by statute.[9]See Md.Code (2008 Repl.Vol., 2009 Supp.), § 4-201 of the Transportation Article ("Transp.").[10] It was established by the General Assembly in a 1970 enactment, effective July 1, 1971. See 1970 Md. Laws, ch. 526. See also Bugg v. MdTA,
Although the enabling act for the Authority is codified in the Transportation Article, and, as noted, the MdTA acts "on behalf of" the Department of Transportation ("DOT" or the "Department"), the MdTA is not included as a unit of the DOT. See Transp. § 2-107 (enumerating units of the DOT, without listing the MdTA); Transp. § 4-201 (establishing the MdTA, without stating that it is "in the Department"). Rather, the MdTA is an independent agency. But see MdTA v. King,
*1181 As noted, the Agreement was signed on behalf of the MdTA by its "Executive Secretary." The position of Executive Secretary is not established by statute or regulation, but is referred to in various MdTA regulations. It is clear from the context of this case and the various regulations that refer to the position, see, e.g., Code of Maryland Regulations ("COMAR") 11.02.01.02B(2)(f) (Supp. No. 30), that the Executive Secretary is the chief administrator of the Authority.
MdTA finances its transportation facilities projects through the issuance of bonds. See Transp. §§ 4-301 to 4-311. The bonds are secured by trust agreements, Transp. § 4-311(a)(1), which "may pledge or assign all or any part of the revenues of the Authority or of any transportation facilities project...." Transp. § 4-311(a)(2). See Transp. § 4-315 (all revenue bond proceeds and toll revenues are trust funds). In turn, the Authority has the power to establish and collect "rentals, rates, fees, tolls, and other charges and revenues" for the use of its transportation facilities projects. Transp. § 4-312(a)(2). Aside from specific statutory restrictions that we need not catalog, "the rentals, rates, fees, tolls, and other charges and revenues are not subject to supervision or regulation by any instrumentality, agency, or unit of this State or any of its political subdivisions." Transp. § 4-312(c)(1). These revenues are applied as specified in the trust agreements. Transportation § 4-313 establishes a "Transportation Authority Fund" into which all revenues derived from transportation facilities projects are to be deposited, "except to the extent that they are pledged under an applicable trust agreement...." To the extent permitted by the trust agreements, funds that are available after providing for the Authority's debt service may be transferred to the DOT's general "Transportation Trust Fund to be used as appropriated by the General Assembly...." Transp. § 4-313(c).[13]
In Wyatt v. State Roads Commission,
In particular, the Court held that the scheme did not amount to "contracting a debt without annual taxation to meet it," prohibited by Article III, § 34 of the State Constitution. Id. at 264,
Nor did the Commission's plenary authority over collection and disbursement of toll funds violate Sections 2 and 3 of Article VI of the State Constitution, which respectively vest in the Comptroller the "general superintendence of the fiscal affairs of the State," and direct that the Treasurer "shall receive and keep the moneys of the State." See Wyatt,
Thereafter, the Attorney General opined that "[t]he General Assembly may enact legislation requiring the Authority to present its proposed budget and other financial documents to the General Assembly for review."
In furtherance of its independent management of the State's toll infrastructure, the MdTA is statutorily granted the power to "acquire, hold, and dispose of property." Transp. § 4-205(b). Notably, in the context of this case, with limitations not relevant here, the Authority "may make any contracts and agreements necessary or incidental to the exercise of its powers and performance of its duties." Transp. § 4-205(c)(1).
Moreover, the MdTA is authorized to "employ and fix the compensation of attorneys, consulting engineers, accountants, *1183 construction and financial experts, superintendents, managers, and any other agents and employees that it considers necessary to exercise its powers and perform its duties." Transp. § 4-205(d)(1). The expense of employing such persons "may be paid only from revenues or from the proceeds of revenue bonds issued by the Authority." Transp. § 4-205(d)(2). In a 1988 opinion, the Attorney General concluded that these statutory provisions granted the MdTA "independent authority to hire and set the compensation of [its] employees," in contrast to the DOT, which was subject (in varying degrees) to the requirements of the Merit System Law (then codified in Article 64A of the Annotated Code). See
The MdTA also has the power to adopt rules and regulations. Transp. § 4-205(f). And, it enjoys a "catch-all" grant of authority, *1184 empowering it to "do anything else necessary or convenient to carry out the powers granted" to it by statute. Transp. § 4-205(g).
Among the MdTA's employees are the members of the Maryland Transportation Authority Police Force ("MdTAP"). Transp. § 4-208. The commanding officer of the MdTAP is its Chief. Forbidden Meeting Room Transp. § 4-208.1.
The lineage of the [MdTAP] can be traced back to several police forces that were created beginning in the middle of the 20th century to patrol various transportation facilities in Marylandincluding the State Roads Commission Bridge Guards, the Harbor Tunnel Special Police, the Maryland Port Authority Special Police, the State Aviation Administration Police, and others. By 1998, these various law enforcement agencies had all been absorbed into what is now known as the Maryland Transportation Authority Police.
By statute, the MdTAP is charged with providing police services to the Authority, the Maryland Aviation Administration, and the Maryland Port Administration. Transp. § 4-208(e). MdTAP officers have "all the powers granted to a peace officer and a police officer of this State." Transp. § 4-208(a)(2). They may exercise those powers "on property owned, leased, or operated by or under the control of the [MdTA], Maryland Aviation Administration, and Maryland Port Administration," Transp. § 4-208(b)(1), and, under some circumstances, within 500 feet of such property. Transp. § 4-208(b)(2)-(3). Ordinarily, MdTAP officers may not exercise police powers on any other property. See Transp. § 4-208(b)(4). However, there is an exception authorizing the use of police power on other property, if "[o]rdered to do so by the Governor." Transp. § 4-208(b)(4)(iii). In 2004, the Governor issued such an order (which remains in effect), authorizing the MdTAP to exercise police power "to enhance the protection and safety of all publicly owned, commercial, and/or common carrier transportation assets throughout the State." COMAR 01.01.2004.28B (Supp. No. 28). In 2007, the Attorney General interpreted this expanded grant of jurisdiction to include authorization for MdTAP officers to "be assigned to patrol MARC trains and stations, including Amtrak stations in Maryland," in concert with Amtrak police and other law enforcement agencies with overlapping jurisdiction.
The MdTA is responsible for instituting "rules and regulations governing the operation and conduct of the Maryland Transportation Authority Police Force and of Maryland Transportation Authority police officers." Transp. § 4-208(d).
II. Factual and Procedural Background
The Lodge instituted suit on June 29, 2007. As noted, the complaint contained two counts: breach of contract and promissory estoppel. Our recitation of the facts is drawn primarily from the plaintiffs' complaint, as amended.[18]
According to the complaint, for "approximately three years" the Lodge had been "seeking collective bargaining rights by seeking to introduce legislation providing for collective bargaining." Through its efforts, the FOP obtained the introduction of collective bargaining legislation during *1185 the 2006 session of the Maryland General Assembly.[19] The Lodge had also "conducted extensive research into offering each Maryland Transportation Authority Police Officer a personally assigned take home patrol vehicle, to induce recruitment and retention of police officers."
On February 27, 2006, during the legislative session, Trent M. Kittleman, then the Executive Secretary of the Authority, met with then-MdTAP Chief Gary L. McLhinney; MdTA Deputy Executive Secretary Dan McMullen; MdTAP Cpl. John Zagraiek, the President of the Lodge; and MdTAP Lt. Kevin Anderson, the Vice-President of the Lodge. At that meeting, Kittleman and Zagraiek signed the Agreement, which took the form of a one-page "memorandum" from Kittleman to Zagraiek, with the subject line, "Personal Patrol Vehicle Program/Collective Bargaining Legislation." The Agreement, a copy of which was attached as an exhibit to the Lodge's complaint, stated:
This afternoon, I met with Cpl. John Zagraiek and Lt. Kevin Anderson, along with Chief Gary McIlhinney [sic] and Dan McMullen. At this meeting, I made a proposal to fund the "Personal Patrol Vehicle Program" ("PPV") as an alternative to the Collective Bargaining Bills that are now before the House and Senate.
Short Background
One of the reasons the MdTA Police support collective bargaining is for recruiting purposes. Since most other police forces have collective bargaining, MdTAP considers not having collective bargaining as a potential disadvantage in the competition for the best recruits.
Another significant recruitment tool MdTAP has requested is the ability to offer each MdTA police officer a personally assigned patrol vehicle. During the recent budget process, Chief McIlhinney [sic] submitted a thoroughly documented request for a three-year phase-in of this program. We were unable to accommodate the request at that time.
Agreement
In essence, the proposal is that the Authority will include the PPV in the next three fiscal year budgets, and in exchange the F.O.P. Lodge # 34 will ask the sponsors to withdraw the collective bargaining bills and will agree not to support collective bargaining legislation in either of the following two years. Below are the specifics of the agreement:
▸ Cpl. Zagraiek, or his designee, on behalf of the F.O.P., will request Del. DeBoy to withdraw HB 1151, his collective bargaining bill, before tomorrow's hearing.
▸ Cpl. Zagraiek, or his designee, on behalf of the F.O.P., will ask Sen. Gianetti [sic] to withdraw SB 722, his companion collective bargaining bill.
▸ Provided the bills are withdrawn, and no collective bargaining legislation covering the MdTAP is passed [in] this session, the Authority will add funds to the FY '07 budget for the first phase of the proposed PPV program, in [an] amount reasonably close to the $3.82 million outlined in the current proposal.
▸ In each of the next two fiscal years, the Authority will continue to fund the three-year phase-in of the PPV, provided that no collective bargaining legislation covering the MdTAP is passed.
▸ The PPV program will be essentially the program outlined in the notebook *1186 prepared by the MdTAP, in conformance with all laws and regulations.
Following the signing of the Agreement, the House and Senate bills providing for collective bargaining rights for MdTAP officers were withdrawn by their sponsors, at the Lodge's request.[20]
According to the complaint, the Authority held a meeting in April 2006, at which its "members unanimously approved the plan to implement, over a three-year period, a police vehicle take-home program for sworn Authority police personnel in exchange for the withdrawal of a bill concerning collective bargaining for sworn Authority Police personnel." The complaint further alleged that, immediately after the signing of the Agreement, the MdTAP began to include "`Take Home Vehicles' on its recruitment pamphlet and recruitment website by listing it first under `Benefits Package.'" In approximately June 2006, the Authority ordered twenty-five vehicles for the PPV program; it took delivery of all twenty-five vehicles as of May 2007.
On January 17, 2007, Martin J. O'Malley succeeded Robert L. Ehrlich, Jr. as Governor of Maryland. Governor O'Malley appointed John D. Porcari as his Secretary of Transportation, and Porcari assumed concomitantly the position of Chairman of the MdTA. In the early weeks of the O'Malley administration, MdTA Executive Secretary Kittleman and MdTAP Chief McLhinney were succeeded, respectively, by Ronald L. Freeland and Marcus L. Brown. Governor O'Malley also appointed three new members to the Authority.[21]
According to the complaint, on May 16, 2007, Secretary Porcari announced his intention "not to move forward with the Personal Patrol Vehicle program," despite the Agreement. At its June 28, 2007 meeting, the Authority voted not to proceed with implementation of the PPV program. Appellants filed suit the next day.
As to the breach of contract claim, the Lodge asserted that the MdTA "offered to implement and fund the Personal Patrol Vehicle program in exchange for Plaintiff's withdrawal of collective bargaining bills and forbearance from supporting collective bargaining...." Further, appellants averred that the Lodge "accepted the Defendants' offer when Sergeant John Zagraiek signed the Memorandum dated February 27, 2006, in his official capacity as the Prеsident of the FOP. Plaintiffs' agreement to forego collective bargaining rights was consideration for the Defendants' promise to implement and fund the Personal Patrol Vehicle program." Because Kittleman and Zagraiek both signed the Agreement, and the Authority "unanimously voted on April 20, 2006, to approve the Personal Patrol Vehicle program in exchange for the withdrawal of bills concerning collective bargaining," the Lodge contended that the MdTA "had a duty to comply with the [A]greement...." According to the Lodge, the MdTA "breached the agreement on May 16, 2007, when Porcari... publicly announced ... the intention of the [MdTA] to suspend further performance of the agreement by halting the [PPV] program." Moreover, the Lodge noted that the MdTA "did in fact begin performance of the [A]greement by ordering twenty-five of the vehicles," although "the twenty-five vehicles previously delivered have not been available as take home vehicles." The Lodge asked the court to "enforce the [A]greement and order the *1187 funding and implementation of the Personal Patrol Vehicle program for three years following the date the agreement was signed and then accepted by the [MdTA] on April 20, 2006."
As to the claim of promissory estoppel, the Lodge contended that, by entering into the Agreement, the MdTA "made a clear and definite promise to implement and fund the Personal Patrol Vehicle program for three years," which "induced actual and reasonable action" by appellants, who relied on the MdTA's promise to their detriment. In the view of the FOP, the MdTA should have foreseen that its promise to fund the PPV program "would induce action on the part of persons to accept employment with the [MdTAP] and/or convince persons to forego other employment options and remain employed with the [MdTAP]." In addition, appellants averred that the Lodge acted in reliance on the promise by causing the collective bargaining bills to be withdrawn in the 2006 legislative session, and claimed that it "subsequently has not supported any collective bargaining bills to date."[22]
As to the individual officers/plaintiffs, the complaint alleged that six of them had left the Baltimore City Police force after several years of employment and had joined the MdTAP in September 2006, based on the MdTAP's "advertisement of `take home cars' on its recruitment brochure, website, and during orientation." Some averred that they could have retired substantially earlier, or could have accepted employment with other police agencies offering take-home cars or other "competitive benefits," but chose to join the MdTAP because of the PPV program. Notably, several of the individual plaintiffs were assigned to duty at the Harry W. Nice Memorial Bridge, one of the toll bridges operated by the MdTA, situated in southern Charles County. They alleged that their commutes to the Nice Bridge ranged between 50 and 121 miles each way, and claimed, inter alia, that they had accepted assignment to that duty station because the "remote" Nice Bridge station "was designated as the first location to receive take home cars."
In sum, the plaintiffs urged that they had "suffered a detriment which can only be remedied by the enforcement of the promise." They requested that the court "enforce the promise of the Defendants to fund and implement the Personal Patrol Vehicle program...."
On August 20, 2007, the MdTA filed a motion to dismiss for failure to state a claim upon which relief could be granted.[23] The Authority asserted several grounds for dismissal of the breach of contract claim. First, it argued that the Agreement was too indefinite tо be enforced. Second, it asserted that the Agreement was unenforceable as against public policy, for several reasons: (a) it was a contract for the exercise of personal influence over legislators, and/or was contingent upon the defeat of legislation; (b) the Agreement was ultra vires, because the statutory grant of authority to the MdTA did not authorize it to influence legislation, and was thus barred by sovereign immunity; (c) the Agreement was in essence a contract to procure the services of the Lodge *1188 to lobby the General Assembly, but it failed to comply with State law governing procurement contracts; and (d) the Agreement was essentially a collective bargaining agreement, and the MdTA had no statutory authority to collectively bargain with its employees, nor did the Agreement observe the procedures mandated for State employee collective bargaining.
As to the promissory estoppel claim, the MdTA contended that promissory estoppel could not be asserted against a State agency. But, even if it could, the MdTA alleged that: (a) plaintiffs had not adequately stated a claim satisfying the elements of promissory estoppel, and (b) the promissory estoppel claim was barred for the same reasons that rendered the Agreement unenforceable as a contract.
In their opposition, appellants argued: "The Agreement is not too indefinite to be enforced, as it incorporates a comprehensive Proposal extensively explaining the cost of the program and ... its benefits...." They submitted as an exhibit to the Opposition a large binder that they asserted was the "notebook" identified in the Agreement as the "thoroughly documented request" for the PPV program. Other exhibits to the Opposition included a series of "PowerPoint" slides and an "executive summary" regarding the PPV program, drawn from the binder; a copy of the minutes of the April 20, 2006, meeting of the Authority, showing that the Authority had "unanimously approved" the PPV program "in exchange for the withdrawal of a bill concerning collective bargaining"; and affidavits of McLhinney, Zagraiek, and Anderson, describing the circumstances in which the PPV proposal was developed and the Agreement was signed, as well as the FOP's interactions with members of the Legislature regarding the proposed collective bargaining legislation.
The Lodge also addressed the MdTA's arguments that the Agreement offended public policy. In the Lodge's view, "the FOP did not agree to exercise its personal influence over particular legislators to defeat the legislation. The FOP merely agreed to request that the two bills it had previously submitted be withdrawn," because it believed that the PPV program "was more beneficial than non-binding collective bargaining in obtaining and retaining qualified officers." Moreover, the Lodge asserted that "the FOP members presenting facts to the Legislature and making this request, were not being paid under the Agreement for `lobbying'...."
In addition, the Lodge disputed the MdTA's argument that the Agreement was ultra vires. Noting that the Agreement had been signed by the Authority's Executive Secretary and approved unanimously by the Authority, the Lodge asserted the Agreement was within the scope of the MdTA's powers. According to the Lodge, "the Agreement did not call on the MdTA to spend its funds in hiring a private agent to lobby the General Assembly...."
As to the Authority's argument that the Agreement failed to comply with the State procurement statutes, the Lodge argued that "the only procurement involved in this case is the procurement of the vehicles to use in the PPV program, which the MdTA has authority to purchase." Further, the Lodge rejected the Authority's characterization of the Agreement as a collective bargaining agreement, stating: "[T]he MdTA was not entering into a binding agreement with its employees on a collective basis establishing working conditions. The PPV program was a means to furthering recruitment and retention of qualified police officers, and increasing efficiency of the MdTA Police Force."
Finally, with respect to the promissory estoppel claim, the Lodge sought to distinguish the cases cited by the MdTA for the proposition that promissory estoppel cannot *1189 be asserted against the State. It also posited: "A statement by the Police Chief as well as a list of benefits provided on an official website are more than authoritative sources for an officer to rely on.... [T]he authoritative nature of the sources of information support[s] the element of `reasonable reliance.'"
On September 6, 2007, the MdTA filed a "Motion to Disqualify Plaintiffs' Counsel and Exclude Evidence." The Authority claimed that McLhinney, MdTAP's former Police Chief, was hired by the FOP "to work as a consultant on this matter, notwithstanding McLhinney's substantial involvement in this matter on behalf of MdTA." Claiming that such conduct violated Rules 3.4 and 4.4 of the Maryland Rules of Professional Conduct, appellees sought disqualification of plaintiffs' counsel and the evidentiary exclusion of any testimony or statements by McLhinney, as well as documents that plaintiffs' attorneys had derived from their employment of McLhinney. The Lodge responded to the MdTA's Motion to Disqualify on October 2, 2007, contending that McLhinney's employment by FOP's counsel did not violate the Rules of Professional Conduct. The Lodge offered an affidavit of McLhinney, dated September 23, 2007, to support that assertion.
After some procedural turns that are not relevant to the issues on appeal, the two motions were heard on July 15, 2008. As to the MdTA's argument that the agreement was too indefinite to enforce, the judge referred to the "thoroughly documented request" for the PPV program referenced in the Agreement and asked, "[I]sn't that a matter of proof? ... Assuming that ... everyone agrees, yes the thoroughly documented request existed, and this is it, then doesn't that eviscerate your argument?" The court also commented:
When a Court looks at a contract, one of two things has to happen. Either the Court finds as a matter of law that the contract is valid or invalid, or the Court finds that there is an ambiguity, in which case it becomes a question of fact for the trier of fact, and the Court simply can't make a decision on its own.... I believe that the situation in this case is that ... the State has raised the issue of ambiguity, which would have to be considered by the trier of fact in the case if it were tried.
The MdTA argued that the Agreement was subject to State procurement law as a contract to procure servicesi.e., the Lodge's lobbying of the General Assembly. The Lodge's counsel responded that "this was not a contract to procure lobbying services from the FOP. It was an agreement to procure cars." (Emphasis added.) Further, the Lodge contended that the MdTA was not subject to State procurement law in purchasing vehicles, because the Authority "is unique in that sense in that they are independent of all State government.... The MdTA is unique in the fact that its budget comes from the revenues raised through tolls...." The court remarked:
Either way, doesn't the contract have to be approved? ...
* * *
Whether it[']s services or materials, they still have to buy them from the lowest responsible bidder. They can't buy them from the ... secretary's brother-in-law who's going to get a 200 percent mark up on the item when somebody else would give the State a better deal.
* * *
[W]hen you're spending the State's money, it has to be done through the procurement process, and ... an independent agency can't waste the money.
The MdTA's arguments that the Agreement was unenforceable as against public policy found purchase with the court. The *1190 court determined that the Agreement was "completely unenforceable on the ground of sovereign immunity." It also said: "It seems to me [the Agreement] violates the procurement laws, and the collective bargaining laws that are well established in our State." Accordingly, the court stated that it would grant the motion to dismiss. As to the MdTA's motion to disqualify plaintiffs' counsel, the court stated: "It's moot. The Court has dismissed the case."
Thereafter, on July 21, 2008, the court entered a written order, stating that "the motion, pursuant to Rule 2-322(c), is treated as a motion for summary judgment." It also said that, "[u]pon consideration of the motion of ... the Maryland Transportation Authority and its members, to dismiss plaintiff's Second Amended Complaint, the plaintiffs' opposition thereto, and the exhibits and affidavits attached to plaintiffs' opposition memorandum," and "finding no dispute of material fact," the defendants were "entitled to judgment as a matter of law."
On July 25, 2008, appellants filed a motion for reconsideration, in which they asserted that "proper procurement procedures were followed when purchasing vehicles for the take-home car program." The Lodge complained that, at the hearing, "instead of focusing on issue[s] surrounding lobbying, the court inquired mostly about the issue of proper procurement procedures when purchasing the cars for the take-home car program." Appellants also suggested that they had been ambushed by that issue.
Contrary to its position at the hearing, the Lodge conceded that, "[l]ike any State agency, the MdTA is subject to the State Finance and Procurement Article when making purchases." But, the Lodge asserted: "Appropriate procurement procedures were followed and the vehicles for the take-home car program were purchased through a purchase contract already established by the Department Budget [and] Management after the MdTA approved the funds to be spent on the purchase." According to the FOP, "there were contracts that were already established by the State to purchase the vehicles from a particular manufacturer and supplier, and procurement procedures had already been followed. Because the [vehicle procurement] contract was already established, the Authority could purchase vehicles through these contracts, without having to re-engage in the procurement process."
In support of its motion, the Lodge attached an affidavit of McLhinney, describing the purchase of the vehicles for the PPV program, and an affidavit of former MdTAP Major Martin Uzarowski, who averred that, until his retirement from the MdTAP in December 2006, he was in charge of the MdTAP's budget processes as "Chief of the Support Services Bureau" for the MdTAP. Uzarowski described the purchase of the vehicles for the PPV program and said: "[I]f we were purchasing vehicles through already-established contracts, MdTA would not have to go through any further procurement procedures[.]"
In its opposition, the MdTA suggested that the Lodge had misconceived the basis of the court's grant of summary judgment, and asked the court to clarify the grounds for its ruling. In an Order of October 7, 2008, the court denied appellants' motion for reconsideration. It also stated that it "enter[ed] judgment in favor of the defendants for the reasons stated in the defendants' motion and the memoranda submitted in support thereof."
We shall include additional facts in our discussion.
III. Discussion
We begin our discussion with the observation that the Agreement between *1191 the Authority and the Lodge seems quite unusual. Indeed, if the MdTA were a budgeted agency, subject to the appropriations process, and did not enjoy its independent structure, the Agreement would likely be unenforceable for several reasons. See, e.g., S.F.P. § 7-237(b) (prohibiting State officers to "make or participate in making for any purpose a contract that purports to bind the State to pay any amount unless money has been appropriated for that purpose and remains unspent" or "incur a liability or spend money in excess of the applicable appropriation"); Md.Code (2009 Repl.Vol.), § 3-205(e) of the State Government Article ("S.G.") (prohibiting a Governor whose term is ending to submit a budget binding the next administration). Nevertheless, upon close examination, and in light of the applicable standard of review, none of the particular grounds advanced by the Authority invalidate the Agreement on contract grounds.[24]
A. Standard of Review
Appellants submitted numerous exhibits in connection with their opposition to appellees' motion to dismiss, which the court considered. Therefore, the circuit court appropriately considered appellees' motion to dismiss as a motion for summary judgment. See Hrehorovich v. Harbor Hosp. Ctr.,
*1192 We review, de novo, an order granting summary judgment. Myers v. Kayhoe,
"`Ordinarily, an appellate court should review a grant of summary judgment only on the grounds relied upon by the trial court.'" Sadler v. Dimensions Healthcare Corp.,
B. Sovereign Immunity
Because this case involves a claim against a State agency, the doctrine of sovereign immunity provides a backdrop for all of the contentions. "Grounded in ancient common law, the doctrine of sovereign immunity bars individuals from bringing actions against the State, thus protecting it from interference with governmental functions and preserving its control over its agencies and funds." Condon v. State,
"Sovereign immunity `is applicable not only to the State itself, but also to its agencies and instrumentalities, unless the General Assembly has waived the immunity either directly or by necessary implication.'" Proctor v. Washington Metro. Area Transit Auth.,
In various statutes, the Legislature has waived the State's sovereign immunity, under limited conditions.[26] "If the State chooses, by legislative action, to waive its sovereign immunity, [the courts] strictly construe[] the waiver in favor of the State." Proctor,
Of import here, the State has waived its sovereign immunity under limited circumstances in regard to claims based on written contracts. See Magnetti v. Univ. of Md.,
Except as otherwise expressly provided by a law of the State, the State, its officers, and its units may not raise the defense of sovereign immunity in a contract action, in a court of the State, based on a written contract that an official or employee executed for the State or 1 of its units while the official or employee was acting within the scope of the authority of the official or employee.[28]
C. Indefiniteness
Appellants contend that the "Agreement is a legally enforceable contract because it is not vague or uncertain in its essential terms." They posit:
"[T]he Agreement states a definite amount of $3.82 Million to be spent on the program per year, and in addition, the Agreement states that "The PPV program will be essentially the program outlined in the notebook prepared by the MdTAP." The Agreement incorporates the Proposal to govern the implementation of the program, which breaks down the cost of the program and provides for vehicles to be purchased over the three years."
Appellants add: "The specifics of the amount to be spent each year are easily referred to in the Proposal which is incorporated into the last line of the Agreement."
Appellees counter: "The circuit court appropriately granted the Authority judgment on the Lodge's breach of contract claim because the alleged agreement is too indefinite to enforce." Claiming that the "essential terms are lacking or unclear," appellees posit: "The purported agreement does not specify how many patrol cars the Authority was to supply, or when, or to which categories or classifications of Authority Police officers. There also is no specification of make, model, size, type, or specialized features of the law enforcement vehicles to be purchased." In addition, appellees argue:
The proposed cost of the program, "$3.82 million" in the first year of what appears to have been contemplated as a three-year program, is "outlined" in a proposal that is neither incorporated into the "agreement" nor attached to the complaint. Indeed, it is unclear from the face of the agreement whether the multi-million dollar cost is for the entire proposed "three-year phase-in," or only for the first year. If the latter, then the agreement contains no indication what the cost to the State and its taxpayers would be for the subsequent two years of the "phase-in," or for any ensuing *1194 years of the program once established, although it could well exceed $12 million.
Appellees add:
Here, the absent key terms include the number of vehicles to be purchased, the type of vehicles to be purchased, the manner in which they were to be assigned, and the total cost of the program. Absent such terms, no binding contract has formed, because there was no specific promise to which the Authority can be bound.
Further, appellees maintain that appellants are "mistaken" as to their claim that the notebook "could supply the specifics...." They argue that "while the memorandum states that the PPV program would be `essentially' the program described in the `notebook,' a program that is `essentially' the same is not the same, and the [Agreement] does not specify how it would differ." In addition, they insist that the Agreement violates the Statute of Frauds, set forth in § 5-901 of the Courts and Judicial Proceedings Article of the Md.Code (2006 Repl.Vol., 2009 Supp.). They assert: "Under the statute of frauds, topically related documents that nevertheless fail to supply essential contract terms are insufficient to satisfy the statute of frauds."
It is well established that an enforceable contract must "express with definiteness and certainty the nature and extent of the parties' obligations." County Comm'rs for Carroll County v. Forty West Builders, Inc.,
"Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement have often been held to prevent the creation of an enforceable contract." ARTHUR L. CORBIN, ET AL., 1 CORBIN ON CONTRACTS § 4.1, at 525 (rev. ed.1993, 2008 Spring Cum.Supp.) ("CORBIN"). See Schloss v. Davis,
Of course, no action will lie upon a contract, whether written or verbal, where such a contract is vague or uncertain *1195 in its essential terms. The parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. If the agreement be so vague and indefinite that it is not possible to collect from it the intention of the parties, it is void because neither the court nor jury could make a contract for the parties. Such a contract cannot be enforced in equity nor sued upon in law. For a contract to be legally enforceable, its language must not only be sufficiently definite to clearly inform the parties to it of what they may be called upon by its terms to do, but also must be sufficiently clear and definite in order that the courts, which may be required to enforce it, may be able to know the purpose and intention of the parties. (Citations omitted.)
Nevertheless, "courts are reluctant to reject an agreement, regularly and fairly made, as unintelligible or insensible." Quillen v. Kelley,
As we have seen, the Agreement provides: "The PPV program will be essentially the program outlined in the notebook prepared by the MdTAP...." However, the Agreement does not specify a dollar amount for the second and third year of the PPV program. Nor does it specify the number, cost, or type of vehicles for the PPV program. Appellees view these omissions as fatal flaws.[30]
Appellants contend: "As to the supplier of the cars, the Department of Budget and Management would be charged with selecting the appropriate manufacturer or supplier. Thus, the supplier of the cars being ordered would also not be included in the Agreement because that decision was not the FOP's to make." Moreover, as appellants point out, the Agreement refers to the notebook, which they describe as a "comprehensive proposal which identifies a definite cost and number of vehicles to be purchased." As an exhibit to their Opposition to appellees' motion, appellants submitted the binder that they assert is the "notebook" referred to in the Agreement, and the MdTA did not appear to dispute that the binder is the "notebook."[31]
In our view, the Agreement sufficiently expresses, with definiteness and certainty, the nature and extent of the parties' obligations. A contract "`is not *1196 rendered unenforceable merely because the parties do not supply every conceivable detail or anticipate every contingency that may arise.'" Forty West,
The binder contains a draft "Personal Patrol Vehicle Directive," Tab 1, specifying which officers would be eligible to utilize a take-home vehicle, and the acceptable and unacceptable uses of the vehicles. Tab 4 contains a detailed cost estimate for marked and unmarked police vehicles, specifying the cost of the accessories and additional equipment for each vehicle. The cost of a marked vehicle is estimated at $29,770.36, while the estimated cost of an unmarked vehicle is $28,971.76. In addition, the binder reflects a proposal to add 302 cars to the MdTAP vehicle fleet through the PPV program. Of those 302 vehicles, 237 are planned to be marked vehicles, while 65 are planned to be unmarked. Multiplying the number of each type of vehicle by the per-vehicle cost, and then dividing the total capital outlay over three years, the binder arrives at a projected capital cost of "$2,979.579.07" per year, or a "3-Year Phase in Cost per year [of] approx[imately] $3 million."[33] Furthermore, the binder projects that the PPV program will incur an additional $826,047 (i.e., approximately $.82 million) in annual operating costs for maintenance and periodic replacement of fleet vehicles.
Thus, it is clear how the "$3.82 million" figure stated in the Agreement was determined, and it is likewise clear that $3.82 million was the projected annual cost of the program in the second and third years of operation. Given the contents of the binder, there is no merit to the Authority's *1197 contention that the Agreement did not specify "the number of vehicles to be purchased, the type of vehicles to be purchased, the manner in which they were to be assigned, and the total cost of the program."
D. Public Policy
As outlined, appellees sought to dismiss the suit on the ground that the Agreement contravened public policy. Appellants advance four grounds to refute appellees' position. They argue that "[t]he Agreement did not contemplate any improper influence over the Maryland Legislature," nor was it "contingent on the defeat of legislation." Further, they claim that it "was properly ratified by the MdTA and was not beyond the scope of the MdTA's Authority; therefore, the Agreement is not ultra vires and this case is not barred by sovereign immunity." In addition, they assert: "The MdTA did not go outside the strictures of State procurement law because the only procurement proposed in the Agreement was for the purchase of vehicles." Lastly, they argue: "The Agreement and its ratification by the MdTA is enforceable because it was not a collective bargaining agreement subject to statutory preconditions."
As we review these grounds, we are mindful that "Maryland courts have been hesitant to strike down voluntary bargains on public policy grounds, doing so only in those cases where the challenged agreement is patently offensive to the public good, that is, where `the common sense of the entire community would ... pronounce it' invalid." Md.-Nat'l Capital Park & Planning Comm'n v. Wash. Nat'l Arena,
1. Contingency/Personal Influence
The MdTA alleged that the Agreement was invalid, as a matter of public policy, because it called on the Lodge to exercise personal influence over legislators, and the "compensation" to the Lodge was contingent on defeat of the collective bargaining legislation. According to the MdTA, those features "exemplif[y], with precision, a particular type of agreement that, for nearly two hundred years, American courts have refused to enforce on grounds of public policy."
In its brief, the Authority suggests that the Agreement bears two "hallmarks" of an "unenforceable bargain to exercise improper influence over the legislative process." First, the agency contends that the "intent or effect" of the Agreement was to "persuade the legislature (or particular legislators) through the use of personal influence, rather than through facts and arguments presented to show that the desired legislative action is good policy." Second, the MdTA points to "the contingent nature of the alleged consideration": it posits that a contract to appeal to lawmakers is unenforceable where "the benefit to the persuading party is contingent upon that party's success in swaying the legislature."
In contrast, the Lodge maintains that the Agreement "did not contemplate any improper influence over the Maryland Legislature." In its view, "[s]imply approaching members of the Maryland Legislature and presenting the facts and arguments... as to why the FOP prefers the PPV program over collective bargaining, does not constitute improper influence." The Lodge states:
FOP members are permitted to advocate certain causes just as any other citizen is permitted to advocate or promote a cause to legislators. A citizen presenting facts or arguments to a legislator will many times be doing so to obtain some benefit.... However, the potential benefit does not result in *1198 transforming the citizen, or in this case the FOP and its members to lobbyists.
Moreover, the Lodge maintains that the Agreement was not an unlawful contingency contract to influence the Legislature, because "the FOP members approaching the Maryland Legislature were not receiving monetary compensation for asking for withdrawal of the two bills." In particular, the Lodge points out that "the Agreement contemplated that John Zagraiek approach the legislature," and notes that Zagraiek, unlike rank-and-file MdTAP officers, "already had the benefit of a vehicle at the time the Agreement was signed." Further, it observes:
The purchase of the vehicles under the PPV program in no way constitutеs "payment" to the FOP members presenting the information to the Legislature. The vehicles are property of the MdTA and do not belong to the police officers. In addition, the PPV Program provides vehicles to all police officers of the MdTA and not just those police officers who are also members of the FOP, and not just to those members of the FOP who actually presented the facts to the Legislature.
Finally, the Lodge distinguishes a contract to defeat legislation from the Agreement, which only called for the Lodge to "`ask sponsors to withdraw the collective bargaining bills.'" The Lodge elaborates:
The Agreement did not require the FOP to be successful in "defeating collective bargaining during the 2007 and 2008 sessions." The Agreement only required that the FOP "not agree to support collective bargaining legislation in either of the following two years." This clearly states that the FOP was to refrain from submitting and supporting any additional collective bargaining bills, which cannot be interpreted as "lobbying" or "exerting improper influence over the legislature," when no affirmative action is being taken. (Internal citations omitted.)
In support of its position, the MdTA relies upon a line of cases dating to the 19th century and the first half of the 20th century, which stand for the proposition that a contract that is contingent on the passage of legislation is invalid. The Authority's claim fails because, as we shall explain, the rule of those cases has been significantly relaxed in the intervening decades.
A leading early case on the topic is Trist v. Child,
The Supreme Court reversed, finding that the contract was void as against public policy. Id. at 448-53. The Court observed that "an agreement express or implied for purely professional services is valid." Id. at 450. It noted that this category includes: "drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing, to a committee or other proper authority, and other services of like character." Id. According to the Court: "All these things are intended to reach only the reason of those sought to be influenced." Id. But, the Court explained that "such services are separated by a broad line of demarcation from personal solicitation, and the other means and appliances which the correspondence shows were resorted to in this case." Id. It determined, id. at 451:
The agreement ... was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right, in such circumstances, to put himsеlf in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.
Another early case, cited by appellees, is Marshall v. Baltimore & Ohio Railroad Co.,
These principles have been discussed in a handful of Maryland cases. See Frenkil v. Hagan,
Wildey involved a contract to secure a nolle prosequi from the Governor for a criminal charge.
In Steffey, a real estate broker sought to recover from a landlord a commission for facilitating the lease of the landlord's real property to the United States Postal Service. Steffey,
Frenkil concerned a pipe supplier who hired a "prominent politician" on a contingency basis to negotiate the cancellation of a contract with the United States War Department, but then refused to pay the politician the agreed fee after the negotiations were successful. Frenkil,
lawfully employ an agent to assist him in obtaining relief from a claim of the Government against him, provided the services to be rendered are of a legitimate character. Indeed, the weight of authority supports the view ... that there are certain legitimate services which may be contracted for even in connection with the procurement of government contracts. But such services do not include the use of personal or political influence.
Id. at 104-05,
None of the Maryland cases involved contracts to influence legislative action. Moreover, Wildey suggests that the disfavor of contracts to influence legislation does not invalidate such contracts per se. Rather, the burden is on the party asserting the contract's validity to show the propriety of any influence. See Wildey,
These limitations on the general principles articulated in Trist and Marshall presage a shift in doctrine that heretofore has not found definitive expression in reported Maryland decisions. Nevertheless, the shift in the law has occurred in other states. Documenting that shift, Corbin notes that "society always has viewed lobbying as an inherently suspect and unsavory activity, though perhaps a necessity." 15 CORBIN § 84.1, at 334. As Corbin explains: "In earlier times the term `lobbyist' had an ugly sound in American ears, and in many of the earlier cases courts held that a lobbying contract was contrary to public policy if the promised compensation was contingent on success in procuring the targeted legislation." Id. at 338.
Corbin synthesizes the modern view, id. at 337-41 (footnotes omitted):
*1201 In general, courts should not find lobbying contracts contrary to public policy. A lobbying contract is not an agreement with a member of the legislature or any other official. It is a bargain for the employment of a lobbyist who undertakes for compensation to render services in causing the enactment of legislation that the employer desires. Legislators should make decisions on an informed basis. Thus, any contract that has as its purpose the provision of facts and arguments to legislators does not offend public policy. The people who send their representatives to Congress, to a state legislature, or to a city council have a right to be informed as to pending legislation and are legally privileged to appear either in person or by agent to support or to oppose an enactment. Proposed legislation may benefit some they lawfully may urge its enactment and present their arguments. That legislation may injure othersthey . . . may lawfully appear to oppose it. Bills introduced and supported by some pressure group may be injurious to other groups. There are very many lawful purposes, therefore, for which a lobbyist or other legislative agent may be employed and many kinds of service that such a person may render lawfully.
* * *
Without regard to the compensation arrangement, if the services actually in contemplation or actually rendered by the lobbyist, in performance of the bargain, are unlawful in character or are clearly contrary to the public interest, all agree that the bargain is unenforceable. If the services bargained for consist of the exercise of personal or political influence on legislators or officials, made effective by personal solicitation, the bargain may be unenforceable. If that personal influence is used to gain access to the official but the official is lobbied on the basis of the merits of the issue, the contract is enforceable.
These statements apply regardless of the duties of the public officer whose action the lobbying is to affect, and regardless of whether that action is legislative, administrative, or judicial. The statements are true whether the purpose is to induce or to prevent legislation, or is to obtain a decree, an appointment to office, or a public contract.
The shift in the law described by Corbin is not inconsistent with the early Maryland cases we have reviewed. As we have noted, the Court in both Frenkil and Wildey declined to hold that contingent contracts to influence government action are always void as a matter of law. Rather, it was a question of fact whether the contracts contemplated improper influence upon State officials.
Here, the Lodge produced uncontroverted affidavits of Zagraiek, Anderson, and McLhinney, describing advocacy that, on its face, was above-board. Because both the circuit court and this Court are required to view the evidence in the light most favorable to the Lodge, as the non-moving party, Frenkil and Wildey compel the conclusion that judgment as a matter of law on this point was improper.
The MdTA cites two contemporary cases in support of its position. Both are inapposite, because they involved contingent contracts for monetary compensation to influence legislation, where a state statute specifically barred such contracts. See Rome v. Upton,
We are also skeptical of the MdTA's premise that the Agreement calls for "contingent compensation." Indeed, unlike any of the cases on this subject cited by either party or uncovered in our own research, the Agreement does not contemplate the pecuniary compensation of the Lodge or its members. The cases we have seen pertaining to the public policy against contracts for legislative influence involved a contingent financial incentive for the advocate. In this case, what the Lodge obtains as allegedly "contingent compensation" for its advocacy of one policy choice is simply another policy choice. The legislative process inherently involves public policy compromises, which result in advantages for some parties and disadvantages to others, as well as the choice of some policies and the rejection of others. To describe the trade-offs struck in the course of lawmaking as "compensation" on a "contingency" basis is to stretch the meaning of those terms beyond their breaking point.
Although it is not factually on all fours with this case, City of Warwick v. Boeng Corp.,
The Rhode Island Supreme Court rejected Boeng's contention that "a municipality cannot make a valid contract based upon the payment of money in return for an official's promise to recommend passage of legislation, regardless of the official's intention or the effect of the legislation." Id. at 1218. The court aligned itself with the modern view that, "[g]enerally, in situations in which no improper means are contemplated or bargained for, the bargain is not invalidated merely because the compensation to a party is contingent on the enactment of legislation." Id. The court explained, id.:
The public policy is to ensure that governmental decisions are made in the public interest and not conditioned on *1203 the personal interests or gain of a particular government official.
In the present case, the mayor bargained in the public interest to preserve and protect the tax base of the city. He sought compensation from defendant for the loss to the city of a large yearly tax that would have resulted if the agreement had not been reached and the sale to the [State] approved. There is no allegation or evidence that the mayor or any of the city's agents acted improperly or with anything but the public's interest in mind. A contract that was executed in the public interest without any improper motives on the part of the parties is not against public policy and therefore not void.
City of Warwick resonates here. As in that case, there is no allegation here of any improper motive or consideration. There is no allegation by appellees that Kittleman or the Authority decided to execute the Agreement with "anything but the public's interest in mind." Id. Plainly, the Authority in 2006 determined that it was more beneficial to the public and to the agency to implement the PPV program than to permit collective bargaining by MdTAP officers. Its execution of the Agreement reflects that value judgment. The fact that the MdTA, under new leadership, has now reconsidered that judgment does not, in and of itself, permit the agency to renege on its contractual obligations.
For the foregoing reasons, we hold that the circuit court erred in granting summary judgment on the basis that the Agreement was a contingency contract to influence legislation.
2. Procurement
We next consider the MdTA's contention that summary judgmеnt was appropriate because the Agreement is a contract for the procurement of lobbying services, and therefore invalid because the parties failed to follow State procurement law in executing the contract. In a related argument, the Authority maintains that it has no statutory authority to hire lobbyists, and so the Agreement is ultra vires.
At the motion hearing, the Lodge contended that the Agreement "was not a contract to procure lobbying services from the FOP. It was an agreement to procure cars." Moreover, the Lodge argued that the MdTA's independent budgetary authority permitted the agency to purchase vehicles without submitting to the State procurement process. In its motion for reconsideration, however, the Lodge acknowledged that the purchase of the vehicles was subject to the procurement process, but alleged that the vehicles had been purchased through an existing procurement contract that fully complied with the procurement law.
On appeal, the Lodge resurrects its argument that it is not subject to State procurement law in the purchase of vehicles. Relying on the S.F.P. Article, it asserts:
The definition of procurement includes "the process of . . . obtaining services," while capital expenditures are exempt from the ordinary procurement rules. [S.F.P.] § 11-101(m). Because the Agreement contemplates the procurement of vehicles and not the procurement of the FOP's services . . ., it falls under the category of capital expenditures and is therefore exempt from the procurement rules.
In response, the MdTA argues that "[t]here is no question that the Authority is subject to state procurement laws." We agree.
Maryland's General Procurement Law is set forth in Division II of the S.F.P. Article. A "procurement contract" is defined as "an agreement in any form entered into by a unit for procurement." S.F.P. § 11-101(n). Section 11-202 of the S.F.P. Article *1204 provides that, "[e]xcept as otherwise expressly provided by law," the General Procurement Law applies in a variety of procurement contexts, including "each expenditure by a unit under a procurement contract." To understand the import of these phrases, we refer to the definitions provided by the statute. As relevant here, "procurement" includes, among other activities, "the process of . . . buying or otherwise obtaining supplies [or] services." Id. § 11-101(m)(1). In turn, "supplies" include "tangible personal property," id. § 11-101(w)(1)(ii), and "services" means "the labor, time, or effort of a contractor." Id. § 11-101(t)(1)(i). It "includes services provided by attorneys, accountants, physicians, consultants, and other professionals who are independent contractors." Id. § 11-101(t)(2).[35]
Critically, a "unit," for purposes of procurement law, includes any "entity that is in the Executive Branch of the State government and is authorized by law to enter into a procurement contract." Id. § 11-101(x)(1). Despite the agency's relative independence, we are convinced that the MdTA is an agency "in the Executive Branch of the State government," within the meaning of the General Procurement Law.
To be sure, the MdTA's independent budgetary authority arguably could suggest ambiguity as to whether the agency is a "unit" under the terms of S.F.P. § 11-101(x), considered out of context. See Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ.,
Unlike in Chesapeake Charter, we do not need to consult the legislative history. See Houghton v. Forrest,
Our determination that the MdTA is generally subject to State procurement law does not end our inquiry, however. The MdTA cites various procurement statutes and regulations that it contends were not followed in regard to the Agreement. We need not catalog these provisions because, by reciting them, the Authority is begging the question. The Lodge does not contend that the procurement regulations were followed. The issue is whether the Agreement is a "procurement contract," subject to the procurement law.
Our research suggests that the question of whether a given contract is a "procurement contract," subject to the General Procurement Law, has been given scant appellate attention. As the Court observed in State v. Maryland State Board of Contract Appeals and Law Offices of Peter G. Angelos, P.C.,
Angelos involved a contingent fee contract. The Attorney General hired the Angelos law firm to represent the State in litigation against the tobacco industry. See id. at 449-50,
The firm appealed the Attorney General's decision to the State Board of Contract Appeals. Id. at 451,
§ 15-211. Jurisdiction; finality of decisions.
(a) Jurisdiction. The Appeals Board shall have jurisdiction to hear and decide all appeals arising from the final action of a unit:
(1) on a protest relating to the formation of a procurement contract; or
(2) except for a contract claim relating to a lease of real property, on a contract claim by a contractor or a unit concerning:
(i) breach;
(ii) performance;
*1206 (iii) modification; or
(iv) termination.
(b) Finality of decisions. A decision of the Appeals Board is final, subject to any judicial review.
In response to the law firm's administrative appeal, the Attorney General moved to dismiss, arguing that the Board lacked subjeсt matter jurisdiction because the contingent fee contract was "not a procurement contract" within the scope of the General Procurement Law. Angelos,
In the administrative action, the Board of Contract Appeals determined that the firm "`is an independent contractor whose Contract is covered by the General Procurement Law,'" and denied the Attorney General's motion to dismiss. Id. at 452,
Thereafter, the Court of Appeals held that the circuit court did not have authority to review an interlocutory jurisdictional decision of the Board of Contract Appeals, id. at 456,
Notably, the Court rejected the Attorney General's claim that, "where the administrative agency has no jurisdiction over a controversy, the parties need not wait for a final administrative decision but are entitled to an immediate judicial resolution of the matter." Id. It recognized that, "[i]n situations where a controversy or matter is pending before an adjudicatory administrative agency, we have assumed, without deciding, that a party need not await a final administrative decision where the administrative `agency is palpably without jurisdiction.'" Id. at 457-58,
Regardless of how the "procurement contract" issue is ultimately resolved, it is obvious that the Board of Contract Appeals is not "palpably without jurisdiction." The contract at issue is a government contract for the procurement of legal services to be rendered to the State of Maryland. It was submitted by the Attorney General to the Board of Public Works for approval by that Board. While it may or may not technically be a "procurement contract" within the meaning of the state procurement law, the issue is obviously a reasonably debatable one. As the agency charged *1207 with making final administrative adjudications under the procurement law, the Board of Contract Appeals' determination of the issue, embodied in a final decision by the Board, would be helpful prior to a judicial resolution of the issue. This is clearly not a situation where the Board of Contract Appeals is "palpably without jurisdiction."
Id. at 458,
We glean from Angelos that the question of whether a contract with a State agency is a "procurement contract," within the purview of the General Procurement Law, is jurisdictional. Angelos teaches that, ordinarily, the question of whether a particular contract is a "procurement contract" should be resolved, in the first instance, by the Board of Contract Appeals. However, the parties need not seek initial resolution from the Board if the Board is "palpably without jurisdiction." Id. at 458,
Writing for the Court in Heery International, Inc. v. Montgomery County,
Second, "in order to invoke the `palpably without jurisdiction' standard, the agency's actions must concern the agency's `fundamental jurisdiction.'" Id. (citation omitted). In other words, the party invoking the standard must "challenge[] the underlying fundamental subject matter jurisdiction of the agency," id., and must "demonstrate that [the] agency is operating indisputably beyond its authority, and distinctly outside its fundamental jurisdiction," rather than merely misinterpreting or misapplying the applicable substantive or procedural law. Id. at 145,
Third, although Maryland cases "confirm" the standard's "availability in the appropriate case," id. at 141-42 & n. 7,
*1208 As noted, the Board of Contract Appeals is not "palpably without jurisdiction" over a "contract for the procurement of. . . services to be rendered to the State," even if that contract may not technically be a "procurement contract." Angelos,
In this case, however, whether the Agreement was a procurement contract is not "reasonably debatable." As we see it, there is no merit to the MdTA's argument that the Agreement was a procurement contractwhether to procure vehicles or services. To be sure, the Agreement contemplates that vehicles would be procured, but that does not mean that the Agreement itself was a procurement contract. Cf. Coastal Corp. v. United States,
We regard as instructive the common-sense observation of the United States Court of Appeals for the Federal Circuit, noting that the hallmark of a government procurement contract is a "buyer-seller relationship." G.E. Boggs & Assocs. v. Roskens,
We also disagree with the MdTA that the Agreement was "a contract to procure the Lodge's services in defeating pending collective bargaining legislation." In its memorandum to the circuit court, the MdTA characterized the Agreement as "a private lobbying contract through which the Authority could use . . . more than $12 million of public funds[] to seek to influence the General Assembly." We agree with the Lodge that "[t]he MdTA's assertion that the Agreement proposed that the MdTA spend $12 million to hire lobbyists is absurd." The PPV program was not an elaborate means of compensating the Lodge for advocating the agency's position to the Legislature.[41]
The Agreement is unlike the contract at issue in Angelos, where, as the Court of Appeals noted, "[w]hile it may or may not technically be a `procurement contract' within the meaning of the state procurement law," the contingent fee contract was "a government contract for the procurement of legal services to be rendered to the State of Maryland." Angelos,
Accordingly, we conclude that the Board of Contract Appeals is palpably without jurisdiction over this matter. Our conclusion resolves the jurisdiction issue as well as the merits of the MdTA's contentions on this point. Because the Agreement is not a procurement contract, it is not subject to the General Procurement Law, nor is it an ultra vires hiring of lobbyists, beyond the scope of the agency's enumerated powers.
3. Collective Bargaining
The Authority maintains that "[a]n agreement between a state government agency and its employees on a collective basis to establish employee working conditions" is "a collective bargaining agreement." In support of its motion to dismiss, the MdTA contended below that, because the Agreement called for the creation of a take-home vehicle program, it was an agreement between the MdTA and its employees regarding the "terms and conditions of employment." It asserted: "Where a uniоn seeks to enforce an agreement with a state government employer concerning terms and conditions of employment, that agreement, if it is any agreement at all, is a collective bargaining *1210 agreement, and it may not be enforced absent fulfillment of the statutory preconditions" prescribed in the State Personnel and Pensions ("S.P.P.") Article of the Maryland Code (2009 Repl.Vol.), governing collective bargaining for State employees.
On appeal, the MdTA observes that "[t]he Lodge and the Authority Police officers self-evidently did not have the right to bargain collectively, which is why they initially pursued legislation to obtain that right." It insists that collective bargaining agreements "must fulfill numerous statutory conditions to be enforceable, and the purported agreement between the Authority and the Lodge fulfills none of them." Claiming that the "preconditions to collective bargaining" were not met, appellees maintain that the Agreement is "unenforceable as against public policy."
The preconditions, discussed infra, were not satisfied, nor could they have been, because at the time MdTAP officers were not included in the program of collective bargaining authorized in the S.P.P. Article. In its memorandum to the circuit court, the Authority remarked: "It is an irony of this case . . . that the very legislation that the FOP purportedly defeated pursuant to the `agreement' would have removed one of the legal obstacles to the enforcement of the `agreement' by providing for collective bargaining rights for MdTA police officers."
That irony was not lost on appellants, who contended in their opposition, and reiterated in their appellate brief, that "[t]he FOP currently does not have the right to bargain collectively, and the Agreement is not a collective bargaining agreement."[42] Accusing appellees of "recharacterizing a simple contractual agreement as a `collective bargaining' agreement," they assert: "Nothing in the statute or case law excludes the ability to enter into a simple contract absent the availability of collective bargaining. The MdTA is assuming that collective bargaining is the sole manner in which to contract."
The first precondition to State employee collective bargaining cited by appellees is that "the employees at issue must have the right to bargain collectively." For this proposition, the MdTA relies on McCulloch v. Glendening,
Second, the employees must have elected an exclusive representative of their bargaining unit. See [S.P.P.] §§ 3-401 to 3-407. Third, the State Labor Relations Board must have certified the representative's election. [S.P.P.] § 3-406. Fourth, any agreement must have been reduced to a memorandum of understanding signed by the Governor of Maryland or a person the Governor designates to sign on his or her behalf. [S.P.P.] § 3-601(a)(2)(i). Finally, the agreement must be ratified by a majority of votes cast by employees in the bargaining unit. [S.P.P.] § 3-601(c).
In our view, the Agreement was not subject to the requirements related to collective bargaining agreements. Therefore, the Authority's claim fails on this basis.
In explaining our conclusion, we first review the Court's jurisprudence on the subject of public employee collective bargaining, including McCulloch,
In Mugford, taxpayer plaintiffs sued the City of Baltimore Department of Public Works and a union. Id. at 268,
Before considering the plaintiffs' contentions (and ultimately affirming the circuit court, see id. at 272-73,
[T]he Department of Public Works could not bind the City, by contract, in any particular relative to hours, wages or working conditions, either as to union employees, or as to all employees in the same classification. To the extent that these matters are covered by the provisions of the City Charter, creating a budgetary system and a civil service, those provisions of law are controlling. To the extent that they are left to the discretion of any City department or agency, the City authorities cannot delegate or abdicate their continuing discretion. Any exercise of such discretion by the establishment of hours, wages or working conditions is at all times subject to change or revocation in the exercise of the same discretion. . . .
* * *
The City has no right under the law to delegate its governing power to any agency. The power of the City is prescribed in its charter, and the City Charter constitutes the measure of power that is possessed by any of its officials. To delegate such power to an independent agency would be a serious violation of the law. To recognize such delegation of power in any City department might lead to the delegation of such power in all departments, and would result in the City government being administered regardless of its charter.
The Court recognized, however, that the City had a general policy of permitting employees to request payroll deductions for various items, such as "pensions and charitable funds." Id. at 272,
Some thirty-two years later, in Maryland Classified Employees Ass'n v. Anderson,
Pursuant to the County ordinance, the Maryland Classified Employees Association was certified as the employees' exclusive bargaining representative, and entered into negotiations with the County regarding employee compensation. Id. at 498,
The Association and individual employees sued to enforce the arbitration award, and the County defended on the basis that its own ordinance providing for binding arbitration was invalid. Id. at 499,
Where municipal governments have been authorized by higher law, i.e., state constitutional provisions or public general laws or municipal charter provisions, to enter into collective bargaining agreements which bind them in the exercise of their legislative discretion, the courts have generally upheld such collective bargaining agreements, rejecting contentions that they amount to invalid abdications or delegations of legislative authority. On the other hand, in the situation where neither a public general law nor municipal charter provision authorized the municipality to bind itself in the exercise of legislative discretion over public employee compensation, the courts have generally taken the position that attempts to do so in collective bargaining agreements or municipal ordinances are invalid.
Id. at 508-509,
According to the Court, "[t]he County ordinance in question plainly attempted to bind the County in the exercise of legislative discretion over compensation of its public employees." Id. at 511,
Anderson was followed by Office & Professional Employees Int'l Union, Local 2 v. MTA, supra,
Principally, the Court rested its conclusion on the canon of statutory construction, "expressio unius est exclusio alterius," i.e., "the Legislature's enumeration of one item, purpose, etc. ordinarily implies the exclusion of all others." Id. at 96,
It is established in this State that, absent express legislative authority, a government agency cannot enter into binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees. . . . [T]he MTA is an agency of the state government. Therefore, the mere absence of a prohibition against a collective bargaining agreement concerning the wages, working conditions, etc., of the additional clerical employees would not aid the Union's cause. Instead, under the Anderson and Mugford cases, the MTA may enter into only those collective bargaining agreements which are expressly authorized by statute.
Id. (internal citations omitted).
Montgomery County Education Ass'n v. Board of Education of Montgomery County,
MCEA recognized that, in the case before it, there was statutory authorization for collective bargaining over working conditions of school employees. See id. But, in construing the statutory provisions, the Court determined that it was
clear that a local [school] board's duty to engage in collective bargaining "does not supercede" its statutory authority to determine and implement educational policy. . . . Rather, [the statute] suggests a dichotomy between "matters that relate to salaries, wages, hours, and other working conditions," which are negotiable, and matters of educational policy, which are not.
Id. at 315,
Local [school] boards are state agencies, and, as such, are responsible to other appropriate state officials and to the public at large. Unlike private sector employers, local boards must respond to the community's needs. Public school employees are but one of many groups in the community attempting to shape educational policy by exerting influence on local boards. To the extent that school employees can force boards to submit matters of educational policy to an arbitrator, the employees can distort the democratiс process by increasing their influence at the expense of these other groups.
Accordingly, the Court endorsed a "balancing test" formulated by the State Board of Education to determine whether a particular matter was related to "`working conditions'" or was, instead, a matter of "educational policy." Id. at 316,
In Anne Arundel County v. Fraternal Order of Anne Arundel Detention Officers and Personnel,
*1215 The County contended that its ordinance calling for "arbitration of a public employee labor dispute . . . [was] invalid unless authorized by the Anne Arundel County Charter or by the General Assembly." Id. at 110,
In reviewing its earlier cases, the Court noted that the MTA case involved State employees, not local ones, and observed that in MTA there was a statutory authorization for collective bargaining that excluded the class of employees at issue. Therefore, the Court determined that "the MTA case clearly does not support" the County's position in Detention Officers, which involved local employees and a local ordinance that gave "express legislative authority" for collective bargaining with the subject employees and arbitration of the type of dispute at issue. Id. at 111-15,
It is true that the Anderson and Mugford cases . . . did concern the need for a certain level of legal authorization (i.e. in the charter or public general law) if a local collective bargaining ordinance purported to bind the local government executive and council in the exercise of certain powers or functions which the charter vests in the executive and council. Nevertheless, these earlier cases did not hold that every local government collective bargaining agreement and arbitration must be specifically authorized by charter or public general law. And [Anderson and Mugford] were cited in the MTA opinion only for the more general principle that a collective bargaining agreement with an arbitration provision, entered into by a government agency, must be expressly authorized by law.
Id. at 113-14,
According to the Court, Anderson and Mugford stood for the proposition "that delegation to private individuals, of certain duties involving the exercise of discretion specifically assigned by a county charter to the county executive and council, may be invalid." Id. at 115,
The County argued that "an arbitrator's decision in the representation dispute will have a substantial impact upon . . . employee compensation," because the collective bargaining agreement contained provisions for specific wage increases and overtime payments, which the County asserted would automatically apply to the lieutenants if they became part of the union's bargaining unit. Id. at 115-16,
*1216 The Court disagreed with the County's assertion that it was free to refuse to arbitrate the dispute over classification of the lieutenants. It explained:
This type of employee classification does not have the direct impact upon the Executive's and Council's duty to set employee compensation that actual determination of the wages and salary of county employees does.
An arbitrator's decision as to which representation unit is appropriate for a certain group of employees may have no effect upon the wages and salaries of those employees; it merely permits the Union to bargain with the County on behalf of the employees. Furthermore. . . the County Council and the County Executive still retain the ultimate decision-making authority with respect to employee compensation. Both the County Executive and the County Council must, in accordance with their duties under the Charter, approve any agreement reached [with] Union representatives.
Id. at 116-17,
Freeman v. Local 1802, AFSCME Council 67,
During the pendency of the appeal, the Court of Appeals decided Detention Officers. Id. at 690,
Nevertheless, the Freeman Court ruled in the County's favor. Id. at 697,
Mandamus cannot be based on a court's conclusion that the decision-making official with regard to a contract, who has refused to sign the document, has really agreed to it. The moment where the County Executive's discretion . . . has come to an end is the moment when he affixes his signature to an agreement. The trial court in this case erred in issuing a writ of mandamus prior to that moment.
In Fraternal Order of Police, Inc., Baltimore County, Lodge No. 4 v. Baltimore County,
The Court of Appeals rejected the County's reliance on Anderson and Detention Officers. It observed that the county code provisions at issue called for the passage of an annual budget, and directed that collective bargaining agreements "`with respect to wages, hours, [and] terms and conditions of employment'" must be "duly negotiated prior to the submission of the budget to the County Council." Id. at 165-66,
Finally, we arrive at McCulloch v. Glendening, supra,
The Court articulated the rule that, "`absent express legislative authority, a government agency cannot enter into binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees.'" Id. at 275,
The executive order at issue in McCulloch authorized employees to choose representatives and to bargain collectively with their employing agencies "`in good faith at reasonable times and places with respect to wages, hours, and other terms and conditions of employment.'" Id. at 276-77 & n. 4,
The McCulloch plaintiffs contended that the executive order violated the separation of powers, because the "subject of the Executive Order," i.e., wages and working conditions, "is one resting solely and exclusively within the purview of the legislative branch," and there was no "`express legislative authority'" for the executive order. Id. at 282-84,
Moreover, in the Court's determination, the executive order did not, "`without authority, abdicate, or bargain away [the Governor's] statutory discretion.'" Id. at 292,
Viewed in its entirety, but with particular emphasis on the Governor's completely discretionary power to either approve or refuse to approve an agreement negotiated pursuant to the terms of the Executive Order, it follows that the Governor, by promulgating the Order, has neither abdicated nor bargained away any statutory or gubernatorial authority.
Having reviewed the relevant cases from the Court of Appeals,[44] we turn to apply their teachings to the case at hand.
As indicated, the parties quarrel over whether the Agreement is a "collective *1220 bargaining agreement." To be sure, the Agreement arguably concerns the terms and conditions of employment, as the Authority maintains. But, the Agreement also lacks many hallmarks of collective bargaining agreements. For instance, the Agreement does not recognize the Lodge as the exclusive bargaining representative of the officers; it does not comprehensively resolve all issues of wages, hours, and working conditions (indeed, it concerns only one issue); nor does it provide for arbitration to resolve disputes.
Yet, the resolution of the question before us does not turn on the label that is applied to the Agreement. Therefore, we need not resolve the dispute over nomenclature. Even if the Agreement can be considered a "collective bargaining agreement," the Court of Appeals made clear in McCulloch that "not all collective bargaining agreements to which the State or a governmental agency is a party" are subject to the rule requiring express legislative approval. McCulloch,
In this case, the Agreement did not bargain away the MdTA's statutory discretion, or attempt to delegate to a third party the discretion of the MdTA or any other State body. Indeed, the Agreement does not delegate any decision making power to an arbitrator or any other third party. Tо that extent, the decisions in Anderson, MCEA, Detention Officers, and Fraternal Order, concerning the validity and applicability of arbitration provisions, are not controlling. On the summary judgment record before us, the only obligation the Agreement placed on the Authority was to fund and implement the PPV program. The Agreement was signed by the Authority's Executive Secretary and was subsequently ratified unanimously by the Authority.[45] The Agreement presents no danger of any party, other than the MdTA itself, controlling the Authority's purse strings.
Nor does the Agreement violate the agency's enabling legislation by purporting to arrogate to the MdTA power that it does not have. See Freeman, supra,
As we indicated, the Court of Appeals reviewed the predecessor scheme in Wyatt v. State Roads Commission, supra,
*1222 Thus, this case is unlike Mugford, Anderson, MTA, and MCEA, which concerned whether State agencies, political subdivisions, or local departments could bind themselves beyond the authority granted by their governing statutes or charters. Rather, this case is analogous to Fraternal Order, supra,
To be sure, there is some dicta in the earlier collective bargaining cases that arguably supports the view that specific legislative authorization is required for government to bind itself at all as to matters of public employee compensation, even where no delegation to a third party or subsidiary agency is involved. See, e.g., Mugford,
In McCulloch, the Court upheld the Governor's unilateral executive order establishing a collective bargaining regime without any prior legislative approval. In doing so, the Court emphasized the Governor's "completely discretionary power to either approve or refuse to approve an agreement negotiated pursuant to the terms of the Executive Order." McCulloch,
Here, the MdTA, by virtue of its plenary authority over its own budget, occupies the same position as the Governor and General Assembly in McCulloch, or the county executive and council in Fraternal Order and Freeman. As we have seen, the Court of Appeals's case law indicates that, once a governmental agency that possesses the discretionary authority to do so has entered into an agreement with its employees, it is bound by that agreement.[47]
*1223 The State waived its sovereign immunity from contract suits in 1976. See S.G. § 12-201 (codifying 1976 Md. Laws ch. 450). Since that time, it has not been an adequate defense to a contract claim for the State simply to say, "the King has changed his mind." Moreover, the MdTA did not make a promise that it had no power to keep. To the contrary, the Authority has discretion over its budget and the working conditions of its employees. Nor did it delegate its discretion to a third party, as there is no arbitration provision in the Agreement. Rather, the Authority bargained with the Lodge and exercised its discretion to commit itself to fund a program that it now no longer desires to maintain. The principles articulated in McCulloch and its antecedents do not permit the MdTA to avoid the Agreement merely because the agency has buyer's remorse.
For all these reasons, we conclude that the court erred in granting summary judgment as to the contract claim.[48]
E. Promissory Estoppel
We next consider whether the court erred in granting summary judgment as to the second count of the Lodge's complaint, alleging liability based on promissory estoppel. The parties advance the same arguments in their briefs to this Court as they raised below.
The MdTA's banner argument below, which the circuit court evidently accepted, was that "[o]rdinarily, the doctrine of estoppel does not apply against the State. . . ." ARA Health Servs., Inc. v. Dept. of Public Safety & Correctional Servs.,
The Authority quoted the elements of promissory estoppel, formulated in the touchstone case of Pavel Enterprises v. A.S. Johnson Co.,
*1224 1. a clear and definite promise;
2. where the promisor has a reasonable expectation that the offer will induce action or forbearance on the part of the promisee;
3. which does induce actual and reasonable action or forbearance by the promisee; and
4. causes a detriment which can only be avoided by the enforcement of the promise.
Acсording to the Authority, the allegations of the individual police officers failed to satisfy the first and third elements of the doctrine. Specifically, appellees argued that "the individual plaintiffs have not alleged the existence of a `clear and definite promise,' because they do not allege that they were promised a particular vehicle, nor do they allege that they were promised a vehicle for any specific duration of time." Moreover, as to the third element, the MdTA insisted that "the plaintiffs have not alleged facts to support the element of `reasonable reliance.'" In this regard, the agency rejected the plaintiffs' alleged reliance on statements on the MdTAP website listing "take home cars" as an employment benefit, and similar alleged statements by Chief McLhinney at the police academy orientation, claiming any reliance was unreasonable "[a]s a matter of law."
In support of its position, the MdTA relied upon Maryland Classified Employees Ass'n v. Schaefer,
In response, the Lodge sought to distinguish ARA Health Services, contending that the Court in that case "focused on the doctrine of estoppel particularly not applying to cases where it is sought against State correctional services, while this case does not present a similar situation." The Lodge also asserted below: "A statement by the Police Chief as well as a list of benefits provided by an official website are more than authoritative sources for an officer to rely on." In its view, "the authoritative nature of the sources of information support[s] the element of `reasonable reliance.'"
As we shall explain, we agree with appellees that this case is subject to the general rule that estoppel cannot be asserted against the State. Therefore, we need not reach the parties' arguments regarding whether the elements of a promissory estoppel claim were satisfied, and shall affirm the judgment in favor of the MdTA on Count II of the Lodge's complaint.
First, we must clearly stake out the doctrinal terrain on which the parties battle. The ARA Health Services case, on which the Authority relies, and the larger line of cases of which it is a part, do not concern the doctrine of promissory estoppel. Rather, as we shall discuss, infra, they concern the related doctrine of equitable estoppel. The Court of Appeals has distilled the essence of equitable estoppel in many cases. One of the most recent is Maryland Reclamation Associates v. Harford County,
"Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy."
Id. at 52,
Equitable estoppel "consists of three elements: `voluntary conduct or representation, reliance, and detriment.'" Hill,
In Pavel Enterprises, however, the Court cautioned against confusing promissory estoppel with equitable estoppel. See
Several courts recognize that, "to work an equitable estoppel . . . the representation in question must be of some present or past fact, while promissory estoppel rests upon a promise to do something in the future." Trollope v. Koerner,
A second distinction recognized in some cases is that promissory estoppel "is offensive, and can be used for affirmative enforcement of a promise," while equitable estoppel is ordinarily "defensive, and can be used only for preventing the opposing party from raising a particular claim or defense." Mortvedt v. State,
Other courts have remarked that, although "equitable estoppel is not actually a cause of action, [it is] . . . `an equitable doctrine that suggests a tort-related theory.'" Robinson v. Colo. State Lottery Div.,
It is clear that, despite these distinctions, promissory estoppel and equitable estoppel are related. As can be seen from comparing the Court of Appeals's descriptions of the two doctrines, they share in common that the person invoking either doctrine must have relied, to his or her detriment, on the representations (whether as to past, present, or future matters) of the other party.
As the Court recounted in Pavel Enterprises, the doctrine of promissory estoppel emerged from certain idiosyncratic classes of cases, such as construction bidding disputes, see Pavel Enters.,
For example, the charitable subscription cases involved an individual pledging a contribution to a charity. In United Jewish Appeal,
Similarly, in Pavel Enterprises, a construction bid case, a general contractor requested bids from mechanical subcontractors for use in completing a full bid for a renovation project at the National Institutes of Health.
In that context, the Pavel Enterprises Court elucidated its formulation of the elements of promissory estoppel, which we have set forth, supra, reasoning that, because the subcontractor's bid "was an offer to contract and . . . it was sufficiently clear and definite," the Court was required to determine if the general contractor "made a timely and valid acceptance of that offer and thus created a traditional bilateral contract, or in the absence of a valid acceptance, if [the general contractor's] detrimental reliance served to bind" the subcontractor to its bid. Id. at 161-62,
Thus, in Maryland, promissory estoppel is an alternative means of obtaining contractual relief. As the Pavel Enterprises Court explained: "[T]here are different ways to prove that a contractual relationship exists. . . . Traditional bilateral contract theory is one. Detrimental reliance can be another." Id. at 169,
Maryland recognizes that promissory estoppel may serve as a substitute for consideration in enforcing a promise that the law would not otherwise enforce, thus making a one-sided promise into an enforceable contract by dint of the necessary reliance having been placed on it by the promisee. Thus, . . . the nature of a lawsuit in which promissory estoppel is invoked remains that of an action to enforce a contract.
Suburban Hospital, Inc. v. Sampson,
In this case, the MdTA's principal bulwark against the appellants' promissory estoppel claim is the statement in ARA Health Services that, "[o]rdinarily, the doctrine of estoppel does not apply against the State. . . ."
The company contended "that the Department should . . . be estopрed, on equitable grounds, from denying the validity of the contract modification." Id. at 96,
For that proposition, the Court cited several cases, all of which concerned equitable estoppel. See Salisbury Beauty Schools v. State Bd. of Cosmetologists,
The wide variety of scenarios presented in the above cases, in which claims to equitably estop the State have been uniformly rejected, disposes of the Lodge's attempt to distinguish ARA Health Services on the ground that the instant case does not arise in ARA's correctional services context.
We recognize the caveat in ARA Health Services and other cases that, "ordinarily," equitable estoppel cannot be asserted against the State. See, e.g., ARA Health Servs.,
We also recognize that the Lodge's complaint alleged promissory estoppel. The line of cases on which the MdTA relies in asserting that it cannot be estopped are all equitable estoppel cases, and we have not found a Maryland case that considered whether promissory estoppel applies to the State. Nevertheless, we are persuaded that the rule articulated in the equitable estoppel cases is applicable here.
First, it appears to us that Count II of the Lodge's complaint, although styled as a "promissory estoppel" claim, may actually sound in equitable estoppel. As we have seen, promissory estoppel is a device for contractual recovery, when an element of a traditional bilateral contract is lacking. The Agreement, on its face, plainly displays offer, acceptance, and mutual consideration. Therefore, there is no need to substitute the Lodge's alleged detrimental reliance for а contractual element that is absent. Rather, it seems to us that the Lodge's use of a detrimental reliance theory is more akin to the equitable estoppel argument rejected in ARA Health Services: the Lodge seeks to use its alleged detrimental reliance to estop the MdTA "from denying the validity of the contract." ARA Health Servs.,
But, even if we consider the Lodge's complaint as a promissory estoppel claim, we conclude that promissory estoppel is also subject to the rule that, ordinarily, it may not be asserted against the State in the exercise of its governmental, public, or sovereign capacity. Our conclusion proceeds from our determination that the rationale underlying the rule in the equitable estoppel context applies with equal force in the context of promissory estoppel.
As the equitable estoppel cases cited above exemplify, the "archetypal" governmental equitable estoppel case involves a claimant seeking to prevent the State from applying an otherwise valid law or regulation because of the prior statements or conduct of public employees, upon which the claimant detrimentally relied, which led the claimant to assume that the applicable law was otherwise. See GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT 754 (2000) (discussing "archetypal governmental equitable estoppel case"). If the claimant were permitted equitably to estop the State in such a case, the result would be an outcome that directly contravened the applicable substantive law, merely because at some point a public official misspoke. As one court put it, "`[e]stoppel' is just a way to describe a decision of a subordinate official that prevails over a decision of the political branches expressed in a law or regulation." United States v. Medico Indus., Inc.,
Considering the doctrine of promissory estoppel in a similar vein, we note that the State is bound by its contracts only by virtue of its waiver of sovereign immunity. It is a bedrock principle of sovereign immunity that, "[i]f the State chooses, by legislative action, to waive its sovereign immunity, [the courts] strictly construe[] the waiver in favor of the State." Proctor v. Wash. Metro. Area *1230 Transit Auth., supra,
[R]ecovery for unjust enrichment is based upon an implied in law contract. The two concepts [of sovereign immunity and unjust enrichment] are incompatible. However meritorious a claim based upon an implied contract may be, if that claim is against the State or any of its agencies, it is barred because it is not based upon a written contract. In this case, it would also be barred because it is allegedly based upon a contract implied as a result of conduct on the part of an employee who was acting outside the scope of his employment.
Accordingly, we shall affirm the circuit court's grant of summary judgment as to Count II of appellants' complaint. As noted, we previously rejected the MdTA's asserted bases for contending that the Agreement was unenforceable as a contract, which necessitates a remand for further proceedings. In those proceedings, the Lodge cannot circumvent the State's narrow waiver of sovereign immunity by seeking to recover based on promissory estoppel. If the Lodge is to prevail in this action, it must do so as matter of contract law, not on a theory of estoppel.
F. Cross-Appeal
As noted, the MdTA has noted a conditional cross-appeal, asking that, if we remand to the circuit court, we determine the merits of its motion to disqualify appellants' counsel and exclude certain evidence, on the basis of alleged ethical improprieties involved in appellants' counsel's hiring of former MdTAP Chief McLhinney as a consultant. We decline the Authority's invitation.
The circuit court denied the motion to disqualify as "moot," without deciding the merits, because of its grant of summary judgment to the Authority. We recognize that we are authorized to review issues "raised in or decided by the trial court." Md. Rule 8-131(a) (italics added). In other words, we have discretion to consider a matter that was raised in, but not decided by, the trial court. See, e.g., Carrier v. Crestar Bank, N.A.,
Accordingly, we shall vacate the circuit court's denial of the motion to disqualify, because, in light of our reversal as to summary judgment, it is no longer "moot."
GRANT OF SUMMARY JUDGMENT REVERSED AS TO COUNT I OF PLAINTIFFS' COMPLAINT AND AFFIRMED AS TO COUNT II OF PLAINTIFFS' COMPLAINT. DENIAL OF MOTION TO DISQUALIFY PLAINTIFFS' COUNSEL AND EXCLUDE EVIDENCE VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID 50% BY APPELLANTS, 50% BY APPELLEES.
NOTES
Notes
[1] The MdTA experienced a change in leadership, occasioned by the 2006 gubernatorial election.
[2] The individual police officers were Antwan Boykin, Yancy Anthony, Kevin Hoak, Daniel Smith, Carl Pelton, Tom Shepke, Joseph Dugan, James Schuler, Stephen Kolackovsky, Ernest Wright, and Edgar Caraballo. We shall refer to all appellants, collectively, as the "Lodge" or "FOP."
[3] As the MdTA points out in its brief, the "Maryland Transportation Authority Board" is not a legal entity separate from the MdTA. Rather, the Maryland Transportation Authority "consists of" the Secretary of the Department of Transportation sitting ex officio as Chairman of the Authority, and eight individual members of the Authority appointed by the Governor. Md.Code (2008 Repl.Vol., 2009 Supp.), § 4-202(a)-(b) of the Transportation Article.
[4] When the plaintiffs' complaint was filed, Ronald L. Freeland was the Executive Secretary of the MdTA. John D. Porcari, by virtue of his office as Transportation Secretary, was its Chairman.
[5] The then-current MdTA member defendants were Susan M. Affleck Bauer, Louise P. Hoblitzell, Carolyn Peoples, Carol D. Rieg, Walter E. Woodford, the Rev. Dr. William C. Calhoun, Sr., Isaac H. Marks, and Michael J. Whitson; the sole former MdTA member named as a defendant was John B. Norris, Jr. All of the individually-named defendants were sued in their official capacities. We shall refer collectively to the institutional and individual defendants/appellees as the "MdTA" or the "Authority."
[6] As posed by appellants, the questions are as follows:
1. Is a State Agency, which is Granted Uniquely Independent Budgetary Authority by the State, within its Authority when Entering into Procurement Contracts pursuant to that Authority?
2. Is an Agreement which Incorporates an Exhaustive Set of Terms and Conditions Sufficiently Clear and Definite to be Upheld in a Court of Law?
3. Is an Agreement Consistent with Public Policy where it does not Contemplate any Improper Influence over the Legislature, is not Contingent on the Defeat of Legislation, is Properly Ratified pursuant to State Procurement Law and does not Violate any Statutory Preconditions?
4. Is a Claim for Promissory Estoppel Legitimate when the Promise, Reasonably relied upon to the Detriment of the Promisee, is Reneged by the Promisor?
[7] See MdTA v. King,
[8] The parties have not discussed the agency's functions or operations in any detail.
[9] The MdTA should not be confused with the Maryland Transit Administration ("MTA"), a unit of the Department of Transportation. See Md.Code (2008 Repl.Vol., 2009 Supp.), §§ 2-107(a)(3) & 7-201 of the Transportation Article. The MTA is tasked with developing and managing the public bus and rail mass transit services of the State. See id. §§ 7-102 & 7-204. The MdTA is also distinct from the Maryland Transportation Commission ("MTC"), a unit of the Department of Transportation created to "study the entire transportation system of [the] State," and to "advise and make recommendations ... on all matters that concern transportation policy formation and program execution." Id. § 2-205. See also id. §§ 2-107(a)(9) & 2-202 (MTC is a unit of the Department).
[10] In this opinion, we generally shall cite to the versions of the relevant articles of the Maryland Code that are currently in force, and which are (with minor exceptions) substantively identical to the versions that were in force in February 2006, when the Agreement was signed. To the extent that intervening substantive changes in the statutory provisions are relevant to our discussion, we shall note them at the appropriate juncture.
[11] Before the Authority was created, these functions were within the bailiwick of the State Roads Commission. See Bugg,
[12] The General Assembly altered the composition of the Authority by statute in 2006, after the Agreement in this case was signed, but before appellants filed suit. See 2006 Md. Laws, Spec. Sess. ch. 1. Before the statutory change, the Authority consisted of six members, rather than eight (in addition to the Chairman), who served staggered terms of three years, rather than four. Id. § 1. The new statute took effect January 1, 2007. Id. § 3.
[13] The Attorney General discussed the then-current trust agreement in an unpublished opinion in 1985, explaining that the trust agreement required MdTA's revenues to be deposited with the Authority's trustee to the credit of an "Operating Fund." See Md. Att'y Gen., Opinion No. 85-005, 1985 Md. AG LEXIS 36, at *9 (Feb. 13, 1985). In
[14] In the unpublished 1985 opinion referenced in note 13, supra, the Attorney General relied on Wyatt to determine that the MdTA's revenues "are not `moneys of the State' subject to the apprоpriation process, unless and until they are transferred ... to the Transportation Trust Fund." 1985 Md. AG LEXIS 36, at * 13. The Attorney General also opined that "full legislative control over the Transportation Authority's budget would impair the contract embodied in the Trust Agreement," and thus violate the Contract Clause of Article I, § 10 of the United States Constitution. Id. at * 14.
[15] In 2008, after the events giving rise to this case, the General Assembly passed legislation mandating that, at the time of submission of the annual "budget bill to the ... General Assembly," the Authority shall provide a detailed six-year "financial forecast for the operations of the Authority." Transp. § 4-210 (codifying 2008 Md. Laws, ch. 567; eff. July 1, 2008).
[16] In 1989, after the issuance of the Attorney General's opinion, legislation was introduced to alter the independent salary-setting authority of various executive agencies so as to establish a consistent and uniform "executive pay plan" for the Executive Branch. See H.B. 1475, 1989 Gen. Assembly. As originally drafted, the bill would have eliminated the MdTA's independent authority to "fix the compensation" of its employees. However, as ultimately enacted, the bill retained the MdTA's broad authority to fix compensation, and simply revised Transp. § 4-205 to require that compensation for executive management positions within the MdTA be "consistent with the compensation of comparable positions" in the DOT, and that "the compensation established by the Authority shall be reported to the General Assembly each year as part of the Authority's presentation of its budget." 1989 Md. Laws, ch. 831. That language appears in the Code. See Transp. § 4-205(d)(1).
[17] Notably, the Transportation Article contains additional authorization for the staffing of the Authority. Section 4-203(a) states that the Authority "is entitled to the staff provided in the State budget." Moreover, the Secretary of the DOT "shall provide the Authority with the personnel of the Department that the Secretary considers necessary for the performance of the maintenance and other functions required of the Authority to meet its obligations with respect to its transportation facilities projects." Transp. § 4-203(b). The provisions now codified in Transp. § 4-203 were part of the original enactment establishing the Authority. See Md. Ann.Code, Vol. 4A (1957, 1971 Repl.Vol.), Art. 41, § 208C(a) (codifying 1970 Md. Laws, ch. 526). That enactment also provided, however, that "[a]ll power, authority, covenants, obligations, duties and discretion undertaken and assumed by the State Roads Commission ... under trust agreements pursuant to the authority of enabling legislation authorizing the issuance of revenue bonds for ... transportation facilities projects ... are hereby transferred, granted to and vested exclusively in the Maryland Transportation Authority...." Id. § 208C(c).
In 1977, when the Code Revision Commission compiled the Transportation Article from the various transportation-related provisions found in the Annotated Code of 1957, the language of Transp. § 4-203 was drawn from the MdTA's enabling statute in the Annotated Code. See Md.Code (1977), § 4-203 of the Transportation Article, and the Revisor's Note. But, in furtherance of the statutory command that the MdTA was to exercise all power regarding toll infrastructure previously delegated to the Commission, the Code Revision Commission also created the authorization for staffing found at Transp. § 4-205(d), which was drafted as "new language ... patterned after the substantially similar provisions" that had governed the Commission's earlier superintendence of the State's toll facilities. Revisor's Note to Md.Code (1977), § 4-205 of the Transportation Article (citing, inter alia, Md. Ann.Code, Vol. 8A (1957, 1969 Repl.Vol., 1975 Cum.Supp.), Art. 89B, §§ 123(g) & 144(j) (grants of authority to hire employees and fix compensation, substantively equivalent to Transp. § 4-205(d))). The Revisor did not explicitly acknowledge that two different authorizations for staffing of the MdTA had been included in the Transportation Article, or discuss the relationship between the provisions. The Attorney General's 1988 opinion regarding the independent staffing authority of the MdTA relied solely on Transp. § 4-205, without addressing Transp. § 4-203. See
[18] During the litigation, the Lodge filed an "Amended Complaint" and a "Second Amended Complaint," which corrected spellings of names and minor factual misstatements that are not material to the appeal. We shall refer to the complaints collectively as the "complaint," unless otherwise noted.
[19] Senator John Giannetti introduced S.B. 722 in the State Senate. The bill provided for collective bargaining for MdTAP's officers. Delegate Steven DeBoy introduced a companion bill, H.B. 1151, in the House of Delegates.
[20] Delegate DeBoy's bill was withdrawn on March 6, 2006. Senator Giannetti's bill was withdrawn a week later.
[21] One appointee succeeded John Norris, who left in 2007, and the Governor filled two new vacancies created by the General Assembly's 2006 enactment. See note 12, supra.
[22] As we discuss, infra, during the pendency of this appeal, in the 2010 legislative session, the General Assembly enacted legislation granting collective bargaining rights to MdTAP officers. See 2010 Md. Laws, ch. 704.
[23] After the Lodge filed its Second Amended Complaint, the MdTA filed a "Motion to Dismiss Second Amended Complaint for Failure to State a Claim." Noting that the Second Amended Complaint did not vary the material allegations of the original complaint, the MdTA simply attached to the motion a copy of the memorandum of law that accompanied its original motion to dismiss.
[24] Given that the Agreement committed the MdTA to fund the PPV program in fiscal years 2007, 2008, and 2009, which have now passed, and that the General Assembly has now passed collective bargaining legislation for MdTAP officers, we have considered the question of mootness, although the parties have not addressed the issue. See, e.g., Prince George's County v. FOP, Prince George's County, Lodge 89,
We recognize that the advent of a new budget year can render moot certain types of budgetary challenges. See, e.g., Bishop v. Governor,
[25] Maryland Rule 2-501(f) provides: "The court shall enter judgment in favor of or against the moving party if the [summary judgment] motion and response show that there is no genuine dispute of material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Therefore, "`[i]n granting or denying a motion for summary judgment, a judge makes no findings of fact.'" Hill v. Cross Country Settlements, LLC,
In its Motion to Dismiss, the MdTA accepted "the factual allegations of the FOP's amended complaint as true for purposеs of seeking to have that complaint dismissed, including the FOP's allegation that MdTA ratified the `agreement.'" See 120 W. Fayette St., LLLP v. Mayor of Baltimore,
[26] "[T]he General Assembly has the power to establish the terms under which it will permit a waiver of immunity...." Rios v. Montgomery County,
[27] A one-year statute of limitations applies to contract claims against the State under this waiver. See S.G. § 12-202.
[28] Appellees point out that the State's waiver of sovereign immunity as to contract actions is limited to claims "based on a written contract." S.G. § 12-201(a). But, the MdTA does not contend that the waiver of sovereign immunity under S.G. § 12-201 is inapplicable to the agency. Nor did the lower court decide whether the waiver of sovereign immunity under S.G. § 12-201 applies to the MdTA. Therefore, we do not decide that question. Rather, we focus "`only [on] the grounds upon which the trial court relied in granting summary judgment.'" Catalyst Health Solutions, Inc. v. Magill,
[29] Williston points out: "A lack of definiteness in an agreement may concern the time of performance, the price to be paid, work to be done, property to be transferred, or miscellaneous stipulations in the agreement." 1 WILLISTON, § 4:21, at 644.
[30] As noted, the Agreement also states: "Provided the bills are withdrawn, and no collective bargaining legislation covering the MdTAP is passed this session, the Authority will add funds to the FY '07 budget for the first phase of the proposed PPV program, in [an] amount reasonably close to the $3.82 million outlined in the current proposal." Further, it specifies that, "[i]n each of the next two fiscal years, the Authority will continue to fund the three-year phase-in of the PPV, provided that no collective bargaining legislation covering the MdTAP is passed."
[31] To the extent that the MdTA claimed that the binder was not the "notebook," a dispute of material fact would arise, which would be fatal to summary judgment on this issue.
[32] In arguing that the Agreement incorporates the "notebook," appellants rely upon both a signed and an unsigned writing. Ordinarily, in order to incorporate an unsigned writing, a signed document must "make[] clear reference to the [unsigned] document and describe[] it in such terms that its identity may be ascertained beyond doubt." 11 WILLISTON § 30:25, at 233 The RESTATEMENT § 132, comment c, provides further guidance:
Where the signature of the party to be charged is made or adopted with reference to an unsigned writing, the signed and unsigned writings together may constitute a memorandum. It is sufficient that the signed writing refers to the unsigned writing explicitly or by implication, or that the party to be charged physically attaches one document to the other or encloses them in the same envelope. Even if there is no internal reference or physical connection, the documents may be read together if in the circumstances they clearly relate to the same transaction and the party to be charged has acquiesced in the contents of the unsigned writing.
[33] Although the authors of the binder did not "show their work" by providing the full details of how the annual cost was calculated from the numbers of vehicles and per-vehicle pricing, it is self-evident how the figure was derived:
237 marked vehicles × $29,770.36 per marked vehicle = $7,055,575.32 65 unmarked vehicles × $28,971.76 per unmarked vehicle = $1,883,164.40 $7,055,575.32 (marked) + $1,883,164.40 (unmarked) = $8,938,739.72 (total) $8,938,739.72 (total capital expenditure) over 3 years = $2,979,579.91 per year
We view as immaterial the 84-cent discrepancy in the bottom line figure. It is easily explained as the result of rounding at some point in the calculation, and in any event is insignificant in the context of a multi-million dollar sum.
[34] In 1848, the federal government had not yet waived its sovereign immunity in contract, and so if an individual sought to be compensated by the United States, the only avenue for redress was a private bill enacted by Congress. See Richard H. Seamon, Separation of Powers and the Separate Treatment of Contract Claims Against the Federal Government for Specific Performance, 43 Vill. L.Rev. 155, 175-76 (1998).
[35] The statute does not define a "contractor," but State procurement regulations provide that "`[c]ontractor' means any person having a contract with a procurement agency." COMAR 21.01.02.01B(27) (Supp. No. 26). A "procurement agency" is defined as "any principal department or independent unit of the Executive Branch of the State, not otherwise exempted from application of this title, that is authorized by law or regulations to procure." Id., 21.01.02.01B(66).
[36] The maxim is fully articulated by the Latin phrase, "expressio unius est exclusio alterius" literally, the expression of one thing is the exclusion of another. See, e.g., Hudson v. Housing Auth. of Balt. City,
[37] In its brief, the MdTA alludes to the jurisdictional issue only in passing. But, we are not at liberty to disregard a jurisdictional question. See Laurel Racing Ass'n v. Video Lottery Facility Location Comm'n,
[38] This principle is in harmony with the rule that "`an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.'" Md. Aviation Admin. v. Noland,
[39] Heery provided a "hypothetical example of an agency lacking palpable jurisdiction[:] . . . `a probate court, invested only with authority over wills and the estates of deceased persons, attempting to try someone for a criminal offense.'" Id. at 144-45,
After Heery, this Court determined, in Fraction v. Sec'y, Dept. of Corr.,
[40] Notably, the Court of Appeals for the Federal Circuit is the court that exercises appellate jurisdiction over the United States Court of Federal Claims, which has exclusive jurisdiction over most procurement contract disputes with the federal government.
[41] Under the MdTA's logic, every agreement entered into by the State could be characterized as a "procurement contract" for "services," subject to the jurisdiction of the Board of Contract Appeals. For instance, one could describe a plea bargain as a contract whereby the State "procures" the defendant's "service" of pleading guilty, with the "compensation" of a more favorable sentence.
[42] As noted, during the pendency of this appeal, the General Assembly enacted legislation authorizing collective bargaining between MdTA and MdTAP officers. See 2010 Md. Laws, ch. 704.
[43] The Court distinguished Anderson because, in that case, "the arbitrator's decision purported to bind the County Executive and the County Council in enacting the annual budget for the ensuing fiscal year." Id. at 168,
[44] In Ehrlich v. Maryland State Employees Union,
The facts of Ehrlich were that, one day before the end of Governor Glendening's term of office, his chief of staff, "upon direction by the Governor, `approved' two memoranda of understanding (MOU) with [a State employees' union] that carried a fiscal impact to the State of approximately $100 million." Id. at 599,
[45] As noted, in the posture of this case, i.e., for purposes of the appeal, appellees do not dispute that Kittleman had the authority to bind the MdTA or that the Authority ratified the Agreement. Therefore, we need not decide whether Kittleman's signature, without the Authority's concurrence, would have been sufficient to bind the agency.
[46] Notably, S.G. § 12-203 provides that, "[t]o carry out" the waiver of sovereign immunity in contract actions provided by S.G. § 12-201, discussed earlier, the "Governor shall include in the budget bill money that is adequate to satisfy a final judgment that, after the exhaustion of the rights of appeal, is rendered against the State or any of its officers or units." None of the collective bargaining cases we have reviewed has considered S.G. § 12-203. Nevertheless, if S.G. § 12-203 applies here, it would appear to affect the Governor's discretion over the budget. In our view, however, this does not compel the conclusion that the Agreement is invalid under the collective bargaining precedents (although it may have other implications for how, if at all, appellants can obtain the relief they seek). We explain.
First, it is not clear that S.G. § 12-203 would apply to the MdTA, a non-budgeted agency. See Bd. of Educ. of Worcester County v. BEKA Indus., Inc.,
Because the parties have not mentioned S.G. § 12-203 in their briefs, and the circuit court did not discuss it, we will not rule on its applicability. In any event, the Lodge must identify some "`provision for the payment of judgments'" in order to obtain relief. Brooks v. Hous. Auth. of Balt. City,
[47] In this regard, we find apt the comments of the federal court in Nat'l Treasury Employees Union v. Chertoff,
[48] In rejecting the contentions raised by the MdTA, we express no view as to any other defenses that the Authority may raise on remand, including any additional public policy objections to the enforcement of the Agreement.
Moreover, we express no opinion as to the enforceability of the Agreement under the collective bargaining statute that was recently enacted. We observe that the 2010 enactment is not substantively identical to the proposed legislation that was the subject of the Agreement. Of particular note, the 2010 legislation authorizes "all full-time Maryland Transportation Authority police officers at the rank of first sergeant and below" to participate in the existing program of State employee collective bargaining under Title 3 of the S.P.P. Article. See id. The withdrawn 2006 legislation would have created a new stand-alone program of collective bargaining for the officers. See, e.g., S.B. 722, 2006 Gen. Assembly (first reader), available at http://mlis.state. md.us/2006rs/bills/sb/sb0722f.pdf (last visited Sept. 13, 2010).
[49] Writing for the Court in Pavel Enterprises, Judge Karwacki disfavored the term "promissory estoppel," preferring instead the designation, "detrimental reliance." In Judge Karwacki's view, the latter phrase "more clearly expresses the concept intended" and "alleviate[s] the confusion [of] promissory estoppel with its distant cousin, equitable estoppel."
[50] On the facts before it, however, the Court denied recovery because the charity had not, in fact, made a "change [in] position . . . in reliance on the subscription which resulted in an economic loss. . . ." Id. at 289,
[51] Pavel Enterprises made clear that, under appropriate circumstances, promissory estoppel can also substitute for acceptance, rather than consideration. But, the Court ultimately upheld as not clearly erroneous the trial court's determination that the general contractor had not proved the reasonable reliance element of promissory estoppel. Id. at 168,