*1 862A.2d 941 TOWSON UNIVERSITY

Michael CONTE. Term, 55, Sept.

No. 2003. Maryland. Appeals Court Nov. 2004. Denied Jan. 2005.

Reconsideration *3 Davis, (J. Curran, Mark Atty. Jr., Atty. J. Asst. Joseph Gen. Gen., Cobb, Gen., brief), Dawna M. Asst. Atty. petition- on er. (Omar

Philip Zipin B. Melehy, Zipin, Melehy Vincent & Driscoll, LLC, brief), Spring, Silver for respondent. Osborne,

Woodley Deutsch, DC, B. Washington, Osborne & for Amici Curiae. BELL, C.J.,

Argued RAKER, WILNER, before *4 CATHELL, HARRELL, BATTAGLIA and JOHN C. (retired, specially assigned), ELDRIDGE JJ.

RAKER, J. case,

In this we must decide whether or to what extent jury may examine review the factual of an employer’s bases decision to employee terminate an in the absence of an ex- press directive from employment question contract. That has jurisdiction been answered in this regard with to two at-will and the employee types employees, of

different employment contract. We subject a satisfaction employee, of regard type to a third the answer with determine may only for cause. employee who be fired I. agreement be- employment an controversy surrounds University Conte, and Towson employee,

tween Michael (the University hired University), employer. In Regional of Economic the director Dr. Conte become (RESI). The Univer- Institute at Towson Studies and Dr. Conte executed sity RESI, Dr. duties as the new director Conte’s enumerated employment, and the compensation, period his as well as could be terminated. causes for which he of the Univer- came the attention In several events Dr. Conte. Most sity to the decision to terminate and led relationship with the around RESI’s these events centered (DHR), pri- Resources RESI’s Department of Human State computer source. As the owner RESI’s mary revenue software, regulations, DHR was and under federal database any by RESI’s compensation generated income entitled responsible Dr. was for devel- equipment. of DHR Conte use In DHR. acceptable methodology compensating oping an to Dr. about RESI’s complained DHR Conte June was, according to compensation, which accounting of by DHR, incomprehensible. Troubled inconsistent private DHR account- accounting procedures, hired RESI’s its and tried to resolve issues ing firm to review them attempts of these was suc- through Dr. Conte. None RESI cessful, DHR and Dr. Conte relationship and the between Haeger was University Provost John deteriorated until the Although the Univer- dispute and intervened. informed eventually able to save the contract settle sity was DHR, extremely dissatisfied costs with became disputed Dr. had handled the issues in which Conte with the manner in DHR’s con- him for the accelerated reduction and blamed $2,300,000.00 following year. fiscal tract *5 Having Conte, lost confidence in Dr. University initiated investigation internal into accounting RESI’s activities and procedures. In August University President Hoke University’s Smith directed the auditor to examine RESI’s records and to determine whether had properly RESI expenditures accounted for its and costs. A preliminary re- port of the audit November personnel revealed that costs were documented improperly, violation of University and regulations. addition, federal In the audit showed that timekeeping procedures by used RESI attributed to DHR personnel costs which were unrelated to DHR’s contract.

In November President Smith meeting convened a to discuss RESI’s status. meeting included RESI’s asso- director, director, ciate an assistant and a former assistant director who had raised concerns about Dr. manage- Conte’s ment of Shortly RESI. meeting, after the President Smith asked University’s investigate counsel whether University just had cause to During terminate Dr. Conte. investigation, problems various other with RESI came University’s attention, including irregularities in the services provided to other clients and Dr. alleged Conte’s attempt private convert RESI into a entity. After meeting, Dr. Conte was informed of the University’s intent to terminate him and request its for him resign.

Because Dr. Conte resign, refused to Haeger Provost sent him a detailed explaining letter the causes for his termination. Alleging “incompetence” and neglect “wilful duty” —two causes termination enumerated Dr. Conte’s contract —the cited Dr. Conte’s han- dling of contract, the DHR which resulted in an approximate $2,300,000 revenue loss for fiscal year 1999; RESI’s operating $930,000 estimated losses of period for the between July 1998; December RESI’s federal, failure to by abide state, and University regulations in its record-keeping prac- tices; the dissatisfaction of other clients with RESI’s work product; the dissatisfaction of several employees RESI who complained about Dr. management Conte’s style; as well as various other reasons for the termination. Dr. disputed Conte they incom- allegations

these said did constitute neglect duty contract. required or wilful petence *6 hearing University his a before the President with After brief counsel, formally position was terminated from his Dr. Conte January 26,1999. as director on a in the Balti- complaint Dr. filed Circuit Court for Conte alia, inter University, that County against alleging, the more him University wrongfully discharged had and breached the sought damages alleged for his employment his contract. He RESI, University’s wrongful as director the termination compensation by him as his to additional defined pay refusal University’s ap- and the failure to employment agreement,1 his termination as point faculty him to the after director agreement. University responded The to the required by the defenses, including that the complaint with several the defense Dr. just had under the contract to terminate University cause Conte. a in the September jury

In trial commenced before County. At the of the Court for Baltimore close Circuit witnesses, testimony judge and of several the trial evidence to jury “University that has the burden instructed the the evidence that one or more of preponderance prove a existed plaintiffs in Dr. contract for Conte’s] [causes added). (emphasis judge trial termination” The refused that, they in request jury to instruct University’s event contract, be under just required find cause to the Univer- Dr. sity permitted was to for nevertheless terminate Conte goes “common law cause” or cause to the of the “essence jury with a contract.” The returned verdict Dr. Conte’s favor, University prove by prepon- that the did not a finding just derance of the evidence cause existed under Conte, $926,822.00 Dr. and him awarding to fire damages. dismissed, discovery proceeding,

1. While was the Circuit Court grounds, compensation Dr. claim for additional limitation Conte's years fiscal 1998. University timely appeal Special The noted the Court Appeals, arguing that trial court had when it erred University jury required instructed the that the was show just cause the termination and when refused instruct jury Special Appeals, on common law cause. The Court unreported opinion, agreed in an the Circuit Court judgment. affirmed the petition filed a for writ of certiorari in this questions.2

Court to consider two 831 A.2d 3 (2003). Slightly rephrased, principal question raised petition jury may or what whether extent examine employer’s or review the factual bases of an decision to employee. question terminate an The second Dr. whether Conte’s contract was exclusive in its enumeration terminated, causes for which Dr. could Conte be *7 cause, thereby prohibiting upon any termination other based such as common law cause.3

II. petitioner’s jury’s disputes From perspective, role involving just employees cause is not to determine whether just existed, but cause to determine whether the fact faith, employer good arbitrarily capricious- acted and not or ly, just employee. when decided there was cause to fire the way, provided University genuinely Put another believed incompetent neglectful that Dr. Conte was wilfully his director, duties as Dr. incompe- whether Conte was actually or wilfully neglectful jury’s tent to inquiry. irrelevant then, According petitioner, jury’s inquiry must center cross-petition 2. We denied Dr. Conte's for certiorari. 376 Md. (2003). 3A.2d argues proving just 3. Petitioner that the burden cause or the absence Conte, thereof lies with Dr. and that the trial court erred when it assigned University. the burden to the While this issue was raised and courts, argued appellate before the trial and intermediate the issue is certiorari, petition not contained in the for and we will not consider it. 540, 562-63, Maryland Zeigler, See State Police v. 330 Md. 625 A.2d mind, not on actions motive and state of employer’s on the they for employee and whether constitute cause termination. strong judicial

Underlying petitioner’s position is the judgment pri against interfering with the business policy Dimensions, business entities. See Sadler vate (2003). end, 509, 526-27, petitioner To that Elliott v. case, Appeals heavily Special on a relies Court (1995). Trustees, Board Md.App. 655 A.2d 46 Court, Cathell, now this noted Writing panel, Judge for the becoming from involved juries courts and should refrain that decisions, they “super lest become employer’s personnel in an officers,” second-guessing an about its personnel The Elliott court Mary gleaned from own business needs. part that of bad faith on the precedent land “absent evidence an courts should be reluctant to overturn employer, of an discharge when the em employer’s decision procedures resolving its own ployer complied has 108-109, as this.” Id. A.2d at 53. Peti matters such University’s argues applicable that this rule is tioner Dr. Conte. decision terminate argument, petitioner also asserts Supplementing the to the expressly Dr. reserved Conte’s jury, right to a court or to determine University, not trial existed, i.e., fact-finding prerogative. just cause whether Paragraph employ- 6.2 of the Petitioner reasons because from the procedure appeal contract establishes ment *8 terminate, procedure necessarily that employer’s decision to University authority had the sole to determine implies that the that Relatedly, petitioner argues just whether cause existed. assigning fact-finding pre- any express provision absent trial court should not rogative third-party jury, to a de novo whether just to permitted jury have determine by preponderance a of the evidence. proved cause had been “confirm, a to as have number of urges Petitioner this Court states, an employer from other that reserves decisions employ- to an for cause unless the right terminate agreement expressly away ment fact-finding pre- contracts its short, rogative.” In petitioner proposes legal a presumption that, in interpretation employment contracts, an em- ployer fact-finding retains all prerogatives, absent express an provision stating otherwise.

In response petitioner’s arguments, respondent asserts petitioner essentially that wants to transform an express, just cause contract into an at-will employment con- tract. upon by The cases relied petitioner are all in almost of “implied” employment contracts, context as in contracts implied employee handbooks, from contracts, or “satisfaction” which the expressly right reserves the to termi- nate if it employee’s performance deems the unsatisfactory. None of express the cases deal "with contract sans a clause, satisfaction agreed like the by one both parties to litigation. this

Furthermore, respondent petitioner’s states that reading of the contract plain distorts its meaning, which indicates the intention both and Dr. permit Conte to termination only cause. Paragraph 6.2 of the contract merely promises perfunctory hearing President, before the basically a “rubber-stamp” of the decision to terminate after it unquestionably had been already. determined Respondent argues law, Maryland under party one permitted retain the fact-finding ultimate prerogative respect with to a event, breaching unless the expressly grants the fact- finding prerogative parties. to one of Respondent cites Mare, Foster-Porter Enterprises v. De (1951), proposition for the party asserting breach of prove contract must the breach actually occurred, not that it was reasonable to believe occurred. Respondent would adopt have us a rule permitting jury to second- guess University’s factual determination that it had cause to fire Dr. Conte.

Notably, party neither points Maryland case law that squarely deals jury’s role in deciding wrongful termi- nation parties cases. Both rely mainly on cases from other

78 this issue and balanced jurisdictions that have considered business with policy judgment noninterference with judicial In job security. enforcing contracts meant ensure au- shall impression, this issue first we consider external thorities, provides a precedent, but also our own case which for our decision. pathway

III.

A. should, language analysis begins, as it Our of a interpretation contract at employment of the issue. contract, including the determination of a contract whether law, subject novo review. ambiguous, question is a de Starwood, 540, 829 544 v. A.2d Sy-Lene Woods, 425, 434-35, A.2d (2003); Md. 727 Calomiris v. 353 (1999). objec 358, Maryland follow law of 362-63 courts 285, Ulico, contracts, v. Md. interpretation of Atlantic tive (2004); A.2d 376 Md. at Sy-Lene, terms contract giving A.2d at effect the clear of the may have parties to the contract regardless what to mean: believed those terms agree- language court is determine from the of the to] “[A in the of the person position itself a reasonable ment what In it was parties would have meant the time effectuated. addition, language plain of the contract when construction, unambiguous is no and a court there room presume parties they expressed. that the meant what must circumstances, is not In the true test of what is meant these mean, but parties to the contract intended it to what person position parties in the what reasonable thought Consequently, it meant. clear would have away unambiguous language agreement give of an will not thought agreement what that the meant parties intended to mean.”

Calomiris, at 363 (quoting 353 Md. at General Daniels, 254, Md. A.2d Acceptance Motors (1985)). 1306, 1310 Dr.

Paragraph 6 of the between *10 governs employment of University Conte and the termination provides, pertinent part, as follows: 6. Termination: appointment this for University may

6.1 The terminate which cause shall include:

(a) University Maryland violation of of the intentional System Regulations University regulations or (b) neglect duty wilful of

(d) incompetence

(e) misconduct

(f) criminal conduct

(g) long-term physical or mental condition which renders Dr. perform Conte unable the duties essential the position Director’s In University Appoint-

6.2 the event the terminates this ment, Director, reasons, notify for the above shall writing, sought of the is cause which termination right request hearing by of the Director to a designee. hearing President or must the President’s requested days receipt be within 30 of the Director’s In hearing written termination notice. the event no such requested, shall immediately the termination become effec- tive. legal consequences

Two can relevant our discussion be from language drawn of the contract.

First, Paragraph 6.1 of makes clear that Dr. was not an employee. Conte “at-will” The Universi whim, ty could not fire Dr. on a nor it avail Conte could itself legal protections employers the various afforded who ter employees. Although at-will employment Maryland minate Mascari, see at-will, v. presumptively Porterfield 402, 421-22, (2003); see also S. Maza 823 A.2d 601-02 Law, (2d. Maryland Horn, roff T. Employment § & 3.01 ed.2004), contract, a express implied, may whether or over- employment relation presumption and create

come only just may whereby employee be terminated ship (4th ed.2001). on Contracts § 54:41 cause. See 19 Williston just may express language the contract itself While length contractual delineation requirement, cause employ just create a cause will also employment period by specifying length term relationship because ment to have sur usually is considered employment, at its discre ability its to terminate rendered Massengill, v. Md.App. 661 A.2d Shapiro tion. See Leibowitz, Md.App. Management Chai (1995); Equip. Corp., v. Computer Gill (1982); A.2d 34 cf. to find a (refusing Md. that did not in a contract relationship cause *11 v. Balti employment); McCarter specific term of delineate (1915) Commerce, Md. 94 A. 541 more Chamber of (same). per a that provision contract contains Dr. Conte’s provision a that sets the only for cause and mits termination independently employment,4 both which period time of his trial court employee. an at-will he was not establish party and neither at-will-employee not an found that he was finding. this appealed has

Second, ambiguous is as to language of the contract the University. lies with the fact-finding prerogative whether the hand, glaring express absence of we note the On the one to fact-finding prerogative the Univer- language directing the for Dr. procedural safeguard sity. Paragraph provides 6.2 be- hearing the President the Conte —a before say it the may take effect. But does termination fore final, it intimate that is nor does President’s decision to Dr. if he remedy was foreclosed Conte judicial traditional contract is silent decision. The disagreed with the President’s in the investigation, fact-finding, or arbitration adequate as to or procedural no semblance of dispute, provides and it event imply adjudicatory that that evidentiary safeguards would employment provides employ- contract a set 4. Section 2 of Dr. Conte's period April 1996 to June 1999. ment from Murphy to University. discretion is reserved Cf. Duquesne University, 565 Pa. 433-34 (noting would be unreasonable to that an believe carefully intended that a elaborated procedure professor for termination of a tenured could be action). completely by filing of circumvented a civil Rath- er, promised hearing, all that is a a meeting, essentially, is effect, with the President before termination takes and that is all that Dr. It to Conte received. difficult read into Paragraph by parties 6.2 intention to exclude the remedy traditional disputes. court for contractual hand, difficult, On other it is if not more difficult, Paragraph having to understand 6.2 as a rational reserve, basis for existence unless it was meant at some level, fact-finding prerogative University. If the parties permit relitigation every intended fact related termination, to Dr. was it why necessary grant Conte’s Dr. to a right hearing place? response Conte the in the first One hearing provides whereby that Dr. Conte’s an avenue factual dispute might be parties mistake resolved resorting expensive litigation. before to the measure But response persuasive regard 6.2, is not Paragraph which grants “right” Dr. Conte to a hearing. Resolving disputes privately does not require giving right condition hearing to a as a effective termination. *12 always exists, That avenue even in the a provision absence of words, In Paragraph like 6.2. a hearing other would accom plish nothing that would not accomplished be in court before jury. Paragraph 6.2 would be superfluous, rendered and interpret courts do not contracts a that manner would provisions superfluous render or as having no effect. See Resources, Walker v. Human 407, 421, Dept. 379 Md. of (2004) A.2d (stating that also attempt “[w]e to construe whole, interpret provisions contracts as a their separate that, harmoniously, possible, may so if all of given them be effect”). interpretation not which is

Fortunately, need address we that, interpreta- we under because find either persuasive more contract, fact-finding University retains the tion of the reading prevails, If of the contract petitioner’s prerogative. right to the Universi- expressly reserves prerogative, ty, fact-finding retains the then permit jury lower to be and was error for the courts Nevertheless, case. because the con- the fact-finder in this assume, deciding, ambiguous, that is we will without tract correct, that lan- respondent’s reading is the contractual way fact-finding not on the of speak does either issue guage prerogative. case, decide, law employment sphere,

In must in the that we presumptively fact-finding prerogative. who retain the should already regard addressed this issue with to two We have employee types employees, at-will and the different subject employment contract. to a satisfaction We to a regard type employ- now address this issue with third who, Conte, may ee, only like Dr. be fired for cause.

B. issue, guidance on this we start with glean In order to types analysis presumptive an fact-finder in the relationships question already for this has employment which context, employment In at-will we have been answered. jury may any aspect employer’s a not held that review employer may, and that a decision terminate absent any contravening public policy, terminate reason, arbitrary, or funda capricious, even reason Porterfield, Md. at See unfair. 823 A.2d mentally 602; Hospital Dwiggins, 324 Md. Suburban (1991) (declining impose the invitation “to A.2d dealing and fair general requirement good faith at-will situations”); Adler v. American Corp., Standard (1981). purposes, For our juries may significant point courts and review (2) motivation or factual employer’s bases either *13 in employment termination the context of at-will relation- ship. however, review, step jury’s up

A is ratcheted one pursuant employ is employment when the “satisfaction” Block, Garland, See, H R Inc. v. e.g., ment contract. & and cases cited therein. Md. employment typically A satisfaction conditions em ployment employer’s on the satisfaction. As we intimated explained employment when we first satisfaction contracts (1948): Polansky, Ferris v. 59 A.2d 749 agrees “In a employer employ contract where the anoth- long satisfactory, employer er as as the services are the has right the discharge terminate the contract and the em- he, ployee, employer, acting good whenever the faith is actually employee’s applies, dissatisfied with the work. This though parties even to the contract have stipulated that operative during the contract shall be term, if provides definite the services are to be performed to the satisfaction of employer. It is not necessary grounds that there exist deemed adequate by trier employer’s He is the of facts for dissatisfaction. judge However, as to satisfactory. whether the services are dissatisfaction, justify this discharge employee, must pretended, capricious, be real and not mercenary, or design. the result of a If employer feigns dishonest dissatisfaction and employee, dismisses the discharge wrongful. employer exercising right of dismissal because of dissatisfaction honestly must do so in good faith.” 85-86, added).

Id. at 59 A.2d at (emphasis Polansky teaches that an employee subject when to a satisfaction contract, jury may employer’s review the factual bases termination, jury but is permitted to review employer’s specifically, motive for employ- termination — subjective er’s Subjective motivation. motivation means whether the was genuinely honestly dissatisfied employee’s merely feigning with the services or dissatisfaction. *14 jury may a employment in which Id. In to at-will contrast factual bases of the motivation nor the neither the review decision, employment per contract a satisfaction employer’s (1) motivation, employer’s limited jury a the mits review (2) motivation,5 not the factual bases but subjective his with the em termination, of which remains prerogative the 134; Block, A.2d at Id.; 278 Md. at H &R ployer. Sotera, A.2d Volos, Md. Ltd. v. (1972) subjective, not usual rule is that (noting that sufficiency perform applies to objective, standard of review contracts). employment issues satisfaction ance a grant great- contracts that employment Finally, there are at-will than both the protection from termination er level contracts, by which we mean the employment and satisfaction may jury To a contract. what extent just employment cause employer decision to terminate when employer’s review an except just cause? At-will promised not to terminate has employer’s review of neither employment permit contracts factual bases for termination. Satisfaction motivation nor the only employer’s of the permit contracts review employment motivation, subjective but not motivation, to his or her limited employment cause for termination. Just factual bases contracts, judice, logically permit sub such as the case decision to scrutiny employer’s jury greater to review with just a cause contracts. Does than do satisfaction terminate posits, jury’s require, respondent as employment employer’s in addition to the factual bases review of the Or, just cause contract petitioner argues, is motivation? contract, permitting review similar to a satisfaction faith,” nothing but more? employer’s “good con just employment that cause disagree we While contracts, like satisfaction we will tracts should be treated subjective applies standard to satisfaction not intimate that the 5. We do sphere. War employment See First National v. contracts outside the 652, 658-659, ren-Ehret, (noting A.2d contracts, dealing types with different of satisfaction there are different matters, applied the rule to subject the courts have not same and that them). all of step precluded by our case law in all extraordinary take the — far contracts we have so encountered —of

permitting jury scrutinize the factual bases for the Therefore, jury may decision to terminate. we hold factual termination actually not review whether the bases for they proved aby preponderance occurred whether were Instead, for its proper the evidence submitted review. i.e., objective motivation, jury role is to review the good employer objective acted faith and in whether accordance with a under similar reasonable circum stances when he there was cause to decided terminate the employee. jury’s inquiry should center on whether an *15 employer’s any upon arbitrary, termination was based capri cious, reason, or illegal reasonably on facts not believed to by employer. fact-finding be true But prerogative employer, express remains absent some intention view, otherwise. which This accord with the majority of issue, our sister states that have this precise encountered an appropriate brokers balance between the two views advo See, by e.g., Care Centers America parties. cated Life of Dexter, v. Almada v. Allstate Ins. (Wyo.2003); 65 P.3d 385 Co., 153 F.Supp.2d Thompson v. Associat (D.Ariz.2000); 1108 Growers, Potato ed 610 (N.D.2000); N.W.2d 53 Cotran v. Intern., Inc., Rollins Hall Hudig 93, 17 69 Cal.Rptr.2d Cal.4th 900, (1998); v. Vargas, 948 P.2d 412 Southwest Gas 111 Nev. 1064, (1995); Braun v. Alaska 901 P.2d 693 Fishing Com. & Bank, Agr. v. (1991); Baldwin Sisters 816 P.2d 140 Provi of dence in Washington, 127, 112 (1989); Wash.2d 769 P.2d 298 Co., Kestenbaum v. Pennzoil 20, 108 (1988); N.M. 766 P.2d 280 Simpson v. Graphics Western 96, Corp., 293 Or. 643 P.2d 1276 v. (1982); Gaudio Health Corp., Services 249 cf. Griffin 197, v. Conn. 733 Wilde Houlton (1999); A.2d 208 n. 13 Regional (Me.1988) Hosp., 1138 (refusing to limiting infer term into employer’s right fundamental force, to reduce his work express provision absent some to the contrary, due to prerogatives essential business and market forces). minority jury the role of the is to jurisdictions,

In a actually alleged misconduct occurred. determine whether v. Blue Cross & is Toussaint position leading case for this Mich., Blue (1980), Shield 408 Mich. N.W.2d fact, Michigan held the trier of Supreme which the Court cause not whether was suffi employer, determines there That employee’s warrant termination. court cient promise discharge only just an employer’s reasoned meaningless illusory would be and if the cause rendered Id. at 895. discharge. final arbiter employer was the Therefore, good just faith belief that there was employer’s cause. In other by supply to terminate could itself cause under the Toussaint words, holding, the bases of the factual by proven by must be cause asserted See, e.g., preponderance to the trier of fact. the evidence Machines, Corp., v. Raymond International Business v. Schuessler Bench (D.Vt.1997); 751-52 F.Supp. cf. Inc., Marketing mark Consulting, 243 Neb. (“If employer produces N.W.2d sufficient evidence, rebut, if may controversy, fact; however, to the the ultimate burden of goes issue trier employee”); proving wrongful termination remains with the Co., (9th Cir.1990) Parker Drilling Sanders v. 911 F.2d 191 Braun, sub silentio law, (applying Alaska cast into doubt Bank, First Alegria Idaho Nat. 140); 816 P.2d Idaho *16 (1986). P.2d Toussaint, however, Following closely on the heels of a case the Tous- by Oregon Supreme implicitly rejected Court the Graphics Corp., saint v. Western Simpson holding. 293 Or. involving P.2d case disputed a nature co-worker, threatening made to a that an remarks held when cause, employer discharge only just contracts to it does not, intent, away indication of some other contract its absent right determining to inherent be ultimate fact-finder Therefore, to just justify existed. its whether cause decision terminate, prove jury to employer need to the that just actually by preponderance cause occurred a misconduct P.2d at As the evidence. 643 1278. stated court: “In of any express agree- the absence evidence of or implied whereby ment employer away fact-finding contracted its prerogative arbiter, to some other we shall not it.” Id. infer words, court, at 1279. In other the absence of a contrary provision, presumptively contractual designated the fact-finding prerogative employer. to the agree Oregon Supreme

We with the Court that ab otherwise, express sent some indication an does not away his core function as ultimate fact-finder with regard to employer’s workplace performance. We will not interpret Dr. granting Conte’s contract as third-party, jury, authority to review the factual bases University’s decision to especially terminate him— light previous holdings, regard of our with to satisfaction and at-will employment relationships, that consistently have attrib fact-finding prerogative uted the to employer. Judge As Cathell, warned, then on Special Appeals, aptly the Court of hold otherwise would to put position “[t]o be the courts in the ... making personnel decisions, acting super personnel as a officer, Elliott, or of second-guessing company’s decisions.” (citation Md.App. 655 A.2d at 54 quotations omitted). Echoing Judge admonition, Cathell’s another su preme court that precise encountered this has issue said:

“[Allowing a jury trump to factual findings of an em ployer regard equiva would cause] create the preeminent lent of a fact-finding board unconnected challenged employer, that would right have the ultimate determine anew whether the employer’s decision to termi employee.... nate an board,’ This ex officio ‘fact-finding practical unattuned to the aspects employee suitability over which it would power, exercise consummate and unex posed to entrepreneurial significant risks that form a every basis of economy, state’s would empowered be impose monetary substantial consequences on employers whose termination decisions wanting.” are found Vargas, 901 P.2d at 699. agreement We are in with these concerns. *17 the jury, not the retains employer, premise

This “illusory” promise does not render fact-finding prerogative v. Rollins Cotran In just cause. except not terminate Hall, Hudig agreed also with Supreme Court the California Simpson encompass jury’s role did not holding that case, and it wrongful in a termination that of fact-finder the Toussaint court that this would render disagreed with Instead, jury’s was to assess role meaningless. promise employer’s factual deter- of the “objective reasonableness” To 948 P.2d at 419. flesh just cause existed. mination that employ- in the meaning objective reasonableness out the (1) context, required cause explained court ment (meaning, as we objective good faith act employer that the a stated, good perspective faith from the already have id. employer), individual employer, not reasonable a its decision on reasoned employer that the base Id. (citing by substantial evidence. supported conclusion Baldwin, 304). court, approach, an said the P.2d at Such Toussaint rule and ground between the achieved a middle The Cotran court supported its just cause doctrine. toothless persuasive it found policy considerations decision context: personnel out, permitting pointed have standard

“As several courts for the decision to the factual basis juries to reexamine typically gathered under the exi- terminate misconduct — of the workaday world and without benefit of the gencies dampens an machinery of a contested slow-moving trial — act---- willingness to employer’s jury’s remoteness from significant is the relative “Equally workplace. The decision to reality of the everyday is one that un- for misconduct terminate may turn organizational judgment commonly implicates uncertainties, grounds even where the intractable factual required If an specific. are fact for dismissal account eyewitness or an signed in hand a confession have act, workplace it can alleged misconduct before adjudicatory into an arena and effective will be transformed Although these features decisionmaking will be thwarted. *18 permitting employees do not a to be dismissed justify rule jury to arbitrarily, they asking do mean that a civil reexam- in triggering ine all its factual detail the cause of the including retrospective accuracy of decision to the dismiss — employer’s of or comprehension the that event-months even years later, imperatives in of a context distant from the the underlying with an workplace, jurispru- is at odds axiom the ... wrongful dence of termination. That axiom is the need managerial for a decisionmaking sensible latitude and its corollary, optimum point an balance the employer’s between in organizational efficiency employee’s interest and the in- in continuing employment.” terest (citation omitted). Id. at 420-421 majority high of courts that have agreement considered issue are in with Califor- nia, see supra, and so are we.

As in logical progression outlined above and addition to the our precedent, practical of running considerations a overwhelmingly business favor legal presumption a that an fact-finding retain prerogative underlying Indeed, employment. decision to good terminate this is a case example as why jury a should not permitted be to review factual employment bases for termination in the context. evidentiary judicial Because of the strict rules of a proceeding, the University was barred from into admitting evidence hear- say upon by statements relied in its termi- Nevertheless, nation decision. employers “rely often on hear- say, conduct, on past similar on personal knowledge their people’s credibility, and other judicial factors “|w]hat ignores,” process indicating that works best a judicial proceeding may not appropriate be Churchill, context.” Waters v. 511 U.S. 114 S.Ct. (1994). 1878, 1888, 128 Similarly, L.Ed.2d the University position alone was best determine whether there facts were sufficient to “incompetence” constitute and “wilful neglect duties,” two causes outlined the contract the basis for Dr. Conte’s termination. an employ- Whether was or in “incompetent” neglect ee “wilful of duties” is a question requires that not only special knowledge of vague and but it is also so overbroad in its terminol-

employer, attempt figure out terms ogy jury’s what those and especially highly competitive in the context of a mean— involving, among things, vari- complex research institute other interests, public interlocking and federal private ous clients regulations, complex accounting protocol state and the large public university to failure endeavor doomed —is uncertainty. gross cases,

Respondent Special Appeals us to two refers Court (2000), A.2d Harper, Md.App. Tricat v. De Mare as for the Enterprises support Foster-Porter *19 prove was position employer required that opposite cause a of the We do preponderance “actual” evidence. jury’s of the as fact- find these cases relevant the issue role of or jury’s Tricat did not address the issue a role finder. cause, proper of placement “actual” but instead dealt with the case, see presented of an issue not in this proof, the burden n. 3. fares with Foster-Porter Respondent no better supra case, rela- employee-employer which does not deal with the tionship (although occasionally it has been cited in that context IV). Instead, proposition, a different see Part for infra dispute a a involved standard breach of contract between manufacturer. distributor and

Finally, by respondent’s argument we that unpersuaded are held, do, many presump that have as we that cases only with to the apply tion of fact-finder lies Cotran, 69 948 Cal.Rptr.2d contract case. implied Cf “ (noting [wrongful at 414 that termination claims P.2d n. not occur promise on an that termination will explicit founded standard, just cause call for a except good may for or different depending precise provision” on the terms of the contract (second added)); emphasis Khajavi v. Feather River Anesthe Cal.Rptr.2d Group, Cal.App.4th sia Medical (2000) an wrongful discharge that unlike based on (holding contract, specified may a not be implied employment term prior expiration upon employ to the term’s based terminated misconduct), and rehearing honest but mistaken belief of er’s See, First, respondent’s is incorrect. premise review denied. (adopting at 57-59 the Cotran e.g., Thompson, 610 N.W.2d contract); holding express just in the context of an cause n. 2 v. Alaska R.R. 853 P.2d Manning Corp., 1993) (Alaska (applying just the same definition of cause bargaining agreement expressly that stated em- collective may against action ployer disciplinary take “just “appropriate” standard for cause” because this is the Second, importantly, discharges). perhaps cause and more reasoning objective good of that the cases adhere in of implied apply faith standard the context contracts equal express Respondent in context of contracts. force why distinguished. offers no reason the two should be Per- haps respondent jurisdictions do not ratio- provide other treating differently implied express nales for contracts from effect, in contracts because the two do not differ substance or only they Regarding but in which the manner are formed. formation, difference the comment to the explains, Restatement Contracts “Contracts are often spo- involves, express implied. ken The distinction howev- er, legal effect, merely no but lies in the mode difference (Second) § assent.” manifesting Restatement Contracts added). (emphasis cmt. sum, agree majority jurisdictions

In we with the jury’s in a have considered this issue hold that role *20 wrongful discharge fact- case does not include of ultimate Instead, context, in just employment finder. cause jury’s is to objective role determine the reasonableness of the employer’s discharge, decision to which means that the em- ployer objective good act faith and its on a base decision reasonably reasoned conclusion and facts believed be true by employer.

IV. Although opinion Part III of dispute this resolves the trial, require give guidance and will a new we will on the question presented, undoubtedly again second as it will arise litigation. in the employ This issue is whether Dr. Conte’s contract ment was exclusive in its enumeration of terminated, thereby Dr. Conte could be causes for which cause, any such as prohibiting upon termination based other that it This hold was exclusive. common law cause. We required of Dr. interpretation Conte’s terms, unambiguous regard with to this its which are clear pertinent part, as follows: reproduced, issue and which are 6. Termination: University may appointment this

6.1 The terminate shall include: cause which

(a) Maryland intentional violation of System Regulations University regulations or (b) neglect duty wilful

(d) incompetence

(e) misconduct

(f) criminal conduct condition which renders

(g) long-term physical or mental perform Dr. unable to the duties essential Conte position Director’s

[*] ^[*] ^[*] following shall terminate for the appointment 6.3 The reasons:

(a) acceptance employment; Director’s of other The resignation, Director’s the Director’s retirement. (b) law, if Maryland appropri- Pursuant funds are not support available to continuation ated or otherwise made July 1, position of this on or after and the Director self-supporting on a basis. operate chooses not RESI (c) Director’s death. Faculty Appointment:

7. In Director is terminated for reasons other the event the 6.1(a) provided paragraph through (g) than those 6.3(a), renewed, Appointment or if this is not the Director tenure, economies, appointed Professor of shall be *21 subject University Maryland System Appointment, of to the University and

Rank and Tenure Policies and Procedures

93 appointment and of tenured Procedures Policies as amended from time to time. faculty, clearly unambiguously and provisions find Because we these parties limit causes by manifest an intent not to terminated, Dr. we will those for which Conte could be enforce terms.

Dr. does not limit for his Conte’s contract causes by 6.1(a) (g) termination to those enumerated because the — of unam- language Paragraph 6.1 the contract clear and may biguous. University this “The terminate include shall [the causes].” cause which enumerated seven language expressly impliedly This does not or make those ordinarily causes “com- exclusive. The word “include” means Group prising not of by way illustration and limitation.” Blumenthal, v. Health Ass’n 1198, 295 Md. 453 A.2d cited v. (1983), approval Wiegmann, in State 1203 (1998). nothing Md. There is language only”— of the contract —such “shall include ordinary understanding would refute this of and the term See also Thompson, make the seven listed causes exclusive. (addressing issue, at 57 finding N.W.2d the identical exclusive). of that the list causes was not interpretation This supported by is further “may” the word in Paragraph Connoting 6.1. a permissive, discretionary ac tion, “may” the word indicates University, at its discretion, could Dr. terminate Conte for the seven enumerat causes, require ed but it did to do so. Cf. Mullan, Physician Board v. A.2d 642 v. (2004); Spencer State Board Maryland Pharmacy, (2004); Maryland-National Capital Md. 846 A.2d 341 Park Planning Corp., Comm. Silkor Md. A.2d 135 (interpreting “may” signal the word ordinary meaning permission unless the context purpose impera statute shows that it is meant to be tive). Paragraph 6.1 manifests an intention to describe types terminated, Dr. causes which Conte could be but to limit language there is no signaling parties intended those causes the ones mentioned.

Second, compellingly, perhaps and even more the textual that the Paragraph plainly context of 6.1 indicates enumerated paragraph Paragraph causes that were not exclusive. that, Director for states the event the is terminated “[i]n 6.1(a) provided those in paragraphs reasons other than 6.3(a),” be through appointed profes- and Dr. Conte will a (g) least, University. very Paragraph at At the 7 antici- sor Paragraph not listed in 6.1. pates that some causes were Respondent argues pro- that causes than “other those 6.1(a) 6.3(a)” to Paragraph through (g) refer vided for 6.3(b) imply might just alone and do that “other” causes not explanation unpersuasive objectively find exist. We this truly thing, parties If had such a unreasonable. intended way articulating logical, simple, a much more and intuitive language been to such-as “for the their intent would have use 6.3(b) Indeed, plain of this contract.” reason stated respondent’s language interpretation, of the contract refutes “reasons,” plural, indicating singular for it that the uses 6.3(b) termination only not stated is reason reason adopt respondent’s To under- contemplated the contract. of the contract would belie common sense. standing Therefore, the that contract the causes of claim intended unpersuasive. implica- 6.1 be exclusive is Paragraph University its may tion for that the base cause for petitioner is those in the contract. termination on reasons other than listed Sachs, Savings Bank v. 722 A.2d See Md. Regal that, (holding in the context of contracts, is in provision unless for termination terms exclu- sive, remedy ordinary and does bar the is cumulative material, or remedy of termination for “a breach which is which root of matter or goes essence Foster-Porter, (quoting contract” 198 Md. at (citations 333) omitted)). quotations and internal Dr. understanding This of the contract does not transform stated, already an at-will. As we employee Conte into have establishes, conceded, and it that the contract Dr. Conte Thus, only just cause. as the long could be terminated cause, it can do so its bases termination in the regardless specific just that cause included whether However, termination petitioner contract. concedes in Dr. Paragraph 7 will subject based on a cause result being appointed professorship. to a tenured Conte case, University could its termination

In this base permits on “common law cause”—which termi contract, one nate an for a “material breach” though “to goes the essence” itself—even *23 in it is not mentioned the contract. See id. But cause any could not Dr. at its or for terminate Conte discretion satisfy require other reason that would not cause ment. dissent, Eldridge

In two Judge jurisdiction his raises only quasi-jurisdictional al or issues—that Dr. Conte’s avail judicial remedy judicial was to review of the admin able seek Towson, his istrative decision the President of and that beyond year breach of contract action was filed the one Code, by Maryland § allowed 12-202 of the State Government us, state of record of those Article. On the before neither appears apposite. issues part University System

Towson of the Code, Maryland. Maryland § See 12-101 of Education 104(j)(2) Article. Education Article makes Section 12— that, except grievance with to respect appeals clear under Article, Title subtitle 2 of Education of which this one, action is not Adminis- provisions the contested case University, Act not to apply trative Procedure do is, accordingly, statutory provision any there no adminis- hearing any trative to which Dr. Conte would be entitled or APA-type judicial proceedings review administrative provided for in his contract. law,

Although, under our case courts have inher authority, by injunction, ent mandamus or adminis review alleged arbitrary, capricious, trative decisions to be or unlaw (see, Gould, in way e.g., Inj. Comp. ful some Bd. v. Criminal therein), Md. A.2d 55 and cases cited we is, cases, in all the sole held that such an action have never judicial remedy or that resort to that avenue of available jurisdictional requirement. Dr. Conte was review is a Gould-type judicial any review of administrative seeking a was, instead, seeking but by the President of Towson decision Every of contract. breach of damages for common law breach involves, extent, an to some against contract action the State improperly and agency that a or official acted allegation State contract, but this unlawfully failing comply with the that, applica- of an suggested has never the absence Court procedure, plaintiffs only statutory ble administrative remedy judicial review of the administrative decision seek for manda- through with an action comply not to injunction. mus or respect alleged comply failure to

With Conte’s bring §in one-year period provided limitations 12-202 for State, against of contract action would ing breach fact, was, timely. his His contract and appear that action on formally effectively terminated Jan employment were January action 2000. uary and his was filed *24 injunctive prior Dr. could have sued for relief Whether Conte January preclude Towson from anticipatory contract or for an breach of terminating his that is not before us—his cause of action contract —an issue did not and could not arise until the for the actual breach was, fact, terminated. Ricks, v. College Delaware State Citing relying upon and (1980) 498, 66 L.Ed.2d U.S. S.Ct. Fernandez, Chardon 102 S.Ct. 70 L.Ed.2d 6 U.S. curiam), dissent maintains that the statute of (per the begins notice of termination is issued limitations when termination is effective. Dissent- employer and not when the College at 862 A.2d at 969. Ricks claimed that the ing op. origin him on the basis of national against discriminated Supreme § and 42 1981. violation of Title VII U.S.C. only alleged that the discrimination occurred at the Court held and communicated to time the tenure decision was made Ricks, hence, filing period limitations commenced at Chardon, at at 504. In time. 449 U.S. 101 S.Ct. plaintiff complaint alleging filed a that his termi- Fernandez nation Rico of Department from the Puerto Education violated Ricks holding § Applying U.S.C. 1988. discriminatory act, proper alleged focus the time of Supreme filing began held that time for to run Court when plaintiff his received letter of termination because there was allegation any discriminatory no act after that date. 454 at 29. Ricks and Chardon inapposite U.S. at S.Ct. are allegation is no case bar. There discrimination or deprivation rights. civil OF THE

JUDGMENT COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO THE REVERSE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AND TO THE REMAND CASE THAT A TO COURT FOR NEW TRIAL. IN COSTS THIS COURT AND IN THE COURT OF SPECIAL APPEALS BE PAID BY TO RESPONDENT.

BELL, J., ELDRIDGE, C.J. and dissent.

BELL, C.J., dissenting. case,

In University, this Towson petitioner, and Michael Conte, the into respondent, employment contract, entered pursuant petitioner’s right which the to terminate respondent’s employment was being “just conditioned there cause” doing so.1 Section 6.2 1. Paragraph Employment 6 of Contract addressed the termination provides Section contract. 6.1 University may appointment "The terminate this cause which

shall include: "(a) University Maryland System the intentional violation of *25 Regulations University regulations or "(b) neglect duty wilful "(c) insubordination "(d) incompetence "(e) misconduct respondent, for provided contract2 also the notification of the sought” writing, “in of the cause for which termination is respondent request could a the hearing the President thirty receipt designee days or within the President’s a request The of the failure to notice of termination. result warned, would be that “the termination hearing, the immediately shall effective.” become accurately characterizes this contractual ar- majority The contract, rangement pursuant as a cause” one which “just cause,” “may only fired for see Towson employee be Conte, 941, 384 Md. 862 A.2d University Michael (2004), in at the opposed employee to one which serves subject employer’s to the satisfaction. will of the majority recognizes, again correctly, The also that there are an at will substantial differences between these contracts —in contract, any employee subject is to termination “for reason, arbitrary, a that is or funda- capricious, even reason unfair,” 82, 949; mentally at 862 A.2d at in a satisfaction id. contract, employee subject is termination “whenever employer, acting good actually ... faith is dissatisfied 949, work,” employee’s quoting id. at at with the A.2d (1948); Polonsky, Ferris v. 59 A.2d contract, “just employee subject cause” to termination only Id. at 862 A.2d at 950. latter good cause. The greater discharge from provides protection than other two. Id. at 950. "(f) criminal conduct long-term "(g) physical or mental which renders Dr. condition perform posi- unable to the duties essential to the Director's Conte

tion.” provides: 2. Section 6.2 of the contract University Appointment, "In the event the terminates this reasons, notify writing, the Director of the cause for above shall sought right request Director to which termination is and the designee. hearing by President or the President’s days hearing requested receipt be Director's must within 30 hearing the written termination notice. In the event no such immediately requested, the termination shall become effective.” *26 Despite “[j]ust its that employment conclusion cause con- permit tracts ... logically jury greater the review with scrutiny employer’s the decision to terminate than do satisfac- contracts,” 950, and, therefore, tion id. 862 A.2d at contracts, should not be treated like satisfaction id. at A.2d at majority proceeds just the to do nevertheless that, treat them like satisfaction contracts. defining

In the fact-finder’s limited in role the review contracts, majority satisfaction the v. Polan- relies Ferns rule, sky, quotes from which it the follows: “In a contract employer agrees employ where the anoth- long satisfactory, er as as the employer services are the has right the to terminate contract and discharge the the em- he, ployee, employer, acting good whenever the faith is actually dissatisfied with employee’s applies, the work. This though parties even the the contract have stipulated operative that the contract shall during be term, provides definite if it the services are to be performed to the satisfaction of employer. It is not necessary grounds there exist deemed adequate by trier employer’s isHe facts dissatisfaction. judge However, as to whether the satisfactory. services are dissatisfaction, this justify discharge employee, pretended, must be real and not capricious, mercenary, or the result of a design. dishonest If employer feigns dissatisfaction and employee, discharge dismisses the wrongful. employer exercising The right of dismissal because dissatisfaction must so honestly good do and in faith.”

Towson, 83-84, 949-50, 384 Md. at 862 A.2d at quoting 191 85-86, added). Md. at 59 A.2d at 752 (emphasis respect With to the “just contracts, fact-finder’s role in the review cause” it holds: jury

“... may not review whether the factual bases for actually they termination occurred or proved whether were by a preponderance of the evidence submitted for its review. Instead, proper jury objective role is to review the i.e., motivation, employer objective whether the acted with a reasonable faith and in accordance good circumstances was when he decided there under similar should employee. jury’s inquiry cause to terminate the was employer’s termination based on whether an center reason, or based on any arbitrary, capricious, illegal upon employer. reasonably believed to be true facts not ployer, absent some But the fact-finding prerogative express intention will remain otherwise.” with the em ^[3] *27 84-85, A.2d at 950. Id. at 862 decision, is “the urged by petitioner, as the

Underlying this judgment strong judicial policy private business against entities,” interfering with the business ^[4] for which proposition 378 Corp., v. Dimensions Healthcare majority the cites Sadler (2003) 655, Bd. 509, 526, 665 and Elliott v. 836 A.2d Md. Of 104 Community College, Montgomery County Trustees of (1995). Towson, 108-09, 46, 384 Md. 93, A.2d 53 Md.App. 655 is 76, majority Also critical to the decision at 862 A.2d at 945. definitively, language fails to address fact that the contract the who, jury other, as between the way question or the the one function, fact-finding id. at employer, perform will the and the thus, it, 80, 948, requiring majority, the 862 A.2d at 82, should do so. Id. at 862 presumptively which determine contract at issue as Refusing interpret at 948-49. the A.2d By limiting employer's right This latter statement is curious. 3. cause,” "just thought discharge employee, except for I would have its "express an intention provision to that effect was otherwise.” not, is, sure, Judge public university petitioner a and 4. The be dissent, out, Eldridge, points 862 A.2d 943 dissenting), private entity. uni- (Eldridge, a business Public J. contracts, however, be, be, versities, and indeed must held to their can by Adoption position espoused employment even their contracts. respondent Eldridge respect to the review to which the dissent with focus, entitled, although appellate would leave the with a different worse, better, respondent if not off than he would be under no case, as to his majority formulation-in either the decision agreed respondent party that the left to the to the contract who fate is without, otherwise, cause, expressly only for could be dismissed when, whether, reserving right and cause to itself the to determine existed.

101 basis authority to review the factual granting party third decision, con majority employer’s termination em “fact-finding prerogative” rests with the cludes that the 86-87, reasons, agreeing A.2d at It ployer. Id. at 862 951-52. Court, express Oregon Supreme with that “absent some away not contract his does indication otherwise [5] regard employ to an core function as ultimate fact-finder 86-87, at 952. workplace performance.” Id. at ee’s concludes, put be to It hold otherwise would the courts “[t]o decisions, ... personnel acting as a position making officer, second-guessing company’s or of super personnel Elliott, 86-87, 862 104 quoting decisions.” Id. at A.2d at (citation A.2d at 54 Md.App. quotations omitted). Moreover, out, majority points its result majority with the consistent result reached courts that have the issue. See Braun v. Alaska addressed Bank, Fishing Agriculture Commercial P.2d (Alaska Hall, 1991); Cotran v. Rollins Hudig Cal.4th (1998); Cal.Rptr.2d 948 P.2d 412 Corp. Southwest Gas v. (1995); Vargas, Nev. P.2d 693 Thompson Growers, (N.D.2000); Assoc. Potato 610 N.W.2d 53 Kestenb *28 Co., 20, (N.M.1988); aum v. Pennzoil 108 N.M. 766 P.2d 280 96, Western Simpson Graphics Corp., 293 Or. 643 1276 P.2d (1982); Providence, 127, Baldwin v. 112 Sisters Wash.2d of (1989); Care, Dexter, 769 P.2d 298 Inc. v. 65 P.3d 385 Life Co., (Wy.2003); Inc., Almada F.Supp.2d v. Allstate Ins. 153 (D.Ariz.2000); 1108 Gaudio v. Health Services cf. Griffin (1999). Corp., 249 Conn. A.2d n. 13 outset, little, I any, At the can if see distinction between the majority test the enunciates for “just the review of cause” repeat expressly provide 5. It is well that this contract does that and, thus, submit, respondent discharged only could be I for cause does express employer contain an indication otherwise that is contract- ing away fact-finding quality employees' his function as to the performance. workplace majority espouses The rule that the would be palatable parties' express language more were the contain contract to right reserving to the to determine was whether there “just discharge. cause” Al- applicable to satisfaction contracts. contracts and “objec- though focusing as on the review of the characterized employer, “just in the case of cause” motivation” of the tive contract, it ex- majority’s contemplation within and as really objective good to be is the what is determined plains, employer consistency and the faith with which the acted under employer actions with those a reasonable those That Id. at 862 A.2d at 950-51. similar circumstances. challenged by assessing whether the determination is made arbitrary, or upon any capricious, based termination “was reasonably be reason, on facts not believed to illegal or based 950-51, A.2d i.e. by the id. at at employer,” true in faith. good acted employer whether subjec- Notwithstanding being being its characterized Towson, one, 83-84, Md. at 862 A.2d at this is the tive applies in the case a satisfaction precise test that also it, employer’s subjec- majority contract. As describes employer “whether determining tive motivation involves honestly employee’s with genuinely or dissatisfied was 83-84, 862 merely feigning dissatisfaction.” Id. at services Thus, in a A.2d at 950. the test satisfaction terminated, whether, employer was when the Elliott, faith. acting good Md.App. was (1995).6 probative of the motiva- objective A.2d at 53 Whether motivation, or its the decisive employer subjective tion of the same; contract, kind of it is factor is the the case of either faith which the acted that counts good that defines test. rule,” judgment

I am not at all convinced that the “business treated, and and Elliott lest upon, supports, relied Sadler employee’s proof It seems clear to me that the non-existence 6. *29 purported quintessentially her termination the factual basis his or is and, therefore, good the faith. proof and a fortiori of bad faith lack of Moreover, way it an difficult to conceive of better to attack is grounds by demonstrating employer’s objective motivation than that the By reasoning, no parity which it did not exist. there is acted subjective way jury party's better for the to assess motivation. requires, in majority more the result the reaches this case. sure, and, indeed, against, To be that rule counsels prohibits inappropriately interfering the courts from with the business business, judgment private of a in limiting thus the court’s role Sadler, business. See reviewing actions of that at the 531, 836 A.2d at 668. But Sadler clear: the business judgment precluded litigation “has full of com- rule never plaints in tort A sounding against corporation. or contract the private entity, as a corporation, may be held liable for tortious contracts, officers, by conduct and perpetrated breaches its directors, agents, against Nothing and third parties.... the Id. jurisprudence 532, of this State would hold otherwise.” 668-69, (1975, 836 A.2d at citing Maryland Repl. Code Vol., Supp.) § 2-103 of Corporations the and Associations petitioner Article. The entered the contract at voluntarily. issue this case In respondent’s return for the services, agreed power to limit its to discharge respon- the thus, dent, viewed, however objectively subjectively, intend- ing provide respondent greater job security. judgment not, not, business rule does and should be construed petitioner, to shield the partially, even from its breach or to change, least, bargain parties made. than majority relies,

Rather the cases on which the majority view, persuaded, accounts, I am on both reasoning of Toussaint v. Blue Cross & Blue Shield Michi gan, (1980), 408 Mich. 292 N.W.2d 880 its progeny. IBM, See v. (D.Vt. Raymond Corp., F.Supp. 751-52 1997); Schuessler v. Benchmark Marketing Consulting, Inc., (“If 243 Neb. 500 N.W.2d evidence, produces employee may sufficient re but, and if in controversy, goes fact; issue the trier of however, proving wrongful the ultimate burden of termination Alegria Idaho First Nat. employee”); remains with the Bank, Sanders v. (1986); Idaho 723 P.2d Co., Parker Drilling (9th Cir.1990). In Tous 911 F.2d 191 saint, Michigan Supreme that, Court held like the deter minations of express agreement whether there to dis charge employee only compliance for cause and the it, termination with procedures governing question “the *30 employment termination of was breach the whether jury.” ... was the contract also one for N.W.2d 895. of, of, that court was aware and took account facts the The the may case,7 and jury may of the differ in each id. at role issues, id., present significant difficulties, if not including some cause danger, sufficiency the when the issue is the of the for termination, for judgment that the will substitute its that jury Nevertheless, considering good employer. Id. after the the instructing jury the option test faith/reasonableness notwithstanding recognition therewith its that consistent “fwjhile for promise right terminate includes the to cause reviewed, employer’s to have the decision it does not include a only with right discharged to be the concurrence id., jury,” rejected judgment communal the court both Noting and the alternative. that “[s]uch the test instruction good-cause an instruction would transform contract into a id., contract,” explained: satisfaction to employer promise has secured a “Where be cause, except has for discharged for he contracted more to act in not to employer’s promise good than the faith or be jury which permits unreasonable. An instruction to only for inadequately review reasonableness enforces that promise.”

Id.

Moreover, is an rejecting identity the notion there contracts, “just satisfaction contracts and cause” between Michigan, 7. The court in v. Blue Cross & Toussaint Blue Shield observed: Mich. N.W.2d 880 discharged employer employee "Where the claims that was for intoxication, dishonesty, specific misconduct insubordination and the alleged, employee claims he did not commit the misconduct jury: question employee is one of for the did the do what fact employer said he ... did? alleges discharged employer "Where the that the was employee presents reason and the one excessive tardiness evidence really discharged he that he was for another reason because was making money question much in commissions also is too one of jury.... always permitted jury is determine fact for the employer’s discharging employee.” true reason for (footnotes omitted). Id. at 896 concluded, promise court terminate “[a] permitted only illusory cause be if the would were discharge. be and final arbiter of the judge the sole There employer’s if the must be some review of the decision cause distinguished from the satisfaction contract.” be Id. at 895. To the expressed enforcing fear that cause only *31 discharges employee incompetence lead to and inefficien- will id. at cy, 896, is responded, employer obliged the court “no Id. enter a contract.” at 896-97. into such relies, majority on which the and therefore cases the case, majority proceed basis on the which has decided this on premise a is ordinary that antithetical to the of contract rules construction,8 unambiguous that a contract that is clear and respect rights obligations parties and may the of the obligations party be construed so as to relieve one of the rights undertook and to redefine the the other contracted to majority “a adopts legal presumption receive. The also that employer fact-finding prerogative underlying the the retainfs] 9 Towson, employment.” the decision to terminate 384 Md. at with, 8. It is well that construed in settled contracts are accordance and governed by, statutory canons the of construction. See Walker v. Resources, 407, 421, 53, Department Human A.2d of (2004). them, one, important parties’ One of and a most the is that contract, gleaned be intention is to from the words of the and when they unambigious, interpretation necessary are no or construction is or permitted. Id. legal presumption necessary given 9. A majority's assumption, the petitioner argued, language the ambiguous that the contract and does way speak fact-finding preroga- not one or the other to the issue of the 80, Towson, tive. 384 at 862 A.2d at 948. Although majority arguments conflicting did not resolve 6.2, parties meaning as to the real effect Paragraph of it does suggest possibility paragraph, hearing that the because “a would accomplish nothing accomplished that would not be court before a jury,” superfluous except reserving would be as a means of to the 81, fact-finding prerogative. Id. at 862 A.2d at 948. I can Paragraph absolutely nothing think of a that reason 6.2 has to do fact-finding prerogative. timing provision; with the is a It the date of hearing following hearing, the decision or the date of expiration requesting hearing, of the time for triggers when the Indeed, precisely Paragraph termination takes effect. that is what provides, inartfully majority may however think it is. This also submits, required, majority at This is 953. business,” running practical due to “the considerations conduct, past on ‘rely hearsay, often on similar “employers knowledge credibility, and on factors personal people’s their indicating judicial process ignores,’ that works ‘[w]hat may appropriate not be in the judicial proceeding best in a ” and, event, this context,’ any petitioner position case was in the best determine whether “alone ‘incompetence’ facts were sufficient constitute there ” quoting Id. 862 A.2d at neglect ‘wilful duties.’ Churchill, 511 U.S. 114 S.Ct. Waters (1994). rule is context and given 128 L.Ed.2d This judgment to the rule and the meaning reference business majority’s interpretation of that rule as a non-interference Surely, majority purposes. rule all does advocate should be its sole and final party one to the contract agreement. of such in the absence arbiter is, course, of contract The well settled rule construction *32 that, contrary. It is where the words of the contract the required or unambiguous, interpretation are no is clear Bank, 232, FSB, Chevy see v. 363 Md. permitted, Wells Chase (2001); 250-251, 620, given 630 is to the 768 A.2d effect to be Department See Walker v. Human contract written. of (2004). 421, Resources, 407, 53, 379 A.2d 61 Even Md. 842 ambiguous, are the when the contract terms we seek intention by may supplied parol of which be evidence or parties, the Beale American Nat’l from other extraneous sources. v. 643, 658, 78, A.2d Ins. 379 Md. 843 87 Lawyers Reciprocal, (2004). that, cases, in I am even simply unaware involving entity, parties’ business the intention can be those legal by presumption. of a determined means Judge Eldridge’s point respect governmental with to the immu- answers issue, nity dependent which timeliness the contract action the case, respondent. denying by In this the letter the filed President's specifically respondent’s respondent relief states the date termi- filing year prior that is less than to the of the nation and date one respondent's contract action.

107 event, any nothing suggests, In contract that there establishes, fact- parties much less that the intended finding solely by as to be the termination decision made Certainly, express provision of an employer. the absence effect, interpretation such an is inconsistent with the intent, successfully employee’s having as evidenced his negotiated “just only Extracting for a termination. cause” such a promise part is inconsistent with an intent on the control, give employer degree his or or her control, degree even close to that that the retains into an at will or a contract. A when enters satisfaction “just is, admits, majority significantly cause” contract as the from, provides significantly an employee different greater protection than, those two kinds of contract. other Towson, 384 Md. at 862 A.2d at 950. than simply Rather paying lip distinction, petitioner’s service to promise should be interpretation given reflected contractual relationship.

And the of a legal presumption use is not the appropriate way to ambiguity; out, resolve an as I pointed have and this held, repeatedly Inc., Court has Sy-Lene Washington see v. II, 157, 167-68, Starwood Urban Retail 376 Md. 829 A.2d (2003); 547 Langston Langston, 506-507, 366 Md. (2001); A.2d 250-51, Wells Md. at 768 A.2d ambiguity triggers intention, parties’ search in the pursuit consider, alia, of which a court must inter parol evidence, extrinsic meaning the literal or usual of the words used, meaning light of the words in of the statute as a whole and within objectives the context of the and purposes of Union, the enactment. See Marriott Employees Fed. Credit 437, 445, supra, Md. (citing A.2d Flax, (1995)); Romm v. Sy-Lene, *33 167-68, 547; 376 Md. at Langston, 829 A.2d at 366 Md. at 784 A.2d at ambiguity 1095. Even if an may by be resolved legal presumption, remains, use of a question why the still presumption should the favor employer the and not the em Indeed, ployee? logically, employer because the is not re quired “just enter into contracts may, cause” and as it often

does, authority to its discharge employees, retain considerable ambiguity against employer, should be construed the at the otherwise, evidence, by parol in or that least the absence parties employer fact-finding to have the both intended the jury employ- that court or to the responsibility and the defer employ- responsibility. of that The failure the er’s exercise is, believe, clearly that so I negotiate provision provides er to majori- that did not intend what the proof positive parties the ty as a imposes default. only majority justify legal basis on which the can the petitioner by to hold in favor of is

presumption applies it But, judgment as I have reference to the business rule. demonstrated, judgment may preclude while the business rule substituting judgment a court from its for that of the business case, is at core of a it was intended judgment whose never entering from into contracts with such prevent the business way nor to or impact, terms as the business desires one other, bargain party that the business and the other differently, parties to the contract made. Stated the business not, not, judgment change and should the terms of a rule does arms That this is so negotiated length. is made required away that no to contract by clear the fact business employees; to a ability agree its to terminate its need “just cause” contract. sure, majority’s permitting jury

To be concern justified was to be the final arbiter of whether the termination may position legitimate. in a difficult It put well, might situation in this may very and well be the mind, however, in concurring It should be borne as- the case. Cotran out, dissenting pointed that “the difficul- and Justice employer’s is matched or ty position exceeded wrongfully and plight falsely employ- of a accused terminated (Kennard, legal who is all redress.” 948 P.2d at 428 ee denied is, short, J, concurring dissenting). good It well and employer, is fair to but what is be concerned about what should, must, employee fair to the also be considered well, majority adopts, being seriously. and as The rule the very entity, places business deferential *34 position permitting jury at least as difficult as to review employer’s place employer. the termination decision would the positions gives The difference between the two is that one terms, bargain made, contract parties effect the the the parties agreed while the other does not. both Because the written, terms, enforced, as the contract should be written. majority’s expressed evident and concern that

everyday reality workplace respected and that protected efficient conduct of business is is reminiscent of the expressed by dissenting concern Sanders judge in Drilling Parker Company, supra. case, In F.2d that propriety jury’s the issue was the employ- review of the er’s decision to terminate employees smoking some its marijuana employer’s on the rigs, company oil violation of Id. policy. majority’s at 192. Consistent with the holding in case, employer argued this jury’s responsibility that the reviewing the decision should be limited to determining wheth- good er the decision “was based on a faith belief that [the employees] marijuana smoked on oil rigs, not whether the Id. at 193. allegation actually was true.” rejected The court argument, holding that question was whether employees actually marijuana. smoked view. Id. at 204-218 judge

One took contrary (Kozinski, J., dissenting). expressed He expan- concern that the more jury sive role would an impact have adverse on the employer’s obligation to provide a working safe environment give and did not employer’s sufficient deference to the policies against drugs the use of workplace, opining, in part:

“Working rig dangerous on oil requires business. It concentration, precise total timing, degree a fair of coordina- tion significant and a amount speed. Rig accidents can have disastrous consequences, ranging from severed limbs and multiple deaths to despoliation massive of the environ- goes ment. It without saying drug place abuse has no rigs on oil company and that a operating rigs oil has the right indeed, obligation take decisive action when — —to employees its that some of information

it obtains reliable duty. abusing drugs while may be that did that. company of a unhappy tale “This is the employees that three reasonably believed officials Company Two repeatedly. not once but job, on the drugs had used *35 the com- drug-using employees; fingered the eyewitnesses precipitously, but not promptly, matter pursued the pany before yet eyewitness a third from obtaining confirmation was taken action personnel discharging the violators. manner, any from balanced, detached, free professional in a company Had the animosity. personal hint of rancor responsibili- its betrayed it have decisively, would acted less all share. we and the environment ty employees to other done, employees walk fingered and when all is said Yet dollars, company million while third of a with a cool off tab, scratch its lawyers its and pay pick up is left a differently. It is it have done wondering what could head the bitter contemplate as we might ponder all question we morality cockeyed tale.” of this lesson pointed court out: Responding, the at 204-205. Id. obligation pro- with Parker’s sympathizes “The dissent It cites employees. for its working a safe environment vide drugs as authori- against the use of arguments strong policy not believe Judge Kozinski does Alaska’s law. ty to alter second-guess prerogative to should have the jury marijuana on plaintiffs smoked Parker’s determination concern Judge Kozinski’s Although we share rigs. oil not believe respectfully do safety workplace, in we centuries to water down provides us mandate that concern system. justice in our civil juries of respect place for the appellate system jurisprudence level of our At this —the judges as is not whether confront issue we level—the to our is a threat and narcotics serious drugs use of certain marijuana is is, use of nation, or whether which is, but whether rigs, oil which it to workers on dangerous present- jury supported the evidence of the the verdict turning our waged without drugs can be The war on ed. resolving factual in juries rightful function on the back disputes.” applicable appropriate as response This

Id. at 195. to, the for, and deference Respect judice. sub to the case be, in an be, given may and should rule judgment business is at judgment business case, employer’s when the appropriate intended, to used, and it was not be It should issue. businesses contracts between emasculate, express in cases in juries functions rightful “the employees, individuals playing of the the end disputes” or render resolving factual steep and ever in such cases employees allocated to the field increasing incline. made and judgments as to the business

Certainly, evidence jury and the admissible may well be the rationale them light appropriately have to be instructed would same, however, abdicating to the This is not the evidence. efficacy of that itself, to the final word as business which the case *36 and its determinative effect judgment important, as applied. Just judgments business were those not, any they struck does bargain to the holding parties Indeed, really rule. judgment way, undermine the business judgment it; all, of business it is after the exercise enhances terms. and enumerated specific into a contract with to enter a contract judgment negotiate to Having its business exercised favor- it, contract terms incorporated in which it acceptable decide, in it, not be allowed then able to the business should how, and, so, if those guise judgment, of business whether favorable, it, favor- but uniformly acceptable, but terms applied. interpreted and employee, are to be able to the I dissent.

ELDRIDGE, J., dissenting. dissenting opinion, Judge Bell’s majority opinion, Chief as an this case below, parties, all treat courts and the action which was of contract common law breach appropriate that this “breach position timely majority takes the filed. The so-called business controlled of contract” action is rule, i.e., judgment strong judicial policy against “the interfer- ing judgment with private the business business entities.” Opinion action, 862 A.2d at emphasis added. This however, does not judgment involve the business of a private entity. The defendant Towson is a govern- state entity. employment ment Conte’s awas con- public tract with an agency Maryland. State

The difference private employment between contracts and public contracts, only cause, terminable has (cid:127) substantial ramifications.

First, appropriate if it were to treat this lawsuit as a action, common law breach of contract I believe that untimely lawsuit would be one-year under limitations period against for breach of contract actions government state agencies (1984, forth in Maryland set 1999 Repl.Vol.), Code § Therefore, 12-202 of the State Government Article. by governmental suit would be barred immunity.

Second, I believe that it would appropriate be more to treat this action a Maryland common law judicial action for government adjudicatory review a state pro- administrative ceeding, and to remand agency the matter to the for proper findings of fact and conclusions of law.

Finally, regardless of whether Conte entitled to an admin- hearing findings law, istrative with of fact and conclusions of judicial action, or to a breach of contract judg- the “business applied by ment” majority rule has no application to a governmental employment relationship only terminable process cause. Under due principles applicable to the state government, an employee position in Conte’s entitled present his defenses and obtain a de novo determination either in an hearing administrative which complies Maryland *37 law or in court.

I. Bell, If majority, Judge below, Chief the courts and parties were in treating correct this case as a common law action, breach of contract it was not filed within year one arose, the date on which claim required by Maryland as (1984, § Repl.Vol.), Code 12-202 of the Govern State Therefore, by governmen ment Article. the suit was barred immunity. tal

Although private a subject breach contract action is to a three-year may of limitations by statute which be waived a issue, to raise a against failure breach of contract action a Furthermore, agency year. state must be filed within one recently by reaffirmed this Sharafeldin, Court State v. 129, 140, (2004), one-year Md. period bringing against govern- breach contract action a state limitations, agency ment is not “a mere statute of waivable at by agencies will respective attorneys.” State or their Court Sharafeldin, Md. at 854 A.2d at §§ that concluded the enactment of 12-201 and 12-202 of the State Government Article

“was intended as a conditional waiver of the State’s sover- actions, eign immunity in contract which was to be accom- plished by precluding the agencies State its from rais- ing that defense if the action was founded on a written by contract executed or employee authorized official brought one-year the action was within If period. brought however, action was not within period, it was sovereign immunity ‘barred.’ The enjoyed that the State effect; remained in by could not be waived subordinate agencies or their attorneys, agencies and thus the were required by hold, law raise the therefore, defense. We § 12-202 is not mere statute of limitations but sets forth a condition to the action itself. The waiver of the immunity State’s vanishes at the end of one-year peri- od....”

Because neither Towson nor attorneys its may governmental waive the sovereign issue by immunity failing it, to raise this Court “must consider whether the of sovereign doctrine immunity applicable in this case even though it previously was not parties.” raised Board v. Inc., (1976).1 John K. Ruff, 366 A.2d parties 1. The in ihe courts below did raise the issue of the timeliness of compensation years Conte’s claims for in fiscal 1997 and and the *38 University, on No- resign, Towson After Conte refused 1998, by that it had cause 20, Conte letter notified vember pro- will and “that employment his terminate cause.” University employment your to terminate ceed was that Conte 20,1998, went on to state letter November The as RESI Director” your responsibilities being “reliev[ed] leave, pay with full administrative “on being placed was and Then, effective. the termination became until and benefits” Provost 1998, signed by the 10, ten-page letter on December Conte, informing University was hand-delivered Towson employment; his University terminated Conte your supporting “the reasons set forth 10th letter December termination.” of Towson hearing President before the requested

Conte contract, and for in the University, provided 18, January hearing on L. held the Hoke Smith President 21, 1999, notified Conte January President Smith 1999. On in the set forth for the reasons was terminated that he was “effec- the termination letter December 26, 1999.” President January of business tive the close para- one short consisted of January 21st decision Smith’s law conclusions of findings of fact or contained no graph and at the arguments made introduced upon based evidence hearing. of contract action filing limit for a breach statutory time

The Jones contract. initial breach begins to run from the (1999), Hyatt, 639, 648-649, 741 A.2d filed case at bar was complaint there cited. cases 24, 2000. Monday, January Court on in the Circuit was last 21, 1999, date on which Conte January If his cause of termination, was date on which his notified of period set arose, by year the one action was barred action §by 12- were barred Special Appeals held that those claims Court cross-petition for a writ Conte’s Article. 202 of the State Government It holding denied the Court. challenging that was certiorari concerning timeli- previously has been raised appears that no issue entire action. ness of Conte’s The one- Article. Government §in 12-202 of the State forth Thurs- expired either January from year period latest, January Friday, January or at the day, of action cause of contract Obviously, if his breach 2000. *39 first 20, 1998, was when Conte earlier, on November accrued suspended, and was proposed of the termination notified of his termi- again notified 10, 1998, he was when December pre- reasons, one-year period given detailed nation and of breach long expired. Conte’s § 12-202 had scribed under one-year period only if the timely contract suit was was until his termination begin to run § 12-202 did not January payroll from the and was removed he effective 1999. case- asserts, citing any without baldly majority opinion

The reasoning, authorities, any and without law or other employ- of his breach” of action for the actual “cause Conte’s “effectively termi- the contract was contract arose when ment at 957. January Opinion 1999.” nated on authority this contrary This is erroneous assertion and elsewhere. Court employment contract between

If a there were breach likely that the breach University, it is and Towson Conte 10, 1998, 20, 1998, when or December occurred on November was terminat that the contract informed Conte status, employee’s in an change A suspended ed and Conte. to constitute breach suspension, such as a has been held is employee’s pay though the employment contract even § On Contracts changed. not terminated or See Corbin 2002). Furthermore, (Interim the fact that at 752 Edition does not action plaintiff may have defenses to the defendant’s running of limitations. necessarily prevent the Himelfarb Cf. 698, 705, A.2d 301 Md. Express Company, v. American (“From Maryland standpoint of the ... contracts, ... claimed defense [the] common law of plaintiffs] cause prevent [the accrual ineffective begins to tick while limitations clock action.... The defense is deciding whether asserted [contracting party] meritorious”). § 12- period under year the one Consequently, probably 20, 1998, started to run on November or Decem-

ber despite Conte’s assertion of defenses at the January 18,1999, hearing. any rate,

At occurred, of contract certainly breach had arisen, and Conte’s cause of action clearly by January 21, had 1999,when for third Conte and final time was notified that the contract was terminated.

This repudiation Court has held that of an contract, even performance, before the time for “in judg- our ment, gave constituted a breach which right an immediate action and plaintiff entitled the damages,” Dugan recover Anderson, (1872). majority opinion that, implies “injunctive relief,” purposes Conte’s cause may of action have accrued when Conte was notified of the termination, purposes but that for anof “actual breach” of action, money damages, Conte’s cause of action termination, accrued on the effective date of the which was *40 26, January Majority opinion 96, 1999. at 862 A.2d at 957. position directly Anderson, This contrary Dugan v. supra, Dugan Md. 567. The case was a breach of contract law, action at money damages, in a court which had (the jurisdiction only in actions at Superior law Court of City).2 Baltimore

In common law of employment actions, breach as as statutory upon well actions based wrongful breaches of employment wrongful contracts or employ- terminations of ment, general that running rule is of begins limitations when by notice termination is issued and not when the termination becomes effective.

For example, leading Fernandez, in the case of Chardon v. 6, 28, (1981), U.S. 102 S.Ct. 70 L.Ed.2d employees were 18, 1977, prior notified to June employment their would terminate at effective dates between August June and 1977. employees One these brought June Furthermore, injunction 2. equitable, because an action for an in such against private employer, an action the statute of limitations would ordinarily directly applicable, be and the timeliness issue would be governed by principles of laches. employment pursuant action for unlawful termination to a which, 12-202, § Maryland’s one-year statute like had a period Appeals limitations. The United States Court of for the Circuit, First majority today, like the held that the limitations period begin running did not employment until termi- ended, nation actually became effective that, therefore, timely. Supreme the action was States, however, reversed, Court of the United holding that period began the limitations employee to run when the was explained notified of the termination. The Court that “[t]he they [respondent fact that employees] and other were afforded reasonable notice cannot period extend the within which suit Fernandez, be filed.” Chardon v. must supra, 454 U.S. at 102 S.Ct. at 70 L.Ed.2d 9. Court case is Delaware State leading Supreme

Another Ricks, v. College U.S. S.Ct. 66 L.Ed.2d 431 (1980), which was an action college professor upon based alleged unlawful termination of his employment. The Supreme Court held that the statute of began limitations run from college professor the time the was notified he would be terminated, denied tenure and would be and not from the later date when the termination was effective. cases, state,

Numerous both federal and upon have relied Chardon and Ricks Supreme Court’s opinions, persua- authority, sive limitations, hold that statute in an employee’s upon action based employment, termination of begins to ran from the time the received notice the termination and not from a later date when the termi- nation became effective or employment actually ceased. See, e.g., Cooper St. Cloud State University, 226 F.3d *41 (8th 965, Cir.2000) 967 (Relying upon Delaware College State Ricks, v. supra, the United States Court of Appeals stated: hold “[W]e that the of began statute limitations to run when college decision, announced its official tenure rather than Holmes v. Texas A M & Univer- termination”); at the time of (5th sity, 145 F.3d 681, Cir.1998) (Texas 684-685 statute of limitations ran from university the notice to professor that he would be than terminated rather from the later date when

118 decision, university its with the United States re-affirmed Ricks concerned the “Although stating: Appeals

Court filing complaint for with the EEOC statute of limitations here, period we than the Texas limitations at issue still rather Ricks Thur opinion persuasive point”); on this consider the (5th Co., Sears, Cir.), v. Roebuck & 128, 133-134 F.2d man 952 (1992) denied, 136, 121 845, 89 cert 113 S.Ct. L.Ed.2d 506 U.S. allegedly improp action a state (Employee’s under statute and Tele termination); Telephone Miller v. International er denied, (2d Cir.), cert. 20, graph Corp., 755 F.2d U.S. (1985) Chardon v. 148, (citing L.E.2d 122 106 S.Ct. Ricks, Fernandez, College Delaware State v. su supra, pra, the statute limitations “starts court stated employee when the receives definite running on date Daniels v. termination, upon discharge”); his notice Co., (9th 622, 623 Division Cities Fesco Service 733 F.2d (“[A]n Cir.1984) liability wrongful discharge employer’s employee’s upon notice of the termination even commences continues to after though the serve Ricks, v. College Delaware notice,” State citing of such receipt although the cause of action before the Ninth Circuit was v. Entergy Corp., Eastin law); 865 So.2d under California rule____Conse (“[W]e (La.2004) adopt the Ricks/Chardon year case, of one prescriptive period in the instant quently, ... each to run for each of the Plaintiffs on the dates began terminations”); Martin respective notified of their them were Inc., Management, Resource Mont. Special (In employee’s P.2d 1088-1089 breach of and Ricks action, cases, the Chardon discussing after Supreme agreed employee’s the Montana Court termination,” notice upon of action accrued of her “cause ... for a claim the elements needed of breach were “[a]ll is from the decision to terminate itself present then” “[i]t redress”) original); Delgado (emphasis which Martin seeks Otros, v. De Y Rodriguez Ferrer 121 P.R. Dec. 1988) (The employee’s Rico “cause (Supreme Court Puerto accrued on he was notified of of action March when * * * action was and should his removal. time-barred

119 Fernandez); v. relying upon Chardon dismissed,” have been 412, 414 Regents, 902 S.W.2d v. Tennessee Board Webster of (A of Finance and university’s Director state (Tenn.App.1995) 1991, 3, “that he September Accounting notice on received Sep 30 effective employment, from his would be terminated ended. 1991, his contract for services day on which tember After 1991.” September until 30 Plaintiff continued to work Ricks, court held College Delaware State discussing 1991, 3, and that September began to run on limitations by the one- action, was barred September filed Yoonessi v. State limitations); year statute of of appeal (W.D.N.Y.1994), York, 1005, 1014 New F.Supp. 862 denied, 1075, (2d denied, cert. Cir.1995), 516 U.S. 56 F.3d 10 (1996) (“[T]he date the decision 779, 133 730 L.Ed.2d S.Ct. period begins the limitations when] was made [is terminate employee was notified ..., run or on the date the v. Puerto Ricks); Montalban citing Chardon decision,” (D.P.R. Inc., F.Supp. Management, Rico Marine Rodri Delgado 1991) principle of Chardon (Applies the Ferrer, all causes of actions supra, v. Nazario de “that guez has accrue” when the employment termination termination, and not from the later knowledge notice or date).3 effective Corp., 729 N.E.2d 89 Ohio St.3d In Oker v. Ameritech

3. Ohio, (2000), Ohio statute Supreme in an action under an Court of discrimination, principle age apply the of Dela- relating declined to holding period limitations did College that the ware State v. Ricks. In Supreme day employment, the Ohio begin until the last not to run Instead, the court disagree opinion. Ricks Court did not with the expressly distinguished provision in the Ohio statute of a Ricks because language in the and because of other providing for liberal construction Ohio statute. however, disagreed the rule Oregon, has Supreme The Court of that, Ricks, wrongful holding based on in a tort action set forth relationship employment discharge, runs from the end of the limitations day employment. discharge on the last because the tortious occurred (1998). Laboratories, Stupek v. Wyle 963 P.2d 327 Or. minority Oregon view. position by the court is a distinct taken bar, Moreover, distinguishable case at as it Stupek from the case is discharge. breach of In an action for involved a tort action for abusive contract, clearly appears to be accord Maryland law Many cases, although on Char- specifically relying other Ricks, See, don e.g., Eisen position. have taken the same America, berg v. Insurance Co. North 815 F.2d *43 (9th Cir.1987) in (Holding, diversity governed by case Cali law, fornia ‘employer’s liability wrongful for dis “[a]n charge upon commences of employee’s notice termination though employee even continues to serve the Johnston v. Farmers Alliance ”); of receipt after such notice’ Mutual Insurance 543, 548, Company, 312, 218 Kan. 545 P.2d (An (1976) employee 317 was of notified his termination on 1972, 3, March although paid through May 31, 1972, he was Kansas, Supreme and the Court of holding the action time-barred, “plaintiff was reasoned that sustained substantial injury upon receipt of official notice of termination on March 3, 1972, date”); and his of action cause accrued on that Board, Nicholson v. the Baptist St. John Parish School 707 considered, writ not (La.App.) So.2d 95 716 So.2d 879 (“The (La.1998) begins prescriptive period run when the actual or constructive notice of plaintiff has alleged termination”) (italics v. wrongful Morgan Mussel original); white, 390, 393, review N.C.App. 151, 153, 399 S.E.2d denied, (“By N.C. 407 S.E.2d 536 no later than spring of ... plaintiff knew [that] defendant no longer planned employ him. It was at this time that his arose”). cause of action

Moreover, where, even situations after of notice termi- nation, employee is entitled to invoke contractual or other grievance procedures procedures or administrative to chal- termination, lenge the the statute of limitations for an inde- pendent contract, tort, of statutory breach action based upon termination, begins to run from the time of notice grievance from the decision under the or administra- See Holmes v. Texas A & M University, procedures. tive (“Holmes supra, 145 F.3d at 685 equitable deserves no tolling pendency university grievance procedures”); of his Anderson, opinions. Dugan with the Ricks and Chardon See v. (1872). Montana, 498, 502, 260 Mont. University Walch (1993) (After termination, notice of P.2d discharge,” his but the grievance contesting plaintiff “filed began run of Montana held that limitations Supreme Court notice, of action for stating from “that a cause ning employment, from whether it is based wrongful termination wrongful ... or a common law dis breach of the covenant claim, upon employee’s] notice of termi charge [the ‘accrued ”); ex rel. The Zachary Depart nation’ v. State Oklahoma Corrections, (Okl.Civ.App. 1172-1173 ment 34 P.3d 2001) (Limitations began to run received when the his notice of termination and not when his administrative exhausted); Yoonessi v. State remedies were (“[T]he York, F.Supp. filing New at 1014 supra, pendency grievances union did not toll ... his with the period filing”); Montalban v. Puerto Rico Marine Man *44 Inc., 774 agement, supra, F.Supp. at 78.

If present case is to be treated as a breach of contract action, untimely. circumstances, it was judg- Under these ments below be vacated and the case should be should re- manded to the Circuit -with directions to dismiss Court ground governmental immunity. action on the of This Court has no occasion to questions reach the dealt with majority’s opinion Judge dissenting opinion. Chief Bell’s

II. University’s agency Towson status as an in the Executive Government, Branch of the State and Conte’s status as a government employee only cause, who could be terminated for coupled express provision hearing contractual for a i.e., agency, before the head of the of the President Towson University, necessarily presents of a the issue whether com- mon of law breach contract action the Circuit Court is an appropriate proceeding resolving dispute. this

An employee in the Executive Branch of the State Govern- ment, only cause, is, can disciplined who be or terminated for as a of process, hearing matter constitutional due to a entitled

122 given opportunity to refute the employee at which the Regents v. defenses. Board present him or charges against (1972); Roth, 573, 2701, 548 564, 92 33 L.Ed.2d 408 S.Ct. U.S. 624, 882, L.Ed.2d 92 Velger, Codd 429 U.S. S.Ct. Association v. State Employees (1977); Maryland Classified De 22, (1997); 1, 937, 947 Mainland, Md. 694 A.2d 4, County, 292 Md. 513 n. Montgomery Bleecker v. (1982). normally an hearing n. 4 a A.2d Such Branch hearing in the Executive adjudicatory administrative statutory judicial or common law subject to government, Brukiewa v. Circuit Court. See Maryland in a action review (1970). Comm’r, 263 A.2d Police suggest that a common law opinion seems to majority employ- “remedy is a available” to of contract action breach charges brought by defending against purposes ee for Although A.2d at 957. Opinion at agency. the state a de satisfied requirements could be perhaps process due in a court at which the termi- novo breach of contract action opportunity would have an refute employee nated defenses, involving a proceeding such a charges or offer Moreover, in highly would unusual. government employee be Mary- Association v. State Employees Maryland Classified land, Judge Wilner for supra, 346 Md. at ordinarily hearing must position this took the Court saying: “pre-termination,” be

“[Wjhen un- public employment attendant the attributes legitimate ‘a give such as to der State law are plan as under a tenure position, claim of to the entitlement’ cause, may only property dismissal be where *45 created, right employment in that is the interest ordinarily opportunity the procedural due process requires hearing.”4 pre-termination of a administrative/judi- majority my position is that an intimates that 4. jurisdictional requirement.” Opinion at proceeding "is a cial review 96, required my position. of a That is not Exhaustion 862 A.2d at 957. remedy ordinarily “jurisdiction- administrative/judicial review not a Maryland "jurisdictional requirement” under law. matter or a al” Hubbard, 774, 787, 305 Md. Education Dorchester Co. v. Board of case, by present Furthermore, opinion majority entity, applies a rule private as a treating Towson action from breach of contract the court precluding termination, under of the even reviewing factual basis If a circuit court breach standard. “substantial evidence” for a process hearing provide the due contract action could by of court action outlined employee, type governmental It clearly provide process. does not due majority opinion charges or any right to refute the give not does court. The Due Process Clause present in a circuit defenses Maryland and Article 24 of the Amendment of the Fourteenth employ- applicable private Rights are Declaration however, University, is re- relationships. Towson ment provisions. strained both constitutional provisions process, plus express Considerations due contract, certainly appear require of the agency head of an within the hearing administrative before the Government, i.e., Maryland Branch of the President Executive fact, to the University. majority’s In deference Towson al- majority, confirms that governmental “factfinder” culmi- unwittingly, actually treating proceedings though governmental nating in termination as administrative Conte’s adjudicatory proceedings. treated as properly

In its that this case should be insistence action, majority a common law breach of contract relies (1978, Repl.Vol.), 12-104(j)(2) § Maryland Code Article, provides Education which as follows: “(2) grievance appeals under Title Except respect article, 10, Title 1 and 2 of the Subtitle of this Subtitles (1986) (Failure primary to invoke and 506 A.2d exhaust "remedy ordinarily administrative/judicial review does not result in a Eldridge, being deprived jurisdiction,” per trial court's of fundamental also, J., Court). Thompson, e.g., for the See State Retirement Ward, (2002); Montgomery County v. 284-285 bar, (1993). A.2d 621 n. 6 In the case at Md. n. jurisdiction clearly subject over Conte’s the Circuit Court had matter jurisdiction of contract action. The issues concern how that breach exercised. should have been *46 (‘Administrative Act’) Article State Government Procedure applicable University.” are not to the 13, 2, employ- Title Subtitle of the Article deals -with classified University System of Maryland. Consequently, ees proceedings regard employees termination to classified subject Towson are to the Administrative Proce- Act, dure proceedings concerning termination non-classi- Conte, employees, including exempt fied from Admin- are istrative Procedure Act.

The fact that proceedings exempt the termination here are from the Administrative Procedure Act furnishes no reason to conclude that a common law breach of contract action is appropriate. types of adjudicatory Numerous administrative proceedings exempt are from the Administrative Procedure Act, exemption change but such does not the inherent nature proceedings of such or convert them into common law breach See, e.g., (1984, Repl.Vol.), of contract actions. Code 10-102(b) §§ Article, and 10-203 of the State Government containing agencies lists of or proceedings administrative ex- empt from the Administrative Procedure Act.

An exemption from the Act or Administrative Procedure simply other administrative law statute admin means proceeding governed by Maryland istrative common law law principles judicial administrative review in a mandamus, certiorari, circuit court form of takes the declara tory judgment, equitable or proceedings. It also means that 30-day period Maryland of limitations set forth in 7- Rule 7-201(a). 203 is inapplicable. See Rule standards, how ever, essentially regardless are the same of whether administrative/judicial proceedings pursuant review are governed by Maryland statute are common law administra See, e.g., Board License Commission principles. tive law Wine, Inc., ers Anne Arundel v. County Corridor 361 Md. 403, 411-412, 916, (2000); County Bucktail v. 761 A.2d County, Council Talbot 530, 542-552, 352 Md. 723 A.2d Education, v. Board (1999); State 446-450 346 Md. Nolan, 642-644, 1334, 1338-1339 (1997); Goodwich v. 697 A.2d Medical Waste (1996); 343 Md. A.2d Waste, 610-611, 327 Md. Maryland v.

(1992); 324- Maryland Deposit, Silverman *47 (1989); 326, 402, Inj. v. Comp. 563 A.2d 411-412 Criminal Bd. (1975), Gould, 486, 501-507, 55, 331 A.2d 65-68 273 Md. cases cited. there fact, Assembly’s express exemption

In of all the General University System Maryland proceedings of from the Admin- Act, except involving classified em- istrative Procedure those hardly proceed- that no such ployees, could be determination ings by adjudicatory proceedings nature administrative are disputes by that all should be common law resolved Obviously, contract or tort actions in courts. numerous types adjudicatory proceedings place of administrative take See, University System. e.g., Frankel v. Board Re- of (2000). 298, 308, 324, An gents, exemp- 361 Md. 761 A.2d 329 clearly tion from the Administrative Procedure Act does legislative governmental reflect a intention that disputes termination should be as of treated breach Assembly actions. The exempts pro- General administrative ceedings not, from the Administrative Procedure Act. It does my knowledge, exempting the best enact statutes com- mon law breach of contract from actions the Administrative Procedure Act.

It would University proceedings seem that the Towson leading up regarded to Conte’s termination should be adjudicatory proceedings subject administrative to normal judicial review for substantial underlying evidence factual arbitrariness, error, findings, legal cases, etc.5 Under our primary jurisdiction should be accorded to such administra- tive/judicial proceedings, review and exhaustion of the ad- See, ministrative/judicial remedy required. review e.g., fact, using 5. In a breach of contract action instead of a "substantial action, judicial adjudicatory evidence" review to review an administra- proceeding tive and decision the Executive Branch of the State Government, may Maryland present prob- well serious constitutional principles Department lems under the set forth in Natural Resources 211, 222-229, Corporation, v. Linchester Sand and Gravel 274 Md. 514, (1975), progeny. A.2d 522-526 and its Ltd., 133-138, 118, Design, v. Panoramic 376 Md. Foster Church, A.M.E. v. Bethel (2003); Dorsey 271, 280-283 A.2d (2003); Furnitureland 388, 59, 76, 397-398 825 A.2d 375 Md. (2001); 126, 133, v. Md. 771 A.2d Comptroller, 667, 674-678, 728 A.2d Annapolis, v. 353 Md. Josephson Arundel, v. Anne (1998); 349 Md. Holiday 693-695 In Liberty v. (1998); Zappone 707 A.2d 834-835 Life (1998). surance, 45, 60-66, 1067-1070 349 Md. considerations immunity, public policy governmental Like jurisdiction, exhaustion primary mandate that issues remedies, bringing propriety and the administrative action, which “are issues judicial than a review action other Comp Furnitureland sponte.” will address sua this Court See, troller, e.g., 771 A.2d at 1065. supra, v. Broadcast Md. County Equities, Montgomery *48 v. Reclamation Maryland 995, (2000); 7, 1002 n. 7 n. 758 A.2d 567, A.2d 574 n. County, 342 Md. 490 n. 677 Harford Ward, 521, 526 n. v. Montgomery County (1996); 331 Md. 10 City Hagerstown, Moats v. (1993); A.2d 621 n. 6 629 Board (1991); 519, 525-526, A.2d 975 597 324 Md. Hubbard, Dorchester Co. 305 Md. Education for (1986). A.2d 631 506 in this believe, circuit court action

If, appropriate Ias but a common law a of contract suit was case was not breach judicial under evidence” review action for “substantial County, supra, in Bucktail v. Talbot set forth principles cases, 448-450, this 549-552, at and similar Md. at any different take one three could its discretion Court judicial bring a review Since Conte failed approaches. contract, the Court action, improperly sued breach that below and direct simply judgments vacate the could Holiday v. Anne suit be dismissed. See of contract breach Arundel, 835-836, 202-204, 214, A.2d at supra, Md. at decision, (After aggrieved party a final administrative judicial of a declaratory judgment action instead pursued a action, judgments vacated the below and this Court review action). Or, the to dismiss the and directed the Circuit Court below, be judgments direct Conte could vacate the Court type of proper to assert the complaint his to amend allowed amends, Circuit Court and, direct the action, if he so Lastly, because function. judicial review a traditional perform court are appellate an of a trial court and function adjudicatory of an judicial review in an action for same com- decision, could treat Conte’s this Court administrative to review proceed judicial action for review plaint as an of Towson by President decision administrative the final Arundel, Md. at supra, 349 v. Anne University. Holiday See (This Court, alternative 204-214, A.2d at 836-841 declaratory judgment decision, improper treated the ground of action, administrative reviewed the judicial review action as administrative decision decision, position that the and took the upheld). should be this third alterna- prefer I would justice,

In interests administrative Furthermore, I direct that would tive. find- case be remanded vacated and decision be one-paragraph of law. The short of fact and conclusions ings 18, 1999, hear- January Smith after the opinion of President It of law. fails of fact or conclusions findings no ing, contains may have been arguments that any to deal with evidence Thus, hearing. January administrative at the 18th advanced 552-553, County, supra, v. Talbot Bucktail action, the 450-451, non-statutory judicial review A.2d at Rodowsky summarized the by Judge opinion in an Court as follows: administrative law applicable Maryland analysis would be step in our “Logically, the next by supported are if the facts found the Council determine *49 however, here, is that difficulty substantial evidence. permit judicial to ‘findings’ are insufficient the Council’s review. “ to substitute its task on review is not ‘The court’s persons consti- expertise for of those who

judgment ” reviewing A “Court agency[.]’ administrative tute the unless it is sustainable may uphold agency order by stated agency’s findings and for the reasons on the if determining there A court’s role is limited agency.” support record as whole is substantial evidence agency’s findings conclusions, and and to if determine premised upon the administrative decision is an erroneous conclusion of law. Serv.,

United Parcel Inc. v. People’s Counsel Baltimore (1994) 576-77, County, Md. 650 A.2d (citations omitted). Accord County Earl E. Harford Preston, Jr., Inc., 493, 505, 322 Md. 588 A.2d (“[A] right party fundamental of a to a proceeding before an agency apprised administrative to be [is] the facts relied upon by agency reaching its decision permit and to meaningful judicial findings. judicial review of those In a review of action may only administrative the court uphold agency by order if it is sustained agency’s findings for the reasons stated agency.”); United Steel AFL-CIO, workers America Local 2610 v. Bethlehem 665, 679, (1984) (same). Steel 298 Md. Corp., A.2d review, “In judicial accordance the above standard of reviewing order for the court to determine whether the debatable, fairly Council’s action was findings of fact are required.

“Findings of fact must be meaningful and cannot simply repeat statutory criteria, conclusory statements, broad or boilerplate resolutions.” also, Hammond, e.g., 41, 56,

See Turner v. 270 Md. 310 A.2d (1973) (The agency findings worthy “made no of fact name”); Rodriguez v. Prince George’s County, 79 742, 748, Md.App. denied, cert. (1989) (Where

566 A.2d 101 Judge Wilner for the court stated: permissible any “It is not ... body, simply administrative parrot general statutory requirements or rest broad * * * conclusory statements. quoted We have in full the [agency] ‘determinations’ ... adopted as its findings They they conclusions. do not begin do not even suffice— ‘specific suffice—as findings written of basic facts and ”). conclusions’

Nevertheless, regardless of the nature of the Towson Uni- versity proceedings termination appropriate type *50 action, thing court there is one about this which is case clear. judgment” applied by majority The “business rule has no application governmental to a employment relationship which can only be terminated for cause. Conte is to and entitled proper proceeding should receive either a administrative a de novo breach of complies Maryland which law charges trial at which his defenses to should be upon. majority gives considered and ruled him neither.

862A.2d 976 INTERNATIONAL, INC., HEERY et al. COUNTY, MARYLAND,

MONTGOMERY et al. 15, Sept. Term, No. 2004. Appeals Maryland.

Court of

Dec. 2004.