*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
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.
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
(c) insubordination
(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.
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.
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);
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.
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.
“[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,
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
“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.,
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
(c) insubordination
(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.
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.
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
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,
“... 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
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
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,
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.
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
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,
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,
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.”
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
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,
Another
Ricks,
v.
College
U.S.
S.Ct.
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.
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
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,
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
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.,
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
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.