Forster v. State

ADKINS, J.,

concurring and dissenting, in which BATTAGLIA, J., joins.

I concur with the Majority’s judgment, in the sense that I agree Nancy S. Forster should not prevail in her appeal, but I disagree that her appeal should be dismissed on grounds she failed to exhaust administrative remedies. I would affirm the Circuit Court on the grounds used in its decision — that Forster has not stated a claim for wrongful discharge.

Although the Majority devotes much attention to Forster’s notice argument, it gives short shrift to her statutory interpretation argument. Forster contends that Maryland Code (1994, 2009 Repl.Vol.), Section 11-113 of the State Personnel and Pensions Article should not be read to require that, when the head of a principal unit is disciplined, her road to judicial review must include an appeal to herself or her replacement. Such an interpretation, she says, would violate the cardinal rule of statutory interpretation precluding results that are “absurd” and “nonsensical.” See City of Bowie v. Prince George’s County, 384 Md. 413, 426, 863 A.2d 976, 983 (2004) *593(“In discerning the legislative intent absurd results in the interpretive analysis of a statute are to be shunned.” (citation and quotation marks omitted)); Blandon v. State, 304 Md. 316, 319, 498 A.2d 1195, 1196 (1985) (“[Rjules of statutory construction require us to avoid construing a statute in a way which would lead to absurd results. In other words, we should reject a proposed statutory interpretation if its consequences are inconsistent with common sense.” (citations and quotation marks omitted)).1

As Justice Stone said in United States v. Katz, a statute should be construed narrowly “where the literal application of the statute would lead to extreme or absurd results, and where the legislative purpose gathered from the whole Act would be satisfied by a more limited interpretation.” United States v. Katz, 271 U.S. 354, 362, 46 S.Ct. 513, 516, 70 L.Ed. 986 (1926). Bowie applied this rule to an administrative exhaustion issue, see 384 Md. at 424-27, 863 A.2d at 982-84, and other jurisdictions have used it to deny motions asserting failure to exhaust administrative remedies, see, e.g., United States v. Dorsett, 308 F.Supp.2d 537, 544 n. 10 (D.V.I.2003) (“In this case, however, it would be absurd to find that Dorsett did not exhaust administrative remedies[.]”); Gwinn v. Collier, 247 Va. 479, 443 S.E.2d 161, 163 (1994) (declining to require administrative exhaustion because it would “involve a manifest absurdity”). Thus, this basic rule of statutory interpretation clearly applies in this case and should receive our full attention.

The Majority’s Reliance on Wilson

Instead of addressing the statutory interpretation question, however, the Majority falls back on Pub. Serv. Comm’n v. *594Wilson, 389 Md. 27, 882 A.2d 849 (2005), in which we rejected a terminated employee’s claim that she should have been excepted from the administrative appeal requirement because her appeal would have been decided by the same person who terminated her. To be sure, both Wilson and Forster alleged bias in the administrative appeal, but Wilson does not control here because we based that holding on a different rule.

A. Wilson’s Constitutional Rule is not Applicable Here

As we explained, Wilson mounted a constitutional challenge to the exhaustion requirement, arguing that “under Article 24 of the Maryland Declaration of Rights (‘Article 24’), she was entitled to a fair and impartial agency adjudicator.” Wilson, 389 Md. at 88, 882 A.2d at 885. She argued that, because the hearing officer was the same person who fired her, “she need not exhaust the administrative process following re-termination because he was unconstitutionally biased against her.” Id. at 91, 882 A.2d at 887. We declined to address the merits of that argument, however, citing a rule specific to constitutional challenges:

Although we recognize that a constitutional challenge to a statute or regulation on its face may provide an exception to the normal application of the exhaustion doctrine, we conclude that that exception is not applicable here because Wilson’s constitutional challenge is framed as an “as applied” one.

Id.

Thus, our holding in Wilson was based on a narrow rule pertaining specifically to constitutional challenges to exhaustion requirements. See also Arnold Rochvarg, Principles & Practice of Maryland Administrative Law (2011) (“The first step in the constitutional exception analysis is that the attack must be made to the constitutionality of a statute as a whole.”) (citing Goldstein v. Time-Out Family Amusement Ctrs., Inc., 301 Md. 583, 483 A.2d 1276 (1984)). Because the constitutional rule decided the case, we did “not reach or decide the issue of whether Wilson was deprived unconstitutionally of a fair and impartial agency adjudicator[.]” Wilson, 389 Md. at 88-*59589, 882 A.2d at 886. We simply held that when the alleged constitutional bias takes the form of an “as applied” challenge, it must be raised in the administrative forum first. Id. Indeed, our discussion suggested that Wilson could have shown unconstitutional bias if she had raised the issue in the administrative appeal. See id. at 90, 882 A.2d at 887 (“Had the Chairman decided the appeal ... [Wilson] would have taken from the Chairman and the Commission the argument they make here that the Commission intended to delegate that responsibility to another.”).

Wilson does not apply here because we are not faced with any constitutional issue. Forster, instead of raising constitutional arguments, simply argues that Section 11-113 cannot rationally be interpreted as applying to the head of a principal unit. Indeed, she refers to the Respondent’s (and the Majority’s) interpretation of Section 11-113 as “nonsensical,” “absurd,” and “legally baseless,” but never calls the procedure “unconstitutional” or “illegal.” Our application of the constitutional rule in Wilson, therefore, presents no obstacle to Forster’s statutory interpretation argument.

B. Wilson did not Involve a Direct Pecuniary Conflict of Interest

Wilson is distinguishable for a second, more important reason, which is that the conflict of interest here is direct and pecuniary, whereas the bias alleged in Wilson was not. Wilson asked us to hold that any employer responsible for a termination decision would not be able to fairly review that decision in an administrative appeal. This Court rejected that notion, refusing to assume that “some kind of blind pride of authorship or hubris of power renders an administrative decision-maker ipso facto unable to assess fairly and objectively arguments that his or her decision should be revisited, changed, or abandoned.” Wilson, 389 Md. at 92, 882 A.2d at 888. We also observed that “the record in this case does not reveal a factual predicate for specific personal bias against Wilson[.]” Id.

Here, in contrast, we are not merely dealing with “some kind of blind pride of authorship or hubris,” but instead must *596address a specific conflict of interest, in which the adjudicator has a direct pecuniary interest in the outcome of the case. If we interpret Section 11-113 to apply to the head of a principal unit, then in the case of a dismissal, as here, the hearing officer would be asked to decide whether to reinstate Petitioner, thereby ejecting herself from her new job. See, e.g., Bruno v. Crown Point, 950 F.2d 355, 360 (7th Cir.1991) (holding that it is proper to restore an employee to her rightful position “even where incumbents are bumped from their jobs because those incumbents would not have been hired if the [unlawful employment action] had not occurred.”).2 The inherent bias of the adjudicator is much more invasive in cases like this, where the status of the adjudicator’s job cannot be separated from the status of the appellant’s job. This sort of built-in bias is qualitatively different from, and much more powerful than, any leaning a neutral arbiter (such as that in Wilson) might bring to bear upon reconsidering his decision. When a hearing officer has a direct pecuniary interest in the outcome of the case, fair adjudication is impossible.3

Wilson does not support or justify the incestuous process that is condoned by the Majority. This analysis does not *597change simply because, in this case, Forster’s immediate successor was an interim replacement. See Maj. Op. at 591, 45 A.3d at 195. Interim replacements often seek to make their positions permanent, and in any case, a permanent replacement could have been installed by the time Forster’s appeal would have been considered.

For these reasons, I submit, an interpretation of Section 11-113 that requires the head of a principal unit to appeal to herself or her replacement is “inconsistent with common sense” and would “lead to absurd results,” and I would reject it. Blandon, 304 Md. at 319, 498 A.2d at 1196.

The Office of Administrative Hearings

The Majority suggests that this absurd result was avoidable because Forster’s replacement could have delegated the hearing to the Office of Administrative Hearings (“OAH”). See Maj. Op. at 591-92 n. 7, 45 A.3d at 195-96 n. 7. I disagree that a Section 11-113 appeal may be referred to OAH.

Title 11 allows for referral to OAH under one section only, Section 11-110, which describes in some detail the procedures applicable at OAH.4 In contrast, the sections of Title 11 at issue here (Sections 11-305 and 11-113) do not mention OAH *598at all. Rather, as the Majority observes, the procedure at issue here is a unique and narrowly specified appeal right, limited to (1) grounds of illegality or uneonstitutionality and (2) “targeted categories of State employees ... with limited rights to continued employment.” Maj. Op. at 590, 45 A.3d at 195. Appeals under Section 11-110, on the other hand, are available generally to employees in the skilled or professional services and are not limited to any specific grounds.5

The distinction between Section 11-110 and Section 11-113 is further confirmed by legislative history. Both appeal rights were created by the State Personnel Management System Reform Act of 1996,6 and from the outset they were meant to be separate. The task force that studied the implementation of the Act observed that “employees in the Management or Executive Service, or who are special appointees, have different disciplinary appeal procedures.” See Task Force to Reform State Personnel, Highlights of the State Personnel *599Management System Reform Act of 1996 (1997) (emphasis added). In 2002, the Legislature singled out Section 11-113, limiting it to special appointees and employees in the management and executive services. See Chapter 296 of the Acts of 2002. No such limitation was applied to Section 11-110. The Legislature returned to Section 11-113 in 2007, limiting the grounds for appeal to illegality or unconstitutionality. See Chapter 592 of the Acts of 2007. No such limitation was applied to Section 11-110. Indeed, in 2006 the Legislature expanded OAH’s authority under Section 11-110, allowing it to reinstate employee benefits and impose costs upon the principal unit. See Chapter 553 of the Acts of 2006; Chapter 600 of the Acts of 2006. No such powers were added under Section 11-113.

With two separate appeal procedures, and only Section 11-110 mentioning OAH, the clear message is that the Legislature did not intend for Section 11-113 appeals to be referred to OAH. See Gardner v. State, 420 Md. 1, 11, 20 A.3d 801, 807 (2011) (“[WJhere Congress includes particular language in one section of a statute but omits it in another ... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quoting Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 2040, 124 L.Ed.2d 118 (1993)) (citations and quotation marks omitted)).

Moreover, as the Court of Special Appeals explained in Dozier v. Dep’t of Human Res., 164 Md.App. 526, 533-37, 883 A.2d 1025, 1029-31 (2005), it would not make sense to refer a Section 11-113 appeal to OAH, because it is not a “contested case.” Only “contested cases,” as defined in the Maryland Administrative Procedure Act, may be referred to OAH.7 As Dozier correctly observes, Section 11-113 does not contain the *600elements traditionally associated with “contested cases,” including “trial type” procedures and mandatory hearings. Id. at 534-36, 883 A.2d at 1029-31 (quoting Sugarloaf v. Ne. Md. Waste Disposal Auth., 323 Md. 641, 651 n. 5, 594 A.2d 1115, 1119 n. 5 (1991) (“contested case” means “a hearing which provides trial type procedures, such as cross-examination”)).8,9 An appeal under Section 11-113, on the other hand, accords the appellant no trial or hearing rights, and merely gives the head of the principal unit the option to confer with the employee before making a decision. See Section ll-113(c) (“The head of the principal unit may confer with the employee before making a decision.”). Thus, quite sensibly, the Legislature has provided only a limited right of appeal for those persons holding the highest management positions in each agency.10 Without the option of referral to OAH, Forster's appeal would have come before her replacement, who would *601have had a direct conflict of interest.11 Again, I believe this result is patently absurd, and therefore not a legitimate interpretation of the statute. See Bowie, 384 Md. at 426, 863 A.2d at 983.12

Goals of Exhaustion

The goals of administrative exhaustion are not advanced by the Majority’s holding. The central goal of administrative *602exhaustion — conservation of judicial resources — would not likely be advanced because the agency ruling would likely be adverse to Forster, and she would be left to seek relief in the courts. Indeed, forcing Forster to explain and argue the hearing officer’s conflict of interest, in addition to the merits of her case, has created additional, unnecessary work for the courts. This runs contrary to the goal of conserving judicial resources. See Rochvarg, § 14.14 (explaining that when “the case will most likely require judicial involvement to obtain the proper remedy ... one of the main goals of the exhaustion doctrine — judicial economy — would not be served by requiring exhaustion”). Agency expertise, another goal,13 is not a compelling factor if the agency’s decision maker is a person in the same position as the fired employee, with less experience. Nor is legislative choice14 persuasive, when the statute does not explicitly address whether Section 11-113 applies when a head of a principal unit is terminated. A fourth goal, “preventing] the courts from interfering with the administrative process until it has run its course,”15 is not a persuasive reason when the “administrative process” necessarily involves a conflict of interest.

Finally, I find it telling that no one sent Forster a notice advising her that she must appeal to the new Public Defender or Acting Public Defender. Likely, neither the Board of Directors nor anyone in leadership at the agency interpreted the statute the way the Majority does. In short, enforcing administrative exhaustion in this case simply creates more “gotcha jurisprudence” of the kind I objected to in Hansen v. *603City of Laurel, 420 Md. 670, 697-98, 25 A.3d 122, 139 (2011) (Adkins, J., dissenting), and Smith v. County Comm’rs, 418 Md. 692, 720, 18 A.3d 16, 32-33 (2011) (Adkins, J., dissenting). I respectfully dissent from the Majority’s resting its decision on exhaustion grounds.

Yet I concur with the Majority’s decision that Forster does not prevail in her appeal. Rather than holding that she failed to exhaust her administrative remedies, I would rest our decision on Forster’s failure to state a claim of wrongful discharge.

Failure to State a Claim

The Circuit Court granted the State’s motion to dismiss, holding that Forster’s complaint failed to state a claim of wrongful discharge because none of the Board’s demands violated the law or public policy. The court reasoned that Forster’s primary legal duty, providing representation to indigent individuals, was not contravened by any of the Board’s instructions. Thus, it held that the complaint simply evidenced

a disagreement ... about how best to accomplish the important work of the Office of Public Defender.... Such differences of opinion, between an executive and members of a board to which the executive answers, without allegations of actual statutory breaches, are too general, too vague, too conclusory as to constitute a prima facie claim of wrongful discharge.

In reviewing a motion to dismiss, this Court views the factual allegations in the complaint in the light most favorable to the plaintiff, but reviews whether the trial court’s conclusions of law were “legally correct.” RRC Ne., LLC v. BAA Md., Inc., 413 Md. 638, 643-44, 994 A.2d 430, 433-34 (2010). As we said in Parks v. Alpharma:

On appeal from a dismissal for failure to state a claim, we must assume the truth of, and view in a light most favorable to the non-moving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences *604that may reasonably be drawn from them, and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff, i.e., the allegations do not state a cause of action for which relief may be granted. We must confine our review ... to the four corners of the complaint and its incorporated supporting exhibits, if any. The well-pleaded facts setting forth the cause of action must be pleaded with sufficient specificity; bald assertions and conclusory statements by the pleader will not suffice. Our goal, in reviewing the trial court’s grant of dismissal, is to determine whether the court was legally correct. (Citations and quotation marks omitted.)

Parks v. Alpharma, Inc., 421 Md. 59, 72, 25 A.3d 200, 207 (2011).

Generally, an at-will employee may be terminated for any reason or no reason, but there are certain exceptions to this rule. See id. at 73-74, 25 A.3d at 208. Terminating an employee because of her “race, color, religion, sex, age, national origin, marital status, or physical or mental handicap” is one exception. Id. Another exception is when the termination violates a clear mandate of public policy, which triggers a cause of action for wrongful discharge. Id. at 74-75, 25 A.3d at 208-09. If the termination does not contravene a clear mandate of public policy, however, no cause of action for wrongful discharge is stated. Id.; see also Porterfield v. Mascari II, Inc., 374 Md. 402, 434, 823 A.2d 590, 609 (2003) (“[T]here is no sufficiently clear mandate of public policy that has been violated on the facts alleged here such that vindication by bringing a wrongful discharge action is required to protect the public interest.”); Adler v. Am. Standard Corp., 291 Md. 31, 45-46, 432 A.2d 464, 472 (1981) (“The bald allegations of Adler’s complaint do not provide a sufficient factual predicate for determining whether any declared mandate of public policy was violated.... The allegations are therefore legally insufficient to state a cause of action for wrongful discharge.”), superseded by statute on other grounds, Chapter 223 of the Acts of 1993, as recognized in Wholey v. *605Sears, Roebuck & Co., 370 Md. 38, 68-69, 803 A.2d 482, 500 (2002).

Forster alleges that the Board’s decision to terminate her contravened the public policy outlined in the Title 16 of the Criminal Procedure Article,16 which governs the Office of the Public Defender. Specifically, Forster contends that her termination violated the policies outlined in Section 16-201, which provides:

It is the policy of the State to:

(1) provide for the realization of the constitutional guarantees of counsel in the representation of indigent individuals, including related necessary services and facilities, in criminal and juvenile proceedings in the State;
(2) assure the effective assistance and continuity of counsel to indigent accused individuals taken into custody and indigent individuals in criminal and juvenile proceedings before the courts of the State; and
(3) authorize the Office of the Public Defender to administer and assure enforcement of this title.

Forster alleges that her termination violated these public policies in three ways. First, she argues the Board made demands that would have prevented her from carrying out the statutorily mandated mission of the Office. Because failing to carry out the Office’s mission would have been “unlawful,” she says, she was terminated for “refusing] to engage in unlawful activity as ordered by the Board[.]” Second, she says, carrying out the Office’s mission was her statutory duty, which means that she was also terminated for “exercising] her statutorily prescribed duties as the Maryland Public Defender.” Finally, she alleges that her termination violated the public policy stated in Section 16-302, which lists the duties of the Board,17 because her termination was premised on her *606failure to comply with demands that the Board had no authority to make.18

The State responds that nothing in the complaint shows that Forster’s termination contravened a clear mandate of public policy. Rather, the State asserts that Forster’s allegations, and any reasonable inferences drawn from them, at most show that Forster was fired because of the Board’s “dissatisfaction with her job performance,” particularly its “view that she was engaging in fiscal mismanagement to the detriment of the mission of the [Ojffice and the administration of justice[.]”

The Public Policy Against Unlawful Acts

After reviewing the cases that address the public policy against requiring an employee to commit unlawful acts, it is apparent Forster’s allegations do not fit the classic mold. As we said in Makovi v. Sherwin-Williams Co., 316 Md. 603, 610, 561 A.2d 179, 182 (1989), this public policy is most often implicated when an employee is fired for refusing to give false testimony. It has also been implicated when an employee refused to provide sexual favors amounting to prostitution,19 commit fraud by submitting false claims for health insurance,20 or commit torts and violate others’ privacy rights.21

*607Here, on the other hand, the alleged “unlawful activity” is better characterized as managerial decisions that Forster believed would not have best accomplished the mission of the Office. For example, Forster claims that it would have been “unlawful” for her to begin using panel attorneys in CINA proceedings,22 because Section 16 — 204(b)(1) requires the public defender to provide representation. Yet Section 16-204(a) specifically provides that the representation mandated by subsection (b) may be provided by panel attorneys. See Section 16-204(a). Indeed, Section 16 — 208(b)(2) provides that panel attorneys “shall be used as much as practicable.” Using panel attorneys, therefore, clearly was not unlawful.

The same is true of Forster’s allegation that

the Board’s demands that she disband the Capital Defense Division, the Juvenile Protection Division and close the Northwest Community Defenders would have forced her to violate the Public Defender Statute, requiring [the Office] to provide representation in “a criminal or juvenile proceeding in which a defendant or party is alleged to have committed a serious offense,” § 16 — 204(b)(l)(i), and “in all stages of a proceeding,” § 16 — 204(b)(2).

As the State points out, it is not reasonable to infer, from the facts alleged in the complaint, that the Board intended to prevent the Office from representing indigent defendants. Instead, I agree with the State that the Board’s demands were simply a “request[ ] that she reorganize the Office by merging programs and that she utilize more panel attorneys in order to maximize resources.” This is not unlawful activity.23

*608The serious budget shortfall underlying this case must inform any reasonable inference drawn from Forster’s allegations. The complaint reveals that, as early as 2008, Forster wrote to Chief Judge Bell regarding the “severe budget shortfalls” affecting the Office. In 2010, she “requested an emergency meeting with the Governor regarding [the Office’s] desperate budget situation.” The complaint also references a hiring freeze instituted by the Governor.

Forster claims that her mandate to operate within the budget and follow the hiring freeze would have been violated if she had complied with the Board’s demands to empanel more attorneys and rehire law clerks. Yet it is obvious that the Board was not demanding that Forster violate her mandate to operate within the budget or contravene the Governor. On the contrary, in the context of the “desperate budget situation,” the only reasonable inference is that the Board believed its changes were part of a necessary response to the budget crisis, to ensure that the Office continued to fulfill its mission while also operating within its squeezed budget. It would be unreasonable to interpret the facts, as alleged in the complaint, as showing that the Board instructed Forster to violate the law by overspending.

Forster comes close to alleging a violation of law when she posits that the Board instructed her to violate the rights of merit system employees by demoting them without basis. The complaint does not specify, however, which of the Board’s demands would have required her to do this, or indeed which law would have been violated. The complaint simply makes a general, conclusory statement that the Board’s demands would have “violated the rights of merit-system state employees” and the “constitutional rights of [Office] employees[.]” I think this statement is “too general, too conclusory, too vague and lacking in specifics to mount up to a prima facie showing that the claimed misconduct ... violated the public policy of this state.” Adler, 291 Md. at 44, 432 A.2d at 471. Rather, in the *609context of the ongoing dispute regarding how to deal with the budget crisis, the Board’s demands look less like a mandate to break the law and more like an honest attempt to ensure that the Office would continue to fulfill its mission.

Statutory Duties

In addition to arguing that the Board’s demands would have required her to commit unlawful acts, Forster argues that those same demands interfered with her statutory duties as Public Defender, and thus implicated the public policy against firing employees for exercising a specific legal right or duty. See, e.g., Makovi, 316 Md. at 611, 561 A.2d at 183. As with the public policy against illegal acts, however, reviewing the cases that have implicated this public policy suggests that Forster’s claim does not fit.

To begin with, this public policy is typically implicated when an employee exercises a personal right or privilege, not a legal duty. See Stanley Mazaroff & Todd Horn, Maryland Employment Law (2d ed.2011), § 5.01[2][c] (observing that “[m]ost of the reported wrongful discharge cases in Maryland fit within” the “category of cases ... involving] the discharge of an employee for exercising a legal right or privilege”); see also Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 469, 588 A.2d 760, 760-61 (1991) (employee fired for suing a coworker for sexual harassment and assault and battery); Ewing v. Koppers Co., 312 Md. 45, 50, 537 A.2d 1173, 1175 (1988) (employee fired for filing a workers’ compensation claim). Forster does not allege that she was fired for exercising any statutory right or privilege.

Moreover, when a wrongful discharge involves the exercise of a statutory duty, instead of a right or privilege, it is typically the duty to report the illegal activity of others in the organization. See Mazaroff & Horn, § 5.01[2][b] (referring to the “public interest in protecting employees from retaliatory discharge when they inform law enforcement officials of suspected criminal behavior by their employer or its managers”); Makovi, 316 Md. at 611, 561 A.2d at 183 (1989) (“Illustrating the ... category [of] cases where the employee was fired for *610performing an important public obligation, are Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980) (employee fired for insisting that employer comply with state and federal product labeling and licensing law); Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981) (employee discharged for reporting the suspected criminal activity of co-employee to law enforcement authorities); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975) (en banc) (employee fired for serving jury duty).”); Bleich v. Florence Crittenton Servs. of Balt., Inc., 98 Md.App. 123, 135-36, 632 A.2d 463, 469 (1993) (employee punished for fulfilling the duty to report child abuse or neglect).

Here, the facts are nothing like the above cases. Forster cites the same Board directives that she claimed were demands to break the law, now alleging that they were demands to stop exercising her statutory duties. She claims that she was fired for “refusing to implement operational and personnel changes demanded of her ... that were contrary to [her] duties and obligations as the Public Defender.” Yet the Board’s instructions, for the same reasons they did not require her to break the law, clearly did not require her to refrain from exercising her statutory duties. Rather, the Board’s instructions simply represented its opinion regarding how best to fulfill those duties in a cash-strapped situation.

At the heart of this case is Forster’s belief that the Board— because Section 16-302 provides that it shall “study,” “observe,” “coordinate,” and “advise” the Office — could not make specific demands of her and then fire her for failing to comply with those demands. To be sure, the history and structure of the statutory scheme, as Forster well explains, suggests that the Legislature did not intend for the Board to manage the operations of the Office. That job was given to the Public Defender, the head of the principal unit. See Section 16-207; Maryland Code (1994, 2009), § 6-404(a)(1) of the State Personnel and Pensions Article.

The problem with Forster’s argument, however, is that it proves too much, as she provides no limiting principle on her *611discretion over the Office’s operations. Under her interpretation, she is free to manage and direct the Office with complete impunity, subject to no check on her power to interpret and implement the Office’s statutory directives. Yet the Legislature created an important check on her power when it invested the Board with the ability to fire her. As the Ninth Circuit has explained, it is a well-recognized principle of administrative law that the power to terminate necessarily implies some modicum of control:

The power to remove is the power to control. The truth of this statement was recognized by the Supreme Court in Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). “For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will.” Id. at 629 [55 S.Ct. 869]. In Bowsher the Court maintained that the removal power need not be exercised to exert effective control, the mere existence of removal authority is likely to influence behavior. 478 U.S. at 727 n. 5 [106 S.Ct. 3181]. “In Constitutional terms, the removal powers over the Comptroller General’s office dictate that he will be subservient to Congress.” Id. at 730 [106 S.Ct. 3181].

Silver v. U.S. Postal Serv., 951 F.2d 1033, 1039 (9th Cir.1991) (quoting Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Humphrey’s Ex’r v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935)); see also Schisler v. State, 394 Md. 519, 590, 907 A.2d 175, 183 (2006) (“By placing the responsibility for execution of the ... Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act[.]” (quoting Bowsher, 478 U.S. at 733-34, 106 S.Ct. at 3191-92)); City of Balt. Dev. Corp. v. Carmel Realty Assocs., 395 Md. 299, 326, 910 A.2d 406, 422 (2006) (“[T]hrough the nomination, removal, and appointment process, the Mayor controls the City of Baltimore Development Corporation.”).

It is not necessary, in reviewing this dismissal, to determine exactly how the Legislature intended to apportion the division *612of labor between the Public Defender and the Board. Suffice it to say that Forster cannot be right in her claim that any “interfere[nce] with her performance of statutory duties” by the Board constitutes an ultra vires act that she has a duty to ignore. This is because, in light of the Board’s ability to terminate her at will, her duty must include, to some extent, working out agreements with the Board. As in Bowsher, “the [Board’s] removal powers over the [Public Defender] dictate that [s]he will be subservient to [the Board].” 478 U.S. at 730, 106 S.Ct. at 3190.24

Conclusion

Because I believe that Forster’s claim should not have been dismissed under exhaustion principles, I would decide this case on the grounds used by the trial court, i.e., that the complaint does not state a cause of action for wrongful discharge. Although this Court, in the context of a motion to dismiss, is required to assume the truth of the facts alleged in the complaint, and draw all reasonable inferences in favor of the nonmoving party, even the most generous inferences do not suggest that Forster’s termination violated a clear mandate of public policy. There is simply nothing to suggest that the Board fired her for refusing to break the law or for exercising her duties as Public Defender. Rather, her termination was simply the culmination of a long-running disagreement with the Board about how best to deal with the financial crisis plaguing the Office. Because Forster’s termination did *613not violate a mandate of public policy, it does not state a cause of action for wrongful discharge, and should be dismissed. For this reason, I concur with the Majority’s judgment.

Judge BATTAGLIA has authorized me to state that she joins in this concurring and dissenting opinion.

. Forster’s argument is based on the portion of the statute providing that a Section 11-113 appeal goes to the head of the principal unit. See Maryland Code (1994, 2009 Repl.Vol.), Section 11-113(b)(1) of the State Personnel and Pensions Article ("An employee or an employee’s representative may file a written appeal of a disciplinary action with the head of the principal unit.”). Forster, of course, was the head of the principal unit in this case. See Maj. Op. at 582, 45 A.3d at 190.

. Moreover, in the case of discipline short of dismissal, the unit head would remain in her position, thus being forced to adjudicate her own grievance. Both situations create a conflict of interest by giving the hearing officer a direct pecuniary interest in the outcome of the case.

. See, e.g., Ward v. Monroeville, 409 U.S. 57, 59-60, 93 S.Ct. 80, 83, 34 L.Ed.2d 267 (1972) (holding that an administrative hearing officer who received a portion of the "fees and costs levied by him against alleged violators” had a conflict of interest because he "occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial”); Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927) (holding that a litigant "was entitled to halt the trial because of the disqualification of the judge, which existed both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village”); Noriega-Perez v. United States, 179 F.3d 1166, 1187 (9th Cir.1999) (Ferguson, J., dissenting) ("[Tjhere is no escaping the Fact that the ALJ who is deciding the case necessarily has a conflict of interest because any fine levied by the ALJ will go to the branch of government controlling the ALJ.”).

. Maryland Code (1994, 2009 Repl.Vol.), Section 11-110 of the State Personnel and Pensions Article provides:

(b) Action required by Secretary after receiving appeal.—
Within 30 days after receiving an appeal, the Secretary or designee shall:
(1) (i) mediate a settlement between the employee and the unit; or (ii) refer the appeal to the Office of Administrative Hearings; and
(2) advise the employee in writing of the Secretary's action.
(c) Action required by Office of Administrative Hearings after receiving appeal. — (1) Within 30 days after receiving the appeal, the Office of Administrative Hearings shall schedule a hearing and notify the parties of the hearing date.
(2) The Office of Administrative Hearings shall dispose of the appeal or conduct a hearing on each appeal in accordance with Title 10, Subtitle 2 of the State Government Article. The Office is bound by any regulation, declaratory ruling, prior adjudication, or other settled, preexisting policy, to the same extent as the Department is or would have been bound if it were hearing the case.
*598(d) Additional action by Office of Administrative Hearings; final administrative decision. — (1) Except as otherwise provided by this subtitle, the Office of Administrative Hearings may:
(1) uphold the disciplinary action;
(ii) rescind or modify the disciplinary action taken and restore to the employee any lost time, compensation, status, or benefits; or
(iii) order:
1. reinstatement to the position that the employee held at dismissal;
2. full back pay and benefits; or
3. both 1 and 2.
(2) Within 45 days after the close of the hearing record, the Office of Administrative Hearings shall issue to the parties a written decision.
(3) The decision of the Office of Administrative Hearings is the final administrative decision.
(4) The principal unit that employs the employee shall pay all costs related to the appeal that are incurred by the Office of Administrative hearings.

. Section 11-110 appeals must be preceded by a decision in a Section 11-109 appeal, which is available to "employees in the skilled service or the professional service.” See Section 11 — 109(a)(1); Section 11-110(a)(1) ("Within 10 days after receiving a decision under § 11-109 of this subtitle, an employee or an employee’s representative may appeal the decision in writing to the Secretary.”).

. See Chapter 347 of the Acts of 1996.

. See Arnold Rochvarg, Principles and Practice of Maryland Administrative Law (2011), § 9.4 ("OAH exists as a central hearing agency to hold contested case hearings for other agencies.... [A]gencies not governed by Subtitle 2 of the Maryland APA [titled "Contested Cases”] are not covered by the statutes that set forth OAH powers.” (emphasis added)); see also Maryland Code (1984, 2009 Repl.Vol.), § 10-205 of the State Government Article (providing that the "agency head authorized to *600conduct a contested case hearing shall: (i) conduct the hearing; or (ii) delegate the authority to conduct the contested case hearing to [OAH or another person approved by OAH]” (emphasis added)).

. The definition of “contested case” under the State Government Article is found in Section 10-202(d):

(1) “Contested case” means a proceeding before an agency to determine:
(i) a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing; or
(ii) the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by statute or constitution to be determined only after an opportunity for an agency hearing.
(2) "Contested case" does not include a proceeding before an agency involving an agency hearing required only by regulation unless the regulation expressly, or by clear implication, requires the hearing to be held in accordance with this subtitle.

. In a contested case, "each party is entitled to ... (1) call witnesses; (2) offer evidence, including rebuttal evidence; (3) cross-examine any witness that another party or the agency calls; and (4) present summation and argument.” Maryland Code (1984, 2009 Repl.Vol.), § 10-213(f) of the State Government Article.

. See Section 11-113(a) ("This section only applies to an employee (1) in the management service; (2) in the executive service; or (3) under a special appointment described in § 6-405 of this article.”); Section 6-*601404 (“executive service” means the following high-ranking positions in the Executive Branch: "(1) the chief administrator of a principal unit or a comparable position that is not excluded from the State Personnel Management System under § 6-301 of this title as a constitutional or elected office; and (2) a deputy secretary or assistant secretary of a principal unit or a position that the Secretary determines has similar stature, (b) Other positions. — The executive service includes any other position that is determined by the Secretary to be in the executive service”); Section 6-403 ("management service” means any position in the Executive Branch that "(1) primarily involves direct responsibility for the oversight and management of personnel and financial resources; (2) requires the exercise of discretion and independent judgment; and (3) is not in the executive service, (b) Other positions. — The management service includes any other position that is determined by the Secretary to be in the management service”); Section 6-405 (a) (listing the high-ranking appointments that qualify as "special appointees”).

. Moreover, as the Majority observes, the decision to refer a hearing to OAH is within the sole discretion of the agency, and is reviewed under the deferential "arbitrary and capricious” standard. Maj. Op. at 591-92 n. 7, 45 A.3d at 195-96 n. 7. Thus, practically speaking, it would be impossible for an aggrieved employee to demand that an administrative appeal be referred to OAH. See Spencer v. State Bd. of Pharm., 380 Md. 515, 533, 846 A.2d 341, 351 (2004) (“The reviewing court, absent some showing of fraud or egregious behavior on behalf of the agency, will be hard pressed to articulate a reason why the agency acted arbitrarily or capriciously when it did not send the case to the OAH.... Even conceding the error of the Board's failure to recuse certain members from the panel, that alone does not suffice to render arbitrary or capricious the Board’s decision not to refer to the OAH.” (emphasis added; citations and quotation marks omitted)); see also Rochvarg, § 9.4 (“Agencies can choose whether to use or not use OAH.”).

. The Majority also suggests that Forster’s administrative appeal could have gone to the Board instead of her replacement, see Maj. Op. at 591, 45 A.3d at 195, but that option is not in the statute because, as the Majority observes, the statute provides for appeal to the head of the principal unit only, and the Public Defender is the head of the principal unit in this case, see Maj. Op. at 582, 45 A.3d at 190.

. See Rochvarg, § 14.9; Adamson v. Corr. Med. Servs., 359 Md. 238, 271, 753 A.2d 501, 518-19 (2000) (explaining that agency expertise, although it is a goal of administrative exhaustion, does not always support requiring exhaustion).

. See Rochvarg, § 14.9; Wilson, 389 Md. at 89, 882 A.2d at 885-86 (legislative intent supports administrative exhaustion).

. See Matthew Bender, Administrative Law (2011), § 43.02[3]; Arroyo v. Bd. of Educ., 381 Md. 646, 658, 851 A.2d 576, 583-84 (2004) ("[JJudicial interference is withheld until the administrative process has run its course.” (citations and quotation marks omitted)).

. Unless otherwise indicated, all statutory references below are to the Criminal Procedure Article.

. Section 16-302 provides that the Board shall:

(1) study and observe the operation of the Office;
*606(2) coordinate the activities of the regional advisory boards; and
(3) advise the Public Defender on panels of attorneys, fees, and other matters about the operation of the public defender system.

. Forster also argues that the trial court erred by performing a "legal interpretation of [her] allegations instead of accepting her allegations as true.” Yet a trial court must always perform legal analysis to determine if the facts in the complaint, plus all reasonable inferences drawn from them, are legally sufficient to constitute the wrong alleged. See, e.g., Parks v. Alpharma, Inc., 421 Md. 59, 72, 25 A.3d 200, 207 (2011) ("Our goal, in reviewing the trial court’s grant of dismissal, is to determine whether the court was legally correct.”).

. See Insignia Residential Corp. v. Ashton, 359 Md. 560, 573, 755 A.2d 1080, 1087 (2000).

. See Magee v. DanSources Tech. Servs., Inc., 137 Md.App. 527, 572-73, 769 A.2d 231, 257-58 (2001).

. See Kessler v. Equity Mgmt., Inc., 82 Md.App. 577, 589, 572 A.2d 1144, 1150 (1990).

. Child in Need of Assistance proceedings under Maryland Code (1973, 2006 Repl.Vol.), § 3 — 801(f) of the Courts and Judicial Proceedings Article. See Cosby v. Dep’t of Human Res., 425 Md. 629, 42 A.3d 596 (2012).

. Nor was it made unlawful by Forster’s bald allegation that the Board’s directives would have resulted in ineffective assistance of counsel, as that question cannot be determined until each case occurs. Indeed, Forster’s allegation about ineffective assistance of counsel demonstrates even more strongly that what her complaint really alleges is *608her belief that the Board’s directives were not the best course of action for the Office, not that any clear mandate of public policy was violated.

. This conclusion is not disturbed by the only three cases Forster cites on this point, which are inapposite. See Peters v. Hobby, 349 U.S. 331, 345-46, 75 S.Ct. 790, 797, 99 L.Ed. 1129 (1955) (discussing a review board that had no power to make an initial determination to fire an employee); Balt. Transit Co. v. Flynn, 50 F.Supp. 382, 386, 389 (D.Md.1943) (dismissing a complaint for injunctive relief against an order of the National War Labor Board that had ordered a company to reinstate an employee, because the complaint did not state a claim upon which relief could be granted, and observing in dicta that courts should keep in mind the distinction between the Board’s power to "take over” an industry and its lack of power to control the industry "by indirect control ... of internal management”); Wadman v. City of Omaha, 231 Neb. 819, 438 N.W.2d 749, 755 (1989) (defining "insubordination” under Nebraska law).