Appellant, Nancy Forster, challenges her termination from the position of State Public Defender. A year-long disagreement between Forster and the Board of Trustees (the Board) of the Office of Public Defender (“the Office”) (collectively referred to as “the State”) over operation of the Office culminated penultimately in a letter from the Board to Forster demanding a suite of management and personnel changes in the Office, accompanied with a warning that, if the changes were not implemented by a date certain, Forster would be terminated. Forster refused to acquiesce to the Board’s demands, contending that the Board lacked the authority to issue such edicts, their implementation would harm indigent clients, cost more money than would be saved, and would violate provisions of the Public Defender Act. True to its threat, the Board terminated Forster. In response, Forster filed a wrongful discharge action against Appellee, the State of Maryland, Office of the Public Defender, in the Circuit Court for Baltimore City. The Circuit Court, on the State’s motion, dismissed Forster’s complaint for failure to state a claim upon which relief may be granted, one of the two grounds advanced by the State in its motion. The Court did not reach the merits of the State’s other assertion that Forster failed to exhaust her available administrative remedies under the State Personnel and Pensions Article.
Forster maintains before us that the Circuit Court granted erroneously the State’s motion to dismiss because, under our jurisprudence regarding wrongful discharge, she pleaded properly the elements of that cause of action, including that the Board’s demands of her for action were ultra vires and illegal. We do not reach, however, the merits of this claim. As a threshold matter, we conclude that Forster failed to exhaust the available and primary administrative remedy provided to at-will, executive service State employees under Ma
I. FACTUAL AND LEGAL BACKGROUND1
On 21 August 2009, Forster was terminated as Maryland’s State Public Defender. Forster served as the State Public Defender for five years. She was employed by the Office of the Public Defender for twenty-five years in sum. The General Assembly established the Office, a semi-autonomous agency within the Executive Branch of State government, in 1971. See 1971 Md. Laws 209, § 1; Maryland Code (1971), Art. 27A, § 3(a) (the “Public Defender Act”). The stated policy of the Public Defender Act is 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 thePage 571effective 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.
Md.Code (2001, 2008 Repl.Vol.), Crim. Proc. Art., § 16-201. The State Public Defender is the executive head of the Office, and is appointed by, and serves at the pleasure of, the Board of Trustees. Crim. Proc. Art., § 16-203(a). The primary duty of the State Public Defender is to “provide representation for indigent individuals.” Crim. Proc. Art., § 16-207(a).
The State Public Defender is empowered to appoint a Deputy Public Defender, District Public Defenders, and other personnel to assist him or her in performing the duties of the Office. Crim. Proc. Art., § 16-203(c), (e). The State Public Defender must maintain the Office "within its appropriation in the State budget. Crim. Proc. Art., § 16-203(g). Additional duties of the State Public Defender include: general responsibility for the operation of the Office; coordination with “professional groups about the causes of criminal conduct and the development of effective means to” reduce crime and rehabilitate those charged and convicted of crimes; and adoption of regulations and programs to carry out the purpose of the Public Defender Act. Crim. Proc. Art., § 16-207. Panel attorneys (attorneys in private practice appointed to represent certain, select indigent individuals) are supervised by the State Public Defender. Crim. Proc. Art., § 16-208(a). Each year, the State Public Defender must submit a report to the Board, the Governor, and the General Assembly providing data regarding the projected needs of the Office, the number and types of cases handled, the disposition of its cases, and recommendations for statutory changes. Crim. Proc. Art., § 16-401.
The Board is comprised of three members appointed by the governor. Crim. Proc. Art., § 16 — 301(b). The duties of the Board are to “(1) study and observe the operation of the Office; (2) coordinate the activities of the regional advisory boards; and (3) advise the Public Defender on panels of
Forster was appointed to the position of State Public Defender in 2004. For a year or so preceding her termination in August 2009, Forster and the Board engaged in a dispute over management of the Office. The dispute may be traced most clearly to 10 July 2008, when the freshly re-appointed/appointed Board notified Forster that they wanted to meet and discuss issues, including “[t]he status and role of the Juvenile Defenders program” and “upper level management positions” at the Office. The Board noted concerns, during a meeting on 5 August 2008 attended by Forster, specifically about the incumbent Deputy Public Defender and the District Eight Public Defender.
In the fall of 2008, as she foresaw pressing against the limits of the Office’s budget appropriation, Forster wrote a letter to the Chief Judge of the Court of Appeals alerting him that the Office would cease, after its funds were projected to become depleted in April 2009, referring to panel attorneys cases where the Office had a conflict of interest with existing representation of an indigent defendant; thereafter, judges would have to appoint private attorneys to handle such cases, paying them as best as they could (if at all). The Department of Budget and Management requested that Forster reduce the fiscal year 2010 budget by $3 million and, on 3 October 2008, Forster ceased paneling cases to private attorneys in all cases, except juvenile matters.
At the next Board meeting on 11 March 2009, Board members McCurdy and Meade pressed further for private panel attorneys in CINA cases and requested that the JPD and Capital Defense Division be disbanded. McCurdy requested that Forster, in her name, send to all Office employees an email that he authored. The draft email stated, in relevant part, that “[t]he Board’s goal is to assist the attorneys and staff to better streamline office procedures [and] to make [the Office] more efficient ... it is imperative to ... eliminate redundancy within the agency.” The email stated further that “[t]he Board requests input from you as to what programs could be eliminated or merged into other existing programs,” and encouraged the staff to speak directly with the Board and offered that their “communication with the Board [would] be held in strict confidence and ... without repercussion.” Forster told the Board that sending such an email would undermine her authority and invite complaints from disgruntled employees. Nonetheless, she offered to attempt to re-write the draft email in a way such that its content would be
At the next Board meeting, on 8 April 2009, the Office’s CFO provided budget analyses for the preceding four years and answered Chair McCurdy’s questions as to “which budget items over the past four fiscal years have run deficits and by how much each year.” The Board notified Forster that the May meeting was canceled. No meeting was held in June.
On 2 July 2009, the Board sent a letter to Forster informing her that it was dissatisfied with her performance as the State Public Defender and her failure to make “progress toward reorganization of the OPD operations.” The letter stated that the Board would terminate Forster if she did not make the following changes within the ensuing 60 days:
a. Disband the Capital Defense Division and disperse the clerical staff and personnel into the District Public Defender offices;
b. Disband the Juvenile Defender Division and disperse the clerical staff and attorneys into District Public Defender offices;
c. Close Northwest Community Defenders operations and merge them into the traditional district operations;
d. Prepare an annual report pursuant to Criminal Procedure Article, § 16-401 that breaks down by district the information required by the Annual Report;
e. Begin paneling CINA representation in no less than two districts, reassigning CINA attorneys to district operations and administration of CINA paneling operations;
f. Reorganize and justify which, if any, social workers are necessary;
g. Rehire law clerks as needed; and
h. Remove [the incumbent] District Eight District Public Defender.
On 13 July 2009, Forster wrote a letter to the Governor asking for a meeting in light of what she described as the “Board’s ultra vires demands” that would require her to “violate the law.” Forster sent a letter to the Board on 16 July 2009 contending that the Board’s orders, if executed, were unlawful because they violated the rights of merit-system State employees, demoted State employees without basis, contravened a State hiring freeze, and would cost more than they would save. In her letter, Forster told also the Board effectively that “you are not the boss of me,” e.g., it did not have the legal authority “to order me, as you do in your letter, to demote, fire and hire various personnel, or, in fact, to order me to do anything at all.” On 29 July 2009, Forster met with the Governor and his staff about her concerns. On 11 August 2009, Forster emailed the Board inquiring whether there would be a meeting that month. Chair McCurdy responded “no.”
On 20 August 2009, the Board met with its legal advisor from the Office of the State Attorney General concerning Forster’s position. The Board voted, two-to-one, to terminate Forster. Later that day, the Board appointed an Acting Public Defender. The next morning, Forster was notified, in a hand-delivered letter, that she was terminated, effective immediately.2 Forster did not pursue an administrative appeal of her termination. Instead, on 27 January 2010, she filed a claim with the State Treasurer, under the Maryland Tort Claims Act (“MTCA”). Md.Code (1984, 2009 Repl.Vol.),
On 16 August 2010, Forster filed a complaint against the State in the Circuit Court for Baltimore City advancing one count of wrongful discharge. The complaint alleged that the Board was authorized by statute only to “study and observe the operation of the Office” and to advise; therefore, the Board’s demand of specific actions to be taken by Forster was ultra vires, required Forster to violate State law (the Public Defender Act and the State Personnel and Pensions Article), and was contrary to Maryland’s public policy. She asserted that her refusal to comply with the Board’s unlawful orders rendered her termination wrongful.
On 15 October 2010, the State moved, in writing, to dismiss the complaint. The State’s motion argued that Forster’s complaint was barred because she failed to exhaust the available administrative remedies under Title 11, Subtitle 3 of the State Personnel and Pensions Article, before seeking recourse in court. Alternatively, the State contended that Forster’s complaint failed to state a viable claim for the tort of wrongful discharge because, as an at-will employee who could be terminated at any time, she served at the pleasure of the Board. Assuming the truth of Forster’s allegations for the sake of argument, the State argued that her complaint failed to plead the element of wrongful discharge that requires that the termination violate a clear mandate of public policy.3 After receiving respective rejoinders from the parties, the Circuit Court, without a hearing (none was requested), granted, on 25 February 2011, the State’s motion to dismiss. A memorandum opinion memorialized the reason for the court’s ruling.
clear, specific allegations of fact tending to show that the employer either (1) violated the legal rule at issue, or (2) punished the employee for exercising some legal right.... A claim for wrongful discharge may also be asserted in cases where the employee has been discharged for refusing to violate the law, or refusing to violate the legal rights of some third party.
Characterizing the dispute between Forster and the Board as “passionate disagreements about the conduct of Office operations between an at-will executive employee and members of her Board,” the Circuit Court concluded that there was nothing in the complaint that reflected “unlawful or particularly reprehensible conduct of the Board.” Observing that the primary responsibility of the State Public Defender is to provide representation to indigent defendants, the opinion noted that Forster did not allege that the “Board instructed or required her, or anyone else with the Office, not to provide representation of indigent individuals.” The opinion concluded that Forster’s “allegations do not raise even the spectre of a violation of law such as denying legal representation to any individual qualified for [the Office’s] services.” Alluding again to McIntyre, 105 Md.App. at 345, 659 A.2d at 404, as well as Lee v. Denro, Inc., 91 Md.App. 822, 832, 605 A.2d 1017, 1022 (1992), the Circuit Court resolved that “[s]uch differences in 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 a footnote, the Circuit Court said it “need not reach and does not address” the State’s administrative remedy exhaustion ground for dismissal.
1. Did the lower court err in granting the motion to dismiss Forster’s wrongful discharge cause of action where she clearly alleged that her employment was terminated because she refused in implement ultra vires orders from the Board of Trustees?
2. Did the lower court err in granting the motion to dismiss Forster’s wrongful discharge cause of action where she plainly alleged that her employment was terminated because she refused to engage in unlawful activity as ordered by the Board, she refused to violate clear public policy and because she exercised her statutorily prescribed duties as the Maryland Public Defender?
The State re-introduced in its brief the failure to exhaust available administrative remedy ground advanced to, but undecided by, the Circuit Court:
3. Is Forster’s wrongful discharge action barred by her failure to exhaust administrative remedies that were available to her as a State employee in the executive service under Title 11 of the State Personnel and Pensions Article?
We hold that a termination of an at-will State executive service employee triggers the primary administrative remedy provided by State Personnel and Pensions Article § 11-305, which requires terminated at-will State employees to appeal assertedly illegal or unconstitutional terminations through the administrative mechanism of § 11-113. Forster failed to do so, thus, she failed timely to exhaust the primary and available administrative remedy for her termination and her Circuit Court complaint for wrongful discharge is barred. Therefore, we do not reach the merits of whether the trial court erred in dismissing Forster’s complaint for failure to state a claim upon
II. STANDARD OF REVIEW
When reviewing a trial court’s grant of a motion to dismiss, we assume the truth of all well-pleaded facts and allegations in the complaint, as well as the reasonable inferences drawn from them, in a light most favorable to the non-moving party. RRC Ne., LLC v. BAA Md., Inc., 413 Md. 638, 643, 994 A.2d 430, 433 (2010) (citing Lloyd v. Gen. Motors Corp., 397 Md. 108, 121-22, 916 A.2d 257, 264-65 (2007)); Sprenger v. Pub. Serv. Comm’n of Md., 400 Md. 1, 21, 926 A.2d 238, 249-50 (2007); Pendleton v. State, 398 Md. 447, 458, 921 A.2d 196, 203 (2007).
Appellate review of the grant of the motion to dismiss evaluates whether the trial court was correct legally. Pendleton, 398 Md. at 459, 921 A.2d at 203 (citing Benson v. State, 389 Md. 615, 626, 887 A.2d 525, 531 (2005)). To determine whether the trial court’s judgment was correct legally in the present case, we encounter a question of statutory interpretation. We consider the interpretation of a statute without deference. Breslin v. Powell, 421 Md. 266, 286, 26 A.3d 878, 885 (2011) (citing Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609, 612 (2002)).
The goal of statutory interpretation is to “ ‘ascertain and implement, to the extent possible, the legislative intent.’ ” Smack, 378 Md. at 304, 835 A.2d at 1178 (quoting Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002)). An appellate court interprets a statute by first looking to its plain language, giving the words their natural and ordinary meaning. Breslin, 421 Md. at 286, 26 A.3d at 891 (citing State Dep’t of Assessments and Tax’n v. Md.-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13, 702 A.2d 690, 696 (1997)). To determine the plain meaning of language, we consider also the statutory scheme in which the particular provision or provisions appear. State v. Pagano, 341 Md. 129, 133, 669 A.2d 1339, 1341 (1996) (citing Kaczorowski v. Mayor & City
III. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
We consider the State’s contention, as a threshold question, that Forster’s complaint was barred because she failed to exhaust an available and primary administrative remedy. In addition to Maryland Rule 8-131(a) indicating generally that we may consider issues “raised in or decided by the trial court,” we may consider, sua sponte, whether available administrative remedies have been exhausted. See, e.g., Md. Reclamation Assocs. v. Harford Cnty., 342 Md. 476, 490 n. 10, 677 A.2d 567, 574 n. 10 (1996) (“ ‘[T]he exhaustion or exclusivity of an administrative remedy is ... an issue’ which ‘an appellate court ordinarily will address even though [it was] not raised by a party’ ” (quoting Moats v. City of Hagerstown, 324 Md. 519, 525, 597 A.2d 972, 975 (1991))).
In the present context, the issue of administrative remedy exhaustion was raised by the State, but the Circuit Court declined to reach this threshold issue in its memorandum opinion, preferring to grapple directly with the sufficiency of Forster’s pleading of her sole claim. This posture, however, does not preclude us from making the jurisdictional determination whether the claim is barred by the doctrine of administrative remedy exhaustion. In the interest of judicial efficiency, we may affirm the judgment of a trial court to grant a motion to dismiss on a different ground than that relied upon by the trial court, as long as the alternative
There is a general rule in Maryland courts that if there is an available primary administrative remedy provided by the Legislature, it must be exhausted before a party may seek relief from a court. Sprenger, 400 Md. at 24, 926 A.2d at 252 (citing Prince George’s Cnty. v. Ray’s Used Cars, 398 Md. 632, 651, 922 A.2d 495, 506 (2007)); Zappone v. Liberty Life Ins. Co., 349 Md. 45, 63, 706 A.2d 1060, 1069 (1998) (stating that there is a “presumption that the administrative remedy is intended to be primary, and ... a claimant cannot maintain the alternative judicial action without first invoking and exhausting the administrative remedy”).
A. The Relevant Statutory Scheme
The administrative remedy available to Forster was provided by Title 11 of the State Personnel and Pensions Article, available to all State employees within the Executive Branch, with the exception of temporary employees. State Pers. & Pens. Art., § 11-102. Section 11-104 of the State Personnel and Pensions Article empowers generally an appointing authority to take disciplinary action against a State employee, including written reprimands, suspension without pay, and termination. Prior to disciplining an employee for misconduct, however, the appointing authority must “(1) investigate the alleged misconduct; (2) meet with the employee; (3)
If an employee fails to appeal disciplinary action in accordance with Title 11, the action is considered accepted by the employee. State Pers. & Pens. Art., § 11 — 108(b)(1). Appeals for employees in the management service, in the executive service, or who are appointed specially are governed specifically by § 11-113. As the head of a principal unit of State government,4 the Public Defender is a position in the executive service. State Pers. & Pens. Art., § 6-404(a)(l). Under § 11-113, an appeal must be filed within 15 days after the employee receives notice of a disciplinary action taken against him or her. State Pers. & Pens. Art., § 11 — 113(b)(2)(i). Appeals under this section may challenge the disciplinary action based only on grounds that the discipline was illegal or unconstitutional; the employee bears the burden of proof. State Pers. & Pens. Art., § 11 — 113(b)(2)(ii), (b)(3). The appeal is taken to the head of the principal unit where the employee is, or was, employed, whose decision on the appeal is the final administrative decision. State Pers. & Pens. Art., § 11-113(d)(3).
Termination of State employees in the management and executive services, as well as special appointees, is governed also by State Personnel & Pensions Article, § 11-305. This provision states that employees subject to its terms are at-will employees who serve at the pleasure of the appointing author
B. Relevant Cases
We explored the statutory cross-currents of State employee terminations in Smack, concluding that a probationary employee could be terminated without regard to the pre-termination procedural/substantive requirements of § 11-106. 378 Md. at 314, 835 A.2d at 1184. Stephanie Smack was a social worker still in her mandatory six-month probationary period required by State Personnel & Pensions Article, § 7-402(a), when she was terminated for failing to attend and conduct a weekly group therapy session with clients in her charge. Smack, 378 Md. at 302, 835 A.2d at 1177. Smack appealed her termination under § 11-110, but an Administrative Law Judge (“ALJ”) of the Maryland Office of Administrative Hearings (acting by delegation for the Secretary of the Department of Health and Mental Hygiene) concluded that termination of a probationary employee, because of the nature of the probationary class of employment, could not be for “misconduct” and, therefore, Smack was not entitled to the protective pretermination requirements provided by § 11-106. Smack, 378 Md. at 303, 835 A.2d at 1177-78. The Circuit Court for Worcester County and the Court of Special Appeals agreed with the ALJ. Smack, 378 Md. at 303-04, 835 A.2d at 1178.
Before this Court, Smack argued that § 11-106 applied to disciplinary actions based on misconduct taken against any category of State employee, except a temporary employee; thus, her purported termination was subject to the preliminary procedures of § 11-106 not followed by the employer. Smack, 378 Md. at 303, 835 A.2d at 1177-78. We noted that the termination, demotion, or removal of a probationary em
Chief Judge Bell, writing for the Court in Smack, noted that, because § 11-303 is focused narrowly on only one form of discipline, termination, the two sections “can be reconciled by treating § 11-303, the more specific of the two, as an exception to § 11-106, the more general.” Id. He concluded that where “there is a provision that specifically, and without any doubt, addresses the termination, as opposed to the discipline generally, of probationary employees, that provision must control over a provision that applies, but only generally, as § 11-106 does.” Smack, 378 Md. at 313, 835 A.2d at 1183. Providing a separate procedure for termination of probationary employees does not render § 11-106 illogical or inconsistent because the General Assembly permitted the appointing authority “to take disciplinary action against a probationary employee or to terminate that employee, both in accordance with Title 11.” Smack, 378 Md. at 314, 835 A.2d at 1183 (internal quotations omitted). Thus, whenever a probationary employee is disciplined, short of termination, § 11-106 applies as pre-discipline required steps. Smack, 378 Md. at 315, 835 A.2d at 1184-85.
Wilson sought judicial review in the Circuit Court, which ordered her reinstatement based on its determination of an unlawful termination by the Chair acting alone. The court opined that only a majority of the PSC Commissioners could terminate Wilson. It directed that any subsequent administrative appeal on remand could not be presided over by Schisler or his staff. Wilson, 389 Md. at 38-39, 882 A.2d at 856. Compliant with the judgment of the Circuit Court, the PSC sent a letter to Wilson reinstating her; however, the same letter re-terminated her by a majority vote of the Commissioners and gave her notice of her rights to appeal administratively the new termination action. Wilson, 389 Md.
The PSC sought concurrently an appeal to the Court of Special Appeals from the Circuit Court judgment and filed contemporaneously a motion with the Circuit Court to reconsider that aspect of its judgment awarding back pay and benefits to Wilson. Wilson, 389 Md. at 39, 882 A.2d at 856-57. Wilson, for her part and in response to the PSC’s escalation, sought from the Circuit Court an order of contempt against the PSC based on her re-termination. Wilson, 389 Md. at 40, 882 A.2d at 857. The Circuit Court issued a second order reiterating the findings of its prior order and adding that Wilson’s re-termination was illegal because she was fired “for cause” as the result of alleged misconduct, without the proper statutory pre-termination protections of § 11-106 and that the firing was unconstitutional due to biased decision-makers. Id. The PSC filed a second notice of appeal with the Court of Special Appeals from this action, but we issued a writ of certiorari before the intermediate appellate court decided the case. Wilson, 389 Md. at 41, 882 A.2d at 857.
Wilson argued that although her second termination was effected by a majority of the PSC Commissioners, it was illegal because she was not afforded the required pre-termination notice when an employee is terminated “for cause” and, alternatively, that if she was fired for no reason as an at-will employee, the appeal process offered to her was unconstitutional because Chair Schisler (who fired her initially) would preside over the appeal and could not be impartial. Wilson, 389 Md. at 49, 882 A.2d at 868. As a starting point in analyzing at-will employee termination generally, we noted that courts and juries may not review the motivation or factual basis behind an employer’s decision to terminate, and that decision, absent a “contravening public policy,” may be unreviewable even if arbitrary, capricious, or even fundamentally unfair. Wilson, 389 Md. at 61 n. 21, 882 A.2d at 869 n. 21 (citing Towson Univ. v. Conte, 384 Md. 68, 82-83, 862 A.2d 941, 949 (2004)).
“a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee, within the scope of his employment relationship, during hours of employment, or on the employer’s premises.”
Wilson, 389 Md. at 77, 882 A.2d at 879 (quoting Dep’t of Labor, Licensing & Regulation v. Hider, 349 Md. 71, 85, 706 A.2d 1073, 1079 (1998)). Under these assumptions, we concluded that nothing in Wilson’s alleged, on-the-job behavior rose to the level of misconduct, nor could the performance issues alleged regarding her employment constitute a “dereliction of duty.” Wilson, 389 Md. at 78, 882 A.2d at 879-80. Dereliction of duty involves “lacking a sense of duty; in breach of a legal or moral obligation.” Id. The Court concluded that “in order to rise to the level of ‘employee misconduct,’
Acknowledging that § 11-106 serves to protect at-will employees from discipline on the basis of unsubstantiated accusations, however, we concluded that “if it appears that a disciplinary action may have been based, even sub silentio, on alleged facts constituting “employee misconduct,” the “appointing authority” must be held accountable to follow the procedures outlined in § 11-106.” Wilson, 389 Md. at 82-83, 882 A.2d at 882. We noted further that when management service employees are disciplined, they bear the burden of proof to show that the proper procedures were not followed, and absent “such a demonstration, a termination or other discipline of an at-will employee, without a reason being given and without obeisance to the statutory procedures in § 11-106, is not unlawful necessarily.” Wilson, 389 Md. at 84, 882 A.2d at 883.
We declined to decide whether Wilson’s unpursued administrative appeal from the second termination would have been futile or unfair in a constitutional sense because Chair Schisler might preside over it. Our declination to reach this issue was because Wilson failed to pursue, i.e., exhaust, “the specific administrative remedy provided by statute when a management service, at-will employee of the PSC is terminated for other than misconduct.” Wilson, 389 Md. at 88-89, 882 A.2d at 885-86. Quoting from SEFAC Lift & Equipment Corporation v. Mass Transit Administration, 367 Md. 374, 380, 788 A.2d 192, 196 (2002), we reiterated that
[w]e have long held, and have recently confirmed, that where an administrative agency has primary or exclusive jurisdiction over a controversy, the parties to the controversy must ordinarily await a final administrative decisionPage 589before resorting to the courts for resolution of the controversy.
Wilson, 389 Md. at 89, 882 A.2d at 886 (internal quotations and citations omitted). We noted that § 11-113 allowed Wilson to challenge the illegality or constitutionality of her second termination in an administrative appeal taken within 15 days of receiving notice of the action. Wilson, 389 Md. at 92, 882 A.2d at 888. We concluded that Wilson was barred by the doctrine of administrative exhaustion from seeking alternative redress in the Circuit Court. Id. Wilson urged this Court, if we determined she was not terminated “for cause,” to remand the case back to the trial court for further discovery to determine whether she was terminated, as she claimed, by the Republican-dominated PSC Commissioners because of her political affiliation as a Democrat. Wilson, 389 Md. at 93, 882 A.2d at 888-89. This request too was barred because Wilson failed to exhaust her administrative remedies. Id.
C. The Present Case
Forster argues that this Court cannot decide the issue of administrative remedy exhaustion because the trial court did not dismiss her complaint on this ground. As discussed supra in Part III, we may consider and decide this issue regardless of whether the trial court relied upon this basis to dismiss Forster’s complaint. Forster contends also that additional fact-finding, after discovery, must be allowed to determine what notice of her administrative appellate rights she was provided and whether she was terminated for misconduct, specifically insubordination. Smack guides us in deciding these contentions.
In Smack, we concluded that, because a provision, § 11-303, in the State Personnel and Pensions Article, applied specifically to termination of probationary employees, rather than to discipline of State employees generally, § 11-303 regulated terminations of probationary employees exclusively. Smack, 378 Md. at 313, 835 A.2d at 1183. Employee misconduct that is the gravamen of disciplinary proceedings up to, but not
Section 11-305, which governs termination of at-will employees, including those in the executive service, is analogous to § 11-303, governing termination of probationary employees. Like § 11-303, § 11-305 applies only to targeted categories of State employees. The categories targeted by § 11-303 and § 11-305 are employees with limited rights to continued employment. Section 11 — 305(b) makes clear that executive service employees, like Forster, are at-will employees that may be terminated for any (or no) reason as long as the action was not infected by illegality or unconstitutionality, which grounds are recognized expressly in the statutory scheme as having to be raised initially and decided in an administrative appeal. This is the fundamental structure of an at-will employment relationship that we cautioned against disrupting in Wilson, 389 Md. at 83, 882 A.2d at 882.
The plain language of § 11-305 covers all terminations of at-will employees for any cause, or no cause at all. At-will employees may be terminated at any time, so long as the termination is not politically-motivated, illegal, or unconstitutional. Section 11-305 contains no provision exempting terminations due to misconduct, nor any reference to § 11-106. Section 11-305, like § 11-303 discussed in Smack, contains a separate appeal provision, which limits to illegality or unconstitutionality the grounds upon which an appeal may be maintained. Section 11-305 is a specific statutory provision providing procedures available only to termination of at-will
Forster’s termination, as an executive service employee, was governed by § 11-305 exclusively. Forster’s argument that her termination was illegal and unconstitutional would have been in the wheel-house of an administrative appeal challenging an at-will employee termination; however, her claims were asserted too late and in the wrong forum in the present litigation. Forster did not appeal administratively (in writing and within 15 days) her termination under § 11— 113, as directed by § ll-305(d). Because she did not appeal her termination, the doctrine of exhaustion of administrative remedies bars her complaint for wrongful discharge in the Circuit Court. Forster’s claim that she did not receive written notice of her appeal rights fails also because § 11-305 does not contain a notice provision and no notice is required by § 11-113.
Forster argues alternatively that because she was the head of a principal unit, when she was fired she could not file an appeal to herself. This claim has no merit. When the Board majority voted to terminate Forster, it appointed (virtually concurrently) an interim Public Defender. Forster’s 21 August 2009 termination letter from the Board provided this information to her. Forster does not dispute that there was an interim head of the principal unit and does not explain why she did not appeal to that person or the Board.7
BATTAGLIA and ADKINS, JJ., Concur and Dissent.
1.
Because this matter reaches us in the procedural posture of the grant of a motion to dismiss in the Circuit Court, we accept the well-pleaded specific facts alleged by Forster in her complaint (and any reasonable inference drawable therefrom), which, in any event, are undisputed by the State.
2.
Although not relevant to our decision, we note that, apparently as a result of the public controversy generated by the Board's firing of Forster, the General Assembly enacted amendments to the Public Defender Act changing the composition of the Board from three to 13 members and restricting the removal of the State Public Defender for misconduct, persistent failure to perform duties, or conduct prejudicial to the administration of justice. Maryland Code (2001, 2008 Repl.Vol., 2011 Supp.), Crim. Proc. Art., §§ 16-203, 16-301.
3.
The State argued also that Forster failed to comply with the service requirements of the MTCA. Neither party briefed or argued this ground before us.
4.
A " 'principal unit’ means: (1) a principal department or other principal independent unit of State government; or (2) for an employee of a county board of elections whose employees are covered by this article, the county board of elections.” Maryland Code (1994, 2009 Repl.Vol.), State Pers. & Pens. Art., § 1-101(k). Section 6-404(a)(1) of the State Personnel and Pensions Article provided that "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 ...” is a member of the executive service. State Pers. & Pens. Art., § 6-404(a)(l).
5.
We note that under our definition of employee misconduct, explored in-depth in Wilson, Forster’s actions leading to her termination would not rise to the level of misconduct. Forster advances the theory that her refusal to implement the Board of Trustee's demanded changes could be classified as insubordination. This theory is unpersuasive, however, because it is eroded by Forster's equally passionate contention that the Board did not have the legal authority "to order me, as you do in your letter, to demote, fire and hire various personnel, or, in fact, to order me to do anything at all.”
6.
Our holding does not conflict with Wilson, discussed supra. In Wilson, we assumed rhetorically (without deciding), for the sake of evaluating Wilson’s argument, that § 11-106 applied to executive service employees terminated for misconduct, noting as a basis for the arguendo assumption the Court of Special Appeals’s holding in Danaher. Our ultimate conclusion in Wilson, however, was not based on this assumption. Our commentary on § 11-106’s arguable applicability was obiter dictum and does not foreclose our holding here. Smack directs the analysis employed in the present case.
7.
We note also that the Maryland Administrative Procedures Act allows the Office of the Public Defender to delegate hearing authority to the Office of Administrative Hearings ("OAH”). Md.Code (1984, 2009 *592Repl.Vol.), State Gov't Art., § 10-205. In the event that an at-will employee, who is also the head of a principal'unit, challenges his/her termination and argues that the interim head or appointing authority cannot be unbiased, the OAH can provide a neutral forum for an appeal. We concluded in Spencer v. Maryland State Board of Pharmacy, where a pharmacist asserted that the Board of Pharmacy must refer her case to the OAH because it was biased impermissibly when certain Board members participated in settlement discussions prior to a hearing, that the Board was not required to send the case to the OAH, but it could take steps to remove or replace the allegedly biased Board members, or send the case to the OAH for fact-finding, but retain final decision-making authority. 380 Md. 515, 532-33, 846 A.2d 341, 351 (2004). Referral of a case to the OAH is a discretionary action by an administrative agency that is reviewed under the deferential arbitrary and capricious standard according to the relevant circumstances of each case. Spencer, 380 Md. at 532-33, 846 A.2d at 351-52.