Towson University v. Conte

BELL, C.J.,

dissenting.

In this case, Towson University, the petitioner, and Michael Conte, the respondent, entered into an employment contract, pursuant to which the petitioner’s right to terminate the respondent’s employment was conditioned on there being “just cause” for doing so.1 Section 6.2 of the *98contract2 also provided for the notification of the respondent, “in writing, of the cause for which termination is sought” and that the respondent could request a hearing by the President or the President’s designee within thirty days of receipt of the notice of termination. The result of the failure to request a hearing, the contract warned, would be that “the termination shall become immediately effective.”

The majority accurately characterizes this contractual arrangement as a “just cause” contract, one pursuant to which the employee “may be fired only for cause,” see Towson University v. Michael Conte, 384 Md. 68, 72, 862 A.2d 941, 943 (2004), as opposed to one in which the employee serves at the will of the employer or subject to the employer’s satisfaction. The majority also recognizes, again correctly, that there are substantial differences between these contracts — in an at will contract, the employee is subject to termination “for any reason, even a reason that is arbitrary, capricious, or fundamentally unfair,” id. at 82, 862 A.2d at 949; in a satisfaction contract, the employee is subject to termination “whenever ... the employer, acting in good faith is actually dissatisfied with the employee’s work,” id. at 83, 862 A.2d at 949, quoting Ferris v. Polonsky, 191 Md. 79, 85, 59 A.2d 749, 752 (1948); in a “just cause” contract, the employee is subject to termination only for good cause. Id. at 84, 862 A.2d at 950. The latter provides the employee with greater protection from discharge than the other two. Id. at 84, 862 A.2d at 950.

*99Despite its conclusion that “[j]ust cause employment contracts ... logically permit the jury to review with greater scrutiny the employer’s decision to terminate than do satisfaction contracts,” id. at 84, 862 A.2d at 950, and, therefore, should not be treated like satisfaction contracts, id. at 84, 862 A.2d at 950, the majority proceeds nevertheless to do just that, treat them like satisfaction contracts.

In defining the fact-finder’s limited role in the review of satisfaction contracts, the majority relies on Ferns v. Polan-sky, from which it quotes the rule, as follows:

“In a contract where the employer agrees to employ another as long as the services are satisfactory, the employer has the right to terminate the contract and discharge the employee, whenever he, the employer, acting in good faith is actually dissatisfied with the employee’s work. This applies, even though the parties to the employment contract have stipulated that the contract shall be operative during a definite term, if it provides that the services are to be performed to the satisfaction of the employer. It is not necessary that there exist grounds deemed adequate by the trier of facts for the employer’s dissatisfaction. He is the judge as to whether the services are satisfactory. However, this dissatisfaction, to justify the discharge of the employee, must be real and not pretended, capricious, mercenary, or the result of a dishonest design. If the employer feigns dissatisfaction and dismisses the employee, the discharge is wrongful. The employer in exercising the right of dismissal because of dissatisfaction must do so honestly and in good faith.”

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

“... the jury may not review whether the factual bases for termination actually occurred or whether they were proved by a preponderance of the evidence submitted for its review. Instead, the proper role of the jury is to review the objective motivation, i.e., whether the employer acted in objective *100good faith and in accordance with a reasonable employer under similar circumstances when he decided there was just cause to terminate the employee. The jury’s inquiry should center on whether an employer’s termination was based upon any arbitrary, capricious, or illegal reason, or based on facts not reasonably believed to be true by the employer. But the fact-finding prerogative will remain with the employer, absent some express intention otherwise.” [3]

Id. at 84-85, 862 A.2d at 950.

Underlying this decision, as urged by the petitioner, is “the strong judicial policy against interfering with the business judgment of private business entities,” [4] for which proposition the majority cites Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 526, 836 A.2d 655, 665 (2003) and Elliott v. Bd. Of Trustees of Montgomery County Community College, 104 Md.App. 93, 108-09, 655 A.2d 46, 53 (1995). Towson, 384 Md. at 76, 862 A.2d at 945. Also critical to the majority decision is the fact that the contract language fails to address definitively, one way or the other, the question of who, as between the jury and the employer, will perform the fact-finding function, id. at 80, 862 A.2d at 948, thus, requiring it, the majority, to determine which presumptively should do so. Id. at 82, 862 A.2d at 948-49. Refusing to interpret the contract at issue as *101granting a third party the authority to review the factual basis for the employer’s termination decision, the majority concludes that the “fact-finding prerogative” rests with the employer. Id. at 86-87, 862 A.2d at 951-52. It reasons, agreeing with the Oregon Supreme Court, that “absent some express indication otherwise [5] an employer does not contract away his core function as ultimate fact-finder with regard to an employee’s workplace performance.” Id. at 86-87, 862 A.2d at 952. It concludes, “[t]o hold otherwise would be to put the courts in the position of making ... personnel decisions, acting as a super personnel officer, or of second-guessing a company’s decisions.” Id. at 86-87, 862 A.2d at 952, quoting Elliott, 104 Md.App. at 110, 655 A.2d at 54 (citation and quotations omitted). Moreover, the majority points out, its result is consistent with the result reached by the majority of the courts that have addressed the issue. See Braun v. Alaska Commercial Fishing and Agriculture Bank, 816 P.2d 140 (Alaska 1991); Cotran v. Rollins Hudig Hall, 17 Cal.4th 93, 69 Cal.Rptr.2d 900, 948 P.2d 412 (1998); Southwest Gas Corp. v. Vargas, 111 Nev. 1064, 901 P.2d 693 (1995); Thompson v. Assoc. Potato Growers, 610 N.W.2d 53 (N.D.2000); Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280 (N.M.1988); Simpson v. Western Graphics Corp., 293 Or. 96, 643 P.2d 1276 (1982); Baldwin v. Sisters of Providence, 112 Wash.2d 127, 769 P.2d 298 (1989); Life Care, Inc. v. Dexter, 65 P.3d 385 (Wy.2003); Almada v. Allstate Ins. Co., Inc., 153 F.Supp.2d 1108 (D.Ariz.2000); cf. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 733 A.2d 197, 208 n. 13 (1999).

At the outset, I can see little, if any, distinction between the test the majority enunciates for the review of “just cause” *102contracts and that applicable to satisfaction contracts. Although characterized as focusing on the review of the “objective motivation” of the employer, in the case of a “just cause” contract, within the majority’s contemplation and as it explains, what is really to be determined is the objective good faith with which the employer acted and the consistency of those actions with those of a reasonable employer under similar circumstances. Id. at 85, 862 A.2d at 950-51. That determination is made by assessing whether the challenged termination “was based upon any arbitrary, capricious, or illegal reason, or based on facts not reasonably believed to be true by the employer,” id. at 85, 862 A.2d at 950-51, i.e. whether the employer acted in good faith.

Notwithstanding its being characterized as being a subjective one, Towson, 384 Md. at 83-84, 862 A.2d at 950, this is the precise test that also applies in the case of a satisfaction contract. As the majority describes it, the employer’s subjective motivation involves determining “whether the employer was genuinely or honestly dissatisfied with the employee’s services or merely feigning dissatisfaction.” Id. at 83-84, 862 A.2d at 950. Thus, the test in a satisfaction contract is whether, when the employee was terminated, the employer was acting in good faith. Elliott, 104 Md.App. at 108, 655 A.2d at 53 (1995).6 Whether probative of the objective motivation of the employer or its subjective motivation, the decisive factor is the same; in the case of either kind of contract, it is the good faith with which the employer acted that counts and that defines the test.

I am not at all convinced that the “business judgment rule,” treated, and relied upon, in Sadler and Elliott supports, lest *103more requires, the result the majority reaches in this case. To be sure, that rule counsels against, and, indeed, prohibits the courts from inappropriately interfering with the business judgment of a private business, thus limiting the court’s role in reviewing the actions of that business. See Sadler, 378 Md. at 531, 836 A.2d at 668. But Sadler is clear: the business judgment rule “has never precluded full litigation of complaints sounding in tort or contract against the corporation. A corporation, as a private entity, may be held liable for tortious conduct and breaches of contracts, perpetrated by its officers, directors, and agents, against third parties.... Nothing in the jurisprudence of this State would hold otherwise.” Id. at 532, 836 A.2d at 668-69, citing Maryland Code (1975, 1999 Repl. Vol., 2002 Supp.) § 2-103 of the Corporations and Associations Article. The petitioner entered the employment contract at issue in this case voluntarily. In return for the respondent’s services, it agreed to limit its power to discharge the respondent, thus, however viewed, objectively or subjectively, intending to provide the respondent with greater job security. The business judgment rule does not, and should not, be construed to shield the petitioner, even partially, from its breach or to change, in the least, the bargain that the parties made.

Rather than the cases on which the majority relies, the majority view, I am persuaded, on both accounts, by the reasoning of Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980), and its progeny. See Raymond v. IBM, Corp., 954 F.Supp. 744, 751-52 (D.Vt. 1997); Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 538 (1993) (“If the employer produces sufficient evidence, the employee may rebut, and if in controversy, the issue goes to the trier of fact; however, the ultimate burden of proving wrongful termination remains with the employee”); Alegria v. Idaho First Nat. Bank, 111 Idaho 314, 723 P.2d 858, 875 (1986); Sanders v. Parker Drilling Co., 911 F.2d 191 (9th Cir.1990). In Toussaint, the Michigan Supreme Court held that, like the determinations of whether there is an express agreement to discharge the employee only for cause and the compliance of that termination with the procedures governing it, “the question *104whether termination of employment was in breach of the contract ... was also one for the jury.” 292 N.W.2d at 895. The court was aware of, and took account of, the facts that the role of the jury may differ in each case,7 id. at 896, and may present some significant issues, if not difficulties, id., including the danger, when the issue is the sufficiency of the cause for termination, that the jury will substitute its judgment for that of the employer. Id. Nevertheless, after considering the good faith/reasonableness test and the option of instructing the jury consistent therewith and notwithstanding its recognition that “fwjhile the promise to terminate for cause includes the right to have the employer’s decision reviewed, it does not include a right to be discharged only with the concurrence of the communal judgment of the jury,” id., the court rejected both the test and the instruction alternative. Noting that “[s]uch an instruction would transform a good-cause contract into a satisfaction contract,” id., it explained:

“Where the employer has secured a promise not to be discharged except for cause, he has contracted for more than the employer’s promise to act in good faith or not to be unreasonable. An instruction which permits the jury to review only for reasonableness inadequately enforces that promise.”

Id.

Moreover, rejecting the notion that there is an identity between satisfaction contracts and “just cause” contracts, the *105court concluded, “[a] promise to terminate employment for cause only would be illusory if the employer were permitted to be the sole judge and final arbiter of the discharge. There must be some review of the employer’s decision if the cause contract is to be distinguished from the satisfaction contract.” Id. at 895. To the expressed fear that enforcing cause only discharges will lead to employee incompetence and inefficiency, id. at 896, the court responded, “no employer is obliged to enter into such a contract.” Id. at 896-97.

The cases on which the majority relies, and therefore the basis on which the majority has decided this case, proceed on a premise that is antithetical to the ordinary rules of contract construction,8 that a contract that is clear and unambiguous with respect to the rights and obligations of the parties may be construed so as to relieve one party of the obligations it undertook and to redefine the rights the other contracted to receive. The majority also adopts “a legal presumption that the employer retainfs] the fact-finding prerogative underlying the decision to terminate employment.” 9 Towson, 384 Md. at *10689, 862 A.2d at 953. This is required, the majority submits, due to “the practical considerations of running a business,” “employers often ‘rely on hearsay, on past similar conduct, on their personal knowledge of people’s credibility, and on factors that the judicial process ignores,’ indicating that ‘[w]hat works best in a judicial proceeding may not be appropriate in the employment context,’ ” and, in any event, the petitioner in this case “alone was in the best position to determine whether there were facts sufficient to constitute ‘incompetence’ and ‘wilful neglect of duties.’ ” Id. at 89, 862 A.2d at 953, quoting Waters v. Churchill, 511 U.S. 661, 676, 114 S.Ct. 1878, 1888, 128 L.Ed.2d 686, 700 (1994). This rule is given context and meaning by reference to the business judgment rule and the majority’s interpretation of that rule as a non-interference rule for all purposes. Surely, the majority does not advocate that one party to the contract should be its sole and final arbiter in the absence of such an agreement.

The well settled rule of contract construction is, of course, to the contrary. It is that, where the words of the contract are clear and unambiguous, no interpretation is required or permitted, see Wells v. Chevy Chase Bank, FSB, 363 Md. 232, 250-251, 768 A.2d 620, 630 (2001); effect is to be given to the contract as written. See Walker v. Department of Human Resources, 379 Md. 407, 421, 842 A.2d 53, 61 (2004). Even when the contract terms are ambiguous, we seek the intention of the parties, which may be supplied by parol evidence or from other extraneous sources. Beale v. American Nat’l Lawyers Ins. Reciprocal, 379 Md. 643, 658, 843 A.2d 78, 87 (2004). I am simply unaware that, in contract cases, even those involving a business entity, the parties’ intention can be determined by means of a legal presumption.

*107In any event, there is nothing in the contract that suggests, much less establishes, that the parties intended that the fact-finding as to the termination decision be made solely by the employer. Certainly, in the absence of an express provision to that effect, such an interpretation is inconsistent with the employee’s intent, as evidenced by his having successfully negotiated for a “just cause” only termination. Extracting such a promise is inconsistent with an intent on the part of the employee to give his or her employer the degree of control, or even close to that degree of control, that the employer retains when it enters into an at will or a satisfaction contract. A “just cause” contract is, as the majority admits, significantly different from, and provides an employee with significantly greater protection than, those other two kinds of contract. Towson, 384 Md. at 84, 862 A.2d at 950. Rather than simply paying lip service to the distinction, the petitioner’s promise should be reflected in the interpretation given the contractual relationship.

And the use of a legal presumption is not the appropriate way to resolve an ambiguity; as I have pointed out, and this Court has repeatedly held, see Sy-Lene of Washington Inc., v. Starwood Urban Retail II, 376 Md. 157, 167-68, 829 A.2d 540, 547 (2003); Langston v. Langston, 366 Md. 490, 506-507, 784 A.2d 1086, 1095 (2001); Wells 363 Md. at 250-51, 768 A.2d 620, ambiguity triggers a search for the parties’ intention, in the pursuit of which a court must consider, inter alia, parol or extrinsic evidence, the literal or usual meaning of the words used, the meaning of the words in light of the statute as a whole and within the context of the objectives and purposes of the enactment. See Marriott Employees Fed. Credit Union, supra, 346 Md. 437, 445, 697 A.2d 455, 459 (1997) (citing Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1 (1995)); Sy-Lene, 376 Md. at 167-68, 829 A.2d at 547; Langston, 366 Md. at 506, 784 A.2d at 1095. Even if an ambiguity may be resolved by use of a legal presumption, the question still remains, why should the presumption favor the employer and not the employee? Indeed, logically, because the employer is not required to enter into “just cause” contracts and may, as it often *108does, retain considerable authority to discharge its employees, the ambiguity should be construed against the employer, at least in the absence of evidence, by parol or otherwise, that both parties intended the employer to have the fact-finding responsibility and that the court or jury defer to the employer’s exercise of that responsibility. The failure of the employer to negotiate a provision that clearly so provides is, I believe, proof positive that the parties did not intend what the majority imposes as a default.

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

To be sure, the majority’s concern that permitting the jury to be the final arbiter of whether the termination was justified may put the employer in a difficult position is legitimate. It may very well, and that might well be the situation in this case. It should be borne in mind, however, as- the concurring and dissenting Justice in Cotran pointed out, that “the difficulty of the employer’s position is matched or exceeded by the plight of a falsely accused and wrongfully terminated employee who is denied all legal redress.” 948 P.2d at 428 (Kennard, J, concurring and dissenting). It is, in short, well and good to be concerned about what is fair to the employer, but what is fair to the employee also should, and must, be considered as well, and as seriously. The rule the majority adopts, being very deferential to the business entity, places the employee in *109at least as difficult a position as permitting a jury to review the employer’s termination decision would place the employer. The difference between the two positions is that one gives effect to the contract terms, the bargain the parties made, while the other does not. Because both parties agreed to the contract terms, as written, the contract should be enforced, as written.

The majority’s evident and expressed concern that the everyday reality of the workplace is respected and that the efficient conduct of business is protected is reminiscent of the concern expressed by the dissenting judge in Sanders v. Parker Drilling Company, 911 F.2d 191, supra. In that case, the issue was the propriety of the jury’s review of the employer’s decision to terminate some of its employees for smoking marijuana on the employer’s oil rigs, in violation of company policy. Id. at 192. Consistent with the majority’s holding in this case, the employer argued that the jury’s responsibility in reviewing the decision should be limited to determining whether the decision “was based on a good faith belief that [the employees] smoked marijuana on the oil rigs, not whether the allegation was actually true.” Id. at 193. The court rejected that argument, holding that the question was whether the employees actually smoked marijuana.

One judge took the contrary view. Id. at 204-218 (Kozinski, J., dissenting). He expressed concern that the more expansive role of the jury would have an adverse impact on the employer’s obligation to provide a safe working environment and did not give sufficient deference to the employer’s policies against the use of drugs in the workplace, opining, in part:

“Working on an oil rig is dangerous business. It requires total concentration, precise timing, a fair degree of coordination and a significant amount of speed. Rig accidents can have disastrous consequences, ranging from severed limbs and multiple deaths to massive despoliation of the environment. It goes without saying that drug abuse has no place on oil rigs and that a company operating oil rigs has the right — indeed, the obligation — to take decisive action when *110it obtains reliable information that some of its employees may be abusing drugs while on duty.
“This is the unhappy tale of a company that did just that. Company officials reasonably believed that three employees had used drugs on the job, not once but repeatedly. Two eyewitnesses fingered the drug-using employees; the company pursued the matter promptly, but not precipitously, obtaining confirmation from yet a third eyewitness before discharging the violators. The personnel action was taken in a balanced, detached, professional manner, free from any hint of rancor or personal animosity. Had the company acted less decisively, it would have betrayed its responsibility to other employees and the environment we all share. Yet when all is said and done, the fingered employees walk off with a cool third of a million dollars, while the company is left to pick up the tab, pay its lawyers and scratch its head wondering what it could have done differently. It is a question we all might ponder as we contemplate the bitter lesson of this cockeyed morality tale.”

Id. at 204-205. Responding, the court pointed out:

“The dissent sympathizes with Parker’s obligation to provide a safe working environment for its employees. It cites strong policy arguments against the use of drugs as authority to alter Alaska’s law. Judge Kozinski does not believe that the jury should have the prerogative to second-guess Parker’s determination that plaintiffs smoked marijuana on the oil rigs. Although we share Judge Kozinski’s concern for safety in the workplace, we respectfully do not believe that concern provides us a mandate to water down centuries of respect for the place of juries in our civil justice system. At this level of our system of jurisprudence — the appellate level — the issue we confront as judges is not whether the use of certain drugs and narcotics is a serious threat to our nation, which it is, or whether the use of marijuana is dangerous to workers on oil rigs, which it is, but whether the verdict of the jury is supported by the evidence presented. The war on drugs can be waged without turning our *111back on the rightful function of juries in resolving factual disputes.”

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

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

I dissent.

. Paragraph 6 of the Employment Contract addressed the termination of the contract. Section 6.1 provides

"The University may terminate this appointment for cause which shall include:
"(a) the intentional violation of University of Maryland System Regulations or University regulations
"(b) wilful neglect of duty
"(c) insubordination
"(d) incompetence
"(e) misconduct
*98"(f) criminal conduct
"(g) long-term physical or mental condition which renders Dr. Conte unable to perform the duties essential to the Director's position.”

. Section 6.2 of the contract provides:

"In the event the University terminates this Appointment, for the above reasons, it shall notify the Director in writing, of the cause for which termination is sought and the right of the Director to request a hearing by the University President or the President’s designee. The hearing must be requested within 30 days of the Director's receipt of the written termination notice. In the event no such hearing is requested, the termination shall become immediately effective.”

. This latter statement is curious. By limiting the employer's right to discharge its employee, except for "just cause,” I would have thought that the contract provision to that effect was an "express intention otherwise.”

. The petitioner is, to be sure, a public university and not, as Judge Eldridge, in dissent, points out, 384 Md. 68, 72, 862 A.2d 941, 943 (2004) (Eldridge, J. dissenting), a private business entity. Public universities, however, can be, and indeed must be, held to their contracts, even their employment contracts. Adoption of the position espoused by the Eldridge dissent with respect to the review to which the respondent is entitled, although with a different appellate focus, would leave the respondent no better, if not worse, off than he would be under the majority formulation-in either case, the decision as to his employment fate is left to the party to the contract who agreed that the respondent could be dismissed only for cause, without, expressly or otherwise, reserving to itself the right to determine whether, and when, cause existed.

. It is well to repeat that this contract does expressly provide that the respondent could be discharged only for cause and, thus, I submit, does contain an express indication otherwise that the employer is contracting away his fact-finding function as to the quality of the employees' workplace performance. The rule that the majority espouses would be more palatable were the parties' contract to contain express language reserving to the University the right to determine whether there was “just cause” for discharge.

. It seems clear to me that an employee’s proof of the non-existence of the purported factual basis for his or her termination is quintessentially and a fortiori proof of bad faith and, therefore, the lack of good faith. Moreover, it is difficult to conceive of a better way to attack an employer’s objective motivation than by demonstrating that the grounds on which it acted did not exist. By parity of reasoning, there is no better way for the jury to assess a party's subjective motivation.

. The court in Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980) observed:

"Where the employer claims that the employee was discharged for specific misconduct intoxication, dishonesty, insubordination and the employee claims that he did not commit the misconduct alleged, the question is one of fact for the jury: did the employee do what the employer said he did? ...
"Where the employer alleges that the employee was discharged for one reason excessive tardiness and the employee presents evidence that he was really discharged for another reason because he was making too much money in commissions the question also is one of fact for the jury.... The jury is always permitted to determine the employer’s true reason for discharging the employee.”

Id. at 896 (footnotes omitted).

. It is well settled that contracts are construed in accordance with, and governed by, the canons of statutory construction. See Walker v. Department of Human Resources, 379 Md. 407, 421, 842 A.2d 53, 61 (2004). One of them, and a most important one, is that the parties’ intention is to be gleaned from the words of the contract, and when they are unambigious, no construction or interpretation is necessary or permitted. Id.

. A legal presumption is necessary given the majority's assumption, as the petitioner argued, that the contract language is ambiguous and does not speak one way or the other to the issue of the fact-finding prerogative. Towson, 384 at 80, 862 A.2d at 948.

Although the majority did not resolve the conflicting arguments of the parties as to the real meaning and effect of Paragraph 6.2, it does suggest the possibility that the paragraph, because “a hearing would accomplish nothing that would not be accomplished in court before a jury,” would be superfluous except as a means of reserving to the employer the fact-finding prerogative. Id. at 81, 862 A.2d at 948. I can think of a reason for Paragraph 6.2 that has absolutely nothing to do with the fact-finding prerogative. It is a timing provision; the date of the hearing or of the decision following the hearing, or the date of expiration of the time for requesting a hearing, triggers when the termination takes effect. Indeed, that is precisely what the Paragraph provides, however inartfully the majority may think it is. This also *106answers Judge Eldridge’s point with respect to the governmental immunity issue, which is dependent on the timeliness of the contract action filed by the respondent. In this case, the President's letter denying the respondent relief specifically states the date of the respondent’s termination and that date is less than one year prior to the filing of the respondent's contract action.