979 A.2d 229 (Md.App. 2009), 328, Maryland Dept. of Transp. v. Maddalone

Docket Nº328.
Citation979 A.2d 229, 187 Md.App. 549
Opinion JudgeDEBORAH S. EYLER, J.
Party NameMARYLAND DEPARTMENT OF TRANSPORTATION v. Gregory MADDALONE.
AttorneyKathleen E. Wherthey (Douglas F. Gansler, Atty. Gen. (Judith F. Plymyer, Hanover), on brief), Baltimore, for Appellant. Debra B. Cruz (Levin & Gamn, PA, on brief), Towson, for Appellee.
Judge PanelPanel: DEBORAH S. EYLER, WOODWARD and JAMES A. KENNEY, III, (Retired, Specially Assigned), JJ.
Case DateAugust 31, 2009
CourtCourt of Special Appeals of Maryland

Page 229

979 A.2d 229 (Md.App. 2009)

187 Md.App. 549

MARYLAND DEPARTMENT OF TRANSPORTATION

v.

Gregory MADDALONE.

No. 328.

Court of Special Appeals of Maryland.

August 31, 2009

Page 230

[Copyrighted Material Omitted]

Page 231

Kathleen E. Wherthey (Douglas F. Gansler, Atty. Gen. (Judith F. Plymyer, Hanover), on brief), Baltimore, for Appellant.

Debra B. Cruz (Levin & Gamn, PA, on brief), Towson, for Appellee.

Panel: DEBORAH S. EYLER, WOODWARD and JAMES A. KENNEY, III, (Retired, Specially Assigned), JJ.

DEBORAH S. EYLER, J.

[187 Md.App. 553] In January 2007, Gregory J. Maddalone, the appellee, was fired from his " Administrator

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VI" job with the Maryland Department of Transportation (" MDOT"), the appellant. As he acknowledges, that job was the last in a series of patronage positions he held during the administration of Governor Robert L. Ehrlich, Jr., for whom he had worked and campaigned.

Maddalone challenged his termination in the Office of Administrative Hearings (" OAH"), alleging that the dismissal was unconstitutional because it was based on his political affiliation, and therefore was in violation of his rights under the First Amendment to the federal constitution.1 Following an evidentiary hearing, an administrative law judge (" ALJ") overturned the MDOT's termination decision. The ALJ's ruling was upheld by the Circuit Court for Anne Arundel County in an action for judicial review. The MDOT has now taken an appeal to this Court, posing two questions for review, which we have paraphrased slightly:

I. Did the ALJ err in concluding that Maddalone was unconstitutionally terminated from his state employment?

II. Did the ALJ err by awarding Maddalone reinstatement and back pay, when he was not ready and willing to return to work?

For the reasons we shall explain, we answer Question I affirmatively, and therefore shall reverse the circuit court's judgment with instructions to remand the case to the OAH to issue a final decision upholding Maddalone's termination from [187 Md.App. 554] employment. Question II is rendered moot by our disposition of Question I.

FACTS AND PROCEEDINGS

Maddalone, a Republican, served as an aide to Congressman Ehrlich beginning in 2000, and actively participated in the political campaign that resulted in his being elected governor of Maryland in November 2002. Governor Ehrlich was the first Republican elected to that post in this state since 1966.2 Thus, upon Governor Ehrlich's election, there was for the first time in decades a change in Annapolis from an administration of one major political party to another.

At all the relevant times in this case, Maddalone's educational background and work experience were as follows. He held a high school diploma. He did not hold a college degree or any other post-high school degree, and had never attended a four-year college. During his state employment, he earned some credits toward an Associate's Degree at the Community College of Baltimore County. He was a professionally trained and proficient ice skater who had participated successfully in that sport since childhood. His prior work experience, except for his employment as an aide to former Congressman Ehrlich, was as an ice skater, and, more specifically, as an ice dancer.

Maddalone was 27 years old when Governor Ehrlich was elected. Throughout Governor Ehrlich's term, Maddalone was

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employed in what he acknowledges were state government " patronage" jobs. At the outset of the Ehrlich Administration, on January 15, 2003, Maddalone was hired by the Office of the Governor as an " information technology systems assistant." In October 2003, he became chief of staff to John Gowland, General Manager of the Maryland Transit Authority [187 Md.App. 555] (" MTA"), a division of the MDOT. A year later, he was transferred to the Maryland Port Authority, another division of the MDOT, to the position of " legislative liaison." Less than a year later, on July 1, 2005, he was hired as an " emergency response manager" at the MDOT headquarters in the Office of Engineering, Procurement and Emergency Services (" OEPES"). Emergency response manager is an " Administrator VI position" for which Maddalone was paid a starting salary of $74,967. It is Maddalone's dismissal from that position, soon after the Ehrlich Administration came to an end, that is the subject of this case.

All the jobs Maddalone held during the Ehrlich Administration were filled without advertisement. Because the positions were not advertised, Maddalone did not submit an application or résumé for any of them, and did not compete against any other people for them. The positions did not carry any educational requirements, such as holding a college or any post-high school degree, or any other necessary qualifications. All the positions were designated in the " Executive Service" 3 and, as Maddalone acknowledges, were " patronage" hires.4

[187 Md.App. 556] In November 2006, Baltimore City Mayor Martin O'Malley, a Democrat, defeated Governor Ehrlich in the Maryland gubernatorial election. On January 17, 2007, the day that Governor O'Malley was inaugurated,

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he appointed John D. Porcari as the Acting Secretary of the MDOT. As Acting Secretary, Porcari had authority to make the final decision as to whether an Executive Service employee would be terminated. See COMAR section 11. 02.08.07. Acting Secretary Porcari previously had served as Secretary of the MDOT during the administration of Governor Parris Glendening, a Democrat, until Governor Ehrlich was elected. Acting Secretary Porcari was confirmed as Secretary of the MDOT under the O'Malley Administration on March 6, 2007.5

On January 23, 2007, six days after taking office, Secretary Porcari met face-to-face with Maddalone and terminated him from employment. Beverly Swaim-Staley, then Acting Deputy Secretary of the MDOT, was present at that meeting. 6 At [187 Md.App. 557] the time of the termination, Maddalone was earning an annual salary of $79,309 as an emergency response manager.7

Through counsel, Maddalone lodged an appeal of the MDOT's termination action with the Office of Administrative Hearings (" OAH"), pursuant to Md.Code (1977, 2001 Repl.Vol., 2007 Supp.), section 2-103.4(d)(6)(iii) of the Transportation Article (" TR"), and COMAR section 11.02.08.07. He alleged that he had been terminated " for political reasons" in violation of " the First and Fourteenth Amendments to the United States Constitution." He sought reinstatement and full back pay. The MDOT opposed Maddalone's challenge to his termination.

On April 27, 2007, a merits hearing on the matter was held before an ALJ with the OAH. Maddalone was the sole witness in his case. He moved into evidence several documents, including, over objection, 20 newspaper articles posted to the internet chronicling certain events that took place from early 2005 to late 2006. Maddalone maintained that the documents were relevant because they showed the political climate in Maryland in 2005 and 2006, and thus added important context to his testimony. Those events, in summary form, and as testified to by Maddalone, were as follows.

In February 2005, during the Maryland legislative session, Governor Ehrlich came under fire by Democrats in the General Assembly for allegedly politicizing the hiring and firing of state employees. Specifically, the Ehrlich Administration was criticized for firing long-time state employees solely for political reasons and then hiring administration " loyalists" in their places, or in new positions. The Ehrlich Administration responded that the accusations were untrue and politically driven.

There was intense media coverage of the various accusations and responses. Joseph Steffen, an acknowledged member [187 Md.App. 558] of Governor Ehrlich's inner circle, was the primary focus of controversy with respect to the alleged firing of long-time state

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employees for political reasons. He was alleged to have been hired into certain jobs with state agencies in order to root out Democrats in state employment for firing. He also was alleged to have been involved in a political smear campaign against Mayor O'Malley, who at that time was Governor Ehrlich's likely opponent in the upcoming 2006 gubernatorial election.

During the 2005 legislative session, there was an effort by Democrats, criticized by Republicans, to eliminate several dozen jobs that (allegedly) had been filled with Ehrlich Administration " loyalists." In that context, information about Maddalone's background was reported repeatedly in the press. He often was cited as a political ally of Governor Ehrlich who was hired into state jobs for which he was not qualified and who, like Steffen, allegedly participated in identifying state employees for firing based upon their political affiliations. Press coverage about Maddalone pointed out that he had only a high school education and that his prior work experience, other than being an aide to former Congressman Ehrlich, was as an ice dancer. Many times he was referenced in news reports as " former ice dancer" Maddalone. For example, in a Baltimore Sun article dated March 14, 2005, a commentator, in characterizing the Ehrlich Administration, said:

[T]he administration that brought a fellow named Gregory J. Maddalone, whose previous work experience was professional ice dancing, and made him the port of Baltimore's legislative liaison.

Michael Olesker, E-Mails show Steffen not " irrelevant," " mid-level," BALTIMORE SUN, March 14, 2005, at 1B.

On August 25, 2005, by Resolution of the Legislative Policy Committee of the General Assembly, a " Special Committee on State Employee Rights and Protections" (" Special Committee") was created to...

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