Board of Trustees of State Universities and Colleges v. Fineran

• Decision Date: 01 September 1987
• Docket Number: No. 1425,1425
• Citation: 75 Md.App. 289,541 A.2d 170
• Parties: , 46 Ed. Law Rep. 965, 3 IER Cases 1651 BOARD OF TRUSTEES OF the STATE UNIVERSITIES AND COLLEGES, et al. v. James V. FINERAN. ,
• Court: Court of Special Appeals of Maryland

Page 289

75 Md.App. 289

541 A.2d 170, 46 Ed. Law Rep. 965, 3

IER Cases 1651

BOARD OF TRUSTEES OF the STATE UNIVERSITIES AND COLLEGES, et al. v. James V. FINERAN.

No. 1425, Sept. Term, 1987.

Court of Special Appeals of Maryland.

May 13, 1988.

Michael A. Anselmi, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellants.

Virginia W. Barnhart (K. Donald Proctor and Miles & Stockbridge, on the brief), Towson, for appellee.

Argued before WILNER, BLOOM and KARWACKI, JJ.

WILNER, Judge.

James V. Fineran was appointed as Director of Public Relations for Salisbury State College, effective July 30, 1984. Although his initial salary ($30,000) was fixed on an annual basis, the letter from the college president confirming his appointment mentioned no specific term of employment. In mid-July, 1985, Fineran was informed by the president, Thomas E. Bellavance, that his salary for the ensuing fiscal year would be increased to $31,600.

On September 5, 1985, Dr. Bellavance rebuked Mr. Fineran for some statements he had made to a reporter for the Salisbury Daily Times concerning the student housing shortage at the college and a proposed new school of business management. Dr. Bellavance made clear that he intended to terminate Mr. Fineran's employment but offered Fineran the opportunity to resign. Mr. Fineran gave some thought to the matter and, in the belief that he had no fixed term of employment and that Dr. Bellavance indeed had the authority to fire him, he submitted his resignation on September 9. In accordance with Dr. Bellavance's offer, the resignation was to take effect December 31, 1985; Mr. Fineran would continue to draw his salary until then but would immediately leave the college and perform no further duties for it.

After submitting his letter of resignation, Mr. Fineran consulted counsel. On October 4, 1985, his attorney wrote to Dr. Bellavance, asserting that the resignation was submitted under duress, that Dr. Bellavance had misrepresented his authority to discharge Mr. Fineran, and that Dr. Bellavance's actions had denied Mr. Fineran various statutory and Constitutional rights. Counsel demanded a hearing "to deal with these claims and their proper resolution, including the reinstatement of Mr. Fineran to his position (should he be so willing)" and asked that the Board of Trustees of the State Colleges and Universities "place any comprehensive liability insurance carrier provided for under Section 14-109 [Md.Code Ann.Educ. art.] on notice of the claims set forth in this letter...." A copy of this letter was sent to James K. Archibald, chairman of the Board of Trustees.

An Assistant Attorney General, W. Carter Lester, Jr., responded for the college on October 15. The essence of the response was that (1) Dr. Bellavance sought Mr. Fineran's resignation not because of any untrue statements made to the media but because of a general dissatisfaction with Fineran's handling of public relations for the college, (2) Dr. Bellavance never asserted the authority to discharge Mr. Fineran but had made clear that dismissal authority lay with the Board of Trustees, (3) the resignation was the product of negotiation and was voluntary, (4) the Board was due to consider and act on the resignation at its next meeting on November 21, and (5) Fineran could withdraw the resignation before then, but that, if he did so, Dr. Bellavance would recommend and ask the Board to approve Fineran's termination. Mr. Lester denied that Dr. Bellavance or the college had violated any of Mr. Fineran's rights and contended that Fineran had no statutory or Constitutional right to a hearing.

Mr. Fineran elected not to withdraw his resignation, and, at its November meeting, the Board approved it. In March, 1986, Fineran filed this action in the Circuit Court for Anne Arundel County against the Board of Trustees, each of its individual members, the college, and Dr. Bellavance. Contemporaneously, he filed a claim under the State Tort Claims Act (Md.Code Ann.State Gov't art., §§ 12-101--12-110) with the State Treasurer who, a month later, denied the claim on the ground that there was no insurance coverage for it.

Fineran eventually filed an amended complaint to which, after some discovery, all defendants responded with a motion to dismiss or, in the alternative, for summary judgment. Although the motion raised the general defense that the complaint failed to state a claim upon which relief can be granted, the thrust of it, as made clear in argument, was that each of the defendants enjoyed an absolute or qualified sovereign or governmental immunity with respect to the various claims made by Mr. Fineran. After a hearing, the court denied the motion, and this appeal followed.

Claims And Issues

There are three classes of defendants here--(1) the Board and the College, which are units of the State Government, (2) the individual members of the Board, and (3) Dr. Bellavance who would be classed with the individual Board members but for the fact that he is sued separately in one count (Count XIII) of the amended complaint. The theories of liability pled against these defendants and the defenses raised by them are similar in some respects, different in others.

As we shall see, in the 13 counts pled in his amended complaint Mr. Fineran has alleged the violation of many, many rights. They all seem to hinge, however, on two basic assertions: (1) that he was entitled to the protections of Md.Code Ann.Educ. art., § 14-110, which were denied him, and (2) that he was discharged in retribution for the exercise of his right of free speech. For these violations, he claims, the defendants have no immunity, either because none exists or because the State, by law, has waived it.

To set the stage for a discussion of what is before us, we must examine briefly some provisions in title 14 of the Education article, in particular § 14-110.

Salisbury State College is one of six institutions of higher education that, during the period relevant here, were under the direction and control of the Board of Trustees of State Colleges and Universities. § 14-101. As part of its governing authority, the Board was empowered to "make all appointments to positions at each institution from nominations submitted by the president of the institution," to "fix the salary and tenure of each faculty member," and to "dismiss any faculty member as provided in § 14-110...." § 14-105. Section 14-106, setting forth the duties and powers of the college presidents, authorizes them to "[n]ominate for appointment by the Board of Trustees, and ... recommend for dismissal by the Board, any faculty member or administrator not in the merit system."

Section 14-110, the statute most at issue here, provides that, on the written recommendation of the president, the Board may remove "any faculty member or professional assistant" for any of six enumerated reasons--immorality, dishonesty, official misconduct, insubordination, incompetence or willful neglect of duty. It requires, however, that, before removal, the Board must send the person a written copy of the charges against him and give him an opportunity for a hearing.

Mr. Fineran asserts that, as a professional assistant and administrator, his position had a fixed term of 12 months, but that, whether or not he had such a term, he was subject to § 14-110 and could be terminated only (1) by the Board, (2) for one of the enumerated causes, and (3) after notice and an opportunity for a hearing. He urges that his "resignation" was the product of duress and misrepresentation and amounts in fact to a constructive discharge. He claims that he was discharged for making truthful, though perhaps unpopular, statements about important matters of public concern, that there was no legitimate cause for this discharge, and that it was accomplished in defiance of his rights under § 14-110. On this basis, he complains:

(1) In Count I, that the Board and the college breached an express contract to continue his employment either (i) through June 30, 1986, or (ii) indefinitely;

(2) In Count II, that the Board and the college intentionally and wrongfully discharged him contrary to clearly stated public policy in § 14-110, the First and Fourteenth Amendments to the U.S. Constitution, and Md. Decl. of Rights, art. 24;

(3) In Count III, that Dr. Bellavance and the Board members acted outside the scope of their official duties in willful or reckless disregard of his rights and wrongfully discharged him with reason to know that they were acting contrary to the clearly stated public policy set forth in the cited statute and Constitutional provisions;

(4) In Counts IV, VI, IX, and XI, that the Board and the college violated his common law right of free speech under the First Amendment and Md. Decl. of Rights, art. 24, that they deprived him of his liberty interest in freedom of speech and his property interest in continued employment without due process of law, and that they violated his right of free speech and various rights, privileges, and immunities under the Fourteenth Amendment, all in contravention of 42 U.S.C. § 1983;

(5) In Counts V, VII, VIII, and X, that Dr. Bellavance and the Board members also violated all of those rights, privileges, and immunities;

(6) In Count XII, that all defendants violated his statutory rights under § 14-110; and

(7) In Count XIII, that Dr. Bellavance, without justification, induced the other defendants to breach Fineran's employment contract.

In each count, Mr. Fineran sought compensatory money damages of $1,000,000. Additional punitive damages were sought in Counts III through XIII.

The defendants' claim of immunity is grounded in the first instance on their status as units of the State government or as State officials exercising public and discretionary duties. More particularly, they assert:

(1) As to Count I (breach of contract), the State has retained its sovereign immunity as to...