Forster v. State

Citation426 Md. 565,45 A.3d 180,34 IER Cases 282
Decision Date22 May 2012
Docket NumberSept. Term, 2011.,No. 92,92
PartiesNancy S. FORSTER v. STATE of Maryland, OFFICE OF the PUBLIC DEFENDER.
CourtCourt of Appeals of Maryland


Andrew M. Dansicker (Law Office of Andrew M. Dansicker, LLC, Hunt Valley, MD), on brief, for appellant.

Adam D. Snyder, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore MD), on brief, for appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, DALE R. CATHELL (Retired, Specially Assigned), JJ.


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 MarylandCode (1994, 2009 Repl.Vol.), State Personnel & Pensions Article, § 11–305, even though she was not given written notice by the Board of the availability of that avenue of appeal. By parity of reasoning with our opinion in Smack v. Department of Health and Mental Hygiene, 378 Md. 298, 835 A.2d 1175 (2003), and the rule of statutory construction that when two statutory provisions appear to conflict, that the more specific statute serves as an exception to the more general one, we conclude that § 11–305 applies to a termination of an at-will State employee, whether for misconduct or for no reason at all. Section 11–106 applies to at-will State employee misconduct where the disciplinary action taken is other than termination. Because § 11–305 does not require the appointing authority to provide notice of the available administrative appeal, and Forster failed to appeal administratively her termination, we conclude, as a matter of law, that Forster's complaint was barred by the doctrine of administrative exhaustion.


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 the effective assistance and continuity of counsel to indigent accused individuals taken into custody and indigent individuals in criminal and juvenile proceedings before the courts of the State; and (3) authorize the Office of the Public Defender to administer and assure enforcement of this title.

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 attorneys, fees, and other matters about the operation of the public defender system.” Crim. Proc. Art., § 16–302. In addition to appointing the State Public Defender, the Board may exercise veto power over the State Public Defender's appointment of the Deputy Public Defender and the District Public Defenders. Crim. Proc. Art., § 16–203(b). Two members of the Board constitute a quorum for taking action. Crim. Proc. Art., § 16–301(f). In 2008, Governor Martin O'Malley re-appointed T. Wray McCurdy (a prior Chair of the Board) to a three-year term as the Chair, re-appointed Margaret Mead to a three-year term, and appointed Theresa Moore to a three-year term.

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.

On 8 October 2008, Forster met with the Board to explain her budgetary and operations actions. The Board approved the actions. The Chair indicated he would speak to the Governor about getting additional funds for the Office. No additional funds materialized, however. On 23 December 2008, Chair McCurdy emailed Forster requesting a line-by-line budget analysis for the next Board meeting. The Board met with Forster and the Office's Chief Financial Officer (“CFO”) on 7 January 2009 to discuss budget issues. At the meeting, the Board questioned the effectiveness of the Office's Juvenile Protection Division (“JPD”). Moreover, the Board expressed a view that private panel attorneysshould be used in Child in Need of Assistance (“CINA”) cases, rather than Office staff attorneys. The Director of the JPD, in testimony, defended the JPD's effectiveness at the next Board meeting on 11 February 2009. In response to a Board request at the meeting, Forster emailed the Board an outline of fiscal year 2008 salary information for all Office attorneys and the JPD staff.

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...

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