Md. Transp. Auth. Police Lodge # 34 of The Fraternal Order of Police Inc. v. Md. Transp. Auth.

• Citation: 5 A.3d 1174,195 Md.App. 124
• Decision Date: 30 September 2010
• Docket Number: No. 1885, Sept. Term, 2008.,1885, Sept. Term, 2008.
• Parties: MARYLAND TRANSPORTATION AUTHORITY POLICE LODGE # 34 OF the FRATERNAL ORDER OF POLICE, INC., et al. v. MARYLAND TRANSPORTATION AUTHORITY, et al.
• Court: Court of Special Appeals of Maryland

5 A.3d 1174
195 Md.App. 124

MARYLAND TRANSPORTATION AUTHORITY POLICE LODGE # 34 OF the FRATERNAL ORDER OF POLICE, INC., et al.
v.
MARYLAND TRANSPORTATION AUTHORITY, et al.

No. 1885, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Sept. 30, 2010.

5 A.3d 1178

Michael Marshall (Schlachman, Belsky & Weiner, PA, on the brief) Baltimore, MD, for appellant.

Kathleen E. Wherthey (Joshua N. Auerbach, Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: HOLLANDER, MATRICCIANI, RAYMOND G. THIEME, JR., (Retired, specially assigned), JJ.

HOLLANDER, J.

195 Md.App. 131

This appeal involves a dispute between the Maryland Transportation Authority Police Lodge # 34 of the Fraternal Order

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of Police, Inc. ("FOP" or the "Lodge"), appellant/cross-appellee, and the Maryland Transportation Authority ("MdTA" or the "Authority"), appellee/cross-appellant. At issue is a "Memorandum" signed in February 2006 by Trent M. Kittleman, then the Executive Secretary of the MdTA, and Cpl. John Zagraiek, the President of the Lodge (the "Agreement"). The Agreement committed the MdTA to fund a "Personal Patrol Vehicle program" (sometimes referred to as the "PPV program" or "take-home vehicle program"), whereby each officer of the MdTA Police Force was to receive a "personally-assigned patrol vehicle" for the officer's official use and for commuting. Pursuant to the Agreement, the FOP was obligated to request the withdrawal of proposed State legislation authorizing the MdTA and its police officers to engage in collective bargaining.

In 2007, the MdTA informed the Lodge that it would not proceed with the PPV program.¹ In response, the Lodge and eleven individual MdTA police officers, appellants,² filed suit in the Circuit Court for Baltimore County against the MdTA, the State of Maryland, the "Maryland Transportation Authority Board," ³ the MdTA's Executive Secretary, its Chairman, ⁴ and

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nine individual current and former MdTA

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members, ⁵ seeking relief on the basis of breach of contract and promissory estoppel.

The MdTA moved to dismiss the Lodge's Complaint. It asserted that the Agreement was not a valid contract, nor could it be enforced by promissory estoppel.

After reviewing documentary submissions from the parties, the circuit court granted summary judgment in favor of the MdTA. It also denied as moot a motion by the MdTA to disqualify appellants' counsel due to alleged ethics violations. The court subsequently denied the Lodge's motion for reconsideration. This appeal followed.

The Lodge presents four questions, which we have reformulated as a single inquiry: Did the circuit court err in determining that the Agreement was legally unenforceable and on that basis granting summary judgment to the Authority? ⁶ The MdTA has noted a conditional cross-appeal, pertaining to the denial of its motion to disqualify appellants' counsel. It asks:

195 Md.App. 134

If the Court remands this case (which it should not), is it appropriate to disqualify the Lodge's counsel, and exclude certain evidence, due to ethical violations relating to the retention of the former Maryland Transportation Authority police chief as a consultant to the Lodge in this litigation?

For the reasons that follow, we shall affirm in part and reverse in part as to the grant of summary judgment. In addition, we shall vacate the denial of the Authority's motion to disqualify, and remand to the circuit court for consideration on the merits.

I. Background of the MdTA

Although the MdTA has been featured in a handful of prior reported cases, ⁷ we

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have not uncovered any case that has comprehensively described the agency and its functions. In the context of this case, an overview of the agency, and what appellants describe as its "uniquely independent budgetary authority," will be helpful to an analysis of the issues. ⁸

The MdTA is an agency created by statute.⁹ See Md.Code (2008 Repl.Vol., 2009 Supp.),

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§ 4-201 of the Transportation Article ("Transp.").¹⁰ It was established by the General Assembly in a 1970 enactment, effective July 1, 1971. See 1970 Md. Laws, ch. 526. See also Bugg v. MdTA, 31 Md.App. 622, 632, 358 A.2d 562, cert. denied, 278 Md. 717 (1976), cert. denied, 429 U.S. 1082, 97 S.Ct. 1088, 51 L.Ed.2d 529 (1977). "Acting on behalf of the Department [of Transportation]," the Authority is responsible for "the supervision, financing, construction, operation, maintenance, and repair of transportation facilities projects," Transp. § 4-204(a), which principally consist of the major toll-producing bridges, tunnels, and thoroughfares of the State. See Transp. § 4-101(h) (defining "transportation facilities projects").¹¹

Although the enabling act for the Authority is codified in the Transportation Article, and, as noted, the MdTA acts "on behalf of" the Department of Transportation ("DOT" or the "Department"), the MdTA is not included as a unit of the DOT. See Transp. § 2-107 (enumerating units of the DOT, without listing the MdTA); Transp. § 4-201 (establishing the MdTA, without stating that it is "in the Department"). Rather,

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the MdTA is an independent agency. But see MdTA v. King, 369 Md. 274, 276, 799 A.2d 1246 (2002) (without citation of authority, describing MdTA as "a unit" of the Department of Transportation). It is comprised of the Secretary of Transportation, sitting ex officio as its Chairman, and eight members appointed by the Governor, with the consent of the Senate, to four-year terms. See Transp. § 4-202.¹²

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As noted, the Agreement was signed on behalf of the MdTA by its "Executive Secretary." The position of Executive Secretary is not established by statute or regulation, but is referred to in various MdTA regulations. It is clear from the context of this case and the various regulations that refer to the position, see, e.g., Code of Maryland Regulations ("COMAR") 11.02.01.02B(2)(f) (Supp. No. 30), that the Executive Secretary is the chief administrator of the Authority.

MdTA finances its transportation facilities projects through the issuance of bonds. See Transp. §§ 4-301 to 4-311. The bonds are secured by trust agreements, Transp. § 4-311(a)(1), which "may pledge or assign all or any part of the revenues of the Authority or of any transportation facilities project...." Transp. § 4-311(a)(2). See Transp. § 4-315 (all revenue bond proceeds and toll revenues are trust funds). In turn, the Authority has the power to establish and collect "rentals, rates, fees, tolls, and other charges and revenues" for the use of its transportation facilities projects. Transp. § 4-312(a)(2). Aside from specific statutory restrictions that we need not catalog, "the rentals, rates, fees, tolls, and other charges and revenues are not subject to supervision or regulation by any instrumentality, agency, or unit of this State or any of its political subdivisions." Transp. § 4-312(c)(1). These revenues are applied as specified in the trust agreements.

195 Md.App. 137

Transportation § 4-313 establishes a "Transportation Authority Fund" into which all revenues derived from transportation facilities projects are to be deposited, "except to the extent that they are pledged under an applicable trust agreement...." To the extent permitted by the trust agreements, funds that are available after providing for the Authority's debt service may be transferred to the DOT's general "Transportation Trust Fund to be used as appropriated by the General Assembly...." Transp. § 4-313(c). ¹³

In Wyatt v. State Roads Commission, 175 Md. 258, 1 A.2d 619 (1938), the Court of Appeals reviewed the similar, predecessor scheme for financing, construction, and management of the State's toll infrastructure under the aegis of the State Roads Commission (the "Commission"). Like the MdTA today, the Commission was entrusted with funding the State's major transportation facilities by issuing bonds, and then charging tolls for the public's use of the facilities so as to "provide a fund sufficient ... to pay the cost of maintenance ... and the bonds and interest as they should become due." Id. at 262, 1 A.2d 619. The Court observed that the statute contained, "accordingly, no provision for resort to taxation for any outlay on the projects...." Id. The question before the Court was whether this program of "self-

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paying construction" passed constitutional muster. Id. at 265, 1 A.2d 619. The Court determined that it did.

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In particular, the Court held that the scheme did not amount to " contracting a debt without annual taxation to meet it," prohibited by Article III, § 34 of the State Constitution. Id. at 264, 1 A.2d 619. It reasoned that the bonds were to be paid entirely out of toll revenues, and the bonds at issue did not establish "any obligation on the State to repay principal or interest"; rather, the bondholders' only recourse was (and remains today, see Transp. §§ 4-316 & 4-319) against the revenues of the agency, and not the general fisc of the State. Wyatt, 175 Md. at 265, 1 A.2d 619. Because there was "no contract to add to the burden of the taxpayers of the State present or future, none to pay anything out of taxes, and no debt incurred for which taxes could be levied," the agency's financial obligations were not "debts" of the State, in the constitutional sense. Id.

Nor did the Commission's plenary authority over collection and disbursement of toll funds violate Sections 2 and 3 of Article VI of the State Constitution, which respectively vest in the Comptroller the "general superintendence of the fiscal affairs of the State," and direct that the Treasurer "shall receive and keep the moneys of the State." See Wyatt, 175 Md. at 269, 1 A.2d 619. The Court explained: "The fund from tolls will be one coming into existence only for the special, peculiar, application to the bonds, and is completely appropriated to that purpose.... The State will have no right to the fund, and it would be a...