Priester v. Balt. Cnty.

• Decision Date: 29 March 2017
• Docket Number: No. 1817, Sept. Term, 2015,1817, Sept. Term, 2015
• Citation: 157 A.3d 301,232 Md.App. 178
• Parties: Theodore PRIESTER v. BALTIMORE COUNTY, MARYLAND, et al.
• Court: Court of Special Appeals of Maryland

232 Md.App. 178

157 A.3d 301

Theodore PRIESTER

v.BALTIMORE COUNTY, MARYLAND, et al.

No. 1817, Sept. Term, 2015

Court of Special Appeals of Maryland.

Filed: March 29, 2017

Jonathan R. Krasnoff (Law Office of Jonathan R. Krasnoff, LLC, Catonsville, MD and John M. Singleton, The Singleton Law Group, Lutherville, MD) all on the brief, for Appellant

Jennifer R. Frankovick (Michael E. Field, County Attorney, on the brief) Towson, MD, for Appellee

Meredith, Nazarian, Leahy, JJ.

Leahy, J.Appellant Theodore Priester, a firefighter, exercised his rights under the administrative grievance process established by a memorandum of understanding between his union and his employer, Baltimore County—the appellee here—to challenge the County's termination of his employment. After a four-member administrative hearing board deadlocked and was unable to reach a final decision on his de novo appeal, the board notified Priester that it would rehear his grievance. Before the board scheduled a new hearing, Priester filed suit seeking writs of administrative and traditional mandamus in the Circuit Court for Baltimore County, asking the court, inter alia , to order that the board issue its preliminary tied vote as a final order. The circuit court granted summary judgment in favor of the County, and Priester appealed.

We hold that because the board has not yet issued a final order and plans to rehear the appeal, Priester has not exhausted his administrative remedies, and his action does not fall within a recognized exception to the exhaustion doctrine. Therefore, the underlying mandamus action was not properly before the circuit court and should have been simply dismissed.

BACKGROUND

The Baltimore County Fire Department ("Department") began an investigation in March of 2013 into allegations that Fire Captain Theodore C. Priester, Jr., sexually harassed a female subordinate and created a hostile work environment.

During the investigation, other female employees came forward with similar allegations.¹

On April 9, 2013, the Department issued a "Notification of Charges and Specifications" to Priester. The Notice assimilated a litany of charges by female employees and others concerning Priester's alleged offensive, predatory, and discriminatory behavior over the course of several years.² The Notice advised Priester that a hearing on the charges would be conducted before the Department's Administrative Hearing Board. Included with the Notice was a copy of the County's personnel policies and procedures.

The Administrative Hearing Board held that hearing on April 30, 2013, and found Priester guilty of violating 18 separate Department rules and regulations, as well as three provisions of the Baltimore County Code. The Hearing Board recommended unanimously that the County terminate Priester's employment. Fire Chief John J. Hohman hand-delivered to Priester a copy of the Hearing Board's recommendation, as well as a letter the Fire Chief signed indicating that he was upholding that recommendation. The letter also advised Priester that he could choose one of two routes to appeal his termination: (1) "request that the Fire Chief reconsider the recommendation of the Administrative Hearing Board"; or (2) "file a grievance that would begin at Step 4" of the five-step appellate process set forth in the Memorandum of Understanding ("MOU") between the County and Priester's union, the Baltimore County Professional Fire Fighters Association, I.A.F.F. Local 1311.³ The County issued a formal notice of dismissal, signed by both Fire Chief Hohman and County Director of Human Resources, George Gay, deeming Priester's termination effective as of May 16, 2013.

Priester chose to appeal his termination pursuant to grievance procedures outlined in the MOU. His termination was then upheld through Step 4, by Fire Chief Hohman, and Step 5, before the Administrative Law Judge for Baltimore County ("ALJ"), who issued an eight-page decision on October 21, 2013.

Priester exercised his final right of appeal in the grievance process and appealed the ALJ's decision to the Personnel and Salary Advisory Board ("PSAB" or "Board"), before which he was entitled to a de novo contested case hearing pursuant to Baltimore County Charter, Article VIII, § 803. Section 803 confers on the PSAB exclusive jurisdiction over a grievant's final administrative appeal, and provides that the Board's decision shall be final and binding on the parties involved. Priester exercised his right to appeal to the PSAB on November 4, 2013.

Four days later, his counsel apparently sent the PSAB a letter inquiring into its procedures that would govern Priester's hearing and appeal.⁴ The PSAB's counsel responded, advising him of the procedure for subpoenaing witnesses and stating:

Consistent with § 3–3–1305 of the Baltimore County Code, 2003, the Board has not chosen to adopt a formal set of rules, or to require adherence to either the Rules of Procedure or the Rules of Evidence applicable in the courts of Maryland. The hearing is an informal proceeding designed to give all parties an opportunity to present a fair case without the need to retain counsel.

Regarding compelling witnesses to appear, the Board requests that the parties in a hearing provide the list fifteen (15) working days prior to your scheduled hearing. Your request must indicate what department the employee is employed by, the supervisor's name, and the employee's job function. You must also indicate in your request, the purpose and nature of each witness' testimony. We are only able to serve subpoenas approved by the Board within the confines of Baltimore County. Please be aware that the power of the Board to subpoena County employees, as stated at § 3–3–1305(b)(3)(iii), is discretionary. As such the Board reserves the right to deny a request to subpoena or not hear from a witness, if it deems the testimony repetitive, cumulative to [or] otherwise irrelevant to the facts of the matter under consideration.

Over the course of three days between March and May of 2014, a quorum of four PSAB members heard Priester's appeal. The proceeding concluded on the third day, May 30, 2014, at which point the four members convened in private and voted. Two members voted in favor of Priester's termination and two members voted in favor of reinstating Priester without back pay. Still without a decision from the PSAB on July 31, 2014, Priester filed with the County an application for retirement seeking pension benefits.⁵

On August 12, 2014, PSAB Chairman Terrance Sheridan sent Priester's counsel a letter informing him that the PSAB had constructed "a draft Order in the matter of Theodore Priester," but that "the PSAB had a ... 2–2 tie in the Priester matter."⁶ The letter explained that the Board's counsel and Secretary had both confirmed for Chairman Sheridan that in the event of a tie, the PSAB's past practice has been to uphold the lower ruling. "Nevertheless," the letter concluded, "[Chairman Sheridan] has asked the PSAB's Secretary to set the ... Priester matter[ ] in for new hearings before the PSAB as soon as possible[.]" Then on October 15, 2014, Secretary to the Board, George Gay—who had previously signed Priester's Notice of Dismissal in his other role as Director of Human Resources—sent Priester's counsel a follow-up letter notifying him that, a week prior, the PSAB formally voted to rehear Priester's appeal and that his counsel would be advised of the hearing's date, time, and location.

Three months later, the PSAB had not set a date for a rehearing or taken further action, and on January 15, 2015, Priester filed a complaint in the Circuit Court for Baltimore County for writs of administrative mandamus, invoking Maryland Rule 7–401 through 7–403,⁷ and traditional mandamus under Maryland Rule 15–701.⁸ The complaint sought, among other things, orders compelling the PSAB: (1) to adopt formal rules; (2) to issue its 2–2 decision; and (3) reinstate Priester's employment. Priester claimed that the PSAB violated his due process rights by failing to comply with its statutorily mandated duty to promulgate rules and determine its own procedures pursuant to Baltimore County Code, § 3–3–1305(a), and that the PSAB had not complied with its duty under the MOU to "render a final and binding decision on the grievance as soon as possible." Additionally, he asserted that the PSAB does not have discretion to withhold a decision once it votes. For all of these reasons, he argued, the Board's decision to rehear the case was an illegal procedure lacking statutory or regulatory authority.

The County responded by filing a motion to dismiss, or in the alternative, a motion for summary judgment, or to stay proceedings pending resolution by the PSAB. In support of its motion, the County argued that there was no final decision from which Priester could appeal; that Priester had not exhausted his administrative remedies; that there is no decisional law in Maryland preventing the PSAB from deciding to rehear an administrative appeal that results in a tie vote; and that it would be improper for the court to require the PSAB to adopt written rules of procedure because the County Code does not require written rules and Priester has failed to show that the Board violated its mandate in any way.

Priester opposed the County's motion by filing what he characterized as a cross-motion for summary judgment. In the memorandum supporting that motion, he argued that his action for mandamus was proper because he had demonstrated a "clear and undisputable legal right" to have his case heard and decided, and that the PSAB had a corresponding non-discretionary legal duty to hear and decide his case. Priester insisted that the exhaustion doctrine did not apply to his case because the PSAB's decision to rehear his appeal was an unauthorized procedure, and that even if the doctrine did apply, he had exhausted his remedies by taking part in one PSAB hearing. Priester also restated the due process and fundamental...