Public Service Commission v. Wilson

• Decision Date: 13 September 2005
• Docket Number: No. 133,133
• Citation: 389 Md. 27,882 A.2d 849
• Parties: PUBLIC SERVICE COMMISSION OF MARYLAND, and Kenneth D. Schisler, Chairman of the Public Service Commission of Maryland v. Chrys WILSON.
• Court: Maryland Court of Appeals

882 A.2d 849

389 Md. 27

PUBLIC SERVICE COMMISSION OF MARYLAND, and Kenneth D. Schisler, Chairman of the Public Service Commission of Maryland v. Chrys WILSON.

No. 133, September Term, 2004.

Court of Appeals of Maryland.

September 13, 2005.

Susan Stevens Miller, General Counsel (Public Service Commission of Maryland, Baltimore), on brief, for appellants.

Cary J. Hansel (Timothy F. Maloney of Joseph, Greenwald & Laake, P.A., Greenbelt), on brief, for appellee.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

HARRELL, J.

We are called upon in this case to review the termination, brief reinstatement, and re-termination of Chrys Wilson in her employment with the Maryland Public Service Commission. In evaluating the propriety of these actions, we first must determine whether the Chairman of the five member Commission, Kenneth D. Schisler, exceeded his authority when, on his initiative, he terminated Wilson without the approval, acquiescence, or delegation of authority of a majority of the full membership of the Commission. We also must determine whether the Circuit Court erred in concluding that, as to the initial termination or re-termination, Wilson was terminated "for cause" and was thus entitled to the statutory protections of Md.Code (1993, 2004 Repl.Vol.), § 11-106 of the State Personnel and Pensions Article. Finally, we must determine, assuming Wilson was discharged simply because she served at the pleasure of the appointing authority, whether the Circuit Court erred in finding that the administrative appeal process provided by statute for such a termination violated due process principles because it only provides for an appeal to the Chairman of the Commission, who, in this case, made the initial decision to terminate Wilson and participated as a member of the Commission in the re-termination action as well.

I.

On 15 April 2004, without prior notice that such an action was forthcoming, Chrys Wilson was terminated from her employment as Manager of the Office of External Relations with the Maryland Public Service Commission ("PSC"), a position that she held since 1996. Wilson's termination took place at the same time four other non-temporary employees of the Commission were removed.¹

The decision to terminate Wilson was made by the Chairman of the Commission, Kenneth D. Schisler.² Although Chairman Schisler, in making this personnel decision, allegedly consulted individuals outside of the PSC, he did not seek approval from the other members of the Commission, which consists of five Commissioners (including the Chairman).³ In a deposition taken by Wilson on 27 September 2004 in the present litigation, Chairman Schisler stated that, prior to Wilson's termination, he felt that she did not possess sufficient skills, judgment, or work ethic to perform in her position at the level he desired. He also stated that he suspected that, on one occasion, she may have misrepresented on her time sheet the amount of time she actually worked on a given day. The Chairman, however, claimed to have concluded ultimately, as to the time sheet incident, that there was insufficient evidence of wrongdoing and, for that reason, he neither sought nor imposed any disciplinary sanctions. Chairman Schisler denied in his deposition that he based his termination decision on any performance issues or the incident involving the time sheet. Instead, he pointed out that he did not need to give a reason for Wilson's termination because of her status as an at-will employee. Indeed, Chairman Schisler's 15 April 2004 memorandum to Wilson advising her of her termination assigned no reason for the action.

At the request of the group of terminated PSC employees and a member of the Legislature, on 27 April 2004 an Assistant Attorney General of Maryland issued an advice letter analyzing the authority of the Chairman to terminate certain employees without the approval of the full Commission. This letter concluded that, under the relevant statutory scheme, the termination of an employee in the management service⁴ may only be effectuated by the "appointing authority," which by statute possesses the exclusive power to terminate certain at-will employees of the PSC. The Assistant Attorney General concluded that the five Commissioners, as a body, constituted the "appointing authority" of the PSC. The Chairman of the Commission, she concluded, possesses the authority to terminate a management service employee "only if [that authority] has been delegated to him [or her] by the Commission as a whole." If such a delegation has not been made, the letter opined, the termination of the affected employees would be outside the Chairman's authority and therefore illegal.

Also on 27 April 2004, Wilson apparently filed with the Commission an administrative appeal of her termination pursuant to Md.Code (1993, 2004 Repl.Vol.), § 11-113 of the State Personnel and Pensions Article,⁵ on the grounds that her termination was illegal and unconstitutional.⁶ Two days later, three of the Commissioners serving on the Commission at the time of the termination of Wilson signed an affidavit stating that they "did not participate in or direct the termination of [the five employees, including Wilson, terminated by Chairman Schisler on 15 April 2004]," nor did they delegate to Chairman Schisler "any authority to terminate the employment of the aforementioned employees." Nonetheless, on 12 May 2004, Chairman Schisler, as "head of the principal unit,"⁷ reviewed, in light of the apparent issues raised in her appeal, his decision to terminate Wilson and denied her administrative appeal. In a letter explaining his reasons for denying her appeal, the Chairman concluded that, as a management service employee, Wilson was an at-will employee, was not fired "for cause," and therefore not entitled to a statutory pre-termination hearing. In regard to her First Amendment claim, Chairman Schisler found that Wilson had not presented sufficient evidence that she had been terminated as a result of her political affiliation, opinions, or beliefs. He also concluded that the position of Chairman was the "appointing authority" for the Commission and therefore his exercise of that authority, without approval, acquiescence, or delegation from the full Commission, was not illegal or unconstitutional.

Aggrieved by the outcome of the administrative appeal, on 27 May 2004 Wilson filed a ten count complaint in the Circuit Court for Baltimore City seeking essentially declaratory and injunctive relief, including reinstatement as Manager of the Office of External Relations. The PSC (and Chairman Schisler) and Wilson filed cross-motions for summary judgment. On 19 October 2004, one day before the hearing on the motions, Wilson filed an amended complaint, adding significant additional factual allegations and causes of action, but abandoning others.⁸ In her amended complaint and motion for summary judgment, Wilson claimed that her termination was illegal because it was accomplished by the Chairman acting alone, without the approval, acquiescence, or delegation of authority by at least a majority of the full Commission. Wilson also contended that, despite Chairman Schisler's statements to the contrary at his deposition, she was terminated "for cause" and therefore unlawfully was denied the pre-termination process guaranteed by § 11-106 before disciplinary sanctions relating to "employee misconduct" could be imposed. Wilson also alleged that, in the alternative, she was terminated unconstitutionally because of her political beliefs, in violation of Article 40 of the Maryland Declaration of Rights.⁹ Furthermore, Wilson maintained that, if she was discharged merely as an at-will employee, and not for cause, the PSC violated her due process rights by failing to provide an impartial agency adjudicator for her post-termination administrative appeal.

The scheduled hearing on the summary judgment motions was held in the Circuit Court, notwithstanding the filing of the amended complaint only a day earlier. On 25 October 2004, the court entered an order containing the following determinations:

(1) within the context of the definition of Appointing Authority, the full panel of [the] Public Service Commission comprises a unit of government; (2) the full panel of the Public Service Commission shall act as the Appointing Authority for the Commission unless the authority is delegated by a majority vote of the Commission; (3) the Chairman had neither been delegated the authority to act as the Appointing Authority by the majority of the Commission at the time Chrys Wilson was terminated; nor had a majority of the Commission acquiesced in the Commission's termination of Chrys Wilson; (4) in light of the foregoing, the termination of Chrys Wilson on April 29, 2004, by the Chairman of the Public Service Commission was unlawful; (5) termination of [Wilson] may only be accomplished by the delegated Appointing Authority, and in the absence of such delegation, a majority vote of the Commission as a whole; [and] (6) neither the Chairman nor any of his employees may lawfully serve as an agency adjudicator regarding his own decision to terminate [Wilson].

The Circuit Court granted Wilson's motion for summary judgment, denied all of the Commission's pending motions, and ordered that Wilson be reinstated immediately to her prior position with full back pay from the date of termination. The Circuit Court also directed that "any further personnel actions related to Chrys Wilson ... be consistent with the Court's ruling...."

On 29 October 2004, the Commission sent a letter to Wilson stating:

[w]hile the Commission respectfully disagrees with the [Circuit] Court's determination and intends to note an appeal, the Commission currently is bound by the directive. Therefore, the Commission hereby reinstates Ms. Chrys Wilson to the position of the Manager of External Relations effective October 29, 2004

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