St. Mary's County v. Lacer, 85, September Term, 2005.

• Decision Date: 27 July 2006
• Docket Number: No. 85, September Term, 2005.,85, September Term, 2005.
• Citation: 903 A.2d 378,393 Md. 415
• Parties: COUNTY COMMISSIONERS FOR ST. MARY'S COUNTY, Maryland v. Alfred A. LACER.
• Court: Court of Special Appeals of Maryland

903 A.2d 378

393 Md. 415

COUNTY COMMISSIONERS FOR ST. MARY'S COUNTY, Maryland v. Alfred A. LACER.

No. 85, September Term, 2005.

Court of Appeals of Maryland.

July 27, 2006.

COPYRIGHT MATERIAL OMITTED

Mark J. Swerdlin (Kraig B. Long of Shawe & Rosenthal, L.L.P., Baltimore, MD), on brief, for Petitioner.

Stephen P. Fitzgerald, (Mistey L. Metzgar of Mudd, Mudd & Fitzgerald, P.A. of LaPlata, MD), on brief, for Respondent.

Argued before BELL, C.J., and WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE, (Retired, specially assigned), JJ.

HARRELL, J.

We consider here whether the Court of Special Appeals properly declined appellate review of a circuit court's order granting partial summary judgment as to liability only on a breach of contract claim in a multi-count governmental employment contract dispute, which the trial court certified as a final judgment pursuant to Maryland Rule 2-602(b).¹ We consider also whether, under the collateral order doctrine, the Court of Special Appeals correctly reviewed and affirmed other portions of the circuit court's relevant order addressing a discovery dispute that implicated the St. Mary's County Open Meetings Act, Maryland Code (1957, 2001 Repl.Vol.), Article 24, § 4-201, et seq. The Circuit Court allowed Alfred A. Lacer, Respondent, to inquire in depositions into discussions held during a closed executive session of the St. Mary's County Board of County Commissioners (the "Board"), Petitioner, as those discussions related to Lacer's employment contract with the Board and its subsequent termination of Lacer.

I.

In January 2002, Lacer entered into a written employment contract with the Board which provided that Lacer would act as the Chief Executive Officer of the County government, in the position of County Administrator, for a period of 4-1/2 years, subject to certain conditions. At that time, the then-members of the five-member Board were serving their second four-year term following election by the voters of St. Mary's County. The terms of the then-members of the Board expired in November 2002. Subsequently, a new five-member Board (the Board as composed and involved in the present action) was elected and seated in December 2002.

On 1 April 2003, after meeting for a public hearing and a scheduled executive session, the Board members convened a closed executive session, during which Lacer was not present. The meeting minutes indicate that the Board met in the closed executive session to discuss personnel issues and to give direction to staff. The meeting minutes indicate also that only the five Board members and the recorder were present. Following the closed session, the Board assembled in an open session and voted 3-2 to proceed on the personnel issues discussed in the closed executive session. In a letter dated 28 April 2003, the Board terminated Lacer from his position as County Administrator.

On 14 May 2003, Lacer filed a Complaint against the Board in the Circuit Court for St. Mary's County alleging breach of contract, wrongful discharge, a violation of the Maryland Wage Payment and Collection Law, Maryland Code (1991, 1999 Repl.Vol.), Labor and Employment Article, §§ 3-502 and 507.1, and a violation of the St. Mary's County Open Meetings Act, Maryland Code (1957, 2001 Repl. Vol.), Article 24, § 4-201, et seq. Lacer filed additionally a Motion for Partial Summary Judgment with regard to his claim for breach of contract. The Board filed its own Motion for Summary Judgment, in addition to its opposition to Lacer's motion. Then, in response to Lacer's Notice of Taking Oral Deposition of the five Board members, the Board filed a Motion for Separation of Questions For Decision and for Stay of Discovery, as well as a Motion for Protective Order on the ground that the Board's substantive discussions during the closed executive session regarding Lacer's termination were protected from discovery by the attorney-client privilege.²

Following a hearing on the motions before the court, the Circuit Court issued two separate orders. In the second order, entered on 15 September 2003 (the order in question in the present case), the Circuit Court: (1) permitted discovery by Lacer into discussions of the closed executive session, yet stayed its effect to allow for any immediate appellate review that might be sought by the Board; (2) granted Lacer partial summary judgment, while denying the Board's summary judgment motion, as to liability only on the breach of contract claim; and (3) deferred decisions on various other discovery motions until resolution on appellate review of its order permitting discovery of the Board members. Also in its order, the Circuit Court purported to make the necessary certification for immediate appellate review and directed the entry of a final judgment under Maryland Rule 2-602(b):

ORDERED that with respect to Lacer's Request for Relief under the St. Mary's County Open Meeting Act, that Lacer shall be entitled to inquire of the Board's agents as to all of the discussions held during the "Executive Session" conducted by the Board on April 1, 2003, as said discussions relate to Lacer's Contract of Employment, this Court having expressly found that Lacer was entitled to receive prior notice from the Board if the Board intended to discuss or consider Lacer's resignation or dismissal at any executive session, and this Court having expressly found that no legislative privilege applied to said discussions, and it is further

ORDERED that the effect of the aforesaid Order is hereby stayed to allow the Board to file an appeal to the appropriate appellant court, if it so desires, and it is further

ORDERED that with respect to Lacer's Motion for Partial Summary Judgment, that there is no genuine dispute as to any material fact, and that Lacer is entitled to said Partial Summary Judgment as a matter of law, and it is further

ORDERED that the Court hereby declares the following issues or facts are not in genuine dispute:

1. The Employment Contract of January 28, 2003 between Lacer and the Board is valid and enforceable ...;

2. The Board does not have the right or option to void the Contract prior to the expiration of such contract according to its terms;

3. The Board has breached the Contract by its issuance of the Notice dated April 28, 2003, and "Request for Personnel Action" of April 30, 2003 ... and is responsible for the damages caused thereby;

4. Trial of the remaining issues raised by the Complaint shall be resolved by the finder of fact, and it is further

ORDERED that with respect to the Board's Motion for Summary Judgment, that the Board is not entitled to a judgment as a matter of law, and that therefore, the Board's Motion for Summary Judgment, be and the same is hereby denied, and it is further

ORDERED that with respect to the Board's Motion for Protective Order and Lacer's Motion for Immediate Sanctions for Failure to Respond to Interrogatories and to Request for Production of Documents, or in the alternative, Motion to Compel Discovery, that said Motions, be and the same are hereby deferred until the resolution of any appeal the Board may file to this Order, and it is further

ORDERED that this Court hereby determines, pursuant to Maryland Rule 2-502, that it would be convenient to have the issues decided by this Order finally resolved by the appropriate appellate court before proceeding further, and this Court does further hereby expressly determine, pursuant to Rule 2-602, that there is no just reason for delay and this Court hereby directs this to be a final judgment.

(Emphasis added).

The Board appealed. The Court of Special Appeals, in an unreported opinion, determined that, based upon its review of the record, the Circuit Court erred in its effort to expedite appellate review of the determinations reached in the order, save the discovery provisions, when it entered a final judgment under Maryland Rule 2-602(b). The intermediate appellate court, as to the discovery aspect, however, concluded that the collateral order doctrine enabled appellate review of that disposition. The court affirmed the provision of the Circuit Court's order permitting depositions of the Board members. In determining that all four elements of the collateral order doctrine were satisfied, the court noted that

[a]ccording to [Lacer], he was wrongfully terminated as a result of what occurred when the Board chose to meet in an Executive Session that violated the St. Mary's County Open Meetings Act. The discovery provisions in the order at issue provides for the ascertainment of "critical facts" that are of consequence to the ultimate outcome of the case. See In re Foley, supra, 373 [Md. 627, 635, 820 A.2d 587 (2003)]. Those provisions, however, (1) conclusively determine that high level (local) government decision makers must appear for depositions, and (2) present the important question of whether "disruption of the government process" will result from discovery into the decision making process of high level government officials. Because [Lacer's] entitlement to judicial relief may be completely distinct from the Board's opinion as to whether it was entitled to terminate [Lacer's] contract, the discovery provisions are sufficiently "separate" from the merits of the action. Finally, if the discovery provisions could not be reviewed at this point, the Board's right to protect its members against "extensive probing of their individual decision thought processes would irretrievably be lost.["]

The Board filed with us a Petition for Writ of Certiorari. We granted the petition to determine (1) whether the Court of Special Appeals properly declined appellate review of the Circuit Court's order, save the discovery provision, which was certified as a final judgment under Maryland Rule 2-602(b), and (2) whether, under the collateral order doctrine, the Court of Special Appeals correctly affirmed the discovery provision of the Circuit Court's order....