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Priester v. Baltimore County

Court of Special Appeals of Maryland

March 29, 2017


          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.


         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 re-hear 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 fairness arguments he made in his original filing.

         The court held a hearing to consider these motions on August 14, 2015. Ruling from the bench, the judge summarily rejected Priester's claims, stating that it was up to the PSAB to determine the next step in its procedures, and granted summary judgment in the County's favor.[9] Priester noted his timely appeal to this Court, presenting the following questions:

I. "Did the circuit court err in failing to issue a writ of mandamus compelling the PSAB to comply with its mandatory and ministerial duty to promulgate and adopt, through notice and comment rulemaking, procedural regulations as required by the Baltimore County Code, § 3-3-1305(a)?"
II. "Did the circuit court err in failing to compel the PSAB to perform its ministerial duty to formally issue its 2-2 decision, and preventing the PSAB's unauthorized attempt to re-hear Priester's personnel case?"
III."Did the circuit court err in failing to issue an administrative writ of mandamus ordering that Priester be reinstated because it is undisputed that the county failed to convince a majority of the PSAB that a preponderance of the evidence supported his termination?"



         Before we consider the merits of an appeal, we must first be certain the action is justiciable. The County challenges justiciability on two grounds. First, it contends that Priester's administrative appeal is not yet ripe for judicial review because the PSAB has not issued a final decision, meaning that Priester has not exhausted his administrative remedies. The Court of Appeals has instructed that exhaustion of administrative remedies is a threshold issue that we treat "'like a jurisdictional issue. Consequently, . . . exhaustion of administrative remedies will be addressed by this Court sua sponte even though not raised by any party.'" Renaissance Centro Columbia, LLC v. Broida, 421 Md. 474, 487 (2011) (quoting Bd. of Educ. for Dorchester Cnty. v. Hubbard, 305 Md. 774, 787 (1986) (emphasis in Hubbard)).

         Second, the County argues that Priester's appeal is moot because he retired from the Fire Department when he sought his retirement benefits before the PSAB heard his appeal, thereby depriving the PSAB of its ability to reinstate Priester-his desired remedy. Mootness, like administrative exhaustion, is a threshold issue that we must consider before addressing the merits of the questions presented. Suter v. Stuckey, 402 Md. 211, 219 (2007). The central question in the County's mootness claim, however, is whether, upon application for retirement benefits, Priester permanently resigned his position and foreclosed his opportunity to pursue a grievance under the MOU.

         We decline to address the mootness issue for several reasons. To begin with, our determination that Priester failed to exhaust his administrative remedies before he sought judicial review is dispositive.[10] Additionally, the issues concerning Priester's employment status, eligibility for retirement benefits, and ability to pursue a grievance are questions of law and fact that were not addressed by the PSAB because Priester had not applied for retirement benefits before the first hearing, and the PSAB has not moved forward with the second hearing, presumably, pending this appeal.[11] Indeed, the problem we have addressing the County's mootness argument also confirms the rationale underlying the exhaustion requirement; namely, we do not have the appropriate record before us nor the appropriate expertise to decide this question presented for the first time on judicial review. See Halici v. City of Gaithersburg, 180 Md.App. 238, 248 (2008) (concluding that the question of whether a commission member was not qualified to sit on the Historic District Commission when it rendered its decision in the case, and any consequences thereof, were not properly before this Court for review because the failure to raise the issue before the administrative agency was a failure to exhaust administrative remedies and an improper request for "'the courts to resolve matters ab initio that have been committed to the jurisdiction and expertise of the agency.'" (quoting Chesley v. City of Annapolis, 176 Md.App. 413, 427 n.7 (2007))).

         Accordingly, we shall confine our discussion to an analysis of Priester's failure to await a final administrative order before seeking judicial review. See Sinochem, 549 U.S. at 431 (Federal courts have "leeway 'to choose among threshold grounds for denying audience to a case on the merits.'" (quoting Ruhrgas, 526 U.S. at 584)).

         A. Administrative Exhaustion

         The County's exhaustion argument can be subdivided into two parts. First, that the PSAB has not issued a final decision, and Priester may not seek judicial review until he has received a final administrative decision. Second, without a final decision, Priester has not exhausted his statutorily prescribed administrative remedy, also bearing the consequence that he may not seek judicial review until he does. Priester responds that he has taken all necessary steps to obtain a final decision, and that the exhaustion doctrine does not apply to his case under certain recognized exceptions.

         1. The Agency's Decision Must Be Final

         The County argues that, under the basic tenets of finality, the PSAB has yet to issue a final decision because it has not rendered a decision that disposes of the case, adjudicates the parties' rights, and leaves nothing further for it to decide. Without a final decision, the County continues, Priester's action was not properly before the circuit court because there is no final judgment by the PSAB, and therefore, Priester has failed to exhaust his administrative remedies. The County relies mainly on Renaissance Centro, 421 Md. 474, arguing that the Court of Appeals held there that a 2-2 tie vote is not a final decision for the purpose of administrative exhaustion. Priester may not challenge the PSAB's decision to rehear his appeal, according to the County, because the Board never issued its preliminary vote as a final administrative decision.

         Priester reiterates the position he advanced in the circuit court: that by requesting and participating in the de novo appeal before PSAB, he has done all that was required for him to exhaust his administrative remedies. In other words, Priester believes that it is of no consequence that the PSAB did not issue a decision at the hearing's conclusion because he took all the steps required of him personally.

         When a legislature provides an administrative remedy as the exclusive or primary means by which an aggrieved party may challenge a government action, the doctrine of administrative exhaustion requires the aggrieved party to exhaust the prescribed process of administrative remedies before seeking "any other" remedy or "invok[ing] the ordinary jurisdiction of the courts." Soley v. State Comm'n on Human Relations, 277 Md. 521, 526 (1976) (emphasis added).[12] The Court in Solely explained that the exhaustion rule is based, in part, on the "discretionary nature" of agency decisions and the "expertise" that "the agency can bring to bear in sifting the information presented." Id.

         The rule of finality overlaps the rule of exhaustion. Renaissance Centro, 421 Md. at 485. "[A] party must exhaust the administrative remedy and obtain a final administrative decision . . . before resorting to the courts." Laurel Racing Ass'n, Inc. v. Video Lottery Facility Location Comm'n, 409 Md. 445, 460 (2009) (emphasis added). The stage of the administrative review process from which the party seeks judicial review is where the main distinction between the doctrine of finality and the doctrine of exhaustion is revealed. Exhaustion requires a grievant to invoke and pursue the administrative process until he or she receives a final decision from the agency at the utmost level of the administrative hierarchy. For instance, Priester could not have sought judicial review of the ALJ's decision-even though that decision was final-without first invoking the statutorily prescribed de novo appeal to the PSAB. Finality, on the other hand, refers to the quality of decision by the agency atop the hierarchy-meaning that Priester cannot seek review of the PSAB's interlocutory decisions until the Board issues a final order disposing of his appeal. See Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 74-75 (2003). We begin by addressing finality, because without a final administrative decision, there ordinarily is no exhaustion. Renaissance Centro, 421 Md. at 485.

         The rule of finality limits judicial intervention during the administrative process to promote the efficiency that the legislature attempted to achieve through the administrative process, and relieves courts of the need "to decide issues which perhaps would never arise if the prescribed administrative remedies were followed." Soley, 277 Md. at 526. In this way, the administrative exhaustion doctrine is "a policy embodied in various enactments of the General Assembly." Maryland Comm'n on Human Relations v. Baltimore Gas & Elec. Co., 296 Md. 46, 51 (1983). By vesting authority in administrative agencies, the legislature signals its belief that the agencies' expertise on those issues exceeds that of the courts. This principle was expressed in Maryland-National Capital Park & Planning Commission v. Washington National Arena, when the Court of Appeals examined the statutory provisions delineating the authority of the Maryland Tax Court, and observed:

Presumably, in enacting such an intricate and comprehensive mechanism for the review of property tax determinations, the General Assembly sought to afford the taxpaying public a systematic and efficient method of fact-finding and policy-formation in an area where many of the day-to-day problems of administration either lie beyond the conventional competence of the courts because of the technical complexity of the subject matter or, ...

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