Forster v. State

45 A.3d 180, 426 Md. 565, 34 I.E.R. Cas. (BNA) 282, 2012 WL 3762517, 2012 Md. LEXIS 289
CourtCourt of Appeals of Maryland
DecidedMay 22, 2012
DocketNo. 92
StatusPublished
Cited by25 cases

This text of 45 A.3d 180 (Forster v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forster v. State, 45 A.3d 180, 426 Md. 565, 34 I.E.R. Cas. (BNA) 282, 2012 WL 3762517, 2012 Md. LEXIS 289 (Md. 2012).

Opinions

HARRELL, J.

Appellant, Nancy Forster, challenges her termination from the position of State Public Defender. A year-long disagreement between Forster and the Board of Trustees (the Board) of the Office of Public Defender (“the Office”) (collectively referred to as “the State”) over operation of the Office culminated penultimately in a letter from the Board to Forster demanding a suite of management and personnel changes in the Office, accompanied with a warning that, if the changes were not implemented by a date certain, Forster would be terminated. Forster refused to acquiesce to the Board’s demands, contending that the Board lacked the authority to issue such edicts, their implementation would harm indigent clients, cost more money than would be saved, and would violate provisions of the Public Defender Act. True to its threat, the Board terminated Forster. In response, Forster filed a wrongful discharge action against Appellee, the State of Maryland, Office of the Public Defender, in the Circuit Court for Baltimore City. The Circuit Court, on the State’s motion, dismissed Forster’s complaint for failure to state a claim upon which relief may be granted, one of the two grounds advanced by the State in its motion. The Court did not reach the merits of the State’s other assertion that Forster failed to exhaust her available administrative remedies under the State Personnel and Pensions Article.

Forster maintains before us that the Circuit Court granted erroneously the State’s motion to dismiss because, under our jurisprudence regarding wrongful discharge, she pleaded properly the elements of that cause of action, including that the Board’s demands of her for action were ultra vires and illegal. We do not reach, however, the merits of this claim. As a threshold matter, we conclude that Forster failed to exhaust the available and primary administrative remedy provided to at-will, executive service State employees under Ma[570]*570ryland Code (1994, 2009 Repl.Vol.), State Personnel & Pensions Article, § 11-305, even though she was not given written notice by the Board of the availability of that avenue of appeal. By parity of reasoning with our opinion in Smack v. Department of Health and Mental Hygiene, 378 Md. 298, 835 A.2d 1175 (2003), and the rule of statutory construction that when two statutory provisions appear to conflict, that the more specific statute serves as an exception to the more general one, we conclude that § 11-305 applies to a termination of an at-will State employee, whether for misconduct or for no reason at all. Section 11-106 applies to at-will State employee misconduct where the disciplinary action taken is other than termination. Because § 11-305 does not require the appointing authority to provide notice of the available administrative appeal, and Forster failed to appeal administratively her termination, we conclude, as a matter of law, that Forster’s complaint was barred by the doctrine of administrative exhaustion.

I. FACTUAL AND LEGAL BACKGROUND1

On 21 August 2009, Forster was terminated as Maryland’s State Public Defender. Forster served as the State Public Defender for five years. She was employed by the Office of the Public Defender for twenty-five years in sum. The General Assembly established the Office, a semi-autonomous agency within the Executive Branch of State government, in 1971. See 1971 Md. Laws 209, § 1; Maryland Code (1971), Art. 27A, § 3(a) (the “Public Defender Act”). The stated policy of the Public Defender Act is to

(1) provide for the realization of the constitutional guarantees of counsel in the .representation of indigent individuals, including related necessary services and facilities, in criminal and juvenile proceedings in the State; (2) assure the [571]*571effective assistance and continuity of counsel to indigent accused individuals taken into custody and indigent individuals in criminal and juvenile proceedings before the courts of the State; and (3) authorize the Office of the Public Defender to administer and assure enforcement of this title.

Md.Code (2001, 2008 Repl.Vol.), Crim. Proc. Art., § 16-201. The State Public Defender is the executive head of the Office, and is appointed by, and serves at the pleasure of, the Board of Trustees. Crim. Proc. Art., § 16-203(a). The primary duty of the State Public Defender is to “provide representation for indigent individuals.” Crim. Proc. Art., § 16-207(a).

The State Public Defender is empowered to appoint a Deputy Public Defender, District Public Defenders, and other personnel to assist him or her in performing the duties of the Office. Crim. Proc. Art., § 16-203(c), (e). The State Public Defender must maintain the Office "within its appropriation in the State budget. Crim. Proc. Art., § 16-203(g). Additional duties of the State Public Defender include: general responsibility for the operation of the Office; coordination with “professional groups about the causes of criminal conduct and the development of effective means to” reduce crime and rehabilitate those charged and convicted of crimes; and adoption of regulations and programs to carry out the purpose of the Public Defender Act. Crim. Proc. Art., § 16-207. Panel attorneys (attorneys in private practice appointed to represent certain, select indigent individuals) are supervised by the State Public Defender. Crim. Proc. Art., § 16-208(a). Each year, the State Public Defender must submit a report to the Board, the Governor, and the General Assembly providing data regarding the projected needs of the Office, the number and types of cases handled, the disposition of its cases, and recommendations for statutory changes. Crim. Proc. Art., § 16-401.

The Board is comprised of three members appointed by the governor. Crim. Proc. Art., § 16 — 301(b). The duties of the Board are to “(1) study and observe the operation of the Office; (2) coordinate the activities of the regional advisory boards; and (3) advise the Public Defender on panels of [572]*572attorneys, fees, and other matters about the operation of the public defender system.” Crim. Proc. Art., § 16-302. In addition to appointing the State Public Defender, the Board may exercise veto power over the State Public Defender’s appointment of the Deputy Public Defender and the District Public Defenders. Crim. Proc. Art., § 16 — 203(b). Two members of the Board constitute a quorum for taking action. Crim. Proc. Art., § 16 — 301(f). In 2008, Governor Martin O’Malley re-appointed T. Wray McCurdy (a prior Chair of the Board) to a three-year term as the Chair, re-appointed Margaret Mead to a three-year term, and appointed Theresa Moore to a three-year term.

Forster was appointed to the position of State Public Defender in 2004. For a year or so preceding her termination in August 2009, Forster and the Board engaged in a dispute over management of the Office. The dispute may be traced most clearly to 10 July 2008, when the freshly re-appointed/appointed Board notified Forster that they wanted to meet and discuss issues, including “[t]he status and role of the Juvenile Defenders program” and “upper level management positions” at the Office. The Board noted concerns, during a meeting on 5 August 2008 attended by Forster, specifically about the incumbent Deputy Public Defender and the District Eight Public Defender.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shapiro v. Hyperheal Hyperbarics
Court of Special Appeals of Maryland, 2024
Cecil v. Am. Fed. of St., Cty. & Mun. Emp.
Court of Special Appeals of Maryland, 2024
Phillips v. Chang
Court of Special Appeals of Maryland, 2023
Green Healthcare Sol'ns v. Med. Cannabis Comm'n
Court of Special Appeals of Maryland, 2022
Stefanowitz v. Redmer
D. Maryland, 2021
Wireless One v. Mayor & Cty. Cncl. of Balt.
465 Md. 588 (Court of Appeals of Maryland, 2019)
A.C. v. Maryland Commission on Civil Rights
158 A.3d 1140 (Court of Special Appeals of Maryland, 2017)
Hughes v. Moyer
156 A.3d 770 (Court of Appeals of Maryland, 2017)
Morris v. Goodwin
148 A.3d 63 (Court of Special Appeals of Maryland, 2016)
State v. Samples
145 A.3d 634 (Court of Special Appeals of Maryland, 2016)
United Insurance Co. of America v. Maryland Insurance Administration
144 A.3d 1230 (Court of Appeals of Maryland, 2016)
Clough v. Mayor & Council of Hurlock
127 A.3d 554 (Court of Appeals of Maryland, 2015)
Rounds v. Maryland-National Capital Park & Planning Commission
109 A.3d 639 (Court of Appeals of Maryland, 2015)
Rounds v. M-NCPPC
Court of Appeals of Maryland, 2015
Allstate Lien & Recovery Corp. v. Stansbury
101 A.3d 520 (Court of Special Appeals of Maryland, 2014)
Rodriguez v. State
98 A.3d 376 (Court of Special Appeals of Maryland, 2014)
Cabrera v. Penate
94 A.3d 50 (Court of Appeals of Maryland, 2014)
John B. Parsons Home, LLC v. John B. Parsons Foundation
90 A.3d 534 (Court of Special Appeals of Maryland, 2014)
Falls Road Community Ass'n v. Baltimore County
85 A.3d 185 (Court of Appeals of Maryland, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
45 A.3d 180, 426 Md. 565, 34 I.E.R. Cas. (BNA) 282, 2012 WL 3762517, 2012 Md. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forster-v-state-md-2012.