Chesek v. Jones

959 A.2d 795

406 Md. 446

Craig B. CHESEK and Gregory J. Maddalone v. Adrienne A. JONES.

No. 117, September Term, 2007.

Court of Appeals of Maryland.

November 6, 2008.

J. Donald Braden (Foster, Braden & Thompson, LLP, Stevensville), on brief, for appellants/cross-appellees.

Dan Friedman, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Kathryn R. Rowe, Bonnie Kirkland and Sandra B. Brantley, Asst. Attys. Gen., Annapolis), on brief, for appellee/cross-appellant.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, IRMA S. RAKER (Retired, specially assigned), and DALE R. CATHELL (Retired, specially assigned), JJ.

IRMA S. RAKER, J., Retired, Specially Assigned.

The question presented in these consolidated cases¹ is whether a Special Committee, formed by the Legislative Policy Committee pursuant to Maryland Code (1984, 2004 Repl. Vol.), § 2-407 of the State Government Article, possesses subpoena power in the course of its duties. Appellants Craig Chesek and Gregory Maddalone challenge the authority of the Special Committee to subpoena and compel testimony. Appellee Adrienne Jones, co-chair of the Special Committee, argues that the subpoena action was valid. We shall hold that the provision granting the Legislative Policy Committee the authority to appoint a special committee in § 2-407(b)(3) of the State Government Article² necessarily carries with it the implied power to delegate subpoena power.

I.

A.

The Legislative Policy Committee is a bi-partisan committee of the Maryland General Assembly established by statute under § § 2-401 to 410. Pursuant to subsection 2-407(a), the purpose of the Legislative Policy Committee is to fulfill the following functions:

"(a) In general.—The Committee has the following functions:

(1) to review the work of the standing committees;

(2) to collect information about the government and general welfare of the State;

(3) to study the operation of and recommend changes in the Constitution, statutes, and common law of the State;

(4) to study the rules and procedures of the Senate and the House and recommend changes that would improve and expedite the consideration of legislation by the General Assembly;

(5) to coordinate and supervise generally the work of the General Assembly when it is not in session;

(6) to prepare or endorse a legislative program that includes the bills, resolutions, or other recommendations of the Committee that are to be presented to the General Assembly at its next session; and

(7) to carry out its powers and duties under the Maryland Program Evaluation Act."

To carry out the expansive duties with which the Legislative Policy Committee is entrusted under § 2-407(a), the Legislative Policy Committee is granted extensive powers under § 2-407(b), including the power to appoint a special committee under section 2-407(b)(3). The power of the Legislative Policy Committee is set forth as follows:

"(b) Powers and duties.—To carry out its functions, the Committee:

(1) shall receive, from any source, suggestions for legislation or investigation;

(2) may hold a hearing on any matter;

(3) may appoint a special committee;

(4) may refer a matter for study and report to any of its special committees or any committee of the General Assembly;

(5) shall consider the reports of standing, statutory, and special committees;

(6) may have any bill or resolution prepared to carry out its recommendations; and

(7) when the General Assembly is not in session:

(i) may accept a gift or grant of money ...; and

(ii) may spend the money for that purpose, in accordance with the State budget."

§ 2-407(b) (emphasis added).³

The Legislative Policy Committee may compel testimony, depose witnesses, and issue subpoenas under § 2-408, and may enforce compliance with such subpoenas by petitioning the circuit court. The powers granted in section 2-408(a) are set forth as follows:

"(a) Authorized.—In carrying out any of its functions or powers, the Committee may:

(1) issue subpoenas;

(2) compel the attendance of witnesses;

(3) compel the production of any papers, books, accounts, documents, and testimony;

(4) administer oaths; and

(5) cause the depositions of witnesses, who reside in or outside of the State, to be taken in the manner provided by law for taking depositions in a civil case."

Section 2-408(b) then provides for enforcement of the subpoena power in the circuit courts of Maryland.⁴

B.

In 2005, the Maryland General Assembly, through the Legislative Policy Committee, began an investigation into the alleged wrongful political firings of employees within various state agencies during Governor Ehrlich's administration. In June 2005, the Legislative Policy Committee created a twelve-member Special Committee on State Employees' Rights and Protections to examine procedures, practices, and standards pertaining to the involuntary separation of state employees. The Legislative Policy Committee tasked the Special Committee with investigating:

"1. (a) Whether Maryland law affords sufficient protection for State personnel against involuntary separations for illegal or unconstitutional reasons; and

(b) Whether the government structure and procedures for decision making with respect to involuntary separations sufficiently protect State personnel from illegal or unconstitutional actions;

"2. (a) Whether the manner in which Administrations have determined the subjects of involuntary separations and effected such separations is fundamentally fair and consistent with best practices for personnel management; and

(b) What effect involuntary separations have on the overall quality and professional standards of the State government workforce; and

"3. Whether additional statutory protections are needed to safeguard the rights of state personnel...."

Legis. Policy Comm. Res. (Md. 2005). In the resolution establishing the Special Committee, the Legislative Policy Committee expressly delegated all of its powers under § 2-408, stating in relevant part as follows:

"[B]e it further resolved ... That the Special Committee is delegated the powers of the Legislative Policy Committee (LPC) under § 2-408 of the State Government Article."

Id. The powers delegated under § 2-408 include the Legislative Policy Committee's subpoena power, as listed in 2-408(a).

The Special Committee adopted rules, held hearings, conducted briefings, and collected information related to employee separations occurring during the period from 1995 to 2005. To assist in collecting information, the Special Committee requested that the Ehrlich administration produce certain documents. The administration and various executive agencies failed to comply fully with the document requests and thus the Special Committee approved a plan to subpoena certain witnesses, including appellants Maddalone and Chesek.⁵ Maddalone was an employee of the Maryland Department of Transportation and was alleged to have carried out a series of political firings at that department. Chesek was an employee at the Public Service Commission and was alleged to have been involved with political firings within the Commission and other State agencies.

On May 1, 2006, subpoenas were served on Chesek and Maddalone ordering them to appear before the Special Committee on May 11, 2006, and to testify regarding State employees' terminations and separation procedures. Appellants, with counsel, appeared before the Special Committee as ordered. During their respective testimony, Maddalone and Chesek refused to answer certain questions, claiming their appearance was voluntary and that they were permitted to refuse to answer questions at their own discretion. Maddalone was sworn in and discussed his involvement in evaluating employees at the Maryland Department of Transportation and making firing recommendations as well as maintaining a database related to the firings. He refused, however, to answer questions about who directed him to create the database or whether he was paying for private counsel. Chesek was sworn in and testified but refused to answer nearly a dozen questions related to alleged political firings within the Public Service Commission and the Department of Natural Resources.

On May 22, 2006, the Special Committee voted to request the Circuit Court for Baltimore County to compel the appellants' testimony. On June 1, 2006, Delegate Adrienne Jones, as co-chairperson of the Special Committee, filed a Petition for Order to Compel Testimony and a Motion for Summary Judgment in the Circuit Court for Baltimore County. Appellants filed a motion to dismiss and a cross-motion for summary judgment.

On October 2, 2007, the Circuit Court granted Jones' motion for summary judgment against Chesek in its entirety, requiring him to answer all of the Special Committee's previously asked questions. With respect to Maddalone, the court granted Jones' motion for summary judgment in part and denied it in part. The court ruled that Maddalone did not have to answer the Special Committee's questions regarding payment of his attorney's fees, but that he did have to respond to questions regarding a state employee database.⁶

Appellants noted a timely appeal to the Court of Special Appeals challenging the order of the Circuit Court requiring them to answer certain questions posed by the Special Committee. Appellee filed a cross-appeal to challenge the ruling on questions relating to the payment of attorney's fees. In December 2007, appellee Jones filed a petition for a writ of certiorari with this Court. We granted certiorari to answer the following questions:⁷

"1. Could the Legislative Policy Committee have delegated its statutory subpoena power and investigatory powers to a `special committee' created pursuant to § 2-407(b)(3) of the State Government Article?

"2. Where the respondent-witnesses made no objection before the Special Committee, have they waived objections to compelled testimony based on an alleged failure of the...