McReady v. Univ. Sys. of Maryland

203 Md.App. 225

37 A.3d 1018

Edward C. McREADY

v.UNIVERSITY SYSTEM OF MARYLAND, et al.

Nos. 1668

1669

1670

Sept. Term

2010.

Court of Special Appeals of Maryland.

Feb. 9, 2012.

Edward C. McReady, Chevy Chase, MD, for appellant.

Thomas Faulk (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: EYLER, DEBORAH S., KEHOE and IRMA S. RAKER (Retired, Specially Assigned), JJ.

EYLER, DEBORAH S., J.

In three cases, Edward C. McReady, the appellant, has challenged dismissals by the Circuit Court for Montgomery County of his actions for judicial review against the University of Maryland (“the University”), the appellee. His cases originated as complaints under the Maryland Whistleblower Law (“MWL”), Md.Code (1993, 2009 Repl.Vol.), sections 5–301 et seq. of the State Personnel and Pensions Article (“SPP”), which were referred to the Office of Administrative Hearings (OAH) for decision by an Administrative Law Judge (“ALJ”).

The cases have been consolidated in this Court. McReady poses six questions for review, which constitute arguments on the single question whether the circuit court erred in dismissing the actions for judicial review. ¹ For the following reasons, we hold that the court erred in dismissing the actions. Accordingly, we shall reverse the judgments of the circuit court.

FACTS AND PROCEEDINGS

The issues in this case are procedural in nature and therefore it is not necessary to delve into the specifics of McReady's complaints. The following skeletal summary will do. McReady was employed as an accounting professor at the School of Undergraduate Studies of the University of Maryland University College, which is part of the University. On June 21, 2007, he received notice that his contract, which was set to expire on June 30, 2008, would not be renewed. Thereafter, on August 24, 2007, he was terminated from his position.

McReady filed grievances with the University, arguing in part that the non-renewal of his contract and his ultimate termination were in retaliation for his exercise of his constitutional right to free speech. The grievances were decided against him. On March 17, 2008, and June 5, 2008, McReady filed complaints under the MWL with the Department of Management and Budget (“DBM”). The DBM ruled that the complaints were not timely filed. McReady appealed those decisions to the OAH.

The University filed a motion to dismiss on the issue of timeliness of the March 17, 2008 complaint. An ALJ with the OAH held a hearing on the motion, which consisted solely of argument of counsel.² On August 12, 2008, the ALJ issued an order ruling that the March 17, 2008 MWL complaint was untimely.³ In the Circuit Court for Montgomery County, McReady filed an action for judicial review, challenging that order. On September 18, 2008, after another non-evidentiary hearing on a motion to dismiss filed by the University, the ALJ issued a second order ruling that McReady's June 5, 2008 MWL complaint likewise was untimely. McReady filed a second action for judicial review from that order, in the same circuit court. In the two actions for judicial review, the clerk's office, within a month of filing, mailed notice of the actions to the OAH. Pursuant to Rule 7–206(c), the 60–day period for the OAH to file the records in those appeals started to run on the dates of the letters (October 10 and October 20, 2008). Initially, separate judges were assigned to the cases. They each sent letters to the parties explaining that the proceedings would be governed by Title 7 of the Maryland Rules of Procedure. Ultimately, both cases were assigned to one judge, who sent the parties a “timetable to use as a guide in accordance with Rule 7–200 et seq.” and scheduled a hearing date of February 27, 2009, in both cases.

On November 5, 2008, with respect to McReady's first action for judicial review, Linda Bailey, the docket clerk for the OAH, wrote to McReady detailing what was to be the “Record” in the actions for judicial review, under Rule 7–206. Her letter quoted a prior version of the rule, which is not in any significant way different from the existing rule. The quotation in the letter included part (a) of the Rule, stating:

Contents; expense of transcript—The record shall include the transcript of testimony and all exhibits and other papers filed in the agency proceeding, except those papers the parties agree or the court directs may be omitted by written stipulation or order included in the record. If the testimony has been recorded but not transcribed before the filing of the petition for judicial review, the first petitioner, if required by the agency and unless otherwise ordered by the court or provided by law, shall pay the expense of transcription, which shall be taxed as costs and apportioned as the court directs.⁴

Bailey's letter went on to quote the remaining four subsections of the rule, which, respectively, provide that the parties may agree to proceed by means of a statement in lieu of the record; that, except as otherwise provided, the agency is required to submit to the court clerk the original or a certified copy of the record within 60 days of its receipt of the petition in the action for judicial review; that that time period could be shortened or extended by the court, upon motion, and that “[t]he action shall be dismissed if the record has not been transmitted within the time prescribed unless the court finds that the inability to transmit the record was caused by the act or omission of the agency, a stenographer, or a person other than the moving party,” see subsection (d); and that upon the filing of the record the clerk of court is required to notify the parties that the record has been filed.

Bailey's letter to McReady stated, with respect to the transcript:

It is the responsibility of the party who first filed the petition for review to order a transcription of the tape-recorded record of the hearing, and to pay the expense of transcribing the hearing, if the parties have not agreed upon a statement in lieu of the record. See COMAR 17.02.03.07. The cost of transcribing the tape-recorded hearing is $3.35 per page.

The letter further stated that to insure that the tape-recorded record was timely transcribed and transmitted to the court, McReady needed to immediately remit $971.50 to George Quade, Project Coordinator for For the Record, Inc. (with address included), and to ask Quade to forward the original and two copies of the transcript to her attention. The letter concluded by stating:

YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF THE MARYLAND RULES. IF THE RECORD IS NOT COMPLETES [ sic ] BY PROMPTLY SUBMITTING EITHER A TRANSCRIPT OR A STATEMENT IN LIUE [ sic ] OF THE RECORD, YOUR APPEAL WILL NOT PROCEED.

On the same date, Bailey sent McReady an identical letter regarding his second action for judicial review. The only difference between the letters was that the amount owed for the transcription of the record in the second action for judicial review was $1,494.10.

On November 7, 2008, McReady wrote to the ALJ who had presided over the hearings in the two cases seeking clarification of his obligation to pay for the cost of transcripts and asking that the November 5, 2008 letters by Bailey be rescinded. He argued that, because the OAH decisions had been made on motion, and the hearings that had been held consisted of argument, not testimony, the hearings did not need to be transcribed.

On November 10, 2008, Thomas E. Dewberry, Chief ALJ at the OAH, responded to McReady, disagreeing with his argument, and explaining, in part:

When an appeal is filed, the entire record of that proceeding must be transmitted to the circuit court, and the record includes such things as the evidence, argument, etc. presented at a motion(s) hearings, among other records. The records of the motion(s) hearings in these particular cases are extremely pertinent because it is my understanding that the rulings on the motions form the basis of your appeal. Therefore, the Maryland Rules require a transcription of the testimony in the hearing for review by the court. Although the Maryland Rules do not specifically define the term testimony, I do not believe that it is as restrictive a definition as you have offered, and believe it would include the arguments on the motion(s).

Dewberry's letter emphasized that it remained McReady's obligation to order and pay for the transcripts of the hearings and that if he did not do so, his actions for judicial review would be dismissed. According to McReady, on November 14, 2008, he wrote to Dewberry requesting reconsideration, which was denied by letter of November 17, 2008.⁵

On October 22, 2008, in the second OAH case, the ALJ revised his original order and dismissed some but not all of McReady's MWL claims. On November 17, 2008, McReady filed a third action for judicial review in the circuit court, challenging that decision.

McReady refused to pay for any OAH hearing transcripts associated with his actions for judicial review on the ground that, because there was no “testimony” taken in the proceedings before the ALJ, in that the cases were decided on motion, with only argument being advanced, the transcripts were not part of the OAH record that was required to be transmitted to the circuit court pursuant to Rule 7–206. On December 1, 2008, he filed a motion for “compliance,” seeking to have the OAH comply with Rule 7–206 by filing the records in the cases without the hearing transcripts. There was no opposition to the motion, and, as the court did not rule on it before the 60–day deadlines by which the records in the first two cases were to be filed, the motion was implicitly denied. Those 60–day periods expired on December 15 and 22, 2008, respectively. The records were not transmitted.

The 60–day deadline in the third case was to expire on January 19, 2009. On January 15, 2009, the OAH filed a “Certificate of Record” for each...