Cave v. Elliott

WOODWARD, J. This appeal arises from the termination of appellee, Calvin Elliott, Jr., from his position as a Deputy Sheriff with the Howard County Sheriffs Office (“Sheriffs Office”) on October 28, 2005. On December 14, 2005, Elliott filed a complaint for a show cause order in the Circuit Court for Howard County pursuant to the Law Enforcement Officers’ Bill of Rights (“LEOBR”), Maryland Code (2003), § 3-105 of the Public Safety Article. (“P.S.”). Elliott requested that the court issue an order requiring the Sheriffs Office and appellant, Howard County Sheriff Charles M. Cave, to show cause, if any, why the rights provided by the LEOBR should not be afforded to Elliott. ⁷⁰ As of January 25, 2006, all of the judges of the Circuit Court for Howard County recused themselves from the case.

The case was then transferred to the Circuit Court for Carroll County. Following a show cause hearing held on August 25, 2006, the Circuit Court for Carroll County, in a memorandum opinion, found that Elliott was improperly denied his right under the LEOBR to a hearing before d hearing board prior to his termination. By separate order, the court ordered Elliott’s reinstatement to his former position as a Deputy Sheriff with the Sheriffs Office, “including the payment of all back pay and benefits.” On appeal, Cave presents one question for our review, which we have rephrased: Did the trial court err in awarding Elliott back pay and benefits when it determined that Elliott had been denied his right under the LEOBR to a healing before a hearing board prior to the termination of his employment? 1 For the following reasons, we shall affirm the judgment of the circuit court. FACTS & PROCEEDINGS Elliott was employed as a Deputy Sheriff with the Sheriffs Office on a continuous basis from September 24, 2001, through October 28, 2005.

During that time, Elliott was assigned to the Transport Court Security Unit. On October 28, 2005, Elliott received a memorandum from Major R. Scott Mergenthaler, Chief Deputy of the Sheriffs Office, advising Elliott that his employment was terminated, effective immediately. The memorandum stated that, in lieu of notice of his termination, Elliott would be compensated two weeks’ pay. ⁷¹ On December 14, 2005, Elliott filed a Complaint For Show Cause Order Pursuant to the Law Enforcement Officers’ Bill of Rights in the Circuit Court for Howard County. Pursuant to P.S. § 3-105, Elliott requested that the court issue an order “directing [Cave and the Sheriff’s Office] to Show Cause why [Elliott] should not be afforded the rights guaranteed by the [LEOBR], and consistent with principles of due process under the Constitution of the United States and the State of Maryland.” In addition, Elliott requested that the court issue an order directing Cave and the Sheriff’s Office to restore Elliott to his former position as a Deputy Sheriff, “including the payment of all back pay and benefits.” 2 On December 30, 2005, the Circuit Court for Howard County entered a show cause order, pursuant to P.S. § 3-105, directing Cave and the Sheriffs Office to “show cause, if any, on or before the 29th day of January, 2006, why the rights provided by the [LEOBR] should not be afforded [Elliott].” The court further ordered that the show cause order stand for a hearing on February 9, 2006.

On January 30, 2006, Cave filed a Response to Order to Show Cause, requesting that the court dismiss the show cause order or, alternatively, find no violation of the LEOBR. In his response, Cave asserted, inter alia, that Elliott was not entitled to the due process protections of the LEOBR, because Elliott’s termination was due to poor performance, and the LEOBR accorded procedural protections only to law enforcement officers “who are being investigated or interrogated for the purpose of imposing disciplinary action.” Cave, however, did not respond to Elliott’s request for reinstatement with payment of back pay and benefits. Thereafter, all of the judges of the Circuit Court for Howard County recused themselves from the case, and on Febru ⁷² ary 13, 2006, the parties consented to a transfer of the case to the Circuit Court for Carroll County. Following the transfer, on August 25, 2006, the Circuit Court for Carroll County held a hearing pursuant to the show cause order.

In a written memorandum opinion dated December 12, 2006, the court concluded that the actions of Cave and the Sheriffs Office “were sufficient to constitute an investigation as contemplated by the terms of the LEOBR and the appellate decisions interpreting the same, and [Elliott’s] dismissal was punitive in nature.” Accordingly, the court found that Elliott was denied the right to a hearing under the LEOBR prior to his termination. In an order dated December 12, 2006, and entered December 13, 2006, the court ordered Elliott’s reinstatement to his former position as a Deputy Sheriff, “including the payment of all back pay and benefits.” On December 22, 2006, Cave filed a Motion for Reconsideration, asking the court to “reconsider its order insofar as it provide[d] for reinstatement and the payment of back pay and benefits.” Cave argued that reinstatement was not a right guaranteed by the LEOBR and that, regarding back pay and benefits, the parties were entitled to litigate the amount to be awarded and Elliott had a duty to mitigate his damages. Therefore, Cave asserted that, “[a]t the very least, [he] is entitled to discovery of the efforts [Elliott] made to mitigate damages, the amount of time he actually worked, his efforts to find other employment, whether he earned unemployment insurance, and other issues related to benefits he claimed were lost as a result of the termination of his employment.” According to Cave, his Motion for Reconsideration was hand-delivered to the Circuit Court for Carroll County. As the motion appears in the record, it was time and date stamped, “RCVD 06 DEC22'06 13:08,” indicating its receipt by that court on December 22, 2006.

The caption of the motion, however, read, “In The Circuit Court For Hoivard County,” and the case number appearing on the motion was the case number assigned by the Circuit Court for Howard ⁷³ County prior to the transfer of the case to the Circuit Court for Carroll County. (Emphasis added). The motion contained the correct names of the parties. Instead of docketing Cave’s Motion for Reconsideration, the civil clerk of the Circuit Court for Carroll County returned the miscaptioned motion to Cave’s counsel, striking out the time and date stamp on the motion and attaching a memorandum that stated that the motion was filed in the Circuit Court for Carroll County in error.

On January 4, 2007, Cave filed a Motion to Accept Filing of Motion for Reconsideration in the Circuit Court for Carroll County, requesting the court to accept for filing a motion for reconsideration identical to the motion Cave filed on December 22, 2006, but with a corrected caption. As the basis for his request, Cave stated that “the motion was timely filed, albeit with an erroneous caption.” On January 18, 2007, Elliott filed an Opposition to Motion to Accept Filing of Motion for Reconsideration. In his opposition, Elliott argued that Cave’s motion, “whether intended as a [Maryland Rule] 2-534 or [Rule] 2-535 motion[,] is time barred and cannot now be accepted for filing by the Clerk.” By order dated January 19, 2007, the circuit court granted Cave’s Motion to Accept Filing of Motion for Reconsideration and ordered that Cave’s corrected motion for reconsideration, “which was originally filed on December 22, 2006, is accepted for filing, nunc pro tunc.” Thereafter, on February 7, 2007, Elliott filed an opposition to Cave’s Motion for Reconsideration. On February 15, 2007, the court entered an order denying Cave’s Motion For Reconsideration.

Cave noted this appeal, which was filed in the Circuit Court for Carroll County on March 15, 2007. MOTION TO DISMISS I. Jurisdiction Preliminarily, Elliott moves to dismiss this appeal pursuant to Maryland Rule 8—602(a)(3), because Cave did not file his ⁷⁴ notice of appeal within 30 days after entry of the judgment or order from which the appeal is taken. Elliott argues that as of January 12, 2007, which was 30 days after the entry of the order granting Elliott the relief requested, no Motion to Alter or Amend a Judgment (Rule 2-534), no Motion for Revisory Power (Rule 2-535), and no notice of appeal had been filed. According to Elliott, the only notice pending at that time was Cave’s Motion to Accept Filing of Motion for Reconsideration, which was not ruled upon by the trial court until January 19, 2007.

Elliott contends that the trial court did not have any authority under the Maryland Rules to enter the January 19, 2007 nunc pro tunc order and “thus all orders that flowed from it are nullities.” Elliott concludes that the trial court lost jurisdiction respecting revisory power (other than for fraud, mistake or irregularity—not at issue in the case at bar) forever when thirty days expired (on or about January 12, 2007) with no motion for revisory power, other post-trial proceeding, or notice of appeal having been filed. The Notice of Appeal filed on March 15, 2007, was approximately sixty (60) days too late. Cave responds that the circuit court has the inherent authority “to order an act to be done nunc pro tunc as a means to amend the record to correct clerical errors to reflect that a thing is done, though not recorded.” Cave asserts that the trial judge acted within his discretion to order the filing of the motion for reconsideration nunc pro tunc, because the motion was timely filed in the proper court, but “counsel’s clerical error in including the wrong case caption resulted in the docket entries being incomplete.” Therefore, according to Cave, the trial court’s order caused the docket entries to properly reflect that his motion for reconsideration was filed on December 22, 2006, which was within the ten day period required for a motion to alter or amend under Rule 2-534. Accordingly, Cave concludes that his notice of appeal, filed within 30 days after the denial of the motion for reconsideration, was timely. ⁷⁵ A. Before addressing the authority of the circuit court to enter the January 19, 2007 nunc pro tunc order, we must determine whether Cave properly filed his Motion for Reconsideration on December 22, 2006, in the Circuit Court for Carroll County and, if so, whether the court clerk had the authority to refuse to accept the motion for filing because the caption had the incorrect name of the court and docket number.

In Cherry v. Seymour Brothers, 306 Md. 84 , 507 A.2d 613 (1986), the Court of Appeals stated: “[A] paper is said to be ‘filed’ when it is delivered to the proper officer and received by him to be kept on file. In modern usage, the ‘filing’ of a paper consists in placing it in the custody of the proper official who makes the proper indorsement thereon.” Id. at 92 , 507 A.2d 613 (alteration in original) (quoting Levy v. Glens Falls Indem. Co., 210 Md. 265, 273 , 123 A.2d 348 (1956)). In Bond v. Slavin, 157 Md.App. 340, 351 , 851 A.2d 598 (2004), this Court observed that the “date that a pleading or paper is ‘filed’ is the date that the clerk receives it----A pleading or paper is filed by actual delivery to the clerk....” (Citation and internal quotations omitted) (alterations and emphasis in original).

Rule 1-301 (a), entitled “Form of court papers,” requires that “|e]very pleading and paper filed shall contain a caption setting forth (1) the parties or, where appropriate, the matter, (2) the name of the court, (3) the assigned docket reference, and (4) a brief descriptive title of the pleading or paper which indicates its nature.” Rule 1-301, however, does not speak to the situation where a pleading or paper complies with the aforementioned requirements of form, but contains an error in the name of the court or the docket number. In Cherry , the Court of Appeals acknowledged that in its prior articulation of what constitutes a “filing,” there is absent “any requirement that the paper be properly captioned or an original document.” 306 Md. at 92 , 507 A.2d 613 . ⁷⁶ Applying the above principles to the facts of the case sub judice, we conclude that Cave properly filed his Motion for Reconsideration on December 22, 2006, in the Circuit Court for Carroll County. It is undisputed that the motion was hand-delivered to a clerk of the Circuit Court for Carroll County on December 22, 2006. The clerk was the proper officer to receive the motion, and the Circuit Court for Carroll County was the correct tribunal in which the instant case was being litigated.

The motion correctly listed the names the parties. The clerk then stamped the motion “RCVD 06 DEC 22'06 13:08.” The fact that the caption of the motion incorrectly stated the name of the court and the docket number does not alter the effectiveness of its filing. With Cave’s Motion for Reconsideration having been properly filed, did the court clerk have the authority to refuse to accept the motion for filing because of the erroneous caption? We hold that the court clerk did not have the authority to reject Cave’s Motion for Reconsideration.

We explain. Rule 1-323, entitled “Proof of service,” provides: The clerk shall not accept for filing any pleading or other paper requiring service, other than an original pleading, unless it is accompanied by an admission or waiver of service or a signed certificate showing the date and manner of making service. A certificate of service is prima facie proof of service. In Director of Finance v. Harris, 90 Md.App. 506 , 602 A.2d 191 (1992), this Court held: The only authority that a clerk has to refuse to accept and file a paper presented for filing is that contained in Md. Rule 1-323.

As we noted, that Rule directs the clerk not to accept a paper requiring service “unless it is accompanied by ... a signed certificate showing the date and manner of making service.” Id. at 511 , 602 A.2d 191 (alteration in original). Similarly, in the commentary on Rule 1-323, Paul Niemeyer and Linda Schuett write: “Under most circumstances, however, regardless of how defective or deficient the pleading or paper is, the ⁷⁷ clerk may not reject it ..., but rather should leave it to the court and the parties to determine the sanction for the defect or deficiency.” Paul Niemeyer & Linda M. Schuett, Maryland Rules Commentary 48-49 (8d ed.2003). In the instant case, the Motion for Reconsideration presented to the circuit court clerk on December 22, 2006, contained a “signed certificate showing the date and manner of making service.” Md. Rule 1-323. Accordingly, notwithstanding the errors in the name of the court and docket number in the caption, the clerk did not have the authority to refuse to accept the motion for filing and thus erred by returning the motion to Cave’s counsel with the date stamp stricken.

B. Trial courts are vested with the common law authority to correct certain errors nunc pro tunc. Sapero & Sapero v. Bel Air Plumbing & Heating Contractors, 41 Md.App. 251, 259 , 396 A.2d 317 (1979). We have previously examined the definition of the phrase nunc pro tunc: Lat. Now for then.

A phrase applied to acts allowed to be done after the time they should be done, with a retroactive effect, i.e., with the same effect as if regularly done. Nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in record of action really had but omitted through inadvertence or mistake. Nunc pro tunc merely describes inherent power of court to make its records speak the truth, i.e., to record that which is actually but is not recorded. Nunc pro tunc signifies now for then, or, in other words, a thing is done now, whicli shall have the same legal force and effect as if done at time when ought to have been done.

Short v. Short, 136 Md.App. 570, 578-79 , 766 A.2d 651 (2001) (citations omitted) (emphasis added). The court’s nunc pro tunc power is “essential to [its] efficient existence” but its use is restricted only “[t]o make the ⁷⁸ Record speak the truth and conform to the facts.” Sapero & Sapero, 41 Md.App. at 259 , 396 A.2d 317 (internal quotations omitted). The court is authorized to make only such corrections as will make the record conform to the actual facts occurring in the progress of the cause, or in other words, make the Record speak the truth. ■ It cannot so change the Record as to make it inconsistent with the facts, or make it state what is not true. Id.

(internal quotations omitted). As early as 1869, the Court of Appeals explained: If satisfied either from his [(the judge’s)] own knowledge of what had actually occurred in the progress of the cause—or from evidence adduced—that the docket entries as made by the clerk were erroneous and incomplete, it was within his power and his plain duty to have them corrected, so that a full, true and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause might be sent up in obedience to the writ. Greff v. Fickey, 30 Md. 75, 77 (1869). The purpose of a nunc pro tunc order is also “ ‘to correct a clerical error or omission as opposed to a judicial error or omission.’ ” In re Timothy C., 376 Md. 414 , 430 n. 10, 829 A.2d 1024 (2003) (quoting Prince George’s County v. Commonwealth Land Title, 47 Md.App. 380, 386 , 423 A.2d 270 (1980)).

We have adopted the following approach to determine “whether an error in a judgment is of a judicial character, or a mere clerical mistake which may be corrected in the court where it was made at any time, saving intervening rights of third parties and with due regard to equitable considerations[:]” [The test is] whether the error relates to something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously, or a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error. If the difficulty is found to be of the latter charactér, it may be remedied as a mere clerical mistake, which will not have the ⁷⁹ effect to change the judgment pronounced in the slightest degree, but merely to correct the record evidence of such judgment. In re Timothy C., 376 Md. at 430 -31 n. 10, 829 A.2d 1024 (internal quotations omitted). We have held, as previously stated, that the court clerk erred by refusing to accept for filing Cave’s Motion for Reconsideration.

The correction of such clerical error nunc pro tunc to reflect the actual fact that Cave’s Motion For Reconsideration was filed on December 22, 2006, does not have the effect of changing the judgment or supplying omitted action. See Short, 136 Md.App. at 579 , 766 A.2d 651 . Rather, ordering the date of the motion effective retroactively makes the record speak the truth and conform to the facts, namely, recording what was actually done then but not recorded through such inadvertence or mistake. See id. at 578-79 , 766 A.2d 651 .

Therefore, we conclude that the court’s January 19, 2007 order accepting Cave’s Motion For Reconsideration for filing as of December 22, 2006, was an appropriate order nunc pro tunc. C. Nevertheless, Klliott argues that the circuit court did not have the authority to enter the nunc pro tunc order on January 19, 2007, because it was entered more than 30 days from the entry or the order granting Elliott full relief on December 13, 2006. Elliott states: [Cave] was aware, within the thirty date [sic] time frame from final judgment . .., that the Circuit Court for Carroll County had not accepted for filing nor docketed his Motion For Reconsideration. [Cave] at that time could have timely filed a Rule 2-535 request for revisory power, a Rule 8-202 Notice of Appeal, or both, but he chose to do neither and let the thirty days lapse. Therefore, according to Elliott, the court’s nunc pro time order and “all orders that flowed from it are nullities.” We disagree and explain. ⁸⁰ On January 4, 2007, Cave filed a Motion to Accept Filing of Motion for Reconsideration in the Circuit Court for Carroll County, requesting that the court accept a motion for reconsideration identical to the motion Cave filed on December 22, 2006, but with a corrected caption.

As the basis for his request, Cave stated that “the motion was timely filed, albeit with an erroneous caption.” Cave’s Motion to Accept Filing of Motion for Reconsideration was filed after 10 days but within 30 days of the court’s final judgment entered on December 13, 2006. Such motion, in our view, was a Rule 2-535 motion, because it called upon the court to exercise its post-judgment revisory power. Cf. Sieck v. Sieck, 66 Md.App. 37, 44-45 , 502 A.2d 528 (1986) (stating that “a motion to revise the judgment, however labeled, filed within ten days after the entry of judgment will be treated as a Rule 2-534 motion”).

We conclude that the court’s revisory power under Rule 2-535(a) 3 necessarily entails the authority to nunc pro tunc the entry of a post-judgment motion, properly filed but mistakenly rejected by the clerk’s office, to reflect the day of its actual filing, here December 22, 2006. The court’s nunc pro tunc order gave Cave’s Motion For Reconsideration “the same legal force and effect as if done at the time it ought to have been done.” See 91st Street Joint Venture v. Goldstein, 114 Md. App. 561, 582 , 691 A.2d 272 (1997) (emphasis added). Consequently, following the entry nunc pro tunc order, the record reflected Cave’s filing of the Motion For Reconsideration on December 22, 2006, which was within ten days after the entry of the court’s final judgment on December 13, 2006. Having been filed within that ten day period, Cave’s Motion for Reconsideration is treated as a Rule 2-534 motion, thereby ⁸¹ “staying] the time for appeal under [Rule 8-202(c)] and preventLing] the noting of an appeal until the motion is resolved.” Sieclc, 66 Md.App. at 41, 44-45 , 502 A.2d 528 .

Accordingly, the circuit court’s entry of judgment on December 13, 2006, lost its finality for purposes of appeal, and Cave timely noted this appeal on March 15, 2007, which was within 30 days of the court’s disposition of his Motion For Reconsideration on February 15, 2007. See id.

II

Preservation Elliott also argues, as a basis for his motion to dismiss, that, pursuant to Maryland Rule 8-131 (a), Cave waived his right to appeal the circuit court’s decision to award back pay and benefits. Specifically, Elliott asserts that Cave failed to contest Elliott’s entitlement to back pay and benefits in his Response to Order for Show Cause or at the August 25, 2006 show cause hearing, and that Cave first challenged the court’s authority to grant back pay and benefits in his post-trial Motion for Reconsideration. Elliott concludes that the circuit court “had no opportunity to consider the issue [of back pay and benefits] at trial and [Elliott] had no chance to prepare to argue the issue.” Cave concedes that the issue of back pay and benefits was never addressed by the parties or by the trial court during the show cause hearing. Cave asserts, however, that, because the issue was part of Cave’s Motion for Reconsideration and that motion was denied by the trial court, “the matter was before the trial court and was thus preserved for appellate review.” Cave is wrong.

In his complaint, Elliott expressly requested relief in the form of “payment of all back pay and benefits.” Cave did not raise the issue of the court’s authority to award back pay and benefits before the circuit court in his Response to Order to Show Cause or at the hearing held pursuant to the show cause order. Cave first contested the court’s authority to award back pay and benefits in his post-trial Motion for Reconsidera ⁸² tion. We encountered a similar factual setting and nonpreservation argument in Steinhoff v. Sommerfelt, 144 Md.App. 468 , 798 A.2d 1195 (2002). In Steinhoff , the parties engaged in extensive litigation of the appellee’s request for alimony, monetary award, and attorney’s fees and costs. 144 Md.App. at 469 , 798 A.2d 1195 .

At no time during the trial did the appellant raise the issue of the appropriateness of a Qualified Domestic Relations Order (“QDRO”) as a mechanism for payment of a monetary award. Id. at 483 , 798 A.2d 1195 . The trial court issued an Opinion and Order that granted the appellee, among other things, a monetary award of $191,403, with no mention of a QDRO. Id. at 470 , 798 A.2d 1195 .

The appellant then moved to alter or amend the judgment to permit payment of the monetary award by way of a QDRO, which was denied by the trial court. Id. at 469, 483 , 798 A.2d 1195 . Writing for this Court, Judge Charles Moylan, Jr. determined that, because the subject of QDRO was never raised at the trial, “[tjhere is before us, therefore, nothing preserved for appellate review.” Id. at 483 , 798 A.2d 1195 . The fact that the issue was raised in the appellant’s motion to alter or amend did not change the result.

Id. at 483-84 , 798 A.2d 1195 . Judge Moylan observed that, if the appeal was from the order granting the monetary award, as opposed to the denial of the motion to alter or amend, 4 “we will not allow the appellant’s reference to raising the issue in a post-trial motion to serve as a smokescreen obscuring the earlier and fatal non-preservation.” Id. at 484 , 798 A.2d 1195 . ⁸³ In the case mb judice, Cave declared in his brief that this appeal “challenges only the order to award [ ] Elliott back pay and benefits.” Consequently, because Cave did not raise the issue of the authority of the circuit court to award back pay and benefits at the trial that resulted in such award, the issue has not been preserved for appellate review, notwithstanding Cave’s subsequent raising of the issue in his Motion for Reconsideration. See Law Offices of Taiwo Agbaje, P.C. v. JLH Props., II LLC, 169 Md.App. 355, 371-72 , 901 A.2d 249 (2006) (holding that the issue of the applicability of Section 8-211 of the Real Property Article to the facts of the case had not been preserved for appellate review where the issue was raised for the first time in the appellant’s motion to alter or amend the judgment under Rule 2-534); see also Brown v. Contemporary OB/GYN Associates, 143 Md.App. 199, 248 , 794 A.2d 669 (stating that a “party who does not raise an issue at trial, and later pursues the point in a post-trial motion, is precluded from raising the substantive issue on appeal.”), cert. denied, 369 Md. 659 , 802 A.2d 438 (2002). This Court, however, does have the discretionary authority under Rule 8-131 (a) to review issues not raised at trial.

Rule 8-131(a) states: (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal. “The second sentence of Rule 8-131(a) sets forth the general proposition that an appellate court ordinarily will not consider an issue that was not raised or decided by the trial court.” Jones v. State, 379 Md. 704, 712 , 843 A.2d 778 (2004) (emphasis in original). “Reposed in the appellate courts ... is ⁸⁴ a discretion nevertheless to decide the issue, exercisable, inter alia, when an appellate ruling would be desirable for trial court guidance.” Burden v. Burden, 179 Md.App. 348, 355 , 945 A.2d 656 (2008). Although there exists “no fixed formula for the determination of when discretion should be exercised,” or any “bright line rules to conclude that discretion has been abused,” we are guided by Rule 8-131(a)’s “twin goals” in deciding whether to exercise our discretion: (1) “whether the exercise of its discretion will work unfair prejudice to either of the parties,” and (2) “whether the exercise of its discretion will promote the orderly administration of justice.” Jones, 379 Md. at 713-15 , 843 A.2d 778 .

Turning to the facts of the instant case, we first ask whether the exercise of our discretion will unfairly prejudice either party. The issue of the trial court’s authority to award back pay and benefits is a pure legal question and “does not depend on the presentation of