Chinwuba v. Larsen

³³⁹ ADKINS, Judge. Does serving notice of a tort claim against a State agency on the Attorney General, instead of on the Treasurer, substantially comply with the notice requirements of the Maryland Tort Claims Act? Does a public official act within the scope of his public duties when he makes statements and disclosures to the press in -violation of a statute that specifically prohibits such publications? Does the Commissioner of the Maryland Insurance Administration, as the head of an independent State agency, have an absolute privilege to make defamatory public statements about persons under agency investigation?

In this appeal, we answer “no” to each of these novel questions. This is another appellate chapter arising from the misfortunes of PrimeHealth Corporation (“PrimeHealth”), a defunct Maryland health maintenance organization (“HMO”). Christian Chinwuba, M.D., appellant, was the primary owner of PrimeHealth, until the State placed the insolvent HMO into receivership. In this case, Chinwuba complains about certain statements and actions of the Maryland Insurance Administration (the “MIA”) and its commissioner, Steven B. Larsen (the “Commissioner”), appellees, during the investigation leading up to that receivership.

In the Circuit Court for Prince George’s County, Chinwuba filed a four count complaint against the MIA and Larsen, alleging defamation, false light invasion of privacy (“false light”), abuse of process, and violation of due process under Articles 24 and 26 of the Maryland Declaration of Rights. The MIA and Larsen successfully moved to transfer the case to the Circuit Court for Baltimore City, and then moved to dismiss the complaint, or, in the alternative, for summary judgment. That court held that Chinwuba’s [cjlaims should properly be dismissed for ... (1) failure to comply with the Maryland Tort Claims Act, (2) the Commissioner falls within the [statutory and [cjommon [l]aw [i]m-munity, (8) the Commissioner falls within absolute privilege and some statements fall within the [jjudicial [proceedings [pjrivilege and, (4) failure to state a claim for [ajbuse of ³⁴⁰ [pjrocess, and (5) [Chinwuba] received [djue [pjrocess and failed to allege harm to any cognizable interest.

On appeal, Chinwuba challenges all of these adverse decisions, arguing: I. The Circuit Court for Prince George’s County erred in transferring the case to Baltimore City.

II

The Circuit Court for Baltimore City erred in dismissing all four counts of his complaint, because A. he substantially complied with the notice requirements of the Maryland Tort Claims Act (“MTCA”), by serving his complaint on the Attorney General; B. Larsen did not have governmental immunity to make statutorily prohibited statements and disclosures about the substance of the MIA’s charges against Prime-Health and Chinwuba, during the midst of the MIA’s investigation and examination of PrimeHealth; C. Larsen did not have an absolute privilege, as the head of a State agency, to make statements that damaged Chinwuba’s reputation, and he lost any conditional privilege to do so by making statements in violation of the nondisclosure statute he was charged with enforcing; D. the absolute privilege for statements made in judicial proceedings cannot shield Larsen from liability for his statements to the press; E. Chinwuba adequately alleged an abuse of process; and P. there were factual disputes over whether Chinwuba received due process. Chinwuba’s appeal raises three new questions (discussed infra in parts A, B, and C of section II), regarding the circumstances in which the Commissioner of the MIA may be held liable for making allegedly tortious publications to the press during an MIA investigation. Although we find no error in the transfer, we agree with Chinwuba that his complaint should not have been dismissed in its entirety. In particular, we conclude that, if Larsen made public statements that defamed Chinwuba or placed him ³⁴¹ in a false light, and if he did so in violation of a statute that required him to refrain from making such statements, then Larsen stepped outside any immunity or privilege protections that his public office afforded him.

Given the allegations in Chinwuba’s complaint and the newspaper articles attached to it, we hold that Chinwuba stated cognizable claims for defamation and false light. We shall affirm the judgments in favor of the MIA and in favor of Larsen on the abuse of process and due process counts, but vacate the judgments entered in Larsen’s favor on the defamation and false light counts. FACTS AND LEGAL PROCEEDINGS Appellees moved to dismiss Chinwuba’s complaint, and, in the alternative, for summary judgment. In reviewing the dismissal of a complaint, we credit the allegations of the complaint, and draw all reasonable inferences in favor of the plaintiff.

See Shah v. HealthPlus, Inc., 116 Md.App. 327, 332 , 696 A.2d 473 , cert. denied, 347 Md. 682, 702 A.2d 291 (1997). Consequently, this opinion features Chinwuba’s version of events, even though a fact-finder ultimately may not accept that version as true. In particular, we are required to assume for purposes of this appeal that the statements about which Chinwuba complains were both false and harmful to his reputation. 1 PrimeHealth’s Certification As A Maryland HMO Dr. Chinwuba, a radiologist, had an ownership share in PrimeHealth, through ownership of PrimeHealth’s sole shareholder, 2 and was the sole owner of Diagnostic Health Imaging ³⁴² Systems, Inc. (“DHIS”). In November 1995, PrimeHealth applied to the MIA for a certificate of authority to operate as an HMO in Maryland.

In support of the application, Chinwu-ba submitted an affidavit describing a transfer of certain medical equipment by DHIS to PrimeHealth. The purpose of the transfer was to ensure that PrimeHealth had a minimum surplus of $1.5 million in assets, as required by the'MIA’s solvency standards for health maintenance organizations. In its initial audit, the MIA raised concerns that PrimeHealth did not meet this requirement. With the “acquisition” of the medical equipment from DHIS, PrimeHealth had sufficient assets to satisfy the standard.

In December 1996, however, “DHIS became totally operationally defunct.” Based on the effect of this transfer on DHIS, the MIA became concerned that DHIS creditors might be able to challenge it as a fraudulent conveyance. On August 28, 1996, the MIA asked Chinwuba to provide a notarized statement disclosing “[a]ny and all liabilities or debts of DHIS, and any and all liens or encumbrances on the assets of DHIS immediately preceding the gift of assets to PrimeHealth.” Chinwuba was asked to attest that neither he nor DHIS was aware of any creditors “that could have the gift of DHIS’ accounts receivable and equipment set aside or annulled to satisfy their claim or levy” or “that would force DHIS to file for bankruptcy in the foreseeable future.” Chinwuba responded to the MIA’s request on September 6, 1996. He provided a notarized certification disclosing debts secured by the equipment and DHIS’s general debts and liabilities, including accounts payable, taxes, and deferred revenue. That same day, an MIA examiner contacted Chin-wuba by facsimile letter to request that he specifically attest that “DHIS does not have any other liabilities or debts or any liens or encumbrances on the assets of DHIS immediately preceding the gift of assets to PrimeHealth with exception [of] those stated in this confirmation.” Immediately upon receipt of this request, Chinwuba revised his certification to include verbatim the language requested by ³⁴³ the MIA examiner.

He submitted this revised and notarized certification to the MIA on the same day. Later that day, Chinwuba became concerned about whether the revised certification was completely accurate. In an effort to correct the revised certification, he created a third certification. This unnotarized certification differed from the second certification by a single word.

Chinwuba added the word “contributed” to his previous statement that “DHIS does not have any other liabilities or debts or any liens or encumbrances on the assets of DHIS.... ” The third certification qualified that assertion by stating that “DHIS does not have any other liabilities or debts or any liens or encumbrances on the ‘contributed’ assets of DHIS[.]” In November 1996, relying on Chinwuba’s statements in all three certifications, the MIA granted PrimeHealth a certificate of authority to operate as an HMO. Concerns About Chinwuba’s Representations To The MIA By early 1998, the MIA claimed that it had discovered millions of dollars in judgments against DHIS, that these judgments had been in existence when DHIS transferred the medical equipment to PrimeHealth, and that none of these judgments had been disclosed in any of Chinwuba’s certifications. In a March 11, 1998 letter, Commissioner Larsen informed PrimeHealth that the MIA had “grave concéms covering a number of critical areas relating to PrimeHealth’s ongoing ability to maintain licensure,” and outlined those concerns. The opening paragraph of the letter acknowledged that the MIA already had begun a “review” of the gift of medical equipment that Chinwuba certified had been made by DHIS to PrimeHealth.

As you know, the [MIA] has been conducting a review of PrimeHealth’s status as a licensee in light of recent disclosures that have come to light relating to the company’s ownership and to the status of certain assets that were gifted to PrimeHealth in order to satisfy statutory solvency requirements. Frankly, facts gleaned from our review, and in particular your responses to recent inquiries by this ³⁴⁴ agency, have served to raise more questions than have been answered.... If written responses are not provided as set forth on page 8 of this letter which fully and adequately address the concerns set forth, the [MIA] will have no choice but to pursue appropriate action authorized under the laws of this State. Among the cited concerns were DHIS liabilities at the time of the “gift,” Chinwuba’s failure to disclose such liabilities in his certifications to the MIA, and allegedly conflicting statements regarding the ownership and management of PrimeHealth.

With respect to the DHIS liabilities, Larsen wrote that “[r]ecently, during the course of our investigation, the [MIA] has uncovered a substantial number of judgments against DHIS which existed at the time of the conveyance of the equipment to PrimeHealth and which have not been extinguished in the court records of Prince George’s County.” Larsen specifically stated that “[t]he veracity of [Chinwuba’s] critical notarized statement [regarding the existence of creditors that could challenge the DHIS transfer of the medical equipment to PrimeHealth] is ... in doubt.” Asserting that he “intend[ed] to continue [his] inquiry into this matter,” Larsen demanded “a full explanation as to why Dr. Chinwuba certified that no additional judgments existed when the court records clearly indicate otherwise; ... and why the [MIA] should not have concerns relating to the management based on the criteria listed above.” PrimeHealth responded through its attorneys, by letter dated March 27, 1998. The letter was accompanied by affidavits and attachments that purported to address “the three areas of concern, ownership/control, the transfer of assets to PrimeHealth, and the fitness of management, which were raised in [Larsen’s] letter of March 11.” PrimeHealth interpreted the MIA’s concerns regarding its management team as related to “your interpretation of Dr. Chinwuba’s notarized statement of September 6,1996.” In the letter and a supporting affidavit, PrimeHealth took the position that “Dr. Chinwu-ba was correct in his assertion that the subject equipment was ³⁴⁵ unencumbered at the time it was transferred to PrimeHealth, except as otherwise disclosed to the [MIA].” Larsen replied to PrimeHealth’s explanation letter, by letter dated March 31, 1998, which set forth “new and continued concerns.” The MIA issued a draft “Limited Scope Examination Report” (the “proposed report”), detailing various deficiencies in PrimeHealth’s operations. 3 Among the matters addressed in the proposed report were Chinwuba’s certifications regarding the transfer of medical equipment. The proposed report stated that those certifications were false and misleading, in that they failed to disclose the DHIS liabilities. Larsen’s Statements And Disclosures To The Press Chinwuba alleged in his complaint that “[s]ometime in February and March 1998, Larsen ... released his March 11th letter, PrimeHealth’s March 27th letter and other documents to the media and the public .... and made verbal statements regarding his investigation of PrimeHealth and Chinwuba to the media and the public.” These disclosures resulted in “numerous articles published in the Baltimore Sun and Washington Post, ” copies of which Chinwuba attached as exhibits to his complaint.

These articles initially related to a controversy involving a former Maryland state senator, who was then under investigation for exchanging political favors for improper payments, including payments from PrimeHealth. Later, the focus of the articles became PrimeHealth itself, and included references to Chinwuba and Larsen’s contentions that Chinwuba had used deception to obtain MIA certification. They outlined the MIA’s investigation, charges, and viewpoint, and named Larsen as a source of information. Stories attributed to information that Larsen allegedly provided during this period included the following articles: ³⁴⁶ • Charles Babington & Avram Goldstein, Top Official Questions Md. HMO’s License, Wash.

Post, Mar. 13, 1998, at Bl. Maryland’s top insurance regulator has expressed “grave concerns” about whether ... PrimeHealth Corp., can keep its license to serve Medicaid patients because of unanswered questions about who owns the firm and how it obtained many of its assets.... In a sternly worded letter delivered Wednesday to Prime-Health’s president, ...

Larsen said PrimeHealth has until March 20 to answer questions about who owns the company and whether it has clear title to its assets. Otherwise, the commissioner will take “appropriate action,” the letter said.... Larsen demanded sworn testimony explaining what he called contradictory documents, and he threatened to invoke perjury laws if, for example, PrimeHealth fails to reveal who its true owners are.... Questions about PrimeHealth center on its relationship with DHIS....

On Sept. 6, 1996, Chinwuba wrote that he knew of no indebtedness “that could set aside, annul or challenge” his gift to PrimeHealth, Larsen’s letter said. In light of the numerous liens existing then and now, Larsen’s letter said, “the veracity of this critical notarized statement is therefore in doubt.” • Walter F. Roche, Jr. & Scott Higham, Officials reviewing PrimeHealth documents, Balt. Sun, Apr. 1, 1998 (online version). Maryland insurance officials said yesterday they will spend the weekend reviewing documents delivered by Prime-Health Corp. to determine whether the Lanham-based company should continue to operate in Maryland as a health maintenance organization.

In the midst of two grand jury investigations of [a] former [state senator] and his ties to health companies such as PrimeHealth, the Maryland Insurance Administration ordered a sweeping review of the company last month.... ³⁴⁷ Insurance Commissioner Steven B. Larsen extended a deadline until yesterday for PrimeHealth to answer questions about the ownership of the company and its financial stability. Larsen said the company delivered documents late yesterday, and agency officials will review them before making any decision.... Larsen said in his letter that the company failed to disclose judgments against the firm totaling about $3 million. • Charles Babbington, Insurance Chief Urges Md. To Curb Payments to HMO, Wash. Post, Apr. 2, 1998, at D7.

Maryland’s insurance commissioner said yesterday that state payments to Lanham-based PrimeHealth Corp. should be suspended or placed under state control because the managed care company has not provided adequate answers to questions about its debts and ownership. Commissioner Steven B. Larsen asked the state health department to withhold further Medicaid reimbursements to PrimeHealth or to place them in “a supervised bank account” that essentially would give the state control over how the company uses its money. In a letter to PrimeHealth, Larsen said he continues to worry “about possible fraudulent conveyances” of valuable medical equipment that was crucial to PrimeHealth’s start-up in 1996. The letter was the latest blow to the Prince George’s County health maintenance organization....

At Larsen’s request last month, the health department delayed payment of nearly $2.5 million to PrimeHealth, and an official said that money would continue to be held for the time being .... PrimeHealth officials .... would not answer questions yesterday about Larsen’s latest letter.... Larsen has questioned the truthfulness of affidavits filed by the company. PrimeHealth last week acknowledged that its primary owner is radiologist Christian E. Chinwuba, who was not identified as owner in those affidavits.

Another Chinwuba company, Diagnostic Health Imaging Services, was more than $6 million in debt when he shifted its most valuable medical equipment to PrimeHealth. ³⁴⁸ Larsen has said Diagnostic Health’s creditors might make legal claims against PrimeHealth’s assets to settle debts. In his letter yesterday, Larsen said PrimeHealth has been “completely inconsistent” in its explanations of Diagnostic’s debts and their possible effect on PrimeHealth.... Larsen wrote: “I am concerned that PrimeHealth may be using Medicaid funds to pay the debts of an unrelated, unlicensed corporation.” PrimeHealth’s Receivership And Finalization Of The MIA’s Proposed Report On August 23,1998, the Commissioner initiated receivership proceedings against PrimeHealth in the Circuit Court for Baltimore City. Among the cited reasons were that Prime-Health’s management had provided inconsistent, false, and misleading information to the MIA in order to obtain licensing and during the investigation.

In September 1998, PrimeHealth filed exceptions to the proposed report, and requested a hearing on the proposed report and exceptions. As a result of negotiations with the State, on October 1,1998, PrimeHealth agreed to the receivership in a consent order. As receiver under the consent order, the Commissioner withdrew PrimeHealth’s hearing request. 4 On November 25, 1998, Chinwuba’s counsel filed exceptions to, and requested a hearing on, the proposed report, purportedly on behalf of unidentified “owners, officers and directors of PrimeHealth[.]” Citing the consent order and the receivership, an MIA hearing officer ruled that PrimeHealth’s owners, officers and directors lacked standing to challenge the proposed report. Nevertheless, Chinwuba was allowed to submit information in support of his exceptions to the proposed report.

He did so on December 31, 1998. Responding to Chinwuba’s exceptions point-by-point, the MIA filed an addendum to the proposed report. ³⁴⁹ On March 8, 1999, the Commissioner petitioned the circuit court to approve the proposed report, as amended. On March 4, the court did so. On March 8, 1999, the Commissioner finally adopted the report, which included the MIA’s addendum, PrimeHealth’s exceptions, depositions of Chinwuba and others, and all of the material submitted by Chinwuba.

On March 12, 1999, Chinwuba and Goldmark Friendship, LLC (“Goldmark”), filed a motion to reconsider the March 4 order authorizing the Commissioner to finalize the report. On April 7, 1999, Chinwuba filed on his own behalf a petition for judicial review of the order finalizing the report. On April 12, Chinwuba’s attorney also filed separate petitions for judicial review on behalf of Goldmark and PrimeHealth. On May 10, the Baltimore City Circuit Court dismissed the petition filed on behalf of PrimeHealth, because it constituted a collateral attack on the consent order.

Chinwuba, purportedly on behalf of PrimeHealth, appealed that dismissal to this Court. This Action And Other Related Suits On June 21, 1999, Chinwuba filed this suit, in the Circuit Court for Prince George’s County. Chinwuba alleged, inter alia, that “[sjometime in February and March 1998,” Larsen released his March 11 letter, PrimeHealth’s March 27 reply letter, “and other documents to the media and the public.” He complained that Larsen’s disclosures were both defamatory and in violation of the Maryland Insurance Code. He alleged that “Larsen’s unlawful defamatory statements were the subjects of numerous articles published in the Baltimore Sun and Washington Post from February or March 1998.” He attached to his complaint a number of articles, including those excerpted above, and other later-published ones.

In August 1999, Goldmark filed another action in the Baltimore City Circuit Court, seeking to prevent the sale of PrimeHealth in the receivership proceedings. It argued that PrimeHealth’s president had not been authorized to consent to the receivership and that PrimeHealth was not insolvent. ³⁵⁰ With two petitions for judicial review filed by Chinwuba and Goldmark still pending in Baltimore City Circuit Court, and Goldmark’s separate action to stop the sale of PrimeHealth also pending in the Baltimore City court, the MIA and the Commissioner moved to either dismiss or transfer Chinwuba’s Prince George’s County complaint. After consulting with the administrative judge in Baltimore, the administrative judge for the Prince George’s County Circuit Court ordered this action transferred to Baltimore City. After the transfer, the MIA and Larsen renewed their motion to dismiss, or, in the alternative, for summary judgment.

The trial court granted the motion. In a written opinion and order, the court held that Chinwuba’s failure to serve the Treasurer barred all of his claims. As alternative reasons for dismissing the claims, the court also concluded that the claims were barred by governmental immunity, because “nothing in the Complaint properly alleges any conduct outside of the scope of the Commissioner’s public duties,” and Chinwuba failed to allege with specificity any facts from which an inference of malice could be drawn. With respect to the individual counts, the court dismissed the defamation and false light counts because the statements Chinwuba complained about were either protected by absolute privilege for judicial proceedings, or protected by absolute privilege for the head of a state agency acting in the course of his official duties.

He dismissed the abuse of process count because the complaint did not allege any misuse of process or any legally cognizable damage. He granted summary judgment on the due process count because, inter alia, Chinwuba did not request the hearing he claims he should have gotten. This appeal followed. DISCUSSION I. The Trial Court Did Not Err In Transferring The Case We first address Chinwuba’s contention that the trial court erred in granting appellees’ motion to transfer this case from ³⁵¹ Prince George’s County, where Chinwuba lives, to Baltimore City, where other cases involving the same parties were pending.

Chinwuba argues that the transfer improperly deprived him of his choice of venue and his right to a jury trial. We disagree. Under Md. Rule 2-327(d), [i]f civil actions involving one or more common questions of law of fact are pending in more than one judicial circuit, the actions ... may be transferred ... for consolidated pretrial proceedings or trial to a circuit court in which ... the actions to be transfeired might have been brought, and ... similar actions are pending.... A transfer under this section shall not be made except upon ... a finding by the circuit administrative judge having administrative authority over the transferor court that ... the transfer will promote the just and efficient conduct of the actions to be consolidated and not unduly inconvenience the parties and witnesses in the actions subject to the proposed transfer; and ... acceptance of the transfer by the circuit administrative judge ... [of] the court to which the actions ... will be transferred. “[W]here a litigant is faced with a real multiplicity of suits involving the same issues, Rule 2-327(d) furnishes the appropriate avenue for relief.” State v. 91st St. Joint Venture, 330 Md. 620, 630-31 , 625 A.2d 953 (1993).

At the time of this transfer, several other actions involving these same parties and issues had been submitted to a single judge in the Baltimore City Circuit Court. By September 1999, Chinwuba repeatedly had sought judicial review of actions taken by appellees in connection with PrimeHealth. He asked the Baltimore court to reconsider its decision to finalize the proposed report. In addition, Chinwuba, PrimeHealth, and Goldmark filed separate petitions for judicial review of the final report.

These Baltimore suits involved the same parties and raised the same or related questions concerning an interwoven set of operative facts, ie., the actions of the MIA and Larsen ³⁵² with respect to PrimeHealth. Because the MIA and Larsen cited Chinwuba’s actions during the certification process as grounds for their prior actions, all of these suits involved the same critical issue that Chinwuba raised in this action-whether Chinwuba made false or deceptive statements to obtain and maintain certification to operate PrimeHealth as a Maryland HMO. To resolve Chinwuba’s claims in this action, the Prince George’s court would have had to acquaint itself with a voluminous record that the Baltimore court already had been required to master. In these circumstances, the Prince George’s court appropriately exercised its discretion to transfer Chinwuba’s newest claims to a court that was actively engaged in resolving claims involving related factual and legal questions.

In this respect, the transfer “promote[d] the just and efficient conduct of the actions” and did “not unduly inconvenience the parties and witnesses in” this action. See Md. Rule 2-327(d). We find no merit in either of Chinwuba’s grievances about the transfer. His complaint that he was denied his preferred venue, while true, has no persuasive value.

Transfers under this rule necessarily cause the plaintiff to lose his or her chosen venue, because such transfers may be made only if venue would have been appropriate in both the transferor court and the transferee court. See Urquhart v. Simmons, 339 Md. 1, 19 , 660 A.2d 412 (1995). Thus, the rule explicitly authorizes the transferor court to deny the plaintiff his or her choice of venue when it determines that doing so would best serve the interests of justice. See Odenton Dev.

Co. v. Lamy, 320 Md. 33, 41 , 575 A.2d 1235 (1990). Chinwuba’s contention that he would be denied his right to a jury trial is also groundless. Chinwuba does not point to any ruling indicating that the Baltimore court could not or would not give him a jury trial on these claims. If he presented a jury question on any of the issues raised by his complaint, Chinwuba would be entitled to litigate those matters to a Baltimore City jury.

The transfer in no way deprived him of a jury trial. He is simply wrong to conclude otherwise. ³⁵³ We turn now to the Baltimore court’s reasons for dismissing all of Chinwuba’s claims against both the MIA and Larsen.

II

The Trial Court Properly Dismissed Chinwuba’s Claims Against The MIA, But Erred In Dismissing All Of His Claims Against Larsen Chinwuba argues that the trial court erred in dismissing all of his claims against both the MIA and Larsen. In support, he points to a number of separate errors that cumulatively resulted in the improper dismissal of viable claims. We shall address each of these contentions seriatim. A. Chinwuba’s Failure To Submit His Claims To The State Treasurer Barred All Of His Claims Against The MIA The first novel question raised in this appeal is whether notice of a claim given to the Attorney General, rather than to the Treasurer, constitutes substantial compliance with the Maryland Tort Claims Act (“MTCA”).

See Md.Code (1984, 1999 RepLVol., 2001 Cum.Supp.), § 12-101 et seq. of the State Government Article (“SG”). Chinwuba argues that the definition of substantial compliance is broad enough to encompass notice to the Attorney General in lieu of the State Treasurer. We disagree. We have described the notice provisions of the MTCA as a “principal condition” of the State’s waiver of its sovereign immunity.

See Gardner v. State, 77 Md.App. 237, 246 , 549 A.2d 1171 (1988). To initiate an action under the MTCA, the claimant must “submit! ] a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim.” SG § 12-106(b). “[SJervice of the complaint and accompanying documents is sufficient only if made on the Treasurer.” SG § 12-108(a). The notice requirement, in effect, creates an adminis ³⁵⁴ trative condition precedent that claimants must satisfy before they may sue in court. See Simpson v. Moore, 323 Md. 215, 223, 225 , 592 A.2d 1090 (1991).

For this reason, courts have no jurisdiction to entertain claims by claimants who fail to exhaust their administrative remedies before the Treasurer. See id. Chinwuba admits that he did not serve his claim on the Treasurer within the one year limitations period. Instead, he attempts to fit himself within the parameters of cases suggesting that substantial compliance with the MTCA notice requirements can satisfy sections 12-106 and 12-108 of the MTCA.

In Simpson v. Moore, the Court of Appeals discussed its decisions concerning an analogous service requirement governing notice of tort claims against counties and municipalities. The Simpson Court noted that it had “held that substantial compliance with the notice statute will suffice.... ” Id. at 224 , 592 A.2d 1090 . In Conaway v. State, 90 Md.App. 234 , 600 A.2d 1133 (1992), we relied on the Simpson Court’s language to hold that in some circumstances, substantial compliance with the notice requirements of the MTCA may suffice. We noted that our holding “is also consistent with § 12-102, which directs that the MTCA is to be ‘construed broadly, to ensure that injured parties have a remedy.’ ” Id. at 242 n. 3, 600 A.2d 1133 .

Applying this standard, we held that a claimant had sátisfied the notice requirements of the MTCA even though the claim he submitted to the Treasurer failed to demand a specific amount of damages, as required by section 12-107(a). See id. at 250 , 600 A.2d 1133 . Since then, the Court of Appeals has acknowledged the viability of a “substantial compliance” argument under the MTCA. In Condon v. State, 332 Md. 481 , 632 A.2d 753 (1993), the Court approved our definition of substantial compliance as “communication that provides the State ‘requisite and timely notice of facts and circumstances giving rise to the claim.’ ” Id. at 497 , 632 A.2d 753 (quoting Conaway, 90 Md.App. at 246 , 600 A.2d 1133 ). ³⁵⁵ The doctrine of substantial compliance, however, is not license to ignore the clear mandate of the MTCA.

In Condon , the Court of Appeals warned that courts may not “infer an intent where the legislature has clearly indicated the contrary.” Id. Similarly, in Simpson , the Court declined to use section 12-202 “as a springboard for judicial legislation” in cases where there is no ambiguity in the statute. Simpson, 323 Md. at 227 , 592 A.2d 1090 . It explained that “[provisions such as this, and the canon of construction favoring a liberal interpretation of remedial legislation, are helpful in resolving ambiguities in statutes, but do not permit us to expand the statute to afford relief where the words of the statute bar that relief.” Id.

We may not “ ‘judicially place in the statute language which is not there’ in order to avoid a harsh result.” Id. at 225 , 592 A.2d 1090 (citation omitted). Thus, “we will not extend or suspend the filing requirements when they are so clear and unambiguous.” Rivera v. Prince George’s County Health Dep’t, 102 Md.App. 456, 469-70 , 649 A.2d 1212 (1994), cert. denied, 338 Md. 117 , 656 A.2d 772 (1995). We find no ambiguity in subsections 12-106(b) and 12-108(a), either when they are considered alone or in pari materia. Both subsections unambiguously state that notice of any MTCA claim must be directed and delivered to the Treasurer.

In fact, the sole purpose of subsection 12-108(a) is to instruct claimants that the one and only method of satisfying this notice requirement is to serve the claim on the Treasurer. If we were to accept Chinwuba’s contention that notice to the Attorney General constitutes substantial compliance with subsections 12-106(b) and 12-108(a), we would be judicially legislating subsection 12-208(a) out of the MTCA. We will not ignore its clear language. “[A] statute should be read so that no part of it is rendered nugatory or superfluous.” Condon, 332 Md. at 491 , 632 A.2d 753 . Neither will we “expand the statute to afford relief where the words of the statute bar that relief.” Simpson, 323 Md. at 227 , 592 A.2d 1090 .

Our decision not to treat service on the Attorney General as the equivalent of service on the Treasurer reflects practical ³⁵⁶ and policy considerations. The effect of holding that service on the Attorney General constitutes substantial compliance with the notice requirements of the MTCA would be to allow claimants, at their option, to cut the Treasurer out of the statutory equation crafted by the legislature, by electing to serve notice of MTCA claims on the Attorney General rather than the Treasurer. 5 There are cogent reasons not to give claimants this choice. See Condon, 332 Md. at 491-94 , 632 A.2d 753 . Notice to the Treasurer serves important public purposes.

Once notified of a timely tort claim against a State agency, the Treasurer considers the fiscal consequences of the claim, and then decides which of several options to pursue. “The Treasurer may ... (1) consider a claim for money damages under this subtitle or delegate wholly or partly this responsibility to other State personnel; and (2) contract for any support services that are needed to carry out this responsibility properly.” SG § 12-107(b). As a result of the early notice required under the MTCA, the Treasurer also has “the opportunity to investigate the claims while the facts are fresh and memories vivid, and, where appropriate, settle them at the earliest possible time.” Haupt v. State, 340 Md. 462, 470 , 667 A.2d 179 (1995). “Unless a contract with a private insurer provides otherwise, the Treasurer or designee may compromise and settle a claim for money damages after the Treasurer or designee consults with the Attorney General.” SG § 12-107(c)(2). Only after the Treasurer finally denies the claim may the claimant proceed in court.

See SG § 12-106(b). In that event, “[u]nless full representation is provided under a contract of insurance, the Attorney General shall defend an action under this subtitle against the State or any of its units.” SG § 12 — 108(b). “[This] procedure allows the State an opportunity to investigate and either settle the claim, or deny the claim ³⁵⁷ and thereby choose to later defend against the substantive merits of the suit in a traditional judicial forum.” Leppo v. State Highway Admin., 330 Md. 416, 428 , 624 A.2d 539 (1993). We reject Chinwuba’s suggestion that he “substantially complied” with subsections 12-106(b) and 12-108(a) because the State suffered no prejudice from his notice to the Attorney General rather than the Treasurer. This argument wholly ignores the central role that the legislature gave the Treasurer when it decided to conditionally waive the State’s sovereign immunity.

Moreover, the Court of Appeals specifically has held that “substantial compliance [with the MTCA] requires more than a mere lack of prejudice to the State.” Johnson v. Maryland State Police, 331 Md. 285, 292 , 628 A.2d 162 (1993). In any event, it is simply incorrect to say that there is “no prejudice” to the State in these circumstances. Chinwuba speculates that the first and only thing the State Treasurer did upon receiving notice of his claim against the MIA was to call in the Attorney General to handle it. Any assumption that the Treasurer’s “review” of his claim would be nothing more than merely assigning legal work to the Attorney General is wrong.

As sections 12-106 and 12-107 make clear, it is the Treasurer who, in reviewing a- claim, considers the impact of tort liability on the State and its budget. Among other matters, the Treasurer determines whether the State is covered by an insurance program, whether to settle or defend the claim, and whether the claim should be paid from the State Insurance Trust Fund. See SG §§ 12-104, 12-107. In contrast, the legislature assigned the Attorney General a more subordinate role — to advise the Treasurer regarding settlements, and to defend against claims not covered by an insurance contract.

See SG §§ 12 — 107(c)(2), 12-108(b). We decline to stretch the substantial compliance doctrine so far that the legislature’s unambiguous requirement of notice to the Treasurer becomes meaningless. We hold that the trial court did not err in holding that Chinwuba failed to state a claim against the MIA. Our holding, however, does not extend to Chinwuba’s claims against Commissioner Larsen.

It appears that the ³⁵⁸ trial court erroneously dismissed these claims for lack of notice to the Treasurer. We acknowledge that there is a surprising lack of language in our case law directly addressing whether a claimant may assert a tort claim against an individual State employee without notifying the Treasurer in accordance with sections 12-106 and 12-108. 6 What is clear from the case law, however, is that the Court of Appeals has not treated a plaintiffs failure to give notice to the Treasurer as a bar to such a claim against an individual State employee. In Sawyer v. Humphries, 322 Md. 247 , 587 A.2d 467 (1991), the Court held that plaintiffs who had not named the State as a defendant and had not given the Treasurer notice of their claims against the individual State police officer who allegedly assaulted them, could pursue their tort claims against the officer. See id. at 252, 262 , 587 A.2d 467 .

Accordingly, we must review the trial court’s other reasons for dismissing all of Chinwuba’s claims against Larsen. As alternate grounds for its judgment, the court held that Larsen had both (1) qualified governmental immunity from tort liability, and (2) an absolute privilege to make all of the allegedly tortious statements about which Chinwuba complained. Chin-wuba contests both holdings. In doing so, he raises a second novel issue, concerning whether, by publicly making tortious statements in violation of a specific nondisclosure statute prohibiting such statements, a public official acts outside the scope of his or her public duties, or acts with malice.

The answer to this question affects our review of both the governmental immunity and privilege holdings of the trial court. We shall address governmental immunity issues in part II.B and absolute privilege issues in part II. C. Preliminarily, however, we note that throughout his brief to this Court, Chinwuba mixed the apples of qualified ³⁵⁹ governmental immunity, which bars a wide variety of common law tort claims against state employees, with the oranges of privilege under defamation law, which is a defense only to a reputational tort claim such as defamation 7 or false light invasion of privacy. 8 This confusion is understandable in the context of this case, because both doctrines share an element central to the resolution of this appeal. Governmental immunity shields public employees from tort liability arising from discretionary actions performed without malice, but only if those actions were “within the scope of the public duties of the State personnel.” Md.Code (1974, 1998 Repl.Vol.), § 5-522(a)(4)(h) of the Courts and Judicial Proceedings Article (“CJ”). 9 The common law doctrine of privilege under defamation law also gives a defensive shield to certain persons who make certain publications in certain circumstances, but, once again, only if the publications were “made in the performance of [their] official duties.” See Restatement (Second) of Torts (“Restatement ”) § 591. ³⁶⁰ This appeal involves a public official who had both qualified governmental immunity and some privilege to make certain defamatory statements.

Chinwuba argues that the trial court erred in holding that Larsen made all of the allegedly improper statements “within the scope of his public duties” and “in the performance of his official duties.” We agree with the trial court that the doctrines of governmental immunity and privilege barred claims based on certain of Larsen’s “on-the-job” statements. But, for the reasons set forth in section II.B.4 below, we agree with Chinwuba that the trial court erred in concluding that Larsen had governmental immunity and an absolute privilege to make public statements and disclosures that he was statutorily prohibited from making. B. The Trial Court Erred In Dismissing The Defamation And False Light Claims Against Larsen On Governmental Immunity Grounds If a complaint alleges facts sufficient to show that a state official’s tortious conduct “either was outside the scope of his ‘public duties’ or was malicious,” then it should survive dismissal on the grounds of governmental immunity. See Sawyer, 322 Md. at 253 , 587 A.2d 467 .

In its memorandum opinion, the trial court concluded that Chinwuba’s “[cjlaims should properly be dismissed” because the allegations in his complaint ³⁶¹ all relate to the [MIA’s] investigation of PrimeHealth and to the Commissioner’s petition to place PrimeHealth into receivership, pursuant to the Commissioner’s statutory authority. Therefore, these acts were done within the scope of his public duties. ... [Ujnder [sjection 2-209, ... the “Commissioner shall make a complete report of each examination made under § 2-205.” ... [Tjhe Commissioner adopted the Report as final on March 8, 1999. As [prescribed] in [sjection 2 — 209(f) “if the Commissioner considers it to be in the public interest, the Commissioner may publish an examination report or a summary of it in a newspaper in the State.” Therefore, based on the Commissioner’s concerns of PrimeHealth as previously stated, the Commissioner instituted the investigation in good faith and the publication of the report from such investigation is authorized under the Insurance Article. (Emphasis added and citation omitted.) The court held that Larsen “[fell] within [statutory and [c]ommon [l]aw [governmental] [(Immunity....” Chinwuba argues that Larsen acted outside the scope of his public duties by making statements and disclosures to the press in violation of Insurance Code prohibitions against publicly disclosing preliminary charges arising from the MIA’s investigation and examination, before PrimeHealth and Chin-wuba had an opportunity to challenge the MIA’s findings and to obtain corrections.

This argument requires us to examine the nature and scope of the Insurance Commissioner’s duties, and then to determine whether Chinwuba adequately alleged that Larsen made public statements or disclosures outside the scope of those duties. 1. The Insurance Commissioner Has A Statutory Duty Not To Disclose Information Relating To An Investigation And Examination Until The MIA’s Report Becomes Final One of Larsen’s duties as Insurance Commissioner is to “examine the affairs, transactions, accounts, records, and as ³⁶² sets of each ... authorized health maintenance organization.” Md.Code (1995, 1997 Repl.Vol., 2001 Cum.Supp.), § 2-205(a)(l)(v) of the Insurance Article (“Ins.”). He must “make a complete report of each examination,” and include in that report “only facts ... [discovered] from the books, records, or documents of the person being examined; or ... determined from statements of individuals about the person’s affairs.” Ins. § 2-209(a),-(b). Before filing a proposed report regarding an examination, however, the Commissioner must “give a copy of the proposed report to the person that was examined.” Ins. § 2-209(c)(l).

If the examinee requests a hearing, the Commissioner “may not file a proposed report until after ... the hearing is held[,] and ... any modifications of the report that the Commissioner considers proper are made.” Ins. § 2-209(c)(2). Those who are not “examinees,” but who are in some way aggrieved by the Commissioner’s actions during an investigation or examination also can seek relief, by filing a written demand for a hearing. See Ins. § 2-210(a)(2). After the report is finalized, “[i]f the Commissioner considers it to be in the public interest, the Commissioner may publish an examination report or a summary of it in a newspaper in the State.” Ins. § 2-209(f).

During the period before the report becomes final, however, there are explicit statutory limits on the type of information that the Commissioner may publicize. Subsection 2-209(g) of the Insurance Article states: (g) Disclosure to regulatory or law enforcement agency ... — (1) Subject to paragraph (2) of this subsection, the Commissioner may disclose the preliminary examination report, investigation report, or any other matter related to an examination made under § 2-205 ... only to the insurance regulatory agency of another state or to a federal, State, local, or other law enforcement agency. (2) A disclosure may be made under paragraph (1) of this subsection only if: (i) the disclosure is made for regulatory, law enforcement, or prosecutorial purposes; ³⁶³ (ii) the agency receiving the disclosure agrees in writing to keep the disclosure confidential and in a manner consistent with this section; and (iii) the Commissioner is satisfied that the agency will preserve the confidential nature of the information. (3) Notwithstanding the provisions of this subsection, final reports of examinations are considered public documents and may be disclosed to the public.

(Emphasis added.) There are important reasons for requiring confidentiality until the MIA completes its investigation and affords aggrieved parties an opportunity to challenge the charges and findings reflected in the MIA’s proposed examination report. The Attorney General has recognized that preserving the confidential nature of the contents of a preliminary examination report preserves the right to contest and obtain corrections to a proposed report. See 78 Md. Att’y Gen. 233 (1993). On behalf of the MIA, Commissioner Larsen recently explained that the MIA construes subsection 2-209(g) as imposing a duty of confidentiality with respect to any information, findings, and charges that have not been “tested” via the administrative procedures established under subsection 2-209(c).

In Nagy v. Baltimore Life Ins. Co., 49 F.Supp.2d 822 (D.Md.1999), aff'd in part and vacated in part on other grounds, 2000 WL 718391 , 2000 U.S.App. LEXIS 12307 (4th Cir. June 5, 2000), the Commissioner successfully moved to quash a subpoena for documents that would have disclosed particular concerns that the MIA had expressed about a certain insurer before the MIA’s examination report became final. See id. at 825 . Among these documents were letters from an MIA examiner to representatives of the company under examination.

The Commissioner argued that disclosing information from the period during which a proposed report remained subject to challenge and correction in an administrative hearing would violate subsection 2-209(g) and “Maryland ... decisional authority.” See id. at 825 . An MIA examiner stated in an affidavit to the federal court that Larsen had authorized him to assert the “privilege” created by subsection 2-209(g). Asserting that under subsection 2-209(g), “the ³⁶⁴ Commissioner is not permitted to disclose information gained from [an] examination except to other State’s insurance regulatory agencies or to law enforcement agencies,” he explained that such disclosures chill the MIA’s deliberative process, by exposing any disclosures by witnesses, and any changes that the MIA might make during a challenge to its preliminary concerns during the investigation and its preliminary findings in the proposed report. For this reason, he asserted, it has been MIA’s “long standing ... practice to protect the confidentiality] of all preliminary examination reports and the documents generated during an examination.” Under subsection 2-209, “[i]t is also ... regular business practice to revise the proposed report before its issuance upon ... consideration of the facts and legal arguments submitted by the [examinee].” We give due weight to the Commissioner’s interpretation of subsection 2-209(g) as imposing on him a duty of confidentiality in order to preserve the right of aggrieved persons to speak freely to the MIA during its investigation and the period before the report becomes final, so that they might challenge and correct the MIA’s findings before the MIA makes public any injurious charges.

See, e.g., Adamson v. Correctional Medical Svcs., Inc., 359 Md. 238, 266 , 753 A.2d 501 (2000) (“courts give significant weight to the agency’s interpretation of the statute that it is required to administer”). We agree with the district court and the Commissioner that the confidentiality requirement of subsection 2-209(g) is designed, inter alia, to ensure that the MIA’s final report, and its remedial actions, are not tainted by public “grandstanding” before aggrieved persons have had an opportunity to contest and correct the MIA’s preliminary findings. 2. Chinwuba Alleged That Larsen’s Public Statements And Disclosures During The Confidentiality Period Were Outside The Scope Of His Public Duties Chinwuba alleged in the “background” paragraphs of his complaint that before the proposed report became final in ³⁶⁵ March 1999, “Larsen willfully, maliciously, and blatantly violated the Maryland Insurance Code,” by providing the Washington Post and the Baltimore Sun copies of his March 11, 1998 letter to PrimeHealth’s attorneys and PrimeHealth’s March 27 reply letter, and also by making “verbal statements regarding his investigation of PrimeHealth and Chinwuba to the media and the public.” He also alleged that Larsen improperly “made these .... disclosures to the media and public regarding PrimeHealth, and Chinwuba even before communicating those statements to either PrimeHealth or Chinwuba.” Chinwuba incorporated these allegations in his defamation count, and further alleged that: 109. Larsen’s verbal and written disclosures to the media and other third parties regarding PrimeHealth and Chinwuba during his investigation were false, derogatory and defamatory statements.

These disclosures alleged that Chinwuba provided “false and misleading” testimony to MIA in an effort to obtain a certificate of authority for PrimeHealth from MIA____ 113. These statements are defamatory per se intending to injure Plaintiff in his profession and employment and his standing in the community, and further impugning him [sic] to be dishonest, fraudulent because these allegations in effect have stated that Chinwuba has provided perjured testimony to MIA. 114. Larsen made these defamatory per se statements knowingly and maliciously and with the intent to cause serious damage to PrimeHealth and Chinwuba and for Larsen’s own political gain. 115. Larsen made these defamatory per se statements out of ill will, hatred, and desire to injure Chinwuba and PrimeHealth and in direct violation of the Maryland Insurance Code.

In his false light count, Chinwuba also alleged that: 119. Larsen, through his unlawful, malicious, and willful conduct in making statements to the media which ³⁶⁶ were defamatory, disparaging and false regarding Chinwuba and PrimeHealth violated the Maryland Insurance Code and other Maryland law. 120. That based on Larsen’s statements, and unlawful written disclosures, several articles were published in the Washington Post and Baltimore Sun stating that Chinwuba was untrustworthy, unfit to own or manage a HMO in the State of Maryland, and that he provided false testimony to the MIA to obtain a certificate of authority for PrimeHealth.... 122. Larsen improperly and unlawfully publicized facts about Chinwuba, which placed Chinwuba in a false light by attributing to him conduct, and characteristics, which were false. 123.

Larsen knew that the facts published about the Plaintiff were false, or published them with a reckless disregard for the truth of those facts. In this Court, Chinwuba contends that the trial court erred in dismissing his defamation and false light counts on the grounds that Larsen enjoyed governmental immunity. “[A]l-though [Larsen] may be within the scope of his statutory authority to conduct an investigation, he is ... not within the scope of his statutory authority to discuss the content or findings of his investigation to the public and the media before the investigative report is finalized[.]” Before we address Chinwuba’s argument, however, we first must resolve a threshold factual question that Larsen belatedly raised during oral argument in this appeal. 3. Larsen Did Not Establish As A Matter Of Law That He Made The Challenged Statements And Disclosures Before The Confidentiality Period Began At oral argument, Larsen’s counsel defended the trial court’s favorable decision on the grounds that any challenged statements and disclosures to the press had been made before the confidentiality period under subsection 2-209(g) began. ³⁶⁷ In support of this contention, he argued for the first time that the MIA’s investigation did not begin until April 6, 1998, when the MIA arrived at PrimeHealth’s business premises for an on-site examination. Larsen’s counsel acknowledged that this argument directly contradicts previous statements by the MIA and Larsen in this and other courts, i.e., that the MIA began to investigate in March 1998, but asserted that these statements had been incorrect.

In support, he pointed to an April 8, 1998 letter stating that the MIA would arrive at PrimeHealth’s business premises on April 6 to examine PrimeHealth’s records. Given the surprise nature of Larsen’s new argument, we permitted Chinwuba to file a supplemental brief addressing it. Chinwuba offers several reasons for rejecting Larsen’s contention that the statements and disclosures reflected in the articles did not violate subsection 2-209(g). We find them persuasive.

First, we agree with Chinwuba that, by themselves, paragraphs 41-45 of his complaint are sufficient to allege that the investigation and examination began in March rather than April. Second, we also agree that Larsen’s March 11 letter, PrimeHealth’s March 27 response letter, and the newspaper articles, all of which were attached to the complaint, provide ample evidence from which a fact finder could infer that the investigation and confidentiality period had begun by the time Larsen sent his March 11 letter to PrimeHealth. Finally, we agree that Larsen may be judicially estopped from denying that the investigation began after March. 10 See Roane v. ³⁶⁸ Washington County Hosp., 137 Md.App. 582, 592-93 , 769 A.2d 263 , cert. denied, 364 Md. 463 , 773 A.2d 514 (2001). It is sufficient for purposes of this appeal to conclude that there is an unresolved factual dispute on this question.

Accordingly, we decline to adopt Larsen’s belated amendment to his previous factual assertions as a reason to affirm the trial court’s decision. Because we are required to view the allegations and evidence in the light most favorable to Chinwuba, we assume that the MIA began to investigate and examine Prime-Health and Chinwuba on or before March 11,1998. Similarly, we must assume for the purposes of our review that Larsen violated his statutory duty of confidentiality, by making public statements that also defamed Chinwuba and placed him in a false light. Applying these assumptions, we now turn to the trial court’s conclusion that Larsen was entitled to judgment on governmental immunity grounds. 4.

Larsen Did Not Establish As A Matter Of Law That He Made The Challenged Statements And Disclosures Within The Scope Of His Public Duties The trial court dismissed Chinwuba’s claims on the ground that Larsen was acting within his statutory authority when he decided to initiate an investigation of PrimeHealth, and to publish the final report. We agree that Larsen had the statutory authority to take these actions, that Larsen was acting within the scope of his public duties when he did so, and that he has governmental immunity against any claim arising from these official acts. But in focusing on the decisions to investigate and to publish the final report, the trial court overlooked Chinwuba’s specific complaint about Larsen’s allegedly defamatory publications during the confidentiality period. Thus, the court did not decide whether Larsen could use ³⁶⁹ the protective cloak of governmental immunity for claims based on tortious statements that Larsen allegedly made to the press during a period he was statutorily prohibited from doing so.

First, we address whether Larsen’s statements and disclosures during the confidentiality period were within the scope of his public duties. In Sawyer v. Humphries, the Court of Appeals held that the phrase “ ‘scope of the public duties’ in the [Maryland] Tort Claims Act is coextensive with the common law concept of ‘scope of employment’ under the doctrine of respondeat superior....” Sawyer, 322 Md. at 254 , 587 A.2d 467 . The Court explained that [t]he general test ... for determining if an employee’s tortious acts were within the scope of his employment is whether they were in furtherance of the employer’s business and were “authorized” by the employer.... “ ‘By authorized is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.’ ” ... “To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.” ... [A]n important factor is whether the employee’s conduct was “expectable” or “foreseeable.” ... [Particularly in cases involving intentional torts committed by an employee, this Court has emphasized that where an employee’s actions are personal, or where they represent a departure from the purpose of furthering the employer’s business, or where the employee is acting to protect his own interests, even if during normal duty hours ..., the employee’s actions are outside the scope of his employment.... “Where the conduct of the servant is unprovoked, highly unusual, and quite outrageous,” courts tend to hold “that this in itself is sufficient to indicate that the motive was a purely personal one” and the conduct outside the scope of employment. Id. at 255-57 , 592 A.2d 1098 (citations omitt,ed)(emphasis added). ³⁷⁰ In subsequent decisions, the Court has summarized “the overall test” as “whether the tortious acts were done by the [employee] in furtherance of the employer’s business and were such as may fairly be said to have been authorized by him.” Ennis v. Crenca, 322 Md. 285, 293-94 , 587 A.2d 485 (1991)(quotation marks and citations omitted); see Tall v. Bd. of Sch.

Comm’rs, 120 Md.App. 236, 252-53 , 706 A.2d 659 (1998). Among the factors to be considered in determining whether a particular tortious act was within the scope of public duties are “whether or not the master has reason to expect that such an act will be done,” “the similarity in quality of the act done to the act authorized,” “the extent of departure from the normal method of accomplishing an authorized result,” and “whether or not the act is seriously criminal.” Sawyer, 322 Md. at 257 , 587 A.2d 467 (quotation marks and citations omitted). When the allegations of a complaint raise competing factual inferences, “the question of whether or not the defendant’s actions were within the scope of his employment should not be decided on a motion to dismiss.” See id. at 261 , 587 A.2d 467 ; see also Cox v. Prince George’s County, 296 Md. 162, 170-71 , 460 A.2d 1038 (1983)(scope of employment issue was for the jury and should not have been resolved by sustaining a demurrer). But to ensure that the benefit of governmental immunity is realized as early as possible in the litigation process, courts have placed a higher pleading burden on claimants seeking to avoid the bar of governmental immunity.

To overcome a motion raising governmental immunity, a plaintiff must allege with clarity and precision those facts which make the act fall “outside the scope of the public employment.” See Manders v. Brown, 101 Md.App. 191, 216-17 , 643 A.2d 931 , cert. denied, 336 Md. 592 , 650 A.2d 238 (1994). “Magic words” that are not supported by specific facts will not suffice. See Green v. Brooks, 125 Md.App. 349, 377 , 725 A.2d 596 (1999). For this reason, merely alleging that a public employee’s tortious act was unauthorized is not sufficient to defeat a motion raising a governmental immunity defense. ³⁷¹ See id. “ ‘An act may be within the scope of employment, even though forbidden or done in a forbidden manner, or consciously criminal or tortious....’” Tall, 120 Md.App. at 252 , 706 A.2d 659 (citation omitted). “An employee’s unauthorized conduct might fall within the scope of employment if it was of the same general nature as conduct that was authorized or incidental to that conduct.” Id. at 253 , 706 A.2d 659 (citing Sawyer, 322 Md. at 256 , 587 A.2d 467 ). Specifically, it is not enough to allege that a public employee disobeyed directions, because he or she may