Kramer v. Mayor of Baltimore

SALMON, Judge. Beginning in 1988, Alfred Kramer (Kramer) was employed as an attorney by the Mayor and City Council of Baltimore (“the City”). Kramer also had a part-time private law practice. As a private practitioner, Kramer brought two suits against Harford County.

In the lawsuits, Kramer asserted on behalf of his clients that a road-improvement fee, imposed by Harford County as a condition for the development of real estate, was an illegal tax. Neal Janey (Janey), at all times here pertinent, was the Baltimore City Solicitor and Kramer’s boss. In June 1994, after discussing the matter with Ernest Crofoot (Crofoot), the County Attorney for Harford County, Janey gave Kramer an ultimatum, viz: either drop his representation of the plaintiffs in the actions against Harford County (“the County”) or be fired from his job with the City. Kramer decided to keep his job with the City and, accordingly, agreed to cease participation in the actions against the County.

In November of 1995, some eighteen months after Kramer had agreed to divorce himself from the suits against the County, Janey fired Kramer. According to Kramer, he was fired because the lawsuit against the County had caused “political harm” to Eileen Rehrmann (Rehrmann), the County Executive for Harford County, who was a “political ally” of Kurt Schmoke (Schmoke), the City’s mayor and Janey’s boss. ⁶²² Kramer filed suit in the Circuit Court for Baltimore County against the City, Schmoke, Janey, Harford County, Rehrmann, and Crofoot. In his amended complaint filed on September 23, 1997, the City was sued for the (allegedly) wrongful discharge of Kramer (Count 1). All defendants were alleged in Count 2 to have engaged in a conspiracy against Kramer.

All defendants were also sued for interfering with the advantageous economic relationship that Kramer enjoyed with his clients who had sued the County (Count 3); and Rehrmann and Harford County were alleged in Count 4 to have tortiously interfered with the employment contract between Kramer and the City. Discovery was completed by the parties after which all' defendants moved for summary judgment as to liability. Kramer filed an opposition to the motion, but after a January 7, 1998, hearing, Baltimore County Circuit Court Judge J. Noiris Byrnes granted summary judgment in favor of all defendants. Kramer filed this timely appeal.

QUESTIONS PRESENTED 1. Did the trial judge err in granting summary judgment in favor of the City as to Count 1? 2. Did the trial judge err in granting summary judgment in favor of Rehrmann and Harford County as to Count 4? 3. Did the trial judge err in granting summary judgment in favor of all defendants as to Count 3? 4.

Did the trial judge err in granting summary judgment in favor of all defendants as to Count 2 — the count alleging that the defendants had entered into a conspiracy against Kramer? STANDARD OF REVIEW Appellate review of the grant of summary judgment is governed by Maryland Rule 2-501(e). Summary judgment is proper if “there is no genuine dispute as to any material fact ⁶²³ and ... the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(e). “In determining whether a party is entitled to judgment under this rule, the court must view the facts, including all inferences, in the light most favorable to the opposing party.” Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995); see also Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 739 , 625 A.2d 1005 (1993).

The role of the trial court is to decide issues of law and not to resolve disputed issues of fact. See DeBusk v. Johns Hopkins Hosp., 105 Md.App. 96, 102 , 658 A.2d 1147 (1995), aff'd, 342 Md. 432 , 677 A.2d 73 (1996). Summary judgment proceedings are not intended as a substitute for trial. See General Accident Ins.

Co. v. Scott, 107 Md.App. 603, 611 , 669 A.2d 773 (1996). Upon review of summary judgment matters, an appellate court determines whether the trial court was legally correct. DeBusk, 105 Md.App. at 102 , 658 A.2d 1147 . FACTS 1 Alfred Kramer was hired as an attorney for the City after Janey recommended his appointment.

He started his career in the City Solicitor’s office as an “Assistant City Solicitor II” and was promoted to “Assistant City Solicitor III” in August of 1990. While Kramer was employed by the City, attorneys were allowed to have private part-time law practices but were prohibited from representing clients who had a claim pending against the City or who were defendants in criminal cases. Also, as a matter of practice, if an attorney in the City’s law department had a question as to whether an outside practice might pose a potential conflict with their City employment, they were required to obtain approval of the representation by disclosing the matter to Janey’s second-in-command, who, at all times here pertinent, was Deputy Solicitor Otho Thompson. ⁶²⁴ Kramer, in 1991, was retained to assist Joseph Wielepski and Mr. and Mrs. Stanley Wielepski (“the Wielepskis”) in subdividing property the Wielepskis owned in Harford County. In the course of obtaining all the necessary County approvals, the Wielepskis learned that, in exchange for approval of the subdivision, they would be required to pay the County approximately $97,000 for future improvements of the two public roads bordering their property.

The $97,000 estimate was based on the anticipated cost of improving the roads to meet County standards. After learning of the estimated charges, the Wielepskis signed a Preliminary Plan Approval letter that advised them that they would have to pay the cost of road frontage improvements. The Harford County Director of Administration then imposed road improvement fees on the Wielepskis. The Wielepskis appealed the director’s imposition of fees decision to the Circuit Court for Harford County.

The circuit court entertained the “appeal” and affirmed the Director of Administration’s decision. The Wielepskis, represented by Kramer and William Phelan, another lawyer employed by the City Solicitor’s office, appealed the affirmance. We reversed the judgment of the circuit court, holding that the imposition of the fee was an unauthorized tax. See Wielepski v. Harford County, 98 Md.App. 721, 731 , 635 A.2d 43 (1994).

The Court of Appeals in Harford County v. Wielepski, 336 Md. 281, 282 , 648 A.2d 192 (1994), vacated our judgment and remanded the case to us with directions to remand the matter to the Circuit Court for Harford County, because the Wielepskis’ action in the circuit court and their subsequent appeal to this Court was not authorized by law. See id. Ten months elapsed between the January 5, 1994, decision by this Court in Wielepski and the vacation of the judgment by the Court of Appeals. In the interim, Kramer, joined by Phelan and Associate City Solicitor James Ruckle, brought another suit on behalf of the Wielepskis against Harford County.

The case was based upon our Wielepski decision. Plaintiffs alleged that all fees, similar to those that had been charged to the Wielepskis, were illegal taxes. The complaint ⁶²⁵ asked the court to certify the case as a class action. Prior to bringing this new lawsuit, both Kramer and Ruckle consulted with Deputy City Solicitor Thompson to make sure that the City did not object to their representation.

Thompson told Kramer and Ruckle that he saw no problem with their taking the case and gave permission for them to file suit if they desired to do so. The class action suit was brought on January 17, 1994, in the Circuit Court for Harford County. The only named plaintiffs were the Wielepskis, but the suit alleged that at least 250 persons and/or entities who had sought to develop in excess of five lots in the County had been required to pay an illegal tax as a condition of receiving necessary zoning approvals. The Wielepskis sued individually and as members of the class that had been forced to pay the illegal tax.

Sometime in January 1994 — it is not clear exactly when— Janey became aware that Kramer, Phelan, and Ruckle had filed the class action suit in Harford County. Janey took no immediate action, however. In late May or early June 1994— again, the exact date is not known shown in the record — the County Attorney for Harford County, Ernest A. Crofoot, contacted Janey to complain to him about the involvement of the three assistant Baltimore City solicitors in the class action lawsuit. Crofoot and Janey met in regard to this matter at Janey’s Baltimore City Hall office on June 6, 1994.

Crofoot gave Janey copies of pleadings and other filings in the Wielepski class action suit, as well as in the earlier lawsuit that had been decided by this Court. On the same day as the meeting with Crofoot, Janey sent Schmoke a memo in regard to the Wielepski suits, which said, inter alia: I think this is clearly the last straw with respect to outside practice. It is astonishing that governmental attorneys employed by the city would be suing a sister subdivision of the State. Harford County, as you know, is a partner with the City in the Northeast Maryland Waste Disposal Authority.

The County is a participant with the City in the Baltimore Metropolitan Council. In addition, the County is a co-defendant in the proceedings that have ⁶²⁶ been initiated by the Susquehanna River Basin Commission concerning the City’s allocation of water to Harford County. I was recently informed by George Balog, Director of Public Works, that Harford County is in the middle of negotiations with the City for the purchase of water. Aside from the more obvious questions concerning propriety, judgment and discretion, and potential conflicts of interest, this case clearly demands that we take more stringent actions with respect to our policies concerning the outside practice of law.

I will deal with those policy questions after I have resolved the matter concerning the pending litigation. The next day, June 7, 1990, Janey sent a letter to Crofoot thanking him for his cooperation in connection with “the inquiry that we are conducting into the conduct and activities of three Baltimore Law Department attorneys who are representing plaintiffs ... [in] their private practice in two major lawsuits against Harford County.” Janey said in the June 7th letter that he had briefed Mayor Schmoke on June 6th and both he and Schmoke were “stunned” when they learned of the Wielepski lawsuits. He advised Crofoot that he would be meeting on June 10th with the three attorneys involved in the lawsuits so that they could “explain their conduct and activities”; he also said that following the June 10th meeting he would consult with Schmoke and his chief of staff and determine the appropriate action to be taken. True to his word, on June 10,1994, Janey met with Kramer, Phelan, and Ruckle.

The three were told that if they did not withdraw from the suits against Harford County they would be terminated as City employees. Kramer, as well as his two colleagues, all agreed to discontinue their representation of the plaintiffs in the suits against the County. On June 15, 1994, Janey wrote Crofoot and announced the good news. He said: I have been informed by all three of the attorneys on our staff who have been representing clients in the Wielepski cases that they will voluntarily withdraw from both cases. ⁶²⁷ Other private counsel will be substituted to represent those clients in the cases.

Approximately one year after he agreed to withdraw from the actions against Harford County, Kramer was promoted to Solicitor IV. This promotion was in recognition of his excellent job performance. Kramer, Phelan, and Ruckles again met with Deputy Solicitor Thompson shortly after their June 10th meeting with Janey. Thompson agreed with the three attorneys that, even though they were withdrawing from the Wielepski cases, they could still protect their interest in any fee that might be realized for the work they had performed already on behalf of the Wielepskis.

New counsel entered their appearances for the plaintiffs in the class action suit in late 1994. Kramer did not, however, formally withdraw his appearance in that matter until after he was fired by the City in November 1995. On November 21, 1995, Crofoot phoned Janey and told him that it appeared that Kramer might still be involved in the class action lawsuit. Crofoot advised that Harford County had made a settlement offer in the suit to Richard Jacobson, one of the attorneys who had taken over the class action suit from Kramer, Phelan, and Ruckle.

Mr. Jacobson advised the County that he would have to consult with Kramer before giving approval of the settlement. This information from Crofoot caused Janey to write a memorandum to all attorneys in the City Solicitor’s office. The memorandum, dated November 22, 1995, read, in part, as follows: THIS IS A POLICY MEMO REGARDING THE OUTSIDE PRACTICE OF LAW THAT APPLIES TO ALL ATTORNEYS OF THE LAW DEPARTMENT. IT IS EFFECTIVE IMMEDIATELY.

PLEASE READ THIS MEMO PROMPTLY. MARK THE APPLICABLE LINE BELOW, SIGN AND RETURN THIS MEMO TO ME. ⁶²⁸ 1. No attorney who is a full-time or part-time employee of the Baltimore Law Department may, on behalf of any private party, sue, file an action against, or be involved directly or indirectly in any litigation, proceedings, transactions or negotiations involving any interests of the City of Baltimore; the State of Maryland; a political subdivision of the State of Maryland; a county, municipal or local government in Maryland; a department, agency, board, commission, instrumentality, unit or public body of the City, of the State, or of a county, municipal or local government in the State; or, an official or employee of the city, of the State, of a political subdivision or of a county, municipal or local government with respect to his or her official or employment capacity. (Emphasis added.) The memorandum instructed all recipients to notify Janey immediately and in writing if they were currently handling any cases that might come within the prohibition mentioned in the memorandum.

Kramer responded to the November 22 memorandum by saying that he was no longer participating in the Harford County class action lawsuit but that he was “merely protecting my previous fee [in that lawsuit], as agreed to with Otho Thompson.” 2 Janey wrote to Kramer on No ⁶²⁹ vember 27, 1995, after receiving Kramer’s response. Janey said, in pertinent part: When I met with you, Bill Phelan and Jim Ruckle several months ago to discuss the involvement of the three of you in Wielepski v. Harford County, I made it clear to all of you that I felt it was inconsistent with the interests of the City and the Mayor for a full-time attorney of the Baltimore Law Department to be involved in legal matters concerning the State or any local governments in Maryland. You vigorously protested my position because we had not adopted a formal policy on that subject. My response to you and the other two attorneys was that it was not necessary for us to have a formal policy.

Common sense had to tell you that Law Department attorneys could not be involved in such matters, or have financial interests in such matters, because they could interfere with the political relations of the Mayor with the Governor or with various chief executives of the local governments throughout the State. Such actions also could come into conflict with any agreements or covenants between the City and other jurisdictions. Specifically, with respect to Harford County, I told you and the other two attorneys that, in my opinion, it would be a direct conflict of interest for any attorney on this staff to be involved in an adversarial proceeding against Harford County. Harford County is a partner with Baltimore in the Northeast Waste Disposal Authority and certain other compacts involving the environment and environmental regulation.

In addition, I told the three of you that Harford County purchases its water from Baltimore, and that it was in negotiations with our Department of Public Works to renew its contract for its water supply. An Assistant Solicitor is working on that matter at this time. It is a matter that probably must go to the Board of Estimates for final approval. Furthermore, I told the three of you that the County Executive of Harford County was upset that Law Department attorneys were suing her county on behalf of private clients for damages, and that she planned to file a protest ⁶³⁰ with the Mayor.

Moreover, the three of you were told that the issues raised in the suit were embarrassing to the County Executive and her administration, and became political issues in her campaign for re-election to office. In the letter Janey went on to say that he was stunned to find out that Kramer was still protecting his fee in the class action suit. Janey opined that [t]here is no such thing as having a fee, or as you say ‘protecting my previous fee,’ in a matter that is a conflict. You were advised of this conflict by me, not by the Deputy City Solicitor.

Thus, your agreement with him is totally irrelevant. Later in the letter, Janey said: This matter came to light on Tuesday, November 21, when the County Attorney for Harford County called and asked whether you were' still involved in the Wielepski case. I told him that you have informed us that you were withdrawing from the case and would have no involvement in it. Apparently, one of the attorneys who has an appearance entered in the case discussed a settlement with the County Attorney.

When the County Attorney tried to finalize a settlement, he was told that nothing could be done in the case without consultation with you. Now that I have received your report, I suppose I understand why the attorney made the representation that he did to the County Attorney. Apparently, protecting your previous fee means that you are being consulted, and that you are giving advice and direction. The County Attorney has a right to know who the attorneys are who are involved in the case and making the decisions about settlement..

He may, if necessary, file a petition in the Circuit Court for Harford County to compel you to disclose what your interests are in the case, as well as your involvement. Before doing that, he contacted me so that I could make an effort to determine what is going on. (Emphasis added.) Janey concluded the letter by saying that Kramer should not ⁶³¹ take this letter to mean that I am directing you to sever your ties with the clients or the attorneys, or directing you to give up your fee. I do not have the authority to direct either type of action.

I do not want this letter to be misconstrued by you as an attempt by me to interfere with your relation with your clients or the attorneys. Finally, Janey advised that if Kramer wished to discuss the matter with him he should do so no later than the end of the November 29, 1995, business day and that, if the discussion had not taken place by then, he planned to take appropriate action. On November 29, 1995, Janey terminated Kramer — with January 5, 1996, as the effective date of the termination. Janey said in his November 29th letter to Kramer that he (Kramer) was being “laid off.” The reasons for the layoff were alleged to be “budgetary and fiscal constraints and the implementation of reorganization initiatives.” Janey further advised that the action was taken due to “no fault of your own,” Despite what was said in the letter, Kramer was fired — not laid off.

The reasons for Kramer’s firing had nothing to do with reorganization or fiscal constraints. After all defendants filed their motions for summary judgment, Kramer filed an affidavit in opposition, 3 which read, in pertinent part: ⁶³² 6. In 1994 Neal Janey, Chief Solicitor, told me that he was told by Mayor Kurt Schmoke that Schmoke had had a conversation the prior evening at a fund-raiser for Senator Sarbanes with Eileen Rehrmann, who was then running for re-election as Harford County Executive. He later said that Rehrmann told Schmoke that my representation against Harford County in the WielepsJci case was “hurting her politically” and that she wanted me to drop the lawsuit. 7.

I reminded Mr. Janey that I had gained approval for the representation by Mr. Thompson and that I was representing citizens who had been wronged unlawfully and intentionally by Harford County Government. I also asked him to explain to me any ethical conflict he felt existed. 8. He responded by saying that this is what “Rehrmann and Schmoke want to happen” and said that nothing else mattered. That Rehrmann and Schmoke were “political allies” and whether or not Wielepski or others had been wronged by the County was “not the issue.” 9.

Mr. Janey told me that he had met with Mr. Crofoot. He said Mr. Crofoot explained that he had been sent by ⁶³³ Rehrmann to complain, and that I was “out of the case or out of a job.” He said that Mrs. Rehrmann’s political opponent was making an issue out of the Wielepski case. He said that Mr. Crofoot reminded Mr. Janey that his visit and Mrs. Rehrmann’s position had the full support of Mayor Kurt Schmoke. 10. In a later conversation, Mr. Janey told me that Mr. Crofoot, at Mrs. Rehrmann’s request, had called to question why I was still working on the case (although I wasn’t) and why they (The City, Mr. Schmoke and/or Mr. Janey) had not taken care of it. 11.

I was then terminated from employment for these political purposes; but under the guise of a layoff. 1 was not hired as a political appointee or employee. I was hired as a civil service employee and served as such, through several administrations, until I was terminated on January 5, 1996. Additional facts will be added in order to address the issues presented. ISSUE 1 Summary Judgment as to the Wrongful Discharge Count Kramer was, at the time of his termination, in the City’s civil services “exempt” classification.

An employee in that classification serves “at the pleasure of the appointing authority,” which, in this case, was the City Solicitor. Thus, appellant was an at-will employee. An at-will employee may be fired for any reason unless the reason violates a clear mandate of the public policy of the State of Maryland. 4 See Adler v. American Standard ⁶³⁴ Corp., 291 Md. 31, 47 , 432 A.2d