Lawson v. Bowie State University

ADKINS, J. In this case we must determine whether whistleblower protections extend to an employee whose decision to disclose possible violations was personally motivated by his desire to “make changes to the department” in which he worked. The employee, Tyrone Lawson, was a seventeen-year veteran of the Bowie State University Police Department (“the Department”) until his termination for violating the Department’s ²⁴⁹ chain of command policy. Specifically, Lawson had drafted a letter disclosing potential abuses by his fellow officers and, feeling unable to report these violations to the Department’s Chief of Police, he presented the letter to the school’s Vice President of Student Affairs. The Vice President notified the Department Chief of the contents of Lawson’s letter, leading the Department Chief to fire Lawson for, among other things, insubordination.

Following his termination, Lawson sought relief through the administrative channels, arguing that he was entitled to whistleblower protection because the letter constituted a “protected disclosure” as contemplated by Section 5-305 of the Maryland State Personnel and Pensions Article. An Administrative Law Judge (“ALJ”) considered the matter, and concluded that Lawson’s letter was not a “protected disclosure” because it was drafted as part of Lawson’s personal “crusade” to improve the Department, rather than for the purpose of notifying a higher authority of a potential violation. The Circuit Court for Prince George’s County affirmed the ALJ’s decision, and Lawson appealed to the Court of Special Appeals. Before argument in that Court, however, we issued a writ of certiorari to determine: Whether the ALJ erred in failing to find that [Lawson] made a protected disclosure under State Personnel and Pensions Section 5-305[.] 1 We shall hold that the ALJ improperly conflated Lawson’s personal motivation for disclosure with the statutory requirement that an employee have a reasonable belief that the ²⁵⁰ information disclosed evidences a violation.

Accordingly, we shall reverse the judgment of the Circuit Court affirming the ALJ. FACTS AND LEGAL PROCEEDINGS A. The Alleged Abuse of Power In February 2007, following concerns about a “lack of leadership” within the Bowie State University (“the University”) Police Department, Dr. Artie Travis, the University’s Vice President of Student and Academic Affairs, offered to meet individually with University police officers to give them an opportunity to discuss the Department’s strengths and weaknesses “outside of the chain of command.” Travis informed Department officers that he would not discuss the content of the individual meetings with the Department Chief “unless there [was] something that [was] very clear” that needed to be brought to the Chiefs attention. Dr. Travis assured the officers that the meetings were not in violation of the “chain of command” rules of the Department’s Code of Conduct. After receiving Dr. Travis’s general invitation, Lawson attempted to set up a meeting to discuss his concerns about the Department.

At first, Travis’ secretary had difficulty accommodating Lawson’s request “to be one of the last [officers] to ... have a discussion with Dr. Travis.” Later, Lawson spoke to Travis informally at a basketball game around February 25, 2008 and arranged to meet with him on March 6. . Two days after the basketball game, but still before Lawson and Dr. Travis’s scheduled meeting, Lawson learned of an arrest conducted by Department officers Corporal Marc Ducellier and Sergeant David Blue, where the officers took into custody a non-student during their foot patrol earlier in the day. Lawson was first alerted to the arrest when Police Department Chief Ernest Waiters sent out a Department-wide e-mail congratulating the officers. Waiters’ e-mail explained that Ducellier and Blue had been on a “proactive foot patrol[ ]” of Christa McAuliffe Residence (“CMRC”), a University residence hall, when they found the suspect in a dormitory ²⁵¹ room with glass vials stored with marijuana and “money packaged in a manner [indicating] ‘Possession With Intent to Distribute.’ ” According to Lawson, he became concerned about the propriety of the arrest during a later discussion with Ducellier and Blue. 2 Lawson claimed that Ducellier told him that the officers had actually been doing an inspection of CMRC, and were “turning the door knobs to our resident student rooms and pushing on the doors to see if the doors were unlocked or slightly ajar ... [and then] walking] uninvited inside[.]” Lawson alleged that Ducellier and Blue laughed and joked about waking up residents, and about how “some of the female residents came out of their bedrooms and into the living room half dress[ed] and partially nude.” Lawson claims that Ducellier explained to him that they had found the suspect in Suite 405 of CMRC after the door “just came fully open” in response to his knock, and that they smelled marijuana only after they entered the room.

Following his conversation with the officers, Lawson conducted his own independent investigation of CMRC, and he discovered that the doors automatically shut on their own when residents left their rooms, such that it would be impossible for a door to be left ajar or to be opened by the force of a knock. Lawson also spoke with two other officers, Corporal Mike Milburn and Sergeant Anina Brown, about the arrest. According to Milburn and Brown, at the end of their shift on the morning of the arrest, they encountered Ducellier and Blue in a parking lot with a prisoner in their vehicle. Both would later testify that Ducellier and Blue did not respond when asked about what prompted the arrest, but sarcastically told them that, “the guy was arrested for standing around and acting stupid.” Milburn testified that he was surprised when he saw the prisoner, since normal procedure is to alert the Department dispatcher when an arrest has been made and Milburn had not heard of the arrest “over the air[.]” Like ²⁵² wise, Brown testified that officers would usually send out a request call for help before making an arrest at CMRC because of the building’s size and history of violent incidents.

Brown alleged that she was annoyed by Blue’s sarcasm in the parking lot, and when she approached him about it later, he apologized and “said that he just didn’t want to say anything in front of [Milburn] because [Ducellier’s probable cause related to the CMRC arrest] was weak.” B. Lawson’s Letter to Dr. Travis After speaking with Milburn and Brown and investigating the doors into CMRC himself, Lawson wrote a letter to Travis with the subject line “Re: Alleged University Police Corruption and Misconduct.” The letter detailed Lawson’s concerns about the arrest, namely that Blue and Ducellier had apparently made the arrest after entering the room without probable cause. Lawson expressed his belief that the arrest had violated the Fourth Amendment to the United States Constitution, as well as Department policy 3 (E.21, 23) Lawson also alleged that Waiters and his deputy, Lieutenant Djakarta Hall, had been delinquent in failing to investigate the arrest: Both [Waiters and Hall] had a duty and responsibility to recognized [sic] and identify that the fact [sic] and circumstances of the incident obviously indicates that both [Blue and Ducellier] were violating our resident student’s Fourth Amendment Rights guaranteed under the United States Constitution Bill of Rights when they entered our resident student’s rooms, uninvited, without consent, without a warrant and without any exigent circumstances. [Blue and Ducellier] repeatedly did this to many resident students prior to the both of them approaching and entering Room 405 and making the arrest. Lawson showed the letter to Milburn, who advised him to send the letter to Travis rather than Waiters because Waiters ²⁵³ had already praised the arrest. Lawson also sought the advice of Dorothy Holland, the University’s Assistant Dean of Student Affairs and Judicial Coordinator.

Holland testified that, during their meeting, Lawson became significantly upset when he began talking about the letter and his concerns about the Department: [WJhen he first started talking ... it was obvious that he was upset, he was concerned, he was angry. And at one point during the meeting he actually got upset, emotional.... I’ve known Lawson for a long time and I’ve never seen him get emotional that way.... Holland then told Lawson, “[I]f you don’t trust the Chief of Police, you need to be having this conversation with Dr. Travis.” Lawson followed the advice of Milburn and Holland and delivered a copy of the letter in person to Travis on March 5, 2007.

Lawson also attached a cover page in which he requested that Travis keep the letter and its contents confidential until he had an opportunity “to present suggested strategies for handling this situation to [University President Mickey Burnim] and [Travis].... I believe I have some good suggestions that are effective, proper and right.” Upon receiving the letter, Travis called Lawson to tell him that he would have to notify Waiters because the letter “was outside the chain of command.” After discussing the letter with Waiters, Travis assigned Glen Isaac, the University’s Labor Relations Manager, to investigate Lawson’s allegations. Following his investigation, Isaac concluded that Ducellier and Blue had properly conducted the arrest; thus, Lawson’s Fourth Amendment concerns were unfounded. C. The University’s Discipline of Lawson On March 13, 2007, the Department suspended Lawson on an emergency basis for (1) violating the Department’s chain-of-command policy by submitting the letter to Travis and, (2) unrelated to the letter, his suspected involvement in the theft of University computers.

Waiters conducted a suspension ²⁵⁴ hearing on March 15 and delivered a Notification of Charges to Lawson on May 16. With regard to Lawson’s letter, the Department accused Lawson of violating seven different Department regulations. The Department also announced other unrelated charges against Lawson, none of which pertained to the alleged computer theft. The Department’s Administrative Hearing Board conducted a hearing regarding the charges.

In its decision issued on January 18, 2008, the Hearing Board sustained four of the charges related to the letter, as well as a charge of “Unbecoming Conduct” concerning an unrelated incident. The Board’s recommendation of Lawson’s penalty for the letter included suspension without pay, demotion in rank, and a written reprimand. The Board also recommended a written reprimand and loss of two leave days for the unrelated “Unbecoming Conduct” charge. On January 25, 2008, Waiters informed Lawson that he intended to increase the Board’s recommended penalty and that he was giving Lawson the opportunity to respond in a hearing conducted by Waiters.

Waiters wrote that his decision to increase the penalty was supported by his review of Lawson’s past job performance, the Hearing Board’s administrative record, and the investigation. Attached to this notification was a list of sixteen additional charges of misconduct, none of which had ever been brought to the attention of Lawson or the Hearing Board. Three days after meeting with Lawson regarding the penalty increase, Waiters terminated Lawson’s employment with the Department. Waiters wrote in his termination letter to Lawson: Our meeting on February 11, 2008 was your opportunity to explain why these serious charges should not result in your termination.... [You did not] express any understanding or willingness to accept the chain of command in the police department....

Based on your inability to understand the seriousness of your refusal to follow the chain of command, and your statements that confirm you are unwilling to follow ²⁵⁵ the chain of command, you have made it clear that you truly believe you are not accountable to the police command structure. D. Lawson’s Whistleblower Complaint On September 4, 2007, Lawson sought relief from Waiters’s decision to terminate his employment by filing a Whistleblower Complaint against the University Police Department with the Maryland Department of Budget and Management (“DBM”) pursuant to Section 5-301 et seq. of the State Personnel and Pensions Article (“SPP”) of the Maryland Annotated Code. Md.Code (1993, 2004 Repl.Vol.) (the “Whistleblower Act”). On January 8, 2008, the Office of Statewide Equal Employment Opportunity Coordinator (“OSEEOC”) denied the complaint, and Lawson appealed to the Maryland Office of Administrative Hearings (“OAH”).

Following a hearing, the OAH Administrative Law Judge affirmed the OSEEOC’s denial on July 11, 2008. The ALJ ruled that Lawson’s letter to Travis was not a protected disclosure because Lawson did not reasonably believe that the disclosed information contained “evidence of abuse of authority, gross mismanagement, gross waste of money, a substantial and specific danger to public health or safety, or a violation of law[.]” The ALJ found that Lawson not to be credible because his statements were motivated by a “crusade to make changes to the department himself.” The ALJ dismissed Lawson’s concerns related to the arrest on the grounds that “[Ducellier and Blue] credibly testified as to the events of that night, and [Waiters], a man with substantial experience in narcotics cases, also credibly testified that he felt nothing untoward went on that night.” The ALJ did not reach the issue of whether the Department would have terminated Lawson notwithstanding the disclosure because he had already dismissed Lawson’s complaint on the grounds that the letter was not a protected disclosure. Lawson appealed to the Circuit Court for Prince George’s County, which affirmed the OAH decision. Lawson then ²⁵⁶ sought review by the Court of Special Appeals, and this Court issued a writ of certiorari sua sponte before a decision by the intermediate appellate court. 417 Md. 500 , 10 A.3d 1180 (2011).

DISCUSSION I. Standard of Review Lawson asks only one question on appeal: Did the ALJ err in finding that Lawson did not make a protected disclosure under Maryland’s Whistleblower Act? On review, we look “through the circuit court’s ... decision[ ], although applying the same standard of review, and evaluate[] the decision of the agency.” People’s Counsel for Baltimore County v. Loyola College in Md., 406 Md. 54, 66 , 956 A.2d 166, 173 (2008) (citations omitted). Our role is thus “limited to determining if there is substantial evidence in the record as a whole to support the [ALJ’s] findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Board of Physician Quality Assur. v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380 (1999). In applying the substantial evidence test to the ALJ’s factual findings, we ask “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Id. at 68 , 729 A.2d at 380 .

We treat the ALJ’s decision as prima facie correct and presumed valid, as “it is the agency’s province to resolve conflicting evidence and to draw inferences from that evidence.” Id. at 68 , 729 A.2d at 381 (citations omitted). With respect to an ALJ’s conclusions of law, however, “we have often stated that a court reviews de novo for correctness.... [I]t is always within our prerogative to determine whether an agency’s conclusions of law are correct, and to remedy them if wrong.” Schwartz v. Maryland Dep’t of Natural Resources, 385 Md. 534, 554 , 870 A.2d 168, 180 (2005) (citations omitted).

II

Analysis Maryland’s Whistleblower Act, contained in Sections 5-301 through 5-313 of the State Personnel and Pensions ²⁵⁷ Article, prohibits reprisal against a State employee for making a protected disclosure. 4 SPP Section 5-305 defines a protected disclosure as “information that the employee reasonably believes evidences: (i) an abuse of authority, gross mismanagement, or gross waste of money; (ii) a substantial and specific danger to public health or safety; or (iii) a violation of law....” Id. Additionally, the protected disclosure must “evidence an intent to raise an issue with a higher authority who is in a position to correct the alleged wrongdoing.” Dep’t of Natural Resources v. Heller, 391 Md. 148, 170 , 892 A.2d 497, 510 (2006) (citations omitted). The employee must also show a causal connection between the disclosure and the adverse personnel action. Id.

Once the employee meets these requirements, the burden shifts to the employer to show that it “would have taken the same personnel action in the absence of the protected disclosure.” Id. at 171 , 892 A.2d at 511 . Here, the ALJ dismissed Lawson’s appeal on the grounds that Lawson’s letter was not a protected disclosure. Specifically, the ALJ concluded that Lawson did not have a “reasonable belief that evidenced abuse of authority, gross mismanagement, gross waste of money, a substantial and specific danger to public health or safety, or a violation of law.” Having determined that Lawson did not meet the statutory criteria, the ALJ did not reach the issue of whether ²⁵⁸ Lawson “was terminated because of his letter or whether he would have been terminated notwithstanding any disclosure he may have made.” Thus, on appeal, we are concerned only with whether the ALJ erred in concluding that Lawson did not satisfy the “reasonable belief” requirement of the Whistle-blower Act. Our Whistleblower statute is “patterned after the ‘whistle-blower provisions’ of the federal Civil Service Reform Act [of 1978.]” Hearings on H.B. 616 before the Senate Constitutional and Public Law Comm.

(March 11, 1980) (statement of Delegate Joan B. Pitkin, sponsor of HB 616). The federal Civil Service Reform Act provided certain protections to federal employees who made disclosures that could often be “generally embarrassing to the government[.]” Heller, 391 Md. at 169 , 892 A.2d at 509 . Later, in 1989, Congress enacted the Whistleblower Protection Act (“WPA”), codified in 5 U.S.C. Section 2302 (b)(8), 5 which provided federal employees with even greater