Maryland Department of Transportation v. Maddalone

DEBORAH S. EYLER, J. In January 2007, Gregory J. Maddalone, the appellee, was fired from his “Administrator VI” job with the Maryland Department of Transportation (“MDOT”), the appellant. As he acknowledges, that job was the last in a series of patronage positions he held during the administration of Governor Robert L. Ehrlich, Jr., for whom he had worked and campaigned. Maddalone challenged his termination in the Office of Administrative Hearings (“OAH”), alleging that the dismissal was unconstitutional because it was based on his political affiliation, and therefore was in violation of his rights under the First Amendment to the federal constitution. 1 Following an evidentiary hearing, an administrative law judge (“ALJ”) overturned the MDOT’s termination decision. The ALJ’s ruling was upheld by the Circuit Court for Anne Arundel County in an action for judicial review.

The MDOT has now taken an appeal to this Court, posing two questions for review, which we have paraphrased slightly: I. Did the ALJ err in concluding that Maddalone was unconstitutionally terminated from his state employment?

II

Did the ALJ err by awarding Maddalone reinstatement and back pay, when he was not ready and willing to return to work? For the reasons we shall explain, we answer Question I affirmatively, and therefore shall reverse the circuit court’s judgment with instructions to remand the case to the OAH to issue a final decision upholding Maddalone’s termination from ⁵⁵⁴ employment. Question II is rendered moot by our disposition of Question I. FACTS AND PROCEEDINGS Maddalone, a Republican, served as an aide to Congressman Ehrlich beginning in 2000, and actively participated in the political campaign that resulted in his being elected governor of Maryland in November 2002. Governor Ehrlich was the first Republican elected to that post in this state since 1966. 2 Thus, upon Governor Ehrlich’s election, there was for the first time in decades a change in Annapolis from an administration of one major political party to another.

At all the relevant times in this case, Maddalone’s educational background and work experience were as follows. He held a high school diploma. He did not hold a college degree or any other post-high school degree, and had never attended a four-year college. During his state employment, he earned some credits toward an Associate’s Degree at the Community College of Baltimore County.

He was a professionally trained and proficient ice skater who had participated successfully in that sport since childhood. His prior work experience, except for his employment as an aide to former Congressman Ehrlich, was as an ice skater, and, more specifically, as an ice dancer. Maddalone was 27 years old when Governor Ehrlich was elected. Throughout Governor Ehrlich’s term, Maddalone was employed in what he acknowledges were state government “patronage” jobs.

At the outset of the Ehrlich Administration, on January 15, 2008, Maddalone was hired by the Office of the Governor as an “information technology systems assistant.” In October 2003, he became chief of staff to John Gowland, General Manager of the Maryland Transit Authority ⁵⁵⁵ (“MTA”), a division of the MDOT. A year later, he was transferred to the Maryland Port Authority, another division of the MDOT, to the position of “legislative liaison.” Less than a year later, on July 1, 2005, he was hired as an “emergency response manager” at the MDOT headquarters in the Office of Engineering, Procurement and Emergency Services (“OEPES”). Emergency response manager is an “Administrator VI position” for which Maddalone was paid a starting salary of $74,967. It is Maddalone’s dismissal from that position, soon after the Ehrlich Administration came to an end, that is the subject of this case.

All the jobs Maddalone held during the Ehrlich Administration were filled without advertisement. Because the positions were not advertised, Maddalone did not submit an application or résumé for any of them, and did not compete against any other people for them. The positions did not carry any educational requirements, such as holding a college or any post-high school degree, or any other necessary qualifications. All the positions were designated in the “Executive Service” 3 and, as Maddalone acknowledges, were “patronage” hires. 4 ⁵⁵⁶ In November 2006, Baltimore City Mayor Martin O’Malley, a Democrat, defeated Governor Ehrlich in the Maryland gubernatorial election.

On January 17, 2007, the day that Governor O’Malley was inaugurated, he appointed John D. Porcari as the Acting Secretary of the MDOT. As Acting Secretary, Porcari had authority to make the final decision as to whether an Executive Service employee would be terminated. See COMAR section 11.02.08.07. Acting Secretary Porcari previously had served as Secretary of the MDOT during the administration of Governor Parris Glendening, a Democrat, until Governor Ehrlich was elected.

Acting Secretary Porcari was confirmed as Secretary of the MDOT under the O’Malley Administration on March 6, 2007. 5 On January 23, 2007, six days after taking office, Secretary Porcari met face-to-face with Maddalone and terminated him from employment. Beverly Swaim-Staley, then Acting Deputy Secretary of the MDOT, was present at that meeting. 6 At ⁵⁵⁷ the time of the termination, Maddalone was earning an annual salary of $79,309 as an emergency response manager. 7 Through counsel, Maddalone lodged an appeal of the MDOT’s termination action with the Office of Administrative Hearings (“OAH”), pursuant to Md.Code (1977, 2001 Repl. Vol, 2007 Supp.), section 2—103.4(d)(6)(iii) of the Transportation Article (“TR”), and COMAR section 11.02.08.07. He alleged that he had been terminated “for political reasons” in violation of “the First and Fourteenth Amendments to the United States Constitution.” He sought reinstatement and full back pay.

The MDOT opposed Maddalone’s challenge to his termination. On April 27, 2007, a merits hearing on the matter was held before an ALJ with the OAH. Maddalone was the sole witness in his case. He moved into evidence several documents, including, over objection, 20 newspaper articles posted to the internet chronicling certain events that took place from early 2005 to late 2006.

Maddalone maintained that the documents were relevant because they showed the political climate in Maryland in 2005 and 2006, and thus added important context to his testimony. Those events, in summary form, and as testified to by Maddalone, were as follows. In February 2005, during the Maryland legislative session, Governor Ehrlich came under fire by Democrats in the General Assembly for allegedly politicizing the hiring and firing of state employees. Specifically, the Ehrlich Administration was criticized for firing long-time state employees solely for political reasons and then hiring administration “loyalists” in their places, or in new positions.

The Ehrlich Administration responded that the accusations were untrue and politically driven. There was intense media coverage of the various accusations and responses. Joseph Steffen, an acknowledged mem ⁵⁵⁸ ber of Governor Ehrlich’s inner circle, was the primary focus of controversy with respect to the alleged firing of long-time state employees for political reasons. He was alleged to have been hired into certain jobs with state agencies in order to root out Democrats in state employment for firing.

He also was alleged to have been involved in a political smear campaign against Mayor O’Malley, who at that time was Governor Ehrlich’s likely opponent in the upcoming 2006 gubernatorial election. During the 2005 legislative session, there was an effort by Democrats, criticized by Republicans, to eliminate several dozen jobs that (allegedly) had been filled with Ehrlich Administration “loyalists.” In that context, information about Maddalone’s background was reported repeatedly in the press. He often was cited as a political ally of Governor Ehrlich who was hired into state jobs for which he was not qualified and who, like Steffen, allegedly participated in identifying state employees for firing based upon their political affiliations. Press coverage about Maddalone pointed out that he had only a high school education and that his prior work experience, other than being an aide to former Congressman Ehrlich, was as an ice dancer.

Many times he was referenced in news reports as “former ice dancer” Maddalone. For example, in a Baltimore Sun article dated March 14, 2005, a commentator, in characterizing the Ehrlich Administration, said: [T]he administration that brought a fellow named Gregory J. Maddalone, whose previous work experience was professional ice dancing, and made him the port of Baltimore’s legislative liaison. Michael Olesker, E-Mails show Steffen not “irrelevant,” “mid-level, ” Baltimore Sun, March 14, 2005, at IB. On August 25, 2005, by Resolution of the Legislative Policy Committee of the General Assembly, a “Special Committee on State Employee Rights and Protections” (“Special Committee”) was created to investigate the Ehrlich Administration’s hiring and firing practices.

The Special Committee was comprised of a bipartisan group of six senators and six delegates, ⁵⁵⁹ and was co-chaired by Senator Thomas M. Middleton and Delegate Adrienne A. Jones. In November 2005, the Baltimore Sun conducted a poll for the gubernatorial race that by then was one year away. Some of the questions concerned the allegations of political hiring and firing against the Ehrlich Administration. In answer to one such question, 42% of those polled agreed that “the Ehrlich administration is more interested in rewarding its political friends with jobs than in finding the most qualified people to serve in State government.” In an article about the poll, a participant, identified as a Democrat, was quoted as questioning Governor Ehrlich’s appointment of “an ice skater for the Port Administration,” clearly a reference to Maddalone.

Before then, there were reports that Steffen had admitted engaging in certain political smear tactics against Mayor O’Malley, and had resigned from state employment. In a Baltimore Sun article about those developments, a commentator called members of the Ehrlich Administration “the people who famously hired Gregory J. Maddalone this year as the Port of Baltimore’s legislative liaison” and remarked that Maddalone’s “previous experience” was that he was a “[p]rofessional ice dancer.” Olesker, Is Steffen ready to come clean on his dirt? Baltimore Sun, Nov. 1, 2005, at IB. By late 2005, the Special Committee was well into hearings to obtain witness testimony for its investigation.

The witnesses included members of the Ehrlich Administration such as Human Resources Department Secretary Christopher J. McCabe and Transportation Department Secretary Robert L. Flanagan. Secretary McCabe’s testimony that Maddalone often would come to work wearing a T-shirt bearing the signature line from The Apprentice television show—“You’re fired!”—was widely covered by the press. On May 11, 2006, Maddalone testified before the Special Committee. He acknowledged having played some role in a process that ultimately led to the firing of five state employees.

He responded, although somewhat evasively, to all the questions put to him except 1) one seeking the identity of the ⁵⁶⁰ person in the Governor’s Appointments Office who had asked him to create a database pertaining to the termination of state employees, and 2) one inquiring as to who was paying his legal fees. On May 12, 2006, the Baltimore Sun reported that Maddalone, “an ice dancer and longtime Ehrlich aide who is an emergency response manager at the Department of Transportation, said he helped facilitate five firings at the Maryland Transit Authority.” The account went on to report: Maddalone, a high school graduate who has been criticized for lacking qualifications, said he is tired of being lampooned: “Am I an ice skater? Yes, I’m very proud of that fact,” he said. Jennifer Skalka, Political firings denied; k Ehrlich administration officials testify at 8-hour legislative hearing, Baltimore Sun, May 12, 2006, at IB.

Also as reported by the Baltimore Sun, on May 23, 2006, a majority of the members of the Special Committee voted to file a lawsuit to compel Maddalone to answer the questions he had declined to answer during his testimony. That same day, in a commentary about the Democratic primary for the gubernatorial race, which by then was in full swing, a Baltimore Sun writer referred to members of the Ehrlich Administration as “those people who introduced us to the Prince of Darkness [as Steffen acknowledged was his nickname] and the Avenging Ice Dancer,” obviously Maddalone. Doug Donovan, Aides cast best light on O’Malley shuffle; Maryland Votes 2006, Baltimore Sun, May 23, 2006, at IB. In early June 2006, the Special Committee followed through, and by Delegate Jones filed suit in the Circuit Court for Baltimore County to compel Maddalone to answer the unanswered questions, a development that itself garnered significant press coverage. 8 ⁵⁶¹ In the agency hearing, Maddalone introduced evidence that, during Mayor O’Malley’s gubernatorial campaign, his website contained an entry criticizing Governor Ehrlich’s distribution of homeland security funds and commenting, plainly in reference to Maddalone, that the Ehrlich Administration had valued political patronage over qualifications.

The Ehrlich administration hired a campaign friend and former ice dancer for a senior position in the Port of Baltimore even though the person had no relevant experience. To further demonstrate the political climate at that time, Maddalone moved into evidence a page from Mayor O’Malley’s campaign sponsored website that, under the caption, “You can judge a man by the company he keeps,” showed a photograph of Maddalone’s head, and the heads of other men, surrounding a photograph of Governor Ehrlich’s head. In an accompanying blurb, the website offered the following assessment of Maddalone: Maddalone had no work experience or higher education outside of professional ice dancing before helping out with Ehrlich’s 2002 campaign. Once Ehrlich was in office, Maddalone was placed in the transit administration as an “axeman” who draped a shirt reading “you’re fired!” over his chair and drew up lists of workers who could be fired.

He is now under investigation by a legislative panel [the Special Committee] for his role in the firings. Maddalone claims he “evaluated programs.” [9] ⁵⁶² On October 30, 2006, before there was a ruling in the lawsuit to compel testimony, the Special Committee issued a 133-page Majority Report that among other things found that some dismissals from state employment during the Ehrlich Administration had been made based on political considerations; and recommended that the law applicable to “[political [terminations” be “[c]larif[ied] ... to make it clear that illegal political terminations include a termination to create a position for a new employee with regard to the new employee’s political affiliation, belief, or opinion.” Md. Gen. Assy., Special Comm, on State Employee Rights and Protections, Final Report, at xii (Oct. 30, 2006). Maddalone was described in the Majority Report as an “operative” of the Ehrlich Administration “who had no apparent qualifications other than that [he was] a political loyalist” and who was “dispatched to top levels of State agencies to identify employees to terminate.” Id. at 122.

The Special Committee members who formed the majority all were Democrats. Four members of the Special Committee, all Republicans, issued a 39-page Minority Report asserting that 1) the evidence did not show that the Ehrlich Administration “illegally separated State employees []or dispatched employees to departments and agencies for the purpose of identifying State employees for dismissal because of their political affiliation”; 2) the majority (Democratic) legislative leaders were “ignoring] the facts and the law for the purpose of preserving its decades-long monopoly, to the detriment of the citizens of Maryland”; and 3) the Special Committee’s investigation had been an expensive and fruitless waste of time. Special Comm, on State Employees Rights and Protections, Minority Report, at 1. On November 7, 2006, Mayor O’Malley won the gubernatorial election.

On December 19, 2006, the Washington Post reported that he had selected former Secretary Porcari to be Secretary of the MDOT. In response to the on-line version of the Washington Post story, a reader identified only as “donniemcclurkin” posted as follows: “The ice dancer can start packing up his You’re Fired T-Shirts. Goodbye Greggie.” ⁵⁶³ In addition to describing and submitting articles about the political climate during his period of state employment, Maddalone testified about his job as emergency response manager and his termination from that job. According to Maddalone, as an emergency response manager, he worked on “various Department emergency response needs,” including cleanup and recovery related to Hurricane Isabel; the “National Capital Regions” program; a “management system being implemented by the federal government to handle the Department’s beginning stages of bay watch,” an early warning system for incidents in Maryland waters; drafting proposals that would streamline communications to various state agencies in the event of an incident; and preparing written policies and procedures for emergency management functions.

He first reported directly to John Gowland, who by then was the Deputy Director of OEPES, and then to John Constabile, who took Gowland’s position (and eventually became Secretary of Transportation in the Ehrlich Administration). As an emergency response manager, Maddalone took two classes “offered by the U.S. FEMA Department Incident and Command System” that he was asked, by department heads, to take. He also underwent training sessions in hurricane and flood emergency response. Maddalone claimed to have had no advance warning that he was going to be fired when he attended the January 23, 2007 meeting with Secretary Porcari and Deputy Secretary Swaim-Staley.

Secretary Porcari said the reason for the termination was that “he was looking to make a change in the Department and hire a more professional workforee[.]” Maddalone testified that that remark “[led him] to believe that the reason for [his] termination was because [he] was unprofessional and unqualified for [his] job.” He acknowledged that that had been the thrust of the criticism leveled against him in the media and by members of the General Assembly. He opined that, given that he only had met Secretary Porcari “one or two other times,” Secretary Porcari “wouldn’t have had the ability to make the decision that 1 was unprofessional or unqualified for my job without having previous knowledge of my—of the ⁵⁶⁴ type of person I was and my political affiliation with the prior administration.” 10 Maddalone knew of three other people who were terminated the day before he was, including Gowland.' Maddalone recounted that, when he occupied his last state position as emergency response manager, he received two performance evaluations, one dated July 12, 2006, that covered the last six months of 2005, and rated him by numerical assessment as “far exceeds standards,” and one dated December 21, 2006, but not finalized until January 3, 2007, that covered the 2006 calendar year, and rated him by numerical assessment as “exceeds standards.” These performance evaluations, which were prepared by John Gowland and signed by John Constabile, were moved into evidence. 11 Maddalone acknowledged before the ALJ that he did not compete for any of the state jobs he held, including the emergency response manager position. He did not file any job applications or take any tests. He was not interviewed and did not submit a résumé.

The only training he received was on the job, i.e., attending some seminars as noted above. Maddalone further acknowledged that he is a high school graduate with some credits earned at the Community College of Baltimore County toward an Associate’s Degree, and that he is still pursuing that degree. He had no training through formal education in emergency services and no prior experience working for any government transportation authority. ⁵⁶⁵ Maddalone claimed that, when working for the MTA, he had implemented but not designed policy. According to Maddalone, after the 2006 gubernatorial election, he became the subject of a “whisper campaign” in the MDOT predicting that “because of the previous administration and the former governor that I would be looking for a new job shortly after the inaugural swearing-in of the incoming administration.” He heard various people in the MDOT say things of that sort.

None of them were in his chain of command. He acknowledged that the talk was “all rumor, whisper.” In the first 23 days of January 2007, he took off seven personal and vacation days, all approved by his supervisor. He acknowledged that, for most of that month, up until the day he was fired, he was “off the clock.” In its case, the MDOT called as witnesses Secretary Porcari, Deputy Secretary Swaim-Staley, and Judy Slater, Director of Human Resources for the MDOT, and moved several documents into evidence. Secretary Porcari testified that he discharged Maddalone in a meeting on January 23, 2007, a Tuesday, with Deputy Secretary Swaim-Staley in attendance.

He told Maddalone he was terminating him from his job with the Executive Service and provided him a termination letter and standard written information given to separated employees. Secretary Porcari explained that he terminated Maddalone’s employment as part of his plan to reorganize the MDOT, especially with regard to homeland security and emergency response duties: I was in this position as secretary on September 11, 2001 rduring the Glendening administration]. The homeland security function is a very important one for me, I am in the process of both reorganizing it and changing its reporting relationship, it will be reporting directly to me.... [A’Jfter September 11th, given the vulnerability of the Department, I guess is one indication of how serious this is to me. The person that I hired for the homeland security coordinator position was the retired deputy director of the National ⁵⁶⁶ Security Agency and the winner of the [NJational [IJntelligence [M]edal. [12] Secretary Porcari further testified that, in replacing Maddalone, he was looking for “a combination of skills, you typically can’t get it all in one person.

But direct experience at the federal, State, or perhaps regional or the local level with emergency management, with intelligence-related issues, and joint-operation issues related to homeland security, with— sometimes with law enforcement experience” and other “managerial skills” such as “significant supervisory experience, budget experience, personnel, and procurement.” He noted that “one of the things that may be required in the reorganization is to advertise at a higher grade position than we have, and I may need the ability to combine positions to do that.” Secretary Porcari made clear that he decided to terminate Maddalone (and John Gowland) from employment immediately, as part of his planned MDOT reorganization, and he made the termination decision by himself sometime after taking-office on Wednesday, January 17, and no later than Friday, January 19, 2007. In that interim, he requested Maddalone’s personnel file for review, but was informed that there was no personnel file for him. To Secretary Porcari, “[t]he fact that nothing was there, [wa]s a bit of a red flag.” He was not aware of any performance reviews for Maddalone. He testified that, “in the context of a larger discussion about reorganization and work that we have to do here -at the Department,” he told Deputy Secretary Swaim-Staley that he was going to be terminating Maddalone and Gowland.

Secretary Porcari had no contact with the Special Committee or involvement in its investigation. He testified that before he was appointed Secretary of the MDOT he had heard ⁵⁶⁷ the name Gregory Maddalone and he had seen it in the newspaper “on several occasions.” He had read some of the reports in the press about Maddalone and thought, “naturally,” that “it did raise questions.” His focus, however, was on “what we do with homeland security and emergency response.” He explained that, as of the time of his testimony (slightly more than three months after he took office), he still was in the process of reorganizing the homeland security and emergency response sections of the MDOT, and had not yet filled the positions vacated by Maddalone and Gowland. Deputy Secretary Swaim-Staley testified that during the January 28, 2007 termination meeting Maddalone asked if he was being terminated because of the change in administrations. Secretary Porcari responded that the termination was due to reorganization of the MDOT.

Deputy Secretary Swaim-Staley understood that the firings happened because Secretary Porcari wanted to put homeland security under his direct supervision, instead of having it remain as part of emergency response services. He was seeking to accomplish that by hiring people with experience in the homeland security area, and understood that it was within “his discretion ... to hire the people he felt most appropriate to fulfil the mission of homeland security.” In their discussion prior to the termination meeting, Secretary Porcari had told her that “it was his discretion as presented by our attorneys and human resources director that we had the authority to hire the people he felt most appropriate to fulfill the mission of homeland security.” Slater was the MDOT’s final witness. As Director of Human Resources for the MDOT, she served as the records custodian of personnel files. Slater testified that, right after Secretary Porcari was appointed, someone in his office made a telephone request for Maddalone’s personnel file.

She retrieved the personnel file and saw it contained only three or four sheets of paper, all of which were standard forms that all state employees must sign to begin work and none of which provided any individualized information about the employee, in this case, Maddalone. The file did not contain a résumé, an ⁵⁶⁸ application, or any performance evaluations. It had no documents with information about Maddalone. At Secretary Porcari’s request, Slater’s department prepared the termination memorandum to Maddalone that the Secretary signed on January 22, 2007, and gave to Maddalone at the January 23, 2007 meeting. 13 In addition to the documents already described above, the MDOT moved into evidence organizational charts for the OEPES and the MDOT Secretary’s Office, dated February 2007, and a “Position Identification Number (‘PIN’) History” for two PINs, printed on February 21, 2007.

That history showed that the PIN Maddalone held as of June 22, 2005, had been vacant since August 31, 2004, and previously had been held by an Administrative Assistant II, at a salary of $39,752. Maddalone was given that PIN as a re-assignment within the MDOT, and the position was changed to Administrator VI, at a salary of $73,859. A week later, that PIN was transferred from the Maryland Port Authority to the MDOT with the notation “Transfer Position & Incumbent”; the starting salary was increased to $74,967; and a new PIN was substituted for the original number. The ALJ issued her final written decision on June 11, 2007.

She concluded that Maddalone had been terminated unconstitutionally. She reasoned that, because Secretary Porcari did not know anything about Maddalone’s qualifications before terminating him from employment, he must have discharged Maddalone for a purely political motive, and only a political motive, based upon the negative press coverage about Maddalone in 2005 and 2006. The ALJ explained, in pertinent part: [Secretary Porcari] conceded that he was unaware of [Maddalone’s] qualifications, as he never saw [Maddalone’s] personnel file, resume, application, or performance appraisals. He also conceded that he was familiar with [Maddalone’s] ⁵⁶⁹ name through news accounts and articles, and said that it did raise questions in his mind about [Maddalone].

He insisted, however, that those accounts were not the basis for his decision to terminate [Maddalone]. According to Secretary Porcari, he is looking for a very specific profile for individuals in this Homeland Security department. In this case, the facts are largely undisputed, with the exception of Secretary Porcari’s reasoning and motivation in terminating [Maddalone] ... Secretary Porcari admitted that he had heard of [Maddalone] through news accounts and it did raise questions] in his mind.

He conceded that he had never met [Maddalone] previously, and he was unfamiliar with his qualifications for his position with OEPES. Secretary Porcari did not review any of [Maddalone’s] personnel information and did not review his performance appraisals. Had he looked at the ... performance appraisals, he would have seen that for the two years that [Maddalone] was an Administrator VI with the OEPES, he received overall ratings of “Far Exceeds Standards” in 2005, and “Exceeds Standards” in 2006. [14] Secretary Porcari testified that he terminated [Maddalone] because he wanted to reorganize the OEPES and bring in more qualified people, perhaps those with federal intelligence and/or Homeland Security experience. However, he terminated [Maddalone] without having the slightest knowledge of whether [Maddalone’s] qualifications could possibly fit the mold of the reorganization he sought.

He made the decision to terminate [Maddalone] two days after he became Acting Secretary. By Secretary Porcari’s own admission, the only knowledge that he had of [Maddalone] was news accounts that questioned whether he was commissioned by the Ehrlich Administration to target people in ⁵⁷⁰ State agencies for hiring and firing,. and questioned his qualifications for any State employment because he is an ice dancer. Secretary Porcari’s credibility regarding the ... termination is therefore severely undermined, because he could not possibly have known whether or not [Maddalone] fit within the framework of his reorganization. Thus, it stands to reason, and I conclude, that [Maddalone] has established that the only knowledge Secretary Porcari had of [him] ivas through politics and the media, and [Maddalone’s] politics were clearly conflicting to Secreta'ry Porcari and that of the new Governor’s administration. [Maddalone] was in a mid-level, non-policy making position, and based on the applicable case law, it was unconstitutional for Secretary Porcari to terminate him for that reason.

As there could be no other reason for the termination, I must conclude that the termination was unconstitutional, and [Maddalone] was improperly terminated. (Emphasis added.) With that, the ALJ reversed the MDOT’s termination of Maddalone’s employment and ordered that he be reinstated to his position as Administrator VI, with full back pay and benefits effective January 23, 2007. On June 25, 2007, the MDOT filed a motion for reconsideration, which Maddalone opposed. The ALJ issued a written decision denying the motion on August 8, 2007.

In it, she clarified that, in her June 11, 2007 decision, she had “credited Secretary Porcari’s testimony that he was looking for employees with more experience in homeland security, law enforcement and the like[,]” and also had “acknowledged and credited, as Secretary Porcari and Deputy Secretary Swaim-Staley testified, that a discussion occurred about reorganizing the OEPES[J” 15 ⁵⁷¹ STANDARD OF REVIEW In an appeal from a circuit court’s judicial review of an administrative agency proceeding, we review the final decision of the agency, not the circuit court. People’s Counsel for Balt. County v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007); Comptroller of the Treasury v. Johns Hopkins Univ., 186 Md.App. 169, 181 , 973 A.2d 256 (2009). In this case, the OAH had authority to make the final agency decision for the MDOT.

COMAR 11.02.08.09A.(3). Thus, it is the ALJ’s final decision that is before us for review. We review final agency decisions under the standards set forth in Md.Code (1984, 2004 Repl.Vol.), section 10-222 of the State Government Article (“SG”). According to that statute, we may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other