Newell v. Runnels

HARRELL, Judge. Concerning the Secretaries of Princes The choice of servants is of no little importance to a prince, and they are good or not according to the discrimination of ⁵⁹⁰ the prince. And the first opinion which one forms of a prince, and of his understanding, is by observing the men he has around him; and when they are capable and faithful he may always be considered wise, because he has known how to recognize the capable and to keep them faithful. But when they are otherwise one cannot form a good opinion of him, for the prime error which he made was in choosing them.

Niccolo Machiavelli, The Prince 108 (W.K. Marriott trans., Borders Classics 2006) (1532). The words of Machiavelli, a government servant who, following a regime change in his city, found himself placed on the rack because the new administration suspected he supported the outgoing administration, seem apt to the present occasion, more than a half of a millennium after they were written: is the populace’s faith in a public official often determined by the successes and failures of those who formulate and implement policy on behalf of the official? Springing from the 2002 election of Jonathan G. Newell to the office of State’s Attorney for Caroline County, Maryland, the present case bears on the rub which occurs when government employees, after throwing their support behind an incumbent public official who ultimately is ousted by the electorate, seek to retain their positions under the new administration. We here consider what has changed since Machiavelli’s time.

In January 2000, Robert Greenleaf was appointed ad interim, State’s Attorney, following the retirement of Christopher J. Jensen, who served as the elected State’s Attorney from 1986 to 2000. Greenleaf decided to run for the position in the 2002 election and secured the Democratic nomination; however, his Republican challenger, Newell, defeated him in the General Election. Five weeks after his victory, Newell held a meeting with three of the ten existing employees of the State’s Attorney’s Office (the “SAO”), at which he informed them that their employment would be terminated when he took office. Newell kept his word, firing all three upon assuming office in January ⁵⁹¹ 2003.

Two of the discharged employees, Susan Runnels and Marjorie Cooper (collectively the “Plaintiffs”), 1 brought suit in the Circuit Court for Worcester County 2 against Newell and the State of Maryland (collectively the “State Defendants”), as well as the County Commissioners for Caroline County (the “County”), alleging that their firings were unconstitutional because they were based on the employees having campaigned on behalf of Greenleaf in his unsuccessful bid for office. They sought reinstatement and back pay. They also asked for back pay for overtime hours for which they claimed they were not properly compensated before the firings. Relevant Factual Background 3 Susan Runnels In 2000, ad interim State’s Attorney Greenleaf hired Susan Runnels as a Victim Witness Coordinator (“VWC”) in the SAO.

Apparently, Runnels excelled in her job; she received a performance bonus from the Caroline County government in 2001 and was named “outstanding employee of the year” for the SAO for 2002. According to the County government’s job description for the VWC position, Runnels performed “clerical work” for assistant prosecutors and acted as a liaison between them and the victims and witnesses in the cases they prosecuted. Specifically, she helped prepare criminal informations and witness subpoenas. She also scheduled meetings between the prosecutors and the victims and witnesses, telephoned witnesses to confirm their court attendance and advise them of postponements, and called witnesses into the courtroom for ⁵⁹² their testimony during trials.

As a VWC, Runnels’s direct superior, according to the SAO’s formal hierarchy, was the Office’s Administrative Coordinator; however, her activities in practice were supervised by the assistant prosecutors handling the cases to which she was assigned. She was earning $11.30 per hour at the time of the firing at issue. Although it was not a formal part of her job duties as a VWC, Runnels volunteered to serve on a “Hot Spots” committee, a crime-prevention coalition in Caroline County. The committee included the Mayor of the Town of Federalsburg, the Deputy State’s Attorney, and members of the local law enforcement and social services professions.

Runnels was responsible primarily for note-taking during the committee’s meetings. Marjorie Cooper In 1987, Jensen, then the elected head of the SAO, hired Marjorie Cooper as the SAO’s first VWC. During her time in that position, Cooper trained later-hired VWCs, including Runnels. She claimed that she and the Office’s prosecutors worked with the State Attorney General’s Office and VWCs from other counties to develop the contours of the VWC position at the SAO; she considered her contribution to that effort to be “important.” Jensen stated that Cooper worked with the prosecutors and staff in developing “streamlined methods of handling larger volumes of cases.” Cooper consistently performed well as a VWC, generally receiving good evaluations from her superiors.

Indeed, Jensen recollected that she received an award for her service. In 2001, ad interim State’s Attorney Greenleaf promoted Cooper to the position of Senior District Court Coordinator. In her new position, Cooper’s direct superior was the Office’s Administrative Coordinator. The Administrative Coordinator reported to the Deputy State’s Attorney, who, in turn, reported to the State’s Attorney.

Cooper’s duties as Senior District Court Coordinator included: pulling case files; subpoenaing witnesses; filing; and performing similar clerical tasks to aide assistant prosecutors in handling their cases. She also contin ⁵⁹³ ued to perform VWC duties for juvenile cases and fílled-in for other VWCs when they were absent; however, she had much less contact with victims and witnesses then she did before becoming Senior District Court Coordinator. Cooper was earning $14.58 per hour at the time she was fired. The Victim Witness Coordinator Position Throughout this litigation, the nature of the VWC position in the SAO was contested ardently.

On one hand, the State Defendants contend that, as a VWC, Runnels held a unique position of trust and confidence, which justified Newell in dismissing her for campaigning on behalf of his General Election opponent. Although Cooper was no longer officially a VWC, she often continued to serve in that capacity, and thus, according to the State Defendants, Newell was justified also in dismissing her for campaigning against his election. The Plaintiffs, on the other hand, assert that their job duties were predominantly clerical and, therefore, did not permit for Newell’s actions under the circumstances. The official job classification for the VWC position with the SAO provides: This [position] is clerical work at the experienced level.

An incumbent in this class, with general supervision from the State’s Attorney, coordinates appearances of victims and witnesses at trials and performs certain clerical work as directed. Assignments are stable in nature and are carried out in accordance with established precedents and well-defined policies. An employee in this class is permitted flexibility and the exercising of some independent judgment in carrying out the assigned staff responsibilities. Contact with others is an important part of the job, requiring the employee to be tactful and discreet to obtain cooperation.

Work is checked initially on an ongoing basis. Once the employee has been thoroughly trained, work is spot checked to assure compliance with standards. 4 ⁵⁹⁴ Applicants for the VWC position supposedly were to possess the minimum attributes of a high school diploma (or GED) and two years of office experience, preferably “with an agency dealing with the administration of justice.” Neither Runnels nor Cooper possessed the required office experience when initially hired to work for the SAO. At his deposition taken in this case, Jensen testified that, during his tenure, the job of a VWC was “to better facilitate the victims’ knowledge of the ... day-to-day details of the case that ... the attorneys were either not involved with themselves, such as scheduling and that sort of thing, or didn’t have time to communicate.” Jensen also stated that VWCs contacted witnesses to ensure that they received their subpoenas and were aware of their court dates. According to him, if witnesses or victims had questions “beyond administrative questions,” VWCs communicated those questions to the assigned prosecutors; however, the record, from what we can discern, does not reflect who responded back to the victims and witnesses with answers.

Jensen characterized the position of VWC as one of trust, noting further that he believed the purposes of the position included “enhancing] communications between the public and the S[AO]” and “communicating to the public the philosophy ... of the prosecutor”; however, he did not consider VWCs to be policymakers in the scheme of the SAO’s operation. Greenleaf testified that VWCs often spoke with victims and witnesses outside the presence of the prosecutors. He did not believe Plaintiffs held positions of trust within the SAO; however, he said he needed to have faith in them. In that regard, he elaborated that “I expected people to do their jobs and to do them correctly and efficiently.

It didn’t matter whether I trusted them or not ... I wanted to see if they did their job.” Both Greenleaf and Jensen said they thought of VWCs as “public face[s]” of the SAO. For their part, Plaintiffs characterized their job duties as clerical support for the prosecutors. Indeed, Runnels claimed that, when she was absent, the receptionist typically filled-in ⁵⁹⁵ for her as a VWC.

Yet, Plaintiffs also conceived their positions as ones of trust and believed they were “at-will” employees. Neither, however, played a role in deciding who to charge in a case or in formulating prosecutorial strategy. They were not permitted to give legal advice to victims or witnesses, and they averred that they did not act as spokespersons for the SAO with the news media or general public. Both acknowledged that they sometimes explained to victims and witnesses legal concepts, including such things as restitution, probation before judgment, spousal privilege, and the privilege against self-incrimination; however, the record does not reflect whether their explanations were limited to rote definitions, involved individualized factual assessments, or fell somewhere in-between.

Runnels recalled that, often, she was unable to answer the questions of victims and witnesses and had to refer the victims and witnesses to attorneys. Plaintiffs also acknowledged that they helped victims prepare “victim impact statements,” but the record does not reveal how substantive was this guidance. VWC duties in the SAO changed after Plaintiffs’ employment ended. Newell explained at his deposition that he “rearranged the positions somewhat” by requiring assistant prosecutors to shoulder more interaction with victims and witnesses.

The 2002 Campaign and Election Plaintiffs actively supported ad interim State’s Attorney Greenleaf s campaign to become the elected State’s Attorney for Caroline County. Although a registered Republican, Runnels volunteered as his campaign manager and treasurer. She distributed campaign materials and placed a Greenleaf sign in her yard and a Greenleaf bumper sticker on her car. On election day, she distributed Greenleaf literature at a polling place. 5 Cooper, a Democrat, did not occupy an official position with the Greenleaf campaign, but she was an outspoken ⁵⁹⁶ supporter.

She placed a sign in her yard, wrote a supportive letter to the editor of a local newspaper, and distributed his political literature on election day. The Plaintiffs wore Green-leaf buttons at work (until a local judge directed them to stop), and there was testimony suggesting that they campaigned for Greenleaf at work. During the election season, Newell was serving as the Deputy State’s Attorney for Kent County, Maryland; however, he knew Runnels and Cooper previously because he worked as an Assistant Public Defender in Caroline County until early 2001 and had opportunities to interact with them. Newell stated in his deposition that his problems with Plaintiffs resulted from his professional experience with them while an Assistant Public Defender and had little to do with their support for Greenleaf; however, he admitted that he never complained contemporaneously to anyone in the SAO about Plaintiffs’ conduct in this regard.

Newell perceived that Plaintiffs often were disrespectful to him and his clients. He also claimed that occasionally he overheard Runnels make comments to members of the public, such as “don’t ask me, that’s not my job description” and “don’t ask me, I only work here.” He believed Runnels misinformed domestic violence victims that they were required to testify against their spouses. Cooper, Newell recalled, routinely neglected to issue subpoenas, resulting in unnecessary postponements and prompting many complaints from law enforcement officers. He also said that she often appeared to be “coming and going [from work] when she wanted to” and that he sometimes heard her using profanity.

Newell asserted that his opinions of Plaintiffs were echoed by others who encountered the SAO and, accordingly, he campaigned on a platform of “change.” Indeed, he told supporters at a fundraiser that he intended to “make some major changes in the office.” Others, however, contradicted ⁵⁹⁷ this, recollecting that he stated on the campaign trail that he did not intend to make staffing changes, if elected. Moreover, according to Federalsburg Police Chief Donald Nagel (Runnels’s son-in-law) Newell was agitated by Runnels’s overt support for Greenleaf during the campaign. Chief Nagel made an affidavit in this case stating that Newell repeatedly commented to him that, considering Greenleaf might lose the election, Runnels “must not like her job very much.” Newell defeated Greenleaf on 5 November 2002. He declined Greenleaf s request for a meeting to discuss the continued employment of SAO staff.

Runnels called Newell to congratulate him and explain that she supported Greenleaf out of a sense of loyalty to the SAO, but would be just as loyal to him when he took office. After his election victory, Newell met with Charles Cawley, the Caroline County Administrator, to discuss budget issues. At that time, he informed Cawley of his intention to fire Plaintiffs. Cawley suggested to Newell that he “give it some time before ... mak[ing] his decision! ] and ... evaluate [Plaintiffs’] work performance[s]”; however, Cawley testified that he did not press the issue further because Newell appeared to have made up his mind.

In December 2002, Newell met with Plaintiffs and an Assistant State’s Attorney, who he believed was loyal to Greenleaf, and informed them that they would be terminated when his term of office began in January. Newell explained that their terminations were not because of poor performance and none of them were in any way at fault. This prompted Runnels to inquire of him whether his decision was based on their having campaigned for Greenleaf, to which Newell reportedly replied “absolutely not,” in a tone that Runnels characterized as sarcastic. Newell told Runnels that she should have known that, when Greenleaf lost, she would not retain her job. 6 Plaintiffs’ employment with the SAO ended officially on 6 January 2003.

Newell maintained that he fired the Plaintiffs ⁵⁹⁸ because he could not trust them. Among the many reasons for that distrust, he noted that he believed Plaintiffs would “continue to be loyal to Greenleaf’; however, he clarified that he did not fear that they would campaign for Greenleaf if Greenleaf chose to run again. Instead, he claimed to be “more concerned that they would undermine what [he] needed to do in [his] office [ ] and leak out information and spread falsehoods, et cetera.” When asked at his deposition why he retained other employees when he assumed office, Newell responded: I really didn’t trust any of them. I was willing to try to trust a few of them to see how it worked out, because, frankly, otherwise I would have been by myself in an empty office with the phones ringing and me not knowing where the paper clips are.

So, I sort of had to take a chance with some of them. I chose those who I didn’t have any reason to believe [ ] had work ethic issues, and that’s what I did.... County Control Over Plaintiffs’ Work and Compensation Plaintiffs alleged that, before their firing, they were required frequently to work more than 40 hours per week, but were not compensated with overtime pay for their services. Although they worked for the State’s Attorney, a State official, 7 Plaintiffs were paid by the County.

Plaintiffs, like other employees of the SAO, were enrolled in the County’s benefits program for County employees. The County allocated a line item for overtime pay in the SAO’s budget. Plaintiffs attested that internal SAO policy directed them to maintain separate records reflecting their work hours: on ⁵⁹⁹ “time cards,” they recorded that they worked eight hours each day, whether true or not; and on “comp sheets,” they recorded the number of hours, in excess of eight, that they worked each day. They turned their “time cards” into the SAO’s Administrative Coordinator, who in turn submitted them to the County.

The County relied on the “time cards” to pay SAO staff. The “comp sheets,” however, served as a tool, within the SAO, to allow staff members that worked longer than the eight hour workday to exchange the extra hours at a later time without reporting on their “time cards” that they worked less than eight hours on the day that they used their comp-time. Plaintiffs did not object contemporaneously to anyone about receiving comp-time in lieu of overtime pay. According to ad interim State’s Attorney Greenleaf, he structured this dual time-keeping scheme because the County informed him that overtime pay could not exceed the dollar amount reflected on the SAO budget for that line item.

He inherited the dual time-keeping system from his predecessor, Jensen, who stated that the County told him that he had no choice but to use compensatory time, instead of paying his staff for overtime. In February 2001, however, Greenleaf modified Jensen’s policy of awarding comp-time at a rate of “time and a half,” dictating instead that SAO staff be awarded comp-time on a “time for time” basis. 8 For his part, Greenleaf maintained that he changed the comp-time policy at the behest of Cawley, the County Administrator, following a specific incident in which, according to Greenleaf, Cawley approved overtime pay for Cooper, but later changed his mind and asked the SAO to return the funds to the County. Evidence was advanced in this litigation that suggested that the County might have had some knowledge that SAO staff members worked in excess of 40 hours per week without ⁶⁰⁰ receiving overtime pay. Greenleaf stated that he maintained the comp-time policy in accordance with Cawley’s wishes.

The County was aware of the SAO’s budgeting needs and increasing caseload. Jensen and Greenleaf both claimed that they repeatedly asked for more money to fund overtime. Cooper informed the County of her accumulated comp-time when she left the SAO earlier on maternity leave and, so she stated, occasionally discussed the SAO’s comp-time policy with someone in the County’s accounting and billing office. Runnels asserted that, when Newell fired her, she inquired of the County about cashing-out her accumulated comp-time and was told that was not possible because it was a “use or lose” proposition.

She also said that the individual she spoke with did not seem surprised that she had accumulated so much comp-time. The County, however, never saw the “comp sheets” maintained within the SAO. County responsibility for the SAO was not limited to paying the salaries and benefits of SAO staff and deciding the SAO’s budget. Newly hired SAO staff underwent “orientation” at the County Administrator’s Office.

Jensen, during his tenure as State’s Attorney, attended the meetings of County government department heads. He also indicated that he was obliged to get the County’s permission to hire new employees, even if doing so would not have caused an increase in an existing budget allocation; he further maintained that the SAO had to follow the County’s personnel “handbook” when hiring new employees. Although Cooper and Jensen collaborated to develop the parameters of the VWC position in the SAO, an employment consultant hired by the County classified the position for salary purposes. When it came to firing staff members, Jensen recalled that his actions in that regard were subject to review by the County before they became effective.

On one occasion, the County allegedly stripped Greenleaf of his right to hire a secretary for the Drug Task Force program, a coalition of representatives from the SAO, the Sheriffs Office, the State Police, and the Caroline County Police. 9 He ⁶⁰¹ asked the County to rescind the offer it made to a candidate it had selected for the position; the County refused. Greenleaf also recounted that effectively the County fired a SAO investigator, without SAO approval, by eliminating funding for the position. According to Greenleaf, the County also took the position that the “the local police agency” should handle SAO investigations. 10 Although the parties to this litigation agree that, in July 2000, the County enacted an ordinance explicitly providing that the SAO staff are not to be deemed County employees, they disagree as to the law’s effect. Plaintiffs contend that the law changed nothing in terms of County control over SAO operations.

They point to one event in particular to bolster their view. When Runnels learned that she would be fired, she decided to use some of her administrative leave time. Upon her return, she discovered that the County had removed her computer and rerouted her telephone line to another SAO employee. The catalyst for the County’s action, according to Cawley, was the outgoing voice-mail message that Runnels left for callers.

Cawley considered the message inappropriate for a “county-owned line,” and, on his own initiative and without permission from anyone at the SAO, ordered Runnels’s phone line rerouted and her computer’s hard drive searched by the County’s Information Technology department. He believed he did not need SAO approval to do so. Cawley explained that it appeared Runnels deleted files from her computer; however, he said that, when he spoke with her, she had “a satisfactory explanation.” Runnels elaborated on the incident, testifying that Cawley informed her that, had she not provided him with a good explanation, he would have terminated her as “not in good standing with the County.” ⁶⁰² On another occasion, Cawley refused to allow Greenleaf to implement a scheduling policy in the SAO that would have allowed SAO employees to choose what hours they wanted to work as long as they put in a total of 40 hours per week and they completed all of their assigned work. Greenleaf recalled that Cawley vetoed the idea because it would not have reflected the specific hours worked in a given day.

Proceedings Below In December 2003, Plaintiffs filed, in the Circuit Court for Caroline County, a complaint against the State Defendants and the County. The case was removed to the Circuit Court for Worcester County as noted earlier. The first three counts of Plaintiffs’ complaint advanced their overarching claim that they lost their jobs because they campaigned on behalf of Greenleaf. In Count I, they asserted a First Amendment violation under 42 U.S.C. § 1983 ; in Count II, they asserted a companion State constitutional claim; 11 and, in Count III, they asserted a common law claim of abusive discharge based on Newell’s firing them for engaging in protected political speech. 12 Supporting their abusive discharge claim, Plaintiffs pointed to provisions of the State Personnel and Pensions Article and Article 24 of the Maryland Code, which grant public employees a statutory right to engage in political activity. 13 Counts IV through VI of the complaint explicated ⁶⁰³ Plaintiffs’ allegation that they were not compensated properly for overtime work. 14 The Circuit Court for Worcester County awarded summary judgment to the State Defendants and the County on all counts.

Specifically, the court found summary judgment appropriate for the State Defendants on Counts I and II because, it reasoned, Plaintiffs’ overt political support for Green-leaf provided Newell with an adequate justification for firing them. The court considered the application of two possible analytical tests for the circumstances: (1) the Pickering test, from Pickering v. Bd. of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), which governs cases where a government employee claims to have been fired for engaging in protected speech or expressive conduct, and which requires courts to balance the government’s interest in regulating the workplace against the employee’s interest in exercising her or his right to free speech; and (2) the Elrod/Branti test, from Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), which governs cases where a government employee claims to have been fired for political patronage reasons, and which categorically allows the government to fire certain policymaking employees because of their political party affiliation. The trial court observed that, under the Pickering test, Plaintiffs’ right to campaign for Greenleaf did not have to yield to Newell’s right to run an efficient workplace because Newell had no reason to believe that “services of the SAO were in any way affected by Plaintiffs’ ” campaigning for Greenleaf. But, the court nonetheless awarded summary judgment to the State Defendants because it resolved that the ⁶⁰⁴ Elrod/Branti test was the more appropriate test to be applied under the circumstances.

To that end, the court reasoned that Plaintiffs’ employment positions made them the “public facets] of the SAO” and required them to exercise “confidentiality and discretion in implementing policy.” The court also reasoned that campaign activity is a proxy for political party affiliation, which allowed Newell to dismiss Plaintiffs for campaigning against him, just as he could have dismissed them for being members of a different political party. 15 Alternatively, the Circuit Court concluded that summary judgment was appropriate in favor of Newell, in his individual capacity. According to the court, he enjoyed Federal qualified immunity from the Count I claim. With respect to Count II, the court determined that Newell enjoyed State personnel immunity pursuant to the Maryland Tort Claims Act (the “MTCA”). 16 Regarding Count Ill’s abusive discharge claim, the Circuit Court concluded that Maryland does not recognize this cause of action on the basis asserted by Plaintiffs, namely the right to participate in political activity. The court found appropriate granting summary judgment on Counts I through III in favor of the County, concluding that Newell is a State official and Plaintiffs failed to show any reason why his actions should be imputed to the County, even if one assumed those actions to be unlawful.

With respect to Counts IV through VI, which effectively were claims under the Federal Fair Labor Standards Act (the “FLSA”) 17 and the Maryland Wage and Hour Law (the ⁶⁰⁵ “MWHL”), 18 the court found summary judgment appropriate for the State Defendants because the State did not cede its sovereign immunity from the FLSA claim and was not defined as an “employer” for liability purposes under the MWHL. The court found summary judgment appropriate for the County, concluding that Plaintiffs were State employees and had not produced any facts or other admissible evidence suggesting that the County was their joint employer. Alternatively, the court concluded that Plaintiffs failed to advance a prima facie showing that the County knew of their overtime work. Plaintiffs filed a timely appeal to the Court of Special Appeals, which, in a reported opinion, reversed in part and affirmed in part the judgment of the Circuit Court.

Runnels v. Newell, 179 Md.App. 168 , 944 A.2d 1183 (2008). Relying on O’Leary v. Shipley, 313 Md. 189 , 545 A.2d 17 (1988), the Court of Special Appeals held that the trial court erred by applying the Elrod/Branti test and, therefore, should not have awarded summary judgment to the State Defendants on Counts I and II. The intermediate appellate court considered O’Leary , which applied the Pickering test, dispositive on the issue of what test applies to an employee discharge claim based on retribution for political campaign activity. The court also held that a jury question existed as to whether qualified immunity protected Newell from the Count I claim, reasoning that a jury might conclude that he should have known that the First Amendment forbade firing the Plaintiffs.

Likewise, it held that a jury question existed as to whether State personnel immunity protected Newell from Count II, reasoning that a jury might conclude that Newell acted with malice or gross negligence in firing the Plaintiffs. The intermediate appellate court, however, affirmed the Circuit Court’s award of summary judgment to the State Defendants on Count III, noting that Count III essentially was a rehashing of Counts I and II. Plaintiffs did not challenge in their appeal the Circuit Court’s ⁶⁰⁶ award of summary judgment to the State Defendants on the FLSA and MWHL claims. Accordingly, the Court of Special Appeals did not address those claims.

Regarding the County, the Court of Special Appeals affirmed the Circuit Court’s award of summary judgment to the County on Counts I through III, on the basis that Plaintiffs did not adduce a sufficient evidentiary predicate to extend liability to the County; however, it reversed the Circuit Court’s award of summary judgment to the County on the FLSA and the MWHL claims, concluding that, if believed, sufficient facts were alleged from which a trier of fact could find that the County was a joint employer of Plaintiffs and knew of their overtime work. The State Defendants, the County, and Plaintiffs all sought writs of certiorari from this Court to address their respective dissatisfaction with the judgment of the intermediate appellate court. We granted all of the petitions to consider the following questions, which we have rephrased: I. Was Newell authorized, by the First Amendment and its State Constitution counterpart, to discharge Plaintiffs solely for campaigning for his opponent?

II

When he fired Plaintiffs, did Newell -violate their clearly established First Amendment rights, such that he may be held liable, in his individual capacity, under 42 U.S.C.A. § 1983 ?

III

Did Plaintiffs generate a triable issue as to whether Newell acted with malice or gross negligence when he fired them, such that he, in his individual capacity, could be held liable to them under the MTCA?

IV

Does the dismissal of a government employee for exercising her or his statutory right to engage freely in political activity constitute an actionable abusive discharge distinct from the employee’s constitutional claims? V. Did Plaintiffs generate a triable issue as to whether the County, for purposes of imposing liability on the County ⁶⁰⁷ under Federal and State overtime laws, was their joint employer?

VI

Even if the County was the joint employer of Plaintiffs, did Plaintiffs generate a triable issue as to whether the County, for purposes of imposing liability on the County under Federal and State overtime laws, had actual or constructive knowledge of their overtime work? Newell v. Runnels, 405 Md. 290 , 950 A.2d 828 (2008). 19 The Maryland State’s Attorneys’ Association filed a brief as Amicus Curiae in support of Newell. Several counties submitted an Amicus brief in support of the County. The Public Justice Center and the Maryland Employment Lawyers Association submitted an Amicus brief in support of Plaintiffs.

For the reasons that follow, we affirm in part and reverse in part the judgment of the intermediate appellate court. Standard of Review Maryland Rule 2-501 provides, in relevant part: (a) Motion. Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. We construe the factual record in the light most favorable to the non-movants.

Gourdine v. Crews, 405 Md. 722, 735 , 955 A.2d 769, 777 (2008); Am. Powerlifting Ass’n v. Cotillo, 401 Md. 658, 668 , 934 A.2d 27, 34 (2007);. We do not endeavor to resolve factual disputes, but merely determine whether they exist and “ ‘are sufficiently material to be tried.’ ” Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 534 , 836 A.2d 655, 670 (2003) (quoting Taylor v. NationsBank, 365 Md. 166, 173 , 776 A.2d 645, 650 (2001)). “Where a dispute ⁶⁰⁸ regarding a fact can have no impact on the outcome of the case, it is not a dispute of material fact such that it can prevent a grant of summary judgment.” Am. Powerlifting Ass’n, 401 Md. at 668 , 934 A.2d at 34 .

If no material facts are in dispute, we determine whether the trial judge’s ruling was legally correct. Gourdine, 405 Md. at 735 , 955 A.2d at 777 . Ordinarily, we may affirm the trial court “ ‘only [on] the grounds upon which the trial court relied in granting summary judgment.’ ” Id. at 736 , 955 A.2d at 778 (quoting Rodriguez v. Clarke, 400 Md. 39, 70 , 926 A.2d 736, 754 (2007)). Analysis I. The first issue is whether there was presented a triable claim as to whether Newell’s firing of Plaintiffs violated their rights under the First Amendment and Article 40 of the Maryland Declaration of Rights.

The protections accorded by Article 40 are generally “coextensive” with the protections accorded by the First Amendment. Jakanna Woodworks, Inc. v. Montgomery County, 344 Md. 584, 595 , 689 A.2d 65, 70 (1997). The Circuit Court awarded summary judgment to the State Defendants on Counts I and II, concluding, on the perception that there were no undisputed material facts, that Plaintiffs’ constitutional freedoms were not violated. The intermediate appellate court reversed.

Runnels, 179 Md.App. at 206 , 944 A.2d at 1206 . For the reasons that follow, we hold that the Circuit Court improperly relied on the Elrod/Branti test in awarding summary judgment to the State Defendants on Counts I and II because disputed issues of material fact preclude summary judgment on that basis. The Circuit Court’s analysis under the Pickering test also was flawed, such that we cannot conclude, as the Circuit Court did, that the balancing, if applicable, favors Plaintiffs. Although the government stands in a different position when dealing with its employees than it does when dealing with other citizens, a government employer, generally, may not fire or demote an employee based on the employee’s ⁶⁰⁹ exercise of her or his First Amendment freedoms.

Garcetti v. Ceballos, 547 U.S. 410, 418 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006); O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 716 , 116 S.Ct. 2353 , 135 L.Ed.2d 874 (1996). This holds true even if the employee is an “at-will” employee, serving at the pleasure of the government employer and who otherwise could “be fired for no reason whatever.” Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 283 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977); see also DeBleecker v. Montgomery County, 292 Md. 498, 506 , 438 A.2d 1348, 1353 (1982). Nevertheless, the First Amendment has been construed to allow for a public employee’s rights as a citizen to yield to the government’s rights as an employer, if the government can demonstrate that the interest advanced by its assailed employment action is “of vital importance” to its operations.

Elrod v. Burns, 427 U.S. 347, 362 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976). “ ‘To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs.’ ” Connick v. Myers, 461 U.S. 138, 151 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983) (quoting Arnett v. Kennedy, 416 U.S. 134, 168 , 94 S.Ct. 1633 , 40 L.Ed.2d 15 (1974)). Yet, “the restrictions it imposes must be directed at speech that has some potential to affect [its] operations.” Garcetti, 547 U.S. at 418 , 126 S.Ct. 1951 . The parties in the present case, we note, disagree about the true reasons Newell fired Plaintiffs. The State Defendants maintain that his decision was supported by a panoply of instances in which he observed them performing poorly their job duties.

Plaintiffs deny such misconduct and claim he was motivated entirely by their overt support for Greenleafs candidacy. This is a factual dispute which we (and the Circuit Court) may not resolve in the procedural posture in which this case reaches us. The State Defendants contend that Newell’s decision was justified, even if based solely on Plaintiffs’ overt support for Greenleaf. Plaintiffs’ rejoin that campaign activity, by itself, is not a constitutionally valid basis for firing a public employee.

Instead, they assert that determining whether Newell ⁶¹⁰ acted lawfully requires a balancing of interests: their right to speak as citizens on a matter of public concern against his right as an employer to run an efficient, successful office. Plaintiffs further argue that this balancing test favors them as a matter of law, thereby generating a jury question as to whether Newell in fact terminated them for campaigning for Greenleaf, as they claim, or for other reasons not implicating constitutional concerns. Both sides rely on decisions of various U.S. Courts of Appeal, which they claim support their respective positions. We think it appropriate first to review the relevant U.S. Supreme Court cases and those of this Court that form the framework for resolving employment discharge claims against the government implicating the First Amendment.

As we observed in O’Leary v. Shipley, 313 Md. 189 , 545 A.2d 17 (1988), there are two tests used to determine whether a government employer lawfully discharged an employee for exercising her or his political rights: the Pickering test and the Elrod/Branti test. The former, which applies when the aggrieved employee was discharged allegedly for engaging in speech or expressive conduct, derives from the Supreme Court’s decision in Pickering v. Bd. of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968); the latter, which applies when the employee was discharged allegedly for political patronage reasons, comes from the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980). In Pickering, supra, the Supreme Court rejected the notion that, in all cases, a government employee, “by virtue of his public employment[,] has a duty of loyalty to support his superiors.” 391 U.S. at 568 , 88 S.Ct. 1731 . The Court held that government employees retain their right to speak as a citizens on “matters of public concern.” Id.

The Court determined that a balancing test is appropriate where that right collides with the government’s right, as an employer, to maintain efficiency in the workplace. Id. There, a teacher was fired by the defendant school board, after writing a letter ⁶¹¹ to a local newspaper criticizing the board’s allocation of financial resources. Id. at 566 , 88 S.Ct. 1731 .

The Court concluded, on the facts before it, that the teacher’s termination violated the First Amendment because his comments were not made to a coworker or superior and his employment relationship with the board was “not the kind of close working relationship[ ] for which it can persuasively be claimed that personal loyalty and confidence are necessary to [its] proper functioning.” Id. at 569-70 , 88 S.Ct. 1731 . Thus, his letter did not threaten “discipline” or “harmony” in the workplace to a degree that outweighed his right to speak as a citizen on a matter of public concern. Id. at 570 , 88 S.Ct. 1731 . The Court also highlighted the significant value to society in allowing a teacher to speak as any citizen on the public issue of how the school board appropriated its funds, commenting that “[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions as to how [school] funds should be spent.” Id. at 572 , 88 S.Ct. 1731 .

The Court, however, envisioned potential scenarios in which an individual’s employment relationship with her or his government employer might require such “confidentiality” or be “of such a personal and intimate nature” that a different result would obtain. Id. at 570 n. 3, 88 S.Ct. 1731 . In Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), the Supreme Court reaffirmed its adherence to the Pickering balancing test in cases where an employment decision is based on an employee’s overt expressive conduct.

The Court rejected the notion that an “at-will” government employee may be discharged summarily for exercising her or his constitutional right to speak on matters of public concern. Mt. Healthy, 429 U.S. at 283 , 97 S.Ct. 568 . Yet, the Court opined that, where multiple considerations play a role in the employer’s decision to fire the employee, the employee should not be immune from termination simply because she or he happened to exercise that right.

Id. at 285-86 , 97 S.Ct. 568 . There, the defendant school board declined to renew the contract of an untenured teacher, citing several incidents in which it believed the teacher acted unprofessional ⁶¹² ly. Id. at 282 , 97 S.Ct. 568 . Among other things, the teacher was involved in a physical altercation with a colleague on one occasion and made an obscene gesture to a group of students on another.

Id. at 281-82 , 97 S.Ct. 568 . He also called a local radio station to voice his dismay over a dress code that the board imposed on its teachers. Id. at 282 , 97 S.Ct. 568 . The Court held that the teacher was required to prove that his constitutionally-protected call to the radio station was a factor substantially contributing to the board’s decision not to renew his contract, a burden which it said he satisfied; however, the Court held further that the board’s action would be constitutional nonetheless, if the board could show, by a preponderance of the evidence, that it would have reached the same decision absent the constitutionally-protected conduct.

Id. at 287 , 97 S.Ct. 568 . Accordingly, the Court remanded the case to give the board an opportunity to do so. Id. Unlike the Pickering balancing test, the Elrod-Bmnti test may be brandished categorically either as a sword or a shield, depending on an employee’s job duties; it provides nonpolicymaking public employees with a sword to overcome firings based on political patronage, while providing government employers with a shield to defeat such claims by policy-making employees.

In Elrod, supra, a plurality of the Supreme Court concluded that a government employer may not discharge an employee based on the employee’s political affiliation, unless the employee is in a “policy making position.” 427 U.S. at 367 , 96 S.Ct. 2673 . There, the defendant sheriff was a Democrat, elected to replace a Republican. Id. at 350 , 96 S.Ct. 2673 . Three “non-civil-service” employees, including the Chief Deputy of the Process Division, sued the newly elected sheriff after he fired them, claiming that the discharge was because they were Republicans.

Id. at 351 , 96 S.Ct. 2673 . Writing for himself and two other justices, Justice Brennan accepted the sheriffs premise that, as an elected official, he required politically loyal employees, “to the end that representative government not be undercut by tactics obstructing the implementation of policies of [his] administration.” Id. at 367 , 96 S.Ct. 2673 . Justice ⁶¹³ Brennan concluded, however, that the sheriffs interests did not outweigh sufficiently the rights of his employees to the point of justifying “wholesale” political patronage. Id. “Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end [because njonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.” Id.

The plurality opinion iterated that nothing in the First Amendment prohibits a government employer from firing an employee if it has a valid, job-related reason for doing so, for example, if the employee was insubordinate or performed poorly her or his job; however, the plurality rejected the idea that “the mere difference of political persuasion motivates poor performance,” stressing that a public employee’s political beliefs “may not be used as a basis for imputing” poor performance. Id. at 365 , 96 S.Ct. 2673 . In Branti, supra, the Court adopted the plurality’s opinion in Elrod ; however, it elaborated on Justice Brennan’s definition of “policymaker.” The Court observed that labels, such as “policymaker” or “confidential,” are not dispositive. Bran-ti, 445 U.S. at 518 , 100 S.Ct. 1287 .

Rather, determining whether the First Amendment permits a government employer to fire an employee based on the employee’s political party affiliation depends on “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Id. at 518 , 100 S.Ct. 1287 . “[I]f an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” Id. at 517 , 100 S.Ct. 1287 . In Branti , two assistant public defenders brought suit against the newly appointed county Public Defender, a Democrat, alleging that he planned to fire them because they were Republicans (although one of them changed his party affiliation to Democrat in an effort to save his job). Id. at 508-09 , 100 S.Ct. 1287 . The Court held that their party affiliations did not justify their terminations because a public defender’s job duties are not ⁶¹⁴ determined by political philosophy; they are determined by the needs of her or his clients.

Id. at 519 , 100 S.Ct. 1287 . In O’Leary, supra, this Court considered whether the Pickering test or the Elrod/Branti test governs when an elected government official of one political party fires an employee of a different party affiliation for campaigning against the official during the official’s run for reelection. A deputy clerk ran and campaigned against her boss in the general election for the office of Clerk of the Circuit Court for Carroll County. O’Leary, 313 Md. at 190-91 , 545 A.2d at 18 .

The deputy lost to her incumbent boss, who fired the deputy after the election. Id. at 191 , 545 A.2d at 18 . She sued, claiming that her discharge violated the First Amendment. Id.

We held Pickering to be the appropriate test, reasoning that “the Elrod-Branti test is a narrow and somewhat rigid one ... and is aptly applied only to a set of facts that, as a threshold matter, show political patronage as the sole motive of discharge.” Id. at 205, 545 A.2d at 25 (italics added). We thought it highly significant that the deputy clerk alleged that her “overt expressive conduct” was the Clerk’s motivation for firing her. Id. at 205-06 , 545 A.2d at 25 . With this framework in mind, we turn to the present case.

The State Defendants argue that the Circuit Court was correct in applying the Elrod/Branti test and, accordingly, correct in granting their motion for summary judgment. For the Elrod/Branti test to apply appropriately, however, two analytical leaps must occur. First, we would have to accept that Plaintiff's were “policymakers.” 20 —that is to say that they held positions in the SAO for which affiliation with the same political party as Newell was “an appropriate requirement for ⁶¹⁵ the effective performance” of the positions’ inherent duties. Branti, 445 U.S. at 518 , 100 S.Ct. 1287 .

Second, we also would have to accept that campaign activity serves as a stand-in or proxy for political party affiliation. In that regard, the State Defendants ask us to revisit our holding in O’Leary , asserting that the “doctrinal landscape” has changed since the Court decided that case. They argue that the U.S. Court of Appeals for the Fourth Circuit, as well as other courts, have broadened the protection accorded government employers under the Elrod/Branti test beyond firings based on party affiliation to include firings based on campaign activity, thereby categorically allowing a government employer to dismiss a policymaker who campaigned against the employer in the employer’s bid for office. They urge us to do the same.

As we shall explain, we baulk at the edge of the chasms over which we are urged to leap to shield the State Defendants from liability at this stage of the litigation. Too many factual questions remain concerning Plaintiffs’ job duties as VWCs, and, although we accept that the lawful reach of the Elrod/Branti test extends to all patronage dismissals (not just those based on party affiliation), we do not agree that campaign activity necessarily triggers the proper application of this test. The question of whether a discharged public employee was a policymaker, for purposes of the Elrod/Branti test, is a mixed question of law and fact. Hobler v. Brueher, 325 F.3d 1145, 1150 (9th Cir.2003). “[Determining the particular duties of a position is a factual question, while determining whether those duties ultimately make that position a policymaking or confidential [position] is a question of law.” Id.

The proper test to determine if an employee was a policymaker “is not whether the label ‘policymaker’ or ‘confidential’ fits [the] particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, 445 U.S. at 518 , 100 S.Ct. 1287 . “ ‘[Political affiliation is an appropriate requirement when there is a rational connection between ⁶¹⁶ shared ideology and job performance.’ ” Nader v. Blair, 549 F.3d 953, 959 (4th Cir.2008) (quoting Stott v. Haworth, 916 F.2d 134, 142 (4th Cir.1990) (quoting Savage v. Gorski, 850 F.2d 64, 68 (1988))). Otherwise put, it is not enough for the government to show that a public employee’s position entailed policymaking, confidentiality, or the exercise of discretion; as a threshold matter, the government must show that the position related to “partisan political interests ... or concerns” Id. (alteration in original). That is, the position entailed “decision making on issues where there is room for political disagreement on goals or their implementation.” Id.

If the position related to partisan political interests, the government then must show that the inherent duties of the position made the employee “a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement.” Id. The U.S. Court of Appeals for the Sixth Circuit formulated a useful model for ascertaining whether a particular employee’s job duties rendered her or him a policymaker in this context. According to that court, there are four categories of policymakers: Category One: positions specifically named in relevant federal, state, county, or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted; Category Two: positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated; or positions not named in law, possessing by virtue of the jurisdiction’s pattern or practice the same quantum or type of discretionary authority commonly held by category one positions in other jurisdictions; Category Three: confidential advisors who spend a significant portion of their time on the job advising category one or two position-holders on how to exercise their statutory or delegated policymaking authority, or other confidential em ⁶¹⁷ ployees who control the lines of communication to category one positions, category two position[s,] or confidential advisors; Category Four: positions that are part of a group of positions filled by balancing out political party representation, or that are filled by balancing out selections made by different governmental agents or bodies. Murphy v. Cockrell, 505 F.3d 446, 453-54 (6th Cir.2007) (quoting McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir.1996)).

In this case, too many questions remain concerning Plaintiffs’ job duties to affirm the Circuit Court’s grant of summary judgment. Arguably, they may fall into categories two or three of the Murphy paradigm, but that is far from clear on the present record. The State Defendants stress that Newell’s predecessors referred to VWCs as “public facets]” of the SAO. They highlight that Jensen, who hired Cooper, believed the VWC position to be one of “trust.” These points, however, are merely the individual speakers’ characterizations of Plaintiffs’ bundle of job duties.

The State Defendants do not articulate specifically what Plaintiffs did at the SAO that would compel a court to adopt those characterizations as a matter of law. See Lopez-Quinones v. P.R. Nat’l Guard, 526 F.3d 23, 25-26 (1st Cir.2008) (commenting that, under Elrod/Br anti, “duties prevail over titles”); Hobler, 325 F.3d at 1151 (noting that a public employer cannot avoid liability under the First Amendment by simply titling an employee as “confidential staff’). Plaintiffs, if believed, did not act as spokespersons for the SAO with the news media or the general public. The record does not reflect the extent of the discretion exercised by Plaintiffs in explaining legal concepts to victims and witnesses; nor does it reflect how substantive their input was in aiding victims in composing victim impact statements.

The State Defendants’ position is undermined further by the fact that Plaintiffs were not allowed to give legal advice and played no role in deciding what cases to prosecute (a core function of the SAO), as well as by the job classification for the VWC position, which provides that a VWC’s “[assignments ... are carried out in accordance with ⁶¹⁸ established precedents and well-defined policies.” (italics added). We note that some “clerical” employees, depending on the nature of their duties, may be considered properly as policymakers for the sake of applying the Elrod/Branti test. Here, however, while testimony indicated that the Plaintiffs “communicated” non-administrative questions to assistant prosecutors on behalf of victims and witnesses, that does not mean necessarily that they “controlled] the lines of communication” at the SAO, such that they were subject to patronage dismissals. See Faughender v. City of N. Olmsted, 927 F.2d 909, 913 (6th Cir.1991) (allowing new mayor to fire former mayor’s personal secretary for patronage reasons because position as mayor’s secretary was “inherently political” and “controlled] the lines of communication” to the mayor); see also Hobler, 325 F.3d at 1152 (allowing newly elected prosecutor to fire personal secretaries of predecessor where one secretary was responsible for reporting confidentially to the elected prosecutor on the “performance issues” of assistant prosecutors, while the other secretary, without supervision, ran the prosecutor’s child support collection office).

Attempting to amplify the significance of Plaintiffs’ job duties, the State Defendants bootstrap the General Assembly’s increasing attention to the rights of crime victims. 21 They point out that one of Newell’s predecessors confirmed that the elected State’s Attorney puts her or his “reputation” and “credibility” in the hands of VWCs, and they contend that Plaintiffs had access to confidential information, such as trial tactics. For those reasons, they assert, an elected State’s Attorney must have a good working relationship with her or his VWCs. We do not doubt the role played by VWCs in the operation of a prosecutor’s office. Yet, performing significant ⁶¹⁹ work is not the relevant constitutional standard; nor is it whether a position is such that an employee’s ineptitude or lack of professionalism might make the public agency look bad.

Rather, what is important is whether an employee’s duties and performances embraced “decisionmaking on issues where there is room for political disagreement on goals or their implementation.” Nader, 549 F.3d at 959 ; see also Carlson, v. Gorecki, 374 F.3d 461, 465-65 (7th Cir.2004) (holding that summary judgment was not appropriate for newly elected State’s Attorney, who fired the office’s special investigators for political patronage reasons, because there was no evidence that the investigators “handled sensitive political information”); Dickeson v. Quarberg, 844 F.2d 1435 , 1443 n. 7 (10th Cir.1988) (noting that secretary who “undoubtedly had access to confidential information concerning law enforcement matters in criminal and civil cases” was not subject to patronage dismissal because “that information ha[d] no bearing whatsoever on partisan political concerns”). On this record, nothing suggests that whatever, if any, discretion exercised by Plaintiffs satisfies this requirement. The State Defendants rejoin that prosecutors have “precious little room for error” when dealing with victims and witnesses and, thus, poor communication between the SAO and the victims and witnesses may cause a prosecutor’s case to unravel. They bolster their rejoinder by noting recent amendments to Maryland Rule 4-263, which oblige prosecutors and their staff to identify and provide to defense counsel certain information about victims and witnesses.

This argument reinforces the need to have competent employees; it does not justify political patronage. “[T]he mere difference of political persuasion” does not translate to poor performance. Elrod, 427 U.S. at 365 , 96 S.Ct. 2673 ; see also Lopez-Quinones, 526 F.3d at 27 (commenting that “[a]n ability to undermine an operation through incompetence or malfeasance does not mean the actor engaged in policymaking or was a confidante or spokesman for policymakers”). Even if the State Defendants are able to show, on remand, that Plaintiffs were policymakers, we nonetheless are ⁶²⁰ unable to conclude, as a matter of law, that the Elrod/Bmnti test would shield them from liability. In Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), the Supreme Court implicitly recognized that the termination of an assistant prosecutor by a local district attorney, based on her overt expressive conduct, triggered the Pickering test.

There, the district attorney fired the assistant prosecutor for circulating to her coworkers a questionnaire concerning the office’s internal operations, which the Court ultimately held was not a matter of public concern under Pickering sufficient to outweigh the district attorney’s interest in deterring conduct he reasonably believed would disrupt office operations. Connick, 461 U.S. at 154 , 103 S.Ct. 1684 . We cannot conceive of a coherent basis for applying the Pickering test to cases in which a prosecutor is fired for expressive conduct, while allowing the firing of VWCs or other employees in the SAO categorically under Elrod/Bmnti. 22 This Court too has recognized that the termination of a government employee appearing to be a policymaker is assessed under the Pickering balancing test, if the termination was based on expressive conduct. DiGrazia v. County Executive, 288 Md. 437, 454 , 418 A.2d 1191, 1201 (1980) (applying the Pickering test, where county executive fired county director of police for making disparaging remarks about the police force, and holding that fact issues precluded summary judgment).

Accordingly, we decline to hold here that an employee’s status as a policymaker gives the government the categorical right to fire the employee based on the employee’s speech or conduct. The State Defendants anticipatorily respond, however, that campaign activity should not be analyzed like speech or overt expressive conduct, it being more akin to political party affilia ⁶²¹ tion. We agree that the proper reach of the Elrod/Branti test’s protection for government employers extends to all patronage dismissals of policymaking employees, not just those based on party affiliation; however, the dismissal of an employee for her or his campaign activity is not a patronage dismissal necessarily. The First Amendment allows the leeway for the categorical right to fire policymaking employees for political patronage reasons.

See Branti, 445 U.S. at 518 , 100 S.Ct. 1287 ; O’Leary, 313 Md. at 205 , 545 A.2d at 25 ; see also Nader, 549 F.3d at 959 ; Hobler, 325 F.3d at 1149 . Political patronage exists where a government employer “elevates political support to a job requirement.” Terry v. Cook, 866 F.2d 373, 377 (11th Cir.1989). As the U.S. Court of Appeals for the Third Circuit articulated: Members of the same party are presumed to share common interests and goals, and patronage appointments usually come from the same party as the elected official. But identical party affiliation does not necessarily ensure the subordinate’s loyal adherence to the superior’s policies.

Primary election fights can be famously brutal, sometimes more so than contests in the general election, and animosity between candidates is likely to result. Curinga v. City of Clairton, 357 F.3d 305, 311 (3d Cir.2003) (internal citation omitted). While the warmly contested campaign for State’s Attorney for Caroline County underlying this case occurred during a general election, not a primary, this unremarkable point remains salient: even within parties, there is room for considerable political disagreement. A member of the same political party as her or his employer may harbor political ideologies that conflict fundamentally with the policies adopted and implemented by the employer.

See id. at 308 (commenting that plaintiff was an “action team” Democrat opposing the “regular” Democrats). Accordingly, a rule limiting patronage dismissals to antagonists of different party registration could undermine the will of the electorate to the same degree as a ⁶²² rule prohibiting patronage dismissals outright. Be that as it may, a distinction remains between employment decisions based on political patronage and those based on an employee’s exercise of free speech. Barker v. City of Del City, 215 F.3d 1134, 1139 (10th Cir.2000).

The reach of Elrod/Branti’s shield for a public employer, therefore, may be pierced when it intrudes into “the content of [an employee’s] expression of political beliefs.” See Morris v. Crow, 117 F.3d 449, 456 (11th Cir.1997) (italics added) (quoting Terry, 866 F.2d at 377 ). Stated plainly, the mere fact that an employee engaged in campaign activity does not invite application of the Elrod/Branti test; if the speech itself contributed to the employer’s decision to fire her or him, the Pickering balancing test applies. Indeed, the Supreme Court observed, in O’Hare Truck Serv., Inc. v. City of Northlake, that “where specific instances of the employee’s speech or expression ... are intermixed with a political affiliation requirement ..., the balancing Pickering mandates will be inevitable.” 518 U.S. at 719 , 116 S.Ct. 2353 . Accordingly, we reaffirm O’Leary’s central holding—that the Pickering test applies where a discharged employee maintains that speech or expressive conduct “played a role” in the employer’s decision to fire the employee.

See O’Leary, 313 Md. at 205-06 , 545 A.2d at 25 . Although we now extend the meaning of political patronage beyond firings based on party affiliation to encompass all situations where a public employer elevates political support to a job requirement, the Elrod/Branti test continues to apply “only to a set of facts that, as a threshold matter, show political patronage as the sole motive of a discharge.” Id. at 205 , 545 A.2d at 25 (italics added). This rule is consistent with those of other courts which also apply the Pickering test to hybrid cases involving employee discharges based on elements of speech or expressive conduct and elements of political support or lack thereof. See Jordan v. Ector County, 516 F.3d 290, 296 (5th Cir.2008) (“[T]his court has concluded that factual scenarios in which government employers discharge employees based upon their political affiliation, their exercise of their right to free expres ⁶²³ sion, or some combination thereof ‘locate themselves on a spectrum’ ... [which] guides the application of [ ] Pickering balancing.”); Curinga, 357 F.3d at 312 (“O’Hare implied that Pickering balancing should be used when termination is motivated by both a public employee’s speech and political affiliation!.]”).

The State Defendants predict anomalously that a different result would obtain were the present case before a federal court in Maryland because, so they proffer, the U.S. Court of Appeals for the Fourth Circuit treats campaign activity as a proxy for party affiliation for the purposes of the Elrod/Branti test. They rely on Jenkins v. Medford, 119 F.3d 1156 (4th Cir.1997) (en banc), in which a newly elected sheriff dismissed all of the deputies that campaigned for his opponent. There, the court held that deputy sheriffs could be policymakers for the purposes of the Elrod/Branti test. Jenkins, 119 F.3d at 1164 .

The court also recognized “that newly elected or reelected sheriffs may dismiss deputies either because of party affiliation or campaign activity. Either basis is a proxy for loyalty to the sheriff.” Id. To the extent that Jenkins is persuasive authority, we do not see our continued adherence to O’Leary as necessarily inconsistent with it, as the State Defendants contend. Indeed, Jenkins cited, with approval, an earlier decision of the Fourth Circuit, Joyner v. Lancaster, 815 F.2d 20 (4th Cir.1987), which applied the Pickering test in a situation where a sheriffs deputy campaigned against the incumbent sheriff.

Jenkins, 119 F.3d at 1161 (citing Joyner, 815 F.2d at 22-23 ). Jenkins embraced Joyner for the proposition that a court should consider a deputy sheriffs “role in the sheriffs department,” when analyzing a First Amendment claim of retaliatory firing. Id. Importantly, Jenkins did not hold that the Elrod/Branti test applies whenever a public employer fires a policymaker for her or his campaign activity.

Rather, it distinguished Joyner on the basis that, in Joyner , the sheriff fired a particular deputy because the deputy’s specific campaign activities were causing “friction in the department”; the sheriff in Jenkins fired “wholesale” the deputies that campaigned for his opponent because he “elevate[d] ⁶²⁴ political support to a job requirement.” Id. at 1160-61 . 23 Therefore, it appears that the Fourth Circuit, like this Court, recognizes a distinction between dismissals based on campaign activity where the speech itself motivated the employer and those where patronage motivated the employer. The State Defendants also select for emphasis a decision by the U.S. Court of Appeals for the Seventh Circuit for the proposition that “[i]t would be a strange rule that gave more job protection to policymaking employees who vociferously attack their superiors than to policymaking employees who do their best to serve their superiors faithfully but have the misfortune to belong to the wrong party.” Wilbur v. Mahan, 3 F.3d 214, 219 (7th Cir.1993). At its core, this is simply a variation of the argument accepted by the Supreme Court in Mt. Healthy, supra, but which nonetheless does not entitle the State Defendants to summary judgment on this record.

In Mt. Healthy , the Court recognized that a public employee should not be able to engage in protected speech or conduct in order to prevent the employer from firing her or him. 429 U.S. at 286 , 97 S.Ct. 568 . To ensure that a fired employee not be in a better position as the “result of the exercise of constitutionally protected conduct” than the employee would have enjoyed had she or he not engaged in such conduct, the Court held that a fired employee must prove that the protected conduct substantially contributed to her or his discharge, while the government has the opportunity to prove that it would have reached the same decision even in the absence of that conduct. Id. at 286-87 , 97 S.Ct. 568 .

In other words, Mt. Healthy allows a government employer to evade liability by proving that it would have reached the same decision on some other ground that did not run afoul of the First Amendment, such as the employee’s incompetence or insubordination. Be ⁶²⁵ cause the Supreme Court, in Elrod, supra, and Branti, supra, sanctioned expressly, as not running afoul of the First Amendment, a government employer’s right to discharge a policymaker for political patronage reasons, a government employer may defend its decision on that basis, as it could on the basis that the fired employee, for example, was incompetent or insubordinate. In the present case, it is not clear yet that Newell fired Plaintiffs for reasons of political patronage, as some facts suggest that he did not elevate political loyalty to a job requirement in his administration.

Indeed, Newell testified that he “really didn’t trust any of [the SAO employees],” but chose to retain (for a while) those that he did not “believe [ ] had work ethic issues.” Moreover, Newell offered several reasons why he fired Plaintiffs, only one of which was that they supported and campaigned for Greenleaf, and, when Runnels asked whether her campaign activity was his reason for firing her, Newell said it was not, but did so, allegedly, with sarcasm. Newell’s multi-faceted approach to explaining his decision to fire Plaintiffs is susceptible to a trier of fact concluding that he did not elevate political support to a job requirement in his administration and, perhaps, fired Plaintiffs for exercising their rights to free speech. The significance of this evidence is reinforced by other evidence, if believed, tending to show that Newell campaigned on not making staff changes at the SAO. If, on remand, it is determined that Plaintiffs were policymakers and the State Defendants are able to prove satisfactorily that political support was a job requirement in the Newell administration, the State Defendants may have the benefit of Elrod/Branti’s shield; however, if the court concludes that Plaintiffs were not policymakers, proof that political support was a job requirement will not protect the State Defendants.

If Elrod/Branti does not protect the State Defendants on remand, the Pickering test applies. Although it determined that the Elrod/Branti test was controlling, the Circuit Court alternatively found that, if Pick ⁶²⁶ ering governs instead, the balancing favors Plaintiffs. The Circuit Court’s analysis and conclusion that, on this record, the Pickering balancing test favors Plaintiffs is not correct. Pickering directs courts to balance a government employer’s interest in maintaining harmony and efficiency in the workplace against an employee’s right to speak as a citizen on “matters of public concern.” 391 U.S. at 563 , 88 S.Ct. 1731 .

As explained recently by the Supreme Court, the balancing necessarily requires a finding that the aggrieved employee spoke as a citizen, and not pursuant to her or his official duties as an agent of the public employer. Garcetti, 547 U.S. at 421 , 126 S.Ct. 1951 . The balancing also requires a court to determine whether the speech bore on a matter of public concern. Connick, 461 U.S. at 147-48 , 103 S.Ct. 1684 .

If the employee engaged in the controversial speech or conduct while purportedly speaking on the employer’s behalf, or, if the speech did not relate to a matter of public concern, the balancing tilts in the employer’s favor, ordinarily ending a court’s analysis. Otherwise, a court must proceed to assess the needs of the government as an employer. To that end, what the government must demonstrate, in terms of the potential for disruption and the gravity of that disruption, depends on how substantially the employee’s speech touches on a matter of public concern. Id: at 154, 103 S.Ct. 1684 .

While “[t]he ultimate determination of whether speech is constitutionally protected under [the Pickering test] is a question of law for the court, ... in striking the balance^] there may be factual matters appropriate for determination by a jury.” DeBleecker, 292 Md. at 511 , 438 A.2d at 1355 . When applying the Pickering test, courts may consider: (1) the degree to which the employee’s