Public Service Commission v. Wilson

HARRELL, J. We are called upon in this case to review the termination, brief reinstatement, and re-termination of Chrys Wilson in her employment with the Maryland Public Service Commission. In evaluating the propriety of these actions, we first must determine whether the Chairman of the five member Commission, Kenneth D. Schisler, exceeded his authority when, on his initiative, he terminated Wilson without the approval, acquiescence, or delegation of authority of a majority of the full ³⁴ membership of the Commission. We also must determine whether the Circuit Court erred in concluding that, as to the initial termination or re-termination, Wilson was terminated “for cause” and was thus entitled to the statutory protections of Md.Code (1993, 2004 Repl.Vol.), § 11-106 of the State Personnel and Pensions Article. Finally, we must determine, assuming Wilson was discharged simply because she served at the pleasure of the appointing authority, whether the Circuit Court erred in finding that the administrative appeal process provided by statute for such a termination violated due process principles because it only provides for an appeal to the Chairman of the Commission, who, in this case, made the initial decision to terminate Wilson and participated as a member of the Commission in the re-termination action as well.

I. On 15 April 2004, without prior notice that such an action was forthcoming, Chrys Wilson was terminated from her employment as Manager of the Office of External Relations with the Maryland Public Service Commission (“PSC”), a position that she held since 1996. Wilson’s termination took place at the same time four other non-temporary employees of the Commission were removed. 1 The decision to terminate Wilson was made by the Chairman of the Commission, Kenneth D. Schisler. 2 Although Chairman Schisler, in making this personnel decision, allegedly consulted individuals outside of the PSC, he did not seek approval from the other members of the Commission, which consists of five Commissioners (including the Chairman). 3 ³⁵ In a deposition taken by Wilson on 27 September 2004 in the present litigation, Chairman Schisler stated that, prior to Wilson’s termination, he felt that she did not possess sufficient skills, judgment, or work ethic to perform in her position at the level he desired. He also stated that he suspected that, on one occasion, she may have misrepresented on her time sheet the amount of time she actually worked on a given day. The Chairman, however, claimed to have concluded ultimately, as to the time sheet incident, that there was insufficient evidence of wrongdoing and, for that reason, he neither sought nor imposed any disciplinary sanctions.

Chairman Schisler denied in his deposition that he based his termination decision on any performance issues or the incident involving the time sheet. Instead, he pointed out that he did not need to give a reason for Wilson’s termination because of her status as an at-will employee. Indeed, Chairman Schisler’s 15 April 2004 memorandum to Wilson advising her of her termination assigned no reason for the action. At the request of the group of terminated PSC employees and a member of the Legislature, on 27 April 2004 an Assistant Attorney General of Maryland issued an advice letter analyzing the authority of the Chairman to terminate certain employees without the approval of the full Commission.

This letter concluded that, under the relevant statutory scheme, the termination of an employee in the management service 4 may only be effectuated by the “appointing authority,” which by statute possesses the exclusive power to terminate certain at-will employees of the PSC. The Assistant Attorney General concluded that the five Commissioners, as a body, constituted ³⁶ the “appointing authority” of the PSC. The Chairman of the Commission, she concluded, possesses the authority to terminate a management service employee “only if [that authority] has been delegated to him [or her] by the Commission as a whole.” If such a delegation has not been made, the letter opined, the termination of the affected employees would be outside the Chairman’s authority and therefore illegal. Also on 27 April 2004, Wilson apparently filed with the Commission an administrative appeal of her termination pursuant to Md.Code (1993, 2004 RepLVol.), § 11-113 of the State Personnel and Pensions Article, 5 on the grounds that her termination was illegal and unconstitutional. 6 Two days later, three of the Commissioners serving on the Commission at the time of the termination of Wilson signed an affidavit stating that they “did not participate in or direct the termination of [the five employees, including Wilson, terminated by Chairman Schisler on 15 April 2004],” nor did they delegate to Chairman Schisler “any authority to terminate the employment of the aforementioned employees.” Nonetheless, on 12 May 2004, Chairman Schisler, as “head of the principal unit,” 7 reviewed, in light of the apparent issues raised in her appeal, his decision to terminate Wilson and denied her administrative ³⁷ appeal.

In a letter explaining his reasons for denying her appeal, the Chairman concluded that, as a management service employee, Wilson was an at-will employee, was not fired “for cause,” and therefore not entitled to a statutory pretermination hearing. In regard to her First Amendment claim, Chairman Schisler found that Wilson had not presented sufficient evidence that she had been terminated as a result of her political affiliation, opinions, or beliefs. He also concluded that the position of Chairman was the “appointing authority” for the Commission and therefore his exercise of that authority, without approval, acquiescence, or delegation from the full Commission, was not illegal or unconstitutional. Aggrieved by the outcome of the administrative appeal, on 27 May 2004 Wilson filed a ten count complaint in the Circuit Court for Baltimore City seeking essentially declaratory and injunctive relief, including reinstatement as Manager of the Office of External Relations.

The PSC (and Chairman Schisler) and Wilson filed cross-motions for summary judgment. On 19 October 2004, one day before the hearing on the motions, Wilson filed an amended complaint, adding significant additional factual allegations and causes of action, but abandoning others. 8 In her amended complaint and motion for summary judgment, Wilson claimed that her termination was illegal because it was accomplished by the Chairman acting alone, without the approval, acquiescence, or delegation of authority by at least a majority of the full Commission. Wilson also contended that, despite Chairman Schisler’s statements to the contrary at his deposition, she was terminated “for cause” and therefore unlawfully was denied the pretermination process guaranteed by § 11-106 before disciplinary sanctions relating to “employee misconduct” could be imposed. Wilson also alleged that, in the alternative, she was terminated unconstitutionally because of her political beliefs, in violation of Article 40 of the Maryland Declaration of ³⁸ Rights. 9 Furthermore, Wilson maintained that, if she was discharged merely as an at-will employee, and not for cause, the PSC violated her due process rights by failing to provide an impartial agency adjudicator for her post-termination administrative appeal.

The scheduled hearing on the summary judgment motions was held in the Circuit Court, notwithstanding the filing of the amended complaint only a day earlier. On 25 October 2004, the court entered an order containing the following determinations: (1) within the context of the definition of Appointing Authority, the full panel of [the] Public Service Commission comprises a unit of government; (2) the full panel of the Public Service Commission shall act as the Appointing Authority for the Commission unless the authority is delegated by a majority vote of the Commission; (3) the Chairman had neither been delegated the authority to act as the Appointing Authority by the majority of the Commission at the time Chrys Wilson was terminated; nor had a majority of the Commission acquiesced in the Commission’s termination of Chrys Wilson; (4) in light of the foregoing, the termination of Chrys Wilson on April 29, 2004, by the Chairman of the Public Service Commission was unlawful; (5) termination of [Wilson] may only be accomplished by the delegated Appointing Authority, and in the absence of such delegation, a majority vote of the Commission as a whole; [and] (6) neither the Chairman nor any of his employees may lawfully serve as an agency adjudicator regarding his own decision to terminate [Wilson]. The Circuit Court granted Wilson’s motion for summary judgment, denied all of the Commission’s pending motions, ³⁹ and ordered that Wilson be reinstated immediately to her prior position with full back pay from the date of termination. The Circuit Court also directed that “any further personnel actions related to Chrys Wilson ... be consistent with the Court’s ruling....” On 29 October 2004, the Commission sent a letter to Wilson stating: [w]hile the Commission respectfully disagrees with the [Circuit] Court’s determination and intends to note an appeal, the Commission currently is bound by the directive.

Therefore, the Commission hereby reinstates Ms. Chrys Wilson to the position of the Manager of External Relations effective October 29, 2004. The letter continued, however, in a not so conciliatory way: Furthermore, the Commission hereby notifies Ms. Wilson that she is being terminated from her Management Service position with the Maryland Public Service Commission effective October 29, 2004. Ms. Wilson is directed not to report to work. Ms. Wilson is hereby granted administrative leave for October 29, 2004.

In accordance with § 11-118 of the [State Personnel and Pensions Article], Ms. Wilson may appeal the termination by filing a written appeal within 15 days of receipt of this decision. The appeal should be directed to the head of the principal unit and may only be based on the grounds that the action was illegal or unconstitutional. The letter was signed by three Commissioners, including one, Allen M. Freifeld, who was newly appointed to the Commission since Wilson’s initial termination. 10 On 3 November 2004, the Commission noted an appeal to the Court of Special Appeals regarding the Circuit Court’s grant of summary judgment in favor of Wilson. The Commission contemporaneously filed a motion in the Circuit Court asking it to reconsider its award of back pay and benefits.

On ⁴⁰ 4 November 2004, Wilson petitioned the Circuit Court to hold the Commission in contempt of the court’s 25 October 2004 order based on the re-termination. Several days later, the Circuit Court held a hearing on the pending motions. In an order dated 15 November 2004, the Circuit Court denied, without prejudice, Wilson’s petition to hold the Commission in contempt. In the same order, however, the trial judge amended his 25 October 2004 order, retaining the first three determinations, but adding certain new findings: ... 4) the termination of Chrys Wilson on April 15, 2004, by the Chairman of the Public Service Commission was unlawful in that it was a for cause termination as a result of alleged misconduct which was conducted without the statutory protections due Ms. Wilson; 5) in light of the foregoing, the termination of Chrys Wilson on April 15, 2004, by the Chairman of the Public Service Commission was unlawful; 6) any termination of [Wilson] may only be accomplished by the delegated Appointing Authority, and in the absence of such a delegation, a majority vote of the Commission as a whole; 7) [Wilson] is entitled to an impartial, unbiased agency adjudicator in connection with any intraagency appeal of a proposed termination; 8) neither the Chairman nor any of his employees may lawfully serve as an agency adjudicator regarding his own decision to terminate [Wilson]; 9) the October 29, 2004 re-termination of [Wilson] was invalid, illegal and improper because it was tainted by the initial unlawful termination; 10) the October 29, 2004 re-termination of [Wilson] was invalid, illegal and improper because it was a for cause termination as a result of alleged misconduct carried out without the statutory protections required; 12) the October 29, 2004 re-termination of [Wilson] was invalid, illegal and improper because the Commis-. sion adopted the same unconstitutional intra-agency appellate procedure by a biased decision-maker applied in the initial termination....

In addition to the relief afforded in the original 25 October 2004 order (la, reinstatement, back pay, and benefits), the judge ordered that Wilson be “permitted to physically return ⁴¹ to work and perforin the duties of her position as Manager of External Relations.... ” Furthermore, the judge ordered that, “before the Public Service Commission makes additional efforts, if any, to terminate Ms. Wilson’s employment, Ms. Wilson shall be provided a hearing and all process due according to law pursuant to her rights as an individual being terminated for cause as a result of alleged misconduct, this shall include, but not be limited to, the rights found in Section 11-106 of the State Personnel and Pensions Article.” In response to entry of the 15 November 2004 order, the Commission filed a second notice of appeal to the Court of Special Appeals. Before the intermediate appellate court could consider either appeal, 11 this Court, on its initiative, issued a writ of certiorari, 385 Md. 161 , 867 A.2d 1062 (2005), in order to consider the following questions: I. Did the Circuit Court err when, on 15 November 2004, it altered its previous order of 25 October 2004 granting summary judgment in favor of Wilson based on the intervening actions of the Commission?

II

Did the Circuit Court err in determining that the Commission as a whole is the “appointing authority” under Md.Code (1993, 2004 Repl.Vol.), § 11-305 of the State Personnel and Pensions Article and that, as a result, a termination effectuated by the Chairman of the Commission acting alone, without the approval, acquiescence, or delegation of a majority of the full Commission, is unlawful?

III

Did the Circuit Court err in determining that Wilson was terminated “for cause” and thus was entitled to the statutory process under Md.Code (1993, 2004 Repl.Vol.), § 11-106 of the State Personnel and Pensions Article appli ⁴² cable to the imposition of disciplinary sanctions for “employee misconduct”?

IV

Did the Circuit Court err in determining that the statutory intra-agency appeals process under Md.Code (1993, 2004 Repl.Vol.), §§ 11-305 and 11-113 of the State Personnel and Pensions Article governing the termination of certain employees violated Article 24 of the Maryland Declaration of Rights because it failed to provide an impartial adjudicator? V. Did the Circuit Court exceed its authority when it ordered that Wilson be allowed to “physically return to work” after her termination was found to be unlawful?

II

The Commission initially argues that the Circuit Court exceeded its authority by sua, sponte granting summary judgment in favor of Wilson in its 15 November 2004 order and vacating the Commission’s 29 October 2004 re-termination of Wilson. For reasons to be explained, we conclude that the Circuit Court committed no procedural error because, despite the Commission’s characterization of the action taken, the Circuit Court acted within the proper range of its revisory powers under the relevant provisions of the Courts and Judicial Proceedings Article of the Maryland Code and the Maryland Rules. As indicated supra, the Circuit Court, on 25 October 2004, granted Wilson’s motion for summary judgment, finding that both the 15 April 2004 termination of Wilson and the subsequent intra-agency administrative appeal process were unlawful. Based on a post-judgment motion by the Commission to reconsider the award of back pay, the Circuit Court scheduled and held a hearing on 10 November 2004.

The Circuit Court also allowed Wilson, at the hearing, to be heard on her contempt motion filed a few days before. Based on what was presented to it at the 10 November hearing, including what transpired since the 20 October hearing upon which the 25 October order was based, the trial judge, on 15 November ⁴³ 2004, issued an order mirroring to some extent the language of his 25 October order, but adding several additional determinations. Most notable of the additions was the finding that both the 15 April and 29 October terminations were “for cause” and thus unlawful because they were accomplished without the statutory protections due an employee that is terminated for “employee misconduct.” Our review of the record indicates that the 15 November order was not in fact a sna sponte grant of summary judgment, as the Commission contends, but rather a modification of the 25 October order granting Wilson’s motion for summary judgment. Md.Code (1973, 2002 Repl.Vol.), § 6-408 of the Courts and Judicial Proceedings Article states: § 6-408.

Revisory power of court over judgment. For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule. Maryland Rule 2-535(a) states: Rule 2-535.

Revisory power. (a) Generally. On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534 [Motion to alter or amend a judgment — Court decision]. Maryland Rule 2-534 provides: Rule 2-534.

Motion to alter or amend a judgment— Court decision. In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the ⁴⁴ decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial. In Maryland Board of Nursing v. Nechay, 347 Md. 396 , 701 A.2d 405 (1997), we examined a Circuit Court’s power to revise, sua sponte, an order within 30 days of its entry when there existed no intervening motion between the original entry of judgment and the subsequent revision or modification of the order underlying the judgment.

Noting that the Committee note to Rule 2-535(a) states that “[tjhis section is intended to be as comprehensive as Code, Courts Article § 6-408,” the Court concluded that [tjhis suggests strongly that when the Court adopted [Rule 2-535(a)j, it did not intend that the rule supercede the statute or even contradict it; rather it intended that they be read together, complementing or supplementing each other. This is consistent with the teachings of our cases with respect to the power of circuit courts to revise or modify their judgments. In that regard, it is well settled in this State that, “Read together, the rules, the statute and our decisions boil down to a dictate that for a period of thirty days from the entry of a law or equity judgment a circuit court shall have ‘unrestricted discretion’ to revise it.” ... The exercise of the court’s discretion is not triggered exclusively, our cases make clear, by a motion filed by one of the parties.

Nechay, 347 Md. at 408-09 , 701 A.2d at 411 (citations omitted). See also Renbaum v. Custom Holding, Inc., 386 Md. 28, 43-46 , 871 A.2d 554, 563-65 (2005) (finding that, where the Circuit Court initially denied a plaintiffs petition for involuntary dissolution of a corporation, the Circuit Court did not err when, upon motion of the plaintiff pursuant to Rule 2-534, it relied on evidence of events occurring post-judgment to conclude subsequently that involuntary dissolution was proper). ⁴⁵ In this case, the Circuit Court was invited by the Commission’s motion seeking revision, alteration, or amendment, filed within 10 days of the entry of the 25 October order, to reconsider certain aspects of that order, i.e,., back pay and benefits. Although expanding the array of what was reconsidered beyond the scope of that sought in the Commission’s motion, the Court entered its revised order on 15 November 2004, less than 30 days after the entry of the 25 October 2004 order. Thus, even had no party invoked the court’s revisory powers by motion, under § 6-408 of the Courts and Judicial Proceedings Article, Rule 2-535(a), Rule 2-534, and the principles articulated in Nechay and Renbaum , we conclude that the Circuit Court did not err as a matter of procedure in revising and modifying its 25 October 2004 order.

III

The Commission next argues that the Circuit Court erred in concluding that the termination of Wilson on 15 April 2004 was illegal because: 1) the termination decision was not made by the full Commission; 2) she was not afforded the statutorily-mandated procedures for terminations resulting from “employee misconduct;” and, 3) the statutory termination appeal process violated due process because it did not provide for an impartial adjudicator. We need not reach, at this point at least, the latter two issues because we conclude that Chairman Schisler acted outside of his authority when, without the approval, acquiescence, or delegation of authority from a majority of the full Commission, he alone terminated Wilson. A. The question of whether Chairman Schisler, acting alone, possessed the authority, as “appointing authority,” to terminate Wilson without the involvement of the full Commission is one of statutory interpretation and, as such, is purely a legal one. Mohan v. Norris, 386 Md. 63, 66-67 , 871 A.2d 575, 577 (2005).

We therefore review the judgment of the Circuit Court de novo. Id.; see also Davis v. Slater, 383 Md. 599 , ⁴⁶ 604, 861 A.2d 78, 80-81 (2004) (stating that “[b]ecause our interpretation of the Maryland Declaration of Rights and Constitution, provisions of the Maryland Code, and the Maryland Rules are appropriately classified as questions of law, we review the issues de novo to determine if the trial court was legally correct in its rulings on these matters”). B. 1. The PSC was established in 1910 by the Legislature as an independent unit in the Executive branch of State government.

Md.Code (1998, 2004 Supp.), § 2-101 of the Public Utility Companies Article (“PUC”). It has “jurisdiction over each public service company that engages in or operates a utility business in the State and over motor carrier companies as provided in Title 9 [Carrier Companies] of [the Public Utility Companies Article].” PUC § 2-112. Section 2-113(a)(1) of the PUC sets forth a non-exhaustive list of the duties of the PSC: (i) supervise and regulate the public service companies subject to the jurisdiction of the Commission to: 1. ensure their operation in the interest of the public; and 2. promote adequate, economical, and efficient delivery of utility services in the State without unjust discrimination; and (ii) enforce compliance with the requirements of law by public service companies, including requirements with respect to financial condition, capitalization, franchises, plant, manner of operation, rates, and service. Pursuant to the statutory scheme, the governing body of the PSC, the Commission, “consists of five commissioners, appointed by the Governor with the advice and consent of the Senate.” PUC § 2-102.

The Governor also designates one commissioner to hold the position of Chairman. PUC § 2-103. Each of these positions, including the Chairman, serves ⁴⁷ in his or her respective position for a staggered term of five years. PUC § 2-102; § 2-103.

A Commissioner may only be removed from his or her position by the Governor for incompetence or misconduct in accordance with § 3-307 of the State Government Article [Complaints against civil or military officers]. PUC § 2-102. 2. Title 11, Subtitle 3 of the State Personnel and Pensions Article, entitled “Employment Separations and Terminations,” covers all aspects of termination and separation of employment for all non-temporary employees in the State Personnel Management System. § 11-301. Section 11-305 sets forth the termination procedures and protections that apply to certain non-probationary employees: § 11-305.

Termination of other [non-probationary] employees. (a) Applicability of section. — This section only applies to an employee who is in a position: (1) under a special appointment; or (2) in the management service; or (3) in the executive service. (b) Employee at will. — Each employee subject to this section: (1) serves at the pleasure of the employee’s appointing authority; and (2) may be terminated from employment for any reason, solely in the discretion of the appointing authority. (c) Appeal. — An employee or an employee’s representative may file a written appeal of an employment termination under this section as described under § 11-113 of this title.

This statute states clearly that the termination of a management service employee may be effectuated only by the “appointing authority” of an agency. Wilson and the Commis ⁴⁸ sion agree that she, as a management service employee, 12 was subject to the termination procedures outlined in § 11— 305(b)(2) and thus only may be terminated by the “appointing authority.” Wilson and the Commission differ, however, in their respective views as to who or what constitutes the “appointing authority” in this matter. C. The Commission argues that the Circuit Court erred in concluding that the “appointing authority” in this matter is not the Chairman but rather, as Wilson contended, the full membership of the Commission (by at least a vote of a majority of the five Commissioners). In determining who or what is the “appointing authority,” our starting point is the plain language of the relevant statutes.

See Johnson v. Mayor of Baltimore, 387 Md. 1, 23-24 , 874 A.2d 439, 453 (2005) (stating that “the best source of legislative intent is the statute’s plain language and when the language is clear and unambiguous, our inquiry ordinarily ends there”). 1. Although “appointing authority” is not defined in Title 11 of the State Personnel and Pensions Article, that term is defined in § l-101(b). Section 1 — 101(b) defines “appointing authority” as “an individual or a unit of government that has the power to make appointments and terminate employment.” Although this definition appears somewhat circular and redundant in its application to § ll-305(b)(2), the Commission points to the legislative history of that definition in support of its contention that the “appointing authority,” with regard to the Commis ⁴⁹ sion, is the Chairman. In 1993, the definition, found prior to that time in Md.Code (1957, 1988 Repl.Vol., 1992 Cum.Supp.), Art. 64A, § 1(1), was recodified as part of the State Personnel and Pensions Article. 1993 Md. Laws, Chap. 10.

The Re-visor’s Note accompanying § 1 — 101(b) in the 1993 edition of the State Personnel and Pensions Article states: This subsection [§ 1 — 101(b) ] is new language derived without substantive change from former Art. 64A, § 1(1). The reference to an “individual” and a “unit of government” are substituted for the former references to a “person” for clarity. The term “person”, as defined in subsection (h) of this section [codified in the 2004 replacement volume of the State Personnel and Pensions Article as § 1-101(i) ], expressly excludes governmental entities or units. On the other hand, a board, committee, or other governmental unit, which is thus excluded from the definition of the term “person”, might well be designated by some other law as an appointing authority.

Accordingly, the term “unit” is necessary to accommodate that situation. The Commission seizes upon the language in the Re-visor’s Note and certain case law to argue that the “appointing authority” is “an individual unless a statute expressly names the unit of government as the appointing authority instead.” See E. Corr. Inst. v. Howe, 105 Md.App. 167, 172 , 658 A.2d 1182, 1184 (1995) (construing § l-101(b) and its Revisor’s Note to mean that “the term ‘appointing authority’ contemplates a person with authority to make appointments, or a unit of government that has been given that express authority by statute”). Although § 1 — 101(b) and Howe provide that an individual may be the “appointing authority,” we disagree with the Commission’s interpretation that, in the absence of a statute expressly naming a governmental unit as the “appointing authority,” an individual must be the “appointing authority.” The language in Howe must be viewed in the context of the statutory scheme implicated in that case.

In Howe , an individual was named expressly in the relevant statute as the “appointing officer.” 105 Md.App. at 169-70 , 658 A.2d at 1183 (citing Md.Code (1957, 1992 Repl.Vol., 1994 Cum.Supp.), Art. ⁵⁰ 27, § 684(b)(2) (designating the “warden or superintendent of each institution [as] the appointing officer for employees of that institution, and the Commissioner [as] the appointing officer for all other employees in the Department”)). When there is no statute or agency regulation identifying specifically who or what is the “appointing authority,” however, we interpret § 1 — 101(b) and its legislative history to indicate that the “appointing authority” may be either an individual or a unit of government, without presumption as to either. 13 Because, with regard to the Commission, there is no statute relating expressly to the “appointing authority,” it is therefore necessary for us to delve deeper to determine who or what is the “appointing authority” in this case. 2. Wilson argues that, by examining other statutes that relate to the Commission, we should arrive at the conclusion that the five member Commission is the statutory “appointing authority.” Wilson relies specifically on § 2-108(d) of the PUC Article, which, in full context, states: Title 2. Public Service Commission and People’s Counsel.

Subtitle 1. Public Service Commission. § 2-108. Office; meetings; seal; staff. (d) Staff. — (1) The State budget shall provide sufficient money for the Commission to hire, develop, and organize a ⁵¹ staff to perform the functions of the Commission, including analyzing data submitted to the Commission and participating in proceedings as provided in § 3-104 of this article.

(2) (i) As the Commission considers necessary, the Commission shall hire experts including economists, cost of capital experts, rate design experts, accountants, engineers, transportation specialists, and lawyers. (ii) To assist in the regulation of intrastate hazardous liquid pipelines under Title 11, Subtitle 2 of this article, the Commission shall include on its staff at least one engineer who specializes in the storage of and the transportation of hazardous liquid materials by pipeline. (3) The Commission may retain on a case by case basis additional experts as required for a particular matter. (4) The lawyers wrho represent the Commission staff in proceedings before the Commission shall be appointed by the Commission and shall be organized and operate independently of the Office of General Counsel.

(5) (i) As required, the Commission shall hire hearing examiners. (ii) Hearing examiners are a separate organizational unit and shall report directly to the Commission. (6) The Commission shall hire personal staff members for each commissioner as required to provide advice, draft proposed orders and rulings, and perform other personal staff functions. (7) Subject to § 3-104 of this article, the Commission may delegate to a commissioner or personnel the authority to perform an administrative function necessary to carry out a duty of the Commission.

(8) (i) Except as provided in paragraph (ii) of this item or otherwise by law, all personnel of the Commission are subject to the provisions of the State Personnel and Pensions Article. (ii) The following are in the executive service, management service, or are special appointments in the State Personnel Management System: ⁵² 1. each commissioner of the Commission; 2. the Executive Director; 3. the General Counsel and each assistant general counsel; 4. the Executive Secretary; 5. the commissioners’ personal staff members; 6. the chief hearing examiner; and 7. each license hearing officer. This provision, Wilson argues, indicates that it is the five member Commission, rather than the Chairman alone, that is the “individual or ... unit of government that has the power to make appointments and terminate employment.” § 1-101(b). We agree.

Language appears throughout the statute authorizing the Commission to “hire” or “appoint” all types of employees of the PSC. In contrast, there is no mention in this statute, nor any other statute we could find, of language that outlines the Chairman’s authority, independent of the Commission’s, to “hire” or “appoint” employees of the PSC. Although PUC § 2-108(d) does not discuss specifically the authority of the Commission to terminate employees, PUC § 2-108(d) states that “all personnel of the Commission are subject to the provisions of the State Personnel and Pensions Article.” That Article governs the termination of PSC employees, specifically those employees in the executive and management services, and those who are special appointments, all of which “serve[ ] at the pleasure of the employee’s appointing authority” and “may be terminated from employment for any reason, solely in the discretion of the appointing authority.” § 11-305. Because PUC § 2-108(d) constructs a statutory scheme outlining both the Commission’s explicit authority to hire and implicit authority to terminate employees of the PSC, we conclude that the Commission as a whole is the “appointing authority.” 3.

The Commission maintains, however, that Wilson’s interpretation of PUC § 2-108(d) is incorrect because it would serve ⁵³ to render other provisions of the PUC Article superfluous. See Smack v. Dep’t of Health & Mental Hygiene, 378 Md. 298, 305 , 835 A.2d 1175, 1179 (2003) (stating that “statutes are to be interpreted so that no portion is rendered superfluous or nugatory”). The Commission points out that the PUC Article specifically authorizes the Commission to appoint four positions: the Executive Secretary, PUC § 2-104; the Executive Director, PUC § 2-105; the General Counsel, PUC § 2-106; and the License Hearing Officer, PUC § 10-110 (the “statutory positions”). Each position serves “at the pleasure of the Commission.” The Commission argues that, if we adopt Wilson’s interpretation of PUC § 2-108(d), “the Commission would have the authority to appoint all positions and all at-will employees would [therefore] serve at the pleasure of the entire Commission even without these four sections.” Wilson’s interpretation, the Commission protests, therefore renders the four provisions in PUC § 2-104, PUC § 2-105, PUC § 2-106, and PUC § 10-110 superfluous and unnecessary. 14 ⁵⁴ This redundancy, if any exists, has no effect on our reasoning.

Each of the four statutory provisions outlines the specific attributes and capabilities of the four statutory positions. These specific provisions represent merely the design of the Legislature to designate specific positions and how they function within the hierarchy and mission of the PSC. Section 2-108(d) of the PUC, on the other hand, is a broad statute intended to delegate sweeping authority to the Commission to effectuate the hiring of any and all positions necessary for operation of the PSC, including those positions that were not contemplated or considered by the Legislature at the time of enactment of the sections discussed here. ⁵⁵ The Commission, in arguing that the language in those provisions becomes superfluous, emphasizes that the “selves at the pleasure of the Commission” provision was added to PUC § 2-106, the statute governing the appointment of the General Counsel, in the same legislation that adopted the original § 2-108. 1976 Md. Laws, Chap. 756. We conclude, however, that the addition of language stating that each statutory position “serves at the pleasure of the Commission” was necessary to indicate that, unlike some other specifically authorized appointed positions, these positions would not have any set term, but rather would be subject to termination as the Commission saw fit. 15 This is evidenced by the subheading “Term” in each of the respective statutes, with the exception of the License Hearing Officer, preceding the language stating that the statutory positions “serve[ ] at the pleasure of the Commission.” Adopting the Commission’s interpretation of “appointing authority” would create a conflict between the statutory provisions of PUC § 2 — 108(d), § 11-805, and the enabling statutes for the statutory positions.

Section 2 — 108(d) of the PUC provides that the statutory positions of Executive Secretary, Executive Director, General Counsel, and License Hearing Officer are subject to § 11-305, which in turn states that these positions “serve[ ] at the pleasure of the employee’s appointing authority.” Each of these pertinent statutes, however, establishes that each position serves at the pleasure of the Commis ⁵⁶ sion. If, as the Commission contends, the Chairman is the “appointing authority,” those statutory positions would then serve at the pleasure of both the Chairman (as the “appointing authority” under § 11-305) and the Commission (under the enabling provisions). Accepting the Commission’s interpretation would create situations in which an individual employed in one of the special statutory positions would be subject to termination without the acquiescence or approval of the entity upon whose pleasure he or she serves. For example, were we to accept the Commission’s contention that the Chairman is the “appointing authority,” employees within the statutory positions would be subject to termination “solely in the discretion of [the Chairman]” under § 11-305, even though, under the statutes creating these positions, they each “serve[ ] at the pleasure of the Commission.” If the full Commission is the “appointing authority,” as used-in § 11-305 (as referenced in PUC § 2-108(d)), there is no conflict and these interrelated statutes are harmonized. 4.

The Commission also urges us to place weight on the fact that the Chairman of the Commission has “always acted” 16 as the “appointing authority” for the Commission. The Commission cites situations in which past Chairmen exercised, in certain actions (including termination decisions), without apparent objection or challenge, power consistent with that of the “appointing authority.” The Commission argues that its interpretation and implementation of this statutory scheme should be entitled to deference by reviewing courts. See Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376, 381 (1999) (stating that “an administrative agency’s ⁵⁷ interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts”). Such deference, however, is ordinarily only shown to an agency’s longstanding interpretation of a statute that it administers and that involves the special skills and expertise of that agency.

See id. (emphasizing that this deference is only applicable when it involves the interpretation of a statute within the agency’s specific area of expertise). The question of who or what is the “appointing authority” for a particular agency does not involve the special expertise of the Commission in utilities regulation, but rather is a State government personnel matter subject to the statutory interpretation principles that ultimately may become subject to interpretation by the courts of this State. 5. Section 2-108(d)(7) of the PUC authorizes the Commission to “delegate to a commissioner or personnel the authority to perform an administrative function necessary to carry out a duty of the Commission.” 17 As the Assistant Attorney General discussed in her 27 April 2004 advice letter 18 : The exception to the above stated rule [that a termination must be done by the “appointing authority”] would be if the Commission had delegated authority in this area to the Chairman----It is not clear, however, whether the authori ⁵⁸ ty to discipline or terminate the employees in question has been delegated to the Chairman.

In conclusion, if such a delegation has been made, and is broad enough to cover the employees in question, then the firing by the Chairman is within his authority. The record reveals no such delegation in the present case. To the contrary, a majority of the Commissioners sitting at the time of the initial termination of Wilson stated in an affidavit that they “have never delegated to Chairman Kenneth D. Schisler any authority to terminate the employment of the [terminated employees, including Wilson].” Furthermore, Chairman Schisler confirmed at his deposition that a majority of the sitting Commissioners did not vote to delegate to him the authority of “appointing authority.” Nonetheless, the Commission argues that, because the Chairperson has “always acted” as the “appointing authority” for the Commission, this “could be viewed as being indicative of the Commission’s implicit delegation of authority to the Chairman.” We find this argument overreaching on this record and, in any event, unavailing. 19 Even were we to accept the Commission’s essentially unsupported allegation that the Chairman has “always acted” as the “appointing authority,” we are not prepared to recognize the Commission’s “implicit delegation” theory in light of the statutory analysis discussed in this opinion. That a Chairman may not have been challenged in his or her actions in this capacity in the past should not be transmuted into an ongoing delegation in ⁵⁹ direct contravention of the statutory scheme.

Moreover, even if past Chairmen exercised authority in the capacity of “appointing authority” with regard to past terminations, the Commission did not allege any facts, admissible in evidence, that the Commission acquiesced in the actions of the Chairman in affecting the initial termination of Wilson. Rather, a majority of the Commissioners sitting at the time of Wilson’s initial termination disavowed expressly any delegation of authority or approval of Chairman Schisler’s action. That alone rebuts any argued-for inference of an ongoing implicit delegation of authority.

IV

Having determined that the 15 April 2004 termination of Wilson was unlawful because it was not effectuated by at least a majority of the Commissioners sitting at the time or by proper delegation of the Commission’s “appointing authority” powers to the Chairman, we consider next whether the 29 October 2004 re-termination of Wilson was unlawful or unconstitutional. Although the re-termination was taken by a majority of the Commissioners then sitting, Wilson argues it was unlawful nonetheless because she was not afforded the pretermination statutory protections due an employee terminated “for cause.” Wilson also contends that, if she were deemed terminated purely as an “at-will” employee (for which no cause need be offered), the statutory post-termination administrative appeal process, as applied to her situation was unconstitutional because it provided that her appeal be heard by Chairman Schisler, as the “head of the principal unit,” who she contends was incapable of providing an impartial agency review. A. Although the Circuit Court’s 25 October order did not conclude whether Wilson was fired “for cause,” the 15 November order amended the prior findings, determining that not only was the original 15 April termination “for cause” as a result of “alleged misconduct,” but that the 29 October re- ⁶⁰ termination was “tainted by the initial unlawful termination.” 20 For reasons we shall explain, we conclude that, on the undisputed material facts revealed by the record, the Circuit Court erred as a matter of law in resolving that the 15 April termination, and impliedly the 29 October re-termination, were sub silentio the result of “employee misconduct.” Therefore, the re-termination by the Commission did not require it to afford Wilson the statutory pre-termination protections of § 11-106. 1. As stated supra, Wilson’s employment position with the PSC was in the management service, a classification that, among other things, provided that she was an at-will employee ⁶¹ who served at the pleasure of the “appointing authority.” § 1L-305. 21 Nonetheless, she claims that her termination was unlawful because it was based on Chairman Schisler’s consideration, in reaching the initial termination decision, of alleged misconduct on her part.

Under § 11-106, the “appointing authority” is restricted in its ability to take any disciplinary action, including termination, when that action is based on “employee misconduct.” See Danaher v. Dep’t of Labor, Licensing & Regulation, 148 Md.App. 139, 166 , 811 A.2d 359, 375 (2002) (holding that § 11-106 applies to at-will employees in the management service where misconduct is the ground for disciplinary action). In support of her contention that she was terminated for the reason of “employee misconduct,” Wilson cites several passages from the transcript of Chairman Schisler’s deposition, in which he expressed his thoughts on certain performance issues and other factors that, according to Wilson, were the foundation for the Chairman’s decision to terminate her. For purposes of clarity, we set forth generally the following allusions and assessments (referred to earlier and subsequently in this opinion as the “performance issues”) mentioned by Chairman Schisler during his deposition: 1. Wilson possessed poor letter-drafting skills; 2.

Wilson’s writing style was sub-par; ⁶² 3. Wilson was unresponsive to utility consumers in her letters; 4. Wilson was “in the office very little by [Chairman Schisler’s] standards in terms of her duties as Manager of External Relations, ... away from the desk, away from the supervision responsibility quite a bit”; 5. Wilson spent an inappropriate amount of time socializing in the hallways, creating a “disruptive” environment; 6.

Wilson had “a great deal of difficulty accepting any personal responsibility for things that weren’t working well”; 7. Wilson “lacked a fundamental understanding of the dispute resolution process” designed to resolve disputes between consumers and utility providers; 8. Wilson lacked a proper understanding of the legal requirements of her position, and thus could not be relied upon to train her employees; 9. Wilson was unresponsive to Chairman Schisler’s attempts to motivate her to achieve a higher level of job performance; and 10.

Wilson did not possess sound decision-making skills. In addition to these generalizations, Chairman Schisler alluded during his deposition to a particular incident when he suspected Wilson intentionally may have submitted an inaccurate time sheet (the “time sheet incident”). The Chairman explained that, “[consistent with [Wilson] being away from the office quite a bit, I began to keep closer tabs on her around the holidays of 2003, ... just to kind of be able to point out to her when I expected her to be with her [subordinates].” On one particular occasion when he was away from the office and wished to contact Wilson, he asked another employee to go to Wilson’s office and ask her to get in touch with him. The employee informed Chairman Schisler that, although he had gone to Wilson’s office at least twice during the course of the day in question, he was unable to locate Wilson.

The Chairman stated that, when Wilson turned in her time sheet for the period including the date in question, he ⁶³ noticed that Wilson indicated that she worked that day. He claimed to have confronted Wilson within a few days thereafter and questioned her as to whether she in fact was at work on the day in question or had made a mistake with respect to the time sheet. Wilson, according to the Chairman, became “very defensive” and denied any misrepresentation. Although the Chairman found the circumstances of this incident “troubling,” he stated that he signed Wilson’s time sheet and took no further action with regard to the incident. 2.

Although Chairman Schisler acknowledged that he informed Wilson of his various concerns at various times, he was adamant during his deposition that his decision to terminate Wilson was not based on either the performance issues or the time sheet incident. On no less than 15 instances during the deposition, he stated that the performance issues played no role in his decision to terminate Wilson. He also took some pain not to characterize Wilson’s termination as a “for cause” termination. Instead, Chairman Schisler pointed to Wilson’s status as an at-will employee, emphasizing that no reason was necessary to be given for her termination and, in the 15 April written notice, none was given.

When prodded by Wilson’s counsel, he indicated, on several other occasions during the deposition, that the termination of Wilson was necessary in light of his stated, but somewhat vague, desire to build a more cohesive and productive management team at the PSC. Although Chairman Schisler, at several points during the deposition, denied that he factored the performance issues and time sheet incident into his termination decision, Wilson points to other parts of the deposition in which, Wilson argues, he admitted otherwise. 22 During his ruminations on the perform ⁶⁴ anee issues, the Chairman stated that these concerns “were issues that I couldn’t ignore” and that could not be “separated” from the termination decision. Finally, Wilson relies on the following passages, all of which occurred in the deposition subsequent to Chairman Schisler’s discussion of the performance issues and the time sheet incident, in support of her contention that she was terminated for “employee misconduct”: Q [Counsel for Wilson]: What did you take into account in deciding to terminate Ms. Wilson? A [Chairman Schisler]: I took into account all of the factors that were with respect to her performance and also the overall needs of the agency.

Okay? But without respect to any particular personnel deficiency that I may have articulated, those weren’t causes that were involved in the separation, but I clearly evaluated the entire landscape of what the needs of the agency were. * * * Q: Well let me ask you this. If Ms. Wilson had not had any of the personnel problems that we discussed and was doing a fantastic job in your view across the board, would she have been terminated? A: I think the sort of the common sense answer to that is no.

But if you’re asking in a legal sort of frame work, the answer would be yes because she was not fired for cause. But, I mean, if you think someone is a superb employee, irreplaceable, you generally don’t make personnel changes there. But it was not a factor in the personnel decision. * * * Q: And in your mind part of the reason for [the termination of Wilson] was the performance issues we’ve talked about. Fair? ⁶⁵ A: I would say the performance issues were — I mean, I’m human.

I wouldn’t separate that. But I didn’t do the analysis with respect to a cause for termination. I was concerned about — was I concerned about the management of the External Relations Office? Yes.

Was I concerned about Ms. Wilson’s time on the job and ability to ensure others were working full days and so forth and not taking excessive breaks and those sorts of the things? Yes. Was I concerned about the quality of her writing, the quality of the decision making, all those things? Yes.

Were they part of an environment, an atmosphere that caused me to spend more time on External Relations? Yes. Did I, therefore, then make the leap that I’m going to see if this is cause to terminate on a cause basis, the answer is unequivocally no. So I didn’t — because I recognize that Ms. Wilson was an at-will employee and didn’t need to supply cause reasons.

B. Although § 11-106 outlines the procedures that the “appointing authority” must follow before imposing a disciplinary sanction based on “employee misconduct,” the term “employee misconduct” is not defined in that section, nor is it defined elsewhere in the State Personnel and Pensions Article. In order to determine whether Wilson was entitled to the statutory protections in § 11-106, we must determine what types of conduct fall within the phrase “employee misconduct” before deciding whether, on the state of the record in this case where summary judgment was granted, Wilson was terminated sub silentio as the result of “employee misconduct.” 1. In order to gain some perspective on the current State system governing employee discipline and terminations, it is necessary to understand something of its immediate predecessor statutory and regulatory scheme. Prior to 1996, the State Employee Management System, codified in the 1998 edition of the State Personnel and Pensions Article, established two ⁶⁶ classes of State employees: classified service and unclassified service. § 1 — 101(d) (1993); § l-101(o) (1993).

The statutory scheme provided that, unless excluded by statute, all positions in the Executive branch of State government and certain clerical and administrative positions within the Judicial branch, among others, were in the classified service. 23 § 1-301 (1993); § 1-302 (1993). In general, a position to which a person was appointed or a position requiring special training or qualifications was in the unclassified service. § 1-401 (1993); § 1-403 (1993). An important distinction between the two classifications was the process afforded an employee prior to termination. Unclassified employees, like the current management service, were at-will employees under the prior statutory scheme.

See Revisor’s Note, § 9-101 (1993) (stating that “[ujnclassified service employees serve at the pleasure of the appointing authority ... ”). Classified employees, however, could be removed by the “appointing authority” only “for cause.” § 9-202 (1993). The Department of Personnel, pursuant to § 9-203 (1993), adopted regulations (since superceded) to prescribe what conduct constituted “for cause.” COMAR 06.01.01.47 (1996) stated: The following shall be sufficient cause of removal, though removal may be for causes other than those enumerated: A. That the employee is incompetent or inefficient in the performance of his duty; B. That the employee has been wantonly careless or negligent in the performance of his duty or has used unwarrantable or excessive force in his treatment of public charges, fellow employees, or other persons; C. That the employee has some permanent or chronic physical or mental ailment or defect that incapacitates him for the proper performance of his duties; ⁶⁷ D. That the employee has violated any lawful regulation or order or failed to obey any lawful and reasonable direction given by his superior officer when the violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the organization or to result in loss or injury to the State or the public; E. That the employee has been wantonly offensive in his conduct toward fellow employees, wards of the State, or the public; F. That the employee has taken for personal use, a fee, gift, or other valuable thing in the course of his work or in connection with it when the fee, gift, or other valuable thing is given him by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons; G. That the employee is engaged in a private business or in a trade or occupation when the duties of his position as prescribed by law or regulation require his entire time for their performance; H. That the employee has been guilty of a violation or violations of State Personnel and Pensions Article, Title 18, Subtitle 1 [Miscellaneous prohibited acts]; I. That the employee has been convicted of a criminal offense or of a misdemeanor involving moral turpitude; J. That the employee, through negligence or willful conduct, has caused damage to public property or waste of public supplies; K. That the employee has been guilty of a violation or violations of the provisions of ... the Corrupt Practices Act, or using, threatening to use, or attempting to use political influence or the influence of any State employee or officer in securing promotion, transfer, leave of absence, or increased pay; L. That the employee has willfully made a false official statement or report; ⁶⁸ M. That the employee has been guilty of conduct such as to bring the classified service into public disrepute; N. That the Secretary has investigated the employee’s qualifications and background and has discovered that fraudulent or irregular information resulted in the employee’s appointment.... In 1996, the Legislature enacted the State Personnel Management System Reform Act, which effected a comprehensive restructuring of the State Personnel Management System. 1996 Md. Laws, Chap. 347.

One of the primary changes made to the system was the elimination of the categories of classified/unclassified services. In their place, the Legislature created six categories: skilled service, § 6-401, professional service, § 6-402, management service, § 6-403, executive service, § 6-404, special appointees, § 6-405, and temporary employees, § 6-406. 1996 Md. Laws, Chap. 347. As with the former classified and unclassified service employees though, a significant distinction between the different services remained as to the level of protection and process afforded an employee prior to termination or other disciplinary actions for misconduct. Although employees that are special appointees or in the management and executive services are classified explicitly as at-will employees that serve at the pleasure of the “appointing authority,” § 11-305, skilled and professional service employees are granted certain statutory protections regarding their continued employment. 24 Title 11, Subtitle 1 of the State Personnel and Pensions Article contains a comprehensive administrative appeal process for disciplinary actions applicable solely to employees in the professional and skilled services.

Section ll-109(c)(l) provides, as a first level of appeal, that: ⁶⁹ An employee or an employee’s representative may file with the head of the principal unit a written appeal of a disciplinary action that states, to the extent possible, the issues of fact and law that the employee believes would warrant rescinding the disciplinary action. 25 An employee in the professional or skilled services may appeal such a decision under § 11-109, within 10 days of receiving the decision, to the Secretary of Budget and Management. § 11-110. Under § 11-110, the Secretary, within 30 days, either must mediate a settlement between the employee and employer or refer the appeal to the Maryland Office of Administrative Hearings (“OAH”), the State’s centralized panel of neutral administrative law judges. § 11-110(b). If the matter is referred to the OAH, the OAH must hold a hearing on the matter. The hearing is governed by the procedures in the State Administrative Procedure Act (“APA”). 26 § 11— 110(c)(2).

The decision of the OAH is the final agency decision in such matters. § 11-110(d)(3). Aside from these post-disciplinary action procedures, the current statutory scheme provides for other protections or processes that must occur before certain disciplinary actions are taken. Section 11-106 provides that the “appointing authority” is restricted in its ability to take any disciplinary action, including termination, when that action is based on “employee misconduct.” Although this section does not state explicitly to which classifications of employees it applies, § 11— 102 states explicitly that Subtitle 11 applies to all, save temporary, employees. For purposes of our analysis then, we shall assume that § 11-106 applies to employees in the management service.

See Danaher v. Dep’t of Labor, Licensing & Regulation, 148 Md.App. 139, 166 , 811 A.2d 359, 375 (2002) ⁷⁰ (holding that § 11-106 applies to at-will employees in the management service). Section 11-106, in its entirety, states: § 11-106. Duty of appointing authority prior to imposing sanctions. (a) Procedure. — Before taking any disciplinary action related to employee misconduct, an appointing authority shall: (1) investigate the alleged misconduct; (2) meet with the employee; (3) consider any mitigating circumstances; (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee’s appeal rights.

(b) Time limit. — Except as provided in subsection (c) of this section, an appointing authority may impose any disciplinary action no later than 30 days after the appointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed. (c) Suspension. — (1) An appointing authority may suspend an employee without pay no later than 5 workdays following the close of the employee’s next shift after the appointing authority acquires knowledge of the misconduct for which the suspension is imposed. (2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection. 2. Wilson claims that, because she was terminated as a result of “employee misconduct,” 27 her termination was illegal be ⁷¹ cause the “appointing authority” did not follow the pre-termination procedures outlined in § 11-106.

Even were we to assume, for the sake of argument, that Chairman Schisler terminated Wilson for the reasons she assigns, the question remains whether any of the “factual” bases urged rose to the level of “employee misconduct,” as contemplated by § 11-106. In Smack v. Department of Health and Mental Hygiene, 134 Md.App. 412 , 759 A.2d 1209 (2000), aff'd, 378 Md. 298 , 835 A.2d 1175 (2003), the Court of Special Appeals held that § 11-106 did not apply to probationary employees in the State Personnel Management System. In reaching that conclusion, the intermediate appellate court observed: At oral argument, appellant [employee] asserted that, even if a probationary employee’s employment could be terminated at the discretion of the employer, nevertheless, § 11-106 would be applicable in this case because [the employer] in fact treated this as a misconduct case. We disagree. ⁷² [Section § 11-106] does not define misconduct, but it is clearly a concept distinct from lack of proficiency in employment, although the two could overlap.

Id. at 419, 759 A.2d at 1213 . Although the Court of Special Appeals ultimately determined that it was “immaterial” whether the conduct in question could be classified as “misconduct,” we agree generally with the intermediate court’s analysis that there is a clear distinction between “employee performance” and “employee misconduct.” Id. In support of this view, we look to the regulations promulgated pursuant to Title 11 of the State Personnel and Pensions Article. COMAR 17.04.05, entitled “Disciplinary Actions,” covers generally disciplinary actions taken against all employees, no matter in what service classification they may be categorized.

Regulations within this chapter make a sharp distinction between disciplinary actions related to “employee performance,” and disciplinary actions related to “employee misconduct.” See 17.04.05.01(A) (stating that disciplinary actions may be taken both as a result of “[unsatisfactory performance of duties and responsibilities” and “[m]isconduct”). COMAR 17.04.05 recognizes a distinction between the discipline of management service employees on one hand, and the discipline of professional and skilled service employees on the other. COMAR 17.04.05.01(H), for example, states that “[a] disciplinary action against an employee under special appointment or in the management and executive services is governed by Regulations .05 and .06 of this chapter.” Those two regulations, in essence, reiterate the at-will nature of management service employees and the relatively restricted, post-termination administrative appeal process available to those employees. COMAR 17.04.05.03 and 17.04.05.04, on the other hand, apply only to disciplinary actions taken against employees in the skilled or professional services.

COMAR 17.04.05.03, in relevant part, states: .03 Disciplinary Actions Related to Employee Performance. ⁷³ B. The appointing