Runnels v. Newell

SALMON, Judge. In 2000 Robert Greenleaf was appointed State’s Attorney for Caroline County, Maryland. He secured the Democratic nomination and ran for election for that job in November 2002. Of the ten employees of the Caroline County State’s Attorney’s office, three actively campaigned for Mr. Greenleaf, viz.: Susan Runnels, Marjorie Cooper, and Delores McBride, Esq., an Assistant State’s Attorney.

Mr. Greenleaf was defeated at the polls on November 5, 2002, by Jonathan G. Newell. About five weeks after his election victory, Mr. Newell had a meeting with Ms. Runnels, Ms. Cooper, and Ms. McBride. He told the trio that they would be terminated when he took office as State’s Attorney for Caroline County on January 6, 2003. Except for the three employees of the State’s Attorney’s Office who had supported Mr. Greenleaf s candidacy, no one else was terminated by Mr. Newell prior to his taking office.

Ms. Runnels and Ms. Cooper brought suit in the Circuit Court for Caroline County and requested a jury trial. The defendants were Mr. Newell, the County Commissioners for Caroline County, and the State of Maryland. The case was later removed to the Circuit Court for Worcester County. In their complaint, which contained seven counts, the plaintiffs made two major allegations in Counts I—III.

First, it was alleged that Mr. Newell deprived the plaintiffs of their rights (guaranteed by the First Amendment to the Constitution of the United States and by Article 40 of the Maryland Declaration of Rights to participate freely in political activities and to express their political views) when they were fired in retaliation for the political support they gave to Mr. Greenleaf. Second, the County Commissioners for Caroline County and ¹⁸¹ the State of Maryland were alleged to be liable jointly for Mr. Newell’s illegal action in firing them in retaliation for their political activities. The plaintiffs also alleged in their complaint that while they were employed at the State’s Attorney’s Office for Caroline County, they were required to work in excess of forty hours per week, but that, contrary to the Fair Labor Standards Act (FLSA) and certain Maryland wage and hour laws that correspond to the FLSA, they were not paid time and one-half for the hours they worked in excess of forty hours per week; instead they were given compensation time, meaning that they were granted leave equal to the amount of time they worked in excess of forty hours per week. According to plaintiffs, the County was liable for these statutory violations.

In response to the overtime issue, the County took the position that, even if the plaintiffs could show that they were unlawfully required to accept compensation time in lieu of time and one-half pay, it was not liable because it was not plaintiffs’ employer within the meaning of the controlling statutes. The motions judge granted the County’s motion to dismiss portions of Counts I, II, and III. Subsequently, after extensive discovery, the motions judge granted summary judgment in favor of all defendants as to all counts. In this appeal, Ms. Runnels and Ms. Cooper argued that the trial judge erred in granting summary judgment against them.

I. A. Facts Relevant to the Issue of Liability for the Termination of the Appellants 1 1. Marjorie Cooper Christian J. Jenson commenced his term as State’s Attorney for Caroline County in January of 1987. He served ¹⁸² as State’s Attorney until June of 2000, when he resigned. During Mr. Jenson’s first year in office, he hired, as his first victim’s witness coordinator (“VWC”), Marjorie Cooper.

While performing that job, Ms. Cooper met expectations in each of her annual evaluations. She was selected as the VWC of the year for the State of Maryland near the end of Mr. Jenson’s tenure as State’s Attorney. In October 2001, Ms. Cooper became the senior District Court coordinator for the Caroline County State’s Attorney’s Office. Ms. Cooper earned $14.58 per hour when she was fired.

As the senior District Court coordinator, she did not report directly to the Caroline County State’s Attorney; instead, she reported to the administrative coordinator, who, in turn, reported to the Deputy State’s Attorney. The Deputy State’s Attorney reported to the State’s Attorney. As senior District Court coordinator, Ms. Cooper’s duties included reviewing dockets, pulling case files, subpoenaing witnesses, ordering documents, filing, and performing other tasks as directed by the attorney assigned to her cases. She also provided clerical support for prosecuting attorneys.

In addition, Ms. Cooper served as the VWC for juvenile cases and occasionally filled in for other victim witness coordinators when they were absent. 2. Susan Runnels In 2000, Mr. Greenleaf hired Ms. Runnels to be a District Court (assistant) VWC. Ms. Runnels performed her job well, as evidenced by the fact that she received a performance bonus from Caroline County in 2001. She was selected as the ¹⁸³ outstanding employee of the year for the Caroline County State’s Attorney’s office in 2002, the year in which she was fired.

Ms. Runnels enjoyed a good relationship with Mr. Newell until July 2002 when she agreed to work for Mr. Greenleafs election. After Ms. Runnels commenced her campaign activities, Mr. Newell voiced a complaint to Donald Nagel, who was the chief of police for the Town of Federalsburg, Maryland, and is also the son-in-law of Ms. Runnels. According to an affidavit later filed by Mr. Nagel, on several occasions during the 2002 election campaign, Mr. Newell complained to him about Ms. Runnels’ “open support for Mr. Greenleaf.” “[Mr. Newell] told [Chief Nagel] on one or more occasions that Ms. Runnels ‘must not like her job very much’ to the extent that she was openly supporting Greenleaf.” During the campaign, Mr. Newell also wondered aloud to Chief Nagel “why Ms. Runnels would put herself in [such a] position because it could be bad if Greenleaf lost.” The job description for a VWC states that it involves “clerical work” that is to be performed “as directed” and that is to be spot checked by his/her superior. No college or prior criminal justice experience is required.

The primary responsibilities of a VWC are two-fold: (1) to provide clerical support to prosecuting attorneys in connection with the criminal cases to which they are assigned and (2) to act as a liaison between the State’s Attorney’s office and crime victims. The trial-related responsibilities of the VWC include assisting the attorneys in the preparation of criminal informations, preparing subpoenas, scheduling meetings between witnesses and the prosecutor, advising witnesses and victims of changes in court dates, and confirming their attendance in court, calling witnesses to the courtroom during trial, and performing such other tasks as directed by the prosecutor assigned to the case. In the event that a VWC could not answer a victim’s question, Ms. Runnels would schedule a meeting between the victim and the prosecuting attorney. A VWC is not permitted to give legal advice to victims, nor ¹⁸⁴ provide substantive input regarding a victim’s testimony or the preparation of victim impact statements.

The VWC sits three rungs below the State’s Attorney in the Caroline County State’s Attorney’s Office organizational chart, reporting to the administrative coordinator as opposed to the State’s Attorney. A VWC, such as Ms. Runnels, is supervised by the Deputy State’s Attorney or the Assistant State’s Attorney prosecuting the case to which the VWC is assigned. When she was absent, the office receptionist frequently assumed her duties. Ms. Runnels earned $11.30 per hour at the time of her dismissal.

During her tenure as a VWC, Ms. Runnels served on a “Hot Spots” committee made up of persons interested in community crime prevention. The committee was comprised of representatives of law enforcement and social service agencies, including the mayor of Federalsburg and the Deputy State’s Attorney. According to Ms. Runnels’ affidavit, her committee work, for the most part, consisted of listening to the views of other committee members and taking notes. Ms. Runnels volunteered to participate in the crime-prevention program because she lived in the community that it served, not because it fell within her responsibilities as an employee of the Caroline County State’s Attorney’s Office. 3.

Campaign Activities of the Appellants Ms. Cooper had no official role in Mr. Greenleafs 2002 campaign for election. She did, however, overtly support Mr. Greenleafs candidacy. She posted a Greenleaf sign in her yard and wrote a letter, favorable to him, that was published during the campaign in a local newspaper. Prior to the election, she handed out Greenleaf pins and brochures and, on occasion, wore a Greenleaf campaign shirt and button.

Additionally, on election day, November 5, 2002, Ms. Cooper distributed literature for Mr. Greenleaf at a polling place. During her spare time, Ms. Runnels served as Greenleafs campaign manager and treasurer for the 2002 election campaign. In this capacity, she helped Mr. Greenleaf develop and ¹⁸⁵ distribute campaign materials, wrote a letter to the editor of a local newspaper in which she espoused Mr. Greenleaf s candidacy, placed a Greenleaf campaign sign in her yard, and placed a Greenleaf bumper sticker on her car. Like Ms. Cooper, she also passed out Greenleaf campaign literature at a polling place on election day. 4.

Post Election Activities In early December 2002, Mr. Newell met with Charles Cawley (“Cawley”), the Caroline County Administrator. Mr. Newell told Cawley that he intended to fire Runnels, Cooper, and McBride. During the conversation, he did not criticize their job performance, nor did he ask to review their personnel files. Cawley suggested to Mr. Newell that he “give it some time before he [made] this decision, and [advised that] he [Newell] should probably evaluate their work performance before” he fired them.

On November 19, 2002, Ms. Runnels telephoned Mr. Newell to congratulate him on his electoral victory. She told Mr. Newell that she hoped he would retain her as a VWC when he assumed his new duties. Ms. Runnels also said that she had supported Mr. Greenleaf during the campaign out of loyalty to the State’s Attorney’s office but assured Mr. Newell that she would be just as loyal to him once he took office. Mr. Newell told her that he appreciated the call but gave her no assurances that she would keep her job.

At the meeting on December 13, 2002, during which they were fired, Mr. Newell told Ms. Cooper and Ms. Runnels that their termination had nothing to do with their job performance, nor was it due to any fault on their part. In fact, Mr. Newell told Ms. Runnels that she had been a good employee. When Ms. Runnels asked Mr. Newell why he fired her, he replied that he was keeping people he could “trust.” This remark caused Ms. Runnels to accuse Mr. Newell of terminating her and her cohorts because of their support for Mr. Greenleaf. To this charge, Mr. Newell responded by smiling and stating “absolutely not.” In Ms. Runnels’ view, the last-mentioned answer was delivered in a “sarcastic” tone of voice ¹⁸⁶ that she understood to mean the opposite of the words Newell spoke.

When Ms. Runnels complained that Mr. Newell had not given her more notice of his intention to terminate her, Mr. Newell replied that she should have known the day after the election that she would not be keeping her job. 5. Post December 13, 2002, Events After announcing that he was terminating Ms. Cooper and Ms. Runnels, Mr. Newell contacted the remaining non-lawyer employees of the Caroline County State’s Attorney’s office who had either supported him in the election or remained neutral and advised them that when he took over he intended to retain them as employees but intended to terminate the employment of Ms. Runnels, Ms. Cooper, and Ms. McBride. What happened next was well summarized by the motions judge as follows: Following Newell’s announcement, ... the other employees within the SAO (State’s Attorney’s office) began treating Runnels and Cooper disrespectfully and rudely. Gradually, [plaintiffs’ regular work was taken away from them and assigned to other employees.

Moreover, [pjlaintiffs were told that they must use all of their accumulated compensatory leave prior to their termination, or it would be lost, and they were specifically told by County personnel and payroll officials that they would not be compensated monetarily for compensatory leave time. Accordingly, Runnels scheduled compensatory leave for the full day on December 16th as well as half days on December 17th and 18th. The SAO office administrator, Betsy LeCompte, approved Runnels’ leave request, so she stayed off of work on December 16th. When Runnels returned to work on the morning of December 17th, her computer had been removed from her desk, and her phone had been re-routed so that it rang only at the desk of Rose Rice, the SAO District Court Victim Witness Coordinator---- Runnels ... went to County Administrator] Charles Cawley’s[ ] office to inquire about her computer and telephone.

Cawley said that he had directed Runnels’ ¹⁸⁷ telephone line to be re-routed to Rice’s desk because he did not like the message she had placed on her voice mail. The message left on her answering machine noted that she had been terminated and thereafter thanked and said goodbye to those she had worked with during her tenure at the SAO. Cawley further informed Runnels that her computer had been removed because he had been informed by someone at the SAO that Runnels had quit her employment and that she had erased all of the files from her computer. Runnels protested that she had done no such thing[ ] and informed Cawley that she had been on compensatory leave the previous day with the approval of the SAO office administrator.

She assured Cawley that no files had been removed from her computer, and complained that no one had confronted her about this issue before confiscating her computer. Cawley responded that County employee Jim McCormick had checked Runnels’ computer and confirmed that it held no files in the Word Perfect program. That was true, Runnels said, because all of her files were in Microsoft Word, which she alleges she could have told him. Mr. McCormick eventually verified that all of Runnels’ files were indeed intact on her computer and were in fact saved in Microsoft Word.

Accordingly, Cawley directed that Runnels’ computer be returned to her office and told Runnels[ ] it was a good thing she had come to this office, because otherwise he would have terminated her from County employment and deemed her not eligible for future County employment. Upon Runnels[’] return to her desk, however, her telephone remained so that it routed all calls to Ms. Rice. Moreover, from that day until the conclusion of her employment with the SAO on January 6, significant portions of her regular work were assigned to others in the office so that she was sometimes forced to sit idly at her desk. Other workers and officials at the courthouse told Runnels that they had heard through the grapevine that she had quit her job and erased all of her files from her computer. ¹⁸⁸ B. Mr. Newell’s Version of Events Mr. Newell testified at deposition that many months before the election he decided that he would not retain appellants—if elected.

This decision was based on his experiences with the appellants from September 1990 through 1991, when he was a Caroline County Assistant Public Defender. The brief of the State and Mr. Newell summarized Newell’s reasons as follows: Mr. Newell found Ms. Runnels “to be at times nasty, aloof, arrogant, [and] dismissive.” At times, “she was fairly derogatory concerning clients of [Newell’s], [and] spouses of clients____” Ms. Runnels “would say things such as ‘Don’t ask me, that’s not my job description. Don’t ask me, I only work here.’ ” During this period, Mr. Newell came to believe that Ms. Runnels was misinforming spouses of clients accused of domestic violence about their duty to testify. He explained that “[i]t so oftentimes happens they might have reconciled by the time the trial came along.

The wife would say I just went and told them I didn’t want to testify and they told me I couldn’t.” When Mr. Newell would ask the spouse who had said this, the reply was sometimes Ms. Runnels. Mr. Newell also found Ms. Runnels’ practice of attempting to speak to his clients outside of his presence to be particularly objectionable. He further suspected that, on at least one occasion, Ms. Runnels had, in the course of “floating” in and out of the courtroom, violated the sequestration rule by providing a sequestered witness with information that was crucial to the State’s case. ... Newell testified that he also had the opportunity to observe Ms. Cooper at her job and, in the course of so doing, had formed a similar impression about her.

He stated that Ms. Cooper commonly failed to issue subpoenas to witnesses, which resulted in cases in which she assisted being postponed. Mr. Newell also observed Ms. Cooper seemingly “coming and going when she wanted to ... smoking cigarettes out front, hiking up and down the street, talking about going to get her nails done.” He states that the first time he met Ms. Cooper, “she was sitting at her ¹⁸⁹ desk and she had this sort of display of these Avon or Mary Kay [products] or something, and she asked [him] if [he] wanted to buy some stuff for [his] wife.” ... Newell recalls “sort of being taken aback” upon learning that the sales were for her own business. Mr. Newell also heard Ms. Cooper using profane language on multiple occasions in the hallways and in the State’s Attorney’s Office.

(References to extract and appendix omitted.) C. Material Presented to the Motions Judge Contradicting Mr. Newell’s Testimony In her affidavit, Ms. Runnels contradicted many of the allegations made by Mr. Newell in his deposition, viz: 22. During my tenure at the SAO (State’s Attorney’s Office), I never violated a sequestration order, told a victim or other witness whether that they must testify or that they were not permitted to testify against a spouse, nor did I speak with a criminal defendant in an attempt to obtain information about the crime with which he was charged. 23. I had very little direct contact with Jonathan Newell in fulfilling my duties as Victim Witness Coordinator. The limited contact I had with him was insufficient for him to make an informed decision with respect to my job performance.

To the extent that I did interact with Jonathan Newell, we had a good professional relationship up until the time I decided to support Robert Greenleaf s candidacy for State’s Attorney. 24. I always treated Jonathan Newell with courtesy and respect, and was never arrogant, nasty, dismissive, nor rude to Mr. Newell nor to his clients. I never responded to any of his requests with the statement that it was “not my job” nor did I ever tell him that what he was requesting “did not fall within my job description.” 25. Mr. Newell never complained to me about my job performance nor the way I treated his clients or him. 26.

Jonathan Newell and I attended the Maryland State’s Attorney Convention that was held in Ocean City, ¹⁹⁰ Maryland, in June of 2002, approximately one month before I became Robert Greenleafs campaign manager and treasurer. Mr. Newell approached me at a breakfast at that convention and asked me if an empty seat next to me was taken. When I told him that it was not, Mr. Newell then sat down beside me and we had a very cordial conversation. I also attended a dinner that evening with my daughter and my nephew, which Mr. Newell attended with his wife.

Mr. Newell introduced his wife to my daughter and they sat down at a booth next to our table. Once again, we had a very cordial conversation. There was nothing in his actions nor his manner to suggest any dissatisfaction on his part with my performance as a Victim Witness Coordinator nor any discomfort about our personal or professional relationship. I had no concerns at that time that Mr. Newell would terminate me if he replaced Robert Greenleaf as State’s Attorney for Caroline County. 27.

When I became Robert Greenleafs campaign manager and treasurer in July, 2002, friends and relatives began to warn me that my job might be in jeopardy as a result of my public support of Mr. Greenleaf in the event Jonathan Newell was elected State’s Attorney. Although I became concerned about my job security, I continued to believe that my strong job performance as a Victim Witness Coordinator would cause Jonathan Newell to retain me if he was elected. Appellants also placed other facts before the motions court that, if believed, cast doubt on the truthfulness of Mr. Newell’s testimony as to his motivation. Aside from the facts set forth in 1.A, supra, material was put before the court showing that Newell campaigned on a platform of leaving things intact at the State’s Attorney’s Office as opposed to making personnel changes.

He said so publicly at campaign events and in private conversations. Additionally, a neutral witness at the meeting at which appellants were fired said that Mr. Newell told appellants and Ms. McBride that he was terminating them through “no fault of their own.” ¹⁹¹ II. COUNT I Did the motions judge err in granting summary judgment in favor of all defendants as to Count I of plaintiffs’ complaint, which was filed pursuant to 42 U.S.C. section 1983 ? Section 1983 of Title 42 of the United States Code provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

Section 1983 claims, at the option of the plaintiff, may be brought in State court. Martinez v. California, 444 U.S. 277 , 283-84 n. 7, 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980). In O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 716-17 , 116 S.Ct. 2353 , 135 L.Ed.2d 874 (1996), Justice Kennedy, speaking for a unanimous Court, said: The Court has rejected for decades now the proposition that a public employee has no right to a government job and so cannot complain that termination violates First Amendment rights, a doctrine once captured in Justice Holmes’ aphorism that although a policeman “may have a constitutional right to talk politics ... he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 , 29 N.E. 517 (1892). A State may not condition public employment on an employee’s exercise of his or her First Amendment rights.

See, e.g., Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968); Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972). See also Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S. [668,] 674-675, 116 S.Ct. [2342], 2347, 135 L.Ed.2d 843 [ (1996) ] (collecting cases). As we have said: “[I]f the ¹⁹² government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible.” Perry v. Sindermann, supra, at 597, 92 S.Ct. at 2697 (quoting Speiser v. Randall, 357 U.S. 513, 526 , 78 S.Ct. 1332, 1342 , 2 L.Ed.2d 1460 (1958)).

Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression. The right of a public employee to speak freely and to participate in public affairs may, in some instances, be govern-mentally proscribed. Bd. of County Comm’rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 675 , 116 S.Ct. 2342 , 135 L.Ed.2d 843 (1996). As explained by the Maryland Court of Appeals in O’Leary v. Shipley, 313 Md. 189 , 545 A.2d 17 (1988), there are two tests that are to be applied by courts called upon to determine whether the political activity or speech of a public employee is protected.

The test that is normally used is called the Pickering-Mt. Healthy test, which is shorthand for the test that originated in Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977). In Pickering , a schoolteacher sued for reinstatement after the school board fired him for sending a letter critical of school board policy to a local newspaper.

In an opinion by Justice Marshall, the Court held that the school board could not deprive Pickering of his right as a citizen to comment on matters of public concern. At the same time, however, the Court recognized that the state has an interest in regulating the speech of the teachers it employs. Accordingly, the Court adopted a balancing test to determine whether the state had constitutionally discharged Pickering. “The problem in any case,” the Court wrote, “is to arrive at a balance ¹⁹³ between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering determined the extent of the state’s efficiency interest on the basis of several important considerations, including (1) the speech’s effect on discipline by the employee’s immediate supervisors; (2) its effect on harmony among the employee’s co-workers; (3) whether the relationship between the employee and the employer against whom he spoke was a close one which required personal loyalty or confidence; (4) the speech’s effect on the employee’s job performance; and (5) its impact on the general operation of the employer’s enterprise. The Court found that all of these factors favored the teacher on the facts of Pickering ; therefore, the school board acted unconstitutionally in firing him.

Craig D. Singer, Conduct and Belief: Public Employees’ First Amendment Rights to Free Expression and Political Affiliation, 59 U. Chi. L.Rev. 897, 899-900 (1992) (footnotes omitted). In Mt. Healthy, the Supreme Court provided new guidance as to how to apply the Pickering balancing test, particularly as to the correct placement of the burden of proof.

The public employee must first prove that his conduct was constitutionally protected and that the conduct was a “substantial or motivating factor” in the employer’s decision to take an adverse job action against the employee. Mt. Healthy, 429 U.S. at 287 , 97 S.Ct. 568 . If the employee meets this burden, then the employer may still avoid liability if it can prove “by a preponderance of evidence that it would have reached the same decision ... even in the absence of the protected conduct.” Id.

In O’Leary , the Court cited two Supreme Court decisions to illustrate when speech by a government employee is, and when it is not, constitutionally protected, viz.: Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), and Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 ¹⁹⁴ L.Ed.2d 315 (1987). Connick v. Myers made explicit what had been implied in Pickering , i.e., that the balancing test applies only when the employee’s speech touches on a matter of public concern. 461 U.S. at 146 , 103 S.Ct. 1684 . The O’Leary Court said: In Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), a former assistant district attorney contended that her employment was terminated because of a questionnaire she distributed to other assistant district attorneys in her office. Finding that most of the questions on the questionnaire did not concern matters of public concern, and thus did not trigger constitutional scrutiny, the Court stated: “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.” 461 U.S. at 146 , 103 S.Ct. at 1690 . With respect to one question that did fall under the rubric of matters of public concern, the Court, although noting that the First Amendment “ Vas fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ ” 461 U.S. at 145 , 103 S.Ct. at 1689 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 269 , 84 S.Ct. 710, 720 , 11 L.Ed.2d 686 (1964)), struck the balance for the government. It held that[,] given the context in which the questionnaire was distributed, it had great potential to undermine authority and destroy working relationships. This concern, the Court held, outweighed the limited First Amendment interests the questionnaire represented.

Id. at 154, 103 S.Ct. at 1693 . ¹⁹⁵ In Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987), by contrast, the Court found for the public employee. In that case a clerical employee in a county constable’s office was discharged for a political remark made to a co-employee during a private conversation. The Court, noting that there was no evidence that the statement either interfered with the efficient functioning of the office or had a detrimental effect on the working relationship between the clerical employee and the constable, held that the constable had not met his burden under Pickering. 107 S.Ct. at 2899-90 . O’Leary, 313 Md. at 201-02 , 545 A.2d 17 .

In Rankin, the Court said that in weighing the state’s interest “some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.” 483 U.S. at 390 , 107 S.Ct. 2891 . Therefore, the Rankin Court concluded, where “an employee serves no confidential, policymaking, or public contact role” (id. at 390-91, 107 S.Ct. 2891 ), an employer’s interest in firing him is small because “the danger to the agency’s successful functioning from that employee’s private speech is minimal.” Id. The Pickering-Mt.

Healthy test is inapplicable when a public employee is discharged for political patronage reasons alone. O’Leary, 313 Md. at 204 , 545 A.2d 17 . In such cases, what is called the Elrod-Branti test is applicable. The last-mentioned test is based upon language used 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 Elrod , the Republican sheriff of Cook County, Illinois, was defeated in an election and was replaced by Richard Elrod, a Democrat. Elrod promptly discharged several employees of the sheriffs department solely because they (1) did not support the Democratic party or (2) had failed to obtain the sponsorship of a prominent Democratic leader. In Elrod , ¹⁹⁶ the Supreme Court held that the discharged employees stated a valid constitutional claim, inasmuch as patronage dismissals of that type compel political orthodoxy and restrain political association, and thus are “ ‘at war with the deeper traditions of democracy embodied in the First Amendment.’ ” 427 U.S. at 357 , 96 S.Ct. 2673 (quoting Illinois State Employees Union v. Lewis, 473 F.2d 561 , 576 (7th Cir.1972)). The Elrod Court also said that, except for dismissals from policy-making positions, patronage discharges are forbidden inasmuch as the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests, especially his interest in freedom of speech.” Id. at 359 , 96 S.Ct. 2673 (quoting Perry v. Sindermann, 408 U.S. 593, 597 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972)). [T]he Elrod test does not require balancing on a case by case basis.

Rather, the Supreme Court performed the balancing and concluded that the state’s interest in employing politically loyal personnel is protected by a categorical test limiting dismissals to policymaking positions. Therefore, courts only have to decide whether an employee holds a policymaking or non-policy-making position to determine if a dismissal based solely on his political affiliation violates his First Amendment rights. Amy C. Lohr, Employer’s Motivations: The Framework for Analyzing First Amendment Rights of Political Activity in O’Hare, 8 Geo. Mason U. Civ.

Rts. L.J. 65, 73 (1997). The Branti v. Finkel case was summarized by the O’Leary Court as follows: In Branti v. Finkel, decided in 1980, the Court considered whether the holding in Elrod was limited to situations in which government employees are coerced into pledging allegiance to a political party or whether it also applies to a simple requirement that an employee be sponsored by the party in power. In that case two county assistant public defenders brought a civil rights action alleging that Branti, the newly appointed public defender, was about to discharge them solely because they were Republicans.

The assistant public defenders sought and were granted an injunction by ¹⁹⁷ the federal district court on the basis of Elrod . On appeal Branti contended that Elrod should be read to prohibit only dismissals resulting from an employee’s failure to capitulate to political coercion. Rejecting this notion, the Court stated: “[T]here is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged ‘solely for the reason that they were not affiliated with or sponsored by the Democratic Party.’ ” 445 U.S. at 517 , 100 S.Ct. at 1294.

O’Leary, 313 Md. at 197-98 , 545 A.2d 17 . In Branti v. Finkel, the Supreme Court modified the test for determining when the state may discharge employees due to political affiliation. The Supreme Court did not discard the categorical distinction it had recognized among employees. Rather, the Supreme Court shifted the focus from whether the employee is in a confidential position or a policymaking position to “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Lohr, supra, 8 Geo.

Wash. L.Rev. Civil Rts. L.J. at 73 (footnotes omitted). In O’Leary , the Court of Appeals was required to decide whether the case before it called for the application of the test set forth in the Elrodr-Branti line of cases or whether the test to be applied was that set forth in the Pickering-Mt.

Healthy line. The facts in O’Leary were somewhat similar to ones presented in the case sub judice. Diane O’Leary, a deputy clerk of the Circuit Court for Carroll County, ran against Larry Shipley, the incumbent clerk of that court. O’Leary, 313 Md. at 190-91 , 545 A.2d 17 .

Mr. Shipley won re-election and, on the day of his investiture, informed Ms. O’Leary that he would ¹⁹⁸ not reappoint her as a deputy clerk. Id. Ms. O’Leary sued Shipley. A motion to dismiss the complaint was filed by Shipley.

Id. at 191-92 , 545 A.2d 17 . Shipley relied on the Elrod-Branti line of cases and contended that in order for Ms. O’Leary to prevail she was required to prove that he had failed to reappoint her based solely on a political-patronage motive. Id. at 192 , 545 A.2d 17 . In O’Leary , Chief Judge Robert Murphy, for the Court, provided a scholarly and extensive review of the pertinent authorities concerning what tests should be applied when a governmental employee is discharged due to the exercise of his or her First Amendment right to participate in elections.

Id. at 195-205 , 545 A.2d 17 . The O’Leary Court said that the trial judge had inappropriately applied the Elrod-Branti line of cases. In the view of the Court of Appeals, “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 a discharge.” Id. at 205, 545 A.2d 17 (emphasis added). The Court ruled that the facts surrounding O’Leary’s firing did not show “political patronage as the sole motive” of the discharge.

Id. Judge Murphy explained: [I]t was apparent from the outset that O’Leary was alleging that her overt expressive conduct in challenging Shipley in the election was considered by Shipley and played a role, if not the sole role, in Shipley’s employment decision. The appropriate test, therefore, was either Pickering alone or the combined Pickering-Mt. Healthy procedure, depending on whether permissible motives were involved in the discharge along with the allegedly impermissible ones.

Once evidence was adduced of both permissible and impermissible motives, it became manifest that the Mt. Healthy procedure was the proper one. In accordance with Mt. Healthy , it should have first been determined by a Pickering balancing test whether O’Leary’s remarks during her campaign for Clerk were constitutionally protected.

If they were, the court should have determined whether this protected conduct was a ¹⁹⁹ substantial factor in Shipley’s decision not to reappoint O’Leary. If these issues were resolved in O’Leary’s favor, Shipley should have been given the opportunity to show by a preponderance of the evidence that, even absent his consideration of this protected conduct, O’Leary would not have been reappointed. The trial court, however, determined only that Shipley’s decision was not motivated solely by political patronage considerations. The wrong test having been applied, essential questions remain unresolved, and a new trial must be ordered.

Id. at 205-06, 545 A.2d 17 (emphasis added). Eight years after O’Leary , the Supreme Court decided O’Hare Truck Serv. Inc. v. City of Northlake, supra. One of the petitioners in O’Hare was a towing company that did business with the City of Northlake, Illinois.

The owner of the towing company, John Gratzianna, in 1993 supported an opponent of the incumbent mayor. 518 U.S. at 715-16, 116 S.Ct. 2353 . Gratzianna not only refused to contribute to the incumbent mayor’s campaign but allowed campaign posters of the person challenging the mayor to be placed on his company’s premises. Id. When the incumbent was re-elected, Gratzianna’s company was removed from the list of companies allowed to do towing work for the city.

Id. Gratzianna and his company sued the city (and others), alleging that the company’s removal from the list was in retaliation for Gratzianna’s support of the unsuccessful mayoral candidate. Id. The Court of Appeals for the Seventh Circuit, based on the pleadings, considered the case as “simply an affiliation” case.

Id. at 720 , 116 S.Ct. 2353 . The Supreme Court reached a different result, however. Id. The Court ruled that First Amendment protection was extended not only to government workers but also to independent contractors.

Id. at 720-21 , 116 S.Ct. 2353 . Ultimately, the Court remanded the case with instructions to decide whether the case was governed by the Elrod-Branti rule or the Pickerinq rule. Id. at 726 , 116 S.Ct. 2353 . In the course of its opinion, the O’Hare Court said: ²⁰⁰ We also modified [in Branti v. Finkel] the standard, announced in the two opinions supporting the Elrod judgment, for assessing when party affiliation, consistent with the First Amendment, may be an acceptable basis for terminating a public employee: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a 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.” 445 U.S. at 518 , 100 S.Ct. at 1295.

Our cases call for a different, though related, inquiry where a government employer takes adverse action on account of an employee or service provider’s right of free speech. There, we apply the balancing test from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., supra. See generally Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U.S. at 675-678, 116 S.Ct. at 2347-2349 . Elrod and Branti involved instances where the raw test of political affiliation sufficed to show a constitutional violation, without the necessity of an inquiry more detailed than asking whether the requirement was appropriate for the employment in question.

There is an advantage in so confining the inquiry where political affiliation alone is concerned, for one’s belief and allegiances ought not to be subject to probing or testing by the government. It is true, on the other hand, as we stated at the outset of our opinion, supra, at 2355, that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some case-by-case adjudication will be required even where political affiliation is the test the government has imposed. A reasonableness analysis will also accommodate those many cases, perhaps including the one before us, where specific instances of the employee’s speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement. In those cases, the balancing Pickering mandates will be inevitable.

This case-by-case process will allow the courts to consider the necessity of according to the government the discretion it ²⁰¹ requires in the administration and awarding of contracts over the whole range of public works and the delivery of governmental services. Id. at 718-20, 116 S.Ct. 2353 (emphasis added). The just-quoted excerpt from O’Hare suggests that the O’Leary Court was correct when it held that the Elrod-Branti test is only properly applied “to a set of facts that, as a threshold matter, show political patronage as the sole motive of a discharge.” 313 Md. at 205 , 545 A.2d 17 . In the case sub judice, the appellants contend that they, like Mrs. O’Leary, were fired not because of their political affiliation (Ms. Runnels is a Republican, Ms. Cooper is a Democrat), but because of their overt expressive conduct in supporting a candidate who did not convince the voters that he should be elected.

Appellants contend that if the Pickering-Mt. Healthy test had been applied, as it should have been, then summary judgment should have been denied as to Mr. Newell. The motions judge agreed that if he applied the Pickering-Mt. Healthy test then he should deny Mr. Newell’s motion for summary judgment.

The motions judge also agreed with appellants that O’Leary was a “similar case” to the one sub judice. Nevertheless, he declined to follow the dictates of O’Leary for the following reasons: While the Maryland Court of Appeals applied the Pickering-Mt. Healthy test to a similar case in the past, the Court of Appeals was merely interpreting and applying federal law. When applying federal law, federal case law is highly persuasive in it’s [sic] analysis.

Thus, [p]laintiffs[’] assertion, that O’Leary sets forth controlling precedent for this court, is not entirely correct. This [c]ourt recognizes that it is bound by Maryland precedent;] however, it will note that it is not set in a vacuum or a tunnel as it looks at how the law is applied around the country. This is especially true when addressing federal questions of law. The simple fact is that the Maryland Court of Appeals has not addressed a similar issue in nearly twenty years.

Over that time the Elrod-Branti test has undergone considerable alterations. ²⁰² In particular, that test now looks at the social and political roles of the complaining party within their offices. Further, the courts have expanded the policymaking and confidential position analysis to include those that exercise discretion in implementing policy. See Wilbur v. Mahan, 3 F.3d 214, 217 (7th Cir.1993). Such factors are clearly implicated here.

Thus, after careful analysis of all of the case law cited and legal arguments outlined within the Memoranda of Law, this [c]ourt finds that the Elrod-Branti test is the most appropriate test to apply given the facts of this case. (Emphasis added.) (Footnotes omitted.) Ultimately, the motions judge ruled that appellants’ political activities were constitutionally unprotected inasmuch as Mr. Newell “had an absolute right to manage his office as he saw fit” and therefore could fire appellants. As noted by the motions judge, since O’Leary was decided, several of the federal circuits, including the Fourth Circuit, have expanded the category of cases where the Elrod-Branti test is to be applied. For instance, in Rose v. Stephens, 291 F.3d 917, 921 (6th Cir.2002), the Sixth Circuit expanded the political patronage exception “to apply to situations when a confidential or policymaking public employee is discharged on the basis of political or policy-related speech.” See Whitney C. Gibson, Rethinking the Sixth Circuit’s Erosion of First Amendment Rights in Rose v. Stephens, 72 U. Cin.

L.Rev., 767, 768 (2003). See also Upton v. Thompson, 930 F.2d 1209 (7th Cir.1991) (applying the Elrod-Branti test to employees’ claims that they were terminated for openly campaigning for incumbents, i.e., displaying campaign bumper stickers, speaking to reporters, putting up signs, attending fundraisers, etc.); Wilbur v. Mahan, 3 F.3d 214, 219 (7th Cir.1993) (“It 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 those superiors faithfully but have the misfortune to belong to the wrong party.”). ²⁰³ On the other hand, some federal decisions decided since O’Leary appear to adopt a narrow reading as to when the Elrod-Branti test is applicable. See, e.g., Caruso v. De Luca, 81 F.3d 666, 669 (7th Cir.1996) (in case where a deputy city clerk ran unsuccessfully against her boss and, post election, was discharged from her job, the court applied the Pickering-Mt. Healthy test); Rogers v. Miller, 57 F.3d 986, 991 (11th Cir.1995) (in case where adverse job action was taken against sheriffs office employees because of their support of sheriffs opponent in an election, the Pickering-Mt.

Healthy rule was followed). In Pope v. State, 284 Md. 309 , 320 n. 10, 396 A.2d 1054 (1979), the Court of Appeals said: We note that, unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us. Declaration of Rights, Md. Const., Art. 2; Gayety Books v. City of Baltimore, 279 Md. 206, 213 , 369 A.2d 581 (1977); Wiggins v. State, 275 Md. 689, 698-716 , 344 A.3d 80 (1975). We are not persuaded to depart from our view of the evidence by the majority opinion of the federal appellate court.

(Emphasis added.) When the Court of Appeals decides an issue, inferior courts—like this one—are bound to follow that decision. See Hans v. Franklin Square Hosp., 29 Md.App. 329, 335 , 347 A.2d 905 (1975), overruled on other grounds by Brown v. Meda, 74 Md.App. 331 , 537 A.2d 635 (1988) (regardless as to the persuasiveness of a party’s interpretation of the law, “it is beyond our authority to decide contrary to clearly established law set forth by the [Maryland] Court of Appeals”). Thus, the motions judge erred when it held that it was not bound to follow the O’Leary decision simply because the rule as to when the Elrod-Branti test should be utilized has been expanded by decisions by intermediate federal appeals courts. Put bluntly, no matter how intermediate appellate courts “around the country” may have interpreted federal law, the trial court had ²⁰⁴ no choice but to follow the Maryland Court of Appeals decision in O’Leary , because no Supreme Court decision provided an interpretation at odds with the O’Leary decision.

If the O’Leary decision had been followed, the balancing test set forth in the Pickering-Mt. Healthy line of cases, rather than Elrod-Branti test, should have been applied because Mr. Newell did not show, as a threshold matter, that political patronage was the sole motive for appellants’ discharge. In this case, as in O’Leary , a government worker was discharged not due to political patronage but because of overt expressive conduct in supporting a person other than the one who won the election. The Court using the Pickering-Mt.

Healthy test must first determine whether the government worker’s open support of a political candidates constituted comment in regard to a matter of public concern. In this case, it clearly did. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971 , 977-78 (9th Cir.1998) (a public employee addresses a matter of public concern when his speech relates to an issue of “political, social, or other concern to the community”); Vojvodich v. Lopez, 48 F.3d 879, 885 (5th Cir.1995) (involvement in a political candidate’s campaign relates to a matter of public concern).

Furthermore, a speaker’s discussion of the qualifications of political candidates is at the very core of the First Amendment and deserves the broadest protection. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 687 , 109 S.Ct. 2678 , 105 L.Ed.2d 562 (1989). See also O’Leary, supra, 313 Md. at 206 , 545 A.2d 17 . The second step in the analysis is to determine whether the appellants’ interest in speaking upon a matter of public concern outweighed the government’s interest in providing effective and efficient services to the public.

See Pickering, supra, 391 U.S. at 568 , 88 S.Ct. 1731 , and Rankin v. McPherson, 483 U.S. at 387 , 107 S.Ct. 2891 . In regard to this second step, the motions judge correctly pointed out that outside of wearing Greenleaf pins, all political advocacy by the appellants was done outside the workplace. Thus, the political activity, at the ²⁰⁵ time appellants engaged in it, plainly did not undermine the government’s interest in providing effective and efficient services to the public and was therefore constitutionally protected expression. Mr. Newell never challenged appellants’ competence to perform their jobs.

In addition, there is a material issue of fact as to whether their positions were politically sensitive ones. The facts, taken in the light most favorable to appellants, showed that both appellants were low-level, non-policymaking, workers. A jury issue was presented as to whether they could have performed their work just as easily for Mr. Newell as they did for Mr. Greenleaf. The third step to be applied was whether the appellants’ political activity in support of Mr. Greenleaf was a substantial or motivating factor in Mr. Newell’s decision to terminate them.

A jury could have inferred legitimately that a substantial or motivating factor in their dismissal was due to their constitutionally protected campaign activity in support of Greenleaf. The motions judge agreed. The facts from which such an inference could be drawn were: (1) during the campaign, Mr. Newell told Chief Nagel on several occasions that Ms. Runnels “must not like her job very much” as shown by the fact that she was openly supporting Mr. Greenleaf; (2) during the campaign, Mr. Newell wondered aloud to Chief Nagel why Ms. Runnels “would put herself in [such a] position because it would be bad if Greenleaf lost”; (3) while employed at the State’s Attorney’s Office both appellants had good records of efficiently and professionally performing their job duties; (4) Mr. Newell rejected Cawley’s advice that, prior to firing them, he should evaluate appellants’ work performance; (5) on the date they were fired, both the appellants were told that their termination had nothing to do with their job performance; (6) on the date she was terminated, Mr. Newell told Ms. Runnels that she should have known the day after the election that she would not be keeping her job; and (7) the only employees discharged by Mr. Newell prior to the date of his investiture were the three employees in the office who had ²⁰⁶ overtly supported Mr. Greenleaf. Accordingly, we hold: (1) the trial judge erred in not applying the Pickering-Mt Healthy test in determining whether appellants’ campaign activities were constitutionally protected; and (2) if the appropriate test had been applied, the motion for summary judgment as to Mr. Newell should have been denied as to Count I. The State of Maryland was not liable under Count I because a state is not a “person” within the meaning of 42 U.S.C. § 1983 .

See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989). Mr. Newell argued that “the outcome of the constitutional analysis in this case does not depend on a choice between different formulations of the balancing test,” i.e., the balancing test set forth in the Elrod-Branti line of cases as compared to those in the Pickering-Mt. Healthy line. In other words, he argues that even if the Pickering-Mt.

Healthy analysis should have been applied, summary judgment should have been granted in his favor. That argument overlooks the fact that the motions judge explicitly rejected that argument when he ruled that, if he applied the Pickering-Mt. Healthy test, he would have denied Mr. Newell’s motion. In Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726 (2001) (quoting PaineWebber v. East, 363 Md. 408, 422 , 768 A.2d 1029 (2001)), the Court of Appeals said: “[I]t is an established rule of Maryland procedure that ‘[i]n appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment.’ ” In any event, for reasons already stated, the appropriate test to be applied was the Pickering-Mt.

Healthy test, and under that test, summary judgment should have been denied. Mr. Newell also argues that he was entitled to federal qualified immunity with regard to the 42 U.S.C. section 1983 claim. The basis of that argument is the assertion that his conduct did not “violate clearly established statutory or constitutional rights of which a reasonable person would have known” (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102