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Opinions – 12/17/14: Maryland Court of Special Appeals

Administrative Law

State construction projects 

BOTTOM LINE: State properly concluded that it could consider a novel specification, the inclusion of a Project Labor Agreement, as one factor when evaluating technical proposals for a State construction project without triggering the rulemaking process of the Administrative Procedure Act, since a novel specification included in a single RFP, without more, does not change existing procurement law or formulate a new policy of widespread application or future effect.

CASE: Balfour Beatty Construction v. Maryland Department of General Services, No. 957, Sept. Term, 2013 (filed Dec. 2, 2014) (Judges Woodward, Wright & LEAHY). RecordFax No. 14-1202-02, 40 pages.

FACTS: The process by which the State of Maryland determines which company’s proposal it will select for the completion of a prominent State construction project is governed by the Maryland Administrative Procedure Act and Maryland procurement law. During 2011, officials from the Maryland Department of General Services (“DGS”) explored the use of Project Labor Agreements (“PLAs”) for Juvenile Justice facilities generally and, specifically, for a project to construct a new detention facility to replace the rundown and unsafe buildings that house male juvenile offenders at the Cheltenham Youth Facility in Prince George’s County. A PLA is a negotiated pre-hire agreement between a construction manager (here, the “CM at Risk”), and a designated collective-bargaining representative for all employees on a particular project.

In order to perform work on a project covered by a PLA, a contractor must sign the PLA and agree that no labor strikes or disputes will disrupt the project. Typically, PLAs covering public works projects require that bidders are or become bound by the PLA but do not restrict bidding to union contractors or limit work to union members. In late 2011, the State of Maryland issued a request for proposals (“RFP”) for Construction Management at Risk Services for the Cheltenham project. The RFP included PLAs as one of the factors used to evaluate the respondents’ technical proposals.

Prior to the submission of proposals, Balfour Beatty Construction, Coakley & Williams Construction, Hensel Phelps Construction, and Manhattan Construction jointly filed a pre-award protest with the Maryland Department of General Services (“DGS”). The protestors challenged the State’s inclusion of a Project Labor Agreement (“PLA”) as one of the factors used to evaluate technical proposals. DGS responded by amending the RFP to clarify that inclusion of a PLA was not mandatory and extended the date for submission of proposals.

The procurement officer denied the protest, and the protestors appealed to the Maryland State Board of Contract Appeals (“MSBCA”), which affirmed the Agency’s decision. The protestors petitioned for review in the circuit court, which affirmed the MSBCA’s decision.

Balfour Beatty Construction, Coakley & Williams Construction, and Manhattan Construction then appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Plaintiffs Balfour Beatty Construction, Coakley & Williams Construction, and Manhattan Construction argued that the inclusion of a PLA as an evaluation factor in the Cheltenham RFP established an unprecedented preference having general application and future effect, and, therefore, its adoption without undertaking the formal rulemaking process violated the Maryland APA. The plaintiffs cited an October 18, 2011, letter from the Secretary of State to the Laborer’s International Union of North America (“LiUNA”) addressing the use of PLAs on juvenile justice facility projects as constituting an agency statement creating new state procurement preferences. The plaintiffs maintained that this was a change in regulation that could not lawfully take place without compliance with the Maryland APA, and as a result, the Cheltenham Project RFP must be set aside.

The Maryland APA, Title 10, subtitle 1, sets forth certain requirements for the adoption of regulations by executive agencies governed by the APA, thereby establishing a process known as “notice and comment” rulemaking. See Dep’t of Health & Mental Hygiene v. Chimes, 343 Md. 336, 340 (1996). A unit may not adopt a proposed regulation until it has sent a proposed draft to the Attorney General or unit counsel for approval as to legality, and also to the General Assembly’s Joint Administrative, Executive, and Legislative Review Committee (“AELR Committee”). SG §10-110(c). Next, the proposed regulation must be published in the Maryland Register and be accompanied by a notice that: (1) states the economic impact of the proposed regulation on State and local government revenues and expenditures and on groups that may be affected by it; and (2) sets a date, time, and place for public hearing.

For the next 30 out of the 45 days during which the regulation is published in the Maryland Register, the unit must accept public comment on the proposed regulation. In the present case, it was undisputed that DGS failed to follow these procedures. The crucial determination, then, was whether the first-time inclusion of a new bid specification, in light of the present facts, constituted a “regulation” under the Maryland APA.

Section 10-101(g) of the Maryland APA defines “regulation” as a statement or an amendment or repeal of a statement that has general application, has future effect, and is adopted by a unit to detail or carry out a law that the unit administers, govern organization of the unit, govern the procedure of the unit, or govern practice before the unit. A “regulation” may be in any form, including a guideline, a rule, or a standard. Section 10-101(g) further states that “regulation” does not include a statement that concerns only internal management of the unit, does not affect directly the rights of the public or the procedures available to the public, a response of the unit to a petition for adoption of a regulation, or a declaratory ruling of the unit as to a regulation, order, or statute.

Where an agency action does not formulate new rules of widespread application, change existing law, or apply rules retroactively to the detriment of an entity that had relied on the agency’s past pronouncements, there is no “regulation” in the sense contemplated by the Maryland APA, and the agency need not proceed through formal rulemaking procedures. Md. Ass’n of Health Maint. Orgs. v. Health Servs. Cost Review Comm’n., 356 Md. 581, 601 (1999). The Court of Appeals has not recently addressed a case in which the singular use of a bid specification or a “pilot project” was challenged for failing to follow rulemaking procedures. However, the Court has addressed other instances in which it concluded that an executive agency may proceed in a case-by-case manner. See Consumer Protection Division Office of Attorney General v. Consumer Publishing, Co., Inc., 304 Md. 731, 753 (1985).

By contrast, in CBS, Inc. v. Comptroller of the Treasury, the Court of Appeals found that it was required that the agency proceed through formal rulemaking rather than administrative adjudication. CBS, Inc. v. Comptroller of the Treasury, 319 Md. 687, 698-99 (1990). In that case, the Court held, the Comptroller, by altering the formula used to compute the taxable income of a multi-state corporation for Maryland income tax purposes, had created a “substantially new generally applicable policy.” Id. at 698. Unlike the agency action in Consumer Protection, it was an effective change in existing law and did formulate rules of widespread application. Id.

In the present case, there was no dispute that this was the first DGS project involving the potential use of a PLA. The only evidence presented to MSBCA that there were any plans to use PLAs on future projects was the Secretary of State’s letter, along with emails discussing the potential form and legality of PLAs. While the plaintiffs contended that the Secretary of State’s letter was issued as “a new statement of procurement policy” indicating that the Cheltenham Project was to be the first of multiple State construction projects intended to be awarded under the State’s new procurement policy promoting PLAs on State construction projects, the letter itself belied this contention, stating that that Secretary of State would evaluate the experience with the Cheltenham Project and then decide as to how to proceed on future procurements.

Significantly, the Maryland Secretary of State does not create procurement policy. Maryland procurement law vests overall power and authority over procurement matters with the Board of Public Works (“BPW”). SFP §12-101. The endorsement by the Secretary of State of a pilot project for the use of PLAs in large-scale construction projects does not constitute the promulgation of new procurement policy because the BPW has not delegated such authority to the Secretary of State. SFP §12-101(b)(4). Thus, the MSBCA correctly concluded that this was a “pilot project” and was neither of general application nor future effect.

Accordingly, the judgment of the circuit court affirming the decision of the MSBCA was affirmed.

COMMENTARY: The plaintiffs also contended the PLA technical evaluation factor restricted competition and unlawfully discriminated against Maryland’s non-union construction contractors. Under existing law, state agencies are encouraged to maximize the benefits of state purchasing to the Maryland economy by considering, among other things, the number of jobs expected to be generated for Maryland residents. Several of Maryland’s local governments have also addressed the use of PLAs in procurement contracts.

The MSBCA considered a number of other points in assessing the restrictive effect of the PLA specification. It found that: (1) the presence of a PLA was the sixth of seven ranked evaluation factors; (2) the inclusion of a PLA was not mandatory; (3) there were seven proposals received in response to the RFP; and (4) DGS decided to use the Cheltenham Project PLA specification as a pilot project to evaluate whether such a specification was indeed advantageous to the State. There was significant evidence to support the State’s determination that the Cheltenham Project would meet a critical need for the community, including the 2012 evaluation of the facility and evidence that the complexity and importance of the Project would benefit from the organization and guarantees provided by a PLA. DGS, as the procuring agency, met its burden of producing reasonable facts upon which the MSBCA could conclude that the inclusion of the PLA evaluation factor was not unreasonably restrictive and did advance the legitimate interests of the State. As such, the plaintiffs’ argument was without merit.

PRACTICE TIPS: At the state level, the appropriateness of using a Project Labor Agreement on a public project often hinges upon the presence in the agreement itself of a provision prohibiting discrimination on the basis of union membership. For instance, a State agency’s use of the agreement was upheld where the agreement applied whether the successful bidder was a union or nonunion contractor and discrimination against employees on the basis of union membership was prohibited, the agreement could not be said to promote favoritism or cronyism.

Criminal Procedure

Confessions 

BOTTOM LINE: Circuit court properly denied defendant’s motion to suppress his confession to law enforcement officers on the basis that the confession was involuntary, because the officers made no explicit promises to defendant and a reasonable layperson in the defendant’s position would not have inferred from the officers’ statements that he could gain the advantage of non-prosecution or leniency by confessing to “consensual” anal intercourse with a four-year-old child.

CASE: Smith v. State, No. 2653, Sept. Term, 2012 (filed Dec. 1, 2014) (Judges Meredith, Graeff & LEAHY). RecordFax No. 14-1201-00, 24 pages.

FACTS: Gregory Smith was arrested on September 14, 2010, in the District of Columbia on an outstanding warrant. Detectives Michael Carin and Errol Birch of the Montgomery County Police went to the police station to interview Smith. The detectives introduced themselves as police officers, told Smith that they wanted to interview him about the sexual assault of a four-year-old child, K.N., and then read Smith his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

Smith acknowledged that he understood his rights, agreed to speak with the detectives, and then initialed and signed the Advice of Rights Form. During the interview, Smith described to law enforcement officers multiple occasions on which he engaged in “consensual” anal intercourse with K.N. Before his trial, Smith moved to suppress this confession, claiming that it was involuntary and obtained in violation of Maryland’s common law rule prohibiting law enforcement officers from promising or implying that a suspect will gain the advantage of non-prosecution or some other form of assistance in exchange for a confession.

Smith’s counsel argued that Smith’s confession was involuntary because the officers made a promise of leniency and Smith relied on that improper inducement. Specifically, Smith’s counsel offered as an improper inducement Detective Birch’s statement, “Okay. Tell me what the consensual part of it was and we can roll out of this.” The circuit court denied the motion to suppress.

At trial, Smith’s recorded confession was played for the jury. The jury subsequently convicted Smith of one count of sexual abuse of a minor, two counts of first-degree sex offense, and one count of second-degree child abuse.

Smith appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: On appeal, Smith asserted that Detective Birch’s statements constituted an improper inducement and that Smith relied on those statements in making the confession. A confession may be admitted against an accused only when it has been determined that the confession was voluntary under both Maryland non-constitutional law and the Due Process Clause of the 14th Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and that it was elicited in conformance with the mandates of Miranda. Ball v. State, 347 Md. 156, 173-74 (1997). Smith challenged the voluntariness of his confession under Maryland common law.

The common law rule in Maryland is that a confession is involuntary if it is the product of certain improper threats, promises, or inducements by the police. Lee v. State, 418 Md. 136, 161 (2011). It is necessary to examine the totality of the circumstances affecting the interrogation and confession. Hill v. State, 418 Md. 62, 75 (2011). A non-exhaustive list of factors to consider in that analysis includes the length of interrogation, the manner in which it was conducted, the number of police officers present throughout the interrogation, and the age, education, and experience of the suspect. Id.

Under Maryland criminal law, independent of any federal constitutional requirement, if an accused is told, or it is implied, that making an inculpatory statement will be to his advantage, in that he will be given help or some special consideration, and he makes remarks in reliance on that inducement, his declaration will be considered to have been involuntarily made and therefore inadmissible. Hillard v. State, 286 Md. 145, 153 (1979). Under the two-part test based on Hillard for examining whether a confession was involuntary under Maryland common law, it is first necessary to inquire whether a police officer or agent of the police force promises or implies to a suspect that he or she will be given special consideration from a prosecuting authority or some other form of assistance in exchange for the suspect’s confession. Id. This prong of the test is objective. Id. at 311. To resolve whether the officer’s conduct satisfies the first prong, the court must determine whether a reasonable person in the position of the accused would be moved to make an inculpatory statement upon hearing the officer’s declaration. Hill, 418 Md. at 76.

If the court finds that an improper inducement was made, then the court turns to the second prong, which is whether the suspect makes a confession in apparent reliance on the police officer’s explicit or implicit inducement. Lee, 418 Md. at 161. This prong triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused’s confession. Winder v. State, 362 Md. 275, 311 (2001). Absent the accused’s reliance on the improper remark, the statement is admissible. Id. at 311-12. Both prongs must be satisfied before a confession is deemed to be involuntary. Id. at 310.

In the present case, Smith contended that certain statements made by the detectives interviewing him were improper. Based on these statements, Smith asserted that it was “patently obvious” that the officers implied to Smith that it would be better for him or to his advantage to confess to consensual contact with K.N. Turning to the first prong of the Hillard common law test, however, there was no express promise or offer of a benefit or leniency in exchange for Smith’s confession. Accordingly, the detectives’ statements fell within the realm of implied promises. See Winder, 362 Md. at 311.

To the extent that a promise might be implied by the substance of the detectives’ statements, it was necessary to determine whether a reasonable layperson in Smith’s position would have been moved to make an inculpatory statement upon hearing the statements. Hill, 418 Md. at 76. In Hill v. State, a detective orchestrated a phone call from the victim to a minister accused of sexually assaulting the eight- or nine-year-old victim in an attempt to elicit an admission or apology. Id. at 67-70. The Court of Appeals held that the detective’s remarks that the victim and the victim’s mother did not want to see the accused get into trouble but only wanted an apology constituted an improper inducement under prong one of the Hillard test because a reasonable layperson in the suspect’s position would have taken the detective’s statements to mean that he could gain the advantage of non-prosecution or some other form of assistance, upon making an apology to the victim and his family. Id. at 78-79.

There were, however, significant factual distinctions between the instant case and Hill.

First, the accused in Hill was not arrested prior to questioning as was Smith. In the instant case, Smith was arrested, read his Miranda rights, and then, while sitting, restrained, in the police station, informed of the charges against him. These facts were relevant to the determination as to whether a reasonable layperson would believe he could just “roll out of” the police station by saying that anal sex with a four-year old had been consensual.

Furthermore, in Hill, the accused was told during a voluntary interview that the victim did not want him to be in trouble so long as he apologized, and it was objectively reasonable, from the vantage point of a layperson, that if he apologized he would not be prosecuted. Here, the detectives told Smith that it was important to understand whether the sex was forced, but the detectives also told Smith that they needed to know if the sex was forced so that the child could seek proper treatment. They never actually said he would be charged with a lesser offense if the sex was consensual, and they never offered Smith assistance if he confessed. An appeal to the inner psychological pressure of conscience to tell the truth does not constitute coercion in the legal sense. Ball v. State, 347 Md. at 179.

Smith also argued that the detectives clearly implied that he could “roll out of” his charges if he told them it was consensual. However, the detectives actually said “we can roll out of this,” not “you can roll out of this.” Clearly the detectives used all of their persuasive powers, even telling some untruths while toeing the improper inducement line. In the end, however, they did not cross it. Any reasonable layperson would recognize as ludicrous the chance of charges being dropped or lesser charges being filed in exchange for a confession to having “consensual” intercourse with a four-year-old.

Even if Smith actually believed that the detectives’ statements meant that by confessing to consensual sexual conduct, a lesser charge would be filed against him, encouraging a suspect to adopt a version of the facts that might mitigate the punishment for the crime he committed is not in itself an improper inducement under Maryland law. Williams, slip op. at 43. Moreover, in the instant case, the detectives did not actually tell Smith that a lesser charge might be filed against him by saying that the sex was consensual. For these reasons, the suppression court properly denied the motion to suppress.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Because no objectively reasonable layperson would rely on Detective Birch’s statements as a promise of non-prosecution or a lesser charge, Birch’s statements did not constitute an improper inducement, and the first prong of the Hillard test was not satisfied. As a result, it was not necessary to evaluate the second prong.

Moreover, even if the second prong were to be reviewed, this review would be limited, because Smith did not testify at his suppression hearing, thereby leaving only the transcript and DVD of the interview for the Court to consider. The failure of a defendant to testify almost forecloses any chance of prevailing on a suppression motion based on an alleged absence of voluntariness, since without such testimony, there is usually no direct evidence of involuntariness. Ashford v. State, 147 Md. App. 1, 56, cert. denied, 372 Md. 430 (2002)

PRACTICE TIPS: In Maryland, consent may be a defense to sex offense charges involving an adult victim. However, to be effective, consent must be given by one who has the capacity to give it, and under Maryland law, children lack the capacity to provide consent to sexual contact. Even where a victim is close to majority age, the “mistake-of-age” defense in the context of statutory rape is not recognized in Maryland.

Evidence

Hearsay statement of a minor victim 

BOTTOM LINE: Before calling the doctor who had examined the minor victim to testify as to the minor victim’s hearsay statements at defendant’s criminal trial for sex abuse of a minor, trial court conducted a sufficient hearing during which the court considered all the evidence adduced and reasonably found that the victim’s statement contained particularized guarantees of trustworthiness.

CASE: Reece v. State, No. 234, Sept. Term, 2013 (filed Dec. 2, 2014) (Judges Krauser, GRAEFF & Hotten). RecordFax No. 14-1202-01, 28 pages.

FACTS: R.M., who was seven years old in December 2012, lived with his mother and father, Mrs. M. and Mr. M., his three older sisters, J.M., C.M., and M.M., and his uncle. For several years, they lived next-door to the defendant, Larry Reece, who was 65 years old at the time of trial. Reece had dinner with the M. family once a week, and R.M. went to Reece’s house, where he and Reece would play games, watch television, and practice using guns.

R.M. testified that Reece first sexually molested him in Reece’s locked bedroom. During that incident, R.M. testified that Reece took off his clothes and “did the F-word to me.” R.M. also testified to multiple additional incidents in which Reece sexually molested R.M.

R.M.’s father noticed unusual behavior between Reece and R.M. in the summer of 2011. On one occasion, at the fairgrounds, he observed Reece kiss R.M. on the mouth. That summer, R.M. told his father that his testicles hurt. Mr. M. noticed that R.M. was walking and sitting differently.

On August 22, 2011, after R.M. reported the abuse to his mother, she took him to the pediatrician. They then went to Shady Grove Hospital for a sex abuse forensic evaluation. R.M. was nervous because Reece had told him that he would be arrested if he said anything. After the doctor told R.M. that if he did not want to speak to her, she would let the police come, R.M. became more scared and said that he would talk to the doctor.

J.M. recorded R.M.’s statements to the doctor at the hospital. She testified that she did so because she wanted the physical evidence. R.M. kept asking to go home. At certain points in the recording, R.M. said “no” to questions as to whether R.M. had ever touched any part of Reece with his mouth and whether Reece had ever touched R.M. “where he pooped from.” J.M. then told him that he needed to tell the truth. R.M. told her that he was answering “no” because he did not want to get Reece in trouble. Eventually, R.M. revealed that Reece had sucked on his testicles and had kissed him on the mouth.

On August 24, 2011, R.M. was referred to Dr. Shukat, a pediatrician with a specialty in child abuse and the medical director of The Treehouse Child Assessment Center. During the examination, R.M. told Dr. Shukat that Reece had touched him with his hands and mouth on his penis and testicles. R.M. stated that Reece’s penis went into his “butt.” Upon physical examination, Dr. Shukat discovered two fissures, superficial tears in the skin, along R.M.’s anal opening. Anal fissures are unusual in boys without a history of sexual abuse.

Detective Torrie Cooke, a member of the Montgomery County Police Department’s Youth and Family Crimes Division, began an investigation into the allegations of abuse in August 2011. He executed a search warrant for Reece’s house and seized pornographic magazines from a drawer in Reece’s bedroom, as well as pornographic videos in the basement. Reece was subsequently arrested and charged in the circuit court with sex abuse of a minor and three counts of second-degree sexual offense.

At Reece’s criminal trial, the trial judge admitted Dr. Shukat’s testimony as to R.M.’s hearsay statements regarding the abuse. Reece denied having any sexual contact with R.M. The jury ultimately found Reece guilty of sex abuse of a minor (Count 1); second-degree sexual offense, fellatio on a minor (Count 2); second-degree sexual offense, making a minor perform fellatio on Reece (Count 3); and second-degree sexual offense, performing anal intercourse on a minor (Count 4). Reece was sentenced to 15 years on the conviction for sex abuse of a minor; ten years, consecutive, on the conviction for second-degree sexual offense, performing fellatio on a minor; and ten years, concurrent, on each of the other two convictions for second-degree sexual offense.

Reece appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Reece argued that the circuit court failed to conduct a proper hearing before calling Dr. Shukat to testify to R.M.’s hearsay statements to her. Under Md. Code (2011 Supp.) §11-304 of the Criminal Procedure Article (“CP”), an out-of-court statement to a physician by a child, who is under the age of 13 and alleged to be a victim of sexual abuse, is admissible if certain conditions are met. One of the conditions is that the statement must have particularized guarantees of trustworthiness.

CP §11-304(e)(2) sets forth a non-exclusive list of factors for the court to consider in determining whether a statement meets the requirement of trustworthiness. These factors include the child victim’s personal knowledge of the event, whether the statement was spontaneous or directly responsive to questions, and whether the child victim was suffering pain or distress when making the statement. Subsection (f) requires the court to make an on-the-record finding, outside the presence of the jury, as to the specific guarantees of trustworthiness that are in the statement and determine the admissibility of the statement. CP §11-304(f). Pursuant to subsection (g), the court, in making a determination under subsection (f), shall examine the child victim in a proceeding in the judge’s chambers, the courtroom, or another suitable location that the public may not attend. CP §11-304(g)(1).

In the present case, on July 11, 2012, the circuit court held the requisite pretrial hearing on the admissibility of R.M.’s out-of-court statements to Dr. Shukat.

Reece called Dr. Leigh Hagan, a clinical and forensic psychologist, who testified regarding the proper methodology to conduct a forensic evaluation of a minor child. Based on Dr. Hagan’s review of the records in the case, including the transcript of the recording that J.M. made at the hospital, as well as deposition testimony and reports, all of which was admitted at the hearing, Dr. Hagan stated that it was significant that R.M. initially denied abuse, but after four hours of questioning, he finally disclosed the abuse. He also found some interviewing techniques troubling, such as responding to R.M.’s denial that Reece touched him by saying: “Really?” Dr. Hagan then opined that R.M.’s statements did not contain particularized guarantees of trustworthiness.

The State then called Dr. Shukat to testify. Dr. Shukat had received extensive training in how to interview children. Dr. Shukat found R.M. to be “very articulate” and very specific about his genital pain, genital contact, and what he saw in terms of adult masturbation and ejaculation. R.M. was very specific about cause and effect, and he gave descriptions of having experienced scrotal pain and rectal pain that were consistent with his descriptions of how Reece injured him. R.M.’s statements to Dr. Shukat were consistent with the information that she had obtained from his parents, including that he had complained of scrotal pain and had exhibited behavioral changes prior to his disclosure.

After the hearing, the court ruled that R.M.’s statements to Dr. Shukat were admissible pursuant to CP §11-304. The court noted that it had “considered Dr. Shukat’s report, her deposition, and her testimony at the hearing on July 11, 2012. The court then stated that, pursuant to CP §11-304, it had examined R.M. on December 3, 2012, in the courtroom. The judge stated that he found R.M. to be an intelligent child who was competent to testify and that R.M.’s statements contained particularized guarantees of trustworthiness.

Given these facts, Reece’s claim that the trial court “only superficially addressed the factors” set forth in CP §11-304 was without merit. The court heard testimony, considered all the evidence adduced, and specifically addressed each of the factors set forth in CP §11-304. Because there was evidence to support the factual findings, they were not clearly erroneous. See Kusi v. State, 438 Md. 362, 380 (2014).

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Reece additionally argued that the circuit court erred in admitting R.M.’s testimony without allowing Reece to challenge the reliability of the testimony. Reece suggested that before making a finding that R.M.’s statement to Dr. Shukat had particularized qualities of trustworthiness the court was required to question R.M. about the charged offenses and to elicit from R.M. the “facts surrounding the allegations, the questioning by his sister or parents, or the drawn out four-hour long follow up interrogation at the hospital.” Reece, however, cited no authority to support his argument that the statute requires such an inquiry.

Here, the court examined R.M. as required by the statute. It determined that R.M.’s statements to Dr. Shukat had particularized guarantees of trustworthiness. The court conducted the requisite analysis, and its findings were not clearly erroneous. Thus, the circuit court properly admitted into evidence R.M.’s statements to Dr. Shukat.

PRACTICE TIPS: In child sex abuse cases, some jurisdictions require a pretrial “taint” hearing to determine if a child victim’s trial testimony was unreliable. In Maryland, however, due process does not require a pretrial taint hearing to assess whether there was improper interviewing techniques; rather, any such evidence can be introduced at trial for the trier of fact to evaluate.

Labor & Employment

Collective bargaining agreements 

BOTTOM LINE: Contrary to the State Board of Education’s interpretation of the law, a collective bargaining agreement between a county board of education and the labor representative for support employees can legally include a requirement providing for arbitration of disputes regarding the discharge of such employees; the Court of Special Appeals therefore reversed circuit court decision that the arbitration provision in parties’ collective bargaining agreement was illegal and nonbinding.

CASE: Howard County Education Association-ESP, Inc. v. Board of Education of Howard County, No. 009, Howard County Education Association-ESP, Inc. v. Board of Education of Howard County, No. 054, Sept. Term, 2013 (filed Dec. 1, 2014) (Judges MEREDITH, Zarnoch & Eyler, J.R., J. (Retired, Specially Assigned)). RecordFax No. 14-1201-01, 31 pages.

FACTS: These consolidated appeals involved a dispute between two State agencies as to whether the collective bargaining agreement between a county board of education and the labor representative for support employees could legally include a requirement providing for arbitration of disputes regarding the discharge of such employees. The incident that precipitated the dispute between two State agencies was the discharge of a school nurse who was an employee of the defendant, Board of Education of Howard County. Because this employee was covered by a collective bargaining agreement that provided not employee would be discharged without cause, her labor representative, the plaintiff, Howard County Education Association-ESP, Inc., filed a grievance asserting that there was insufficient cause to impose the ultimate disciplinary sanction of discharge.

The county board of education rejected the employee’s grievance, and advised the employee’s labor representative that, despite the fact that the collective bargaining agreement had provided for such issues to be subject to the grievance process, the discharge of a non-certificated employee such as the school nurse was “an illegal subject of bargaining and thus not grievable.” The employee’s labor representative then filed a demand for arbitration with the American Arbitration Association. Rather than submit to arbitration, the Board of Education of Howard County filed suit in the circuit court against the Howard County Education Association-ESP, Inc., to enjoin the arbitration.

The county school board alleged that, notwithstanding any provision in the applicable collective bargaining agreement, by statute and case law, a county Superintendent of Schools had the sole authority to dismiss a non-certificated employee, and, therefore, the arbitration provision affecting the merits of the Superintendent’s discussion to terminate a non-certificated employee was contrary to law and invalid. The circuit court issued a preliminary injunction staying the arbitration but stating that the preliminary injunction would expire in ten days unless one or both of the parties filed a request with the Maryland State Board of Education or the Public School Labor Relations Board for statutory interpretation. The Board of Education of Howard County asked the Maryland State Board of Education for a declaration of interpretation, and the Howard County Education Association-ESP, Inc., similarly asked the Maryland Public School Labor Relations Board for its statutory interpretation.

The Maryland State Board of Education issued an opinion stating that, because the power to appoint and terminate nonprofessional personnel is committed to the county superintendent of schools, the arbitration provision which the Board of Education of Howard County agreed to include in its collective bargaining agreement was illegal and nonbinding. The Maryland Public School Labor Relations Board took the position that the provision in the Howard County collective bargaining agreement providing for binding arbitration of disputes regarding the discharge for cause of nonprofessional employees was legally enforceable. In an amicus brief, the Maryland Attorney General agreed with the labor relations board.

The circuit court found the Board of Education’s arguments more persuasive, and entered orders affirming the interpretive ruling of the Maryland State Board of Education, reversing the interpretive ruling of the Maryland Public School Labor Relations Board, and permanently enjoining the arbitration requested by the plaintiff on behalf of the discharged nurse.

The employee’s labor representative appealed to the Court of Special Appeals, which reversed the judgments of the circuit court.

LAW: Howard County Education Association-ESP, Inc., argued that the Maryland State Board of Education exceeded the scope of its statutory authority when it ruled that language contained in the parties’ Master Agreement providing that “no employee will be discharged without cause” was not subject to binding arbitration, thereby declaring it a de facto illegal subject of bargaining pursuant to §6-510(c)(3) of the Education Article. The two State agencies that issued conflicting rulings in this case shared the distinctive characteristic of being granted broad statutory power to interpret statutes within their sphere of administration. See Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 790-911 (1986). The State Board’s broad authority specifically includes the power to interpret the provisions of the Education Article.

The General Assembly created the Public School Labor Relations Board for the express purpose of deciding such issues relative to the permissible scope of collective bargaining agreements. According to the plain language of the applicable statutes enacted in 2009 and 2010, agreements regarding the discharge of employees may be included in collective bargaining agreements. Moreover, the Public School Labor Relations Board was empowered to make the final decision regarding that topic. The legislative history behind the statutes which created the labor relations board reflects a clear intent on the part of the General Assembly to have that agency, rather than the State Board of Education, be the final arbiter on any disagreement regarding the topics that can be covered in collective bargaining negotiations and agreements.

The State Board of Education’s position of steadfastly refusing to recognize arbitration of disputes regarding the discharge of employees dates back to at least the early 1990s. See Livers v. Board of Education, 101 Md. App. 160 (1994). In 2002, however, Educ. §6-510(b) was revised, making “due process for discipline and discharge” a legally permitted topic for negotiation. Educ. §6-510(b) (2003 Supp., 2004 Repl. Vol.). Despite this change in the law, the State Board refused to alter its position that a superintendent’s power of appointment implied a nondelegable power of termination which could not be modified by a contrary provision in a collective bargaining agreement. See Harford County Board of Education v. Harford County Educational Services Council, MSBE Op. No. 05-24 (2005).

In 2009, the General Assembly again amended §6-510. These bills added language to §6-510(b)(1) that made the discipline and discharge of an employee for just cause a mandatory subject of bargaining. Cf. 6-510(b)(2). In 2010, the legislature enacted the Fairness in Negotiations Act, which established the Public School Labor Relations Board, which is charged with administering and enforcing the provisions of Subtitles 4 and 5 of the Education Article, which deal, respectively, with organizations of employees who are required to hold a professional certification and organizations of non-certificated employees, such as the school nurse whose termination was the source of the present cases.

In the present case, the State Board focused on the wrong question. The issue here was whether it was illegal under applicable Maryland statutes for the Board of Education of Howard County to enter into a collective bargaining agreement which expressly agreed that an employee’s grievance was arbitrable. Section 6-510(a) of the Education Article requires that, if a public school employer and an employee organization “negotiate under this section,” they shall do so in good faith, in a way as to honor and administer existing agreements, and shall make every reasonable effort to conclude negotiations with a final written agreement in a timely manner. They must also reduce to writing the matters agreed on as a result of the negotiations.

Here, after a period of negotiations, the parties entered into a Master Agreement, covering a three-year period. Article 2 of the Master Agreement provided for a grievance procedure, and specified the means by which an employee could file a grievance. A provision in the Master Agreement stated that, in the event that the employee and the Association were not satisfied with the second step in the delineated three-step grievance process, the grievance could be submitted to binding arbitration. This provision was clearly permissible under Educ. §6-510(b), which provides that negotiated agreements between a public school employer and an employee organization, of the sort entered into here, “may provide for binding arbitration of the grievances arising under the agreement that the parties have agreed to be subject to arbitration.”

In this case, the school nurse’s grievance asserted that she was recommended for termination without cause. Because §4.1 of the Master Agreement specified that no non-probationary employee would be discharged without cause, and because the Master Agreement provided for a grievance procedure, the employee attempted to pursue the grievance procedure. In response, she was notified by defendant that it was denying her grievance “because it is an illegal subject of bargaining and thus not grievable.” However, according to the Public School Labor Relations Board, the discipline and discharge of an employee for just cause is not an illegal subject of bargaining; rather, it is mandatory subject of negotiation pursuant to Educ. §6-510(c)(1).

For these reasons, the circuit court erred in reversing and vacating the Public School Labor Relations Board’s decision, erred in affirming the interpretation of the State Board of Education, and erred in granting the defendant a permanent injunction preventing the arbitration requested by plaintiff from going forward.

Accordingly, the judgment of the circuit court in Case No. 13-C-12-090823 was reversed and the injunction in that case dissolved. The judgment in Case No. 13-C-12-91545 was reversed and the case remanded with instructions for the circuit court to enter orders reversing the opinion of the Maryland State Board of Education and affirming the decision of the Public School Labor Relations Board in Case No. N 2102-01.

COMMENTARY: The school board argued that Educ. §6-510(c)(3) exempts from collective bargaining a matter prohibited by applicable statute and that Educ. §6-201(c)(1) was such “applicable statutory law.” However, the discipline and discharge of an employee for just cause was expressly made a mandatory subject of bargaining in the subsection of “statutory law” immediately above it: i.e., in §6-510(c)(1).

Thus, the defendant’s argument that, when the legislature expressly included the discharge of an employee as a mandatory subject of collective bargaining, the legislature simultaneously intended to exclude that topic because of the general reference to “applicable statutory law” was without merit. Rather, with respect to resolution of disputes regarding the topics that may be the subject of collective bargaining, the General Assembly has designated the labor relations board (not the State Board of Education) as the agency empowered to decide what is a “matter that is precluded by statutory law.”

PRACTICE TIPS: Interpretations of education law by the State Board of Education are entitled to heightened deference. However, courts are not required to defer to the interpretations of the agency if the State Board of Education’s interpretation or application of a statute, in a particular situation, would clearly be contrary to the statute’s plain meaning, in which case a reviewing court must reject that interpretation.