PSC v. Wilson

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Public Service Commission v. Wilson, No. 13 3, Septe mber T erm, 20 04. STATUTORY INTERPRETATION - STATE PERSONNEL MANAGEMENT SYSTEM PUBL IC SERVICE COMMISSION - APPOINTING AUTHORITY - THE FIVE COMMISSIONERS OF THE PUBLIC SERVICE CO MMISSION (OR THE VO TE OF A MAJORITY THEREOF) CONSTITUTE THAT AGENCY S APPOINTING AUTHORITY STATUTORY INTERPRETATION - STATE PERSON NEL MANA GEMENT SY STEM PROCEDURES TO BE FOLLOWED PRIOR TO TERMINATION AS THE RESULT OF EMPLOYEE MISCO NDU CT - IN ORDER TO CONSTITUTE EMPLOYEE MISC OND UCT , ALLEGED EMPLOYEE CONDUCT MUST IMPLICATE AN ELEMENT OF WRONGDOING OR CULPABLE NEGLIGENCE ADMINISTRATIVE LAW - EXHAUSTION OF ADMINISTRATIVE REMEDIES CONSTITUTIONAL EXCEPTION - WHEN AN INDIVIDUAL CHALLENGES THE CONSTITUTIONALITY OF A STATUTE OR REGULATION AS APPLIED TO THAT INDIVID UAL S PARTICULAR CIRCUM STAN CES, AV AILAB LE AN D SPEC IFIC ADMINISTRATIVE REMEDIES MUST BE EXHAUSTED BEFORE RESORT TO A JUDICIAL FORUM At-will employee of the Maryland Public Serv ice C omm issio n ( C omm issio n ), C hrys Wilson, was term inated initially by the Chairman of the Commission, acting without the approva l, acquiescence, or delegation of the Commission as a whole, which is made up of five Commissioners (including the Cha irman). Under M d. Code (1993 , 2004 Repl. Vo l.), § 11-305 of the State Personnel and Pensions Article, an at-will employee may be terminated only by the appointing authority. Although the appointing authority is not identified expressly in a statute w ith regard to th e Comm ission, the statuto ry scheme in th e Public Utility Article demonstrates that the Commission, as a whole, is the body that possesses the authority to appoint and terminate at-will employees. Because the initial termination was not effectuate d by the Com mission as a whole, tha t termination w as unlaw ful. The Circuit Court also found that Wilson s termination was unlawful because it was the result of employee misconduct and Wilson was not afforded the statutory pretermination procedures mandated by Md. Code (1993, 2004 Repl. Vol.), § 11-106 of the State Personnel and Pensions Article. When an at-will employee under the State Personnel Management System claims that his or her termination or other discipline was unlawful because the appointing authority did not follow the specific procedures in § 11-106, that employee bears the bu rden of d emonstrating that either the appointing authority did not follow properly the procedures in § 11-106 or that the disciplinary action was the result of some meaningful leve l of c onsi dera tion by the app ointing a utho rity of alleged employee miscon duct. In this case, Wilson did not prese nt any ev idence that she was fi red, sub silentio, as the re sult of emplo yee misco nduct. Md. Code (1993 , 2004 R epl. Vol.), § 11-113 of the State Personnel and Pensions Article provides an administrative appeal process for employees facing disciplinary actions. This post-action process permits the employee to raise challenges to the action regarding illegality and/or constitutionality. In this case, Wilson failed to submit an appeal of her retermination by a majority of the full Commission, instead opting to file a motion to hold the Commission in contem pt of an ea rlier order ente red in a Circ uit Court action regarding the Chairman s initial, but illegal, termination of her employme nt. When a statute provides a specific administrative remedy, an affected party ordinarily must await a final administrative decision before resorting to a judicial forum. Although Maryland courts recognize an exception to the exhaustion doctrine where an individual attacks the constitutionality of a statute or regulation , this constitutional exception ap plies only when there is an attack on the pertinent statute or regulation on its face. In this case, Wilson did not make a facial attack on § 11-113; instead she argued that it was unconstitutional as applied to the circumstances of her case. Accordingly, because she failed to note the provided for administrative appeal following her re-termination, her Circuit Court action must be dismissed. Circuit Co urt for Baltim ore City Case # 24-C-04-004553 IN THE COURT OF APPEALS OF MARYLAND No. 133 September Term, 2004 PUBLIC SERVICE COMMISSION OF MARYLAND, AND KENNETH D. SCHISLER, CHAIRMAN OF THE PUBLIC SERVICE COMMISSION OF MARYLAND v. CHRYS WILSON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: September 13, 2005 We are called upon in this case to review the termination, brief reinstatement, and retermination of Chrys Wilson in her employment with the Maryland Public Service Commission. In evaluatin g the prop riety of these actions, we first must determine whether the Chairman of the five membe r Comm ission, Ken neth D. S chisler, excee ded his au thority when, on his initiative, he terminated Wilson without the approval, acquiescence, or delegation of auth ority of a m ajority of th e full m embe rship of the Co mmiss ion. We als o must determine whether the Circuit Court erred in concluding that, as to the initial termination or re-termination, Wilson was terminated for cause and was thus entitled to the statutory protections of M d. Code (1993 , 2004 Repl. Vo l.), § 11-106 of the State Personnel and Pensions Article. Finally, we must determ ine, assumin g Wilson was disch arged sim ply because she served at the pleasure of the appointing authority, whether the Circuit Court erred in finding th at the adm inistrative appeal process provided by statute for such a termination violated due process principles because it only provides for an appeal to the Chairman of the Commission, who, in this case, made the initial decision to terminate Wilson and particip ated as a m ember of the Com mission in th e re-termina tion action as well. I. On 15 April 2004, without prior notice th at such an actio n wa s for thco ming, Ch rys Wilson was terminated from her employment as Manager of the Office of External Relations with the M aryland P ublic S ervice C omm ission ( PSC ), a position that she held since 1996. Wilson s termination took place at the same time four other non-temporary employees of the Commission were removed.1 The decision to terminate Wilson was made by the Chairman of the Commission, Kenne th D. Schisler. 2 Althoug h Chairm an Schisler , in making this personn el decision, allegedly consulted individuals outside of the PSC, he did not seek approval from the other members of the Commission, which consists of five Commissioners (including the Chairman). 3 In a deposition taken by Wilson on 27 September 2004 in the present litigation, Chairman Schisler stated that, prior to Wilson s termination, he felt that she did not possess sufficient skills, judgment, or work ethic to perform in her position at the level he desired. He also stated that he suspected that, on one occasion, she may have misrepresented on her time sheet the amount of time she actually worked o n a given day. The C hairman, howe ver, claimed to have conclude d ultimately, as to th e time shee t incident, that there was insufficient evidence of wrongdoing and, for that reason, he neither sou ght nor imposed a ny disciplinary sanctions. Chairman Schisler denied in his deposition that he based his termination decision on any performance issues or the incident involving the time sheet. Instead, he pointed out 1 None of the other employees is a party to the present litigation. 2 Schisler was appointed to the position of Chairman of the Commission by Governor Robert L. Ehrlich, Jr. He assumed the position on 1 July 2003. 3 At the time of the initial termination of Wilson, the five Commission m embers were Chairman Schisle r, Com mission er Gail C . McD onald, C omm issioner J. Joseph Max Curran, III, Commissioner Ronald A. Guns, and Comm issioner Harold D. Williams. 2 that he did not need to give a reason for Wilson s termination because of her status as an atwill employee. Indeed, Ch airman Schisler s 15 April 2004 memorandum to Wilson advising her of her termination assigned no reason for the action. At the request of the group of terminated PSC employees and a member of the Legislature, on 27 April 2004 an Assistant Attorney General of Maryland issued an advice letter analyzing the a uthority of the C hairman to terminate certain employees without the approval of the full Comm ission. This letter concluded that, unde r the relevant statutory scheme, the termination of an employee in the management service4 may only be effectuated by the appointin g authority, w hich by statute p ossesses the exclusive p ower to term inate certain at-will e mployee s of the PSC. The Assistant Attorney General concluded that the five Commissioners, as a body, constituted the appointing authority of the PSC. The Chairman of the Com mission, she concluded, possesses the authority to terminate a management service employee only if [that authority] has been delegated to him [or her] by the Commission as a whole. If such a delegation has not been made, the letter opined, the termination of the affected employees would be outside the Chairman s authority and therefore illeg al. 4 As explained infra, positions within the State Personnel M anagement System a re classified into six distinct categories: skilled service, professional service, management service, executive service, special appointments, and temporary employees. Although Wilson appears to have been initially of the belief that her position was not within the management service , see infra note 6, on appeal she appears to concede that her former position was indeed within the management service. 3 Also on 27 April 2004, Wilson apparently filed with the Commission an administrative appeal of her termination pursuant to Md. Code (1993, 2004 Repl. Vol.), § 11113 of the State Personnel and Pensions Article,5 on the grounds that her termination was illegal and unco nstitutional. 6 Two days later, three of the C ommissioners serving on the Commission at the time of the termination of Wilson signed an affidavit statin g that they did not participate in or direct the termination of [the five employees, including Wilson, terminated by Chairman Schisler on 15 April 2004], nor did they delegate to Chairman Schisler any a utho rity to t erminate the e mployme nt of the a fore men tioned em ploye es. Nonetheless, on 12 May 2004, Chairman Schisler, as head of the princip al unit, 7 reviewed, in light of the apparent issues raised in her appeal, his decision to terminate Wilson and denied her administrative appeal. In a letter exp laining his rea sons for d enying her ap peal, 5 Unless otherwise indicated, all subsequent statutory references shall be to the 2004 replace ment v olume of the S tate Pers onnel a nd Pen sions A rticle. 6 Although we are unable to locate in the record the actual written appeal filed by Wilson, Chairman Schisler s written response to her appeal recites the grounds upon which he perceived Wilson challenged her termination by him: 1) the position of Manager of External Relatio ns is not a management service position subject to the at-will termination provisions of SP&P § 11-305; 2) she was not afforded a pretermination hearing; 3) her termination was because of her political affiliation, belief or opinion, contrary to the First Amendment and Article [40] of the Maryland Declaration of Rights ; and 4) the Chairm an s actions as appoin ting authority for the C omm issio n we re un lawful a nd w ithout au thority. 7 Wilson does not dispute that Chairman Schisler is, with regard to the Commission, the em bodim ent of th e statuto ry head of the p rincipal unit. 4 the Chairman co ncluded th at, as a man agemen t service em ployee, Wilso n was an at-will employee, was not fired for cause, and theref ore not entitled to a statutory pre-termination hearing. In regard to her First Amendment claim, Chairman Schisler found that Wilson had not presented sufficient evidence that she had been terminated as a result of her political affiliation, opinions, or beliefs. He also concluded that the position of Chairman was the appointing authority for the C omm issio n and the refo re his exe rcise of th at au thority, without approval, acquiescence, or delegation from the full Commission, was not illegal or unconstitutio nal. Aggrieved by the outcom e of the ad ministrative ap peal, on 27 May 2004 Wilson filed a ten count c omplaint in the Circuit Court fo r Baltimore City seeking e ssentially declaratory and injunctive relief, including reinstatement as Manager of the Office of External Relations. The PSC (and Chairman Schisler) and Wilson filed cross-motion s for summ ary judgmen t. On 19 October 2004, one day before the hearing on the motions, Wilson filed an amended complain t, adding significant additional factual allegations and causes of action, but abandoning others.8 In her amended complaint and motion for summary judgment, Wilson claimed that her term ination wa s illegal becau se it was accomplished by the Chairman acting alone, without the appro val, acquiescen ce, or delega tion of auth ority by at least a majo rity of the full Commission. Wilson als o contend ed that, desp ite Chairm an Schisler s statements 8 Wilson amended her complaint in light of the deposition she took of Chairman Schisler conducted subsequent to filing the original complaint. Furthermore, the amended complain t deleted the S tate of M aryland as a na med def endant. 5 to the contrary at h is deposition, s he was te rminated for cause and theref ore unlaw fully was denied the pre-termination process guaranteed by § 11-106 before disciplinary sanctions relating to employee misconduct could be imposed. Wilson also alleged that, in the alternative, she was terminated unconstitutionally because of her political beliefs, in violation of Article 40 of the Maryland Declaration of Rights.9 Furtherm ore, Wilson maintained that, if she was discharged merely as an at-will employee, and not for cause, the PSC violated her due process righ ts by failing to pro vide an im partial agenc y adjudicator fo r her posttermination administrativ e appeal. The scheduled hea ring on the s ummary jud gment m otions wa s held in the C ircuit Court, notwithstanding the filing of the amended complaint only a day earlier. On 25 October 2004, the court entered an order containing the following determinations: (1) within the context of the definition of A ppointin g Au thority, the full panel of [the] Public Service Commission comprises a unit of government; (2) the full panel of the Public Service Commission shall act as the Appointing Authority for the Commission unless the a uthority is delega ted by a majo rity vote of the Commission; (3) the Chairman had neither been delegated the authority to act as th e Appo inting Au thority by the majority of the Commission at the time Chrys Wilson was terminated; nor had a majority of the Commission acquiesced in the 9 Maryland Declaration of Rights, Article 40, states: Article 40. Freedom of press and speech. That the liberty of the p ress ough t to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege. 6 Commission s termination of Chrys Wilson; (4) in light of the foregoing, the termination of Chrys Wilson on April 29, 2004, by the Chairman of the Public Service Commissio n was unlawfu l; (5) termination of [Wilson] may only be accomplished by the delegate d Appo inting Au thority, and in the absence of such delegation, a majority vote of the Commission as a whole; [and] (6) neither the Chairman nor any of his employees may lawfully serve as an agency adjudicator regarding his own decision to terminate [W ilson]. The Circuit Court granted Wilson s motion for summary judgment, denied all of the Commission s pending m otions, and o rdered that W ilson be reinstated immediately to her prior position with full back pay from the date of termination. The Circuit Court also directed that any further personnel actions related to Chrys Wilson . . . be consiste nt with the Co urt s rulin g . . . . On 29 October 2004, the Commission sent a letter to Wilson stating: [w]hile the Commission respectfully disagrees with the [Circuit] Court s determination and intends to note an appeal, the Commission currently is bound by the directive. Therefore, the Commission hereby reinstate s Ms. Ch rys Wilson to the position of the Manager of External Relations effective October 29, 2004. The letter con tinued, h owe ver, i n a not so conciliatory w ay: Furthermore, the Com mission he reby notifies Ms. Wilson that she is being terminated from her Management Service position with the Maryland Public Service Commission effective October 29, 2004. Ms. W ilson is directed not to report to work . Ms. Wilson is hereby granted administrative leave for October 29, 2004. In accordance with § 11-113 of the [State Personnel and Pensions Article], Ms. Wilson may appeal the termination by 7 filing a written appeal within 15 days of receipt of this decision. The appeal should be directed to the head of the principal un it and may only be based on the grounds that the action was illegal or uncon stitutional. The letter was signed by three Commissioners, including one, Allen M. Freifeld, who was newly appointed to the Commission since Wilson s initial termination.10 On 3 November 2004, the Commission noted an appeal to the Court of Special Appea ls regarding the Circuit Court s grant of summary judgment in favor of Wilson. The Commission contemporaneously filed a motion in the Circuit Court asking it to reconsider its award of back pay and ben efits. On 4 N ovembe r 2004, W ilson petitione d the Circu it Court to hold the Commission in contempt of the court s 25 October 2004 order based on the re-termination. Several days later, the Circuit Court held a hearing on the pending motions. In an order dated 15 N ovember 200 4, the Circuit Court denied , without prejudice, Wilson s petition to hold the Commission in contempt. In the same order, however, the trial judge amended his 25 October 2004 order, retaining the first three determinations, but adding certain new findings: . . . 4) the termination of Chrys Wilson on April 15, 2004, by the Chairman of the Public S ervice Co mmission was unla wful in that it was a for cause termination as a result of alleged misconduct which was conducted without the statutory protections due Ms. Wilson; 5) in light of the foregoing, the termination of Chrys Wilson on April 15, 2004, by the Chairman of the Public Service Commission was unlawful; 6) any termination of [Wilson] may only be accomplished by the delegated Appointing Authority, and in the absence of such a 10 On 1 July 2004, Commissioner McDonald was replaced by Commissioner Freifeld. 8 delegation, a majority vote of the Commission as a whole; 7) [Wilson] is entitled to an impartial, unbiased agency adjudicator in connection with any intra-agency appeal of a proposed termination; 8) neither the Chairman nor any of his employees may lawfully serve as an agency adjudicator regarding his own decision to terminate [ Wilson]; 9) the October 29, 2004 retermination of [Wilson] was invalid, illegal and improper because it was tainted by the initial unlawful term ination; 10) the October 29, 2004 re-termination of [Wilson] was invalid, illegal and improper because it was a for cause termination as a result of alleged miscond uct carried o ut without the statutory protections required; 12) the October 29, 2004 re-termination of [Wilson] was invalid, illegal and improper because the Commission adopted the same unconstitutional intra-agency appellate procedu re by a biased d ecision-ma ker applied in the initial term ination . . . . In addition to the relief afforded in the original 25 October 20 04 order (i.e., reinstatement, back pay, and benefits), the judge ordered that Wilson be permitted to physically return to work and perform the duties of her position as Manager of External Relations . . . . Furthermore, the judge ordered that, before the Public Service Commission makes additional ef forts, if any, to term inate Ms. W ilson s emp loyment, M s. Wilson sh all be provided a hearing and all process due according to law pursuant to her rights as an individual being terminated for cause as a result of alleg ed miscon duct, this shall include, but not be limited to, the rights found in Section 11-106 of the State Personnel and Pensions Article. In response to entry of the 15 November 2004 order, the Commission filed a second notice of appea l to the Cou rt of Specia l Appeals . Before th e intermediate appellate court 9 could consider eith er appeal, 11 this Court, on its in itiative, issued a w rit of certiorari, 385 Md. 161, 867 A.2d 1062 (2005), in order to consider the following questions: I. Did the Circuit C ourt err w hen, on 15 Nov ember 20 04, it altered its previous order of 25 October 2004 granting summa ry judgment in favor of Wilson based on the intervening actions of the Commission? II. Did the C ircuit Court e rr in determining that the Commission as a whole is the appointing authority under Md. Code (1993, 2004 Repl. Vol.), § 11-305 of the State Personnel and Pensions Article and that, as a result, a termin ation effe ctua ted b y the Chairman of the Commission acting alone, without the approval, acquiescence, or delegatio n of a ma jority of the full Comm ission, is unlaw ful? III. Did the Circuit Court err in determining that Wilson was terminated for cause and thus was entitled to the statutory process under M d. Cod e (1993 , 2004 R epl. Vo l.), § 11-106 of the State Personnel and Pensions Article applicable to the imposition of dis cipli nary s anct ions for emp loyee misconduct ? IV. Did the C ircuit Court e rr in determin ing that the statutory intra-agency appeals process under Md. Code (1993, 2004 R epl. Vol.), §§ 11-305 and 11-113 of the State Personnel and Pensions Article governin g the termin ation of ce rtain employees violated Article 24 of the Maryland Dec laration of R ights becau se it failed to provide an imp artial adjudicator? 11 Prior to entry of the C ircuit Court s 15 November 2004 order, the Commission, on 12 November 2004, filed an emergency motion in the Court of Special Appeals for a stay of that part of the Circuit Court s order allowing Wilson to physically return to work, which was granted by Chief Judge Joseph F. Mu rphy, Jr. tha t same d ay. On 23 November 2004, after considering Wilson s opposition, Chief Judge Murphy issued an order making the stay permane nt abiding th e outcom e of the ap peals. The stay was not a ltered by this Co urt. 10 V. Did the C ircuit Court e xceed its au thority when it ordered that Wilson be allowed to physically return to work after her termination was fou nd to be un lawful? II. The Commission initially argues that the C ircuit Co urt excee ded its au thority by sua sponte granting su mmary judg ment in favor of Wilson in its 15 November 2004 order and vacating the Commission s 29 October 2004 re-termination of Wilson. For reasons to be explained, we con clude that the Circuit Court committed no proc edural error b ecause, de spite the Commission s characterization of the action taken, the Circuit Court acted within the proper range of its revisory powers under the relevant provisions of the Courts and Judicial Proceedings Article of the Maryland Code and the Maryland Rules. As indicated supra, the Circuit Court, on 25 October 2004, granted Wilson s motion for summary judgment, finding that both the 15 April 2004 termination of Wilson and th e subsequent intra-agenc y administrative appeal process were un lawful. B ased on a postjudgment motion by the Commission to reconsider the award of back pay, the Circuit Court scheduled and held a hearing on 10 November 2004. The Circuit Court also allowed Wilson, at the hearing, to be heard on her contempt motion filed a few days before. Based on what was presented to it at the 10 November hearing, including what transpired since the 20 October hearing upon which the 25 October order was based, the trial judge, on 15 November 2004, issued an order mirroring to some extent the language of his 25 October order, but adding several additional determinations. Most no table of the additions was the 11 finding that both the 15 April and 29 October terminations were for cause and thus unlawful because they were accomplished without the statutory protections due an employee that is term inated f or em ployee m iscond uct. Our review o f the record indicates that th e 15 No vember o rder was n ot in fact a sua sponte grant of summary judgment, as the Commission contends, but rather a modification of the 25 October o rder granting Wilson s m otion for summa ry judgment. Md. Code (1973, 2002 Repl. Vol.), § 6-408 of the Courts and Judicial Proceedings Article states: § 6-408. Reviso ry pow er of court over judgment. For a period of 30 days after the entry of a judgmen t, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of th at pe riod the c ourt has r evisory power and control over the judgment only in case of fraud, mistake, irreg ularity, or failure of an employee of the court or of the clerk s office to perform a duty required by statute or rule. Maryland Rule 2-535(a) states: Rule 2-535. Revisory power. (a) Gener ally. On motion of any party filed within 30 days after entry of judgment, the court may exerc ise revisory power and control over the jud gment an d, if the action was tried before the court, may take any action that it could have taken under Rule 2-534 [Motion to alter or amend a judgmen t Court decision]. Maryland Rule 2-534 provides: Rule 2-534. M otion to alter or amend a judgment Court decision. In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set 12 forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgmen t. A motion to alter or amend a judgment may be joined with a mo tion for new trial. In Maryland Board of Nursing v. Nechay, 347 Md. 396, 701 A.2d 405 (1997), we examined a Circu it Cour t s pow er to rev ise, sua spon te, an order within 30 days of its entry when there existed no intervening m otion between the o riginal entry of judgment and the subsequent revision or modification of the order underlying the judg ment. Noting that the Committee note to Rule 2-535(a) states that [t]his section is intended to be as comprehensive as Code, Courts Article § 6-408, the Court concluded that [t]his suggests stro ngly that when the Court adopted [Rule 2535(a)], it did not intend that the rule supercede the statute or even contradict it; rather it intended that they be read together, complementing or supplem enting each other. This is consistent with the teachings of our cases with respect to the power of circuit courts to revise or modify their judgments. In that regard, it is well settled in this State that, Read together, the rules, the statute and our decisions boil down to a dictate that for a period of thirty days from the entry of a law or equity judgment a circuit court shall h ave unres tricted discretion to revise it. . . . The exercise of the court s discretion is not triggered exclusively, our cases make clear, by a motion filed by one of the parties. Nechay, 347 Md. at 40 8-09, 701 A.2d a t 411 (c itations o mitted). See also Renbaum v. Custom Holding, Inc., 386 Md. 28, 43-46, 871 A.2d 554, 563-65 (2005) (finding that, wh ere the Circ uit C ourt initia lly den ied a plain tiff s petition for involuntary dissolution of a corporation, the Circuit C ourt did no t err when , upon mo tion of the p laintiff pursu ant to Rule 13 2-534, it relied on evidence of events occurring post-judgment to conclude subsequently that involuntary dissolution was prop er). In this case, the C ircuit Court w as invited by the Comm ission s motio n seeking revision, alteration, or am endmen t, filed within 10 days of the entry of the 25 Oc tober order, to reconsider certain aspects of that order, i.e., back pay and benefits. Although expanding the array of what was reconsidered beyond the scope of that sought in the Com mission s motion, the Court entered its revised order on 15 November 2004, less than 30 days after the entry of the 25 October 2004 order. Thus, even had no party invoked the cou rt s revisory powers by motio n, under § 6-408 of the Courts and Judicial Proceedings Article, Rule 2535(a), Rule 2-534, and the principles articulated in Nechay and Renbaum, we conclude that the Circuit Co urt did not err a s a matter of procedu re in revising a nd mod ifying its 25 October 2004 order. III. The Comm ission next a rgues that the Circuit Co urt erred in co ncluding that the termination of Wilson on 15 April 2004 was illegal because: 1) the termination decision was not made by the full Commission; 2) she was not afforded the statutorily-mandated procedures for terminations resulting from employee misconduct; and, 3) the statutory termination appeal pro cess violated due proc ess becau se it did not provide for an impartial adjudicator. We need not reach, at this point at least, the latter two issues because we conclude that Chairman Schisler acted outside of his autho rity when, w ithout the ap proval, 14 acquiescence, or delegation of authority from a majority of the full Commission, he alone terminated Wilson. A. The question of whether Chairman Schisler, acting alone, possessed the a utho rity, as appointing authority, to terminate Wilson without the involvement of the full Commission is one of statu tory interpretation and, as such, is pu rely a lega l one. Moha n v. Norris , 386 Md. 63, 66-67, 871 A.2d 575, 577 (2005). We therefore review the judgmen t of the Circ uit Court de novo. Id.; see also Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80-81 (2004) (stating that [b]ecause our interpretation of the Maryland Declaration of Rights and Constitution, provisions o f the Ma ryland Code , and the M aryland Rule s are appro priately classified as questions of law, we review the issues de novo to determine if the trial court was legally correct in its rulings on these matters ). B. 1. The PSC w as established in 1910 b y the Legislatu re as an independent unit in the Executive branch o f State gov ernment. Md. C ode (19 98, 200 4 Sup p.), § 2-101 of the Public Utility Companies Article ( PUC ). It has jurisdiction over each public service company that engag es in or ope rates a utility business in the State and over motor carrier companies as provided in Title 9 [Carrier Companies] of [the Public Utility Companies Article]. PUC 15 § 2-112 . Section 2-113(a)(1) of the PUC sets forth a non-exhaustive list of the duties of the PSC: (i) supervise and regulate the public service companies subject to the jurisdiction of the Commission to: 1. ensure their operation in the interest of the public; and 2. promo te adeq uate, ec onom ical, and efficient delivery of utility services in th e State without unjust discrimination; and (ii) enforce compliance with the requirements of law by public service companies, includ ing requirements with respect to financial condition, capitalization, franchises, plant, manner of operation, rates, and service. Pursuant to the statutory scheme, the governing body of the PSC, the Commission, consists of five commissioners, appointed by the Governor with the advice and consent of the Senate. PUC § 2-102. T he Gov ernor also d esignates o ne comm issioner to ho ld the position of Ch airman . PUC § 2-10 3. Each of these positions, including the Chairman, serves in his or her respec tive position f or a stagger ed term of five years. PU C § 2-10 2; § 2-103. A Com missioner m ay only be remo ved from his or her position by the Governor for incompetence or miscon duct in acco rdance w ith § 3-307 of the State Govern ment Ar ticle [Complaints against civil or military officers]. PUC § 2-102. 2. Title 11, Subtitle 3 of the State Personnel and Pensions Article, entitled Employment Separations and Terminations, covers all aspects of termin ation and separation of employment for all non-temporary employees in the State Personnel Management System. 16 § 11-301. S ection 11-3 05 sets forth the terminatio n proced ures and p rotections tha t apply to certain non-probationary employees: § 11-305. Termination of other [non-probationary] employees. (a) Applicability of section. This section only applies to an employee who is in a position: (1) under a special appointment; or (2) in the management service; or (3) in the executive service. (b) Emplo yee at will. Each employee subject to this section: (1) serves at the pleasure of the employee s appointing authority; and (2) may be terminated from employment for any reason, solely in th e discreti on of the appointing a utho rity. (c) Appeal. An employee or an employee s representative may file a written appeal of a n employm ent terminatio n under th is section as described under § 11-113 of this title. This statute states clearly that the termination of a management service employee may be effectuated only by the appointing authority of an agency. Wilson and the Commission agree that she, as a management service employee,12 was subject to the termination procedures outlined in § 11-305(b)(2) and thus only may be terminated by the appointing author ity. Wilson and the Commission differ, however, in their respective views as to who or what constitutes the ap pointing authority in this matter. 12 Although it appears that, during her intra-agency administrative appeal following the initial termination , Wilson ch allenged h er classification as a management service position employee and her status as an at-will employee, no real arguments to that effect were raised in the Circuit Court or here. In any event, the record demonstrates that Wilson s position, Manager of the Office of External Relations (officially classified as Administrative Program Manager II), was reclassified in 1996 from a skilled service to a management service classification. 17 C. The Commission argues that the Circuit Court erred in concluding that the appointing auth ority in this matter is not the Chairman but rather, as W ilson conten ded, the fu ll membe rship of the Co mmission (by at least a vote of a majority of the five Comm issioners). In determining wh o or what is the app ointing authority, our starting point is the plain language of the re levant s tatutes. See Johnson v. Mayor of Baltimore, 387 Md. 1, 23-24, 874 A.2d 439, 453 (2005) (stating that the best source of legislative intent is the statu te s plain language and when the language is clear and unambiguous, our inquiry ordinarily ends there ). 1. Although app ointing a utho rity is not define d in Title 11 of the State Personnel and Pensions Article, that term is defined in § 1-101(b). Section 1-101(b) defines appointing auth ority as an individual o r a unit of go vernmen t that has the p ower to m ake appo intments and terminate employment. Although this definition appears somewhat circular and redundant in its application to § 11-305(b)(2), the Commission points to the legislative history of that definition in support of its contention that the appointing authority, with regard to the Commission, is the Chairman. In 1993, the definition, found prior to that time in Md. C ode (195 7, 1988 R epl. Vol., 1992 Cum. Supp.), Art. 64A, § 1(1), was recodified as part of the State Personnel and Pensions Article. 1993 Md. Laws, Chap. 10. The Revisor s 18 Note accompanying § 1-101(b) in the 1993 edition of the State Personnel and Pensions Article states: This subsection [§ 1-101(b)] is new language derived withou t substan tive cha nge fro m form er Art. 6 4A, §1 (1). The reference to an individual and a unit of governm ent are substituted for the former references to a person for clarity. The term perso n , as defin ed in subsection (h) of this section [codified in the 2004 replacement volume of the State Personnel and Pensions Article as § 1101(i)], expressly excludes governmental entities or units. On the other hand , a board, co mmittee, or o ther govern mental un it, which is thus excluded from the definition of the term person , might well be de signated by so me other la w as an a ppointing auth ority. Accordingly, the term unit is necessa ry to accommodate that situation. The Commission seizes upon the language in the Revisor s Note and certain case law to argue that the appointing authority is an individual unless a statute expressly names the unit of government as the appointing authority instead. See E. Corr. Inst. v. Howe, 105 Md. App. 167, 172, 658 A.2d 1182, 1184 (1995) (construing § 1-101(b) and its Revisor s Note to mean that the term app ointing a utho rity contemplates a person with authority to make appointments, or a unit of government that has been given that express authority by statute ). Although § 1-101(b) and Howe provide that an individual may be the appo inting au thority, we disagree with the Commission s interpretation th at, in the absen ce of a statu te expressly naming a govern mental un it as the app ointing auth ority, an individual must be the appointing authority. The language in Howe must be viewed in the con text of the statutory scheme implicated in that case. In Howe, an individual was named expressly in the relevant 19 statute as the appointing officer. 105 Md. App. at 169-70, 658 A.2d at 1183 (citing Md. Code (1957, 1992 Repl. Vol., 1994 Cum. Supp.), Art. 27, § 684(b)(2) (designating the warden or superintendent of each institution [as] the appointing officer for employees of that institution, and the Commissioner [as] the appoin ting officer for all other e mployees in the Department )). When there is no statute or agency reg ulation iden tifying specifica lly who or what is the appointing authority, however, we interpret § 1-101 (b) and its legislative history to indicate that the appointin g authority m ay be either an in dividual or a unit of government, without presumption as to either. 13 Because, with regard to the Commission, there is no statute relating expressly to the appointing a uthority, it is therefore necessary for us to de lve deepe r to determin e who o r what is the appointin g authority in this case. 2. Wilson argues that, by examining other statutes that relate to the Commission, we should arrive at the conclusion that the five member Commission is the statutory appointing 13 In arguing that there is a presumption that the appointing authority is an individual, rather than a unit of government, the Commission does not address the fact that the definition of appointing authority as a person was only in effect for a short time. Prior to 1988, Md. Code (1957, 1988 Repl. Vol.), Art. 64A, §1 defined appointing authority as any commission, board or officer having power to mak e appointments. In 1988, the f ormer A rt. 64A, § 1 was repealed and replaced with a new set of definitions. 1988 Md. Laws, Chap. 543. Md. Code (1957, 1988 Repl. Vol., 1992 Cum. Supp.), Art. 64A, § 1(1), defined appointing authority as a person ha ving the po wer to m ake appo intments and to term inate emplo yment. Finally, in 1993, the definition was amended again to reflect its current langua ge. 199 3 Md . Laws , Chap . 10. 20 author ity. Wilson relies specifically on § 2-108(d ) of the PU C Article, w hich, in full context, states: Title 2. Pu blic Servic e Com mission a nd Peo ple s Cou nsel. Subtitle 1. Public Service Commission. § 2-108. Office; m eetings; seal; staff. (d) Staff. (1) The S tate budge t shall provide sufficient money for the Commission to hire, deve lop, and org anize a staff to perform the functions of the Commission, including analyzing data submitted to the Com mission an d participating in proceedings as provided in § 3-104 of this article. (2)(i) As the Commission considers necessary, the Commission shall hire experts including economists, cost of capital experts, rate design experts, accountants, engineers, transportation specialists, and lawyers. (ii) To assist in the regulation of intrastate hazardous liquid pipelines under Title 11, Subtitle 2 of this article, the Commission shall include on its staff at least one engineer who specializes in the storage of and the transportation of hazardous liquid materials by pipeline. (3) The Commission may retain on a case by case basis additional experts as required f or a particular matter. (4) The law yers who rep resent the C ommission staff in proceedings before the Commission shall be appointed by the Com mission an d shall be organized and oper ate independ ently of the O ffice of G eneral Co unsel. (5)(i) As require d, the Commission shall hire hearing examiners. (ii) Hearing examiners are a separate organizational unit and sh all report directly to the Commission. (6) The Co mmission shall hire personal staff mem bers for each commissioner as required to provide advice, draft proposed orders and rulings, and perform other personal staff functions. (7) Subject to § 3-104 of this article, the Commission may delegate to a commissioner or personnel the 21 authority to perform an administrative function necessary to carry out a duty of the Commission. (8) (i) Except as provided in paragraph (ii) of this item or otherwise by law, all personnel of the C ommission are subject to the provisions of the State Personnel and Pensions Article. (ii) The following are in the executive service, management service, or are spec ial appointm ents in the State Personnel Management System: 1. each commissioner of the Commission; 2. the Executive D irector; 3. the General Counsel and each assistant general co unsel; 4. the Exe cutiv e Secreta ry; 5. the comm issioners per sonal staff members; 6. the chief hearing examiner; and 7. each license hearing of ficer. This provision, Wilson argues, indicates that it is the five member Commission, rather than the Ch airman alone, th at is the individ ual or . . . unit of government that has the power to make appointments and terminate employment. § 1-101(b). We agree. Language appears throughout the statute authorizing the Commission to hire or appoint all types of employees of the PSC. In contrast, the re is no me ntion in this statute, nor an y other statute we could find, of language that outlines the Chairman s authority, independent of the Commission s, to hire or appoint employees of the PSC. Although PUC § 2-108(d) does not discuss specifically the authority of the Commission to terminate employees, PUC § 2108(d) states that all personnel of the Commission are subject to the provisions of the State Personnel and Pensions Article. That Article governs the termination of PSC employees, specifically those employees in the executive and management services, and those who are 22 special appointments, all of which serve[] at the pleasure of the employee s appointing auth ority and may be terminated from employment for any reason, solely in the discretion of the appointing authority. §11-305. Because PUC § 2-108(d) constructs a statutory scheme outlining bo th the Comm ission s explicit autho rity to hire and imp licit authority to terminate employees of the PSC, we conclude that the Commission as a whole is the appo inting au thority. 3. The Commission maintains, however, that Wilson s interpretation of PUC § 2-108(d) is incorrect because it would serve to render other provisions o f the PU C Article superfluous. See Smack v. Dep t of Health & Mental Hygiene, 378 Md. 298, 305, 835 A.2d 1175, 1179 (2003) (stating that statutes are to be interpreted so that no portion is rendered superfluous or nugatory ). T he Com mission po ints out that the PUC Article specifically authorizes the Commission to appoint four positions: the Executive Secretary, PUC § 2-104; the Executive Director, PUC § 2-105; the General Counsel, PUC § 2-106; and the License Hearing Officer, PUC § 10-110 (the statutory positions ). Each position serves at the pleasure of the Com mission . The Commission argues that, if we adopt Wilson s interpretation of PUC § 2-108(d), the Com mission w ould have the authority to ap point all positio ns and all at-w ill employees would [therefore] serve at the pleasure of the entire Commission even without these four sections. Wilson s interp retation, the Commission protests, therefore renders the 23 four provisions in PUC § 2-104, PUC § 2-105, PUC § 2-106, and PUC § 10-110 superfluous and unn eces sary. 14 14 The Commission also argues that its interpretation is supported by analyzing the predecessor to § 2-108(d), which was enacted in 197 6. 1976 M d. Laws , Chap. 75 6. This statutory language, of which one purpose was that of providing procedures for the appointment of Commission memb ers, provides: 16. (A) The annual budget shall provide sufficient funds for the Comm ission to hire, develop, and organize a staff to perform its functions u nder this A rticle, including but not limited to the analysis of all data submitted to the Commission and the preparation of a staff position in matters pending before the Commission. The staff sha ll include bu t not be limited to economists, cost of capital experts, rate design experts, accountants, engineers , transportatio n specialists, la wyers, and any other experts deemed necessary to meet the needs of the Commission. The Co mmission may, from tim e to time, retain additional experts as required for a particular matter. Those lawyers who rep resent the C ommissio n staff in proceedings before the Com mission sh all be organ ized and o perate independ ently of the O ffice of G eneral Co unsel. (B) The Commission s hall hire hearing examine rs to the extent required. H earing exa miners sha ll constitute a sep arate organizational unit reporting directly to the Commission and shall perform n o other staff functions th an those rela ting to hearings. (C) The Co mmission shall hire pers onal staff for the Commissione rs to the extent required to advise Commissioners, draft proposed orders and rulings, and perform other personal staff functions. (D) Subject to th e restrictions of § 20, the Commission may delegate to any Commissioner or personnel of the Commission the authority to perform any administrative function necessary to the execution of the Commission s duties under this Article. (continued...) 24 This redundancy, if any exists, has no effect on our reasoning. Each of the four statutory provisions outlines the specific attributes and capabilities of the four statutory positions. These specific provisions represent merely the des ign of the L egislature to designate specific positions and how they function within the hierarchy and mission of the PSC. Section 2-108(d) of the PUC, on the other hand, is a broad statute intend ed to deleg ate 14 (...continued) 1976 Md. Laws, Chap. 756. One year later, the Legislature struck the language italicized above, instead placing the following language in its place: THE COMM ISSION SHA LL HIRE econ omists; cost of capital experts; rate design experts; accountants; engineers ; transportation specialists; lawyers; and any other experts deemed necessary to meet the needs of the Commission; OR, AS REQUIRED, RETAIN SUCH PERSONS ON A CASE BY CASE BASIS. 1977 Md. Laws, Chap. 635. The Commission a rgues that the intent of the additional language stating that the Commission SHALL HIRE was to rem ove the C ommissio n s discretion with regard to whether such staff should be hired. No r easonab le reading o f this provisio n could result in the conclusion that the General Assembly was designating the five-member body as the Appointing Authority. We view the Comm ission s argument as misguided. Although the 1977 legislation required the Commission to hire the enumerated positions and experts, the essence of an appointing authority is not necessarily the authority to determine which positions for which to hire, but rather who is hired for the p articular positio ns. This amendment is no differe nt from the statutes in the PUC Article mandating that the Commission appoint an ex ecut ive secre tary, executive director, general counsel, and license hearing officer. Simply because the Legislature identifies certain positions it deems to be essential to the operation o f a particular a gency does not abrog ate or negate the authority and discretion of the appointing authority to select the specific persons to be employed in those capacities. 25 sweeping authority to the C ommissio n to effec tuate the hirin g of any and all positions necessary for operation of the PSC, including those positions that were not contemplated or consid ered by th e Legis lature at th e time o f enac tment o f the sec tions dis cussed here. The Com mission , in arguing that the language in those provisions becomes superfluous, emphasizes that the serves at the pleasure of the Commission provision was added to PUC § 2-106, the statute governing the appointment of the General Counsel, in the same legislation that adopted the original § 2-108. 1976 Md. Laws, Chap. 756. We conclude, however, that the addition of language stating that each statutory position serves at the pleasure of the Commission was necessary to indicate that, unlike some other specifically authorized appointed positions, these positions would not have any set term, but rather would b e subject to ter mination a s the Com mission saw fit.15 This is evidenced by the subheading Term in each of the respectiv e statutes, with the excep tion of the License Hearing Officer, preceding the language stating that the statutory positions serve[] at the pleasure of the Commission. 15 We draw no con clusion from an an alysis of when the serves a t the pleasure of the Comm ission lang uage w as added to each of the other relevant statutes. In the case of the statute authorizing the appointment of the Executive Secretary, the relevant language was added in 1998 u pon the rec odification o f Article 78 into the Public U tility Companies Article. 1998 Md. Laws, Chap. 8. Although such language was absent from the respective provision in Article 78, the Revisor s Note states that the phrase, serves at the pleasure of the Comm ission, is new language added for clarity reflecting the transfer of the Executive Secretary to the Executive Pay Plan. The relevant language, in regard to the Executive Director, was present in the original legislation authorizing the appointment of that position. 1980 Md. Laws, Chap. 801. In regard to the License Hearing Officer, the relevant language was also present in the original enactment of the statute authorizing the appointment of that position. 1966 Md. Laws, Chap. 379. 26 Adopting the Commission s interpretation of appointing authority would create a conflict between the statutory provisions of PUC § 2-108(d), § 11-305, and the enabling statutes for the statutory positions. Section 2-108(d) of the PUC provides that the statutory positions of Executive Secretary, Executive Director, General Counsel, and License Hearing Officer are subject to § 11-305, which in turn states that these positions serve[] at the pleasure of the employee s appointing authority. Each of these pertinent statutes, how ever, establishes that each po sition serves at the pleasure of the Commission. If, as the Commission contends, the Chairman is the appointing author ity, those statutory positions would then serve at the pleasure of both the Chairman (as the appointing authority under § 11-305) and the Commission (under the enabling p rovisions). Accepting the C ommission s interpretation would c reate situations in which an individual employed in one of the special statutory positions would be subject to termination without the acquiescence or approval of the entity upon whose pleasure he or she serves. For example, were we to accept the Commission s contention that the Chairman is the appointing authority, employees within the statutory positions would b e subject to termination solely in the discretion of [the Chairman] under § 11-305, even though, under the statutes creating these positions, they each serve[] at the pleasure of the Commission. If the full Commission is the appointing author ity, as used in § 11-305 (as referenced in PU C § 2-108(d)) , there is no conflict and these interrelated statutes are harmonized. 4. 27 The Commission also urges us to place weight on the fact that the Chairman of the Commission has always acted 16 as the appointing authority for the Commission. The Commission cites situations in which past Chairmen exercised, in certain actions (including termination decisions), without apparent objection or challenge, power consistent with that of the appointing authority. The Commission argues that its interpretation and implementation of this statutory sc heme sh ould be en titled to deference by reviewing courts. See Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999) (stating that an administrative agency s interpretation and application of the statute which the agency administers should ordinarily be given con siderable weight by review ing courts ). Such deferenc e, howev er, is ordinarily only sho wn to an agency s long standing interpretation of a statu te tha t it ad ministers and that i nvolves the speci al skills an d expertise of tha t age ncy. See id. (emphasizing that this deference is only applicable when it involves the interpretation of a statute within the agency s specific area of expertise). The question of who or what is the appointing authority for a particular agency does not involve the special expertise of the Commission in utilities regulation, but rather is a State government personnel matter subject to the statutory interp retation princ iples that ultima tely may becom e subject to interpretation by the courts of this State. 16 Although the Commission cites examples of recent past Chairmen acting as the appointing authority during their tenures (dating back approximately ten years), the Commission presents no evidence that the Chairman s position has acted consistently as the appointing authority durin g the more than 90 year history of the Commission. Thus, on this record , there is n o suff iciently lon gstand ing, consistently followed administrative agency practice or interpretation that is entitled to deference in our analysis. 28 5. Section 2-108(d)(7) of the PUC authorizes the Commission to delegate to a commissioner or personn el the autho rity to perform an admin istrative func tion necess ary to carry out a du ty of the C omm ission. 17 As the A ssistant Attorn ey General d iscussed in her 27 April 2004 advice letter18 : The exc eption to the above stated rule [that a termination must be done by the appointing authority ] would be if the Commission had delegated authority in this area to the Chairman. . . . It is not clear, however, whether the authority to discipline or terminate the employees in question has been delegated to the Chairman. In conclusion, if such a delegation has been made, and is broad enough to cover the emplo yees in question, then the firin g by the Cha irman is w ithin his autho rity. The record reveals no such delegation in the presen t case. T o the co ntrary, a majority of the Commissioners sitting at the time of the initial termination of Wilson stated in an affidavit that they have never dele gated to Chairman Kenneth D. Schisler any authority to terminate the employment of the [ termina ted em ployees, in cluding Wilson ]. Furthermore, 17 COMAR, promulgated pursuant to Title 1 and § 4-106 of the State Personnel and Pensions Article, provides also that an appointing authority, consistent with the State Personnel and Pensions Article, may [d]elegate in writing the authority to act on the appointing authority s behalf to any other employee or officer under the appointing authority s jurisdiction. 18 Although we quote here from the advice letter of the Assistant Attorney General, we afford no enhanced weight to its conclusions and analysis. We have remarked in several instances that, although we may give some consideration to formal opinions of the Attorney General, we are not bou nd by the m. See, e.g., Dre w v. First G uaranty Mortgage Co., 379 Md. 318, 332, 842 A.2d 1, 9 (2003) (giving formal opinion letter due consideration, but disagreeing with its conclusion). In this case, however, we are confronted not with a formal opinio n, but an inform al advic e letter. 29 Chairman Schisler confirmed at his deposition that a majority of the sitting Comm issioners did not vote to d elegate to him th e autho rity of ap pointin g autho rity. Nonetheless, the Commission argues that, because the Chairperson has always acted as the appointing a utho rity for the Commission, this could be viewed as being indicative of the Com mission s im plicit delegation of authority to th e Chairman. We fin d this argument overreaching on this record and, in any event, unavailing.19 Even w ere we to accept the Commission s essentially unsupported allegation that the Chairman has alw ays acted as the app ointing auth ority, we are n ot prepared to recognize the Commission s implicit delegation theory in light of the statutory analysis discussed in this opinion. That a Chairman may not have been challenged in his or her actions in this capacity in the past should not be transmuted into an ongoing de legation in direct contravention o f the statutory scheme. Moreover, even if past Chairmen exercised authority in the capacity of appointing auth ority with regard to past terminations, the Commission did not allege any facts, admissible in evidence, that the Commission acquiesced in the actions of the Ch airman in 19 The Comm ission argue s also that, eve n if we do not accept its interpretation of appointing authority, we should accord deference to the acquiescence of th e State Department of Budget an d Manage ment ( DB M ) in the Co mmission s interpre tation. The Commission cites instances in which past Chairmen filed with the DBM, without objection, formal delegations of the appointing authority without the approval, acquiescence, or delegation of the full Comm ission. See COMAR (stating that the appointing auth ority must notify the Secretary [of the Department of Budget and Managem ent] of any delegation of authority by providing the Secretary a copy of the delegation ). Any weight accorded this passive a cquiescen ce is negligib le compared to the level of deference we traditionally give to the active interpretation of regulations in an adversarial e nvironm ent. 30 affecting the initial termination of Wilson. Rather, a majority of the Commissioners sitting at the time of Wilson s initial termination disavowed expressly any delegation of authority or approval of Chairman Schisler s action. That alone rebuts any argued-for inference of an ongoing implicit d eleg ation of au thority. IV. Having determined that the 15 April 2004 termination of Wilson was unlawful because it was not effectuated by at least a majority of the Commissioners sitting at the time or by proper de legation of the Com mission s a ppointing a uthority pow ers to the Chairman, we consider next whether the 29 October 2004 re-termination of Wilson was unlawful or unconstitutio nal. Although the re-termination was taken by a majority of the Comm issioners then sitting, Wilson argues it was unlawful nonetheless because she was not afforded the pretermination statutory protections due an employee terminated for cause. Wilson also contends that, if she were deemed terminated purely as an at-will employee (for which no cause need be offered), the statutory post-termination administrative appeal process, as applied to her situation was unco nstitutional because it provided that he r appeal be heard by Chairman Schisler, as the head of the principal unit, who she contends was incapable of providing an impartial agency review. A. Although the Circuit Court s 25 October order did not conclude whether Wilson was fired for cause, the 15 November order amended the prior findings, determining that not 31 only wa s the orig inal 15 A pril term ination for cau se as a result of allege d misco nduct, but that the 29 Oc tober re -termin ation w as taint ed by the initial un lawfu l termina tion. 20 For reasons we shall explain, we conclude that, on the undisputed material facts revealed by the record, the C ircuit Court erred as a matter o f law in res olving that th e 15 Ap ril 20 Although a determination as to whether Wilson was terminated for cause did not appear in the 25 October order, the trial judge, at the 20 October 2004 hearing, commented on this issue: It seems to me that the Commission is, is caught in a bind. They either this was an at-will termination by the Chair, or it was a termination for one of the reasons set forth in Mr. Schisler s, the Chair s deposition, that it be for cause. If it was for cause, they ve got to follow the usual steps that are required for an at cause [sic] for termination. But I m going to give the benefit of a doubt in this case, and that he was terminating an at-will employee when he was not dele gated th e autho rity by the Co mmiss ion . . . . From this language (and the absence of a determination to the contrary in the 25 October order), it appears that the trial judge concluded that the termination was not deficient for failure to follow th e statutory man date of § 1 1-106 be cause it wa s not a termination based on employee misco nduct (or, in the trial judge s terminolog y, for cause ). During the 10 November hearing, the trial judge, although declining to hold the Commission in contempt, remarked: . . . I don t want to hold the Commission in contempt though their action prob ably was con temptuou s. . . . All I want them to do - and I don t think they cured the situation because I found that she was terminated for cause - they have to go through the process of a hearing o n wheth er they had ca use to termin ate her. Go through the p roce ss - th e wh ole p roce ss they have for with cause termination. (Em phasis added). The emphas ized langu age from the 10 N ovembe r hearing transcript suggests that the trial judge mis-recollected his earlier view or, at best, changed his mind. 32 termination, and impliedly the 29 October re-termination, were sub silentio the result of employee misconduct. Therefore, the re-termination by the Commission did not requ ire it to afford Wilson the statutory pre-termination protections of § 11-106. 1. As stated supra, Wilson s employment position with the P SC wa s in the management service, a classification that, among other things, provided that she was a n at-will employee who served at the pleasure of the appointing authority. § 11-305.21 Nonetheless, she claims that her termination was unlaw ful because it was ba sed on Chairm an Schisler s consideration, in reaching the initial termination decision, of alleged m isconduc t on her part. Under § 11-106, the appointing authority is restricted in its ability to take any disciplinary action, including termination, when that action is based on employee misconduct. See 21 In the typical at-will employment situation that finds its way into litigation, we have explained: In the at-will employme nt context, w e have he ld that a jury may not review an y aspect of the employer s d ecision to term inate and that the emplo yer may, absent a contravenin g public p olicy, terminate an employer [sic] for any reason, even a reason tha t is arbitrary, capricious, or fundamen tally unfair. For our purposes, the significant p oint is that cou rts and juries may not review either the employer s (1) motivation or (2) factual bases for termination in the context of an at-will employment relationship. Towson Univ. v. C onte, 384 Md. 68, 82 -83, 862 A.2d 9 41, 949 (2004) (citations om itted). In the present case, however, the application of these principles is affected by the fact that termination of Wilson s governm ental at-will employment is governed by additional statutory and regulatory considerations. 33 Danaher v. Dep t of Labor, Licensing & Regulation, 148 Md. App. 139, 166, 811 A.2d 359, 375 (2002) (ho lding that § 1 1-106 ap plies to at-will employees in the management service where miscon duct is the ground for d isciplinary action). In suppor t of her con tention that sh e was terminated for the reason of employee miscon duct, Wilson cites several passages from the transcript of Chairman Schisler s deposition, in which he expressed his thoughts on certain performance issues and other factors that, according to Wilson, were the foundatio n for the C hairman s decision to terminate her. For purposes of clarity, we set forth generally the following allusions and assessme nts (referred to earlier and subsequently in this opinion as the performance issues ) mentioned by Chairman Schisler during his deposition: 1. Wilson possessed poor letter-drafting skills; 2. Wilson s writing style was sub - par; 3. Wilson was unresponsive to utility consumers in her letters; 4. Wilson was in the office very little by [Chairman Schisler s] standards in terms of her duties as Manager of External Relations, . . . away from the desk, away from the supervision responsibility quite a bit ; 5. Wilson spent an inappropriate amount of time socializing in the hallwa ys, creating a dis ruptive en vironmen t; 6. Wilson had a great deal of difficulty accepting any personal responsibility for things that weren t working well ; 7. Wilson lacked a fundamental understanding of the dispute resolution process designed to resolve disputes between consumers and utility providers; 8. Wilson lac ked a pro per unde rstanding of the legal requireme nts of her position, and thus could not be relied upon to train her employees; 9. Wilson w as unrespo nsive to Chairman Sc hisler s attempts to motivate her to achieve a higher level of job performance; and 10. Wilson did not possess sound decision-making skills. 34 In addition to these generalizations, Chairman Schisler alluded during his deposition to a particular incident when he suspected Wilson intentionally may have submitted an inaccurate time sheet (the time sheet incident ). The Chairman explained that, [c]onsistent with [Wilson] being aw ay from the o ffice quite a bit, I began to keep closer tabs on her around the holidays of 2003, . . . just to kind of be able to point out to her when I expected her to be w ith her [ subord inates]. On one particular occasion when he was away from the office and wished to contact Wilson, he asked another employee to go to Wilson s office and ask her to get in touch with him. The employee informed Chairman Schisler that, although he had gone to Wilson s office at least twice during the course of the day in question, he was unable to locate Wilson. The Chairman stated that, when Wilson turned in her time sheet for the period including the date in question, he noticed that Wilson indicated that she worked that day. He claimed to have confronted Wilson within a few days thereafter and questioned her as to whether she in fact was at work on the day in question or had m ade a mista ke with respect to the time sheet. Wilson, according to the Chairman, became very defensive and denied any misrepresentation. Although the Chairm an found the circum stances of this incident troubling, he stated that he signed Wilson s time sheet and took no further action with regard to the inciden t. 2. Although Chairma n Schisler a cknow ledged tha t he inform ed Wilson of his various concerns at various times, he was adamant during his d eposition tha t his decision to terminate 35 Wilson was not based on either the performance issues or the time sheet incident. On no less than 15 instances during the deposition, he stated that the p erforman ce issues pla yed no role in his decision to terminate Wilson. He also took some pa in not to characterize Wilson s termination as a for cause termination. Instead, Chairm an Schisler pointed to W ilson s status as an at-will employee, emphasizing that no reason was necessary to be given for her termination and, in the 15 A pril writte n notice , none w as give n. When prod ded by Wilson s counsel, he indicated, on several other occasions during the deposition, that the termination of Wilson was necessary in light of his stated, but somewh at vague, desire to build a m ore cohesive and productive management team at the PSC. Although Chairman Sc hisler, at several points during the deposition, denied that he factored the performance issues and time sheet incident into his termination decision, Wilson points to other parts of the deposition in which, Wilson argues, he admitted otherwise.22 During his ruminations on the performance issues, the Chairman stated that these concerns were issues that I couldn t ignore and that could not be separate[d] from the termination decision. Finally, Wilson relies on the following passages, all of which occurred in the deposition subsequent to Chairman Schisler s discussion of the performance issues and the 22 If the Cha irman s de position w ere read to contain contradictory positions whether he relied on the performance issues as cause for termination as Wilson maintains, tha t would generate the need for resolution of a material factual dispute by the trier of fact, based on a credibility assessment to some extent, and foreclose the grant of summary judgment. Md. Rule 2-50 1; see also Pittman v . Atlantic Realty Co., 359 Md. 513, 536-38, 754 A.2d 1030, 1042-44 (200 0). 36 time sheet incident, in su pport of h er contentio n that she w as terminate d for em ployee misconduct : Q [Counsel for Wilson]: What did you take into account i n deciding to terminate Ms. Wilson? A [Chairm an Schisler ]: I took into account all of the factors that were with respect to her performance and also the overall needs of the agency. Okay? Bu t without respect to any particular personnel deficiency that I may have articulated, those weren t causes that were in volved in th e separation , but I clearly evaluated the entire landscape of what the needs of the agency were. * * * Q: Well le t me ask you this. If Ms. Wilson had not had any of the personnel problems that we discussed and was doing a fantastic job in your view across the board, would she have been terminated? A: I think the sort of the common sense answer to that is no. But if you re asking in a legal sort of frame work, the answer would be yes because she was not fired for cause. But, I mean, if you think someone is a superb employee, irreplaceable, you generally don t make personnel changes there. But it was not a factor in the personnel decision. * * * Q: And in you r mind par t of the reaso n for [the termination of Wilson] was the performance issues we ve talked a bout. Fair? A: I would say the performance issues were I mean, I m human. I wouldn t separate th at. But I didn t do the ana lysis with respect to a cause for termination. I was concerned about was I concerned about the management of the External Relations Office? Yes. Was I concerned about M s. Wilson s tim e on the job and ability to ensure others were working full days and so forth and not taking excessive breaks an d those sorts of the things? Yes. Was I concerned about the quality of her writing, the quality of the decision making, all those things? Yes. Were they part of an 37 environm ent, an atmosphere that caused me to spend more time on External Relations? Yes. Did I, therefore, then make the leap that I m going to se e if this is cause to terminate on a cause basis, the answer is unequivocally no. So I didn t because I recognize that Ms. W ilson was an at-w ill employee and didn t need to supply cause reasons. B. Although § 11-106 outlines the procedures that the appointing authority must follow before imposing a disciplinary san ction based on emp loyee miscon duct, the term employee misconduct is not defined in that section, nor is it defined elsewhere in the State Personnel and Pensions Article. In order to determine whether Wilson was entitled to the statutory protections in § 11-106, we must determine what types of conduct fall within the phrase employee misconduct before deciding wheth er, on the state o f the record in this case where summ ary judgment was granted, Wilson was terminated sub silentio as the result of em ployee m iscond uct. 1. In order to gain some perspective on the current State system governing employee discipline and terminations, it is necessary to understand something of its immediate predecessor statutory and reg ulatory schem e. Prior to 1996, the State Employee Management System, codified in the 1993 edition of the State Personnel and Pensions Article, established two classes of State employees: classified service and unclassified service. § 1-101(d) (1993); § 1-101(o) (1993 ). The statutory scheme p rovided tha t, unless excluded by statute, all positions in the Executive branch of State government and certain clerical and 38 administrative positions within the Judicial branch, among others, were in the classified service.23 § 1-30 1 (199 3); § 1-3 02 (19 93). In gene ral, a position to which a person was appointed or a position requiring sp ecial training o r qualificatio ns was in the unclassified service. § 1-401 (1 993); § 1-4 03 (1993 ). An imp ortant distinctio n betwee n the two classifications was the process afforded an employee prior to termination. Unclassif ied employees, like the current management service, were at-will employees under the prior statutory sch eme. See Revisor s Note, § 9-101 (1993) (stating that [u]nclassified service employees serve at the pleasure of the appointing authority . . . ). Classified employees, however, could be removed by the appointing authority only for cause. § 9-202 (1993). The Department of Personnel, pursuant to § 9-203 (1993), adopted regulations (since superceded) to prescribe what conduct constituted for cause. COMAR (1996) stated: The following shall be sufficient cause of removal, though removal may be for causes other than those enumerated: A. That the emplo yee is incompetent or inefficient in the perf ormance of his du ty; B. That the employee has been wantonly careless or negligent in the performance of his duty or has used unwarra ntable or excessive force in his treatment of public charges, fellow employees, or other persons; C. That the employee has some permanent or chronic physical or mental ailment or defect that incapacitates him for the proper performance of his duties; 23 All positions in the Legislative branch o f State government, under both current and prior statutory schemes, are excluded from the State Personnel Management System. § 6304; § 1-205 (19 93). 39 D. That the employee has violated any lawful regulation or order or failed to obey any lawful and reasonab le direction given by his superior officer when the violation or failure to obey amou nts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the organiz ation or to resu lt in loss or injury to the State or the public; E. That the employee h as been w antonly offe nsive in his conduct toward fellow employees, wards of the State, or the public; F. That the employee has taken for personal use, a fee, gift, or other valuable thing in the course of his work or in connection with it when the fee, gift, or other valua ble thing is given him by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons; G. That the employee is engaged in a private business or in a trade or occupation when the duties of his position as prescribed by law or regulation re quire his entire time for their performance; H. That the employee has been gu ilty of a violation or violations of State Personnel and Pensions Article, Title 13, Subtitle 1 [Miscellane ous prohibited acts]; I. That the employee has been convicted of a criminal offense or of a misdemeanor involving moral turpitude; J. That the employee, through negligence or willful conduct, has caused damage to public property or w aste of public supplies; K. That the employee has been guilty of a violation or violations of the provisions of . . . the Corrupt Practices Act, or using, thre atening to u se, or attemp ting to use political influence or the influence of any State employee or officer in securing promotion, transfer, leave of abse nce, or increa sed p ay; L. That the employee has willfully made a false official statement o r report; M. That the employee has been guilty of conduct such as to bring the classified service into public disrepute; N. That the Secretary has investigated the employee s qualifications and background and has discovered that 40 fraudulent or irregular information resulted in the emplo yee s app ointme nt . . . . In 1996, the Legislature enacted the State Personnel Management System Refo rm Act, which effected a comprehensive restructuring of the State Personnel Management System. 1996 Md. Laws, Chap. 347. One of the primary changes made to the system was the elimination of the categories of classified/unclassified services. In their place, the Legislature created six c ategories: skille d service, § 6-401, professional service, § 6-402, mana geme nt servic e, § 6-403, executive service, § 6-404, special appointees, § 6-405, and temporary employees, § 6-406. 1996 Md. La ws, Cha p. 347. As with the former classified and unclassified service em ployees thoug h, a significan t distinction between the different services remained as to the leve l of protectio n and pro cess affo rded an em ployee prior to termination or other d iscip linar y actions for miscondu ct. Although emp loyees that are special appointees or in the management and executive services are classified explicitly as at-will employees that serve at the pleasure of the appointing authority, § 11-305, skilled and professional service em ployees are granted certain statutory protections regarding th eir continued employme nt. 24 24 Executive service employees and special appointees generally are governed by the same statutory provisions and protections as mana geme nt servic e emp loyees. See, e.g., § 11305; § 11-113. Because the application of the relevant statutes to these classifications generally are irrelevant to the resolution of this case, we shall omit references hencefo rth in this opinion to these classifications. 41 Title 11, Subtitle 1 of the State Personnel and Pensions Article contains a comprehensive administrative appeal process for disciplinary actions applicable s olely to employees in the professional and sk illed serv ices. Section 11-109(c)(1) provides, as a first level of ap peal, that: An employee or an employee s representative may file with the head of the principal unit a written appeal of a disciplinary action that states, to the extent possible, the issues of fact and law that the employee believes would warrant rescinding the disciplinary action.25 An employee in the professional or skilled services may appeal such a decision under § 11109, within 10 days of receiv ing the dec ision, to the Se cretary of Bu dget and M anagem ent. § 11-110. Under § 11-110, the Secretary, within 30 days, either must mediate a settlement between the employee and employer or refer the appeal to the Maryland Office of Admin istrative Hearings ( OAH ), the State s centralized panel of neutral administrative law judges. § 11-1 10(b). If the matter is referred to the OAH, the OAH must hold a hearing on the matter. The hearing is governe d by the proce dures in the State Administrative Pro cedure Act ( APA ). 26 § 11-110(c)(2). The decision of the OA H is the fina l agency decis ion in such matters. § 11-110 (d)(3). 25 In contrast, an appeal by a member of the management service may only be based on the grounds that the discip linary action is illega l or uncon stitutional. § 11 -113; § 11-305. 26 How § 10-203(a)(3)(vi) of the State Government Article of the Maryland Code (exempting the PSC fro m the contested case subtitle of the APA) affects, if at all, the directives of § 11-110 o f the State Personnel and Pen sions Article is not befor e us in this case. 42 Aside from these post-disciplinary action procedures, the current statutory scheme provides for other protections or processe s that must occur before certain disciplinary actions are taken. Section 11-106 provides that the appointing authority is restricted in its ability to take any disciplinary action, including termination, when that action is based on employee miscon duct. Although this section does not state explicitly to which classifications of employees it applies, § 11-102 states explicitly that S ubtitle 11 applies to all, sa ve te mpo rary, employees. For purposes of our analysis then, we shall assume that § 11-106 a pplies to employees in the m anage ment se rvice. See D anahe r v. Dep t of Labor, Licensing & Regulation, 148 Md. App. 139, 166, 811 A.2d 359, 375 (2002) (holding that § 11-106 applies to at-will employees in the management service). Section 11-106, in its entirety, states: § 11-106. Duty of appointing authority prior to imposing sanctions. (a) Procedure. Before taking any disciplinary action related to employee m isconduc t, an appoin ting authority sha ll: (1) investigate the alleged m isconduc t; (2) meet with the employee; (3) consider any mitigating circumstances; (4) determine the appropriate disciplinary action, if any, to be imposed; and (5) give the employee a written notice of the disciplinary action to be taken and the employee s appeal rights. (b) Time lim it. Excep t as provide d in subsec tion (c) of this section, an appointing autho rity may impose any disciplinary action no later than 30 days after the app ointing authority acquires knowledge of the misconduct for which the disciplinary action is imposed. (c) Suspension. (1) An appointing authority may suspend an employee without pay no later than 5 workdays following the close of the employee s next shift after the appointing authority 43 acquires knowledge of the misconduct for which the suspension is imposed. (2) Saturdays, Sundays, legal holidays, and employee leave days are excluded in calculating the 5-workday period under this subsection. 2. Wilson claims that, because she w as terminated as a result of employee miscon duct, 27 her termination was illegal because the app ointing a utho rity did not follow 27 Throughout Wilson s argument and the language of the Circuit Court s orders, the term for cause is used to describe why Wilson was terminated. We note, however, that nowhere in the termin ation notices she received or in the current State Personnel and Pensions Article i s the term for ca use us ed or de fined. This is not a distinction w ithout a difference. It appears that, in utilizing the term for cause, the C ircuit Court experienced some confusion in applying the doctrine of at-w ill employmen t as it relates to State management service employees. By categorizing Wilson s termination as for cause, rather than as the result of employee misconduct, the Circuit Court blurred the line between management service employees and employees within the skilled and professional services, the latter having been determ ined by the Legislature to be dese rving of greater statutory protections than at-will employees. For example, when counsel for Chairman Schisle r suggested, during the 10 Novemb er 2004 Circuit Co urt hearing, that the Circuit Court s Order alters Ms. Wilson s status from an at will employee to an employee who can only be fired for cause, the Circuit Court responded: No. It didn t alter her status. I said even an at will employee who is fired for cause - you have to go - you have to have a hearing and go through the process of terminating her. She remains an at will em ployee - if you don t say anything, and you just smile and say you re gone, tha t s fine, but w hen you go to the legis latur e, an d you go to othe r peo ple a nd sa y she was inefficient, she did this, sh e did that, she spent time o ut in the halls and talking to other employees. You know, whatever you want - all the reasons that you give for terminating, that is a for cause termination. It is not an at will termination. We note also that the Circuit Court erred in failing to recognize a distinction between (continued...) 44 the pre-termina tion proced ures outlined in § 11-10 6. Even w ere we to assume, for the sake of argument, that Chairman Schisler terminated Wilson for the reasons she assigns, the question remains whether any of the factual bases urged rose to the level of employee misconduct, as contemplated by § 11-106. In Smack v. Department of Health and Mental Hygiene, 134 Md. App. 412, 759 A.2d 1209 (2000 ), aff d, 378 M d. 298, 835 A.2d 11 75 (2003 ), the Court o f Special A ppeals held that § 11-106 did not apply to probationary employees in the State Personnel Management System. In reaching that conclusion, the intermediate appellate court observed: At oral argument, appellant [e mployee] ass erted that, even if a probatio nary employee s employm ent could be terminated at the discretion of the employer, nevertheless, § 11106 would b e applicable in this case bec ause [the e mployer] in fact treated this as a misconduct case. We disagree. [Section § 11-106] does not define m isconduc t, but it is clearly a concept distinct from lack of proficie ncy in employment, although the two could overlap. Id. at 419, 759 A.2d at 12 13. Although the C ourt of Special Appeals ultimately determined that it was immaterial whether the conduct in ques tion cou ld be cla ssified a s misc onduc t, we agree generally with the intermediate court s analysis that there is a clear distinction between employee performance and emp loyee mis condu ct. Id. In support of this view, we look to the regulations promulgated pursuant to Title 11 of the State Personnel and Pensions Article. 27 (...continued) employee performance and employee misconduct, discussed infra. 45 COMAR 17.04.05, entitled Disciplinary Actions, covers generally disciplinary actions taken aga inst all emplo yees, no matte r in what s ervice classification they may be categorized. Regulatio ns within this chapter make a sharp distinction between disciplinary actions related to employee performance, and disciplinary actions related to employee miscon duct. See (stating that disciplinary actions may be taken both as a result of [u]nsatisfactory performance of duties and responsibilities and [m]is condu ct. COMAR 17.04.05 recognizes a distinction between the discipline of management service employees on one hand, and the discipline of professional and skilled service employees on the other. COMAR, for example, states that [a] disciplinary action against an employee under special appointment or in the management and executive services is governed by Regulations .05 and .06 of this chapter. T hose two regulations, in essence, reiterate the at-w ill nature of m anagem ent service e mployees an d the relatively restricted , post-ter minatio n adm inistrativ e appe al proce ss availa ble to tho se emp loyees. COMAR and, on the other hand, app ly only to disciplinary actions taken against employees in the skilled or professional services., in relevant part, states: .03 Disciplinary Actions Related to Employee Performance. B. The app ointing authority may discipline an employee for reasons related to the employee s performance. These reasons include but are not limited to: (1) That the employee is incompetent or inefficient in the perf ormance of th e em ploye e s d uty; 46 COMAR (2) That the employee is an individu al with a disa bility who with a reasonable accommodation cannot perform the essential functions of the p osition; or (3) That the employee currently is not qualified for the position. COMA R, in relevant part, states: .04 Disciplinary Actions Rela ting to Emp loyee Misco nduct. B. An employee may be disciplined for engaging in any of the following actions: (1) Being negligent in the performance of duties; (2) Engaging in intentional misconduct, without justification, which injures another person, causes damage to property, or threatens the safety of the work place; (3) Being gu ilty of conduc t that has brought or, if publicized, would bring the State into disrepute; (4) Being unjustifiably offensive in the employee s conduct toward fellow employees, wards of the State, or the public; (5) Violating a provision of the State Personnel and Pensions Article, Title 2, Subtitle 3; Title 15; or § 9-607; Annotated Code of Maryland; (6) Stealing State property with a value of $300 or less; (7) After notification, continuing to engage in another business, trade, or occupation, which conflicts with the employee s position, or which prevents the employee from satisfactorily performing the duties of the employee s position; (8) Eng agin g in c onduct in volv ing d isho nesty, fraud, dece it, misrep rese ntati on, o r illeg ality; (9) Causing damage to public pro perty or wasting public supplies through negligence, recklessness, or willful conduct; (10) Willfully making a false official statement o r report; (11) Knowingly assisting another in conduct that is a violation of State Personnel and Pensions Article, Annotated Code of Maryland, the regulations in this chap ter, o r any o ther lawful a gency policy; 47 (12) Violating a lawful order or failing to obey a lawful order given by a superior, or engaging in co nduct, violating a law ful o rder , or failin g to o bey a lawful order which amounts to subordination; (13) Engaging in discrimination prohibited by law; (14) Using leave contrary to law or policy; or (15) Committing another act, not previously specified, when there is a connection betwe en the employee s activities and an identifiable detriment to the State. Although these two regulations, forming part of the related regulatory scheme implementing the State Personnel and Pensions Article, apply expre ssly only to those employees in the skilled and professional services and, thus, not to Wilson s position at issue in the present case, we conclude that they provide a proper perspective on the distinction between perfor manc e defic iencies a nd em ployee m iscond uct. 28 For example, COMAR states explicitly that not being qualified or being incompetent or inefficient is a deficiency in performance, rather than misconduct. Each of these examples of a deficiency in performance d enotes an inability to perform satisfactorily one s duties, rather than an intentional or negligent failure to fulfill one s duties. The regulations re lating to employee misconduct, on the other hand, do not implicate necessarily an employee s abilities or qualifications to perform in a position. Instead, each of the enumerated examples of misconduct involves either negligence, willful 28 The examples of employee misconduct and emplo yee performance, together with the grounds for automatic termination identified in § 11-105, appear to constitute the entire scope of COMAR (1996), which contained the definition of for cause under the prior State Personnel Management System. 48 disregard of one s duties, failure to comply with employer regulations, knowingly violating a statute, or the commission of a criminal act. There is an element of wron gdoing o r culpable negligence that is woven throughout the examples of misco nduct, a trait not share d with the examples of performance deficie ncies. See Black s L aw Dic tionary 1019 ( 8th ed. 2004) (defining misconduct generally as [a] dereliction of duty; unlawful or improper behavior ). Although, as stated abo ve, these regulations do no t apply directly to Wilson s former position, they gu ide us in concludin g that the performance issues mentioned by Chairman Schisler in his deposition would not qualify, as a matter of law, as employee miscon duct, even if they formed the b ases for Wilson s termination, and therefore do not implicate the protections of § 11-106. 3. We find further support for this characterization and analysis of employee miscond uct through examination of another Maryland statutory scheme and its related case law in which th e scope o f employm ent misco nduct ha s been scru tinized. Title 8 of the Labor and Employment Article, entitled Unemployment Insurance, establishes a program in which cash benefits are paid to individuals who become unemployed involuntarily, in order to lighten [the] burden of the economic instability attributed to prolonged unemplo yment. Md. Code (1991, 1999 Repl. Vol.), § 8-102 of the Labor and Employment 49 Article ( LE ). This statutory scheme also provides that an otherwise eligible individual may be disqualified from rece iving all or a p ortion of the se unem ployment be nefits under varying enumerated circumstances. In addition to b eing disqualified as the result of a v oluntary resignation (without good cause), an individual may be disqualified from receiving unemployment benefits if the Secretary [of the Department of Labor, Licensing, and Regulation] finds that unemployme nt results from discharge o r suspension as a disciplinary measure for behavior that the Secretary finds is misconduct in connec tion with employment . . . . LE § 8-1003 (em phasis added). Section 8-1003 o f the LE A rticle is part of a g raduated d isqualification schem e in which escalating periods of disqualification are imposed depending on the severity of the claimant s miscond uct. Sections 8-1002 and 8-1002.1 of the LE Article, covering terminations involving gross misconduct and aggravated misconduct, respectiv ely, allow for significantly longer lengths of disqualification than would a finding o f simple miscond uct under § 8-1003. Although misconduct, as used in § 8-1003, is not defined in the statutory scheme,29 several Maryland cases ha ve interprete d and def ined the term in 29 Despite failing to define misconduct, the Labor and Employment Article does contain definitions for aggravated misconduct and gross misconduct. Gross misconduct is defined as (1) . . . conduct of an employee that is: (i) deliberate and willful disregard of standards of behavior that an employing u nit rightfully expects and that shows gross indifference to the interests of the employing unit; or (ii) repeated violations of employment rules that prove a regular (continued...) 50 this statutory c ontext. See Dep t of Labor, Licensing & Regulation v. Hider, 349 Md. 71, 84, 706 A.2d 1073, 1079 (1998) (holding that, in order to constitute misconduc t, a person s wrongful conduct n eed not be intentional); Allen v. Co re Target C ity Youth Program, 275 Md. 69, 87, 338 A.2d 237, 247-48 (1975) (commenting on the distinction between leaving work voluntarily and termination for misco nduct ); Johns Hopkins Univ. v. Bd. of Labor, Licensing, & Regulations, 134 Md. App. 653, 662-63, 761 A.2d 350, 354-55 (2000) (affirming the lack of an intent requirement to find that conduct resulting from bipolar disorder was non etheless disqualifying miscondu ct ). 29 (...continued) and wanton disregard of the employee s obligations; and (2) does not include: (i) aggravated misconduct [as defined by § 8-1002.1]; or (ii) other misconduct [as refere nced in § 8-1003 ]. LE § 8-1002. Aggravated misconduct, on the other hand, is defined as: (1) . . . behavior co mmitted w ith actual ma lice and deliberate disregard f or the prop erty, safety, or life of oth ers that: (i) affects the employer, fellow employees, subcontractors, invitees of the employer, members of the pub lic, or the ultima te consumer of the employer s product or services; and (ii) consists of either physical assault or property loss or damage so serious that the penalties of misconduct or gross misconduct are not suf ficient. (2) In this section, aggravated misconduct does not include: (i) gross misconduct [as defined by § 8-1002]; or (ii) misco nduct [ as refer enced in § 8-1 003]. LE § 8-1002.1. 51 In Hider, we rejected the C ourt of Sp ecial App eals s conc lusion that, in o rder to constitute misconduct under § 8-1003, an employee s misbehavior must be intentio nal. 349 Md. at 84, 706 A.2d at 1079. Relying on the three-tiered system of disqualification provided for in the statute, the Court reasoned that applying an intent requirement to mere miscond uct under § 8-1003 would blur the distinctions between ordinary misconduct and gross or aggravated misconduct. Id. at 82-84, 706 A.2d at 1078-79. In rejecting an intent require ment, we adopted th e followin g definition of misco nduct : The term, m iscond uct, . . . means a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct com mitte d by an em ploye e, within the scop e of his employment relation ship, du ring ho urs of e mploym ent, or on the employer s premises. Id. at 85, 706 A .2d at 1079 (quoting Rogers v. Radio Shack, 271 Md. 126, 132, 314 A.2d 113, 117 (1974 )). We note that, in most unemployment benefit disqualification situations discussed in the reported cases, there is present naturally a concerted attempt on the part of the employee to demons trate that his or h er behavio r was not miscond uct unde r all or some o f the statutory definitio ns. See, e.g., Hider, 349 M d. at 73- 74, 706 A.2d a t 1074- 75. In the present case, however, the employee, Wilson, urges that a court conclude that she was terminated as the result of employee misco nduct. Nonethe less, we resolve that the definition of miscond uct established in Hider provides a suitable and proper standard to be applied 52 when determining whether conduct rises to the level of employee misconduct requiring the applica tion of th e pre-te rminatio n prote ctions o f § 11- 106 pr ior to dis charge . 4. Applying this definition to the present case, we conclude that the performance issues identified by Chairman Schisler during his deposition, even assumin g the y formed all or some of the bases for his termination of Wilson, do not rise, as a matter of law, to the level of a discharge for employee misconduct. See, e.g., Ramsey v. Mississippi Employment Sec. Comm n, No. 200 4-CC-0 0777-C OA, 20 05 WL 153043 1, at *2 (Miss. Ct. App. June 28, 2005) (stating that [m ]ere inefficie ncy, unsatisfac tory conduct, f ailure in good performance as the result of in abili ty or in capa city, or inadvertence an d ord inary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered miscond uct within the meaning of the [Mississippi unemployment benefits statute] ). Each of the performance issues mentioned by the Chairman involved, at worst and if true, a deficiency in judgment, skill, ability, or competence, rather than the commission of a forbid den ac t, a dereliction of duty, or a course of wrongful conduct. There is no evidentiary bas is in this record from w hich a trier of fact could conclude that Wilson s alleged performance shortcomings constituted a breach or transgression of some established rule or policy of the emplo yer. Nor could any of the performance issues constitute a dereliction of duty. Black s Law Dictionary defines dereliction as [a]bandonment, esp[ecially] through neglect or 53 moral wrong. Black s Law Dic tion ary 475 (8 th ed. 20 04). Similarly, Black s defines derelict as [l]acking a sense of duty; in breach of a legal or moral obligation <the managers were derelict in their duties> Id. (emphasis added). The common understanding of the term dereliction of duty, along with those of forbidden act and course of wrongful conduct, endorse our conclusion that, in order to rise to the level of employee miscon duct, the alleged conduct would need to involve some element of wrongdoing, culpable negligence, or brea ch of a legal or m oral ob ligation . Although Wilson s perceived performance deficiencies, in Chairman Schisler s opinion, may have been disruptive to the operation of the PSC as he conceived it should take place, such conduct did not involve any element of wron gdoing o r culpable neglige nce. The mere incompetency or inefficiency of an employee, without an element of wrongd oing, does not constitute miscond uct. We h old that, when an em ployee in the ma nagem ent serv ice, in the opinion of the appointing authority, simply does n ot possess th e skills, abilities, or jud gment ne cessary to fulfill satisfactorily his or her duties, those deficiencies ordinarily do not rise to the level of a finding of employee misconduct and therefore a termination, if based expressly or im plictly on such deficiencies or related conduct, would not implicate § 11-106. We conclude that the performance issues elicited from Chairman Schisler in his dep osition do n ot amoun t to employee misconduct and, thus, a termination based on those alleged shortcomings, even assuming that is what occurred here, does not implicate § 11-106. C. 54 Wilson additionally contends that she was terminated as a result of her alleged fraudulent completion and submission of a time sheet. In our view, how ever, although such conduct, if assumed to be true, would constitute employee misconduct as that term is used in § 11-106, the statute is inapplicable to the present case beca use Wilso n failed to g enerate a triable issue whether Chairman Schisler relied on the time sheet incident as a basis for his decision to terminate her. 1. As summarized supra, Chairman Schisler, during his deposition, detailed an interaction with Wilson in which, it fairly may be deemed, he impliedly accused her of intentionally submitting a false time she et. Applying the definition of misconduct adopted earlier in this opinion, such conduct, had it been offered as the basis for the termination, clearly would constitute an allegation of employee misconduct. The premise behind a fraudulent time sheet indicating more time worked than in a ctuality was pe rformed is obviously that the employee, although required or believed to be present at the workplace and engaged in the employer s work, in essence abandoned his or her position to a level tantamount to a dereliction of duty. Furthermore, such conduct would be a forbidden act. COMAR, which outlines employee misconduct, includes within that concept the act of [ e]ngaging in conduc t involving dishonesty, frau d, deceit, misrepresentation, or illegality. A permissible inference that may be drawn from what Chairman Schisler stated at his deposition is that, at some time around the end of the 2003 holiday season , he thou ght that, i n subm itting he r time sh eet, Wilson may have been dishonest and misrepresented the actual amount of time that she worked. A fraudulent entry 55 on a submitted time sh eet certainly wo uld qualify, un der the exa mples fou nd in this regulati on, as e mployee miscon duct. 2. Chairman Schisler, however, claimed that, although he concluded his investigation of the time sheet incident feeling troubl[ed] about Wilson s culpability and credibility, he did not factor th is miscon duct into h is decision to te rminate her. Wilson cla ims that, in his deposition, the Chairman admitted that the time sheet incident played a role in the termina tion dec ision. The Comm ission retorts that, even if Chairman Schisler considered the time sheet incident in reaching his termination decision, the pre-termination statutory protections of § 11-106 should not apply because it was not a reason ex pressly given for termination in the written notice (indeed, the only n otice) to Wilson . The Co mmission asks us to su bscribe to a brightline rule in which the process guaranteed in § 11-106 is required only when employee misconduct is the only, or perhaps the primary, express reason given for the 56 imposition of discipline.30 We decline the Commission s invitation and instead adhere to the plain statutory language of § 11-106. We begin our analysis with an examination of the role that § 11-1 06, as applie d to management service employees, plays in the statuto ry scheme reg arding disc ipline in general and terminations specifically. As noted supra, before an employee is disciplined for employee misconduct, the appointing authority, no matter in which classification or service the employee resides, must follow the statutory process outlined in § 11-106. Whether the appointing authority must follow similar procedures when imposing disciplinary sanctions as the result of employee performance, however, depends on the classification or service of the employee in question. COMAR 3(C) states th at, before an employee in the skilled or professional services may be disciplined for perfo rmance-related reasons, the appointing authority must 30 The Commission s proposed rule, at first blush, appears to be a practical interpretation and applic ation of the framewo rk of § 11 -106 in the c ontext of S tate government at-will employees. We note that, in each of the reported cases in which § 11-106 has been examined or discussed in substance, the facts demonstrated that the terminated or disciplined emp loyee was info rmed explici tly, usually in a formal termination letter, of the employee misconduct for which he or she was being te rminate d. See, e.g., Danaher, 148 Md. App. at 150, 811 A.2d at 366 (stating in a letter that the employee was terminated as a result of misc onduc t). Furthermore, the vast ma jority of these cas es involved situations in which not only were the factual predicates for the misconduct communicated, but also the particular statutes, regulations, or guidelines that were breached by the terminated or disciplined emplo yee. See, e.g., W. Corr. Inst. v. Geiger, 371 Md. 125, 131-35, 807 A.2d 32, 36-38 (2002) (statin g in a notice of termination the department standards and regulation that the terminated employee had violated). Complications arise in cases such as this, where the appointing authority is terse in the relevan t commu nications w ith the emp loyee. In this case, Wilson was not in formed v erbally or in writing that her termination was the result of employee misconduct, nor of the factual predicate for any alleged misconduct that she now sees as the inspiratio n for her term ination. Of course, the terse termination notices in the present case are entirely consistent with the Commission s official position that Wilson was terminated for no particular reason because, as an at-will employee, no reason need be given. 57 comply with investigatory and notice provisions similar to those mandated by § 11-106. There are no similar pre-disciplinary provisions, in either the State Personnel and Pensions Article or the regulations promulgated pursuant to that Article, governing performancerelated personnel actions with respect to management service employees. Some cases have discussed the rationale and importance behind § 11-106 and its comprehensive scope. In Maryland Reception, Diagnostic & Classification Center v. Watson, 144 M d. App. 6 84, 691, 80 0 A.2d 1 6, 20 (200 2), the Cou rt of Specia l Appeals opined that the purpose of the statutory protections outlined in § 11-106 can be discerned from an overview of the entire statutory scheme for imposing discipline on State employees: to prevent an appointing authority from imposing discipline on the basis of an unsubstantiated accusation. See also W. Corr. Inst. v. Geiger, 371 Md. 125, 144, 807 A.2d 32, 43 (2002) (stating that [i]t is significant that one of the prerequisites for the imposition of discipline is the conduct of an investigation of the alleged misconduct ). In Danaher, the Court of Special Appeals affirmed this protective aspect of § 11-106 in the context of a management service employee. 148 Md. App. at 166, 811 A.2d at 375. In holding that the investigation undertaken b y the employer pursuant to § 11-106 was deficient, the intermediate appellate court stressed that the statute s purpose, in part, was to provide an extra layer of protection, even with respect to at-will employees, to prevent the collateral consequences that may result when an employee is found culpable for employee miscon duct. See id. at 176-78, 811 A.2d at 381-82 (noting that, because Danaher, a 25 year 58 veteran of state service, was found responsible for employee misconduct and thus terminated with prejudice, he was subject to possible disqualification from employment with the State for up to three years). Although we too ac knowle dge this pro tective chara cteristic of § 11-106, we are also mindful that its less than careful application has the potential to alter fundamentally the scope of at-will employment with respect to the management service. Nonetheless, the language of § 11-106 is clear: Before taking any disciplinary action related to employee m isconduc t, an appointing auth ority shall follow specific investigatory procedures. (Em phasis added). Based on this plain a nd unam biguous la nguage, w e conclud e that, if it appea rs that a disciplinary action may have been based, even sub silentio, on alleged facts constituting employee misconduct, the appointing authority must be held accountable to follow the procedures outlined in § 11-106.31 31 We recognize as an exc eption to this general principle that, even w here there may be some factual basis upon which an argument may be mounted that consideration of employee misconduct figured in reaching the termination decision, the appointing auth ority may n ot have to fulfill the pro cess in § 11 -106 wh ere it can dem onstrate satisfactorily that it would have taken the disciplinary action in question regardless of the alleged employee misconduct. This is not unlike certain federal statutory schemes, such as the Family and Medical Leave Act ( FMLA ), 29 U.S.C. § 2601 et seq. (2000), that provide employees with certain rights or protections against discrimination. The FMLA provides eligible employees the right to receive unpaid leave, with a right of reins tatement, for up to 12 weeks in the event of a serious medical condition. 29 U.S.C. § 2612. Although the FMLA pro hibits an employer from taking any retaliatory actions, such as termination, against an employee as the result of the e xercise of h is or her rights u nder the statu te, it does not prevent an employer from taking a disciplinary action if that action is shown to be unrelated to the ex ercise o f rights u nder th e FM LA. See 29 U.S.C. § 2614(a)(3) (stating that [n]othing in this section s hall be con strued to en title any restored em ployee to . . . any right, (continued...) 59 Section 11-106 ap pears to be a sharp limitation on the discretion of the appointing auth ority to discipline its employees. With regard to at-will employees such as those in the management service, however, the statutory sche me prov ides the ap pointing au thority with certain leeway in the disciplin ary proces s. When the appointing a utho rity seeks to impose disciplinary sanctions on a skilled o r profession al service em ployee, the State Personnel and Pensions Article and its regulations provide that the appointing authority bears the burden of proof. § 11-109; COMAR When the appointing authority seek s to impose disciplinary sanctions on a management service employee, however, the State Personnel and Pensions Article and its regulations provide that the employee bears a burden of proof. § 11-113; COMAR When an employee in the management service claims that his or her discipline was unlawfu l because th e appoin ting authority d id not follow the specific procedures in § 11-106 , the employee bears the burden of demonstrating that either the appointing authority did not follow properly the procedures in § 11-106 or that the disciplinary action was the re sult of some meaningful consideration by the ap pointin g autho rity of un charge d em ployee m iscond uct. 32 In the absence of such 31 (...continued) benefit, or position of employment other than any right, benefit, or position to which the employee would have bee n entitled had the emplo yee not taken th e leave ); Geromanos v. Colum bia Univ., 322 F.Sup p.2d 420 , 429 (S.D .N.Y. 200 4) (citations om itted) (stating that the FMLA is not a shield to pro tect employee s from leg itimate disciplin ary action by their employers if their perfo rmance is la cking in some manner unrelated to their FMLA leave ). 32 For example , a reviewin g tribunal m ight find employee misconduct was a significant factor in the d ecision to tak e a particular disciplinary action if the employee (continued...) 60 a dem onstratio n, a termination or other discipline of an at-will employee, without a reason being given and without obeisance to the statutory procedures in § 11-106, is not unlawful nece ssarily. In this case, we conclude that the Circu it Court erred , as a matter of law, in determining, on the pleadings and oth er pape rs befo re it, that C hairma n Schis ler, sub silentio, terminated Wilson for employee misconduct regarding the time sheet incide nt. 33 The only 32 (...continued) demonstrates a temporal proximity between the uncharged misconduct and the imposition of disc iplinary sa nctions . 33 It is appropriate to comm ent here on another a spect of the Circuit Co urt s disposition. The Circuit Court found that, because Wilson was ter minate d for c ause . . . as a result of alleged misconduct, Wilson could only be terminated if the Commission followed the procedures outlined in § 11-106. One of the more integral aspects of § 11-106, how ever, is the provision stating that the appointing autho rity may not impose any disciplinary action . . . later than 30 days after the appointing authority acquires knowledge of the misconduct . . . . See, e.g., Geiger, 371 Md. at 144-45, 807 A.2d at 44 (ho lding that, viewed in context, § 11-106 gives the appointing authority 30 days to conduct an investigation, meet with the employee the investigation identifies as culpable, consider any mitigating circumstan ces, determ ine the app ropriate action and give n otice to the employee of the disciplinary action taken ). It is clear from the record that Chairman Schisler acquired knowledge of the time sheet incident (and in his opinion, completed an investigation of such conduct) in late 2003. Assum ing, for the sake of argument, that a majority of the Commissione rs also acquired knowledge of the time sheet incident sometime prior to the retermination, the Circuit Court s judgment tied the hands of the Com mission w ith respect to its ability to terminate Wilson for that reason. The Circuit Court ordered that, because the alleged earlier conduct by the Chairman tainted the re-termination decision, Wilson may be terminated only if the Commission follows the statutory p rocedu res in § 1 1-106 . Under the plain language of the statute, however, the Commission would be barred from imposing any discipline, because it appears that more than thirty days passed since acquisition by the Chairman (and the Commission) of kno wledg e of the time she et incide nt. Furthermore, as the Comm ission points o ut, the Circuit Court failed to identify any possible way for the Commission to remove or remediate the alleged taint perceived by the Circuit Court to be (continued...) 61 factual bases upon which the trial judge could have relied in reaching this conclusion were contained in the deposition of Chairman Schisler. No matter how Wilson torques extracted portions of the Chairman s resp onses, how ever, she fa iled to point to a dmissible fa cts supporting the claim that Chairman Schisler, to any meaningful degree, took the time sheet incident into account when he decided to terminate her. 34 A fair reading of the deposition, however, indicates that C hairman S chisler stated th at, although h e may have taken into account the performance issues relating to his opinion of Wilson s judgment, efficiency, and com pete ncy, he resolved to his satisfaction the time sheet incident without any disciplinary action, and it therefo re did not fa ctor into his termination decision. W ilson unde rstandably attempts to weave a different motive out of certain gen eral statemen ts and respo nses to 33 (...continued) associated with the original termination. 34 Wilson em phasized in her brief an d at oral argu ment that [Chairman] Schisler testifies as a matter of fact that but for the misconduct issues (not the least of which is his allegation of fraud) , he wo uld not have te rminate d Ms. W ilson. As a result, she was terminated for cause as a matter of fact no matter how many times Chairman Schisler repeated the empty mantra that his legal conclusion is that she was not fired for cause, in a legal sort of fram e work or that . . . he didn t do th e analysis with respect to a for cause termination. The context of Wilson s pertinent question, as indicated supra, was whether Chairman Schisler would have terminated Wilson if she had not had any of the personnel problems discussed at the deposition and was doing a fantastic job in [Chairman Schisler s] view across the board. The Chairman, however, never mentioned expressly the time sheet incident during his narrative explanation of his thinking about Wilson s tenure as the PSC s Director of External Relations. 62 hypotheticals. Nonetheless, we conclude that the re-termination of Wilson by a majority of the full Commission35 was not unlawful as a result of its failure to follow the pre-termination statutory procedures in § 11-106.36 V. The Commission argues also that the Circuit Court erred when it found that the intraagency post-termination administrative appeal pro cess was unconstitutio nal as applie d to 35 Wilson claims that h er re-termination by a majority of the full membership of the Commission was unla wful bec ause it was tainted by the original, unlaw ful 15 April termination. Wilson, however, presented no evidentiary basis tending to show that the other two relevant Commissioners (i.e., those who voted w ith Chairman Sch isler) considered the time sheet incide nt in voting to terminate he r. Instead, she a sserts that the absence of any evidence as to the relev ant Com missioners rationale indic ates that those Comm issioners shared Chairman Sch isler s improp er motives. T he absen ce of any fac ts admissible in evidence as to the thinking of the other two Commissioners, however, is indicative only of Wilson s failure to discover or allege any factua l support for her allegations. Our holding reflects our conclusion that, although the initial termination was unlawful because it was not effectuated by the full Co mmission , the re-termina tion was n ot unlawf ul as the resu lt of the failure to follow § 11-106. Because Chairman Schisler s motive was not shown to be unlawful (and in fact may be irrelevant), no fa ct-finder could infer, under any theory advanced in this record, an improper motive on the part of the other two Commissioners. 36 Even if those por tions of C hairman S chisler s dep osition poin ted to by Wilson were able to be read as sufficient to generate a triable issue that her termination was based on misconduct regarding the time sheet incident (a reading we do not adopt), it was error nonetheless for the Circuit Court to gran t her motion for summary judgment. Under summary judgment analysis, the parts of the deposition to which the parties directed the trial court s attention would be v iewed in a light most fa vorable to the non-m oving, nonprevailing party. Thus, at the best for Wilson in this line of argument, the deposition generated factual conflicts as to the Chairman s basis for the initial termination. Such conflicts may not be resolved by summary judgment. In any event, the re-termination by the majority of the full membership of the Commission cannot be said to be infected with the same factual conflicts as are argued to appear from the Chairman s deposition alone. 63 Wilson s case because it did not provide for an impartial agency adjudicator. Section 11-113 prov ides, in its entir ety: § 11-113. Ap peal to head of p rincipal unit. (a) Applicability of section. Th is sec tion only a pplies to an employee: (1) in the management service; (2) in executive service; or (3) under a special appointment described in § 6-405 of this article. (b) Procedure. (1) An employee or an employee s representative may file a written appeal of a disciplinary action with the he ad of the p rincipal unit. (2) An ap peal: (i) must be filed within 15 days after the employee receives notice of the disciplinary action; and (ii) may only be based on the grounds that the disciplinary action is illegal or unc onstitutional. (3) The employee has the burden of proof in an appeal under this section. (c) Conference. The head of the principal unit may con fer with the employee before making a decision. (d) Disposition. (1) The hea d of a princip al un it ma y: (i) uphold the disciplinary action; or (ii) rescind or modify the disciplinary action and restore to the employee any lost time, compensation, status, or benefits. (2) Within 15 days after receiving an appeal, the head of the principal unit shall issue the employee a written decisio n. (3) The decision of the head of the principal unit is the final administrative decision. (e) Expungement of personnel records. Within 15 days after issuance of a decision to rescind a disciplinary action, the disciplinary actio n sha ll be e xpunged fro m the em ploye e s personnel records. 64 The Commission concedes that, because Chairman Schisler is the head of the principal unit with re spect to the C ommissio n, he is the proper, a nd ordina rily would be the, individual under the statutory scheme to hear an appeal by Wilson of her re-termination. Indeed, that view is confirmed by the direction in the 29 October memorandum to Wilson notifying her of her re-termination and directing her to file with the Chairman any appeal she might care to make. Wilson argues that, because the Chairman initiated her termination, he was biased aga inst her of n ecessity. She m aintains that, under Article 24 of the Maryland Declaration of Rights ( Article 24 ),37 she was entitled to a fair and impartial agency adjudicator. 38 We, however, need not reach or decide the issue of whether Wilson was 37 Article 24 of the Maryland Declaration of Rights, entitled Due process, states: That no man ought to b e taken or im prisoned o r disseized o f his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or dep rived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. 38 In its 15 November 2004 order, the Circuit Court held that, not only was the review of Wilson s appeal by Chairman Schisler unconstitutional because he was not impartial, but that neither the Chairman nor any of his employees may lawfully serve as an agency adjudicator regarding h is own decision to terminate [Wilson]. Although § 11-113 provides explicitly that the appeal is to b e file d with, in vestigate d by, and disposed of by the head of the principal unit, the Circuit Court does not m ake clear w ho, if anybod y, in its view w ould be authorized , under the te rms of its ord er, to hear an appeal of a proposed termination of Wilson. The Commission argues that, even though the re-termination letter stated that any appeal should be sent to Chairman Schisler in his position as hea d of the princip al unit, neither he nor it intended for him actually to consider and decide any such appeal. The Commission did not elaborate who, if not the Chairman, would consider and decide such an appeal had it be en time ly filed fo llowin g the re- termina tion. See, e.g., Spencer v. Bd. of Pharmacy, 380 Md. 515, 533-34, 846 A.2d 341, 351-52 (2004) (evaluating alternatives for administrative agency to cure bias issues in hearing a contested case). The Commission, (continued...) 65 deprived unconstitutio nally of a fair and impartial agency adjudicator because we conclude that she failed to invoke and exhaust the specific administrative remedy provided by statute when a management service, at-will employee of the PSC is terminated for other than miscond uct. Therefore, she may not maintain in our State courts the claim she makes here. A. In SEFA C Lift & E quipm ent Co rporat ion v. Mass Transit Administration, 367 Md. 374, 380, 788 A.2d 192, 196 (2002), we elaborated on the exhaustion of remedies doctrine of administrative law: We have long held, and have recently confirmed, that [w]here an administrativ e agency ha s primary or ex clusive jurisdiction over a controversy, the parties to the controv ersy must ordin arily await a final administrative decision before resorting to the courts f or resolu tion of th e contro versy. (citations omitted ). See also Furnitureland South, Inc. v. Comptroller, 364 Md. 126, 133, 771 A.2d 1061, 1065 (2001) (stating that, where the Legislature has provided an administrative remedy for a particular matter or matters, there is a presumption that the Legislature intended such remedy to be primary and intended that the administrative remedy must be invoked and exhausted b efore resort to the courts ). 39 38 (...continued) however, stated that, because Wilson did not pursue an administrative appeal of her retermination, it was not called upon to resolve who or what entity that might not run afoul of the trial court s o rder wou ld consider an appea l. 39 Neither the PUC Article nor the State Personnel and Pensions Article authorize a petition for judicial review of the Commission s final decision to terminate an at-will (continued...) 66 In this case, § 11-113 provided a specific statutory administrative appeal process for certain categories of State employees, of which Wilson was one. Although Wilson apparently submitted an administrative appeal pursuant to § 11-113 following her initial termination, she failed to do so with respect to her re-termination, instead opting to file an unsuccessful motion to hold the Comm ission in contempt in the action in the Circuit Court arising from the initial termination. We find that, before Wilson could seek a judicial forum to resolve the disputes she seeks to raise with her re-termination, she was required to file and prosec ute to a f inal adm inistrativ e decisio n an ad ministra tive app eal und er § 11- 113. This is not a mere reflexive application of the exhaustion doctrine. Whether such an appeal (and any issues as to illegality or unconstitutionality of the re-termination that may have been asserted) would have been considered and decided by the Chairman never will be known. See note 38 supra. The effort to moun t the appeal may have been minimal (considering that much of the work from the prior appeal may have been recyclable), but the 39 (...continued) employee of the PSC. Undoubtedly aware of this, Wilson, in filing her complaint and amended complaint in the Circuit Court, sought judicial scrutiny of the Comm ission s actions through a lternative lega l vehicles. In b oth pleadin gs she plea d for a dec laratory judgm ent, a writ of mandamus, common law certiorari, and injunctive relief; however, skillful pleading may not avo id application of the doctrine of exhaustion of administrative remedies, for the reasons explained a bove. See Converge Servs. Group v. Curran, 383 Md. 462, 482, 860 A.2d 871, 882 (2004) (stating that a preemptively or prematurely filed petition for declaratory judgment, where there is provided an exclusive administrative remedy for the subject matter, should not then be entertained [by the court], if at all, until the administrative remedy is exhausted ); Josephso n v. City of A nnapolis, 353 Md. 667, 681, 728 A.2d 690, 696 (1998) (stating th at the g eneral r ule . . . remains that when a dministrative remedies e xist in zoning cases, they must be exhausted before other actions, including requests for d eclaratory judgments, mand amus and injunc tive relief, may be brought ). 67 potential benefit to Wilson may have been great. Had the Chairman decided the appeal, as perhaps the re-termination notice implied would be the case, she would have taken from the Chairman and the Commission the argument they make here that the Commission intended to delegate that resp onsibility to anothe r. By the same token, had she noted the appeal and it was delegated properly to an entity or person free of the alleged original sin of the Chairman, she may have gotten the impartial agency review she desired and would not have made the argument she now makes. In effect, by not filing the appeal, she enabled her argument here, in the nature of an anticipatory breach of the right she claims. Wilson argues that, because Chairman Schisler was involved in the termination and re-termination decisions and the former administrative appeal process, she need not exhaust the administrative process following re-termination because he was unconstitutio nally biased against her. Although we recognize that a constitutional challenge to a statute or regulation on its face may provide an exception to the normal application of the exhaustion doctrine, we conclude that that exception is not applicable here because Wilson s constitutional challenge is framed as an as applied one. Maryland courts long have recognized a constitutional exception to the exhaustion of adm inistrativ e reme dies do ctrine. See, e.g., M ontgom ery Cou nty v. Broadcast Equities, Inc., 360 Md. 438, 455-60, 758 A.2d 995, 1004-07 (2000) (chronicling the development and scope of the constitutional exception to the exhaustion doctrine and emp hasizing tha t it is 68 very narrow ); Shipp v. Bevard, 291 Md. 590, 599, 435 A.2d 1114, 1118 (1981). In Shipp, we obse rved that: [W]hen there is an attack upon the con stitutionality or validity of an enactmen t on its face, su ch case fa lls within a w ellestablished exception to the principle that statutory administrative and judicia l review rem edies are no rmally deemed exclusive and must be pursued and exhausted. Howeve r, . . . when the attack is upon the constitutiona lity of an enactment as applied to a particular situation, as co ntrasted w ith an attack upo n the validity of an enactment as a whole, the case does not come w ithin the exception and the statutory administrative and judicia l review reme dies are ord inarily exclusive. 291 Md. at 599, 435 A.2d at 1118. In this case, Wilson does not attack the constitutionality of § 11-113 on its face or as a whole, but rather as applied to the alleged fac ts of her situa tion. Her co nstitutional claim is premised on the particular facts of this case, i.e. Chairman Schisler s role in the initial termination action (and his participation in voting, together with two other Commissioners, to re-terminate her) renders him unable to be fair and impartial in assessing whether the retermination action was illegal or unconstitutional. Of course, on this record, we have no way of knowing what arguments as to illegality or unconstitutionality of the retermination Wilson might have made under § 11-113(b)(2)(ii) because she failed to offer them. Acc ordingly, it is difficult to analyze whether Chairman Schisler s disposition of an imaginary appeal of the re-terminatio n would reflect impe rmissible bias , assuming he wou ld have served as the head of the principal unit in considering and deciding it , rather than 69 delegating the responsibility to some entity or someone free of prior meaningful association with Wilson s case (see note 38 supra). Even in the case of the § 11-113 appeal taken by Wilson from the initial termination, which, as we noted earlier, this record does not contain the writing whereby she tendered her specific arguments, we are unable to detect any obvious impermissible bias from the Chairman s written disposition of her a ssume d conte ntions. Wilson s p resumed argumen ts as to ille galit y or unconstitutiona lity made at that tim e, whethe r correctly or inco rrectly resolved, were accorded reasonably detailed explanations for their rejection. Furthermore, the Chairman s responses were not flippant, frivolou s, or facetious on their face. W e are unwilling to assume the apparent premise of Wilson s argument that some kind of blind pride of authorship or hubris of power renders a n administrative decision-m aker ipso facto unable to assess fairly and objectively arguments that his or her decision should be revisited, changed, or abandoned. In the instance of the recusal of members of administrative bodies, we have refused to adopt a per se rule of recu sal. See Spencer, 380 Md. at 534 n.7, 846 A.2d at 352 n.7. Because the record in this case does not reveal a factual p redicate for specific personal bias against Wilson by Ch airman Schisler, w e shall not ac cept her inv itation to excuse her failure to exhaust the specific administrative remedy made av ailable to her b y § 11-113. 70 B. As noted supra, Section 11-113 provides that, if a management employee wishes to appeal a disciplinary action, he or she must file a written appeal . . . with the head of the principal unit . . . within 15 days after the employee receive s notice of the disciplinary action. In this case, Wilson was given notice of her re-termination on 29 October 2004. She therefore w as required to file a written a ppeal with in 15 days of that date if she desired to contest the action taken aga inst her on g rounds of illegality or unconstitutionality. Wilson failed to do so, op ting instead to file in the pending c ourt acti on, on 4 Nove mber 2 004, a petition to hold the Commission in contempt of court. As a result, Wilson allowed the relevant time period to expire without following the statutory directive under § 11-113. Application of the doctrine of exhaustion of administrative remedies bars her effort to seek alternative redress in the Circuit Court on the ground that the § 11-113 administrative remedy was unconstitutional as applied. C. Wilson argues in her brief that, should we conclude that she was not terminated for cause, we shou ld remand this matter to the Circuit C ourt for fu rther discov ery and possib le trial of her claim that she was terminated because of her political affiliation and/or beliefs in violation of Article 40 of the Maryland Declaration of Rights.40 This claim too is precluded 40 Wilson, alleging that she is a Democrat and a known supporter of former U.S. President William Jefferson Clinton, claimed that Chairman Schisler, alleged to be a Republican appointed Chair by current Maryland Governor Robert L. Ehrlich, Jr., also a (continued...) 71 by her failure to exhaust h er opportu nity to take an administrative appeal of the retermination decision. Although we conclude, as did the Circuit Court, that the initial termination of Wilson was unlawful because it was not effectuated by the appointing author ity, the re-termination was not unlawful. Because Wilson failed to pursue the statutory administrative appeal process following the re-termination, she may no t maintain her Article 40 claim on remand. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REV ERS ED. CASE REMANDED TO THE CIRCU IT COURT WITH DIRECTIONS TO ENTER JUDGMENT, CONSISTENT WITH THIS OPIN ION, IN FAVOR OF APPELLANTS. COSTS TO BE DIVIDED EQUA LLY B Y THE PUBL IC SERV ICE COMMISSION AND CHRYS WILSON. 40 (...continued) Republican, fired her for partisan reasons. Further she alleged that her replacement, appointed by the Chairm an, was a R epublican vetted with the Gov ernor s A ppointme nts Office. 72