DNR v. Heller
Annotate this Case
Download PDF
Department of Natural Resources v. James Heller, No. 23, September Term 2005. ADMINISTRATIVE LAW MARYLAND WHISTLEBLOWER ACT: Respon dent, James Heller, filed a complaint against the Department of Natural Resources pursuant to the Maryland Whistleblower Act asserting that the Depa rtment had retaliated aga inst him for h is having been a whistleblow er by entertaining a disciplinary action against him premised upon allegations of sexual harassm ent on the part of M r. Heller. The Department of Natural Resources requeste d that the C ourt of Appe als revie w the d ecision of the C ourt of Specia l Appe als, which found, in contradiction to the findings of the Administrative Law Judge, that James Heller made protected disclosures regarding alleged fiscal improprieties and that the Administrative Law Judge erroneou sly precluded Mr. Heller from introducing evidence relevant to the merits of the underlying sexual harassment claim. The Court of Appeals concluded that the Administrative Law Judge s determination that Mr. Heller s allegations of fiscal impropriety did not constitute protected disclosures under the Maryland Whistleblower Act was supported by substantial evidence and was not premised on an erro neous inter pretation of the law. M oreover, T he Cou rt of App eals held that the Administrative Law Judge did not erroneously exclude Mr. Heller s proffered evidence relating to the merits of the underlying sexual harassment claim. Therefore, The Court of Appeals reversed the decision of the Court of Special Appeals. IN THE COURT OF APPEALS OF MARYLAND No. 23 September Term, 2005 DEPARTMENT OF NATURAL RESOU RCES v. JAMES HELLER Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Bell, C .J., Rake r and H arrell, JJ., Dissent Filed: February 9, 2006 This case arises out of an administrative hearing addressing a complaint filed by James Heller aga inst the Dep artment of Natural Resources pursuant to the Maryland Whistleblower Statute, M d. Cod e (1993 , 1997 R epl. Vo l., 2001 S upp.), § 5-301 , et seq. of the State Perso nnel and P ensions A rticle, alleging retaliatory disciplinary action. The Department of Natural Reso urces ( DNR ) requests this Court to review the decision of the Court of Special Appeals which found, in contradiction to the findings of the Administrative Law Judge, that James H eller made protected disclosu res regarding alleged fiscal improprieties and that the Administrative Law Judge erroneously precluded Respondent from introducing evidence relevant to the merits of the underlying sexual harassment claim. We reverse . Facts On October 18, 1998, Respondent began working as the manager of the Somers Cove Marina ( Somers Cove ) in Crisfield, Maryland. At that time, he was informed by his direct supervisor, Joseph W ard, Park S ervice Sup ervisor, and Mr. War d s superviso r, Da ryl DeCesare, Regional Manager for the Eastern Region, Department of Natural Resources, that the marina had posted a loss the previo us fiscal year and that some of his responsibilities were to identify th e reaso ns for th e loss an d to ma ke the m arina pr ofitable . From Novem ber 1998 through A pril 2001, Mr. H eller, Mr. Ward, and Mr. DeC esare exchanged numerous memoranda concerning the Somers Cove budget and the use of funds generated by the marina. Respondent discovered that DNR made several payments to the Great Hope Golf C ourse ( Great H ope ), to taling $5 3,600, pursuant to an agreement between DNR and Somerset County b y which DNR would receive discounted vouchers for rounds of golf at Great Ho pe to be sold at Som ers Cove for a prof it. Respond ent also note d that in fiscal year ( FY ) 1998, $25,859 was charged to Somers Cove to purchase a truck for the marina, but sometime thereaf ter, the truck was transferred to Jan es Island State Park w here Mr. Ward served as Park Manager. Respondent also found that $80,000 in revenue generated by Somers C ove had n ot been cre dited to Som ers Cove s operating account. In FY 1998 and 1999, various summaries of receipts and corresponding cash register tapes, credit card receipts, and bank deposit tickets were found at Somers Cove, evidencing moneys which had no t been credited to Som ers Cove s revenu e account but had remained in a DNR clearing account until the supporting documentation was received and processed. When this occ urred, S omers Cove was cr edited w ith the en tirety of the revenu e. On January, 18, 1999, Mary Taylor was hired by DN R to work at Somers Cove as an office secretary to report directly to Resp ondent. On April 9, 200 1, Ms. Taylor met w ith Mr. Ward and expressed her feelings of discomfort about working alone with Respondent because she f elt th reate ned and intim idate d and wa s being se xually harassed. Mr. Ward instructed her to put her concerns in writing; Ms. Taylor did so in a letter dated April 11, 2001. Mr. Ward forwarded this letter to Mr. DeCesare. On April 14, 2001, Mr. DeCesare and Mr. Ward met with Respondent and informed him that he could not w ork in the same off ice as Ms. Taylor and that M r. Ward would be -2- assuming Ms. Taylor s daily supervision. Approxim ately two weeks later, Mr. D eCesare temporarily reassigned Respondent to Pocomoke River State Park and forwarded Ms. Taylor s complaint to DN R s Equal Em ployment Opportun ity Office ( EEO O ffice ). William Bias, Chief of the Office of Fair P ractice, DNR, investigated Ms. Taylor s claims of sexual harassment. In his report date d May, 30, 2001, Mr. Bias concluded that there was probable cause to conclude that Ms. Taylor had been discriminated against because of her gen der, afte r havin g interv iewed Mr. W ard, Mr. DeCesare, Lieutenant Colonel Alphonso Hawk ins, Assistant Superintendent, State Forest an d Park Service ( S FPS ), Lindley Sterling, a sea sonal employee at Somers Cove and M s. Taylor s coworker, Ms. Taylor, and R espon dent. A lthoug h Resp onden t denied Ms. T aylor s alle gations , Mr. Bias found that Ms. Taylor was credible and that Respondent was not. He recommended the following actions be taken by ma nageme nt: (1) transfer Respondent to another location; (2) issue Respon dent a wr itten reprimand for his actions emphasizing the seriousness of the offense and DNR s zero tolerance policy with respect to sexual harassment; (3) require Respondent to attend sexual hara ssment train ing; and (4) advise Re sponden t not to retaliate against Ms. Taylor. Mr. Bias also noted that the Office of Fair Practice would conduct period ic review s to ensu re that th e sugg ested co rrective actions had be en imp lemen ted. On June 21, 2001, Colonel Richard Barton, Superintendent of the State Forest and Park Service and Respondent s appointing authority, issued a written reprimand to Respondent based upon Mr. Bias s determination of probable cause. Respondent was -3- permanently transferred from Somers Cove, required to attend sexual harassment training, prohibited from having any contac t with Ms. Taylor and p rohibited from visiting Som ers Cove . Respo ndent w as not d emote d in gra de and did not incur an y loss of p ay. Respondent filed an administrative appeal of the disciplinary action with the head of his unit at DNR and the Secretary of Budget and Management, pursuant to Sections 11-109 and 11-110 of the State Personnel and Pensions Article.1 He thereafter settled and dismissed 1 Maryland Code (1993, 1997 Repl. Vol., 2001 Supp.), Section 11-109 of the State Perso nnel and P ensions A rticle provide s in pertinent p art: (b) Limitations. (1) Except as provided in paragraph (3) of this subsection, an employee in the skilled service or the professional service may appeal a disciplinary action taken while the employee is on probation only on the basis that the action was illegal or uncon stitutiona l. (2) The employee has the burden of proof in an appeal under this subsection. (3) The limitations in paragraphs (1) and (2) of this subsection do not apply to an employee in the skilled service or the professional service who is on probation following a promotion or reinstatem ent. (c) Appeal to head of principal unit Procedure. (1) 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 believe s wou ld warr ant resc inding the disc iplinary ac tion. Maryland Code (1993 , 1997 Repl. Vo l., 2001 Supp.), Section 11-110 o f the State Personne l and Pens ions Article p rovides in p ertinent part: (a) Procedure. (1) Within 10 days after receiving a decision under § 11-109 of this subtitle, an employee or an employee s representative may appea l the decision in writing to the (contin ued...) -4- the appeal prior to it being heard by the Office of Administrative H earings ( OAH ). Pursuant to that settlement, Respondent agreed to a permane nt assignm ent to another state park an d retaine d his ab ility to seek r edress th rough a wh istleblow er actio n. In his separate whistle blower action under Section 5-301 et seq. of the State Personnel and Pensions A rticle ( Whistleblower A ct ),2 filed with the Secretary of the 1 (...continued) Secreta ry. (2) An appeal shall state, to the extent possible, the issues of fact and law that are th e basis o f the ap peal. (b) Action required by Secretary after receiving appeal. Within 30 days after receiving an appeal, the Secretary or designee s hall: (1)(i) mediate a settlement between the employee and the unit; or (ii) refer the ap peal to the Office of Administrative Hearings; and (2) advise the employee in writing of the Secretary s action. 2 Maryland Code (1993, 1997 Repl. Vol., 2001 Supp.), §§ 5-301 et seq. of the State Perso nnel and P ensions A rticle provide s in pertinent p art: § 5-302. Effect of Subtitle. (b) Effect on personnel actions. This subtitle does not prohibit a personnel action that would have been taken regardless of a disclosure of information. § 5-305. Disclosure of information Reprisal prohibited. Subject to the limitations o f § 5-3 06 of th is subtitle , a supervisor, appointing authority, or the head of a principal un it may not take or refuse to take any personnel action as a reprisal against an employee who: (1) discloses information that the employee (contin ued...) -5- Department of Budget and Management ( DBM ), Respondent alleged that the June 21, 2001 disciplinary action was not a consequence of the probable cause finding of sexual harassme nt, but was retaliatory for the protected disclosures that Respondent alleged to have made regarding purported fiscal irregularities in the implementation of Somers Cov e s operating budget. Specifically, Respondent listed several discrete allegations of fiscal improprieties and illegalities that he asserted he had raised previously with SFPS manage ment. He stated that he h ad discov ered and re ported to S FPS m anagem ent that: (1) $80,000 in revenues generated by Somers Cove in FY 1998 were not credited by DNR to Somers Cove s operating account, but rather were diverted by DNR for other departmental uses; (2) approximately $24,000 from Somers Cove s budget was used to purchase a vehicle that DNR subsequently and improperly transferred for use at Janes Island State Park; and, (3) DNR improperly transferred $40,000 from the Somers Cove budget to the Great Hope Golf Course, a facility owned and operated by the Somerset County Commissioners. The DBM denied his whistleblower claim; Respondent appealed to the Office of 2 (...continued) reasonably believes evidences: (i) an abuse of authority, gross mism anagem ent, or gr oss w aste of m oney; (ii) a substantial a nd specific da nger to pu blic health or safety; or (iii) a violation of law; or (2) following a disclosure u nder item (1) of this section seeks a remedy provided under this subtitle or any other law or policy governing the employee s u nit. -6- Administrative He arings ( OAH ), and an evidentiary hearing was held by Administrative Law Judg e ( A LJ ) Lorrain e Fra ser o n Jan uary 1 4 and 15, 20 03. Resp ondent s c ase, in direct and rebuttal, consisted of his own testimony, as well as the te stimonies o f State Senator James Lowell Stoltzfus and Delegate Charles Andrew McClenahan in his case in chief. DNR presented the testimonies of Gregory J. Cunningham, DNR s Director of Audit and Man agem ent Re view a nd Co lonel B arton. Respondent testified that when he was hired by DNR as manager of Somers Cove, he was informed of a $197,000 net operating loss posted by Somers Cove for FY 1998 and that he tried to determine why Som ers Cove was not generatin g profits. A ccording to Respon dent, this investigatio n led him to focus his a ttention on th e three issues raised in his complain t: the payments to Great Hope, the purchase of the truck which was later transferred to Janes Island, and the diversion of Somers Cove revenues by DNR for other departmental purposes. He stated that he reached the conclusion that the revenues generated by Somers Cove, known as attainment, were being improperly diverted by DNR or were not being credited by D NR to th e Somer s Cove a ccount. Respondent testified that in late 1998, he brought these issues to the attention of Mr. Ward, Mr. DeCesare, and Pam Lunsford, the assistant to the SFPS budgetary officer. To corrobora te his assertion that he had made his concerns known to his superiors, Respondent presented a January 13, 2000 memorandum addressed to Mr. Ward and Mr. DeCesare, which detailed the budgetary issues at Somers Cove and asserted that the marina was being used as -7- a cash cow. In the memorandum, Resp ondent no ted that although the marina was producing revenues in FY 1999 in excess of $600,000, Somers Cove s operating budget was only $405,000. Similar statements were made in a February 18 , 2000 me morand um to Jim Dunmyer, DNR Assistant Secretary, which was also introduced into evidence by Respond ent. Respondent also offered, and the ALJ received, several other documents, which included: a February 14, 2000 memorandum from himself to Mr. Ward and Mr. DeCesare, in which he alleged that Annapolis had taken $223K for F Y 99's attainment ; Re spondent s performance evaluation signed July 19, 2000 stating that if DNR would comply with the applicable statute governing the Somers Cove Improvement Fund, it would enable Respondent to better perform his duties; and a November 6, 2000 memorandum from Respondent to Mr. Ward in which Responden t raised questions about the Somers Cove budget. During Respondent s case in chief, he attempted to introduce evidence impeaching the credibility of the allegations made by Ms. Taylor, which went beyond what was contained in Mr. Bias s report, as part of his effort to prove that the sexual harassment claims were pretextual. ALJ Fraser explained, at that time, ruling on an objection by DNR to the admission of a docume nt which p urported to relate to Ms. Taylor s conduct in the workplace, that the context of the whistleblow er claim w as not the ap propriate pro ceeding in which to challenge the merits of the underlying sexual hara ssment claim . ALJ Fra ser stated that Respondent could only challenge the sexual harassment charge in an appeal of the -8- disciplinary action. Also, when, during the direct exam ination of Respon dent, Responde nt s counsel asked whether he had sexually harassed Ms. Taylor, ALJ Fraser again sustained DNR s objection to the question. Respondent also presented the testimony of Senator James Lowell Stoltzfus and Delegate Charles Andrew McClenahan, both of whom stated their belief that Respondent had done a good job as manager of the marina. Both Senator Stoltzfus and Delegate McClenahan testified that Mr. DeCesare told them that Respondent was removed because of financial misma nagem ent of S omers Cove . In response to the evidence adduced by Respondent, DNR presented testimony from Gregory Cunn ingham , who te stified a s an acc ountin g expe rt, and C olonel B arton, w ho instituted the disciplinary action against Respondent. Mr. Cunningham, as part of the investigation into Respondent s whistleblower complaint, had performed an internal review of the specific allegations of fiscal mismanagement raised by Res ponden t. Mr. Cunningham also prepared a report of his findings, which was admitted into ev idence. In both the report and his te stimony, Mr. Cunning ham opined tha t there was no me rit to any of Respondent s allegations. With respect to the allegation that DN R had unlaw fully diverted $80,000 from Somers Cove for other departmental purposes, Mr. Cunningham testified that DNR had not diverted these funds but that the fun ds had been he ld in DNR s c learing account pend ing DNR s receipt of certain Somers Cove credit card receipts and deposit tickets as proof of revenue. -9- As stated by Mr . Cunning ham, und er DNR s accoun ting proced ures, transm ittal of the receipts and deposit tickets is a prerequisite for DNR to transfer the funds from the clearing account where they are initially deposited to the Somers Cove revenue accoun t. Mr. Cunningham noted that the entirety of Somers C ove s revenue was transferred from the clearing account to the Somers Cove revenue account immediately after DNR received the necess ary docu menta tion fro m Som ers Co ve. Regarding Responden t s allegation that DNR improperly transferred a vehicle purchased with S omers Cove funds to Jane s Island , Mr. Cunningham s tated that, in accordance with long-standing DNR p olicy, the Secretary of DNR and SFPS management have the authority to assign vehicles based on need. Moreover, Mr. Cunningham testified that he had learned through interviews with SFPS management that Respondent had permitted the vehicle to be transferred because there was another vehicle available for his use at Somers Cove. Concerning the allegations regarding the payments mad e to Great Hop e, Mr. Cunningham explained that the monetary transfers from S omers Cove to Great Hope were completed pursuant to a lawful Memorandum of Agreement ( MOA ) executed in 1995 between DNR and Great Hope. The MOA was not renewed when it expired in 1998 because it was not financially advantag eous to Somers C ove. Mr. Cun ningham also ad dressed Respondent s allegation that DNR was using Somers Cove as a cash cow because the budget did not reflect the entirety of the marina s revenue from the fiscal year immedia tely -10- prior by explaining that DNR establishes the budgets for its units two years in adv ance. Mr. Cunningham also testified th at DNR did not divert the excess Somers Cove revenue, but rather placed the funds in a reserve account solely for Somers Cove s use. He further stated that the current balance in the account was approximately $250,000. DNR also presented evidence that Respondent could not have had a reasonable belief in the merit of his allegations concerning the illegal diversion of funds from Somers Cove. Colonel Barton testified that on various occasions when Respondent firs t began his employment at Somers Cove, he spoke with Respondent and provided explanations for the budgeting issues identified by Respondent. Colonel Barton also stated that when Respondent was hired, he spoke with Respondent about the structure of So mers Cove s operating budget and how the excess funds generated by the marina were placed in a reserve account. DNR also introduced memoranda from Mr. W ard to Res ponden t dating from 1999 an d 2000 in which Mr. Ward explained that Somers Cove was operating in the red because of significant deficit spending in previous years and urging Respondent to focus on operating Somers Cove within its budget. Moreover, DNR introduced a memorandum from February 2000 in which Respo ndent a cknow ledged that the b udget w as prep ared tw o years in a dvanc e. Addressing the contention that the sexual harassment claim was pretextual, Colonel Barton testified that he based his decision to discipline Respon dent only on th e probab le cause findings co ntained in M r. Bias s repo rt. He also sta ted that he d id not play any role in the initiation of the claim against Respondent, did not personally investigate the claim, and -11- had no knowledge that Respondent had previously asserted that Ms. Taylor had made inapprop riate advances tow ard him. On cross-e xamination, when asked whether he knew if Mr. Ward or Mr. DeC esare had encouraged Ms. Taylor to pursue the harassment charges, Colonel Barton state d that his kno wledge w as limited to that contained in M r. Bias s report and that from the report he knew that M r. Ward had told Ms. Taylor to document her problems in writing and advised Ms. Taylor of the proper procedure for filing a complaint with D NR s EEO . With respect to the decision to discipline Respondent, Colonel Barton testified that the decision w as his alone and that he did not con sult with any of his subord inates or Responden t s superv isors prio r to deter mining the pro per actio n. He also stated that he did not seek advice from his superiors other than to obtain their consent in the discipline. Colonel Barton as serted that his conversations with R espondent conc erning the budgetary issues at Som ers C ove did n ot influe nce h is decisio n to d iscip line R espo ndent in any w ay. Cross-examination of Colonel Barton initially focused on the merits of the underlying sexual harassment charge. Respondent s counsel asked Colonel Barton what Respondent had done to violate the State s sexual harassment policy. Once again, the ALJ sustained an objection and explained that the merits of the sexual harassment claim were not at issue in the whistleblow er case, althou gh she rem arked that R esponde nt would be permitted to introduce evidence that Colon el Barton s decision was based on som ething other than M r. Bias s probable cause finding. Respondent s counsel did not question Colonel Barton further -12- as to his knowledge of the sexual harassment allegations other than to confirm that Colonel Barton did not person ally investig ate the c laim. During re-direct of Colonel Barto n, ALJ F raser adm itted Mr. B ias s report into evidence on the condition that it was not admitted for the truth of Ms. Taylor s allegations, but rather solely as eviden ce of wh at Colone l Barton relied upon w hen he de cided to disciplin e Resp onden t. In rebuttal, Res ponden t once aga in testified. Counsel asked him if he knew whether Mr. Ward o r Mr. De Cesare h ad investiga ted allegation s that Resp ondent had prev iously raised concerning Ms. Taylor s conduct towards him to which DNR o bjected. Responde nt s counsel then proff ered that R esponde nt would testify that prior to M s. Taylor s com plaint in April of 2001, Respondent had complained to Messrs. Ward and DeCesare that Ms. Taylor had acted inapp ropriately toward him and had used profanity in the workplace. As counsel proffered, Respon dent wo uld have f urther testified that in response to Respon dent s allegations, Mr. Ward and M r. DeCesare told him not to pursue complaints against Ms. Taylor or she would do the same against him. Also, as part of his proffer, Responden t s counsel identified eight documents which collectively evidence d that: Respondent had cau tioned M s. Taylor on sev eral occasio ns in 2000 on maintaining an unprofessional demeanor in the workplace; Respondent had informed Messrs. Ward and DeCesare in 2000 about M s. Taylor s allege d improp er condu ct; and, Mr. W ard inform ed Resp ondent tha t he should be aware that Ms. Taylor might file a -13- claim against him. Although ALJ Fraser sustained DNR s objection to the admissibility of the docum ents, she noted th at the do cume nts intro duced as part o f the pro ffer, with the exception of a Octo ber 13, 200 0 memo randum in which M r. Ward warned Respondent that Ms. Taylor migh t file charges ag ainst him, ha d already bee n admitted into evidence because they were admitted in conjunction with Mr. Bias s report. The October document was admitte d therea fter wit hout ob jection a nd Re spond ent reste d his ca se. On May 27, 20 03, ALJ Fraser issued her opinion. The ALJ found that Respondent had failed to meet his burden of proof that he w as transferred in reprisal for his disclosure that funds w ere being im properly diverted from Some rs Cove for other u ses. In particular, ALJ Fraser noted that Respondent testified that he informed Mr. Ward, Mr. DeCesare, Pam Lunsford, and James Du nmyer of fisc al wrong doing, but h e could no t corrobora te his assertion that he in fact made those sp ecific disclosures to those individua ls. Moreover, ALJ Fraser noted that R esponde nt s testimon y as to the disclosures was vague and that he could not recall specific dates or times and what was said and by whom. ALJ Fraser also found that Respondent was not a credible witness because he lied about informing a member of the public about the alleged fiscal improprieties. Furthermore, ALJ Fraser determined that Respondent never disclosed the information to an individual in a position to address the proble m. Thu s, ALJ Fraser c onclud ed that R espon dent s d isclosur es wer e not pr otected . Furthermore, the ALJ found that Colonel Barton was a credible witness when he testified that h e bas ed his decisio n to d iscip line R espo ndent so lely on M r. Bias s prob able -14- cause report and did not consider Respondent s allegations of budgetary or fiscal mismanagement and that Respondent failed to introduce evidence to the contrary. Also, based on Mr. C unningh am s testim ony regarding the merit of Re spondent s budg etary concerns, ALJ Fraser fo und that Respon dent s allegations of fiscal impro priety were meritless. ALJ Fr aser ultimate ly concluded that DNR did not violate Section 5-305 of Maryland s Whistleblower Statute.3 Respondent filed a petition for judicial review in the Circuit Court for Somerset County citing three gro unds for re versal of the ALJ s d ecision: the A LJ s findin g that Respondent did not ma ke a protec ted disclosu re was co ntrary to law an d contradic ted by undisputed evidence; the ALJ s refusal to allow Respondent to introduce evidence that the sexual harassme nt claim w as speciou s and pretex tual; and, the A LJ s require ment that Respondent prove that his disclosures were w ell-founded as opp osed to whether the y were 3 Maryland Code (1993, 1997 Repl. Vol., 2001 Supp.), Section 5-305 of the State Perso nnel and P ensions A rticle provide s in pertinent p art: Subject to the lim itations o f § 5-3 06 of th is subtitle , a supervisor, appointing authority, or the head of a principal unit may not take or refuse to take any personnel action as a reprisal against an employee who: (1) discloses information that the employee reasonably believes evidences: (i) an abuse of authority, gross mismanagement, or gross wa ste of m oney; (ii) a substantial a nd specific danger to p ublic heal th or safe ty; or (iii) a viola tion of la w . . . -15- based on reasonably held beliefs. Judg e J. Owen W ise examined A LJ Fraser s decision and determined that she was not in error in finding that Respondent did not make a protected disclosure and that R esponde nt was no t disciplined in reprisal for h is alleged disc losures. Moreover, Judge Wise found that Respondent had relinquished his right to challenge the underlying sexual harassment claim when he settled his disciplinary appeal such that M r. Heller could not c ollaterally attack it thro ugh his w histleblower claim. Judge Wise concluded that the AL J did not erro neously preclude Respondent from litigating the merits of the s exual h arassm ent claim . Thereafter, Responden t filed his notice of appeal to the C ourt of Special Ap peals. In a reported opinion, the Court of Special Appeals reversed the decision of the ALJ and the Circuit Court s affirmance of that decision. The Court of Special Appeals disagreed with the ALJ s conclusion that Respondent s allegations of fiscal impropriety were not protected disclosures. The intermediate app ellate court also held that Respondent reasonably believed that he was reporting a violation by DNR officials of the statute governing DN R s budgetary practices. The Court of Special Appeals also determined that the ALJ erred by prohibiting Respondent from challenging the merits of the underlying sexua l harassme nt claim. On April 11, 2005, DNR filed a petition for writ of certiorari and presented this Court with the following questions, which we have reformulated for clarification purposes: 1. Did the ALJ erroneously determine that Respondent did not make protected disclosures as def ined by Maryland s Whistleblower Statute? -16- 2. Should the ALJ have permitted Respondent to introduce evidence challenging the merits of Ms. Taylor s sexual harassment allegations, where the ALJ determined such evidence to be irrelevant to the question of whether the agency decision maker committed an act of reprisal against Respondent and where the merits of Ms. Taylor s allegations h ad previou sly been resolved in a settlement of a disciplinary appeal filed by Respon dent? 4 On June 9 , 2005, w e granted the petitio n and is sued th e writ. Department of Natural Resources v. Heller, 387 M d. 462, 8 75 A.2 d 767 ( 2005) . We conclude that ALJ Fraser s determination that Respondent s allegations regarding alleged fiscal impropriety did not constitute protected disclosures under the Maryland Whistleblower Act, is supported by substantial evidence and is not premised on an erroneous 4 The questions se t forth in the petition fo r certiorari, as formulated by Petitioner DNR, are as follows: 1. Where the ALJ specifically found that Mr. Heller lied under oath and that he was not a credible w itness, did the Court of Special Appea ls exceed its scope of review when it found, as a matter of fact, that, at th e times M r. Heller purportedly raised allegations that Some rs Cove re venues w ere being u nlawfully diverted by DNR , Mr. Heller reasonably believed that he was alleging actual violations of law? 2. Did the Court of Special Appeals impermissibly usurp the functions of the administrative fact finder by finding that the ALJ should have permitted Mr. Heller to introduce evidence challenging the merits of Ms. Taylor s sexual harassment allegations, where the ALJ determined such evidence to be irrelevant to the question of whether the agency decision maker committed an act of reprisal against Mr. Heller and where the merits of Ms. Taylor s allegations had previously been resolved in a settlement of a disciplinary appeal filed b y Mr. Heller? -17- interpretation of the law. Moreover, we hold that ALJ F raser did not erroneously exclude Responden t s proffered evidence relating to the merits of the underlying sexual harassment claim. T herefo re, we r everse the dec ision of the Co urt of S pecial A ppeals. Standard of Review Section 10-222 of the Maryland Administrative Procedure Act, Md. Code (1984, 2002 Repl. Vol.), § 10-222 of the State Government Article, delineates that a court, upon judicial review of an administrative agency s decision, may decide to: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitu tional; (ii) exceeds the statutory authority or jurisdiction of the final decision-ma ker; (iii) results from an unlawful procedure; (iv) is affecte d by any other erro r of law; (v) is unsupported by competent, material, and substantial evidence in light of the en tire record as submitted; or (vi) is arbitrary and capricious. Md. C ode (19 84, 200 4 Rep l. Vol.), § 10-22 2(h) of the State Gove rnmen t Article . In Maryland Aviation Administration v. Noland, 386 Md. 556, 571-72, 873 A.2d 1145, 1154-55 (2005), Jud ge Eldridg e, writing fo r this Court, tho roughly exam ined the standard of review of an adjudicatory decision by an administrative agency, stating: A court s role in reviewing an administrative agency adjudicatory decisio n is narro w, United Parcel v. People s Counsel, 336 Md. 569, 576, 650 A.2d 226, 230 (1994); it is -18- limited to determining if there is substantial evidence in the record as a whole to support the agency s findings and conclusions, and to determine if the adm inistrative decis ion is premised upon a n erron eous co nclusio n of law . United Parcel, 336 Md. at 577 , 650 A .2d at 23 0. See also Code (1984, 1995 Repl. Vol.), § 10-222(h) of the State Government Article; District Council v. Brandywine Enterprises, Inc., 350 Md. 339, 349, 771 A.2d 1346, 1350-51 (1998); Catonsville Nursing v. Loveman, 349 Md. 560 , 568-69, 709 A .2d 749, 753 (199 8). In applying the substantial evidence test, a review ing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. Bulluck v. Pelham Wood Apts., 283 M d. 505, 5 12, 390 A.2d 1119, 1123 (1978). See And erson v. D ep t of Public Safety, 330 Md. 187, 213, 623 A.2d 19 8, 210 (1993). A reviewing c ourt should defer to the agency s fact-finding and drawing of inferences if they are supported by the record. CBS v. Comptroller, 319 Md. 687, 698, 575 A.2d 324, 329 (1990). A reviewing court must review the agency s decision in the light mo st favorab le to it; . . . the agency s decision is prima facie correct and presumed valid, and . . . it is the agency s province to resolve conflicting evidence and to draw inferences from tha t evidence. CBS v. Comptroller, supra, 319 Md. at 698, 575 A.2d at 329, q uoting Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 834-35, 490 A.2d 1 296, 13 01 (19 85). See Catonsville Nursing v. Loveman, supra, 349 Md. at 569, 709 A.2d at 753 (final agency decisions are prima facie correct and carry with them the presumption of v alidity ). *** Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agen cy. Thus, an administrative agency s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Lussier v. Md. Racing Commission, 343 Md. 681, 696-97, 684 A.2d 804, 811-12 (1996), and cases there cited; McCullough v. Wittner, 314 Md. 60 2, 612, 552 A.2d 881, 886 (1989 ) ( The -19- interpretation of a statute by tho se officials c harged w ith administering the statute is . . . entitled to weight ). Furthermore, the expertise of the agency in its own field should be respec ted. Fogle v. H & G Restaurant, 337 Md. 441, 455, 654 A.2d 449, 456 (1995); Christ v. Department of Natural Resources, 335 M d. 427, 4 45, 644 A.2d 3 4, 42 (1994) (legislative delegation s of autho rity to administrative agencies will often include the authority to make significant discretionary policy determin ations ); Bd. of Ed. For Dorchester Co. v. Hubbard, 305 Md. 774, 792, 506 A.2d 625, 634 (1986) ( application of the State Board of Education s expertise w ould clearly be desirable before a court attempts to resolve the legal issues). Id. at 571-72, 873 A.2d at 1154-55, quoting Board of Physician Quality Assurance v. Banks, 354 M d. 59, 67 -69, 72 9 A.2d 376, 38 0-81 (1 999). Discussion DNR argues that f or Respo ndent to prevail in a whistleblower action, he must show that the disciplinary action was a reprisal against him for his allegations of illegality or impropriety which he reasonably believed to be true and made in the context of a protected disclosu re. The Department asserts that the ALJ s determination that the disciplinary action taken against Respondent was not done in reprisal for Respondent s allegations of fiscal impropriety is supported by substantial evidence in the record and is not premised on an error of law. Moreover, DNR contends that the ALJ did not commit an error of law in excluding Responden t s proffered evidence relating to the merits of the underlying sexual harassment claim, because the evidence was irrelevant to Colonel Barton s motivation for disciplining Respon dent. Any evidence, w hich Colonel Barton was not aware of at the time of the -20- disciplinary action, according to DNR, was properly excluded. Furthermore, DNR argues that the factual issue as to whether the disciplinary action was justified based on the merits of Ms. Taylor s allegations and the findings of the probable cause report are not the proper focus of a whistleblower hearing, but rather, should have been raised in an appeal of the disciplin ary decisio n. Conversely, Respondent argues that the Court of Special Appeals correctly rejected the ALJ s conclusion that the sexual harassment claim was not pretextual because the conclusion was based on errors of law, one of which was the improper exclusion of evidence concerning the merits of the underlying sexual harassment claim, which would prove that the claim was a pretext. Moreover, Respondent contends that the ALJ s conclusions that Respondent was not disciplined in reprisal are not factual issues, but rather are legal conclusions and as such, are not entitled to the significant deference afforded her decision under the sub stantial e videnc e rule. R espondent also asserts that there was abundant evidence in the record to establish his reasonable belief in the validity of his complaints of fiscal im proprie ty and also that the c ompla ints we re well- found ed. To maintain a claim of retaliation under Maryland s Whistleblower Statute, Respondent had to esta blish that he engaged in a whistleblowing activity by making a protected disclosure under Maryland Code (1993, 1997 Repl. Vol., 2001 Supp.), Section 5305 of th e State Pers onnel and Pensions Article, wh ich provide s in pertinent p art: Subject to the limita tions of § 5-30 6 of this subtitle, a supervisor, appointing authority, or the head of a principal un it -21- may not take or refuse to take any personnel action as a reprisal against an employee who: (1) discloses information that the employee re asonably believes evidences: (i) an abuse of authority, gross mismana gement, o r gross wa ste of m oney; (ii) a substantial a nd specific danger to p ublic heal th or safe ty; or (iii) a violation of law; and ba sed on the pro tected d isclosur e, DN R took or failed to take a person nel actio n. Maryland s Whistleblower S tatute is derived from the w histleblower provisions of the Civil Service Reform Act ( CSRA ). Federal protection of government employees who made certain disclosures, which were generally embarrassing to the government, was first enacted in the C ivil Serv ice Ref orm A ct of 19 78. Montgomery v. Eastern Correctional Institution, 377 Md. 615, 627, 835 A.2d 169, 176-77 (2003). The CSRA detailed a host of prohibited practices, actions which are prohibited to be taken agains t emplo yees. Id., 835 A.2d at 177, quoting Spruill v. Merit Systems Protection Bd., 978 F.2d 679 , 682 (Fed. Cir. 1992). In 1989, Congress passed the Whistleblower Protection Act ( WPA ), Pub. L. Nos. 101-12, 103 Stat. 16 (1989), which provided additional protection for federal employees from retaliatory action d ue to w histleblo wing a ctivities. Id. The provisions of the WPA are set forth at 5 U .S.C. § 230 2 (b)(8), and provide in p ertinent part: (b) Any employee who ha s authority to take , direct others to take, recommend, or approve any personne l action, shall no t, with resp ect to such auth ority *** (8) take or fail to ta ke, or threa ten to tak e or fail to take, a personnel action with respect to any employee or applicant for -22- employment because of (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of auth ority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. The language us ed in Sectio n 5-305 o f the State P ersonnel an d Pension s Article is similar to that found in 5 U.S.C. § 2302 (b)(8). Because we have min imal case law interpreting the terms of the Maryland Whistleblower statute, we have stated that Maryland courts should loo k to the fed eral courts applying the Federal Whistleblower Protection Act because the purpo se and l angua ge of th e statute s are sub stantially sim ilar. See Montgomery , 377 Md. at 629,835 A.2d at 178 ("where the purpose and language of a federal statute are substantially the same as that of a later state statute, interpretations of the federal statute are ordinarily persuasive ), quoting Fioretti v. Maryland State Bd. of Dental Examiners, 351 Md. 66, 75- 76, 716 A.2d 2 58, 262 (1998 ).. Under Maryland law, for a statement to be considered a protected disclosure it must satisfy three elements: the statement must disclose information that the emplo yee reasonab ly believes disclose s an abu se of au thority, gro ss mism anage ment, g ross waste o f mon ey, a danger to the public h ealth or sa fety, or a vio lation of law. See Md. Code (1 993, 199 7 Repl. Vol., 2001 Su pp.), § 5-30 5 of the S tate Person nel and Pe nsions A rticle. If the disclo sure fails -23- to satisfy any one of the statutory elements, it is not considered a protected disclosure for whistle blowe r purpo ses. See Montgomery , 377 M d. at 625 , 835 A .2d at 17 5. [A]n additional element to th e first factor is that the disclosure [must] evidence an intent to raise an issue with a highe r authority who is in a position to correct the alleged wron gdoing . Hoove n-Lewis v. Caldera, 249 F.3d 259, 276 (4th C ir. 2001); Willis v. Dep t. of Agriculture, 141 F.3d 1139, 11 43 (Fed. C ir. 1998); Carr v. Social Security Admin., 185 F.3d 1318, 1326 (Fed. Cir. 1999) ( The purpose of the WPA is to encourage disclosures of wrongdoing to persons who may be in a position to act to remedy it. ). The second element to prevail on a claim under Maryland s Whistleblower Statute requires the employee to prove a causal connection between the disclosure and the pe rsonne l action. Hoove n-Lewis , 249 F.3d at 276 ( The second factor for a claim under the [W histleblowe r Protection A ct] is common to all actions for retaliation, and is in essence a requirement of a causal connection ); Willis, 141 F.3d at 1142 (stating that an employee must show that the protecte d disclo sure w as mad e and w as a con tributing factor in the pers onnel a ction). A whistleblower action by the employee intended to overturn a personnel action also will succeed only if the employee shows by a preponderance of the evidence that the protected disclosure was a contributing factor in the decision to take the personnel action. See Willis, 141 F.3d at 1143; M d. Code (1 993, 199 7 Repl. Vol., 20 01 Su pp.), § 5-302 of the State Personnel and Pensions Article ( This subtitle does not prohibit a personnel action that would have been taken regardless of a disclosure of information. ). In this regard, the -24- evidentiary requirements of a whistleblower action utilize the burden-shifting paradigm applicable to employment discrimination claims as first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In this vein, the employee first bears the burden of establishing that he made a protected disclosure and was subseque ntly subjected to an advers e personn el action, after w hich the em ployer will only escape liability by proving that the employer would h ave taken the same p ersonnel ac tion in the abs ence o f the pro tected d isclosur e. See Carr, 185 F.3d at 1322. In the present case, Respondent asserted before ALJ Fraser that his allegations concerning the unlawful diversion of Somers Cove revenue for other DNR uses should be considered protected disclosures under Section 5-305 because he reasonably believed that he was disclosing evidence of a violation of law by DNR. Based on the evidence presented at the administrative hearing, ALJ Fraser determined that Respondent s allegations could not be consid ered protec ted disclosu res under th e Whistleb lower A ct because : [t]he only evidence presented at the hearing to show [Respo ndent] disclosed that $80,000 in m arina revenues from FY 1998 was diverted by DNR to other uses; $24,000 from the marina s FY 1998 budget was used to purchase a vehicle that was assigned to Mr. Ward at Jane s Island State Park; and $40,000 from the marina s FY 1998 budget wa s diverted by DNR to the Great Hope Golf Course is [Respondent s] own testim ony. It is unclear to me why [Respondent] did not call any witnesses to corroborate his having made these disclosure s. Moreover, [Respondent s] failure to produce any meaningful supporting docum entation leads m e to con clude th at none exists. [Respondent s] sole reliance upon his own uncorroborated testimony to prove his case is problematic. His testimony was -25- vague as to specific dates, times, what was said and by whom. Also, I note the lack of any specif ic reference to the three identified alleged disclosures in the numerous memoranda betwe en [R espon dent] an d Mr. W ard and Mr. D eCesa re. ALJ Fraser also found that reporting wrongdoing allegedly committed by Annapolis to his immedia te supervisor and his imm ediate supervisor s supervisor does not constitute making a protec ted disc losure u nder th e terms of the W histleblo wer S tatute. Respondent s complaints to Mr. Ward and Mr. DeCesare addressed policies and practices established by DNR budgeting authorities. As previously stated , Respon dent, for his allegations to be considered protected disclosures under the law, must make his disclosures to individuals in a position to remedy the wrongful actions . Hoove n-Lewis , 249 F.3d at 276; Willis, 141 F.3d at 1143; Carr, 185 F.3d at 1326 ( The purpose of the WPA is to encourage disclosure of wrongdoing to persons who m ay be in a positio n to act to remedy it. ). The ALJ, as p art of her analysis of whether Respondent s disclosures should be considered protected under Maryland s Whistleb lower Sta tute, properly considered whether the allegations were made to individua ls in a position to take action to correct the alle gedly illegal actions. Therefore, we find that ALJ Fraser s determination that Respondent did not make his disclosures to individuals in a position to correct the wrongdoing is not premised on an error of law. Moreover, we determine that the ALJ s finding that Mr. Ward and Mr. DeC esare were not individuals in a position to remedy the alleged wrongdoing is supported by substantial evidence. We have explicated the concept of substantial evidence: -26- In applying the su bstantial evid ence test, a reviewing court decides whether a reasoning mind reasonably could have reached the fac tual con clusion the age ncy reach ed. A reviewing court should defer to the agency s fact-finding and drawing of inferences if they are supported by the record. A reviewing court must review the agency s decision in the light most favorable to it[, and] the agency s decision is prima facie correct and presumed valid. Board of Physician Quality Assurance v. Mullan, 381 Md. 157, 172, 848 A.2d 642, 651 (2004), quoting Banks, 354 Md. at 68, 729 A.2d at 380-81 (citations omitted). ALJ Fraser s finding that Mr. Heller s allegations concerned wrongdoing by officials in Annapolis, and that as such, revealing the wrongdoing to Mr. Ward an d Mr. D eCesare d id not cons titute disclosing the information to individuals in a position to remedy the alleged wrongdoing, is supported by the memoranda admitted as evidence during the hearing. Because the alleged illegal actions were being taken by Mr. Ward s and Mr. DeCesare s superiors at DNR, we find that a reasoning mind reasonably could have reache d the factual conclusion that Mr. Ward and Mr. DeCesare were not individuals who could correct the alleged wrongdoing. Thus, we find that the ALJ s conclusion is supported by substantial evidence. Furthermore, the ALJ s conclusion that Respondent did not make protected disclosures is premised on her determination that Respon dent was not a credible witness. We give great de ferenc e to the a gency's as sessme nt of the credibil ity of the w itnesses . Schwa rtz v. Md. Dept. of Natural Resources, 385 Md. 534, 554, 870 A.2d 168, 180 (2005). Because, as ALJ Fraser no ted, Responden t s testimony comprised the majority of his case, the fact that he was fou nd not to b e credible, w hen view ed in conju nction with his inability to produce -27- evidence corroborating his alleged disclosures to individuals beyond Messrs. Ward and DeCesare, provides substantial evidenc e in support of ALJ Fraser s holding that Respondent did not make the alleg ed prot ected d isclosur es. Respondent also argues that ALJ Fraser erroneously excluded evidence concerning the merits of the underlying sexual harassment claim. He contends that he should have been permitted to introduce such evid ence as pa rt of his show ing that the reasons for his disciplinary action were pretextual. We disagree. The determination of whether evidence offered is relevant during a hearing before an ALJ from the Office of Admin istrative Hea rings is entrusted to the sound discretion of the presiding ALJ. See Md. Code (1984, 1995 Repl. Vo l., 2001 Sup p.), § 10-21 3 (d) of the State Government Article ( The presiding officer m ay exclude ev idence that is: (1 ) incompe tent; (2) irrelevant; (3) immaterial; or (4) unduly repetitious ). As stated in Maryland Rule 5-401, Relevant evidence means evidence having any tendency to make the existence of any fact that is of conse quence to the determination of the a ction more probable or less probable than it would be without the evidence. The main issue in this case is whether the sexual harassment claim was a pretext for disciplining Mr. Heller for his disclosures. Where there are allegations of pretext, [i]t is not our province to decide whether the reason [provided by the employer for the employment action] was wise, fair, or e ven correc t, ultimately so long as it was truly the reason. Dugan v. Albermarle County Schoo l Board, 293 F.3d 716, 722 (4th Cir. 2002), quoting DeJarnette v. Corning Inc., 133 F.3d 293, 29 9 (4th Cir. 1998); see -28- also Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 559 (7th Cir. 1987) ( stating that an honestly explained reason that is ill-inf ormed o r ill-considered or poorly fou nded is no t a pretext). The focus of the inquiry is the pe rception of the e mployer . Evans v. Technologies Applications & Service, Co., 80 F.3d 954, 960-61 (4th Cir. 1996), citing Smith v. Flax, 618 F.2d 1062, 10 67 (4th Cir. 198 0). See also Braithwaite v. Timkin Co., 258 F.3d 488, 494 (6th Cir. 2001) (stating that employer s belief in the proffered reason for the employment action must be judged based upon the facts that were before it at the time the decision was made ). Thus, the only evidence that is relevant to Co lonel Barton s motivations in disciplining Mr. Heller would have been confirmatory of information known to Colonel Barton at the time of the d ecision . Colonel Barton stated that he based his d ecision to disc ipline Mr. H eller solely on the contents of Mr. Bias s probable cause report. Because Mr. Bias is D NR s EE O officer, Colonel Barton reasonably relied on the particularized facts contained therein. See Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998) (stating that the employer must be able to establish its reas onable reliance on the particularized fac ts that were before it at the time the decision was m ade ). ALJ Fraser did not preclude Resp ondent from ch allenging Colonel B arton s testimony about his motive for the disciplinary action and permitted him to introduce evidence that Colonel Barton in reality based his decision on the alleged ly protected disclosures. In Responden t s case in chief, Senator Stoltzfus and Delegate McC lenahan b oth testified that, -29- in separate conversations with M r. DeCesare, Mr. DeCesare indicated that Respondent had been removed from the marina due to budgetary and financial management issues. ALJ Fraser found that because Mr. DeCesare was not the individu al responsib le for decid ing to discipline Mr. Heller, what he believed is irrelevant to w hether the se xual harass ment claim was pretextual. Moreover, Respondent was permitted to elicit from Colonel Barton that he had no personal knowled ge regarding the allegation s in Ms. Taylor s comp laint or Mr. Bias s report. ALJ Fraser provided Mr. He ller with am ple opportunity to adduce evidence that Colonel Barton was motivated to discipline him based upon Mr. Heller s disclosures of fiscal wrongdoing, and Mr. Heller failed to do so. Respondent failed to produce any evidence impeaching C olonel Barton s assertion that Mr. Bias s report was the sole basis for his decision to discipline Mr. Heller. A reasonable mind could have concluded that DNR s disciplinary action against Respondent was not done in reprisal. Therefore, we determine that ALJ Fraser s holding is supported by substantial evidence and must be upheld. Conclusion We conclude that ALJ F raser s determ ination that R esponde nt s allegations regarding alleged fiscal impropriety did not constitute protected d isclosures under the Maryland Whistleblower Act to be supported by substantial evidence and not to be premised on an erroneous interpretation of the law. Moreover, we hold that ALJ Fraser did n ot erroneou sly exclude Respon dent s prof fered evid ence relating to the merits o f the unde rlying sexual harassment claim. Therefore, we shall reverse the decision of the Court of Special Appeals. -30- JUDGMENT OF THE COURT OF SPECIAL APPEALS REV ERS ED. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR SOMERSET COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT. -31- In the Circu it Court for S omerset C ounty Case No. 19-C-03-009091 AA IN THE COURT OF APPEALS OF MARYLAND No. 23 September Term, 2005 DEPARTMENT OF NATURAL RESOU RCES v. JAMES HELLER Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Raker, J., which Bell, C .J., and H arrell, J., joi n. Filed: February 9, 2006 Raker, J., dissenting, in which Bell, C.J., and Harrell, J., join: I would affirm the judgment of the Co urt of Spe cial Appe als remand ing the case to the Office of Administrative Hearings ( OAH ) for a de novo hearing, an d clarify that, to the extent that certain language in the lower court opinion could be interpreted as making factual findings, it does not do so, and that the OAH on remand wo uld not be bound by these apparent findings. The majority opinion offers two grounds for reversal, neither of which is persuasive. The majority s holding that the Administrative Law Judge ( ALJ ) at respondent s hearing did not err in concluding that respondent failed to make a protected d isclosure be cause his allegations were not in fact made to persons with authority to act upon them is both procedu rally and substantively erroneous. It is procedurally erroneous because p etitioner did not raise this issue in its petition to this Court for a writ of certiorari. Further, eve n if this issue were properly before the Court, the ALJ s conclusion should not be upheld. The majority s holding that the ALJ did no t err in excluding as irrelevant respon dent s proffered evidence concernin g the merits o f the sexua l harassme nt charges a gainst him is likewise erroneou s. The prof fered evid ence wa s relevant be cause it tends to show that petitioner s stated reason for the employment action taken against respondent was a pretext for retaliation a gainst respo ndent. I. In its petition for a writ of certio rari, petitioner presented the following two questions for our review: 1. Where the ALJ specifically found that Mr. Heller lied under oath and that he was not a credible witness, did the Court of Special Appea ls exceed its scope of review when it found, as a matter of fact, that, at the times Mr. He ller purportedly raised allegations that Somers Cove revenues were being unlawfully diverted by DNR, Mr. Heller reasonably believed that he was alleging actual violations of law? 2. Did the Court of Special Appea ls impermissibly usurp the functions of the administrative fact finder by finding that the ALJ should have permitted Mr. Heller to introduce evidence challenging the merits of Ms. Taylor s sexual harassment allegations, where the ALJ determined such evidence to be irrelevant to the question of whether the agency decision maker committed an act of reprisal against Mr. Heller and where the merits of Ms. Taylor s allegations h ad previou sly been resolved in a settlement of a disciplinary appeal filed by Mr. Heller? The majority opinion, purporting to reform ulate the se ques tions f or clarif ication p urpose s, restated petitioner s questions as follows: 1. Did the ALJ erroneously determine that Respondent did not make protected disclosures as def ined by Maryland s Whistleblower Statute? 2. Should the ALJ have permitted Respondent to introduce evidence challenging the merits of Ms. Taylor s sexual harassment allegations, where the ALJ determined such evidence to be irrelevant to the question of whether the agency decision maker committed an act of reprisal against Respondent and where the merits of Ms. Taylor s allega tions had p reviously been resolved in a settlement of a disciplinary appeal filed by Respondent? -2- Maj. op. at 16-17. Although the majority s restatement of the second question plausib ly could be characterized as a reformulation simply for clarification p urposes, its restatement of the first question cannot. Petitioner s first question presents the issue of whether the Court of Special Appeals exceeded its scope of review by making a factual finding that respondent reasonab ly believed he was alleging actual violations of law wh en he ma de his allegations concerning the fiscal management of Somers Cove. It does not raise the issue of whether the Court of Special Appeals erred in setting aside the ALJ s finding that respondent did not make a protected disclosure because the DNR officials he made his allegations to were not in a position to remedy the alleged wrongdoing. The majority s reformulation of the first question, howev er, materially alters the meaning of the first qu estion so tha t it does encompass this issue, recasting the question as raising the issue of the propriety of all of the ALJ s conclusions that bear on the issue of whether respondent made a protected disclosure, even though petitioner simply sought to raise the issue of whether the Court of Special Appea ls erred by mak ing factua l findings at th e appellate le vel. Maryland Rule 8-131(b)(1) governs the scope of review in the Court of Appeals when the Court is reviewing a c ase where there has been a prior appellate decision. It provides as follows: Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capa city, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the -3- Court of Appeals. Whenever an issue raised in a petition for certiorari or a cross-petition involves, either expressly or implicitly, the assertion that the trial court committed error, the Court of Appeals may consider whether the error was harmless or non-prejudicial even though the matter of harm or prejudice was n ot raised in the pe tition or in a cross- petition . Md. R ule 8-131(b)(1) (emphasis added). Although the use of ordinarily in the language of the Rule vests this Court with discretion to consider issues not raised in the petition or cross-petition for a writ o f certiorari, the C ourt has ex ercised this dis cretion carefully and explicitly, and has departed from the general rule set down in Rule 8-131(b)(1) only when it found comp elling re asons to do so. See, e.g., Ann e Arund el County Bd. of Educ . v. Norville, 390 Md. 93, ___, 887 A.2d 1029, 1035-36 (2005) (deciding case on grounds of res judicata even though issue of res judicata was not raised in petition for writ of certiorari because doin g so w ould prom ote ju dicia l eco nom y and avoid un nece ssary expense by obviating the need f or a separa te appeal); Lizzi v. WMATA, 384 Md. 199, 203, 205-06, 862 A.2d 1017, 1020, 1021-22 (2004) (sam e); Matthews v. Amberwood, 351 Md. 544, 580-81, 719 A.2d 119, 136-37 (1998) (considering issue not raised in petition for writ of certiorari because otherwise the case w ould have to be reman ded to the Court of Special Appeals for consideration of the issue, which would be contrary to the interests of judicial economy and expedition ). In Wynn v . State, 351 Md. 307, 718 A.2d 588 (1998), we explained the scope of the discretion under R ule 8-131 (b)(1) to consider issues not raised in a petition for a writ of certiorari as follows: -4- The word ordinarily [in Rule 8-131(b)(1)] does indicate that there are exc eptions . Nevertheless, neither the use o f the word ord inarily in Rule 8-131(b) nor the principle embodied in the rule, has been treated as granting a general disc retion to reach an issue whenever the Court so desires . . . Instea d, we hav e held that the excep tions to the principle embodied in Rule 8-131(b) are limited to extraordinary circumstances. Id. at 322-23, 718 A.2d at 596 (quoting State v. Broberg, 342 Md. 544, 573, 677 A.2d 602, 616 (1996) (Eldridge, J., dissenting)) (citations and quotations omitted). Accordingly, the Court has often declined to exercise its discretion under Rule 8-131(b)(1) to consider an issue not raised in the petition for a writ of certiorari, even when the parties have raised the issue in their brie fs. See, e.g ., Purnell v. State, 375 Md. 678 , 686 n.5, 827 A.2d 68, 73 n.5 (2003); Clark v. Elza, 286 Md. 208 , 219 n.4, 406 A.2d 922, 928 n.4 (197 9). In the case sub judice, the majority has not offered any reason at all, let alone a compelling reason, for departing from the general rule that issues not raised in a petition for a writ of certiorari sh ould not be considered by the Court. Nor does it seem that it could offer such a reason. The issue of whether the ALJ s finding that respondent did not make a protected disclosure because the DNR officials he made his allegations to were not in a position to remedy the alleged wrongdoing was premised on a correct legal standard is not an issue that w ould be rais ed on rem and and r esult in a separate appeal bec ause the Court of Special Appeals has already decided this issue. Thus, the interests of judicial economy and avoiding unneces sary expense that the Co urt found sufficient to justify exercising its -5- discretion to consider an issue not raised in a petition for a writ of certiorari in Norville, Lizzi, and Matthews are not implicated in the present case. In the absence of a compelling reason to depart from the general rule of Rule 8131(b)(1), this case does not present any extraordinary circumstances that would warrant the Court s exercising its discretion under Rule 8-131(b)(1) to consider the issue addressed by the majority. To the contrary, the m ajority s consider ation of the issue is, under the circumstances, unfair to the respondent. The issue was plainly raised in and addressed by the Court of Spe cial Ap peals. See Heller v. DNR, 161 Md. App. 299, 321-22, 868 A.2d 925, 937-38 (2005). A lthough the Court of Special A ppeals s reso lution of this issue was unfavor able to petitioner, it elected not to raise the issue in its petition for a writ of ce rtiorari. Under these circumstances, respondent was entitled to rely on the petitioner s apparent decision no t to pursue th is issue in proc eedings b efore this C ourt. Furthermore, as to the me rits of the issue, even if the issue of w hether the ALJ s finding that respondent did not make a protected disclosure because the DNR officials he made his allegations to were not in a position to rem edy the alleged wrongd oing were properly before the Court, it is not apparent that it should be resolved as it is by the majo rity. In interpreting the Maryland W histleblower Law, Md. Code (1994, 2004 Repl. Vol., 2005 Cum. Supp.), § 5-301 et seq. of the State Personnel and Pensions Article, the Court has relied on federal caselaw interpreting the federal Whistleblower Protection Act, Pub. L. No. 10112, 103 Stat. 16 (1989) (amending 5 U.S.C . § 2302 (b)(8)). See Montgom ery v. E.C.I., 377 -6- Md. 615, 62 9, 835 A .2d 169 , 178 (2003) (cases interpreting federal Whistleblower Protection Act highly persuasive in interpreting Maryland Whistleblower Law). Accordingly, the majority relies on three fede ral cases to support its po sition that in ord er for a disclo sure to be a protected disclosure, the disclosure must be made to a person who actually has the authority to remedy the alleged w rongdoin g: Hooven-Lewis v. Caldera, 249 F.3d 259 (4th Cir. 2001) , Carr v. Social Security Administration, 185 F .3d 1318 (Fed. Cir. 1999), and Willis v. Deptartment of Agriculture, 141 F.3d 1139 ( Fed. C ir. 1998 ). See maj. op. at 23-26. None of these cases, however, support the majority s position. Regarding the issue of to whom a disclosure must be made in order for it to be a protecte d disclo sure, Hoove n-Lewis said the following: An additional element to the first factor [i.e., the protected disclosure element] is that the disclosure evidence an intent to raise an issue with a high er authority wh o is in a position to correct the alleged wrongdoing Hoove n-Lewis , 249 F.3d at 276 (emphasis added) (citing Carr, 185 F.3d at 1326; Willis, 141 F.3d at 11 43). Similarly, in Willis, the court held that there was n o protected disclosure because the employee s disclosure s did not evidence an intent to raise the issue with higher authorities who were in a position to correct the alleged wrongdoing. Willis, 141 F.3d at 1143 (em phasis added). D espite the fac t that Hoove n-Lewis and Willis merely require that the employee s disclosures be such that they show that the employee intended to bring the alleged wrongdoing to the attention of officials with the authority to remedy it, the majority goes much fu rther and turn s this intent requirement into a factual requirement that the -7- employee must make his disclosures to individuals in a position to remedy the disclosures in order for the disclosures to be protected disclosures. Maj. op. at 26 (citing Hoove n-Lewis , 249 F.3d at 276; Willis, 141 F.3d at 1143). Carr does not lend any more support to the majority s position than Hoove n-Lewis or Willis. In Carr, the court stated that [t]he purpose of the Whistle blower P rotection A ct is to encourage disclosure of wrongdoing to persons who m ay be in a positio n to act to remedy it. Carr, 185 F.3d at 1326 (quoting Horton v. Dep t of the Navy, 66 F.3d 279, 282 (Fed. Cir. 1995) ). Impo rtantly, Carr says that the purpose is to encourage disclosure to those who may be in a position to act to remedy the wrongdoing, not to those who are in fact in a position to remedy the wrongdoing. The majority offers no reason for its departure from Hoove n-Lewis and Willis on this issue. The majority s requirement that an employee must make a disclosure to someone who in fact is in a position to remedy the alleged wrongdoing substantially weakens the Maryland Whistleblower Law, in frustration of its evident purpose. The Maryland Whistleblower Law prohibits reprisals ag ainst an emplo yee who . . . discloses information that the employee reasonab ly believes eviden ces on e of the enum erated typ es of w rongd oing. S tate Pers . & Pen. Art. § 5-305 (emphasis added). Thus, as the text of the statute makes plain, the Maryland Whistleblower Law was intended to protect employees from reprisals for allegations of wron gdoing th at, although reasonably believed to be correct by the employee, are nonetheless m istaken . See also Horton, 66 F.3d at 283 (interpreting federal -8- Whistleblower Protection Act, holding that the statute requires only that the whistleblower had a reasonable belief of wrongdoing). The majority s requirement that the employee s disclosure be made to someo ne who in fact has a uthority to reme dy the alleged wrong has the practical effect of removing the protection of the Maryland Whistleblower Law in cases where an employee makes reasonable, but mistaken, a llegations of wrongd oing. This is so because, in many instances, when an employee makes a reasonable allegation of wrongdoing that, as a ma tter of fa ct, turns o ut to be in correct , there will be no person at all who is in a position to act to remedy the allegation of wrongdoing, precisely because there is no actual wro ng to remedy. 5 II. The ALJ committed an error of law in e xcluding th e evidenc e pertaining to the merits of Taylor s sexual h arassmen t allegations an d in refusin g to permit re sponden t to cross-examine Barton reg arding the a llegations. A ssuming th e evidenc e was no t irrelevant, respondent had a right to offer it in the hearing . See Md. Code (1984, 2004 Repl. Vol., 205 Cum. Supp.), § 1 0-213(f)(2 ) of the State Govern ment Ar ticle. Likew ise, he had a right to cross-examine Barton on the issue of the merits of the sexual harassment allegations if such 5 In effect, then, the majority s position places a heavy burden on employees contemplating disclosures of wrongdoing to determine in advan ce of the disclosure whether their allegations are in fact correc t. This is particularly troublesome given that, in many instances, a particular employee may not have access to all the information that would be necessary to determine with certainty whether any wrongdoing took place. -9- cross-examination was relevant to a con tested iss ue in the case. St ate Go v t Art., § 10-213(f)(3). Evidence pertaining to the merits of the Taylor s sexual harassment claim was relevant in the hearing because it was relevant to the contested issue of w hether petitioner s claim that Barton was reassigned because of the allegations and the subsequent finding that they were supp orted by proba ble c ause was reall y a pretext for re taliating again st him for h is allegations that petitioner had comm itted fisc al impro prieties. See Rogers v . Dep t of D ef. Depen dents Schs., 814 F.2d 1549, 1555 (Fed. Cir. 1987) (under federal Whistleblower Protection Act, employee must show that the independent grounds for the adverse action did not outweigh th e retaliatory motive ). Petitioner argues that respondent s excluded evidence was not relevant because none of it concerned facts and circumstances of Ms. Taylor s allegations that were not known to . . . Barton at the time he to ok the discip linary action. Th e majority appa rently adopts this argumen t, holding that the only evidence that is relevant to Colonel Barton s motivations in disciplining Mr. Heller would have been confirmatory of information known to Colonel Barton at the time of the decision. Maj. op. at 29. This argument fails. The majority and petitioner base this claim on the assumption that Barton s testimony that he reassigned respondent based solely on the investigative report concluding that there was probable cause that Taylor s a llegation s is corre ct. See id. But this assumption assumes that the contested issue in the case a s to the pred ominant m otivation fo r Barton s transfer of respondent has already been re solved in petitio ner s fa vor. As such, it is question-be gging to m ake this -10- assumption in deciding whether respondent s proffered evidence is relevant to the issue of Barton s predominant m otivation for responden t s transfer.6 Responden t s evidence, to the extent it showed that Taylor s allegations were m eritless, wou ld tend to ma ke it less likely that Barton acted on the basis of the report, and thus more likely that he acted in retaliation. Therefore, it is relevant. See Md. Rule 5-401 (evidence is relevant if it has any tendency to make the existence o f any fact that is of consequence to the determination of the action more probable o r less probable than it wou ld be without the evide nce (emphasis ad ded)). 6 The majority relies on Smith v. Chrysler Corp., 155 F.3d 799, 80 7 (6th Cir. 1998) to support its position that Colonel Barton s testimony that he simply relied on Bias s report in deciding whether to discipline respondent provides grounds for the ALJ s exclusion of the evidence on relevance grounds. See maj. op . at 29. Smith, however, does n ot support the majority s position. The issue before the court in Smith was whether to adopt the honest belief rule for deciding whether an employer s proffered reason for an employment action is a pretext applied by the Seventh Circuit in cases under the Americans with Disa bilities Act, 42 U.S.C. § 12101 et seq. Smith, 155 F.3d at 806. T he honest belief rule adopted by the Seventh Circuit prov ides that so lo ng as the em ployer hones tly believed in the proffered reason given for its employment action, the employee cannot establish pretext even if the employer s reason is ultimately found to be mistaken, foolish, trivial, or baseless. Id. (citing Kariotis v. Navistar Int l Transp. Corp., 131 F.3d 672, 67 6 (7th Cir. 1997)). In Smith, the Sixth Circuit rejected the Seve nth Circuit s approach. Rather, the court held that in order for an employer s proffered non-discriminatory basis for its employment action to be considered honestly held, the employer must be ab le to establish its rea sonable reliance on the particularized facts that were before it at the time the decision was made. Smith, 155 F.3d at 807. Further, eve n if the em ployer presen ts evidence tending to show this, the employee should still have the o ppo rtunity to p rese nt ev iden ce to the c ontrary. Id. This is so because if the employer m ade an erro r too obvio us to be un intentional, perhaps it had an unlawful motive for doing so. Id. (quoting Fischbach v. Dist. of Columbia Dep t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). Thus, if the Smith approach were to be applied to establishing pretext under the Maryland Whistleblower Law, respondent would be entitled to present evidence challenging the factual bas is of the em ployment ac tion taken a gainst him by petitioner. -11- If an administrative agency adjudicatory decision is premised on an erroneous conclusion of law , it is subje ct to reve rsal. State Gov t Art. § 10-222(h)(3)(iv); Montgomery, 377 Md. at 625, 835 A.2d at 175-76 (2003). The decision of the ALJ was premised in part on her finding that there was no repr isal, and this finding in turn was premised on her erroneous leg al conclusion that respond ent s proffered evidence was not relevant. 7 Therefore, reversal is prope r. III. Turning to the issue placed before the Court by petitioner s first certiorari question, I would answer it in the affirmative, and make clear that, to the extent the opinion of the Court of Special A ppeals sug gests that it ma de a factua l finding tha t responde nt reasonab ly believed he was alleging a violation of law, this finding was improper and would not bind the OAH on remand. The Court of Special Appeals, discussing the issue of responde nt s reasonable belief, stated as follows: The DNR investigator, th e ALJ, an d the circuit co urt all emphasized that Heller s complaints lacked merit, though we note that none explained why DNR could use funds earmarked for Somers Cove for personnel or property at other DNR facilities when section 5-908.1 prohibits that. Of significance to 7 The AL J also foun d that respo ndent did not make a protected disclosure, but the Court of Special Appeals held that the ALJ based this finding on an erroneous interpretation of the M aryland W histleblo wer A ct. See Heller, 161 Md. App. at 317-27, 868 A.2d at 934-41. As discussed supra in § I, this issue is not properly before the Court because petitioner did not seek rev iew of this h olding in its pe tition for a w rit of certiorari. -12- this appeal, however, is that none proceeded to consider the material question for purposes of assessing whether Heller s communications qualified as protected disclosures, i.e., whether Heller made them in a good faith belief that SCM funds were being used in violation of section 5-908.1. We hold that, throug h his Janua ry 13, 2000 m emo, his discussions with DN R mana gement, an d his other written complain ts to his DNR supervisors, Heller made protected disclosures alleging that DNR policies and pra ctices with respect to revenue generated by Some rs Cove Marina and funds appropriated for the marina were prohibited by NR section 5-908 .1. Heller, 161 Md. App. at 327, 868 A.2d at 941. Unfortunately, this language is ambiguous. It seems to permit two readings. First, it could be read to hold that the ALJ made an error of law, applying the wrong legal standa rd in interpreting the Maryland Whistleblower Law because she interpreted reasonable belief as used in the Act to require the trier of fact to measure objectively what Heller knew and believed at the time he made [the] disclosures, rather than what DNR officials knew and believed, what Heller later learned, or what DNR and the ALJ ultimately concluded. Heller, 161 M d. App . at 326, 8 68 A.2 d at 940 . Second, it could be read to go further, to conclude as a factual matter that respondent did have a reasonable belief that he was disclosing violations of law. I would make clear that, to the extent the language of the opinion of the Court of Special Appeals supports this second reading, the finding was improper and would not bind the OAH on remand. As a general rule, fact finding is the province of triers of fact, not of appellate courts. See, e.g., Dykes v. State, 319 Md. 206, 224, 571 A.2d 12 51, 1260 (1990 ). -13- With respect to judicial review of agency adjudicato ry decisions, State Govern ment Ar ticle § 10-222 gives the C ircuit Court reviewing the decision the power to require the presiding officer at the agenc y adjudication to take addition al evidence prior to a hea ring in the Circuit Court, State G ov t A rt. § 10-222(f)(2), and to modify the agency s factual findings in light of the additional evidence, State Gov t Art. § 10-222(f)(3), but it does not give the reviewing court the power to take additional evidence or to make factual findings in its disposition of the petition for review of the a gency de cision. See State Gov t Art. § 10-222(h)(3) (giving reviewing court the po wer to m odify the dec ision of the agen cy, but not the po wer to modify its factual findings); but see State Gov t Art. § 10-222(g)(2) (permitting reviewing Circuit Court to consider testimony offered by a party, not in the reco rd be fore the a gency, regarding alleged irregula rities in pr ocedu re befo re the pr esiding office r). Ther efore, the Court of Special Appeals did not have the power to make a factual finding that respondent had a reasonable belief that he was disclosing a violation of law. Accordingly, I would affirm the judgment of the Court of Special Appeals. -14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
