Could a newly elected Maryland county treasurer fire the office employees hired by the previous treasurer?

Plain-English summary

The President of the Cecil County Commissioners asked the Attorney General whether the newly elected Cecil County Treasurer had the authority to retain or terminate the existing employees of the Treasurer's office, since a local law, §1-31A of the Cecil County Code, made the Treasurer the "appointing authority" for that office's staff. The opinion concluded that under the traditional at-will employment doctrine, a newly elected appointing authority generally has the power to dismiss personnel hired by a predecessor, without needing to give notice or state a reason. But it identified three limits on that power drawn from Maryland and federal law: a dismissal could not violate a specific statutory protection, such as Maryland's ban on employment discrimination based on race, sex, or other protected traits, or laws barring retaliation for filing a workers' compensation claim or having wages garnished; it could not violate a clear mandate of public policy of the kind the Maryland Court of Appeals had recently recognized as grounds for a wrongful or abusive discharge claim; and it could not penalize an employee for exercising First Amendment rights, whether through political patronage dismissals or through firing an employee for speaking out on a matter of public concern. Because the case law on political-patronage terminations was still unsettled as of 1983, the opinion specifically cautioned the incoming Treasurer to weigh that risk carefully before dismissing any existing employee.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion described First Amendment patronage-dismissal case law as unsettled even at the time, noting that federal circuits disagreed over whether political discrimination had to be the "sole" reason for a firing or merely a "substantial" or "motivating" factor. Maryland's wrongful discharge and public-employee First Amendment case law, along with the specific statutes referenced here (including Article 49B, Article 101, and Article 89, since renumbered or recodified in the Maryland Code), have continued to develop since 1983; verify current Maryland employment and constitutional law before relying on any specific rule described here.

Common questions

Could a new county official fire employees the previous official had hired, just because they wanted their own staff?
Generally yes, according to this opinion, if the position was an at-will one and no statute, merit system, or contract said otherwise. Under Maryland common law dating to cases like Townsend v. Kurtz, an appointing authority's power to appoint generally carries with it the power to remove, including the power to remove a predecessor's appointees.

Were there any employees a new appointing authority could not fire without risk?
Yes. The opinion identified employees who could not be dismissed for reasons that violated specific anti-discrimination or anti-retaliation statutes (covering race, sex, age, workers' compensation claims, and wage garnishment, among others), or for reasons that violated a public policy Maryland courts had recognized, following the Court of Appeals' then-recent decision in Adler v. American Standard Corporation recognizing a cause of action for wrongful or abusive discharge.

Could a Maryland county treasurer fire an at-will employee because of that employee's political party or political activity?
No, according to this opinion, at least not solely because of political affiliation. It relied on the U.S. Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel holding that dismissing a non-policymaking employee because of political belief and association violates the First Amendment, though the opinion noted lower courts disagreed over exactly how large a role political considerations had to play before a firing became unconstitutional.

Could an employee be fired for publicly criticizing how the Treasurer's office was run?
It depended on what the employee said, under this opinion. Citing Pickering v. Board of Education, the opinion explained that public employees have First Amendment protection for speech on matters of public concern that does not disrupt the workplace, but citing the Supreme Court's then-recent decision in Connick v. Myers, speech that amounted only to an internal personal grievance about office policy was not protected and could support a dismissal.

Background and statutory framework

The opinion began from the common-law rule that an employee hired for an indeterminate term serves at the pleasure of the appointing authority and may be removed "without notice and without charges being preferred or reasons assigned," citing Townsend v. Kurtz and later Maryland cases, and concluded that this power to remove ordinarily extends to a predecessor's appointees as well. It then identified three categories of limits on that power. First, specific Maryland statutes barred discharge for protected reasons: Article 49B, §16(a)(1) prohibited discharge based on race, color, religion, sex, age, national origin, marital status, or unrelated disability; Article 101, §39A protected employees who filed workers' compensation claims; the Commercial Law Article's §15-606 protected employees whose wages were garnished; and Article 89, §43 protected involvement in Occupational Safety and Health Act proceedings.

Second, the opinion applied the Court of Appeals' recent decision in Adler v. American Standard Corporation, which recognized a cause of action for wrongful or abusive discharge whenever an employer's motive for firing an at-will employee "contravene[d] some clear mandate of public policy," while requiring the employee to point to a specific statute or existing rule of law, not merely a general sense of unfairness, to support the claim. Third, and most extensively, the opinion addressed First Amendment limits on public employers, distinguishing political patronage dismissals, governed by Elrod v. Burns and Branti v. Finkel and subject to an exception for genuine policymaking positions, from dismissals for protected speech on matters of public concern under Pickering v. Board of Education, tempered by the Supreme Court's contemporaneous decision in Connick v. Myers that speech amounting only to an internal personnel grievance is not constitutionally protected. The opinion surveyed a split among federal circuits over how central a role political considerations had to play in a firing decision, comparing decisions requiring the "sole" motivating factor be political against those requiring only a "substantial" or "motivating" factor, and cautioned the incoming Cecil County Treasurer to take this unsettled and evolving area of law carefully into account before dismissing any existing at-will employee.

Citations

Statutes:

• §1-31A of the Cecil County Code (Treasurer as appointing authority for office employees)
• Article 49B, §16(a)(1) (bar on discharge based on race, sex, age, and other protected traits)
• Article 101, §39A (bar on discharge for filing a workers' compensation claim)
• Commercial Law Article, §15-606 (bar on discharge for wage garnishment)
• Article 89, §43 (bar on discharge for OSHA-related proceedings)
• 42 U.S.C. §1983 (federal civil rights claims against state actors)

Cases:

• Townsend v. Kurtz, 83 Md. 331, 342 (1896)
• Washington, Baltimore and Annapolis Railroad Company v. Moss, 127 Md. 12, 21 (1915)
• Giardina v. Farms Company, 25 Md. App. 201, 206 (1975)
• Bishop v. Wood, 426 U.S. 341 (1976)
• Adler v. American Standard Corporation, 291 Md. 31 (1981)
• Adler v. American Standard Corporation, 538 F.Supp. 572 (D.Md. 1982)
• Teays v. Supreme Concrete Block, 51 Md. App. 166, 167 (1982)
• Harless v. First National Bank in Fairmont, 246 S.E.2d 270, 273, 275 (W.Va. 1978)
• Fortune v. National Cash Register, 364 N.E.2d 1251, 1255-57 (Mass. 1977)
• Monge v. Beebe Rubber Company, 316 A.2d 549, 551 (N.H. 1974)
• Branti v. Finkel, 445 U.S. 507, 515-16 (1980)
• Elrod v. Burns, 427 U.S. 347, 355, 359 (1976)
• Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir. 1981)
• Mt. Healthy City School District v. Doyle, 429 U.S. 274, 283-84 (1977)
• DeBleeker v. Montgomery County, 292 Md. 498, 506 (1982)
• DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 447 (1980)
• DeLong v. United States, 621 F.2d 618, 623 (4th Cir. 1980)
• Tanner v. McCall, 625 F.2d 1183 (5th Cir. 1980)
• Visser v. Magnarelli, 530 F.Supp. 1165 (N.D. N.Y. 1982)
• Brady v. Paterson, 515 F.Supp. 695 (N.D. N.Y. 1981)
• Ramey v. Harber, 431 F.Supp. 657 (W.D. Va. 1977)
• McMullan v. Thornburgh, 508 F.Supp. 1044 (E.D. Pa. 1981)
• Pickering v. Board of Education of Township High School District 205, Illinois, 391 U.S. 563, 571-72 (1968)
• Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979)
• Connick v. Myers, 461 U.S. 138 (1983)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC EMPLOYMENT

"Appointing Authority"—At-Will Employment—Limitations on Dismissal—Abusive Discharge—First Amendment—Political Affiliation and Free Speech.

May 5, 1983

The Honorable Frank D. Ragan
President
Cecil County Commissioners

You have requested our opinion on the authority of the Cecil County Treasurer-elect, on assumption of office, to retain or terminate employees of the County Treasurer's office. Specifically, you refer to §1-31A of the Cecil County Code, which provides: "The Treasurer is the appointing authority for all employees of that office."1

For the reasons given below, we believe that a newly elected appointing authority, such as a newly elected County Treasurer, generally has the power to dismiss personnel appointed by a predecessor. However, any dismissal would be impermissible if: (i) it violates a specific statutory requirement; (ii) it violates public policy grounded in some particular rule of law; or (iii) it penalizes an employee's exercise of his or her First Amendment rights.

1 For purposes of this Opinion, we assume that no other provisions of the public local laws of Cecil County speak to this subject. Your county attorney is best qualified to advise you whether or not this is the case.

I
At-Will Employment

At common law, an individual hired for an indeterminate period serves at the pleasure of the "appointing authority". In such a situation, "where there is no limit fixed to the term [of] office and the appointee holds merely at the will of the appointing power, he may be removed without notice and without charges being preferred or reasons assigned." Townsend v. Kurtz, 83 Md. 331, 342 (1896). See Washington, Baltimore and Annapolis Railroad Company v. Moss, 127 Md. 12, 21 (1915); Giardina v. Farms Company, 25 Md. App. 201, 206 (1975).

Thus, absent a provision to the contrary in an employment contract or merit system statute, the power to appoint generally carries with it the power to remove. Furthermore, this power includes the right of an appointing authority to remove those persons appointed by his or her predecessor in office.2

Nevertheless, the ability of an employer to terminate an at-will employee is not absolute.

2 We have been advised that employees of the County Treasurer's office are not protected under the County's merit system of employment. Accordingly, we do not address the extent to which employment in the Treasurer's office may implicate property interests protected by the Due Process Clause of the Fourteenth Amendment. See Bishop v. Wood, 426 U.S. 341 (1976).

II
Limitations under Maryland Law

A. Statutory Restrictions

Maryland law prohibits the discharge of any employee "because of such individual's race, color, religion, sex, age, national origin, marital status, or physical or mental handicap unrelated in nature and extent so as to reasonably preclude the performance of the employment". Article 49B, §16(a)(1).

Other statutes similarly limit the ability of an employer to terminate an at-will employee. For example, an employee may not be discharged for filing a workmen's compensation claim (Article 101, §39A); for having his or her wages attached (Commercial Law Article, §15-606); or for involvement in proceedings under the Occupational Safety and Health Act (Article 89, §43).

B. Public Policy

The Maryland Court of Appeals recently joined several other jurisdictions in further limiting the traditional contract rule of termination at will. In Adler v. American Standard Corporation, 291 Md. 31 (1981), the Court held that a cause of action for wrongful or abusive discharge lies whenever an employer's motives for terminating an at-will employee "contravene[s] some clear mandate of public policy". 291 Md. at 47.3 See also Teays v. Supreme Concrete Block, 51 Md. App. 166, 167 (1982); Harless v. First National Bank in Fairmont, 246 S.E.2d 270, 273, 275 (W.Va. 1978); Fortune v. National Cash Register, 364 N.E.2d 1251, 1255-57 (Mass. 1977); Monge v. Beebe Rubber Company, 316 A.2d 549, 551 (N.H. 1974).

In this regard, judicial determination of public policy is not always confined to "legislative enactments, prior judicial decisions or administrative regulations". Adler, 291 Md. at 45. However, recognizing the General Assembly's function to declare and define public policy, the Court indicated in Adler that an employee alleging abusive discharge must cite both factual details and the "specific statutory provision ... or other existing rule of law that particularly prohibits the claimed misconduct". 291 Md. at 46. See also Adler v. American Standard Corporation, 538 F.Supp. 572 (D.Md. 1982).

3 In Adler, an at-will employee alleged that his termination was motivated by his discovery of corporate impropriety, including bribery of foreign officials, falsification of documents to escape tax liability, and violations of federal and state antitrust laws. See Adler v. American Standard Corporation, 538 F.Supp. 572 (D.Md. 1982).

C. Summary

Under Maryland law, therefore, to the extent that an employer does not contravene an express statutory prohibition or "some [other] clear mandate of public policy", he or she has the authority to remove, with or without cause, an employee appointed for an indefinite term by a predecessor.

III
First Amendment

The ability of a governmental (or "public") employer to terminate an at-will employee is also circumscribed by the First Amendment to the United States Constitution. Specifically, the discharge of an employee because of that employee's political affiliation or activity is considered an unconstitutional impairment of First Amendment rights of belief and association. Branti v. Finkel, 445 U.S. 507, 515-16 (1980); Elrod v. Burns, 427 U.S. 347, 355, 359 (1976); Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982). See also Mt. Healthy City School District v. Doyle, 429 U.S. 274, 283-84 (1977); DeBleeker v. Montgomery County, 292 Md. 498, 506 (1982); DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 447 (1980).4

4 Moreover, under 42 U.S.C. §1983 (1979), federal courts may entertain claims against any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law . . ." (Emphasis added.)

In Elrod v. Burns, the Supreme Court found that a threatened dismissal of a non-civil service employee for political patronage reasons "penalizes [the] exercise" of "protected belief and association". 427 U.S. at 359. Later, in Branti v. Finkel, the Court again found that individuals serving at the pleasure of a public official were improperly discharged because of their political affiliation. The Court summarized the constitutional test as follows: "[U]nless the Government can demonstrate 'an overriding interest ... of vital importance,' . . . requiring that a person's private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment." 445 U.S. at 515-16 (citations omitted).5

5 We note, however, that the Supreme Court has differentiated patronage dismissals limited to administrative policymaking positions, so that "representative government [is] not . . . undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate". Elrod, 427 U.S. at 367. In this context, the Court summarized: "[T]he question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518. Another court characterized the test for policymaking status thus: "whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982).

In recent years, courts have construed this Elrod-Branti principle to provide protection against a wide range of administrative sanctions, even short of threatened or actual dismissals. See, e.g., DeLong v. United States, 621 F.2d 618, 623 (4th Cir. 1980) (transfer or reassignment). See also Tanner v. McCall, 625 F.2d 1183 (5th Cir. 1980) (failure to reappoint deputy sheriff for patronage reasons); Visser v. Magnarelli, 530 F.Supp. 1165 (N.D. N.Y. 1982) (failure to reappoint city clerk because of political considerations); Brady v. Paterson, 515 F.Supp. 695 (N.D. N.Y. 1981) (cemetery director threatened with replacement for partisan political reasons).

In so doing, the courts have disagreed over the standard to be used in determining when political discrimination results in an unconstitutional termination. Compare, e.g., Brady v. Paterson, 515 F.Supp. 695, 699 (N.D. N.Y. 1981), appeal dismissed, 671 F.2d 491 (1981) (holdover term appointee must establish that replacement decision was based "solely" on political considerations) and Ramey v. Harber, 431 F.Supp. 657 (W.D. Va. 1977), aff'd in part, rev'd in part on other grounds, 589 F.2d 753 (4th Cir. 1978) (deputy sheriffs must show that reappointment was denied "solely" because of their partisan political affiliation) with Tanner v. McCall, 625 F.2d 1183, 1192 (5th Cir. 1980) (deputy sheriff need only show that political discrimination was "a substantial motivating factor" in the employment decision), Visser v. Magnarelli, 530 F.Supp. 1165, 1169 (N.D. N.Y. 1982) (city clerk's political affiliation was improperly a "'substantial' or 'motivating' factor" in decision to terminate), and McMullan v. Thornburgh, 508 F.Supp. 1044, 1050-52, 1054 (E.D. Pa. 1981) (dismissed employee need only show that political affiliation was a "substantial" or "motivating" factor in discharge).

Despite the variations among these decisions, it is clear that, when political considerations play a significant role in a public employer's decision to terminate an at-will employee, the employer runs the risk of violating the employee's First Amendment rights of belief and association. Because state and federal law is not yet settled in this area, we caution that this risk be taken into careful account by the new Treasurer before terminating any existing Cecil County employees, notwithstanding their status as personnel serving at the pleasure of the Treasurer.

We also note that public employees may not be discharged for commenting on issues of political, social, or other public concern. Pickering v. Board of Education of Township High School District 205, Illinois, 391 U.S. 563, 571-72 (1968). See Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979). The Supreme Court has consistently upheld an employee's First Amendment right of free speech, when that expression neither disrupts the proper performance of the employee's daily duties nor interferes with general office operation. Pickering, 391 U.S. at 572-73.

However, First Amendment protection does not shield a public employee's speech on matters of purely personal, institutional concern. Connick v. Myers, 461 U.S. 138 (1983). Here, the Court found the expressive activity, "an employee grievance concerning internal office policy", to be only tangentially related to issues of public import. Id. 461 U.S. at [103 S.Ct. at 1694]. Accordingly, the Court upheld the dismissal of the employee for engaging in activities that threatened to undermine the harmonious, efficient, and disciplined operation of the agency.

IV
Conclusion

In summary, it is our opinion that, under §1-31A of the Cecil County Code, employees hired to work in the Treasurer's office are nontenured employees and serve at the pleasure of the Treasurer. As a general rule, an employer may dismiss nontenured employees for any reason that does not impair public policy or involve statutorily or constitutionally impermissible factors such as the employee's race, religion, political beliefs, or exercise of other First Amendment freedoms. See, e.g., Connick v. Myers, 461 U.S. at [103 S.Ct. at 1690]; Branti v. Finkel, 445 U.S. at 520 n. 14; Elrod v. Burns, 427 U.S. at 366; Tanner v. McCall, 625 F.2d at 1194-95; DeLong v. United States, 621 F.2d at 626 (Dumbauld, J. concurring). Thus, the Treasurer's decision to retain or terminate an employee, including those appointed by a predecessor, for reasons that do not impair public policy or statutory or constitutional rights, is a legitimate exercise of authority under §1-31A of the Cecil County Code.

Stephen H. Sachs, Attorney General
Lynette M. Phillips, Staff Attorney,
Opinions and Advice
Avery Aisenstark,
Chief Counsel,
Opinions and Advice