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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 328 September Term, 2008

MARYLAND DEPARTMENT OF TRANSPORTATION v. GREGORY MADDALONE

Eyler, Deborah S., Woodward, Kenney, James A., III (Retired, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

Filed: August 31, 2009

In January 2007, Gregory J. Maddalone, the appellee, was fired from his "Administrator VI" job with the Maryland Department of Transportation ("MDOT"), the appellant. As he acknowledges, that job was the last in a series of patronage positions he held during the administration of Governor Robert L. Ehrlich, Jr., for whom he had worked and campaigned. Maddalone challenged his termination in the Office of Administrative Hearings ("OAH"), alleging that the dismissal was unconstitutional because it was based on his political affiliation, and therefore was in violation of his rights under the First Amendment to the federal constitution.1 Following an evidentiary hearing, an administrative law judge ("ALJ") overturned the MDOT's termination decision. The ALJ's ruling was upheld by the Circuit Court for Anne Arundel County in an action for judicial review. The MDOT has now taken an appeal to this Court, posing two questions for review, which we have paraphrased slightly: I. Did the ALJ err in concluding that Maddalone was unconstitutionally terminated from his state employment? Did the ALJ err by awarding Maddalone reinstatement and back pay, when he was not ready and willing to return to work?

II.

For the reasons we shall explain, we answer Question I affirmatively, and therefore shall reverse the circuit court's judgment with instructions to remand the case to the OAH

The First Amendment states in relevant part that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." U.S. CONST. amend. I. The First Amendment is applicable to the states through the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925).

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to issue a final decision upholding Maddalone's termination from employment. Question II is rendered moot by our disposition of Question I.

FACTS AND PROCEEDINGS
Maddalone, a Republican, served as an aide to Congressman Ehrlich beginning in 2000, and actively participated in the political campaign that resulted in his being elected governor of Maryland in November 2002. Governor Ehrlich was the first Republican elected to that post in this state since 1966.2 Thus, upon Governor Ehrlich's election, there was for the first time in decades a change in Annapolis from an administration of one major political party to another. At all the relevant times in this case, Maddalone's educational background and work experience were as follows. He held a high school diploma. He did not hold a college degree or any other post-high school degree, and had never attended a four-year college. During his state employment, he earned some credits toward an Associate's Degree at the Community College of Baltimore County. He was a professionally trained and proficient ice skater who had participated successfully in that sport since childhood. His prior work experience, except for his employment as an aide to former Congressman Ehrlich, was as an ice skater, and, more specifically, as an ice dancer.

That year, Republican Spiro T. Agnew, the Baltimore County Executive, was elected governor. Agnew did not run for a second term in that office. Instead, he was elected Vice President of the United States on a ticket with President Richard M. Nixon in 1968 and again in 1972. In 1973, he resigned to avoid impeachment after pleading nolo contendere to federal charges of tax evasion and money laundering. 2

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Maddalone was 27 years old when Governor Ehrlich was elected. Throughout Governor Ehrlich's term, Maddalone was employed in what he acknowledges were state government "patronage" jobs. At the outset of the Ehrlich Administration, on January 15, 2003, Maddalone was hired by the Office of the Governor as an "information technology systems assistant." In October 2003, he became chief of staff to John Gowland, General Manager of the Maryland Transit Authority ("MTA"), a division of the MDOT. A year later, he was transferred to the Maryland Port Authority, another division of the MDOT, to the position of "legislative liaison." Less than a year later, on July 1, 2005, he was hired as an "emergency response manager" at the MDOT headquarters in the Office of Engineering, Procurement and Emergency Services ("OEPES"). Emergency response manager is an "Administrator VI position" for which Maddalone was paid a starting salary of $74,967. It is Maddalone's dismissal from that position, soon after the Ehrlich Administration came to an end, that is the subject of this case. All the jobs Maddalone held during the Ehrlich Administration were filled without advertisement. Because the positions were not advertised, Maddalone did not submit an application or r

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Maryland Law