MTA LODGE NO. 34 v. MTA

rs, which involved local employees and a local ordinance that gave "express legislative authority" for collective bargaining with the subject employees and arbitration of the type of dispute at issue. Id. at 111-15, 543 A.2d 841. The Court said, id. at 113, 543 A.2d 841: "Nothing in the MTA case suggests . . . that the legal authorization for a local government agency to engage in collective bargaining and arbitration could not come from a local ordinance." The Court elaborated:

It is true that the Anderson and Mugford cases . . . did concern the need for a certain level of legal authorization ( i.e. in the charter or public general law) if a local collective bargaining ordinance purported to bind the local government executive and council in the exercise of certain powers or functions which the charter vests in the executive and council. Nevertheless, these earlier cases did not hold that every local government collective bargaining agreement and arbitration must be specifically authorized by charter or public general law. And [ Anderson and Mugford] were cited in the MTA opinion only for the more general principle that a collective bargaining agreement with an arbitration provision, entered into by a government agency, must be expressly authorized by law.

Id. at 113-14, 543 A.2d 841 (italics in original; boldface added).

According to the Court, Anderson and Mugford stood for the proposition "that delegation to private individuals, of certain duties involving the exercise of discretion specifically assigned by a county charter to the county executive and council, may be invalid." Id. at 115, 543 A.2d 841. The Court noted that the Anne Arundel County Charter provided for "a detailed executive budget system," whereby the County Executive must submit to the County Council an annual budget "which includes proposed expenditures for employee compensation," and must also "promulgate, subject to County Council approval, a detailed pay plan for county employees which shall classify employees and prescribe a salary range for each class of employees." Id. at 115, 543 A.2d 841.

The County argued that "an arbitrator's decision in the representation dispute will have a substantial impact upon . . . employee compensation," because the collective bargaining agreement contained provisions for specific wage increases and overtime payments, which the County asserted would automatically apply to the lieutenants if they became part of the union's bargaining unit. Id. at 115-16, 543 A.2d 841. "Therefore," the County contended, "the agreement to arbitrate the representation dispute constitutes an invalid delegation of the Executive's and Council's authority over the budget and, specifically, over employee compensation." Id.

The Court disagreed with the County's assertion that it was free to refuse to arbitrate the dispute over classification of the lieutenants. It explained:

This type of employee classification does not have the direct impact upon the Executive's and Council's duty to set employee compensation that actual determination of the wages and salary of county employees does.

An arbitrator's decision as to which representation unit is appropriate for a certain group of employees may have no effect upon the wages and salaries of those employees; it merely permits the Union to bargain with the County on behalf of the employees. Furthermore . . . the County Council and the County Executive still retain the ultimate decision-making authority with respect to employee compensation. Both the County Executive and the County Council must, in accordance with their duties under the Charter, approve any agreement reached [with] Union representatives.

Id. at 116-17, 543 A.2d 841 (citations omitted).

Freeman v. Local 1802, AFSCME Council 67, 318 Md. 684, 569 A.2d 1244 (1990), is also noteworthy. In that case, the County Executive of Harford County, pursuant to a County ordinance authorizing collective bargaining, began negotiations with labor unions representing different groups of county employees. Id. at 686, 569 A.2d 1244. During the negotiations, the County Executive received a legal opinion concluding that he had no authority to bargain collectively with the unions, due to the lack of a State law or county charter provision explicitly authorizing the county collective bargaining ordinance. Id. The County Executive did not disclose the opinion until a tentative agreement had been reached with the unions, ratified by their membership, and submitted for his signature. Id. at 687-88, 569 A.2d 1244. He then informed the unions that he would not sign the agreements, prompting the unions to sue for a writ of mandamus to compel him to do so. Id. at 688, 569 A.2d 1244. After the circuit court granted the writ, the County appealed. Id.

During the pendency of the appeal, the Court of Appeals decided Detention Officers. Id. at 690, 569 A.2d 1244. On the basis of that decision, the Freeman Court rejected the County's arguments, founded on its reading of Mugford, Anderson, MTA, and MCEA, that the County ordinance authorizing collective bargaining was invalid due to the lack of explicit authorization in a State law or County charter provision. Id. at 690-91, 569 A.2d 1244. Rather, the Court cited Detention Officers for the proposition that a local ordinance cannot "delegat[e] to others . . . `duties involving the exercise of discretion specifically assigned by a county charter to the county executive and council.'" Id. at 691, 569 A.2d 1244 (quoting Detention Officers, 313 Md. at 115, 543 A.2d 841) (emphasis added). Synthesizing the holdings of Detention Officers and its prior cases, the Freeman Court said, 318 Md. at 691, 569 A.2d 1244: "In other words, simply put, a local collective bargaining ordinance [may] not violate the county charter, unless the General Assembly of Maryland by public general law in effect abrogated the inconsistent provision of the charter." (Emphasis added). The Court determined that "it was clearly permissible for Harford County, by a duly enacted ordinance, to authorize collective bargaining with county employees." Id.

Nevertheless, the Freeman Court ruled in the County's favor. Id. at 697, 569 A.2d 1244. As the Court explained, "mandamus ordinarily will not lie to control the exercise of discretion." Id. at 692, 569 A.2d 1244. Under the County's collective bargaining law, the Court observed, "the County Executive has the discretion to agree to terms with the labor organizations, or not to agree to terms." Id. at 695, 569 A.2d 1244. In the Court's view, "even assuming that the County Executive had orally accepted all terms of the agreements, mandamus would still not lie to compel his signature." Id. at 694, 569 A.2d 1244. The Court concluded, id. at 697, 569 A.2d 1244:

Mandamus cannot be based on a court's conclusion that the decision-making official with regard to a contract, who has refused to sign the document, has really agreed to it. The moment where the County Executive's discretion . . . has come to an end is the moment when he affixes his signature to an agreement. The trial court in this case erred in issuing a writ of mandamus prior to that moment.

In Fraternal Order of Police, Inc., Baltimore County, Lodge No. U v. Baltimore County, 340 Md. 157, 166, 665 A.2d 1029 (1995), the Court again corrected any "misreading" of its earlier opinions. There, Baltimore County entered into a collective bargaining agreement with its police officers' union, effective for fiscal year 1992, pursuant to a County ordinance authorizing collective bargaining. Id. at 160, 665 A.2d 1029. The collective bargaining agreement required the resolution of grievances by binding arbitration. Id. It also "contained a provision that prohibited `reduction[s] in force required by lay off or furlough during fiscal year 1992.' The County agreed to this provision in return for the Union's agreement to a freeze on cost-of-living adjustments for fiscal year 1992." Id. at 160-61, 665 A.2d 1029 (quoting agreement; alteration in original; footnote omitted). After the agreement was signed, the County Executive submitted, and the County Council approved, a budget for fiscal year 1992, which contained "appropriations for the full wages and benefits of the police officers as provided for in the collective bargaining agreement." Id. at 161, 665 A.2d 1029. But, midway through the fiscal year, "despite the [agreement's] prohibition on furloughs, the County, facing a revenue shortfall for 1992, enacted a plan to furlough for five days all county employees, including the police officers." Id. The union challenged the furlough decision through arbitration; the arbitrator ruled that the agreement prohibited the County from furloughing the officers. Id. at 161-62, 665 A.2d 1029. The County then filed suit to vacate the arbitration award, contending that "the determination of whether to impose furloughs . . . because it affects the compensation to be received by employees[,] . . . [was] within the exclusive domain of the County and could not be arbitrated." Id. at 162, 665 A.2d 1029.

The Court of Appeals rejected the County's reliance on Anderson and Detention Officers. It observed that the county code provisions at issue called for the passage of an annual budget, and directed that collective bargaining agreements "`with respect to wages, hours, [and] terms and conditions of employment`" must be "duly negotiated prior to the submission of the budget to the County Council." Id. at 165-S6, 665 A.2d 1029 (quoting county ordinance). Although the Court recognized that, unlike Detention Officers, the case at hand involved arbitration that directly affected compensation, id. at 170, 665 A.2d 1029, it determined that arbitration was proper, because the arbitrator's decision did not "remove[] from the County Executive and County Council their legislative discretion with regard to appropriations." Id. at 167, 665 A.2d 1029. In Fraternal Order, the County Executive and County Council had exercised their discretion and enacted a budget "appropriat[ing] the funds necessary for the full personnel expenditures covered by the collective bargaining agreement." Id. at 168, 665 A.2d 1029. The Court explained: "Instead of the arbitrator attempting to bind the County Executive and the County Council in the performance of their budgetary functions . . ., as in the Anderson case, the arbitrator's decision in the present case reflected an implementation of the Executive's and Council's budget decision. . . ." Id.

The Court distinguished Anderson because, in that case, "the arbitrator's decision purported to bind the County Executive and the County Council in enacting the annual budget for the ensuing fiscal year." Id. at 168, 665 A.2d 1029.

Finally, we arrive at McCulloch v. Glendening, supra, 347 Md. 272, 701 A.2d 99, the case on which the MdTA stakes its claim. In McCulloch, taxpayer plaintiffs challenged the constitutionality of an executive order of Governor Parris Glendening, which established a program of collective bargaining for employees of the principal departments of the Executive Branch and certain other State agencies. Id. at 275-77, 701 A.2d 99. Although no statute authorized the Governor's collective bargaining program, the Court of Appeals upheld the executive order.

The Court articulated the rule that, "`absent express legislative authority, a government agency cannot enter into binding arbitration or binding collective bargaining agreements establishing wages, hours, pension rights, or working conditions for public employees.'" Id. at 275, 701 A.2d 99 (quoting MTA 295 Md. at 97, 453 A.2d 1191). But, the Court determined that the rule did not control the situation before it. Citing the prior jurisprudence that we have reviewed, the Court stated: "It is well settled that not all collective bargaining agreements to which the State or a governmental agency is a party require prior express legislative approval. . . ." McCulloch, 347 Md. at 275, 701 A.2d 99. Rather, the Court opined, "it is only those [agreements] that contain a binding arbitration clause or are otherwise binding upon and enforceable against the State." Id. This was because the purpose of the rule is "`to insure that a governmental agency does not, without authority, abdicate or bargain away its statutory discretion.'" Id. at 276, 701 A.2d 99 (quoting MCEA, 311 Md. at 313, 534 A.2d 980).

The executive order at issue in McCulloch authorized employees to choose representatives and to bargain collectively with their employing agencies "`in good faith at reasonable times and places with respect to wages, hours, and other terms and conditions of employment.'" Id. at 276-77 n. 4, 701 A.2d 99 (quoting executive order). Under the order, such negotiations were to culminate in the execution of "`a written memorandum of understanding incorporating the terms of any agreement reached.'" Id. at 277, 701 A.2d 99 (alterations in original) (quoting executive order). All such agreements were "`subject to the approval of the Governor.'" Id. at 279, 701 A.2d 99 (quoting executive order). Moreover, the order provided that, "`to the extent [any terms of the agreement] require legislative approval or the appropriation of funds, [those] terms shall be recommended to the Legislature for approval or the appropriation of funds, as may be necessary.'" Id. at 277, 701 A.2d 99 (quoting executive order; alterations in original).

The McCulloch plaintiffs contended that the executive order violated the separation of powers, because the "subject of the Executive Order," i.e., wages and working conditions, "is one resting solely and exclusively within the purview of the legislative branch," and there was no "`express legislative authority'" for the executive order. Id. at 282-84, 701 A.2d 99 (quoting plaintiffs). Rejecting this view, the Court observed that the Governor enjoys "a significant role in setting policies to govern the management and supervision of State employees," id. at 284, 701 A.2d 99, including "the power to establish personnel policies and to require executive agency heads to carry out those policies." Id. at 284-85, 701 A.2d 99.

Moreover, in the Court's determination, the executive order did not, "`without authority, abdicate, or bargain away [the Governor's] statutory discretion.'" Id. at 292, 701 A.2d 99 (quoting MCEA 311 Md. at 313, 534 A.2d 980; alteration in original). The Court explained that, unlike the agreements in Anderson and MCEA, the order did not "provide for binding arbitration or any other form of binding dispute resolution mechanism." Id. at 293, 701 A.2d 99. Further, the Court observed: "[A]ny agreement that may be reached is still `subject to the approval of the Governor.' And, as the circuit court opined, `a State employee union would be afforded no legal recourse if the governor failed to approve an agreement.'" Id. at 294, 701 A.2d 99 (quoting executive order and circuit court's decision). The Court also said: "Even if the Governor approves an agreement and signs a memorandum of understanding, to the extent that it requires legislative approval or the appropriation of funds, it is still not binding" until and unless the legislative change or appropriation is made by the General Assembly. Id. Thus, the Court held, id.:

Viewed in its entirety, but with particular emphasis on the Governor's completely discretionary power to either approve or refuse to approve an agreement negotiated pursuant to the terms of the Executive Order, it follows that the Governor, by promulgating the Order, has neither abdicated nor bargained away any statutory or gubernatorial authority.

Having reviewed the relevant cases from the Court of Appeals, we turn to apply their teachings to the case at hand.

In Ehrlich v. Maryland State Employees Union, 382 Md. 597, 856 A.2d 669 (2004), the Court decided another significant case concerning public employee collective bargaining, although its holdings do not directly pertain to the issues in this case. Subsequent to the events of McCulloch, "[i]n an effort to provide a more solid base for a collective bargaining regime and not have it rest solely on an Executive Order that could be modified or revoked by subsequent Governors," the General Assembly enacted a statutory program for State employee collective bargaining that "incorporated some features and provisions of the Executive Order but was far more extensive." Id. at 601, 856 A.2d 669. That program is presently codified, as amended, in Title 3 of the S.P.P. Article. Much like the executive order in McCulloch, the statutory scheme calls for the execution of a memorandum of understanding between an employee union and "`the Governor or the Governor's designee.'" Id. at 602, 856 A.2d 669 (quoting statute). Under the statute, "`a memorandum of understanding is not effective until it is ratified by the Governor.'" Id. (quoting statute; emphasis in Ehrlich).
The facts of Ehrlich were that, one day before the end of Governor Glendening's term of office, his chief of staff, "upon direction by the Governor, `approved' two memoranda of understanding (MOU) with [a State employees' union] that carried a fiscal impact to the State of approximately $100 million." Id. at 599, 856 A.2d 669. The incoming administration refused to ratify or fund the obligations of the memoranda, id. at 604, 856 A.2d 669, and the litigation concerned whether the memoranda were "effective and enforceable," despite not having been approved personally by Governor Glendening. Id. at 599, 856 A.2d 669. The Court held that they were not enforceable, determining that the statute "does not permit ratification by a designee of the Governor, but only by the Governor him/herself." Id. at 607, 856 A.2d 669 (emphasis in original). It opined that the Governor's "act of personally signing" a memorandum might "suffice as a ratification," id. at 608, 856 A.2d 669, but that, in the absence of a personal signature by the Governor, the Governor must ratify it by "some public act or statement of an equivalent nature." Id. at 609, 856 A.2d 669.

As indicated, the parties quarrel over whether the Agreement is a "collective bargaining agreement." To be sure, the Agreement arguably concerns the terms and conditions of employment, as the Authority maintains. But, the Agreement also lacks many hallmarks of collective bargaining agreements. For instance, the Agreement does not recognize the Lodge as the exclusive bargaining representative of the officers; it does not comprehensively resolve all issues of wages, hours, and working conditions (indeed, it concerns only one issue); nor does it provide for arbitration to resolve disputes.

Yet, the resolution of the question before us does not turn on the label that is applied to the Agreement. Therefore, we need not resolve the dispute over nomenclature. Even if the Agreement can be considered a "collective bargaining agreement," the Court of Appeals made clear in McCulloch that "not all collective bargaining agreements to which the State or a governmental agency is a party" are subject to the rule requiring express legislative approval. McCulloch, 347 Md. at 275, 701 A.2d 99. Rather, McCulloch taught that courts must keep in mind "the guiding principle underlying the rule that legislative authority is necessary as a condition precedent to a public agency entering into binding arbitration or a binding collective bargaining agreement-'to insure that a governmental agency does not, without authority, abdicate, or bargain away its statutory discretion."` Id. at 292, 701 A.2d 99 (quoting MCE A 311 Md. at 313, 534 A.2d 980). In accord with McCulloch, we must measure the substance of the Agreement against the requirements of the rule; it is not determinative, and therefore not necessary to decide, whether the Agreement is a "collective bargaining agreement" as a mere matter of form. Cf. Walker v. Dept. of Human Res., 379 Md. 407, 421, 842 A.2d 53 (2004) (considering whether statutory provisions concerning "collective bargaining agreements" applied to a "memorandum of understanding," and remarking: "Though perhaps not a collective bargaining agreement . . . the MOU is clearly a contract between the State and [a union], acting as exclusive representative of [state employees] in the bargaining unit").

In this case, the Agreement did not bargain away the MdTA's statutory discretion, or attempt to delegate to a third party the discretion of the MdTA or any other State body. Indeed, the Agreement does not delegate any decision making power to an arbitrator or any other third party. To that extent, the decisions in Anderson, MCEA, Detention Officers, and Fraternal Order, concerning the validity and applicability of arbitration provisions, are not controlling. On the summary judgment record before us, the only obligation the Agreement placed on the Authority was to fund and implement the PPV program. The Agreement was signed by the Authority's Executive Secretary and was subsequently ratified unanimously by the Authority. The Agreement presents no danger of any party, other than the MdTA itself, controlling the Authority's purse strings.

As noted, in the posture of this case, i.e., for purposes of the appeal, appellees do not dispute that Kittleman had the authority to bind the MdTA or that the Authority ratified the Agreement. Therefore, we need not decide whether Kittleman's signature, without the Authority's concurrence, would have been sufficient to bind the agency.

Nor does the Agreement violate the agency's enabling legislation by purporting to arrogate to the MdTA power that it does not have. See Freeman, supra, 318 Md. at 691, 569 A.2d 1244 ("[A] local collective bargaining ordinance [can] not violate the county charter. . . ."). As we have seen, the agency is empowered to "make any contracts and agreements necessary or incidental to the exercise of its powers and performance of its duties." Transp. § 4-205(c)(1). The statutory scheme by which the MdTA exists also grants plenary authority to the agency over its own finances. It funds its operations out of the toll revenues that it collects, and those revenues "are not subject to supervision or regulation by any instrumentality, agency, or unit" of State or local government. Transp. § 4-312(c)(1). And, unlike most agencies of State government, the MdTA has the independent authority to "employ and fix the compensation of . . . any . . . employees that it considers necessary to exercise its powers and perform its duties." Transp. § 4-205(d)(1). Like all other expenditures of the agency, compensation of its employees comes from the agency's toll revenues. See Transp. § 4-205(d)(2).

As we indicated, the Court of Appeals reviewed the predecessor scheme in Wyatt v. State Roads Commission, supra, 175 Md. 258, 1 A.2d 619, and upheld the agency's fiscal structure, determining that the agency's funds were not "moneys of the State" subject to control by the Comptroller and Treasurer. The MdTA's budget is merely "reported" to the General Assembly. See Transp. §§ 4-205(d)(1), 4-210; see also 70 Op. Att'y Gen. 229 (1985). Neither the Governor nor the General Assembly exercises ultimate discretion over the agency's operational expenditures or the compensation of its employees. Moreover, when the MdTA entered into the Agreement, it did not incur a debt against the treasury of the State.

Notably, S.G. § 12-203 provides that, "[t]o carry out" the waiver of sovereign immunity in contract actions provided by S.G. § 12-201, discussed earlier, the "Governor shall include in the budget bill money that is adequate to satisfy a final judgment that, after the exhaustion of the rights of appeal, is rendered against the State or any of its officers or units." None of the collective bargaining cases we have reviewed has considered S.G. § 12-203. Nevertheless, if S.G. § 12-203 applies here, it would appear to affect the Governor's discretion over the budget. In our view, however, this does not compel the conclusion that the Agreement is invalid under the collective bargaining precedents (although it may have other implications for how, if at all, appellants can obtain the relief they seek). We explain.
First, it is not clear that S.G. § 12-203 would apply to the MdTA, a non-budgeted agency. See Bd. of Educ. of Worcester County v. BEKA Indus., Inc., 190 Md.App. 668, 709-712, 989 A.2d 1181 (holding that, although S.G. § 12-201 waives the sovereign immunity of county boards of education as to contract claims, "S.G. § 12-203 does not provide a mechanism for appropriation of State funds to satisfy a judgment against a county board of education," because "the boards are subject to the county, not State, budget process," and therefore "it does not appear that the State would be responsible for paying a judgment against a county board of education"), cert. granted, 415 Md. 38, 997 A.2d 789 (2010). Second, even if S.G. § 12-203 applies, the General Assembly has ultimate authority (with exceptions not applicable here) to "strike out or reduce" items in the State budget. See Md. Const., art. Ill, § 52(6). Although S.G. § 12-203 requires the Governor to include proposed appropriations in the budget bill to satisfy final judgments against the State, the statute does not require the General Assembly to pass the proposed appropriations. Cf. H. Dean Bouland, Abrogation of Sovereign Immunity in Contract Cases in Maryland, 6 U. BALL L. REV. 337, 344 n. 60 (1977) (noting that if the Legislature "refuse[s] to appropriate sufficient funds in any given year, there is currently no procedure whereby judgments may be resubmitted in subsequent years," and in that case, "[t]he successful plaintiff would be left without a remedy").
Because the parties have not mentioned S.G. § 12-203 in their briefs, and the circuit court did not discuss it, we will not rule on its applicability. In any event, the Lodge must identify some "`provision for the payment of judgments`" in order to obtain relief. Brooks v. Hous. Auth. of Bait. City, 411 Md. 603, 615, 984 A.2d 836 (2009) (citation omitted). See also Stern v. Bd. of Regents, 380 Md. 691, 701, 846 A.2d 996 (2004); Univ. of Md. v. Maas, 173 Md. 554, 559, 197 A. 123 (1938); BEKA Indus., 190 Md.App. at 692 709-10, 989 A.2d 1181. Cf. Prince Georges County v. Aluisi. 354 Md. 422, 450-51, 731 A.2d 888 (1999) (concluding that mandamus did not lie to compel the Chief Judge of the District Court to appoint constables where money had not already been appropriated for the purpose).

Thus, this case is unlike Mugford, Anderson, MTA, and MCEA, which concerned whether State agencies, political subdivisions, or local departments could bind themselves beyond the authority granted by their governing statutes or charters. Rather, this case is analogous to Fraternal Order, supra, 340 Md. 157, 665 A.2d 1029. There, a governmental body exercised its discretion to bind itself to the financial terms of an agreement with its employees. When the body sought to renege, the Court upheld the submission of the issue to binding arbitration, noting that "the arbitrator determined only that the County had violated the terms of the contract which it had made." Id. at 171, 665 A.2d 1029.

To be sure, there is some dicta in the earlier collective bargaining cases that arguably supports the view that specific legislative authorization is required for government to bind itself at all as to matters of public employee compensation, even where no delegation to a third party or subsidiary agency is involved. See, e.g., Mugford, 185 Md. at 270, 44 A.2d 745 ("City authorities cannot delegate or abdicate their continuing discretion. Any exercise of such discretion by the establishment of hours, wages or working conditions is at all times subject to change or revocation in the exercise of the same discretion."). But, to the extent that this dicta ever had force, it has clearly been superseded by later cases.

In McCulloch, the Court upheld the Governor's unilateral executive order establishing a collective bargaining regime without any prior legislative approval. In doing so, the Court emphasized the Governor's "completely discretionary power to either approve or refuse to approve an agreement negotiated pursuant to the terms of the Executive Order." McCulloch, 347 Md. at 294, 701 A.2d 99. Nowhere did the Court suggest that, once the Governor approved a collective bargaining agreement, and, if necessary, legislative authorization for the agreement's provisions was obtained, the agreement would not be binding on the State. Indeed, in Fraternal Order, the Court ruled that a county was bound by a collective bargaining agreement regarding employee compensation, once the county council and executive had exercised their discretion by passing the budgetary appropriations called for in the agreement. See Fraternal Order, 340 Md. at 170-71, 665 A.2d 1029. And in Freeman, the Court stated that a county executive's "discretion . . . has come to an end [at] the moment when he affixes his signature to an agreement," 318 Md. at 697, 569 A.2d 1244, suggesting that thereafter mandamus might lie to compel the exercise of nondiscretionary duties under such an agreement.

Here, the MdTA, by virtue of its plenary authority over its own budget, occupies the same position as the Governor and General Assembly in McCulloch, or the county executive and council in Fraternal Order and Freeman. As we have seen, the Court of Appeals's case law indicates that, once a governmental agency that possesses the discretionary authority to do so has entered into an agreement with its employees, it is bound by that agreement.

In this regard, we find apt the comments of the federal court in Nat'l Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006), involving a dispute between a federal agency and a federal employees' union as to whether a collective bargaining agreement was binding. There, the court quoted with approval the district court judge's observations that the "` sine qua non of good-faith collective bargaining is an enforceable contract once the parties reach an agreement,'" id. at 851 (quoting Nat'l Treasury Employees Union v. Chertoff, 385 F.Supp.2d 1, 25 (D.D.C. 2005)), and that "`[a] contract that is not mutually binding is not a contract. . . . A system of "collective bargaining" that permits the unilateral repudiation of agreements by one party is not collective bargaining at all.'" Id. (quoting 385 F.Supp.2d at 28).

The State waived its sovereign immunity from contract suits in 1976. See S.G. § 12-201 (codifying 1976 Md. Laws ch. 450). Since that time, it has not been an adequate defense to a contract claim for the State simply to say, "the King has changed his mind." Moreover, the MdTA did not make a promise that it had no power to keep. To the contrary, the Authority has discretion over its budget and the working conditions of its employees. Nor did it delegate its discretion to a third party, as there is no arbitration provision in the Agreement. Rather, the Authority bargained with the Lodge and exercised its discretion to commit itself to fund a program that it now no longer desires to maintain. The principles articulated in McCulloch and its antecedents do not permit the MdTA to avoid the Agreement merely because the agency has buyer's remorse.

For all these reasons, we conclude that the court erred in granting summary judgment as to the contract claim.

In rejecting the contentions raised by the MdTA, we express no view as to any other defenses that the Authority may raise on remand, including any additional public policy objections to the enforcement of the Agreement.
Moreover, we express no opinion as to the enforceability of the Agreement under the collective bargaining statute that was recently enacted. We observe that the 2010 enactment is not substantively identical to the proposed legislation that was the subject of the Agreement. Of particular note, the 2010 legislation authorizes "all full-time Maryland Transportation Authority police officers at the rank of first sergeant and below" to participate in the existing program of State employee collective bargaining under Title 3 of the S.P.P. Article. See id. The withdrawn 2006 legislation would have created a new stand-alone program of collective bargaining for the officers. See, e.g., S.B. 722, 2006 Gen. Assembly (first reader), available at http://mlis.state.md.us/2006rs/ bills/sb/sb0722f.pdf (last visited Sept. 13, 2010).

E. Promissory Estoppel

We next consider whether the court erred in granting summary judgment as to the second count of the Lodge's complaint, alleging liability based on promissory estoppel. The parties advance the same arguments in their briefs to this Court as they raised below.

The MdTA's banner argument below, which the circuit court evidently accepted, was that "[o]rdinarily, the doctrine of estoppel does not apply against the State " ARA Health Servs., Inc. v. Dept. of Public Safety Correctional Servs., 344 Md. 85, 96, 685 A.2d 435 (1996). The Authority also contended that the second count "should be dismissed for all of the reasons that Count I should be dismissed," reasoning that the Agreement's alleged indefiniteness and contravention of public policy should defeat a promissory estoppel claim just as they would defeat a claim for breach of contract. Moreover, the MdTA contended that the "individual plaintiffs have not alleged facts to support the elements" of a promissory estoppel claim.

The Authority quoted the elements of promissory estoppel, formulated in the touchstone case of Pavel Enterprises v. AS. Johnson Co., 342 Md. 143, 166, 674 A.2d 521 (1996):

1. a clear and definite promise;

2. where the promisor has a reasonable expectation that the offer will induce action or forbearance on the part of the promisee;

3. which does induce actual and reasonable action or forbearance by the promisee; and

4. causes a detriment which can only be avoided by the enforcement of the promise.

Writing for the Court in Pavel Enterprises, Judge Karwacki disfavored the term "promissory estoppel," preferring instead the designation, "detrimental reliance." In Judge Karwacki's view, the latter phrase "more clearly expresses the concept intended" and "alleviate[s] the confusion [of] promissory estoppel with its distant cousin, equitable estoppel." 342 Md. at 146 n. 1, 674 A.2d 521.

According to the Authority, the allegations of the individual police officers failed to satisfy the first and third elements of the doctrine. Specifically, appellees argued that "the individual plaintiffs have not alleged the existence of a `clear and definite promise,' because they do not allege that they were promised a particular vehicle, nor do they allege that they were promised a vehicle for any specific duration of time." Moreover, as to the third element, the MdTA insisted that "the plaintiffs have not alleged facts to support the element of `reasonable reliance.'" In this regard, the agency rejected the plaintiffs' alleged reliance on statements on the MdTAP website listing "take home cars" as an employment benefit, and similar alleged statements by Chief McLhinney at the police academy orientation, claiming any reliance was unreasonable "[a]s a matter of law."

In support of its position, the MdTA relied upon Maryland Classified Employees Ass'n v. Schaefer, 325 Md. 19, 599 A.2d 91 (1991) (rejecting "implied contract" theory in challenge to governor's decision to increase the hours of the executive branch work week), cert. denied, 502 U.S. 1090, 112 S.Ct. 1160, 117 L.Ed.2d 407 (1992), which it described as standing for the proposition that there is no breach of a promise to State employees when the State changes the conditions of their employment. As the MdTA sees it, "[t]here is no law that prevents a police department with a formal policy of allowing its officers to `take home' their vehicles from withdrawing that policy altogether."

In response, the Lodge sought to distinguish ARA Health Services, contending that the Court in that case "focused on the doctrine of estoppel particularly not applying to cases where it is sought against State correctional services, while this case does not present a similar situation." The Lodge also asserted below: "A statement by the Police Chief as well as a list of benefits provided by an official website are more than authoritative sources for an officer to rely on." In its view, "the authoritative nature of the sources of information support[s] the element of `reasonable reliance.'"

As we shall explain, we agree with appellees that this case is subject to the general rule that estoppel cannot be asserted against the State. Therefore, we need not reach the parties' arguments regarding whether the elements of a promissory estoppel claim were satisfied, and shall affirm the judgment in favor of the MdTA on Count II of the Lodge's complaint.

First, we must clearly stake out the doctrinal terrain on which the parties battle. The ARA Health Services case, on which the Authority relies, and the larger line of cases of which it is a part, do not concern the doctrine of promissory estoppel. Rather, as we shall discuss, infra, they concern the related doctrine of equitable estoppel. The Court of Appeals has distilled the essence of equitable estoppel in many cases. One of the most recent is Maryland Reclamation Associates v. Harford County, 414 Md. 1, 994 A.2d 842 (2010), in which the Court provided the following definition:

"Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy."

Id. at 52, 994 A.2d 842 (quoting Hill v. Cross Country Settlements, LLC, 402 Md. 281, 309, 936 A.2d 343 (2007)).

Equitable estoppel "consists of three elements: `voluntary conduct or representation, reliance, and detriment.'" Hill, 402 Md. at 310, 936 A.2d 343 (quoting Mona Eke. Co. v. Shelton, 377 Md. 320, 334, 833 A.2d 527 (2003)). As the Court has explained, "[t]o assert equitable estoppel, the asserting party `must have been misled to his [or her] injury and have changed his [or her] position for the worse, having believed and relied on the representations of the party sought to be estopped.'" Dickerson v. Longoria, 414 Md. 419, 453-54, 995 A.2d 721 (2010) (quoting Creveling v. GEICO, 376 Md. 72, 102, 828 A.2d 229 (2003); some alterations in original).

In Pavel Enterprises, however, the Court cautioned against confusing promissory estoppel with equitable estoppel. See 342 Md. at 146 n. 1, 674 A.2d 521. Although we have not uncovered any reported Maryland case fully articulating in one opinion the distinctions between the two doctrines, the courts of other states have suggested some pertinent differences.

Several courts recognize that, "to work an equitable estoppel . . . the representation in question must be of some present or past fact, while promissory estoppel rests upon a promise to do something in the future." Trollope v. Koerner, 106 Ariz. 10, 470 P.2d 91, 98-99 (1970). See, e.g., Bd. of County Comm'rs v. DeLozier, 917 P.2d 714, 716 (Colo. 1996) ("While the doctrine of promissory estoppel is applicable to promises, the doctrine of equitable estoppel is applicable to misstatements of fact."); Del Hayes Sons, Inc. v. Mitchell, 304 Minn. 275, 230 N.W.2d 588, 595 (1975) ("[E]quitable estoppel is akin to fraud. It does require a representation or concealment of material facts."). See also Panno v. Russo, 82 Cal.App.2d 408, 186 P.2d 452, 455 (1947); Union Carbide Corp. v. City of Danbury, 257 Conn. 865, 778 A.2d 204, 209 n. 2 (2001); Decatur Coop. Ass'n v. Urban, 219 Kan. 171, 547 P.2d 323, 329 (1976); Sullivan v. Porter, 861 A.2d 625, 632 n. 7 (Me. 2004); Sullivan v. Chief Justice, 448 Mass. 15, 858 N.E.2d 699, 711 n. 9 (2006); Old Equity Life Ins. Co. v. Jones, 217 So.2d 648, 652 (Miss. 1969); Feinberg v. Pfeiffer Co., 322 S.W.2d 163, 168 (Mo.Ct.App. 1959); In re Estate of Helling, 510 N.W.2d 595, 596 n. 1 (N.D. 1994); Hortman v. City of Miamisburg, 110 Ohio St.3d 194, 852 N.E.2d 716, 720 (2006); Clifton v. Ogle, 526 S.W.2d 596, 603 (Tex.Civ.App. 1975); Youngblood v. Auto-Owners Ins. Co., 158 P.3d 1088, 1092 (Utah 2007); Woolaver v. State, 175 Vt. 397, 833 A.2d 849, 856 n. 4 (2003); Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 616 P.2d 644, 646-47 (1980).

A second distinction recognized in some cases is that promissory estoppel "is offensive, and can be used for affirmative enforcement of a promise," while equitable estoppel is ordinarily "defensive, and can be used only for preventing the opposing party from raising a particular claim or defense." Mortvedt v. State, 858 P.2d 1140, 1143 n. 7 (Alaska 1993). See Youngblood, 158 P.3d at 1093 ("`[P]romissory estoppel is a sword, and equitable estoppel is a shield."`) (citations omitted). See also, e.g., Newton Tractor Saks, Inc. v. Kubota Tractor Corp., 233 Ill.2d 46, 329 Ill.Dec. 322, 906 N.E.2d 520, 526 (2009); Chrysler Credit Corp. v. Bert Cote's LIA Auto Sales, Inc., 707 A.2d 1311, 1318-19 (Me. 1998); Hoye v. West-field Ins. Co., 194 Mich.App. 696, 487 N.W.2d 838, 842 (1992); White v. White, 293 S.W.3d 1, 16-17 nn. 9 10 (Mo. 2009); Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 769 (Tex.App. 2004); Klinke, 616 P.2d at 646-47; Baures v. N. Shore Fire Dept, 264 Wis.2d 815, 664 N.W.2d 113, 123 n. 7 (App.), cert. denied, 266 Wis.2d 63, 671 N.W.2d 849 (2003).

Other courts have remarked that, although "equitable estoppel is not actually a cause of action, [it is] . . . `an equitable doctrine that suggests a tort-related theory.'" Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1004 n. 5 (Colo. 2008) (citations omitted). In contrast, "`a claim of promissory estoppel lies in contract.'" Id.

It is clear that, despite these distinctions, promissory estoppel and equitable estoppel are related. As can be seen from comparing the Court of Appeals's descriptions of the two doctrines, they share in common that the person invoking either doctrine must have relied, to his or her detriment, on the representations (whether as to past, present, or future matters) of the other party.

As the Court recounted in Pavel Enterprises, the doctrine of promissory estoppel emerged from certain idiosyncratic classes of cases, such as construction bidding disputes, see Pavel Enters., 342 Md. at 152-61, 674 A.2d 521, and charitable subscription cases, see id. at 164-65, 674 A.2d 521 (discussing Md. Nat'l Bank v. United Jewish Appeal Fed\ 286 Md. 274, 407 A.2d 1130 (1979), a charitable subscription case). The unifying thread running through these cases was that one party had made a promise or commitment to the other, but one of the traditional elements of a bilateral contract — offer, acceptance, or consideration — was missing.

For example, the charitable subscription cases involved an individual pledging a contribution to a charity. In United Jewish Appeal, 286 Md. at 275-76, 407 A.2d 1130, a philanthropist pledged $200,000 to the charity, but died with $133,500 still unpaid on his pledge. The charity sought to recover the unpaid pledge from the philanthropist's estate, but the personal representatives disallowed the claim. Id. The pledge was not a contract in the traditional sense, because there was no consideration for the gratuitous, charitable donation. Id. at 289, 407 A.2d 1130. The Court determined, however, that Maryland law supported a promissory estoppel theory of recovery, provided that "`the promisee had actually incurred obligations relying upon the promises,'" when "`one has made a subscription and thereby authorized the entering into engagements to accomplish the purpose for which the subscription was made, the subscription was upon a valuable consideration.'" Id. at 283-84, 407 A.2d 1130 (citation omitted). In other words, the detrimental reliance of the promisee could substitute for more traditional consideration.

On the facts before it, however, the Court denied recovery because the charity had not, in fact, made a "change [in] position . . . in reliance on the subscription which resulted in an economic loss. . . ." Id. at 289, 407 A.2d 1130.

Similarly, in Pavel Enterprises, a construction bid case, a general contractor requested bids from mechanical subcontractors for use in completing a full bid for a renovation project at the National Institutes of Health. 342 Md. at 146-47, 674 A.2d 521. A subcontractor submitted a bid for the mechanical work, which the general contractor used in submitting its winning bid to the agency. Id. at 147, 674 A.2d 521. Upon winning the contract, the general contractor sent the subcontractor a purported acceptance of its bid, but the subcontractor responded that its bid "contained an error, and as a result the price was too low." Id. at 150, 674 A.2d 521. Because the subcontractor had not realized that the general contractor had been awarded the contract (there had been another, lower, bidder on the contract who had subsequently been disqualified), it had not felt "compelled to correct the error" earlier. Id. The general contractor completed the work with another subcontractor at a higher cost, and sued the original subcontractor for the difference. Id. at 151, 674 A.2d 521.

In that context, the Pavel Enterprises Court elucidated its formulation of the elements of promissory estoppel, which we have set forth, supra, reasoning that, because the subcontractor's bid "was an offer to contract and . . . it was sufficiently clear and definite," the Court was required to determine if the general contractor "made a timely and valid acceptance of that offer and thus created a traditional bilateral contract, or in the absence of a valid acceptance, if [the general contractor's] detrimental reliance served to bind" the subcontractor to its bid. Id. at 161-62, 674 A.2d 521 (emphasis added).

Pavel Enterprises made clear that, under appropriate circumstances, promissory estoppel can also substitute for acceptance, rather than consideration. But, the Court ultimately upheld as not clearly erroneous the trial court's determination that the general contractor had not proved the reasonable reliance element of promissory estoppel. Id. at 168, 674 A.2d 521.

Thus, in Maryland, promissory estoppel is an alternative means of obtaining contractual relief. As the Pavel Enterprises Court explained: "[T]here are different ways to prove that a contractual relationship exists. . . . Traditional bilateral contract theory is one. Detrimental reliance can be another." Id. at 169, 674 A.2d 521. As the federal court has put it:

Maryland recognizes that promissory estoppel may serve as a substitute for consideration in enforcing a promise that the law would not otherwise enforce, thus making a one-sided promise into an enforceable contract by dint of the necessary reliance having been placed on it by the promisee. Thus, . . . the nature of a lawsuit in which promissory estoppel is invoked remains that of an action to enforce a contract.

Suburban Hospital, Inc. v. Sampson, 807 F.Supp. 31, 33 (D.Md. 1992) (citations omitted).

In this case, the MdTA's principal bulwark against the appellants' promissory estoppel claim is the statement in ARA Health Services that, "[o]rdinarily, the doctrine of estoppel does not apply against the State. . . ." 344 Md. at 96, 685 A.2d 435. But, as we have noted, the claim at issue in ARA Health Services was characterized as one for equitable estoppel. In that case, the State Department of Public Safety and Correctional Services entered into a written contract with ARA to provide healthcare services to HIV-positive inmates. Id. at 88, 685 A.2d 435. Under the terms of the contract, ARA "was not entitled to compensation on a dollar-for-dollar basis for AIDS medication administered to inmates at correctional facilities. However, [ARA] would receive reimbursement . . . for the actual cost of AIDS medication furnished to inmates at hospitals " Id. at 89, 685 A.2d 435 (emphasis in original). Nevertheless, ARA submitted, and the Department paid, invoices for the "actual cost of AIDS medication provided to inmates at correctional facilities," in the amount of $135,446. Id. After an audit revealed the discrepancy, the Department sought to recover the overpayment. Id. at 90-91, 685 A.2d 435. ARA maintained that the written contract had been modified by the parties' conduct, id. at 93, 685 A.2d 435, and that the "understanding between the parties was that [ARA] would be reimbursed for all AIDS medication costs. . . ." Id. at 91, 685 A.2d 435.

The company contended "that the Department should . . . be estopped, on equitable grounds, from denying the validity of the contract modification." Id. at 96, 685 A.2d 435. The Court rejected that argument, stating: "Ordinarily, the doctrine of estoppel does not apply against the State, and this would seem to be particularly the case where, as here, an estoppel is sought with respect to State correctional services." Id.

For that proposition, the Court cited several cases, all of which concerned equitable estoppel. See Salisbury Beauty Schools v. State Bd. of Cosmetologists, 268 Md. 32, 63-64, 300 A.2d 367 (1973) (rejecting beauty school's argument that regulatory agency's prior rules and policy equitably estopped enforcement of statute that barred beauty schools from charging clients for treatment performed by students, because "the doctrine of estoppel will not be applied against the State in the performance of its governmental, public or sovereign capacity or in the enforcement of police measures"); Agnew v. State, 51 Md.App. 614, 657, 446 A.2d 425 (1982) (rejecting former Governor's contention that "State's refusal to take earlier action against Mr. Agnew []or its acceptance . . . of payment of back taxes" equitably estopped State's claim for damages due to Governor's bribery and kickback scheme); Cuppett Weeks Nursing Home, Inc. v. Dept. of Health Mental Hygiene, 49 Md.App. 199, 209, 430 A.2d 875 (1981) (rejecting claim that State agency's "delay in enforcing . . . regulations warrants application of the equitable estoppel doctrine to preclude such enforcement"); see also Fed. Armored Express, Inc. v. Pub. Serv. Comm'n, 273 Md. 231, 244, 328 A.2d 264 (1974) (predating ARA Health Services; rejecting armored car companies' contention that State regulator should be equitably estopped from denying them operating licenses "so that their established business will continue"); Marriott v. Cole, 115 Md.App. 493, 508, 694 A.2d 123 (decided after ARA Health Services; rejecting attempt to equitably estop State university from denying professor tenure), cert. denied, 347 Md. 254, 700 A.2d 1215 (1997).

The wide variety of scenarios presented in the above cases, in which claims to equitably estop the State have been uniformly rejected, disposes of the Lodge's attempt to distinguish ARA Health Services on the ground that the instant case does not arise in ARA's correctional services context.

We recognize the caveat in ARA Health Services and other cases that, " ordinarily," equitable estoppel cannot be asserted against the State. See, e.g., ARA Health Servs., 344 Md. at 96, 685 A.2d 435; Heartwood 88, Inc. v. Montgomery County, 156 Md.App. 333, 370, 846 A.2d 1096 (2004); Anne Arundel County v. Muir, 149 Md.App. 617, 635, 817 A.2d 938 (2003); Gregg Neck Yacht Club, Inc. v. County Comm'rs of Kent County, 137 Md.App. 732, 774, 769 A.2d 982 (2001); Marriott, 115 Md.App. at 508, 694 A.2d 123. Accordingly, it may be that an extraordinary case presenting particularly compelling equitable grounds would give rise to equitable estoppel against the State. However, we are unaware of any Maryland case so holding, and the Lodge has cited none, nor has it alleged any extraordinary circumstances in this case. Neither has the Lodge contended that the MdTA was not acting in "its governmental, public or sovereign capacity," and we see no circumstances here that place this ease beyond the ambit of the cases where equitable estoppel of the State has been rejected.

We also recognize that the Lodge's complaint alleged promissory estoppel. The line of cases on which the MdTA relies in asserting that it cannot be estopped are all equitable estoppel cases, and we have not found a Maryland case that considered whether promissory estoppel applies to the State. Nevertheless, we are persuaded that the rule articulated in the equitable estoppel cases is applicable here.

First, it appears to us that Count II of the Lodge's complaint, although styled as a "promissory estoppel" claim, may actually sound in equitable estoppel. As we have seen, promissory estoppel is a device for contractual recovery, when an element of a traditional bilateral contract is lacking. The Agreement, on its face, plainly displays offer, acceptance, and mutual consideration. Therefore, there is no need to substitute the Lodge's alleged detrimental reliance for a contractual element that is absent. Rather, it seems to us that the Lodge's use of a detrimental reliance theory is more akin to the equitable estoppel argument rejected in ARA Health Services: the Lodge seeks to use its alleged detrimental reliance to estop the MdTA "from denying the validity of the contract." ARA Health Servs., 344 Md. at 96, 685 A.2d 435. Cf. County Comm'rs of Caroline County v. J. Roland Dashiell Sons, Inc., 358 Md. 83, 92-101, 747 A.2d 600 (2000) (holding that, "generally, quasi-contract claims such as quantum meruit and unjust enrichment cannot be asserted where an express contract . . . exists"). Considered as an assertion of equitable estoppel against a State agency, the Lodge's claim fails, on the strength of the authorities already cited.

But, even if we consider the Lodge's complaint as a promissory estoppel claim, we conclude that promissory estoppel is also subject to the rule that, ordinarily, it may not be asserted against the State in the exercise of its governmental, public, or sovereign capacity. Our conclusion proceeds from our determination that the rationale underlying the rule in the equitable estoppel context applies with equal force in the context of promissory estoppel.

As the equitable estoppel cases cited above exemplify, the "archetypal" governmental equitable estoppel case involves a claimant seeking to prevent the State from applying an otherwise valid law or regulation because of the prior statements or conduct of public employees, upon which the claimant detrimentally relied, which led the claimant to assume that the applicable law was otherwise. See GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT 754 (2000) (discussing "archetypal governmental equitable estoppel case"). If the claimant were permitted equitably to estop the State in such a case, the result would be an outcome that directly contravened the applicable substantive law, merely because at some point a public official misspoke. As one court put it, "`[e]stoppel is just a way to describe a decision of a subordinate official that prevails over a decision of the political branches expressed in a law or regulation." United States v. Medico Indus., Inc., 784 F.2d 840, 845 (7th Cir. 1986).

Considering the doctrine of promissory estoppel in a similar vein, we note that the State is bound by its contracts only by virtue of its waiver of sovereign immunity. It is a bedrock principle of sovereign immunity that, "[i]f the State chooses, by legislative action, to waive its sovereign immunity, [the courts] strictly construe[] the waiver in favor of the State." Proctor v. Wash. Metro. Area Transit Auth., supra, 412 Md. 691, 709, 990 A.2d 1048 (2010) (citing Bd. of Educ. v. Zimmer-Rubert, 409 Md. 200, 212, 973 A.2d 233 (2009)); see also ARA Health Servs., 344 Md. at 92, 685 A.2d 435. As we have seen, the legislature's waiver of sovereign immunity in contract actions, contained in S.G. § 12-201(a), waives sovereign immunity only where there is a "written contract that an official or employee executed for the State or 1 of its units while the official or employee was acting within the scope of the authority of the official or employee." Because we must construe this waiver narrowly in favor of the State, we consider that it contemplates a traditional bilateral contract, not a contract that arises through the vehicle of promissory estoppel. We find equally applicable here what this Court said in MTA v. Granite Constr. Co., 57 Md.App. 766, 780-81, 471 A.2d 1121 (1984), when it considered the related concept of recovery against the State on a theory of unjust enrichment:

[R]ecovery for unjust enrichment is based upon an implied in law contract. The two concepts [of sovereign immunity and unjust enrichment] are incompatible. However meritorious a claim based upon an implied contract may be, if that claim is against the State or any of its agencies, it is barred because it is not based upon a written contract. In this case, it would also be barred because it is allegedly based upon a contract implied as a result of conduct on the part of an employee who was acting outside the scope of his employment.

Accordingly, we shall affirm the circuit court's grant of summary judgment as to Count II of appellants' complaint. As noted, we previously rejected the MdTA's asserted bases for contending that the Agreement was unenforceable as a contract, which necessitates a remand for further proceedings. In those proceedings, the Lodge cannot circumvent the State's narrow waiver of sovereign immunity by seeking to recover based on promissory estoppel. If the Lodge is to prevail in this action, it must do so as matter of contract law, not on a theory of estoppel.

F. Cross-Appeal

As noted, the MdTA has noted a conditional cross-appeal, asking that, if we remand to the circuit court, we determine the merits of its motion to disqualify appellants' counsel and exclude certain evidence, on the basis of alleged ethical improprieties involved in appellants' counsel's hiring of former MdTAP Chief McLhinney as a consultant. We decline the Authority's invitation.

The circuit court denied the motion to disqualify as "moot," without deciding the merits, because of its grant of summary judgment to the Authority. We recognize that we are authorized to review issues " raised in or decided by the trial court." Md. Rule 8-131(a) (italics added). In other words, we have discretion to consider a matter that was raised in, but not decided by, the trial court. See, e.g., Carrier v. Crestar Bank, N.A, 316 Md. 700, 725, 561 A.2d 227 (1989); Montgomery County Bd. of Educ. v. Horace Mann Ins. Co., 154 Md.App. 502, 518-19, 840 A.2d 220 (2003), aff'd, 383 Md. 527, 860 A.2d 909 (2004); Mattingly v. Hughes Elees. Corp., 147 Md.App. 624, 645, 810 A.2d 498 (2002), aff'd sub nom. DIRECTV, Inc. v. Mattingly, 376 Md. 302, 829 A.2d 626 (2003). Nevertheless, it is usually "not desirable to address an issue without the benefit of its having been examined and first resolved by the lower court." Carrier, 316 Md. at 725, 561 A.2d 227; see also Mattingly, 147 Md.App. at 645, 810 A.2d 498. This is particularly true of matters that involve contested questions of fact, as appellees' disqualification motion may, because it is not our role to make findings of fact. See, e.g., Gruss v. Grass, 123 Md.App. 311, 321, 718 A.2d 622 (1998) ("We, as an appellate court, will not make factual determinations properly left to the trial court.").

Accordingly, we shall vacate the circuit court's denial of the motion to disqualify, because, in light of our reversal as to summary judgment, it is no longer "moot."

GRANT OF SUMMARY JUDGMENT REVERSED AS TO COUNT I OF PLAINTIFFS' COMPLAINT AND AFFIRMED AS TO COUNT II OF PLAINTIFFS' COMPLAINT. DENIAL OF MOTION TO DISQUALIFY PLAINTIFFS' COUNSEL AND EXCLUDE EVIDENCE VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID 50% BY APPELLANTS, 50% BY APPELLEES.