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Dyer v. Board of Education of Howard County

Court of Special Appeals of Maryland

March 26, 2014

ALLEN R. DYER
v.
BOARD OF EDUCATION OF HOWARD COUNTY

Krauser, C.J., Hotten, Berger, JJ.[1]

OPINION

Page 828

[216 Md.App. 532] Berger, J.

This appeal involves a dispute between the Howard County Board of Education (" the Board" ) and Allen R. Dyer (" Dyer" ), a former member of the Board. On March 3, 2011, a hearing was conducted by the Board's Ethics Panel in response to two complaints that had been filed against Dyer. The hearing was not open to the public. Dyer brought this action in the Circuit Court for Howard County, asserting, inter alia, that the Ethics Panel violated the Maryland Open Meetings Act. On appeal, Dyer presents a single question for our review, which we have rephrased as follows:

[216 Md.App. 533] Whether the Ethics Panel's March 3, 2011 hearing violated the Maryland Open Meetings Act.

For the reasons set forth herein, we answer the question in the negative, and affirm the judgment of the Circuit Court for Howard County.

FACTS AND PROCEEDINGS

The parties stipulated to an agreed statement of facts, from which we draw primarily[1] in our recitation of the facts as follows:

1. [The Board] adopted the Howard County Public Schools System Ethics Regulations, in accordance with State Law.
2. In accordance with the Ethics Regulations, the school board appoints a five-member Ethics Panel from among the residents of the County.
3. The duties of the Ethics Panel include processing and making determinations on complaints filed by any person alleging violations of the Ethics Regulations and referring findings regarding complaints to the school board for action.
4. By letter dated December 23, 2010, Andrew Nusssbaum [sic], Esquire, sent a letter to [Dyer], on behalf of the Ethics Panel, informing him that two complaints against him had been filed.
5. The letter from Mr. Nussbaum enclosed a redacted copy of the complaints, a copy of the Ethics Regulations, a copy of the Rules for the Ethics Panel, and a copy of the

Page 829

Rules of Procedure for Hearings Before the Ethics Panel.
6. By letter dated February 15, 2011, Mr. Nussbaum informed [Dyer's] counsel, Harold H. Burns, Jr., Esquire, that a hearing before the Ethics Panel had been [216 Md.App. 534] scheduled for Thursday, March 3, 2011 beginning at 3:00 p.m.
7. The February 15, 2011[] letter included the following:

" I would again remind you, your client, the Complainants, and Student Board Member Alexis Adams, to whom copies of this letter are also being sent, that, pursuant to Ethics Regulations, '[a]ll actions regarding a complaints hall be treated confidentially.' I would request that all parties maintain that confidentiality and that nothing regarding this matter be discussed with, or disclosed to, any other individuals."

8. By letter dated February 24, 2011, [Dyer's] counsel, Mr. Burns, wrote to Mr. Nussbaum stating, inter alia, that the complaints did not state any violation of the Ethics Regulations, that the discussion involved political speech protected by the First Amendment, that the Ethics Panel's investigation of the complain[t]s should cease immediately because it infringed on [Dyer's] constitutional right to free speech, and that the proceedings could not be confidential " vis-vis the Board itself."
9. [Dyer] attended the March 3, [2]011 Ethics Panel hearing which was not open to the public and testified under oath.
10. The Ethics Panel hearing was transcribed by a court reporter.
11. On March 10, 2011, at 2:20 p.m., the school board met in open session, ultimately voting 5-3 to close the meeting for the reasons stated in the ...

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