from the Circuit Court for Baltimore City, Kendra Y. Ausby,
BY: Keith J. Zimmerman (Christopher J. Greaney, Kahn, Smith &
Collins, PA on the brief) all of Baltimore, MD, FOR
BY: Lori Branch-Cooper (Baltimore City Board of School
Commisssioners on the brief) all of Baltimore, MD, FOR
Wright, Kehoe, Berger, JJ.
Md.App. 580] Berger, J.
appeal arises from the decision of the Maryland State Board
of Education (the " State Board" ) affirming the
decision of the appellee, the Baltimore City Board of School
Commissioners (the " Commissioners" ) to uphold the
decision of the Chief Executive Officer for the Baltimore
City Schools (the " CEO" ) to terminate appellant,
Bayani Libit (" Libit" ).
appeal, Libit presents three questions for our
review, which we consolidate and rephrase as
the following question:
[226 Md.App. 581] Whether the State Board erred by affirming
the CEO's termination of a teacher, who had not signed a
State-mandated teacher's contract, and who had been
employed beyond his probationary period.
reasons set forth below, we shall reverse the judgment of the
Circuit Court for Baltimore City.
AND PROCEDURAL BACKGROUND
is a citizen of the Phillippines, and was employed as a
teacher in the Baltimore City Public School System from 2005
until 2013. In 2005, when Libit was hired, he was granted a
visa. In 2008, prior to the expiration of his original visa,
Libit obtained an H-1B visa that was conditioned on
his continued employment. Libit's initial H-1B visa was
valid between September 26, 2008, and June 27, 2011. Upon the
expiration of his H-1B visa in 2011, Libit renewed his visa
for a second three-year period. Libit's second H-1B visa
was scheduled to expire on June 26, 2014. When Libit was
hired in 2005, he held a conditional teaching certificate
that was valid for two years. Thereafter, on July 1, 2006,
Libit was awarded an Advanced Professional Certificate that
was renewed in 2011, and is scheduled to expire in June of
March 22, 2013, Libit was a party to an individual
consultation with the school system's human capital staff
where he was informed that he would not be retained for the
2013-2014 school year. Subsequently, Libit received numerous
[226 Md.App. 582] communications reiterating that he was not
being retained for the following school year, and providing
him information regarding how to arrange travel back to the
Philippines. Thereafter, Libit initiated the appeal process
outlined in Md. Code (1978, 2014 Repl. Vol.) § 4-205(c)
of the Education Article (" ED" ).
appeal was argued before a hearing examiner who rendered her
decision on November 28, 2013. The hearing examiner observed
that it was the school system's policy " that
continued employment for foreign workers employed pursuant to
an H-1B visa have satisfactory performance during their
tenure with [the school system]." Additionally, the
hearing examiner found that in the two years prior to his
Libit had received unsatisfactory performance
evaluations. Furthermore, the hearing examiner
determined that because of Libit's status as an H-1B visa
holder, Libit was " subject to termination at any
time." Accordingly, the hearing examiner recommended
that " the Board affirm the CEO's decision to
terminate [Libit] for misconduct . . . ."
January 28, 2014, the Commissioners convened for a public
board meeting. At the board meeting, the Commissioners
considered whether to adopt the recommendation of the hearing
examiner and affirm Libit's termination. Upon motion, the
Commissioners accepted the recommendation of the hearing
officer in a five-to-three vote.
Md.App. 583] Subsequently, Libit appealed the
Commissioners' decision to the State Board. In an opinion
dated June 27, 2014, the State Board affirmed Libit's
termination. The State Board determined that Libit was not
entitled to the procedural protections generally afforded to
teachers because " the due process protections of §
6-202 . . . presume a property interest in the
employment." The State Board reasoned that Libit could
not have a property interest in his continued employment due
to the finite nature of his visa. The State Board, therefore,
affirmed Libit's termination.
the decision by the State Board, Libit filed a petition for
judicial review in the Circuit Court for Baltimore City. The
circuit court found that Libit was not employed under a
contract that afforded him any pre-termination rights in any
way different than those held by an employee at-will. The
circuit court further found that because Libit was an at-will
employee, he was not entitled to the pre-termination
protections afforded under ED § 6-202(a). The circuit
court, therefore, affirmed Libit's termination. This
timely appeal followed. Additional facts will be discussed as
necessitated by the issues presented.
'On appellate review of the decision of an administrative
agency, this Court reviews the agency's decision, not the
circuit court's decision.'" Long Green
Valley Ass'n v. Prigel Family Creamery, 206 Md.App.
264, 274, 47 A.3d 1087 (2012) [226 Md.App. 584] (quoting
Halici v. City of Gaithersburg, 180 Md.App. 238,
248, 949 A.2d 85 (2008)). Moreover:
" Our review of the agency's factual findings
entails only an appraisal ...