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Libit v. Balt. City Bd. of Sch. Comm'rs

Court of Special Appeals of Maryland

January 29, 2016

BAYANI LIBIT
v.
BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

         Appeal from the Circuit Court for Baltimore City, Kendra Y. Ausby, JUDGE.

         ARGUED BY: Keith J. Zimmerman (Christopher J. Greaney, Kahn, Smith & Collins, PA on the brief) all of Baltimore, MD, FOR APPELLANT.

         ARGUED BY: Lori Branch-Cooper (Baltimore City Board of School Commisssioners on the brief) all of Baltimore, MD, FOR APPELLEE.

          Wright, Kehoe, Berger, JJ.

          OPINION

Page 1118

         [226 Md.App. 580] Berger, J.

         This 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" ).

Page 1119

          On appeal, Libit presents three questions for our review,[1] 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.

         For the reasons set forth below, we shall reverse the judgment of the Circuit Court for Baltimore City.

         FACTUAL AND PROCEDURAL BACKGROUND

         Libit 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[2] 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 2016.

         On 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.[3] 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" ).

         Libit's 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 termination,

Page 1120

Libit had received unsatisfactory performance evaluations.[4] 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 . . . ."

         On 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.[5]

          [226 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.

         Following 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.

         STANDARD OF REVIEW

          " '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 ...

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