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Donlon v. Montgomery County Public Schools

Court of Appeals of Maryland

July 12, 2018


          Argued: May 2, 2018

          Circuit Court for Montgomery County Case No. 409897

          Barbera, C.J., Greene Adkins Watts Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.


          Harrell, J.

         This is how it is today: The teachers are afraid of the principals. The principals are afraid of the superintendents. The superintendents are afraid of the board of education. The board is afraid of the parents. The parents are afraid of the children. The children are afraid of nothing!

         -Milton Berle (1908-2002) (TV and Motion Picture Icon)

         Although Uncle Miltie's thesis is debatable, the quotation recognizes a chain-of-command structure popular in American public education systems. The present case has something to do with a part of that structure in Maryland.

         We confront here the question of whether a teacher in the Montgomery County Public School ("MCPS") system (or any such system likely) is protected by the Maryland State Whistleblower Protection Law, Md. Code (1993, 2015 Repl. Vol., 2016 Supp.), §§ 5-301-314 (the "WBL") of the State Personnel and Pensions Article ("SPP"). Petitioner, Brian Donlon, contends that teachers employed by the county school board are embraced within the WBL because the county school board is a unit of the Executive Branch of State government.[1] Further, Donlon argues that Respondent, MCPS, should be estopped from contending that it is not a State agency because MCPS has asserted frequently in other contexts State agency status.

         In its defense, MCPS finds comfort in Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129, 747 A.2d 625 (2000), for its view that it and its employees are not a part of the Executive Branch of State government for purposes of the WBL. As regards judicial estoppel, MCPS observes that there is nothing in Maryland law preventing an entity from contending in litigation that it is, in one context, a State agency, but a local county governmental entity for other purposes, as long as the contexts are dissimilar substantively and each supports independently the respective assertions.

         Facts and Proceedings

         Because the question we confront is a purely legal one, we shall provide only such factual background as needed to supply important context.

         In 2012, Donlon, a teacher at Rockville's Richard Montgomery High School ("RMHS") in the MCPS system, discovered what he believed was an inflation by RMHS staff and administration of its Advanced Placement ("AP") course statistics. Donlon accused RMHS of "awarding students credit on their report cards and transcripts when the[] [relevant] classes were in fact [Middle Years Program] classes and did not meet the criteria set by the College Board for AP credit." Donlon reported ultimately RMHS's alleged inflation of AP statistics to the County Superintendent. The Superintendent discounted Donlon's contentions.

         Donlon contacted a journalist at The Washington Post, informing him of RMHS's "wrongdoing." The journalist interviewed members of the MCPS administration regarding Donlon's claim. As a consequence, Donlon contends that members of RMHS' faculty supervisors retaliated against him, [2] in violation of the WBL, for his revelations to the print media. Donlon filed with the Maryland Department of Budget and Management ("DBM") a WBL complaint against MCPS.[3] Donlon requested "compensatory damages, punitive damages, costs and attorney's fees, and equitable relief." Mont. Cnty Pub. Sch. v. Donlon, 233 Md.App. 646, 651-52, 168 A.3d 1012, 1015 (2017), cert. granted, 456 Md. 522, 175 A.3d 150 (2017).

         The Office of the Statewide Equal Employment Opportunity Coordinator ("OSEEOC"), as the designee of the Secretary of the DBM, conducted a review of Donlon's whistleblower complaint.[4] The DBM concluded that Donlon's complaint

does not meet the jurisdictional requirements of the Maryland Whistleblower Law. In accordance with SPP § 5-301, the [WBL] applies to employees and State employees who are applicants for [a] position in the Executive Branch of State government . . . . MCPS [ ] is not an Executive Branch agency of State government, and therefore [Donlon's] complaint is not subject to investigation by this office. Accordingly, [Donlon's] complaint is dismissed.

         Donlon appealed the DBM's ruling to the Maryland Office of Administrative Hearings ("OAH"). After a hearing, an OAH Administrative Law Judge ("ALJ") affirmed the DBM's decision, holding that

there was no jurisdiction to hear the whistleblower claim because Donlon was not an employee of the Executive Branch of State government. The ALJ noted that the State government's [E]xecutive branch contains 19 principal departments, each of which contain subordinate units, and that MCPS is not among them. The ALJ also observed that the State Board establishes policies and guidelines throughout the State, but that it is the county boards of education that employ principals and teachers. The ALJ found that Donlon submitted no evidence that he was an employee of the executive branch and that there was no employer/employee relationship between Donlon and the executive branch. Accordingly, the ALJ concluded that Donlon was not an executive branch employee, that he could not bring a whistleblower complaint pursuant to the WBL, and that DBM and the OAH did not have jurisdiction to hear the case.

Donlon, 233 Md.App. at 655, 168 A.3d at 1017.

         Donlon filed a petition for judicial review in the Circuit Court for Montgomery County. The circuit court, in reversing the ALJ, expressed disagreement with MCPS's argument that it may assert its status as a State entity under certain circumstances, but maintain that it is a local agency in other situations:

THE COURT: Just so I'm clear. So [MCPS] thinks it is okay to wrap itself within the protection of the [Eleventh] Amendment to avoid getting sued in federal court but when you come into the coordinate Brach [sic] and [S]tate courts [and] say no, no, no, no. We're not [S]tate agencies for the purposes of [SPP] 5-301.
* * *
THE COURT: [MCPS]'s argument is frivolous, to be blunt.
* * *
[THE COURT:] It is deeply troubling to me that [MCPS] wants to be shielded when it is good for them and not part of the State when it's not good for them.

         MCPS appealed to the Court of Special Appeals. As pertinent to the certiorari questions for which we granted the petition in this case (discussed infra), our appellate colleagues - in reliance on Chesapeake Charter, 358 Md. 129, 747 A.2d 625 - held "that public school teachers employed by county boards of education are not employees of the Executive Branch of State government." Donlon, 233 Md.App. at 665, 168 A.3d at 1023.[5] The court concluded also that

in light of the "substantial weight" we accord DBM's view, see White [v. Register of Wills of Anne Arundel County], 217 Md.App. [187], 193, 90 A.3d 1213, [1216 (2014)] and the fact that nothing in the statutory text of SPP § 5-301 supports Donlon's argument, we conclude that, as a matter of statutory construction, the WBL does not apply to public school teachers employed by county boards of education because they are not employees of the executive branch.

Donlon, 233 Md.App. at 666-67, 168 A.3d at 1024. The court echoed that "an entity may qualify as a State agency for some purposes, while being classified as a local agency for other purposes." See Wash. Suburban Sanitary Comm'n v. Phillips, 413 Md. 606, 632, 994 A.2d 411, 427 (2010). Therefore, in the context of Donlon's argument that MCPS should be estopped from disclaiming its State agency stature in the present case, the court held that the

applicability of the WBL to MCPS, and MCPS's assertion of sovereign immunity [] are both quintessential issues of law, not of fact. It doesn't matter whether a party takes an inconsistent position compared to one taken in previous litigation. Legal arguments are not judicially estopped. . . . [Thus, ] [t]he county boards were simply asserting legal arguments available to them. . . . [and] MCPS is not judicially estopped from arguing that it is not a State agency for purposes of the WBL.

Donlon, 233 Md.App. at 675-76, 168 A.3d at 1029-30.

         We granted Donlon's petition for a writ of certiorari, Donlon v. Mont. Cnty. Pub. Sch, 456 Md. 522, 175 A.3d 150 (2017), to consider the following questions:

I. What is the relationship of county school employees to the State in the context of Maryland whistleblower protection laws?
II. What distinctions [, if any, ] matter in Maryland's application of the doctrine of judicial estoppel?

         Standard of Review

         We explained in Motor Vehicle Admin. v. Shea, 415 Md. 1, 14-15, 997 A.2d 768, 775-76 (2010) (quoting Motor Vehicle Admin. v. Delawter, 403 Md. 243, 256-57, 941 A.2d 1067, 1076 (2008)), that

[a] court's role in reviewing an administrative agency adjudicatory decision is narrow; it is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.
In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. A reviewing court should defer to the agency's fact-finding and drawing of inferences if they are supported by the record. A reviewing court must review the agency's decision in the light most favorable to it; . . . the agency's decision is prima facie correct and presumed valid, and . . . it is the agency's province to resolve conflicting evidence and to draw inferences from that evidence.
Despite some unfortunate language that has crept into a few of our opinions, a court's task on review is not to substitute its judgment for the expertise of those persons who constitute the administrative agency. Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Furthermore, the expertise of the agency in its own field should be respected.

See also Md. Code (1984, 2014 Repl. Vol.), § 10-222 of the State Government Article ("SG").[6]

         The questions for which we granted Donlon's petition focus on whether county boards of education are units of the State Executive branch. These questions are purely questions of law. It is, thus, our "prerogative to determine whether [the] agency's conclusions of law are correct." Bd. of Liquor License Comm'rs for Balt. City v. Kougl, 451 Md. 507, 513, 154 A.3d 640, 644 (2017) (quoting Adventist Health Care, Inc. v. Md. Health Care Comm'n, 392 Md. 103, 120-21, 896 A.2d 320, 331 (2006)).

         In Phillips, 413 Md. at 618-19, 994 A.2d at 419 (quoting Lockshin v. Semsker, 412 Md. 257, 274-78, 987 A.2d 18, 28-29 (2010) (internal citations omitted)), we iterated the canons guiding us in the process of divining legislative intent:

The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court's primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.
To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute's apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with "forced or subtle interpretations" that limit or extend its application.
We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute's plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute's object and scope.
Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions.
In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.

         In addition, we presume that the Legislature is

to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law. Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.

Bd. of Ed. of Garrett Cnty. v. Lendo, 295 Md. 55, 63, 453 A.2d 1185, 1189 (1982).


         I. County Boards of Education and the State Executive Branch.

         Donlon grounds his contentions on what he believes to be well-established Maryland law holding that county boards of education are State agencies across-the-board. As this goes, county boards of education must be units of the State Executive branch because clearly they are not units of the Judicial or Legislative branches. The Maryland State Board of Education ("MSBE"), a county board's canonical State agency overseer, [7]exercises considerable administrative influence, control, and oversight over county boards. Thus, to the extent the Court of Special Appeals relied on the holding of Chesapeake Charter to reject Donlon's view, it did so based on an inappropriately expansive reading of that opinion. To that end, Donlon points to Beka Indus., Inc. v. Worcester County Bd. of Educ., 419 Md. 194, 217, 18 A.3d 890, 904 (2011), which explained that Chesapeake Charter's holding was "a narrow one."

         Donlon urges upon us that the frequency of Maryland cases holding county school boards to be agents of the State should compel us to read the WBL to extend protection to public school teachers. Donlon insists, at the very least, that the WBL is ambiguous as to its coverage in this regard. Thus, recourse to the canon of statutory interpretation of in pari materia is necessary to pierce the enigma, by harmonizing the WBL with the Public School Employee Whistleblower Protection Act (the "PSEWPA"), Md. Code (2017, 2018 Repl. Vol.), §§ 6-901-906 of the Education Article ("Educ.") (effective 1 October 2017), which extends expressly whistleblower protection to "any individual who is employed by a public school employer or an individual of equivalent status in Baltimore City."

         MCPS, in response, directs our attention to Phillips, contending that "an entity may qualify as a state agency for some purposes while being classified as a local agency for other purposes." 413 Md. at 632, 994 A.2d at 427. MCPS concedes that this Court has stated frequently that county boards of education are State agencies. These occasions, however, are characterized by MCPS as either dictum or occur in the limited context of asserting Eleventh Amendment/sovereign immunity defenses. As MCPS's argument goes, although a county school board may invoke its State-delegated sovereign function in appropriate circumstances, some operations are local predominately in structure and/or character, such that it is impossible to classify the board for all purposes as a State entity. See Chesapeake Charter, 358 Md. at 137-40, 747 A.2d at 629-31.

         Furthermore, MCPS marshals as authorities the PSEWPA, Chesapeake Charter, and published opinions of the MSBE and the Maryland Attorney General's Office confirming the view that public school employees, like Donlon, are not extended WBL protection. The PSEWPA excludes State employees from its definition of "public school employee." See Educ. § 6-901 (b)(2) ("Public school employee" does not include a State employee.). Thus, if we were to hold county school boards to be State agents, then by PSEWPA definition, they are not protected "Public School Employees."

         MCPS notes that, at the same time Donlon invokes the canon of in pari materia and implores this Court to meld the WBL with the PSEWPA, he offers no legal analysis for how the Court can blend harmoniously the two statutes to extend WBL coverage to public school teachers. MCPS contends as inapt applying in pari materia to two statutes that render relief to alternative classifications of employees through different enforcement mechanisms.

         It is accurate to observe that we have referred to county boards of education as State entities in a variety of contexts, but none are consequential to the present case. Those expressions appeared only in dictum, for one thing. Even in those instances, it is obscure sometimes as to why those conclusory statements were made. See State v. Bd. of Educ. of Mont. Cnty., 346 Md. 633, 635 n. 1, 697 A.2d 1334, 1335 n. 1 (1997) (stating in dictum, in the context of an "intra-governmental dispute between a principal department of the State government and a [assumed] State agency, the Board of Education of Montgomery County" that "[t]he various county boards of education are State agencies."); Bd. v. Sec 'y of Pers., 317 Md. 34, 44 n. 5, 562 A.2d 700, 705 n. 5 (1989) (explaining in dictum, in the context of whether the Prince George's County Board of Education had a right to challenge the audit procedures for education records, that it "is settled that county boards of education are State agencies"); Bd. of Educ. v. Prince George 's Cnty. Educators' Ass 'n, 309 Md. 85, 95 n. 3, 522 A.2d 931, 936 n. 3 (1987) (addressing a challenge to whether the statutory grounds for vacating an arbitration award are applicable, the Court stated in dictum that "[c]ounty boards of education are, of course, state agencies and not agencies of the county governments."); Mont. Cnty. Ed. Ass 'n v. Bd. of Educ, 311 Md. 303, 317, 534 A.2d 980, 987 (1987) (recognizing county boards of education as State agencies, in the course of contextualizing the issue of whether "the employees' designated representatives may require a public school employer to negotiate, and thus possibly to arbitrate, the issues of the school calendar and job reclassification."); McCarthy v. Bd. of Educ. of A.A. Co., 280 Md. 634, 639-50, 374 A.2d 1135, 1138-43 (1977) (mentioning that the Anne Arundel County Board of Education is a State Agency, in reaching its ultimate conclusions on preemption, and the county council could not legislate in the field and place additional duties upon the county board); Bd. of Ed. v. Mont. Cnty., 237 Md. 191, 197, 205 A.2d 202, 205 (1964) (determining, in the context of whether the Montgomery County Board of Education was entitled to the surplus of collected school tax levies, that the board is neither a branch of the county government nor an agency under its control). Until Chesapeake Charter, we were not presented with a question conducive to the premise whether county boards are, in fact, State agencies or units of the Executive branch of government, apart from questions of sovereign immunity.

         Whether a county board of education is a State agency has arisen in recent times in the context of Eleventh Amendment/sovereign immunity challenges. See Lee-Thomas v. Prince George's Cnty. Pub. Sch., 666 F.3d 244, 248 n. 5 (4th Cir. 2012) (concluding that county boards of education are arms of the State entitled to Eleventh Amendment immunity; moreover, the court accepted arguments made by the county board that federal and state courts concluded that Maryland boards of education are State agencies for Eleventh Amendment immunity purposes.); Jones v. Fred. Cnty. Bd. of Educ., 689 F.Supp. 535 (D. Md. 1988) (concluding that the Frederick County Board of Education is an agent of the State of Maryland entitled to Eleventh Amendment immunity); Beka, 419 Md. at 210, 18 A.3d at 900 ("affirm[ing] that a county board of education, is 'a State agency entitled to governmental immunity'" when assessing whether a county board of education is subject to a statutory waiver of immunity); Bd. of Educ. of Balt. Cnty. v. Zimmer-Rubert, 409 Md. 200, 205, 973 A.2d 233, 236 (2009) (there was no contention between the parties that the Baltimore County Board of Education was a State agency for purposes of whether a provision in the Maryland Code's Courts and Judicial Proceedings Article waives the board's Eleventh Amendment immunity); Norville v. Bd. of Educ., 160 Md.App. 12, 35- 62, 862 A.2d 477, 489-507 (2004) (Anne Arundel Board of Education is an arm of the State for purposes of Eleventh Amendment immunity); see also Bd. of Trs. of Howard Cnty. Coll. v. John K. Ruff, Inc., 278 Md. 580, 588, 366 A.2d 360, 365 (1976) (a community college, funded partially by local funds, is an agency of the State for purposes of sovereign immunity).

         To understand whether the powers and functions of the local boards of education support distinguishing their status as State or local entities, we begin with some perspective as to the MSBE's role. The MSBE exercises broad dominion and control over the administration of the public-school system in Maryland. We explained in Bd. of Educ. of Prince George's Cnty. v. Waeldner, 298 Md. 354, 359-61, 470 A.2d 332, 335 (1984), that,

[u]nder [Educ.] § 2-205(g)(2) . . ., the State Board is directed to "exercise general control and supervision over the public schools and educational interests of this State." [Educ. §] 2-205(b) empowers the State Board to "[d]etermine the elementary and secondary educational policies of this State"; § 2-205(c) directs the State Board to "adopt bylaws, rules, and regulations for the administration of the public schools." [Educ. §] 2-205(e) provides that the State Board "shall explain the true intent and meaning of the provisions of . . . [the Education Article] . . . within its jurisdiction"; the same subsection mandates that the State Board "shall decide all controversies and disputes under these provisions" and further states that "[t]he decision of the Board is final."
The totality of these provisions has been described as a visitatorial power of such comprehensive character as to invest the State Board with the last word on any matter concerning educational policy or the administration of the system of public education. The broad sweep of the State Board's visitatorial power has been consistently recognized and applied since the principle was first enunciated in 1879 in Wiley v. School Comm'rs, 51 Md. 401. The power of visitation vested in the State Board is one of general control and supervision; it authorizes the State Board to superintend the activities of the local boards of education to keep them within the legitimate sphere of their operations, and whenever a controversy or dispute arises involving the educational policy or proper adminsitration [sic] of the public school system of the State . . . .

(internal citations, quotation marks, and alterations omitted). Moreover, "the [MSBE's] power authorizes it to correct all abuses of authority and to nullify all irregular proceedings" of county boards. Waeldner, 298 Md. at 361, 470 A.2d at 335. This implies that MSBE acts as the administrative entity of last resort, see Chesapeake Charter, 358 Md. at 139, 747 A.2d at 631, rather than the first step to be climbed on the ladder to administrative relief.

         Maryland Code (1984, 2014 Repl. Vol.) § 8-201 of the State Government ("SG") Article lists 19 principal departments of the Executive branch of State government. As the Court of Special Appeals noted, county boards of education are not enumerated in SG § 8-201.[8] Nevertheless, county school boards exist by virtue of the acts of the General Assembly and have been categorized as State agencies, but also recognized as possessing a hybrid nature. See Beka, 419 Md. at 212, 18 A.3d at 901 (referring to county boards of education as hybrid in nature); Clauss v. Bd. of Ed. of Anne Arundel County, 181 Md. 513, 520, 30 A.2d 779, 782 (1943) ("it is not necessary for the purposes of the present case to determine whether in all cases the Board of Education of Anne Arundel County is an agency of that County. It may, for some purposes, be an agency of the State."); Dean v. Bd. of Educ. of Cecil County, 71 Md.App. 92, 98, 523 A.2d 1059 (1987) (County boards of education in Maryland seem to have a "peculiar hybrid nature," with attributes of both State and county government). Entities "may qualify as a State agency for some purposes, while being classified as a local agency for other purposes." Phillips, 413 Md. at 632, 994 A.2d at 427. County boards of education defy "simple and definitive categorization as either a 'State' or 'local' agency or instrumentality for any and all purposes." Phillips, 413 Md. at 630, 994 A.2d at 426.[9]

         We elaborated in Chesapeake Charter on the hybrid nature of county school boards of education. In Chesapeake Charter, we were charged with determining "whether [the Anne Arundel County Board of Education] is subject to the General Procurement Law[10] and, as a result, [Maryland State Board of Contract Appeals] [(]MSBCA[)] has any jurisdiction in this matter, hinges on whether a county school board is 'a unit' within the meaning of that law." Chesapeake Charter, 358 Md. at 134, 747 A.2d at 628.

         We explained that

although the county boards are generally regarded as State agencies because they are part of the State public education system, are subject to extensive supervision and control by the State Board of Education, and exercise a State function, from a budgetary and structural perspective, they are local in character. They are not divisions of or units within the State Department of Education. They are subject to the county, not the State, budget process and must justify their budget requests to the county government. Most of their operational funding comes from the county, not the State, government. When these factors are taken into account, it is clear that the general characterization of county boards of education as State agencies does not require a finding that they are entities "in the Executive Branch of the State government" for purposes of S.F.P. § 11-101(x).

358 Md. at 139-40, 747 A.2d at 630-31. In noting that county school boards owe their existence to the Legislature, we observed that

[i]n 13 counties, the members of the board are elected by the voters of the county ([Educ] § 3-114); in Baltimore City, the members of the board, other than a student member, are appointed jointly by the Governor and the Mayor of Baltimore ([Educ] § 3-108.1); in the other counties, the members are appointed by the Governor from among the residents of the county ([Educ] § 3-108). The county school systems are funded in part by the State and in part by the counties. Hornbeck v. Somerset C[nty]. Bd. of Educ, 295 Md. 597, 458 A.2d 758 (1983). Although in terms of their composition, jurisdiction, ...

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