BOARD OF EDUC. OF AA CTY. v. Barbano

Lowe, J., delivered the opinion of the Court. — background — Edward F. Barbano, the appellee in this case, was a probationary teacher in Aniie Arundel County. By virtue of a State Board of Education bylaw (13.06.02), two years are to be served in such capacity before a teacher may be cloaked with tenure. Within constitutional limits, and upon proper notice by the employing county board of education prior to May 1 of either of the first two years, a teacher’s employment may be terminated for whatever reasons, without redress by the probationer. Unless such notice of termination is given, however, the teacher’s holding of his position is protected by "tenure”.

This simply means that he can not be dismissed or suspended thereafter except for cause, i.e., immorality, misconduct in office, insubordination, incompetency or willful neglect of duty. Md. Code, Ed. Art., § 6-202 (a) 1 (1). ²⁹ While those grounds seem at first blush broad enough to provide substantial latitude to the employer sufficient to permit retaining only teachers of the highest caliber, the tenure provision in Md. Code, Ed. Art., § 6-202 provides further deterrents to dismissal. Before the individual can be removed for any of these causes, he must be provided notice, § 6-202 (a) (2), and a right to be heard, first by the county board, § 6-202 (a) (3), and if unsuccessful, then by the State Board, § 6-202 (a) (4). The procedure for the dismissal is set forth in Ed. Art., § 6-202.

Where the teacher has tenure, the "charges” are preferred by the county superintendent in the form of a recommendation to the county board that the teacher be dismissed for cause. Upon the proper notice, the board must hold a hearing. The practice has evolved that requires the superintendent to substantiate the cause asserted to support his recommendation. Although it is the board that makes the decision whether or not to terminate, because the teacher’s contract is with it, in reality the board acts in the manner of an impartial tribunal judging the charges made by one of its employees (the superintendent) against another of its employees (the teacher) and the latter’s defense to those charges.

Because of the obvious, central role that teachers play in the educational process, the policies and practices pertaining to their employment relationship are matters of considerable importance to every segment concerned with public education. This includes legislative bodies that must appropriate the money to pay the teachers’ salaries, boards of education and supervisory personnel responsible for administering the school system, students (for whom the entire system exists) who expect and have a right to be properly taught, parents who pay the taxes to fund the appropriations and, of course, the teachers whose means of livelihood are at issue. Trying to balance these interests, the General Assembly authorized the State Board of Education to provide a tenure system. Ed. Art., § 6-202 (b) provides, however, that the State Board is not prohibited "from adopting bylaws to ³⁰ provide for a probationary period of employment of 2 years or less,” during which a teacher’s adequacy to instruct may be screened.

Most of the grounds for dismissal after the obtention of tenure are highly subjective in nature and are often incapable of precise measurement by reference to any single act. Incompetency is the most subjective of these causes and perhaps more than the others it calls for careful evaluation of the teacher during the 2-year probationary period. Bylaw 13.06.02 was the State Board’s implementation of the authority providing the probationary period. It set forth a "Regular Contract” uniformly throughout the State containing the two year probationary period provision.

As time passed it became apparent that such contractual uniformity did not take into account the variables of probationers’ evaluations in the 23 counties. The State Board also recognized that it was not up to the task of becoming a super-evaluator so it promulgated a study to establish evaluation guidelines. Out of respect for the divergent administrative peculiarities within the 23 counties, it did not seek a rigid uniformity but did attempt to systemize the procedure. See Wojtulewicz v. Board of Education of Baltimore County, No. HE-17-71-MC (May 30, 1973).

The State Board by resolution resolving to adopt "Guidelines for the Evaluation of Probationary Teachers” (guidelines), seemed to recognize the need for procedural discretion among the counties. "The Board does not wish to substitute its judgment for those of the evaluators who have the direct responsibility of supervising probationary teachers.” That approach was enforced by a more forceful addendum. The resolved "guidelines” compelled the county boards of education to adopt evaluation procedures which were "not inconsistent” with those. which it set forth as its own guidelines by resolution. ³¹ The State guidelines 2 prescribed, among other things, a minimum number of observations of the probationary teacher each year, (4), by more than one qualified observer, after each of which the observer would consult with the teacher and submit a written report. But the State Board’s procedures resolving these "guidelines” left something to be desired in determining their intended effect.

By Ed. Art., § 2-205, the State Board is authorized to "adopt bylaws, rules, and regulations for the administration of the public schools”, (c) (1), and "[t]hese bylaws, rules, and regulations have the force of law when adopted and published.” (Emphasis added) (c) (2). The statute also indicates that the establishment of a probationary period should be enacted by a bylaw, and inferentially then, so should the procedures of evaluation during that period. "Except for personnel of the Baltimore City public schools at the level of assistant superintendent or above, this section does not prohibit the State Board from adopting bylaws to provide for a probationary period of employment of 2 years or less.” Ed. Art., § 6-202 (b). Why the State Board elected to proceed by "resolving” to "adopt guidelines” rather than by enacting a bylaw, or even a rule or regulation as established statutorily for administrative procedures, is unknown.

What is certain, however, is that by failing to more formally legislate or regulate as authorized, the guidelines have neither the force nor the effect of law. Even if interpretatively this resolve could be called by any other name, e.g., a bylaw, rule or regulation, its enactment did not comply either with § 2-205 ³² (c) (2) which withholds endowing them with the force of law until adopted and published, or with Md. Code, Art. 41, § 9 (as it then read) which required that copies of any rule or regulation enacted by a regulatory entity should be filed with the Clerk of the Court of Appeals, the Secretary of State, the State Library, the circuit court libraries and with the Department of Legislative Reference, before it becomes legally effective. Effective or not, the Anne Arundel County Board of Education (appellant here) presumably attempted to comply with the State Board’s resolve, but again the method of compliance did not conform even to that which the State Board’s resolution called for. The county board did not "adopt evaluation procedures” as the State Board’s resolution provided it "shall” do; rather, according to the record, a Director of Staff Relations in the Anne Arundel County Department of Education sent out a memorandum to "All Principals” enclosing a copy of the "Guidelines for the Evaluation of Probationary Teachers recently adopted by the State Board of Education and effective September 1, 1974.” The memo then compared the guidelines’ requirements with the "TAAAC [Teachers Association of Anne Arundel County] negotiated agreement” which had been previously negotiated and adopted in that County.

The Director’s memo explained that: "In implementing Article 16 of the TAAAC — Board agreement, the principal can also satisfy the requirements of the State guidelines, except that the following provisions of the latter go beyond the requirements of the local agreement and must, therefore, be observed: 1. For probationary teachers, conferences and written reports must follow each of four conferences per year. 2. For probationary teachers the rating must be based on the conclusions and assessments of more that [sic] one staff member. 3. The rating must be considered as a factor in ³³ recommending non-renewal of a probationary teacher’s contract.” — this case — In the case of probationary teacher Edward F. Barbano, it is uncon tested that there has been less than absolute adherence to the State Board guidelines; however, the State Board decided (contrary to the recommendation of its examiner) that the evaluation had been adequate because it had been fair and impartial.

The deviation from categorical adherence to these guidelines, in the opinion of the State Board, was not prejudicial to Barbano in that there had been "substantial adherence to their provisions” during the period when Barbano’s performance "was found wanting”. Barbano appealed that decision to the Circuit Court for Anne Arundel County which ultimately reversed the State Board’s affirmance of the County Board’s refusal to renew Barbano’s contract. The only issue which it decided was: "What is the legal effect of a County Board of Education’s decision not to renew a probationary (non-tenured) teacher’s employment contract, when that decision is arrived at following less than absolute adherence to 'guidelines’ adopted by the State Board of Education?” The trial judge held that despite the unenforceability of the State Board’s resolution, not having the force of law, 3 "since the State Board promulgated the guidelines, both it and the County Boards are constrained to observe their terms.” He further decided that even analogizing the statutory authority of the State Board to explain and interpret its own bylaws, rules and regulations, with the exclusive right to explain and interpret its own resolved guidelines, the minimum observations, reports, conferences and observers which were not met by the County authorities, were ³⁴ "numbers” which were too clear to be subject to explanation or interpretation. The right-to-interpret provision he referred to is another unique provision found in the broad fields of education which at the time of the State Board hearing read: 4 "The State Board of Education shall, to the best of their ability, cause the provisions of this article to be carried into effect.

They shall determine the educational policies of the State; they shall enact bylaws, rules and regulations for the administration of the public school system, which when enacted and published shall have the force of law. For the purpose of enforcing the provisions of this article, and the enacted and published bylaws, rules and regulations of the Board, the State Board of Education shall, if necessary, institute legal proceedings. The State Board of Education shall, without charge and with the advice of the Attorney General of Maryland, explain the true intent and meaning of the law, and shall decide all controversies and disputes that arise under it, and their decision shall be final; and the secretary of the State Board of Education shall have authority to administer oaths, in any part of the State, to witnesses in any matter pending before said Board.” Md. Code, Art. 77, § 6. — administrative precedent — Prior to Barbano’s case, which the State Board decided on June 29, 1977, it had previously decided two similar cases ³⁵ using divergent explanations. In Eugene P. Macri v. Board of Education of Washington County, No. HE-9-76-FD (November 23, 1976), the majority of a divided State Board found that its "Guidelines for the Evaluation of Probationary Teachers” stated minimum standards that "should be followed with reasonable precision” even where the result is to grant tenure to a teacher whose qualifications are in doubt.

In Gloria Summers v. Board of Education of Frederick County, No. 77-8 (No. HE-18-76-MC) (March 30, 1977), however, the State Board backed away from its decision in Macri. Adopting the Findings and Conclusions of the Hearing Examiner, the State Board found that its guidelines could be followed without rigid adherence if they had been substantially complied with. "[T]he underlying purpose of the guidelines is not to assure that a probationary teacher will be given a fixed number of written reports, but rather that he or she will be given every reasonable opportunity to correct deficiencies and will be given adequate notice that failure to correct is likely to result in non-renewal.” Subsequently, in this case, Barbano v. Board of Education of Anne Arundel County, No. 77-11 (No. HE-21-76-FD) (June 29, 1977), the State Board relied for its decision upon Summers, not Macri. The State Board held that so long as the facts indicated that the probationary teacher had been fairly and impartially evaluated, it was irrelevant that the guidelines were not categorically adhered to.

Based upon this holding, the State Board affirmed the County Board’s decision not to renew appellee’s employment contract, after his second year of probationary employment. —- the Accardi doctrine — In reversing the State Board, the trial judge emphasized that he did not intend to interfere either with the interpretive right of the State Board’s regulations or its power to control public schools. "It seems beyond dispute that numbers, which are ³⁶ the essential characteristics of the provisions listed above, cannot have any possible meaning other than their manifest expression. Thus, the nature of the particular provisions of the guidelines involved in this case is such that it permits no interpretation or explanation. This finding in no way detracts from the concededly special powers of the State Board to control and supervise the public schools.

Robinson v. Board of Education of St. Mary’s County, 143 F. Supp. 481 (D. Md. 1956); Zeitschel v. Board of Education of Carroll County, 274 Md. 69 , 332 A.2d 906 (1975).” He then went on to hold essentially that unless the language of bylaws, rules, regulations (or analogous resolved guidelines) is ambiguous, the State Board must strictly compel adherence to them. This ruling was obviously contrary to the State Board’s own opinion in Summers that substantial compliance would suffice. 5 The judge’s opinion said in part: "This Court only finds that, when the State Board purports to control and supervise by promulgating guidelines for evaluation of probationary teachers, it must be bound by its own decision. In accord with this finding, the following language seems particularly fitting: 'Where an Agency confers a benefit by its regulations to a party in proceedings before it, it should not be permitted capriciously to deprive a party of that benefit.’ Equal Employment Op. ³⁷ Com’n. v. United States Pipe & F. Co., 375 F. Supp. 237, at 247 (N.D. Ala. 1974). This holding is in accord with what seems to be the general rule in the sphere of administrative law: that action taken by an administrative agency in violation of its own procedural requirements cannot stand, and must be stricken down by the courts.

E.g., Hopkins v. Md. Inmate Griev. Comm’n., 40 Md. App. 329 , 391 A.2d 1213 (1978), and cases cited therein. This doctrine has been expanded to encompass administrative procedures promulgated in forms other than formal rules and regulations. E.g., United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (I.R.S. news release); Mandel v. U.S. Dept. of Health, Ed. and Welfare, 411 F. Supp. 542 (D. Md. 1976) , modified on appeal, 562 F.2d 914 (4th Cir. 1977) (pamphlet or policy statement).

Also, the general rule seems to be that an administrative agency must follow its own procedures, whether the particular proceedings are 'adjudicative’, 'investigative’ or 'legislative’ in character. Cases in other Circuits have indicated that they would limit these general rules. E.g., Union of Concerned Scientists v. Atomic Energy Com’n., 499 F.2d 1069 (D.C. Cir. 1974) (violation of agency 'doctrine’ distinguished from violation of a rule or regulation); United States v. Leahey, 434 F.2d 7 (1st Cir. 1970) ('adjudicatory — investigatory dichotomy’). However, this Court finds the rule in the Fourth Circuit, and the better rule, to contemplate that an administrative agency is required to absolutely comply with the guidelines as well as the rules and regulations it promulgates and that this rule applies equally to adjudicative and investigative agency activities.

See United States v. Heffner, supra; Mandel v. U.S. Dept. of Health, Ed. and Welfare, supra; Equal Employment Op. Com’n. v. Western Electric Co., Inc., 382 F. Supp. 787 (D. Md. 1974); Equal Employment Op. Com’n v. Westvaco Corp., ³⁸ 372 F. Supp. 985 (D. Md. 1974); Equal Employment Op. Com’n. v. Firestone Tire & Rubber Co., 366 F. Supp. 273 (D. Md. 1973); Hopkins, supra. [6] There are recognized exceptions to the rule that an agency must carefully follow its own procedural requirements.

However, these exceptions seem to be limited to situations other than what is presented in the instant case. E.g., American Farm Lines v. Black Ball Freight, 397 U.S. 532 , 25 L. Ed. 2d 547 (1970) and Matthews v. Walter, 512 F.2d 941 (D.C. Cir. 1975) (where procedural rules are intended to ensure 'the orderly transaction of agency business’, as opposed to being 'intended to "confer important procedural benefits” upon the parties before the agency’.); Taylor v. Maryland School for the Blind, 409 F. Supp. 148 (D. Md. 1976), aff'd. 542 F.2d 1169 (4th Cir. 1976) ('some greater interest was served by the violation’). This Court agrees with the Hearing Examiner’s opinion that the guidelines at issue here were meant to function in part as aids to assist probationary teachers in becoming competent. As such, the guidelines were meant to confer an important procedural benefit upon probationary teachers, a benefit which must be protected by ³⁹ requiring strict adherence to the provisions of the guidelines.” — our opinion —- The concluding premise underlying the trial judge’s opinion, i.e., that "the guidelines were meant to confer an important procedural benefit upon probationary teachers .. ..” is at best questionable.

That probationers are the beneficiaries carries a seed of correctness but other beneficiaries of the guidelines appear to sprout like springtime croci from them also. To have rested his opinion on that premise overlooks the practical purpose as well as the underlying concept from which the guidelines emanated. That purpose — and its tangential benefits — were discussed by the State Board in its opinion prefacing enactment of the resolution attempting to adopt them. It was set out at length in Wojtulewicz v. Board of Education of Baltimore County decided May 30, 1973.

Because the State Board found it "... practically impossible to substitute our judgment for those of the educators who have the direct responsibility of supervising probationary teachers,” the Board expressed a more basic concern that the administrative procedural hodge-pot would deter the dismissal of incompetents during the dismissable period. "Moreover, we are concerned that an elaborate appeals procedure involving non-renewal of the contracts of probationary teachers would discourage local administrators from taking stern action against teachers who proved themselves inadequate during the probationary period and that a stream of appeals would seriously interfere with the regular workload of educational administrators and boards of education.” ⁴⁰ Added to these primary concerns was the danger of losing a good teacher by a jaded supervisor who unchecked may abuse his discretion. "At the same time we are not unmindful of the danger of abuse of discretion, of the danger that a bright and resourceful new teacher could