Board of Education v. Crawford

Smith, J., delivered the opinion of the Court. We shall here hold that the Maryland State Board of Education (the State Board) erred when it awarded back pay to respondent, Margaret R. Crawford (Mrs. Crawford), on the theory of a wrongful dismissal which it regarded as a breach of contract. The only constitutional deprivation suffered by Mrs. Crawford was procedural in nature since the State Board found that she was in fact incompetent. The State Board relied in part upon Thomas v. Ward, 529 F. 2d 916 (4th Cir. 1975), and Horton v. Orange County Board of Education, 464 F. 2d 536 (4th Cir. 1972), upon which latter case Thomas rested.

As we shall hereafter point out, the holding in those cases has been reversed by the Fourth 'Circuit very recently in the light of a recent decision of the United States Supreme Court. The scenario opens in the winter of 1974-75 with attempts on the part of supervisory personnel of petitioner, Board of Education of Charles County (the County Board), to bring the teaching performance of Mrs. Crawford up to what might be regarded as an acceptable level. On April 10, 1975, her principal advised the County Board’s Director of Administrative Services: It is my opinion that Mrs. Margaret Crawford is not doing the job well as a tenured educator. I’ve had people in to help her, sent her to other schools for observation, made definite recommendations to her and still there is little or no improvement in her teaching of children. ²⁴⁷ The classroom is a “playhouse” and many parents have asked that their children be assigned another classroom.

According to our school records four children have already been hurt in that room, one from a pair of scissors that was thrown across the room. I am today recommending that this teacher not be reassigned for another year. This was followed by an evaluation on April 21 by the principal and a specialist in elementary education of the County Board. The principal stated, “Teaching in this classroom has been very poor because of: 1.

Inability to manage class; 2. Poor preparation; 3. Attitude of teacher toward pupils and 4. Inability to relate.” The specialist said, “Much valuable instructional time is wasted trying to maintain classroom control and discipline.” On May 29 the County Board’s Director of Administrative Supervisory Services recommended to the Superintendent of Schools of Charles County that Mrs. Crawford “be dismissed on the grounds of incompetency under Section 114, Article 77 of the Public School Laws of Maryland,” an action of which he said he informed Mrs. Crawford at a conference held at 12:30 p.m. on that date at the school where she was employed.

A copy of this communication was directed to her. Maryland Code (1957, 1975 Repl. Vol.) Art. 77, § 114 was applicable at the time of the inception of this controversy. 1 Under it “[a]ny county board of education may, on the recommendation of the county superintendent of schools ... dismiss any teacher ... for immorality, misconduct in office, insubordination, incompetency, or wilful neglect of duty, provided that the charge or charges be stated, in writing, to such person and that such person be given an opportunity lo be heard by the said board of education upon not less than 10 days’ notice,” with further provision for “an appeal from the board’s decision ... to the State Board of Education.” ²⁴⁸ Mrs. Crawford met with the County Superintendent and others on June 6, 1975, at which time he advised her that he had received a letter from his subordinates recommending her dismissal. This was followed by her meeting on June 9 with the County Board’s Director of Personnel who explained to Mrs. Crawford her rights relative to the dismissal action recommended by the County Superintendent.

The chairman of the County Board advised her by letter dated June 10 of the recommendation of the Superintendent for her dismissal “because of incompetency, wilful neglect and misconduct,” of her right to be heard and that if she desired a hearing on the recommendation she should notify the County Board by letter within 15 days. She did so on June 20. The County Board was authorized by Art. 77, § 114B to have a hearing examiner. This matter was referred to him.

He notified Mrs. Crawford of a hearing to be held on August 14 at 9:30 a.m. The notice was sent to her address as it appeared in the County Board’s personnel records. When Mrs. Crawford did not appear at the appointed time the examiner placed a telephone call to her. Ultimately, he reached her at a new number in the State of Virginia.

She advised him that she had not received notice of the hearing and requested a new hearing date. As the State Board’s hearing examiner put it, the recommendations of the hearing examiner for the County Board to it “make it clear that he did not believe that [Mrs. Crawford] had not received the July 29th letter and therefore recommended that no new hearing date be set and that the [County] Board proceed ... upon the ex parte recommendations of the Superintendent.” Counsel for Mrs. Crawford advised the County Board on September 9 that the letter from its hearing examiner to Mrs. Crawford postmarked July 29 was still in the possession of the United States Postal Service on August 15, as evidenced by its having been stamped by that service in Washington, D. C., on that date. Thus, it appeared that she did not in fact receive the notice of the August 14 hearing. Mrs. Crawford ultimately testified that she did not advise the County Board of her summer mailing address because she had had no difficulty in having mail forwarded to her in Virginia during ²⁴⁹ previous summers. 2 The County Board denied a request for a new hearing date and then adopted a resolution dismissing Mrs. Crawford.

She appealed to the State Board. At the time here relevant the State Board’s powers were set forth in Code (1957, 1975 Repl. Yol.) Art. 77, § 6. 3 They include “explaining] the true intent and meaning of the law, and ... deciding] all controversies and disputes that arise under it ____” The State Board’s hearing examiner determined after a hearing on January 13, 1976, that the County Board “should have scheduled a second hearing” because Mrs. Crawford did not receive the notice of the first hearing before it was held. Thus, he concluded she had been denied the hearing to which she was entitled.

In his ultimate recommendations to the State Board, however, he said, “[R]ather than recommend to the State Board of Education that this matter be remanded, and upon the authority of the procedure adopted by the State Board of Education Guido v. Board, HE-4-73-AL,[ 4 ] and with the assent of the Board, but over the objection of [Mrs. Crawford], a hearing on the merits was held ... on February 27, 1976 following a new written notice to [Mrs. Crawford] setting forth the reasons for the requested dismissal action.” The hearing examiner on May 18,1976, recommended to the State Board that Mrs. Crawford “be discharged from her position as a tenured teacher with ²⁵⁰ the Charles County Board of Education upon the ground of incompetency.” The State Board adopted that recommendation on July 28,1976. The matter of back pay was not discussed in the hearing examiner’s recommendations and report to the State Board nor in its opinion and order, although Mrs. Crawford had contended before the hearing examiner that she was entitled to back pay. Nothing appears in the record by way of correspondence or memoranda in the nine month period between July 28, 1976, and March 30,1977. Inexplicably, allegedly without any request from any of the parties, 5 6 the State Board on March 30, 1977, passed the following order: [Mrs. Crawford] has now applied for back pay for the period from October 14, 1975 — the date of the original dismissal which we found to be invalid — until July 28, 1976 — the date of our opinion dismissing the petitioner from her position.

For the reasons stated below, we conclude that [Mrs. Crawford] should be granted back pay for the period stated. In general, a public school teacher is entitled to lost earnings as a result of a wrongful dismissal. Board of Education v. Cearfoss, 165 Md. 178 , 166 A. 732 (1933); Underwood v. Board of County School Commissioners, 103 Md. 181 , 63 A. 221 (1906).[ 6 ] This rule is merely an application of the general rule of liability for expectation damages arising out of a breach of contract. The question here, however, is whether such liability for lost earnings is applicable in a situation ²⁵¹ where the teacher is subsequently dismissed for the same reasons which motivated the initial, but (for procedural reasons) invalid discharge.

We believe that [Mrs. Crawford] must be granted such lost earnings. We have concluded that the initial dismissal of [Mrs. Crawford] by the County Board was invalid and therefore a nullity. Accordingly, [Mrs. Crawford] had a contractual right, until our decision of July 28, 1976, to receive earnings as a teacher. The County Board, until such date, breached its contractual obligation and, therefore, should pay the petitioner her salary for the period October 14,1975 until July 28,1976.

This reasoning has been adopted under similar circumstances by the United States Court of Appeals for the Fourth Circuit, Thomas v. Ward, 529 F. 2d 916 (4th Cir. 1975); Horton v. Orange County Board of Education, 464 F. 2d 536 (4th Cir. 1972), and we are constrained to follow those conclusions. (Accord, Wellner v. Minnesota State Junior College Board, 487 F. 2d 153 (8th Cir. 1973).) It recognized that her claim for lost earnings “should be reduced by the amount which [she] earned through other employment... or the amount which [she] could have earned by the exercise of reasonable diligence ----” It “recommendfed] that the parties make a reasonable effort to come to an agreement as to the amount of money which would be due [Mrs. Crawford]” and said that if the parties “fail[ed] to agree, a hearing on this issue w[ould] have to be held by the Hearing Examiner.” The County Board promptly appealed to the Circuit Court for Charles County. It affirmed the decision of the State Board. The County Board then appealed to the Court of Special Appeals.

We granted the writ of certiorari prior to consideration of the case by that court. The County Board advances a number of reasons why the action of the State Board in awarding the back pay should be overturned. In the view which we take of this case we need ²⁵² only consider whether the decision of the State Board that Mrs. Crawford should be dismissed by reason of incompetency has the effect of wiping out any claim she may have for lost pay by virtue of the failure of the County Board to originally accord her a proper hearing on the issue of competency. K. Davis, Administrative Law Treatise § 7.10 (1958) and K. Davis, Administrative Law Text § 7.11 (3d ed. 1972) both recognize the proposition that denial of an administrative hearing may be cured by judicial review.

The former states at 448, “Many cases uphold administrative action on the ground that opportunity for de novo judicial review supplies administrative procedural deficiencies.” Both texts refer to Hagar v. Reclamation District No. 108, 111 U. S. 701 , 4 S. Ct. 663 , 28 L. Ed. 569 (1884), as a “leading ... case” on the subject. Both texts state, correctly, relative to Hager: [T]he Court rejected a contention that due process was violated by levying assessments without providing opportunity to be heard; the Court observed that collection could be made only through court proceedings and that the requirements “are all satisfied where a hearing in court is thus allowed.” [Id. at 448 and 174.] Other cases cited by Professor Davis in support of this point of view include: Ewing v. Mytinger & Casselberry, 339 U. S. 594, 598 , 70 S. Ct. 870, 872 , 94 L. Ed. 1088 (1950); and Lichter v. United States, 334 U. S. 742, 791-92 , 68 S. Ct. 1294, 1319 , 92 L. Ed. 1694 (1948). The 1972 text adds after the above quotation, “The principle is a fundamental one.” Both texts then go on to say: The Court stated it in a prominent case: “it is enough that all available defenses may be presented to a competent tribunal before exaction of the tax and before the command of the state to pay it becomes final and irrevocable.” [Id. at 448 and 174 (footnote omitted).] ²⁵³ In support of the latter proposition both texts cite Nickey v. Mississippi, 292 U. S. 393, 396 , 54 S. Ct. 743, 744 , 78 L. Ed. 1323 (1934). Professor Davis is likewise of the opinion that lack of opportunity to be heard preceding an administrative decision may be remedied by administrative review, citing Opp Cotton Mills, Inc. v. Administrator, 312 U. S. 126 , 61 S. Ct. 524 , 85 L. Ed. 624 (1941), and Palmer v. McMahon, 133 U. S. 660 , 10 S. Ct. 324 , 33 L. Ed. 772 (1890).

In Opp Chief Justice Stone said for the Court of due process: The demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective. [Id. at 152-53.] In this case the effective final order came with the State Board’s finding, after a full de novo hearing, that Mrs. Crawford was incompetent. Support for the Davis view is found in Sherer v. City of Laguna Beach, 13 Cal. App.2d 396 , 57 P. 2d 157 (1936). That case involved a claim for damages caused by establishing the grade on a city street and the lowering of the level of the roadway from three to eight feet in front of property of the plaintiffs.

What the court said there relative to due process is of interest here. In response