Board of School Commissioners v. James

MOTZ, Judge. In each of these consolidated cases appellant, Board of School Commissioners of Baltimore City (the Local Board) appeals from a judgment of the Circuit Court for Baltimore City finding that Maryland State Board of Education (the State Board) erred when it upheld the Local Board’s decision to discharge a teacher on the ground of incompetency. (i) Appellees, June Faye James and Carrie Davis (collectively, the teachers), were middle school teachers in the Baltimore City Public School System. Both received year-end evaluations for the school years 1988-89 and 1989-90 of “needs improvement.” Richard C. Hunter, Superintendent of Public Instruction of the Baltimore City Schools, recommended to the Local Board that Ms. James and Ms. Davis be dismissed for incompetency.

Separate two-day dismissal hearings were conducted in each case by a hearing examiner, who recommended, in each case, that the Local Board uphold the Superintendent’s recommendation for termination. On December 6, 1990, the Local Board voted to accept the decisions of the hearing examiners and to uphold the recommendations of the Superintendent. Ms. James and Ms. Davis appealed that decision to the State Board. At the designation of the State Board, an administrative law judge held a de novo hearing in each case.

After considering the testimony of 5 witnesses (including Ms. James herself) and 11 exhibits over a two-day hearing, an ⁴⁰⁸ administrative law judge made the following findings of fact with'regard to Ms. James, which we set forth verbatim: (1) [Ms. James] has been a teacher in the Baltimore City School System since 1969. (2) [Ms. James] began teaching at the Booker T. Washington Middle School at the beginning of school year 1986-87. (3) [Ms. James] is an “elected” [tenured] teacher. FINDINGS RELATED TO SCHOOL YEAR 1988-89.

(4) During school year 1988-89, [Ms. James] was late 49 times and absent on sick leave 96 days. (5) On December 2, 1988, [Ms. James] received an “informal observation” from Warren K. Moore, Educational Specialist, Office of English/Language Arts. (6) No formal evaluation of [Ms. James] was conducted during school year 1988-89. (7) [Ms. James] received a final evaluation for school year 1988-89 of “needs improvement.” FINDINGS RELATED TO SCHOOL YEAR 1989-90.

(8) During school year 1989-90, [Ms. James] was late 69 times and was absent on sick leave on 33 days. (9) In September, 1989, an Individualized Professional Assistance Plan for [Ms. James] was entered into by [Ms. James], her department head, the principal and the instructional specialist. (10) The primary objectives of the Individualized Professional Assistance Plan were that, by December 1,1989, [Ms. James] would have established the following: learning objectives consistent with appraisal of individual student needs and requirements of the curriculum framework, particularly in the area of written composition; an accurate, systematic, cumulative record of student achievement in the area of written composition; and, an appraisal of student learning levels, interests, and needs, particularly in the area of written composition. ⁴⁰⁹ (11) [Ms. James] failed to meet the objectives of the Individualized Professional Assistance Plan. (12) [Ms. James] was formally observed on October 25, 1989, and on February 22 and March 20, 1990.

The observation of October 25, 1990 was assessed as “good”; those of February 22 and March 20,1990 were assessed as “satisfactory.” (13) [Ms. James] received a “satisfactory” evaluation on November 21, 1989. (14) [Ms. James] received a “needs improvement” evaluation on March 27, 1990. James v. Board, decision of Administrative Law Judge Guy J. Avery, dated December 4, 1991 (citations to record before administrative law judge omitted). The administrative law judge concluded The evidence shows that [Ms. James’s] performance as a teacher during school years 1988-89 and 1989-90 was not up to professional standards.

Not only did she receive ... “needs improvement” final evaluations for both school years, she was also late on an excessive number of occasions. Moreover, she failed to comply with the provisions of the Individualized Professional Assistance Plan to which she had agreed. Id. The administrative law judge, however, determined as a matter of law that the Local Board violated [Ms. James’s] right to due process in that the full record of the proceeding before its hearing examiner was not reviewed by the Board of School Commissioners of Baltimore City and [Ms. James] was not given an opportunity to present argument before the Board of School Commissioners of Baltimore City.

I further conclude, as a matter of law, that the Board of School Commissioners of Baltimore City failed to comply with its own procedures in seeking to discharge the Appellant and that, as a result, the Statement of Charges cannot be sustained. ⁴¹⁰ Id. For these reasons, the administrative law judge recommended (1) The decision by the Baltimore City Board of School Commissioners to discharge [Ms. James] should be REVERSED by the State Board. (2) [Ms. James] should be reinstated with full pay and benefits effective December 6, 1990. Id.

The administrative law judge further recommended that in the event the State Board should choose to discharge Ms. James the discharge “be made effective the date of the State Board’s Order.” Id. The case was argued before the State Board. The State Board adopted the findings of fact of the administrative law judge and the local hearing examiner, but concluded, upon its independent review of the record, to reject the administrative law judge’s recommendation. The State Board determined that the failure of the Local Board to comply with the requirements for a transcript and oral argument were procedural errors, cured by the State Board’s de novo review and the opportunity for oral argument before the State Board.

It found the failure to have a formal evaluation by a non-school-based observer during the 1988-89 year was not a “fatal error” because the “primary purpose” of the Baltimore City evaluation procedures is to “improve instruction and to encourage growth in professional ability and responsibility on the part of the staff’ and “not to confer procedural benefits upon teachers.... ” (emphasis in original). Finally, the State Board concluded that there were “sufficient undisputed facts in [the] record to sustain dismissal on the ground of incompetency,” i.e., “Ms. James’[s] failure to have lesson plans, unit outlines, and emergency lesson plans; her failure to submit a quarterly grade distribution sheet; hér failure to meet the objectives of the individualized professional assistance plan developed for her in 1989 including her failure to maintain an accurate, systematic, cumulative record of student achievement in the area of written composition; her failure to have learning objectives consistent with the appraisal of individual ⁴¹¹ student needs and the requirements of the curriculum framework; and the high failure rate of her students.” Ms. Davis’s case was heard by a different administrative law judge. After considering the testimony of 6 witnesses (including Ms. Davis) and 28 exhibits over a two-day hearing, that administrative law judge recommended that the State Board grant Ms. Davis’s motion to dismiss “the action of the [L]ocal [Board].” Davis v. Board, decision of Administrative Law Judge Laurie Bennett, dated October 17, 1991. The administrative law judge determined that any violations of Ms. Davis’s due process rights caused by the Local Board’s procedural errors in hearing this matter were cured by de novo review by the State Board.

Id. The administrative law judge nevertheless concluded that Ms. Davis’s motion should be granted because the Local Board “failed to confer upon [Ms. Davis] an important procedural benefit,” in that her 1988-89 year end evaluation did not contain an observation by an non-sehoolbased observer as specified in the Baltimore City school procedures. Id. Ms. Davis’s case was also argued before the State Board; The State Board, based upon its independent review of the record, rejected the proposed decision of the administrative law judge and adopted the findings of fact of the local hearing examiner.

The local hearing examiner had found inter alia that: 1 (1) Ms. Davis had been a teacher in the Baltimore City School System since 1968. (2) She taught in the Winston Middle School in school year 1988-89; and in the Booker T. Washington Middle School in school year 1989-90. FINDINGS RELATED TO SCHOOL YEAR 1988-89. (3) There is “no question that Ms. Davis was absent a lot” during the 1988-89 school year. ⁴¹² (4) Ms. Davis was formally and informally observed on several occasions during the 1988-89 school year.

(5) Ms. Davis was not observed by a non-school-based observer during the 1988-89 school year. She was assessed as “good” in one formal observation and “satisfactory” in another although in the latter she was assessed as “needs improvement” in one criterion because “her skills in writing lesson and long range plans were weak.” Her math department head observed Ms. Davis informally “throughout the school year,” her “assessment was that she would not want Ms. Davis to teach her child.” (6) Ms. Davis’s final evaluation for school year 1988-89 was “needs improvement,” because inter alia “she did not have her unit plans when ... [they] were requested at the pre-observation conference,” “she skipped a problem-solving unit and did not teach problem solving.” There was “sufficient evidence ... [t]he students were not being taught because of her admitted lack of knowledge in a given area, and she did not pursue her need for assistance or further education in order to meet the educational needs of her students.” FINDINGS RELATED TO SCHOOL YEAR 1989-90. (7) During school year 1989-90, Ms. Davis had “poor attendance.” (8) In September 1989, Ms. Davis, her principal, her department head, and the instructional specialist met to discuss implementation of an Individual Professional Assistance Plan for Ms. Davis. (9) Ms. Davis was formally observed four times during the 1989-90 school year.

She was observed on October 26, 1989 and was “rated as satisfactory.” She was observed on December 19, 1990 and assessed as “needs improvement,” with a concern that she was teaching “by r[o]te rather than teaching the concept.” Ms. Davis was observed on February 15, 1990 and was assessed as “satisfactory.” Finally, Ms. Davis was observed on March 29, 1990 and received a “needs improvement” evaluation. ⁴¹³ (10) In addition, Ms. Davis was observed informally on numerous occasions by three different people; two of them, including her principal, assessed her as “needs improvement” during most of these observations. (11) Ms. Davis “had a 42.4 percent failure rate for students in her classes.” On January 31, 1990, her principal “gave Ms. Davis recommendations to develop some strategies to determine why students were failing.” Ms. Davis “did not submit her quarterly grade distribution sheet” which concerned her principal; “she wrote the same lesson plan for 5 different classes without a differentiation of instruction ... and there were no test or quiz grades recorded after February 2, 1990.” Ms. Davis “did not have a grade book.” “She did not have emergency lesson plans, she was not teaching her class when she was in the building, poor attendance on her behalf....” (12) “Ms. Davis continued some of the same patterns and practices that were evidenced [in the 1988-89 school year] at Winston Middle School. Most importantly, if she was interested in teaching, she had to be present. The students have to be motivated by a teacher who is on duty in all respects of the word.

In formal observations she did satisfactory, excluding, of course, Principal Bukatman’s formal observation marked ‘Needs Improvement’. In informal observations, she did not do as well.” Opinion of Hearing Examiner Patricia E. Butler. The State Board again determined that the failure of the Local Board to comply with the requirements for a transcript and oral argument were procedural errors, cured by the State Board’s de novo review and the opportunity for oral argument before the State Board. It found the failure to have a non-school-based observer during the 1988-89 year was not a “fatal error” because the “primary purpose” of the Baltimore City procedures of teacher evaluation is “to improve instruction and to encourage growth in professional ability and responsibility .... of the staff’ and “not to confer procedural benefits upon teachers.... ” (emphasis in original).

Finally, the State Board found “sufficient undisputed facts in [the] ⁴¹⁴ record to sustain dismissal on the ground of incompetency,” ie., Ms. Davis’s “failure to teach the problem-solving unit; her lack of understanding and failure to present correctly the order of operations; her failure to have unit plans and emergency lesson plans; her failure to record grades; her failure to keep an accurate roll book; and the high failure rate of her students.” Both Ms. James and Ms. Davis appealed the State Board decisions to the Circuit Court for Baltimore City, where the cases were consolidated. The circuit court reversed, reasoning: [T]his case is more like Ballard than any of the other cases; that these ladies have been in the system for a long time; have been tenured, and this is a clear question of law. The charges that were brought were brought for two successive years. The State is bound by that and it is probably a requirement because the philosophy of our educational system is to attempt to evaluate, number one; and number two, improve, if necessary.

So it would have to, by its own necessity, be a two-year process. In any event, the Court, in applying the law, believes that the law is quite simple, and that is in this particular case there are procedures that the Board of Education is obligated to follow that they did not follow, and taking all things in these transcripts, as well as papers that are filed, I am going to adopt the argument of the Appellants, and for those reasons stated in the argument, not to mention the due process, which is an additional observation of the Court, but not as strong as the original argument under 6-202 and 203 in the procedure here. So that being the case, the Court will reverse the decision of the Board in both the James case as well as the Davis case.... The circuit court ordered that the Local Board “immediately restore” Ms. James and Ms. Davis “to the employ of the Baltimore City Public Schools as ... tenured teacher[s]” and ⁴¹⁵ pay them “all wages and benefits to which [they] would have been entitled had [they] not been dismissed.” On appeal the Local Board raises four questions with regard to each teacher: 1.

Did the Circuit Court fail to apply the appropriate standards of review when it reversed the Maryland State Board of Education? 2. Did the Circuit Court err when it reversed the dismissal for incompetency for lack of a formal observation by a non-school-based observer for the 1988-89 evaluation? 3. Did the de novo hearing at the State level cure any procedural defects? 4. Did the Circuit Court fail to recognize the board visitatorial powers granted the State Board under the Education Article?

Ms. James counters with the following five questions: 1. May a Circuit Court substitute its judgment for that of the Maryland State Board of Education when it decides as a matter of law that the State Board incorrectly read the meaning and purpose of a written rule or regulation that was adopted by a local board of education? 2. Was the local board’s action, to dismiss June James, contrary to law because the local board failed to strictly comply with its own rules and regulations as to the evaluation, discipline and dismissal of tenured teachers? 3. Is the Maryland State Board of Education authorized under Md.Ed.Code Ann. Sec. 6-202(a)(l) to decide the merit of the dismissal of a tenured teacher as it would have charged the teacher rather than as the teacher was charged by a local board of education? 4.

Was the action of the Maryland State Board of Education in the case of June James consistent with the standards set by the State Board in its published opinion of Avery v. Board of Education of Baltimore County, 4 Op. of MSBE 10 (1985)? ⁴¹⁶ 5. Was the decision to dismiss June James in any way rendered infirm by the fact that the Board of School Commissioners did not grant James the statutory due process to which she is entitled under Md.Ed.Code ann. Secs. 6 — 203(d), (e) & (f)? Ms. Davis seeks to adopt questions 1, 2, 3, and 5 raised by Ms. James and raises two additional questions: 1.

In a contested case, may an administrative agency propound findings of fact and conclusions of law on issues that are not reached by an Administrative Law Judge because the Law Judge ruled on a motion to dismiss and found it unnecessary to reach the merits? 2. Was the State Board arbitrary in that it failed to discuss or articulate in any way in its written decision whether the Individualized Assistance Plan prepared for Carrie Davis was commensurate with her needs? (n) The first question presented by all parties concerns the appropriate standard of review of the State Board’s decisions upholding the Local Board’s decision to discharge Ms. James and Ms. Davis because of incompetency; the Local Board’s fourth question concerns the related question of whether the powers of the State Board were properly recognized by the circuit court. Although the parties devote a substantial amount of attention to these points, on analysis it is clear that they agree on virtually all of the governing legal principles.

The Maryland Code specifically provides that a teacher can be dismissed by a local board for incompetency: (1) On the recommendation of the county superintendent, a county board may suspend or dismiss a teacher ... for: (iv) Incompetency (4) The individual may appeal from the decision of the county board to the State Board. ⁴¹⁷ McLCode (1957, 1992 Repl.Vol.), § 6-202(a)(l) and (4) of the Edue.Art. 2 Moreover, the teachers concede it is so well established that the State Board is “vested with the last word on matters of educational policy and administration of public education in Maryland” that this “doctrine dates back more than 100 years.” This is not an overstatement. In Wiley v. Board of County School Comm’rs of Allegany County, 51 Md. 401 (1879), the Court of Appeals described the State Board’s power in this way: This is a visitatorial power of the most comprehensive character ... If every dispute or contention among those entrusted with the administration of the system, or between the functionaries and the patrons or pupils of the schools, offered an occasion for a resort to the courts for settlement, the working of the system would not only be greatly embarrassed and obstructed but, such contentions before the court would necessarily be attended with great costs and delays, and likely generate such intestine heats and divisions as would, in a great degree, counteract the beneficent purposes of the law. Id. at 406 .

Nor have the years in any way diminished this power. In Board ofEduc. of Prince George’s County v. Waeldner, 298 Md. 354 , 470 A.2d 332 (1984), the Court addressed the authority of the State Board in the precise situation presented here: The scope of the State Board’s authority under Section 6-202(a)(4) to hear an “appeal” from the “decision” of the County Board in cases involving the suspension or dismissal of a teacher must be ascertained in light of the broad visitatorial powers vested in the State Board under the ⁴¹⁸ Education Article. See Board of Educ., Garrett Co. v. Lendo, 295 Md. 55, 64 , 453 A.2d 1185 (1982). In our view, the legislature did not intend that the State Board’s review of the County Board’s action in such cases would be restricted to mere determination on the record made before the County Board of whether there was competent and substantial evidence to support that agency’s factual determination.

On the contrary, we think it evident from the statutory scheme of the Education Article, and the allocation of powers between the State and County Boards, that the legislature intended that the State Board would exercise its independent judgment on the record before it in determining whether disciplinary infractions, as charged, had been established and, if so, whether the sanction imposed was too severe under the circumstances. Otherwise stated, under its visitatorial power, the “last word” or the “final decision” rests with the State Board as to any dispute concerning the administration of the public school system, including whether under Section 6-202(a), teacher misconduct warrants dismissal or a lesser sanction. Waeldner, 298 Md. at 361 , 470 A.2d 332 . (internal footnote omitted.) Thus, the State Board’s “reviewing authority” of the dismissal decisions of a local board is not “narrowly focused, as in judicial review decisions under the Administrative Procedure Act....” Id. at 362 , 470 A.2d 332 .

On the other hand, the ultimate decision of the State Board is subject only to “judicial review under the Administrative Procedure Act.” Id. at 362-363 , 470 A.2d 332 ; Strother v. Board of Educ. of Howard County, 96 Md.App. 99 , 623 A.2d 717 (1993). In reviewing the State Board’s decision then, a reviewing court must determine if there is “substantial evidence” to support the Board’s findings. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Anderson v. Dep’t of Pub.

Safety & Correctional Servs., 330 Md. 187 , 623 A.2d 198 (1993); Caucus Distribs., Inc. v. Maryland Sec. Comm’r, 320 Md. 313, 324 , 577 A.2d 783 (1990); State Election Bd. v. Billhimer, 314 Md. 46, 58 , 548 A.2d 819 , (1988) cert. denied, ⁴¹⁹ 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989). In applying the substantial evidence test, a court is not to substitute its judgment for the expertise of an agency, rather “the test is a deferential one, requiring ‘restrained and disciplined judicial judgment so as not to interfere with’ the [State Board’s] ‘factual conclusions.’ ” Caucus, 320 Md. at 324 , 577 A.2d 783 , quoting, Supervisor v. Asbury Methodist Home, 313 Md. 614, 625 , 547 A.2d 190 (1988). This deference applies not only to the agency’s fact-finding, “but to the drawing of inferences from the facts as well.” Caucus, 320 Md. at 324 , 577 A.2d 783 ; St. Leonard Shores Joint Venture v. Supervisor, 307 Md. 441, 447 , 514 A.2d 1215 (1986). Accordingly, as long as the agency’s decision “is not predicated solely on an error of law,” a reviewing court “will not overturn it if a reasoning mind could reasonably have reached the conclusion reached” by the State Board.

Caucus, 320 Md. at 324 , 577 A.2d 783 . This means, of course, that the State Board’s authority, as even appellant concedes, is not unlimited. The State Board “cannot finally decide pure questions of law.” Wilson v. Board of Educ. of Montgomery County, 234 Md. 561, 565 , 200 A.2d 67 (1964). With the appropriate standard of review in mind, we turn to the substantive questions presented in this case.

(iii) The first of these involves the circuit court’s conclusion that there were “procedures” that the Local Board was “obligated to follow that [it] did not follow” prior to terminating the teachers. The “procedures” referred to are set forth in a document entitled the “Baltimore City Public Schools Procedures for Evaluation of Teaching Staff,” (the “Procedures”). The Procedures provide for a system of evaluation of teachers using classroom observations. The Procedures state inter alia that: At least one observer must be other than school-based if a rating of Unsatisfactory or Needs Improvement is given ⁴²⁰ —-Any teacher evaluated as Unsatisfactory or Needs Improvement must have been observed by the principal and a qualified staff member other than school-based staff.

Observers are to hold a pre-observation conference with a teacher in order to discuss the purposes of the observation Observers are required to hold a post observation conference within ten (10) working days. (italics in original; underlining added.) During the 1988-89 school year, Ms. Davis was not observed by a non-school-based staff member. During the same year, Ms. James was not accorded pre-observation or post-observation conferences before or after any observation. During the 1989-90 school year, Ms. James and Ms. Davis each received observations, complete with pre-observation and post-observation conferences, by school-based and non-school-based personnel.

Thus, it is uncontroverted that the “needs improvement” evaluation given to both teachers at the conclusion of the 1988-89 school year was not made in accordance with the Procedures but that the “needs improvement” evaluation given to both teachers at the conclusion of the 1989-90 school year was entirely in accord with the Procedures. Nevertheless, the teachers maintain that the purpose of the Procedures is to afford them procedural benefits and “substantive guarantees” and so the failure of the Local Board to follow the Procedures prior to the 1988-89 year-end evaluation means that the Local Board’s decision to discharge them must be reversed. This is so, they argue, regardless of the fact that this defect caused them no prejudice. In contrast, the Local Board asserts, and the State Board found, that the purpose of the Procedures was an internal administrative one, i.e., to improve instructional ability, professional ability and responsibility on the part of the staff, “not to confer procedural ⁴²¹ benefits.” (emphasis in original).

For this reason, the State Board determined with regard to each teacher that it did “not find the failure to have a non-school based observer during the 1988-89 year a fatal error.” The State Board reasoned: As stated in paragraph 2 of the Baltimore City Public Schools Procedures for Evaluation of Teaching Staff, the primary purpose of teacher evaluation is “to improve instruction and to encourage growth in professional ability and responsibility on the part of the staff.” Because the primary purpose of the evaluation procedures is not to confer procedural benefits upon teachers, the failure to have a non-school based observer during the 1988-89 year does not automatically mandate reversal. (emphasis in original). Determination of this question is assertedly important because of the “Accardi doctrine,” ie., generally federal administrative agencies must follow their own rules, and if they do not, the resulting agency action is invalid; no showing of prejudice by the complaining party is necessary. United States ex rel Accardi v. Shaughnessy, 347 U.S. 260, 268 , 74 S.Ct. 499, 503 , 98 L.Ed. 681 (1954).

See also Morton v. Ruiz, 415 U.S. 199, 235 , 94 S.Ct. 1055, 1074 , 39 L.Ed.2d 270 (1974); Vitarelli v. Seaton, 359 U.S. 535, 539-40 , 79 S.Ct. 968, 972-73 , 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 388 , 77 S.Ct. 1152, 1165 , 1 L.Ed.2d 1403 (1957). The federal courts have recognized, however, that the Accardi doctrine is not limitless; for example, an agency’s failure to follow mere “internal administrative procedures” does not require reversal of an agency’s action unless the complaining party can show substantial prejudice. See American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 , 90 S.Ct. 1288, 1292 , 25 L.Ed.2d 547 (1970). Similarly, a failure to comply with a published statement of “policy,” United States v. Fitch Oil Co., 676 F.2d 673, 676 (Temp.Emer.Ct.App.1982), or “internal documents” to guide employees, Gatter v. Nimmo, 672 F.2d 343 (3d Cir.1982), or agency “guidelines,” Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707 (8th Cir.1979), has been held ⁴²² not to invalidate agency action, absent a showing of prejudice.

Determination of whether a federal regulation is a legislative rule, on one hand, or internal procedure, on the other hand, “turns” on whether it “affects individual' rights and obligations” and whether the agency intended the rule to be legislative as “evidenced by such circumstantial evidence as the formality that attended the making of the law, including the rule making procedure and publication.” Peter Raven-Hansen, Regulatory Estoppel: When Agencies Break Their Own “Laws”, 64 Tex.Law Rev. 1, 16 (1985) and numerous cases cited therein. See also, Waverly Press v. Dep’t of Assess. & Tax., 312 Md. 184, 191-2 , 539 A.2d 223 (1988); 2 Kenneth Culp Davis, Administrative Law Treatise §§ 7:8-7:21 (2d ed. 1979) (1989 Supp.). We have twice considered very similar arguments in the context of school staff dismissals. In Board of Educ. of Anne Arundel County v. Barbano, 45 Md.App. 27 , 411 A.2d 124 (1980), we held that the primary purpose of the State Board’s “resolved,” but not officially “adopted,” “Guidelines for the Evaluation of Probationary Teachers” was not to confer a procedural benefit on probationary teachers but “the obtention of good teachers and the prevention of bad ones,” and so violation of those evaluation guidelines did not require reversal of the decision to terminate a probationary teacher.

Id. at 40 . Six years later, in Board of Educ. of Baltimore County v. Ballard, 67 Md.App. 235 , 507 A.2d 192 (1986), we concluded, however, the primary purpose of an officially promulgated personnel regulation of the Local Board for “penalizing or terminating” tenured teachers was to confer important procedural benefits on those teachers. Thus, violation of these regulations by the local board required, pursuant to the Accardi doctrine, reversal of its decision to terminate a tenured school librarian. Id. 67 Md.App. at 243 , 507 A.2d 192 .

We note at the outset that, like the regulations in Ballard and unlike the guidelines in Barbano , the Procedures apply not to probationary teachers but to tenured employees. ⁴²³ Moreover, unlike the guidelines in Barbano , 3 there is no history of interpretation of the Procedures indicating their intent is not to confer procedural benefits. Indeed, the Local Board and its hearing examiners did not even interpret the Procedures or opine as to their purpose in the cases at hand; apparently, no argument as to the purpose of the Procedures was made at the Local Board level. On the other hand, there is no “regulatory history” indicating that the Procedures were designed to confer procedural benefits. The State Board specifically found that the purpose of the Procedures was to improve instruction and professional ability and not to confer procedural benefits.

This, contrary to the Local Board’s argument, is not a factual finding, which must be affirmed if based on substantial evidence, but the State Board’s interpretation of the rule of a local board of education. Since the Procedures were not formulated by the State Board, its interpretation is not entitled to the deference accorded its interpretation of its own rules. Compare Barbano, 45 Md. App. at 31 , 411 A.2d 124 . Yet, in view of the State Board’s broad visitatorial power and clear expertise in this area, when, as here, a local board’s procedure involves or implicates the administration of public school policy, the State Board’s interpretation as to the purpose of that procedure is entitled to deference.

We also note that, although the rules at issue here, like those in Ballard , are “procedures,” their purpose and language seem far closer to that of the Barbano “guidelines.” Thus, the Procedures are titled: Baltimore City Public Schools Procedures for Evaluations of Teaching Staff The Barbano “guidelines” were very similarly titled: ⁴²⁴ Guidelines for the Evaluation of Probationary Teachers Id. 45 Md. at 30, 411 A.2d 124 . In contrast, the mandatory Ballard regulations were titled: Procedure for Penalizing or Terminating Teachers on Tenure Whose Work is not Satisfactory Ballard, 67 Md.App. at 237 , 507 A.2d 192 . Moreover, and perhaps more significantly, the language of the Procedures, unlike that of the mandatory regulations in Ballard , is not “ ‘unambiguous, mandatory language’ which makes clear that its purpose is to confer ‘important procedural benefits and safeguards’ upon tenured teachers.” Id. at 243 , 507 A.2d 192 . Rather, although the Procedures clearly indicate that they are to be used to assess competency and in this process “[n]o indicator is to be considered optional,” the stated purpose of the Procedures is an administrative one, i.e., The function of the Baltimore City Public Schools is to educate the children and adults enrolled.

The procedures outlined below are designed to bring about the evaluation of the effectiveness of the teaching staff.... The purpose of teacher evaluation is to improve instruction and to encourage growth in professional ability and responsibility on the part of the staff. (emphasis added). Further, while the regulations involved in Ballard and even in Barbano were clearly directed at “non-renewal,” Barbano, 45 Md. at 33, 411 A.2d 124 , or “retirement,” “resignation” or “termination]” for unsatisfactory work, Ballard, 67 Md.App. at 237 , 507 A.2d 192 , the Procedures are directed entirely at “evaluation” and nowhere mention “non-renewal,” “retirement,” “resignation,” “dismissal,” “termination” or the like.

Finally, although the mandatory Ballard regulations were properly promulgated by a local board pursuant to its rule-making authority under § 4-107(4) of the Educ. Art.,