Donlon v. Montgomery Co. Public Schools

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).

Analysis 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, funding, and focus, they clearly have a local flavor, the county school boards have consistently been regarded as State, rather than county, agencies. Chesapeake Charter , 358 Md. at 135 -36 , 747 A.2d at 628-29 (emphasis added). We continued that [c]ounty school boards are considered generally to be State agencies because (1) the public school system in Maryland is a comprehensive Statewide system, created by the General Assembly in conformance with the mandate in Article VIII, § 1 of the Maryland Constitution to establish throughout the State a thorough and efficient system of free public schools, (2) the county boards were created by the General Assembly as an integral part of that State system, (3) their mission is therefore to carry out a State, not a county, function, and (4) they are subject to extensive supervision by the State Board of Education in virtually every aspect of their operations that affects educational policy or the administration of the public schools in the county.

Chesapeake Charter , 358 Md. at 136 -37 , 747 A.2d at 629 . The Court made clear, however, "[a]lthough legally State agencies for those reasons, they are not normally regarded, for structural or budgetary purposes, as units within the Executive Branch of the State government." (emphasis added). The General Assembly struck a careful balance when crafting the local and State roles to be exercised by county boards. 11 Notably, the county boards of education retain unique autonomy aspects, irrespective of the MSBE's authority: The county school board is the head of the county department and is responsible for administering, in the county, the supervening State policy determined by the State Board of Education, in accordance with State Board's directives. See [Educ.] § 4-108.

There is, as well, a county superintendent, who is the executive officer of the county board and, in essence, the chief executive officer of the county department. Finally, there are the teachers, principals, and other professional, administrative, clerical, security, transportation, and maintenance staff hired by the county school board to work in or service the schools in the county. Unlike the situation at the State level, the county superintendent and the employees of the county department of education are appointed and their salaries are set by the county school board upon recommendation of the county superintendent, [Educ.] § 4-103(a), in accordance with a personnel system established by the county board. Chesapeake Charter , 358 Md. at 138 -39 , 747 A.2d at 630 .

We concluded in the context of Chesapeake Charter that the county board's school bus contracts were not subject to the General Procurement Law because the board did not fall within the purview of the statute. Chesapeake Charter , 358 Md. at 139 , 747 A.2d at 631 -32 . Indeed, county boards, "from a budgetary and structural perspective, [ ] are local in character. They are not divisions of or units within " the State government." Chesapeake Charter , 358 Md. at 139 , 747 A.2d at 631 (emphasis added).

The holding of Chesapeake Charter may be "narrow," when examined through a particular lens. Beka , 419 Md. at 217 , 18 A.3d at 904 . The Court, in Chesapeake Charter , signaled, however, a change-in-course and affirmed intrinsically a statement made in Clauss , 181 Md. at 520 , 30 A.2d at 782 ("County boards may, for some purposes, be an agency of the State," and local for others), a principle refined later (albeit addressing a so-called bi-county agency, the Washington Suburban Sanitary Commission) in Phillips , 413 Md. at 632 , 994 A.2d at 427 , that "an entity may qualify as a State agency for some purposes, while being classified as a local agency for other purposes." See O & B Inc. v. Md.-Nat'l Cap. P. & P. , 279 Md. 459 , 462, 369 A.2d 553 (1977) ("There is no single test for determining whether a governmental body is an agency of the state for purposes of sovereign immunity .

Rather it is necessary to examine the relationship between the state and the governmental entity to determine its status as either a state agency or a county or municipal agency." (emphasis added) ). Donlon contends that Beka cabined properly Chesapeake Charter by explaining that Chesapeake Charter represented an anomalous departure from the overwhelming support in our jurisprudence holding county boards of education as State agencies. We do not believe that Beka restricted Chesapeake Charter to the extent that Donlon suggests. In Beka , one question 12 (ostensibly relevant here) was whether a county board of education retained its right to sovereign immunity asserted in defense to a breach of contract action under SG § 12-201. 13 Beka , 419 Md. at 209 , 18 A.3d at 900 .

Beka asserted that "in the context of [a breach of contract for the construction of a public school], the [County] Board is a 'unit' of the State pursuant to SG § 12-201, and this statute waives [the County Board's] right to the defense of sovereign immunity in contract actions." Id. We disagreed, opining that if county boards of education can assert sovereign immunity, then they are subject also to a statutory waiver of that immunity. Beka , 419 Md. at 210 , 18 A.3d at 900 . In recognizing this distinction, the Court discussed Chesapeake Charter , stating that a local school board is not a "unit" of State Government for purposes of the General Procurement Law because the "procurement of supplies and services by the county boards of education" in contrast to school construction, has never been subject to the general authority of the Board of Public Works, or the Department of General Services Beka , 419 Md. at 213 , 18 A.3d at 902 .

Chesapeake Charter drew this distinction for purposes of the General Procurement Law. Beka , 419 Md. at 214 , 18 A.3d at 903 . It did not foreclose, in Beka , a different analysis and holding regarding the Worcester County Board of Education as a State "unit" for purposes of our application of the SG § 12-201 sovereign immunity waiver. Id.

Beka reiterated that, for purposes of Eleventh Amendment/sovereign immunity analysis, local boards of education are entities of State government. Beka , 419 Md. at 210 , 18 A.3d at 900 ; see also Lee-Thomas , 666 F.3d at 248 n.5 ; Zimmer-Rubert , 409 Md. at 205 , 973 A.2d at 236 ; Norville v. Board of Education , 160 Md. App. at 35 -62 , 862 A.2d at 489 -507 . In doing so, Beka noted that Chesapeake Charter did not involve an issue of sovereign immunity. Beka , 419 Md. at 216 , 18 A.3d at 904 ("Consequently, sovereign immunity was not an issue in [ Chesapeake Charter ].").

On the other hand, sovereign immunity was preeminent to Beka's conclusion that the county board was a State unit. Id. Beka distinguished further Chesapeake Charter based on the differing statutes at issue. In the context of a sovereign immunity analysis, we held that the local budgetary character of county boards of education "appears insufficient to overcome the overwhelming support in our case law for the notion that county boards of education are" State agencies.

Beka , 419 Md. at 217 , 18 A.3d at 904 . For present purposes, sovereign immunity is extraneous to the purpose and legislative history of the WBL. The contention here is whether the county board of education is a State agency subject to the WBL. Accord Chesapeake Charter , 358 Md. 129 , 747 A.2d 625 .

The WBL protects "all employees and State employees who are applicants for positions in the Executive Branch of State government, including a unit with an independent personnel system," SPP § 5-301, 14 from reprisal if the employee discloses information protected under SPP § 5-305. 15 The WBL was proposed initially in 1980 as House Bill (H.B.) 616. The preamble to H.B. 616 states, in pertinent part: [t]he General Assembly finds that the interests of the citizens of Maryland demand a government which operates in accordance with the law and in avoidance of mismanagement, monetary waste, abuse of authority, and danger to public health and safety. In furtherance of these goals, it is essential that classified State employees be free to disclose impropriety in exercise of their constitutional right of free speech. (emphasis added).

The prefatory statement of H.B. 616 notes that its purpose "is to prohibit any State appointing authority 16 from using a personnel action as a retaliatory measure against an employee or applicant for State employment who has made a disclosure of illegality or impropriety." (emphasis added). Local members of a county board are either: elected by the registered voters of their county, Educ. § 3-114 ; 17 appointed by the governor, Educ. § 3-108 ; or, selected by a specific procedure in Baltimore City, Harford County, or Caroline County, Id. Thus, county boards are responsive to the citizens of their specific counties. Additionally, county school system teachers are not employed by the State.

Rather, county boards hire their public school teachers. See Educ. § 4-103 ("each county board shall: (1) Appoint all principals, teachers, and other certificated and non-certificated personnel; and (2) Set their salaries."). In turn, the county board is charged also with overseeing all disciplinary actions of, and direct appeals from inter alia , public school teachers. Educ. § 6-202.

We elaborated specifically, in Chesapeake Charter , 358 Md. at 138 -39 , 747 A.2d at 630 , on the local flavor of a county board of education's budgeting process. The blend of State, local, and independent characteristics of a county board extends beyond local budgetary concerns. 18 Personnel matters are inherently local at their inception. "This becomes evident when we examine the place of county school boards in the structure and governance of public education in Maryland." 19 Chesapeake Charter , 358 Md. at 137 , 747 A.2d at 629 . The authority of [MSBE], codified in part in [Educ.] § 2-205, has been described as "a visitatorial power of the most comprehensive character," one that is "in its nature, summary and exclusive.

It includes (1) determining the primary and secondary educational policies of the State, (2) explaining the true intent and meaning, causing to be carried out, and deciding all controversies and disputes arising under the provisions of the Education Article that are within its jurisdiction, (3) adopting by-laws, having the force of law, for the administration of the public schools, (4) through the State Superintendent of Schools, exercising general control and supervision over the public schools and educational interests of the State, (5) preparing the annual State public school budget, including appropriations for State aid to the counties for current expenses, student transportation, and public school construction, and, (6) specifying the information each county board is required to record and the form in which it is to be recorded. Chesapeake Charter , 358 Md. at 138 , 747 A.2d at 630 . As to personnel matters and discipline, the Legislature delegated antecedent authority to county boards distinct from MSBE. County boards possess, in conjunction with the authority enumerated above, additional exclusive responsibilities over personnel matters. 20 For example, as it relates to the present question, county boards of education: (1) control educational matters affecting their counties, Educ. § 4-101 ; (2) carry out the provisions of the Education Article and the bylaws, rules, regulations, and policies of the MSBE while retraining the initial discretion over all local matters, Educ. § 4-108 ; (3) subject to Educ. § 6-203, the county superintendent shall decide 21 all controversies and disputes that involve the county board's rules and regulations and those involving the proper administration of the county school system, Educ. § 4-205 ; and, (4) may suspend or dismiss a teacher, principal, supervisor, assistant superintendent, or other professional assistant, Educ. § 6-202.

If disciplined, a teacher, principal, supervisor, assistant superintendent, or other professional assistant, may request a hearing before the county board within 10-days of receiving notice of the charges against the individual. Educ. § 6-202. 22 (emphasis added). The individual may appeal from the decision of the county board to the MSBE only after a decision is rendered by the county board. Id.

(emphasis added). A county board of education possesses administrative decision-making capacity, but unlike the MSBE, it is not a State agency authorized by law to make rules or adjudicate cases. Bernstein v. Bd. of Ed. of Prince George's Cnty. , 245 Md. 464 , 472, 226 A.2d 243 , 248 (1967) (A county school board is not a State agency merely because, under its statutory authorization, it has limited administrative powers). 23 All regulations effecting educational matters are found within the Education Article, unless otherwise indicated in the statute. The WBL is located in the State Personnel and Pensions Article.

It is bereft of any cross-references to statutes containing delegated authority to a local entity. The county boards' dominion over local personnel matters contrasts sharply with the jurisdictional control of the MSBE, which controls statewide educational matters. See Bernstein , 245 Md. at 470 -72 , 226 A.2d at 247 -48 . Much of MSBE's power is carried-out via civil subdivisions of government subject to varying degrees of delegation, e.g., local boards administer State functions within its county, but oversee