Hurl v. Board of Education

DAVIS, Judge. Kathy L. Hurl, a Howard County school teacher, appeals from an order of the Circuit Court for Howard County (Dudley, J.) that affirmed an administrative decision of the Maryland State Board of Education (State Board). This administrative decision affirmed the refusal of appellee, Board of Education of Howard County, to grant appellant a full evidentiary hearing concerning the appeal of her involuntary trans ²⁹¹ fer to a teaching assignment at a different school. Two issues are presented on this appeal, which we restate as follows: I. Is there a proper basis in this case for judicial review of the State Board’s decision made pursuant to its “visitorial power”?

II

Did the trial court err in affirming appellee’s administrative decision not to grant appellant a full evidentiary hearing concerning the appeal of her involuntary transfer to a different school? We answer the first question in the affirmative, but answer the second question in the negative. As a result of our disposition of the second question, we affirm the judgment of the circuit court. FACTS Appellant has been a school teacher in the Howard County school system since September 1974.

From the beginning of her employment through the end of the 1991-92 school year, with the exception of two brief interruptions, appellant was assigned to Waterloo Elementary School. Appellant states that on June 15, 1992, Edward Alexander, Instructional Director of Elementary Schools, advised her that she was to be involuntarily transferred from Waterloo Elementary School to Waverly Elementary School. According to appellant, when she asked Alexander why she was being transferred, Alexander said that she would have to discuss the matter with Dr. Michael Hickey, Superintendent of Schools (Superintendent). Alexander did say, however, that the Superintendent ordered this transfer “for the good of the school system.” Appellant was apparently one of several teachers to be transferred that year.

On June 24,1992, Dr. James R. McGowan, Associate Superintendent for Instruction and School Administration, wrote appellant a letter, wherein he stated that the Superintendent determined that the involuntary transfer was “both in [her] best interest and the interest of the schools.... ” McGowan further stated that the Superintendent believed that after ²⁹² many years at Waterloo, the transfer would present appellant with a “new challenge” and an “opportunity to reinvigorate” her teaching skills. Needless to say, appellant was surprised by the involuntary transfer. According to appellant, no one ever advised her of the possibility of being transferred. In addition, appellant states that she never received any negative performance evaluations or any indications that she needed a new challenge or needed her skills to be reinvigorated.

After the transfer, a parent of one of appellant’s Waterloo students complained to the Superintendent about appellant’s involuntary transfer. In response, the Superintendent wrote a letter dated July 14, 1992, explaining that appellant’s transfer was for “the interest of the school system as a whole,” and that appellant would “be well served by the change.” He added that the transfer was “in no way a reflection on [appellant’s] capabilities or her past record of service to the school system.” Because of her dissatisfaction with the transfer, and also because of what she believed to be the absence of any meaningful reason for the transfer, appellant appealed her transfer to the Superintendent pursuant to Md.Code Ann., Educ. § 4-205(c). This appeal was filed through a representative of the Howard County Education Association by letter dated July 9, 1992 (appeal letter). The appeal letter alleged that appellant’s involuntary transfer was “arbitrary and capricious, and discriminatory,” and requested a hearing on the matter.

The appeal letter set forth the following seven “series of events” that appellant asserted supports her position that the transfer was “arbitrary and capricious, and discriminatory”: (1) For Seventeen (17) years Ms. Kathy Hurl has been a teacher at Waterloo Elementary School. During her tenure, she has successfully taught numerous grade levels of students. (2) On June 15, 1992, Ms. Hurl was called into her administrator’s office for a meeting without forewarning. In attendance was Mr. Edward Alexander, Elementary ²⁹³ School Instructional Director, who informed Ms. Hurl that at the request of the Superintendent, she was being involuntarily transferred to Waverly Elementary School.

(3) When Ms. Hurl questioned Mr. Alexander about the reasons for this action, he replied that it was “for the good of the system.” Although Ms. Hurl repeatedly asked for specific reasons, her efforts were in vain. (4) On June 18, 1992, Ms. Hurl received an impersonal memorandum from Dr. James McGowan’s office, re: Change in Assignment from Waterloo Elementary to Waverly Elementary. The memo noted no effective date, no account number, and gave no rationale for Ms. Hurl’s involuntary transfer. (5) On June 19, 1992, Ms. Hurl requested a meeting with the Superintendent and all relevant parties regarding her involuntary transfer per Article VI of the Master Agreement 1990-93.

The meeting was requested because Ms. Hurl protested the involuntary transfer and requested written reasons for the transfer. (6) On June 24, 1992, a meeting was held with Ms. Hurl, HCEA [Howard County Education Association], Dr. McGowan (superintendent designee), and Mr. Edward Alexander. At that meeting, Ms. Hurl voiced her objection to the involuntary transfer and again requested specific reasons for the decision. At that meeting Ms. Hurl was given a letter from Dr. McGowan that in essence stated that “after reviewing the needs of the school, the Superintendent felt that it was in Ms. Hurl’s best interest and the interest of the schools to transfer her to a new environment to present a new challenge and an opportunity to reinvigorate her teaching skills.” (edited/emphasis).

(7) Ms. Hurl was then instructed to fill out an involuntary transfer request form and return it to Dr. McGowan by July. Ms. Hurl complied immediately, but to date her desired placement has not been secured. ²⁹⁴ In addition, the appeal letter set forth the following ten “reasons” or bases for appellant's contentions that the involuntary transfer was arbitrary, capricious, and discriminatory: (1) Ms. Hurl has been a successful teacher for the Howard County Public System for 17 years; (2) During her tenure at Waterloo Elementary School, she has received positive and satisfactory evaluation performance assessments, successfully teaching a diversity of grade levels; (3) Ms. Hurl is a senior staff member at Waterloo Elementary School who has provided and can continue to provide a positive learning environment by sharing expertise, continuity and assistance to students, colleagues, and other members of the educational community; (4) Ms. Hurl did not receive due process protections afforded her via MCPSS policies and procedures, statutory law and the Master Agreement (i.e. anti-discrimination, requests for volunteers, consultation, notification and identification); (5) There are younger and less senior staff members at Waterloo Elementary School who were retained; (6) Ms. Hurl was not presented with specific reasons in a timely manner; (7) Ms. Hurl was not given the opportunity to consider any options to an involuntary transfer; (8) Ms. Hurl was not forewarned or timely informed of any transfer decision thus preventing her equal access and full opportunity for sufficient considerations regarding vacancies; (9) Ms. Hurl was never informed by anyone in a supervisory capacity (i.e. school principal, supervisor, Instructional Director, Superintendent) that she needed to be challenged or reinvigorated in a new environment. In fact, Ms. Hurl received no indication that her current assignment was in jeopardy; ²⁹⁵ (10) The reasons presented in writing are based upon subjective rationale, not objective criteria. Notwithstanding, the subjective rationale is without merit and is discriminatory.

By letter dated August 28, 1992, the Superintendent denied appellant’s request that the transfer be rescinded, stating that his decision to transfer appellant was pursuant to his statutory authority under Md.Code Ann., Educ. § 6-201(b)(2)(ii) to transfer teachers “as the needs of the schools require.” Furthermore, the Superintendent’s letter stated that the ten reasons cited in appellant’s appeal letter did not give rise to a “conclusive inference that [appellant’s] administrative transfer was based upon ‘arbitrary and capricious and discriminatory’ factors.” Rather, the Superintendent’s letter continued, “the seven enumerated ‘series of events’ and ten claimed bases to justify [appellant’s] contentions are, in my opinion, broad, brush/stroke allegations that constitute summarizations of [appellant’s] opinions and wishes, rather than specific factors which support [appellant’s] alleged charges of discrimination or arbitrariness.” As a result, appellant filed an appeal with appellee pursuant to Md.Code Ann., Educ. § 4-205(c), and requested a hearing. Appellant and appellee submitted affidavits and other exhibits in support of their respective positions. In response to an October 5, 1992 letter from Deborah D. Kendig, Chairman of the Board of Education of Howard County, which requested submission of documents, affidavits, and argument, appellant’s counsel requested a full evidentiary hearing by letter dated October 30, 1992. Furthermore, also in response to Kendig’s October 5, 1992 letter, the Superintendent’s counsel argued that appellant was not entitled to a full evidentiary hearing because appellant’s allegations were insufficient to entitle her to such a hearing under Anderson & Blake v. Board of Educ. of Prince Georye’s County, 5 Ops. of MSBE 415 (1989), an earlier published opinion of the State Board.

Without a full evidentiary hearing, but after oral argument from counsel for both parties, appellee, by written decision ²⁹⁶ dated December 4, 1992, denied appellant’s transfer appeal and affirmed the Superintendent’s decision. In so doing, appellee stated that “[i]t is Appellant who has the burden of establishing through specific allegations that the decision to involuntarily transfer her was based on improper and illegal motives, such as those set forth in § 6-105 of the Education Article, or war made arbitrarily. That burden has not been satisfied from the record before us.” Appellee also ruled that the Superintendent’s stated reason for the transfer, i.e., for the good of the school, was legitimate in view of the Superintendent’s statutory authority to transfer teachers. Appellant then filed an appeal with the State Board pursuant to Md.Code Ann., Educ. § 4-205(c)(4).

Appellant’s Notice of Appeal stated that appellee erred as a matter of law by refusing to grant a hearing to appellant under the holding of Anderson & Blake. She also argued that appellee erred as a matter of law by upholding the involuntary transfer decision. The State Board issued a written decision after written and oral arguments by counsel. In an opinion dated June 30, 1993, the State Board granted appellee’s “Motion for Summary Affirmance,” thereby affirming appellee’s decision.

Under COMAR 13A.01.01.03K(1), the “State Board may issue a decision on a motion for summary affirmance when there are no genuine issues as to any material facts.” Relying on Anderson & Blake, the State Board held that appellee was correct in not conducting a full evidentiary hearing because appellant failed to allege specific facts of unlawful discrimination or arbitrariness. As a result of the State Board’s decision, appellant appealed to the Circuit Court for Howard County. The only issue before the circuit court was whether appellant’s appeal letter alleged sufficient facts to entitle her to a full evidentiary hearing under the standards set forth in Anderson & Blake. After independent review of the entire record, the circuit court concluded that the appeal letter did not contain specific factual allegations of unlawful discrimination or arbitrariness.

The circuit court, therefore, affirmed the State Board’s decision ²⁹⁷ and adopted it as the opinion of the circuit court. It is from this order that appellant appeals. Before reaching the merits of this appeal, it is important to make one final factual observation. The Superintendent did not single appellant out by involuntarily transferring her to a different teaching assignment.

Originally, appellant was one of five similarly-situated teachers challenging the Superintendent’s involuntary-transfer decision. Appellant’s counsel represented all five teachers in the matter. According to appellant’s brief, four of the five cases were resolved, leaving appellant’s case as the sole remaining controversy. These five teachers were involuntarily transferred to different teaching assignments, despite having satisfactory evaluations.

Indeed, the five teachers alleged that they were transferred without warning, and without any indication that they were experiencing performance difficulties. All five teachers believed that the Superintendent’s explanation for the transfers was insufficient. In fact, according to appellant’s counsel’s October 30, 1992 letter to Kendig (discussed above), the Superintendent’s explanations for transferring these teachers were identical for each teacher. This appears to be correct.

In his November 19, 1992 affidavit (discussed in further detail below) submitted in response to Kendig’s October 5, 1992 letter (discussed above), the Superintendent explained his reasoning for transferring the five teachers. He stated that through his observation and experience, teachers, although having received satisfactory performance evaluations, generally experience professionally positive and beneficial effects from being transferred to a different teaching assignment. The Superintendent further stated that the five teachefs were not transferred for disciplinary reasons, and that these teachers would not lose any professional advantages, e.g., salary or promotional opportunities, as a result. Significantly, the Superintendent pointed out in his affidavit that “the final report on Project Toward The Year 2000, submitted to the Board of Education of Howard County on September 14, 1987, included a recommendation to, ‘provide for professional rejuvenation at the school level ²⁹⁸ through periodic rotation of staff members within buildings or between schools’ ” (Emphasis added by Superintendent).

Armed with these facts, we next address the questions presented. LEGAL ANALYSIS I We first discuss appellee’s argument that appellant failed to show a basis for this Court’s review of the State Board’s decision. Contrary to this assertion, there is a sufficient basis for judicial review of the State Board’s decision. We explain.

As both parties recognize in their briefs, as a result of a combination of legislation and longstanding case law, the State Board has the “last word” on controversies or disputes involving the proper administration of the public school system, thereby leaving the courts of this State with limited power to interfere. Board of School Comm’rs v. Morris, 123 Md. 398, 403 , 91 A. 718 (1914); See also Board of Educ. v. Hubbard, 305 Md. 774, 788 , 506 A.2d 625 (1986) (comprehensively citing Maryland cases recognizing this principle); Board of Educ. v. Barbano, 45 Md.App. 27, 42-44 , 411 A.2d 124 (1980). This broad and comprehensive power, referred to as the State Board’s “visitorial power,” id., arises out of the Education Article of the Annotated Code of Maryland. Section § 2-205(e) of the Education Article states: (1) Without charge and with the advice of the Attorney General, the State Board shall explain the true intent and meaning of the provisions of: (i) This article that are -within its jurisdiction; and (ii) The bylaws, rules, and regulations adopted by the Board.

(2) The Board shall decide all controversies and disputes under these provisions. (3) The decision of the Board is final. ²⁹⁹ Md.Code Ann., Educ. § 2-205(e)(l)-(3) (1992) (emphasis added). Subject to this provision, each county superintendent “shall explain the true intent and meaning of: (i) The school law; and (ii) The applicable bylaws of the State Board.” Id. at § 4-205(c)(2). As part of the State Board’s broad authority, § 4-205(c)(4) provides that a decision of a county superintendent may be appealed to the county board, and then further appealed to the State Board.

Thus, appeals concerning the intent and meaning of a provision of the Education Article or of a State Board bylaw are taken from the county boards to the State Board. See Hubbard, 305 Md. at 789 , 506 A.2d 625 ; Board of Educ. v. Lendo, 295 Md. 55, 65-66 , 453 A.2d 1185 (1982). Although the State Board’s decisions regarding the administration of Maryland’s public schools are “final” and beyond judicial interference, there are four basic exceptions to this rule, as the parties both recognize. Essentially, judicial review is available where: (1) the matter involves a purely legal question.

See, e.g., Wilson v. Board of Educ., 234 Md. 561, 565 [ 200 A.2d 67 ] (1964); Board of Educ. v. Cearfoss, 165 Md. 178, 186-87 [ 166 A. 732 ] (1933); (2) the State Board has contravened state statute. See, e.g., Halsey v. Board of Educ., 273 Md. 566, 572 [ 331 A.2d 306 ] (1975). Cf. Board of Educ. v. Waeldner, 298 Md. 354, 362 [ 470 A.2d 332 ] (1984); Wilson, 234 Md. at 566 [ 200 A.2d 67 ]; (3) the State Board exercised its power in bad faith, fraudulently, or in breach of trust.

See, e.g., Halsey, 273 Md. at 572 [ 331 A.2d 306 ]; Wilson, 234 Md. at 565 [ 200 A.2d 67 ] (citing Coddington v. Helbig, 195 Md. 330, 337-38 [ 73 A.2d 454 ] (1950); or (4) the State Board exercised its power arbitrarily or capriciously. See, e.g., Zeitschel v. Board of Education, 274 Md. 69, 81-82 [ 332 A.2d 906 ] (1975). ³⁰⁰ Appellee argues that appellant has failed to assert any of these reasons as a basis for our review of the State Board’s decision. Initially, we note that neither here nor in any of the proceedings below has appellant raised the issue that the State Board’s decision affirming the denial of a hearing was (1) in contravention of a state statute; (2) in bad faith, fraudulent, or in breach of trust; or (3) arbitrary or capricious. This, therefore, eliminates three of the four above-outlined grounds for our review.

Md.Rule 8—131(a). While never directly stating so, appellant appears to take the position that we can review the State Board’s decision under the first exception. Appellant framed her issue as one involving a question of law. In other words, appellant suggests that the State Board made an error of law when it held that the appellant’s factual allegations were insufficient to entitle her to a full evidentiary hearing on a transfer dispute under the' holding of a prior State Board administrative decision.

This, according to appellant, provides this Court with the proper foundation for reviewing the State Board’s decision in this appeal. Appellee, on the other hand, argues that appellant failed to allege that this case presents a purely legal question because she has merely alleged a misapplication of a prior administrative decision. In order to resolve this issue, we must examine the prior administrative case and determine exactly what function the State Board performed below. Anderson & Blake v. Board of Educ. of Prince George’s County, 5 Ops. of MSBE 415 (1989), as noted above, is a prior published opinion of the State Board.

While the practice of publishing administrative adjudicatory decisions is common at the federal level, See, e.g., CCH Federal Energy Regulatory Reports (Opinions, Orders, & Decisions); CCH Federal Securities Law Reporter (SEC Rulings), it is quite uncommon in Maryland. The rule announced by the State Board in Anderson & Blake is simple: [A] full evidentiary hearing is required on review of a transfer decision only if the Appellant alleges that the transfer was in violation of Section 6-105 of the Education ³⁰¹ Article, or that the transfer constituted an abuse of the discretionary transfer power of the superintendent. The allegation must include specific facts which the Appellant believes supports the charge of discrimination or arbitrariness. Id. at 417.

Previously, State Board administrative case law held that although a transfer may be reviewed by a county board, and if necessary, by the State Board, a full evidentiary hearing is not required under due process principles. Id. at 417. In arriving at the rule announced in Anderson & Blake, the State Board recognized that a county superintendent has broad statutory authority to transfer teachers “ ‘as the needs of the schools require.’ ” Id. at 416 (quoting Md.Code Ann., Educ. § 6-201(b)(2)(ii) (1992)). The State Board noted that the only statutory limitation on this “wide latitude” is Md.Code Ann., Educ. § 6-105 (1992), which prohibits discrimination in matters relating to teacher employment, including transfers based on race, religion, color, national origin,