Libit v. Baltimore City Board of School Commissioners

BERGER, J. This appeal arises from the decision of the Maryland State Board of Education (the “State Board”) affirming the decision of the appellee, the Baltimore City Board of School Commissioners (the “Commissioners”) to uphold the decision of the Chief Executive Officer for the Baltimore City Schools (the “CEO”) to terminate appellant, Bayani Libit (“Libit”). On appeal, Libit presents three questions for our review, 1 which we consolidate and rephrase as the following question: ⁵⁸¹ Whether the State Board erred by affirming the CEO’s termination of a teacher, who had not signed a State-mandated teacher’s contract, and who had been employed beyond his probationary period. For the reasons set forth below, we shall reverse the judgment of the Circuit Court for Baltimore City. FACTUAL AND PROCEDURAL BACKGROUND Libit is a citizen of the Philippines, and was employed as a teacher in the Baltimore City Public School System from 2005 until 2013.

In 2005, when Libit was hired, he was granted a visa. In 2008, prior to the expiration of his original visa, Libit obtained an H-1B visa 2 that was conditioned on his continued employment. Libit’s initial H-1B visa was valid between September 26, 2008, and June 27, 2011. Upon the expiration of his H-1B visa in 2011, Libit renewed his visa for a second three-year period.

Libit’s second H-1B visa was scheduled to expire on June 26, 2014. When Libit was hired in 2005, he held a conditional teaching certificate that was valid for two years. Thereafter, on July 1, 2006, Libit was awarded an Advanced Professional Certificate that was renewed in 2011, and is scheduled to expire in June of 2016. On March 22, 2013, Libit was a party to an individual consultation with the school system’s human capital staff where he was informed that he would not be retained for the 2013-2014 school year. 3 Subsequently, Libit received numer ⁵⁸² ous communications reiterating that he was not being retained for the following school year, and providing him information regarding how to arrange travel back to the Philippines.

Thereafter, Libit initiated the appeal process outlined in Md.Code (1978, 2014 Repl.Vol.) § 4-205(c) of the Education Article (“ED”). Libit’s appeal was argued before a hearing examiner who rendered her decision on November 28, 2013. The hearing examiner observed that it was the school system’s policy “that continued employment for foreign workers employed pursuant to an H-1B visa have satisfactory performance during their tenure with [the school system].” Additionally, the hearing examiner found that in the two years prior to his termination, Libit had received unsatisfactory performance evaluations. 4 Furthermore, the hearing examiner determined that because of Libit’s status as an H-1B visa holder, Libit was “subject to termination at any time.” Accordingly, the hearing examiner recommended that “the Board affirm the CEO’s decision to terminate [Libit] for misconduct....” On January 28, 2014, the Commissioners convened for a public board meeting. At the board meeting, the Commissioners considered whether to adopt the recommendation of the hearing examiner and affirm Libit’s termination.

Upon motion, the Commissioners accepted the recommendation of the hearing officer in a five-to-three vote. 5 ⁵⁸³ Subsequently, Libit appealed the Commissioners’ decision to the State Board. In an opinion dated June 27, 2014, the State Board affirmed Libit’s termination. The State Board determined that Libit was not entitled to the procedural protections generally afforded to teachers because “the due process protections of § 6-202 ... presume[ ] a property interest in the employment.” The State Board reasoned that Libit could not have a property interest in his continued employment due to the finite nature of his visa. The State Board, therefore, affirmed Libit’s termination.

Following the decision by the State Board, Libit filed a petition for judicial review in the Circuit Court for Baltimore City. The circuit court found that Libit was not employed under a contract that afforded him any pre-termination rights in any way different than those held by an employee at-will. The circuit court further found that because Libit was an at-will employee, he was not entitled to the pre-termination protections afforded under ED § 6-202(a). The circuit court, therefore, affirmed Libit’s termination.

This timely appeal followed. Additional facts will be discussed as necessitated by the issues presented. STANDARD OF REVIEW “ ‘On appellate review of the decision of an administrative agency, this Court reviews the agency’s decision, not the circuit court’s decision.’ ” Long Green Valley Ass’n v. Prigel Family Creamery, 206 Md.App. 264, 274 , 47 A.3d 1087 (2012) ⁵⁸⁴ (quoting Halici v. City of Gaithersburg, 180 Md.App. 238, 248 , 949 A.2d 85 (2008)). Moreover: “Our review of the agency’s factual findings entails only an appraisal and evaluation of the agency’s fact finding and not an independent decision on the evidence.

This examination seeks to find the substantiality of the evidence. That is to say, a reviewing court ... shall apply the substantial evidence test to the final decisions of an administrative agency ... In this context, substantial evidence, as the test for reviewing factual findings of administrative agencies, has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Tomlinson v. BKL York LLC, 219 Md.App. 606, 614 , 101 A.3d 539 (2014) (alterations omitted) (quoting Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 568-69 , 709 A.2d 749 (1998)). Furthermore, we recognize that “the decisions of the State Board of Education are entitled to greater deference than those of most other administrative agencies.” Patterson Park Pub.

Charter Sch., Inc. v. Balt. Teachers Union, 399 Md. 174, 197 , 923 A.2d 60 (2007) (citing Bd. of Educ. of Talbot Cnty. v. Heister, 392 Md. 140, 155 , 896 A.2d 342 (2006)). With respect to an agency’s legal conclusions, however, “judicial review is less deferential.... [I]n a contested case, the APA permits the court, on judicial review, to decide the correctness of the agency’s [legal] conclusions and to substitute the court’s judgment for that of the agency’s.” Charles Cnty. Dept. of Soc.

Servs. v. Vann, 382 Md. 286, 295 , 855 A.2d 313 (2004). With these principles in mind, we defer to the State Board’s factual findings so long as they are supported by substantial evidence. We will, however, review the legal conclusions that are drawn therefrom de novo. DISCUSSION Libit contends that the State Board erred in concluding that the Commissioners were not bound to comply with the procedure outlined in ED § 6-202(a).

Further, Libit maintains that the failure to comply with ED § 6-202(a) runs afoul of his ⁵⁸⁵ procedural due process rights afforded under the Fourteenth Amendment to the U.S. Constitution. Finally, Libit avers that the decision to terminate him was unsupported by substantial evidence. The Commissioners argue that Libit’s termination was proper because Libit was an at-will employee. As such, the Commissioners assert that Libit was not entitled to the protections afforded under ED § 6-202(a).

For the reasons that follow, we conclude that the Commissioners were required to abide by the procedural requirements set forth in ED § 6-202(a), and the Commissioners failed to do so with respect to Libit’s termination. At the outset, we emphasize that, in our view, this case presents a narrow issue of statutory construction. Accordingly, we do not address the scope of the contractual agreement between the parties, whether Libit was denied due process, or whether there would be substantial evidence to support Libit’s termination. We merely hold that ED § 6-202(a) affords “teachers” certain pre-termination protections, Libit was a “teacher” protected by that statute, and that the Commissioners failed to abide by the procedures set forth in that statute.

I. Terminating Teachers Under Maryland Law Libit contends that his termination was “illegal under State Law.” Under ED § 6-202(a)(1), “[o]n the recommendation of the county superintendent, a county board may suspend or dismiss a teacher....” 6 ED § 6 — 202(a)(1). Additionally, ⁵⁸⁶ “[b]efore removing an individual, the county board shall send the individual a copy of the charges against him and give him an opportunity within 10 days to request a hearing.” ED § 6-202(a)(2) (emphasis added). If requested, the hearing shall take place promptly, but not before 10 days after notice of the hearing. ED § 6-202(a)(3).

The procedure set forth in ED § 6-202 applies to “teacher[s], principals], supervisor[s], assistant superintendentes], [and] other professional assistant[s].” ED § 6-202(a)(1). Critically, the provisions of ED § 6-202(a) outline a procedure whereby the Commissioners will consider the termination of a teacher in the first instance, upon the recommendation of the CEO, so long as the teacher is provided an opportunity to contest the proposed termination. ED § 6-202(a); Venter v. Bd. of Educ., 185 Md.App. 648, 671 , 972 A.2d 328 (2009) (“Under Ed. § 6-202(a), the county board, not the county superintendent, makes the ultimate decision on suspension or dismissal.”). “[I]n reality the [Commissioners] act[] in the manner of an impartial tribunal judging the charges made by one of its employees (the [CEO]) against another of its employees (the teacher) and the latter’s defense to those charges.” Bd. of Educ. of Anne Arundel Cnty. v. Barbano, 45 Md.App. 27, 29 , 411 A.2d 124 (1980). On the other hand, ED § 4-205(c) vests the county superintendent with the authority to “decide all controversies and disputes that involve: (i) [t]he rules and regulations of the county board; and (ii) [t]he proper administration of the county public school system.” 7 ED § 4-205(c)(2).

Many decisions regarding the hiring and termination of school personnel fall within the purview of the CEO’s authority under ED § 4-205(c)(2). Section 4-205(c)(3) further provides a process whereby one may appeal the CEO’s decision to the ⁵⁸⁷ Commissioners, and then to the State Board. ED § 4-205(c)(3). Accordingly, pursuant to the process set forth in ED § 4-205(c), the Commissioners exercise an appellate function with regard to the decisions of the CEO made under the authority of that section.

The critical distinction between ED §§ 4-205(c) and 6-202(a), is that under § 4-205(c), an aggrieved party may argue against an adverse decision rendered by the CEO before the Commissioners, whereas under § 6-202(a), an individual subject to its provisions may argue to the Commissioners that he should not be terminated prior to his termination. Compare ED § 4-205(c), with ED § 6-202(a). Accordingly, the CEO has broad authority to make personnel decisions with respect to most staff, with the exception of “teacher[s], principals], supervisor[s], assistant superintendents], [and] other professional assistants].” ED § 6-202(a)(1). The negative corollary is that “teacher[s], principals], supervisor[s], assistant superintendentes], [and] other professional assistants]” possess certain pre-termination rights that are not afforded to other school personnel.

Id. In the instant action, Libit was informed by a designee of the CEO that his employment would be terminated at the conclusion of the 2012-2013 school year. Libit’s termination was not decided in the first instance by the Commissioners through the process proscribed by ED § 6-202(a). Rather, Libit’s termination was a unilateral decision rendered by a designee of the CEO, which was subsequently affirmed by the Commissioners.

The question, then, is whether Libit’s termination was proper under the provisions of ED § 4-205(c), or whether Libit falls within a class of persons protected by the provisions of ED § 6-202(a). The title and text of ED § 6-202 purport to apply to “teachers, principals, and other professional personnel.” ED § 6-202. By contrast, we have held that “noncertificated technical support employees,” and even “professional noncerti-ficated employees” do not qualify for the protections afforded ⁵⁸⁸ under ED § 6-202(a), and, accordingly, may only avail themselves of the appellate review process outlined in ED § 4-205(c). See e.g., Venter, supra, 185 Md.App. at 680 , 972 A.2d 328 (holding that a Chief Business Officer is not “other professional personnel” under § 6-202(a)); Livers v. Bd. of Educ. of Charles Cnty., 101 Md.App. 160, 164 , 643 A.2d 523 (1994) (observing that a Building Equipment Technician is governed by the provisions of ED § 4-205(c)); see also Wilkins v. Bd. of Educ., MSBE Opinion No. 06-10 (2006) (finding that a Chief Financial Officer is not protected by § 6-202(a)); Walsh v. Bd. of Educ., MSBE Opinion No. 00-54 (2000) (finding that a Chief Information Technology Officer was not protected by § 6-202(a)).

Here, we perceive no ambiguity as to Libit’s status as a “teacher.” Indeed, the hearing examiner, whose findings were incorporated in the Commissioners’ decision affirming Libit’s termination, found that Libit “was assigned to James McHenry Elementary School ... as a teacher.” (emphasis added). Likewise, in its opinion, the State Board expressly noted that Libit was employed “as a teacher.” The parties, however, argue as to whether Libit had achieved tenure. Notably, the Commissioners have the responsibility to set forth qualifications necessary for teachers to obtain tenure. ED § 6—201(f); Bd. of Educ. of Carroll Cnty. v. Carroll Cnty.

Educ. Ass’n, Inc., 53 Md.App. 355 , 358, 452 A.2d 1316 (1982) (“[T]he qualifications, tenure and compensation of appointees ‘shall be determined by the county board.’ ” (emphasis omitted) (quoting ED § 6-201(f))). We further observe that a teacher is generally considered to be tenured upon the expiration of his probationary period. See Barbano, supra, 45 Md.App. at 28 , 411 A.2d 124 (“[T]wo years are to be served in such capacity before a teacher may be cloaked with tenure.”); Parker v. Bd. of Educ. of Prince George’s Cnty., 237 F.Supp. 222, 226 (D.Md.1965) (“[Tjeachers who have served more than two years in the school system have a right to a continuous tenure, from which they may be removed only for ⁵⁸⁹ cause.... ”). 8 In this case it is unnecessary for us to determine whether Libit was tenured, or when Libit became tenured.

Rather, it is sufficient for our purposes that Libit qualifies as a “teacher” subject to the provisions of ED § 6-202(a). A textual analysis of ED § 6-202(a) demonstrates that, generally, the Commissioners are required to decide whether to terminate a teacher in the first instance. Nevertheless, the Commissioners’ argue that because Libit never signed a “Regular Contract” he is not entitled to the protections afforded under ED § 6-202(a). “Regular Contract,” in this context, is a term of art that refers to a specific agreement created by the State Board, and set forth verbatim in COMAR 13A.07.02.01(B)(2). The parties disagree as to whether Libit’s employment is governed by the “Regular Contract,” COMAR 13A.07.02.01(B)(2); the “Provisional Contract,” COMAR 13A.07.02.01(C); or whether Libit is merely an at-will employee who may be terminated for any reason.

We recognize that, by an objective standard, the parties never manifested assent to the “Regular Contract.” Likewise, we recognize that the “Provisional Contract” the parties signed expired in June the year after it was signed in accordance with its plain and unambiguous terms. The State Board found that Libit was not governed by the “Regular Contract” due to his H-1B status and the fact that he never signed the “Regular Contract.” We question whether any agreement between the parties can be construed to be for an employment at-will when the State Board’s regulations expressly provide that “[ejxcept as provided in § C of this regulation, for employees who hold professional certificates, the form entitled “Regular Contract” shall be used and others may not be recognized,” COMAR 13A.07.02.01(B)(1) (emphasis added); see also Zimmer-Rubert v. Bd. of Educ. of Balt. Cnty., 179 Md.App. 589, 602 , 947 A.2d ⁵⁹⁰ 135 (2008) (“[A]ll teachers in the State have identical contracts on forms mandated by the State Board.”). Additionally, the Commissioners’ argument that upon the expiration of the provisional contract Libit would become an at-will employee and receive fewer protections than he previously had under the provisional contract is counter-intuitive, and appears to run contrary to the purposes of ED § 6-202 and COMAR 13A.07.02.01.

In this appeal, however, we need not decide the scope of the parties’ contractual agreement or whether