Norville v. Anne Arundel County Board of Education

HOLLANDER, Judge. This case involves a claim of age discrimination in employment, brought under federal and Maryland law. We must determine whether, in a suit initiated by a former employee of a county board of education, the school board is an arm of the State 1 for purposes of sovereign immunity. David Norville, appellant, was discharged by the Anne Arundel County Board of Education (the “Board”) when he was 48 years old.

That termination led Norville to file suit in the Circuit Court for Anne Arundel County against the Board and Norville’s supervisor, Don Cramer, appellees. In an Amended Complaint, Norville alleged, inter alia, age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (the “ADEA”), as well as the Fair Employment Practices Act, Md. Code (1957, 2003 Repl. Vol.), Art. 49B, § 16(a). Norville also asserted claims for common law wrongful discharge and intentional infliction of emotional distress.

In successive rulings over a period of months, the court dismissed all of Norville’s claims prior to trial. On appeal, Norville poses the following questions: 2 ¹⁸ I. Was Norville’s Article 19 rights [sic] violated by the Circuit Court of Anne Arundel County?

II

Did the Circuit Court err when it held that the Eleventh Amendment bars an ADEA suit against the Anne Arundel County Board of Education in State court, and consequently dismissed Norville’s ADEA count against the Board?

III

Did the Circuit Court err when it held that there is no private cause of action under Article 49B, § 16, and consequently dismissed Norville’s 49B count against the Board?

IV

Did the Circuit Court err when it held that Norville’s common law count of Wrongful Discharge against the Board was preempted by both federal and state statutory remedy, and consequently dismissed Norville’s Wrongful Discharge count against the Board? For the reasons set forth below, we shall affirm in part and reverse in part and remand for further proceedings. FACTUAL SUMMARY Appellant began his employment with the Board as a Media Technician in August 1973, and was later promoted to the position of Media Production Specialist. He was discharged by the Board on September 30,1998.

On November 6, 1998, Norville, then pro se, filed a complaint against the Board with the Equal Employment Opportunity Commission (the “EEOC”). He said, in part: “My statement concerns Anne Arundel Co. Public Schools.... My immediate supervisor is Don Cramer, production and Design Super.” Norville claimed that he “was discriminated against in violation of the Age Discrimination in Employment Act of 1967, as amended, because of my age, 48, with respect to discipline, and discharge.” In the affidavit Norville submitted with his complaint, he averred that he “was not given a satisfactory reason for the disciplinary action.” Appellant added: “I was informed that I ¹⁹ was being discharged because of budgetary reason [sic].” Norville also averred that, on or about June 24, 1998, he received “a disciplinary action” from Cramer, asserting that he was “insubordinate” because he “refused to allow” his wife to operate a school vehicle to transport photographic equipment. 3 Moreover, appellant claimed that, on September 30, 1998, he was “forced to retire....” Norville recalled: I went on vacation on June 29, 1998 for two weeks. Upon my return from vacation a letter was sent to me informing me that they had received the fy99 budget which reduced the number of positions in our department.

I was informed that I had to apply for the two positions when they were posted. In my department they [sic] were other specialists: (1) Jenifer Corwin, age mid-20’s, Lori Berdequez, age late 30’s, and Joe Thompson, age late 30’s, Steve Greg, age late 30’s, and myself. 1 was not selected for the positions, but they retained their position. On September 16, 1998, I received a letter informing me that I was not selected for the position. And I was offered a demeaning position as Teacher Assistant retaining my salary for one year or forced retirement.

On September 30, 1998, I was forced to retire from my position. I was the only person I am aware of that was forced to retire. I believe this happened to me because of my age, 1/.8, and my salary — $53,000 yearly plus benefits. All of my coworkers are being paid at a lesser rate than I. The school system would save a lot of money in their budget.

(Emphasis added). The EEOC forwarded a copy of the complaint to the Maryland Commission on Human Relations (the “MCHR” or the “Commission”). In a letter dated December 22, 1998, the Commission notified appellant of its receipt of the EEOC ²⁰ complaint, which it considered as “filed with the [MCHR] as of the date it was filed with EEOC.” Further, the Commission advised that, pursuant to a “Worksharing Agreement” between the EEOC and the Commission, the EEOC would investigate the matter in order “to avoid duplication of effort.” After the EEOC completed its investigation, it sent a “Dismissal and Notice of Rights” letter to Norville, dated December 21, 1998, advising that it was “closing its file” because it was “unable to conclude that the information obtained establishes violations of the statutes.” However, the EEOC added: “This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.” The EEOC also informed appellant of his “right to sue” under federal law, in either federal or state court, “within 90 days” of the notice.

On March 17, 1999, appellant served notice on the Anne Arundel County Solicitor of an age discrimination claim. He did not specifically refer either to the Local Government Tort Claims Act, Maryland Code (2002 Repl. Yol.), § 5-304 of the Courts and Judicial Proceedings Article (“C.J.”), or the Maryland Tort Claims Act, Maryland Code (1984, 1999 Repl. Vol.), § 12YL01 through § 12-110 of the State Government Article (“S.G.”).

The next day, March 18, 1999, Norville filed suit against appellees in the United States District Court for the District of Maryland, which he later amended on June 2, 1999. See Norville v. Anne Arundel County Bd. of Educ., No. MJG99764, 1999 WL 1267696 . The Amended Complaint contained claims for compensatory and punitive damages based on six grounds: violation of the ADEA; violation of Art. 49B, § 16(a); unjust enrichment; quantum meruit; wrongful discharge; and intentional infliction of emotional distress. Among other things, Norville alleged that Cramer deliberately harassed him in an effort to fabricate a record of unsatisfactory performance by appellant, even though appellant’s perform ²¹ anee was exemplary.

He also claimed that his position was awarded to a person under the age of 40. Appellees moved to dismiss the action or, alternatively, for summary judgment. On November 23, 1999, the federal court (Garbis, J.) issued a Memorandum and Order in which it dismissed the ADEA claim against Cramer, with prejudice, and dismissed the remaining claims against Cramer, without prejudice. In dismissing the ADEA claim against Cramer, the district court noted that appellant’s failure to name Cramer in his EEOC complaint constituted a “procedural bar” to the claim against Cramer in his individual capacity. 4 In addition, it agreed with Cramer that, even if he had been properly named in the EEOC complaint, the ADEA does not authorize personal liability against a supervisory employee who discharges an employee.

Rather, the ADEA prohibits an employer from discriminating based on age. See 29 U.S.C. § 630 (b) (defining “employer”); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994). In contrast to its ruling as to Cramer, the court stayed the claims against the Board to await the Supreme Court’s decision in Kimel v. Fla. Bd. of Regents, 157 F.3d 908 (11th Cir.1998), cert. granted, 525 U.S. 1121 , 119 S.Ct. 901 , 142 L.Ed.2d 901 (1999).

In January 2000, the Supreme Court decided Kimel v. Fla. Bd. of Regents, 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000). Thereafter, in reliance on Kimel, the district court dismissed the federal claims against the Board, with prejudice, by Order dated February 20, 2001. The court also dismissed the remaining State claims against ²² the Board, without prejudice.

In doing so, the court observed: “It appears that Rule 2 — 101(b) of the Maryland Rules of Procedure would be applicable! ] with regard to the state law claims over which this Court declines to exercise jurisdiction.” 5 Accordingly, on March 21, 2001, appellant filed suit against appellees in the Circuit Court for Anne Arundel County, alleging age discrimination in violation of Art. 49B, § 16(a); unjust enrichment; quantum meruit; common law wrongful discharge; and intentional infliction of emotional distress. After appellees moved to dismiss, the court held a hearing on September 24, 2001. Thereafter, on November 1, 2001, the court (Lerner, J.) entered an Order dismissing, with prejudice, the unjust enrichment and quantum meruit claims (Counts II, III). The remaining claims were also dismissed, but with leave to amend.

Norville then filed an Amended Complaint on November 26, 2001, consisting of eight counts (i.e., four identical claims against each defendant), for which he sought compensatory and punitive damages of $1,000,000 each and other relief. In particular, he alleged violations of the ADEA (Counts I and V); violations of Article 49B, § 16(a) (Counts II and VI); wrongful discharge (Counts III and VIII); and intentional infliction of emotional distress (Counts IV and VIII). 6 ²³ On December 6, 2001, appellees moved to dismiss the “compensatory damage claims in Counts I and V and punitive damage claims in Counts I-VIII of the Amended Complaint.” As to Norville’s claim for damages under the ADEA, appellees asserted that “the ADEA contains no specific authorization for awarding compensatory damages for pain and suffering,” and noted that “courts are unanimous in holding that damages for pain and suffering or emotional distress are not recoverable under the ADEA.” Appellees also asserted that, “by its terms,” the ADEA “does not expressly provide for an award of punitive damages.” Then, on December 13, 2001, appellees moved to dismiss Counts II and VI, as well as Counts III, IV, VII, and VIII of the Amended Complaint. They advanced numerous grounds to support their motion, including sovereign immunity, preemption by “state and federal statutory authorities,” and failure to “adequately plead a cause of action for the tort of intentional infliction of emotional distress.” In addition, appellees argued that Article 49B of the Maryland Code does not provide for a private right of action. At the motions hearing on April 9, 2002, appellees’ counsel stated: “[0]ne of the reasons we are bringing this motion ... is to boil this case down to what it really is.

In our opinion, it is a federal ADEA case.... [I]t should go forunrd solely as that.” (Emphasis added). Further, appellees’ attorney asserted: The motion really raises six issues. And the first issue is the private right of action under Article 49[B] of the Maryland Code, which is essentially the state equivalent of Title 7 in the Age Discrimination Act. And the cases that we cited ... stand for the proposition that the only party that has standing to bring a cause of action under 49[B] is the Maryland Commission on Human Relations.

And we have cited numerous Fourth Circuit, as well as Maryland state court cases, which essentially say that the only person that could bring a cause of action would be the ²⁴ state agency and that a private individual cannot bring an action. To some extent, this statute is cumulative and duplicative of ... the ADEA Act, the Age Discrimination in Employment Act. Clearly, we don’t dispute the fact that the plaintiff can sue the [B]oard under the Age Discrimination in Employment Act. So 49[B] is really duplicative, and we think it should be dismissed.

(Emphasis added). Appellees’ counsel continued: My position is, at least as to Article 49[B], the only person [sic] can then bring suit is the Maryland commission. What happened in this case is he filed a claim, or what is called a charge of discrimination, with the EEOC and the Maryland commission. And they treat that as the initial filing of an administrative claim. * * * They investigate it.

And either agency has the authority to bring suit themselves. The EEOC does under the Age Discrimination in Employment Act. And the Maryland commission under 49[B] also has that right. In this case, they investigated the case and found no violation of the Age Discrimination Act and basically gave him what is called a right to sue notice.

And that right to sue notice then allows him to go into federal court or state court under the Age Discrimination in Employment Act, the federal statute, to sue. It is our position that if you read 49[B], and if you read the entire statute, the only person that can move under that particular statute is the Maryland commission. And as I have said earlier, we have no argument with his right to file suit under the federal statute. And he can file suit in federal court or state court.

But for purposes of at least the Age Discrimination in Employment Act, the Maryland commission is the one who ²⁵ has the jurisdiction, sole jurisdiction, to be the proper plaintiff. (Emphasis added). Ruling from the bench, the court (North, J.) dismissed both claims for intentional infliction of emotional distress, because appellant did not plead “severe” or “extreme or outrageous conduct.” 7 Thereafter, the court issued a Memorandum Opinion and Order dated May 17, 2002, disposing of the remaining issues. In its Order, the court granted the motion to dismiss appellant’s claim under Article 49B, § 16(a) (Counts II and VI), and his common law wrongful discharge claim (Counts III and VII).

The court also dismissed the ADEA claim against Cramer (Count V). In its Memorandum Opinion, the court noted that appellees had not sought to dismiss the ADEA claim against the Board (Count I). As to the ADEA claim against Cramer (Count V), the court dismissed it for the same reasons previously articulated by the federal court. The circuit court said: “Cramer asserts that the Court should dismiss Count V, because he was not named in the administrative complaint filed with the EEOC and individual liability is not available under the ADEA.

This Court agrees.” The court added: “Even if Cramer had been named at the EEOC level, individual liability, as opposed to employer liability, is not permitted for delegable personnel decisions.” With respect to the claims under Art. 49B, § 16(a) (Counts II and VI), the court concluded that the statute did not create a private right of action. Therefore, the court determined that the Commission was appellant’s sole recourse to address an alleged violation of Article 49B. Concerning appellant’s common law wrongful discharge claims (Counts III and VII), the court stated that “a wrongful discharge claim may not lie” because the “statutory remedies provided by Article 49B and ²⁶ the ADEA preempt any common law wrongful discharge claim.” Citing Makovi v. Sherwin-Williams Co., 316 Md. 603 , 561 A.2d 179 (1989), and Insignia Residential Corp. v. Ashton, 359 Md. 560 , 755 A.2d 1080 (2000), the court added: “[I]f the legislature has provided the vehicle by which a plaintiff may remedy a specific employment wrongdoing as an exception to the terminable at-will rule, an abusive discharge claim may not be brought.” The court continued: Two statutes specifically address the problem of age discrimination: Md. Ann. Code art. 49B, §§ 14-18 and the ADEA. Thus, a judicially created abusive discharge claim to remedy age discrimination is neither permitted or necessary under the holding in Makovi .

Norville has alleged only an age discrimination suit. The ADEA and Art. 49B provide his only possible remedies. Further, the court determined that it need not address appellees’ arguments regarding sovereign immunity and qualified immunity. Accordingly, appellant’s ADEA claim against the Board was then his only surviving claim.

On December 24, 2002, the Board filed a “Preliminary Motion,” asking the circuit court to “rule that sovereign/governmental immunity bars Plaintiffs ADEA claim” against it. The Board claimed that it is a State agency and, therefore, it enjoys constitutional immunity from suit under the ADEA, in both State and federal court, pursuant to the Eleventh Amendment. According to appellant, the Board’s motion represented “a complete reversal” of the Board’s earlier “legal position.” Moreover, appellant argued that immunity under the Eleventh Amendment extends only to suits brought in federal court. In addition, Norville insisted that the Board is not a State agency, and thus it is not entitled to sovereign immunity or the protection of the Eleventh Amendment.

At the hearing on May 1, 2003, the Board argued that “it is well established,” both in federal and State court, “that the local board[s] of education are state agencies for purposes of sovereign immunity.” The Board added: “State immunity or ²⁷ sovereign immunity applies not only to the state government, but it applies to state agencies.” It said: The second issue that we have addressed in our brief is the issue of can the state assert sovereign immunity in a federal ADEA claim in state court. We have cited in section two of our brief several Supreme Court cases. And I think it is fair to say that there has been a major revolution in this area of the law recently: The Kimmell [sic] case, the Seminole case, Seminole Tribe case, and particularly the Alden case. And in 1999 the Supreme Court in Alden held that the powers delegated to Congress under Article 1 of the United States Constitution do not include the power to subject non-consenting states to private suits for damages in the state court.

So what I think what the Supreme Court was saying is that, clearly, when a claimant comes in to state court to assert rights under federal law, particularly employment law, such as the Fair Labors [sic] Standard [sic] Act or the Age Discrimination in Employment Act, clearly the state can impose sovereign immunity both in the federal court under Article 11, as well as traditional notions of sovereign immunity in state court. Appellant disagreed, claiming that the Board is a “quasi-agency” and, under Article 19 of the Maryland Constitution, appellant is entitled to seek redress of a constitutional tort. With regard to whether the Board is a local or State agency, Norville’s lawyer said it did not “make[ ] a lot of difference ....”; he maintained that, at the very least, the Legislature waived sovereign immunity up to $100,000. Claiming that the Eleventh Amendment does not apply in State court, appellant asserted: I think that this is — this is a constitutional tort, if anything.

And it does have a statutory basis. But that statutory basis says in the federal statute that that gives jurisdiction to state and federal courts to hear these types of discriminations. And the reason they got out of it in the federal court was because of the Supreme Court came through with the ²⁸ Kimmell [sic] decision, saying ... you can’t sue state agencies in a federal court because of the Eleventh Amendment. The court agreed with the Board.

By Order of May 14, 2003, the court (Davis-Loomis, J.) granted summary judgment to the Board as to Count I, stating: “[T]he Eleventh Amendment' bars suit against the [Board] on the basis of the [ADEA].... ” In its Memorandum Opinion of the same date, the court explained: States are immune under the Eleventh Amendment from suit in federal court under the ADEA. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 [, 120 S.Ct. 631 , 145 L.Ed.2d 522 ] (2000). The county boards of education in Maryland are state entities that can assert Eleventh Amendment immunity to suit in federal court under the ADEA. See Barnes v. Anne Arundel County Bd. of Educ., Civil No. L-99-1608[, 2000 WL 979108 ], 2000 U.S. Dist.

LEXIS 10695 , at ² (D.Md. July 14, 2000) (stating that “[i]t is well-established that Maryland county school boards are state entities for Eleventh Amendment purposes. Defendant Anne Arundel County Board of Education is thus immune from suit in federal court under the ADEA.”); Jones v. Frederick County Bd. of Educ., 689 F.Supp. 535, 538 (D.Md.1988) (stating ■that “[t]he Frederick County Board of Education is an agent of the State entitled to Eleventh Amendment immunity.”). In the instant case, Plaintiff’s ADEA claim was dismissed in federal court on the basis of the Board’s Eleventh Amendment immunity from suit.... Maryland law provides county boards of education with the power to sue and be sued.

Md.Code Ann., Educ. § 3-104(b)(2)(2001 Repl. Vol.) “A county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.” Md.Code Ann., Cts. & Jud. Proc. § 5-518(c)(2002 Repl. Vol.). “[T]he state’s partial waiver of the county boards’ sovereign immunity does not constitute a waiver of their constitutional immunity from suit in federal court under the Eleventh Amendment.” Jones, 689 F.Supp. at 538 (citing Florida Dept. of Health & Rehabilitative ²⁹ Servs. v. Florida Nursing Home Assn., 450 U.S. 147, 150 [, 101 S.Ct. 1032 , 67 L.Ed.2d 132 ] (1981)).

This Court finds that the Eleventh Amendment bars ADEA suits against county boards of education in state courts. The Supreme Court in Alden v. Maine, 527 U.S. 706 [, 119 S.Ct. 2240 , 144 L.Ed.2d 636 ] (1999), clearly held that “the States retain immunity from private suit in their own courts” as well as in the federal courts. Alden, 527 U.S. at 754 [, 119 S.Ct. 2240 ]. In making his argument, Plaintiff fails to address Alden and instead cites to federal appeals court cases from 1986 and 1946....

It is apparent to this Court that Alden controls this issue. The Maryland Court of Appeals has also recognized that where the State enjoys Eleventh Amendment sovereign immunity from suit in federal court,, it enjoys the same immunity in state court. See Robinson v. Bunch, 367 Md. 432, 439 [, 788 A.2d 636 ] (2002) (stating that “it is clear that the Supreme Court’s decision in Alden v. Maine, 527 U.S. 706 [, 119 S.Ct. 2240 , 144 L.Ed.2d 636 ], requires that we overrule the Court of Special Appeals’ holding that the plaintiffs are entitled to maintain this action under the remedial provisions of the [Fair Labor Standards Act] invoked by the plaintiffs. The Alden case made it clear that the FLSA could not constitutionally authorize an action such as the one here involved.”).

The Supreme Court in Alden made it quite clear that where a State has immunity in the federal courts from an action based on federal law, it enjoys the same immunity in the state courts. Alden, 527 U.S. at 754 [, 119 S.Ct. 2240 ]. Even though Maryland has partially waived the sovereign immunity of the county boards of education, it has not waived their Eleventh Amendment constitutional immunity to suit under the ADEA. Clearly, a private plaintiff cannot bring a cause of action based on the ADEA against a county board of education in a Maryland state court.

(E .22-23) Plaintiff also argues that there is a dispute of material fact as to whether the Board is a state or a county agency. ³⁰ It is clear to this Court that no such dispute exits. The Court of Appeals has conclusively determined that the county boards of education are state agencies. Montgomery County Educ. Assn. v. Board of Educ. of Montgomery County, 311 Md. 303, 317 [, 534 A.2d 980 ] (1987); McCarthy v. Board of Educ. of Anne Arundel County, 280 Md. 634, 650 [, 374 A.2d 1135 ] (1977).

As such, the county boards of education may assert Eleventh Amendment immunity as agencies of the state. (Emphasis added). The court concluded: The Eleventh Amendment protects the States from suit unless they have explicitly waived their immunity. Maryland has clearly not waived its immunity from suits brought under the ADEA, and this immunity applies to private actions brought against its agencies in both federal and state courts.

Accordingly, the Anne Arundel County Board of Education has a constitutional immunity to suits brought in state court under the ADEA. We shall include additional facts in our discussion. I. DISCUSSION A. The Contentions Appellant contends that the circuit court violated his rights under Article 19 of the Maryland Declaration of Rights 8 by erroneously ruling that he cannot sue the Board for violations of the ADEA, Art. 49B, or for the common law tort of wrongful discharge. Asserting that he has a property interest ³¹ in his job, appellant complains that he has been deprived of his day in court and has been denied “any remedy.” He states: Having had his EEOC complaint dismissed without any hearing or administrative ruling on the merits, having had his federal complaint dismissed without a hearing on the merits, and having had every count in his state complaint dismissed over the course of three separate motion hearings before three separate circuit court judges spread out over two years, Norville’s age discrimination claim was thus fully dismissed without ever receiving any hearing on the merits at any state of the litigation — leaving him with no remedy, either common law or statutory, for being discriminated against on the basis of his age.

Further, appellant argues that, under both federal and State law, there is a “clear statutory policy against age discrimination in the workplace.” See 29 U.S.C. § 623 (a)(1); Art. 49B, § 16(a)(1). He notes that Maryland also recognizes the common law tort of wrongful discharge “ ‘when the motivation for discharge [contravenes some] clear mandate of public policy.’ Adler v. American Standard, Corp., 291 Md. 31, 47 [, 432 A.2d 464 ] (1981).” Thus, appellant contends that the court “erred when it held that Norville’s common law count of Wrongful Discharge against the Board was preempted by both federal and state statutory remedy, while at the same time the Court denied any statutory remedy to Nor-ville.” Indeed, Norville maintains that the circuit court’s ruling “flies in the face of the clear statutory policy against age discrimination contained in both State and federal law....” He explains: This ruling would suggest to all county school boards throughout Maryland that they are free to discriminate against their any [sic] employee over the age of 40 on the basis of age, for the Circuit Court has held that there is no statutory or common law remedy available to State employees over the age of 40, victimized by age discrimination in the workplace. This ruling nullifies Article 19 of the Maryland Declaration of Rights. ³² Appellant also contends that the circuit court erred when it ruled that the Board is a State agency for purposes of sovereign immunity, and that the Eleventh Amendment bars an ADEA claim against the Board. Insisting that the Board is a county agency, Norville argues that “the Board cannot avail itself of sovereign immunity.” But, “[e]ven if the Board is a state agency,” Norville contends that the State has partially waived its immunity.” In addition, Norville complains that, at the hearing in April 2002, the Board repeatedly conceded that he could bring suit under the ADEA in State court.

Yet, despite those representations, in May 2003 the Board articulated what appellant characterizes as “a stunning display of reversal of legal position,” and “diametrically contradicted its own concession.” Appellant also maintains that the court “erred when it held that there is no private cause of action under Article 49B, § 16, and consequently dismissed Norville’s 49B count.” Further, he complains about the dismissal of his wrongful discharge claim. In response, the Board argues that it is well settled in Maryland that county boards of education are State agencies, and thus they are protected from suit by sovereign immunity and Eleventh Amendment jurisprudence. The Board also claims that the Legislature has not waived sovereign immunity as to the ADEA claims, stating: A review of Section 5-518, Courts & Judicial Proceedings Article, and Section 4-105, Education Article, Annotated Code of Maryland, reveals no such specific waiver of ADEA claims. In fact, both statutes are a narrow waiver of sovereign immunity; their focus is on traditional tort claims; these statutes do not address federal statutory actions.

Additionally, the Board maintains that appellant has no private right of action under Article 49B of the Maryland Code. It states: “Article 49B itself creates a specific procedure and remedy for the redress of any alleged wrongs. Parlato v. Abbott Labs., 850 F.2d 203 , 205 (4th Cir.1988). Article 49B empowers only MCHR to initiate litigation.” ³³ Moreover, the Board claims that the statutory remedies under Article 49B and the ADEA preempt any common law claim for wrongful discharge, stating: “Maryland courts do not recognize a cause of action for wrongful discharge (or abusive discharge) when a separate statutory remedy exists that provides an exception to the terminable employment at will doctrine.” The Board also argues that Norville does not have a viable Article 19 claim, because he did “not plead a cause of action under either Article 19 or 42 U.S.C. Section 1983 .” The Board notes: “Mr. Norville has cited no ADEA case authority to support an Article 19 claim.” We shall discuss these contentions in turn.

B. STATE OR MUNICIPAL AGENCY Appellant’s ADEA claim is based on 29 U.S.C. § 623 . It provides, in part: § 623. Prohibition of age discrimination (a) Employer practices It shall be unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or ... (f) Lawful practices; age an occupational qualification; other reasonable factors; laws of foreign workplace; seniority system; employee benefit plans; discharge or discipline for good cause It shall not be unlawful for an employer, employment agency, or labor organization— ³⁴ (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age, or where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located;....

The circuit court found that the Board is a State agency. Therefore, it concluded that appellant’s ADEA claim against the Board was barred by the Eleventh Amendment of the United States Constitution and the doctrine of sovereign immunity. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. In reaching its decision, the circuit court relied on Kimel, supra, 528 U.S. 62 , 120 S.Ct. 631 , 145 L.Ed.2d 522 .

There, the Supreme Court considered the Eleventh Amendment and sovereign immunity in regard to a private suit against a state to recover damages under the ADEA. It determined that, in enacting the ADEA, Congress “did not validly abrogate the States’ sovereign immunity to suits by private individuals.” Id. at 91 , 120 S.Ct. 631 . Appellant challenges the underlying premise of the circuit court’s decision. He vigorously maintains that the Board is not an “arm of the state,” and thus the Board is not protected from suit, either by the Eleventh Amendment or sovereign immunity. 9 ³⁵ Arguing that county school boards are the product of the Legislature, the Board disagrees with Norville.

As it recognizes, Md. Code (1978, 2004 Repl. Vol.), § 8-103 of the Education Article (“Ed.”) creates a board of education for each county, “with limited authority to control educational matters that affect the county.” Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129, 135-36 , 747 A.2d 625 (2000). Although the Board concedes that, “in terms of their composition, jurisdiction, funding, and focus,” the local school boards “have a local flavor,” it notes that the Court of Appeals has consistently regarded county school boards as State entities, rather than local agencies. The question of whether the Board is a State or local entity is central because, with regard to the ADEA claim, the doctrine of sovereign immunity does not apply to a county agency; it applies only to the State and its instrumentalities. “[T]he powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.” Alden v. Maine, 527 U.S. 706, 712 , 119 S.Ct. 2240 , 144 L.Ed.2d 636 (1999).

Rather, “[i]n exercising its Article I powers Congress may subject the States to private suits in their own courts only if there is ‘compelling evidence’ that the States were required to surrender this power to Congress ³⁶ pursuant to the constitutional design.” Id. at 730 , 119 S.Ct. 2240 (citation omitted). As we noted, the court below relied, in part, on the Eleventh Amendment. In Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 , 115 S.Ct. 394 , 130 L.Ed.2d 245 (1994), the Supreme Court explained that the Eleventh Amendment “largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State’s own tribunals.” Id. at 39 , 115 S.Ct. 394 . Similarly, the Court of Appeals recently said: “It was settled over a hundred years ago that the Eleventh Amendment to the United States Constitution” provides a state with immunity to claims arising under federal law and asserted by a citizen of that state in federal court.” Maryland Military Dept v. Cherry, 382 Md. 117, 122 , 854 A.2d 1200 (2004).

Thus, Congress has no authority to abrogate a state’s sovereign immunity in federal or state court, although a state may consent to suit. Alden, 527 U.S. at 748, 752, 754-55 , 119 S.Ct. 2240 . “ ‘The [Eleventh] Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity.’ ” Hess, 513 U.S. at 39 , 115 S.Ct. 394 (citation omitted). The Amendment was adopted for “twin reasons”: 1) “the States’ fears that ‘federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin,’ ” id. (citation omitted), and 2) “the integrity retained by each State in our federal system.” Id.

The “impetus for the Eleventh Amendment” was “the prevention of federal-court judgments that must be paid out of a State’s treasury.” Id. at 48 , 115 S.Ct. 394 . ■ [3] Notably, constitutional sovereign immunity “derives not from the Eleventh Amendment but from the structure of the original Constitution itself.” Alden, 527 U.S. at 728 , 119 S.Ct. 2240 ; see Idaho v. Coeur dAlene Tribe of Idaho, 521 U.S. 261, 267-68 , 117 S.Ct. 2028 , 138 L.Ed.2d 438 (1997). The Alden Court acknowledged, 527 U.S. at 713 , 119 S.Ct. 2240 , that the Supreme Court has “sometimes referred to the ³⁷ States’ immunity from suit as ‘Eleventh Amendment immunity,’ ” but that phrase, while “convenient shorthand,” is also something of a misnomer.” Id. This is because “the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment.” Id. Rather, “the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today....” Id.

As the Alden Court said, “The Eleventh Amendment confirmed, rather than established, sovereign immunity as a constitutional principle^]” Id. at 728-29 . Thus, the parameters of constitutional sovereign immunity for the states and its instrumentalities are determined “by fundamental postulates implicit in the constitutional design.” Id. at 729 , 119 S.Ct. 2240 . See Federal Maritime Comm’n v. South Carolina State Ports Auth., 535 U.S. 743, 753 , 122 S.Ct. 1864 , 152 L.Ed.2d 962 (2002) (“[T]he Eleventh Amendment does not define the scope of the States’ sovereign immunity; it is but one particular exemplification of that immunity”). “[S'jovereign immunity is rooted in the common law and ‘is firmly embedded in the law of Maryland.’ ” Stern v. Board, of Regents, University Sys. of Md., 380 Md. 691, 700 , 846 A.2d 996 (2004) (citation omitted). The doctrine “precludes suit against governmental entities absent the State’s consent.” ARA Health Servs., Inc. v. Dept of Public Safety and Corr.

Servs., 344 Md. 85, 91-92 , 685 A.2d 435 (1996); see Sharafeldin, supra, 382 Md. at 140 , 854 A.2d 1208 (“[T]he origin of the doctrine of sovereign immunity in Maryland did not stem from judicial fiat but was statutory in nature, and ‘[w]e have consistently declined to abrogate sovereign immunity by judicial fiat’ ”) (citation omitted). Thus, the Court of Appeals has “held, consistently, that immunity from suit is ‘one of the highest attributes of sovereignty,’ and that any waiver of that immunity must come from the Legislature.” Sharafeldin, 382 Md. at 140 , 854 A.2d 1208 (citation omitted). While “[t]he bar of the Eleventh Amendment to suit in federal courts extends to States and state officials,” it “does ³⁸ not extend to counties and similar municipal corporations.” Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977); see Alden, 527 U.S. at 756 , 119 S.Ct. 2240 (recognizing that the State’s sovereign immunity “does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State”). Only the states themselves, or a state agency or instrumentality that functions as an “arm of the State,” is entitled to invoke sovereign immunity or the immunity afforded by the Eleventh Amendment. See Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 , 117 S.Ct. 900 , 137 L.Ed.2d 55 (1997); Condon v. State, 332 Md. 481, 492 , 632 A.2d 753 (1993).

Therefore, the state/loeal conundrum requires careful scrutiny; we must determine whether the Board is an arm or instrumentality of the State, entitled to the protections of sovereign immunity, or, instead, is to be treated as a county agency, to which sovereign immunity does not apply. The federal cases suggest several factors that are pertinent to the analysis of whether a particular entity is regarded as an arm of the state. 10 Paramount among them is the so called “State treasury” factor, i.e., whether an adverse judgment against the entity would be paid from the State’s treasury. The three “additional factors” are: “(1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) ³⁹ the scope of the entity’s concerns — whether local or statewide — with which the entity is involved; and (3) the manner in which State law treats the entity.” Cash v. Granville County Bd. of Educ., 242 F.3d 219 , 224 (4th Cir.2001). The Supreme Court observed in Hess, supra, 513 U.S. at 48 , 115 S.Ct. 394 , that the “vulnerability of the State’s purse” is the “most salient factor in Eleventh Amendment determinations.” It noted that, when a state is not obligated to bear and pay the judgment of a public entity, “the Eleventh Amendment’s core concern is not implicated.” Id. at 51 , 115 S.Ct. 394 .

Similarly, the Fourth Circuit said in Cash, 242 F.3d at 223: “The principal factor, upon which courts have virtually always relied, is whether a judgment against the governmental entity would have to be paid from the State’s treasury.” See Alkire v. Irving, 330 F.3d 802, 811 (6th Cir.2003)(“[W]e now recognize that the question of who pays a damage judgment against an entity as the most important factor in arm-of-the-state analysis, though it is unclear whether it is the only factor or merely the principal one.”); Eason v. Clark County Sch. Dist., 303 F.3d 1137 , 1141 (9th Cir.2002) (“[Wjhether a money judgment will be satisfied out of state funds — is the most important [factor].”), cert. denied, 537 U.S. 1190 , 123 S.Ct. 1262 , 154 L.Ed.2d 1023 (2003). The “additional factors” seek to ensure that a judgment against the entity would not infringe the state’s “sovereign dignity.” Cash, 242 F.3d at 224. In Cash, supra, 242 F.3d 219 , the Fourth Circuit considered “whether the Granville County (North Carolina) Board of Education enjoys Eleventh Amendment immunity in a suit brought by an employee against it under the Fair Labor Standards Act for overtime pay.” Id. at 221.

The court concluded that the “Board is more like a county than an arm of the State....” Id. In analyzing whether the county board of education was to be treated as an arm of the State of North Carolina, the Fourth Circuit observed that there is “no bright line of demarcation” that separates state entities, entitled to Elev ⁴⁰ enth Amendment protection, from “local governmental entities,” which are not. Id. at 223. Citing Hess, supra, the Fourth Circuit noted that, when there is a conflict in “the factors for resolving whether a governmental entity is an arm of State or more like a county or municipality,” id., the courts seek “guidance in the ‘twin reasons’ for the Eleventh Amendment.” Id.

Those reasons “ ‘dominate’ any analysis of whether a governmental entity is to be accorded Eleventh Amendment immunity.” Id. (citation omitted in Cash). As we noted, the court pointed to several factors to resolve whether the county school board was a state entity. The Cash court said that, “if the State treasury will be called upon to pay a judgment against a governmental entity, then Eleventh Amendment immunity applies to that entity, and consideration of any other factor becomes unnecessary.” Id. at 223.

Conversely, it determined that “a finding that the State treasury will not be affected by a judgment against the governmental entity weighs against finding that entity immune.” Id. at 224. In that circumstance, the court considers whether the three “sovereign dignity” factors, identified above, compel a contrary conclusion. Id. at 225. The Fourth Circuit analyzed various statutory provisions pertinent to the matter of the autonomy of the county school boards.

Id. at 225-26. In particular, it noted that local school boards may purchase liability insurance to satisfy judgments against them; may retain private counsel without seeking permission from the state’s Attorney General; are “ ‘unit[s] of local government’ authorized to enter into interlocal cooperative agreements”; and may declare bankruptcy under federal law. Id. at 225. Moreover, it pointed out that the members of school boards are locally elected, and it is the local board that enforces the statewide rules for teacher certification and curriculum.

Id. at 225-26. Accordingly, the Fourth Circuit concluded that the county board “appears much more akin to a county in North Carolina than to an arm of the State.” Id. at 226. In its view, “any judgment rendered against a local school board would not ... affront the dignity of the State.” Id. ⁴¹ In contrast to Cash, we are mindful that, historically, the Court of Appeals has almost always regarded local school boards as agencies of the State. For example, in Board of Educ. of Prime George’s County v. Prince George’s County Educators’ Ass’n, Inc., 309 Md. 85 , 95-96 n. 3, 522 A.2d 931 (1987), the Court of Appeals stated: “County boards of education are, of course, state agencies and not agencies of the county governments.” Numerous other cases reach the same conclusion.

See, e.g., State v. Bd. of Educ. of Montgomery County, 346 Md. 633 , 635 n. 1, 697 A.2d 1334 (1997) (“The various county boards of education are State agencies.”); Board of Educ. of Prince George’s County v. Town of Riverdak, 320 Md. 384 , 387 n. 3, 578 A.2d 207 (1990)(“It is settled that county boards of education are State agencies.”); Board of Educ. of Prince George’s County v. Secretary of Personnel, 317 Md. 34, 44 , 44 n. 5, 562 A.2d 700 (1989) (“The reason is that the [county school] Board is a state government agency; it is a creature of the State, an arm of the State”; “It is settled that county boards of education are State agencies.”); Montgomery County Educ. Ass’n v. Bd. of Educ. of Montgomery County, 311 Md. 303, 317 , 534 A.2d 980 (1987)(“Local boards are state agencies, and, as such, are responsible to other appropriate state officials and to the public at large.”); Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 620-32 , 458 A.2d 758 (1983) (tracing “statewide system of free public schools” to the adoption of the Maryland Constitution of 1864.); McCarthy v. Bd. of Educ. of Anne Arundel County, 280 Md. 634, 651 , 374 A.2d 1135 (1977) (“We conclude ... that the County Council of Anne Arundel County was without power to legislate in this field and to place additional duties upon a State agency, the Board of Education of Anne Arundel County.”). Moreover, several decisions issued by the United States District Court for the District of Maryland have recognized that county boards of education in Maryland share the sovereign immunity from suit enjoyed by the State. In Lewis v. Bd. of Educ. of Talbot County, 262 F.Supp.2d 608 (D.Md. 2003), for example, a former employee of the Talbot County ⁴² Board of Education brought suit against the board and its agents for breach of contract, wrongful discharge, promissory estoppel, and violations of federal and state constitutional rights.

Id. at 610 . The defendants asserted, inter alia, that they were protected from suit by sovereign immunity, pursuant to the Eleventh Amendment. Id. at 612 . The federal court concluded that the Board was entitled to immunity with respect to all claims, because it is an arm of the state.

Id. at 612-14 . In its analysis, the court considered the factors discussed in Cash to determine whether suit against the school board “essentially constitutes suit against the state....” Id. at 613. Although the court noted that “the scope of concern” of the Talbot County School Board “is more local than statewide,” id. at 613, and acknowledged that this “factor tilts slightly against a finding of sovereign immunity,” id. at 614, the court was satisfied that it was “outweighed by the other factors.” Id. Among other things, the court observed that “Maryland law, through statute and judicial opinion, treats the county school boards as agents of the state.” Id.

The court reasoned, id. at 613: The Talbot County School Board is less autonomous than the board at issue in Cash in many respects. Among other things, the Talbot County Board’s members are appointed by the Governor of Maryland, not locally elected. See Md.Code Ann., Educ. § 3-108. In Maryland, the Board may buy, sell, and hold property only with the approval of the State Superintendent.

See id. at § 4-115. Each new school established by the Talbot County Board becomes a “part of the State program of public education.” Id. at § 4-109. The Board’s employment and teacher certification practices are more closely regulated in Maryland than those of the boards in North Carolina. See, e.g., id. at §§ 6-202 & 4-205(e) (the state, through the State Board of Education, is the ultimate judge of the validity of dismissals for both professional and non-professional employees); Md. Regs.

Code tit. 13A § 07.02.01 (state controls form of contract for certificated employees); Md. Regs. Code tit. 13A §§ 12, et ⁴³ seq. (state defines and enforces teacher certification requirements). While both boards exercise some budgetary discretion, the Talbot County board must submit to an annual audit conducted by the state.

See Md.Code Ann., Educ. § 5-113. Moreover, the State of Maryland retains the power to reconstitute and oversee the operation of schools that do not meet state standards for student performance. See Md. Regs. Code tit. 13A § 01.04.08.

The Talbot County School Board does not operate with the same degree of autonomy as do the school boards of North Carolina. Similarly, in Biggs v. Bd. of Educ. of Cecil County, 229 F.Supp.2d 437 (D.Md.2002), the plaintiffs, parents of an epileptic daughter, sought monetary damages on her behalf under the Americans with Disabilities Act. Id. at 438-39 . They argued that the Board of Education of Cecil County was not entitled to invoke the protection of the Eleventh Amendment because it is not an instrumentality of the State.

Id. at 443 . The federal court disagreed, concluding that the board is a state agency for the purpose of Eleventh Amendment analysis. Id. at 444 . Relying, inter alia, on Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129 , 747 A.2d 625 (2000), the court said: “Maryland law consistently and repeatedly has treated local school boards as agencies of the state.” 229 F.Supp.2d at 444 (footnote omitted).

The Biggs court explicitly addressed the criteria articulated by the Fourth Circuit in Cash, supra, 242 F.3d 219 , and determined that the local board met those criteria and was immune from suit. It stated, 229 F.Supp.2d at 444 : The Court concludes that the Board is a state agency for the purposes of the Eleventh Amendment. First, the State of Maryland exercises a great degree of control over Maryland county school boards. Senior Judge Joseph H. Young of this Court noted in Jones [v. Frederick County Bd. of Educ., 689 F.Supp. 535, 537-38 (1988)] that, Maryland law creates the county boards of education and governs their composition and membership....

The county boards must obtain the state’s approval regarding the ⁴⁴ establishment of schools, acquisition or disposition of property, construction or renovation of buildings, and curriculum. The state appropriates substantial funds to support the county boards. In return, the county boards must acquiesce to an annual audit and submit an annual budget to the state.... See also Adams v. Calvert County Pub.

Schs., 201 F.Supp.2d 516, 521 (D.Md.2002) (recognizing that “[b]oth state and federal courts in Maryland ... have ‘consistently held that the county boards of education are agencies of the state’ and that ‘the Maryland statute clearly supports this conclusion.’ ”) (internal citations omitted); Rosenfeld v. Montgomery County Pub. Schs., 41 F.Supp.2d 581, 586 (D.Md.1999) (concluding, in race discrimination case against the Montgomery County Board of Education and others, that suit was barred by the Eleventh Amendment because the school board is a State entity, and finding, under Maryland law, that Ed. § 4-105(a) does not constitute a waiver for claims less than $100,000, because the State did not explicitly consent to suit); Jones v. Frederick County Bd. of Educ., 689 F.Supp. 535, 538 (D.Md. 1988) (concluding that Frederick County Board of Education “is an agent of the State of Maryland entitled to Eleventh Amendment immunity.”). County boards of education in Maryland seem to have a “peculiar hybrid nature,” with attributes of both State and county government. Dean v. Bd. of Educ. of Cecil County, 71 Md.App. 92, 98 , 523 A.2d 1059 , cert. denied, 310 Md. 490 , 530 A.2d 272 (1987).

Here, the Board operates 108 elementary, middle, and high schools, with nearly 75,000 students. And, for fiscal year 2003, it had an operating budget of over 633 million dollars. 11 While we are tempted simply to parrot what the cases cited above have said as to the arm of the State status of county school boards, the importance of the issue warrants a more careful analysis. ⁴⁵ Tt is helpful to begin with a review of the legislative scheme governing public education in Maryland. The General Assembly has crafted a statutory scheme that confers broad authority upon the State Board of Education as well as local school boards. At the same time, it imposes limitations upon the respective powers of the local boards and the State Board.

County schools systems are funded partly by the State and partly by the individual counties. Hornbeck, supra, 295 Md. at 604 , 458 A.2d 758 . The jurisdiction of “each county school system” is coextensive with the “geographical boundary of the county.” Ed. § 3-102. Each county board is an independent “corporate body,” with the right to “sue and be sued.” Ed. § 3-104 (emphasis omitted).

Moreover, the purpose of the county boards is generally local. See Ed. § 4-101(a) and (b) (stating that “[ejducational matters that affect the counties shall be under the control of a county board of education in each county,” with authority to “seek in every way to promote the interests of the schools under its jurisdiction”). Pursuant to Ed. § 4-108(3), county school boards “determine, with the advice of the county superintendent, the educational policies of the county school system,” subject to State law and applicable bylaws, rules, and regulations of the State Board of Education. However, county school boards must comply with State requirements regarding certification of teachers (Ed. § 6-201) and curriculum (Ed. § 4-111).

County boards have the power to hold property, Ed. § 4-114, and to condemn property without State approval. Ed. § 4-119. In addition, a county school board may consolidate schools, Ed. § 4-120, and enter into cooperative agreements for the joint administration of programs. Ed. § 4-123. 12 They also enjoy considerable latitude in budgetary matters.

Ed. §§ 5-102, 5-103. But, the State retains supervisory control over local development of school property. Although ⁴⁶ county boards may purchase real property, build and remodel school buildings, and select land for school sites, they may only do so with the approval of the State Superintendent of Schools. 13 Ed. §§ 2 — 303(f), 4-115, 4-116. Notably, county school boards are entrusted with considerable control over matters of personnel.

Ed. §§ 4 — 103(a); 6-201. This includes the right to establish qualifications for teachers and administrators, Ed. § 6-201(f), and to dismiss employees for cause. Ed. § 6-202. Ed. § 4-103, captioned “School personnel,” provides, in part: (a) Appointment and Salary. — On the written recommendation of the county superintendent and subject to the provisions of this article, each county board shall: (1) Appoint all principals, teachers,' and other certificated and noncertifieated personnel; and (2) Set their salaries.

Ed. § 6-201 is also relevant. It states: § 6-201. Appointment, tenure, and qualifications. (a) Authority of county board to employ personnel. — The county board shall employ individuals in the positions that the county board considers necessary for the operation of the public schools in the county.

(b) Appointment of professional personnel.— (1) The county superintendent shall nominate for appointment by the county board: (1) All professional assistants of the office of county superintendent; and (ii) All principals, teachers, and other certificated personnel. (2) As to these personnel, the county superintendent shall: (i) Assign them to their positions in the schools; (ii) Transfer them as the needs of the schools require; ⁴⁷ (iii) Recommend them for promotion; and (iv) Suspend them for cause and recommend them for dismissal in accordance with § 6-202 of this subtitle. (c) Appointment of clerical and nonprofessional personnel,.- (1) Except in Worcester County and Baltimore City, the county superintendent shall appoint clerical and other nonprofessional personnel.... (f) Qualifications, tenure, and compensation of appoin tees.-Subject to the provisions of this article, the qualifications, tenure, and compensation of each appointee shall.be determined by the county board....

Ed. § 6-202, which pertains to employee discharge, states, in part: § 6-202. Suspension or dismissal of teachers, principals and other professional personnel. (a) Grounds and procedure for suspension or dismissal.- (1) On the recommendation of the county superintendent, a county board may suspend or dismiss a teacher, principal, supervisor, assistant superintendent, or other professional assistant for: (i) Immorality; (ii) Misconduct in office, including knowingly failing to report suspected child abuse in violation of § 5-704 of the Family Law Article; (iii) Insubordination; (iv) Incompetency; or (v) Willful neglect of duty. (2) Before 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.

(3) If the individual requests a hearing within the 10-day period: ⁴⁸ (1) The county board promptly shall hold a hearing, but a hearing may not be set within 10 days after the county board sends the individual a notice of the hearing; and (ii) The individual shall have an opportunity to be heard before the county board, in person or by counsel, and to bring witnesses to the hearing. (4) The individual may appeal from the decision of the county board to the State Board.... [ 14 ] Ed. § 2-303 governs the powers and duties of the State Superintendent of Schools. It provides, in part: (g) Certification. — (1) The State Superintendent shall certificate the professional personnel in each public school in accordance with this article and subject to the bylaws, rules, and regulations of the Professional Standards and Teacher Education Board. (2) Renewal requirements for any professionally certificated employee may be waived if: (i) The renewal is recommended by the county superintendent having jurisdiction over the employee; and (ii) The professionally certificated employee is: 1. 55 years old or older; or 2.

Employed in public or approved nonpublic school service for at least 25 years. Of significance here, the Legislature has waived the boards’ immunity from suit up to $100,000, or the limits of the applicable insurance coverage. Ed. § 4-105(d) states: § 4-105. Comprehensive liability insurance; defense of sovereign immunity. * * * (d) Defense of sovereign immunity. — A county board shall have the immunity from liability described under § 5-518 of the Courts and Judicial Proceedings Article.

In turn, C.J. § 5-518 provides, in part: ⁴⁹ § 5-518. Same — County boards of education. (b) Claims for more than $100,000. — A county board of education, described under Title b, Subtitle 1 of the Education Article, may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if self-insured or a member of a pool described under § b-105(c)(l)(ii) of the Education Article, above $100,000. (c) Claims for $100,000 or less. — A county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less....

(h) Judgment levied against board. — Except as provided in subsection (e), (f), or (g) of this section, a judgment in tort for damages against a county board employee acting within the scope of employment, a county board member acting within the scope of the member’s authority, or a volunteer acting within the scope of the volunteer’s services or duties shall be levied against the county board only and may not be executed against the county board employee, the county board member, or the volunteer personally. (Emphasis added). The amici recognize that the county school boards receive significant funding from the State. But, they argue that it is not “important” that a school board “would use money it receives from the state to pay judgments against it.... ” In their view, such an argument “would transform any government entity that receives state funds into an arm of the state.” They also point out that “cities and counties typically receive substantial funds from the state, yet are not considered arms of the state.” Moreover, they maintain that a similar argument was rejected in Mt.

Healthy, supra, 429 U.S. at 280-81 , 97 S.Ct. 568 , in which the Supreme Court concluded that a local Ohio board of education was not an arm of the state, even though it received “a significant amount of money from the State.” See also Doe, supra, 519 U.S. at 428 , 117 S.Ct. 900 (“ ‘The question is not who pays in the end; it is who is legally ⁵⁰ obligated to pay the judgment that is being sought.’ ”) (citation omitted); see also Ambus v. Granite Bd. of Educ., 995 F.2d 992, 996 (10th Cir.1993) (en banc) (“The proper [state treasury factor] analysis focuses on whether the damage award would be paid directly by the state treasury, rather than indirectly through commingled state and local funds or state indemnification provisions.”) (emphasis in original). Instead, amici claim that the important issue is “whether the state itself would be liable for a judgment against the entity.” Clearly, the statutory scheme obligates the Board, not the State, to pay any adverse judgment. In particular, Ed. § 4-105 requires county boards of education to procure “comprehensive liability insurance to protect the board and its agents and employees,” with “minimum liability coverage of not less than $100,000 for each occurrence.” Moreover, in the event of litigation, county school boards are not represented by the Attorney General. Instead, they are authorized to retain counsel. 15 See Ed. § 4-104.

Indeed, the Board is represented here by the County Attorney’s Office, not the Maryland Attorney General. Maryland has a mixed system for choosing members of its county boards of education; the boards of about half of Maryland’s counties are locally elected. See Ed. § 3-114. Seven of the eight members of the