Strother v. Board of Education

HARRELL, Judge. Appellants, public school teachers, seek reversal of a determination by the Maryland State Board of Education (the State Board), which was affirmed by the Circuit Court for Howard County, that appellants’ challenges to unfavorable classroom observation reports were not appealable. In so doing, they present us with a single issue: “[D]id the trial court err in ¹⁰¹ holding that the State Board inferentially ruled that classroom observation report disputes were not ‘controversies and disputes’ under Section 4-205(c) of the Education Article, even though the State Board plainly held that such matters were covered by Section 4-205(c), but were not further appealable under Section 4-205(c)(4)?” 1 FACTS Appellants, Pinkie M. Strother, Melvin Ganoe, and Dale Radcliffe, are teachers employed by the appellee, the Board of Education of Howard County (the County Board). During the 1987-88 school year, each of the appellants received a written performance report from one of their superiors.

Each of these reports, called an “Observation Report”, contained the supervisor’s view of the performance of the teacher on a given day. Typically, a number of such observation reports are completed during a school year and subsequently lead to the completion of a year-end evaluation report on the employee. In each of these cases, the conclusions of the observation report received by each appellant was less than satisfactory as to his or her performance on that day. In accordance with the terms of the then-applicable collective bargaining agreement between the County Board and the Howard County Education Association (which was the collective bargaining agent representing teachers in Howard County), each of the appellants filed a grievance concerning his or her observation report.

The grievances were processed through each of the lower levels of the grievance procedure and were poised at the brink of the ultimate level of final and binding arbitration. At that point, the County Board sought and received an order from the circuit court staying the arbitration proceedings pending exhaustion by the appellants of their administrative remedies before the State Board. Pursuant to this circuit court order, appellants initiated an appeal to the State Board seeking a determination as to whether, under applicable State ¹⁰² collective bargaining law, observation report disputes could be the subject of negotiations between a local board of education and a teachers association, and, if so, whether such disputes could be subjected to arbitration. On the day that appellants noted their appeal to the State Board, the State Board issued an opinion in an unrelated case (MSBE 88-5), wherein it held that observation report disputes were not lawful subjects of negotiations or arbitrations under the collective bargaining law for teachers because they are a matter of educational policy.

Relying on the State Board’s decision in MSBE 88-5, the County Board moved, in effect, to dismiss appellants’ cases. Appellants’ counsel urged the State Board to remand the cases to the County Board for a review of the Superintendent’s decisions 2 upholding the “unsatisfactory” observation reports. The County Board opposed remand on two grounds: the thirty day appeal period from a Superintendent’s decision to a county board, pursuant to § 4-205(c), had expired, and the dispute was moot since the appellants had each received satisfactory year-end personnel evaluations, despite the challenged classroom observation reports. As is the practice of the State Board, the case was referred to one of its Hearing Examiners, Mitchell J. Cooper, Esquire, for the taking of evidence, oral argument, and the rendering of a written recommendation as to findings of fact, conclusions of law, and a decision.

Examiner Cooper, in ruling against the County Board’s arguments, determined, in pertinent part, as to each argument respectively: “Here, at the time of their appeal, appellants exercised their legal right to have the State Board act in accordance with a decision of the Court of Appeals requiring the exhaustion of administrative remedies. That appeal was brought in timely fashion in pursuit of an option provided by the parties’ ¹⁰³ collective bargaining agreement. Neither party had cause to know that the Board would invalidate that option. To hold, under these circumstances, that appellants have no right to any review of the merits of their “unsatisfactory” observations would have the effect of cutting short, as a penalty for exercising a presumably legal option, the due process to which the appellants are entitled. s{« sfc sjs i'fi Nor can I accept Respondent’s [County Board’s] view that this case was mooted by the fact that each of the appellants received a “satisfactory” rating at the end of the year in which the “unsatisfactory” observations were recorded.

So long as those observations remain in appellants’ personnel files, they will pose some risk to the professional future of each of these teachers. That risk may be a warranted and justifiable one, but appellants have the right to have that question determined by the local school board and, if necessary, by a subsequent appeal to the State Board. In short, I conclude that although the issue of negotiability and arbitrability of classroom observations has been resolved by the State Board’s decision in the earlier Howard County case (88-5), it was neither frivolous nor irresponsible of appellants to seek the administrative remedy urged by the Court some hours before the Board decided the issue. Under these circumstances, it would be inequitable to find that appellants, by pursuing a legally appropriate course of action, deprived themselves of their right to any appeal of the appropriateness of their “unsatisfactory” observations.

Accordingly, I find that these consolidated cases should be remanded to the Howard County Board of Education for a determination of whether the Deputy Superintendent of Schools acted properly in approving the “unsatisfactory” observations of appellants.” (emphasis supplied) On 10 November 1988, the State Board adopted the Examiner’s ruling as its own decision, without modification. ¹⁰⁴ Hearings on appellants’ cases before the County Board were finally held on 3 August 1989.. By simultaneous written decisions dated 20 October 1989, the County Board determined as a preliminary matter that classroom observation reports such as those involved in these cases were “not a decision made nor a controversy or dispute under Section 4-205(c) of the Education Article and, therefore, in our opinion, not appealable.” The County Board then went on to address the merits of each of the disputes and ruled that, even if they were appealable issues, they would have supported the Superintendent in upholding each of the observation reports. The appellants then filed timely appeals with the State Board in accordance with Section 4-205(c)(4) of the Education Article. The State Board again referred the matter to Examiner Cooper.

By written report, dated 21 March 1990, he recommended to the State Board that it reject the argument of the County Board that observation report disputes were not “decisions” or did not constitute a “controversy or dispute” under Section 4-205(c). 3 The Examiner explained: “The acceptance of Respondent’s arguments would mean that Appellants have no right to a county board and State Board review of a Superintendent’s decision. That right of ¹⁰⁵ review was the very question before the State Board when it considered the original appeal from these teachers in Pinkie M. Strother, et at. v. Board of Education of Howard County (88-18), where the Board remanded the consolidated cases to the local board for a determination of whether the “unsatisfactory” observations were proper. Respondent seems to be suggesting that the State Board either did not call for a review of the merits of the Superintendent’s decision or, if the State Board did mandate such a review, it should now reconsider its previous decision. Despite Respondent’s protestations to the contrary, an unsatisfactory observation does, as I pointed out in my Ruling in 88-18, pose sufficient risk to a teacher to raise it to the level of a dispute or controversy, and a Superintendent’s ruling on such an observation does constitute a “decision.” Indeed, in the course of Respondent’s counsel’s argument before me I raised the following question: ‘The Superintendent or his agent presumably isn’t rubber-stamping ... but does have a degree of discretion as to whether he would agree with a professional judgment of an observation or not.

Is that accurate?’ Counsel replied: ‘Yes, I think you’d have to say that if the Superintendent disagreed with one of the professional assistants he could perhaps exercise that discretion.’ Surely, such a right to approve or disapprove is the equivalent of the authority to decide. Further, Respondent’s counsel pointed out that classroom observations take place pursuant to procedures adopted by the County Board. Such observations thus are encompassed in the 4-205 provision that the County Superintendent shall decide controversies involving ‘the rules and regulations’ of the County Board.” On 31 October 1990, the State Board issued a written opinion that modified the Examiner’s recommendation, and which, despite its 10 November 1988 ruling, held “that disputed classroom observations are not appealable under Section 4-205(c)(4) of the Education Article.” In the course of so doing, the State Board noted: ¹⁰⁶ “We believe the classroom observation report is a school-based function, and its review should be limited. The efficient operation of the school system requires that disputes with classroom observations have a prompt resolution at the school level.

We therefore hold that disputed classroom observation reports may be appealed only to the local superintendent whose decision on the matter is final. See Lendo 4 cited above. For these reasons, we find that the disputed classroom observation reports do not fall under the purview of Section 4-205(c)(4) of the Education Article.” It concluded by granting the County Board’s motion for summary affirmance of its decision, without discussion of the merits of the underlying complaints as to the observation reports. Appellants appealed to the circuit court.

The only issue presented to the circuit court was appellants’ contention that the State Board erred in its interpretation of § 4-205(c)(4). In its 10 June 1992 Memorandum and Order affirming “the decision of the State Board of Education in Opinion 90-18”, the circuit court stated its view of what the State Board determined as follows: “In this case the State Board took the opportunity presented by this appeal to exercise its authority to explain the true intent and meaning of this article [Section 2-205(e)(1) ] 5 and to interpret the ‘controversies and disputes’ ¹⁰⁷ provision of Section 4-205(c)(3) as not including challenged classroom observation reports. ¥ ¡t¡ v V Implicit in the State Board Opinion is a finding that classroom observation reports: (1) do not involve rules and regulations of the county board, and (2) do not involve the proper administration of the county public school system. [Section 4-205(c)(2)(i) and (ii) ]. $ $ $ $ :í¡ Consequently, the broad powers extended to the State Board in Section 2-205(e) to explain the true intent and meaning and to decide all controversies and disputes, necessarily circumscribe the scope of judicial review of State Board decisions. ' The Appellants’ Petition in Support of Order for Appeal and Rule B12 Memorandum simply urge that all matters decided by a county superintendent are appealable to the county board and eventually to the State Board by virtue of the language of Section 4-205(c)(4). No specific arguments are presented that address the authority or appropriateness of the State Board’s interpretation of the intent and meaning of ‘controversies and disputes.’ ” (citation omitted) (footnote added). Appellants took a timely appeal from the judgment of the circuit court.

STANDARD OF REVIEW Section 10-215 of the State Government Article, governing both our review and that of the circuit court in cases such as the one sub judice, 6 provides in pertinent part: ¹⁰⁸ (g) Decision. — In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the decision of the agency; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the agency; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. Md. State Gov’t Code Ann. § 10-215(g) (1984). In an appeal from the decision of an administrative agency, we apply one standard of review to the factual conclusions reached by the agency and a different one to its legal interpretations. We may reverse or modify the agency’s decision if it is unsupported by competent, material, and substantial evidence in light of the entire record as submitted.

Andre v. Montgomery County Personnel Bd., 37 Md.App. 48, 61-62 , 375 A.2d 1149 (1977). The principles that guide our application of the substantial evidence test were elucidated by the Court of Appeals in Bulluck v. Pelham Wood Apartments, 283 Md. 505 , 390 A.2d 1119 (1978): “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.” The scope of review “is limited ‘to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ ” ¹⁰⁹ In applying the substantial evidence test, we have emphasized that a “court should [not] substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.” We must also review the agency’s decision in the light most favorable to the agency, since “decisions of administrative agencies are prima facie correct,” and “carry with them the presumption of validity.” Furthermore, not only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences. 283 Md. at 512-13 , 390 A.2d 1119 (citations omitted) (alteration in original). Adding the standard of review of the agency’s legal conclusions to this deferential standard for review of the factual conclusions of the agency, we achieve the consolidated standard discussed in Comptroller of the Treasury v. World Book Childcraft Int’l, Inc., 67 Md.App. 424 , 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986). In that case we relied on the Court of Appeals’ ruling in Ramsay, Scarlett & Co. v. Comptroller of the Treasury, 302 Md. 825 , 490 A2d 1296 (1985), to set forth the following threefold analysis for the guidance of reviewing courts: 1.

First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order ‘is premised solely upon an erroneous conclusion of law.’ 2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. At this juncture, the Ramsay, Scarlett court reminds us that ‘it is the agency’s province to resolve conflicting evidence, and, where inconsistent inferences can be drawn from the same evidence, it is for the agency to draw the inference^’] ¹¹⁰ 3.

Finally, the reviewing court must examine how the agency applied the law to the facts. This, of course, is a judgmental process involving a mixed question of law and . fact, and great deference must be accorded to the agency. The test of appellate review of this function is ‘whether ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].’ World Book, 67 Md.App. at 438-39 , 508 A.2d 148 (citations omitted) (alterations in original). We are at the same time mindful of the heightened deference accorded by reviewing courts to the State Board’s interpretations of the public education law.

Montgomery County Ed. Ass’n v. Bd. of Educ. of Montgomery County, 311 Md. 303, 309-10 , 534 A.2d 980 (1987). With all of these principles in tow we shall consider appellants’ contention. ANALYSIS It seems to us that the circuit court in the case sub judice succumbed to a legal error in its analysis of the State Board’s decision comparable to ours in reviewing a decision by the Maryland Commissioner of Labor and Industry in United Steelworkers of Am. AFL-CIO Local 2610 v. Bethlehem Steel Corp., 53 Md.App. 366 , 454 A2d 850 (1983), vacated and remanded, 298 Md. 665 , 472 A.2d 62 (1984).

In the course of our substantial evidence analysis of the Commissioner’s decision in Bethlehem Steel, we gleaned findings from the record that we attributed as “implicit in the Commissioner’s decision.” Id., 53 Md.App. at 375 , 454 A.2d 850 . The Court of Appeals, in the process of vacating our affirmance of the Commissioner’s decision, reiterated the differences in the analyses to be performed by an