Venter v. Board of Education

WOODWARD, J. This appeal arises from the termination of employment of appellant, Bruce M. Venter, as the Chief Business Officer (“CBO”) for the Howard County Public Schools System (“HCPSS”) by the Superintendent of HCPSS, John O’Rourke. Specifically, appellant appeals from the Order of the Circuit Court for Howard County, dated January 11, 2007, affirming the Opinion issued by the Maryland State Board of Education (“State Board”), which upheld a decision of the Board of Education of Howard County (“the local board”) that Superintendent O’Rourke was “within his statutory authority to terminate [appellant’s] employment,” and that the decision to terminate was not “without rationale or in disregard of the facts and circumstances so as to have been arbitrary, unreasonable or illegal.” Appellees to this action are the local board and the State Board. Appellant presents five questions for our review, 1 II.III.which we have consolidated and rephrased: ⁶⁵⁶ I. Did the State Board properly determine that appellant’s appeal of his termination was governed by Section 4-205(c) of the Education Article (“Ed.”), Md.Code (1978, Repl.Vol.2008) rather than Ed. § 6-202?

II

Did the State Board properly determine that appellant was not entitled to an open hearing before the local hearing examiner?

III

Did the circuit court err in denying appellant discovery and declaratory relief?

IV

Is this Court required to report its opinion in this case? For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL BACKGROUND In the instant appeal, appellant does not challenge the merits of the termination decision. Therefore, we set out only those facts necessary to address the issues presented.

On September 20, 2001, the local board voted to approve Superintendent O’Rourke’s recommendation that appellant be appointed as CBO of HCPSS. The CBO position reported directly to the Deputy Superintendent and was salaried on the Administrative Technical Management payscale at Grade 31, which, at the time of appellant’s hiring, was $125,000 per year. Prior to accepting the position, appellant earned a Doctor of Education in Educational Administration and Policy Studies from the State University of New York at Albany in 1986 and served as a certificated public school employee in two different states, New York and Virginia. The CBO position called for an individual with a masters degree in “education administration, finance, accounting, and/or a related field.” Although ⁶⁵⁷ certification in Maryland was not listed as a job requirement for the position of CBO of HCPSS, appellant attached copies of his New York and Virginia certificates to his application for employment to HCPSS.

Appellant did not hold any certificate in Maryland at the time of his hiring, and the parties to the instant appeal stipulated that appellant never submitted a request for any such certification to either the State Superintendent of Schools or the State Board. When Superintendent O’Rourke recommended the appointment of appellant for the position of CBO, he was aware of appellant’s career in New York and Virginia and agreed that appellant had the professional experience and educational level that was “exactly what the job description and the posting of the job called for.” A. CBO Appellant’s position as CBO vested him with significant responsibilities. Among those were “the leadership, organization, and operation of all matters related to business affairs, school planning and construction, maintenance and operations, food services, transportation, and school facilities.” Appellant’s “essential job duties” entailed, inter alia, “[d]ireet[ing] the financial affairs and operations of the school system,” “[d]evelop[ing] and prepar[ing] the annual Operating Budget and the Capital Budget and the Capital Improvement Program for the school system ...,” “[a]ssign[ing] and controlling] the allocation of funds as provided for in the budget ...,” “explain[ing] and interpret[ing] the school system’s financial affairs to the School Board, the County Council, the public and other necessary parties,” and “[d]evelop[ing] and maintain[ing] a comprehensive facilities plan to meet the growth needs of the school system.... ” B. The 12th High School Project As CBO, appellant was responsible for overseeing the planning and construction of a new high school, known as North ⁶⁵⁸ ern High School or “the 12th High School.” In managing the project, appellant was faced with a deadline of August 2005 for the completion of the high school’s construction, in time for the 2005-06 school year. Communications between appellant and John C. Jenkins, the construction manager of the 12th High School project, raised concerns regarding the completion of the school in time to meet its anticipated opening date.

In a letter dated May 5, 2003, Jenkins informed appellant that the September 2005 “start date is not a certainty and will require some changes to the normal process and procedures to be realized.” On June 18, 2003, Jenkins wrote appellant: [T]he [local board] must award and issue notice to proceed in accordance with the dates shown in the attached schedule, or earlier if possible. This means that the Site Contract must be awarded no later than the [local board] meeting of 8/7/03. The award of the first two groups is critical in order to take advantage of the time before winter weather. Finally, the schedule only works if we have a grading permit by 9/1/03, and a building permit by 11/1/03.

The 9/1/03 appears to be very possible. (Emphasis added). On July 7, 2003, Jenkins informed appellant: The plan and schedule discussed in the letter is predicated upon award of the contract by the [local board] by 8/14/03 .... [T]here [may] be no [local board] meeting on 8/14/03.... If the award has to await until 8/28/03, the whole plan needs to be restructured and revised before the 7/16/03 Pre-bid meeting.

A slippage in the award date will cost the project 12% of the good weather period remaining until the 1st winter in the construction schedule which was already starting 2 months late. (Emphasis added). Then, on July 31, 2003, Jenkins wrote: ⁶⁵⁹ As planned, in order to expedite as much site work as possible before winter, it is necessary to be ready to start as soon as the pending appeal is dismissed.... Waiting for an 8/28 award, or the 9/17/03 motion dismissal, deteriorates significantly the amount of work that can be done this Fall. ❖ * * The bottom line is that if [HCPSS] wants to maintain a chance to open in Fall of 2005, they must take the action and the associated risk with award of the site work, by 8/14/03, and the immediate notice to proceed with submittals.

(Emphasis added). No action was taken by the local board on the site work contract in August of 2003. Finally, on September 3, 2003, Jenkins warned appellant: The current situation is as follows: 1. The Site Package previously bid was not awarded on 8/7 as planned and forecast in the bid documents. 2.

As of 9/3/03 the site Package is still not awarded. We have been told that [HCPSS] had elected to avoid the risk of an early award and wait until a ruling was issued on the motion to dismiss the appeal of the Ground Water Discharge Permit which is due by 9/17/03. There is a very real possibility that site work might not advance in the two months before winter to the point needed for building work to start .... In light of the above, as we discussed at our meeting today we have the following: If HCPSS embarks on an effort to complete the project by 8/05, based upon the current situation, there would only be a 50% chance of success.

A complex schedule will have to be developed, and terms and conditions established to promote performance. There is a potential to add 15% to ⁶⁶⁰ the cost of the project. Everything must fall favorable to be successful .... .... HCPSS should not embark on the effort to be ready for [F]all 8/05 opening if they cannot tolerate the real potential for a late start of a month or two in the [F]all of 2005.

If there is no tolerance for slippage, they should plan for a midterm completion. (Emphasis added). Notwithstanding Jenkins’ repeated warnings of the possible consequences of failing to award the site work during the summer of 2003, appellant never informed the local board or the Superintendent about this threat to the construction schedule. The only communication on the subject from appellant was a June 30, 2003 memorandum to the local board that contained a single sentence warning: “Even the best case scenario puts tremendous pressure on the construction schedule based on information put together by the project’s construction manager.” C. Appellant’s Termination In early September 2003, Mark Blom, HCPSS General Counsel and Chief of Staff, became aware of the problem with the construction schedule for the 12th High School project.

Upon learning that Superintendent O’Rourke and other senior administrators had not been informed of the dire nature of the situation, Blom initiated an investigation into the matter. Based on the results of the investigation, Superintendent O’Rourke asked to meet with appellant. The meeting between Superintendent O’Rourke and appellant took place on September 5, 2003. 2 Appellant was unaware of the reason for the meeting and did not bring any materials with him. The meeting lasted about fifteen minutes and, at its conclusion, the Superintendent informed appellant that he was terminating ⁶⁶¹ appellant’s employment as CEO of HCPSS.

In a letter formally acknowledging appellant’s termination, the Superintendent wrote, in relevant part: I base my decision in this matter on your inability to meet my expectations of providing consistent, sound leadership and judgment in effectuating your responsibilities in a cabinet level position. ... [Y]ou demonstrated poor judgment when you did not brief the [local board] or me concerning critical information about the construction schedule of Northern High School that resulted in the [local board] making decisions without the benefit of complete and thorough information. PROCEDURAL HISTORY On October 8, 2003, appellant appealed his termination directly to the State Board. Tn response to appellant’s appeal, the State Board notified appellant by letter dated October 7, 2003, that appellant “has not submitted the matter for review by the [local board] in accordance with the mandates of [Ed.] § 4-205(c).” The State Board informed appellant that, if appellant was not satisfied after an appeal was taken to the local board and the local board ruled on the matter, appellant could then appeal that decision to the State Board. Thereafter, appellant noted an appeal to the local board, which appointed a hearing examiner who conducted a six-day evidentiary hearing.

On October 13, 2004, the hearing examiner recommended that the local board uphold Superintendent O’Rourke’s termination of appellant’s employment. The basis for the recommendation was that (1) the appeal to the local board was timely filed; (2) appellant was an at will employee subject to termination by the superintendent and was not a “professional” employee under Ed. § 6-202; (3) appellant received appropriate due process both pre-termination and post-termination; and (4) appellant failed to sustain his burden of proof, pursuant to Ed. § 4-205(c), that his termination was arbitrary, unreasonable, or illegal. ⁶⁶² The local board, in a unanimous Decision and Order dated December 15, 2004, adopted the findings,. conclusions, and recommendations of the hearing examiner, thereby upholding Superintendent O’Rourke’s decision to terminate appellant. The local board concluded: The Board must conclude, based on the evidence presented, that a reasoning mind could have reasonably found, as the Superintendent did, that [appellant] breached his duty to provide all of the substantive information about the threats to the construction schedule to the Superintendent and Board at a critical time in the decision-making process for the 12th [H]igh [S]chool. While the Board would have taken different action in response to this breach, the Superintendent was within his statutory authority to terminate [appellant’s] employment.

We cannot conclude, based on the evidence presented, that the Superintendent’s decision was without rationale or in disregard of the facts and circumstances so as to have been arbitrary, unreasonable or illegal. The Board upholds the Superintendent’s decision in this case, as we believe we must given the facts and based on the applicable burden of proof. However, the Board acknowledges the skills [appellant] has and brought to his job as Chief Business Officer with HCPSS. In particular, as the record shows, [appellant] was an effective liaison to community groups and was responsive to questions from Board members.

Also, as shown in the record, [appellant] had prior satisfactory performance evaluations. The Board does not condone the unacceptable manner in which the termination was carried out by the former Superintendent. Therefore, the Board asks the Superintendent to review the benefits provided to [appellant] to determine if he received all benefits normally accorded to an employee who separates from employment with HCPSS and to take appropriate action based on his review. Appellant appealed the local board’s decision to the State Board, which, in an opinion issued June 29, 2005, affirmed the decision of the local board.

In its opinion, the State Board ⁶⁶³ decided that the appeal procedures of Ed. § 6-202 were not available to appellant because appellant did not possess the requisite certifications of a “professional assistant” as specified in Ed. § 6-201(e). Section 6-201(e), the State Board explained, required a “professional assistant” to hold “an appropriate certificate from the State Superintendent issued in accordance with the rules and regulations of the State Board.” The Board rejected appellant’s claim that the Section 6—201(e) requirement was satisfied by appellant’s certifications in New York and Virginia. Those certifications, the State Board indicated, may have made appellant eligible for Maryland certification, but were not a certification in Maryland. Instead, the State Board ruled that appellant’s appeal was governed by Ed. § 4-205.

The State Board also determined, inter alia, that appellant was not entitled to have open proceedings before the hearing examiner, concluding that “the local board has demonstrated a reasonable and rational basis for keeping the proceedings before the local hearing officer and oral argument before the local board closed in this matter.” 3 ⁶⁶⁴ On July 22, 2005, appellant filed in the Circuit Court for Howard County a Petition for Judicial Review and Declaratory Judgment, which contained seven counts: (1) “Review of [the Local Board’s] Action;” (2) “Declarations Re: Interstate Agreement & Ultra Vires Acts;” (3) “Declaration Re: General Counsel/Chief of Staff & Conflict of Interest;” (4) “Declaration Re: Attorney Fees;” (5) “Declaration Re: Right to an Open Proceeding;” (6) “Declaration Re: Right to a Hearing Transcript Copy;” and (7) “Review of the Maryland State Board’s Decision.” On February 14, 2006, appellant amended his Petition by adding an additional count for declaratory relief relating to certain documents alleged to have been denied under the Maryland Public Information Act. 4 A hearing on appellant’s Petition was held on March 16, 2006. In a Memorandum Opinion dated January 9, 2007, and Supplemental Memorandum and Order dated January 11, 2007, the circuit court (1) affirmed the Opinion of the State Board that upheld the decision of the local board affirming the Superintendent’s termination of appellant’s employment, and (2) denied all declaratory relief sought by appellant. Appellant timely noted an appeal to this Court. DISCUSSION A. Standard of Review In reviewing the decision of an administrative agency “ ‘we reevaluate the decision of the agency, not the decision of the lower court.’ ” Days Cove Reclamation Co. v. Queen Anne’s County, 146 Md.App. 469, 484 , 807 A.2d 156 (quoting Gigeous v. E. Corr.

Instit., 363 Md. 481, 495-96 , 769 A.2d 912 (2001)), cert. denied, 372 Md. 431 , 813 A.2d 258 (2002). We examine whether the agency’s decision is “ ‘in accordance with ⁶⁶⁵ the law or whether it is arbitrary, illegal, and capricious.’ ” Md. Dep’t of the Env’t v. Ives, 136 Md.App. 581, 585 , 766 A.2d 657 (citations omitted), cert. denied, 364 Md. 462 , 773 A.2d 514 (2001). Thus, our role is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994). When applying the substantial evidence test, we determine whether the record contains “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Md. State Police v. Warwick Supply & Equip.

Co., Inc., 330 Md. 474, 494 , 624 A.2d 1238 (1993) (quoting State Admin. Bd. of Election Laws v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988)). When reviewing an agency’s conclusions of law, “ ‘we may substitute our judgement for that of the agency if there are erroneous conclusions of law.’ ” Ives, 136 Md.App. at 585 , 766 A.2d 657 (quoting Gigeous, 132 Md.App. at 494, 752 A.2d 1238 ). When we decide “whether the agency’s conclusions were premised on an error of law, however, we ordinarily give ‘considerable weight’ to ‘an administrative agency’s interpretation and application of the statute which the agency administers.’ ” Montgomery County v. Rotwein, 169 Md.App. 716, 727 , 906 A.2d 959 (2006) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999)).

B. Governing Statute on Appeal The primary issue in this case is whether appellant’s appeal to the local board was governed by the procedures set forth in Ed. § 6-202, or whether appellant was entitled only to administrative review of his termination pursuant to Ed. § 4-205(c). Relevant provisions of the Education Article provide: § 6-201. Appointment, tenure, and qualifications. (a) Authority of county board to employ personnel.—The county board shall employ individuals in the positions that ⁶⁶⁶ 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; (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 person nel.—(1) Except in Worcester County and Baltimore City, the county superintendent shall appoint clerical and other nonprofessional personnel. * ❖ ❖ (d) Appointment of superviso'ry and administrative personnel to be within certain ratios.—(1) Supervisory and administrative personnel shall be appointed in each county in accordance with ratios established by the rules and regulations of the State Board and -within the ratio established under § 2-205(m) of this article. (2) These personnel shall include: (i) Supervising or helping teachers; (ii) Supervisors of pupil personnel I; (iii) Supervisors of pupil personnel II; and (iv) Visiting teachers.

(e) Certifícate necessary.—An individual may not be appointed as a professional assistant or to any position listed in subsection (d) of this section unless he holds ⁶⁶⁷ the appropriate certificate from the State Superintendent issued in accordance with the rules and regulations of the State Board. (Emphasis added). § 6-202. Suspension or dismissal of teachers, principals, and other professional personnel. (a) Grounds and procedure for suspension or dismiss al.—(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: (1) 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: (i) 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. (Emphasis added). § 4-205.

Powers and Duties of county superintendent. ⁶⁶⁸ * * * (c) Interpretation of law; controversies and disputes.— (1) Subject to the authority of the State Board under § 2-205(e) of this article, each county superintendent shall explain the true intent and meaning of: (1) The school law; and (ii) The applicable bylaws of the State Board. (2) Subject to the provisions of § 6-203 and Title 6, Subtitle 4 of this article and without charge to the parties concerned, each county superintendent shall decide all controversies and disputes that involve: (i) The rules and regulations of the county board; and (ii) The proper administration of the county public school system. (3) A decision of a county superintendent may be appealed to the county board if taken in writing within 30 days after the decision of the county superintendent. The decision may be further appealed to the State Board if taken in writing within 30 days after the decision of the county board.

(Emphasis added). Appellant contends that the local board, not the superintendent, had the authority to dismiss appellant, because appellant’s status was that of “professional personnel” under Ed. § 6-202. According to appellant, by upholding his termination by Superintendent O’Rourke, the local board ceded its “right[ ] of dismissal and of ultimate fact finder of grounds for dismissal” to the local superintendent absent any legal authority for such delegation. 5 By doing so, appellant argues that the local board and the State Board erred in permitting ⁶⁶⁹ Superintendent O’Rourke to “make the ultimate findings of fact” regarding appellant’s termination.* 6 In the alternative, appellant argues that, even if the State Board or local board “has inherent authority to delegate dismissal authority and [the] role of the ultimate fact finder,” such delegation of authority must be made through the rule-making process, “not via ad hoc quasi-judicial opinions.” Appellees respond that the hearing examiner, the local board, and the State Board each correctly determined that appellant was not a “professional assistant” within the meaning of Ed. § 6-201 (e), and thus was not entitled to the procedural protections provided by Ed. § 6-202 for the suspension or dismissal of teachers, principals, and other professional personnel. Appellees maintain that appellant is not a professional assistant, because he lacked any certification from the Maryland State Superintendent of Schools.

Appellees also assert that the State Board’s interpretation of Ed. § 6-202 was in accordance with its recent decisions in Walsh v. Board of Education, MSBE Opinion No. 00-54 (2000), and Wilkins v. Board of Education, MSBE Opinion No. 06-10 (2006). In both Walsh and Wilkins, according to appellees, the State Board interpreted Ed. §§ 6-201, 6-202, and 4-205(c) to require professional noncertificated employees to contest their termination under section 4-205(c) rather than section 6-202. The Court of Appeals in Baltimore City Board of School Commissioners v. City Neighbors Charter School, 400 Md. 324, 342 , 929 A.2d 113 (2007), recently discussed the appropriate judicial review of a State Board decision. The Court first observed the State Board’s “very broad statutory authority over the administration of the public school system” in Maryland.

Id. (internal quotation omitted). The Court explained that ⁶⁷⁰ the totality of its statutory authority constitutes a visitatorial power of such comprehensive character as to invest the State Board with the last word on any matter concerning educational policy or the administration of the system of public education.... Id. at 342-43 , 929 A.2d 113 (internal quotations omitted).

The Court acknowledged that the State Board’s “visitatorial power is not unlimited” in that reviewing courts ultimately decide pure questions of law. Id. at 343 , 929 A.2d 113 . Courts, however, must, by “broad statutory mandate,” give “special deference” to the State Board’s “interpretation of statutes that it administers.” Id. The Court elaborated: [W]hile administrative agencies generally may interpret statutes, as well as rule upon other legal issues, and while an agency’s interpretation of a statute which it administers is entitled to weight, the paramount role of the [State Board] in interpreting the public education law sets it apart from most administrative agencies.

What that statement means is that [State Board] rulings must be given heightened, not less, deference. Id. (emphasis added) (citations omitted). Where the statute at issue is ambiguous, [s]o long as the [State Board] interpretation is not patently wrong, we would ordinarily defer to it.

To the extent that we desire to look further, we would apply the most relevant rules of statutory construction to determine the legislative intent, and, in that regard, may consider legislative history and the statutory purpose. Id. at 348 , 929 A.2d 113 (citation omitted). In the case sub judice, our task is to review the propriety of the State Board’s decision to treat appellant’s appeal of his termination as governed by Ed. § 4-205(c) rather than Ed. § 6-202. We look first to the plain text of both statutory provisions.

Section 4-205 sets forth the powers and duties of a county superintendent. In particular, section 4-205(c) “broad ⁶⁷¹ ly covers county superintendents’ decisions on ‘all controversies and disputes’ involving rules and regulations of the county school board, the school law and bylaws of the State Board of Education, and the ‘proper administration of the county public school system!.]’ ” Reichardt v. Flynn, 374 Md. 361, 374 , 823 A.2d 566 (2003) (quoting Ed. § 4-205(c)) (emphasis in original). Proper administration of the school system includes disciplinary action against an employee. See id.

(stating that “[i]t is difficult to imagine any disciplinary action against a teacher or coach, taken by a county superintendent, that would fall outside of the broad scope of the statute”). An employee who is dissatisfied with the superintendent’s decision may appeal to the county board and, thereafter, to the State Board. Ed. § 4-205(c)(3). Section 6-202(a), however, sets forth a different process for suspending or dismissing “a teacher, principal, supervisor, assistant superintendent, or other professional assistant.” (Emphasis added).

Under Ed. § 6-202(a), the county board, not the county superintendent, makes the ultimate decision on suspension or dismissal. See also Arroyo v. Bd. of Educ., 381 Md. 646 , 655 n. 9, 851 A.2d 576 (2004). “‘[I]n reality the [local] board acts in the manner of an impartial tribunal judging the charges made by one of its employees (the superintendent) against another of its employees ( fe.g.] the teacher) and the latter’s defense to those charges.’ ” Id. (quoting Bd. of Educ. v. Barbano, 45 Md.App. 27, 29 , 411 A.2d 124 (1980)). Moreover, prior to removal, the subject individual is entitled to a hearing before the county board and, at that hearing, he or she may be represented by counsel and bring witnesses.

Ed. § 6-202(a)(2)-(3). The term “professional assistant” is not defined in the Education Article. Ed. § 6-201(b), however, requires that a “professional assistant” be appointed by the county board, upon nomination by the county superintendent. To be appointed as a “professional assistant,” an individual must hold “the appropriate certificate from the State Superintendent ⁶⁷² issued in accordance with the rules and regulations of the State Board.” Ed. § 6-201(e).

We turn next to the State Board’s interpretation of Ed. §§ 4-205(c) and 6-202 in its opinions. In Livers v. Board of Education, 6 Op. MSBE 407 (1992), the State Board decided that the review of a local superintendent’s termination of a noncertificated technical support employee was to be conducted in accordance with the provisions of Ed. § 4-205(c)(4), which was the previous version of the current Ed. § 4-205(c)(3). Id. at 409, 411 A.2d 124 , aff'd 101 Md.App. 160 , 643 A.2d 523 , cert. denied, 336 Md. 594 , 650 A.2d 239 (1994).

In Walsh and Wilkins, the State Board extended its decision in Livers to the termination of professional nonceHificated employees. The appellant in Walsh was the Chief Information Technology Officer (“CITO”) for the Montgomery County Public Schools, a position that was at the same level as an associate superintendent. Walsh, MSBE Opinion at 1. The appellant “served on a number of high level teams and committees with ... associate superintendents” and earned a salary equivalent to that of an associate superintendent.

Id. The appellant, however, was “not a certificated employee.” Id. As CITO, the appellant was responsible for the implementation and operation of a new Student Information System (“SIS”), a computer database of information on student enrollment, grades, course schedules, and attendance. Id.

When school opened for the 1999-2000 school year, the SIS “crashed,” leaving registrars unable to access student course schedules and enroll students, teachers unable to take attendance, and hundreds of students sitting in cafeterias around the county because their class schedules could not be retrieved from the system. Id. at 2. Because of these events, as well as a lack of contingency plans, the local superintendent decided to terminate the appellant. Id. at 3.

The appellant appealed the county superintendent’s decision to the county board of education, which referred the case to a hearing examiner for a determination of whether Ed. § 6-202 or Ed. § 4-205 applied ⁶⁷³ in the case and whether the appellant’s termination was appropriate. Id. The hearing examiner first issued an interim decision, holding that Ed. § 4-205 was the governing provision for appellant’s termination; thereafter, the hearing examiner conducted a hearing on the merits and issued a decision recommending that the county board uphold the appellant’s termination from employment. Id. at 3.

The county board considered the hearing examiner’s findings and recommendation and heard oral argument from the parties, but could not reach a decision by a majority vote of its members to affirm or reverse the decision of the superintendent. Id. at 3-4. Thus the superintendent’s decision to terminate the appellant’s employment remained unchanged. Id.

On appeal to the State Board, the appellant argued that, although he was not certificated, his termination was governed by “the procedures set forth in [Ed.] § 6-202” because he was “the equivalent of a professional assistant.” Id. Citing Ed. § 6-201(e), the State Board noted: “As demonstrated by the record in this case, [the][a]ppellant did not hold any certifications nor was he eligible for certification. Moreover, the job description for the CITO position specifically stated that no certificate or license was required for the position.” Id. Based on those facts, the State Board found that the appellant “was not a professional assistant as contemplated by § 6-202.” Id.

The State Board concluded that appellant’s termination was governed by Ed. § 4-205, concurring with the analysis of the hearing examiner, who stated: The Appellant argues that all employees of the [Board of Education] must be either (1) professional personnel, or (2) clerical and nonprofessional personnel (§ 6-201(b) and (c)), and he clearly does not fall into the second category. However, both parties admit that this law was written years ago, when hiring practices were different and boards of education routinely appointed only certificated teachers to higher level positions. Times and practices may have changed, but a rational interpretation of the law does not limit classes of employees ⁶⁷⁴ to those two categories alone. The law is simply silent about other possible classes of employees.

But, the law is clear that the appellate procedures of Section 6-202 apply only to the category of employees identified therein as ‘professional personnel.’ The law is equally clear that an individual must be certificated to be included in this category. The Appellant was not certificated. Therefore, the Superintendent had the authority to dismiss [the] Appellant directly. The Appellant is not left without recourse.

Although he may not appeal his termination under the provisions of Section 6-202, he is entitled to appeal his termination under the provisions of Section 4-205 of the Education Article. Id. at 4-5 (underline in original). In Wilkins, the appellant was the Chief Financial Officer for the Prince George’s County Public Schools. Wilkins, MSBE Opinion at 1.

The position did not require certification, nor did the appellant hold any such certification. Id. at 1. The appellant was terminated by the Interim Chief Executive Officer, not by the local board, for serious and recurring inefficiencies in the division headed by the appellant. Id. at 2.

The appellant then wrote to the local board complaining that she was denied due process and that she was due a contract, but ultimately she requested only a reconsideration of the terms of her severance upon discharge. Id. at 4. In fine with Walsh, the State Board noted that the appellant, a noncertificated employee, was entitled to an administrative appeal of her termination pursuant to Ed. § 4-205(c)(3). Id. at 3.

The State Board, however, dismissed the appellant’s appeal because she did not properly file an appeal to the local board requesting a review of the termination decision. Id. at 4. The State Board’s interpretation of Ed. § § 4-205 and 6-202 in the case sub judice was consistent with its interpretation of these provisions in Walsh and Wilkins, namely, that professional noncertificated employees must contest their termination under Ed. § 4-205 rather than Ed. § 6-202. Here, ⁶⁷⁵ the State Board observed that the provisions of Ed. § 6-202(a) applied to the suspension or dismissal of “a teacher, principal, supervisor, assistant superintendent, or other professional assistant,” and that Ed. § 6-201 (e) required a “ ‘professional assistant’ to hold ‘an appropriate certificate from the State Superintendent issued in accordance with the rules and regulations of the State Board.’ ” not require certification and appellant did not hold a Maryland certification.

The State Board rejected appellant’s claim that he was a “professional assistant” because of his certifications in New York and Virginia. Those certifications, the State Board explained, may have made appellant eligible for Maryland certification, but in order to obtain a Maryland certificate, an application had to be filed with the Maryland State Department of Education with the requisite information, and appellant had never done so. The State Board concluded that appellant was not a professional assistant for the purposes of Ed. § 6-202, and thus appellant’s termination was governed by Ed. § 4-205. We are required, “under our long-established jurisprudence, ... to give substantial deference to the [State Board] interpretation” of statutes that it administers, “especially as that interpretation, though ultimately a legal conclusion, is laced with substantial educational policy.” Balt.

City Bd. of Sch. Comm’rs, 400 Md. at 344 , 929 A.2d 113 . In Livers, this Court addressed the question: “Was the [State Board’s] ruling correct that grievance arbitration [by a non-certificated employee] over discipline or dismissal is an illegal subject of bargaining ... ?” 101 Md.App. at 162 , 643 A.2d 523 . In holding that this matter was not subject to arbitration, we upheld the State Board’s determination that “the remedies or means by which a non-certificated employee may challenge a discipline or discharge decision are non-negotiable matters of educational policy within the exclusive province of the local school system.” Id. at 166, 169 , 643 A.2d 523 (emphasis added).

We recognize that appellant earned a doctorate degree in Educational Administration and Policy Studies, served ⁶⁷⁶ as a certified public schools employee in two other states, and possessed, according to Superintendent O’Rourke, “exactly what the job description and the posting of the [CBO] job called for.” We further acknowledge that, as CBO, appellant reported directly to the Deputy