Montgomery Cnty. Pub. Sch. v. Donlon, 571, Sept. Term, 2016.

• Decision Date: 30 August 2017
• Docket Number: No. 571, Sept. Term, 2016.,571, Sept. Term, 2016.
• Citation: 233 Md.App. 646,168 A.3d 1012
• Parties: MONTGOMERY COUNTY PUBLIC SCHOOLS v. Brian DONLON
• Court: Court of Special Appeals of Maryland

233 Md.App. 646

168 A.3d 1012

MONTGOMERY COUNTY PUBLIC SCHOOLS

v.Brian DONLON

No. 571, Sept. Term, 2016.

Court of Special Appeals of Maryland.

August 30, 2017

Argued by: Eric C. Brousaides (Judith S. Bresler, Carney, Kelehan, Bresler, Bennett & Scherr, LLP, Joshua I. Civin, General Counsel Board of Education Montgomery County, Rockville, MD), all on the brief, for Appellant.

Argued by: Adam A. Carter (R. Scott Oswald, Employment Law Group, PC, on the brief), Washington, D.C., for Appellee.

Panel: Leahy, Reed, Shaw Geter, JJ.

Leahy, J.

This case concerns the interpretation of the Maryland Whistleblower Protection Law, Maryland Code (1993, 2015 Repl. Vol., 2016 Supp.), State Personnel and Pensions Article ("SPP"), § 5–301, et seq. (the "WBL"), and whether it applies to employees of county boards of education.¹

A high school teacher in the Montgomery County Public School system, Appellee Brian Donlon ("Donlon" or "Appellee"), informed the press that he had discovered that Richard Montgomery High School ("RMHS") was inflating its Advanced Placement ("AP") statistics. Donlon then filed a whistleblower complaint against Montgomery County Public Schools ("MCPS" or "Appellant" or the "County Board") with the Maryland Department of Budget and Management ("DBM"). He alleged that after he disclosed the statistics inflation, his superiors retaliated against him by, among other things, assigning him undesirable courses to teach. DBM dismissed his complaint, finding that it did not have jurisdiction because Donlon is not an employee of the Executive Branch of State government. Donlon appealed this decision, and an administrative law judge ("ALJ") in the Office of Administrative Hearings ("OAH") affirmed. Donlon then filed a petition for judicial review in the Circuit Court for Montgomery County. After argument, the circuit court reversed the administrative decision.

MCPS appealed, presenting the following question for our review: "Did the Circuit Court err[ ] in finding, contrary to the determinations of the DBM and the ALJ, that Donlon is an employee in the Executive Branch of State government within the scope of the WBL?" MCPS has also filed a motion, requesting that we take judicial notice of a bill passed during the 2017 legislative session, H.B. 1145—the Public School Employee Whistleblower Protection Act.²

We hold that the WBL does not apply to public school teachers employed by county boards of education because they are not employees of the Executive Branch of State government. We conclude that Donlon does not qualify as an employee of the Executive Branch of State government under any common law test. We also determine that MCPS is not judicially estopped from arguing that MCPS is not a State agency. Accordingly, we reverse the decision of the circuit court and remand with instructions to reinstate the decision and order of the OAH.

BACKGROUND

A. The Whistleblower Complaint

Donlon filed his whistleblower complaint against MCPS³ with DBM on December 10, 2014. In the complaint, Donlon charges that RMHS was inflating its AP statistics by awarding credit to students for AP classes on report cards and transcripts when those students were instead enrolled in the Middle Years Program ("MYP").⁴ Donlon alleged that after discovering this in early 2012, he spoke to Senator Paul Pinsky, a state legislator involved with educational issues, who brought the issue to Donna Hollingshead, the Community Superintendent. After Hollingshead failed to address the issue, Donlon contacted Jay Matthews, a reporter at the Washington Post, who then contacted MCPS. Kim Lansell, the chair of Donlon's department, allegedly stopped speaking to Donlon when she learned that Donlon contacted Matthews. Donlon further alleged that Lansell and Josh Neuman–Sunshine, the assistant principal, falsely accused him of not preparing a substitute teacher properly.

Donlon also related in his complaint that in April 2012, he contacted the Maryland Gazette about the AP statistics inflation, and that the Maryland Gazette published a story on the issue. Donlon alleged the school retaliated against him for speaking to the newspaper about the story when in the fall semester he was assigned no AP courses. In June 2013, Donlon was assigned to teach AP Psychology, a course that he had requested not to teach because he believed that he did not have the requisite background to teach it. The next year, in June 2014, MCPS reassigned Donlon as a floating teacher.⁵ Later in October 2014, Donlon inquired of Lansell why he was teaching a large class without a paraeducator, and Lansell responded very rudely to him.

On October 24, 2014, Damon Monteleone (the school's new principal), and Lansell called Donlon to a meeting to speak to him about how he had been absent from work 42 times during the 2012–13 school year. Donlon responded that most of those absences were due to union meetings, teacher trainings, and the like.

The complaint alleged that these incidents constituted illegal retaliation against him under the WBL, SPP § 5–301, et seq. Donlon requested compensatory damages, punitive damages, costs and attorney's fees, and equitable relief.

B. Administrative Proceedings

On January 27, 2015, the Office of the Statewide Equal Employment Opportunity Coordinator ("OSEEOC"), as the designee of the Secretary of DBM, sent a letter to Donlon dismissing his complaint, stating:

The Office conducted a thorough review of your complaint and the response and documents submitted by the Respondent.

Your complaint does not meet the jurisdictional requirements of the Maryland Whistleblower Law. In accordance with SPP § 5–301, the Maryland Whistleblower Law applies to employees and State employees who are applicants for position in the Executive Branch of State government.... MCPS [ ] is not an Executive Branch agency of State government, and therefore your complaint is not subject to investigation by this office. Accordingly, your complaint is dismissed.

Donlon appealed this decision to the OAH on February 6, 2015, challenging DBM's determination that MCPS is not an executive branch agency of the State government. MCPS filed a motion to dismiss arguing, inter alia , that Donlon was not an employee of the Executive Branch of State government and, as a result, Donlon did not fall under the purview of the WBL. An ALJ held a motions hearing on August 3, 2015.

At the hearing, MCPS called Donlon as its first witness. He testified that MCPS was his employer. MCPS entered Donlon's teaching contract into evidence, noting that the State of Maryland was not a signatory to the contract. MCPS also offered Donlon's W–2—which listed MCPS as his employer.

MCPS then presented the affidavit of Dhiren Shah, the Deputy Director of the central payroll bureau for the Comptroller of Maryland, swearing that there were no current or former State employees with the name of Brian J. Donlon. Nonetheless, Donlon testified: "I believe I'm a certified teacher by the State of Maryland and that the Montgomery County Public Schools is an extension of the State Board, so that would make me a Maryland employee of the Executive Branch in that regard."

MCPS then entered into evidence the affidavit of Steven Serra, director of the Office of Human Resources for the Maryland State Department of Education ("MSDE"), swearing that Donlon had never been employed by MSDE. MCPS also entered into evidence the collective bargaining agreement between MCPS and its teachers, to which the State was not a party, as well as a document demonstrating that State holidays and MCPS holidays do not correspond. MCPS then listed all of the principal departments of the Executive Branch of the State government, one-by-one, and asked Donlon whether he was employed by each. Donlon responded "no" to each question. Donlon testified, however, that it was his belief that because all MCPS employees were ultimately answerable to MSDE, that all MCPS employees were State employees.

MCPS then called Jeffrey Martinez, the director of recruitment and staffing in the Office of Human Resources and Development for MCPS. Martinez testified that he (Martinez) was an employee of the Board of Education for MCPS and that attending State training sessions did not convert him into a State employee. He testified that only the Board of Directors for MCPS, not the State Board of Education (the "State Board"), has the authority to hire teachers for MCPS. He added that the County Board, not the State Board, has the authority to fire teachers, although a teacher could appeal that termination to the State Board. MCPS then moved into evidence an article from the Baltimore Sun that listed the salaries of all State employees. This list did not include Donlon. Martinez explained that the superintendent and the County Board, not the State Board, were responsible for overseeing the day-to-day operations of MCPS and for preparing the curriculum. Neither MSDE nor the State Board controlled the curriculum for MCPS.

Stanislaw Damas, the director of association relations for MCPS, testified next. Damas related that he coordinates collective bargaining and negotiations between MCPS and the three unions representing MCPS employees, and that he handles grievances and complaints through the contract grievance and administrative complaint procedures. He testified that the parties to the MCPS teachers' agreement are the County Board and the Montgomery County Education Association (the Montgomery County teachers' union).

Donlon then testified on his own behalf. In support of his view that he actually worked for the State, he stated that, after MCPS terminates a person, that person may eventually appeal his termination to the State Board and that MCPS receives funding from the State to start new schools. Donlon also offered that the State Board sets general voluntary standards on which most county educational curricula are based; that students have statewide testing; and that the State issues high school diplomas. Finally,...