Board of Educ. of Garrett County v. Lendo

• Decision Date: 21 December 1982
• Docket Number: No. 50,50
• Citation: 453 A.2d 1185,295 Md. 55
• Parties: , 8 Ed. Law Rep. 686 BOARD OF EDUCATION OF GARRETT COUNTY et al. v. Dan LENDO.
• Court: Maryland Court of Appeals

Page 55

295 Md. 55

453 A.2d 1185, 8 Ed. Law Rep. 686

BOARD OF EDUCATION OF GARRETT COUNTY et al. v. Dan LENDO.

No. 50.

Court of Appeals of Maryland.

Dec. 21, 1982.

Ellen M. Heller, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, and Ralph M. Burnett, Oakland, on the brief), for State Bd. and Garrett County Bd.

Charles A. Reese and Judith S. Bresler, Rockville, on the brief, for Bd. of Educ. of Montgomery County.

Joel A. Smith, Lutherville (Abato & Abato, P.A., Lutherville, on the brief), for appellee.

Walter S. Levin, James R. Whattam and Sauerwein, Boyd, Decker & Levin, Baltimore, amicus curiae, for Maryland State Teachers Ass'n, Inc. Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

We shall here hold that the State Board of Education is obliged to decide appeals to it from county boards of education under the provision of Maryland Code (1978) § 4-205(c)(4), Education Article. The State Board had been under the apparent impression that it had something approximating certiorari jurisdiction so that it was not mandated to decide such appeals.

The central figure in this controversy is Dan Lendo, a teacher in the schools of Garrett County, who taught driver education. He served as an athletic coach in interscholastic sports in addition to his teaching activities. This was after school hours. He coached junior varsity football and women's softball. His principal and vice-principal evaluated him in January 1981. They gave a rating of "effective" (the highest) for each of the eight items which pertained to classroom instruction. They marked "NI" ("needs improvement") under the ninth item on the evaluation form, "other." This pertained to his activities as a coach after school hours. Lendo appealed this evaluation to the Superintendent of Schools of Garrett County pursuant to the provisions of Code (1978) § 4-205(c), Education Article. ¹ He contended that teacher evaluations such as his should be based only upon classroom instruction or other performance during school hours. The appeal was unsuccessful.

Lendo then appealed to the Board of Education of Garrett County. ² That, too, was unsuccessful. Lendo then sought review by the State Board of Education. It will be noted by reference to n. 1 that § 4-205(c)(4), after making provision for an appeal to the County Superintendent says, "The decision may be further appealed to the State Board if taken in writing within 30 days after the decision of the county board." The State Board declined to hear the case. An appeal to the Circuit Court for Garrett County followed.

Both the State Board and the Board of Education of Montgomery County were permitted to intervene in the circuit court proceeding. The trial judge (Thayer, J.) reversed the action of the State Board and remanded the case to it for appellate review, filing a well-reasoned opinion. He summarized the position of the parties:

"An analysis of the respective parties' contentions reveals at one end of the spectrum [Lendo's] position that any appeal taken to the State Board under Section 4-205(c) must be heard and considered; in the center is the position of the State Board and the Garrett County Board that the State Board may, but need not, consider such appeals if they do not involve matters of constitutional right, state law or by-laws, rules and regulations having the force of law; at the other end of the spectrum is the Montgomery County Board of Education's position that the State Board may not hear local issues not amounting to alleged denial of constitutional right or involving state law or by-laws or regulations having the force of law." (Emphasis in original.)

An appeal to the Court of Special Appeals followed. We granted the petition of the State Board and the Garrett County Board for a writ of certiorari prior to the hearing of the case by the latter court.

It seems that the State Board of Education in 1973 began taking the position that it was not obliged to decide appeals such as that of Lendo's. It was conceded at oral argument that this case involves the issue of proper administration of the county school system within the purview of § 4-205(c)(3)(ii) which we quoted in n. 1. However, the State Board and the Garrett County Board argue:

"[T]he unambiguous language of the statute sets definite limitations as to what the State Board is required to do in regard to controversies and disputes within the public school system. Under § 2-205(e), the State Board has the mandatory obligation to explain--'shall explain'--only those provisions of the Education Article that are 'within its jurisdiction' as well as its own bylaws, rules and regulations. More important to the question at hand, the State Board has a mandatory duty to decide--'shall decide'--only those controversies and disputes concerning a public school law in the Education Article or a State Board bylaw. In short, the State Board is only required to decide those 'controversies arising under the public school law.' Board of County School Commissioners of Caroline County v. Morris, 123 Md. 398, 403 [, 91 A. 718, 91 A. 720] (1914). There is no language in § 2-205(e) from which it could be inferred that the State Board has a nondiscretionary obligation to accept appeals brought to it under § 4-205(c) which do not contain allegations of violations by local school systems of particular State statutes in the Education Article or a State Board bylaw." (Footnote omitted. Emphasis in original.) ³

Petitioners err when they rely upon School Commissioners v. Morris, 123 Md. 398, 91 A. 718, 91 A. 720 (1914). In that instance, the Board of County School Commissioners of Caroline County appealed from an order of the Circuit Court for Caroline County directing a writ of mandamus to issue commanding the Board to open for pupils a certain school and to keep it open throughout the scholastic year as in previous years. The Court there referred to a number of our prior cases and said:

"In each of these cases it was distinctly held that when the controversy or dispute is one involving the proper administration of the public school system of the State, the Court has no power to interfere, and that all such questions must be referred to and finally settled by the State Board of Education." 123 Md. at 403, 91 A. 718.

It was in that context that the Court quoted from Zantzinger v. Manning, 123 Md. 169, 90 A. 839 (1914), stating:

"The determination of the State Board in such cases is final, and the courts have no authority to pass upon the merits of the controversy for the purpose of affirming or reversing their decisions. The statute requires the State Board to decide all controversies arising under the public school law without expense to the parties concerned, and the wisdom of that legislation is illustrated in this case. Such controversies in the courts not only greatly embarrass the orderly and successful administration of the public school system, but impose heavy burdens and costs upon the parties interested." 123 Md. at 403-04, 91 A. 718. (quoting Zantzinger, 123 Md. at 182, 90 A. 839).

The Court held that the issue before it was one properly cognizable by the State Board of Education and not by the courts.

The statute with which we are here concerned was not even in existence at the time School Commissioners v. Morris was decided. In 1915 the Maryland Educational Survey Commission was appointed. As a direct result of its report a very substantial revision was made in Maryland's school law by ch. 506 of the Acts of 1916. The statutory genesis of § 4-205(c) is that chapter. The Fiftieth Annual Report of the State Board of Education for the year ending July 31, 1916, comments at p. 33 relative to the new section which said that the county superintendent of schools "shall decide, without expense to the parties concerned, all controversies," etc., with the further right of appeal to the State Superintendent of Schools. The statute remained unchanged from a revision by ch. 249 of the Acts of 1920 until the enactment of ch. 405 of the Acts of 1969 which again extensively revised the Public Education Article. Prior to that revision that section, then being Code (1957) Art. 77, § 59, read in pertinent part:

"The county superintendent of schools shall explain the true intent and meaning of the school laws, and of the bylaws of the State Board of Education. He shall decide, without expense to the parties concerned, all controversies and disputes involving the rules and regulations of the county board of education and the proper administration of the public school system in the county, and his decision shall be final, except that an appeal may be had to the State Board of Education if taken in writing within thirty days...."

The 1969 revision added the appeal to the county board. Art. 77, § 59 as amended by the 1969 revision stated, "Further appeal may be had to the State Board of Education if taken in writing within thirty days following the final decision of the county board."

The present statutory language came about as a result of recodification. The Revisor's Note states relative to § 4-205(c)(3) that "new language has been added to include the hearing examiner provisions of § 6-203 of this article." As to paragraph (4) the note states, "[A] 30-day time limit had been placed on appeals to the State Board. By amendment a similar 30-day time limit was placed on appeals to the county board." Then the Revisor's Note goes on to state, "The only other changes are in style."

The principles of statutory construction have been stated many times by this Court. In Police Comm'r v. Dowling, 281 Md. 412, 418-20, 379 A.2d 1007 (1977), we set forth a number of those principles, citing cases for each. The ones applicable to this proceeding include: The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In determining that intent, ...