Donlon v. Montgomery Cnty. Pub. Sch.
Decision Date | 12 July 2018 |
Docket Number | No. 68,68 |
Parties | BRIAN DONLON v. MONTGOMERY COUNTY PUBLIC SCHOOLS |
Court | Court of Special Appeals of Maryland |
STATE WHISTLE BLOWER PROTECTION ACT - COUNTY SCHOOL BOARDS AND TEACHERS - NOT STATE EMPLOYEES NOR UNITS OF THE EXECUTIVE BRANCH FOR PURPOSES OF THE WHISTLEBLOWER PROTECTION ACT
The Court of Appeals held that a county board of education is not an entity of the State or a unit of the Executive Branch of State government for purposes of the Maryland State Whistleblower Protection Law, Md. Code , §§ 5-301-314 (the "WBL") of the State Personnel and Pensions Article. Consequently, its teachers are not protected by the WBL. County school boards have both State and local characteristics, and the appropriate designation of a county board (be it State versus local) depends on the context of the board's particular authority or function under the judicial microscope. Moreover, the plain language and legislative intent of the WBL extends no protection to county public school employees or teachers. This conclusion is supported by the recent enactment of the Public School Employee Whistleblower Protection Act (the "PSEWPA"), Md. Code , §§ 6-901-906 of the Education Article ("Educ.") (effective 1 October 2017), which extends expressly whistleblower protection to "any individual who is employed by a public school employer or an individual of equivalent status in Baltimore City." The PSEWPA excludes, however, state employees from its umbrella of protection. The Maryland Legislature was of the view that the PSEWPA was needed because the WBL did not extend whistleblower protection to public school teachers.
JUDICIAL ESTOPPEL - ELEMENTS - APPLICABILITY
The Court of Appeals explained again that the three-part test for judicial estoppel outlined by the intermediate appellate court in Mont. Cnty Pub. Sch. v. Donlon, 233 Md. App. 646, 651-52, 168 A.3d 1012, 1015 (2017), is appropriate given the Court's recent use of the same three-part test in Bank of New York Mellon v. Georg, 456 Md. 616, 175 A.3d 720 (2017), and, in Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 173 A.3d 549 (2017). The Court held unnecessary addressing further judicial estoppel when the first prerequisite that must exist for its application was not satisfied in the case. The contention that an entity is immune from suit on the grounds of sovereign immunity resulting from its State stature is not inconsistent with the assertion that county boards are neither units of the Executive Branch of our State government, nor entities of the State, for purposes of the WBL.
Circuit Court for Montgomery County
Barbera, C.J., Greene Adkins Watts Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.
Opinion by Harrell, J.
Although Uncle Miltie's thesis is debatable, the quotation recognizes a chain-of-command structure popular in American public education systems. The present case has something to do with a part of that structure in Maryland.
We confront here the question of whether a teacher in the Montgomery County Public School ("MCPS") system (or any such system likely) is protected by the Maryland State Whistleblower Protection Law, Md. Code , §§ 5-301-314 (the "WBL") of the State Personnel and Pensions Article ("SPP"). Petitioner, Brian Donlon, contends that teachers employed by the county school board are embraced within the WBL because the county school board is a unit of the Executive Branch of State government.1 Further, Donlon argues that Respondent, MCPS, should be estopped fromcontending that it is not a State agency because MCPS has asserted frequently in other contexts State agency status.
In its defense, MCPS finds comfort in Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129, 747 A.2d 625 (2000), for its view that it and its employees are not a part of the Executive Branch of State government for purposes of the WBL. As regards judicial estoppel, MCPS observes that there is nothing in Maryland law preventing an entity from contending in litigation that it is, in one context, a State agency, but a local county governmental entity for other purposes, as long as the contexts are dissimilar substantively and each supports independently the respective assertions.
Because the question we confront is a purely legal one, we shall provide only such factual background as needed to supply important context.
In 2012, Donlon, a teacher at Rockville's Richard Montgomery High School ("RMHS") in the MCPS system, discovered what he believed was an inflation by RMHS staff and administration of its Advanced Placement ("AP") course statistics. Donlon accused RMHS of "awarding students credit on their report cards and transcripts when the[] [relevant] classes were in fact [Middle Years Program] classes and did not meet the criteria set by the College Board for AP credit." Donlon reported ultimately RMHS's alleged inflation of AP statistics to the County Superintendent. The Superintendent discounted Donlon's contentions.
Donlon contacted a journalist at The Washington Post, informing him of RMHS's "wrongdoing." The journalist interviewed members of the MCPS administration regardingDonlon's claim. As a consequence, Donlon contends that members of RMHS' faculty supervisors retaliated against him,2 in violation of the WBL, for his revelations to the print media. Donlon filed with the Maryland Department of Budget and Management ("DBM") a WBL complaint against MCPS.3 Donlon requested "compensatory damages, punitive damages, costs and attorney's fees, and equitable relief." Mont. Cnty Pub. Sch. v. Donlon, 233 Md. App. 646, 651-52, 168 A.3d 1012, 1015 (2017), cert. granted, 456 Md. 522, 175 A.3d 150 (2017).
Donlon, 233 Md. App. at 655, 168 A.3d at 1017.
Donlon filed a petition for judicial review in the Circuit Court for Montgomery County. The circuit court, in reversing the ALJ, expressed disagreement with MCPS'sargument that it may assert its status as a State entity under certain circumstances, but maintain that it is a local agency in other situations:
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