Donlon v. Montgomery Cnty. Pub. Sch., No. 68

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Harrell, J.
Decision Date12 July 2018
Docket NumberNo. 68


No. 68


Argued: May 2, 2018
July 12, 2018


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 (1993, 2015 Repl. Vol., 2016 Supp.), §§ 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 (2017, 2018 Repl. Vol.), §§ 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.


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.

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Circuit Court for Montgomery County
Case No. 409897

Barbera, C.J., Greene Adkins Watts Hotten Getty Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned) JJ.

Opinion by Harrell, J.

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This is how it is today: The teachers are afraid of the principals. The principals are afraid of the superintendents. The superintendents are afraid of the board of education. The board is afraid of the parents. The parents are afraid of the children. The children are afraid of nothing!

—Milton Berle (1908-2002)
(TV and Motion Picture Icon)

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 (1993, 2015 Repl. Vol., 2016 Supp.), §§ 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 from

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contending 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.

Facts and Proceedings

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 regarding

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Donlon'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).

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The Office of the Statewide Equal Employment Opportunity Coordinator ("OSEEOC"), as the designee of the Secretary of the DBM, conducted a review of Donlon's whistleblower complaint.4 The DBM concluded that Donlon's complaint

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

Donlon appealed the DBM's ruling to the Maryland Office of Administrative Hearings ("OAH"). After a hearing, an OAH Administrative Law Judge ("ALJ") affirmed the DBM's decision, holding that

there was no jurisdiction to hear the whistleblower claim because Donlon was not an employee of the Executive Branch of State government. The ALJ noted that the State government's [E]xecutive branch contains 19 principal departments, each of which contain subordinate units, and that MCPS is not among them. The ALJ also observed that the State Board establishes policies and guidelines throughout the State, but that it is the county boards of education that employ principals and teachers. The ALJ found that Donlon submitted no evidence that he was an employee of the executive branch and that there was no employer/employee relationship between Donlon and the executive branch. Accordingly, the ALJ concluded that Donlon was not an executive branch employee, that he could not bring a whistleblower complaint pursuant to the WBL, and that DBM and the OAH did not have jurisdiction to hear the case.

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's

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argument that it may assert its status as a State entity under certain circumstances, but maintain that it is a local agency in other situations:

THE COURT: Just so I'm clear. So [MCPS] thinks it is okay to wrap itself within the protection of the [Eleventh] Amendment to avoid getting sued in federal court but when you come into the coordinate Brach [sic] and [S]tate courts [and] say no, no, no, no. We're not [S]tate agencies for the purposes of [SPP] 5-301.

* * *

THE COURT: [MCPS]'s argument is frivolous, to be blunt.

* * *

[THE COURT:] It is deeply troubling to me that [MCPS] wants to be shielded when it is good for them and not part of the State when it's not good for them.

MCPS appealed to the Court of Special Appeals. As pertinent to the certiorari questions for which we granted the petition in this case (discussed infra), our appellate colleagues - in reliance on Chesapeake Charter, 358 Md. 129, 747 A.2d 625 - held "that public school teachers employed by county boards of education are not employees of the Executive Branch of State government." Donlon, 233 Md. App. at 665, 168 A.3d at 1023.5 The court concluded also that

in light of the "substantial weight" we accord DBM's view, see White [v. Register of Wills of Anne Arundel County], 217 Md. App. [187], 193, 90 A.3d 1213, [1216 (2014)] and the fact that nothing in the statutory text of SPP § 5-301 supports Donlon's argument, we conclude that, as a matter of statutory construction, the WBL does not apply to public school teachers employed by county boards of education because they are not employees of the executive branch.

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Donlon, 233 Md. App. at 666-67, 168 A.3d at 1024. The court echoed that "an entity may qualify as a State agency for some purposes, while being classified as a local...

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