Strother v. Board of Educ. of Howard County

• Decision Date: 01 September 1992
• Docket Number: No. 1074,1074
• Citation: 96 Md.App. 99,623 A.2d 717
• Parties: , 82 Ed. Law Rep. 557 Pinkie M. STROTHER, et al. v. BOARD OF EDUCATION OF HOWARD COUNTY. ,
• Court: Court of Special Appeals of Maryland

Page 99

96 Md.App. 99

623 A.2d 717, 82 Ed. Law Rep. 557

Pinkie M. STROTHER, et al. v. BOARD OF EDUCATION OF HOWARD COUNTY.

No. 1074, Sept. Term, 1992.

Court of Special Appeals of Maryland.

April 30, 1993.

James R. Whattam (Walter S. Levin, on the brief), Baltimore, for appellants.

Charles A. Reese (Reese and Carney, on the brief), Columbia, for appellee.

Argued before ROSALYN B. BELL ^*, WENNER and HARRELL, JJ.

HARRELL, Judge.

Appellants, public school teachers, seek reversal of a determination by the Maryland State Board of Education (the State Board), which was affirmed by the Circuit Court for Howard County, that appellants' challenges to unfavorable classroom observation reports were not appealable. In so doing, they present us with a single issue: "[D]id the trial court err in holding that the State Board inferentially ruled that classroom observation report disputes were not 'controversies and disputes' under Section 4-205(c) of the Education Article, even though the State Board plainly held that such matters were covered by Section 4- 205(c), but were not further appealable under Section 4-205(c)(4)?" ¹

FACTS

Appellants, Pinkie M. Strother, Melvin Ganoe, and Dale Radcliffe, are teachers employed by the appellee, the Board of Education of Howard County (the County Board). During the 1987-88 school year, each of the appellants received a written performance report from one of their superiors. Each of these reports, called an "Observation Report", contained the supervisor's view of the performance of the teacher on a given day. Typically, a number of such observation reports are completed during a school year and subsequently lead to the completion of a year-end evaluation report on the employee. In each of these cases, the conclusions of the observation report received by each appellant was less than satisfactory as to his or her performance on that day. In accordance with the terms of the then-applicable collective bargaining agreement between the County Board and the Howard County Education Association (which was the collective bargaining agent representing teachers in Howard County), each of the appellants filed a grievance concerning his or her observation report. The grievances were processed through each of the lower levels of the grievance procedure and were poised at the brink of the ultimate level of final and binding arbitration.

At that point, the County Board sought and received an order from the circuit court staying the arbitration proceedings pending exhaustion by the appellants of their administrative remedies before the State Board. Pursuant to this circuit court order, appellants initiated an appeal to the State Board seeking a determination as to whether, under applicable State collective bargaining law, observation report disputes could be the subject of negotiations between a local board of education and a teachers association, and, if so, whether such disputes could be subjected to arbitration. On the day that appellants noted their appeal to the State Board, the State Board issued an opinion in an unrelated case (MSBE 88-5), wherein it held that observation report disputes were not lawful subjects of negotiations or arbitrations under the collective bargaining law for teachers because they are a matter of educational policy.

Relying on the State Board's decision in MSBE 88-5, the County Board moved, in effect, to dismiss appellants' cases. Appellants' counsel urged the State Board to remand the cases to the County Board for a review of the Superintendent's decisions ² upholding the "unsatisfactory" observation reports. The County Board opposed remand on two grounds: the thirty day appeal period from a Superintendent's decision to a county board, pursuant to § 4-205(c), had expired, and the dispute was moot since the appellants had each received satisfactory year-end personnel evaluations, despite the challenged classroom observation reports.

As is the practice of the State Board, the case was referred to one of its Hearing Examiners, Mitchell J. Cooper, Esquire, for the taking of evidence, oral argument, and the rendering of a written recommendation as to findings of fact, conclusions of law, and a decision. Examiner Cooper, in ruling against the County Board's arguments, determined, in pertinent part, as to each argument respectively:

"Here, at the time of their appeal, appellants exercised their legal right to have the State Board act in accordance with a decision of the Court of Appeals requiring the exhaustion of administrative remedies. That appeal was brought in timely fashion in pursuit of an option provided by the parties' collective bargaining agreement. Neither party had cause to know that the Board would invalidate that option. To hold, under these circumstances, that appellants have no right to any review of the merits of their "unsatisfactory" observations would have the effect of cutting short, as a penalty for exercising a presumably legal option, the due process to which the appellants are entitled.

* * * * * *

Nor can I accept Respondent's [County Board's] view that this case was mooted by the fact that each of the appellants received a "satisfactory" rating at the end of the year in which the "unsatisfactory" observations were recorded. So long as those observations remain in appellants' personnel files, they will pose some risk to the professional future of each of these teachers. That risk may be a warranted and justifiable one, but appellants have the right to have that question determined by the local school board and, if necessary, by a subsequent appeal to the State Board.

In short, I conclude that although the issue of negotiability and arbitrability of classroom observations has been resolved by the State Board's decision in the earlier Howard County case (88-5), it was neither frivolous nor irresponsible of appellants to seek the administrative remedy urged by the Court some hours before the Board decided the issue. Under these circumstances, it would be inequitable to find that appellants, by pursuing a legally appropriate course of action, deprived themselves of their right to any appeal of the appropriateness of their "unsatisfactory" observations.

Accordingly, I find that these consolidated cases should be remanded to the Howard County Board of Education for a determination of whether the Deputy Superintendent of Schools acted properly in approving the "unsatisfactory" observations of appellants." (emphasis supplied)

On 10 November 1988, the State Board adopted the Examiner's ruling as its own decision, without modification.

Hearings on appellants' cases before the County Board were finally held on 3 August 1989. By simultaneous written decisions dated 20 October 1989, the County Board determined as a preliminary matter that classroom observation reports such as those involved in these cases were "not a decision made nor a controversy or dispute under Section 4-205(c) of the Education Article and, therefore, in our opinion, not appealable." The County Board then went on to address the merits of each of the disputes and ruled that, even if they were appealable issues, they would have supported the Superintendent in upholding each of the observation reports.

The appellants then filed timely appeals with the State Board in accordance with Section 4-205(c)(4) of the Education Article. The State Board again referred the matter to Examiner Cooper. By written report, dated 21 March 1990, he recommended to the State Board that it reject the argument of the County Board that observation report disputes were not "decisions" or did not constitute a "controversy or dispute" under Section 4-205(c). ³ The Examiner explained:

"The acceptance of Respondent's arguments would mean that Appellants have no right to a county board and State Board review of a Superintendent's decision. That right of review was the very question before the State Board when it considered the original appeal from these teachers in Pinkie M. Strother, et al. v. Board of Education of Howard County (88-18), where the Board remanded the consolidated cases to the local board for a determination of whether the "unsatisfactory" observations were proper.

Respondent seems to be suggesting that the State Board either did not call for a review of the merits of the Superintendent's decision or, if the State Board did mandate such a review, it should now reconsider its previous decision. Despite Respondent's protestations to the contrary, an unsatisfactory observation does, as I pointed out in my Ruling in 88-18, pose sufficient risk to a teacher to raise it to the level of a dispute or controversy, and a Superintendent's ruling on such an observation does constitute a "decision." Indeed, in the course of Respondent's counsel's argument before me I raised the following question: 'The Superintendent or his agent presumably isn't rubber-stamping ... but does have a degree of discretion as to whether he would agree with a professional judgment of an observation or not. Is that accurate?' Counsel replied: 'Yes, I think you'd have to say that if the Superintendent disagreed with one of the professional assistants he could perhaps exercise that discretion.' Surely, such a right to approve or disapprove is the equivalent of the authority to decide.

Further, Respondent's counsel pointed out that classroom observations take place pursuant to procedures adopted by the County Board. Such observations thus are encompassed in the 4-205 provision that the County Superintendent shall decide controversies involving 'the rules and regulations' of the County Board."

On 31 October 1990, the State Board issued a written opinion that modified the Examiner's recommendation, and which, despite its 10 November 1988 ruling, held "that disputed classroom observations are not appealable under Section 4-205(c)(4) of the Education Article." In the course of so doing, the State Board noted:

"We...