Venter v. Board of Educ.

• Citation: 185 Md. App. 648,972 A.2d 328
• Decision Date: 01 June 2009
• Docket Number: No. 2795, September Term, 2006.,2795, September Term, 2006.
• Parties: Bruce M. VENTER v. BOARD OF EDUCATION of Howard County, et al.
• Court: Court of Special Appeals of Maryland

972 A.2d 328

185 Md. App. 648

Bruce M. VENTER v. BOARD OF EDUCATION of Howard County, et al.

No. 2795, September Term, 2006.

Court of Special Appeals of Maryland.

June 1, 2009.

Allen R. Dyer of Ellicott City, for appellant.

Judith S. Bresler (Eric C. Brosaides, Reese & Carney, LLP on the brief), Columbia, for appellee.

Panel: JAMES R. EYLER, WOODWARD, THIEME and RAYMOND G., JR. (Retired, Specially Assigned), JJ.

WOODWARD, J.

This appeal arises from the termination of employment of appellant, Bruce M. Venter, as the Chief Business Officer ("CBO") for the Howard County Public Schools System ("HCPSS") by the Superintendent of HCPSS, John O'Rourke. Specifically, appellant appeals from the Order of the Circuit Court for Howard County, dated January 11, 2007, affirming the Opinion issued by the Maryland State Board of Education ("State Board"), which upheld a decision of the Board of Education of Howard County ("the local board") that Superintendent O'Rourke was "within his statutory authority to terminate [appellant's] employment," and that the decision to terminate was not "without rationale or in disregard of the facts and circumstances so as to have been arbitrary, unreasonable or illegal." Appellees to this action are the local board and the State Board.

Appellant presents five questions for our review,¹ which we have consolidated and rephrased:

I. Did the State Board properly determine that appellant's appeal of his termination was governed by Section 4-205(c) of the Education Article ("Ed."), Md.Code (1978, Repl.Vol. 2008) rather than Ed. § 6-202?

II. Did the State Board properly determine that appellant was not entitled to an open hearing before the local hearing examiner?

III. Did the circuit court err in denying appellant discovery and declaratory relief?

IV. Is this Court required to report its opinion in this case?

For the following reasons, we shall affirm the judgment of the circuit court.

FACTUAL BACKGROUND

In the instant appeal, appellant does not challenge the merits of the termination decision. Therefore, we set out only those facts necessary to address the issues presented.

On September 20, 2001, the local board voted to approve Superintendent O'Rourke's recommendation that appellant be appointed as CBO of HCPSS. The CBO position reported directly to the Deputy Superintendent and was salaried on the Administrative Technical Management payscale at Grade 31, which, at the time of appellant's hiring, was $125,000 per year.

Prior to accepting the position, appellant earned a Doctor of Education in Educational Administration and Policy Studies from the State University of New York at Albany in 1986 and served as a certificated public school employee in two different states, New York and Virginia. The CBO position called for an individual with a masters degree in "education administration, finance, accounting, and/or a related field." Although certification in Maryland was not listed as a job requirement for the position of CBO of HCPSS, appellant attached copies of his New York and Virginia certificates to his application for employment to HCPSS. Appellant did not hold any certificate in Maryland at the time of his hiring, and the parties to the instant appeal stipulated that appellant never submitted a request for any such certification to either the State Superintendent of Schools or the State Board. When Superintendent O'Rourke recommended the appointment of appellant for the position of CBO, he was aware of appellant's career in New York and Virginia and agreed that appellant had the professional experience and educational level that was "exactly what the job description and the posting of the job called for."

A. CBO

Appellant's position as CBO vested him with significant responsibilities. Among those were "the leadership, organization, and operation of all matters related to business affairs, school planning and construction, maintenance and operations, food services, transportation, and school facilities." Appellant's "essential job duties" entailed, inter alia, "[d]irect[ing] the financial affairs and operations of the school system," "[d]evelop[ing] and prepar[ing] the annual Operating Budget and the Capital Budget and the Capital Improvement Program for the school system ...," "[a]ssign[ing] and control[ing] the allocation of funds as provided for in the budget ...," "explain[ing] and interpret[ing] the school system's financial affairs to the School Board, the County Council, the public and other necessary parties," and "[d]evelop[ing] and maintain[ing] a comprehensive facilities plan to meet the growth needs of the school system. ..."

B. The 12th High School Project

As CBO, appellant was responsible for overseeing the planning and construction of a new high school, known as Northern High School or "the 12th High School." In managing the project, appellant was faced with a deadline of August 2005 for the completion of the high school's construction, in time for the 2005-06 school year.

Communications between appellant and John C. Jenkins, the construction manager of the 12th High School project, raised concerns regarding the completion of the school in time to meet its anticipated opening date. In a letter dated May 5, 2003, Jenkins informed appellant that the September 2005 "start date is not a certainty and will require some changes to the normal process and procedures to be realized." On June 18, 2003, Jenkins wrote appellant:

[T]he [local board] must award and issue notice to proceed in accordance with the dates shown in the attached schedule, or earlier if possible. This means that the Site Contract must be awarded no later than the [local board] meeting of 8/7/03.

The award of the first two groups is critical in order to take advantage of the time before winter weather.

Finally, the schedule only works if we have a grading permit by 9/1/03, and a building permit by 11/1/03. The 9/1/03 appears to be very possible.

(Emphasis added).

On July 7, 2003, Jenkins informed appellant:

The plan and schedule discussed in the letter is predicated upon award of the contract by the [local board] by 8/14/03. ... [T]here [may] be no [local board] meeting on 8/14/03. ... If the award has to await until 8/28/03, the whole plan needs to be restructured and revised before the 7/16/03 Pre-bid meeting. A slippage in the award date will cost the project 12% of the good weather period remaining until the 1st winter in the construction schedule which was already starting 2 months late.

(Emphasis added).

Then, on July 31, 2003, Jenkins wrote:

As planned, in order to expedite as much site work as possible before winter, it is necessary to be ready to start as soon as the pending appeal is dismissed. ... Waiting for an 8/28 award, or the 9/17/03 motion dismissal, deteriorates significantly the amount of work that can be done this Fall.

* * *

The bottom line is that if [HCPSS] wants to maintain a chance to open in Fall of 2005, they must take the action and the associated risk with award of the site work, by 8/14/03, and the immediate notice to proceed with submittals.

(Emphasis added).

No action was taken by the local board on the site work contract in August of 2003. Finally, on September 3, 2003, Jenkins warned appellant:

The current situation is as follows:

1. The Site Package previously bid was not awarded on 8/7 as planned and forecast in the bid documents.

2. As of 9/3/03 the site Package is still not awarded. We have been told that [HCPSS] had elected to avoid the risk of an early award and wait until a ruling was issued on the motion to dismiss the appeal of the Ground Water Discharge Permit which is due by 9/17/03.

* * *

There is a very real possibility that site work might not advance in the two months before winter to the point needed for building work to start. ... In light of the above, as we discussed at our meeting today we have the following:

If HCPSS embarks on an effort to complete the project by 8/05, based upon the current situation, there would only be a 50% chance of success. A complex schedule will have to be developed, and terms and conditions established to promote performance. There is a potential to add 15% to the cost of the project. Everything must fall favorable to be successful. ... .... HCPSS should not embark on the effort to be ready for [F]all 8/05 opening if they cannot tolerate the real potential for a late start of a month or two in the [F]all of 2005. If there is no tolerance for slippage, they should plan for a midterm completion.

(Emphasis added).

Notwithstanding Jenkins' repeated warnings of the possible consequences of failing to award the site work during the summer of 2003, appellant never informed the local board or the Superintendent about this threat to the construction schedule. The only communication on the subject from appellant was a June 30, 2003 memorandum to the local board that contained a single sentence warning: "Even the best case scenario puts tremendous pressure on the construction schedule based on information put together by the project's construction manager."

C. Appellant's Termination

In early September 2003, Mark Blom, HCPSS General Counsel and Chief of Staff, became aware of the problem with the construction schedule for the 12th High School project. Upon learning that Superintendent O'Rourke and other senior administrators had not been informed of the dire nature of the situation, Blom initiated an investigation into the matter. Based on the results of the investigation, Superintendent O'Rourke asked to meet with appellant. The meeting between Superintendent O'Rourke and appellant took place on September 5, 2003.² Appellant was unaware of the reason for the meeting and did not bring any materials with him. The meeting lasted about fifteen minutes and, at its conclusion, the Superintendent informed appellant that he was terminating appellant's employment as CBO of HCPSS. In a letter formally...