ANNAPOLIS, Md. (Legal Newsline) - A Maryland appellate court has determined that employees of county boards of education are not considered employees of the state in the eyes of the law.

In a decision filed Aug. 30, the Court of Special Appeals of Maryland reversed a circuit court’s decision regarding whether the Maryland Whistleblower Protection Law (WBL) applies to county teachers. It determined that public school teachers cannot be considered employees of the executive branch of state government, and therefore are not covered by the WBL.

The opinion was delivered by Judge Andrea M. Leahy with judges Michael W. Reed and Melanie Shaw Geter concurring.

The case originated when plaintiff Brian Donlon raised concerns with school administrators about its allegedly inflated Advanced Placement statistics at Richard Montgomery High School. When no action was taken, he took the issue to the media.

Donlon alleges that upon learning he was the one who contacted the media, school administrators, including his principals, and some of his fellow teachers began to retaliate against him, taking such action as assigning undesirable courses to him to teach.

He subsequently filed a whistleblower complaint with the Maryland Department of Budget and Management, but that was dismissed in January 2015 because the DBM felt the WBL does not apply to Montgomery County Public Schools employees.

In February 2015, Donlon appealed the decision to the Office of Administrative Hearings (OAH), arguing that MCPS employees are, in fact, state employees.

A hearing was held by an administrative law judge in August 2015, in which, according to the appeals court's opinion, “MCPS contended that the mere fact that the state issued Donlon a license to teach did not resolve this inquiry because the state regulates many professions, such as nursing, and no one would contend that all nurses were state employees. MCPS further maintained that Donlon, by his own admission, did not fall under any of the principal departments of the executive branch of the state government.” 

Donlon, meanwhile, argued the high level of control the state maintains over the school board indicates that it is, in fact, a state agency. Furthermore, he asserted that because the school board had used the 11th Amendment to assert sovereign immunity in court, MCPS should be estopped from making its claims that it was not a state agency.

The administrative law judge dismissed Donlon’s complaint, finding Donlon was not an employee of the state executive branch and therefore the whistleblower claim had no jurisdiction.

Donlon then brought his case to the Montgomery County Circuit Court, where, according to the appeals court's opinion, the court “found it ‘deeply troubling’ that MCPS could qualify as a state entity for 11th Amendment immunity purposes, but not for WBL purposes.” The circuit court reversed the administrative law judge’s decision, and MCPS appealed.

Considering the same arguments, the appellate court determined Donlon and other county educators cannot be considered employees of the executive branch of the state. The court's opinion states that “while the State Board does maintain broad power over education in the state, ... there is no evidence that the State Board wields this same control over Donlon as an employee.”

The court also rejected Donlon’s request that MCPS be estopped from claiming it is a state agency for some purposes but local for others. 

“At various times, county boards of education have asserted the predominance of either their ‘local’ or ‘state’ nature depending on their desired outcome,” Leahy wrote.

The appellate court reversed the circuit court’s decision and remanded the case, instructing the court to reinstate the OAH decision.

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