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Maryland court rules state's whistleblower law does not protect teachers in AP course case

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By Elizabeth Alt | Jul 30, 2018

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ANNAPOLIS, Md. (Legal Newsline) – The Maryland Court of Appeals released an opinion July 12 in the case of a Montgomery County teacher who claims he was retaliated against after notifying the media that Advanced Placement (AP) students were allegedly being given credit for taking non-AP courses.

Judge Glenn T. Harrell wrote the court opinion, holding 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. Judges Mary Ellen Barbera, Clayton Greene, Sally Adkins, Shirley Watts, Michael Hotten and Joseph Getty concurred.

“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 opinion states.

In 2012, Bruce Donlon, a teacher at Rockville’s Richard Montgomery High School, claims he discovered an alleged deception with students being given credits for AP courses they did not take. After the superintendent allegedly dismissed Donlon’s claims, Donlon sought out a reporter at The Washington Post, who interviewed school staff, the opinion states.

Donlon filed a Whistleblower Complaint (WBC) with the Maryland Department of Budget and Management (DBM), claiming that he was “shunned” after contacting the media. The Office of the Statewide Equal Employment Opportunity Coordinator acting as the Secretary of the DBM, dismissed Donlan’s complaint, stating Donlon was not an employee for an executive branch of state government. 

The Office of Administrative Hearings affirmed the DBM’s ruling, stating “there was no jurisdiction to hear the whistleblower claim because Donlon was not an employee of the executive branch of state government,” the opinion states.

Donlon filed a complaint with the Montgomery County Circuit Court, arguing that county school teachers are covered under the WBA because the school board is a unit of the executive branch of state government. Donlon also requests that defendant Montgomery County Public Schools (MCPS) be estopped from contenting “that it is not a state agency because MCPS has asserted frequently in other contexts state agency status.”

MCPS countered that under Maryland law it can contend in one litigation that it is a state agency and in another a local county governmental entity, “as long as the contexts are dissimilar substantively and each supports independently the respective assertions,” the opinion states.

The circuit court reversed the previous rulings, stating that MCPS’s argument was “frivolous,” and noting, “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,” according to the opinion.

According to the opinion, MCPS appealed to the Court of Special Appeals, who reversed the circuit court decision, holding “that public school teachers employed by county boards of education are not employees of the executive branch of state government.” 

The Court of Special Appeals rejected Donlon’s request for estoppel, stating, “It doesn’t matter whether a party takes an inconsistent position compared to one taken in previous litigation. Legal arguments are not judicially estopped.”

Donlon appealed the decision.

The Court of Appeals agreed that estopping MCPS from “claiming its local status for present purposes could have untoward future implications” and stated that Donlon provided no evidence that MCPS misled the court to gain an unfair advantage.

Harrell affirmed the findings of previous courts and the attorney general that “A county school board is not a state agency merely because, under its statutory authorization, it has limited administrative powers,” noting that county school boards possess a “hybrid nature,” and “defy simple and definitive categorization as either a state or local agency.”

“The Legislature was of the view that the PSEWPA (Public School Employee Whistleblower Protection Act) was needed because the WBL did not extend whistleblower protection to public school teachers,” the opinion states.

“If we were to hold county school boards to be state agents, then by PSEWPA definition, they are not protected 'Public School Employees,'" Harrell wrote.

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