2018 | Schools

Court of Appeals Sides with MCPS in Whistleblower Case

Richard Montgomery High School social studies teacher brought forward fears of AP enrollment inflation

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Montgomery County Public Schools is not an entity of the state for the purposes of the Maryland State Whistleblower Protection Law, the state’s highest court has ruled.

In a case appealed by a Richard Montgomery High School teacher seeking whistleblower protection, the Maryland Court of Appeals concluded the county public school system can be a state agency in one context, but a local county governmental entity for other purposes.

“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 particularly authority or function under the microscope,” the opinion, issued earlier this month, concluded.

The case wound its way to the high court in Annapolis after Richard Montgomery High School teacher Brian Donlon filed a whistleblower complaint against Montgomery County Public Schools in December 2014, alleging that his employers retaliated against him for telling reporters at The Washington Post and The Gazette that the Rockville high school was artificially boosting its AP course enrollment.

Donlon said MCPS penalized him for the disclosure by reassigning him as a floating teacher, giving him a class he’d asked not to teach and criticizing him for missing work to attend union meetings and teacher trainings.

The case has turned on whether Donlon counts as a state employee, thus qualifying for protection under the state whistleblower law. The teacher has said the Maryland State Board of Education exerts broad control over county school districts and noted that his pension system is state-administered. The state education board also hears termination appeals from public school teachers, he has noted.

On the other hand, Donlon’s teaching contract and tax documentation list MCPS as his employer, not the state, according to testimony. An official at the Maryland Comptroller’s Office asserted under oath that Donlon was not a current or former state employee.

While a Montgomery County Circuit Court judge agreed with Donlon’s arguments—saying it was “troubling” that MCPS could qualify as a state agency in some situations, but not all—appellate judges have not. Last year, the Court of Special Appeals overturned the circuit court judge’s decision and sided with MCPS. The Court of Appeals opinion echoed the intermediate court.

The Court of Appeals further concluded that Donlon was not protected by the Maryland State Whistleblower Protection Law because the General Assembly saw it necessary to create a separate law in 2017.

“The Maryland Legislature was of the view that the [Public School Employee Whisteblower Protection Act] was needed because the [whistleblower law] did not extend whistleblower protection to public school teachers,” the court wrote.

Donlon, who still works at Richard Montgomery High, advocated for the law before it was passed, but thinks it still needs tweaks.

“The Public School Employees Whistleblower law passed in 2017 (inspired by my case) requires employees to endure a four-level grievance process, within MCPS, prior to being able to bring a cause of action,” Donlon said in a written statement to Bethesda Beat. “It is better than nothing, but MCPS children will be best served when the Board of Education fully protects employees who step forward and fully investigates reports of illegal/unethical conduct.”

Donlon’s statement also expressed remorse that his underlying concerns—though explained years ago by the school system as a scheduling error—were never addressed in court.

“Unfortunately, the Board of Education allows retaliation against whistleblowing employees, and is willing to subject employees to long and expensive legal battles, instead of pursuing the truth that will best serve the interests of students. MCPS has endured child abuse scandals, conflict of interest issues in awarding curriculum contracts, and abuse of the credit recovery process leading to inflated graduation rates,” Donlon wrote. “I believe I met my moral and ethical obligations throughout this multi-year ordeal. I only wish that the case did not stay tied up in procedural issues. The facts of the case were never heard by a court.”

MCPS also issued a statement on the court’s opinion:

“We thank the Court of Appeals for its review and thoughtful analysis of this matter. As we argued, and the Court of Appeals agreed, the Board of Education is a hybrid agency with both state and local characteristics, and the designation depends on the context of the Board’s function that is under review. In this specific instance, the Court of Appeals reviewed the facts and long-standing precedent to determine that MCPS employees are not employees of the State. While this case focused on a technical legal issue, its outcome has significant implications for school district operations across Maryland.”

The opinion in the case, Brian Donlon v. Montgomery County Public Schools, was written by Senior Judge Glenn T. Harrell Jr., a retired judge who was specially assigned to the case and has a history of including Hollywood quotes in his opinions.

At the start of this opinion, Harrell quoted late comedian Milton Berle, who is credited with saying: “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!”