*1 840A.2d 728 UNION, BALTIMORE TEACHERS AMERICAN FEDERATION TEACHERS, OF LOCAL AFL-CIO EDUCATION, MARYLAND STATE OF et BOARD al. Sept. Term, No. 2000. Appeals Maryland.
Court of 16, 2004.
Jan. *2 (Keith Zimmerman, Kahn, Collins, Joel A. Smith J. Smith & P.A., brief), Baltimore, on for petitioner/cross-respondent. (Elizabeth Verrilli, B. A. Cavanagh,
Donald Jr. Jenner & (J. Block, LLC, brief), Cloutier, on Asst. Atty. Valerie V. Gen. Curran, Jr., Gen., brief), on Joseph Atty respon- for dents/cross-petitioners. BELL, C.J., ELDRIDGE,* RAKER,
Argued before WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
ELDRIDGE, J. Union, Baltimore Teachers American Federation of Teach- ers, 340, AFL-CIO, Local filed in the Circuit Court complaint declaratory judgment for a relief, injunctive alleging Board of statutory authority Education lacked to enter into a contract *3 Schools, with Edison Inc. for the and operation management City of three Baltimore schools. The public elementary Cir- statutory cuit Court held that the Board acted within its authority Assembly. conferred the General Before argu- in Appeals, ment the Court of the Union filed this Special Court a for a writ of certiorari. petition granted We petition and shall affirm.
I. of the Maryland public system Governance school is two- Maryland tiered. The State Board of Education is the head of Education, of Department the State principal department (1978, government. Maryland the State Code 1999 RepIVol.), §§ 2-101 and 2-102 of the Education Article. Twenty-three county boards of education and the New Baltimore (the Board”) of School Commissioners “New as the operate J., retired, * Eldridge, participated hearing now in the and conference of Court; being this case while an active member of after this recalled Constitution, IV, 3A, pursuant participated to the Article Section he also adoption opinion. in the decision and of this twenty-four systems.1 heads of the local school public with the charged general supervision The State Board is schools, Maryland public including development § 2-205 of the Edu- implementation policies. of educational cation Article.2 The Board is authorized to rules adopt for administration and enforcement of the regulations 2-205(c). law. In promulgated education the Board regulations establishing public performance school standards adopted that were and codified the Code of (COMAR) Regulations Regulation 13A.01.04.01-.08. .01 es- .02 is the scope regulations regulation tablishes the definition section. The student tracked performance areas are set forth in .04 regulation Regulation .03. perform- establishes the standards that to the student apply Regulation require- ance areas. .05 sets out the reporting ments, and develop the mandate that each school forth in improvement plan regulation school set .06. process further set forth a two-phased prescribed schools fail to meet the student per-
formance
Regulations
standards.
.07 and .08 describe “local
where,
reconstitution”
if a
fails to
meet all standards at
satisfactory
a level of
or better in the student performance
areas, may require
program
State Board
the overall
Waeldner,
George’sCounty
1.
In Board Education
Prince
354, 360-361,
(1984),
470 A.2d
this Court described the
relationship between the State Board and the local boards:
totality
provisions
“The
of these
has been described as a visitatorial
power
comprehensive
of such
character as to invest the State Board
concerning
policy
'with the last word on
matter
educational
Zeitschel,
system public
the administration of the
education’....
In
*4
906,
supra,
power
management February By of the local school board.3 placed to be throughout Maryland had ordered 97 schools these, schools in Balti- local Of were under reconstitution. City. more
If local reconstitution fails to show sufficient a school under .10 for “state reconstitution” regulation provides improvement, program Board determines the overall by which In school. the State Board reconsti- management elementary schools performing public tuted three of the lowest Montebello, and Templeton, in Baltimore Furman L. City, remained at these performance stagnant Student Gilmor. for being schools under local reconstitution elementary despite at No more than 10% of the students years. at least three in all student perform- schools had met the State’s standard perform- in since 1993 when the school any year ance areas adopted. ance were one or feasibility closing State Board examined The Board elementary more of schools. underperforming in trans- that closure would result increased determined to other low costs and the transfer students portation already schools under local reconstitution. performing public option the most viable was to The Board concluded management of the three operation contract out the Following proposals to a party.4 request schools third procurement procedure, accordance with the State into a Board and the New Board entered “Contract 13A.01.04.02B(8) states: 3. COMAR "(8) Reconstitution. (a) changing or more of a school's: 'Reconstitution' means one Administration; (i) (ii) Staff; (iii) Organization; or (iv) program. Instructional (b) contracting party may a third 'Reconstitution' include Regulation chapter.” provided .07 of this 13A.01.04.02B(10) provides: 4. COMAR "(10) party’ entity, public private, 'Third means an who is managing at decision.” the school the time of reconstitution *5 Operation Management of Schools Under State Reconsti- in Schools, Inc., tution Baltimore with Edison City” for a term years.5 of five contract with Edison was approved by the Board of Public Works on March 2000. Edison is a private company in the specializing management It operates schools. under with local contracts school districts and boards of charter schools. Pursuant to its Board, contract with the State Edison is required provide the public elementary three schools with curriculum and cur- services, riculum development, instructional instructional and tools, support personnel, teaching special education and relat- services, ed educational services with limited or no English proficiency, other services which may necessary. be Edi- son serves as the employer all for employees hired elementary schools and is responsible for providing manage- ment and professional development for all personnel working hire, the three schools. Edison has the power assign, discipline, and dismiss all personnel hired at the schools.
The Baltimore Teachers Union initiated the action present in the Circuit Court for City against Baltimore the State Board and the New gist Board. The of the Union’s action was set forth in the beginning of its as complaint follows:
“1. This is an action for declaratory judgment, injunctive and equitable relief. The facts and claims in this action are solely a matter of statutory law and turn on authority (‘MSBE’) the Maryland State Board Education and the (‘Local New City Baltimore Board of School Commissioners Board’) granted by the State legislature.
“2. Plaintiff shall request that the Court find that MSBE acted ultra vires its promulgation C.O.M.A.R. 13A.01.04.02(B)(8)(b).” 13A.01.04.08.and The State Board and the New Board filed motions to dismiss the complaint for lack of standing. Alternatively, City 5. The New Baltimore Board of School Commissioners was created Assembly part General partnership in 1997 as of a new between improve quality the State "to edu- City.” 4-303(a) cation in Baltimore of the Education Article. maintaining summary judgment, Board moved authority by scope of its acted within contracting challenged regulations promulgating elementary three operation vendor private *6 summary judg- for a cross-motion The Union filed schools. unop- which was a motion to intervene filed ment. Edison posed. an order issued the Circuit Court hearing, a
Following challenged that standing, had that the Union declaring authority, Board’s within the State were regulations authorized to enter statutorily two Boards were and that the into the contract. Special to the Court of appeal notice of
The filed a Union on the cross-appeal a Board filed and the State Appeals, appel- in the intermediate argument Prior to issue. standing for a writ of court, petition filed this Court the Union late v. Baltimore Teachers granted. we which certiorari (2001). Education, 359, 142 765 A.2d 362 Md. Board of the chal- whether single question presented petition the Gener- were authorized and contract regulations lenged Assembly. al
II. matter, whether must first consider threshold we As a standing challenge Union had the Baltimore Teachers contract. The re and the Edison reconstitution the Union’s a motion to dismiss Board filed spondent that ground on the declaratory judgment for complaint matter, and the the instant standing bring lacked Union declaratory challenges portion cross-appeal Board’s H. Joseph See standing. the Union’s judgment upholding State, 160, 168, A.2d 294 Md. 448 Secretary v. Munson Co. 2839, 947, (1982), 104 S.Ct. 81 935, 467 U.S. affirmed, 939 (1984). 786 L.Ed.2d like the Union organization that for an argues
The Board action, ordinarily it must bring judicial “to standing have separate ... and distinct interest of its own a ‘property have
199 ” from that of its individual members.’ Medical Associ- Waste ates, Coalition, Inc., Inc. v. Maryland 596, 612, Waste 327 Md. 241, 612 (1992), A.2d quoting Citizens Planning Housing Executive, Association v. County 333, 345, 273 Md. (1974). 329 A.2d The Board argues further “ Union has not ‘suffered some of special kind damage from wrong such differing character and kind from that suffered ” Waste, the general public.’ Medical 327 Md. at at quoting A.2d Rogers Maryland-National Capital Commission, Park and Planning 687, 691, 253 A.2d (1969). 713, 715 disagree. We The Union’s interests are sufficient to satisfy standing requirements.
The Union is an unincorporated association and the exclu- sive collective bargaining agent employees System. §§ Public School See 6-401 and 6- 407 of the Education Article. As the designated collective bargaining agent, the Union is charged statutory rights *7 and fiduciary negotiate for, duties to and to act in the best of, interests 6-510(b). the public school employees. The Union has a legal relationship with the New by Board way the protection and benefits embodied the negotiated labor agreement on behalf of Baltimore City public school employ- ees. The function of the labor agreement is to wages set and establish minimum labor standards for the bargaining unit.
The reconstitution regulations and the Edison contract dis- turb those established standards and interject a competing labor pool with the bargaining unit. Additionally, the labor agreement Edison; does not apply thus, to the Edison con- tract reduces the size and scope of the Union’s bargaining unit. The contract removes the Union from schools, three thus making its unit bargaining that much smaller. While no employee may be compelled to be a Union, “member” of the every Baltimore City Public School employee is a member of the Union’s bargaining unit. and, Union is empowered indeed, obligated by statute to represent all employees of the unit bargaining whether members of the Union or not. If more positions are included in unit, the bargaining the Union may greater have power negotiate to more advantageous effectively fiduciary to out more its
agreements carry representative duties. The Union’s status the the contract. employees is diminished Edison that, we that the Union has demonstrated Accordingly, hold of Balti- bargaining representative as the collective designated it has to main- employees, standing more Public School judicial tain action. present
III. case, to merits of the Baltimore Teachers Turning 13A.01.01.02B(8) that argues Union COMAR 13A.01.04.08 State Board statutory authority exceed the Education, delegation and that contractual the State Board’s schools management the reconstituted operation exclusively Edison which are vested grants powers to illegally general in the Board. the State Board exercises New While Board authority, Union supervisory argues to take the basic functions of statutory authority lacks over exists “no the local boards. The Union contends there directly equivocation which and without authorizes statute turn to a over a third party State Board” private control of a business. place it under sole not and whether the We need shall decide adopt regula- the reconstitution statutorily was authorized statutory tions in Even if the State Board lacked the 1993. the reconstitution authority promulgate Assembly enactments the General remove subsequent authorization for the State Board’s doubt as to *8 legislation which Assembly passed The General has actions. power and ratifies the State Board’s to issue confirms to into third con- reconstitution enter party to makes regulations. legislation tracts those The pursuant Assembly approved clear General of and knew statutory authority of its to contract State Board’s exercise three management operation Edison elementary schools.
201 is legislative ratification well-estab principle In situation where a governmental in the law. lished not may may statutorily action which be entity takes authorized, body later appropriate legislative but where the action, action clearly the ratification validates the ratifies that limitations, and, in the absence of constitutional prospectively retroactively. action As Justice Harlan may validate the “it long ago, perceived Court Supreme stated not, ratification is in the absence why subsequent legislative upon legislation, equivalent constitutional restrictions such Brown, 261, 112 County v. U.S. original authority.” Grenada (1884). 271, 125, 130, 704, has 5 28 L.Ed. 708 This Court S.Ct. author recognized legislative body ‘may also “that whatever in retrospect, long it and validate so prospect, may adopt ize ” rights,’ Washington as there is no interference with vested Co., 38, 45, Nat’l Arena Prince 287 Md. 410 A.2d George’s v. denied, 1060, 1064, 834, 106, cert. 449 U.S. 101 S.Ct. 66 (1980) deleted), 40 (emphasis quoting County L.Ed.2d Council Assoc., 70, 79, 860, v. Md. 376 Carl M. Freeman 281 A.2d 865 (1977). also, Brimfield, Bolles v. Town 120 e.g., See U.S. (1887) (“the 759, 762, 736, 737, 786, 7 S.Ct. 30 L.Ed. 788 ratification, legislature, by subsequent legal make that [can] sanction”); which originally legal was without Anderson v. Anna, 356, 364, 417, 413, 116 6 Township Santa U.S. S.Ct. (1886) (“ 633, 29 ... L.Ed. 636 ‘Unless there be a constitution inhibition, al has when it legislature power, interferes with right, no vested to enact statutes ... retrospective ratify might lawfully and confirm act it have authorized in the ” Gross, instance,’ Mortgage first United States v. quoting Co. (1879)); Hostetler, 396, 404, Ill. Dryfoos (1973). 302 A.2d 32-33
In Board to Assembly the General directed New take actions the status of schools that necessary “[i]mprove 309(d)(15) subject are to a State reconstitution notice.” 4— the Education In Assembly passed Article. General and, legislation regarding stipends for classroom teachers so, doing distinguished between a local school board as an and a of a in a employer private employer teacher reconstitut- *9 202 6-306(b)(4)
ed school.6 Section mandates that a classroom certificate, holding professional teacher an advanced who teaches in a school identified Board “as a by State school, school, reconstitution-eligible reconstitution a or a chal- school, stipend shall receive a from the lenge $2,000 for year performs amount of each the teacher satisfactorily in the classroom.” This contrast language (b)(2) that authorizes a stipend subsection from the State employed by for a classroom teacher “who is a board [local] a by and who holds certificate issued the National Board for Teaching Professional Standards.” Assembly legislation The enacted in 2000 protecting General by of teachers pension rights previously employed boards, working local for a third contractor a party operating school regulations.7 under the reconstitution provides: 6. Section 6-306 of the Education Article " § County grants 6-306. for national certification. (a) section, "county grant this for national certifica- Definition.—In grant by tion” means an annual distributed to a teacher certified Teaching National for Professional Standards established: (1) bargaining process; Outside of the collective (2) part bargaining agreement As of a collective with the local organization. employee (b) budgetary funding. (1) year For fiscal 2000 and each — subsequent year, year’s fiscal the Governor shall include in each operating budget funding stipends provided and bonuses in this subsection. (2) professional A classroom teacher who holds a standard certifi- professional employed by cate or an advanced a certificate who is county board and who holds a certificate issued National Teaching stipend Board for Professional Standards shall receive a equal county grant from the State in an amount to the for national certification, $2,000 up per qualified to a maximum teacher.” (4) professional A classroom teacher who holds an advanced certif- icate and teaches in a identified the State Board as school, school, reconstitution-eligible challenge reconstitution or a $2,000 stipend school shall receive a from the State in the amount of year performs satisfactorily for each that the teacher in the class- room.” Vol, (1993, Repl. Supp.), 7. Code 22-216 provides: Personnel and Pensions Article "§ Employment by private 22-216. contractors. “an of the New employee reference specifically
provisions Commissioners another City Board School by a third-party of education” who is “hired county board *10 section, (a) applies to an individual Applicability —This section of who is: (1) System; a member of the Teachers' Retirement (2) City employee Baltimore Board of School an of the New education; county or another board of Commissioners (3) by party a a third contractor to work in school that is hired by Maryland order of State Board of Education. reconstituted (b) accumulated contributions.—An individual who is Withdrawal of by party may a withdraw the member’s accu- hired third contractor contributions, 20-101(b) § meaning within the of of this mulated article, by any employed party at time while the individual is third by order of contractor to work in a school that is reconstituted Maryland State Board of Education. (c) Subsequent employment by City New Baltimore Board or other county by education.—An individual who is hired a third hoard of employed by party subsequently becomes the New contractor county Board of School Commissioners another any board of education at time while the order of reconstitution is in party third effect and on termination of the contract with the contrac- tor: subtitle; (1) subject provisions § to the of 22-217 of this is not (2) shall be reinstated as a member of the Teachers' Retirement System; (3) any be to restoration of service credit to which the shall entitled by party employment was entitled before the third contrac- individual vested; or not the tor whether individual was (4) any redeposit under shall of the amounts withdrawn subsection (b) or, regular redeposit section with date of of this interest on retirement, by the individual’s retirement allowance shall be reduced equivalent the actuarial of the accumulated contributions withdrawn regular with interest to the date of retirement. (d) Conditions.—Except provided service Purchase in credit— retirement, (e) section, subsection of this at time before an may purchase period employment by individual service credit for a by party contractor to work a that is third in school reconstituted Maryland order of the State Board of Education if the individual: (1) completes a claim for the service credit and files it with the provides; Board of Trustees on a form that the Board of Trustees (2) pays single payment to the Board of Trustees in a the member period contributions the individual would have made for the employment being purchased plus for which the service credit is regular payment. interest to the date of (e) year may purchase Same—5 limit.—An individual not more than 5 years period employment by party of service credit for the a third by contractor to work in a school that is reconstituted order of the Maryland State Board of Education.” by contractor to work in a school that is reconstituted order of 22-216(a). State Board Education.” The employees, statute authorizes whether vested or in system, the retirement who are hired a private reconstitution, contractor a school state operating under pension withdraw their accumulated retirement or benefits penalty, without to receive service credit the time em- contractor, with the and to to five ployed private purchase up at years employee period of service credit rate for the in a employment party third contractor reconstituted school. legislation
The 1999 and 2000 demonstrates the Gen- Assembly’s approval eral awareness and that the State Board into entering private would be contracts with vendors regulations. accordance with the reconstitution “subject references schools to a re- language directly constitution notice” addition those schools “identified *11 school, the Board as a reconstitution reconstitution- school, a eligible challenge language school.” The distin- by between teachers a board” and guishes “employed [local] “in by those who teach a school identified Board as a school” for purposes stipends reconstitution legislation affirmatively bonuses. The makes provisions by of school teachers protect pension rights employed third contractors. party the language incorporating regula-
Given the reconstitution protecting working tions and the retirement benefits of those schools, in Assembly reconstituted it is clear that the General that the of a teacher in a recognized employer and, may under State reconstitution be a private employer, thus, it is reasonable to infer ratification of legislative observed, regulations. As the Circuit “the correctly Court Assembly General has considered and ... countenanced and authority condoned the to enter into a third party [Board’s] Assembly clearly contract.” The General has ratified the regulations. reconstitution
IV.
Court,
first
in
brief before this
The Union
its
case,
challenged
argues
in this
time
VIII,
Maryland
violate Article
the Edison contract
Union,
argu
in
such constitutional
making
Constitution.8
ment,
Industrial School
upon
Mary’s
relies
St.
chiefly
(1876).
Brown,
As the Union earlier in are a solely “claims this action emphasized that the plaint In cross-motion for complaint, law.” its matter of Court, filed in the Circuit and memoranda summary judgment, The Circuit a constitutional issue. the Union never raised made no declaratory judgment and its Court’s memorandum issue, no had raised of a constitutional as the Union mention present did not petition The Union’s certiorari such issue. issue. constitutional 8-131(a) as follows: provides Rule Scope
“Rule 8-131. of review. (a) Generally. of the trial court jurisdiction The issues of 2- and, under Rule subject matter unless waived over the by decided may be raised person over or not raised in and decided court whether appellate will not decide Ordinarily, appellate trial court. court the record to plainly appears by other unless it issue court, but the in or decided the trial have been raised if or desirable to may necessary decide such an issue Court delay expense trial court or to avoid the guide the appeal.” another was issue raised in the Union’s brief
Since the constitutional court, it. It trial we shall decline to address not raised *12 VIII, 1, provides follows: 8. Article Assembly system "Section 1. General to establish of free
schools. adoption Assembly, at Session after the of this The General its First Constitution, thorough by throughout a Law establish shall Schools; by System provide Public and shall and efficient of Free taxation, otherwise, for their maintenance.'' not to a particularly important address constitutional issue in light raised the trial court that principle court will not unnecessarily decide constitutional question. State, 275, 18, 97, Winder v. 362 Md. 306-307 n. 765 A.2d State, (2001); 324, Dorsey 342, 41, n. 18 v. 356 Md. 739 A.2d (1999).
Moreover, Mary’s the case of St. Industrial Boys School for Brown, Union, on supra, by relied the did not involve under holding the Constitution. The in that Court case held that a tax and an simply appropriation, by Baltimore City, giving funds to certain private organizations, were not City authorized Charter or by any enactment of the Assembly. General action in challenged the case at bar was ratified and authorized Assembly. General AFFIRMED, JUDGMENT WITH COSTS.
BELL, C.J., concurs dissents. BELL,
Concurring Dissenting Opinion by C.J. I agree with the majority the Baltimore Teachers’ Union, Teachers, 340, American Federation of Local AFL- CIO, the plaintiff declaratory the action for judgment and injunctive relief it filed in the Circuit Court for Baltimore City Court, and the in this appellant standing has sue Education, Maryland State Department one of appel- lees, in order to challenge Department’s both the authority concern, to contract a wholly private it which ceded virtually complete autonomy, for the operation and management of three Baltimore public schools and the validity the Department promulgated challenged make the contractual arrangement possible. Clearly, holding has appellant demonstrated its standing by showing how the regulations and the contract disturbed “minimum unit,” labor standards for the bargaining 192, 199-200, (2003) 840 A.2d 732-33 and dimin- ished its “status as representative of public employees,” id. at 840 A.2d at is correct. *13 merits, the on majority’s decision
I with the agree do the Court asks appellant this the appeal, however. On single question: answer its exercises Board of Education State Maryland
“When the school, may it a public to ‘reconstitute’ Visitatorial’ power fully privatize of education a local board compel curriculum, administration school, that the school’s so controlled, not selected, employed, members are faculty business board, profit a for but instead by a local publicly-traded?” stock is whose corporation that, holds majority question, than answer that Rather not, Assembly, the General authorized originally whether to the subsequent legislation of the enactment by virtue and the execution challenged regulations of the promulgation contract, regulations both the has ratified challenged of the private with the contract management operations and the says: it particularly, More concern. authority to statutory if Board lacked the
“Even
1993,
subse-
the reconstitution
promulgate
remove
Assembly
by the General
quent enactments
Board’s
authorization for
State
statutory
as to the
doubt
legislation
has
Assembly
passed
actions. The General
Board’s
to issue
power
which confirms and ratifies
third party
to enter into
regulations and
the reconstitution
legislation
The
regulations.
to those
pursuant
contracts
ap-
knew of and
Assembly
makes clear that
General
authori-
of its
of the
board’s exercise
proved
[Schools, Inc.,
con-
private
with Edison
ty to contract
of the three
management
operation
cern]
elementary schools.”
to which the
200,
legislation
at
majority refers are Volume) 4-309, § (1978, Replacement Maryland Code (d)(15) Article;1 of the Education and, in subsection particular, § of the Edu- 1,§ at 6-306 ch. codified Laws 4-309(d)(15), Volume) (1978, § Replacement 1. Code 1999— Article, 4-309(c)(17) details one of the actions of the now Education Assembly required plan the General the master it mandated the New develop necessary Board of School Commissioners to schools, City public achieve educational reform in the Baltimore purpose legislation. provides: "Improve It the status of schools subject that are to a State reconstitution notice." None of the other 15 relates, mentions, actions to reconstitution: *14 "(1) Complete incorporation key of the recommendations of the 1992 Perrin/Cresap Management Study Towers report and the 1994 and America, reports; 1995 MGT of Inc. "(2) Incorporate requirements long-term the compliance plan of the al, goals Vaughn Amprey, and G. v. et case no. MJG-84— Maryland, United States District Court for concerning the District of disabilities; delivery of education services students with "(3) reorganization Provide for the of the central office of the Balti- City System; more Public School "(4) programs Provide effective curriculum and instructional City System, including development Baltimore Public School and dissemination of: "(i) cilywide reflecting learning A curriculum framework out- comes, standards, including Maryland Program School Performance students; appropriate developmental sequence and an for "(ii) professional program development training An effective and City System for the staff of the including Public School development implementation performance-based system- and of a teachers, personnel system principals wide evaluation for and admin- istrators; and "(iii) program meeting An effective educational for the needs of failure; students at risk of educational "(5) management systems Provide effective information for the Balti- City System, including more capacity accurately Public School enrollment, attendance, records, track student ords, discipline academic rec- compliance provisions and with the of the federal Individuals with Act; Disabilities Education "(6) management Provide an budgeting system effective financial and System for the Baltimore Public School to ensure the maximiza- resources; appropriate tion and utilization of all available "(7) hiring assignment; Provide effective staff and "(8) Develop system providing an effective instructional materials services; support and "(9) initiatives; Develop model school reform "(10) appropriate Provide methods for student assessment and remedi- ation; "(11) Develop implement and discipline required a student code of as article; §in 7-306 of this "(12) Develop system planning an providing effective for and for con- struction, repair, buildings and maintenance services for school which shall include review the Board to assure the most efficient and resources, productive system's use of including examination and reduction of the cost of underutilized proposals schools and for school mergers appropriate; or closures if "(13) parental participation; Increase (a) subsections Article, and, section particular, cation Mary- codified at (b)(2) (4);2 ch. and Laws Volume, Cum.Supp.) (1993, Replacement land Code Pensions Article.3 Personnel and § 22-216 “(14) implementa- time lines outcomes and Include measurable master with the reforms made in accordance and evaluation of the tion Governor, Mayor reporting of this information to plan and the and, 2-1246 of City, in accordance of Baltimore Article, Assembly; the General Government high school levels.” tation of school reform consultation "(16) Develop with classroom teachers an effective [*] initiatives, [*] system [*] of teacher [*] at the includes active input [*] elementary, regarding implemen- [*] middle, ongoing relevant, Article, provides: Section 6-306 of the Education 2. section, "(a) 'county grant for national certification’ this Definition.—In certified the National grant annual distributed to a teacher means an Teaching established: for Professional Standards “(1) bargaining process; or Outside the collective *15 "(2) agreement the local part bargaining with As of a collective organization. employee "(b) year each budgetary funding. (1) fiscal 2000 and For State — year’s operat- subsequent year, include in each fiscal the Governor shall provided stipends in this ing budget funding and bonuses subsection. “(2) professional certifi- who a standard A classroom teacher holds by a professional employed who is or an certificate cate advanced by county a issued the National board and who holds certificate stipend Teaching Standards shall receive a Board for Professional county grant equal for national amount to the from in an $2,000 certification, qualified per teacher. up a maximum of "(4) professional certifi- A teacher who holds an advanced classroom by a Board as a school identified State cate teaches in school, school, challenge reconstitution-eligible a or a reconstitution $2,000 stipend in the of shall a from the State amount school receive year performs satisfactorily class- teacher in the for each room.” Volume, (1993, Cum.Supp.) Replacement Maryland Code 2000 3. Article, “Employ- § titled 22-216 of the State Personnel and Pensions contractors,” provides: by private ment "(a) applies to who Applicability section.—This section an individual of is: "(1) System; a Teachers’ member of the Retirement 13A,
Reconstitution of schools is Title treated in of the of Chapter Maryland Regulations Subtitle Code (“COMAR”). (8) COMAR 13A.01.04.02B defines “reconstitu- tion” as
“(a) ... one or changing more of a school’s:
“(i) Administration; "(2) employee City New an of the Board School of Com- education; county or by missioners another board of "(3) party a hired third contractor to work in a that is by Maryland reconstituted of the of order Board Education. "(b) Withdrawal of accumulated contributions. —An individual who is by party may a hired third contractor withdraw the member’s accumu- contributions, 20-101(b) article, meaning § lated any this within of at by employed while the party time individual is the third contractor by a work in school that is reconstituted order of the Board of Education. "(c) Subsequent by employment New Baltimore Board or other county by party board education.—An who is individual hired third subsequently employed by contractor City becomes the New Baltimore county School Commissioners another board of any at time education while order of reconstitution is in effect and party on termination of the contract with the third contractor: "(1) subtitle; subject provisions to the of 22-217 of this “(2) shall be reinstated as a member Teachers' Retirement System; "(3) any be shall entitled to restoration of service credit which the by employment party was before individual entitled the third contrac- vested; tor whether not the individual was "(4) redeposit any shall of the amounts withdrawn under subsection (b) or, regular redeposit of this section with to the date interest on retirement, the by individual’s retirement allowance be shall reduced equivalent the actuarial of the accumulated contributions withdrawn regular interest to the date of retirement. "(d) provided Purchase of Conditions.—Except service credit — (e) section, retirement, subsection this at time before an individu- may purchase period al employment service credit for a a third party contractor to work in school that is reconstituted order of the Maryland State Board of Education if the individual: *16 "(1) completes a credit it claim service and hies with the of provides; Board Trustees on a form that the Board of Trustees and "(2) pays single to the of payment Trustees the member period contributions the individual would have made for the of employment being purchased plus regular for which service credit is payment. to the date interest of “(e) year may purchase Same—5 limit.—An individual more than 5 years period employment service by party credit for a third by contractor work in a school that is reconstituted order of Maryland State Board of Education.” “(ii) Staff;
“(in) Organization;
“(iv) program. Instructional as “(b) party a third contracting with include may [and] chapter.” .07 this Regulation provided local, see, for COMAR both regulations provide The 13A.01.04.08, state, reconstitu- 13A.01.04.07, see COMAR and former, of education the local board Pursuant to the tion. reconstitution-eligible with each “working with charged pro- “a reconstitution submitting and and developing school” approval Board for to the State school-specific,” that is posal (6) and 13A.01.04.07C COMAR with conditions. approval Board is (7). the State occurs when State reconstitution management and “determining] charged program .08B also addresses Regulation reconstitution of the school.” may be management reconstitution program how that It provides: handled. Third Party.
“B. Contract With “(1) order the school may The Board of Education a third party pursuant under contract with operated to be Board of Education. established conditions “(2) Education, the local The Board of board shall education, third-party parties contractor be to the contract.
“(3) term not to exceed may The be for an initial contract subject upon review and years, may be to renewal by the State Board of Education. approval “(4) The shall include benchmarks specific contract The contractor shall be measured. third-party which monitor contractor’s State Board of Education shall performance.
“(5) to the system pay third-party shall local school of an higher term of the contract contractor for the ex- per the average system-wide pupil amount equal enrollment equivalent times the full time penditure kindergarten higher grades in the State reconstituted total or the actual cost September
operating the school for previous year. the school Ad- justments in average per expenditure the pupil calculation may be certain made for in targeted funding programs accordance the legal for requirements pro- those grams. In addition the contractor will receive funds to of equal the amount school support system the received year the previous for pre-kindergarten services at the school.” identified (8)
“Third party,” .08B, referred to in .02B Regulations and is (10) defined .02B Regulation to mean “an entity, public who private, managing is not at of the school the time reconstitution decision.”
The Maryland the requires Assembly Constitution General to “establish throughout the State a thorough and efficient Schools; of System provide taxation, Free Public and [to] otherwise, VIII, § their maintenance.” Article 1. The endeavor, of provision system two-tiered shared Board, the State head of the the Department State of Edu- cation and a principal department government, § § of 2- Article, 101 and 2-102 of the Education and four twenty the boards, including local City, of education. The powers State Board’s and authority are enumerated in 2- the Education Article. They include determining elementary secondary State, and policies educational (b)(1); causing subsection implementation provisions Education Article that are within jurisdiction, its subsection (b)(2); enforcing provisions of the Education Article within jurisdiction bylaws, rules, its its regulations, and through legal proceedings (d); where necessary, finally subsection deciding and disputes concerning controversies meaning the Education rules, Article and the bylaws, and regulations it, adopted (e); pursuant to subsection exercising, through Superintendent, “general control and supervision over State,” schools and educational interests of this (g); subsection establishing basic policy guidelines for the program schools, (h)(1); instruction for the public subsection investigating, employing additional expert assistance for the purpose, the educational needs of this State and methods (i)(l)(i). In addi- conditions, subsection improve educational rules, and bylaws, tion, required adopt Board is “the having jurisdictions all regulations, applicable administra- published,” adopted when force law 2-205(c), well as “for schools, § tion of the *18 2-206(e). § public of all schools.” and accreditation approval boards, New hand, including the local the other the On for has City, responsibilities some of Baltimore School Board responsibilities Those jurisdictions. in their education public boards, of 4-108 enumerated, county in the case are Article: the Education
“Each shall: county board
“(1) the applicable out ability carry To of its the best rules, regulations, bylaws, the and of this article provisions Board; of the State policies and
“(2) reasonably uniform throughout county its Maintain provide quality to designed schools that system public children; all for opportunity and equal education educational “(3) bylaws, applicable to this article and the Subject Board, determine, rules, with of the State regulations and the educational county superintendent, the advice of the county system; of the school and policies “(4) bylaws, the codify, public make available to and Adopt, law, rules, for not inconsistent with regulations and county of the public the schools.” management conduct Board, 4-303, provides, to the New applicable Section School as relevant:
“(b) is to: of the Board purpose Purpose. —The
“(1) stu- level of academic achievement the Raise the System; and City in the Baltimore Public School dents “(2) of the the and administration management Improve Baltimore system City. school public “(c) ac- shall be held achievement. —The Board Academic school the academic achievement countable for City. students in Baltimore
“(d) Powers duties.—
“(1) The Board shall the authority responsi- have and be relating for all functions City ble the Baltimore Public System. School
“(2) Notwithstanding any provision of local law governing City the System, Baltimore Public School the Board may adopt rules and prescribe policies and procedures management, maintenance, operation, and control of the Baltimore Public City System. School “(3) The shall Board assume for all of responsibility formerly functions performed by Superintendent Public Instruction Baltimore Board of City.” Commissioners of School sure, To has power be visitatorial over the boards, Com’rs, local Wiley Allegany County Sch. (after (1879) 401, 405-06 noting duty the State Board’s law, regard by-laws education to make administration the public system, and to suspend teachers, characterizing remove examiners provision *19 it to requiring “explain law, the true intent and meaning of decide, ... concerned, without to expense parties all it,” disputes may controversies and arise under as “a of power character.”), visitatorial the most comprehensive held, which we gives have it the word on any “last matter concerning educational or policy the administration of the Educ., of system public education.” Wilson v. Board 234 of (1964). 561, 565, 67, Md. 200 A.2d 69 In Board Education of Waeldner, 354, 360, 332, v. (1984), 298 Md. 470 A.2d 335 we general referred to the State Board’s control and supervision interests, over the schools and educational its authority to determine elementary secondary educational poli cies, to obligation rules, its adopt bylaws, and regulations and its responsibility of the interpretation public education law and the of resolution under disputes arising explain it to of power. Nevertheless, the extent the visitatorial we have described the visitatorial “as of power supervision, regula one tion and direction.” v. Zeitschel Board Car Education of 80-81, 69, 906, (1975), County, roll 274 Md. 332 912 A.2d citing 566, v. (1884), Peter 62 Prettyman, Md. 576 involving case
215 particular- More judges. of circuit court power the visitatorial we said: ly, of visitation power it beyond question think
“We control and one of general Board is in the State vested superintend Board it authorizes the State supervision; them keep education of the local boards the activities and when- of their operations, legitimate sphere within the the education- involving or arises controversy dispute ever administration policy proper al State, power visitatorial the State Board’s system of the nullify and to authority it to correct all abuses authorizes all irregular proceedings.” 81, at 913.
Id. at 332 A.2d have also said:
We
Board is
course,
power
visitatorial
the State
“Of
finally
decide
It
asserted
without
limits.
cannot be
457,
176
5
v.
Md.
Hodges,
Hobbs
purely legal questions.
165 Md.
(1939);
Cearfoss,
Education v.
A.2d 842
Board of
(1933).
178,
can
Board exer-
732
Neither
166 A.
faith,
inor
power fraudulently, in bad
cise the visitatorial
330,
73 A.2d
Helbig,
v.
Coddington
breach of trust.
(1950).
that the visitatori-
Another
limitation is
454
obvious
contravention of
direct
power
al
cannot be exercised
legislative cre-
manifestly
statute. The State Board
ation;
has vested
only
legislature
has
such
as the
powers
it
v.
it,
implication. See Purnell
by necessary
expressly
(1915).
Ed.,
266, A.
Peters
93
518
State Bd.
Md.
Cf.
(1955);
790,
217 in as Board, proposed for reconstitution case, New on the this in occur, agree, require, I would it case to submits this of the Edu- effect, of several sections or amendment repeal Article, cation i.e. (a) (‘Educational the counties matters that affect
Ҥ 4-101
in
county
a
of education
the control of
board
shall be under
(‘The
4-303(d)
authority
§
have
Board shall
county’);
each
to the Baltimore
relating
for all functions
and be responsible
(‘[E]ach
4-103(a)
county
§
System’);
City
School
Public
teachers,
(1)
and other
Appoint
principals,
all
board shall:
(2)
their
Set
personnel;
certificated and non-certificated
4-311(a) (‘the
shall establish
salaries’); §
[N]ew
non[-]eertificat-
certificated and
system governing
personnel
(‘The
6-201(a)
employ
shall
county
§
board
employees’);
ed
county
board considers
positions
individuals
in the county’);
schools
operation
public
for the
necessary
(i)
6-201(b)(2)
Assign
shall
(‘T}he county superintendent
§
(ii)
schools;
in the
Transfer
positions
to their
[personnel]
(iii)
require;
of the schools
Recom-
[personnel] as
needs
(iv)
them for cause
promotion;
Suspend
mend
them
§
6-
them for dismissal
accordance
and recommend
6-402(d)
article’);
(defining ‘public
202 of this
or
New
board
education
employer’
county
4-123(e)
Commissioners); §
Board of
School
agreement
an
county
that if a
into
(mandating
board enters
it
program
administration of
cooperative
joint
any county
participant
‘does
relieve
board or other
law’).”
on it
imposed
obligation
responsibility
correct,
If the
is
education
majority
undermined, not by specific
disrupted
scheme can be
that,
terms,
direction,
express
i.e.
its
legislative
legislation
so,
on the
by implication,
to do
but
basis
intended
of the Public
legislation
repeals
parts
that
or amends those
play
that
a role to
in the
gives
Education Law
local boards
It
jurisdiction.
within their
governance
schools
by implication
are not favored.
repeals
is well settled
269, 286,
Realty
508
Sampson,
Ronald Fishkind
306 Md.
France,
478,
(1986);
A.2d
Nat. Resources v.
Dep’t
432,
(1976).
Harris,
Md.
In
the majority acknowledges,
in order for
legislative
viable,
ratification to
the legislative body
be
must
empowered
have
prospectively
been
authorize the act it
adopt
would
and validate in retrospect. Washington Nat’l
38,
v.
George’s
45,
1060,
Arena
Prince
Co. 287 Md.
410 A.2d
denied,
1064,
834,
106,
cert.
449 U.S.
101 S.Ct.
The at issue are at significantly odds with the statutory scheme Legislature. established much So so that, view, my are they subject more appropriately the
219 and, so, were and, indeed, law making, constituted legislation The Board to authority promulgate. beyond the of the execu agency, a part Board is an administrative without, at the Legislature, government. tive branch its exer to direct least, safeguards and standards providing an adminis to make laws to cise, delegate power may government. an arm of the executive branch agency, trative 64, 80, Armacost, Md. v. 311 Department Transportation 544, Barnes, Md. 1056, 1063(1987); v. Pressman 532 A.2d (1956). 121 A.2d in Lussier length in great I this at dissent addressed issue 681, 701-720, Commission, 684 A.2d Md. Racing Md. (1996). I expressed, the reasons there For 813-823 regu- promulgated Board inappropriately believe the State no gave it Assembly, because lations and General and, not have could ratify, did not indeed guidance, advance ratified, regard. actions in that the State Board’s *23 reasons, I
Therefore, dissent. foregoing