HALSEY v. BOARD OF EDUCATION OF GARRETT COUNTY, MARYLAND
No. 81, September Term, 1974.
Court of Appeals of Maryland
Decided February 4, 1975.
273 Md. 566
Walter S. Levin, with whom were Susan W. Russell and Sauerwein, Boyd & Decker on the brief, for appellant.
Ralph M. Burnett for appellee.
Amicus Curiae brief filed by Maryland State Board of Education, Francis B. Burch, Attorney General, and Malcolm R. Kitt, Special Assistant Attorney General, on the brief.
MURPHY, C. J., delivered the opinion of the Court. SMITH, LEVINE and O‘DONNELL, JJ., dissent and LEVINE, J., filed a dissenting opinion in which SMITH and O‘DONNELL, JJ., concur at page 575 infra.
In June 1970, Virginia Jean Halsey entered into a “regular [teacher‘s] contract” with the Garrett County Board of Education to teach in the public schools of the county, effective with the fall term. The contract was in the form prescribed by Bylaw 621:2 of the State Board of Eduсation; it provided, in effect, that it would continue from year to year, but that for a period not longer than two years, Mrs. Halsey would be a nontenured and probationary teacher whose employment could be terminated by the County Board, without cause, at the end of the first or second school year.1 For two school years, Mrs. Halsey taught at the Green Street School, a place of learning for trainable, retarded children. In April 1972, she was notified by the County
An evidentiary hearing was thereafter held before one of the State Board‘s hearing examiners; based on the record made in that proceeding, the State Board determined that there was evidence showing that “adequate grounds” existed for the County Board‘s decision that Mrs. Halsey was not qualified to be given a tenured position and that consequently the termination of her employment was neither arbitrary nor capricious. The State Board cоncluded, however, that since it was vested by law with a comprehensive visitatorial2 power over the county school system, it was not limited to a mere technical review of the legal sufficiency of the County Board‘s decision to terminate Mrs. Halsey‘s contract. It held that the visitatorial power required it “to see to it that proper procedures are prescribed by the county school systems as part of their personnel policies and that these procedures are adhered to.” From the evidence before it, the State Board found that Mrs. Halsey‘s “failings were not properly brought to her attention, that no observation was made of . . . [her] performance within the classroom, and that there was no written evaluation of the quality of her work.” Because of “[t]hese defects,” the State Board directed that Mrs. Halsey “should be given another chance, under better supervision and guidance“; it ordered the County Bоard “to offer Mrs. Halsey a new contract, which would take effect upon being signed by both parties
The County Board appealed to the Circuit Court for Garrett County, pursuant to the provisions of
The court (Hamill, J.) held that once the State Board determined that the action of the County Board was not arbitrary or capricious, “the matter was then settled, and Mrs. Halsey‘s contract was terminated.” The court noted that because the State Board was limited by
“The law provides that a teacher when first employed will serve a probationary period not to exceed two years, during which time her services may be terminated without a hearing and without assigning any reasons therefor. If her services are not terminated in that period, she immediately acquires tenure upon the signing of her third year contract. She then acquires definitive rights with regard to her position and under what circumstances and procedures she can be terminated.
“The effect of the ruling of the State Board . . . under so-called ‘visitatorial powers’ is to change the law, and would be permitting a four year probationary period, two years beyond the statutory requirement [provided in
Art. 77, § 114 ] of not more than two years. . . . It further creates a paradox in upholding the . . . County Board . . . bydetermining that its action was not arbitrary and capricious and denying the Petitioner‘s relief, but, at the same time, granting her relief by ordering her reinstated under a new contract and probationary period.”
The court concluded that since termination was permitted by the provisions of the contract between Mrs. Halsey and the County Board, to hold that Mrs. Halsey‘s employment could not be terminated where the County Board‘s decision was neither arbitrary nor capricious “would, in effect, render such contracts useless and not binding.”
On appeal from the lower court‘s order, Mrs. Halsey does not contest the State Board‘s finding that the County Board‘s decision to terminate her contract was supported by evidence and was therefore not arbitrary or capricious. She claims instead that the State Board‘s order that she be offered a “new contract, . . . which would permit the probationary period to start running anew” was within its visitatоrial power and should have been affirmed. She contends that the State Board was “careful not to extend the probationary period per se, in violation of the law“; that the State Board in its superintendent role over the local public school system simply ordered that a new employment contract be tendered to her by the County Board as the only appropriate equitable remedy available in the circumstances.
The County Board, on the other hаnd, contends that the State Board‘s visitatorial power is not so broad as to authorize it to invalidate contractual obligations existing between a local school board and a nontenured teacher. It argues that nothing in the State Board‘s visitatorial power permits it to disregard the provisions of
“Educational matters affecting the State and the general
In Wilson v. Board of Education, supra, 234 Md. at 565, we said that the totality of these statutory provisions “invests the State Board with the last word on any matter concerning educational policy or the administration of the system of public education.” We there referred to the statutory authority of the State Board (citing Wiley v. School Commissioners, 51 Md. 401 (1879) аnd other cases) as ““a visitatorial power of the most comprehensive character.’ ”
Of course, the visitatorial power of the State Board is not without limits. It cannot be asserted to finally decide purely legal questions. Hobbs v. Hodges, 176 Md. 457, 5 A. 2d 842 (1939); Board of Education v. Cearfoss, 165 Md. 178, 166 A. 732 (1932). Neither can the State Board exercise the visitatorial power fraudulently, in bad faith, or in breach of trust. Coddington v. Helbig, 195 Md. 330, 73 A. 2d 454 (1950). Another obvious limitation is that the visitatorial power cannot be exercised in direct contravention of statute. The State Board is manifestly of legislative creation; it has only such powers as the legislature has vested in it, expressly or by necessary implication. See Purnell v. Shriver, 125 Md. 266, 93 A. 518 (1915). Cf. Peters v. Hobby, 349 U. S. 331, 75 S. Ct. 790, 99 L. Ed. 1129 (1955); Stark v. Wickard, 321 U. S. 288, 64 S. Ct. 559, 88 L. Ed. 733 (1944). At one time, State Board bylaws were expressly required not to be at variance with statute. Ch. 463, Acts of 1874. This language was later eliminated. Ch. 506, Acts of 1916. But with or without such language, it is clear that “rules and regulations adopted by administrative agencies, to be valid, must be reasonable and consistent with the letter and policy of the statute under which the agency acts.” Farber‘s, Inc. v. Comptroller, 266 Md. 44, 50-51, 291 A. 2d 658, 662 (1972); Comptroller v. Rockhill, Inc., 205 Md. 226, 233, 107 A. 2d 93, 97 (1954). We said as much in Metcalf v. Cook, 168 Md. 475, 178 A. 219 (1935), a case involving an alleged conflict between a State Board bylaw requiring new teachers to graduate in the upper 4/5ths of their class and an existing statute which provided that teaching certification may be issued to college graduates. And the Attorney General has stated his opinion
That the Board‘s visitatorial power does not stand on a footing higher than the statutes from which it is derived is clear from our holding in Peter v. Prettyman, supra, a case involving a visitorial power of a higher order, viz., that prescribed by
“Legislative power was not intended to be given the
judges in the sense of power to repeal existing statutes, and of taxing the public with the payment for services which were by the existing law required to be paid for by the individuals for whom, and at whose instance, the service was rendered.” 62 Md. at 576.
The State Boаrd, in a brief filed as amicus curiae, says that its order was wholly consistent with its duty and responsibility to properly administer the school system. It suggests that it was faced with this dilemma: For it to have held that the failure of the local school system to observe Mrs. Halsey‘s teaching performance in the classroom was arbitrary and capricious would have resulted in granting tenure to her in the face of substantial evidence that she was not qualified. To have affirmed the County Board‘s termination of Mrs. Halsey‘s employment, on the other hand, would mean that a County Board could blithely ignore the most rudimentary principles of educational administration in dealing with nontenured teachers. The only solution to the problem with which it was faced, the State Board maintains, was to allow the County Board to offer Mrs. Halsey a new contract as a nontenured teacher and permit her to work under appropriate supervision and guidance for a new probatiоnary period, ultimately affording her tenure if her teaching performance justified it. The State Board claims that the basic purpose of the tenure law is to vest rights in teachers, not in county school systems, and that only a teacher could justly complain about a third or fourth probationary year. Since Mrs. Halsey has registered no such complaint, and because
While we can readily appreciate both the logic of the State Board‘s position, and its purpose to remedy what it viewed as a failing on the part of the local school system in Mrs. Halsey‘s case in not providing professional observation and evaluation of her work as a probationary teacher, we can
Judgment affirmed; costs to be paid by appellant.
LEVINE, J., dissenting:
Finding myself in disagreement with the majority in this case regarding its views on the two-year probationary period, I respectfully dissent.
Initially, I agree that the statutory authority of the State Board is “‘a visitatorial power of the most comprehensive character.” Wilson v. Board of Education, 234 Md. 561, 565, 200 A. 2d 67 (1964); and that “the totality of these statutory provisions [of Article 77] ‘invests the State Board with the last word on any matter concerning educational policy or the administration of the system of public education.’ ” (emphasis added).
As early as Shober v. Cochrane, 53 Md. 544 (1880), this Court affirmed the State Board‘s power over local school employees. In that case, Cochrane had been the secretary,
This doctrine was followed in Zantzinger v. Manning, 123 Md. 169, 90 A. 839 (1914), a case in which the State Board had decided that a teacher was improperly dismissed and should be reinstated:
“. . . In the case at bar the dispute is ‘between functionaries of the departmеnt of public education‘; the question to be determined is ‘which of two persons shall be recognized as a teacher of a school,’ and the issue is clearly one involving the proper administration of the public school system. The School Commissioners’ control of high schools, and their authority to appoint the principals of said schools is subject to the provisions of the public school law of the State, and to the summary and comprehensive visitatorial power conferred by that law upon the State Board. . . .” 123 Md. at 181-82.
Similarly, in School Com. of Car. Co. v. Breeding, 126 Md. 83, 90, 94 A. 328 (1915), this Court said:
“Cases may arise where a purely legal question is involved, as in Duer v. Dashiell [91 Md. 660 (1900)], and School Commissioners v. Henkel, 117 Md. 97, and which the Court has power to determine, but where the dispute is between ‘functionaries of the department of public education,’ or a question of
school administration is involved this Court has refused to decide it. . . .”
Thus, the Court concluded in Wilson v. Board of Education, supra, 234 Md. at 565, that
“. . . [i]n any aspect the problem of screening employees is one of administrative policy, and the mere fact that the sоlution is initially within the scope of the County Board‘s authority does not negative the power of the State Board to review it and set it aside, as the cases cited demonstrate. . . .” (emphasis added).
See also Metcalf v. Cook, 168 Md. 475, 178 A. 219 (1935); School Commissioners v. Morris, 123 Md. 398, 91 A. 718 (1914); Wiley v. School Comm‘rs, 51 Md. 401 (1879). This established line of authority makes it abundantly clear, therefore, that where, as here, the “educational policy or the administration of the system of public schools” is involved, the State Board possesses the authority to issue orders which the County Board must follow.
In the present case, even though she was never observed, evaluated, or criticized, Mrs. Halsey‘s contract was not renewed. The State Board, understandably concerned at this lack of proper personnel procedures, observed:
“... we are troubled by the fact that her failings were not properly brought to her attention, that no observation was made of Mrs. Halsey‘s performance within the classroom, and that there was no written evaluation of the quality of her work. These dеfects in the procedures of dealing with a probationary teacher do not make an adequate teacher out of a teacher who is less than adequate, but they do make us believe that this teacher should be given another chance, under better supervision and guidance. In exercising our visitatorial power, we, therefore, call upon the Garrett County School System to offer Mrs. Halsey a new contract, which would take effect upon being signed by both parties and which would permit the probationary period to start running anew. . . .”
As the majority has noted, there are limitations on the State Board‘s broad visitatorial powers, as in the case of pure questions of law or the fraudulent exercise of that power. The present case, however, comes within neither of these limitations. There is not the remotest suggestion of fraud, bad faith, or breach of trust on the part of the State Board. And, as noted, the issue here is one of proper administration of the public school system rather than a purely legal question.
Although I am also in agreement with the majority‘s general statement that “the visitatorial power cannot be exercised in direct contravention of statute[,]” I part company on its application of this principle to the facts of this case. The statutory provision purportedly violated by the State Board‘s order is
Since the visitatorial power of the State Board encompasses this dispute, and since that visitatorial power has not been exercised in contravention of the statute, the judgment of the Circuit Court for Garrett County should be reversed, and the order of the State Board of Education reinstated. Judges Smith and O‘Donnell authorize me to state that they concur in the views expressed herein.
Notes
“And the office and business of said Clerks, in all their departments, shall be subject to the visitorial power of the Judges of their respective Courts, who shall exercise the same, frоm time to time, so as to insure the faithful performance of the duties of said officers; and it shall be the duty of the Judges of said Courts respectively, to make, from time to time, such rules and regulations as may be necessary and proper for the government of said Clerks, and for the performance of the duties of their offices, which shall have the force of Law until repealed, or modified by the General Assembly.”