ZEITSCHEL v. BOARD OF EDUCATION OF CARROLL COUNTY
No. 89, September Term, 1974.
Court of Appeals of Maryland
Decided March 3, 1975.
274 Md. 69
Walter S. Levin, with whom were Susan W. Russell and Sauerwein, Boyd & Decker and H. Morton Rosen on the brief, for appellant.
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.
Edward J. Gutman, with whom were Blum, Yumkas, Mailman & Gutman on the brief, for appellee.
MURPHY, C. J., delivered the opinion of the Court. LEVINE and O‘DONNELL, JJ., dissent and LEVINE, J., filed a dissenting opinion in which O‘DONNELL, J., concurs at page 83 infra.
In June 1969, Cheryl Zeitschel was employed by the Board of Education of Carroll County (the County Board) under a “teacher‘s contract” which provided, in effect, that it would continue from year to year, but that for a period not longer than two years, Miss Zeitschel would be a non-tenured and probationary teacher whose employment could be terminated by the County Board, without cause, at the end of the first or second year by written notice given not later than May 1 of such school year. The contract was in the form prescribed by Bylaw 621:2 of the State Board of Education (the State Board); under its provisions, a probationary
By report dated March 24, 1970, Miss Zeitschel‘s principal concluded that she “has had a relatively successful first year” and “shows fine potential.” However, on December 9, 1970, Miss Zeitschel and another teacher, Mrs. Davis, were suspended by the County Board on the recommendation of the County Superintendent of Schools, George E. Thomas. The Superintendent also recommended that both teachers be dismissed for immoral conduct and misconduct in office, pursuant to
“... [her] case is somewhat different in that she does not have tenure and no such witnesses appeared in her behalf. The Board, however, feels that because most of the acts which it found constituted sufficient ground for disciplinary action were done in concert, it would be inequitable to mete out to her greater punishment than to Mrs. Davis....”
Miss Zeitschel returned to teaching at another school on April 15, 1971. On April 19, 1971, the principal of Hampstead Elementary School where Miss Zeitschel had taught before her suspension completed a “teacher evaluation” record covering Miss Zeitschel‘s service until the time of her suspension on December 9, 1970. While he marked her performance as “satisfactory” in each of the “rating elements” contained on the form, the principal concluded that “[i]n view of all developments...and in fairness to Miss Zeitschel and to school patrons, re-employment for reassignment to Hampstead School cannot be recommended.”
Approximately two weeks after her suspension had been terminated, Miss Zeitschel received a letter dated April 26, 1971 from the Director of School Personnel, written on County Board letterhead, advising her that “[a]fter consideration by the appropriate professional personnel... [her] contract will not be renewed for the 1971-72 school year.” The letter carried the notation that it was approved by George Thomas, the County Superintendent of Schools.
After her request for a hearing was denied, Miss Zeitschel appealed the County Board‘s decision to terminate her contract to the State Board, contending that “the actions culminating in the April 26, 1971 letter were procedurally defective under the Public School Laws of Maryland and the Bylaws of the State Board of Education, and that, in any
“But in the case before us the Superintendent appears to have made his decision not on the basis of an evaluation of the facts within his area of special competence but by considering once again the facts developed in a case considered and decided by the [County] Board. The Board said on April 14, 1971 that it would be inequitable to mete out greater punishment to Miss Zeitschel than to Mrs. Davis. It is not within the implied powers of the Superintendent to negate that determination on April 26, 1971. As he was basing his decision on the facts considered by the Board, he should have gone back to the Board for formal action in this matter. His failure to do so makes his action ultra vires.”
Finding that Miss Zeitschel‘s contract was never validly terminated, the State Board ordered that she be reinstated with tenure and back pay.
The County Board appealed to the Circuit Court for Carroll County, pursuant to the provisions of the Administrative Procedure Act,
“Q. What was Dr. Thomas asked in regard to his reasons for the non-renewal, decision of non-renewal?
“A. Well, in light of going through and completing the hearing in this particular case, the Board was somewhat concerned that the Superintendent was doing the right thing, and we asked him pointedly can you justify the denial of a new contract to this particular individual, and he assured us that he could. And that was all right as far as we were concerned.
“Q. Well, did you, did you ask the Superintendent whether his decision not to renew Miss Zeitschel‘s contract was based upon his comprehensive evaluation of the facts concerning Miss Zeitschel‘s performance as a teacher?
“A. Yes, this is really what we were after. This is what we wanted him to assure us, that he could justify it on its own merits as opposed to whatever had just taken place as far as the hearing was concerned. And the Board was very much concerned about this because we felt at the time we would probably end up right where we are now and we wanted to be sure that the Superintendent could justify what he was asking. And we, as far as we were concerned that‘s when his action was ratified.”
Under questioning by the hearing examiner, the witness testified that had the Superintendent not given assurances that Miss Zeitschel‘s contract was terminated for reasons independent of the disciplinary hearing, the County Board would not have accepted the recommendation.
The hearing examiner expressed dismay because the reasons for the termination of Miss Zeitschel‘s contract had not been delineated by the County Board at the hearing on
“[t]he only evidence offered by the parties at the hearings reflective of Petitioner‘s job performance showed her to be a satisfactory teacher.... Although given the opportunity, Respondent either cannot or will not produce evidence to the contrary. Under the circumstances I have no alternative but to conclude that the non-renewal of Miss Zeitschel‘s contract was an arbitrary and capricious act.”
In a brief opinion, the State Board adopted the findings of fact and conclusions of law of the hearing examiner.
In a second appeal to the circuit court, the County Board contended that the State Board‘s decision was in excess of its authority and unsupported by substantial evidence because:
- local board ratification of the County Superintendent‘s termination of Miss Zeitschel‘s contract was not necessary because his action was not unauthorized;
- in any event, the County Board approved or acquiesced in the Superintendent‘s decision; and
- because a hearing and cause were not required by law for termination of a probationary teacher‘s contract, the State Board‘s decision that the termination was arbitrary and capricious was invalid.
The court (Weant, J.) reversed the order of the State Board; it held that Miss Zeitschel, as a probationary teacher, was
“The only thing that distinguishes the non-renewal of Miss Zeitschel‘s contract from the non-renewal of any other probationary teacher is the fact that Miss Zeitschel had been disciplined by the County Board of Education for misconduct but the Board had ordered that she should not be terminated for that offense. The Board did not say that she should not be terminated for any other reason. They merely said it would be inequitable to impose greater punishment upon her for her acts of misconduct than had been imposed upon the other teacher with whom she was joined in improper conduct. Thus, for any reason other than her already chastised misdoing Miss Zeitschel remained subject to non-renewal of her contract as would any probationary teacher. The County Board by its action of April 14, 1971, did not grant tenure to Miss Zeitschel. The County Board directed that Miss Zeitschel and Mrs. Davis should be treated equally for their joint venture into misconduct. Consequently, Miss Zeitschel remained a probationary teacher whose contract was subject to termination at the end of the second year with or without cause and without a hearing.” (Emphasis in original.)
On the question of the County Board‘s ratification of the County Superintendent‘s action in terminating Miss Zeitschel‘s employment, the court said:
“Obviously the Board was aware that the Superintendent had made the decision not to renew Miss Zeitschel‘s contract and satisfied itself that the reason for non-renewal was other than the recently conducted disciplinary hearing. If the
County Board had felt that the action of the Superintendent was in conflict with their opinion and directive of April 14, 1971, they had ample opportunity to overrule the Superintendent and either direct renewal of Miss Zeitschel‘s contract or grant her a hearing. They chose to do neither. They chose instead to uphold the action of the Superintendent. Whether we call this action of the County Board ratification, acquiescence or approval matters not. The Board was aware of the Superintendent‘s action. They were satisfied that he had reasons other than those which the Board had prohibited. It was not necessary to have these reasons stated.”
In this appeal, Miss Zeitschel and the State Board, as amicus curiae, argue that there was sufficient evidence before the State Board for it to conclude that the Superintendent‘s decision to terminate the contract was based on an improper reason and was therefore unauthorized by the County Board; that the County Board did not ratify the Superintendent‘s action because it made no inquiry concerning, and thus had no knowledge of, the specific facts underlying his decision to terminate; and that regardless of the authority of the Superintendent to terminate Miss Zeitschel‘s contract, or the validity of the County Board‘s ratification of his action, there was sufficient evidence for the State Board to conclude that the County Board acted arbitrarily and capriciously in terminating the contract.
No claim has been made by Miss Zeitschel either in the proceedings below or on appeal that the termination of her probationary employment, without first affording her a hearing, constituted an infringement of her constitutional rights to liberty or property in violation of the principles articulated in Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L.Ed. 2d 548 (1972) and Perry v. Sindermann, 408 U. S. 593, 92 S. Ct. 2694, 33 L.Ed. 2d 570 (1972). Neither has the County Board directly challenged the proposition that it
As we so recently observed in Virginia Jean Halsey v. Board of Education of Garrett County, Maryland, 273 Md. 566, 331 A. 2d 306, the Public School Law of Maryland, Code, Article 77, delineates the respective powers possessed by, and the legal relationship existing between, the local school boards and the State Board. “Educational matters affecting the State and the general care and supervision of public education” are entrusted to the State Board by
Section
In Wilson v. Board of Education, 234 Md. 561, 565, 200 A. 2d 67, 69 (1964), 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) and other cases) as “a visitatorial power of the most comprehensive character.” 234 Md. at 565. While we have never had occasion to define the term “visitatorial” in the context of its meaning in the field of public education, in Peter v.
While the State Board may properly inquire into the reasons for the County Board‘s decision to terminate Miss Zeitschel‘s contract in order to correct abuses of authority and irregularities pertaining to education and specifically to the matter of teacher evaluation, it cannot exercise its visitatorial power arbitrarily to alter a decision of the County Board lawfully made in conformity with a State Board bylaw itself having the force of law. There was probative evidence to indicate that the Superintendent‘s decision to terminate Miss Zeitschel‘s services was based upon his comprehensive professional evaluation of her general performance as a teacher. There was evidence to indicate that the County Board was so satisfied, and that the Superintendent‘s decision was not based on the same
“The heart of the fact finding process often is the drawing of inferences from the facts. The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.’ Davis, op. cit., Sec. 29.05, p. 139.” 224 Md. at 448.
We hold only that the State Board‘s order in this case was not supported by evidence and in the circumstances was arbitrary and capricious and properly reversed by the lower court.
Order affirmed; costs to be paid by appellant.
Levine, J., dissenting:
Because the issue here is one properly within the visitatorial power of the State Board of Education, I respectfully dissent.
As the majority in this case correctly observes, 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 “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, treasurer and examiner of the county school commissioners
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 department 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....”
“... [i]n any aspect the problem of screening employees is one of administrative policy, and the mere fact that the solution 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, as the majority has noted, the State Board found that:
“... no other conclusion [could be reached] but that the Superintendent‘s decision to terminate the services of Petitioner was not based on a professional evaluation of her general performance as a teacher but was based solely on the issues and circumstances which had been considered by the County Board...and...decided by it on April 14, 1971.” (emphasis added).
When the County Board had met for the purpose of determining whether Miss Zeitschel‘s contract was terminated for reasons independent of the disciplinary hearing, the Superintendent had merely asserted that he possessed such reasons, without specifying what they were. In light of the suggestion that the termination was based on improper grounds, viz., the prior charge of misconduct, the hearing examiner for the State Board, whose findings of fact and conclusions of law were adopted by that Board, was dismayed that the reasons for the termination of Miss
I agree, as the majority holds, that it is:
“... beyond question that the power of visitation vested in the State Board is one of general control and supervision; it authorizes the State Board to superintend the activities of the local boards of education to keep them within the legitimate sphere of their operations, and whenever a controversy or dispute arises involving the educational policy or proper administration of the public school system of the State, the State Board‘s visitatorial power authorizes it to correct all abuses of authority and to nullify all irregular proceedings....”
In the case of probationary teachers, the State Board‘s power is comprehensive; for while
In sustaining the termination of Miss Zeitschel‘s contract, the majority holds, in effect, that there is no evidence upon which the State Board could reasonably have concluded that
Since the resolution of this dispute lies within the visitatorial power of the State Board, and since sufficient evidence exists for the State Board to have reasonably reached its conclusion, the judgment of the Circuit Court for Carroll County should be reversed, and the order of the State Board of Education reinstated. Judge O‘Donnell authorizes me to state that he concurs in this opinion.