Teacher's Union v. Board of Education

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IN THE COURT OF APPEALS OF MARYLAND No. 120 September Term, 2000 _________________________________________ BALTIMORE TEACHERS UNION, AMERICAN FEDERATION OF TEACHERS, LOCAL 340 AFL-CIO v. MARYLAND STATE BOARD OF EDUCATION, et al. _______________________________________ Bell, C.J. * Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. __________________________________________ Opinion by Eldridge, J. Bell, C.J., concurs and dissents _____________________________________ Filed: January 16, 2004 * Eldridge, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. Baltimore Teachers Union, American Federation of Teachers, Local 340, AFL-CIO, filed in the Circuit Court for Baltimore City a complaint for a declaratory judgment and injunctive relief, alleging that the Maryland State Board of Education lacked statutory authority to enter into a contract with Edison Schools, Inc. for the operation and management of three Baltimore City public elementary schools. The Circuit Court held that the State Board acted within its statutory authority conferred by the General Assembl y. Before argument in the Court of Special Appeals, the Union filed in this Court a petition for a writ of certiorari. W e granted the petition and shall affirm. I. Governance of the Maryland public school system is two-tiered. The Maryland State Board of Education is the head of the State Department of Education, a principal department of the State governm ent. Maryland Code (1978, 1999 Repl. Vol.), §§ 2-101 and 2-102 of the Education Article. Twenty-three county boards of education and the New Baltimore City Board of School Commissione rs (the New Board ) operate as the statutory heads of the twenty-four local public school systems.1 The State Board is 1 In Board of Education of Prince George s County v. Waeldner, 298 Md. 354, 360-361, 470 A.2d 332, 335 (1984), this Court described the relationship between the State Board and the local boards: The totality of these provisions has been described as a visitatorial power of such comprehensive character as to invest the State Board with the last word on any matter concerning educational policy or the administration of the system of public education . . . . In Zeitschel, supra, 274 Md. at 81, 332 A.2d 906, we said: [T]he power of visitation vested in the State Board is one of general control and (continued...) -2charged with the general supervisio n of the Maryland public schools, including the development and implementation of educational policies. § 2-205 of the Education Article.2 The State Board is authorized to adopt rules and regulations for the administration and enforcement of the education law. § 2-205(c). In 1993, the Board promulgated regulations establishing public school performance standards that were adopted and codified in the Code of Maryland Regulations (COMAR) 13A.01.04.01 .08. Regulation .01 establishes the scope of the regulations and regulation .02 is the definition section. The student performance areas tracked by the State are set forth in regulation .03. Regulation .04 establishes the standards that apply to the student performance areas. Regulation .05 sets out the reporting requirements, and the mandate that each public school develop a school improvement plan is set forth in regulation .06. The regula tions further set forth a two-phased process for public schools that fail to meet the prescribed student performance standards. Regulations .07 and .08 describe local reconstitution where, if a school fails to meet all standards at a level of satisfactory or better in the student performance areas, the State Board may require the 1 2 (...continued) 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 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. Hereafter, all references to sections of the Maryland Code will be to the Education Article, unless otherwise specified. -3overall program and management of a school to be placed under the direct control of the local school board. 3 By February 2000, the State Board had ordered 97 schools throughout Maryland to be placed under local reconstitution. Of these, 83 schools were in Baltimore City. If a school under local reconstitution fails to show sufficient improvem ent, regulation .10 provides for state reconstitution by which the State Board determines the overall program and management of the school. In 1999, the State Board reconstituted three of the lowest performing public elementary schools in Baltimore City, Furman L. Templeton, Montebello, and Gilmor. Student performance remained stagnant at these elementary schools despite being under local reconstitution for at least three years. N o more than 10% of the students at the schools had met the State s standard in all student performance areas in any year since 1993 when the school performance regulations were adopted. The State Board examined the feasibility of closing one or more of the underperforming elementary schools. The Board determined that any closure would result in increased transportation costs and the transfer of students to other low 3 COMAR 13A.01.04.02B(8) states: (8) Reconstitution. (a) Reconstitution means changing one or more of a school s: (i) Administration; (ii) Staff; (iii) Organization; or (iv) Instructional program. (b) Reconstitution may include contracting with a third party as provided in Regulation .07 of this chapter. -4performing public schools already under local reconstitution. The Board concluded that the most viable option was to contract out the operation and management of the three schools to a third part y. 4 Following a request for proposals in accordance with the State procurement procedure, the State Board and the New Board entered into a Contract for the Operation and Management of Schools Under State Reconstitution in Baltimore City with Edison Schools, Inc., for a term of five years.5 The contract with Edison was approved by the Maryland Board of Public Works on March 22, 2000. Edison is a private company specializing in the management of public schools. It operates under contracts with local school districts and boards of charter schools. Pursuant to its contract with the State Board, Edison is required to provide the three public elementary schools with curriculum and curriculum developm ent, instructional services, instructional and support personnel, teaching tools, special education and related services, educational services with limited or no English prof icien cy, and other services which may be nece ssar y. Edison serves as the employer of all employees hired for the elementary schools and is responsible for providing management and professional development for all personnel working in the three schools. Edison has the power to hire, assign, discipline, and dismiss all personnel hired at the schools. 4 COMAR 13A.01.04.02B(10) provides: (10) Third party means an entity, public or private, who is not managing the school at the time of a reconstitution decision. 5 The New Baltimore City Board of School Commissioners was created by the General Assembly in 1997 as part of a new partnership between Baltimore City and the State to improve the quality of public education in Baltimore City. § 4-303(a) of the Education Article. -5The Baltimore Teachers Union initiated the present action in the Circuit Court for Baltimore City against the State Board and the New Board. The gist of the Union s action was set forth in the beginning of its complaint as follows: 1. This is an action for declaratory judgmen t, injunctive and equitable relief. The facts and claims in this action are solely a matter of statutory law and turn on the authority of the Maryland State Board of Education ( MSBE ) and the New Baltimore City Board of School Commissione rs ( Local Board ) as granted by the State legislature. 2. Plaintiff shall request that the Court find that MSBE acted ultra vires in its promulgation of C.O.M.A.R. 13A.01.04.08. and 13A.0 1.04.02 (B)(8)( b). The State Board and the New Board filed motions to dismiss the complaint for lack of standing. Alte rnat ively, the State Board moved for summary judgmen t, maintaining that the Board acted within the scope of its statutory authority by promulgating the challenged regulations and contracting with a private vendor for the operation of the three elementary schools. The Union filed a cross-motion for summary judgmen t. Edison filed a motion to intervene which was unopposed. Following a hearing, the Circuit Court issued an order declaring that the Union had standing, that the challenged regulations were within the State Board s statutory auth ority, and that the two Boards were statutorily authorized to enter into the contract. The Union filed a notice of appeal to the Court of Special Appeals, and the State Board filed a cross-appeal on the standing issue. Prior to argument in the intermediate -6appellate court, the Union filed in this Court a petition for a writ of certiorari which we granted. Baltimore Teachers Union v. Maryland State Board of Education, 362 M d. 359, 765 A.2d 142 (2001). The petition presented the single question of whether the challenged regulations and contract were authorized by the General Ass emb ly. II. As a threshold matter, we must first consider wheth er the Baltimore Teachers Union had standing to challenge the reconstitution regulations and the Edison contract. The respondent State Board filed a motion to dismiss the Union s complaint for declaratory judgment on the ground that the Union lacked standing to bring the instant matter, and the Board s cross-appeal challenges that portion of the declaratory judgment upholding the Union s standing. See Joseph H. Munson Co. v. Secretary of State, 294 Md. 160, 168, 448 A.2d 935, 939 (1982), affirmed, 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). The Board argues that for an organization like the Union to have standing to bring a judicial action, it must ordinarily have a property interest of its own . . . separate and distinct from that of its individual members. Medical Waste Associates, Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612, 612 A.2d 241, 249 (1992), quoting Citizens Planning and Housing Association v. County Executive, 273 Md. 333, 345, 329 A.2d 681, 687 (1974). The Board further argues that the Union has not suffered some kind of special damage from such wrong differing in character and kind from that suffered by the general public. Medical Waste , 327 Md. at 613, 612 -7A.2d at 249, quoting Rogers v. Maryland-National Capital Park and Planning Commission, 253 Md. 687, 691, 253 A.2d 713, 715 (1969). W e disagree. The Union s interests are sufficient to satisfy standing requirements. The Union is an unincorporated association and the exclusive collectiv e bargaining agent for the employees of the Baltimore City Public School System. See §§ 6-401 and 6-407 of the Education Article. As the designated collective bargaining agent, the Union is charged with statutory rights and fiduciary duties to negotiate for, and to act in the best interests of, the public school employees. § 6-510(b). The Union has a legal relationship with the New Board by way of the protection and benefits embodied in the negotiated labor agreement on behalf of Baltimore City public school employees. The function of the labor agreement is to set wages and establish minimum labor standards for the bargaining unit. The reconstitution regulations and the Edison contract disturb those established standards and interject a competing labor pool with the bargaining unit. Add ition ally, the labor agreement does not apply to Edison; thus, the Edison contract reduces the size and scope of the Union s bargaining unit. The contract removes the Union from three schools, thus making its bargaining unit that much smaller. While no employee may be compell ed to be a member of the Union, every Baltimore City Public School employee is a member of the Union s bargaining unit. The Union is empowered and, indeed, obligated by statute to represent all employees of the bargaining unit whether members of the Union or not. If more positions are included in the bargaining unit, the -8Union may have greater power to negotiate more advantageous agreeme nts and to carry out more effectively its fiduciary duties. The Union s status as the representative of public employees is diminished by the Edison contract. Accor ding ly, we hold that the Union has demonstrated that, as the designate d collective bargaining representative of Baltimore City Public School employees, it has standing to maintain the present judicial action. III. Turning to the merits of the case, Baltimore Teachers Union argues that COMAR 13A.01.01.02B(8) and 13A.01.04.08 exceed the statutory authority of the Maryland State Board of Education, and that the State Board s contractual delegation of the operation and management of the reconstituted schools illegally grants powers to Edison which are vested exclusively in the New Board. While the State Board exercises general supervisory authority, the Union argues that the State Board lacks statutory authority to take over the basic functions of the local boards. The Union contends that there exists no statute which directly and without equivocation authorizes the State Board to turn over a public school to a third party and place it under the sole control of a private business. W e need not and shall not decide whether the State Board was statutorily authorized to adopt the reconstitution regulations in 1993. Even if the State Board lacked the statutory authority to promulg ate the reconstitution regulations in 1993, subsequent enactmen ts by the General Assemb ly remove any doubt as to the statutory -9authorization for the State Board s actions. The General Assemb ly has passed legislation which confirms and ratifies the State Board s power to issue the reconstitution regulations and to enter into third party contracts pursuant to those regulations. The legislation makes clear that the General Assembly knew of and approved of the State Board s exercise of its statutory authority to contract with Edison for the operation and management of the three public elementary schools. The principle of legislative ratification is well-established in the law. In the situation where a governmental entity takes action which may or may not be statutorily authorized, but where the appropriate legislative body later ratifies that action, the ratification clearly validates the action prospectiv ely and, in the absence of constitutional limitations, may validate the action retro activ ely. As Justice Harlan stated for the Supreme Court long ago, it is not perceived why subsequent legislative ratification is not, in the absence of constitutional restrictions upon such legislation, equivalent to original authority. Grenada County v. Brogden, 112 U.S. 261, 271, 5 S.Ct. 125, 130, 28 L.Ed. 704, 708 (1884). This Court has also recognized that whatever a legislative body may authorize in prospect, it may adopt and validate in retrospect, so long as there is no interference with vested rights, Washington Nat l Arena v. Prince George s Co., 287 Md. 38, 45, 410 A.2d 1060, 1064, cert. denied, 449 U.S. 834, 101 S.Ct. 106, 66 L.E d.2d 40 (1980) (emphas is deleted), quoting County Counc il v. Carl M. Freeman Assoc., 281 Md. 70, 79, 376 A.2d 860, 865 (1977). See also, e.g., Bolles v. Town of Brimfield , 120 U.S. 759, 762, 7 S.Ct. 736, 737, 30 L.Ed. -10786, 788 (1887) ( the legislature, by subsequent ratification, [can] make that legal which was originally without legal sanction ); Anderson v. Townsh ip of Santa Anna, 116 U.S. 356, 364, 6 S.Ct. 413, 417, 29 L.Ed 633, 636 (1886) ( Unless . . . there be a constitutional inhibition, a legislature has power, when it interferes with no vested right, to enact retrospective statutes . . . to ratify and confirm any act it might lawfully have authorized in the first instance, quoting United States Mortgage Co. v. Gross, 93 Ill. 483, 494 (1879)); Dryfoos v. Hostetter, 268 Md. 396, 404, 302 A.2d 28, 32-33 (1973). In 1997, the General Assemb ly directed the New Board to take actions necessary to [i]mprove the status of schools that are subject to a State reconstitutio n notice. § 4-309(d)(15) of the Education Article. In 1999 the General Assembly passed legislation regarding stipends for classroom teachers and, in doing so, distinguished between a local school board as an employer and a private employer of a teacher in a reconstituted school. 6 Section 6-306(b)(4) mandates that a classroom teacher holding 6 Section 6-306 of the Education Article provides: § 6-306. County grants for national certification. (a) Definition. - In this section, county grant for national certification means an annual grant distributed to a teacher certified by the National Board for Professional Teaching Standards established: (1) Outside of the collective bargaining process; or (2) As part of a collective bargaining agreement with the local employee organization. (b) State budgetary funding. - (1) For fiscal year 2000 and each subsequent fiscal year, the Governor shall include in each year s operating budget funding for stipends and bonuses provided in this subsection. (2) A classroom teacher who holds a standard professional certificate or an (continued...) -11an advanced professional certificate, who teaches in a public school identified by the State Board as a reconstitution school, a reconstitution -eligible school, or a challenge school, shall receive a stipend from the State in the amount of $2,000 for each year that the teacher performs satisfactorily in the classroo m. This language is in contrast to subsection (b)(2) that authorizes a stipend from the State for a classroom teacher who is employed by a [local] board and who holds a certificate issued by the National Board for Professional Teaching Standa rds. The General Assemb ly enacted legislation in 2000 protecting the pension rights of teachers previously employed by the local boards, working for a third party contractor operating a school under the reconstitution regulations.7 The statutory 6 (...continued) advanced professional certificate who is employed by a county board and who holds a certificate issued by the National Board for Professional Teaching Standards shall receive a stipend from the State in an amount equal to the county grant for national certification, up to a maximum of $2,000 per qualified teacher. *** (4) A classroom teacher who holds an advanced professional certificate and teaches in a public school identified by the State Board as a reconstitution school, a reconstitution-eligible school, or a challenge school shall receive a stipend from the State in the amount of $2,000 for each year that the teacher performs satisfactorily in the classroom. 7 Code (1993, 1997 Repl. Vol, 2000 Supp.), § 22-216 of the State Personnel and Pensions Article provides: § 22-216. Employment by private contractors. (a) Applicability of section. - This section applies to an individual who is: (1) a member of the Teachers Retirement System; (2) an employee of the New Baltimore City Board of School Commissioners or another county board of education; and (3) hired by a third party contractor to work in a school that is (continued...) -12- 7 (...continued) reconstituted by order of Maryland State Board of Education. (b) Withdrawal of accumulated contributions. - An individual who is hired by a third party contractor may withdraw the member s accumulated contributions, within the meaning of § 20-101(b) of this article, at any time while the individual is employed by the third party contractor to work in a school that is reconstituted by order of the Maryland State Board of Education. (c) Subsequent employment by New Baltimore City Board or other county board of education. - An individual who is hired by a third party contractor and subsequently becomes employed by the New Baltimore City Board of School Commissioners or another county board of education at any time while the order of reconstitution is in effect and on termination of the contract with the third party contractor: (1) is not subject to the provisions of § 22-217 of this subtitle; (2) shall be reinstated as a member of the Teachers Retirement System; (3) shall be entitled to restoration of any service credit to which the individual was entitled before employment by the third party contractor whether or not the individual was vested; and (4) shall redeposit any of the amounts withdrawn under subsection (b) of this section with regular interest to the date of redeposit or, on retirement, the individual s retirement allowance shall be reduced by the actuarial equivalent of the accumulated contributions withdrawn with regular interest to the date of retirement. (d) Purchase of service credit - Conditions. - Except as provided in subsection (e) of this section, at any time before retirement, an individual may purchase service credit for a period of employment by a third party contractor to work in a school that is reconstituted by order of the Maryland State Board of Education if the individual: (1) completes a claim for the service credit and files it with the Board of Trustees on a form that the Board of Trustees provides; and (2) pays to the Board of Trustees in a single payment the member contributions the individual would have made for the period of employment for which the service credit is being purchased plus regular interest to the date of payment. (e) Same - 5 year limit. - An individual may not purchase more than 5 years of service credit for the period of employment by a third party contractor to (continued...) -13provisions specifically reference an emp loye e of the New Baltimore City Board of School Commissione rs or another county board of education who is hired by a thirdparty contractor to work in a school that is reconstituted by order of the Maryland State Board of Educ ation. § 22-216(a). The statute authorizes public school employees, whether vested or not in the retirement system, who are hired by a private contractor operating a school under state reconstitution, to withdraw their accumulated retirement or pension benefits without pen alty, to receive service credit for the time employed with the private contractor, and to purchase up to five years of service credit at the employee rate for the period of employment with a third party contractor in a reconstituted school. The 1997, 1999 and 2000 legislation demonstrates the General Assembly s awareness and approval that the State Board would be entering into contracts with private vendors in accordance with the reconstitution regulations. The statutory language directly references schools subject to a State reconstitution notice in addition to those schools identified by the State Board as a reconstitution school, reconstitution -eligible school, or a challenge schoo l. The language distinguishes between teachers employed by a [local] board and those who teach in a public school identified by the State Board as a reconstitution school for purposes of stipends and bonuses. The legislation affirmative ly makes provisions to protect the pension 7 (...continued) work in a school that is reconstituted by order of the Maryland State Board of Education. -14rights of school teachers employed by third party contractors. Given the language incorporating the reconstitution regulations and protecting the retirement benefits of those working in reconstituted schools, it is clear that the General Assemb ly recognized that the employer of a teacher in a public school under State reconstit ution may be a private employer, and, thus, it is reasonab le to infer legislative ratification of the regulations. As the Circuit Court correctly observed, the General Assemb ly has considered and . . . countenanced and condoned the [Board s] authority to enter into a third party contrac t. The General Assemb ly has clearly ratified the reconstitution regulations. IV. The Union in its brief before this Court, for the first time in this case, argues that the challenged regulations and the Edison contr act violate Article VIII, § 1, of the Maryland Constitution. 8 The Union, in making such constitutional argumen t, chiefly relies upon St. Mary s Industrial School for Boys v. Brown, 45 Md. 310 (1876). As earlier mentioned, the Union in its Circuit Court complaint emphasized that the claims in this action are solely a matter of statutory law. In its complain t, crossmotion for summary judgmen t, and memoranda filed in the Circuit Court, the Unio n 8 Article VIII, § 1, provides as follows: Section 1. General Assembly to establish system of free public schools. The General Assembly, at its First Session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance. -15never raised a constitutional issue. The Circuit Court s memorandum and its declaratory judgment made no mention of a constitutional issue, as the Union had raised no such issue. The Union s certiorari petition did not present a constitutional issue. Maryland Rule 8-131(a) provides as follows: Rule 8-131. Scope of r ev ie w . (a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordin arily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appea l. Since the constitutional issue raised in the Union s brief was not raised in the trial court, we shall decline to address it. It is particularly important not to address a constitutional issue not raised in the trial court in light of the principle that a court will not unneces sarily decide a constitutional question. Winder v. State, 362 Md. 275, 306307 n.18, 765 A.2d 97, 114 n.18 (2001); Dorsey and Craft v. State, 356 Md. 324, 342, 739 A.2d 41, 51 (1999). Moreover, the case of St. Mary s Industrial School for Boys v. Brown, supra, relied on by the Union, did not involve any holding under the Maryland Constitution. The Court in that case simply held that a tax and an appropriation, by Baltimore City, giving funds to certain private organizations, were not authorized by the City Charter -16or by any enactment of the General Ass emb ly. The challenged action in the case at bar was ratified and authorized by the General Ass emb ly. JUDGMENT AFFIRMED, WITH COSTS. IN THE COURT OF APPEALS OF MARYLAND No. 120 September Term, 2000 ____________________________________________ __ BALTIMORE TEACHERS UNION, AMERICAN FEDERATION OF TEACHERS, LOCAL 340 AFLCIO v. MARYLAND STATE BOARD OF EDUCATION, et. al. ____________________________________________ __ Bell, C.J. *Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. Concurring and Dissenting Opinion by Bell, C.J. Filed: January 16, 2004 *Eldridge, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. I agree with the majority that the Baltimore Teachers Union, American Federation of Teachers, Local 340, AFL-CIO, the plaintiff in the action for declaratory judgment and injunctive relief it filed in the Circuit Court for Baltimore City and the appellant in this Court, has standing to sue the Maryland State Department of Education, one of the appellees, in order to challenge both the Department s statutory authority to contract with a wholly private concern, to which it ceded virtually complete auto nom y, for the operation and management of three Baltimore City public schools and the validity of the regulations the Department promulgated to make contractual arrangement possib le. the challenged Clea rly, the holding that the appellant has demonstrate d its standing by showing how the regulations and the contract disturbed minimum labor standards for the bargaining unit, ___ Md. ___, ___, ___ A. 2d ___, ___ (2003)[sli p op. at 7-8], and diminished its status as the representative of public emplo yees, id. at ___, ___ A. 2d at ___ [slip op. at 8], is correct. I do not agree with the majority s decision on the merits, however. On this appeal, the appellant asks the Court to answer a single question: When the M aryland State Board of Education exercises its visitatorial power to reconstitute a public school, may it compel a local board of education to fully privatize the school, so that the school s curriculum, administration and faculty members are selected, employed, and controlled, not by a local board, but instead by a for profit business corporation whose stock is pub liclytraded? Rather than answer that question, the majority holds that, whether originally authorized or not, the General Ass emb ly, by virtue of the enactment of legislation subsequent to the promulgation of the challenged regulations and the execution of the challenged contract, has ratified both the regulations and the operations and management contract with the private concern. More part icula rly, it says: Even if the State Board lacked the statutory authority to promulg ate the reconsti tution regulations in 1993, subsequent enactmen ts by the General Assemb ly remove any doubt as to the statutory authorization for the State Board s actions. The General Assemb ly has passed legislation which confirms and ratifies the State Board s power to issue the reconstitution regulations and to enter into third party contracts pursuant to those regulations. The legislation makes clear that the General Assemb ly knew of and approved of the State board s exercise of its statutory authority to contract with Edison [Schools, Inc., the private concern] for the operation and management of the three public elementary schoo ls. ___ Md. at ___, ___A. 2d at ___ [slip op. at 8-9]. The legislation to which the majority refers are Laws of 1997, ch. 105, § 1, codified at Maryland Code (1978, 1999 Replacement Volume) § 4-309, and, in particular, subsection (d) (15) of the Education A r t i c l e ; 1 L 1 a w s o f Maryland Code (1978, 1999_ Replacement Volume) § 4-309 (d) (15), now § 4-309 (c) (17) of the Education Article, details one of the actions the General Assembly required the master plan it mandated the New Baltimore City Board of School Commissioners to develop as necessary to achieve educational reform in the Baltimore City public schools, the purpose of the legislation. It p rovides: Im prove the s tatus of sch ools that are su bject to a State reconstitution notice. None of the other 15 actions mentions, or relates, to reconstitution: (1) Complete incorporation of the key recommendations of the 1992 T owers Perrin/Cresap Manag ement Stu dy report and th e 1994 an d 1995 M GT of America , Inc. reports; (2) Incorpora te the requirements of the long-term compliance plan and goals in Vaughn G. v. Amprey, et al, case no. MJG-84-1911, United States District Court for the District of Maryland, c oncerning the delivery of e ducation se rvices to stud ents with d isabilities; (3) Provide for the reorganization of the central office of the Baltimore City Public School System; (4) Provide effective curriculum and instructional programs for the Baltimore City Public School S ystem, including the develo pment an d dissemin ation of: (i) A citywide c urriculum f ramew ork reflectin g State learning outcomes, including Maryland School Performance Program standards, and an appropriate developmental sequenc e for stude nts; (ii) An effective program of professional development and training for the staff of the Baltimore City Public School System including de velopme nt and imp lementation of a perform ance-base d system-wid e personn el evaluation system for teachers, principals and administrators; and (iii) An effective educational program for meeting the needs of students at risk of education al failure; (5) Provide effective management information systems for the Baltimore City Public (continued...) -2- 1999, ch. 600, § 1, codified at § 6-306 of the Education Article, and, in particular, section (a) and subsections (b) (2) and (4); 2 and Laws of 2000, ch. 688, codified at 1 (...continued) School System, includ ing the cap acity to accurately trac k student en rollment, attendance, academ ic records, discipline records, and compliance with the provisions of the federal Individuals with Disa bilities Educa tion Act; (6) Provide an effective financial management and budgeting system for the Ba ltimore City Public School System to ensure the maximization and appropriate utilization of all available resources; (7) Provid e effective staff hiring a nd assignm ent; (8) Develop an effective system of providing instructional materials and support services; (9) Dev elop mod el school ref orm initiatives ; (10) Prov ide approp riate method s for studen t assessmen t and reme diation; (11) Develop and implement a student code of discipline as required in § 7-306 of this article; (12) Develop an effective system for planning and providing for construction, repair, and maintenance services for school buildings which shall include a review by the Board to assure the most efficient and productive use of the system's resources, including examination and reduction of the cost of underutilized schools and proposals for school mergers or closures if ap propriate; (13) Incre ase parenta l participation; (14) Include m easurable outcomes and time lines for the implementation and evaluation of the reforms made in accordance with the master plan and the reporting of this information to the Governor, the Mayor of Baltimore City, and, in accordance with § 2-1246 o f the State Govern ment Ar ticle, the Gen eral Assem bly; * * * * (16) Develop an effective system of teacher input regarding implementation of school reform initiatives, that includes active and ongoing consultation with classroom teachers at the elem entary, mi ddle, an d high s chool le vels. 2 Section 6-306 of the Education Article, as relevant, provides: (a) Definition. -- In this section, "county grant for national certification" means an annual grant distributed to a teacher certified by the National Board for Professional Teaching Standard s established : (1) Outside of the co llective bargaining process; or (2) As part of a collective bargaining agreement with the local employee organi zation. (b) State budgetary funding. -- (1) For fiscal year 2000 and each subsequent fiscal year, the Governor shall include in each year's operating budget funding for the stipends and bonuses provid ed in this subsec tion. (2) A classroom teacher who holds a standard professional certificate or an advanced profession al certificate who is employed by a county board and who holds a certificate issued by the National Bo ard for Professional Teachin g Standar ds shall (continued...) -3- Maryland Code (1993, 1997 Replacement Volume, 2000 Cum. Supp .) § 22-216 of the State Personnel and Pensions Article.3 2 (...continued) receive a stipend from the State in an amount equal to the county grant for national certifica tion, up to a ma ximum of $2,0 00 per q ualified teache r. * * * * (4) A classroom teacher who holds an advanced professional certificate and teaches in a public school iden tified by th e State B oard as a recon stitution s chool, a reconstitution -eligible school, or a challenge school shall receive a stipend from the State in the amou nt of $2,00 0 for each year that the teach er perform s satisfactorily in the classroom. 3 Maryland Code (1993, 1997 Replacement Volume, 2000 Cum. Supp.) § 22-216 of the State Personnel and Pensions Article, titled Emp loyment by priva te contractors, provides: (a) App licability of section. -- T his section ap plies to an ind ividual wh o is: (1) a mem ber of the T eachers' Re tirement System ; (2) an emplo yee of the N ew Baltim ore City Boa rd of Sch ool Com missioners or another county board of education; and (3) hired by a third party contractor to work in a school that is reconstituted by order o f the M aryland S tate Bo ard of E ducatio n. (b) Withdrawal of accumulated contributions. -- An indiv idual who is hired by a third p arty contractor may withdraw the member's accumulated contributions, within the meaning of § 20-101(b ) of this article, at a ny time while the individu al is emplo yed by the third party contractor to work in a school that is reconstituted by order of the Maryland State Board of Educ ation. (c) Subsequent employment by New Baltimore City Board or other county board of education. -- An individual who is hired by a third party con tractor and su bsequen tly becomes employed b y the New Baltimore City Board of School Commissioners or another county board of education at any time while the order of reconstitution is in effect and on termination of the con tract with the th ird party contrac tor: (1) is not sub ject to the prov isions of § 2 2-217 of this subtitle; (2) shall be r einstated as a membe r of the Te achers' Retire ment System ; (3) shall be entitled to restoration of any service credit to which the individual was entitled before employme nt by the third party contractor whether or n ot the individual was vested; and (4) shall redepo sit any of the amoun ts withdraw n under su bsection (b ) of this section with regular interest to the date of redeposit or, on retirement, the individu al's retirement allowance shall be reduced by the actuarial equivalent of the accumulated contribution s withdraw n with reg ular interest to th e date of re tirement. (d) Purchase of service credit -- Conditions. -- Except as provided in subsection (e) of this section, at any time before retirement, an individual may purchase service credit for a period of employment by a third party contractor to work in a school that is reconstituted by order (continued...) -4- Reconstitution of public schools is treated in Title 13A, Subtitle 01, Chapter 04 of the Code of Maryland Regulations ( COM AR ). COMAR 13A.01.04.02B (8) defines reconstitution as (a) ...changing one or more of a school s: (i) Administration; (ii) Staff; (iii) Organization; or (iv) Instructional program. (b) [and] may include contracting with a third party as provided in Regulation .07 of this chapte r. The regulations provide for both local, see, COMAR 13A.01.04.07, and state, see COMAR 13A.01.04.08, reconstitution. Pursuant to the former, the local board of education is charged with working with each reconstitution -eligible school and developing and submitting a reconstitution proposal that is school-spe cific, to the State Board for approval or approval with conditions. COMAR 13A.01.04.07C (6) and (7). State reconstitution occurs when the State Board is charged with determin[ing] the program and management reconstitution of the schoo l. Regulation .08B also addresses how that program and management reconstitution may be handled. It provides: B. Contract With Third Part y. (1) The State Board of Education may order the school to be operated 3 (...continued) of the M aryland State B oard of E ducation if the individu al: (1) completes a claim for the service credit and files it with the Board of Trustees on a form that the Board of Trustees provides; and (2) pays to the Board of Trustees in a single payment the member contributions the individual would have made for the period of employment for which se rvice credit is being purcha sed plu s regula r interest t o the da te of pa yment. (e) Same -- 5 year limit. -- An individual may not purchase more than 5 years of service credit for the period of employment by a third party contractor to work in a school that is reconstituted by order of the Maryland State Board of Education. -5- under contract with a third party pursuant to conditions established by the State Board of Education. (2) The State Board of Education, the local board of education, and the third-party contractor shall be parties to the contract. (3) The contract may be for an initial term not to exceed 5 years, and may be subject to renewal upon review and approval by the State Board of Education. (4) The contract shall include specific benchmarks by which the third-party contractor shall be measured. The State Board of Education shall monitor the con tract or's performance. (5) The local school system shall pay to the third-party contractor for the term of the contract the higher of an amount equal to the average system-wide per pupil expenditure times the full time equivalent enrollment for kindergarten and higher grades in the State reconstituted school as of September 30, or the total actual cost of operating the school for the previous school year. Adjustm ents in the average per pupil expenditure calculation may be made for certain targeted funding programs in accordance with the legal requireme nts for those programs. In addition the contractor will receive funds equal to the amount of support the school system received in the previous school year for pre-kindergarten services at the identified schoo l. Third party, referred to in Regulations .02B (8) and .08B, is defined in Regulation .02B (10) to mean an entit y, public or private, who is not managing the school at the time of a reconstitution decisio n. The Maryland Constit ution requires the General Assemb ly to establish throughout the State a thorough and efficient System of Free Public Schools; and [to] provide by taxation, or otherwise, for their mainte nance . Article VIII, § 1. The provision of that system is a two-tiered endeavor, shared by the State Board, the head of the State Department of Education and a principal department of State governm ent, § § 2-101 and 2-102 of the Education Article, and the twenty four local boards, including Baltimore City, of education. The State Board s powers and authority are enumerated in § 2-205 of the Education Article. They include determ ining the elementary and -6- secondary educational policies of the State, subsection (b) (1); causing implementation of provisions of the Education Article that are within its jurisdiction, subsection (b) (2); enforcing the provisions of the Education Article within its jurisdiction and its bylaws, rules, and regulations, through legal proceedings where nece ssar y, subsection (d); finally deciding controversies and disputes concerning the meaning of the Education Article and the bylaws, rules, and regulations adopted pursuant to it, subsection (e); exercising, through the State Superinten dent, general control and supervision over the public schools and educational interests of this State, subsection (g); establishing basic policy and guidelines for the program of instruction for the public schools, subsection (h)(1); investigating, employing additional expert assistance for the purpose, the educational needs of this State and methods to improve educational conditions, subsection (i) (1) (i). In addition, the State Board is required to adopt bylaws, rules, and regulations, applicable to all jurisdictions and having the force of law when adopted and publish ed, for the administration of the public schools, § 2-205 (c), as well as for the approval and accreditati on of all public schoo ls. § 2-206 (c). On the other hand, the local boards, including the New School Board of Baltimore City, has some responsibilities for public education in their jurisdictions. Those responsibilities are enumera ted, in the case of county boards, in § 4-108 of the Education Article: Each county board shall: (1) To the best of its ability carry out the applicable provisions of this article and the bylaws, rules, regulations, and policies of the State Board; (2) Maintain throughout its county a reasonably uniform system of public -7- schools that is designed to provide quality education and equal educational opportun ity for all children; (3) Subject to this article and to the applicable bylaws, rules, and regulations of the State Board, determine, with the advice of the county superinten dent, the educational policies of the county school system; and (4) Adopt, cod ify, and make available to the public bylaws, rules, and regulations not inconsistent with State law, for the conduct and management of the county public schoo ls. Section 4-303, applicable to the New School Board, provides, as relevant: (b) Purpo se.- The purpose of the Board is to: (1) Raise the level of academic achievement of the students in the Baltimore City Public School System; and (2) Improve the management and administration of the public school system in Baltimore City. (c) Academ ic achiev emen t.- The Board shall be held accounta ble for the academ ic achievement of the public school students in Baltimore City. (d) Powers and duties. (1) The Board shall have the authority and be responsible for all functions relating to the Baltimore City Public School System. (2) Notwithstanding any provision of local law governing the Baltimore City Public School System, the Board may adopt rules and regulations and prescribe policies and procedures for the management, maintenance, operation, and control of the Baltimore City Public School System. (3) The Board shall assume responsibility for all of the functions formerly performed by the Superintendent of Public Instruction of Baltimore City and the Board of School Commiss ioners of Baltimore City. To be sure, the State Board has visitatorial power over the local boards, Wiley v. Board of County Sch. Com rs, 51 Md. 401, 405-06 (1879) (after noting the State Board s duty with regard to the public education law, to make by-laws for the administration of the public school system, and to suspend or remove examiners or teachers, characterizing the provision requiring it to explain the true intent and -8- meaning of the law, and ... decide, without expense to the parties concerned, all controversies and disputes that may arise under it, as a visitatorial power of the most comprehensive character. ), which we have held, gives it the last word on any matter concerning educational policy or the administration of the system of public educa tion. Wilson v. Board of Educ., 234 Md. 561, 565, 200 A.2d 67, 69 (1964). In Board of Education v. Waeldner, 298 M d. 354, 360, 470 A.2d 332, 335 (1984), we referred to the State Board s general control and supervision over the public schools and educational interests, its authority to determine the elementary and secondary educational policies, its obligation to adopt bylaws, rules, and regulations and its responsibility for the interpreta tion of the public education law and the resolution of disputes arising under it to explain the extent of the visitatorial power. Nevertheless, we have described the visitatorial power as one of supervision, regulation and directio n. Zeitschel v. Board of Education of Carroll County , 274 Md. 69, 80-81, 332 A.2d 906, 912 (1975), citing Peter v. Prettyman, 62 Md. 566, 576 (1884), a case involving the visitatorial power of circuit court judges . More part icula rly, we said: W e think it 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 Boa rd's visitatorial power authorizes it to correct all abuses of authority and to nullify all irregular procee dings. Id. at 81, 332 A.2d at 913. W e have also said: 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. -9- 178, 166 A. 732 (1932). Neither can the State Board exercise the visitatorial power frau dule ntly, 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 reasonab le 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. Rockh ill, Inc., 205 Md. 226, 233, 107 A. 2d 93, 97 (1954). W e 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 gradua tes. Halsey v. Board of Education, 273 Md. 566, 572-573, 331 A. 2d 306, 310 (1975). None of the legislation on which the majority relies for ratification expressly and directly does so. To be sure, each mentions reconstitution in some context, § 4-309 (d) (15) referring to schools that are subject to a State reconstitution notice; § 6-306 (b) (4) mentioning a reconstitution school, a reconstituti on-elig ible school; and SPP § 22-216 (a) referencing an individual hired by a third party contractor to work in a school that is reconstituted by order of Maryland State Board of Education, not one of the three statutes expressly ratifies, or even refers specifically to, the COMAR regulations or the reconstitution contract with the private concern. Nor does any one of them define what is meant by reconstitution. According to COMAR 13A.01.04.02B (8), reconstitution could occur if only one of the four compon ents of a public school operation has been taken over and the third party is involved only with -10- that component and, therefore, some control is retained by the local board. And the statutes do not distinguish between local reconstitution and state reconstitution. That is important because, if the former, the shared relationship is not disrupted, because the local board would retain the responsibility for the local school s performance. In my view, these three fleeting and imprecise references are simply insufficient to constitute legislative ratification of the State Board s promulgation of regulatio ns authorizing reconstitution, a process of recent vintage and inconsistent with the two tiered approach to the provision and governance of public education or of the reconstitution contract at issue. As the appellant points out, the public education law is comprehensive and a part of a statutory scheme. Given that scheme and the responsib ilities it places on local boards and in this case, on the New Board, for reconstitution as proposed in this case to occur, it submits and I agree, would require, in effect, repeal or amendment of several sections of the Education Article, i. e. § 4-101 (a) ( Educational matters that affect the counties shall be under the control of a county board of education in each county ); § 4-303 (d) ( The Board shall have authority and be responsible for all functions relating to the Baltimore City Public School System ); § 4-103 (a) ( [E]ach county board shall: (1) Appoint all principals, teachers, and other certificated and noncertificated personne l; and (2) Set their salaries ); § 4-311 (a) ( the [N]ew Board shall establish a personnel system governing certificated and non[]certificated emplo yees ); § 6-201 (a) ( The county board shall employ individ uals in the positions that the county board considers necessary for the operation of public schools in the county ); § 6-201 (b) (2) ( [T}he county superintendent shall (i) Assign [personn el] to their positions in the schools; (ii) Transfer [personn el] as the needs of the schools require; (iii) Recommend them for promotion; and (iv) Suspend them for cause and recommend them for dismissal in accordance with § 6-202 of this article ); § 6-402 (d) (defining public school employer as the county board of education or the New Baltimore City Board of School Commissione rs); § 4-123 (e) (mandating that if a county board enters into an agreement for the cooperative or joint administration of a program it does not relieve any county board or other participant of any obligation or responsibility imposed on it by law ). -11- If the majority is correct, the public education statutory scheme can be disrupted and undermined, not by specific legislative direction, i.e. legislation that, by its express terms, is intended to do so, but by implication, on the basis of legislation that repeals or amends those parts of the Public Education Law that gives local boards a role to play in the governance of the public schools within their jurisdiction. It is well settled that repeals by implication are not favored. Ronald Fishkind Realty v. Sampson, 306 M d 269, 286, 508 A2d 478, 487 (1986); Dep 't of Nat. Resources v. France, 277 Md. 432, 460, 357 A.2d 78 (1976). In State v. Harris , 327 Md. 32, 39, 607 A. 2d 552, 555-5 6 (1992), this Court observed: [A] repeal by implication does not occur unless the language of the later statute plainly shows that the legislature intended to repeal the earlier statute. Montgom ery County v. Bigelow, 196 Md. 413, 423, 77 A.2d 164 (1950); Pressman v. Elgin, 187 Md. 446, 450, 50 A.2d 560 (1947). Gen erall y, therefore, a later statute will not be held to repeal an earlier statute by implication unless there is some express reference to the earlier statute. Gannon & Son v. Emerson, 291 Md. 443, 455, 435 A.2d 449 (1981); Kirkwood v. Provident Savings Bank, 205 Md. 48, 55, 106 A.2d 103 (1954); Thomas v. State, 173 Md. 676, 681, 197 A. 296 (1938 ). In any event, as the majority acknowledges, in order for legislative ratification to be viable, the legislative body must have been empowered prospectiv ely to authorize the act it would adopt and validate in retrospect. Washington Nat l Arena v. Prince George s Co. 287 Md. 38, 45, 410 A. 2d 1060, 1064, cert. denied, 449 U. S. 834, 101 S. Ct. 106, 66 L. Ed. 40 (1980); Co. Counc il v. Carl M . Freeman Assoc., 281 Md. 70, 79, 376 A.2d 860, 865 (1977). I am not convinced that the State Board was authorized to promulgate the regulations at issue or that the General Assemb ly could have authorized it to do so without providing some guidelines to inform its decision in that regard. After all, it is the General Ass emb ly, and not the State Board, that is charged -12- with the establishment and maintenance of a thorough and efficient system of public schools in the State. Md. Const. Art. VIII § 1. In the discharge of that resp onsi bility, the General Assemb ly enacted the statutory scheme under which the State s public schools presently operate. To the State Board the Legislature gave substantial auth ority, general supervision over the system, even the last word on matters of educational policy and the administration of the system. But it also gave substantial responsibility to the local boards. The regulations at issue are significantly at odds with the statutory scheme established by the Legislature. So much so that, in my view, they are more appropriate ly the subject of legislation and, indeed, constituted law making, and, so, were beyo nd the authority of the State Board to promulgate. The State Board is an administrative agen cy, a part of the executive branch of governm ent. The Legislature, without, at the least, providing safeguards and standards to direct its exercise, may not delegate the power to make laws to an administrative agen cy, an arm of the executive branch of governm ent. Department of Transportation v. Armacost, 311 Md. 64, 80, 532 A.2d 1056, 1063 (1987); Pressman v. Barnes, 209 Md. 544, 555, 121 A.2d 816, 822 (1955). I addressed this issue at great length in dissent in Lussier v. Md. Racing Commission, 343 Md. 681, 701-720, 684 A.2d 804, 813-823 (1996). For the reasons there expressed, I believe the State Board inapprop riately promulgated the regulations and that the General Ass emb ly, because it gave no advance guidance, did not ratify, and, indeed could not have ratified, the State Board s actions in that regard. Therefore, and for the foregoing reasons, I dissent. -13- -14-

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