Court of Appeals: State whistleblower law does not apply to public school teachers

Maryland public school teachers are not protected by the state’s Whistleblower Protection Law because their employer is the county education board and not the state, the Court of Appeals held Thursday.

The decision affirms the Court of Special Appeals dismissal of a lawsuit brought by Brian Donlon, a social studies teacher at Richard Montgomery High School. Donlon alleged that, after he told media outlets in 2012 he discovered the Rockville school was inflating its Advanced Placement statistics, his superiors assigned him to teach courses he did not feel qualified to teach and made him a floating teacher who had to travel from classroom to classroom, according to the Court of Appeals opinion.

Donlon brought his whistleblower complaint to the state Department of Budget and Management in December 2014 but the agency ultimately dismissed the complaint after determining Donlon lacked jurisdiction because he was not a state employee.

On an administrative appeal, however, a Montgomery County Circuit Court judge ruled Donlon was a state employee and therefore protected by the whistleblower law.

The Court of Appeals on Thursday described county boards of education as a “hybrid” entity that possesses characteristics of both state and local branches. But Judge Glenn T. Harrell Jr., writing for the unanimous court, noted the county boards have “exclusive responsibilities over personnel matters.”

Eric C. Brousaides, a lawyer for Montgomery County Public Schools, praised the court’s conclusion.

“It is not inconsistent for a school system to argue that the (Board of Education) is a state agency for some purposes, like 11th Amendment immunity, and a county agency for other purposes,” said Brousaides of Carney, Kelehan, Bresler, Bennett & Scherr LLP in Columbia.

But the “sharpest blade cutting against Donlon’s claim” was the Public School Employee Whistleblower Protection Act, which went into effect in October, according to Harrell, a senior judge sitting by special assignment. The new statute excludes state employees from its definition of “public school employee,” he wrote. If the court held county school boards were state agents, he added, then county school boards would not be protected under the new statute.

“We do not believe the two statutes can be read harmoniously,” Harrell wrote. “To accept Donlon’s urging would render nugatory portions of the PSEWPA.”

Donlon’s attorney referred to the length of Harrell’s decision to show the complexity of how the state whistleblower law was applied.

“It seems a 44-page and scholarly opinion from the Court of Appeals was necessary to explain how Brian Donlon was not clearly covered by the Whistleblower Law as a public school teacher, and to allow the Montgomery County School Board the ability to take inconsistent positions in court about whether it is or is not a state agency,” said Adam Augustine Carter, principal at The Employment Law Group in Washington, in an emailed statement.

Carter added that his client “is gratified” about the role the case played in making sure there’s a whistleblower statute for public school employees.

The case is Brian Donlon v. Montgomery County Public Schools, No. 68, September Term 2017.