Libit v. Baltimore City Board of School Commissioners , 226 Md. App. 578 ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2539
September Term, 2014
BAYANI LIBIT
v.
BALTIMORE CITY BOARD OF SCHOOL
COMMISSIONERS
Wright,
Kehoe,
Berger,
JJ.
Opinion by Berger, J.
Filed: January 29, 2016
This appeal arises from the decision of the Maryland State Board of Education (the
“State Board”) affirming the decision of the appellee, the Baltimore City Board of School
Commissioners (the “Commissioners”) to uphold the decision of the Chief Executive Officer
for the Baltimore City Schools (the “CEO”) to terminate appellant, Bayani Libit (“Libit”).
On appeal, Libit presents three questions for our review,1 which we consolidate and
rephrase as the following question:
Whether the State Board erred by affirming the CEO’s
termination of a teacher, who had not signed a State-mandated
teacher’s contract, and who had been employed beyond his
probationary period.
For the reasons set forth below, we shall reverse the judgment of the Circuit Court for
Baltimore City.
1
The issues, as presented by Libit, are:
1. Did the State Board err in its Decision to affirm the
termination of Bayani Libit when that Decision was
premised on multiple errors of law, including the
findings that Mr. Libit was not employed under the terms
of the Regular Teacher’s Contract and did not have
tenure at the time of his termination?
2. Did the State Board err in its Decision to affirm the
termination of Bayani Libit when the process through
which termination was effectuated involved an
unconstitutional and illegal denial of Mr. Libit’s due
process rights?
3. Did the State Board err in its Decision to affirm the
termination of Bayani Libit when that Decision was not
supported by substantial evidence in the record and was
arbitrary, unreasonable, and unlawful?
FACTUAL AND PROCEDURAL BACKGROUND
Libit is a citizen of the Phillippines, and was employed as a teacher in the Baltimore
City Public School System from 2005 until 2013. In 2005, when Libit was hired, he was
granted a visa. In 2008, prior to the expiration of his original visa, Libit obtained an H-1B
visa2 that was conditioned on his continued employment. Libit’s initial H-1B visa was valid
between September 26, 2008, and June 27, 2011. Upon the expiration of his H-1B visa in
2011, Libit renewed his visa for a second three-year period. Libit’s second H-1B visa was
scheduled to expire on June 26, 2014. When Libit was hired in 2005, he held a conditional
teaching certificate that was valid for two years. Thereafter, on July 1, 2006, Libit was
awarded an Advanced Professional Certificate that was renewed in 2011, and is scheduled
to expire in June of 2016.
On March 22, 2013, Libit was a party to an individual consultation with the school
system’s human capital staff where he was informed that he would not be retained for the
2013-2014 school year.3 Subsequently, Libit received numerous communications reiterating
that he was not being retained for the following school year, and providing him information
regarding how to arrange travel back to the Philippines. Thereafter, Libit initiated the appeal
2
An H-1B visa may be granted under the authority of 8 U.S.C.
§ 1101(a)(15)(H)(i)(b), and permits an alien to be admitted into the United States “to
perform services . . . in a specialty occupation.”
3
Employees with the school system’s human capital office are delegates of the CEO.
ED § 4-304(b)(4)(I). Unlike Maryland’s counties, where a county superintendent exercises
the school board’s executive functions, in Baltimore City the CEO “is the executive officer,
secretary, and treasurer of the Board of School Commissioners.” ED § 4-102.
2
process outlined in Md. Code (1978, 2014 Repl. Vol.) § 4-205(c) of the Education Article
(“ED”).
Libit’s appeal was argued before a hearing examiner who rendered her decision on
November 28, 2013. The hearing examiner observed that it was the school system’s policy
“that continued employment for foreign workers employed pursuant to an H-1B visa have
satisfactory performance during their tenure with [the school system].” Additionally, the
hearing examiner found that in the two years prior to his termination, Libit had received
unsatisfactory performance evaluations.4 Furthermore, the hearing examiner determined that
because of Libit’s status as an H-1B visa holder, Libit was “subject to termination at any
time.” Accordingly, the hearing examiner recommended that “the Board affirm the CEO’s
decision to terminate [Libit] for misconduct . . . .”
On January 28, 2014, the Commissioners convened for a public board meeting. At
the board meeting, the Commissioners considered whether to adopt the recommendation of
4
The school systems assesses teacher performance by means of an annual evaluation.
The Commissioners maintain a scoring system that is used in a teacher’s evaluation. Under
the scoring system a teacher is deemed “proficient” if he or she scores between 86 and 100,
a teacher is deemed “satisfactory” if he or she scores between 70 and 85, and a teacher is
deemed “unsatisfactory” if he or she scores below 70. Libit received a score of 48 during
the 2011-2012 school year, and 36 during the 2012-2013 school year.
3
the hearing examiner and affirm Libit’s termination. Upon motion, the Commissioners
accepted the recommendation of the hearing officer in a five-to-three vote.5
Subsequently, Libit appealed the Commissioners’ decision to the State Board. In an
opinion dated June 27, 2014, the State Board affirmed Libit’s termination. The State Board
determined that Libit was not entitled to the procedural protections generally afforded to
teachers because “the due process protections of § 6-202 . . . presume[] a property interest
in the employment.” The State Board reasoned that Libit could not have a property interest
in his continued employment due to the finite nature of his visa. The State Board, therefore,
affirmed Libit’s termination.
Following the decision by the State Board, Libit filed a petition for judicial review
in the Circuit Court for Baltimore City. The circuit court found that Libit was not employed
under a contract that afforded him any pre-termination rights in any way different than those
held by an employee at-will. The circuit court further found that because Libit was an
at-will employee, he was not entitled to the pre-termination protections afforded under
5
At the public hearing on January 28, 2014, there was no discussion or debate as to
the substance of the hearing examiner’s recommendation. The Commissioners were advised
by counsel to limit public discussion to “how certain matters are viewed by the Hearing
Officer,” and not the facts of the underlying controversy. The Commissioners’ attorney
advised that it would be inappropriate to discuss the “name of the employee, the nature of
the allegations, [or] the recommendation of the Hearing Officer” at the public meeting.
Rather, these topics were considered to be more appropriate for discussion in a closed
session. Notwithstanding the attorney’s advice, the chairperson of the Commissioners, Dr.
Shanaysha Sauls, expressed that she had “vehement objections” to the hearing examiner’s
recommendation to affirm Libit’s termination.
4
ED § 6-202(a). The circuit court, therefore, affirmed Libit’s termination. This timely appeal
followed. Additional facts will be discussed as necessitated by the issues presented.
STANDARD OF REVIEW
“‘On appellate review of the decision of an administrative agency, this Court reviews
the agency’s decision, not the circuit court’s decision.’” Long Green Valley Ass’n v. Prigel
Family Creamery, 206 Md. App. 264, 274 (2012) (quoting Halici v. City of Gaithersburg,
180 Md. App. 238, 248 (2008)). Moreover:
“Our review of the agency’s factual findings entails only an
appraisal and evaluation of the agency’s fact finding and not an
independent decision on the evidence. This examination seeks
to find the substantiality of the evidence. That is to say, a
reviewing court . . . shall apply the substantial evidence test to
the final decisions of an administrative agency . . . In this
context, substantial evidence, as the test for reviewing factual
findings of administrative agencies, has been defined as such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Tomlinson v. BKL York LLC, 219 Md. App. 606, 614 (2014) (alterations omitted) (quoting
Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 568-69 (1998)). Furthermore,
we recognize that “the decisions of the State Board of Education are entitled to greater
deference than those of most other administrative agencies.” Patterson Park Pub. Charter
Sch., Inc. v. Balt. Teachers Union, 399 Md. 174, 197 (2007) (citing Bd. of Educ. of Talbot
Cnty. v. Heister, 392 Md. 140, 155 (2006)).
With respect to an agency’s legal conclusions, however, “judicial review is less
deferential . . . . [I]n a contested case, the APA permits the court, on judicial review, to
5
decide the correctness of the agency’s [legal] conclusions and to substitute the court’s
judgment for that of the agency’s.” Charles Cnty. Dept. of Soc. Servs. v. Vann, 382 Md.
286, 295 (2004). With these principles in mind, we defer to the State Board’s factual
findings so long as they are supported by substantial evidence. We will, however, review
the legal conclusions that are drawn therefrom de novo.
DISCUSSION
Libit contends that the State Board erred in concluding that the Commissioners were
not bound to comply with the procedure outlined in ED § 6-202(a). Further, Libit maintains
that the failure to comply with ED § 6-202(a) runs afoul of his procedural due process rights
afforded under the Fourteenth Amendment to the U.S. Constitution. Finally, Libit avers that
the decision to terminate him was unsupported by substantial evidence. The Commissioners
argue that Libit’s termination was proper because Libit was an at-will employee. As such,
the Commissioners assert that Libit was not entitled to the protections afforded under
ED § 6-202(a).
For the reasons that follow, we conclude that the Commissioners were required to
abide by the procedural requirements set forth in ED § 6-202(a), and the Commissioners
failed to do so with respect to Libit’s termination. At the outset, we emphasize that, in our
view, this case presents a narrow issue of statutory construction. Accordingly, we do not
address the scope of the contractual agreement between the parties, whether Libit was denied
due process, or whether there would be substantial evidence to support Libit’s termination.
6
We merely hold that ED § 6-202(a) affords “teachers” certain pre-termination protections,
Libit was a “teacher” protected by that statute, and that the Commissioners failed to abide
by the procedures set forth in that statute.
I. Terminating Teachers Under Maryland Law
Libit contends that his termination was “illegal under State Law.” Under
ED § 6-202(a)(1), “[o]n the recommendation of the county superintendent, a county board
may suspend or dismiss a teacher . . . .”6 ED § 6-202(a)(1). Additionally, “[b]efore
removing an individual, the county board shall send the individual a copy of the charges
against him and give him an opportunity within 10 days to request a hearing.”
ED § 6-202(a)(2) (emphasis added). If requested, the hearing shall take place promptly, but
not before 10 days after notice of the hearing. ED § 6-202(a)(3).
The procedure set forth in ED § 6-202 applies to “teacher[s], principal[s],
supervisor[s], assistant superintendent[s], [and] other professional assistant[s].”
ED § 6-202(a)(1). Critically, the provisions of ED § 6-202(a) outline a procedure whereby
6
Section 6-202 applies to decisions by the Commissioners to act upon the
recommendation of the CEO, the same way that it applies to decisions of a county board to
act upon the recommendation of a county superintendent. We observe that Title Six
purports to govern matters relating to “teachers and other personnel” without distinguishing
between the leadership structures in Baltimore City as opposed to the rest of Maryland’s
counties. Baltimore City has neither a “county superintendent” nor a “county board.” The
terms “county superintendent” and “county board,” however, are defined in another section
of the code to include the CEO and the Commissioners, respectively. See ED § 1-101 (d),
and (e). Accordingly, we accept the assertion of law set forth by the hearing examiner, and
affirmed by the State Board, that “[i]n Baltimore City, the Chief Executive Officer of the
Board of School Commissioners has the powers akin to those of a county superintendent.”
7
the Commissioners will consider the termination of a teacher in the first instance, upon the
recommendation of the CEO, so long as the teacher is provided an opportunity to contest the
proposed termination. ED § 6-202(a); Venter v. Bd. of Educ., 185 Md. App. 648, 671
(2009) (“Under Ed. § 6-202(a), the county board, not the county superintendent, makes the
ultimate decision on suspension or dismissal.”). “[I]n reality the [Commissioners] act[] in
the manner of an impartial tribunal judging the charges made by one of its employees (the
[CEO]) against another of its employees (the teacher) and the latter’s defense to those
charges.” Bd. of Educ. of Anne Arundel Cnty. v. Barbano, 45 Md. App. 27, 29 (1980).
On the other hand, ED § 4-205(c) vests the county superintendent with the authority
to “decide all controversies and disputes that involve: (i) [t]he rules and regulations of the
county board; and (ii) [t]he proper administration of the county public school system.”7
ED § 4-205(c)(2). Many decisions regarding the hiring and termination of school personnel
fall within the purview of the CEO’s authority under ED § 4-205(c)(2). Section 4-205(c)(3)
further provides a process whereby one may appeal the CEO’s decision to the
Commissioners, and then to the State Board. ED § 4-205(c)(3). Accordingly, pursuant to
the process set forth in ED § 4-205(c), the Commissioners exercise an appellate function
with regard to the decisions of the CEO made under the authority of that section.
7
For the reasons set forth in note 6, supra, ED § 4-205(c)(2) is applicable to the
decisions of the CEO, the same way that it is to the decisions of a county superintendent.
8
The critical distinction between ED §§ 4-205(c) and 6-202(a), is that under
§ 4-205(c), an aggrieved party may argue against an adverse decision rendered by the CEO
before the Commissioners, whereas under § 6-202(a), an individual subject to its provisions
may argue to the Commissioners that he should not be terminated prior to his termination.
Compare ED § 4-205(c), with ED § 6-202(a). Accordingly, the CEO has broad authority
to make personnel decisions with respect to most staff, with the exception of “teacher[s],
principal[s], supervisor[s], assistant superintendent[s], [and] other professional assistant[s].”
ED § 6-202(a)(1). The negative corollary is that “teacher[s], principal[s], supervisor[s],
assistant superintendent[s], [and] other professional assistant[s]” possess certain
pre-termination rights that are not afforded to other school personnel. Id.
In the instant action, Libit was informed by a designee of the CEO that his
employment would be terminated at the conclusion of the 2012-2013 school year. Libit’s
termination was not decided in the first instance by the Commissioners through the process
proscribed by ED § 6-202(a). Rather, Libit’s termination was a unilateral decision rendered
by a designee of the CEO, which was subsequently affirmed by the Commissioners. The
question, then, is whether Libit’s termination was proper under the provisions of
ED § 4-205(c), or whether Libit falls within a class of persons protected by the provisions
of ED § 6-202(a).
The title and text of ED § 6-202 purport to apply to “teachers, principals, and other
professional personnel.” ED § 6-202. By contrast, we have held that “noncertificated
9
technical support employees,” and even “professional noncertificated employees” do not
qualify for the protections afforded under ED § 6-202(a), and, accordingly, may only avail
themselves of the appellate review process outlined in ED § 4-205(c). See e.g., Venter,
supra, 185 Md. App. at 680 (holding that a Chief Business Officer is not “other professional
personnel” under § 6-202(a)); Livers v. Bd. of Educ. of Charles Cnty., 101 Md. App. 160,
164 (1994) (observing that a Building Equipment Technician is governed by the provisions
of ED § 4-205(c)); see also Wilkins v. Bd. of Educ., MSBE Opinion No. 06-10 (2006)
(finding that a Chief Financial Officer is not protected by § 6-202(a)); Walsh v. Bd. of Educ.,
MSBE Opinion No. 00-54 (2000) (finding that a Chief Information Technology Officer was
not protected by § 6-202(a)).
Here, we perceive no ambiguity as to Libit’s status as a “teacher.” Indeed, the
hearing examiner, whose findings were incorporated in the Commissioners’ decision
affirming Libit’s termination, found that Libit “was assigned to James McHenry Elementary
School . . . as a teacher.” (emphasis added). Likewise, in its opinion, the State Board
expressly noted that Libit was employed “as a teacher.” The parties, however, argue as to
whether Libit had achieved tenure.
Notably, the Commissioners have the responsibility to set forth qualifications
necessary for teachers to obtain tenure. ED § 6-201(f); Bd. of Educ. of Carroll Cnty. v.
Carroll Cnty. Educ. Ass’n, Inc., 53 Md. App. 355, 358 (1982) (“[T]he qualifications, tenure
and compensation of appointees ‘shall be determined by the county board.’” (emphasis
10
omitted) (quoting ED § 6-201(f))). We further observe that a teacher is generally considered
to be tenured upon the expiration of his probationary period. See Barbano, supra, 45 Md.
App. at 28 (“[T]wo years are to be served in such capacity before a teacher may be cloaked
with tenure.”); Parker v. Bd. of Educ. of Prince George’s Cnty., 237 F. Supp. 222, 226 (D.
Md. 1965) (“[T]eachers who have served more than two years in the school system have a
right to a continuous tenure, from which they may be removed only for cause. . . .”).8 In this
case it is unnecessary for us to determine whether Libit was tenured, or when Libit became
tenured. Rather, it is sufficient for our purposes that Libit qualifies as a “teacher” subject
to the provisions of ED § 6-202(a).
A textual analysis of ED § 6-202(a) demonstrates that, generally, the Commissioners
are required to decide whether to terminate a teacher in the first instance. Nevertheless, the
Commissioners’ argue that because Libit never signed a “Regular Contract” he is not
entitled to the protections afforded under ED § 6-202(a). “Regular Contract,” in this
context, is a term of art that refers to a specific agreement created by the State Board, and
set forth verbatim in COMAR 13A.07.02.01(B)(2). The parties disagree as to whether
Libit’s employment is governed by the “Regular Contract,” COMAR 13A.07.02.01(B)(2);
the “Provisional Contract,” COMAR 13A.07.02.01(C); or whether Libit is merely an at-will
employee who may be terminated for any reason. We recognize that, by an objective
8
When Barbano and Parker were decided the State-mandated probationary period
was two years. In 2010, the probationary period was extended, by legislative amendment,
to three years. ED § 6-202(b)(1).
11
standard, the parties never manifested assent to the “Regular Contract.” Likewise, we
recognize that the “Provisional Contract” the parties signed expired in June the year after it
was signed in accordance with its plain and unambiguous terms. The State Board found that
Libit was not governed by the “Regular Contract” due to his H-1B status and the fact that
he never signed the “Regular Contract.”
We question whether any agreement between the parties can be construed to be for
an employment at-will when the State Board’s regulations expressly provide that “[e]xcept
as provided in §C of this regulation, for employees who hold professional certificates, the
form entitled “Regular Contract” shall be used and others may not be recognized,”
COMAR 13A.07.02.01(B)(1) (emphasis added); see also Zimmer-Rubert v. Bd. of Educ. of
Balt. Cnty., 179 Md. App. 589, 602 (2008) (“[A]ll teachers in the State have identical
contracts on forms mandated by the State Board.”). Additionally, the Commissioners’
argument that upon the expiration of the provisional contract Libit would become an at-will
employee and receive fewer protections than he previously had under the provisional
contract is counter-intuitive, and appears to run contrary to the purposes of ED § 6-202 and
COMAR 13A.07.02.01. In this appeal, however, we need not decide the scope of the
parties’ contractual agreement or whether the State Board has acted in a manner consistent
with its regulations. Rather, we hold that Libit’s pre-termination rights flow not from his
agreement with the Commissioners, but in accordance with the General Assembly’s directive
under ED § 6-202(a).
12
Without commenting on the terms of the contractual agreement between the parties,
we are cognizant that in Maryland, a contract for employment is presumptively construed
to be an agreement for at-will employment. Towson Univ. v. Conte, 384 Md. 68, 79 (2004)
(“[E]mployment in Maryland is presumptively at-will”) (citing Porterfield v. Mascari II,
Inc., 374 Md. 402, 421-22 (2003)); Stanley Mazaroff & Todd Horn, Maryland Employment
Law § 3.02[1] (2d. ed. 2013) (“Maryland courts have held that an employment relationship
presumptively is at will. . . .”). In the context of an at-will employment, absent a
contravening public policy, an employer may generally terminate an employee “for any
reason, even a reason that is arbitrary, capricious, or fundamentally unfair.” Towson Univ.,
supra, 384 Md. at 82. In the instant case, however, by promulgating ED § 6-202(a), the
General Assembly has articulated a contravening public policy that overcomes the
presumption in favor of an at-will employment and affords additional protections to those
who fall within its provisions.
Moreover, the CEO was not empowered to terminate Libit unilaterally on the grounds
that Libit was a probationary teacher. Under ED § 6-202(b), the General Assembly excepts
teachers who are employed under a probationary period from the procedures outlined in
§ 6-202(a). The probationary period of employment covers a three-year period, whereby the
new teacher is provided a one year contract that may be renewed. ED § 6-202(b). During
the probationary period a teacher may only be terminated for cause under the provisions of
ED § 6-202(a). Parker, supra, 237 F. Supp. at 226 (citing Cnty. Bd. of Educ. for Wash.
13
Cnty. v. Cearfoss, 165 Md. 178, 187 (1933)). At the conclusion of the probationary
contract, however, a teacher may simply be denied a new contract without running afoul of
ED § 6-202(a). ED § 6-202(b); Parker, supra, 237 F. Supp. at 226 (“The standard teachers’
contract, which permits termination without cause at the end of the first and second contract
years, does not violate [§ 6-202].”).
Here, Libit was employed as a teacher under a provisional contract in August of 2005.
Regardless of whether the Commissioners considered Libit to be bound by the terms of the
provisional contract through the duration of his employment, Libit could only be in the
probationary period of his employment for a period of three years after his initial hire. In
this case, Libit was informed that he would be terminated in 2013, almost eight years after
he was hired. Accordingly, Libit could not have been in a probationary period under
ED § 6-202(b), and was therefore subject to the provisions of § 6-202(a).
The Commissioners contend that Libit’s termination was appropriate because his
employment was conditioned on continued satisfactory performance, and that Libit had
received unsatisfactory performance reviews for the two years prior to his termination. To
be sure, Libit is bound to maintain the qualifications, and comply with the terms of
employment properly promulgated under ED § 4-311(a)(1), and (2)(iii) (“[T]he
[Commissioners] may . . . [e]stablish terms of employment . . . .”). Upon the satisfaction of
certain conditions, however, ED § 6-202(a) expressly reserves the authority to adjudicate
whether the terms of a teacher’s employment have been violated to the Commissioners to
14
be decided in the first instance by the Commissioners. When the CEO believes that a
teacher has failed to comply with a condition of his or her employment, rather than terminate
the teacher, ED § 6-202(a) mandates a process by which the CEO recommends the teacher’s
termination to the Commissioners, and the Commissioners decide whether to terminate the
teacher in the first instance. ED § 6-202(a).
We accept that Libit was obligated to comply with certain conditions to maintain his
employment. For the reasons set forth herein, however, we hold that the CEO’s termination
of Libit pursuant to ED § 4-205(c), runs contrary to the provisions of ED § 6-202(a), which
vests the authority to terminate teachers with the Commissioners in the first instance.
Notably, we do not address whether Libit was employed under the terms of the “Regular
Contract” or whether Libit’s termination in violation of ED § 6-202(a) runs afoul of the
State’s obligation to refrain from impairing Libit’s property interests in the absence of
procedural due process under the Fourteenth Amendment to the U.S. Constitution.
Moreover, we do not comment on the merits of the CEO’s assertion that Libit’s
performance was unsatisfactory, or whether there would be substantial evidence for the
Commissioners to reach such a finding. Rather, we hold only that the Commissioners were
obligated to comply with the procedures of ED § 6-202(a). This obligation arose from the
General Assembly’s directive and exists independent of any contractual agreement between
the parties. We, therefore, hold that the Maryland Code requires compliance with
ED § 6-202(a) before a “teacher” may be terminated. Further, the failure to comply with
15
that procedure here resulted in Libit’s termination without affording Libit the opportunity
to be heard before he was terminated.
II. Section 6-202 Is Not Preempted By 8 U.S.C. § 1101(a)(15)(H)(i)(b)
The Commissioners further maintain that Libit was afforded sufficient process
because “the finite nature of [Libit]’s visa necessarily limited his employment expectations”
and “[u]nder federal law, an employer who terminates an H-1B visa employee prior to
expiration of the visa has very few obligations to the employee.” The Commissioners imply
that the federal H-1B program, which gives employers the discretion to sponsor foreign
employees, necessarily preempts laws that would otherwise obligate an employer to provide
greater pre-termination rights than those afforded to an at-will employee. We are
unpersuaded.
Pursuant to the Supremacy Clause of the U.S. Constitution, the federal Constitution
“and the Laws of the United States which shall be made in Pursuance thereof . . . under the
Authority of the United States [are] the supreme Law of the Land.” U.S. Const. Art VII,
cl.2. Accordingly, “valid federal legislation and regulations may preempt state or local laws
or regulatory actions.” Harrison v. Schwartz, 319 Md. 360, 364 (1990). State law may be
preempted when Congress expressly articulates its intent to do so, when the federal law is
“sufficiently comprehensive to occupy a given field or to make clear that Congress left no
room for supplementary state legislation,” or when the state law “actually conflicts with
federal law” Bd. of Tr. of Emp. Ret. Sys. of Balt. v. Mayor & City Council of Balt. City, 317
16
Md. 72, 115 (1989). Here, Congress has not expressly articulated a prohibition on state
regulations regarding the terms of teachers’ employment, nor is there a federal statutory or
regulatory scheme that would render the entire field of teachers’ employment preempted.
The question, then, is whether the federal statutes and regulations relating the H-1B program
actually conflict with ED § 6-202(a).
Conflict preemption occurs when a “state law actually conflicts with federal law and
such a conflict arises when state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress” or where “compliance with both
statutes is impossible.” Hill v. Knapp, 396 Md. 700, 712, 712 n.5 (2007). Under
8 U.S.C. § 1101(a)(15)(H)(i)(b), an alien may be admitted into the United States to “perform
services . . . in a specialty occupation.” In order for an alien to obtain a visa under the H-1B
program, the alien must be sponsored by a domestic employer, here, the Commissioners.
Further, the Commissioners must comply with certain requirements set forth in
8 C.F.R. § 214.2(h)(2)(i)(A). An employer’s participation in the H-1B program is, of
course, discretionary. See 8 C.F.R. § 214.2(h)(2)(i)(A) (“A United States employer seeking
to classify an alien as an H-1B . . . temporary employee must file a petition . . .” (emphasis
added)).
17
Critically, we are not presented with a circumstance where a Maryland law compels
an employer to undergo a process which is, pursuant to federal law, discretionary.9 Rather,
in this case, the Commissioners first terminated Libit, and then, pursuant to federal law,
complied with the process to revoke his visa. Here, Libit held an H-1B visa that was valid
until June of 2014. As a result of Libit’s termination, his visa was revoked. We recognize
that under federal law an employer incurs certain obligations as a result of its decision to
terminate an H-1B employee prior to the expiration of their visa. See e.g.,
8 C.F.R. § 214.2(h) (requiring the employer to give notice of terminations to United States
Citizenship and Immigration Services, and, in some cases, provide transportation to an
employee’s country of origin). Maryland laws with respect to whether the initial termination
was proper, however, do not conflict with federal regulations that impose certain obligations
on an employer upon the termination of an H-1B visa holder. To hold otherwise would
require that every H-1B employee be an at-will employee notwithstanding any contract, state
law, or local law to the contrary.
9
We emphasize, however, that this holding should not be construed to imply that
ED § 6-202(a) could not be construed to compel the Commissioners to attempt to renew
Libit’s visa. The question as to whether ED § 6-202(a) could obligate the Commissioners
to seek to renew Libit’s visa is not before us and an opinion to that effect would be advisory.
Indeed, the critical distinction in this case is that the hearing examiner found and the State
Board affirmed that Libit was “terminated for misconduct.” The question as to whether the
same outcome would have been mandated if the Commissioners merely allowed Libit’s visa
to lapse, is not before us.
18
Here, we hold that Libit’s status as an H-1B visa holder does not give the
Commissioners a license to disregard the procedures set forth in ED § 6-202(a). The
provisions set forth in ED § 6-202(a), and the federal statutes and regulations that govern
the H-1B program exist independently of each other. Although these authorities apply
simultaneously, they do not conflict with each other so as to preempt the Maryland statute.
We, therefore, hold that the federal statutes and regulations with respect to the federal H-1B
program do not preempt the pre-termination procedures mandated under ED § 6-202(a) in
this case.10
III. Conclusion
For the reasons set forth herein, we reverse the decision of the State Board to affirm
Libit’s termination. We emphasize that we do not address the scope of the contractual
employment agreement between the parties, whether the failure to comply with
ED § 6-202(a) violates the Fourteenth Amendment to the U.S. Constitution, or whether there
was substantial evidence to support Libit’s termination. Rather, we hold that Libit was
employed as a “teacher” for more than three years. As a “teacher” who had been employed
for more than three years, Libit was entitled to the procedural protections afforded to him
10
The Commissioners argued before the State Board that they “terminated [Libit] as
required by federal law.” The State Board, for the reasons articulated herein, properly
rejected this argument. Indeed, we agree with the State Board that Libit was not terminated
because his visa expired. Rather, Libit was terminated because the CEO determined that his
performance was unsatisfactory, and as a result of his termination, Libit’s visa was revoked.
Accordingly, although we reverse the decision of the State Board, we agree with the State
Board’s finding that Libit’s termination was not mandated by federal law.
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pursuant to ED § 6-202(a). As such, the CEO’s decision to terminate Libit without abiding
by the procedural safeguards embodied in ED § 6-202(a) amounted to a violation of that
statute. Further, we hold that Libit’s status as an H-1B visa holder does not absolve the
Commissioners from compliance with ED § 6-202(a).
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY REVERSED. CASE
REMANDED TO THE STATE BOARD OF
EDUCATION FOR FURTHER PROCEEDINGS
C O N S I S T E NT WIT H T H IS O P I N I O N .
APPELLEE TO PAY COSTS.
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