Appellate Court Finds State Whistleblower Laws Do Not Cover Rockville Teacher

Richard Montgomery teacher alleged MCPS penalized him for speaking to press


A Maryland appellate court has decided that state whistleblower laws do not protect a Montgomery County teacher who claims he was punished for telling the press that Richard Montgomery High School was manipulating Advanced Placement statistics.

The opinion released in July by the Maryland Court of Special Appeals overturns a lower judge’s finding that the protections do apply to Brian Donlon, a social studies teacher at the high school in Rockville.

Donlon filed a whistleblower complaint against Montgomery County Public Schools in December 2014, alleging that his employers retaliated against him for telling reporters at The Washington Post and The Gazette that Richard Montgomery was artificially boosting its AP course enrollment.

Donlon said MCPS penalized him for the disclosure by reassigning him as a floating teacher, giving him a class he’d asked not to teach and criticizing him for missing work to attend union meetings and teacher trainings. He asked for financial compensation and attorney’s fees from the school system, according to the appeals court opinion.

The case has turned on whether Donlon counts as a state employee. The teacher has said the Maryland State Board of Education exerts broad control over county school districts and noted that his pension system is state-administered. The state education board also hears termination appeals from public school teachers, he has noted.

MCPS also claims status as a state entity for certain legal purposes, he contended.

On the other hand, Donlon’s teaching contract and tax documentation list MCPS as his employer, not the state of Maryland, according to testimony. An official at the Maryland Comptroller’s Office asserted under oath that Donlon was not a current or former state employee.

An administrative law judge agreed with MCPS, prompting Donlon to file for judicial review in Montgomery County Circuit Court.

The circuit judge, however, sided with the teacher after reasoning it was “troubling” that MCPS could qualify as a state agency in some situations but reject the label in Donlon’s case.

However, the appellate judges didn’t consider this a contradiction, explaining that prior courts have found that an entity can qualify as a state agency or a local agency at different times.

MCPS also asked the courts to note that the state Legislature earlier this year passed a bill providing whistleblower protection to public school employees. The school system argued that the legislation bolsters its case because it would’ve been unnecessary if the existing state whistleblower law applied to teachers.

While the appeals court overall ruled in the school system’s favor, the judges didn’t find that particular point compelling and opined that a “subsequent enactment does not govern the meaning of prior law.”

Now that the court of special appeals has released its finding, Donlon could seek a hearing before the Maryland Court of Appeals, the highest tribunal in the state. He’d have to petition for review of his case, and the court could decide not to take it up.

He and his attorney did not want to discuss their plans Tuesday.  An MCPS spokesman also declined to comment on the case.

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