Dyer v. Board of Education

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2317

September Term, 2012

ALLEN R. DYER

v.

BOARD OF EDUCATION OF
HOWARD COUNTY

Krauser, C.J.,
Hotten,
Berger,

JJ.1

Opinion by Berger, J.

Filed: March 26, 2014

1
Judge Andrea M. Leahy did not participate in the
Court’s decision to report this opinion pursuant to
Md. Rule 8-605.1
 This appeal involves a dispute between the Howard County Board of Education (“the

Board”) and Allen R. Dyer (“Dyer”), a former member of the Board. On March 3, 2011, a

hearing was conducted by the Board’s Ethics Panel in response to two complaints that had

been filed against Dyer. The hearing was not open to the public. Dyer brought this action

in the Circuit Court for Howard County, asserting, inter alia, that the Ethics Panel violated

the Maryland Open Meetings Act. On appeal, Dyer presents a single question for our review,

which we have rephrased as follows:

Whether the Ethics Panel’s March 3, 2011 hearing violated the
Maryland Open Meetings Act.

For the reasons set forth herein, we answer the question in the negative, and affirm

the judgment of the Circuit Court for Howard County.

FACTS AND PROCEEDINGS

The parties stipulated to an agreed statement of facts, from which we draw primarily1

in our recitation of the facts as follows:

1. [The Board] adopted the Howard County Public Schools
System Ethics Regulations, in accordance with State
Law.

2. In accordance with the Ethics Regulations, the school
board appoints a five-member Ethics Panel from among
the residents of the County.

3. The duties of the Ethics Panel include processing and
making determinations on complaints filed by any person
alleging violations of the Ethics Regulations and

1
We have omitted references to various attachments.
 referring findings regarding complaints to the school
board for action.

4. By letter dated December 23, 2010, Andrew Nusssbaum
[sic], Esquire, sent a letter to [Dyer], on behalf of the
Ethics Panel, informing him that two complaints against
him had been filed.

5. The letter from Mr. Nussbaum enclosed a redacted copy
of the complaints, a copy of the Ethics Regulations, a
copy of the Rules for the Ethics Panel, and a copy of the
Rules of Procedure for Hearings Before the Ethics Panel.

6. By letter dated February 15, 2011, Mr. Nussbaum
informed [Dyer’s] counsel, Harold H. Burns, Jr., Esquire,
that a hearing before the Ethics Panel had been scheduled
for Thursday, March 3, 2011 beginning at 3:00 p.m.

7. The February 15, 2011[] letter included the following:

“I would again remind you, your client, the
Complainants, and Student Board Member
Alexis Adams, to whom copies of this
letter are also being sent, that, pursuant to
Ethics Regulations, ‘[a]ll actions regarding
a com plaint shall be treated
confidentially.’ I would request that all
parties maintain that confidentiality and
that nothing regarding this matter be
discussed with, or disclosed to, any other
individuals.”

8. By letter dated February 24, 2011, [Dyer’s] counsel, Mr.
Burns, wrote to Mr. Nussbaum stating, inter alia, that the
complaints did not state any violation of the Ethics
Regulations, that the discussion involved political speech
protected by the First Amendment, that the Ethics
Panel’s investigation of the complain[t]s should cease
immediately because it infringed on [Dyer’s]
constitutional right to free speech, and that the

2
 proceedings could not be confidential “vis-vis the Board
itself.”

9. [Dyer] attended the March 3, [2]011 Ethics Panel hearing
which was not open to the public and testified under
oath.

10. The Ethics Panel hearing was transcribed by a court
reporter.

11. On March 10, 2011, at 2:20 p.m., the school board met in
open session, ultimately voting 5-3 to close the meeting
for the reasons stated in the motion made by Board
member Ellen Giles.

12. [Dyer] disagreed with the phrasing of the motion . . . .

13. At the closed session on March 10, 2011, the school
board received legal advice regarding release of
confidential information in relation to the Ethics
complaints.

14. On April 14, 2011, at 2:30 p.m., the school board met in
open session, ultimately voting 6-0 to close the meeting
for the reasons stated in the motion made by Board
member Giles.

***

17. The Board of Education of Howard County is a public
body as defined by the State Open Meetings Act and is
subject to the provisions of that Act.

On April 15, 2011, Dyer filed a complaint in the Circuit Court for Howard County

alleging that the March 3, 2011 Ethics Panel hearing violated the Maryland Open Meetings

Act. The circuit court held a hearing on November 13, 2012 and denied all relief requested

3
by Dyer. The circuit court’s oral ruling was memorialized in a written order dated

November 15, 2012. This timely appeal followed.

STANDARD OF REVIEW

Maryland Rule 8–131(c) governs our review of a non-jury trial, and provides the

following:

When an action has been tried without a jury, the appellate court
will review the case on both the law and the evidence. It will not
set aside the judgment of the trial court on the evidence unless
clearly erroneous, and will give due regard to the opportunity of
the trial court to judge the credibility of the witness.

“The clearly erroneous standard does not apply to the circuit court's legal conclusions,

however, to which we accord no deference and which we review to determine whether they

are legally correct.” Cattail Assocs. v. Sass, 170 Md. App. 474, 486 (2006).

DISCUSSION

Dyer asserts that the March 3, 2011 hearing by the Ethics Panel of the Howard County

Board of Education violated the Maryland Open Meetings Act. Md. Code (1984, 2009 Repl.

Vol.) §§ 10-501 - 10-512 of the State Government Article (“SG”). Dyer contends that the

Board impermissibly delegated quasi-judicial authority to the Ethics Panel, and therefore, the

Ethics Panel had no authority to conduct a hearing on a complaint alleging a violation of

ethics regulations. Dyer further asserts that, even if the delegation of quasi-judicial authority

is permissible, the Ethics Regulations regarding confidentiality impermissibly abridge free

speech in violation of Article 40 of the Maryland Declaration of Rights and the First and

4
Fourteenth Amendments to the United States Constitution. We address each of Dyer’s

contentions in turn.

I.

We first consider whether the Maryland Open Meetings Act (“OMA”) applied to the

March 3, 2011 Ethics Panel hearing. Except for certain circumstances not presented in the

instant case, the OMA does not apply to a public body when it is carrying out an

administrative function, a judicial function, or a quasi-judicial function. SG § 10-503(a)(1).

As we explain below, the OMA did not apply to the March 3, 2011 hearing because the

Ethics Panel hearing constituted an administrative function.2

Administrative function is defined in the OMA as “the administration of:

(i) a law of the State;
(ii) a law of a political subdivision of the State; or
(iii) a rule, regulation, or bylaw of a public body.”

SG § 10-502(b). A 2010 advisory opinion issued by the Office of the Attorney General is

instructive on the issue of whether the Ethics Panel hearing constituted an administrative

function. We have explained that, “[w]hile not binding . . . the opinions of the Attorney

General are, nevertheless, generally entitled to careful consideration.” Scott v. Clerk of

Circuit Ct. for Frederick Cnty., 112 Md. App. 234, 240 (1996). The Office of the Attorney

2
In addition to the administrative function exception, the parties address whether the
Ethics Panel hearing constituted a quasi-judicial function. Because, as discussed infra, we
conclude the Ethics Panel hearing constituted an administrative function, we need not
address whether the Ethics Panel hearing constituted a quasi-judicial function.

5
General explained that a two-step test applies for determining whether a public body has

engaged in an administrative function:

The Open Meetings Compliance Board, an independent advisory
body charged with construing the State OMA, has developed a
two-step analysis to determine whether a particular activity is an
administrative function. See, e.g., 6 OMCB Opinions 145, 147
(2009); 6 OMCB Opinions 23, 25-26 (2008); see also 86
Opinions of the Attorney General 94, 115-17 (2001). The first
step is to evaluate whether the meeting falls within any other
function defined in the statute. If it does, the analysis ends
because, by definition, the meeting does not involve an
administrative function. SG § 10-503(b)(2).[3 ] If the session
does not involve one of the other defined functions, the second
step is to evaluate whether the public body is involved in the
administration of an existing law, rule, or regulation (as
opposed to the development of new policy). If it is, the
meeting likely involves an administrative function and the
State OMA does not apply; if not, the discussion is not an
administrative function and the State OMA does apply.

95 Md. Op. Att’y Gen. 152, 155-56 (2010) (emphasis added).

Similarly, the State Open Meetings Compliance Board (“OMCB”) has reasoned that

ethics panel meetings constitute administrative functions, and are therefore, not subject to the

OMA.4 In a February 24, 1993 opinion, the OMCB determined that a closed meeting of the

Ethics Commission of the City of College Park did not violate the OMA. The closed meeting

3
SG § 10-503(b)(2) provides that the OMA applies to a public body when it is
meeting to consider granting licenses, permits, as well as when the public body is involved
in the consideration of zoning matters.
4
The OMCB considers alleged violations of the Open Meetings Act and issues written
opinions. We note that OMCB opinions “are advisory only.” SG § 10-502.4(i)(1). Given
the dearth of authority on this issue, however, we find consideration of OMCB opinions to
be of some utility.

6
was held in response to a complaint alleging that certain individuals violated the Ethics

Ordinance of the City of College Park. The OMCB reached the following conclusion:

When the Ethics Commission of College Park sits to hear a
complaint, it is administering “a law of a political subdivision of
the State” - namely, the city’s own ethics law. Therefore, the
Commission would be carrying out an “executive function”[ 5 ]
as defined in the Open Meetings Act.

Because the Act as a whole is inapplicable, the provisions of the
Act governing notice to the public and voting prior to the
conduct of a closed session themselves do not apply. For these
reasons, the Compliance Board finds that the Ethics
Commission of College Park did not violate the Open Meetings
Act in connection with its closed session on September 2, 1992.

1 OMCB Opinions 93-4 (1993). The OMCB similarly concluded that a closed meeting of

the Frederick County Board of Education did not violate the OMA when the Board of

Education met to review the findings of its ethics panel. 5 OMCB Opinions 121 (1997). The

OMBC explained that, by reviewing findings of the ethics panel, the board “was

administering its own regulations adopted pursuant to state statute.” Id. Accordingly, the

OMCB concluded that the board’s “discussions involved an executive [now administrative]

function outside the scope of the [OMA].” Id.

The March 3, 2011 Ethics Panel hearing at issue in the instant case involved the

administration of existing ethics regulations and did not involve development of new policy.

5
Prior to October 1, 2006, the State OMA used the term “executive function” rather
than “administrative function.” The function was renamed in 2006, but the substance of the
definition was unchanged. Chapter 584, Laws of Maryland 2006. See also 95 Md. Op. Att’y
Gen. 152 n. 7.

7
We adopt the careful analysis set forth in the 2010 Opinion of the Attorney General in

holding that administration of existing ethics regulations constitutes an administrative

function. Accordingly, the March 3, 2011 Ethics Panel hearing was exempt from the OMA

pursuant to SG § 10-503(a)(1).

The Maryland Public Ethics Law provides further support for the confidential nature

of the Ethics Board hearing. SG § 15-407 provides that complaint proceedings before the

State Ethics Commission are confidential.6 The Board’s ethics regulations and Rules for the

6
SG § 15-407 provides the following:

(a) Notwithstanding any other law and except as provided in
subsections (b) and (c) of this section, after a complaint is filed:

(1) the proceedings, meetings, and activities of the Ethics
Commission and its employees relating to the complaint
are confidential; and

(2) information relating to the complaint, including the
identity of the complainant and respondent, may not be
disclosed by the:

(i) Ethics Commission;
(ii) staff of the Ethics Commission;

(iii) complainant; or
(iv) respondent.

(b) Except as provided in subsection (c) of this
section, the restrictions in subsection (a) of this
section apply unless:

(1) the matter is referred for prosecution; or
(continued...)

8
Ethics Panel similarly provide for confidentiality, requiring that all complaints be treated

confidentially. The Rules for the Ethics Panel further provide that “[t]he Panel, its staff, the

complainant, and the respondent shall not disclose any information relating to the complaint,

including the identity of the complainant and respondent, except that the Panel may release

information at any time if a release has been agreed to in writing by the respondent, and the

identity of the complainant shall be disclosed to the respondent, at the request of the

respondent at any time.” Due to the confidential nature of Ethics Panel proceedings, the

March 3, 2011 hearing was appropriately closed to the public.

Dyer further contends that the Board impermissibly delegated quasi-judicial

responsibilities to the Ethics Panel. In support of his assertion, Dyer points to our opinion

in Andy’s Ice Cream v. Salisbury, 125 Md. App. 125 (1999), in which we held that certain

delegations by a municipality were improper. This case, however, involves a delegation not

by a municipality but by a county board of education. Furthermore, in Andy’s Ice Cream, we

emphasized that the power delegated was “not merely ministerial or administrative.” Id. at

6
(...continued)
(2) the Ethics Commission finds a violation of this title.

(c)(1) The Ethics Commission may release any
information at any time if the respondent agrees in
writing to the release.

(2) On request of the respondent, the Ethics Commission
at any time shall disclose the identity of the complainant
to the respondent.

9
166. In the instant case, as discussed supra, the Ethics Panel exercised an administrative

function.

Contrary to Dyer’s assertions, county boards of education may delegate functions to

representatives. Indeed, the OMA explicitly contemplates that one public body can create

another public body. Regarding the definition of a “public body,” SG § 10-502 provides that

a “public body” is “an entity that:

(i) consists of at least 2 individuals; and

(ii) is created by:

1. the Maryland Constitution;
2. a State statute;
3. a county or municipal charter;
4. a memorandum of understanding or a
master agreement to which a majority of
the county boards of education and the
State Department of Education are
signatories;
5. an ordinance;
6. a rule, resolution, or bylaw;
7. an executive order of the Governor; or
8. an executive order of the chief executive
authority of a political subdivision of the
State.

(Emphasis added.) The Court of Appeals addressed the delegation of functions by a school

board in Carroll County Education Association, Inc. v. Board of Education of Carroll

County, 294 Md. 144 (1982). Carroll County Education Association, Inc., supra, involved

the delegation of quasi-legislative responsibilities to representatives of the school board

engaged in collective bargaining negotiations. Id. at 155. The Court explained that the

10
representatives were a “public body” as defined in the OMA “because they are an entity of

two or more persons created or authorized by statute or resolution.” Id.

In the instant case, the Board similarly delegated responsibilities to the Ethics Panel.

The parties stipulated that the Board appointed members to the Ethics Panel from among the

residents of Howard County. The parties further stipulated that the Ethics Panel’s duties

included “processing and making determinations on complaints filed by any person alleging

violations of the Ethics Regulations and referring findings regarding complaints to [the

Board] for action.” As in Carroll County Education Association, Inc., supra, such a

delegation is permissible under the OMA.

Dyer’s next assertion is that the Board is subject to the “more stringent meeting

requirements” found in section 3-704 of the Education Article, Md. Code (2008) (“ED”).

Section 3-704 provides, in pertinent part:

(b) Except for those actions authorized by subsection (c) of this
section, all actions of the county board shall be taken at a public
meeting and a record of the meeting and all actions shall be
made public.

(c) The county board may take actions in closed session in
accordance with § 10-508 of the State Government Article,
including action to close a meeting.

ED § 3-704 applies, however, only to actions of the county board. The Ethics Panel is not

“the county board,” and accordingly, ED § 3-704 is inapplicable.

11
 II.

Dyer asserts that the Ethics Regulations regarding confidentiality impermissibly

abridge free speech in violation of Article 40 of the Maryland Declaration of Rights and the

First and Fourteenth Amendments to the United States Constitution. Critically, Dyer did not

raise this issue before the circuit court.

In support of his position that we should consider the constitutional issues, Dyer

argues generally that a citizen enforcing the OMA cannot waive a First Amendment

argument, but cites no authority in support of this assertion. Dyer further argues that the First

Amendment issue was raised in his complaint, pointing to the following language:

“Respondent also demands that [the Ethics Panel] proceedings in their entirety be open to the

public so that the voters of Howard County may judge for themselves whether these

Complaints were brought in good faith and whether these proceedings were pursued in good

faith or whether the Complaints and proceedings together are nothing more than a witch-hunt

brought for the sole purpose of silencing Respondent and impeding him from carrying out

his duties.” We fail to see how such language presents a First Amendment argument with

sufficient specificity. Dyer also points to language in a February 24, 2011 letter sent from

Dyer’s former attorney to the Ethics Panel’s attorney, which made reference to protected

speech under the First Amendment and was attached as an exhibit to Dyer’s complaint.7

7
In the February 24, 2011 letter, the issue of constitutionally protected speech was
discussed as a defense to the ethics complaints themselves. No mention was made of the
(continued...)

12
 This issue, however, was never argued before the circuit court, nor is there any

indication that the circuit court considered or decided the First Amendment issue or the

Article 40 claim. Maryland Rule 8-131(a) provides that an appellate court normally will not

decide an issue “unless it plainly appears by the record to have been raised in or decided by

the trial court.” Univ. Sys. of Maryland v. Mooney, 407 Md. 390, 400 (2009). Accordingly,

we will not address the constitutional issues on appeal.

JUDGMENT OF THE CIRCUIT COURT FOR
HOWARD COUNTY AFFIRMED. COSTS TO BE
PAID BY APPELLANT.

7
(...continued)
unconstitutionality of the confidentiality requirements of the Ethics Regulations, which is the
issue raised by Dyer in this appeal.

13