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POLICY
BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS |
Procedures in Appeals and Hearings
Under Section 4-205 of the Education Article
I. Purpose
To provide procedures, adopted pursuant to the authority of Sections 4-108(4) and 6-203(f) of the Education Article of the Annotated Code of Maryland (hereinafter the “Code”), for all appeals to the Baltimore City Board of School Commissioners (hereinafter the “Board”) under Code Section 4-205(c)(3).
II. Definitions
A. Appeal on the record – An appeal considered by the Presiding Officer based on documents and arguments submitted in writing by the parties.
B. Arbitrary or unreasonable – A decision may be arbitrary or unreasonable if it is one or more of the following:
1. It is contrary to sound educational policy; or
2. A reasoning mind could not have reasonably reached the conclusion the CEO or designee reached.
C. Board – Means the Baltimore City Board of School Commissioners or its designee.
D. Board Executive – Means the administrative officer to the Baltimore City Board of School Commissioners.
E. CEO – Refers to the Chief Executive Officer of the Baltimore City Board of School Commissioners who is the executive officer, secretary and treasurer of the Board.
F. Code – Refers to the Education Article of the Annotated Code of Maryland as supplemented.
G. Days – Mean calendar days unless otherwise indicated. In computing any period of time prescribed by these procedures or by any applicable statute, the day of the act or event after which the designated period of time begins to run is not included. Saturdays, Sundays, and legal holidays shall be counted. In calculating the number of days required to perform an act under these procedures (e.g., filing a notice of appeal), if the last day falls on a Saturday, Sunday, legal holiday, or other day when the Board’s district office is closed, then the last day for performance of the act under these procedures shall be extended to the next regular business day when the Board’s district office is open.
H. Evidentiary hearing – A hearing held to present evidence and testimony in front of a Presiding Officer for the purpose of developing a recommendation on the matter to send to the Board for decision.
I. Filed or filing – As used in these procedures means the actual receipt of a notice of appeal, memorandum, or other paper by the Board’s district office no later than 5:00 p.m. on the last day for filing in accordance with these procedures.
J. Emergency circumstances – A set of unforeseen occurrences or complications, not of the appellant’s own making, that prevented the appellant from presenting information or arguments to the CEO or CEO’s designee.
K. Illegal – A decision may be illegal if it is one or more of the following:
1. Unconstitutional;
2. Exceeds the statutory authority or jurisdiction of the CEO or designee;
3. Misconstrues the law;
4. Results from an unlawful procedure;
5. Is an abuse of discretionary powers; or
6. Is affected by any other error of law.
L. Oral argument – A spoken presentation before the Board of a party’s position and the reasoning behind it.
M. Party or parties – Includes each person, group, or entity named or admitted as a party, including a student, a parent, parent surrogate, or guardian of a student, and shall include the CEO. The Presiding Officer may permit any other person, group, or entity to participate for limited purposes upon satisfactory demonstration of the nature and extent of its interest.
N. Presiding Officer – Means the Board’s Chair; or in the Chair’s absence, the Vice Chair; or in the absence of both, a member designated by the Chair, or, in the absence of such designation, a member designated by the Board. In the event that the Board refers the appeal to a hearing examiner pursuant to Code Section 6-203, the designated hearing examiner shall be the Presiding Officer for the evidentiary hearing.
O. Quorum – Consists of five (5) members of the Board.
P. State Board – Means the Maryland State Board of Education.
III. Policy Standards
A. Applicability
1. These procedures govern appeals and hearings within the Board’s administrative and/or quasi-judicial function.
2. Proceedings covered by these procedures arise under Code Section 4-205(c)(3), on appeals from decisions of the CEO or the CEO’s designee on controversies and disputes involving the policies and regulations of the Board, the true intent and meaning of Maryland’s public school laws and of the State Board’s bylaws, and the proper administration of the Baltimore City Public School System (“City Schools”).
3. Discipline and discharge appeals for non-certificated employees governed by a relevant collective bargaining agreement will be held pursuant to the language regarding discipline and discharge within the relevant collective bargaining agreement. The process and procedure of this policy are to be followed, unless provided otherwise in the relevant collective bargaining agreement.
4. The Board reserves the right to interpret its policies. Should a question arise during the proceedings regarding the intent or interpretation of this policy an ad hoc committee comprised of the chairs of the Teaching and Learning, Policy, and Operations committees or their designees shall be convened. The committee will issue a recommendation on its interpretation with the full Board affirming or denying the committee’s recommendation at the next Public Board Meeting or Special Public Board Meeting.
5. Withdrawal of Appeal
a. An appellant may withdraw their appeal at any point during the proceedings if both parties consent. If there is not mutual consent between the parties and provided that the appellant does not have another proceeding currently pending before the Board:
i. An appellant may withdraw their appeal at any time prior to five days before the commencement of a scheduled evidentiary hearing or oral argument.
ii. For an appeal on the record, an appellant may withdraw their appeal within 10 days after the filing of the CEO’s response to the appeal.
iii. At any time before the Board issues a final order, the appellant may request that the Presiding Officer permit withdrawal of the appeal upon such terms and conditions as the Presiding officer deems proper.
B. Initiation of Appeals
1. All appeals to the Board under Code Section 4-205(c)(3) shall be from a final action or decision of the CEO or the CEO’s designated representative that adversely affects the person or persons who seek the appeal. Appellants shall only file one appeal with the Board per final action or decision from the CEO or CEO’s designated representative. The CEO or the CEO’s designated representative shall indicate a final decision in writing and shall also advise the parties of their right to file an appeal to the Board within 30 days of the date of the final CEO’s decision. Included with this written decision shall be a copy of the Board’s Appeal Information form (BLA Form 1).
2. Each appeal to the Board under Code Section 4-205(c) shall be initiated by filing a written notice of appeal with the Board including any supporting information or documentation within 30 days after written notice of the final action or decision of the CEO or their designee. The appellant shall utilize the Board’s Appeal Information form when noting an appeal. Facsimile and email requests for an appeal are acceptable. If a notice of appeal under Code Section 4-205(c)(3) is not filed within the time period set forth in this paragraph, the appeal will be dismissed.
3. Upon receipt of a timely notice of appeal for a matter falling under Code Section 4-205(c)(3), the Board Executive shall assign a docket number and forward a copy of the appeal to the CEO.
4. Within ten (10) business days after the Board Executive forwards a copy of the appeal to the CEO, the CEO may submit to the Board additional information or documentation in support of the decision which is the subject of the appeal. Copies of any information submitted by the CEO to the Board shall also be served by U.S. mail or electronic mail on the appellant(s) or representative(s). Within seven (7) business days after the CEO’s submission is sent by electronic mail, or within ten (10) days after the CEO’s submission is sent by U.S mail, the appellant(s) may submit additional documentation in support of the appeal and in response to that submitted by the CEO and shall provide a copy to the CEO. If the appellant decides to withdraw their appeal, they must meet the deadline set forth in Section III.A.5.
5. If either party believes that oral argument or an evidentiary hearing, or both, is necessary to a decision of the appeal, such party shall include in the submission made under sections III.B.2. or III.B.4. a concise statement of the reasons therefore, specifically addressing the factors set forth in section III.B.8.c. hereof.
6. Appellants are reminded that the Board is considering an appeal from a decision by the CEO or the CEO’s designated representative. Accordingly, information or arguments that were not submitted to the CEO for prior consideration will not be considered by the Board unless the appellant demonstrates that the new information is based upon emergency circumstances that did not exist at the time that the matter was considered by the CEO or the CEO’s designated representative. The Board will not consider any information submitted by an appellant subsequent to the time provided in these timelines unless the appellant makes a compelling showing that the newly filed information is based upon emergency circumstances that did not exist earlier in the appeal process. In such cases where the Board accepts new information, the Board may, in its discretion, remand the matter to the CEO or the CEO’s designated representative for consideration of the new information.
7. The Board reserves the right, at any time in its discretion, to conduct an evidentiary hearing, to refer the appeal to a hearing examiner for the purpose of conducting an evidentiary hearing and preparing a recommended decision under Code Section 6-203, or to hear oral argument even if an evidentiary hearing or oral argument is not requested by the parties. Should the Board decide to conduct an evidentiary hearing it will be heard by a panel of three Board members chosen by the Board Chair. The Board reserves the right, when referring the appeal to a hearing examiner, to have the hearing examiner consider the appeal on the record. The Board also reserves the right to request that the parties submit additional documentation or information.
8. On appeals that are subject to Code Section 4-205(c)(3), the Board shall consider the appeal on the record, without the holding of an evidentiary hearing or oral argument, unless the pre-hearing information submitted to the Board satisfactorily demonstrates that:
a. the appeal involves a constitutionally protected liberty or property interest,
b. the appellant’s written submission to the Board sets forth specific factual allegations of unlawful discrimination or arbitrariness, or
c. the Board should exercise its discretion to determine that an evidentiary hearing and/or oral argument is appropriate. When exercising its discretion, the Board may consider:
i. Whether the issues involved are of constitutional or significant public importance;
ii. Whether resolution of the issues raised is likely to have significant value as precedent in the administration of the school district;
iii. Whether the issue or issues raised require determination of some substantial employee right which cannot be satisfactorily adjudicated otherwise within existing appeal procedures; or
iv. Other appropriate factors as determined by the Board.
C. Hearings
1. Applicability
The provisions herein apply to both evidentiary hearings and oral arguments before the Board unless otherwise indicated. When circumstances warrant, evidentiary hearings and/or oral arguments may be held virtually.
2. Scheduling of Hearings
a. The Board Executive shall notify the appellant or their representative and CEO of the scheduled hearing date at least 45 days in advance of the selected hearing date.
b. Within 30 days of the date of the hearing notice letter, the appellant and CEO/designee shall confirm their attendance or request a postponement of the hearing.
c. If the appellant fails to respond within 30 days of the date of the hearing notice letter, the Board may dismiss the case with prejudice.
d. Absent good cause shown, as determined by the Board Executive, each party may be granted no more than two (2) individual requests for postponement. There is no limit for postponement requests that are made jointly by the parties.
e. The Board Executive may elect to schedule a hearing using a different process if it is in the interest of efficiency or both parties agree to schedule the matter using a different process.
3. Notice
a. Written notice of hearings shall be given by the Board, or its designee, to all interested parties as soon as practicable after scheduling, but not less than ten (10) days prior to the hearing.
b. Such notice shall also state the date, time, and place of the hearing, and the identity of the hearing examiner. Any disagreement concerning the charges, issues, or facts shall be resolved as part of the disposition of the appeal.
4. Public and Private Hearings
Hearings pursuant to Code Section 4-205(c)(3) will not be public unless (i) both the party seeking the hearing and the CEO agree in advance and in writing or on the record that the hearing be public, and (ii) the Presiding Officer consents to a public hearing.
5. Pre-Hearing Issues
- The appellant and the CEO are strongly encouraged to stipulate to the admissibility of all documents.
b. The parties may agree to limited written discovery. Any party may make a (one) request to the Presiding Officer, no less than thirty (30) days prior to the hearing date that the other party produce for inspection and copying any files, memoranda, correspondence, document, object or tangible thing which is relevant to the subject matter of the case and not privileged. If the hearing date is changed, rescheduled or if there is a continuation of the hearing, the parties do not get multiple opportunities to make such a request of the Presiding Officer.
i. If in dispute, the Presiding Officer shall determine the nature and scope of the limited discovery and the appropriate time lines for written discovery to be conducted.
ii. Copies of the requested documents and records shall be made at the expense of the party making the request unless the charge for copies is waived by the custodian of the documents. Payment shall be promptly made by the requesting party at least seven (7) business days before the hearing date to allow the producing party the opportunity to gather the requested documentation. For costs assessed by the Board, see Administrative Regulation KDA-RA.
6. Hearings Before a Hearing Examiner
a. Pursuant to Code Section 6-203, the Board may, if it chooses to do so, refer the appeal to a hearing examiner for the purpose of conducting an evidentiary hearing, or to conduct an appeal on the record. At all times, however, the Board retains the right to conduct an oral argument on its own, without a hearing examiner. Among the factors which the Board may consider in determining whether to refer such a matter to a hearing examiner in the first instance are:
i. Whether it appears that there are facts in dispute which are likely to require a lengthy evidentiary hearing, and/or
ii. Whether it appears there is an extensive record, substantial documentation, or additional information which the Board feels should be evaluated by a hearing examiner before the matter is submitted to the Board for its decision.
b. In selecting impartial hearing examiners to conduct administrative hearings under these provisions, the Board, a panel thereof, or its designee(s) shall interview and select individuals who (i) shall be members in good standing of the Maryland Court of Appeals, (ii) shall have at least three (3) years’ experience as a practicing attorney in the State of Maryland and (iii) shall be required to participate in an orientation conducted by the designee(s) of the Board prior to serving as a hearing examiner. A hearing examiner may not be a current Board employee, nor have been a Board employee within the last year. Persons selected as hearing examiners shall serve for one (1) year, subject to annual reappointment by the Board, or its designee. Hearing examiners will be required to sign annual contracts with the Board. There shall be no limit on the number of terms served; however, the Board reserves the right to remove an individual from the list of approved hearing examiners at any time by providing written notice to the hearing examiner.
c. Hearing examiners shall be assigned to hear appeals on a rotating basis, when practicable, and shall not conduct hearings of matters where (i) the hearing examiner has personal knowledge regarding the dispute or the parties or (ii) the hearing examiner has any connection with the school or department, or the individual/company involved in the appeal, or (iii) the appeal involves a member of the hearing examiner’s immediate family or household. Any hearing examiner who fails to disclose such information to the Board, or its designee and the parties shall automatically be barred from serving as a hearing examiner.
d. If the notice of hearing required by Section III.C.2. of these procedures has been sent to the address provided by the appellant and the appellant, a necessary party whose attendance is mandatory (absent documented extenuating circumstances), fails to appear at the time and date scheduled for the hearing, then:
i. the request for a hearing shall be considered withdrawn even if counsel or a representative for the appellant is present;
ii. the CEO/designee shall not be required by the hearing examiner to produce any testimony or documentary evidence in support of the action, decision or ruling that precipitated the appeal; and
iii. the CEO’s final decision against the appellant will be promptly forwarded to the Board for action.
e. All recommendations of hearing examiners must be based upon competent and substantial evidence. Hearing examiners may consider hearsay evidence during the hearing. If a hearing examiner’s recommendations are based solely on hearsay evidence, the hearing examiner must make findings of fact and conclusions of law that the hearsay evidence relied upon demonstrates sufficient reliability and probative value to satisfy the requirements of procedural due process.
f. The hearing will be electronically recorded. Within 30 days after the hearing or the filing of any post-hearing memoranda, whichever is later, the hearing examiner shall submit to the Board Executive their written findings of fact, conclusions of law, and recommendations. The Board Executive shall then, within five (5) days, provide copies of the hearing examiner’s report and recommendations to the CEO, the Office of Legal Counsel, the appellant, and/or any appellant representative.
g. Within ten (10) business days after the hearing examiner’s report and recommendations are sent by electronic mail, or within thirteen (13) business days after the report and recommendations are sent by certified mail, the CEO or the appellant may submit to the Board written exceptions or a letter of support for the hearing examiner’s recommendations which explain the basis for opposing/supporting the recommendations. Additional evidence not contained in the record of the hearing may be introduced in the written exceptions or letter of support by either party if the Board finds that the evidence is relevant and material and there was a good reason for the failure to offer the evidence in the proceedings before the hearing examiner. The Board Executive shall then forward a copy of the written exceptions or letter of support to the other party. If either party wishes to respond to the other party’s written exceptions or letter of support, such response shall be filed with the Board Executive and the opposing party within ten (10) business days. If either party wishes to request oral argument before the Board, such request must be included in the exceptions or letter of support.
h. After the Board receives the record, the electronic recording, the recommendations of the hearing examiner, and any exceptions to or letters of support for the recommendations, at the discretion of the Board, the appellant and the CEO may be permitted by the Board to make a brief oral argument before the Board. The oral argument will not include the presentation of evidence. The Board will decide how much time it will allow for the presentation of argument.
i. After reviewing the record, the electronic recording, the recommendations, and, if oral argument is granted, the arguments of the parties, the Board shall render a decision pursuant to subparagraph III.E. of these procedures.
7. Representation
All parties shall have the right to be accompanied and represented by counsel or a designated representative. Appellants under Code Section 4-205(c)(3) shall advise the Board if an attorney represents them promptly after counsel is retained. Failure to give prompt notice of representation may result in a postponement of a scheduled hearing. Obtaining counsel or a representative does not excuse the employee from appearing at the scheduled evidentiary hearing.