IN THE MATTER OF BEFORE TFIE

REQUEST FOR REMOVAL

OF LOCAL BOARD MARYLAND
MEMBER KAREN
HARSHIVAN STATE BOARD

OF EDUCATION

Opinion No. l7-f 7

OPINION
TNTRODUCTION

The Board of Education of Washington County (local board) requested the rernoval of
board member Karen Harshman ftom her position on the boad on the grounds of misconduct in
office and willful neglect of duty. The State Board of Education concluded that the charges were
factually and legally sufficient to proceed and referred the matter to the Office of Adminisbative
Hearings (OAH) for findings of fact, conclusions of law, and a proposed decision. Before the
Adminisative Law Judge, the local board filed a Motion for Summary Decsion, arguing that
there were no material facts in dispute and that, as a matter of law, Ms. Harshman should be
removed from office.

On February 16,2017, the ALI issued a proposed decisiort recommending that the local
board's request be granted and that Ms. Harshman should be rernoved from office. Ms.
Harshman ftled exceptions to the ALJ's proposed decision and the localboard responded. Oral
argumrt was held before the State Board at its April 25,2017 meeting.

I
FACTUAL BACKGROI.'ND

Karen Harshrnan joined the local board in Novernber 2010 and voters re-elected her in
2014. Her current term on the board expires in Desember 2018. Prior to joining the board, Ms.
Harshmar served as a teacher in Washington County Piblic Schools (WCPS) for approximately
30 years, retiring in June 2010. (Proposed Decision, at 4).

On October 17,2016, tt 4:14 p.m., Ms. Hashman made the following post on her
personal Facebook page:

OMG, Dr. Phil has a story about a teacher having sexual relations With a student.
She lostherjob and had to register as a sex offender. Washington County seems
to look the other \r,ay or transfer the teacher to another school-hardly a way of
protecting ow students from such predators. They should be barred from
entering our schools or having any contact with school activities.

This factual background is drawn fron thc factual findings made by thc ALI and supplemented, as appropriate,
with the record created by the partes. We shall address Ms. Harshman's exceptions to these facg later in this
opinion.
 Several people left comments on Ms. Harshman's post and she responded to some of
those comments. Those conversations are as follows:

Julie Beadle Hicks: V[ashington county is still ignoring the problem?!

Ms. Harshman: Julie, some are still teaching or working on the BOE [board of
educationl.

Julie Beadle Hicks: That is qazy. We all knew who they were. We joked about
it when we wero in school, Now I would do whatever was needed to make sure
they landed in jail.

Ms. Harshman: Julie Beadle Hicks, that is what should have happened to them.
I sannot imagine how awful that would be for a student, Teachers are in a
position of tnst and leadership.

:l 1. t

Cindy Schlotterbeck Spessert: What?? Are you joking?? They are still working?

Ms. Harshman: Cindy Schlotterbeck Spessert you have no idea!

Cindy Schlotterbeck Spessert: Scary.

(Motion for Summary Decision, Ex, 3-A).

This Facebook post gamered considerable attention in Washington County. Mernbers of

the local board and WCPS school officials were "inundated" with questions from the
community. At a local board meeting, held the next day on October 18, 2016, Board Vice
President Justin Hartings spoke publicly about the post and read it in full during the meeting. He
explained that, over the past 24 hours, multiple people had sent him messages asking if the post
was Fue and if sexual offenders were teaching at their child's school. He insisted that Ms.
Harshman either report her suspicions to the proper authorities, as required by mandatory
reporting laws, or apologize to the school srstein and community for frightening the public.
Vice President Hartings said he was not aware of any information to back up Ms. Harshman's
claims. (Proposed Decision, at 6-7).

During the meeting and afterwards, Superintendent Clayton Wilcox approached Ms.
Harshman and repeatedly asked for the nanes of the teachers alluded to in her post. Ms.
Harshman declined to reveal the names. In an af;fidavit filed as part of this case, she described
Superintardent'tvVilcox as "verbally abusive" and that he "yell[ed] loudly 'I want those names."'
Superintendent Wilcox told her he would call the police if she did not reveal the names. Ms.
Harshman did not provide the names. She explained in her afdavit that "[Superintendent]
Wilcox had absolutely no legal or policy basis to make any such request or demand." Ms.
Harshman dessribed leaving the meeting "in tears, having been bullied, intimidated, and
threatened." (Proposed Decision, at 7-8; Wilcox AfEdavit; Harshman Affidavit, at 2).

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 Reporter Julie E. Greene, of the Herald-Mail newspaper,2 offered the following account
of events in an article published the next day:

After the boad meeting, Harshman told Herald-Mail Media that some of
the people she was alleging behaved inappropriately had retired, but she wasn't
sure if they all had retired. Wilcox then approached Harshman and ked her
for a list of names, but she replied she wanted a list of employees instead. She
refused his multiple requests for the narnes of the teashers,

*+*

Regarding the actve teacher who allegedly had inappropriate relations

with a student, Harshman told Herald-Mail Meda on [october l8] that the man
left his wife and married a student. Asked if she was a student at the time they
got manied, Harshman said she might have been a former student at that point
but they had been involved when she was a student at the man's school.

(Motion, Ex. 6).

Around 9:30 p.m, that evening, Superintendent Wilcox contacted the Washington County
Sheriffs Office and requested that they investigate the allegations. A deputy arrived at Ms.
Harshman's home soon afterwards. According to Ms. Harshman, the deputy "was confised and
somewhat embarrassed to be there. He indicated he was not sure ofhis role, and found the
whole situation bizarre," Ms. Harshman provided the deputy with the name of one individual,
Jacqueline Fischer, a fellow member of the local board. At approximately l0:30 p.m., the
sheriffs office called Superintendent Wilcox and informed him that Ms. Harshman had provided
Ms. Fischer's name, but she declined to identiff other individuals. The sheriffs office
determined that Ms. Fischer was "not deemed a theat to young people." (Proposed Decision, at
7-8).

At some point that evening, Ms; Harshman provided the Herald-Mail with the names of
two other individuals besides Ms. Fischer that sho believed had nappropriate sexual relations
with students. She did uot provido those names to the deputy when he visited her home.
Superintendent Wilcox learned about these names after Ms. Greene, the reporter, contacted him
to inquire whether the individuals were still unployed by the school system. After learning of
the names, Superintendent Wilcox provided the names to the Washington County Departnent of
Social Services, which began an investigation. He temporarily suspended one individual, a
retired male teacher who may have still been teaching as a substitute, pending an investigation.
Ms. Harshman provided a fourth ard final name to the Herald-Mail sometime later that week.
(Motion, F.x.2,9).

2The Herald-M is the lcading newspaper in

lhe Hagerslown area with a circultion of 27,000 daily, 32,000 on
Sunday, and more thnn 4 million page views monthly. (Proposed Decision, at 8). An online version of rhe
newspaper can be found nt rrvur.heraldmailmedia.com and many of the articles included in the rccord are taken
from that website.

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 On October 19, the Herald-Mail published an aficle ttled "Washington County BOE
member alleges active teacher had inappropriate relations with student." In the article, a WCpS
spokesman confirmed that one of the thrree employees named by Ms. Harshman wa an active
teacher and that an investigation was underway. In a later interview, Ms. Harshman stated that
she became aware of allegations of misconduct in the 1980s but never reported the incidents to
authorities. (Proposed Decision, at 9-10; Motion, Ex. 6),

That same da October 19, Superintendent Wilcox issued the following letter to the
public:

As I have said repeatedly during my tenure as your Superintendent - the safety

and security of your children is our highest priority. We would never knowingly
place them in a compromised position or within the reach of a person with
questionable character. We take each allegation ofpotential harm to any student
seriously and act with extreme prejudice with regard to adults who pose a tlueat
to your children.

with that said, Tuesday evening at our regularly scheduled school board
meeting, one mernber made a public comment about the social media posts of
another. The comments dealt with claims of inappropriate contact between
teachers and students within the school district.

No names were presented during or after the meetng by any member of the
Board to a member of the administrative team, despite repeated requests to the
mernber making the allegations. In order to be certain our students are safe, I
asked the Sheriffls office to contact the member who made the allegations to
atternpt to obtain the names of those alleged to have had inappropriate contact
with students. The Sheriff s office reported back to me that they had been given
the name of a retired classroom teacher, who also serves on the elected Board of
Education. This retired teacher was not deemed a threat to young people by the
investigating officer.

I was later informed that the alleging mffnber had also provided trvo additional
names to a Herald-Mafl reporter. Tlte Herald-Mail immediately asked us to
confirm whether or not the names provided to then were anployees of the
district. This morning we confirmed that one of the names provided is that of
an active teacher in the systn and the other name is that of a retired teacher
who is on our substitute registry. We have spoken to each of those named and
are following our normal protocols for allegations of this type, which include
reviewing background materials thoroughly and reporting the allegations to the
Deparhnent of Social Services (DSS).

(Motion, Ex.5).

On October 20,2016, Ms. Fischer, the board member named by Ms. Harshman as an
alleged child abuser, spoke to the Herald-Mail about her past. In l98, when Ms. Fischer was 22,

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 she began dating a l6-year-old student at the school where she taught, although he was not one of
her students and she "never had any authority over him." Ms. Fischer said their dating involved
going "to a cousin's house or one of their parents' homes and another adult was present," The
next year, the two manied wth the blessing of both families. At the time, Ms. Fischer was 23 and
her future husband was a 17-year-old high school senior. The couple has now been manied for 47
years. After the marriage, Ms. Fischer was transferred to another high school but never received
an explanation for the transfer. According to school officials, there was no policy in place at the
time that prohibited Ms. Fischer's actions.3 (Response to Motion, Ex. 2).

On October 21,2016, the head of the Washington County Tachers Association told the
Herld-Mail he was "100 percent confident" that students in the school system were safe, He
described "allegations of misconduct and cover-ups" as being "unfounded." WCPS offcials told
the Herald-Mail that they had cleared Ms. Fischer and others named by Ms. Hashman from
wrongdoing or constihting a threat to students. Around this same time, thq Department of
Social Serices informed WCPS that there lvas no basis to pursue an investigation of child
sexual abuse against any of the individuals named by Ms. Harshman. (Proposed Decsion, at 10;
Motion, Ex.2,8).

Tt,e Herald-il[ail described the accusations as creating "a stir on social meda" with more
than 100 comments left on stories online, Some people commented that Ms. Harshman's
allegations were inappropriate or, if hue, should have been reported sooner, There were also
some calls for her to resign. (Proposed Decision, at l0; Motion, F;x.2,8). On October 25,2016,
the Herald-Mail ran an editorial entitled "Harshman unworthy of public ust," (Proposed
Decision, at 121' Motion, Ex. l2).

On October 26,2016, Vice President Hartings circulated a six-page letter among the local
board in which he indicated his intention to adopt a resolution to seek Ms. Harshman's removal
from office. Vice PresidEnt Hartings stated he planned to discuss the matter at the board's
Novernber I meeting. He recounted the allegations made by Ms. Harshman and observed that
parents "immediately began to raise questions and concerns about the possible existence of child
sex oflenders in our schools." Vce President Hartings stated that ICPS, the sheriffs office,
ard the Deparnent of Social Services, had been unable to find evdence to support her
allegations. Vice President Hartings concluded Ms. Harshman's allegations were unhue and
recklessly made, particularly as she falsely accused staffof covering up abuse. He expressed his
belief that Ms, Harshman had statutory duty to inform DSS if she u,as aware of potential abuse
and that failing to do so was an additional ground for removal. Specifically, Vice President
Hartings refened to Board Policy JLF which requires all school system emptoyees "to report any
suspected child abuse or child neglect to the local deparnent of social services or th.e
appropriate law enforcement agenay as soon as possible." He also viewed her actions as
violating a provision in the superintendent's contract in which individual board mnbers agree
to promptly refer criticism and complaints regarding the school system to the superintendent and
alert the board and superintendent if a board mernber believes the superintendent is not
discharging his responsibilities. (Proposed Decision, at l2-15; Motion, Ex.Z).

t T't'p Herald-Mat article also discussed the state of the law at the time and concluded that Ms. Fischer did not
violate any then-existing criminal laws. (Response to Motion, Ex. 2).

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 On October 28,2016, Ms. Harshman issued a statement to te Herald-tftail in response to
Vice President Harting's letter:

As a Hagerstown native and a product of (Washington County Public

Schools), I have proudly served the students and parents of my county as an
educator for over 30 years and am honored to have been ovenvhelmingly elected
to the BoE for 8 years. I deeply regret that Superintendent Wilcox and board
member_Hartings have chosen to score political points two weeks prior to an
electionlal by using a genuine point of concern that I raised regarding people in
positions of authority and their interactions with students in our schools. I plan
to get up every day and work hard on behalf of our students and the taxpayers I
promised to sele. Our county would be best served if Wilcox and Hartings did
the same.

(Motion, Ex. I l).

On October 30,20l6,the Herald-Mail reported that the school system spent 50 hours
during an l8-hour period investigating Ms. Harshman's allegations.5 Five adminshators
reviewed personnel information for four individuals, including Ms. Fischer, and found nothing to
substantiate Ms. Hashman's allegations about a danger to students. Dr. Wilcox stated that th
issue had "been a shadow cast over us for the last couple rryeeks." He described people
approaching him in public to discuss the allegations and viewed it as a distraction for the school
system. (Motion, Ex. 9).

On November 1,2016, the local board met to discuss the proposed resolution requesting
Ms. Harshmar's removal from oflice. During public comment, roiesidents spoke about the
conhoversy and one urged Ms. Harshman to resign from the board. Ms. Harshman, responding
to the public comment, slated "My comment is just that I have not lied. I do not apologize for the
truth and it is what it is." (Motion, Ex. l3). Prior to the vote, Ms. Harshman requested to speak
with board counsel to discuss ttre potential charges, but was denied the opportunity. She did not
have legal counsel ofher own at the time. (Harshman affidavit).

During the Novernber I meeting, Ms. Fischer spoke directly to two of her fellow board
members whom she claimed were friends of Ms. Harshman's. She urged them to vote in favor
of the resolution and told thern their votes would be scrutinized closely. (Recording of Nov. l,
2016 Board Meeting; Motion, Ex. l5),

Ms. Harshman made the following statement in response to Ms. Fischer's comments:

I will
welcome the State's involvement where there will be no chance of the
contolling majority making a decision based on political desires. I have

a
Although some of thc bod scls werc up for election in 2016, Ms. Harshman and Ms. Fischer rvere not up for re-
election. Vice Pesident Hartings did not run for re-election for his seat.

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Vice President Hartings's letter indicated that, overall, the school system had spenf hundreds ofhoun investigating
and responding to e claims. (Motion, Ex.2; l4).

6
 maintained that I am no politician - I am a statesman. As James Clarke defined
it, a politician is concerned with the next election. A statesman is concemed with
the next generation. I am a statesman. So we don't need to take the vote. I'm
willing to let the State determine it. Certainly not the majority of four,

(Proposed Decision, at 13; Motion, Ex. l5; Recording of Nov. 1,2016 Board Meeting).

Ms, Harshman had planned to read a statement in her defense and vote against the
resolution, but later changed her mind. According to her affidavit, Ms. Harshman "knew that
there would be enough votes to refer the charges to the State Boad" and she "welcomed the
opportunity to be heard by an objective tribunal at the State level." (Harshman Affidavit).

The resolution carried by a vote of 7 to 0. The resolution recommended that the State
Boad remove Ms. Harshman for misconduct in office and willful neglect of duty; adopted Vice
President Hartings's October 26 letter as its official position; authorized board counsel and
outside counsel to prepare a staternent of charges based on the October 26 letter; and authorized
counsel to pursue the removal through all stages of the process, (Proposed Decision, at l3-16;
Motion, Ex. l). In her affidavit, Ms. Harshman stated that "the erors and omissions contained"
in the charging statement "were so pervasive and profound that there was no real point in
attempting to refte thern in such a hostile and partisan environment." She maintained that her
vote was not meant to be an agreement to the truth of the charges against her, but rather her
desire to have the State Board independently decide the matter. (Harshman Affidavit).

On November 4,2016, counsel for the local boad forwaded the request and statement of
charges to the State Board. On Decernber 5, 2016, the State Board concluded that the charges
were legally and factually sufficient to proceed. Ms. Harshman requested a hearing and the State
Boad referred the matter to the Office of Adminishative Hearings for a hearing and proposed
decision. (Proposed Decision, at l).

On January 23,2017, the local board filed a Motion for Summary Decision, arguing that
there were no genuine disputes of material fact and that the board was entitled to a decision in its
favor, in this case Ms, Harshman's removal, as a matter of law. On February 10,2017, Ms.
Hashman filed an opposition to the motion. That same day, the parties presented oral argument
on the motion to Adminishative Law Judge (ALJ) Michael J. rWallace. (Proposed Decision, at
2).

On February 16,2017, ALJ Wallace issued his proposed decision recommendng that the
State Board grant the motion forsummary decision and remove Ms. Harshman from the local
board based on misconduct in office and willfrl neglect of duty. Ms. Harshman led exceptions
to the decision via ernail to OAH on March 6,2017 and to the State Board on March 8,2017.
The State Board received I copy of the exceptions by mail on March 10, 2017. The local boad
filed a motion to sike the exceptions on March 16,2017 and a Mernorandum in Opposition to
the Exceptions on March 21,2017 , Ms. Harshman responded to the Motion to Strike the
Exceptions,

Oral argument was held before the State Board at its April 25,2017 meeting.

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 STANDARD OF REVIEW

In the Proposed Decision, the ALI described an incorrect standard of review for the
removal of a local boad member, The ALJ considered whether the local board's request for
removal was "unconstitutional," exceeded the local board's statutory powers, misconstrued the
law, or rvas an abuse of discretionary power, (Proposed Decision, at 38). The State Board
reviews removal cases independent of the local board's request for removal and we give no
deference to the local board's decision to request removal. We exercise our inde,pendent
judgment to determine whether Ms. Harshman should be removed from office. Accordingly, we
adopt the findings of fact from the ALI, as supplemented by this decision, but replace the
rernainder of the proposed decision with the following legal analysis. In doing so, we shall also
address Ms. Harshman's exceptions to the proposed decision.

LEGAL ANALYSIS

The ALI decided this case on a Motion for Summary Decision. Before we can reach that
question, we must address several other legal issues presented by the parties,

Motion to Strike the Appellant's Exceptions

On March 16,2017, the local board filed a motion to strike Ms. llarshman's exceptions
as untimely or, in the alternative, to dismiss her appeal from the local boad's statement of
charges. The ALI issued his proposed decision on February 16,2017. On the last page of the
proposed decision, the ALI informed the parties of their right to file exceptions to the decision.
The decision states that a party'omay file exceptions with the State Board within fifteen (15) days
of receipt ofthe findings."

Ms. Harshman's counsel received a copy of the decision via email from the local board
counsel latc in the day on February 17,2017. Ms. Harshman's counsel received an official copy
of the decision from OAH in the mail on February 21,2017, The parties disagree on whether the
l5 days should be calculated from the date on which Ms. Harshman received the email, or
whether it should be calculated from when the mailed copy of the decision tom OAH arived.

Ms. Harshman's counsel emailed a copy of her exceptions on March 6,2017 to OAH and
local board counsel and delivered a copy via email to the State Boad on March 8, 2017. The
State Board received a hard copy of the exce,ptions by mail on March 10. Ms. Harshman's
attomeys have indicated that computer problns were to blame for the State Board not receiving
the exceptions prior to March 8. (Motion to Strike, Exs. l-5, 8; Response to Motion.).

The parties disagree on when Ms. Harshman had "receipt of the findings" and whether
her exceptions could be emailed to the State Board. Our appeal regulations are silent on both of
these points. With that in mind, we shall consider the date on which Ms. Harshman received the

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Ms. Harshman's exceptions are divided into tluee categoriesr (l) cxceptions to facts and legal findings; (2)
procedural exceptions to evidentary basis of facts; and (3) exceptions to legal standards application. Thc exceptions
include 104 numbered paragraphs, not all of which constitute separate exceptions, We havs reordered lhe
exceptions in our discussion for the sake ofclarity,

8
official copy of the decision - February 2l - as being the date of "recept." Based on that date,
the exceptions were due on March 8. The State Board received the exceptions via email on that
date. Accordingly, we shall accept the exceptions and consider them in full before rendering our
decision-

Motion to Consder Additional Evidence

As part of her exceptions, Ms. Harshman requests that the State Boad consider an
additional piece of evidence that was not submitted to the ALJ. (Exceptions, Ex. D). The
evidence is a February 22,2017 newspaper article from the Herald-Maf entitled "Ex-substitute
accused of exposing himself to 4 girls in Hagerstown makes court appearance." The article
indicates that a former WCPS substitute teacher was afiested in late 2016 on charges including
sex abuse of a minor after being accused of exposing himself to elanentary-school-aged girls on
two occasions at his home and attempting to put his hands down a girl's pants. He was not
ernployed as a substitute at the time of his arrest. (Exceptions, Ex. D).

Ms. Harshman argues ttrat, despite claims from school officials that WCPS was safe from
sexual predators, "a sexualpredator ws found teaching [in] Washington County schools within
the last months" (emphasis in original). It appears Ms. Harshman seeks to use the newspaper
article as evidence that shE was correct regarding her comments about sexual predators in
Washington County schools.

ln our view, the netvspaper article is not relevant to our decision, The substifute teacher
is accused of committing acts that took place after Ms. Harshman made her Facebook posts. She
does not claim that she was aware of this particular substitute teacher prior to his arrest or that he
was among the individuals that she suspected of child abuse. Accordingl we decline to
consider this evidence as part of our decision,

Admission of Documentary Evdence (Exceplons 54-59)

Ms. Hashman argues that the ALI's reliance, in part" on newspaper aticles submitted by
the local board was improper and legally insufficierrt to support the factual findings. Ms.
Harshman argues that newspaper articles are "inherently urueliable" because newspapers "are
not scrupulous in differentiating between fact, opinion, speculation, and/or conjecture, and they
do not hold their sources to any such standard." Ms. Harshman also objects to citing to "an
admitted editorial opinion as factual proposition." All of the articles were taken from the
Herald-Mail.

Courts generally consider newspaper articles to be inadmissible hearsay if they are

inboduced to prove the huth of factual matters contained within them. See tlS. v. ReBrook,5S
F.3d 961, 967 (4th Cir. 1995). Hearsay evidence is, however, admissible as part of
administrative proceedings. COlvfAR 28.02.01.21C. In our view, the newspaper articles ae
relevant primarily to show the effect Ms. Harshman's actions had on the community, not for the
truth of the statements contained within them. Additionally, Ms. Harshman's own statements to
the newspaper are admissible as an xception to the hearsay rule. ,Se Md. Rule 5-803(a).
Finally, Ms. Harshman fails to point to any speoific fact contained within the newspaper articles

9
 as being incorrect or in dispute to render thn unreliable. For all of these reasons, it was not
improper for the ALI to admit newspper articles into evidence and we will use them in our legal
analysis for the purposes stated above.

Admssiott of Superintendent lllcox's Afidnt (Exceptons 60-70)

Ms. Harshman objects to the ALJ's use of statements in Superintendent Wilcox's

affidavit in the findings of fact, arguing that the affidavit was insufficient as a matter of law ard
contains no assertions tlrat could be submitted into evidence through his testimony. Ms.
Harshman claims that Superintendent rilcox "has no idea" what she posted on Facebook or said
in statflnents to the media and that the proposed decision should be rejected because of defects in
the affidavit.

COMAR 28,02.01.12D(3) requires an afdavit to be "made upon personal knowledge"

and "set forth the facts that would be admissible in evidence" a.nd "show affirmatively that the
affant is competent to testiff to the matters stated in the affidavit." Superintendent !ilcox's
afdavit essentially incorporated the local board's statement of charges and attested that they
were "true and correct to the best of my personal knowledge, information, and belief." Many of
those charges, in turn, were based on Superintendent Wilcox's own actions in investigating Ms,
Harshman's allegations.

We agree with the ALI that the affidavit was legally sufficient. (Proposed Decision, at
22-23). Superintendent Wilcox was in a position to have personal knowledge of the charges, he
attested that he did have personal knowledge, and he was competent to testify to those matters.
Superintendent Wilcox was not required to have personally watched Ms. Harshman tlpe her
comments on Facebook in order to be aware that she had done so. Nor was he required to have
been present when a reporter interuiewed Ms. Harshman in order to be aware of her statements
as reported in the media.

Motion for Summary Decision

A Motion for Summary Decision may be filed in a case heard before the Office of
Administrative Hearings if "there is no genuine dispute as to any material fact" and "the party is
entitled to judgment as a matter of law." COMAR 28.02.01.12D. A motion must be supported
by affidavit. /d. Although refened to as a Motion for Summary Affirmance in the State Board
appeal regulations, the standard applied is the same. COMAR 134.0.105.03D; se Matthews v.
New Bd. of Sch, Comm ls, MSBE Op. No. 02-04 (2OOZ).

In deciding motions for summary judgmerrt, courts consider "whether a genuine dispute
of material fact exists and then whether the movant is entitled to summary judgment as a matter
of law." Grimes v, Rennedy Kreger Inst,, 1nc.,366 Md. 29,71(2001) (internal citation and
quote marks omitted). "A material fact is a fact the resolution ofwhich will somehow affect the
outcome of the case." Id. a72 (citingKing v. Bankerd,303 Md. 98, I I I (1985)), The court
"must view the facts, including all inferences, in the light most favorable to the opposing party."
Id. at72 (citing Beard v. Amercan Agency,3l4 Md, 235,246 (198S)). Once "the moving party
has provided the court with sufficient grounds for summary judgment, the nonmoving party must

t0
 produce sufficiert evidence to the tial court tlat a genuine dispute to a material fact exists." .ld.
at 73. On a Motion for Summary Decision, the State Board does not decide disputed issues of
fact or credibility, but must only determine whether or not those issues exist. ,See Eng'g Mgt.
.Servs., Inc. v. Md, State Hghway Admin.,375 Md. 211,226 (2003).

The ALJ recommended that the State Board Brant the local board's Motion for Summary
Decision because he found there were no material facts in dispute and that the local board was
entitled to judgment as a matter of law, i.e. that the facts supported Ms. Harshman's removal
from the local boad based on misconduct in office and willfil neglect of duty. Ms. Harshman's
challenge to the proposed decision can be divided into two categories: (l) her challenge to the
ALJ's conclusion that there were no material facts in dispute;and (2) her challenge to the ALJ's
conclusion that she committed misconduct in ofce and willful neglect of duty.

We first determine whether there are material facts in dispute. If there are, this matter
must return to OAH for additional facfinding before we can consider a proposed decsion on
the merits.

fll Whether there,is a materirl fact in disoute

In order to resolve this case through a Motion for Summary Decision, the State Board
need not find that there are no disputed facts. Rather, it has to determine whether there are
maleral facts in dispute, i.e. facts that will somehow affect the outcome of the case, Grimes,
366 Md. at72. l:tis up to Ms. Harshman, as the nonmoving party, to "produce sufficient
evidence . . . that a genuine dispute to a material fact exists." Id. at73.

Ms. Harshman argues that the format of the proposed decision, particularly the lack of
"competent evidence" and missing citations to the record made it "impossible" for her'to
succinctly take exception" to the ALJ's fndings of fact. (Exceptions 45-52). She'qtherefore
takes exception with the entire Proposed Decision," arguing that "Summary Decision requires
proof that all facts provided . . . are both true, and undisputed, as a matter of law." (Exceptions at
l3). In our view, Ms. Harshman's blanket exception to the entire decision is the type of "[b]ald,
unsupported statements or conclusions of law," which is insufficient to demonshate that a
dispute of material fact exists. Ltghtoler v, Hoon,387 Md. 539,552 (2005) (citing Holfman
Chevrolet, Inc, v. I(ashngton County Nat'l Sav, Bank,297 Md.691,712 (1983)).

Rather than examine each and every fact as found by ttre ALI, we shall instead focus on
the few facts that Ms. Harshman asserts are disputes.

A. Ms. Harshman's krtowledge of events al lhe lime she made her Facebookposts
(Exceptions 5-10)

Ms. Harshman appears to argue that there is a dispute of fact regarding the extent of her
knowledge of the underlying allegations referenced in her Facebook post. In an affidavit filed as
part of this case, Ms. Harshman explains that all of the incidents she referenced on Facebook
happened "long in the past." All of the incidents she referred to had already been, to her
knowledge, referred to authorities by oths. Ms. Harshman had no firsthand knowledge of any
of the incidents and only learned of thern third hand, never from a victim. She nphasizes that

1l
 her posts did not mention "any individuals, schools or even time-frames regarding the subject
matter of the posts."

From our review of the record, there does not appear to be a dispute of material fact
conceming Ms. Harshman's knowledge of events. There is no dispute concerning what Ms.
Hashman posted on Facebook, her comments made in public, and her statements to the media.
Nor does the local board appear to challenge the statements in her affidavit about her knowledge
of the underlying accusations. In our view, no material dispute of fact exists.

B. Mandatory reportng ofsuspected child abuse @xceptions I I-13, 19-20)

The AU found, a fact, that Ms. Harshman's actions were "contrary to Maryland's
mandatory reporting laws and County Board Policy JLF.' Ms. Harshman disputes this
conclusion. There is no dispute that Ms. Harshman never reported her allegations to authorities.
But the issue of whether, in failing to report, Ms. Harshman violated mandatory reporting laws is
a legal question, not a factual one. We sball address this issue as a legal matter elsewhere in this
opinion.

C. Ithether Ms. Harshman's allegations of sexual abuse were true

(Exceptions I 5-l 8, 24-29, 84)

The ALJ found that none of Ms. Harshman's allegations of sexual abuse "were found to
have any merit by the Washington County Sheriffs Department (Sheritr) or the tilashington
County Department of Social Services." (Proposed Decision, at 6), The ALJ also found that the
Depafment of Social Services "conducted an investigation that revealed no evidence or
substantiation of [Ms. Harshman's] claims," (Proposed Decision, at 8). The ALJ further stated
that "investigations by the Sheriffs Department and the local department failed to establish that
any of [Ms. Harshman's] accusations had merit." (Proposed Decision, at l1). From our review
of the record, the actions of the Sheriffs Department and Departnent of Social Ssrvices are not
in dispute. Ms. Harshman rnay disagree with their decision not to pursue frrther action, but the
record is clear that neither the Sheriff s Department or the Department of Social Services took
action based on Ms. Harshman's accusations.

Ms. Harshman maintains that she presented "copious evidence" of the allegations about
sexual predators in WCPS schools. She adds that she "has shown, via evidence, that all of the
things she alleged have occured." Contrary to Ms. Harshman's assertions, we find very little
evidence in the record that supports her accusatiorts, let alone "copious" evidence. The only
evidence in the record supporting Ms. Hashman's accusations concems statements made by Ms.
Fischer to the Herald-Mail about her relationship with a student who became her husband. The
parties do not dispute Ms. Fischer's background. Ms. Harshman has otherwise failed to direct us
to any evidence in the record that would create a dispute of material fact about the brth of her
rernaining accusations.

TA
 D, Ml Harshman's reasonsr voting infavor of the resolution requesting her removal
(Exceptons 30-4 I, 92- I 0 1).

The local board h argued throughout these proceedings that Ms, Harshrnan's decision
to vote in favor of the resolution recommending her removal is a tacit admission to the charges.
Ms. Harshman maintains that her motivation in voting for the resolution - as explained during
the board meeting- was to have the State Board, as a neuEal body, consider the matter. Ms.
Harshman argues that the ALI held her vote against her in his proposed decision. She explains
that she was without the benefit of legal counsel and may have acted differently had she had the
opportunity to be advised. She points to this as a dispute of material fact conceming her
"knowledge, intent, or motive" in voting for the resolution.

The ALI acknowledged that Ms. Harshman's motivation and purpose in voting for the
resolution was one of the few factual disputes in the record. He found that Ms. Harshman's
explanation of her decision to vote in favor of the resolution made "little sense." (Proposed
Decision, But the ALJ ultimately concluded that it was inelevant what Ms. Harshman's
motivation^t25).
was in voting for the resolution.

This issue is immaterial to our final docision. Ms. Harshman clearly explained her
rationale at the time she cast her vote and has made clear throughout these proceedings that she
does not agree with tlre factual basis ofthe resolution. We shall not hold that vote against her in
considering whether her earlier actions constituted misconduct. As a result, any factual disputes
concerning why she voted for the resolution are not material and thsrefore do not preclude
summary decision.T

For all of these reasons! we adopt the ALJ's conclusion that there are no genuine disputes
of material fact, as modified by the reasoning included in this opinion.

(2) Whether Ms. Harshman Committed Misconduct in Ofice or Willfut Neglect of Duty

Having decided that there are no material facts in dispute, we can turn to whether the
findings of fact support charges of misconduct in office and willful neglect of duty. In doing so,
we use our independent judgment to determine whether Ms. Harshman should be rernoved from
office and our legal analysis here replaces that contained in the ALJ's Proposed Decision.

Misconduct in Offlcel

In a previous removal case, the State Board defined misconduct as including

"unprofessional acts, even though they are not inherently wrongfrrl, as well as hansgression of
established rules, forbidden acts, dereliction from duty, and improper behavior, among other

7 Similarly, Ms. Harshman's argument that Ms. Fisher should not have participated in the investigation of the
charges or voted on them is not relevant to our decision. (Exceptions, 100-l0l). Even had Ms. Fisher abstned
om the vote or not encouragcd other membrs to vote n favor of i Ms. Harshman voted in favor of the resolution
and encouraged her fellow board members to do the same.

I The partes do not appcar to dispute that Ms. Harshman's actions took place "in office." We agree that her actions
occurred as part of her official duties and in the conlext of her role as a boad member.

l3
 definitions." SeeDyerv. Howard County Bd. of Educ., MSBE Op. No, l3-30 (2013) (citing
Resetar v, State Bd. of Educ., 284 Md. 537, 560-61 (1979)). Misconduct includes malfeasance,
doing an act that is legally wrongful in itself, and misfeasance, doing an otherwise lawful act in a
wrongful mannr. Id. Such conduct need not be criminal. /d. "[S]erious misconduct that falls
short of the commission of a crime but that relates to an official's duties may be grounds for
removal under a civil removal statute." 1d. (quoting 82 Op. Atty. Gen ll7,120 (1997)).

We have reviewed the findings of fact and the record created by the parties. Under the
Summary Decision standard, we view this evidence in the light most favorable to Ms. Harshman.
We conclude that Ms. Harshman committed misconduct in office in the following ways:

This entire incident began with Ms. Hashman's Facebook post, in which she wote:

- "Washington County seems to look the other way or transfer the teacher to another
school-hardly a way of protecting our students from such predators. They should be
baned from entering our schools or having any contact with school activities."

- "Some are still teaching or working on the BOE."

- Responding to the question, "They are still working?" with "You have no idea!"

In her afftdavit, Ms. Harshman maintains that she never mentioned "any individuals,
schools, or even time-frames regarding the subject matter of the posts." She clarified that she
never leamed about abuse reports directly from a victim, that her information was third-hand,
that the events occurred long ago, the students are no\/ all adults, she learned of all incidents
long after the fact, and she believed the accusations had already been reported to the proper
authorities. Ms. Harshman points to the example of her fellow board mernber, Ms. Fischer, as
proving that her accusations were true.

Ms. Harshman's affidavit and her Fasebook post do not square with one another.
Although the afdavit emphasizes that Ms. Harshman's information concemed past events, her
Facebook post was writtt in the present tense. Ms. Harshman used the phrase "seems to look
the other way or transfer the teacher to another school" (emphasis added). The active voice does
not suggest that, years ago, Vfashington County looked the other way. Rathe it indicates that
Ms. Harshman believed Washington County was currenl ignoring the problern of child sex
offenders and fransferring teachers to cover-up that problem. Ms. Harshman stated that "some
are still teaching or working on the BOE." (emphasis added). Finally, she emphasized that her
allegations involved cunent teachers and recent events by answering the question, "They are still
working?" with the response "You havs no idea!"

We find no support in the record for Ms. Harshman's claim that the school system was
overlooking and actively covering up child sexual abuse or that there were many child sexual
offenders teaching in Washington County.

14
 2) Failine to report suspected child abuse to the proper authorities

Md. Educ. 6-202, concerning the suspension or dismissal of teachers, principals, and
other professional personnel, defines misconduct in office, in part, as "knowingly failing to
report suspected child abuse in violation of Sec 5-704 of the Family Law Article."

The Md, Code, Family Law Article $5-704 states the following:

(a) Notwithstanding any otherprovision of law, including any law on privileged

communications, each health practitioner, police officer, educator, or human
service worker, acting in a professional capacity in this State:

(l)who has reason to believe that a child has been subjected to abuse or neglect,
shall notiff the local department or the appropriate law enforcement agency; and

(2) if acting as a staff mnber of a hospital, public health agency, child care
institution, juvenile detention cnter, school, or similar institution, shall
immediately notiff and give all information required by ttris section to the head
of the institution or the designee of the head,

Similarly, Washington County Local Board Policy JLF requires that "[a]ll school system
ernployees are required to report any suspected child abuse or child neglect to the local
department of social serrices or the appropriate law enforcement agency ar soon as possible, but
without compromising student safety. Supervisors will provide [the] ernployee wth the
information necessary to report an event of suspected child abuse or child neglect." Local Board
Policy JLF, The policy designates what information must be communicated, how that
information must be delivered, and provides for the confidentiality of reports,

We are not convinced by Ms. Harshman's argument that the children at issue are now
adults. As the Attorney General has opined, mandatory reporting is required "no matter the
present age of the victim," 78 Md. Op. AtW. Gen. 189 (1993). "Even if one particular victim of
abuse or neglect is now an adult and thus outside the scope of the State's protective efforts,
others who are still children might continue to be at risk and in need of child protective services."
Id. We are similarly unpersuaded by Ms. Harshman's argument that she believed these incidents
had already been reported to authorities. If a mandatory reporter believes she has information
concerning suspected child abuse, she has a duty to report it. A potentially duplicative report is a
small price to pay to ensure the safety of children.

No one disputes that Ms. Hashman had the duty to report suspected child abuse as a
member of the local board. We agree with Ms. Hashman that neither state law nor the local
board policy requires that Ms. Harshman have reported suspected child abuse to Superintendent
Wilcox. Although these policies do not prohibit such an action, they do not require it. The law
and policies do, however, require Ms. Harshman to report to law enforcnent or the Department
of Sooial Services. The record is clear that Ms. Harshman never reported these incidents to
either authority. Instead, she posted her accusations to Facebook and only later provided names
of teachers she suspected to the news media" not the Darnent of Social Services. Ms.

l5
 Harshman provided the name of Ms. Fischer to law enforcenent only upon being contacted
directly by the Sheriff s Office. Her actions followed neither the letter nor the spirit of the
mandatory reporting law.

When confronted by Superintendent Wilcox, Ms. Harshman declined to provide him the
names of people she suspected of being child sexual offenders. Ms. Harshman wal not required
to diwlge narnes to the superintendent under mandatory reporting laws, but she was required to
inform him of her concerns under school system policy. Superintendent Wilcox's conffact,
which bound Ms, Harshman as a board member, required her to "refer promptly appropriate
criticism, complaints, and suggestions concerning the school system" to Superintendent'Wilcox
and "immediately notiff" the Superintendent ard local board if the Superintendent was "not
fulfi[ing his responsibilites" under state law. @etition for Removal, Ex. l, Statement of
Charges, at 1l-16; Ex. l4). If Ms. Harshman truly believed that the school system was ignoring
the problern of child sex offenders, she should have done more than simply post such allegations
on Facebook.

Moreover, when visited by law enforcarent the day after her Facebook post, Ms.
Harshman provided only Ms. Fischer's narne, not the names of others she suspected of abuse.
She later provided three other names to the Herald-Mal. Those names were reported to the
Departnent of Social Services only after a reporter revealed the names to Superintendent
Wilcox. Ms. Harshman withheld information as part of an investigation into child sexual abuse.
She alleged the school system was ignoring the problern of child sex offenders and then declined
to assist in an investigation sparked by her claims.

4) Creating unnecessary fear and panic in the communi

Ms. Harshman's Facebook post began to gain attention in the community almost
immediately. Her post generated multiple comments and led residents to contact the school
systan and local board mernbers to find out whether the post was bue. Local media began
extensive covrage ofthe situation. The ououring of concern in the community stenmed from
Ms. Hashman's claims that there were sexual predators cunently teaching in WCPS schools and
that the school systn was covering up the problem.

Ms. Harshman's behavior had a considerable negative effect on the community, leading
to hundreds ofhours of fruitless investigation by the school systn and other agencies. As
demonshated by media coverage and the local board's filings, it created panic in the community,
particularly gven that Ms. Harshman wrs not even sure if any of the teachers she suspected were
still in the classroom at the time she provided names to the media. In short, Ms, Harshman
placed the local board and school systern in an unwarranted negative light by making
unsupported allegations of a cover-up. This weakened the confidence and tnst that parents place
in the school system and caused unnecessary fear in the community about the safety of children
in schools.

I6
 Willful Nature of Her Actions

Not only must we find that Ms. Hashman committed misconduct, but that the
misconduct was willful. In the context of physician disoipline proceedings, the Court of Appeals
has stated that willl conduct "requires proof that the conduct at issue was done intentionally,
not that it was committed with the intent to deceive or with malice." Kim v, State Bd. ol
Physcans,423 Md.523,546 (201l). The conduct is "intentional, or knowing, or voluntary, as
distinguished from accidental," Id. at 545. As we have previously stated, willfulness does not
require the showing of an evil motive. See Dyerv. Howard County Bd. of Educ, MSBE Op. No,
13-30 (2013).

Ms, Harshman was aware of what she was doing from the moment she first posted her
accusations on Facebook. There is nothing accidental about her actions from that point forward.
Ms. Harshman had multiple opportunities to reflect on her words and correct the misperceptions
caused by her post. Instead, she chose to deliberately escalate her rhetoric and further fan the
flames of fear in the community, Ms. Harshman declined to cooperate with Superintendent
Wilcox or law enforcement and instead used the media to further spread her accusations. [n our
view, her conduct was "intentional, or knowing, or voluntary, as distinguished from accidental."
Kint,423 Md. at 545.

Summary of Misconduct

Each of these behaviors standing alone could constitute misconduct in ofce. then
viewed together, they paint an overwhelmirrg porhait of wrongdoing. In our view, Ms.
Harshman's actions constitute misfeasance, an otherwise lawful act done "in a wrongful
manner," See Resetar,z$4Md. at 560-61. Raising concerns about child sexual abuse is a lawfi.l
act; painting an entire school systn with the false accusation of hiding sexual predators is
"wrongful," Ms. Harshman's actions were unprofessional, a hansgression of established rules,
and improper See Resetar,z84 Md. at 560-61. For all of these reasons, we conclude that Ms.
Harshman committed misconduct in office.

\ryilil Neglect of Duty

In the education context, the State Board h defined willful neglect of duty as occurring
"when the employee has willfully failed to discharge duties which are regarded as general
teaching responsibilities." Baylor v, Ballmore City Bd. of Sch. Comm rs, MSBE Op, No. l3-l I
(2013). [t is an intentional failure to perform some act or function that the person knows is part
of his or her job. See Lassonv. Baltmore City Bd. of Sch. Comm 'rs, MSBE Op. No. 15-21
(201s).

As described previously Ms. Harshman failed to report suspected child abuse to the
proper authorities. This conduct constitutes not only misconduct in office, but also a willful
neglect of duty. We agree with the analysis offered by the ALJ on this point. Ms. Harshman's
"failure over a thirty-six year period to report such information to local deparnent investigators
or members of the law enforcenent.community, * well as school officials, constitutes a willful
neglect of duty, both legal and fiduciary, in every sense of the \ryord." (Proposed Decision, at

t7
36). Ms. Harshman wfls aware of the duty to report and deliberately did not do so. In our view,
her actions consttute a willftl neglect of duty for the same reasons that her actions constitute
misconduct in office.

Fitness To Bc A Board Member

ln order to remove a member of a local board, we must not only conclude that a ground
for removal has occurred but that the actions render a member unfit to be a local board member.
A board member is unfrt to continue serving whEn her conduct "involves substantial violations
that are harmful to the local board's nctioning." See Dyer t. Hou,ard Cowtty Bd. of Educ.,
MSBE Op. No. 13-30 (2013). We have previously stated that "a public official must be held to a
Itigh standard of professionalism and must carry out his or her duties with integrity and a high
degree of trust.'? .lrl,

In the words of the ALJ, "there may be no more compelling reason to deem a board of
education member unfit for duty than accusing, without evidence, an entire school system of
harboring and protecting sexual predators." (Proposed Decision, at 37). The school system had
to go to great lengths to undo the harm caused by Ms. Harshman's accusations. Vy'e conclude,
for all of the reasons previously stated, that Ms. Harshman should be removed from the local
board for rnisconduct in office and willful neglect of duty. Her violations were "substantial" and
"harmful to the local board's functioning" as well as lacking in professionalism. Ms.
Harshman's actions have undermined the trust the community and her fellow board members can
place in her judgment and necessitate her removal from the board.

CONCLUSION

We adopt, in part, the ALJ's Proposed Decision, and modi$r it as explained throughout
this opinion. We conclude that Karen Harshman committed misconduct in office and willful
neglect of duty and we remove her from the local board.

E.

R. Iszard

t
 Rose Li

Sidhu

M Jr

Laura

April25,2017

t9
BOARD OF EDUCATION OF ,1.
BEFORE MICHAEL J. WALLACE,

WASHINGTON COTJNTY * AII ADMIIISTRATIVE LAW JT]DGE

v. ft
OF' THE MARYLAI\D OFF'ICE

KAREN HARSHMAN, t OF ADMIMSTRATIVE IIEARINGS

RESPONDENT rl.
OAH NO.: MSDE-BE-l7-l 6-37668
r r * rl. 1. 1. tF * l rl. ,1. 4. *

PROPOSED RULING ON
MOTION F'OR ST]MMARY DECISION

BACKGROLIND
ISSUE
SUPPORTING DOCUMENTATION
UNDISPUTED FACTS
DISCUSSION
CONCLUSIONS OF LAW
PROPOSED ORDER
RIGHT TO FILE EXCEPTIONS

BACKGROI]NI)

On November 1,2016, the Board of Education of Washington County (County Board)

passed a resolution which directed Counsel for the County Board and./or its Chairman to execute

a request to the Maryland State Board of Education (State Board) to remove Karen Harshman,

Board Member (Respondent), from her position as a member of the County Board on the

gronnds of misconduct in office and willful neglect of duty. On Novemb er 4,20l6,Counsel for

the County Board sent a Statement of Charges for Respondent's removal from office to the State

Board, for alleged misconduct in offrce and willful neglect of duty. The State Board, on

December 5,2016, voted to transfer the matter to the Offrce of Administrative Hearings (OAH)

for assignment to an administrative law judge (ALJ), for the scheduling of a hearing and the

ultimate issuance of a proposed decision.

 The County Board seeks Respondent's removal from office under the provisions of

section 3-1301(d) of the Education Article. Md. Code Ann., Educ. $ 3-1301(d) (2014).

Respondent filed a request for a hearing with the State Board on December 14,2016, challenging

her removal, and the State Board transferred the matter to the OAH pursuant to its deiegation

author r:nder section 10-205 of the State Government Article. Md. Code Arn., State Gov't

$ 10-20s (2014).

On Janr,rar,v 23,2017,the County Board filed a Motion for Summar-v Decisionl (Motion)

asserting, among other things, that there are no genuine issues of material fact and that the

County Board is entitled to Summary Decision as a matter of law.

On February l0,20l7,Respondent submitted her response to the Motion, On the same

date, I conducted a motions hearing at the offices of the County Board in Hagerstown, Maryland,

dgring which the County Board and Respondent offered argirments on theu respective Motion

and Opposition. The County Board was represented by Leslie R. Stellman, Esquire. Ira C.

Cooke, Esquire, and Marianne Morris, Esquire, represented Respondent.

Procedure in this case is governed by the contested case provisions of the Administrative

Procedwe Act (APA), Md. Code 4rrr.., State Gov't $$ 10-201 through 10-226 (2014 & Supp.

2016), and the Rules of Procedwe of the OAH, Code of Maryland Regulations (COMAR)

28.02.01.

1
Uod., the OAH Rules of Procedure, a pfi may file a Motion for Summary Decision on all or any part of an
action, asserting therein that there is no genuine dispute as to any material fact and that the parly is ntitled to
judgment as a matter of law. COMAR 28.02.01.12D(l). Motions for summary decision shall be supported by
affidavits. Id. Atrtdavits in support of or in opposition to a Motion for Summary Decision shall be made upon
personl knowledge, shall set forth the facts that would be admissible in evidence, and shall show afFrmatively that
the afant is competent to testifli as to the mattrs stated in the affidavit. COMAR 28.02.01.IzD(l) and (3).

2
 In accordance with the delegation from the State Board, any dispositive decision by the

all wilt be a recommendation in the form of a proposed decision to the State Board. COMAR

28.02.01.258.

ISSUE

Should the County Board's Motion for Summary Decision be granted?

SUPPORTING DOCUMENTATION

In support of its Motion, the Local Board submitted the following attachments, supported

by aff,rdavit:

County Board 1 Resolution from November 1,2016 Cotrnty Board Business

Meeting

County Board2. Letter from Justin M Hartings, Ph.D,, to Fellow Board Members,
dated October 26,2016 (the Hartings Letter)

County Board 3 Copy of Respondent's original Facebook posting (A and B)

County Board 4 Minutes from October 18, 2016 County Board meeting with
attachments

County Board 5. Written Statement by Clayton Wilcox, Superintendent of the

Washington County Public Schools (WCPS)

County Board 6. Heraldmailmedia. com Article, "'Washington Courity B OE member

alleges active teacher had inappropriate relations with student,"
dated October 20,2016

County BoatdT Heraldmailmedia. com Article, "Washington County school system

policy, state law require prompt reporting of child abuse," dated
October 20,2016

County Board 8. Heraldmailmedia. com Article, "'Washington County teachers union

president: Students '100 percent' safe," dated October 22,2016

County Board 9 Article from the Herald Mail, "County School Officials Acted
Quickly," dated October 30,2016

Cotrnty Board l0 Article from the Herald Mail, "Two issues at core of Harshman
fiasco," dated October 30,2016

J
 County Board 11 Article from the Herald Mail, "Hatshman says ouster call is 'to
score political points'," dated October 29,2016

Connty Boardl2 Herald Mait Opinion, "Harshman unworthy of public trust," dated
October 25,2016

Countv Board 13. Heraldmailmedia.com Article, "Two Washington County residents

take Harshman to task," dated November 2,2016

County Board 14. Affrdavit of Clayton M. Wilcox, dated January 19,2017

County Board 15. written Statement for closing a Meeting under the open Meetings
Ac.t, datedNov. ember t,2016, with attachments

County Board 16. County Board Policy JLF - Reporting of Suspeeted Child Abuse
and Child Neglect

Respondent submitted the following documents with her Response to the V/ashington

County Board of Education's Motion for Summary Dismissal:

Respondent 1. AfFrdavit of Karen J. Harshman

'Washington
Respondent 2. Heraldmailmedia.com Article, "Contrary to allegations,
County BOE member's actions didn't violate law, policy," dated October
20,2016

-'JN-DISPUTED FACTS

Based upon the information of record, I find the following material facts about which

there is no genuine dispute:

l. Respondent was first duly elected to the position of member of the County Board,

in.November 2010, and reelected in November2014. Her current term expires in December

201 8.

2. Prior to becoming an elected member of the County Board, Respondent served as

a fu|l-time, career certificated teacher in the WCPS for approximately thirty years, retiring in

June 2010

4
 3 . On October 17 , 2016, Respondent posted the following statement on her

Facebook page thatwas accessible to many members of the V/CPS and the comrnunity atlarge

oMG. Dr. Phil has a story about a teacher having sexual relations with a
student. She lost her job and had to register as a sex offender.
'Washington
County seems to look the other way or transfer the teacher to
another school - hardly a way of protecting ow students from such
predators. They should be baned from entering our schools or having any
contact with school activities..

(County Board 3-A).

4. The October 17,2016, Facebook posting was widely read throughout Washington

County, raising questions and concerns within the school community about the possible

existence of pedophiles in the school system. Community members immediately began to raise

questions about the possibility that school administrators, up to and including the Superintendent

of Schools, knew of the existence of sexual predators in the schools but chose to cover it up by

transferring offending teachers to other schools.

5. Additional contemporansous Facebook postings made by Respondent include the

following:

Julie Beadle Hicks: Washington County is still ignoring the problem?!

Karen Pike Harshman: Julie, some are still teaching or working on the
BOE.

* ,0. *

Juiie Beadle Hicks: That is crazy. V/e all know who they were. 'We
joked about it when we were in school. Now I would do whatever was
needed to make srue they landed in jail.

t rl t

Karen Pike Harshman: That is what should have happened to them. I

canot imagine how awful that would be for a student. Teachers are in a
position of trust and leadership.

5
 * :'1. *

Karen Pike Harshman: You have no idea!

(County Board 3-B).

posting was widely shared throughout the community. Further criticism of Respondent's

conduct resulted in defensive and escalating responses in the commrurity.

1
t. \Jnne
I\vuv nf
vr the .aiiec'afions raised h. R-esnondent trere found to have anv merit bv
-J the
-'-

Washington County Sheriff s Department (Sheriff) or the Washington County Department of

Social Services (local department).

8. By the time of the County Board's public business meeting on October 18,2016,

members of the County Board and WCPS administration were being inundated with questions

and concerns raised by community members as a resuit of Respondent's initial Facebook

posting. County Board Vice President, Justin Hartings, addressed the public by making the

following statements at a County Board meeting, as reported in the minutes of the meeting on

October 18,2016

[L]ike 40,000 parents and as aparcn( he entrusts his children's safety in

public schools every day. Student safety isn't just an operation or public
policy question but is personal. Student safety is not a matter for joking or
to be taken lightly, as safety,is everyone's responsibility. He added that
when someone goes to social media and suggests that there is a threat
against students, that there is negligence in the schools that puts the
community's students at risk, everyone must take it seriously. No one has
the luxury of assuming that a particular threat or allegation of negligence
in the schools is not true. He referenced a post from one of his colleagues
on social media [referring to Respondent's posting]. He noted that an
allegation on social media is a public allegation and thought in fairness to
staff and to parents regarding children's safety, it deserved a public
response.

2
Dr. Hartings is the only member of the County Board who still has children that are enrolled in the WCPS system.

6
 He reminded Board members and everyone in schools that they have an
obligation under State law, federal law, and Board policy JLF,' to report
any suspected case of child abuse, sexual abuse, or child neglect. If
anyone knows of such incidents, both law and policy require that reports
be filed with the Departrnent of Social Services and local law
enforcement. Trafficking rumors on social media does nothing but
frighten the public. He added that it is irresponsible for someone that
holds an off,rce that the public trust to make these kinds of allegtions and
incite fear in students and families without evidence to support the claims.
(sic)

He believed the person has an obligation to apologize to staffmembers,

teachers, principals, safety offtcers, guidance counselors, school resource
offrcers, and the human resources department who work every day to
ensure that students are safe. He also believed an apology is necessary to
the parents and students who are frightened by the suggestioir that has
been made. He added that they work too hard on behalf of students to be
smeared with inesponsible allegations on social media and have enough
work to enstring the safety of the system without having to waste time
worrying about an unsubstantiated online smear from a member of the
Board. He ensured the public that he knows of no case where anything
being alleged in the school media post is true.

He has absolute confidence in [Superintendent Clayton] V/ilcox and his

human resources team, in guidance counselors, principals, and the staff
that teach students each day. He has enough confidence that he trusts
them every day with his own children and hoped that parents would too.

(County Board 4).

9. During and at the close of the County Board public business meeJing conducted

on October I8,2016, Respondent was asked repeatedly by Dr. Clayton Wilcox, the

Superintendent of Schools, to identifr those teachers whom she characterized as "predators," but

Respondent repeatedly refused to do so.

10. Receiving no information from Respondent regarding the identity of teachers who

were allegedly abusing students in the WCPS, Dr. V/ilcox imrirediately notified the Sheriff,

which subsequently attempted to question Respondent. Respondent refused to respond to

County Board Policy JLF states, in pertinent part "All school system employees [shall] report any suspected child
3

abuse or child neglect to the local deparhnent ofsocial services or the appropriate law enforcement agency as soon
as possible..." (County Board l6).

7
qriestions posed by representatives of the Sheriff s Department, including a Deputy Sheriff who

met Respondent t her home, regarding the identity or identities of teachers who had allegedly

engaged in improper sexual relations with students.

name of fellow Board member

Jacqueline Fischer to the SherifPs Department. The SherifPs off,rce subsequently reported to Dr.

V/ilcox that this individual was not eemed to be a threat to young people by the investigating

vurvvr.
^Sar

12. The Herald-Mail is the leading newspaper in the Hagerstown, Maryland area with

a circulation of more than27,000 daily, more than 32,000 on Sunday, and mote than four million

page views monthly.

13. Over the following days Respondent eventually identif,red three other past and/or

curent teachers whom she ciaimed to have been engaged in inappropriate sexual relations with

students. However, those communications were made solely to representatives of the media,

specif,rcally the Herald-Moil, rather than to law enforcement or the local department.

Superintendent Wilcox learned of this communication between Respondent and the press in a

telephone call received from Herald-Mail education reporter Julie Green.

14. Promptly upon leaming of these communications between Respondent and the

press, WCPS officials informed the local department of the names of the teachers identified by

Respondent, which conducted an investigation that revealed no evidence or substantiation of

Respondent's claims.

15. Respondent's manner of reporting alleged sexual misconduct by current and/or

former teachers to the press ra*rher eitlier to her fell.ow County Board members, the
"han
Superintendent, WCPS staff, the local department or law enforcement impeded the ability of the

8
County Board and those other entities and agencies to conduct a timely, proper, and thorough

investigation into her claims and was contrary to Maryland's mandatory reporting laws and

County Board Policy JLF.

16. Respondent's contention that she was awtre of what she charactenzedas a

longstanding practice regarding the retention and transfer of sexual predators from school to

school has created a heightened sense of concem within the community for the safety and

wellbeing of the students of the WCPS. The heightened degree of community concern created

by Respondet's Facebook posting and subsequent actions compelled Superintendent Wilcox to

promptly issue a letter to the public on Ocober lg,20l6,in which he attempted to assure parents

and students that "the safety and security of your children is or,r highest priority," and that

WCPS "would never place them in a compromised position or within the reach of a person with

questionable character." (County Board 5).

17. The community and media immediately responded to Respondent's actions.

Rather than recanting her accusations, Respondent'g responses reinforced the sense of fear and

apprehension in the WCPS school_commumty. In a Herald-Mail story that was widely

circulated in V/ashington C_ounty on October 20,2016, it was reported that after admitting that

"she has never reported any of her past allegations about sexual predators to authorities,"

Respondent indicated her intention to "call the sheriff s office with the name of an afuteacher

who had inappropriate relations with a student..." (County Board 6) (emphasis added). This

article frrrther confirmed that Respondent told the press that "she wasn't sure if' each of the
accused teachers "all had retired" and that "some are still teaching," leaving the impression that

the County Board continued to employ teachers with a history of sexual misconduct with

students. (1d )

9
 18. [n a related story published by the Herald-Mail on October 20,2016 (County

Board 7), Respondent admitted that "she had been aware of the allegations of [sexual]

misconduct y V/CPS employees] back in the 1980's," and that "one of the people she

))

19. Respondent's accusations created immediate concem and anxiety among the

teachers and staff members of the V/CPS.

'1r
2V.
I- a ^'.hlishe cfn in fhe iiovn/l-nil nn f)cfnhcr)l )fi16 \,/ashinofon Cortntv

Teachers Association (V/CTA) president Neil Becker attempted to calm the public by informing

them that he was "100 percent confident" that students were safe from sexual misconduct in the

V/CPS. (County Board 8.)

21. In the October 24,2016 story, the Herald-Mall confirmed that "[t]he sexual-abuse

topic has created a stir on sociai media this week, with many peopie commenting online that

[Respondent's] allegations of misconduct were inappropriate or should have been reported

sooner if they were true. Others have called for her resignation." (Id.)

22. Reflecting concern shared by County Board President Donna Brightman and other

members of the County Board as a result of the events put into motion by Respondent's

Facebook posting and subsequent conduct, on October 26,2016, Vice President Hartings

circulated a letter among his fellow Board members (County Board 2) informing them of his

intention to "adopt a resolution initiating the process of removing [Respondent] from office,"

thus placing "this sad chapter behind us as a school system." (Id. at 6.) This letter was placed in

each County Board member's packet for discussion at the November 1,2076, public business

meeting of the County Board.

10
 23. Ina Herald-Mail story dated October 30,2016 (Cotrrty Board 9), Superintendent

Wilcox observed that "the entire ordeal had been a shadow cast over [V/CPS] for the last couple

weeks," and that "[n]o matter where [he had] gone, whether speaking at a Kiwanis Club or

walking through Sam's Club, people have come up and talked to [him] about this." As reflected

in the October 30,2016 story, Dr. Wilcox firther asserted that the intense focus on the

allegations by the Respondent about the school system had distracted his administration from the

critical goals of,teaching, learning, and student achievement.

24, In an op-ed piece by Herald-Mall columnist Tim Rowland, published on October

30,2016 (County Board 10), Respondent was severely criticized for "her unfounded allegations

that the school system iguores sexual predators." Referring to Respondent's tactics as

"despicable," columnist Rowland characterized Respondent's conduct as "a horrific failure in

judgment," stating as follows:

Did [Respondent] think a social-media post could somehow be confined to a

select audience? Did she think no one would call her bluff? Did she fail to see
the comer into which she was painting herself -- that you can't announce that
sexual predators are walking the hallways of Washington County's public schools
and then refuse to name names? Did she not know there is even a law to this
effect?

A reasonable parent or taxpayer will also wonder what other ufounded rumors
she has spread, or what other lies she has told. They will wonder if they can trust
anything she says from here on out. . ' .

[T]here is a diffrence between dishonesty and knowingly inciting fear among

'We
children and parents for political gain. would abhor this behavior even on the
part of a common citizen. When that rot comes from inside the Board itself, the
public has a right to be alarmed.

25. Despite the fact that investigations by the Sheriffls Department and the local

ilepartment faited to establish that any of Respondent's accusations had merit, Respondent

neither retracted her accusations nor apologized. Instead, she became even more defensive

l1
regarding her behaviors, insisting that she remains a consrilnmate "statesman," and accused

critical fellow County Board members of attempting to "score political points" by seeking her

removal. (County Board 11).

), n Oe.toher ),6 ),016 the Herald-Mall oublished an editorial calling for

Respondent's resignation or removal from office (Countv Board 12), observing:

[E]ither [Respondent] was lying about active predators in our schools, or as a

mndatory reporter under the law, she was covering up for criminals by refusing
+^ ,{;--,i;^
LU UIY qlV fLoi
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When others expressed disbelief [as to her accusations], fRespondent] doubled

down, writing that'some are still teaching or working on the BOE.' This is
scarcely proper behaior for a gossipy parent, but it is outright malfeasance for a
sitting board member.

The editorial conluded by stating that:

[A] person who is so lackjng in judgment has no business sitting on a public

board. No doubt [Respondent's] irresponsibiiity ieci some parents to genuinely
fear for their children's safety or to play guessing games as to who these alleged
offenders might be.

For this, fRespondent's] track record on the board has crossed the line from the
questionable to the despicable, an{i v/e can oniy conciude that shc is neither
worthy of public trust nor fit for public office.

27. At its public business session onNovember l,20l6,the County Board heard from

concemed parents and citizens who urged Respondent's removal. As reported by the Herald-

Mail onNovember 2,2016 (Cotrnty Board 13), there were calls for Respondent's resignation or

removal based upon what one rea resident characterized as conduct which damaged parents'

and children's peace of mind and negatively impacted the County economically

28. On October 28,2016, each of the members of the Board, including Respondent,

were provided with a cover sheet that inciuded a copy of a detailed letter prepared by Vice

12
President Hartings as well as a proposed Resolution recommending the removal of Respondent

from office. Respondent received the same information as her fellow Board members.

29. On Novemb er l,20I6,the seven members of the County Board ioted

unanimously to refer a Statement of Charges to the State Board, pursuant to Section 3-1301(d),

alleging that Respondent had engaged in misconduct in offrce and willful neglect of duty'

30. Respondent did not question the validity of the Resolution nor did she challenge

the contents of the Statement of Charges. She also voted with her colleagues to'send the

Statement of Charges to the State Board. Her only public contention regarding the Statement of

Charges was to insist that she told the truth and that she was a "sttesman."

31. According to the published minutes of the November 1,2016, public business

meeting (County Board 15), the County Board voted unanimously to adopt a mtion made by

Vice President Hartings "that Respondent be removed from offrce for misconduct in offrce and

willful neglect of duty" and to "adopt Dr. Hartings' October 26,2016letter, fthe Hartings letter]

[County Board 2] as its official position regarding Respondent's conduct'"

32. The official minutes of the County Board's November 1,201'6,eeting (County

Board 15) quoted Respondent in response to the November 1,2076 motion as follows:

Well, in order to save my friends that I bully I would like to read this
statement. I will welcome the state's involvement where there will be no
chance of the controlling majority making a decision based on political
desires. I have maintained that I am no politician. I am a statesman and
James Clark defined it - a politician is concerned with the next election, a
statesman is concerned with the next generation. I am a statesman. So we
don't need to take the vote. I'm willing to let the state determine if
certainly not the majority of four.

33. By voting with her colleagues to adopt the November 1, 2016 Resolution,

Respondent voted to accept the content of the Hartings letter as the Board's official

13
position. That letter included a recitation of the grounds for her removal (County Board 2

at2-3), which included the following:

[Respondent] . . . claimed that she was aware of what she characterized as

a longstanding practice regarding the retention and transfer of sexual
had on for "decades." When
asked on her public Facebook page if these practices are still taking place,
[Respondent] responded that "some are still teaching or working on the
BoE." These allegations led many in our school community to ask
whether those "still teaching" wefe at "their" school or in a classroom with
"their" child.

Following last week's Board meeting the Superintendent directly asked

Respondent, at least three times, for the names of either past or present
teachers who had engaged or \ilere engaging in inappropriate conduct with
students. Each time fRespondent] angnly refused to provide the details
the Superintendent requested. Latet that evening, a Herald Mail reportet
called the Superintendent to ask about the employment status of two
individuals. The reporter indicated that [Respondent] had provided her
with two names of individuals she believed to be sexual predators.
Since [Respondent] refused to provide the names of sexual predators she
believed to be working in our schoois, the Superintendent contacted the
Washington County Sheriff s office. A sherifFs deputy met with
[Respondent] later that same evening. When the sheriff s deputy asked
[Respondent] for the names of the sexual predators in our schoois,
[Respondent] provided only the name of her Board colleague, Mrs.
Jacqueline Fischer. She dici not provide the names of the in<iiviciuais she
had identified to the Herald Mail reporter hours earlier. Later in the week,
[R'espondent] contacted a Herald Maii reporter againto share the name of
another individual she believed to be a sexual abuser of children.
fResponden]t provided three names to the Herald Mail and one name,
Mrs. Fischer's, to the'Washington County Sheriff s offtce.

Upon learning these fouf names, the Superintendent immediately turned

them over to the Department of Social Services (DSS). By the end of the
week, DSS had determined that there was no basis to pwsue an
investigation of child sexual abuse against any of the named individuals.

* ,ft d.

To date there remains absolutely no evidence that anything [Respondent]

said, pu'olishe,J, or reported was accirate. Absolutely no evidence has
emerged that would support her allegations. Based on the work of the
SherifPs Office, DSS, the Herald Mail, and V/CPS staff, it is now clear
that [Respondent's] charges are categorically false. Considering

l4
 [Respondent's] allegations, the facts as we know them, and
[Respondent's] actions in the last two weeks, there is ample cause to
recotmend to the State Board that she be removed from offrce:

[Respondent'] false statement that "some [teachers] are still teaching or

working [at] the [Board of Education]" has so\ 'n seeds of doubt, distrust,
and fear among parents throughout V/ashington County. . . . [n]o letter
from the Superintendent can fully undo the damage that fRespondent's]
statements have done to the reputation of WCPS. fRespondent's]
irresponsible behavior has undermined the confidence that parents must
have to entrust ow teachers, administrators, and support staff with their
children every day. Ibelieve that falsely rndermining our community's
confidence in their school system constitutes misconduct.

fRespondent's] reckless comments to the public and press told the

community that their school system has been engaged in an illegal pattern
of covering up child sexual abuse. . . . The Superintendent, school
principals, and members of the WCPS human resources deparhnent . . .
have all now been falsely accused by a Board member of covering up sex
crimes on a system-wide basis over the course of decades. I believe that
[Respondent's[ false accusation that IVCPS staff covers up child sexual
abuse constitutes misconduct.

34. The Hartings letter went on to address what constituted conduct that supports a

finding of willful neglect of duty within the meaning of Section 3-1301(d)(iv):

As a teacher for over lthirty] yea.rs, fRespondent] had an affirmative,

statutory duty to inform DSS as well as administrators in her school of any
sexual misconduct in our school system. Now she contends that sexual
misconduct between teachers and students has gone on for "decades." As
a mandatory reporter for the last three decades under Maryland law, she
had an obligation to report such conduct. Her faihue to do so could have
resulted in her dismissal as a tenured teacher and continues to constitute a
criminal violation of the law governing the reporting of sexual abuse. I
believe that fRespondent's] failure to report known or suspected sexual
misconduct constitutes misconduct and willful neglect of duty.

(rd.)

35. On November 1, 2016, the County Board passed a resolution which

directed counsel for the County Board andJor its Chairman to execute a request to the

15
State Board to remove Respondent from her position as a member of the County Board

on the grounds of misconduct in offrce and willful neglect of duty.

36. OnNovember 4,2016, Counsel for the County Board sent a Statement of

in offrce and willful neglect of duty.

37. On December 5,2016, the State Board voted to transfer the matter to the

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of a proposed decision.

DISCUSSION

Legal Framework

A. Procedural Law

The procedural law applicable to this matter is codified in the contested case provisions of

the Administrativ; Procedure Act, the Rules of Procedure of the OAH, and the COMAR regulations

goveming appeals to the State Board. Md. Code Ann., State Gov't $$ 10-201 through 10-226 (2014

& Supp. 2016);COMAR 28.02.0I; COMAR 134.01.05. Relevant case law and State Boarci

decisions are also applicable.

The OAH's Rules of Procedure provide for consideration of a motion for summary

decision under COMAR 28.02.01.I2D. This regulation provides as follows:

D. Motion for Summary Decision.

(1) Any parry may file a motion for summary decision on all or part of an
action, at any time, on the ground that there is no genuine dispute as to any
material fact and that the party is entitled to judgment as a matter of
law. Motions for sunmary decision shall be supported by affrdavit.

(2) The response to a motion for summary decision shall identify the material
facts that are disputed.

t6
 I
t:

(3) An affrdavit supporting or opposing amotion for summary j.

decision shall be made upon personal knowledge, shall set forth

the facts that would be admissible in evidence, and shall show
affirmatively that the afFrant is competent to testiff to the matters :

stated in the affrdavit.

(4) The judge may issue a proposed or final decision in favor of or against
the moving party if the motion and response show that there is no
genuine dispute as to any material fact and that the pafty in whose
favor judgment is entered is entitled to judgment as a matter of law.

Summary decision is appropriate where there is no genuine issue of material fact and a

parry is entitled to prevail as a matter of law. The requirements for summary ".irion under

COMAR 28.02.01.I2D are virtually identical to those for summary judgment under Maryland

Rule 2-501, which contemplates a "two-level inquiry ." Richman v. FWB Bank, 122 }i4:d. App.

It}, 146 (1998). The Richman cotxtheld in pertinent part:

[T]he trial
sts as to
any materi as matter
of law. In the facts in
the light most favorable to the non-moving party. It must also
all inferences reasonably drawn from those facts in favor of
"o.rrt-"
the non-movant.'

To defeat a motion for summary judgment, the non-moving party must

establish that agenuine dispute exists as to a material fact. A material
fact is one that will somehow affect the outcome of the case. If a
dispute exists as to a fact that is not material to the outcome of the case,
the entry of summary judgment is not foreclosed.

Id. (citations omitted). Accord Kingv. Bankerd, 1nc.,303 Md. 98, 110-11 (1985).

In reviewing a motion for summary decision, an administrative law judge may be guided

by case law that explains the nature of a summary judgment in court proceedings. The Supreme

Court has noted, regarding the standard for summary judgment, "the mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of zaterial

fact.,' Anderson v. Liberty Lobby, Inc., 477 IJ.5. 242,248 (1986) (emphasis in original)' A mere

I7
scintilla of evidence in favor of a nonmoving party is insuffrcient to defeat a summary judgment

motion. Anderson, 477 U.S. at25l. A judge must draw all justifiable inferences in favor of the

non-movingparFj. Masson v. New Yorker Magazine, Inc., 501U.S. 496, 520 (199I).

disputed issue of fact or credibility, but only to determine whether such issues exist. ,See Eng'g

Mgt. Servs., Inc. v. Md. State Htghway Admin.,375 Md. 211,226 (2003). Additionally, the

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disputes, but to decide whether there is an issue of disputed fact, whichis suffrciently material to

be tried. See Goodwichv. Sinai Hosp. of Baltimore, nc.,343 Md. 185, 205-06 (1996); Coffey v.

Derby Steel Co.,291}l4.d.241,247 (1981); Berkeyv. Delia,287 I|l4d.302,304 (1980). Only

where the materil facts are "conceded, undisputed, or uncontroverted" and the inferences to be

drawn from those facts are "plain, definite and undisputed" does their legal signif,rcance become

a matter of law for summary determinaton. Fenwick Motor Co. v. Fenwick, 258 Md. I34, 139

(te7o).

The Court of Special Appeals has discussed what constitutes a "material fact," the

method of proving such facts, and the weight a judge ruling upon such a motion should give the

information presented :

"A material fact is afactthe resolution of which will somehow affect the outcome
of the case." "A dispute as to a fact 'relating to grounds upon which the decision
is not rested is not a dispute with respect to a material fa and such dispute does
'We
not prevent the entry of summary judgment."' have further opined that in
order for there to be disputed facts sufficient to render summary judgment
inappropriate "there must be evidence on which the jury could reasonably find for
the plaintiff"

... . The triai court, in accordancewith Maryland Ruie 2-50i(e), shaii rencier
summary judgment forthwith if the motion and response show that there is no
genuine disput as to any material fact and that the moving party is entitled to
judgment as a matter of law. The purpose of the summary judgment procedwe is

18
 not to try the case or to decide factual disputes, but to decide whether there is an
issue of fact that is sufficiently material to be tried. Thus, once the moving parly
has provided the court with suffrcient grounds for summary judgment,
[i]t is...incumbent upon the other parfy to demonstrate that there is indeed a
genuine dispute as to a material fact. He does this by producingfactual
assertions, under oath, based on the personal knowledge of the one swearing out
an affidavit . . . . "Bald, unsupported statements or conclusions of law are
insufficient."

Tri-Towns Shopping Ctr., Inc., v. First Fed. Sav. Bank of W. Md.,114 Md. App. 63, 65-66

(1997) (emphasis in original) (citations omitted).

Moreover, when a motion for summary judgment is supported by an affidavit and

exhibits and no opposing affrdavit is filed, the non-moving party is considered to have admitted,

for the purpose of summary judgment, all statements of fact in the moving party's affrdavit.

Alamo Trailer Sales, Inc., v. Howard Cty. Meno. Comm'n,243 Md. 666, 668 (1966) roperfy

owners' allegation that public hearings related to classification and taxation of land as

commercial property were not held according to law was insuffrcient to preclude srunmary

judgment in the absence of an affidavit supporting the allegation). A mere general denial of facts

set forth in the moving party's affidavit is not enough to show that there is a general dispute as to

amaterialfact See id.

B. Substantive Law

The County Board seeks to remove the Respondent from her position as an elected

member of the County Board due to alleged misconduct in office under section 3-1301 of the

Education Article. Md. Code Arn., Educ. $ 3-1301 (2014). That statute provides, in pertinent

part, as follows:

(dxl) The State Boad may remove a member of the [Washington County Board]
for:

( Immorality;
(i Misconduct in offrce;

t9
 (ii Incompetency; or
(1") Willtul neglect of duty.

(2) Before removing a member, the State Board shall send the member a copy of
the charges against him and give him an opportunity within 10 days to request a
hearing.

(3) If the member requests a hearing within the 10-day period:

(i) The State Board promptly shall hold a hearing, but a hearing may not
be set within 10 days after the State Board sends the member a notice of
the hearing; and
/r::\ '11.^ *^*1^-- ol"oll Lo.ro
Yv an nnnnrfirnit fn hp Ipqr nrrhlinlr hefnrc fhe
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State Board in hrs own defense, in person or by ccunsel.

(4) A member removed under this subsection has the right to a de novo review of
the removal by the Circuit Court for'Washington County.

The State Board has the authority to delegate contested case hearings to the OAH under

section 10-205 of the State Government Article of the Maryland Anotated Code. Md. Code

Ann., State Gov't $ i0-205 Q0I4). In an appeai of a finai State Board decision, the Circuit

Court may affrrm the final decision or reverse or modiff the decision if any substantial right of

the petitioner may have been prejudiced because a finding, c.onclusion, or decision is, among

other things, arbitrary or capricious. Md. Code Ann., State Gov't 5 I0-222(h)(3)(vii) (S,rpp.

2016).

"Arbitrary" (und "capricious," its usual companion) is "best tmderstood as a,

reasonableness standard." Harvey v. Marshall, 389 Md. 243,297 (2005). So long as an

administrative decision is reasonable or rationally motivated, it should not be struck down as

arbitrary or capricious. Harvey, 389 Md. at299. A decision may be deemed arbitrary or

capricious if an agency acts in a way contrary to or inconsistent with an enabling statute's

language or poiicy goals, if an agency's action is inationally inconsisterrt w-ith previous agency

decisions, or if the agency treats similarly situated individuals differently without a rational basis

20
for the deviation. Id. at302-04. See, e.g., Montgomery Cty. v. Anastasi,TT }i/.d. App. 126,I38-

39 (198S) ("opposite decisions based on indistinguishable facts," without adequate explanation).

Arbitrary and capricious review must be performed on a case-by-case basis, as the

outcome necessarily depends on the specific facts of each case. The test is "whether a reasoning

mind could have reached the factual conclusion that the agency reached, consistent with the

proper application of controlling legal principles." Travers v. Baltimore Police Dep't,115 Md.

App. 395, 420 (1997). Moreover, in such a case, great deference must be accorded to the

agency. Id. See also Berkshire Life Ins. Co. v. Maryland Ins. Admin.,142 Md. App. 628,649

(2002).

As this is a Motion for Summary Decision, the burden of proof is on the County Board as

the moving party. Generally aparty asserting the affrrmative of an issue bears the burden of

proof in a proceeding before an administrative body. See Comm'r of Labor & Indus. v'

Bethlehem Steel Corp.,344 Md. 17, 34 (1996) ("the burden of proof is generally on the party

asserting the affirmative of an issue before an administrative body") (quoting Bernstein v. Real

Estate Comm'n, 221 ll'dd. 227, 231 (1959)).

The administrative law judge shall submit in writing to the State Board a proposed

decision containing frndings of fact, conclusions of law, and recommendations. COMAR

28.02.0L25B. The State Board shall make a final decision in all appeals conceming the removal

of a school board member. Md. Code Ann., Educ. $ 3-1301 Q0l4). An order granting a Motion

for Summary Decision would have the effect of terminating the appeal, and thus a proposed

decision recormending that the Motion be granted is appropriate as the State Board, and not the

administrative law judge, has the final decision-making authority. An order denying the Motion

would not have the effect of terminating the appeal, and thus the administrativelaw judge would

2l
have the authority to deny the motion without referring the decision to deny the Motion to the

State Board. See also COMAR 28.02.01.25C, whichprovides that "[e]xcept as otherwise

provided by law, when the judge is the final decision maker, the decision is the final decision for

))

Anal:vsis

The County board seeks to remove Respondent from her position as a member of the

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issue, however, is whether Respondent has raised genuine disputes of material fact, or whether

the County Board is entitled to summary decision as a matter of law.

'Wilcox,
At the outset, Respondent argued that the affidavit of Dr. submitted by the Board

in support of its Motion for Summary Decision, is wholly insufficient to meet the County

Board's burcien of proof. Citing COMAR.28.02.0i .12D(3), Respondent contended that the

Affidavit is not made upon personal knowledge, does not set forth the facts that would be

admissible in evidence, and does not show that Dr. Wilcox is competent to testify to the matters

stated in the affrdavit.

Respondent further asserted that the affidavit only states that Dr. V/ilcox is familiar with

the facts as alleged because he reviewed the file and that he believes them to be true.

'Wilcox,
Respondent argued that Dr. however, does not state that he was personally present when

events occurred, does not have personal knowledge of the issues he attests to and does not set

forth the facts that could be submitted into evidence through his testimony.

The County Boad asserted and has successfully established that the affrdavit of Dr.

'ilcox is suff,icient to show trLrat he is personally familiar with the fcts and circumstances of the

statement of charges. The Affrdavit specifically states that Dr. V/ilcox has served as the

22
Superintendent of WCPS since 2011, has attended nearly every meeting dwing that time and

specifically did attend every meeting in October and November 2016. The AfFrdavit also states

that ho reviewed the Statement of Charges at issue in this case, as well as each of the documents

submitted in support of the charges, and that to his personal knowledge, all matters asserted are

true and correct. It is reasonable to assume that he is, thus, familiar with the County Board's

business and activities, particularly with regard to this matter. There is no requirement, as the

Respondent suggests, that Dr. Wilcox needed to be present when each of the matters asserted,

such as when the Facebook postings took place. It is only necessary that he was a1/are of the

postings after they were made, and that these postings put information from Respondent on

social media to be seen by the public atlarge without first notiffing the Sheriffor the local

department of the allegations posted, afactthat is not disputed. In addition, Dr. Wilcox was also

aware of Respondent's statements to the media, particularly the Herald- MaiL anewspaper of

wide circulation in Washington County

The affidavit is, in fact, based on Dr. Wilcox's personal knowledge as Superintendent of

the WCPS of each of the assertions contained in the statement of facts. There is also no dispute

'Wilcox,
that Dr. who as Superintendent oversaw nearly all of the County Board meetings since

July 201 1, was aware of and is competent to testiff on the matters contained in his affrdavit.

Based on these considerations, I am convinced that the affidavit of Dr. V/ilcox meets the

requirements of COMAR 28.02.01.12C and that the argument of Respondent in this regard is

without merit. i

The County Board noted that on November l,20l6,Respondent voted in favor of the

resolution to remove her from the County Board. This fact is not in dispute. The County Board

asserted that despite Respondent's contention that her vote to adopt the November t,2016,

23
Resolution was merely for the purpose of "availfing] herself of an objective tribunal," thete is no

evidence that she was not fully aware of the contents and impact of the Resolution which she

joined her colleagues in adopting. The County Board firther argued that for her to now claim

1S to the hundreds of votes

she has cast every year for the past six years, many of which involved sigmfreant and complex

issues ranging from the renewal of the contract of the superintendent of schools to the details of a

oiln
IPJVV
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'flha flnrnfrRnqtd crorred firtherthnt as a long-standins
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electgd

official of the Coytf Board, Respondent is presumed to have understood and appreciated the

significance of each of those votes, including her vote on Novembet 1,2076, to adopt the

Statement of Charges and accompanying letter prepared by Vice President Hartings.a

The Coqnty Board frrrther maintained that Respondent's acquiescence in the vote cast by

her colleagues on November 7,2016, was unaccompanied by any reservations, qualificatiorrs, ot

denials. Even in her Prehearing Statement, there was absolutely no mention of any factual

evidence that she intended to produce to refute the contentions raised in the Statement of

Charges, other than a general denial, l.e., "[Respondent] is not guilty of the charges as alleged."

Respondent argued that atthe November 1,2016 County Board meeting, she made a

contemporaneous statement in the record explaining her actions, but contended that the County

Board now asserts that her vote was an explicit and absolute admission and acceptance of all

factual and legal allegations of the complaint against her, even if it was done in error and without

her knowledge or understanding. She further contended that she appeared at the November 1,

2016 Board meeting unrepresented by counsel, that she had gone there intending to read a
LI r r-f--- I .^ ^-^.:-^+ L^ .1"^ l---"' o rl^ttlrf
svuvL fhaf
slalemgnt ln.rrgr--- uglIts, lllLt LU --^L^
vutg l'B1nrsL ^L^--^-
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NIvYY "';+L^"+ Lrr

o The Respondent recogrrized in her Prehearing Statement that the action of removing a duly elected off,rcial is a
grave matter.

24
there would be enough votes to refer the charges to the State Boad. She fr:rther alleged that

there was a well-known and long standing voting block of four members of the Board who

controlled most decisions, and they had made it clear they intended to have her removed.

Respondent argued that the effors and omissions contained in the ctt*giig document

were so numerous and that the environment was so hostile that she believed that she would be

better served to have the State Board conduct an objective review of the allegations against her

and stated that she was unaware that her vote was an admission of guilt. Respondent argued that

she felt that there was a rush to judgment and, given the hostility that she perceived, she felt that

it was best to vote to report this matter upward to the State Board. She contended that her vote

was never intended in any way to be an admission to the facts or legal conclusions in the

charging documents

While Respondent argued that she had specific motivation in voting for the Resolution,

the fact is that by voting with her colleagues to adopt the Novembet 1,2016 Resolution,

Respondent voted only to include the content of the Hartings letter in the Resolution, but not the

truth of its content.

Regardless of Respondent's motivation in voting in favor of the resolution to remove her

from the board, her argument makes little sense. If her stated intentions were only to have the

State Board conduct an objective review of the allegations against her, this end would have been

achieved regardless of whether she voted in favor of the resolution. If at least four other County

Board members voted in favor of the resolution, as she indicated was her belief, her stated

objective would have been achieved. If at least four others did not vote in favor of the

Resolution, then the matter would have been moot as the Resolution for her removal would not

have been adopted. In any event, the fact that Respondent voted for the resolution is the only

25
material fact and this fact is not contested. Her motivaiion in casting the vote in favor of the

resolution is not material.

The County Board also asserted that the undisputed facts support Respondent's remoyal

Respondent voted in favor of the resolution.

Misconduct in Offrce

llI ^-,,-r-,
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Board of Education (MSBE) Op. No. 13-30 (May 21,2013), in which the State Board identified

the following "fundamental questions" in determining whether an elected member of a local

Maryland board of education engaged in misconduct in offrce

(1) Did the Board member violate a rule or duty of his offrce about which
he knew or should have kno.wn?
(2) Was the conduct willful?
(3) As a result, is the Respondent unfit to be a Board member?

Dyer, MSBE Op. No. 13-30 at 5.

The County Boad argued that section 5-2C2 of the Education Article specifically

includes "knowingly failing to report suspected child abuse" in the definition of "misconduct in

office" for teachers, principals, supervisors, assistant superintendents, and professional

assistants. Md. Code Ann., Educ. $ 6-202(a)(1)(ii) (Supp.2016). The Maryland General

Assembly has thrls clearly established the policy of the State that every employee of a Maryland

public school system noted above has an affrrmative obligation to report child abuse to the

proper authorities. This was reinfrced by the Maryland State Board of Education in Picca v.

Montgomery Cty. Bd. of Educ., MSBE Op. No. 12-34 (2012), in which the State Board

criticized a local System which, for years, had overlooked evidence of "obvious inappropriate

behaviors on the part of a teacher toward his students." Picca, MSBE Op. No. 12-34 at l.

26
 The Cognty Board firrther asserted that based on Respondent's own public and posted

statements, which she has not denied, she had suspected the existence of child utur" among

WCPS employees throughout the course of both atlttr|y-year teaching career in Washington

County as well as a six-yeat career with the County Board. Yet it was not until October2016

that she spoke out, for the fust time, conceming suspected child abuse by former and current

WCpS employees and further alleged a cover-up by school administrators to transfer and

reassign pedophiles. The County Board maintained that this conduct in failing to report

suspected abuse to the appropriate officials meets the definition of "misconduct" as

contemplated by section 6-202(a)(I)(ii) and constitutes the most malicious form of defamatory

speech, intended not only to ruin the lives and reputations of crurent dedicated ed,rcators and

administrators throughout the WCPS system, but to spread panic among the school community

of Washington County. Respondent's reckless accusations ultimately led parents throughout

the County to believe that their children were in imminent danger. Cf. Reichardt v. Flynn,374

Md. 361, 3gI Q4(Cathell, J., dissenting) (describing the devastating effects of falsely

accusing teachers of wrongful acts).

In at least one story reported in the local Hagerstown press, Respondent stated that "she

went to Facebook with her allegation of misconduct in the schools based on events she heard

,many years ago' that she was told had been reported." Before publicly raising these serious

charges, however, the Respondent indicated only that she "thought" these incidents were in fact

reported (Respondent 1); and that she believed there was merit to them. As it turned out, no such

events were reported, but Respondent continued her repeated assertions of the existence of

ongoing and present-day sexual abuse of V/CPS students, along with hor accusations that the

V/CPS was covering up this alleged abuse.

27
 The Respondent asserted that in the postings at issue she only made general comments

about past and present WCPS employees who had been involved with students, and stated that

some of those involved had been reassigned or transferred to other schools. Respondent

found the ectionable

Respondent did not deny that she in fact posted the items at issue, but instead argued that her

allegations were ambiguous and did not mention any individuals, schools, or even time frames

nono-,7inn +Lo
rw6qs1 c,,lrianf
rrv DqvJvv! ma't'tr n. fha nncfc She fiirfher arorrerl fhaf nnne nf her alleoations have
--- -
-"-----'--

ever been shown to be untrue, and no evidence has been provided to dispute the allegations. She

contended that there is copious evidence, including open admissions, in the record that

Respondent was, in fact, correct in her assessments and allegations.

In her argument, Respondent further asserted that atthe October 18,2016 County Board

-Wilcox verbaliy demancied that Respondent provide the names of aii "inciividuais"
meeting, Dr.

involved in the Facebook allegations. She assertd that he was verbally abusive, and loudly

demanded that "I want those names." (Respondent 1.) She argued that he demanded that she

turn in the names of all involved individuals to him immediately. Respondent claimed that Dr.

Wilcox had absolutely no legal or policy basis to make any such request or demand, and that he

was unduly abusive and threatening toward her, indicating the police would be called if she did

not do as she was told: In her affidavit, she claimed that she left the meeting in tears, having

been bullied, intimidated and threatened. (Respondent l.)

Respondert contended that the WCPS policy on mandatory reporting of suspected child

abuse requires a member of the school system to report the behavior to ONLY the Sheriff s

Department or the iocal departrrrerrt. (,See Conty Board 16.) She further contended that there are

no provisions or requirements for reporting alleged abuse to the County Board or to the

28
 superintendent, because of potential conflicts of interest between superintendent, BOE and

school employees. Further, because the Board did not know the facts, they could not have

known the time frame of the alleged conduct. Respondent argued that her posts alluded to

incidents that took place with students who are now adults; (Respondent 1.) Te Respondent

indicated that she learned of the incidents long after the fact, that she thought that allof those

matters had been reported to authorities by other people prior to her being told about them, and

that Jacqueline Fischer is a perfect example as she allegedly had an affar with a student while a

teacherin 1968. (Respondent 1.)

In essence, although Respondent admitted that she did not personally report the alleged

incidents of child abuse to proper authorities before she posted her allegations, she maintained

that there is adequate evidence to establish that her allegations in fact have merit.

It is not relevant whether Respondent's allegations have merit or not. What is relevant

and undisputed is that she posted the allegations on Facebook and made statements to the media

without first personally noti$ing any proper authorities of her suspicions. TheSe facts are not in

dispute and are the only material facts here. Regardless of whether her allegations have merit,

she willfully breached her duties as a County Board member and in so doing was guilty of

misconduct.

The term misconduct in office is undefined in the Education Article, but it has been

interpreted in court opinions and decisions of the MSBE5 and the Maryland State Superintendent

of Schools . In Resetar v. State Bd. of Educ.,284 }rld. 537 (1979), the Maryland' Court of

u See, e.g., Cureton v. Montgomery Ctv. Bd. of Educ., MSBE Op. No. L0-21 (May 25,2010). ,

29
 Appeals interpreted the terms "misconduct" ar.d "misconduct in office" under the Education

Article.6 The Res.etar Court stated:

The word ["misconduct"] is suff,rciently comprehensive to include

misfeasance as well as malfeasance, and as applied to professional people it

Whether a particular course of conduct will be regarded as misconduct is to be

determined from the naflre of the conduct and not from its consequences.

284il.ld. at 560 (quoting 58 C.J.S. Misconduct (1948) at 818). The court also relied on Black's

r
IJA,W
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^--. uLir'LLVIfcfrJ l^+:-^ (.*.:.^^-1,,n+re
L\J uvrrrlv rlu(JsuVL on 66*io^^-'1,,^+
(\ iviiiiuuvl i-.
iii Cfflgg:: Ug fllgr,r,zg;

A transgtession of some established and definite rule of action, a forbidden act, a

dereliction from duty, unlawful behavior, willful in chaacter, improper or wrong
behavior; its synonrms are misdemear.or, misdeed, misbehavior, delinquency,
impropriety, mismanagement, offense, but not negligence or carelessness.

The same authority refers . . . to "misconduct in office" as being "[a]ny unlawful

behavior by a public offtcer in relation to his duties in his office, willful in
ol:'qqolar )t

Id. af 560-61 (quoting Black's Law Dictionary (4th ed. 1968) at 1150).

Although the Resetar case involved the termination of a teacher as opposed to an elected

official, *.he Court's interpretation of the terms misccnduct and misconciuct in office uncier the

'Education Article is directly relevant to the removal action here, which also is based on

misconduct in offrce by the Respondent under the Education Article. The Court of Appeals has

approved similar definitions of misconduct in other contexts. See, e.9., Public Serv. Comm'n v.

Wilson,389 Md. 27,77 (2005).

The State Superintendent of Schools (Superintendent) issued a decision involving the

removal from office of an appointed member of the local board of education in Talbot County

based on charges of misconduct in office under the Education Article in In the Matter of Mar.vann

6 Resetar upheld the termination of a teacher for misconduct in office when the teacher referred to students as
"jungle bunnies" in front of several coworkers. The Cout reasoned that the teacher's comments would undermine
his future classroom performance and would have a negative impact on his students.

30
Judy, Superintendent Case No. 1-07, MSDE (July 30,2007). The Judy case involved a member of a

local board of education who was appointed by the Govemor under section 3-108(d) of the

Education Article, which is nearly identical to section 3-1301(d) of the Education Article relied

upon by the County Board to support its request for Respondent's removal as an elected local

board member. Both statutes provide for the removal of a member of a local board of education

for misconduct in office.

In upholding the board member's removal in Judy. the Superintendent found that

misconduct in office includes "wrongful conduct done under color of office" and includes the act

of "doing something which the officer ought not do, or the failure to do something which he ought

to do, in the conduct of his office." Sup't Case No. l-07 at 4-5. The Superintendent also found

that when misconduct in office is defined as unlawful conduct, it includes the violation of a statute

rule, or policy, and need not rise to the level of criminal conduct. Id. at 5-6. Relying on case law

from other jurisdictions, the Superintendent noted that "misconduct in offrce can be found to exist

even in the absence of evil motives, moral turpitude, comrpt or criminal conduct, or intentional

wrong doing." Id. at 6 (citing Bunte v. Mayor of Boston,278 N.E.2d 709,711 (Mass. 1972)).

The Superintendent noted that public employees must be "held to a higher standard of

stewardship than merely that of refraining from criminal actions while in office." Id. at 6 (citing

Bunte,278 N.E.2d at7l2). The Superintendent also found that the rules or duties violated must be

important in the administration of the public office. The Superintendent stated that "the rule or

duty must be important enough so that its breach renders the officer unfit to continue to hold

office." Id.at6(citing Millerv.Townof Hu\|,878F.2d523,531 (lstCir. 1989), certdenied,493

u.s. e76 (1e8e).

31
 As the MSBE did later in Dyer, in the Judy case the Superintendent determined that the

relevant questions in deciding whether a local board member should be removed for misconduct

in offrce include: 1) whether the board member violated a rule or duty of her ofhce about which

she lnerx nr shnrr have known: 2) whether her conduct was willful: and 3) her conduct

demonstrated that she was unfit to be a board member. Id. at 6-7, 13.

The Supentendent upheld the removal of Ms. Judy for miscondut in office based

^.---+ioii-' nn
WVII!4IIJ
*lrroa inCidentS.
VII U[vv ulvluvlrLD. The cenf.al inCident in,'Oi.erl -Iu<|.-"s attemnt to sumit an untimelv

evaluation of the local superintendent after missing the deadline for submission, her attempt to

direct the local board's executive assistant to place ihe untimely evaluation in the local

superintendent's personnel file without discussing the evaluation with the local superintendent, and

her threat to report the executive assistant to the Ste Board if she failed to comply. In another

incident, Ms. Juciy directed the locai superintendent to terminate the assistant superintendent

because of comments she found offensive, although she did not have authority to order such

discipline. The third incident was based on Ms. Judy's improper involvement in a student

disciplinary incident after being instructed to avoid becoming involved, thus jeopardizing her

neutral despite the fact that the matter could potentially come before the local board in a student

appeal.

The Superintendent fotrnd that Ms. Judy violated several rules and duties set forth in the

local board of education handbook. She concluded that Judy violated local boad rules prohibiting

unilateral action, requiring participation in the local superintendent's evaluation, and requiring

sharing the findings of her evaluation with the local superintendent. The Superintendent also

found that lvfs. iuriy vioiated rules requirirrg local board members to recognize and accept the

32
difference between the role and duties of the local superintendent and that of a local board

member. Id. atIS-L9.

The Superintendent concluded that Ms. Judy's misconduct rendered her unfit to be a

board member because it was substantial and harmed the local board and school system. The

Superintendent found such harm because the local board had to devote substantial staff time to

handling Ms. Judy's misconduct, and her actions were contrary to the best interests of the

students. The Superintendent also found the rule violations were important and substantial

because she concluded that the rule prohibiting board members from acting unilaterally on

school matters is "the lincin of school board functioning"; a board must function collectively

to make decisions; and Ms. Judy attempted to circumvent the collective process. Furthermore,

her failure to understand and maintain the separation of functions between the local

superintendent and a board member undermined the eftrcient operation of the school system,

impeded the work of the local superintendent, and impaired Ms. Judy's abil to remain neutral

on disputed issues that might come before the local board' Id. at 19-27'

For all these reasons, the Superintendent concludedthatJudy's misconduct wa:ranted her

removal from the local board of education. The removal was based on her violation of rules in

the local board of education handbook and did not involve the violation of statutory,

constitutional, or criminal law'

As an elected County Board member whose every word is appraised at arnlyzed by the
posting,
school community, it is reasonable to conclude that Respondent knew that her Facebook

statements to the media, and subsequent conduct severely impacted her fitness to serye
as a

credible member of the County Board'

55
 The State Board addressed the propriety of a local board member posting comments

regarding school board issues on social media. In the Matter of Request for Removal of Local

Board Member Annette DiMaegio. MSBE Op. No. 16-24 (June 28, 2016), the State Board

opined:

In our view, taken together, these social media posts show a certain lack of
professionalism. Ms. DiMaggio would have been better served not to engage in
back-and-forth discussions through social-media or to post comments without
fully considering the potential impact of her actions. Going forwad, Ms.
T\:l ,r^--:^*..-+..-l^-^+^-l+L^+L^-^^-,,.^+*^fl^^+.-^+:"-+^-L^-
l.LLVLIBBLIJ lIlLlL (IIILEIL4ltL.l' LU4L ll9r V\Jl,l.Lltl\/L Mlwvr
i."+^-+L-
rrvL J ur vu rrvl.r vu! vr uw
board as a whole.
In Dyer. supra, there were proven allegations that the County Board member "repeatedly

breached confidential provisions," "acted unilaterally on board related matters in

contravention of decisions made by the local board," "undermined the fi.urctioning of the board,"

"used litigation as a tactic against the board," and "threatened other board members and staff."

In that case the State Board adopted the ALJ's finding that by violating a variety of published

Boad policies of which he was admittedly aware, Mr. Dyer's misconduct was "substantial and

harmful to the operations of the County Board and the school system." MSBE Op. No. 13-30

at 8.

The same may be said of Respondent, based upon her undisputed conduct. It is

undisputed that f;.espondent violated County Board rules with respect to reporting suspected

child abuse, and posted allegations on Facebook to be shared by the community atlarge, s well

as shared them with the local media in an attempt to inflame the tensions of parents and WCPS

employees. She posted these allegations without frst notiffing the proper authorities of her

suspicions, which she is mandated to do. This behavior, along with her subsequent refusal to

recant her statements after iocai authorities were unabie to substantiate any of her ciaims,

34
 certainly constifutes unprofessional conduct, bears upon her fitness to serve, and undermines her

ability to continue in her role as a County Board member.

Willtul Neelect

The County Board also argued that Respondent's actions amounted to a willful neglect of

her duties. The State Board has defined "willful neglect of duty" as "a willful failure to

discharge duties." Stewart v. Baltimore Ctv. Bd. of Educ., MSBE Op. No. 05-15 (Apr.20,

2005); Crawford v. Bd. of Educ., 1 Op. MSBE 503, 518 (1976). In Sullivan v. Ctv.

Bd. of Educ., MSBE Op. No. 14-51(Sept. 23,2014), the State Board adopted a broad definition

of "willful neglect of duty," where that term encompassed the wrongfi.rl touching of a student in

violation of long-standing Board policy. See also Arroyo v. Bd. of Educ.,381 Md. 646,664

(2004) (holding that the determination by the county and State Board that extended absences

from schooi may constitute "willful neglect of duty" was "clearty wt:fthn the jurisdiction of these

entities") (emphasis in original).

In the instant case, the County Board maintained that Respondent's years-long failure to

abide by the child abuse reporting requirements contained in both the Family Law and Education

Articles, not to mention Corurty Board Policy JLF governing the reporting of suspected child

abuse and child neglect (County Board 16), constituted willful neglect of duty. The County

Board is particularly concerned over the fact that, when questioned repeatedly by the

Superintendent of Schools and even a Deputy Sheriff, Respondent refused to divulge the names

of any alleged sexual predators in the schools other than her fellow Board member Jacqueline

Fischer. Instead of informing either the local department of social services or law enforcement

authorities, Respondent chose to share allegations of abuse attributed to other present and former

35
WCPS employees with the local media, as well as the community atlarge, with her Facebook

posts. There is nothing inadvertent about this conduct; it was plainly willful and intentional.

.The County Board argued, and I agree, that the failure to report suspected child abuse is

so paramount that the Maryland Court of Appeals even found that the duty to report abuse

superseded any alleged privilege that might be asserted between a social worker and her client.

Thus, inDoev. Md. Bd. of Soc. WorkExam'rs,384 Md. 161 (2004),the Courtheldthat:

'I'L^
III ^^^:^1 --,^-1.^-
\JVIaI ^l-:^-+
vv\,Il\gr.....nlrvlll --i"ilo-o nonnf
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vv ollnrxer{
vttv- fn -tece Atl
Prlvrvv
impenetrable wall to investrgations of such importance. Section 5-704 of
the Family Law Article requires social workers to notiff the appropriate
department or law enforcement agency, notwithstanding any l,v on
privileged communications, if there is a reason to believe that a child has
been subjected to abuse. If the Legislature has provided that the privilege
does not prevent a social workel from reporting the abuse, it follows that

the privilege must not prevent the in',estigation of a social w. orker who is
suSpected of knowingly not reporting such a'buse.

384 Md. at 178 (emphasis original).

In other words, the undisputed facts demonstrate that Respondent claimed to have been

prlvy to information about sexual abuse of children both as a teacher and as a member of the

County Board. Her failure over a thirfy-six-year period to report such information to local

department investigators or members of the law enforcement community, as well as school

officials,'constitutes a willful neglect of duty, both legal and fiduciary, in every sense of the

word.

As stated bove, the decision of a local board involving the removal of a board member

witl stand unless the decision is arbitrary or capricious. hr this matter, the County Board has

asserted with support that ihere are no genuine disputes as to an-y material facts and that the

Board is therefore entitled to judgment as a matter of law. Respondent has not offered any

36
material facts to refute the County Board's contentions or otherwise demonstrated that the

County Board acted unreasonably.

While the Respondent disputes some of the conclusions reached by the County Board and

asserted that she had good cause to justiff her actions, the Respondent's arguments reflect at best

only a difference of opinion; she has oflered no credible or substantive evidence to show a

genuine dispute regarding the material facts upon which the County Board's Motion is based.

In Dyer, supra,the State Board observed "that apublic offrcial must be held to a high

standard of professionalism and must carry out his or her duties with integrtty arrd a high degree

of trust. . . . lvfr. Dyer's failure to respect rules and laws . . . undermined the ability of the

County Board members to work with and rely on him." Accordingly, he was deemed "unfit to

sorve as a member of the County Board." MSBE Op. No. 13-30 at 9. The same may be said of

the undisputed conduct engaged in by Respondent commencing with her unsupported and

inflammatory Facebook posting on October 17,2016, and subsequent disclosures to the media,

and compounded by her continued refusal to cooperate with the Superintendent and law

enforcement authorities in following up on accusations of alleged sexual misconduct in the

school system.

There may be no more compelling reason to deem a board of education member unfit for

duty than accusing, evidence, an entire school system of harboring and protecting sexual
"rithout
predators. While Respondent may not agree with the Cor:nty Board's conclusions, that alone

does not render the County Board's decision arbitrary or capricious.

Respondent placed great significance on the fact that her allegations had merit and that

there were several procedural violations, such as not allowing her access to counsel, in voting on

her removal. However, upon review, Respondent's contentions do not rise to the level of

37
contesting amaterial fact and remain, essentially, irrelevant. See, e.g., Hobby Lobby,477 U.S. at

247 ("Fachtal disputes that are irrelevant or unnecessary will not be counted.").

The County Board has, ttrerefore, demonstrated that there is no material fact in dispute as

to whether its decision to remove Respondent from the County Board was reasonable. Its

decision was not unconstitutional, did not exceed the stat';tory authority or jurisdiction of the

County Board, did not misconstrue the law, did not result from an unlawful procedure, was not

an abuse of discretionari' po."r'ers, and .,'as not affected by any other error of 1a..".

In short, the County Board's decision to remove Respondent from the County Board

complied with the process set forth in Education 3-1301. The County Board became aware of

the Respondent's willful misconduct and comprehesively acted to address her misconduct in the

best interests of the students, parents, and school system. Failing to act was not an option. The

outcry in the community further supported its action, and the County Boar<i was forced to go to

great lengths to rectiff the harm that she caused to the school system. Thus, its decision was not

arbitrary or capricious and was consistent with a conclusion that could have reasonably been

reached by a reasoning mind.

The undisputed material facts demonstrate that the Local Board's decision was

reasonable under,the standards set forth in 3-1301, and the Respondent failed to show any

genuine dispute of material fact to contradict the County Board's adherence to those standards.

Accordingly, I find that the County Board is entitled to summary decision as a matter of law.

COMAR 28.02.01.I2D(a). As such, a hearing on the merits in this matter is no longer required

and, therefore, the merits hearing scheduled for February 27, and28,2017 and March 1,2017 is

cancelled.

38
 CONCLUSIONS OF LA}V .

I conclude, as a matter of law, that there are no material facts in dispute as to whether the

Board of Education of Washington County acted lawfully in its decision to remove the

Respondent from the County Board for misconduct in office and willful neglect of duty. I
firther conclude that the Board of Education of 'Washington County is, therefore, entitled to

sunmary decision. COMAR 28.02.01 .l2D(4).

PROPOSED ORDER

I PROPOSE that the Board of Education of Washington County's Motion for Summary

Decision be GRANTED.

Februa4v 16.2017 /nz'--

Date Order Mailed Michael J. V/allace
Administrative Law Judge

MJW/da
#1664s6

RIGHT TO F'ILE EXCEPTIONS

Aparty objecting to the administrative law judge's proposed decision may file exceptions
with the State Board within fifteen (15) days of receipt of the findings. A party may respond to
exceptions within fifteen (15) days of receipt of the exceptions. As appropriafe, each party shall
append to the party's exceptions or response to exceptions filings copies of the pages of the
transcript that support the argument set forth in the party's exceptions or response to exceptions.
If exceptions are filed, all parties shall have an opportunity for oral argument before the State
Board before afinal decision is rendered. Oral argument before the State Board shall be limited
to fifteen (15) minutes per side. COMAR 134.01.05.07F.

39
Copies Mailed To:

Leslie R, Stellman, Esquire

Pessin KatzLaw,P.A.
901 Dulaney Valley Road, Suite 500
Towson, Maryland 21204

Ira C. Cooke, Esquire

138 V/est Washington Street, Suite 200
Hagerstown, Maryland 21740

Mariane Morris, Esquire

I a O rr7--
IJO VYgJt \TI^-L:-J^- CIL^^ --:^ ^^
WlJrrIIrBrUrl Lrri1, UlLe ZUV
Hagerstown, Maryland 2t740

Karen J. Harshman
III02 Dolores Court
Hagerstown, Maryland 21742

Jackie La Fiandra, Assistant Attomey General

Maryland Department of Education
l\^*,.l^-l L(lL\/ El^^*
lvI(LI-VI4IlLt Q+^+^ ^f E,{,,^^+;^-
l-rLrCUU Ur LUUW4LIVTT
200 West Baltimore Street
Baltimore, Maryland 2120I

40