In re of McFadden

1

IN THE MATTER OF BERNARD MCFADDEN

No. 0162-2022

Court of Special Appeals of Maryland

December 8, 2022

Circuit Court for Baltimore County Case No. C-03-CV-21-002393

Nazarian, Tang, Albright, JJ.

OPINION ^[*]

Nazarian, J.

In June 2019, after fifteen years of working for Woodlawn Motor Coach ("Woodlawn") driving school charter buses for Baltimore County Public Schools ("BCPS"), Bernard McFadden was informed by Woodlawn that BCPS had decided to ban him from driving for BCPS and to seek his disqualification from driving school vehicles in Maryland. BCPS reached this decision after requiring Mr. McFadden to complete a background check application and determined, after reviewing the completed application, that he had failed to disclose criminal convictions that disqualified him from working as a school vehicle driver under Maryland Code (1978 2022 Repl. Vol.) § 6-113 of the Education Article ("ED") and COMAR 13A.06.07.07C, and under the terms of BCPS's contract with Woodlawn. Mr. McFadden appealed the decision within the Department of Education, which affirmed BCPS's decision at every stage and culminated in an opinion from the Maryland State Board of Education (the "State Board") upholding BCPS's decision. Mr. McFadden then sought judicial review of the State Board's decision, arguing, as he did on appeal to the agency, that neither the statute, the regulation, nor the contract provided grounds for the ban and disqualification. The Circuit Court for Baltimore County affirmed the State Board's decision and so do we.

I. BACKGROUND^[1]

Until June 2019, Mr. McFadden worked as a bus driver for Woodlawn, which contracts with BCPS to supply drivers for school field trips. The buses Mr. McFadden drove were marked as charter buses, as required by Maryland Code (1977, 2020 Repl. Vol.), § 13-420(c) of the Transportation Article ("TR"), and always had one or more chaperones on board when he was driving. Mr. McFadden had been employed in this role for approximately fifteen years without incident.

In 2019, Woodlawn and BCPS entered into a new contract under which Woodlawn would provide drivers for field trips. The following provision in Section 15 of the new contract requires any employee of Woodlawn to complete a criminal background check before they can drive for BCPS:

All Vendor's employees working on BCPS property are required to be fingerprinted by the Maryland Criminal Justice Information System, or by an authorized private provider acceptable to BCPS .... BCPS reserves the right to reject the Vendor's employees based on information received from said background investigations. In accordance with Md. Ed. Code Ann., § 6-113 (b), the contractor shall not knowingly assign any employee to work on school premises if the employee has been convicted of a crime identified in Md. Ed. Code Ann., §6-113 (a).

Vendor's employees who have unsupervised, uncontrolled or direct access to children or who are assigned duties in a school where unsupervised contact with children is likely are required to have a complete fingerprint-based background check at BCPS's direction ....

On June 25, 2019,^[2] pursuant to Woodlawn's contract with BCPS, Mr. McFadden was required to complete a background check application for non-BCPS employees, and the application asked several questions about his criminal history. One of the questions asked "Have you ever been convicted, or placed on probation before judgment (PBJ), found not criminally responsible, or have pending criminal charges against you without a final disposition for an offense other than a minor traffic violation?" Mr. McFadden checked the box marked "No" in response, but nevertheless disclosed two convictions-one for Controlled Dangerous Substance ("CDS") Possession and one for CDS Possession with intent to distribute, both from 1990-elsewhere on the application. Mr. McFadden also initialed under the following warning:

WARNING: Failure to report criminal convictions, Probation Before Judgment (PBJ) dispositions, or pending charges may result in termination of your employment with [BCPS]. Any individual who fails to disclose prior conviction(s) or the existence of pending charge(s) shall be guilty of perjury. This is a misdemeanor offense and on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year or both.

That same day, Mr. McFadden also signed an "Authorization and Release" form that allowed BCPS to procure a background report on him, and he circled "Yes" in response to the question "Have you disclosed all your previous criminal convictions unless you have received confirmation that they have been expunged?" This form advised that applicants who "are not sure about certain information that may be in [their] criminal history record" should refrain from completing the accompanying background check application until they've contacted "the court(s) and/or Department of Social Services (DSS)" or the "attorney who handled your case." The form also contained a warning that failure to disclose required information would "result in the termination of your employment with [BCPS]."

On June 27, 2019, BCPS received Mr. McFadden's background report from the Criminal Justice Investigations Service ("CJIS"). The report showed that Mr. McFadden had been convicted of the following charges: in 1974, murder, for which he was sentenced to ten years' incarceration and paroled in 1976; in March 1990, CDS possession, for which he was sentenced to six months' incarceration; in July 1990, CDS possession with intent to manufacture and distribute, for which he was sentenced to fifteen years' incarceration; and, in July 1991, possession and intent to distribute cocaine, for which he was sentenced to fifteen years' incarceration. After reviewing this report, on June 28, 2019, an investigations and records representative in the BCPS Office of Human Resources ("OHR") advised Woodlawn that Mr. McFadden was not allowed to drive buses for BCPS because of his convictions. That same day, BCPS filed a disqualification form with the Maryland State Department of Education, and Mr. McFadden was thereafter prevented from driving a school vehicle in Maryland. On or about July 2, 2019, Woodlawn advised Mr. McFadden of these actions.

On July 26, 2019, Mr. McFadden appealed OHR's decision to the BCPS Superintendent, who appointed the manager of employee and student appeals as his Designee to make a decision on his behalf. On September 5, 2019, through counsel, Mr. McFadden informed the Designee that the CJIS report that BCPS had received contained errors and that a revised report would remove convictions for crimes BCPS relied on in banning Mr. McFadden as a driver. He also argued that the regulations on which OHR based its decision didn't apply to him because he drove only school charter buses with chaperones and thus was not a "school vehicle driver," as defined in the regulations.

In a decision issued on January 17, 2020, the Designee concluded that it was not arbitrary, unreasonable, or illegal for BCPS to bar Mr. McFadden from driving school charter vehicles for BCPS. She found that Mr. McFadden had failed to disclose his criminal background fully, as the forms he submitted to BCPS pursuant to the contract between BCPS and Woodlawn required, and that this failure alone provided a basis for BCPS to ban him from driving buses. The Designee also found that ED § 6-113(a) and (b) bar BCPS from retaining Mr. McFadden as a charter bus driver due to his conviction of a crime of violence as defined by Maryland Code (2002, 2021 Repl. Vol.), § 14-101 of the Criminal Law Article ("CR"). She also concluded that under COMAR 13A.06.07.07C, BCPS was mandated to disqualify Mr. McFadden from driving any school buses in Maryland. Additionally, while recognizing Mr. McFadden's argument that as a charter bus driver he never drove without a chaperone, she concluded nonetheless that "it is reasonable to find that Mr. McFadden could be alone with students with direct, unsupervised, and uncontrolled access to students."

On February 14, 2020, Mr. McFadden appealed the Designee's decision to the Board of Education of Baltimore County (the "Local Board"), and a Hearing Examiner was appointed to review the appeal. By this time, the parties agreed that CJIS had reported incorrectly that Mr. McFadden had been convicted of murder and that he actually had been convicted of manslaughter instead. On October 14, 2020, the Hearing Examiner issued an opinion recommending that the Local Board uphold the Designee's finding that Mr. McFadden was ineligible to serve as a contractual bus driver for BCPS and that he met the criteria for disqualification from driving school buses in the state.

After receiving the Hearing Examiner's recommendations, Mr. McFadden sought oral argument before the Local Board. The Local Board heard arguments via video conference on January 26, 2021, then issued an Order on February 9, 2021 adopting the Hearing Examiner's findings. Mr. McFadden timely appealed this matter to the State Board, which affirmed the Local Board's decision on June 22, 2021, finding that the Local Board "acted consistent with the law" and its decision was "not arbitrary, unreasonable or illegal." Mr. McFadden filed a Petition for Judicial Review with the Circuit Court for Baltimore County on July 22, 2021, and the circuit court issued its opinion affirming the State Board's decision on February 22, 2022. Mr. McFadden then filed a timely notice of appeal to this Court.

II. DISCUSSION

We are asked to decide whether the State Board's decision to affirm the Local Board in banning Mr. McFadden from driving buses for BCPS and disqualifying him as a school bus driver in Maryland were improper under Maryland's Education Articl...