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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2587 September Term, 2008 _______________________________

BOARD OF EDUCATION OF SOMERSET COUNTY v. SOMERSET ADVOCATES FOR EDUCATION

______________________________ Davis, Woodward, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ. _______________________________

Opinion by Davis, J. _______________________________ Filed: December 1, 2009

Appellant, the Board of Education of Somerset County (the Local Board), appeals from the judgment of the circuit court, reversing the decision of the Maryland State Board of Education (the MSBE) and remanding the case to the Local Board with directions to vacate its previous decision denying the application for a charter school submitted by appellee, Somerset Advocates for Education (SAFE). Appellant presents three questions1 to this Court, which we have consolidated and rephrased as follows: I. Was the MSBE's review of the Local Board's decision arbitrary and capricious because it failed to reverse the Local Board's decision for its failure to provide appellee with the numerical rating tool used to evaluate appellee's charter school application? Did the MSBE abuse its discretion in failing to reverse the Local Board based upon appellee's allegations of bias?

II.

For the reasons that follow, we answer both questions in the negative. Accordingly, we reverse the decision of the circuit court.

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Appellant presents this Court with the following issues: Whether the failure of the Local Board to provide SAFE with the numerical rating tool used to analyze SAFE's charter school application was fatal to the application evaluation process[.] Whether the State Board acted in an arbitrary, capricious or illegal manner in affirming the Local Board's decision to deny SAFE's charter school application[.] Whether any potential bias on the part of the Local Board had any impact on the State Board's decision to affirm the denial of SAFE's charter school application[.]

I.

II.

III.

PROCEDURAL AND FACTUAL BACKGROUND
Appellee, SAFE, a corporation established for the purpose of creating and operating a charter school in Somerset County, Maryland, submitted an application to create a charter school to the Local Board on December 12, 2006, during a regular session public meeting of the Local Board. Appellee completed the application pursuant to the Public Charter School Guidance Materials published by Somerset County Public Schools (SCPS). The Charter School Review Committee (the Committee) initially reviewed appellee's application and determined that the application was "technically incomplete." The Committee created a ten-page document detailing the deficiencies in the application and requesting clarification in fifty areas, and provided it to appellee on January 12, 2007. On March 12, 2007, appellee resubmitted its application. The amended application, according to the Committee, provided an "adequate response" to eight items, an "inadequate response" for twenty-nine items and thirteen items were deemed to require "group discussion." Between March 22, 2007 and April 3, 2007, the Committee met with appellee's representatives on four occasions to discuss the areas of concern, including the Instructional Program, Administrative Structure, Special Education, Personnel, Finances, Business Management, Transportation, Technology and Facilities. The Committee, including the Superintendent, after reviewing the amended application and meeting with appellee's representatives, scored the amended application based upon an "analytical scoring rubric" that was developed by the Anne Arundel County Public Schools. The Local Board did not provide the numerical scoring tool to appellee until -2-

after the conclusion of the scoring process. Out of a maximum possible score of 530, appellee's application received a score of 189. A score of 318 would have been sufficient to grant appellee's application.2 After holding the four meetings, the Committee prepared a detailed document, listing the strengths and weaknesses of the various aspects of the application. The Local Board held a special meeting on April 12, 2007 to review the Committee's findings after scoring. None of appellee's representatives attended the April 12, 2007 meeting, despite the fact that the April 12, 2007 Local Board meeting was announced during January and March of the regular session meetings of the Local Board and appellee's representatives were again reminded of the meeting during the April 3, 2007 meeting with the Committee.3 At the conclusion of the meeting on April 12, 2007, the Local Board voted 4-0 to deny the charter. That same day, the Local Board sent a letter to appellee and enclosed the Public Agenda for the meeting, the Informational Handout from the meeting and the "Board and SAFE Packet," which contained the results of the review of the application. The packet included a breakdown of the criteria used to evaluate the application, along with a copy of the numerical scoring rubric and appellee's score. Although the document went into great detail about the various categories and sub-categories that were considered, we will provide

A score of 318 is the minimum to show "basic evidence demonstrating the criterion has been met." Appellee contends that it was not informed that its presence was allowed or recommended at the April 12, 2007 meeting, but does not dispute being aware of the April 12, 2007 Local Board meeting. -33

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an overview of the topics considered by the Local Board and the strengths and weaknesses that were identified. Section One of the evaluation rubric considered the Executive Summary, Profile of the Founding Group, Background Information, Governance Structure, School Management and Administrative Structure, Student Populations, School Calendar and the Recruiting and Marketing Plan. The Local Board identified as strengths in this area appellee's enthusiasm, good will, commitment, ability to raise funds through grants, that appellee had made many vendor contacts and had devoted significant funds for marketing and recruitment. The Local Board, however, also found the following to be weaknesses in this section: the summary, mission and goals failed to describe a school that is unique from Somerset County Public Schools, the individual for whom a resume was furnished to the Board had withdrawn his name from consideration from the daily operations of the Board of the proposed charter school, the governing board lacked experience in school leadership and operation, the organizational chart, which was changed throughout the interview process, did not align with the narrative, the budget or the discussion and that the identified goals were not stated in measurable terms. Section Two of the evaluation rubric considered the Education Plan, the Academic Program, Standards and Curriculum, Student Assessment, Student Support Services, Code of Student Conduct and Parental Involvement and Community Participation. The Local Board again identified a number of strengths in the application, such as: the fact that the application established a 1:20 classroom ratio with a commitment not to go above 1:22, the -4-

proposed use of the "Calvert Curriculum" because it was a known and respected tool, the aspiration to provide foreign language and piano lessons to all students, the plan to use project-based learning to engage reluctant learners, the use of the "sophisticated technology," Curriculum Mapper, to track each teacher's instruction, the proposed use of Individual Learning Plans for each student with annual review and the expectation that parents be active participants. The Local Board, however, pointed to a number of concerns in this area, including "notable calendar problems," a weak Special Education section, a lack of intervention plans to bring students up to grade level, insufficient coordination of implementation of the multiple proposed education plans, a lack of focus on the Maryland State Assessment and the attainment of adequate yearly progress, the inability of the administrative structure to comply with policies and procedures associated with federal and state records management and reporting requirements and a lack of clear procedure detailed in the application to support the stated goal of maintaining a racial and ethnic balance. Section Three of the evaluation rubric exposed the greatest number of concerns that the Local Board had with appellee's application. Section Three considered Personnel, Human Resources, Payroll and Benefits, School Facilities, Finances, School Safety and Security, Transportation, Food and Nutrition and Accountability Plan. The Local Board noted several strengths, such as the fact that a budget item for charter school promotion and advertising was included in the application, appellee sought multiple partnerships to provide

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a facility, appellee had been aggressive in identifying land to use and appellee's plan to maintain employees through the thirteen years that students will spend in the school. Unfortunately for appellee, the Local Board also noted numerous areas of deficiency in Section Three. Specifically, the Local Board pointed to a lack of a plan to attract and retain effective staff, a lack of clear and complete job descriptions, the failure to realize that the Chief Executive Officer of the school must also have the status of a Somerset County Public School (SCPS) employee, that the design that was submitted for the building was not the design that appellee intended to use, insufficient technology infrastructure in the plans and budgets, a lack of alternative transportation, a lack of food and nutrition services other than relying on SCPS, concerns about a conflict of interest regarding the lease arrangement, a lack of provision for compensation and management of personnel responsible for extra-curricular activities and an excessive amount of funds budgeted for student and staff promotion that may risk limiting other necessary expenditures. In addition to the list of strengths and weaknesses, the Local Board attached to the packet ten pages detailing the precise categorical breakdown of the possible points and the mean rating of the eleven responses from the committee members. After the Local Board denied appellee's application, appellee timely noted an appeal to the MSBE. Before the MSBE, appellee challenged the Local Board's decision on three grounds: (1) that the denial of the charter was based on vague evaluation criteria, which lacked an "analytical key," and that appellee did not receive the specific evaluation rubric during the evaluation process, (2) the denial based on budgetary concerns was arbitrary -6-

because SCPS did not provide appellee with the necessary funding information and (3) the Local Board abused its discretion based on the local school system's alleged resistence to charter schools. The MSBE, employing the standard of review set forth in COMAR 13A.01.05.05(A), 4 affirmed the decision of the Local Board in Somerset Advocates for Educ. v. Somerset County Bd. of Educ., MSBE Op. No. 07-39 (Oct. 30, 2007). First, the MSBE reviewed the evaluation process employed by the Local Board. Appellee argued in its Memorandum to the MSBE that the MSBE had previously ruled in an earlier case, Potomac Charter School v. Prince George's County Bd. of Educ., MSBE Op. No. 05-08 (Mar. 11, 2005), that technical review of a charter school application must "include an explanation of the applicant's scores or the required analytical key. The MSBE distinguished Potomac , however, expositing that "the Board did not conclude that such failure required a finding that the evaluation process was per se arbitrary and capricious but rather, the Board evaluated the process as a whole." Relying on other prior agency decisions, the MSBE ruled: "What is clear from those cases is that this Board looks at the evaluation process as a whole to determine if the process itself was so unfair that it resulted in an arbitrary decision." The MSBE ruled that the evaluation process was fair based upon the fact that the Local Board provided to appellee a ten-page technical review with requests for clarification in fifty areas, and met with appellee

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We shall discuss, in detail, the standard of review, infra. -7-

four times to "discuss the application at length" during meetings lasting sixty to ninety minutes each. The MSBE noted: "Given all those opportunities, it is difficult to conclude that the applicant did not understand how its application was being evaluated." With regard to appellee's claim that the evaluation tool was not congruent with SCPS Charter School Guidance Materials, the MSBE ruled: "Again we explain that the evaluation process is, by necessity, a fluid one. We would not expect absolute congruence between every piece of information the school sends out about charter schools and the evaluation tool. Here, we have reviewed the evaluation tool and find it to be an appropriate tool congruent with the Technical Review." Finally, with regard to appellee's claim that the Local Board denied the charter due to bias against charter schools, the MSBE reviewed the alleged incidents 5 and concluded that the Local Board's decision did not appear to be influenced by bias against charter schools. "We return to the fact that SCPS spent 450 hours in reviewing the application, meeting with SAFE, and evaluating the amended application. We believe that type of commitment shows good faith on the part of the local school system, not resistence to the charter school effort." Appellee sought judicial review in the circuit court pursuant to COMAR 13A.01.05.05.116 and the circuit court reversed the decision of the MSBE, ruling that it was
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We shall discuss the alleged incidents, infra.

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COM AR 13A.01.05.11 provides: A. Any party may appeal a decision to the circuit court of the jurisdiction where the appellant resides within 30 days of the date of the decision of the State Board. (continued...) -8-

arbitrary and capricious. Appellant noted a timely appeal to this Court. Additional facts will be supplied infra as warranted.

STATUTORY FRAMEWORK FOR CHARTER SCHOOLS IN MARYLAND
Before reaching the merits of this case, we shall provide a brief overview of the charter school movement and application process in Maryland. In Baltimore City Bd. of Educ. v. City Neighbors Charter School, 400 Md. 324 (2007), Judge Wilner, writing for the Court of Appeals, summarized the concept and philosophy behind charter schools: Charter schools are in the nature of semi-autonomous public schools that operate under a contract with a State or local school board. The contract, or charter, defines how the school will be structured, staffed, managed, and funded, what programs will be offered, and how the school will operate and account for its activities. The movement to create charter schools, either by converting existing schools or by starting new ones, began in the 1990s from a growing concern that the public schools, at least in some areas, were not living up to legitimate public expectations, and the movement took root and spread quickly ....

(...continued) B. The appeal is governed by Maryland Rules of Procedure 7-201 et seq. and 7-301. C. The State Board shall prepare and transmit the record in accordance with the time line set forth in the Maryland Rules of Procedure. D. Because the State Board has reviewed and rendered a decision made in the first instance by a local school system official or a local board, the State Board may not participate as a party in an appeal taken to the circuit court. -9-

The principal objective of those who desired to create such schools -- parents, educators, community groups, private entities -- was to develop and implement innovative and more effective educational programs, and, to do that, they needed and demanded freedom from some of the structural, operational, fiscal, and pedagogical controls that governed the traditional public school system. Id. at 328-29. In 2003, the Maryland General Assembly enacted the Maryland Public Charter School Program currently embodied in Md. Code (2008 Repl. Vol., 2009 Supp.), Education Article (Ed.),

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