Opinion regarding request for removal of Jennifer George

The Maryland State Board of Education's opinion regarding a community request to remove Jennifer George from the Queen Anne County Board of Education. The state board ruled there was not sufficient cause for removal.

IN THE MATTER OF
REQUEST FOR REMOVAL OF
LOCAL BOARD MEMBER
JENNIFER GEORGE

BEFORE THE
MARYLAND
STATE BOARD
OF EDUCATION
Opinion No. 16-25
OPINION

INTRODUCTION
Approximately 32 citizens have requested the removal of Jennifer George from the Board
of Education of Queen Anneas County (local board) for immorality, misconduct in office,
incompetence, and willful neglect of duty.1
FACTUAL BACKGROUND
The dispute here involves the local boardas decision not to renew the superintendentas
contract. Under Maryland law, local boards of education have responsibility for appointing the
superintendent. A superintendentas term lasts four years, beginning on July 1 of the year in
which the local board hires him or her. By February 1 of the year in which a term ends, the
superintendent must inform the board whether he or she wishes to be reappointed. The local
board must decide whether to reappoint the superintendent by March 1. If the local board
chooses not to reappoint the superintendent, it must choose a new superintendent by July 1. If a
new superintendent is not appointed, the local board must appoint an interim superintendent to a
one-year term. Md. Code, Educ. '4-201.
Following this process, the local superintendent timely notified the Board of Education of
Queen Anneas County that she wished to renew her contract for four years. On February 9,
2016, during a closed session, the members of the local board considered the request and voted
3-2 not to renew the local superintendentas contract.
On March 2, 2016, the local board discussed the superintendentas contract in open
session. It was listed on the meeting agenda as aSuperintendentas Contract/Superintendent
Searcha and the meeting agenda stated that the board would adiscuss and make a decision
regarding the Superintendentas contract/Superintendent search.a During the meeting, the Board
President stated that the board had voted in February against renewing the superintendentas
contract. After listening to public comment for about an hour, the local board voted 3 to 2
against reappointing the local superintendent to a new four-year term or for allowing a one-year
contract extension. Board President Jennifer George, Board Vice President Arlene Taylor, and

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Similar removal requests were also filed against board members Arlene Taylor and Annette DiMaggio. Those
requests are addressed in separate opinions.

board member Annette DiMaggio voted against the reappointment while board members Tammy
Harper and Beverly Kelly voted in favor.
On March 17, 2016, Dr. Angela Holocker, principal of Matapeake Middle School in
Stevensville, wrote to the State Board requesting that three of the current local board members be
removed: Ms. George, Ms. Taylor, and Ms. DiMaggio. The State Board has received 31
additional requests for removal, including another request from a school principal and two from
school system administrators. Many of the requests are nearly identical to Dr. Holockeras
removal request. Other citizens, including a former member of the local board of education and
a former county commissioner, have written to the State Board to express support for the
superintendent or to request an investigation, but they do not specifically request that board
members be removed from office.
The request for removal states, in pertinent part:
There are several sections of the Open Meetings Act as well as the Queen
Anneas County Board of Education Handbook that have been violated. On
February 9, 2016, the BOE members met in closed session for the purpose of
discussing the renewal of the Superintendentas contract. This meeting was not
announced nor are the minutes from the meeting published. In addition, in the
last open session on March 2, 2016, meeting minutes from this meeting were
not accepted by the members. The results of this closed session were also
known by members of the teachersa union and commented on publicly shortly
after the meeting even though there was no public announcement. Honestly,
this is the least of the violations that occurred.
During the March Board meeting, after an hour and half of public comment
from the community sharing their outrage that Dr. [Carol] Williamsonas
contract had not been renewed without public input, three board members
demonstrated multiple examples of misconduct and willful neglect. I have
attached examples from the meeting transcript. These examples include racist
comments made by one board member as well as inappropriate dialog between
the members and the audience during the meeting.
Throughout this process, board members have posted inappropriate comments
on social media, calling principals aunscrupulousa for demonstrating and
gathering teacher and community support for Dr. Williamson. Board members
have made comments publically that principals would lose their positions
when they appoint the new superintendent. The principals were individually
identified in public as well. Other staff members were also contacted and
awarneda not to get involved with the rallying of support for our
Superintendent. This has created a fear of retaliation and in the process has
created a stressed work environment.

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Other removal requests state that board members were indifferent to the views of the
public concerning the superintendentas contract renewal, did not provide a sufficient rationale for
their decision, conspired to remove the superintendent, and generally abused their power. The
board members were also accused of not having a proper transition plan to replace the
superintendent.
In addition, other citizens filed complaints with the Queen Anneas County Board of
Education Ethics Panel and the State Open Meetings Compliance Board related to the decision
not to renew the superintendentas contract. On May 9, 2016, the Open Meetings Compliance
Board issued an opinion in which it found that the local board violated five provisions of the
Open Meetings Act. See 10 Official Opinions of the Compliance Board 35 (2016). The
compliance board found that the local board did not give proper notice of its February 9, 2016
special meeting; did not close the meeting by a publicly-held vote; did not provide the requisite
information required before closing the meeting; and did not make all of the required disclosures
about three of its closed sessions in the minutes of subsequent meetings. Id.
On April 28, the State Board sent a letter to Ms. George requesting her response to the
removal requests. The State Board attached nearly 400 pages of letters, emails, and other
documents sent by citizens asking for the removal of Ms. George. Ms. George responded in
writing.
LEGAL ANALYSIS
Additional Materials
After sending its request for a response to Ms. George, the State Board has continued to
receive new requests for her removal. On April 29, 2016, approximately 18 individuals (many of
whom had already filed removal requests on their own and offered public comment before the
State Board) jointly filed a new request for the removal of Ms. George, Ms. Taylor, and Ms.
DiMaggio. Additionally, another citizen started an online petition through the website
Change.org requesting removal of the board members. More than 1,200 people signed the online
petition as of early June.
The State Board has also received letters and emails that criticize the removal requests
and are supportive of Ms. George, Ms. Taylor, and Ms. DiMaggio.
The essential requirements of due process are anotice and an opportunity to respond.a
See Mobley v. Baltimore City Bd. of Sch. Commars, MSBE Op. No. 15-09 (2015) (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)). For this reason, the State Board
closes the record in cases brought before it once both parties have been given an opportunity to
make their arguments. In this case, the State Board accepted documents from the public for
more than a month, accumulating nearly 400 pages of material as of April 28, 2016. Ms. George
then had 30 days to respond to the materials and she filed her response in a timely fashion. In
our view, this process provided Ms. George with adequate notice of the allegations against her
and sufficient time to respond to those allegations.

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Due process requires that the State Board not consider additional documents once the
record in a case is closed. To proceed otherwise would create an indefinite process in which no
case would ever reach a resolution. For these reasons, we shall decline to consider the additional
materials filed in this case.
The Removal Statute
The State Board has sole authority to decide whether to remove most elected local board
members from office.2 See, e.g., Md. Code, Educ. '3-10-A-01. Although the removal statutes
are set forth in the laws that govern each specific board, the process and grounds for removal are
essentially the same in each statute. Removal of a local board member in Queen Anneas County
is described at Md. Code. Ann., Educ. '3-10A-01:
(a) Reasons. C The State Board may remove a member of the county board for any of the
following reasons:
(1) Immorality;
(2) Misconduct in office;
(3) Incompetency;
(4) Willful neglect of duty;
(5) Failure to attend, without good cause, at least 75 % of the scheduled meetings
of the board in any 1 calendar year.
(b) Notice of Charges. C Before removing a member, the State Board shall send the
member a copy of the charges against the member and give the member an opportunity
within 10 days to request a hearing.
(c) Hearing. C If the member requests a hearing within the 10 day period:
(1) The State Board shall promptly 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
(2) The member shall have an opportunity to be heard publicly before the State
Board in the memberas own defense, in person, or by counsel.
(d) Right to appeal. C A member removed under this section has the right to a de novo
review of the removal by the Circuit Court for Queen Anneas County.
Who May Request Removal?
The law does not specify who may request removal of a local board member or how they
should go about making the request. The statute merely states that the State Board amaya

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Removal of an elected board member in Charles County and Prince Georgeas County also requires the consent of
the governor. Md. Code, Educ. '3-501; '3-1002. The State Superintendent, with the approval of the Governor, may
remove an appointed local board member. See Md. Code, Educ. ' 3-108(d). Dr. Grasmick did so in 2007. In the
Matter of Maryann Judy, Supt. Case. No. 1-07 (2007). The Montgomery County Council is the only body with
authority to remove a member of the Montgomery County Board of Education. Md. Code, Educ. '3-901.

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remove a member of a local board. On three occasions since 2011, local boards have passed
resolutions or otherwise requested that the State Board remove one of their members. In
response to those requests, the State Board removed one member and declined to issue charges
against another. In the third case, the local board withdrew the request.
This is the first time that members of the school community, rather than a local board
itself, have requested removal of a board member. While it is our view that the statute does not
limit who may request removal, the process that evolved in this case deserves comment.
In past cases, the State Board has received a single request for removal containing all of
the allegations against a local board member. The local board member in question has generally
responded to the allegations. Based on these materials, the State Board decides whether to issue
charges and initiate the removal process. In this case, however, the State Board received
multiple requests from the public for the removal of three local board members. Some of the
requests were identical to one another, while others offered different arguments or information in
support of removal. As discussed previously, due process required that we close the record after
a certain point in time in order to ensure that the local board members had sufficient opportunity
to respond.
This was a novel situation for the State Board. Although the statute establishes the
removal power, we have not adopted regulations to further govern the process. In the absence of
regulations, we have applied our appeal procedures, past precedents, and existing case law to
guide the removal process. Going forward, we believe that regulations explaining our removal
procedures would be beneficial for local board members and the public to establish a more
formal order in the process, provide clarity to the public about what information should be
contained in a removal request, avoid duplicative requests, and reduce the potential for abuse of
the process.
Whether to Initiate the Removal Process?
The State Board, by statute, amaya remove a local board member. The use of the word
amaya in the removal statute indicates that the State Board has discretion in deciding whether to
remove a local board member from office. This discretion naturally would extend to the initial
decision on whether to issue charges against a local board member in the first place. See Heckler
v. Chaney, 470 U.S. 821, 831 (1985) (decision whether to prosecute or enforce an action is
committed to an agencyas aabsolute discretiona); District of Columbia v. Sierra Club, 670 A.2d
354, 360 (D.C. 1996) (aThe determination whether and when to institute enforcement
proceedings against a specific individual is a core executive responsibility which may reasonably
be viewed as having been committed to agency discretion so as to preclude substantive judicial
review.a). In order to initiate the removal process, we must determine whether there is probable
cause to issue charges.
Is there probable cause to issue charges?
In a previous case, the State Board applied the civil standard for probable cause to
determine if it should exercise its discretion to issue charges against a local board member. The
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Court of Appeals has described probable cause in a civil context as aa reasonable ground for
belief in the existence of such state of facts as would warrant institution of the suit or
proceeding.a One Thousand Fleet Ltd. Partnership v. Guerriero, 346 Md. 29 (1997). Therefore,
to issue charges and allow the matter to proceed to a hearing, the State Board should have a
areasonable ground for beliefa that misconduct in office, immorality, incompetence, or willful
neglect of duty may have occurred.
In determining whether there are grounds for a areasonable beliefa that misconduct,
immorality, incompetence, or willful neglect of duty may have occurred, the State Board
considers whether the allegations are factually and legally sufficient to support a charge. This
analysis is similar to that used by states where citizens may file recall petitions in order to
remove elected officials.3 In Washington State, for example, courts review the charges
supporting a recall petition to determine if they are factually and legally sufficient to bring to the
voters. See In Re Recall of Young, 100 P.3d 307 (Wash. 2004); Matter of Recall of Beasley, 908
P.2d 878, 880-882 (Wash. 1996). Most recently, this Board declined to issue charges against a
local board member in Dorchester County because the allegations were not factually and legally
sufficient to support a reasonable belief that misconduct in office may have occurred.
Factually sufficient
A factually sufficient complaint must astate the act or acts complained of in concise
language, [and] give a detailed description including the approximate date, location, and nature
of each act complained of.a Beasley, 908 P.2d at 881. There must also be an indication that the
person making the charge has knowledge of the facts supporting it and a reason to believe in its
truth. Id.
Legally sufficient
Factually sufficient allegations must be legally sufficient to support issuing a charge. In
other words, if the State Board were to assume that all of the facts alleged are true, would they
create a areasonable beliefa that those actions could constitute misconduct in office, immorality,
incompetence, or willful neglect of duty? The elements of each of the grounds for removal are
different.
Misconduct in office
In a previous removal case, the State Board defined misconduct in office as
encompassing malfeasance, doing an act that is legally wrongful in itself, and misfeasance, doing
an otherwise lawful act in a wrongful manner. See Dyer v. Howard County Bd. of Educ., MSBE
Op. No. 13-30 (2013) (citing Resetar v. State Bd. of Educ., 284 Md. 537, 560-61 (1979)). It
includes aa transgression of some established and definite rule of action, a forbidden act, a
dereliction from duty, [and] improper or wrong behavior.a Id.


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There are no provisions in Maryland law allowing for recall of elected officials.

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Immorality
Immoral acts alone cannot support termination unless the actions are arelated to conduct
which would render a [person] unfit for the performance of his duties.a Rollins v. Bd. of Educ. of
Worcester County, 2 Op. MSBE 331, 331-32 (1981). Although the State Board has never
offered a formal definition of aimmorality,a past cases provide insight into what types of
behavior are immoral. Recently, the State Board affirmed the termination of an assistant
principal who had multiple consensual sexual encounters with a married instructional assistant in
a classroom and school office outside of work hours. See Wright v. Bd. of Educ. of Charles
County, MSBE Op. No. 13-24 (2013). See also Johnston v. Howard County Bd. of Educ., MSBE
Op. No. 10-30 (2010) (sexual abuse of a minor); Hayhurst v. Garrett County Bd. of Educ., 7 Op.
MSBE 441 (1996) (buying and using marijuana); Gaither v. Baltimore City Bd. of Sch. Commars,
6 Op. MSBE 777 (1994) (using and selling illegal drugs); Vogel v. Montgomery County Bd. of
Educ., 5 Op. MSBE 398 (1989) (child abuse).
Incompetence
Incompetence means that a person ais lacking in knowledge, skills, and ability or failing
to adequately perform the duties of an assigned position.a Mua v. Prince Georgeas County Bd.
of Educ., MSBE Op. No. 13-34 (2013).
Willful Neglect of Duty
In the education context, the State Board has defined willful neglect of duty as occurring
awhen the employee has willfully failed to discharge duties which are regarded as general
teaching responsibilities.a Baylor v. Baltimore City Bd. of Sch. Commars, MSBE Op. No. 13-11
(2013). It is an intentional failure to perform some act or function that the person knows is part
of his or her job. See Lasson v. Baltimore City Bd. of Sch. Commars, MSBE Op. No. 15-21
(2015).
Allegations Against Board Member George
The allegations against Ms. George can be generally summarized as follows:
1 a Violations of the Open Meetings Act, including voting on the superintendentas
contract in a closed session without informing the public and failing to disclose minutes
of the meeting
2 a Violations of local ethics rules, including not explaining her decision regarding the
superintendentas contract, not having a plan to hire a new superintendent, and being
unable to properly run a public meeting
3 a Behaving improperly during the March 2, 2016 meeting, including inappropriate
back-and-forth dialogue with the audience concerning the reasons for not renewing the
superintendentas contract
4 a Disregarding public comment and input regarding reasons for renewing the
superintendentas contract during the March 2, 2016 meeting
5 a Failing to have significant reasons for not renewing the superintendentas contract and
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instead offering only general statements about her belief that the school system could do
better and that change was needed
6 a Making threats against employees who spoke in favor of the local superintendent and
suggesting principals and others who spoke in favor of the superintendent will lose their
jobs in the school system
Is the complaint factually sufficient?
To be factually sufficient, the complaint must tell us the date, location, and nature of each
act complained of and provide a factual basis to support each allegation. The first allegation
concerns the Open Meetings Act. The Open Meetings Compliance Board did find violations of
the Open Meetings Act. They were that the local board did not give proper notice of its February
9, 2016 special meeting; did not close the meeting by a publicly-held vote; did not provide the
requisite information required before closing the meeting; and did not make all of the required
disclosures about three of its closed sessions in the minutes of subsequent meetings. These
findings provide a factual basis to support that allegation.
The second allegation involves violations of local ethics rules. Separate complaints have
been filed with the Queen Anneas County Board of Education Ethics Panel. The finding of
ethics violations rests in the jurisdiction of the Ethics Panel. To date, we are aware of no
findings that Ms. George violated ethics rules. Accordingly, there is not sufficient factual
support for that charge.
The third, fourth, and fifth allegations concern Ms. Georgeas behavior during the March
and April 2016 local board meetings. There is a video of the two meetings, during which she
allegedly behaved improperly by engaging in a back-and-forth discussion with the audience,
disregarded public comment, and failed to have significant reasons for not renewing the
superintendentas contract. The videos provide a sufficient factual basis to support the
allegations.
The final allegation is that Ms. George made threats against employees who spoke in
favor of the local superintendent. The request to remove states:
Board members have made comments publically that principals would lose
their positions when they appoint the new superintendent. The principals were
individually identified in public as well. Other staff members were also
contacted and awarneda not to get involved with the rallying of support for our
Superintendent. This has created a fear of retaliation and in the process has
created a stressed work environment.
During public comment before the State Board, one requester stated that Ms. George
made a threat at a school sometime in April, but she did not claim to have heard this threat and
offered no specific details to support the allegation. At least one other removal request indicates
that the people who heard these threats are afraid of losing their jobs and will not voluntarily
come forward. Ms. George denies making any threats and points out that she does not have the
authority to remove employees from their jobs.
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In our view, in the absence of affidavits or other documentary evidence, a vague
allegation about threats, without providing more specific information, is not factually sufficient
to support the complaint.
In sum, the State Board concludes that the allegations concerning ethics violations and
threats against employees are not sufficient to support the complaint. The remaining allegations
are factually sufficient to move to the next stage in the process: a determination of whether the
allegations are legally sufficient to support a charge.
Are the factually sufficient allegations legally sufficient to support the issuance of charges?
The remaining factual allegations (violations of the Open Meetings Act, improper
behavior during meetings and disregard of public comments/improper decision-making),
presumed true for our purposes here, in our view do not fit the definitions of immorality,
incompetence, or willful neglect of duty, as defined above. Instead, they most closely fit within
the category of amisconduct in office.a
The next question is whether the factual allegations against Ms. George support a
areasonable beliefa that misconduct in office may have occurred.
Open Meetings Act violations
On May 9, 2016, the Open Meetings Compliance Board issued a decision in which it
concluded that the local board committed five violations of the Open Meetings Act. See 10
Official Opinions of the Compliance Board 35 (2016). The Compliance Board found that the
local board did not give proper notice of its February 9, 2016 special meeting; did not close the
meeting by a publicly-held vote; did not provide the requisite information required before
closing the meeting; and did not make all of the required disclosures about three of its closed
sessions in the minutes of subsequent meetings. Id.
The Compliance Board found that, although the local board posted notice of the Feb. 9
meeting in certain places on its website, it failed to include the meeting under its aMeeting
Schedulea or under aBoard Documentsa and did not provide a meeting location. Id. at 37. In
addition, the compliance board faulted the local board for describing the meeting as a aclosed
session.a Id. This implied that the public was not invited, even though the local board was
required to take the vote to move into closed session during an open public session. Id. The
local board further violated the Open Meetings Act by not taking a vote in public to close the
session, not preparing written statements explaining the reasons for closing the meetings aheadof-time, and failing to adopt the closed meeting minutes in a timely manner. Id. at 38-39.
Ms. George acknowledges that the local board violated the Open Meetings Act. A
violation of the Open Meetings Act, however, does not automatically equate to a reasonable
belief that misconduct in office occurred. In reviewing the findings of the Compliance Board,
there is no indication that Ms. George was individually responsible for these violations. The
discussion of the superintendentas contract was a personnel issue and the local board was
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permitted to discuss it in closed session. Although these violations are serious, we do not believe
that this collective failure on the part of all members of the local board to follow the Open
Meetings Act in this instance supports a reasonable belief that Ms. George may have committed
misconduct in office.
Conduct during the March 2016 board meeting
The decision not to renew the local superintendentas contract was controversial,
contentious, and caused great concern in some members of the school community. The board
split 3 to 2 during the March 2016 meeting and many members of the public spoke out against
the decision.
Those requesting removal provided very few substantive comments from Board President
George as examples of alleged misconduct. The comments cited were her explanation of why
she did not vote to renew the superintendentas contract. Ms. George stated that she believed the
school system was stagnant, that it had a acrumbling foundation,a and that it was being run as
fourteen separate schools rather than as one unified school system. Later, Ms. George stated that
the local board would acome upa with a plan regarding selection of the new superintendent, and
she indicated that she supported appointing an assistant superintendent as an interim
replacement. Some of these comments were made in response to questions from the audience.
In her letter to the State Board, Ms. George explains that she engaged in a discussion with
audience members at a few points during the local boardas March 2 meeting in the hopes of
settling down the crowd and keeping the meeting on track. She acknowledges that her approach
did not work and states that she should have simply told the audience that the board meeting was
not a question and answer platform.
During the meeting, Ms. George explained some of her reasons for voting not to renew
the superintendentas contract. She attempted, at times, to answer questions from members of the
community about her decision. In our view, her statements do not support a reasonable belief
that misconduct in office may have occurred.
Disregarding public opinion/improper decision making
The requesters assert that their views were not considered and the decision not to renew
the superintendentas contract was wrong. We point out, however, that by law the board has the
power to renew or not renew the local superintendentas contract. There is no statutory
requirement that the board consider the views of the public when it makes an appointment.
Local board members should weigh their decision carefully, and while we believe it is good
practice and policy to take into account the views of the public, the final decision ultimately
belongs to the board.
In her response to the State Board, Ms. George explains that she cannot discuss the
details of her decision regarding the superintendent because it is a personnel matter. In general,
Ms. George stated that she took her responsibility seriously, thought about the direction of the
school system, made lists, researched her notes from the past year, and reviewed emails she had
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received from people in the community before making her decision. aI listened to the
community, but those who disagree with our decision havenat presented me with new
information that would require me to change my vote,a she states. aI made a decision for which
I was elected to do and stand by that decision.a
We agree that the decision on whether to retain a superintendent is a quintessential local
issue, entrusted to the board members who were voted into office by the citizens of the county.
Elections provide an ultimate check on whether the citizens approve of the decisions made by
their elected representatives. The State Boardas removal authority is not meant to be a citizen
recall, but a limited means of removing board members whose conduct rises to the level of
misconduct, immorality, incompetence, or willful neglect of duty. Although some in the public
may disagree with the wisdom of the decision made by the local board, the local board membersa
refusal to be swayed by the requestersa opinions and the rightness or wrongness of the decision
to not renew the superintendentas contract in itself does not support a reasonable belief that
misconduct in office may have occurred.
CONCLUSION
The State Board declines to issue charges because it cannot reasonably find that the
removal requests against board member Jennifer George are factually and legally sufficient to
support a charge of misconduct in office, immorality, incompetence, or willful neglect of duty.
We note, however, that the public who expressed concerns about the decision not to reappoint
the superintendent consistently stated that their views were not being heard or considered. We
advise board members to be open, receptive, and respectful to the views of the public especially
when controversial decisions are being made.

__________________________
Guffrie M. Smith, Jr.
President
__________________________
S. James Gates, Jr.
Vice-President

__________________________
James H. DeGraffenreidt, Jr.

__________________________
Linda Eberhart

__________________________
Chester E. Finn, Jr.
__________________________
Michele Jenkins Guyton
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__________________________
Laurie Halverson

__________________________
Stephanie R. Iszard
__________________________
Laura Weeldreyer

Recused:
Madhu Sidhu
Andrew R. Smarick
June 28, 2016

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