source: Caselaw Access Project

author: DEBORAH S. EYLER, J.

license: Public Domain

text:
    134 A.3d 365
    Earl STONE et al. v. CHEVERLY POLICE DEPARTMENT et al.
    No. 2526,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    March 31, 2016.

      Ann E. Koshy (Patrick J. McAndrew, Sandra J. Strebel, Law Office of Patrick J. McAndrew, Greenbelt, MD, Brian R. Bregman, Bascietto & Bregman, LLC, Laurel, MD), on the briefs, for Appellant.
    Karen J. Kruger (Funk & Bolton, PA, on the brief), Baltimore, MD, for Appellee.
    Panel: DEBORAH S. EYLER, WRIGHT and FRIEDMAN, JJ.
   DEBORAH S. EYLER, J.

The Cheverly Police Department (“CPD”) and Police Chief Harold “Buddy” Robshaw (collectively “the Town”), the appellee, brought disciplinary charges against Corporal Earl Stone and Corporal Edmund Gizinski, the appellants, pursuant to the Law Enforcement Officers’ Bill of Rights (“the LEOBR”), Md.Code (2003, 2011 RepLVol., 2015 Supp.), section 3-101 through 3-113 of the Public Safety Article (“PS”). The Officers elected to be tried by a hearing board. Before the trial commenced, they filed suit in the Circuit Court for Prince George’s County, pursuant to section 3-105, seeking an order directing the Town to show cause why the charges should not be dismissed. They also asked the court to enjoin the Town from moving forward with the disciplinary charges until the court had ruled.

The court held a hearing and entered an order denying the request for a show cause order and to dismiss the charges, and also denying the request for injunctive relief. The Officers filed a notice of appeal from that order. Soon thereafter, the hearing board trial went forward. The Officers declined to participate. The hearing board found them guilty on all charges. Ultimately, they were terminated from employment as a sanction. Not having participated in the hearing board trial, the officers did not bring an action for judicial review.

The Officers pose two questions for review, which we have rephrased:

I. Did the circuit court err by denying their request for a show cause order and to dismiss the charges against them, when the charges were based on evidence the CPD obtained, in violation of their Fourth Amendment rights?

II. Did the circuit court err by not dismissing the charges against the Officers as being brought in unlawful retaliation for their testimony in favor of a fellow officer?

We shall dismiss the appeal for failure to exhaust administrative remedies.

The LEOBR

The purpose of the LEOBR is to “guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal.” Blondell v. Baltimore City Police Dep’t, 341 Md. 680, 691, 672 A.2d 639 (1996) (quoting Abbott v. Administrative Hearing Bd., 33 Md.App. 681, 682, 366 A.2d 756 (1976)).

When an investigation or interrogation of a law enforcement officer regarding alleged misconduct “results in a recommendation of demotion, dismissal, [or any other punitive measure], the law enforcement officer is entitled to a hearing on the issues by a hearing board before the law enforcement agency takes that action.” § 3-107(a). Ordinarily, the hearing board shall be composed of no less than three law enforcement officers chosen by the chief of police, at least one of whom holds the same rank as the officer charged. § 3-107(c). The chief of police and the hearing board are authorized to issue subpoenas to compel the attendance of witnesses and the production of relevant documents and other evidence. § 3-107(d)(1). The officer also may request the issuance of subpoenas. § 3-107(d)(3).

At the trial before the hearing board, the law enforcement agency and the officer both shall be given “ample opportunity to present evidence and argument about the issues involved” and shall be permitted to cross-examine witnesses called by the other party. § 3-107(e)(2) & (4). Evidence is admissible if it has “probative value that is commonly accepted by reasonable and prudent individuals in the conduct of their affairs,” and is not “incompetent, irrelevant, immaterial, [or] unduly repetitious.” § 3-107(f)(1) & (2).

The hearing board’s decision “shall be in writing and accompanied by findings of fact.” § 3-108(a)(l). If it finds the officer “not guilty,” the disciplinary action ends. § 3-108(a)(3). If it makes a finding of guilt, it must reconvene to receive additional evidence, consider the law enforcement officer’s past job performance, and make a recommendation to the chief of police about the appropriate sanction to impose. § 3-108(a)(4). Within thirty days of the hearing board’s recommendation about a sanction, the chief of police shall issue a final disciplinary order. § 3-108(d). An officer aggrieved by a final disciplinary order may challenge it in the circuit court, in an action for judicial review. § 3-109(a).

Section 3-103 is entitled “Rights of law enforcement officers generally.” One such right, as set forth in subsection (d), is as follows:

Retaliation. — A law enforcement officer may not be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise discriminated against in regard to the law enforcement officer’s employment or be threatened with that treatment because the law enforcement officer:

(1) has exercised or demanded the rights granted by this subtitle; or

(2) has lawfully exercised constitutional rights.

Finally, as relevant here, section 3-105, “Application for show cause order,” allows a law enforcement officer, in certain limited circumstances, to seek judicial intervention other than in a post-decision action for judicial review. Specifically, an officer “who is denied a right granted by [the LEOBR] may apply to the circuit court ... for an order that directs the law enforcement agency to show cause why the right should not be granted.” § 3-105(a). The officer only may do so “prior to the beginning of a hearing by the hearing board.” § 3 — 105(b); see also Moose v. Fraternal Order of Police, 369 Md. 476, 482, 800 A.2d 790 (2002). If the circuit court finds “that [the] law enforcement agency obtained evidence against [the] officer in violation of a right granted by [the LEOBR], the court shall grant appropriate relief.” § 3-105(c).

FACTS AND PROCEEDINGS

In their circuit court action invoking section 3-105, the officers complained 1) that the CPD intended to introduce, at the hearing board trial, evidence against them that was obtained in violation of their Fourth Amendment rights; and 2) that the CPD was pursuing the charges against them in retaliation for their having exercised their First Amendment rights. We shall summarize the facts related to both assertions, which are to some extent overlapping.

From July 16 through 18, 2012, Officer Francis Schmidt, who worked with the Officers, was tried by a hearing board on charges that he was involved in an accident in his police vehicle, but did not report it. The Officers testified on Officer Schmidt’s behalf. The trial resulted in an administrative decision to terminate Officer Schmidt’s employment. Officer Schmidt filed an action for judicial review.

More than a year later, in November and December of 2013, the Officers were working second jobs for a seasonal Christmas tree business owned and operated by one Elmer Ray Lynn. They formed the security detail for Lynn at his office, which was located in a hotel room at the Howard Johnson’s Hotel (“the Hotel”) in Cheverly. On November 27, 2013, the CPD issued a memorandum to all officers directing that any secondary employment at the Hotel was to be restricted to the parking lot and lobby areas and that officers were not permitted to enter Lynn’s office.

On December 8, 2013, the CPD opened an investigation into whether the Officers were violating the November 27, 2013 memorandum. In the course of the investigation, Sergeant Jarod Towers, the officer in charge, viewed video surveillance footage from the Hotel recorded between November 29, 2013, and December 18, 2013. It showed the Officers entering Lynn’s hotel room on more than one occasion. It also showed the Officers socializing with other officers during hours that they were on-duty with the CPD. Sergeant Towers reviewed the daily duty log each Officer had completed at the end of each on-duty shift and determined that the Officers had made false entries on their logs. The entries documented that they were conducting official police business at the very times the video surveillance footage showed them at the Hotel, socializing.

On December 15, 2013, the Officers filed sworn affidavits in favor of Officer Schmidt in an EEOC case he had brought. In that case, Officer Schmidt was claiming that Chief Robshaw had unlawfully retaliated against him after he filed a workers’ compensation claim.

On December 18, 2013, Lynn terminated both Officers’ secondary employment. The next day, the CPD issued a new memorandum to its officers prohibiting them from engaging in any secondary employment with Lynn’s business.

On December 30, 2013, based on the information Sergeant Towers had obtained, the CPD installed global positional satellite (“GPS”) tracking devices on the Officers’ individually assigned police cruisers. The GPS devices were affixed without a warrant and without the Officers’ knowledge or consent.

In the meantime, Officer Schmidt had argued in his judicial review action that his hearing board had been improperly constituted because a police chief from another law enforcement agency had been a member. The circuit court agreed and on October 15, 2013, issued an order remanding the case for a new trial before a new hearing board. In that hearing board trial, in early March of 2014, the Officers again testified on behalf of Officer Schmidt. On March 7, 2014, the hearing board issued a decision finding Officer Schmidt guilty on several charges.

On July 23, 2014, the CPD served the Officers with Notices of Interrogation in connection with an investigation into allegations of conduct unbecoming, insubordination, false statements, false entry into public records, and neglect of duty over the period spanning November 23, 2013, through February 1, 2014. The notices stated that the CPD had initiated an investigation into the Officers’ “conduct during the time [each was] engaged in secondary employment at the [Hotel] ... and related to potential violations that include disobeying one or more direct orders, unauthorized use of police equipment and providing false information.” The notices further stated that the CPD also was investigating whether the Officers had made “inaccurate and/or false” entries on their daily duty logs during January of 2014. The Officers were ordered to appear for an interrogation on August 6, 2014.

The Officers were served with amended Notices of Interrogation on August 5, 2014. The amended notices specified that the investigation into the period between November 23, 2013, and December 18, 2013, pertained to disobeying the memorandum directing officers not to enter any room at the Hotel and providing false statements to the dispatch officer regarding secondary employment at the Hotel. The investigation into the period between January 1, 2014, and February 1, 2014, pertained to the “accuracy of entries ... made ... on the [daily duty logs] concerning ... on-duty activities on approximately 15 dates and whether or not [the Officers] actually performed such duties.”

On August 6, 2014, the Officers were interrogated separately, each with counsel present. That same day, the CPD suspended the Officers’ police powers pending the outcome of the investigation. They were assigned administrative duties.

On September 4, 2014, the CPD served Stone with twelve disciplinary charges, based on allegations that he made false statements on his daily duty logs on dates between November 30, 2013, and January 31, 2014; neglected his duties during January of 2014; and disobeyed an order not to enter any hotel room at the Hotel. That same day, the CPD served Gizinski with eight disciplinary charges, based on allegations that he made false statements on his daily duty logs on dates between December 11, 2013, and January 31, 2014; submitted false house check sheets on January 11, 2014; neglected his duties between January 11, 2014, and January 31, 2014; and made a false statement to a police sergeant on December 11, 2013. Disciplinary action reports served on the Officers stated that the recommended sanction for the disciplinary charges was termination. On September 25, 2014, the CPD served Stone with notice of a thirteenth charge, which alleged an additional false entry in his daily duty log on or about December 1, 2013.

The Officers requested that the charges be tried before a hearing board. The trial was scheduled to commence on December 8,2014.

At the end of November of 2014, the CPD withdrew three charges against Gizinski and four charges against Stone, holding them “in abeyance.” The withdrawn charges all pertained to conduct during December of 2013 relating to secondary employment at the Hotel. Thus, the active charges all concerned conduct by the Officers in January of 2014, when the GPS tracking devices were being used.

At some point not revealed in the record, the hearing board trial date was postponed until February 2, 2015, at the request of the CPD.

On January 21, 2015, in the circuit court, the Officers filed a “Verified Complaint for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and for Order to Show Cause” against the CPD and Chief Robshaw, citing section 3-105. They attached 45 exhibits. The complaint set forth six counts, but only Counts I and VI are relevant to this appeal. In Count I, the Officers alleged that the CPD had violated their Fourth Amendment rights by placing the GPS tracking devices on their police cruisers without a warrant and without their knowledge or consent. In Count VI, the Officers alleged that the disciplinary proceedings were brought against them in retaliation for their having exercised their First Amendment rights by testifying for Officer Schmidt at his hearing board trials and providing affidavits for him in his EEOC case, all in violation of section 3-103(d). The Officers asked for a show cause order and, ultimately, dismissal of the charges against them. They also sought to enjoin the hearing board trial from going forward until after a ruling by the circuit court.

On January 26, 2015, the court held a hearing. Stone’s lawyer argued that the court should “issue the show cause order for a merits hearing to be held at a later date.” She represented that Stone had asked the hearing board to hold a full motions hearing in advance of trial, but the hearing board chairman had denied the request, ruling that any preliminary motions would be heard at the outset of the trial.

The court heard argument on all counts of the complaint and denied the request for a show cause order, to dismiss, and for injunctive relief. It addressed and ruled on the substantive issues raised by the Officers. As pertinent, it concluded, as a matter of law, that the Officers’ Fourth Amendment rights were not violated because they had no reasonable expectation of privacy in their department-issued police cruisers. The court further concluded that whether the CPD had brought charges against the Officers in retaliation for their having exercised their First Amendment rights was a fact-intensive issue to be decided at the trial before the hearing board, not in a section 3-105 proceeding in the circuit court. On February 4, 2015, the court entered an order dismissing the complaint and denying the request for injunctive relief. The Officers immediately filed notices of appeal to this Court. Meanwhile, on January 30, 2015, the Officers’ hearing board trial was postponed until March 2, 2015.

On February 3, 2015, in the circuit court action, Stone (later joined by Gizinski) filed a motion to enjoin the trial before the hearing board pending a decision by this Court on appeal. On March 1, 2015, there being no ruling on the motion, Stone’s lawyer emailed the hearing board, seeking a postponement of the trial until such time as the circuit court would rule on the injunction motion. That email also advised that Stone did not intend to participate in the trial before the hearing board if it went forward as scheduled. In an email sent the next day, Gizinski, through counsel, joined in the request for a postponement and advised that he also would not be participating in the trial. The hearing board denied the requests for postponement. Ultimately, by order entered on June 8, 2015, the circuit court denied the motion for injunction.

The trial before the hearing board proceeded as scheduled on March 2, 2015, and lasted until March 4, 2015. The Officers and their lawyers did not appear. The CPD dismissed the charges that were being held in abeyance. It introduced 57 exhibits and, as relevant to the instant appeal, called two witnesses. The evidence against Stone pertained to charges that he had made false entries on his daily duty logs on January 11, 2014 (Charge 1), January 12, 2014 (Charge 2), January 16, 2014 (Charge 3), January 17, 2014 (Charge 4), January 22, 2014 (Charge 5); January 25, 2014 (Charge 6), and January 31, 2014 (Charge 7); and that these false entries amounted to a course of conduct of not performing duties while falsely documenting productivity (Charge 8). The evidence against Gizinski pertained to charges that he had made false entries in his daily duty logs on January 11, 2014 (Charge 1), January 16, 2014 (Charge 2), January 17, 2014 (Charge 3), January 22, 2014 (Charge 4), and January 31, 2014 (Charge 5); and that these false entries likewise amounted to a course of conduct of not performing duties while falsely documenting productivity (Charge 6).

The CPD introduced GPS tracking evidence showing that, at particular times on the dates that the Officers had documented that they were making premises checks and performing other official police duties, their police cruisers were parked for hours at a time at locations with no connection to the documented work. Many of the locations were convenience stores. One of the locations was Prince George’s Hospital, which is not within the Town limits.

On March 23, 2015, the hearing board issued a 47-page written decision. It found the Officers guilty on all charges. In a separate proceeding, the hearing board recommended sanctions ranging from a reduction in rank to suspension without pay for the charges of false entries on the daily duty logs and the sanction of termination for the course of conduct charges.

Chief Robshaw notified the Officers that he was considering increasing the recommended penalty for Charges 1 through 7 against Stone and for Charges 1 through 5 against Gizinski. He scheduled a meeting with the Officers and their lawyers for April 7, 2015. See § 3 — 108(d) (stating that the recommended penalty is not binding on the chief of police and detailing the steps he or she must take to increase the penalty). They did not attend.

On April 14, 2015, Chief Robshaw issued the final written agency decision imposing termination as a sanction for each charge against each Officer. As mentioned above, neither Officer filed an action for judicial review.

DISCUSSION

As the above chronology discloses, the circuit court entered its order denying the Officers’ complaint under section 3-105 on February 4, 2015, before the hearing board trial commenced; and the Officers noted this appeal before the hearing board trial commenced. On March 3, 2015, the Town filed a motion to dismiss the appeal, arguing that the circuit court’s order was not a final judgment and therefore was not appeal-able, and that, because the circuit court entered its order denying relief under section 3-105 before the hearing board trial commenced, the Officers failed to exhaust their administrative remedies by not participating in the hearing board trial. The Town supplemented its motion on March 27, 2015, after the hearing board issued its written decision but before Chief Robshaw issued the final agency decision.

The Officers opposed the motion to dismiss the appeal, arguing that the order denying their complaint to show cause (and their attendant request for injunctive relief) either was a final judgment or was an appealable interlocutory order denying a request for an injunction. See Md.Code (1974, 2013 Repl.Vol.), section 12 — 303(3)(iii) of the Courts and Judicial Proceedings Article. They filed a motion seeking to have this Court issue an injunction to prevent the hearing board and Chief Robshaw from imposing any disciplinary sanction during the pendency of the appeal. The Town filed an opposition.

By order dated April 24, 2015, this Court denied the Town’s motion to dismiss the appeal and the Officers’ motion for injunction.

On November 3, 2015, the Town filed its brief, which includes a second motion to dismiss the appeal. In that motion, the Town repeats the arguments raised in its first motion, and adds that the appeal has been rendered moot by the final agency decision terminating the Officers’ employment or that the Officers waived the arguments they advance on appeal by failing to raise them in the trial before the hearing board.

In their reply briefs, the Officers oppose the second motion to dismiss, arguing that the Town is precluded from filing a second motion to dismiss the appeal, under the doctrine of collateral estoppel; the circuit court’s February 4, 2015 order was an appealable final judgment; and they were not required to exhaust their administrative remedies before noting an appeal from the circuit court’s ruling denying the relief they requested under section 3-105.

For the reasons to follow, we shall dismiss this appeal for failure to exhaust administrative remedies.

In MTA v. Hayden, 141 Md.App. 100, 784 A.2d 627 (2001), an MTA transit officer who was charged with misconduct elected to be tried by a hearing board. In advance of trial, he asked the hearing board to subpoena the hearing board chairperson as a witness in his case. The hearing board denied the request, finding that it was an attempt by the officer to create a conflict so a new chairperson would have to be appointed. In the circuit court, the officer filed a petition for show cause order pursuant to section 3-105 (then section 734 of Article 27 of the Maryland Code). The circuit court entered an order directing the MTA to show cause why the subpoena should not be issued, and the MTA responded, arguing that the officer was not entitled to the requested subpoena. The court did not schedule a hearing and held the matter sub curia.

Meanwhile, the hearing board trial went forward. The officer and his lawyer declined to participate. The hearing board found the officer guilty of the charges and recommended a two-week suspension. The MTA Chief adopted that recommendation, and issued the final agency decision. The officer did not file an action for judicial review.

A year later, the circuit court finally issued a ruling on the substance of the officer’s section 3-105 show cause petition. It found that the hearing board had wrongly denied the officer’s request to subpoena the hearing board chairperson. It entered an order vacating the final agency decision and remanding the case for a new trial before a new hearing board.

The MTA noted an appeal from the circuit court’s order. It argued that the section 3-105 proceeding had been rendered moot by the final agency decision, and that the officer had failed to exhaust his administrative remedies by declining to participate in the hearing board trial and by not filing an action for judicial review to challenge the final agency decision.

We held that the final agency decision did not render the section 3-105 proceeding moot, stating that, to hold otherwise would “defeat the ‘pre-hearing review1 purpose of [section 3-105].” Id. at 112. We reasoned that, because the purpose of that statute is “ ‘to assure that the police agency will do what the law requires,’ ” it “mandate[s] that the circuit court’s ... decision [on a section 3-105 petition], rather than the administrative decision handed down in the meantime, govern the outcome.” Id. (quoting Cochran v. Anderson, 73 Md.App. 604, 613, 535 A.2d 955 (1988)). In other words, the circuit court’s decision under section 3-105, albeit delayed, took precedence over the agency decision rendered during the period of delay. The MTA proceeded with the hearing board trial, before the circuit court ruled on the section 3-105 petition, “at the risk of the court vacating any administrative decision resulting from the challenged proceeding.” Id. at 113. Rejecting the MTA’s argument that the officer’s show cause petition was an attempt “to by-pass MTA administrative proceedings,” we held that the LEOBR’s show cause provision is a “statutory exception to the doctrine of exhaustion of administrative remedies” and plainly entitled the officer to seek the relief he did. Id. We affirmed the circuit court’s ruling on the merits.

In Hayden, the hearing board trial was held after the officer filed his section 3-105 proceeding in the circuit court but before the court ruled on it. The court had not yet decided whether the officer was entitled to subpoena the chairperson to appear before the hearing board when the hearing board trial was held. In the case at bar, unlike in Hayden, the hearing board trial was held after the circuit court ruled on the Officers’ complaint under section 3-105. Even though they had obtained a ruling from the court on their section 3-105 complaint in advance of the hearing board trial, as section 3-105 entitled them to obtain, the Officers declined to participate in the trial.

The Officers maintain that, because section 3-105 is an exception .to the rule that administrative remedies must be exhausted, they are entitled to appellate review of the circuit court’s section 3-105 ruling and to have the final agency decision vacated if the circuit court’s ruling was incorrect, even though they did not participate in the hearing board trial. In their view, it makes no difference that here, unlike in Hayden, the circuit court ruled on their section 3-105 request for relief in advance of the hearing board trial. They reason that, because they noted an appeal from the circuit court’s ruling before the hearing board trial took place, they can receive the benefit of any reversal by this Court of the circuit court’s ruling, i.e., a new hearing board trial, notwithstanding that they did not participate in the agency proceeding. Presumably, only after a decision by this Court, and the denial of a petition for writ of certiorari or, if such a petition were granted, a decision by the Court of Appeals, would they be required to participate in a hearing board trial.

We disagree. In the case at bar, the “ ‘pre-hearing review’ ” purpose of section 3-105 was accomplished. Hayden, 141 Md.App. at 112, 784 A.2d 627. The circuit court ruled on the issues raised by the Officers in advance of the hearing board trial. To be sure, the ruling did not favor them; but the court’s decision “governing] the outcome” was made. Id. at 112, 784 A.2d 627. That decision was that the GPS evidence was not inadmissible on Fourth Amendment grounds and whether the investigation that led to the charges against the Officers was retaliation for their having exercised their First Amendment rights by testifying on behalf of Officer Schmidt was a factual issue that the hearing board, not the circuit court, should decide.

The circuit court’s decision, embodied in its February 4, 2015 order, was appealable as a final judgment. See, e.g., DiGrazia v. Cnty. Exec, for Montgomery Cnty., 288 Md. 437, 418 A.2d 1191 (1980) (appeal from circuit court decision granting summary judgment in favor of the county executive on an officer’s petition for show cause); Blondell, 341 Md. at 680, 672 A.2d 639 (appeal from circuit court’s grant of judgment in favor of police department on officer’s petition for show cause); Miller v. Baltimore Cnty. Police Dep’t, 179 Md.App. 370, 946 A.2d 1 (2008) (appeal from decision of the circuit court dismissing officer’s petition for show cause). And the Officers could exercise their right to challenge the court’s decision on appeal. What they could not do, however, was pursue that challenge and, having received a decision from the circuit court in advance of the hearing board trial, fail to participate in that administrative proceeding. In Hayden, the MTA officer’s failure to participate in the hearing board trial was without prejudice to him because the MTA pushed forward with the trial before the circuit court ruled on the issue the officer was entitled to have the court decide in advance of trial. That is not the case here.

Among the reasons the Court of Appeals has articulated to support the rule requiring exhaustion of administrative remedies are that “permitting] interruption for purposes of judicial intervention at various stages of the administrative process might well undermine the very efficiency which the Legislature intended to achieve in the first instance”; and “the courts might be called upon to decide issues which perhaps would never arise if the prescribed administrative remedies were followed.” Soley v. State Comm’n on Human Relations, 277 Md. 521, 526, 356 A.2d 254 (1976); see also Moose, 369 Md. at 487, 800 A.2d 790. These reasons are implicated here.

While the section 3-105 circuit court process entitles an officer to obtain a ruling from the circuit court that will be implemented at the hearing board trial, it does not entitle him to delay the hearing board trial until any appellate challenges to the circuit court’s ruling have been exhausted. If the circuit court’s ruling is determined, on appeal, to have been in error, and the officer was found guilty in a hearing board trial in which he participated and in which the circuit court’s ruling was implemented, the officer will be afforded a new hearing board trial. If the officer is not found guilty in those circumstances, a new trial will not be necessary and the appeal will be moot. The officer must exhaust his administrative remedies, however, and not sit back without doing anything after receiving the process afforded by section 3-105.

The Officers obtained a ruling from the circuit court but did not thereafter exhaust their administrative remedy under the LEOBR. Accordingly, they are bound by the hearing board’s findings of guilt and the sanctions imposed against them, regardless of their challenge to the substance of the circuit court’s ruling on the section 3-105 proceeding.,

APPEAL DISMISSED. COSTS TO BE PAID BY THE APPELLANTS.

      . As the appellee points out in its brief, the proper respondent in this case is the "Mayor and Town Council of Cheverly.” See Cheverly Charter, § C-l.

      . We shall refer to Stone and Gizinski collectively as "the Officers” except when it is necessary to distinguish between them.

      . Unless otherwise indicated, all statutory references are to the PS Article.

      . Under certain circumstances not relevant here, the decision of the hearing board is final and binding. PS § 3-108(c).

      . The Officers claim they were terminated because the CPD’s investigation was disrupting Lynn’s business.

      . It is not clear from the record whether the devices were installed on the exteriors or the interiors of the vehicles.

      . After Officer Schmidt was sanctioned, he brought an action for judicial review. The circuit court upheld the final agency decision. Officer Schmidt noted an appeal to this Court, which affirmed the circuit court’s judgment. See Schmidt v. Town of Cheverly Police Department, No. 385, September Term, 2015, 2016 WL 853866 (filed March 2, 2016.)

      . Indeed, Stone's notice of appeal was filed on January 28, 2015, two days after the circuit court ruled but a week before the final order was entered. Pursuant to Rule 8-602(d), his appeal is treated as having been filed on February 4, 2015, following the entry of the order. Gizinski filed his notice of appeal on February 24, 2015.

      . The hearing board also heard two new charges against Gizinski that had been served on him in August of 2014. The CPD called two witnesses to testify about those charges. Those charges are not at issue in the instant appeal.

      . There is no merit to the argument that this Court’s April 24, 2015 order denying the Town’s motion to dismiss is binding on this panel. First, generally, a case before this Court "shall be heard by a panel of not less than three judges” and shall be decided by the "concurrence of a majority of [the] panel.” Md.Code (1973, 2013 Repl.Vol., 2015 Supp.), § 1-403(b) of the Courts and Judicial Proceedings Article. For any of the reasons given in Rule 8-602(a), an appeal may be dismissed by "the Court” ”[o]n motion or on its own initiative.” Md. Rule 8-602(a). "An order of the Court dismissing an appeal or denying a motion to dismiss an appeal may be entered by the Chief Judge, an individual judge of the Court designated by the Chief Judge, or the number of judges required by law to decide an appeal.” Md. Rule 8-602(b). (If a motion for reconsideration of an order dismissing an appeal is filed, it must be decided by the number of judges required by law to decide an appeal, except that the order may be rescinded by the individual judge who entered it. Md. Rule 8 — 602(c)(2)). Thus, an order of the Chief Judge or an individual judge of the Court denying a motion to dismiss an appeal is interlocutory, because the appeal will be heard by a three judge panel and ultimately will be decided by at least a concurrence of that panel.

        Second, collateral estoppel has no application here, as that doctrine concerns issue preclusion in separate cases. See Welsh v. Gerber Products, Inc., 315 Md. 510, 516, 555 A.2d 486 (1989) (collateral estoppel applies in "a second suit between the same parties” to preclude the relitigation of any determinations of fact conclusively decided in the prior suit) (emphasis added).
      Finally, it is well-established that an appellate court in Maryland can dismiss an appeal on its own, for failure to exhaust administrative remedies; therefore, it does not matter whether the Town filed motions to dismiss at all on this ground or whether the motions were denied before the case was heard and decided by this panel. See Montgomery Cnty. v. Broadcast Equities, Inc., 360 Md. 438, 450-51 n. 7, 758 A.2d 995 (2000) (Appellate court may address, sua sponte, "an issue concerning exhaustion of an administrative remedy.”).

      . We note, with respect to the Fourth Amendment issue, that section 3-105 only authorizes a circuit court to grant appropriate relief upon a finding that the agency “obtained evidence against a law enforcement officer in violation of a right granted by this subtitle," i.e., by the LEOBR. (Emphasis added.) A Fourth Amendment violation, if there were one, is not a violation of a right granted by the LEOBR.

      . The Officers have filed a motion for reargument, based on an order of this Court issued on December 18, 2015. The order granted a motion for reconsideration filed by Gizinski, accepting a late-filed brief. The Town had moved to dismiss Gizinski's appeal for failure to file a brief. The last line of the December 18, 2015 order states, "Appellee's Motion to Dismiss be and hereby is denied." The Officers maintain that this was a denial by this Court of the motion to dismiss in the Town's brief; and because the motion had been denied, they did not expect to be questioned at oral argument about the subject of the motion, and because they were, they did not have time to address their substantive appeal issues. The language in the December 18, 2015 order did not concern the motion to dismiss in the Town’s brief. It concerned the Town’s motion to dismiss Gizinski’s appeal for failure to file a brief. And, for the reasons we have explained, the Officers should have understood that the issues raised in the Town’s motion to dismiss in its brief were not finally decided by the April 24, 2015 order and, especially with respect to the exhaustion issue, which the Court can raise on its own, questions would be coming from the bench. Of course, there is no restriction on questions that may be posed by the Court during oral argument. Moreover, we are deciding this case on the issue that the Officers had ample opportunity to address at oral argument and not on the issues they complain they did not have time to cover. The motion to reargue is denied.

      . The Town has moved to strike portions of the record extract and the appendix to Stone’s brief. We will grant the motion to strike pages 7-8 of the appendix to Stone’s brief, but otherwise deny the motion. Pages 7-8 are an article about GPS tracking and how it works that was not in evidence and was not attached to the complaint.


text:
    134 A.3d 376
    FREDERICK CLASSICAL CHARTER SCHOOL, INC. v. FREDERICK COUNTY BOARD OF EDUCATION.
    No. 42,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    March 31, 2016.

      F. William DuBois (Jessica M. Raba, Venable, LLP, on the brief), Baltimore, MD, for Appellant.
    Andrew W. Nussbaum (Nussbaum Law, LLC, on the brief), Charksville, MD, for Appellee.
    Panel: GRAEFF, REED, and ROBERT A. ZARNOCH (Retired, Specially Assigned), JJ.
   ROBERT A. ZARNOCH (Retired, Specially Assigned), J.

“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.” Baltimore City Bd. of Sch. Com’rs v. City Neighbors Charter Sch., 400 Md. 324, 328, 929 A.2d 113 (2007). This movement has not been without controversy. In particular, the methodology for disbursing public funds for charter school use has been an area of unique difficulty for policy makers. After six years of discussion and debate, see id. at 348-56, 929 A.2d 113, the General Assembly passed the Public Charter School Act of 2003. Laws of 2003, ch. 358. The Act provided that funding for charter schools would be “commensurate with the amount disbursed to other public schools in the local jurisdiction.” Md.Code (1978, 2014 Repl. Vol.), Education Article (“Educ.”) § 9-109(a).

Following the approval of its charter application, in 2013, Frederick Classical Charter School, Inc. (“Frederick Classical”), appellant, protested that the Frederick County Board of Education (“FCPS”), appellee, violated Educ. § 9-109 by failing to include transportation funds in its fiscal year 2014 funding allocation even though Frederick Classical was not providing transportation for its students. This decision was upheld by both the State Board of Education (the “State Board”) and the Circuit Court for Frederick County.

Frederick Classical appealed to this Court and presents the following question for our review, which we have rephrased:

Did the State Board err in finding that the Local Board provided full funding despite the fact that it did not include transportation funding in Frederick Classical’s funding allocation?

We hold that the State Board did not err in upholding the decision of FCPS not to include transportation funding for Frederick Classical because FCPS complied with State Board of Education rulings and state education law. We affirm the decision of the circuit court.

BACKGROUND

A. Charter School and Transportation Funding

This case concerns a dispute about local board of education funding for a charter school — specifically whether the local board was required to provide funding for transportation services that neither it nor the charter school provided. We begin with background on charter schools and transportation funding in Maryland.

“[E]ach county board shall arrange for the transportation of students to and from consolidated schools.” Educ. § 4-120(b). However, local school boards are not required to provide transportation to all students who attend public schools. See, e.g., Educ. § 7-801(b)(l) (“At its own expense, a county governing body may provide transportation for public school students in addition to the transportation provided by the State” (Emphasis added)); § 7-805 (specifying conditions under which a school bus may be used to transport any student who lives within the mileage limit). The state distributes grants to the county boards to provide transportation services for public school students and disabled children, pursuant to the formula set out in Educ. § 5-205. This section sets restrictions on this funding, requiring that any excess funds be applied to the following fiscal year and that a county board may not transfer student transportation funding to any other category. Educ. § 5-205(a).

Charter schools are “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.” City Neighbors Charter Sch., 400 Md. at 328, 929 A.2d 113. As the Court of Appeals has noted, the principal objective of those who desired to create charter schools “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.” City Neighbors Charter Sch., 400 Md. at 329, 929 A.2d 113. In view of this goal, the State Board of Education has held that the funding mix of each fund source to the local board of education need not be duplicated at the charter school level. City Neighbors Charter Sch. v. Balt. City Bd. of Sch. Comm’rs, MSBE Op. No. 05-17 (2005) (“City Neighbors”).

Recounting the development of its interpretation of funding allocation for charter schools, the State Board, in its opinion below, stated:

The Charter School Program, which became law in 2003, requires that a local board “disburse to a public charter school an amount of county, State, and federal money for elementary, middle, and secondary students that is commensurate with the amount disbursed to other public schools in the local jurisdiction.” Md.Code, Educ. § 9-109.

On May 26, 2005, this Board issued three revised opinions explaining the meaning of the terms “commensurate” and “disbursed” in accordance with its power to interpret State education law. This Board stated that the word “commensurate” meant “proportionate” and that “disbursed” meant “expended.” City Neighbors Charter Sch. v. Baltimore City Bd. of Sch. Comm’rs, MSBE Op. No. 05-17 (2005). This Board further stated that commensurate funding “includes funding for services for which students in the public charter schools are eligible such as free and reduced price meals, pre-kindergarten, special education, English-language learners, Perkins, Title I, and transportation.” Id.

In order to assist local school systems, this Board provided a formula designed to result in a proportionate amount. Id. The formula takes the annual school system operating budget (including all federal, State, and local funding) divided by the September 30 enrollment count for the previous year minus two percent for reasonable central office functions to arrive at the [per pupil allocation (“PPA”) ]. Id. In addition, the charter school may be responsible for reimbursing the school system for the cost of any services that the county provides. Id. [The State Board’s opinion in City Neighbors was upheld by the Court of Appeals in Baltimore City Bd. of Sch. Com’rs v. City Neighbors Charter Sch., 400 Md. 324, 929 A.2d 113 (2007).]

A year later, in Monocacy Montessori Communities, Inc. v. Frederick County Bd. of Educ., MSBE Op. No. 06-17 (2006), this Board considered whether a different formula created by FCPS was consistent with State law and the State Board’s previous opinions.

[W]e explained that a school system could use a different formula so long as it resulted in a “bottom line amount of money such that this Board could conclude that the school system was providing proportionate/commensurate funds to the charter school.” Id. We disagreed that the amount of funding must be “equal” because an equal PPA allocation would not take into account the value of in-kind services provided by FCPS. Id.

We next analyzed in Monocacy the formula applied by FCPS. A major difference in the FCPS formula was that it broke down the unrestricted budget in each of fifteen categories. Under the formula, no money was allocated for transportation because the charter school had agreed that it would provide for the transportation needs of its students. We noted that transportation dollars had been a part of the State Board’s standard formula, but that the charter school would not be entitled to these funds if it had agreed to forgo them. After analyzing the FCPS formula in full and comparing it to our own formula, this Board concluded that FCPS needed to pay an additional $12 per pupil in order to meet the commensurate funding requirement. Id.

In other words, in MMCI, the State Board determined that a local board may use an alternative funding formula, as long as that formula resulted in a per pupil allocation that was similar to the allocation set out in City Neighbors. Keeping in mind the State Board’s interpretation of Educ. § 9-109 set out above, we now turn to the facts of this case.

B. Current Proceedings

On April 6, 2011, the Frederick County School Board approved Frederick Classical’s application for the formation of a charter school. The Local Board and Frederick Classical subsequently entered into a contract, the charter, that described the relationship between Frederick Classical and FCPS. With regard to school funding, the charter states that:

[i]n accordance -with ED § 9-109[] and further clarified in corresponding State Board Rulings, the [Local] Board shall disburse to [the School] an amount of county, state, and federal money for elementary, middle, and secondary students that is commensurate with the amount disbursed to other public schools in the local jurisdiction.

With regard to transportation of students, Section H of the charter states:

Transportation shall be the responsibility of [Frederick Classical] families with the following exceptions:

1. Students who live along an established bus route that passes the School facility; and

2. Special education students with transportation on their IEP’s.

If [Frederick Classical] subsequently determines to provide transportation during the term of this Charter, it may contract with an approved provider for transportation services within provisions allowable under the negotiated agreement.

On June 26, 2013, FCPS provided Frederick Classical with its charter school funding for fiscal year 2014, which calculated the PPA at $8,818.54, resulting in Frederick Classical receiving approximately $2.4 million based on an enrollment of 280 students. On August 14, 2013, Frederick Classical objected to FCPS’s allocation formula and contended that it was not consistent with Maryland law because it did “not include the Transportation category of funding ...” Frederick Classical requested that FCPS consider funding the school to “include, at least, the Transportation category of funding” in the calculation. In a letter dated September 25, 2013, FCPS denied Frederick Classical’s request for transportation funding, stating that its “allocation is based on the formula that has been previously accepted and approved by the Maryland State Board of Education as being consistent with Maryland law and the Board has determined that it is the formula that will be applied here.” Neither Frederick Classical nor FCPS provided transportation to Frederick Classical’s students.

On October 25, 2013, Frederick Classical appealed FCPS’s decision to the Maryland State Board of Education. Frederick Classical requested that the State Board reverse FCPS’s decision to deny the funding under the charter and Educ. § 9-109. Alternatively, Frederick Classical asked the State Board for a declaratory ruling that the Local Board’s 2013-2014 funding allocation for Frederick Classical is inconsistent with State law. It urged the State Board to apply a de novo standard of review and exercise independent judgment in its evaluation of the appeal given that the case represents a dispute as to State public school law.

FCPS responded with a motion for summary affirmance, denying that its decision was arbitrary, unreasonable, or illegal. FCPS filed an affidavit of Leslie R. Pellegrino, CPA, the County Board’s Executive Director of Fiscal Services, which stated that when making the calculation for allocating funds to Frederick Classical, her office “use[d] the same approach and formula that was used by the School System and approved in the State Board Opinion issued in Monocacy Montessori Communities, Inc. v. Frederick County Board of Education, MSBE Op. No. 06-17 (2006).”

On May 20, 2014, the State Board upheld FCPS’s decision concerning the level of funding allocated to the School for the 2013-14 school year. Frederick Classical Charter School, Inc. v. Frederick County Board of Education, MSBE Op. No. 14-21 (2014). It denied Frederick Classical’s alternative request for a declaratory ruling. At the outset, the State Board determined that the appeal concerned a dispute regarding the rules and policies of a local board, and, therefore, it gave deference to the decision of FCPS. The State Board observed that “the local board’s decision must ‘be considered pñma facie correct’ and upheld unless [Frederick Classical] proves that the local board’s decision was arbitrary, unreasonable, or illegal.”

The State Board reviewed its previous rulings on the allocation of money to public charter schools. It noted that “[although transportation costs are among the funds that could be included in a [per pupil allocation], this will depend on the arrangement between the local school system and the charter school.” In its view, “a plain reading of the Charter language indicate[d] that [Frederick Classical] is not responsible for providing transportation” and that “if [Frederick Classical] received funds for services it did not provide, it would be receiving more than its commensurate share of county funds.” The Board upheld the decision of FCPS and held that “[t]aking into account transportation costs is consistent with our prior rulings. In determining a [funding allocation], it is not arbitrary, unreasonable, or illegal for a county to consider the actual services provided by the charter school to reach a commensurate level of funding.”

Frederick Classical petitioned for judicial review in the Circuit Court for Frederick County on June 18, 2014. The circuit court upheld the State Board’s decision on February 5, 2015. Frederick Classical appealed to this Court on March 6, 2015.

DISCUSSION

The Maryland Constitution, Art. VIII § 1 directs the General Assembly to “establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance.” The General Assembly created the Department of Education, headed by the State Board of Education, which is mandated to oversee “[t]he general care and supervision of public elementary and secondary education.” Educ. § 2-106. Section 2-205 of the Education Article enumerates the powers and duties of the State Board. It provides that the Board shall “(1) Determine the elementary and secondary educational policies of this State; and (2) Cause to be carried out those provisions of this article that are within its jurisdiction.” Educ. § 2-205(b). Subsection (e) describes the Board’s abilities to explain the intent and meaning of the Education Article and Maryland education policy:

(1) Without charge and with the advice of the Attorney General, the State Board shall explain the true intent and meaning of the provisions of:

(i) This article that are within its jurisdiction; and

(ii) The bylaws, rules, and regulations adopted by the Board.

(2) ... [T]he Board shall decide all controversies and disputes under these provisions.

(3) The decision of the Board is final.

Section 2-205, therefore, “invests the State Board with the last word on any matter concerning educational policy or the administration of the system of public education. This has been described as ‘a visitatorial power of the most comprehensive character.’ ” Bd. of Educ. of Talbot County v. Heister, 392 Md. 140, 153, 896 A.2d 342 (2006) (quoting Wilson v. Bd. of Ed. of Montgomery County, 234 Md. 561, 564, 200 A.2d 67 (1964)).

As a result of the visitatorial power of the State Board on education matters, the decisions of the State Board of Education are entitled to greater deference than those of most other administrative agencies. Patterson Park Pub. Charter Sch., Inc. v. Baltimore Teachers Union, 399 Md. 174, 197, 923 A.2d 60 (2007) (citing Board of Education of Talbot County v. Heister, 392 Md. 140, 155, 896 A.2d 342 (2006)). Frederick Classical’s arguments to the contrary are unavailing.

Frederick Classical suggests that we should not give heightened deference to the opinion of the State Board because the “State Board may not decide finally purely legal questions, and may not exercise its powers arbitrarily or capriciously.” Although Frederick Classical characterizes this case as purely a matter of contract interpretation, as discussed below, the issues involved in this proceeding constitute an interplay between Frederick Classical’s charter, the local school board funding formula, and State Board decisions — matters of education policy rooted deeply in the powers of the State Board. Here, the State Board was deciding a matter of education policy, and, thus deserves the heightened deference accorded to it.

Although we give the decision of the State Board heightened deference, we review the decision under the arbitrary and capricious standard. See Bd. of Educ. of Somerset County v. Somerset Advocates for Educ., 189 Md.App. 385, 401-02, 984 A.2d 405 (2009). “ ‘Decisions contrary to law or unsupported by substantial evidence are not within the exercise of sound administrative discretion, but are arbitrary and illegal acts.’” Hurl v. Bd. of Educ. of Howard County, 107 Md.App. 286, 306-07, 667 A.2d 970 (1995) (quoting Deft of Health v. Walker, 238 Md. 512, 523, 209 A.2d 555 (1965)). State Board regulations define decisions of a county board as being “arbitrary” where “contrary to sound educational policy” or where a “reasoning mind could not have reasonably reached the conclusion the local board ... reached.” COMAR 13A.01.05.05B. These regulations define decisions as being illegal, if, among other things, they exceed the statutory authority or jurisdiction of the local board or misconstrue the law. COMAR 13A.01.05.05C. When an administrative agency acts in a manner that is inconsistent with its earlier decisions, without providing an adequate explanation for the different results, it acts arbitrarily and capriciously. Somerset Advocates for Educ., 189 Md.App. at 401-02, 984 A.2d 405 (Citation omitted).

Frederick Classical contends that the State Board acted arbitrarily and capriciously in declining to reverse FCPS’s decision not to provide transportation funding. Specifically, it contends that the State Board erred in interpreting the charter language, that the State Board’s ruling is inconsistent with its decisions in City Neighbors, supra, and Monocacy Montessori Communities, Inc. v. Frederick County Bd. of Educ., MSBE Op. No. 06-17 (2006) [“MMCI ”], and that the Board’s ruling was inconsistent with state law because it resulted in a disproportionate funding allocation. FCPS responds that the State Board’s decision was not arbitrary or capricious because charter language unambiguously placed the responsibility for transportation on Frederick Classical families and because the funding formula used in this case is consistent with City Neighbors and MMCI and does not violate state law. FCPS maintains that due to the nature of the budget process it is not withholding transportation funding to spend on other schools’ students, and so the formula does not result in disproportionate funding.

The State Board determined that FCPS’s funding allocation was consistent with its previous orders and with a plain reading of Frederick Classical’s charter. Regarding transportation, the charter states: “Transportation shall be the responsibility of [Frederick Classical] families with the ... exception[]” of students who live along an established bus route and certain special education students. Based on this language, the Board concluded that “a plain reading of the Charter language indicates that [Frederick Classical] is not responsible for providing transportation,” and that instead, “the responsibility falls on parents and the county (for students living along an established route or special education students).” Because it was undisputed that Frederick Classical did not at the time provide transportation for its students and did not provide transportation during the 2013-2014 school year, the Board concluded that Frederick Classical was not entitled to transportation funds. It further noted that if Frederick Classical received funds for transportation services it did not provide, “it would be receiving more than its commensurate share of county funds.”

Frederick Classical argues that the Board erred in interpreting the charter because the language does not imply that Frederick Classical agreed to “forego” transportation funds, and because the charter allows it to later provide transportation for its students. To support this argument, Frederick Classical relies on a tautology, that “[t]he State Board simply disregards that the School is entitled by law to receive transportation funding in its allocation, and that the School has not agreed to forego those funds.” Initially, we note that it does not matter whether Frederick Classical can later contract to provide transportation, because it was uncontroverted that Frederick Classical was not providing transportation. The charter by its plain language states that transportation “shall be the responsibility of [Frederick Classical] families” except for students who live along established bus routes and certain special education students. Discerning no error in the State Board’s interpretation, we hold that the charter was unambiguous — the plain language of the charter clearly shifts the responsibility for transportation from Frederick County to Frederick Classical families.

Frederick Classical also contends that the State Board erred in its reliance on two prior rulings — City Neighbors and MMCI. In its opinion below, the Board reiterated a primary holding in those cases — “that commensurate funding does not mean that the [per pupil allocation] must be exactly the same between a charter school and other public schools.” The Board recognized that transportation costs were not required to be included in the amount of funding that a charter school received, and that whether such costs should be included depended on the negotiations between the charter school and the local school board. Resolutely, the Board declared, “The bottom line is that a charter school is not automatically entitled to funds for services it does not provide.”

Frederick Classical argues that the State Board’s language above is inconsistent with its decision in City Neighbors because that prior decision mandated that transportation funding be included in the “commensurate” funding allocation for charter schools. Specifically, Frederick Classical argues that the following statement by the Board in City Neighbors confirms its reading:

we believe the legislature intended that a public charter school receive federal, State, and local funding in an amount proportionate to the amount of funds expended for elementary, middle, and secondary level students in the other public schools in the same system. This includes funding for services for which students in the public charter schools are eligible such as free and reduced price meals, prekindergarten, special education, English language learners, Perkins, Title I, and transportation.

However, other parts of the City Neighbors opinion belie Frederick Classical’s argument that the Board intended to require that the local school board provide funding for transportation in all circumstances. The Board recognized that flexibility is a central aspect of the charter school program— “the charter school is a public school operating with agreed upon terms of flexibility within a public school system.” (Emphasis added). The Board also adopted and incorporated by reference “guidance documents” that had been prepared, at the Board’s request, by State Department of Education officials and that had been discussed at the Board’s open meeting on May 24, 2005. As the incorporated documents acknowledged, “[t]he calculation of average cost does not mean that the funding mix of each fund source to the [local school system] must be duplicated at the Charter School level.” Further,

[a]s a part of the contract agreement between the [local school system] and Charter School, transportation should be addressed for all students including students with disabilities attending the charter schools. This may include the Charter School returning to the [local school system] the portion of funds provided for transportation or the Charter School providing the transportation service for the student.

Thus, the Board, in City Neighbors, appreciated that transportation may, but does not have to be, included in the funds provided to a charter school. The Board’s opinion in this case is not inconsistent with its City Neighbors opinion.

Nor is the Board’s opinion in this case contrary to the Court of Appeals’s decision upholding the State Board in City Neighbors. Frederick Classical maintains that the Court of Appeals specifically rejected an argument that transportation funds must be excluded from the aggregate per pupil funding amount. However, the Court’s decision rejecting the mandatory exclusion of transportation funds from the per pupil allocation amount is not an affirmative holding that transportation funds can never be excluded from the funds dispersed to a charter school. In fact, when tracing the legislative history of the charter school law, the Court of Appeals noted State Department of Education guidelines, stating that “[o]ther fiscal support such as transportation may be part of the negotiations between the charter requestor and the local education authority.” City Neighbors Charter Sch., 400 Md. at 350, 929 A.2d 113 (citing Guidelines for Use by Local School Systems in Consideñng Charter School Applications, Maryland State Department of Education, July, 1997, at 8).

Further, Frederick Classical fails to acknowledge that the State Board clarified the meaning of its ruling in City Neighbors in a subsequent opinion, MMCI. Adjudication is a permissible mechanism by which the State Board “may exercise its statutory authority to ‘explain the true intent and meaning’ of the public school laws and decide ‘controversies and disputes’ under those laws.” City Neighbors Charter Sch., 400 Md. at 346, 929 A.2d 113. The State Board was well within its discretion to proceed by adjudicating the case before it — MMCI—and offering guidance to other applicants, such as Frederick Classical, rather than proceeding with formal rule-making. See id.

In MMCI, the State Board held that the language it used in City Neighbors should not be strictly construed, and that the formula it announced there was not the only way a local school board could distribute funding to a charter school. The Board clarified that it “did not intend such a rigid approach to determining commensurate funding.” In other words, in MMCI, the Board rejected the very interpretation that Frederick Classical now advances — that the City Neighbors decision was the sole means by which a county could disburse funds to charter schools. Instead, the Board confirmed that it did not intend that the formula it presented in City Neighbors “be used, without deviation, by every local school system in calculating a charter school’s funding allocation, no matter what the circumstances.” Thus, based on the Board’s subsequent clarifications, it cannot be said that the Board’s opinion in this case was inconsistent with City Neighbors or its progeny.

Next, Frederick Classical contends that the State Board committed plain error by misconstruing its own decision in MMCI to support the proposition that “if [Frederick Classical] received funds for services it did not provide, it would be receiving more than its commensurate share of county funds.” Under a plain reading of MMCI, however, the Board did announce this view, albeit using different words. The Board stated that “[i]f MMCI were entitled to the full per pupil amount, however, MMCI would receive an amount greater than an ‘equal’ amount of funds,” and referenced the fact that transportation was to be provided by the charter school. The Board, in this case, did not misread its own decision in MMCI.

Frederick Classical further attempts to distinguish the MMCI decision by pointing to language in its charter that, it argues, sets it apart from the charter in MMCI. Frederick Classical argues that it “never agreed (through the [charter] or otherwise) to take on at its own cost the responsibility of providing transportation to students.” In MMCI, the charter stated, “transportation shall be the responsibility of MMCI except for students who live along an established route and for special education students.” Here, although Frederick Classical’s charter places the responsibility for transportation on Frederick Classical families, instead of the institution itself, the outcome is the same. If the charter provides that either the charter school or families have a duty to transport the students, the result is that the local school system is not responsible for the transportation or for including funds for transportation in a per pupil allocation.

Frederick Classical directs us to language in its charter that allows it to provide transportation for its students at a later date, if it so desires. However, this language has no bearing on Frederick Classical’s current funding allocation. As argued by FCPS, “Whether or not [Frederick Classical] may, in the future, determine to provide transportation for its students, the uncontested fact is that at the current time, it is not doing so, and therefore, it is not entitled to transportation funding from the County Board for a service it is not providing.” By the terms of their charters, both MMCI and Frederick Classical relieved FCPS of a duty to provide funding for transportation, lest the charter schools would receive more than their “commensurate” share of education funds.

Frederick Classical contends that by failing to disburse transportation funding, FCPS retained that money in the system-wide budget, “inevitably redistributing and spending those funds on other students in the school district.”

FCPS, in its brief, wrote cogently on this matter.

The County Board’s transportation budget is based on the total cost to actually transport students living in the transportable areas and for special education students needing specialized transportation. The budget does not include costs for students who are not transported by the County Board. Therefore, the County Board is not “retaining” any money from that budget to be “inevitably” redistributed and spent on other students in the school district, as alleged. The County Board’s transportation budget does not include the costs of transporting the Charter School students and it does not allocate money to students attending the Charter School, who are not entitled to transportation. Therefore, the County Board is not profiting by not including a portion of its transportation budget in the allocation to the Charter School, nor are other students benefitting thereby.

See Fiscal Year 2014 Adopted Operating Budget, Frederick County Public Schools, at 13-14, 25, 32 (2013), available at http://www.fcps.org/about/documents/FYl/ADOPTED BUDGETBOOKColor.pdf.

Frederick Classical makes several arguments based on its interpretation of the charter as a contract — maintaining that “the families of the School are not parties to the [charter], and so cannot be deemed to have voluntarily contracted to surrender portions of the School’s funding,” and urging us to construe the charter language against FCPS. To the extent that contract law controls this issue, we have already held that the language of the charter was not ambiguous, and that under a plain reading of the charter, Frederick Classical families must provide transportation for students except in certain circumstances. In spite of Frederick Classical’s arguments, the issue here is one of state educational policy where State Board’s decisions are paramount. Frederick Classical has not provided a case or decision of the State Board where the Board has construed a charter against a local board solely because the local board prepared the document. Thus, we decline to do so here.

Finally, Frederick Classical argues that allowing a local school board to restrict funds for services a charter school has the right to provide, but does not currently provide, “would have the absurd result of compelling charter schools to budget themselves identically to system schools.” It maintains that this “would defeat the purpose of the State’s charter school program,” which is to provide a flexible alternative to public schools. On the contrary, Frederick Classical’s decision not to participate in the public school transportation program is emblematic of the flexibility accorded to charter schools, realized here in the charter negotiations with FCPS. Frederick Classical cannot now complain that it has been given short shrift, contrary to its charter, by not receiving transportation funding for transportation services that it does not provide. For the above-mentioned reasons, we conclude that FCPS’s funding allocation was not contrary to state law and that the formula used was consistent with the State Board’s opinions.

JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . In Prince George’s County, this authority is vested in the Chief Executive Officer. Educ. § 4-120(c).

      . The state and the counties each provide funding for primary and secondary education students. Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129, 139, 747 A.2d 625 (2000). The sources of the approximately $12 billion of education funding are split nearly evenly, with local government contributing 45.63% of funds and the State contributing 47.45% of funds. The Fact Book 2013-2014, Maryland Department of Education, at 20 (January 30, 2015) (hereinafter "Maryland Education Fact Book"), available at http.l/maryland publicschools.org/MSDE/divisions/bussvcs/docs/Fact-Booh-2013-2014. pdf. The remaining 7% is funded by the federal government and other sources. Id. For fiscal year 2013, student transportation in Maryland cost $570,266,307, which constituted 4.70% of the overall education budget. Id. The State provided 31.8% of the funding for student transportation in Frederick County. Id.

      . Section 9-109(a) provides:
      A county board shall disburse to a public charter school an amount of county, State, and federal money for elementary, middle, and secondary students that is commensurate with the amount disbursed to other public schools in the local jurisdiction.

      . We look through the decision of the circuit court to review the decision of the State Board of Education:
      As a court sitting in judicial review of an administrative decision, [Maryland appellate courts] review[ ] the decision in the same posture as that of the courts below. That is to say, we reevaluate the decision of the agency under the same statutory standards as would the circuit court, and we do not employ those standards to reevaluate the decision of the circuit court or intermediate appellate court.

        Charles County Dept. of Soc. Services v. Vann, 382 Md. 286, 294, 855 A.2d 313 (2004) (Citations omitted).

      . Frederick Classical also argues that the State Board erred by deferring to FCPS’s funding determination and interpretation of the charter. Section 13A.01.05.05 of the State Board’s regulations governs the Board’s review of local board decisions:
      Decisions of a local board involving a local policy or a controversy and dispute regarding the rules and regulations of the local board shall be considered prima facie correct, and the State Board may not substitute its judgment for that of the local board unless the decision is arbitrary, unreasonable, or illegal.
      Here, the State Board determined that the “appeal concerns a controversy or dispute regarding the rules and policies of a local board,” and, thus considered FCPS’s decision to be “prima facie correct.” The State Board’s decision evaluated issues resulting from the intersection of a local school's charter, the local school board funding formula, and State Board decisions. In view of the heavy deference that must be accorded to State Board of Education interpretations of the public school laws and its own regulations, we cannot say that the State Board erred in its decision to give deference to FCPS.

      . Frederick Classical quoted the opinion in Board of Education of Talbot County v. Heister, 392 Md. 140, 896 A.2d 342 (2006), which, in context, was merely a recognition that the "State Board’s powers are not without limit or their exercise unreviewable.” Id. at 154, 896 A.2d 342.

      . FCPS also argues that Frederick Classical is not entitled to transportation funding because Frederick Classical students are not eligible for transportation. We do not decide this specific issue because the eligibility of Frederick Classical students for transportation was not addressed below and was not a ground relied upon by the State Board in upholding FCPS’s decision.