Is the personal net worth cap different for businesses seeking certification as a disadvantaged business enterprise (DBE)?

By: James R. Benjamin, Jr., Esquire                          

Yes. Personal net worth refers to the net value of the assets of an individual remaining after total liabilities are deducted. It includes the individual’s share of assets held jointly or as community property with the individual’s spouse. It does not include the individual’s ownership interest in the business applying for certification and does not include the equity in the individual’s primary place of residence.

Businesses applying for certification as an MBE with MDOT may also seek certification as a DBE. MDOT’s MBE program concerns State-funded contracts while its DBE program concerns contracts funded with assistance from the U.S. Department of Transportation. While eligibility requirements for certification as a DBE are similar to those as an MBE, the personal net worth requirements for DBE owners differ from those required for MBEs. Currently, the personal net worth for DBE owners cannot exceed $1,350,000.00, while an MBE owner’s personal net worth cannot exceed $1,577,337.00.

Certification of a business as an MBE or DBE can be a viable tool for developing and maintaining business relationships. Businesses seeking certification as an MBE or DBE should use care when submitting a personal net worth statement to ensure it has taken the personal net worth caps into consideration as part of any application for certification. Such businesses may also want to consider obtaining legal advice concerning eligibility requirements for certification prior to applying for certification.



Third Time Isn’t a Charm for Teacher in Race Discrimination Suit

By:  Edmund J. O’Meally, Esquire                                          

For a Howard County teacher alleging race discrimination against her employer, the third time wasn’t a charm.  The teacher had filed three actions agains the Board of Education of Howard County and Howard County’s Superintendent of Schools alleging employment discrimination and retaliation. 

Pessin Katz Law’s Education Group was not involved in the first action which resulted in a jury verdict for the Plaintiff teacher.   In the second suit that was brought in federal court based on alleged subsequent acts of discrimination and retaliation, PK Law obtained summary judgment on all claims.  In the third action, which followed the Plaintiff’s termination for misconduct and incompetence, she again alleged discrimination and retaliation against the superintendent and the Board of Education.  PK Law Education Attorney Lisa Y. Settles argued successfully to the court that most of the Plaintiff’s claims in the third action were barred by res judicata since they should have been asserted in the second case and that her remaining constitutional and tort claims failed as a matter of law.

Click here to read Judge Legg’s decision.



PK Law’s Education Attorneys Successfully Defend Employer Board of Education

By: Edmund J. O’Meally, Esquire                                           

The United States Court of Appeals for the Fourth Circuit recently affirmed Judge Chasanow’s dismissal of an employment discrimination case brought against the Board of Education of Calvert County.  The race discrimination case was brought in the Circuit Court for Calvert County on March 25, 2011 under both Title VII of the Civil Rights Act of 1964 and Title 20 of the State Government Article (Maryland’s equivalent of Title VII) as well as state law tort theories.

Pessin Katz Law’s Education Group represented the employer board of education and upon undertaking the defense of the case, removed it to federal court and filed a Motion to Dismiss.  The Motion to Dismiss was granted, and shortly after that decision, an appeal was taken to the Fourth Circuit. On February 26th, the Fourth Circuit adopted Judge Chasanow’s decision, without argument per curiam

Three PK Law Attorneys Named To Super Lawyer’s Top 100 List

Three of PK Law’s Members, Steven A. Allen, Natalie C. Magdeburger and Catherine W. Steiner were named to Maryland Super Lawyer’s Top 100 List.  Only 5 percent of the lawyers in Maryland are identified for inclusion on the Maryland Super Lawyer’s list. The Top 100 List is a particularly prestigious honor as it includes those lawyers who received the hightest point totals in Maryland. In addition to the Top 100 List distinction, Natalie Magdeburger and Catherine Steiner were on the Maryland Top 50 Women List, along with PK Law Member Patricia McHugh Lambert.  This list includes the top 50 women in Maryland who received the highest point totals. 

Both Natalie and Catherine were selected for inclusion on the Super Lawyers list for Medical Malpractice Defense.  Steven and Patricia were selected for Business Litigation.  

A Delicate Balance: The Constitutionality of Racial Balancing in Public Employment

By: Andrew G. Scott, Esquire                                      

The idea of creating a public workforce that reflects Maryland’s racial diversity is an admirable one, but is intentional racial balancing a constitutional way of accomplishing it?  Recent Supreme Court jurisprudence in the area of public education indicates that it is not.

In two of the most famous and important legal opinions of the past century, the Supreme Court in Brown v. Board of Education I and II declared that de jure segregation of public schools on the basis of race violated the Equal Protection Clause of the Fourteenth Amendment, and that desegregation was to proceed “with all deliberate speed.”  Discouraged by a lack of progress, the Supreme Court issued opinions in 1968 (Green v. County Sch. Bd. of New Kent County) and 1971 (United States v. Montgomery County Board of Education) which required school systems formerly segregated by law to take affirmative action to desegregate, and which affirmed the use of fixed mathematical racial formulas as a means of doing so.

Here in Maryland, although the Fourth Circuit noted as early as 1958 that Maryland’s public schools were generally desegregating “with more than deliberate speed,” the Maryland State Board of Education promulgated a regulation in 1971—still on the books in Maryland—which requires local boards of education to “develop and implement plans and procedures” to attain “racial balance at the various levels” of their respective school systems reflective of the racial composition of their respective jurisdictions.  A little more than a decade later, however, the Supreme Court in Wygant v. Jackson Board of Education rejected a race-conscious layoff plan that favored African-Americans based on a finding that the percentage of minority teachers was less than the percentage of minority students.  Notably, the Court held that the use of quotas was not sufficiently narrowly tailored because other, less intrusive means of accomplishing the goal of racial diversity—such as the adoption of hiring goals—were available. 

Several years later, in Freeman v. Pitts, the Court reinforced its position, stating that “[r]acial balance is not to be achieved for its own sake,” but only “to be pursued when racial imbalance has been caused by a constitutional violation.”  The Court explained that “[o]nce the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.”  The Court further stated that “[a]s the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system,” and that “[t]he causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith.”

More recently still, the Court in Parents Involved in Community Schools v. Seattle School District No. 1 further reinforced the unconstitutionality of racial balancing absent recent and relevant constitutional violations when it rejected school policies which classified students by race for purposes of making school assignment decisions.  In so doing, the Court opined that

[a]ccepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that at the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.  Allowing racial balancing as a compelling end in itself would effectively assure that race will always be relevant in American life, and that the ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race will never be achieved.  An interest linked to nothing other than proportional representation of various races would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the program continues to reflect that mixture.

The Court concluded its analysis by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Applying this analysis to public sector employment in general, racial balancing by any public entity is likely to be held unconstitutional unless it is narrowly tailored to remedy prior de jure racial discrimination.  Even so, the Supreme Court has made clear that the public entity bears the burden of proof—a burden all the more challenging considering the increasing remoteness of de jure violations to the present day.  Entities interested in promoting a workforce with a racial composition representative of their respective jurisdictions should instead focus on less intrusive means of accomplishing that goal, such as the adoption of recruitment goals and the dedication of resources to ensure those recruiting goals are met.