Harmon v. Mifflin County School District , 1994 Pa. Commw. LEXIS 688 ( 1994 )

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. I agree that Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), does not apply here, but not for the reasons stated by the Majority. I believe that Lyness does not apply here because Lyness is an impermissible commingling of functions case.¹ The issue before us is not whether the Mifflin County School District (District) Solicitor created an appearance of bias by playing the dual role of prosecutor and adjudicator.² The question here is whether there was an appearance of impropriety because the Solicitor who prosecuted the case was also legal advisor to the District Board of Directors (School Board), which adjudicated the case. Because I believe that the School Board may have been tempted to favor the position advocated by the prosecutor, either consciously or unconsciously, because the School Board had vested the Solicitor with the cloak of authority, I would affirm the trial court’s reversal of the decision of the School Board and set aside Harmon’s termination.

In the instant case, the procedures followed by the Board ... clearly created an unconstitutional intermingling of the prosecutorial and adjudicatory functions in a single entity. Lyness, 529 at 547, 605 A.2d at 1210.

Initially, I note that we are obliged to review the trial court opinion. The trial court did not hold that the Solicitor commingled the prosecutorial and adjudicative functions. The trial court held that there was an appearance of impropriety because the Solicitor who prosecuted the case had an on-going relationship with the School Board.³ (See Majority Op. at 683.) The trial court also found that the School Board impermissibly commingled the proseeutory and adjudicatory functions by deciding to terminate Harmon and then presiding over the termination hearing.⁴ (Id.) Nevertheless, on appeal, the School Board argues that the Solicitor did not commingle the prosecutorial and adjudicative functions. In addressing this argument, the Majority discusses a series of cases dealing with solicitors and the impermissible commingling of functions, none of which is applicable here.

While it is true that a commingling of functions creates an appearance of bias, there may be other circumstances that also create an appearance of bias. “Every procedure which would offer a possible temptation to the average [person] as a judge ... not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.” In Re Schlesinger, 404 Pa. 584, 598, 172 A.2d 835, 841 (1961) (emphasis added); see also Lyness. The possibility of temptation to favor the prosecutor, either consciously or unconsciously, is sufficient to create an appearance of bias. Schlesinger.

In this case, the School Board might be tempted to favor the position advocated by the prosecutor, either consciously or unconsciously, because the prosecutor was also the Solicitor. In the role of Solicitor, the prosecutor advised the School Board on legal matters; thus, the prosecutor, who has gained the confidence and trust of the School Board with respect to legal matters, enjoys an advantage over Harmon by virtue of his enhanced credibility in the eyes of the School Board. It is precisely this advantage that creates an aura of impropriety and taints the proceeding.

Accordingly, I would affirm the decision of the trial court.

1 . Applying the principles elucidated in Lyness to the facts of that case, our Supreme Court stated:

2 . Indeed, the Solicitor never performed the role of adjudicator. The Solicitor was present when the School Board decided to terminate Harmon, a prosecutorial function. Later, at the hearing, the Solicitor appeared again in the role of prosecutor.

3 . To demonstrate the appearance of impropriety, the trial court relied upon the Rules of Professional Conduct (Rules) and section 2502 of the Judicial Code, 42 Pa.C.S. § 2502. (Appellant’s Brief at 35-36.) See Rule 1.12 and 3.5 of the Rules. The trial court then stated: "this situation certainly gives the appearance of impropriety.” (Appellant’s Brief at 36.)

4 . Here, the trial court relied upon Lyness and Dussia v. Barger, 466 Pa. 152, 351 A.2d 667 (1975). The trial court stated: “Such a procedure [where the Board initiated proceedings and then adjudicated their propriety] would appear, under the holdings of Lyness and Dussia, to be violative of Mr. ‘Harmon’s due process rights.” (Appellant's Brief at 37.)