The S.D. of Philadelphia v. A. Arnold (Dept. of Ed.) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The School District of Philadelphia, :
Petitioner :
:
v. : No. 303 C.D. 2021
: Argued: November 15, 2021
Adrian Arnold (Department of Education), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: December 16, 2021
Before this Court is the Petition for Review of the February 17, 2021
Order (Order) of the Acting Secretary of Education (Secretary) reversing a decision
of the School District of Philadelphia (District) dismissing Adrian Arnold (Arnold)
from employment with the District as a teacher.
I. Background and Procedural History
Arnold was first hired by the District in 2010 to teach Chinese. He did
not have a teaching certificate, but he was sponsored by the District for a temporary
emergency permit. Arnold’s employment was terminated in 2013 because he had
not earned a teaching certificate. In 2015, the District sought to hire Arnold to teach
Chinese at Mayfair Elementary School (Mayfair). However, his rehiring was not
approved at that time. Subsequently, Arnold was hired to teach Chinese at Mayfair
for the 2017-2018 school year and taught kindergarten through sixth grade.
On October 11, 2017, a student alleged that Arnold had made
inappropriate physical contact with him in class. Arnold contended that he
redirected the student verbally several times, and after the student continued to be
noncompliant, he grabbed the student’s backpack to move him away from the other
students. The student at issue claimed that Arnold scratched him in the process.1
Mayfair administrators investigated the October 11, 2017 incident and held an
investigatory conference with Arnold on November 14, 2017. A Philadelphia
Federation of Teachers Union (Union) representative attended the conference with
Arnold. After the conference, the Principal of Mayfair (Principal) issued an
Unsatisfactory Incident Report (Report) on Form SEH-204. The Report contained
the following recommendations:
1.) That [] Arnold immediately create an action plan to be utilized
within the classroom to ensure a safe, orderly environment . . . .
2.) That [] Arnold continue to refrain from utilizing physical means to
redirect students.
3.) That [] Arnold review the guidelines from Pennsylvania Act 126,[2]
and fully understand the expectations for educations [sic] with
implementation.
4.) That any further incidents of unsafe classroom conditions under []
Arnold’s direction will lead to further disciplinary action, including
suspension and termination.
1
The Unsatisfactory Incident Report (Report) noted that the school nurse identified a one-
and-a-half-inch scratch but that she had to unbutton the student’s shirt to view it, and it was not
clear how a scratch relative to the present incident would have occurred in that location as a result
of the incident.
2
Act of July 5, 2012, P.L. 1084 (Child Abuse Recognition and Reporting Training), which
amended the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S.
§§ 1-101 - 27-2702 (School Code).
2
5.) That any further incidents of physical redirection of students will
lead to further disciplinary action including suspension and
termination.
6.) That this [Report] and all related documentation be forwarded for
inclusion in [] Arnold’s central office file.
Findings of Fact and Conclusions of Law of Hearing Officer Charles Forer (Hearing
Officer), May 21, 2020, Reproduced Record (R.R.) at 505a-06a; R.R. at 153a-58a.
Arnold was not suspended from his position following the aforementioned
conference.3
On April 18, 2018, there was a follow-up conference regarding the
October 11, 2017 incident. Arnold attended the April conference and a Union
representative attended along with him. During the conference, Principal discussed
with Arnold the recommendations he had made relative to the October 11, 2017
incident. At the April 18, 2018 conference, the Union representative indicated
Arnold had completed an action plan to use within his classroom and that he would
provide the plan to the school shortly thereafter. R.R. at 506a.
In the interim between the October 2017 incident and investigation and
the April 2018 follow-up conference, a parent of one of Arnold’s students alleged
that Arnold physically assaulted her son on February 21, 2018. Principal began an
investigation of the alleged February 21, 2018 incident the day after he received the
parent’s complaint and removed Arnold from the classroom, reassigning him to the
3
Although Arnold had been reassigned to the reassignment room (also known as “teacher
jail”) for a period of time during the investigation of the incident, he continued to receive his full
pay. R.R. at 375a-79a.
3
District’s central office pending the outcome of the investigation and disciplinary
proceeding regarding the second incident.4 R.R. at 506a-07a.
The District sought to dismiss Arnold from employment, and the matter
was heard before the Hearing Officer. The Hearing Officer determined that the
District had valid grounds to terminate Arnold’s employment. Specifically, he
found:5
1. Under the School Code, valid grounds to terminate a professional
employee include the following:
The only valid causes for termination of a contract heretofore or
hereafter entered into with a professional employe shall be
immorality; incompetency; . . . [] intemperance; cruelty; persistent
negligence in the performance of duties; wilful [sic] neglect of
duties; . . . [] persistent and wilful [sic] violation of or failure to
comply with school laws of this Commonwealth, including
official directives and established policy of the board of directors
. . . . 24 [P.S.] § 11-1122(a);[6] see Vladimirsky v. [Sch.] Dist. of
4
During the investigation of the February 21, 2018 allegation, a student reported to an
assistant principal that she was in possession of a cell phone video of the event that had occurred
in the classroom. Principal obtained the video, which was approximately 25 seconds in length.
R.R. at 507a.
5
The Hearing Officer made these findings, under the heading “C. There were Valid
Grounds to Terminate Arnold’s Contract,” in his findings of fact and conclusions of law. R.R.
at 523a-31a (emphasis in original).
6
Section 1122(a) of the School Code, 24 P.S. § 11-1122(a), states, in pertinent part:
(a) The only valid causes for termination of a contract heretofore or hereafter entered into
with a professional employe shall be immorality; incompetency; unsatisfactory teaching
performance based on two (2) consecutive ratings of the employ’s teaching performance that are
to include classroom observations, not less than four (4) months apart, in which the employe’s
teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in
the performance of duties; wilful neglect of duties; physical or mental disability as documented
by competent medical evidence, which after reasonable accommodation of such disability as
required by law substantially interferes with the employe’s ability to perform the essential
(Footnote continued on next page…)
4
Phila., 144 A.3d [986,] [] 993 [(Pa. Cmwlth. 2016)] (“The
language of Section 1122 makes clear that a tenured professional
employee may be dismissed only for the reasons set forth in that
section.”) (citation omitted) (emphasis in original).
2. The [District] has the burden of proving that a professional employee
committed an act specified in Section [] 1122(a). Foderaro v. [Sch.]
Dist. of Phila., [] 531 A.2d 570, 572 ([Pa. Cmwlth.] 1987).
3. The [] District contends there was a valid cause for termination due
to Arnold’s “wilful neglect of duties” and his “persistent and wilful
violation of or failure to comply with school laws of this
Commonwealth, including official directives and established policy of
the board of directors.”
4. Failure to comply with an explicit order from a principal “amounts
to ‘willful and persistent violation of school laws,’ a proper basis for
dismissing a professional employe.” Blascovich v. Bd. of [Sch.] [Dirs.]
of Shamokin Area [Sch.] Dist., [] 410 A.2d 407, 409 (Pa. Cmwlth. 1980)
(citing Spano v. [Sch.] Dist. of Brentwood, [] 316 A.2d 162 (Pa.
Cmwlth. 1974)) . . . .
7. As unambiguously reflected in the video and as Arnold conceded,
Arnold used force during the incident . . . . Consequently, Arnold did
not comply with [Principal’s] express directive.
8. Arnold may well have seen other teachers on occasion physically
redirect students . . . . However, there is no evidence in the record that
these teachers were disregarding an unambiguous written directive,
from their principal, that “any further incidents of physical redirection
of students will lead to further disciplinary action including suspension
and termination.” []
9. Arnold may well not have intended to hurt the student and the student
may well not have been hurt. [] No matter. By physically redirecting
the student – and disregarding his [Principal’s] specific directive, see
functions of his employment; advocation of or participating in un-American or subversive
doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor;
persistent and wilful violation of or failure to comply with school laws of this Commonwealth,
including official directives and established policy of the board of directors; on the part of the
professional employe . . . .
5
Blascovich [] – Arnold risked harm and injury to the student and to
others. [Principal’s] express written directive sought to avoid this very
risk.
10. Arnold asserts that Section XVIII(E)(10) of the Collective
Bargaining Agreement between the [Union] and the District excuses
his conduct. Section XVIII(E)(10) states as follows:
A teacher may use reasonable force to protect himself/herself or
others from attack or injury, or to quell a disturbance which
threatens physical injury to a teacher or others. Reasonable force
shall mean the same degree of physical control over a pupil that a
parent would be legally privileged to exercise but which in no
event shall exceed the amount of physical control reasonably
necessary to protect the physical safety of teachers or others.
11. Arnold did not establish that he needed to use force [a] to protect
himself or his students “from attack or injury,” . . . . To the contrary,
Arnold admitted that the trigger for the incident was not a potential
“attack or injury,” but “[a] student was running around the room hitting
peers in a playful manner.” T. 171; see also T. 1727 (“He was running
around the room, horse playing with his peers, trying to touch them and
get them running, you know, and tag him and stuff like that.”).
Accordingly, Section XVIII(E)(10) does not excuse Arnold’s conduct.
12. Arnold further contends: “A teacher has the responsibility to
control his students and sometimes it is necessary to redirect students
physically to quell disturbances and maintain order. If a teacher stood
there and let a student beat up another student or act in a way which
could injure the student or his classmates it would [be] grounds for
dismissal. [] But there is no evidence in the record that the student was
beating up other students or was acting in a way that could injure
himself/herself or others [] . . . .”
16. The [] District fully complied with the procedural requirements in
the School Code for dismissal of a professional employee, including
giving Arnold (a) a detailed written statement of the charges upon
which his proposed dismissal was based; (b) timely written notice of
the hearing, which the [] [D]istrict forward[ed] by registered mail; (c)
an opportunity to be heard; and (d) a recording of all the testimony
7
These are references to pages 171 and 172 of the transcript of the March 3, 2020 hearing
before the Hearing Officer; R.R. at 414a-15a.
6
offered by a competent disinterested public stenographer whose
services the district furnished at its expense. See 24 [P.S.] § 11-1127.
Hearing Officer’s Findings of Fact and Conclusions of Law, May 21, 2020.
On July 1, 2020, the District’s Board of Education (Board) held a Zoom
meeting in which it voted 7-0 to terminate Arnold’s employment. Arnold appealed
the decision to the Pennsylvania Department of Education (Department), and a
hearing was held before the Secretary’s designated hearing officer (DHO) on
September 15, 2020. On February 17, 2021, the Secretary issued an Opinion and
Order adopting the DHO’s findings and conclusions as follows.
In regard to the October 11, 2017 incident, the Secretary found:
5. On October 11, 2017, a fifth-grade student was playing with another
student when the student was supposed to be in line along the wall to
exit the classroom.
6. After he told the student several times to stop his behavior, and the
student continually refused, [] Arnold [] approached the student and
pulled him into the line by pulling on the student’s backpack near the
student’s shoulder.
7. [] Arnold did not physically touch the student. [] Arnold’s intent was
to keep him from harming himself or other students.
8. The student complained to [Principal] that [] Arnold had
inappropriate physical contact with him.
9. [] Arnold was reassigned to the District’s teacher reassignment room.
10. The incident was reported to [the ChildLine and Abuse Registry
(ChildLine)]. Child[L]ine did not take action against [] Arnold and did
not file an indicated report of abuse.
11. Mayfair administrators investigated the October 11, 2017 incident.
12. Mayfair administrators held an investigatory conference with []
Arnold on November 14, 2017. . . .
14. [Principal] [determined] that the incident was inconclusive.
7
15. After the investigatory conference, [] Arnold was returned to his
teaching duties . . . .
16. On December 19, 2017, [] Arnold’s teaching performance was
formally observed by an assistant principal who rated [] Arnold’s
classroom performance as distinguished in both classroom environment
and professional responsibility.
17. On April 18, 2018, a second conference was held by [Principal] to
present the [Report] pertaining to the [] incident of October 11, 2017,
which contained several recommendations . . . .
19. The [Report] made the [] recommendations [addressed in the
Hearing Officer’s Findings of Fact and Conclusions of Law above, i.e.,
Findings of Fact and Conclusions of Law of Hearing Officer Charles
Forer, May 21, 2020, R.R. at 505a-06a; R.R. at 153a-58a].
20. In [the] follow[-]up conference on April 18, 2018, [Principal]
informed [] Arnold that [he] was to refrain from utilizing physical
means to redirect students. This recommendation came after the second
incident of February 21, 2018.
21. [Principal] also stated that any further incidents of inappropriate
physical redirection of students would lead to further disciplinary
action up to and including suspension and termination.
22. There was no suspension or disciplinary action taken against []
Arnold by the administration or the previously identified (Board)
pertaining to the first incident.
23. [] Arnold has observed other teachers physically redirect students.
24. The Collective Bargaining Agreement between the [Union] and the
District states that a teacher may use reasonable force to quell a
disturbance that may cause physical injury to the teacher or to others.
Secretary’s Opinion and Order, 2/17/2021, at 2-4 (internal citations omitted).
The Secretary made the following findings relative to the February 21,
2018 incident:
8
27. On February 21, 2018, a student ran around [] Arnold’s classroom
touching other students and trying [to] get them to run, chase, and tag
him.
28. [] Arnold told the student to stop running around the classroom, to
return to his seat, and to be orderly.
29. The student refused to comply with [] Arnold’s direction . . . .
30. The student ran around the classroom for a few minutes.
31. [] Arnold telephoned the main office and reported that he needed
assistance with a student.
32. [] Arnold directed the student to leave the classroom and go to the
assistant principal’s office.
33. [] Arnold watched the student walk to the assistant principal’s
office.
34. [] Arnold was concerned about the safety of the other students.
35. Several minutes later, the student walked back into the classroom
unescorted by anyone and started cursing at [] Arnold.
36. [] Arnold told the student to leave and go back to the assistant
principal’s office.
37. The student left the classroom and [] Arnold again observed the
student enter the doorway leading to the assistant principal’s office.
38. [] Arnold again telephoned the main office and reported that he
needed assistance with a student.
39. Again, the student walked back into the classroom cursing
profanities and sat down in his seat.
41. [] Arnold told the student that he could not be in the classroom. The
student refused to get up out of his seat and go back to the assistant
principal’s office.8
8
We note that the Secretary’s Opinion and Order does not include a finding 40. Instead,
the numbering jumps from finding 39 to finding 41.
9
42. [] Arnold went to move the student toward the door by moving his
seat.
43. The student got up and [] Arnold grabbed his loose-fitting shirt
underneath his arm to pull him out of the room.
44. As he was pulling the student toward the door, the student grabbed
a table and pulled away from [] Arnold causing a commotion.
45. An administrator arrived, and the administrator removed the student
from the classroom.
46. [] Arnold wanted to remove the student because he was concerned
that his coming back into the room could have caused more disorderly
behavior by him or by the other students who he had previously
antagonized.
47. [] Arnold was not trying to hurt the student, not trying to be cruel to
the student, not acting out of anger, and not trying to be aggressive. []
Arnold did not hurt the student.
48. [] Arnold removed the student to prevent the student’s disorderly
behavior and acted reasonably considering the student’s prior behavior.
49. On February 21, 2018, a parent of one of [] Arnold’s students stated
that [] Arnold had physically assaulted her child earlier that day.
50. [] [P]rincipal started an investigation of the February 21, 2018[]
incident the day after he received the complaint.
51. On February 23, 2018, [] [P]rincipal assigned [] Arnold to the
reassignment room in connection with the February 21, 2018[] incident
pending the outcome of the investigation.
52. [] [P]rincipal reported the incident to Child[L]ine. Child[L]ine did
not act against [] Arnold and did not file an indicated report of abuse.
53. During the investigation of the February 21, 2018[] incident, a
student reported to an assistant principal that she had a 25[-]second
video of what occurred in the classroom for [sic] on her cell phone.
10
54. A video was played during the hearing, and [P]rincipal identified []
Arnold and the student who was removed from the classroom in the
video.
55. The student who made the [] video did not appear and did not testify
that it was a true and accurate copy of the video . . . .
56. On April 18, 2018, an investigatory conference was held regarding
the February 21, 2018[] incident.
57. At the April 18, 2018, investigatory conference, [] Arnold was
represented by the [] [U]nion.
58. Following the investigatory conference, [] [P]rincipal made the
recommendation to dismiss [] Arnold because he had pulled a student
[] out of the classroom [by his shirt].
59. On May 31, 2018, a conference was held by [] [P]rincipal to discuss
the report that [] [P]rincipal had written recommending . . . Arnold be
discharged.
60. No new evidence was introduced during this conference.
61. On June 7, 2018, [] [P]rincipal again recommended that [] Arnold
be discharged.
62. On September 11, 2018, a second[-]level conference was held by
the regional assistant superintendent to discuss the incident.
63. [] Arnold was not permitted to bring an attorney to any of the
investigatory conferences.
64. In the second[-]level conference report, the regional assistant
superintendent recommended that [] Arnold be discharged.
65. On March 27, 2019, [] Arnold was suspended without pay by a
District administrative employee.
66. The District administrative employee informed [] Arnold that he
was not to return to the reassignment room[] and that he was going to
be suspended without pay.
11
67. At that point in time[,] [] Arnold properly understood that he was
suspended without pay.
68. [] Arnold was not told of the reason for his suspension without pay,
but reasonably believed that it was because he had been placed in the
reassignment room because of the incident of February 21, 2018.
69. [] Arnold’s pay was terminated on March 27, 2019.
70. [] Arnold did not receive a statement of charges and a notice of right
to a hearing at the time of this pay termination.
71. At the hearing before [an] unemployment compensation referee, the
District’s representative provided the referee with the exact date of []
Arnold’s pay termination, which was March 27, 2019.
72. Based upon this admission, an unemployment compensation referee
determined that the exact date of [Arnold’s] pay termination was March
27, 2019.
73. The District did not dispute that [] Arnold’s pay was suspended []
[or] the date of the pay suspension.
74. On March 28, 2019, the Board held a meeting.
75.The General Counsel announced that the Board had met in executive
session prior to the start of the meeting to discuss personnel and
employment matters in connection with the following proceedings.
76. None of the proceedings listed involved the circumstances that had
led to [] Arnold’s suspension without pay.
....
78. On March 28, 2019, an Agenda Item No. 4 was placed on the
Agenda of the Board meeting regarding the administration’s
recommended termination of professional employees.
79. [] Item No. 4 stated as follows:
Resolved that there exists sufficient evidence to support the
recommendation of the Superintendent and/or his designee to
terminate the employment, from the [District], of the following
professional employees:
A.A.
[]
12
and be it
Further Resolved, that the Secretary and the Board of Education
President are directed to advise these professional employees of
this action item and their right to a hearing.
80. There is no evidence on the record that any Board member had ever
seen any of the allegations against [] Arnold.
81. Following the vote, [] Item No. 4 was approved, and [] Arnold’s
employment was terminated on March 28, 2019.
82. On March 28, 2019, a letter containing a statement of charges and
a notice of hearing (letter) was mailed to [] Arnold.
83. The letter did not indicate that the Board previously reviewed the
charges in executive session.
84. The letter was signed by the president and the secretary of the
Board.
85. In the letter, the secretary of the Board did not attest that as secretary
[he/she was] authorized to make the attestation.
86. In the letter, the secretary of the Board did not attest that the Board
had approved the statement of charges and the notice of hearing and
that it was signed by the president of the Board in the secretary’s
presence.
87. There is no evidence on the record that any Board member, other
than the president of the Board, had ever seen the letter before it was
sent to [] Arnold.
88. []Arnold received the statement of charges on . . . April 5, 2019.
89. The Statement of Charges stated in part:
You are hereby notified that allegations have been made against
you that constitute just cause for discipline pursuant to the
[C]ollective [B]argaining [A]greement and, in addition, are
sufficient grounds for termination of your employment as
specified in Section 1122 of the [] School Code [].
13
The Administration of the [] District . . . recommended that you
be dismissed from employment effective March 28, 2019[,] based
on these allegations and administrative findings made against you.
The Board . . . resolved that there existed sufficient evidence to
support the [] District Administration’s recommendation of
dismissal, and directed the Board [s]ecretary and [p]resident to
issue this Statement of Charges and Notice of Right to Hearing
letter.
90. The Statement of Charges alleged the following as just cause for
termination of Arnold’s employment:
The allegations amount to immorality; incompetency; cruelty;
persistent negligence in the performance of duties; and persistent
and willful violation of or failure to comply with school laws of
this Commonwealth, including official directives and established
policy of the Board . . . .
91. On the same date, April 5, 2019, [] Arnold’s counsel sent to the
District [] Arnold’s election of remedy letter, timely electing a hearing
to be held by the Board pursuant to the teacher tenure provisions of the
School Code . . . .
92. There was never any Board resolution to suspend [] Arnold without
pay.
93. There is no evidence that any Board member other than the
president ever knew that [] Arnold had been suspended without pay.
94. The only Board resolution was to terminate [] Arnold.
95. On March 3, 2020, a hearing was held by [the Hearing Officer].
96. There was never any resolution of the Board which appointed the
[H]earing [O]fficer as the hearing officer for the Board.
97. No Board member ever attended the hearing or participated in any
aspect of the hearing process.
98. No student was brought to the hearing to testify or any witness who
had first-hand knowledge, testimony, or evidence of anything which
happened in [] Arnold’s classroom in either of the two incidents in
question.
14
99. [Arnold’s] alleged victims . . . were not brought to the hearing to
testify.
100. Arnold testified in his own behalf.
101. [Principal] testified for the District.
102. The parties filed briefs and responsive briefs before the [H]earing
[O]fficer.
103. On May 21, 2020, the [H]earing [O]fficer issued his Findings of
Fact and Conclusions of Law to the parties independently of the Board.
104. The [H]earing [O]fficer held that substantial evidence supported
the dismissal of [] Arnold from the District.
105. On July 1, 2020, the Board resolved to adopt the decision of the
[H]earing [O]fficer.
106. There were no deliberations of the Board pertaining to [] Arnold’s
case in the recorded minutes of the meeting.
107. A roll call was conducted at the July 1, 2020[] meeting.
108. [A] resolution indicated that there was an independent review of
the record by individual members of the Board.
109. A letter dated August 5, 2020, from the District[,] informed []
Arnold of the Board’s resolution to adopt the decision issued by the
[H]earing [O]fficer.
110. Arnold filed an appeal from the Board’s decision to the Secretary
. . . on July 25, 2020.
....
112. Both parties filed briefs before the [DHO], [and] the [DHO] held
a hearing on September 15, 2020, [at which] both parties appeared and
argued . . . .
Secretary’s Opinion and Order, 2/17/2021, at 4-12 (internal citations omitted).
In regard to credibility, the Secretary found:
15
Arnold credible in all respects regarding his description of the incidents
that [led] to his dismissal and the procedure used to terminate his
employment. To the extent that [] Arnold’s testimony is contradicted
by students’ statements in documents that were not verified at the
hearing by live testimony, I find the students’ statements not credible.
Because the students’ statements are not credible, I conclude that the
students’ statements cannot support findings of fact as a matter of law.
Additionally, I conclude that the video of the incident is unpersuasive.
The student who made the video did not appear at the hearing and did
not testify as to its authenticity. To the extent that [] Arnold’s testimony
that he called the main office twice is contradicted by the [P]rincipal, I
conclude that [] Arnold is credible and that he did call the main office.
I conclude that he did call the main office because eventually an
administrator did report to [his] classroom.
Secretary’s Opinion and Order, 2/17/2021, at 17.
The Secretary further determined:
[] The District failed to establish sufficient grounds for dismissal
pursuant to the Public School Code.
[] Arnold was dismissed for immorality; incompetency; cruelty;
persistent negligence in the performance of duties; and persistent and
willful violation of or failure to comply with school laws of this
Commonwealth, including official directives and established policy of
the Board, by allegedly violating the District’s policy against physically
aggressive behavior by teachers towards students. I conclude that the
District’s argument is not supported by credible evidence. I conclude
that [] Arnold did not persistently and deliberately act in a physically
aggressive manner towards students and did not violate the District’s
policy. I find that [] Arnold did not persistently and willfully physically
touch any students. I find that [] Arnold never intended to be physically
aggressive towards any student. [] Arnold was not trying to hurt the
student, not trying to be cruel to the student, not acting out of anger,
and not trying to be aggressive. [] Arnold did not hurt the student. I
conclude that [Arnold’s] alleged misconduct was not persistent.
I have accepted [] Arnold’s testimony to be credible. To the
extent that [] Arnold’s statements are contradicted by the video that was
not confirmed by its maker as being a true and accurate copy, I have
found the video to be not credible. To the extent that [] Arnold’s
statements are contradicted by witness statements in documents where
16
the witnesses did not appear and confirm those statements at the
hearing, I have found those witness statements to be not credible. To
the extent that [] [Arnold’s] statements are contradicted by [P]rincipal,
I find [] Arnold to be credible.
The first incident occurred when [] Arnold used a student’s
backpack to direct a student into the line. In using a student’s backpack
to direct the student into the line, [] Arnold did not persistently and
willfully violate the District’s policy against physically aggressive
behavior by teachers toward students.
In the second incident, [] Arnold attempted to escort a student
out of the classroom when the student was repeatedly refusing []
Arnold’s directive to leave the room. In so doing, [] Arnold was
behaving reasonably. When the student grabbed a table to prevent []
Arnold from escorting him out of the classroom, the student did not fall
and was not hurt. [] Arnold was not attempting to harm the student or
to be mean or cruel to the student. Once again, [] Arnold did not
willfully violate the School Code or any policy of the District.
[Arnold’s] conduct was not cruel nor exhibited a loss of self-control or
excessive use of force. Therefore, I conclude that [] Arnold did not
commit an act which warrants dismissal under Section [1122] of the
School Code. [Sch.] [Dist.] of [Phila.] v. Sonarith Chek, (Pa. Cmwlth.,
No. 1266 C.D. 2019, filed July 7, 2020)].
I find insufficient support in the record for the allegation that []
Arnold persistently and willfully violated and/or failed to comply with
the school laws of the Commonwealth, including the official directives
and established policy of the Board. I also conclude that [] Arnold was
not intemperate and was not cruel. By the preponderance of the
evidence, I conclude that the District has not met its burden of proof. I
reverse the District’s decision to terminate [] Arnold’s employment as
a tenured professional employee pursuant to Section 1122 of the Public
School Code. I conclude that [] Arnold is entitled to reinstatement with
backpay.
17
Secretary’s Opinion and Order, 2/17/2021, at 17-19 (bold heading used in original).
The District now petitions this Court for review of the Secretary’s Opinion and
Order.9
II. Arguments
A. District’s Arguments
The District maintains that the Secretary committed errors of law by
deeming certain evidence not credible and by finding that the District had not
established sufficient grounds for Arnold’s dismissal pursuant to the School Code.
The District argues that the Secretary’s finding of fact that Arnold
called the office to request assistance with a student, as required by District policy,
is not supported by substantial evidence. The District maintains that, with no
explanation at all, the Secretary deemed Arnold’s testimony to be credible over that
of Principal concerning whether Arnold had called the office for assistance even
though Arnold only first alleged that he called the office at the Board hearing, which
was the fourth investigative conference on the matter. The District asserts that
“[e]ven if [Principal’s] report that Arnold never called the office was deemed not
credible for some reason, it is clear from Arnold’s own testimony that his phone calls
to the office did not seek assistance to remove the student from the classroom.”
District’s Br. at 16. The District adds: “when the student returned to the classroom
from the office a second time, Arnold admittedly physically redirected the student
rather than calling the office as he had been instructed following the prior
disciplinary incident a few months earlier.” Id.
9
“This Court’s standard of review of a decision of the Secretary of Education is limited to
[the] determination of whether substantial evidence supports necessary factual findings, and
whether an error of law or constitutional violation was committed.” Curl v. Solanco Sch. Dist.,
936 A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).
18
In addition, the District asserts that the Secretary erred by finding that
Arnold was told to refrain from utilizing physical means to redirect students after
the February 2018 incident. The District maintains that the evidence shows Arnold
received that warning in November 2017, as part of the investigation into the
October incident, and that the warning was reiterated after a subsequent
investigatory conference. The District adds
that if the [] Secretary had correctly found that Arnold was warned after
the first incident not to physically redirect students, he would have been
compelled to find that Arnold persistently and willfully violated and/or
failed to comply with the school laws of the Commonwealth by
physically redirecting a student just three months after being warned
that such actions would lead to termination. Accordingly, the []
Secretary’s finding that Arnold was only warned not to physically
redirect students after the second incident is not supported by
substantial evidence and is a key factor in finding that an error of law
was committed.
District’s Br. at 18.
Further, the District notes:
Perhaps most surprising about the Opinion was that the []
Secretary held that cell[]phone video footage of the February 2018
[incident] was not credible because the student who took the video did
not appear at the [] Board hearing to authenticate the video. The []
Secretary made this finding despite the fact that neither Arnold nor his
attorney objected to admission of the video at the Board hearing, and
neither stated that the video did not accurately the events depicted [sic].
Indeed, Arnold’s counsel stated on the record, “I just want to put on the
record I have no objection to the showing of the video.” R.[R. at] 303a.
By not objecting to admission of the video, Arnold waived the
authentication objection. See Folger ex rel. Folger v. Dugan, 876 A.2d
1049, 1055 (Pa. Super. 2005); Com. v. Fequiere [(Pa. Super., No. 1591
EDA 2013, filed Feb. 28, 2014)] (“The very nature of an authentication
objection is that it is made prior to the exhibit being admitted into
evidence.”); E.B. v. H.S. [(Pa. Super., No. 1906 M.D.A. 2012, filed Oct.
1, 2013)] (“Father’s counsel did not object to the admissibility of the
19
videos on any basis at the time of the hearing. Therefore, Father’s
arguments are waived on appeal.”). Furthermore, the video was
authenticated at the School Board hearing by [Principal] and Arnold
himself. [Principal] viewed the video and identified Arnold and the
student that Arnold physically redirected. R.[R. at] 308a. Neither
Arnold nor his counsel denied [Principal’s] identification of either
person. And Arnold confirmed that the video showed his physical
confrontation with the student.
The video is important because it provides evidence that: 1) the
student was seated and not posing a threat to anyone at the time that
Arnold attempted to remove him from the classroom; 2) [] Arnold
clearly used physical force in grabbing [] the student’s sweatshirt and
attempting to drag him out of the classroom; and 3) [] Arnold continued
to try to drag the student out of the classroom even as Arnold’s efforts
caused mayhem among the rest of the class. Accordingly, it is clear
that the [] Secretary’s determination that the video was not credible was
an error of law.
District’s Br. at 18-20.
The District further argues that the Secretary provided no explanation
as to why Principal’s testimony should be deemed less credible than Arnold’s
testimony.10 The District contends that the only example provided by the Secretary
for finding Arnold’s testimony credible was that Arnold testified to calling the main
office to report he had sent the student to the assistant principal’s office and that an
administrator eventually came to his classroom. The District further contends that
the Secretary made this determination “despite the fact that [Principal] testified that
Arnold did not call the office, which [was] consistent with the reports from the
investigatory conferences held after the incident.” District’s Br. at 21. The District
suggests that “if Arnold had called the office, he could have called as a witness
10
The District adds that the Secretary found the students’ statements in the District’s
exhibits not to be credible but that this finding is immaterial because the District never offered the
statements as evidence, and the Hearing Officer noted he would not consider them in his
recommendation to the Board. District’s Br. at 20, n.3 (citing R.R. at 355a-57a.).
20
someone that he spoke to during one of his purported calls. Yet no such witness was
called.” Id.The District next addresses the Secretary’s contention that there was
“insufficient support in the record for the allegation that [] Arnold persistently and
willfully violated and/or failed to comply with the school laws of the
Commonwealth, including the official directives and established policy of the
Board.” District’s Br. at 22 (citing Secretary’s Opinion and Order, 2/17/2021 at 18-
19). The District argues:
Following the first incident of physical redirection in October
2017, Arnold was specifically directed in November 2017 by
[Principal] that “any further incidents of physical redirection of
students will lead to further disciplinary action including suspension
and termination.” [R.]R. [at] 157a, 279a-82a. [Principal] testified that
he “wanted to make sure that it was very clear that we are not to put our
hands on students to physically redirect.” [R.]R. [at] 282a-83a.
The issue of willfulness seems simple to analyze. Neither Arnold
nor his [U]nion representatives stated at the investigatory conference in
November 2017 that they did not understand the directive not to
physically redirect students. [R.]R. [at] 157a. Furthermore, Arnold did
not testify that his effort to remove the student from class in February
2018 occurred accidentally or unknowingly, such as while under the
effects of drugs or medication. So the issue of whether or not
termination is justified comes down to whether Arnold’s violation of
school laws – including [Principal’s] directive not to use physical force
against students – was “persistent.” Pennsylvania courts have held that
a teacher’s violation of a directive from a superior regarding the use of
physical force in disciplining students constitutes a violation of school
laws justifying termination. In Blascovich . . . , 410 A.2d 407 . . . , this
Court ruled that a teacher violated a directive not to use physical force
by paddling seven students on one day 18 months after receiving a letter
prohibiting him from administering corporal punishment of any kind.
Id. at 409. Yet the Court did not address the issue of what constituted
persistent violation, focusing instead on the fact that the teacher’s action
“directly contravened explicit orders petitioner had received by letter
of June 3, 1976 . . . .” Id.; see also Johnson v. United Sch. Dist. Joint
Sch. Bd., 191 A.2d 897, 900 (Pa. Super. 1963) (holding that even a
21
single willful violation of a clear directive can be grounds for
termination for persistent and willful violation of school laws) . . . .
[E]ven if Arnold’s physical redirection of the student alone were
not enough to constitute “persistent” violation of the school laws, that
was not his only violation on February 21, 2018. As noted above, there
is no substantial evidence to support the factual finding that Arnold ever
called the office for assistance in handling the offending student. And
he admittedly failed to follow that procedure when the student returned
to class the second time. Furthermore, even if events occurred just as
Arnold said they did, he still failed to follow District disciplinary
procedures by allowing a student to leave class on his own to go to the
office . . . . So Arnold violated at least three directives that day: 1)
allowing a student facing discipline to walk the halls alone; 2) failing
to call the office for assistance when necessary to remove a belligerent
child from class; and 3) using physical force to redirect students.
Arnold’s violation of these three directives on February 21, 2018, was
willful and persistent, justifying termination under the School Code.
District’s Br. at 24-27. Accordingly, the District requests this Court “reverse the []
Secretary’s Order and remand to the [] Secretary to determine Arnold’s due process
challenge, which was not decided in the Secretary’s Opinion and Order.” District’s
Br. at 28.
B. Arnold’s Arguments
Arnold argues that a school principal does not set school district policy.
The Board does. Arnold contends:
[P]rincipal’s assertion that a teacher may never touch a student is not
the policy of the Board [], nor would such a policy be practicable. A
teacher has an affirmative responsibility to prevent students from
harming themselves or other students, to quell disturbances in his
classroom, and to protect property. Teachers have always broken up
fights, stopped students from playfighting, roughhousing, or acting out
of order in a manner which is disruptive or potentially harmful to others,
or just plain disorderly. It is impossible to do that without on occasion
touching a student or ushering the student out of the classroom when
the student refuses to comply with the direction of his teacher.
Arnold’s Br. at 14.
22
Further, Arnold asserts that his dismissal was not in “strict compliance”
with the mandatory procedural safeguards set forth by the Pennsylvania Legislature
in the School Code. Arnold’s Br. at 14-15. Arnold argues that such a failure is a
“fatal defect” and a violation of “procedural due process,” which requires
reinstatement without loss of salary and compensation. Arnold’s Br. at 15. Arnold
states that his employment was terminated by the District’s administrative officers
effective March 27, 2019, and “[t]hat termination of his employment was effectuated
under the “color of a suspension” designed to circumvent the mandatory procedural
safeguards of the School Code. Such suspension without pay was effectuated by the
office of Human Resources [] without any action of the Board [] and without any
authority to do so.” Arnold’s Br. at 15. Arnold asserts that the District’s intent was
to terminate his employment effective as of the date of his suspension,
thereby circumventing and effectively eviscerating the plain meaning
and intent of the mandatory procedural safeguards which require a full
pre-deprivation hearing held by the [Board] before any termination or
demotion of status or pay. Instead, the District’s Office of General
Counsel independently held a belated hearing eleven months after
Arnold’s effective termination – that is illegal. See Vladimirsky, 144
A.3d at 1002-05 . . . .
Arnold’s Br. at 15.
As to the substantive issues before this Court, Arnold argues that he
was the only witness who had any first-hand, direct knowledge of what happened in
the classroom on the day in question. He maintains that he was “attempting to quell
a disturbance by an unruly and defiant student,” which could have escalated into a
situation “where children could have been hurt.” Arnold’s Br. at 16. He argues that
he was acting “within the parameters of his duty to protect order in his classroom,
protect his students, and protect the property of the District.” Id. As to the October
23
2017 incident, Arnold states that he “redirected a student who was out of line and
horseplaying by pulling on his backpack to move him into line and to get him to stop
acting disorderly,” which is something that is often done by teachers. Arnold’s Br.
at 16. Arnold adds that he acted reasonably during the second incident as well in
response to the student’s behavior. He notes that he only attempted to escort the
student out of the classroom when the student was defiantly refusing to follow his
direction to leave and that the student was repeatedly returning to the classroom after
being sent to the assistant principal’s office and was repeatedly cursing at him.
Arnold further notes that the student did not fall down and was not hurt. Id. Arnold
reiterates that he was not attempting to harm the student or to be mean or cruel to
the student. He argues that he did not willfully violate any school law or policy of
the District and that there is no District policy that a teacher may never physically
redirect a student. He maintains that teachers prevent fights and break-up fights
when they occur and that he did not commit an act which warrants dismissal under
Section 1122 of the School Code. Arnold maintains that he did not physically abuse
any student and at no time acted maliciously toward a student, and Principal, who
testified against him, had no first-hand knowledge of either of the two the incidents.
Arnold contends that, in its statement of charges, the District did not
cite any established policy of the Board which states that a teacher should never use
physical means to redirect students. Arnold adds that is because the Board has no
such policy. In addition, Arnold notes that a provision in the Collective Bargaining
Agreement provides that teachers may use “reasonable force” in such situations and
that “reasonable force” is defined as “the same degree of physical control of a pupil
that a parent would be legally privileged to exercise . . . .” Arnold’s Br. at 21 (citing
R.R. at 72a; Collective Bargaining Agreement, Article XVIII (E)(10), at 73).
24
Arnold further contends that, in the everyday demands of teachers, a
policy to never touch a student would be impractical. When students misbehave,
fight, or otherwise act out in schools, and refuse to stop when directed by teachers,
it is most often impossible to control the students without physically redirecting
them. This is especially true for students with behavioral and emotional disabilities
who often require physical directing. In this case, the student had begun to run
around the room touching other students and creating disorder, which caused other
students to react with negative behaviors. Arnold asserts that, if he had done nothing,
he could have been accused of neglecting his responsibility to keep order in his
classroom. Arnold adds that if he had been abusive to the child, the Department of
Human Services (DHS) would have acted against him and filed an indicated report
of child abuse on ChildLine and reported it to the District. DHS did not do so, and,
in fact, determined that abuse was unfounded.
Arnold argues that the District bases its entire case on hearsay evidence
to which he objected “every step of the way at the hearing.” Arnold’s Br. at 24.
Arnold notes:
The District did not bring in the student involved in the incident to the
hearing to testify. Nor did it bring in the student who took the video to
testify as to what had happened prior to the start of the video and what
had happened after the video ended. Nor was there any substantiation
by the student that the video was an accurate copy of the [] video.
Therefore, the Secretary can determine the weight of that video.
There is no substantive testimony against [] Arnold by any
witness . . . with first[-]hand knowledge of what happened in []
Arnold’s classroom. Moreover, the observation report reveals that []
Arnold is a good teacher with good class control. (R.[R. at] 159a) . . . .
The [H]earing [O]fficer admitted the investigatory conference
reports supposedly just for the fact that there were investigatory
conferences, and not for the purpose of the hearsay which they
contained and the student statements. (R.[R. at] 259a; []). Then [the
25
Hearing Officer] condemned [] Arnold on the uncorroborated hearsay.
That is improper.
Nor can it be argued that [] Arnold received []progressive
discipline.[]
Arnold’s Br. at 24-25, 28.
Arnold further argues that it is indisputable that, at some point in time,
he did call the office and that the timing of his call is not evidence of any intent to
defy Principal or to defy any policy of the Board, as “[t]hings happen quickly in
classrooms.” Arnold’s Br. at 30.
Arnold asserts that a second investigatory conference pertaining to the
October 2017 incident was held by Principal after the February 2018 incident had
already occurred. Arnold states:
The conference summary report of the first incident was dated May 21,
2018, and the report stated that the conference had been held on “April
18th, 2018. (R.[R. at] 206a; Ex. SDP-8 containing the letter to Karen
Gokay, Executive Director of the Office of Employee Relations, and a
second SEH-204 Conference Summary issued on May 21, 2018). That
was the date of the final summary of the investigation. By then, the
second incident had already occurred on February 21, 2018 . . . .
There never was a “second level” conference held by an assistant
superintendent in the “first incident” to approve or disapprove the first
SEH-204 conference summary. The investigation and decision-making
process for the first incident had never been completed. There was a
second level conference pursuant to the “second incident” only. (R.[R.
at] 208a []).
Arnold’s Br. at 30-31.
Additionally, Arnold states that, in his Opinion, the Secretary states:
“The credibility of the witnesses and the weight to be accorded their testimony is
within the exclusive province of the Secretary.” Arnold’s Br. at 31-32 (citing Rhodes
v. Laurel Highlands Sch. Dist., 544 A.2d 562 (Pa. Cmwlth. 1988)).
26
In regard to credibility, Arnold disputes the District’s characterization
of what the video shows and reiterates that the District’s characterization of it is not
supported by any witness who had first-hand knowledge of the situation. Arnold
rejects the District’s argument that the Secretary should have believed Principal over
Arnold as to whether Arnold called the main office. He questions why the District
did not present testimony from the administrator who ultimately came to his
classroom during the second incident.
Arnold explains that the Secretary’s review authority is de novo which
requires that the Secretary issue an independent determination in accordance with
Belasco v. Board of Public Education of the School District of Pittsburgh, 510 A.2d
337, 340-42 (Pa. 1986). Such review is plenary, and the Secretary sits as “the
impartial tribunal” with the affirmative responsibility to review all of the evidence
and issue a completely independent decision from that made by the District. Id. at
340-42.
Further, Arnold argues that the District’s assertions that he violated at
least three directives on the day of the second incident are not accurate. Specifically,
he contends:
(1) [he] did not allow the student to walk the halls alone. He testified that
he sent the student to the assistant principal’s office down the hallway
and watched him enter the office alcove. Moreover, that directive was
not given to him until after the second incident took place. (R.[R. at]
208a). (2) The Secretary made [a] Finding of Fact and a legal
conclusion that [] Arnold called the office. And (3) the directive about
using physical force was not given to [] Arnold until after the second
incident. Moreover, such a directive is not the official policy of the
District’s Board . . . . It violates the Collective Bargaining Agreement
and is not practical in the face of the realities of a teacher’s
responsibility to protect and maintain order in his classroom.
Arnold’s Br. at 34.
27
Arnold adds that he never intended to harm any student or to be cruel
and was at all times acting to maintain order in his classroom.
Arnold also contends he was denied due process. He asserts that the
Board did not review the charges prior to them being sent to him and that the Board
did not resolve to suspend his pay or terminate his employment status. He asserts
that there is no evidence the Board knew of the charges at any time, and there is no
evidence that any Board member had read the decision of the Hearing Officer when
the Board voted to adopt the decision in his case. Arnold states: “There is no
evidence that any Board member participated in the hearing or the decision-making
process at any time. There were no deliberations of the Board on the matter.”
Arnold’s Br. at 35 (referencing Secretary’s Opinion and Order, 2/17/2021, Findings
of Fact Nos. 63-110).
Arnold requests that this Court determine that the District did not
sustain its charges against him and did not meet its burden of proof that it strictly
complied with the procedural safeguards of the School Code. Accordingly, Arnold
argues we should affirm the Secretary’s Order and direct the District to reinstate him
with back pay.
III. Discussion
We note at the outset that the Secretary has the authority to review the
Board’s termination decision de novo and that the Secretary is the ultimate fact finder
with power to determine the credibility of witnesses, weight to be accorded evidence,
and inferences to be drawn therefrom. Forest Area Sch. Dist. v. Shoup, 621 A.2d
1121 (Pa. Cmwlth. 1993); Belasco, 510 A.2d 337. The Secretary makes findings of
fact based on the preponderance of the evidence. Fisler v. State Sys. of Higher Educ.,
78 A.3d 30 (Pa. Cmwlth. 2013).
28
The School Code does not define persistent and willful violation, but
the Pennsylvania courts interpret the terms based on their common usage.
“Persistent” generally means to be “continuing” or “constant” and is demonstrated
where the violation occurs either as a series of incidents or one incident occurring
over a substantial period of time. Lucciola v. Sec’y of Educ., 360 A.2d 310, 312 (Pa.
Cmwlth. 1976); Horton v. Jefferson Cnty.-Dubois Area Vocational Tech. Sch., 630
A.2d 481 (Pa. Cmwlth. 1993). This Court has determined “there must be sufficient
continuity and repetition of negligent acts to support a charge of persistent
negligence.” Lauer v. Millville Area Sch. Dist., 657 A.2d 119, 121 (Pa. Cmwlth.
1995).
As this Court has previously stated, the purpose of Section 1122 of the
School Code is to provide “the greatest protection possible against dismissal.”
McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 353 (Pa. Cmwlth. 2010) (quoting
Lauer). “To dismiss a professional employee protected by contract requires a
serious reason, not ‘picayune and unwarranted criticisms.’” Id. (quoting Lauer, 657
A.2d at 123). This is true, in substantial part, because a tenured professional
employee has a property interest in continued employment. Sch. Dist. of Phila. v.
Jones, 139 A.3d 358, 366 (Pa. Cmwlth. 2016).
Based on his assessment of the credibility of the witnesses and his
assignment of weight to the evidence, the Secretary determined that Arnold did not
act cruelly or out of anger and that he was not attempting to be aggressive. The
Secretary further found that Arnold did not persistently and willfully touch any of
his students and that he did not persistently and deliberately act in a physically
aggressive manner toward students or violate District policy. We agree. In both
instances in which Arnold redirected his students, he utilized the respective student’s
29
clothing, or an accessory item, rather than making physical contact with the student’s
body. Arnold’s conscious decision to grab a student’s backpack and the sleeve of a
loose-fitting shirt support his contention that he was not acting in a cruel or
aggressive manner. As to the first incident, a scratch found on the student’s body
was not found by Principal to be likely attributable to Arnold, given the scratch’s
location. In the second incident, the student did not fall and was not injured in any
way. Although the two incidents occurred within months of each other, the District’s
Board did not suspend Arnold or take any disciplinary action against him for the first
incident, and while both incidents were reported to ChildLine, no action was taken
against Arnold, and there was no indicated report of abuse.
Relying on Blascovich, 410 A.2d 407, Johnson, 191 A.2d 897, and
Board of Public Education School District of Philadelphia v. August, 177 A.2d 809(Pa. 1962), the District contends that even a single violation of a clear directive can
be grounds for termination and that a teacher’s violation of a directive from a
superior regarding the use of physical force to discipline a student constitutes a
violation of school laws justifying termination.
Blascovich involved a teacher whose termination arose from
complaints received by the school principal that the teacher had assaulted several
seventh-grade students in the gym locker room and had paddled seven students. The
entirety of the incident included testimony from a seventh-grade student that, in the
locker room after gym class, the teacher had grabbed him by the collar, punched him
in the chest four or five times, pushed him against the wall, and twice punched him
in the eye. The student further testified that as a result of a final blow, he fell to the
floor striking his head and knee. In Johnson, the teacher was dismissed for
insubordination and lack of cooperation for her deliberate refusal to participate in
30
the school’s open house program, as she was told she would be required to do when
she interviewed for her position. In addition to being informed of same at the time
of her interview, she was subsequently reminded of her obligation at a meeting of
teachers the day before the beginning of the school term, as well as at least one other
date prior to the event. Before the scheduled open house, the teacher advised her
administrative superior that she would not be attending and was informed again that
she was required to attend. Without providing a reason, the teacher stated she would
not be attending, and, in fact, she did not attend the open house. In August, a
teacher’s dismissal for insubordination was upheld by our Supreme Court where the
teacher refused to cooperate with the school district’s superintendent in an inquiry
relative to the teacher’s loyalty to the United States of America. While each case is
instructive on the ability of a school district to terminate a teacher for failure to
follow a clear directive from a superior, each is distinguishable from the matter sub
judice.
In the present matter, Arnold was not engaged in the kind of brutal,
physical engagement with his students that was at issue in Blascovich, and, here,
Arnold was not blatantly insubordinate like the teachers in Johnson and August.
Although Arnold appears to have been put on notice of Principal’s recommendations
at the November 2017 investigatory conference, we cannot say that the Secretary
erred when he determined that the recommendation came after the second incident
of February 21, 2018. Secretary’s Opinion and Order, 2/17/2021, Finding of Fact
No. 20, at 3. The ambiguity as to when the recommendation became final as an
actual directive, coupled with the language of Article XVIII(E)(10) of the Collective
31
Bargaining Agreement which allows a teacher to use reasonable force11 “to protect
himself/herself or others from attack or injury, or to quell a disturbance which
threatens physical injury to a teacher or others,” separates the instant case from the
situations in Johnson and August. Article XVIII(E)(10) of the Collective Bargaining
Agreement; R.R. at 72a. In this regard, it provides further support for Arnold’s
position that the District does not preclude the use of physical means of redirecting
students, as there were, at a minimum, competing directives on the matter. In light
of the competing demands facing Arnold in the heat of the moment, along with his
relatively measured response, we cannot say that the Secretary erred by finding the
District failed to meet its burden of proving Arnold had engaged in a persistent and
willful violation of District rules.
As to the District’s contention that the Secretary erred by finding the
video of the second incident not credible, we disagree. Although Arnold did not
object to the admission of the video into evidence without authentication by the
student who had recorded it, the Secretary found that, in this case, such lack of
authentication weighed against its credibility. The Secretary is free to make such
determinations as part of his weighing of the probative value of the evidence. We
see no error in the Secretary’s determination, especially when coupled with the
potentially limited value of a video that accounts for only a 25-second snapshot
within the larger context of events that comprised the incident in its entirety.
It is clear that the Secretary reviewed the evidence before him,
including the arguments made by the parties before the DHO, and made a
11
We reiterate that “reasonable force” is defined in the Collective Bargaining Agreement
to mean “the same degree of physical control over a pupil that a parent would be legally privileged
to exercise but which in no event shall exceed the amount of physical control reasonably necessary
to protect the physical safety of a teacher or others.” Article XVIII(E)(10) of the Collective
Bargaining Agreement; R.R. at 72a.
32
determination based on the totality of the information presented to him. In the end,
the critical determination for the Secretary was whether Arnold’s actions constituted
the kind of willful and persistent violation of the school laws of the Commonwealth,
including the official directives and established policies of the Board, to support his
dismissal from the District. The fact is that the only witness presented by the parties,
who had direct knowledge of what transpired in the October 2017 and February 2018
incidents was Arnold, and the Secretary found him credible as to his actions and his
motives. This determination, along with the assignment of weight to the remainder
of the evidence of record, was within the Secretary’s discretion, and it is irrelevant
whether the record contains evidence to support findings other than those made by
the factfinder; the critical inquiry is whether there is evidence to support the findings
made. Lahr Mech. v. Workers’ Comp. Appeal Bd. (Floyd), 933 A.2d 1095 (Pa.
Cmwlth. 2007). Here, there is. Thus, we affirm the Order of the Secretary
reinstating Arnold to his position as teacher with the District with backpay.12
IV. Conclusion
Because the Secretary’s determination is based on substantial evidence
which supports the necessary factual findings, and we detect no error of law or
constitutional violation, we affirm the Secretary’s February 17, 2021 Order.
______________________________
J. ANDREW CROMPTON, Judge
12
Because we affirm the Order of the Secretary, and the Secretary did not address the due
process issues raised by Arnold, herein, as they were rendered moot by the Secretary’s
determination, we do not address Arnold’s due process contentions here either.
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The School District of Philadelphia, :
Petitioner :
:
v. : No. 303 C.D. 2021
:
Adrian Arnold (Department of Education), :
Respondent :
ORDER
AND NOW, this 16th day of December 2021, the February 17, 2021
Order of the Department of Education is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge