N. Follman v. S.D. of Philadelphia (Dept. of Ed.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neal Follman, :
Petitioner :
:
v. : No. 1323 C.D. 2023
: Argued: June 6, 2024
School District of Philadelphia :
(Department of Education), :
Respondent :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE WALLACE FILED: July 17, 2024
Neal Follman (Follman) petitions for review of the October 20, 2023 order of
the Commonwealth of Pennsylvania’s Secretary of Education (Secretary) which
affirmed the decision of the School District of Philadelphia’s (District) Board of
Education (Board) that dismissed Follman from his employment as a tenured teacher
in the District. Upon review, we reverse the Secretary’s order, reinstate Follman’s
employment, and remand to the Secretary for a determination of damages.
I. Background
Follman was working for the District as a tenured teacher at Constitution High
School (CHS) during the 2020-2021 school year. Reproduced Record (R.R.) at
583a. Due to the ongoing COVID-19 pandemic, the District closed CHS for
in-person instruction from March 14, 2020, through May 10, 2021. Id. As part of
the District’s plans to safely reopen schools for in-person instruction, the District
Superintendent, Dr. William R. Hite, Jr. (Dr. Hite), emailed staff on February 22,
2021, to inform them that once the District’s schools reopened, the District would
test its employees and students for COVID-19 each week. Id. at 583a-84a. Dr. Hite
also informed staff that the District’s testing program would be mandatory for
everyone who did not have a medical exemption. Id. at 584a.
When the District resumed in-person instruction at CHS, Follman refused to
submit to weekly COVID-19 testing. Id. On May 7, 2021, Follman completed a
COVID-19 Testing Refusal/Exemption Request form, indicating he was refusing the
mandatory testing for the following reasons: “EUA,”1 “[n]ot accurate,” “[w]hat is
done w/ material?” “[r]elationship w/ Fisher Scientific,” and “[y]ou are not my
medical provider.” Id. at 241a. In response, Ronak Choksi (Choksi), interim deputy
of the District’s Office of Employee and Labor Relations, emailed Follman and
notified him “there was insufficient cause for your refusal” and as a result “you will
be coded as on unauthorized leave . . . starting Monday, May 10, 2021, and will
remain in an unauthorized leave status until you agree to participate in the onsite
surveillance testing program and fulfill the testing requirement.” Id. at 246a.
Follman responded to Choksi’s email on May 12, 2021, indicating “I stand by
my legal right . . . to refuse my consent. However, I would like to serve my students
in person, and provide them with some sense of continuity during this tumultuous
time. I would be willing to undergo a temperature check in order to do so.” R.R. at
245a-46a. Choksi responded that Follman must agree to participate in the
COVID-19 testing program “to return to service.” Id. at 245a.
1
Follman later testified that “EUA” was an abbreviation for “Emergency Use Authorization,”
and that he had informed Ronald Choksi that he believed it was “illegal to mandate emergency use
products.” R.R. at 129a.
2
On May 19, 2021, Brianna Dunn-Robb, Principal at CHS (Principal), issued
an Unsatisfactory Incident report (Report) to Follman. R.R. at 275a. In the Report,
Principal explained the District’s “multilayer approach” to protect the safety of
students and staff. Id. Principal then summarized Follman’s refusal to submit to
COVID-19 testing and his communications with Choksi. Id. Principal concluded
that Follman’s refusal to participate in the District’s testing program “constitute[d]
an Unsatisfactory Incident.” Id. at 276a. Principal’s recommendation was for the
District to terminate Follman’s employment. Id.
Next, Principal “conducted a first-level investigatory conference on May 26,
2021, to give [Follman] and his union representative an opportunity to respond.” Id.
at 585a. “Follman objected to the testing program and continued to refuse [COVID-
19 testing].” Id. As a result, Principal continued to recommend Follman’s
termination from employment. Id.
Sheila Wallin, a hearing officer in the District’s Office of Employee & Labor
Relations (Wallin), then conducted a second-level hearing on June 8, 2021. R.R. at
279a. In addition to restating the background outlined above, Wallin summarized
the statements made by Follman and his staff representative as follows:
• [Follman does] not believe the [District] has a right to [his] medical
information
• [Follman’s] First Amendment[2] and HIPAA[3] rights are being
violated
2
U.S. Const. amend I.
3
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No.
104-191, 110 Stat. 1936 (codified as amended in scattered sections of titles 18, 26, 29, and 42
U.S.C.).
3
• [Follman is] not refusing to take the test, just not with the [District’s]
provider, as that would allow the provider to have [his] medical
information
• [Follman was] provided the information regarding the testing
requirement in a February 22, 2021 email from the [District]
• [Follman] want[s] to return to work; [has] already had COVID; and
[his] due process rights have been violated
• [Follman has] been a loyal employee for twelve (12) years and this
is an act of injustice
R.R. at 279a-80a. After considering Follman’s arguments, Wallin concluded he
“provided no evidence beyond [his] comments that [his] First Amendment and
HIPPA [sic] rights were violated by the directive for mandatory testing.” Id. at 280a.
As a result, Wallin immediately suspended Follman without pay and recommended
the District terminate Follman’s employment. Id.On August 19, 2021, the Board adopted a resolution determining “there exists
sufficient evidence to support the recommendation of the Superintendent and/or his
designee to terminate [Follman’s] employment.” R.R. at 282a-83a. The Board also
directed its secretary and president to inform Follman of his right to a hearing. Id.Thereafter, on September 1, 2021, the Board’s president and secretary mailed
Follman a Statement of Charges and Notice of Right to Hearing (Statement of
Charges). Id. at 231a-33a. The Statement of Charges included the following
information regarding a hearing:
Hearing Notification
Date, Time and Place: A hearing before the Board of Education
presently is scheduled for 10:00 AM on September 13, 2021. If you
elect to contest the Administration’s recommendation, the hearing will
be held at the Education Center for the [District] . . . .
4
**(Hearing date is based on the date the letter is dated)
Timely Written Request:
IF YOU WISH TO CONTEST THE RECOMMENDATION FOR
YOUR DISMISSAL THROUGH THE SCHEDULED BOARD OF
EDUCATION HEARING, YOU MUST CONFIRM THE
HEARING, IN WRITING, ON A TIMELY BASIS OR YOU
WILL LOSE ALL OF YOUR RIGHTS TO A BOARD OF
EDUCATION HEARING. THE HEARING DESCRIBED
ABOVE WILL BE CANCELLED AND YOU MAY BE
DISCHARGED WITHOUT A HEARING.
R.R. at 232a-33a. On September 7, 2021, Follman’s attorney responded by letter
and confirmed the hearing.
Thereafter, the District postponed Follman’s hearing and changed it to a
virtual hearing format. Id. at 586a. Follman objected to a virtual hearing. Id.Follman also objected to the hearing being conducted by a hearing officer rather than
the Board. Id. at 593a. Follman’s objections were overruled, and the District held
a virtual hearing on February 28, 2022. Id. at 586a-87a. Rudolph Garcia, who was
“appointed by the Board of Education as a Hearing Officer for this matter,”
conducted the hearing. Id. at 79a-81a. Not a single member of the Board was present
for the hearing. Id. at 80a.
At the hearing, Follman testified and explained his numerous objections to the
District’s COVID-19 testing program. The Secretary summarized Follman’s
arguments at the Board’s hearing as follows:
a. The testing program was administered by Dr. Hite but the [Board]
did not pass a resolution authorizing the testing program.
b. Mr. Follman believed that the test consent forms available on the
[District’s] website would allow the disclosure of test results in
violation of [HIPPA].
5
c. Mr. Follman believed that the [type of] test being used by the
[District] should not be used to diagnose COVID-19.
d. Mr. Follman did not trust the company selected by the [District] to
administer the COVID-19 tests based on information that he found
on the internet.
e. Mr. Follman wanted his personal doctor to administer a different
COVID-19 test instead of the District’s onsite testing program.
R.R. at 588a. On August 18, 2022, the Board approved a resolution by a roll call
vote4 of 9-0 to dismiss Follman from his employment as a teacher. Id. at 23a-26a.
Follman appealed the District’s decision to the Secretary. The Secretary
reviewed the record before the Board and permitted the parties to offer briefs and
oral argument. See id. at 27a-32a. Thereafter, the Secretary determined the District
complied with the procedural requirements of the Public School Code of 1949
(School Code), the District established sufficient grounds for dismissal under the
School Code, Dr. Hite acted within his authority in mandating COVID-19 testing
for staff and students, and the District did not violate Follman’s constitutional rights.
R.R. at 592a-602a. As a result, the Secretary concluded Follman “was properly
discharged from his employment as a teacher for persistent negligence in the
performance of duties and willful neglect of duties pursuant to Section 1122 of the
School Code[, 24 P.S. § 11-1122,]” and affirmed the District’s dismissal of Follman.
R.R. at 588a, 603a. Follman timely filed a Petition for Review in this Court.
4
The Board took a single roll call vote to approve the termination of a group of employees.
Follman argues the Board’s failure to take a separate roll call vote, solely related to his termination,
violated his rights under Section 1129 of the Public School Code of 1949 (Act of March 10, 1949,
P.L. 30, as amended, 24 P.S. §§ 1-101 - 27-2702), 24 P.S. § 11-1129, which requires the Board “by
a two-thirds vote of all the members thereof, to be recorded by roll call, [to] determine whether
[the charges against an educator] have been sustained and whether the evidence substantiates such
charges and complaints, and if so determined shall discharge such professional employe.” Due to
our resolution of this matter, however, we need not address this issue.
6
II. Issues
On appeal, Follman raises the following issues for our review: (a) his
dismissal should be void because the Board did not enact the COVID-19 testing
program; (b) his dismissal should be void because an administrative staff member,
not the Board, placed him on leave without pay; (c) the Board violated his
constitutional due process rights; (d) the Board violated the Sunshine Act;5 (e) the
Board violated his right to medical privacy; and (e) the Board erred in concluding
Follman’s actions were grounds for dismissal under Section 1122 of the School
Code, 24 P.S. § 11-1122. See Petitioner’s Br. at 30-32. In addition, Follman
renewed his objections to the District’s hearing being held virtually and before a
hearing officer rather than by the Board. Id. at 11-12, 24, 45.
In response, the District argues Follman received all the process he was due,
and his actions justified the District’s termination of his employment.
III. Analysis
When reviewing a decision of the Secretary, our standard of review is limited
to determining whether substantial evidence supports the Secretary’s factual
findings, the Secretary committed an error of law, or the Secretary violated the
parties’ constitutional rights. Curl v. Solanco Sch. Dist., 936 A.2d 183, 185 n.1 (Pa.
Cmwlth. 2007). While Follman presents several issues for our review, we need not
examine each of those issues because the District plainly violated the School Code’s
procedural requirements in terminating Follman’s employment.
We begin our analysis by examining Article XI of the School Code’s
provisions regarding “Professional Employes.” Section 1101 of the School Code
defines a “professional employe” as
5
65 Pa.C.S. §§ 701-716.
7
those who are certified as teachers, supervisors, supervising principals,
principals, assistant principals, vice-principals, directors of career and
technical education, dental hygienists, visiting teachers, home and
school visitors, school counselors, child nutrition program specialists,
school librarians, school secretaries the selection of whom is on the
basis of merit as determined by eligibility lists and school nurses.
24 P.S. § 11-1101. A person who is employed in these roles for a limited time is
specifically categorized as either a “substitute” or a “temporary professional
employe.”6 Id. Thus, only permanent professional employees qualify as a
“professional employe” under the School Code.
Subarticle (c) of Article XI of the School Code, entitled “Tenure,” specifically
governs professional employees. See Sections 1121-1134 of the School Code, 24
P.S. §§ 11-1121 – 11-1134. Section 1121 of the School Code requires all
professional employees to be provided a written contract. 24 P.S. §§ 11-1121.
Section 1122(a) of the School Code provides protections for professional employees
by limiting the reasons their employment contracts can be terminated, as follows:
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 employe’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 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
6
A “temporary professional employe” who receives satisfactory ratings at the end of three years
of service becomes a “professional employe.” See Section 1108 of the School Code, 24 P.S. § 11-
1108.
8
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 . . . .
24 P.S. § 11-1122(a) (emphasis added).
In addition, Section 1127 of the School Code establishes the following
specific procedures a school district must follow when terminating the employment
of a professional employee:
Before any professional employe having attained a status of permanent
tenure is dismissed by the board of school directors, such board of
school directors shall furnish such professional employe with a
detailed written statement of the charges upon which his or her
proposed dismissal is based and shall conduct a hearing. A written
notice signed by the president and attested by the secretary of the board
of school directors shall be forwarded by registered mail to the
professional employe setting forth the time and place when and where
such professional employe will be given an opportunity to be heard
either in person or by counsel, or both, before the board of school
directors and setting forth a detailed statement of the charges. Such
hearing shall not be sooner than ten (10) days nor later than fifteen (15)
days after such written notice. At such hearing all testimony offered,
including that of complainants and their witnesses, as well as that of the
accused professional employe and his or her witnesses, shall be
recorded by a competent disinterested public stenographer whose
services shall be furnished by the school district at its expense. Any
such hearing may be postponed, continued or adjourned.
24 P.S. § 11-1127 (emphasis added).
Section 1128 of the School Code specifies that at a school district’s hearing
to terminate a professional employee, “[a]ll testimony . . . shall be taken under oath,
and any member of the board of school directors shall have power to administer
oaths to such witnesses.” 24 P.S. § 11-1128 (emphasis added). Section 1129 of the
School Code establishes voting procedures as follows:
9
After fully hearing the charges or complaints and hearing all
witnesses produced by the board and the person against whom the
charges are pending, and after full, impartial and unbiased
consideration thereof, the board of school directors shall by a two-
thirds vote of all the members thereof, to be recorded by roll call,
determine whether such charges or complaints have been sustained and
whether the evidence substantiates such charges and complaints, and if
so determined shall discharge such professional employe. If less than
two-thirds of all of the members of the board vote in favor of discharge,
the professional employe shall be retained and the complaint shall be
dismissed.
24 P.S. § 11-1129 (emphasis added). If the board of school directors votes to
terminate a professional employee, the professional employee may appeal to the
Secretary. See Section 1131 of the School Code, 24 P.S. § 11-1131. The Secretary
must then hold a hearing and may consider additional testimony before either
affirming or reversing the board of school directors. Id. Thereafter, the professional
employee may appeal to this Court. See Section 1132 of the School Code, 24 P.S. §
11-1132.
In stark contrast to the detailed procedural protections the School Code affords
to professional employees, a temporary professional employee who is not given a
regular employment contract at the end of three years of service must only be
provided “a written statement signed by the president and secretary of the board of
school directors.” See Section 1108(c)(2) of the School Code, 24 P.S. § 1108(c)(2).
The School Code does not provide any further procedural protections to these
individuals. They may, however, obtain a school board hearing governed by local
agency law. See Acitelli v. Westmont Hilltop Sch. Dist., 325 A.2d 490, 492 (Pa.
Cmwlth. 1975). If the temporary professional employee is aggrieved by the board’s
decision, he may appeal to the local court of common pleas. Id.10
Nonprofessional employees of a public school district are also afforded fewer
procedural protections than professional employees. The board of school directors
is empowered to remove nonprofessional employees for “incompetency,
intemperance, neglect of duty, violation of any of the school laws of this
Commonwealth, or other improper conduct” “after due notice, giving the reasons
therefor, and after hearing if demanded.” See Section 514 of the School Code, 24
P.S. § 5-514.
The District, in its brief to the Secretary,7 argued that the Board was allowed
to appoint a hearing officer to conduct Follman’s termination hearing, provided the
Board “review[ed] the hearing officer’s findings of fact, conclusions of law and
recommendation, [and] then make[s] an independent ruling based on the entire
record.” R.R. at 503a. To support its position, the District cited Lewis v. School
District of Philadelphia, 690 A.2d 814, 817 (Pa. Cmwlth. 1997).
In Lewis, this Court examined whether a school board could delegate to a
hearing officer the task of conducting hearings to dismiss nonprofessional
employees. Id. We began by noting Section 514 of the School Code governs the
termination of nonprofessional employees. Id. We then determined Section 514’s
statutory language did not specifically require a hearing before the Board, noting
that “[l]ike many Commonwealth agencies, which serve as ultimate fact-finding
tribunals, the Board of Education has broad discretion to delegate to hearing officers
the task of conducting hearings.” Id. Lewis, however, was limited to proceedings
for nonprofessional employees governed by Section 514 of the School Code, not
7
In its brief to this Court, the District did not respond to Follman’s continuing objection to the
Board’s delegation of his hearing to a hearing officer. Additionally, while the Secretary
acknowledged Follman was arguing the District violated the School Code by holding his hearing
“with a hearing officer rather than the [Board],” the Secretary did not directly respond to this issue.
See R.R. at 593a-94a.
11
proceedings under the School Code’s provisions governing tenured professional
employees.8
Nevertheless, the Pennsylvania Supreme Court has previously determined that
“a lawful and proper hearing may be conducted without all members of the [school
board] present to hear the evidence.” Belasco v. Bd. of Pub. Educ. of Sch. Dist. of
Pittsburgh, 510 A.2d 337, 342 (Pa. 1986) (citing Acitelli, 325 A.2d 490; Boehm v.
Bd. of Educ., 373 A.2d 1372 (Pa. Cmwlth. 1977)). In Acitelli, the school district
chose to not renew the teaching contract for a temporary professional employee after
he received unsatisfactory ratings. Acitelli, 325 A.2d at 491. When the teacher
appealed to the Court of Common Pleas of Cambria County (the trial court),9 the
trial court ordered the school district to conduct a hearing pursuant to local agency
law. Id. at 492. Thereafter, the school board conducted two hearings. Id. Six of
nine school board members attended the first hearing session while seven attended
the second. Id. Six school board members were present for a subsequent meeting,
and each voted to dismiss the employee. Id. Of these six members, “three members
had attended both hearing sessions, two had attended only the second session, and
one had not attended either session.” Id.
In Acitelli, we rejected the teacher’s arguments that this procedure violated
his due process rights, because “a quorum of the Board was present at each hearing
session and also at the time for the vote.” Id. at 494. In addition, we noted that
“[n]either due process nor the applicable statutes impel those who finally vote on
8
In a post-oral argument filing, the District also asserted it could delegate Follman’s hearing to
a hearing officer pursuant to this Court’s decisions in Fadzen v. Pittsburgh Public School District
(Pa. Cmwlth., No. 50 C.D. 2018, filed April 4, 2019), and School District of Philadelphia v. Puljer,
500 A.2d 905, 907 (Pa. Cmwlth. 1985). Like Lewis, however, Fadzen and Puljer both involved
nonprofessional employees rather than tenured professional employees.
9
The teacher first requested a hearing before the school board, but the school board denied that
request. See Acitelli, 325 A.2d at 492.
12
the status of a teacher to have had direct aural reception of all the evidence.” Id.
(emphasis added). Of critical distinction from this matter, however, the teacher in
Acitelli was a temporary professional employee, not a tenured professional
employee. As a result, the “applicable statute” governing the school board’s actions
in Acitelli was Section 1108 of the School Code, not the tenure provisions in Sections
1121 through 1134 of the School Code.
In Boehm, we evaluated a similar situation involving a hearing on the
termination of a tenured professional employee under Section 1122 of the School
Code. Boehm, 373 A.2d at 1373. In Boehm, the school board conducted the
professional employee’s hearing in two sessions. Id. at 1374. Six of the school
board’s 15 members were present at the first hearing session, while 8 members were
present for the second hearing session. Id. We determined the evidence was
properly received in Boehm because, in part, “there was a quorum present at the last
hearing,” and the teacher “failed to object to the absence of a quorum until [closing
arguments].” Id. We also specifically noted:
We do not, therefore, determine the issue of whether or not a school
board may receive evidence in this type of case with less than a majority
of the members present nor do we determine whether or not a school
board could appoint one or more members to receive testimony.
Id. at 1374 n.4.
In Kaczmarcik v. Carbondale Area School District, 625 A.2d 126, 127 (Pa.
Cmwlth. 1993), we considered whether the appointment of a hearing officer to
conduct a hearing for the termination of a professional employee under Section 1122
of the School Code comported with due process or the School Code. In Kaczmarcik,
the school district appointed an attorney to act as the hearing officer, to which the
professional employee, a vice-principal, objected. Id. Although the hearing was
13
conducted by a hearing officer, five of the nine school board members were present
for the entire hearing, and a sixth member arrived during the hearing. Id. at 129.
After reviewing Acitelli and Boehm, we again cautioned that “[w]e must note that
we are not called upon to decide the question of whether an appointed hearing
examiner could conduct a valid hearing with no member of the [school b]oard
present.” Id. at 130. Instead, we concluded that “[w]hat we are deciding is that the
appointment of the hearing examiner in this case was violative of neither the School
Code nor due process where a majority of the Board was present at the hearing
and where all members voted on the matter.” Id. (emphasis added).
Here, the Board appointed a hearing officer to conduct hearings to terminate
the contract of a tenured professional employee and not a single member of the
Board attended the hearing. This violated the unambiguous10 language of the School
Code’s provisions governing tenured professional employees.11
As fully outlined above, the School Code reflects the legislature’s intent to
provide heightened procedural protections for professional employees who are
facing termination of employment. Section 1128 of the School Code grants the
“power to administer oaths to . . . witnesses” at a hearing on the termination of a
tenured professional employee to a “member of the board of school directors.” 24
P.S. § 11-1128. As a result, if no members of the board of school directors attend
the hearing, witnesses cannot be validly sworn in to testify. Similarly, Sections 1127
and 1129 of the School Code plainly require the presence of the Board. See 24 P.S.
10
“In the absence of ambiguity in the statutory language, we will not embark on a statutory
construction exercise; rather, we will apply the plain language of the statute.” Barringer v. State
Emps.’ Ret. Bd., 987 A.2d 163, 165-66 (Pa. Cmwlth. 2009).
11
We are not called upon in this matter to decide the question of whether an appointed hearing
examiner could conduct a valid hearing with some members of a school board, yet less than a
quorum, present.
14
§§ 11-1127 (“such school directors . . . shall conduct a hearing” and “such
professional employe will be given an opportunity to be heard . . . before the board
of school directors”); 11-1129 (“[a]fter fully hearing . . . all witnesses . . . the board
of school directors shall . . .”) (emphasis added).
Because not a single member of the Board was present for Follman’s
termination hearing, we must reverse the Secretary’s October 20, 2023 order
discharging Follman. See Sch. Dist. of Phila. v. Jones, 139 A.3d 358, 375 (Pa.
Cmwlth. 2016) (“Failure to follow the statutory mandatory termination procedures
is fatal and requires reversal of the District’s action as opposed to remanding . . . .”).
Furthermore, we must also reinstate Follman’s employment with the District. See
id. at 376 (“When the District discharges a professional employee without full
compliance with the School Code, ‘the employee is entitled to reinstatement.’”)
(citation omitted).
Follman must be treated as if his dismissal was a nullity and his employment
was never terminated. Id. Accordingly, he “is entitled to be reinstated to his former
position with back pay, minus his obligation to mitigate damages, until the District
properly terminates his employment in conformity with the procedural due process
requirements set forth in the School Code.” Id. Regarding Follman’s damages, we
observed in Jones that a tenured professional employee “has a duty to mitigate
damages.” Id. (citation omitted). That duty, is, however,
not onerous and does not require success . . . [a]ll that is required to
mitigate damages is to make “an honest, good-faith effort.” The
employer has the burden of proving that substantially comparable work
was available and that the plaintiff failed to exercise reasonable due
diligence in seeking alternative employment. The substantially
comparable or equivalent work refers to employment which affords
virtually identical opportunities for a promotion, compensation and
15
responsibilities. Whether the plaintiff properly mitigated damages is a
factual determination to be made by the fact-finder.
Id. at 376-77 (internal citations omitted). Therefore, we remand this matter to the
Secretary to determine the amount of compensation due to Follman.
IV. Conclusion
The Board violated Follman’s rights to a hearing under the School Code’s
procedures for the termination of tenured professional employees when the Board’s
appointed hearing officer conducted Follman’s termination hearing without a single
member of the Board present. As a result, we reverse the Secretary’s October 20,
2023 order discharging Follman and remand this matter to the Secretary with the
direction to calculate the compensation Follman is due after also considering his
obligation to mitigate damages.
______________________________
STACY WALLACE, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Neal Follman, :
Petitioner :
:
v. : No. 1323 C.D. 2023
:
School District of Philadelphia :
(Department of Education), :
Respondent :
ORDER
AND NOW, this 17th day of July 2024, the October 20, 2023 order of the
Commonwealth of Pennsylvania’s Secretary of Education (Secretary) is
REVERSED, and Neal Follman is hereby reinstated to his position as a professional
employee of the School District of Philadelphia. This matter is REMANDED to the
Secretary for further proceedings consistent with this Opinion.
Jurisdiction relinquished.
______________________________
STACY WALLACE, Judge