J. Slater v. The S.D. of Philadelphia (Dept. of Ed.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Slater, :
Petitioner :
: No. 725 C.D. 2022
v. :
: Submitted: April 14, 2023
The School District of Philadelphia :
(Department of Education), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: February 5, 2024
James Slater (Petitioner) petitions for review of the Order and Opinion of
the Acting Secretary of Education, Eric Hagerty (Acting Secretary), dated June 16,
2022, affirming the School District of Philadelphia’s (School District) dismissal of him
from his position as a tenured professional employee due to an incident that occurred
on December 6, 2019. After careful review, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. December 6, 2019 Incident
Petitioner was a tenured professional employee of the School District as a
teacher beginning in 2004, and he was assigned to Woodrow Wilson Middle School
(Woodrow Wilson) from August 26, 2019, until December 9, 2019. (Reproduced
Record (R.R.) at 62a; Supplemental Reproduced Record (S.R.R.) at 119b, 128b.)
On December 6, 2019, the regular teacher for the class where the incident
occurred was absent and the class had a substitute teacher. (R.R. at 75a.) Petitioner
testified that when he entered the classroom, the class was out of order, many students
were in the hallway acting aggressively, and one student threw something at him. (R.R.
at 75a-76a.) Petitioner testified that after discovering the classroom phone had been
disconnected, he went to another room to call the main office for help. Id. He went
back to the classroom to assist the substitute teacher, at which time he became involved
in a physical altercation with a student, S.M., and at least two other students. Id.
Woodrow Wilson principal, Shawn McGuigan, conducted an
investigation of the incident by interviewing and taking signed statements from
Petitioner, two other teachers, and 19 students. (R.R. at 34a, 36a-37a; S.R.R. at 12b-
40b.) The investigative results concluded that the incident began when S.M. was
attempting to leave the classroom while the substitute teacher was trying to enter the
same room. (R.R. at 29a; S.R.R. at 19b-40b.) Petitioner shouted in S.M.’s face
because he was blocking the substitute teacher’s path into the room. Id. S.M. backed
up and let the teacher into the room but Petitioner continued to scream at the student
so forcefully that he spit in his face. Id. S.M. got angry and pushed Petitioner away.
Id. Petitioner grabbed S.M. and choked him preventing him from breathing properly.
Id. Two students, A.T. and T.R., attempted to pull Petitioner away from S.M. Id.
Petitioner and the two other students became engaged in a brief physical conflict, which
ended when a third teacher reported to the room and pulled everyone apart. Id. The
students involved in the incident were taken to the nurse’s office afterwards to be
examined for injuries. The school nurse found S.M. to have red marks on his neck and
scratches on his cheek and determined the injuries were consistent with being choked.
(R.R. at 23a, 29a; S.R.R. at 41b-42b.) A.T. also had injuries to his neck. Id. Both
2
students’ injuries were reported to the Philadelphia Police Department, the Department
of Human Services (DHS) and the ChildLine and Abuse Registry.1
Petitioner also received injuries from the incident, sustaining contusions
to his back, forearms and thorax. (R.R. at 176a-80a.) He met with a workers’
compensation physician on December 8, 2019. Id. The workers’ compensation
physician referred him for physical therapy and signed a work release as of December
11, 2019, with light restrictions. Id. Petitioner was relegated to the reassignment room
at the central district office while an investigation into the incident was pending. (R.R.
at 62a.)
B. Investigative Conferences
An investigatory conference was held on January 14, 2020, at which time
Petitioner and his union representative were given an opportunity to respond to the
allegations and written statements made against him. (S.R.R. at 12b-18b.) Present at
the conference were Petitioner, Mr. McGuigan, a labor relations representative,
Andrew Montagna, and a union representative, Suzanne Cataline. Id. Twenty-two
written statements were provided, including written statements from two adults, one of
which was the substitute teacher who was in the room at the time of the incident and
supported the claim that Petitioner in fact caused the injuries to the students. Petitioner
flatly denied all the allegations and statements made by the students, teachers, and the
nurses.
After the conference, Mr. McGuigan concluded that Petitioner did assault
several students during the December 6, 2019 incident, and because Petitioner had
1
By letters dated December 30, 2019, and January 3, 2020, both allegations of suspected child
abuse were deemed unfounded by DHS. (R.R. at 181a-182a.)
3
previously been disciplined for improper physical interactions with students,2 Mr.
McGuigan recommended that Petitioner’s employment be terminated. (S.R.R at 18b.)
A second investigatory conference was held by Mr. McGuigan on
September 9, 2020, to review the initial recommendation to terminate Petitioner from
the School District. Petitioner claimed that his statements from the January 2020
conference were misinterpreted. He reiterated his position but failed to provide any
supporting witnesses or evidence to counter the 20 plus witness statements taken on
the day of the incident. (S.R.R. at 54b.) Mr. McGuigan upheld the recommendation
that Petitioner should be terminated. Id.
On October 1, 2020, a “204 Second-Level conference” was conducted by
Attorney Ronak Chokshi, Interim Deputy of the School District’s Office of Employee
and Labor Relations. Petitioner was provided another opportunity to address the
witness statements and disciplinary recommendation. On October 16, 2020, Mr.
Chokshi wrote a “Second Level Conference Summary” advising Petitioner that, based
on the investigation, supporting documents, and Petitioner’s prior disciplinary record,
2
Petitioner had several prior disciplinary actions filed against him with the School District
while working at Lowell Elementary School. (S.R.R. at 76b-188b.) An incident occurred on
November 21, 2014, in which it was found that Petitioner grabbed a student’s earlobes, punished
students by making them stand against the wall until “ready to be reintegrated,” and made statements
“unsuitable to a learning environment.” (S.R.R. at 91b.) In a separate incident on November 24,
2014, Petitioner pushed a student to the ground, which was observed by another teacher who reported
the incident to DHS. (S.R.R. at 86b-88b, 106b.) Petitioner was suspended for three days without pay
and was warned that “any other unsatisfactory incident will lead to further disciplinary action which
may include . . . dismissal from the [S]chool [D]istrict.” (S.R.R. at 88b.)
A third incident occurred on January 4, 2017, during which Petitioner was accused of pulling
a student’s chair out from underneath him, causing him to hit his face on a table resulting in a bruised
cheek. DHS was notified of the incident and later deemed the incident unfounded. (S.R.R. at 106b.)
The School District filed a Second Level Conference Summary and recommended that Petitioner’s
employment be terminated. Following several investigative conferences, Petitioner was terminated
without pay; however, his employment was later reinstated by Opinion and Order of then-Secretary
of Education, Pedro Rivera, dated June 6, 2019. (S.R.R. at 101b-18b.)
4
the School District would be recommending to the School District’s Board of
Education (Board) that his employment be terminated. Mr. Chokshi further advised
that Petitioner “will be suspended without pay effective immediately pending final
action by the Board.” (S.R.R. at 55b-57b.)
C. Board Resolution and Statement of Charges
At a public meeting held on December 10, 2020, the Board approved, by
a 7-0 vote, a resolution finding that there was sufficient evidence to support the
recommendation to terminate Petitioner’s employment.3 (R.R. at 54a; S.R.R. at 6b,
11b.) By certified mail dated January 22, 2021, the Board provided Petitioner with a
written Statement of Charges and Notice of Right to Hearing (Notice and Statement of
Charges).4 (S.R.R. at 128b-30b.) The Notice and Statement of Charges recounted the
allegations against Petitioner as follows:
In the [Second Level Conference Summary] prepared by
Shawn McGuigan, Principal, it was noted that Principal
McGuigan received a report that multiple students were
injured as a result of an altercation with you. Principal
McGuigan obtained over twenty student statements, nurse
reports, teacher statements[,] and a picture. In general, the
student statements indicated that during an altercation you
grabbed two students around their neck[s] and/or choked
them. The nurse reports also documented abrasions to one
student’s neck and “multiple areas of erythema” to the back
of the neck of another student along with scratches to [his]
3
On December 23, 2020, the School District erroneously sent Petitioner a termination of
employment letter. (R.R. at 54a, 159a; S.R.R. at 121b-22b.) However, a correction letter was sent to
Petitioner the same day by overnight mail, instructing him to disregard the December 23, 2020 letter
that was sent in error, clarifying that the Board had resolved that there existed sufficient evidence to
support the recommendation of his termination and advised him of his right to a hearing. (R.R. at
54a; S.R.R. at 123b.)
4
This Notice and Statement of Charges superseded a previous version dated January 5, 2021,
which inadvertently scheduled the hearing for only three days later. (S.R.R. at 124b-27b.)
5
lower cheek. In addition, a statement from a teacher indicated
that you had one student in a “neck hold.”
At the investigatory conference on December 11, 2019, you
denied ever touching the neck area of any student. Instead,
regarding student S[.]M[.], you stated that you attempted to
slide his hands off of you. Regarding student A[.]T[.], who
also alleged you grabbed his neck, you stated that you made
no contact with him and he was not in the area for you to
reach him. In general, you maintained that you were acting
in self-defense and used reasonable force to protect yourself
against students attacking you.
Based on all of the testimony and evidence, Principal
McGuigan found that you assaulted the students. He
recommended that your employment be terminated.
A second level conference was conducted on October 1, 2020
by Ronak Chokshi, Interim Deputy, Employee & Labor
Relations. There, you again denied touching any student on
[the] neck in response to direct questioning.
Mr. Chokshi noted that Students S[.]M[.] and A[.]T[.] both
alleged that you choked and/or grabbed them by the neck,
and that their statements were supported by other student
witnesses along with a teacher witness who stated that you
had a student in a neck hold. He also explained that
documentation from the school nurse, who saw the students
that same day, stated that student S[.]M[.] had two scratches
on his lower cheek and multiples areas of erythema (redness)
to the back of his neck. Mr. Chokshi noted that similar
documentation for Student A[.]T[.] indicated that there were
three abrasions to the student’s neck—which was also shown
in a photograph that was submitted as evidence. He stated
that this additional evidence further corroborated the
students’ version of events.
Moreover, Mr. Chokshi found your denial of even touching
any student’s neck, particularly in light of the evidence
referenced above, unpersuasive and not credible, which
6
further undermined the veracity of your version of the events
as a whole that day.
Mr. Chokshi noted that your behavior was egregious,
excessive and completely inconsistent with your
responsibilities as a teacher. He also explained that it was
violative of the [School] District’s Code of Ethics, which
requires that employees engage with students in a fair and
respectful manner, along with Policy 317 which prohibits
physical misconduct and/or threat of harm to anyone.
****
Mr. Chokshi also noted that you were recommended for
termination in the 2016-2017 school year after your principal
found that you again acted in a physically aggressive manner
towards another student at Lowell Elementary School. While
that recommendation was subsequently reversed, Mr.
Chokshi explained that your participation in the underlying
disciplinary conferences was further evidence that you were
well aware of the [School] District’s policies prohibiting
teachers from directing physically inappropriate behavior
towards students.
Accordingly, based on the SEH-204, supporting documents
and your record of employment as a whole, Mr. Chokshi
concluded that Principal McGuigan’s recommendation for
termination should be upheld.
(S.R.R. at 128b-29b.)
The Board informed Petitioner that it had “resolved that there existed
sufficient evidence to support the School District’s recommendation” to terminate his
employment, and that the allegations against him constituted “intemperance, cruelty,
willful neglect 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]” under Section 1122 of the Public School Code of 1949 (School Code).5
5
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122.
7
Id. at 128b-30b. The Board also advised Petitioner that “[he] remain[ed] employed
but, suspended without pay with health benefits, pending a final decision on the School
District’s recommendation of dismissal.” Id. at 129b. The Notice and Statement of
Charges explicitly stated in bold type on the first page that it was “not a final
determination on the status of your employment” and advised Petitioner of his right
to contest the recommendation at a hearing on February 22, 2021, or through a
grievance procedure under the collective bargaining agreement between the School
District and his union. Id. (emphasis in original).
Petitioner contested the recommendation, and an administrative hearing
was held remotely before Hearing Officer Rudolph Garcia on March 24, 2021.
Petitioner was represented by counsel and given a full and fair opportunity to cross-
examine every witness presented by the School District, to object to the School
District’s exhibits, to present exhibits, and to call witnesses on his behalf. The School
District presented testimony by Mr. McGuigan, Mr. Chokshi, Jennifer Proctor and
Patricia Melloy (school nurses), S.M. and T.R. (minor students), and Kevin Griffis
(Woodrow Wilson’s assistant principal). Hearing Officer Garcia issued findings of
fact and conclusions of law on June 24, 2021, recommending that the Board terminate
Petitioner’s employment.
D. Board Resolution Dismissing
Petitioner and Appeal to Department
On August 19, 2021, an “Action Item 12” was placed on the Agenda of
the Board’s meeting styled as: “Approval of Personnel Terminations.” Action Item 12
was a Resolution to approve the terminations of fourteen employees. Included in that
Action Item on the last page was a sub-resolution to dismiss Petitioner and “adopt” the
decision of Hearing Officer Garcia. (R.R. at 1a-6a.) Following roll call, the Board
adopted Hearing Officer Garcia’s findings of fact and conclusions of law and dismissed
8
Petitioner from his employment for engaging in physically inappropriate conduct
towards students. Id. at 267a.
Petitioner appealed the Board’s decision to the Department of Education
(Department) on July 25, 2020. A remote hearing before Hearing Officer Maribeth
Wilt-Seibert was held on October 14, 2021. Id. at 192a-234a. On June 16, 2022, the
Acting Secretary issued an Opinion and Order affirming the School District’s decision
to dismiss Petitioner. The Acting Secretary found Petitioner not credible in all respects
regarding his description of the incidents that led to his dismissal. He further held that
Petitioner was properly suspended in November of 2020 and was provided with all due
process.
II. ISSUES
Before this Court,6 Petitioner presents seven issues for review.7 First, he
asks this Court to consider whether the School District followed the procedure outlined
in the teacher tenure provisions of Section 1127 of the School Code, 24 P.S. § 11-1127
(Procedure on Dismissals; Charges; Notice; Hearing),8 Section 1129 of the School
6
Our review of the Acting Secretary’s order is limited to determining whether an error of law
was committed, constitutional rights were violated, or necessary findings of fact were unsupported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; McCoy v.
Lincoln Intermediate Unit No. 12, 391 A.2d 1119, 1121 (Pa. Cmwlth. 1978). An administrative
decision is supported by substantial evidence “when a reasonable man, acting reasonably, would have
reached the same decision.” Central York School District v. Ehrhart, 387 A.2d 1006, 1008 (Pa.
Cmwlth. 1978).
7
We have reordered and paraphrased the questions presented for clarity and ease of
discussion.
8
Section 1127 of the School Code provides:
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
(Footnote continued on next page…)
9
Code, 24 P.S. § 11-1129 (Vote Required for Dismissals),9 and Section 1151 of the
School Code, 24 P.S. § 11-1151 (Salary Increases, Demotions),10 when it terminated
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.
9
Section 1129 of the School Code provides:
After fully hearing the charges or complaints and hearing all witnesses
produced by the board [of school directors] 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 [of school directors] vote
in favor of discharge, the professional employe shall be retained and
the complaint shall be dismissed.
24 P.S. § 11-1129.
10
Section 1151 of the School Code provides:
(Footnote continued on next page…)
10
his employment. Imbedded in this argument is whether the School District had the
authority to suspend his pay pending the outcome of termination proceedings and
whether he was afforded proper due process. Petitioner also argues that there was a
lack of substantial evidence to support the conclusion that he committed an act which
warrants dismissal under the Causes for Termination set forth in Section 1122 of the
School Code, 24 P.S. § 11-1122.
III. DISCUSSION
A. Petitioner’s Procedural Arguments
1. Procedure for Termination
First, Petitioner cites Vladimirsky v. School District of Philadelphia, 144
A.3d 986 (Pa. Cmwlth. 2016), and School District of Philadelphia v. Jones, 139 A.3d
358 (Pa. Cmwlth. 2016), to support his assertion that the School District’s
administrative staff suspended his pay and effectively terminated his employment as
of December 10, 2020, without the mandatory prior Board hearing required by the
School Code.
The salary of any district superintendent, assistant district
superintendent or other professional employe in any school district may
be increased at any time during the term for which such person is
employed, whenever the board of school directors of the district deems
it necessary or advisable to do so, but there shall be no demotion of any
professional employe either in salary or in type of position, except as
otherwise provided in this act, without the consent of the employe, or,
if such consent is not received, then such demotion shall be subject to
the right to a hearing before the board of school directors and an appeal
in the same manner as hereinbefore provided in the case of the
dismissal of a professional employe.
24 P.S. § 11-1151.
11
Recently, we rejected this very claim in a case with a very similar fact
pattern. In Prieto v. School District of Philadelphia (Department of Education) (Pa.
Cmwlth., No. 144 C.D. 2021, filed December 28, 2022), appeal denied, (Pa. No. 58
EAL 2023, filed August 22, 2023), Hugo Prieto (Prieto), a tenured teacher, threw a
hardbound textbook at, and engaged in a fist fight with, a student.11 The School District
held an investigatory conference and a second-level conference. The Board approved
a resolution finding that there was sufficient evidence to issue a statement of charges.
The Board then provided Prieto with a written notice that included a statement of
charges, informed him of his right to a hearing, and scheduled a hearing before the
Board. The statement of charges indicated that Prieto was suspended without pay, but
with health benefits, pending his termination proceedings. The Board held a hearing
at which Prieto appeared with his counsel and was given the opportunity to call and
question witnesses, cross-examine the other party’s witnesses, and object to evidence
offered by the opposing party. Slip op. at 2. The hearing officer issued findings of fact
and conclusions of law, recommending that the Board terminate Prieto’s employment.
The Board adopted a resolution terminating Prieto’s employment. Thereafter, Prieto
appealed to the Acting Secretary. A virtual hearing was held before a hearing officer,
after which the Acting Secretary issued a decision and order affirming the School
District’s dismissal of Prieto. Id. at 3.
On appeal, Prieto argued that the Board did not follow the School Code’s
termination procedures and, thus, violated his due process rights. Like Petitioner here,
Prieto relied on Vladimirsky and Jones to argue that he was effectively terminated by
the School District’s administrative staff without a hearing in violation of the School
Code.
11
We note that both Prieto and Petitioner have been represented by the same legal counsel.
12
In Vladimirsky, this Court reversed the termination of a tenured employee
because the letter terminating his employment sent by the School District was not
authorized by the School Reform Commission (SRC)12 but rather was sent by the
School District administrator, which violated Section 1127 of the School Code.
Specifically, the letter in Vladimirsky stated: “This is to advise you that we shall
recommend to the [SRC] that your employment with [the School District] be
terminated effective immediately.” 144 A.3d at 992 (emphasis added). After
receiving the letter, the employee had a hearing before the SRC, and then later the SRC
passed a resolution formally terminating the teacher. We held the School District’s
termination was procedurally defective. We determined the School District erred
because: (1) an administrator sent the teacher a letter recommending that Vladimirsky
be terminated effective immediately; (2) the statement of charges was not issued as the
result of the passage of a resolution by the SRC; and (3) the SRC did not vote by roll
call to determine whether the charges had been sustained. Id. at 994-95.
Similarly, in Jones, this Court reversed the termination of a tenured
employee because the School District failed to follow the procedural requirements for
termination found in the School Code. Additionally, the employee received a letter
stating his “employment with [t]he [School District would] be terminated effective
immediately” and his pay was stopped as of the date of the letter. Jones, 139 A.3d at
367. This Court in Jones faulted the School District for (1) having an administrator
and the SRC chairman send the employee a letter recommending that he be terminated;
(2) issuing a statement of charges but not as the result of the passage of a resolution by
the SRC; and (3) approving a resolution in December 2010 terminating the employee
retroactively to August 2009. Id. at 368.
12
The SRC was replaced by the Board on July 1, 2018.
13
In Prieto, we distinguished Vladimirsky and Jones on the basis that, unlike
in those cases, the Board initiated the termination of Prieto rather than its administrative
staff. We recounted that (1) the Board passed a resolution stating that there was
sufficient evidence to support the recommendation of the School District to terminate
Prieto’s employment; (2) the Board provided Prieto’s written notice and statement of
charges that post-dated the Board’s resolution; and (3) Prieto was not terminated by the
Board until after his hearing before the Board. We further noted that unlike the tenured
employees in Vladimirsky and Jones, Prieto was not terminated effective immediately
and was instead suspended pending a final decision on the recommendation for his
dismissal. Prieto, slip op. at 6.
As in Prieto, Petitioner was not terminated by the School District’s
administrative staff. The October 16, 2020 Second Level Conference Summary sent
by Mr. Chokshi cannot be construed as terminating Petitioner’s employment effective
immediately as he remained suspended from November 6, 2020, until the Board’s final
decision on the recommendation for his dismissal. Rather, as in Prieto, the Board
initiated the termination by passing the following Resolution on December 10, 2020:
RESOLVED, that there is sufficient evidence to support the
recommendation of the Superintendent and/or his designee
to terminate the employment, from the [School District], of
the following professional employee:
1. [Petitioner]
****
and be it,
FURTHER RESOLVED, that the Secretary and [Board]
President are directed to advise these professional employees
of the action item and their right to a hearing.
14
(R.R. at 156a.)
As required by Section 1127 of the School Code, the Board’s January 23,
2021 Notice and Statement of Charges set a date for a timely hearing to determine
whether Petitioner should be terminated. Id. at 168a. The Notice and Statement of
Charges also specifically stated, “[t]his is not a final determination on the status of
your employment . . . .You remain employed but, suspended without pay with health
benefits, pending a final decision on the School District recommendation of dismissal.”
Id. at 168a-69a (emphasis in original). A hearing was then conducted before Hearing
Officer Garcia on March 24, 2021. Id. at 7a-148a. Hearing Officer Garcia issued
findings of fact and conclusions of law on June 24, 2021, recommending that the Board
terminate Petitioner’s employment. The Board then on August 19, 2021, voted, 8-0,
to terminate Petitioner’s employment:
RESOLVED, that [Petitioner] be dismissed from his
employment as Teacher by the School District [], effective
August 19, 2021, and be it
FURTHER RESOLVED, that the Hearing Officer’s
Findings of Fact and Conclusions of Law are adopted as the
reasons for this decision, and be it
FURTHER RESOLVED, that this decision was made in
accordance with the [School Code], as amended, following
an independent review of the record by the individual
members of the [Board].
(R.R. at 4a) (emphasis added).
Section 1127 of the School Code requires that before any professional
employee is dismissed by the board of school directors, the board (1) shall furnish the
employee with a detailed written statement of the charges upon which his or her
proposed dismissal is based and (2) shall conduct a hearing. 24 P.S. § 11-1127.
15
This Court has interpreted Section 1127 as “requir[ing] the [board of
school directors] to resolve to demote the employee and to furnish him with a written
statement of the charges prior to the hearing.” Patchel v. Board of School Directors of
the Wilkinsburg School District, 400 A.2d 229, 232 (Pa. Cmwlth. 1979). As we further
noted in Patchel, the board of school directors only needs to pass a resolution that it
has sufficient evidence to support its belief to demote the professional employee and
then direct the secretary and president of the board of school directors to notify the
professional employee of this fact and advise him of his right to a hearing. Id. at 232
(quoting The Board of School Directors of the Abington School District v. Pittenger,
305 A.2d 382, 387 (Pa. Cmwlth. 1973)).
That is precisely what occurred here. Petitioner was not terminated prior
to his Board hearing. In December of 2020, after hearing the charges against Petitioner,
the Board voted by roll call that there existed sufficient evidence to support a
recommendation of his termination and directed the Board secretary and president to
advise Petitioner of the Resolution and his right to a hearing. In January of 2021, the
president of the Board and the secretary of the Board sent Petitioner a letter containing
a detailed written Notice of Statement of the Charges against him, and a notice of right
to a hearing. Following the hearing before Hearing Officer Garcia, a roll call of the
Board was taken prior to his termination, and the Board voted to terminate Petitioner.
By issuing the Notice of Statement of Charges following passage of a Board
Resolution, and terminating Petitioner after his Board hearing, the Board acted fully in
compliance with the requirements of Section 1127. Accordingly, we agree with the
Acting Secretary that the School District complied with the procedural requirements of
Section 1127 of the School Code.
16
Petitioner next argues that the Board did not vote in accord with Section
1129 of the School Code, which requires that the board of school directors shall by a
two-thirds vote of all members to be recorded by roll call, determine whether such
charges have been sustained. 24 P.S. § 11-1129. He maintains that the Board “blindly
adopted by roll call a [R]esolution that it did not even read” and “took no part in any
aspect to the decision-making at any step of the way.” (Petitioner’s Br. at 46-47.) He
also argues that the Board failed to comply with Section 1129 of the School Code
because its vote on August 19, 2021, was done in a “block vote” to “approve” several
personnel resolutions at once, including the terminations Resolution containing the
nine names on the terminations list, which included a reference to Petitioner’s matter.
(Petitioner’s Br. at 24-25.) He further contends that here, as in Vladimirsky, the Board
“did not record the vote by roll call and determine whether such charges should have
been sustained and whether the evidence substantiate[d] such charges and complaints.”
Id. at 47 (citing Vladimirsky, 144 A.3d at 1004). We must reject Petitioner’s argument
for several reasons.
First, simply because the Board’s vote on multiple cases occurred at once
does not mean that each case was not addressed or considered individually, as
Petitioner advocates. Moreover, Petitioner’s argument that the Board “blindly
adopted” the Resolution is unfounded in the record and simply not supported. In fact,
the August 19, 2021 Resolution specifically states that the Board’s decision to
terminate Petitioner’s employment “was made in accordance with the [School
Code], as amended, following an independent review of the record by the
individual members of the [Board].” (R.R. at 4a) (emphasis added). The Resolution
specifically states that the Board members reviewed the record in Petitioner’s case and
to the extent Petitioner does not believe that happened, he has not produced any
17
evidence. The only evidence in the record is the August 19, 2021 Resolution that states
that the record was reviewed.
Therefore, we find the Acting Secretary did not err in concluding that the
School District complied with the procedural requirements of Section 1127 of the
School Code.
2. Dismissal Without a Hearing
Petitioner next contends that his dismissal was not in “strict compliance”
with the mandatory procedural safeguards set forth in the School Code because, Mr.
Chokshi, a member of the School District’s administrative staff, had no authority to
suspend his pay under the School Code without any knowledge or “action” of the
Board. Petitioner argues that his suspension without pay was “in effect” a termination
of his employment. (Petitioner’s Br. at 26, 39, 41.)
This same argument was raised in Prieto. We specifically rejected the
argument that Prieto was effectively dismissed on May 9, 2019, the date of his
suspension, without a hearing, which he claimed was an “illegal act.” Prieto, slip op.
at 7. We first noted that Prieto was not terminated on May 9, 2019, but rather he was
suspended on that date. We then considered whether Prieto was entitled to a hearing
before the Board before he was suspended. Finding that he was not, we explained:
It is well settled that suspension for cause without a hearing
is permissible where the teacher’s conduct is potentially
harmful to the safety of the children or the teacher is unable
to maintain order in the classroom creating a possibility for
harm. Kaplan v. Philadelphia School District, 130 A.2d 672(Pa. 1957); Board of Education of School District of
Philadelphia v. Kushner, 530 A.2d 541 (Pa. Cmwlth. 1987);
Board of School Directors of the Eastern York School
District v. Fasnacht, 441 A.2d 481 (Pa. Cmwlth. 1982).
18
Here, Prieto lost control when he threw a book at a student
and used physical force on a student. Prieto’s actions
presented a very real harm to the children. This alone justifies
his pre-hearing suspension. Prieto’s use of physical force on
a student would have allowed the [School] District to
suspend him without any hearing or investigatory
conference. However, the [School] District held an
investigatory conference on January 3, 2019, and a second-
level conference on April 15, 2019, both of which were
opportunities for the [School] District to investigate the facts
and for Prieto to hear the allegations against him and
respond. Importantly, Prieto was not suspended until the
conclusion of both conferences on May 9, 2019, by Board
action. Nevertheless, in this case, no pre-hearing was
required for Prieto’s suspension due to his intemperate
conduct.
Prieto, slip op. at 7.
Here, as in Prieto, Petitioner was not terminated on October 16, 2020,
rather he was suspended without pay for cause as of that date.13 A suspension for cause
without any hearing is permissible where the teacher’s conduct is potentially harmful
to the safety of the children or where teachers have been charged with inappropriate
behavior involving students – as in Petitioner’s case. Kaplan; Kushner; Fasnacht.
In this case, Petitioner’s use of extreme physical force on several students
and his inability to maintain classroom order would have allowed the School District
to suspend him without any type of investigatory hearing at all. However, the School
District went above and beyond in providing numerous opportunities for Petitioner to
hear the allegations against him and to respond to them. No further process was
required.
13
It is undisputed that Petitioner continued to be paid for nearly a year without doing work.
19
3. Suspension Without Pay Pending Termination
Lastly, we address Petitioner’s contention that his pay could not be
constitutionally stopped until after the Board’s termination hearing. Relying on School
District of Philadelphia v. Twer, 447 A.2d 222 (Pa. 1982), Petitioner argues that a
suspension of pay is a demotion in status and pay and requires the opportunity for a
full, fair hearing held by the school board and a roll call vote to suspend the teacher.
24 P.S. § 11-1151. He contends there was never any “Board action” to suspend his
employment status and pay, and that no administrative officer has any authority to
suspend a teacher without pay or to hold any type of dismissal hearing.
In Prieto, the teacher asserted, as Petitioner does here, that a suspension
without pay pending dismissal is effectively a termination and a violation of the School
Code. Rejecting the argument, we explained,
Pennsylvania courts have long permitted suspensions
pending dismissal for public employees, including teachers.
See Burger v. Board of School Directors of McGuffey School
District, 839 A.2d 1005 (Pa. 2003) (upholding suspension
without pay of school district superintendent in instance of
serious charges of misconduct); Kaplan, 130 A.2d at 676
(permitting suspension without pay for a teacher pending
dismissal); City of Philadelphia v. Fraternal Order of Police,
Lodge No. 5, 592 A.2d 779, 783 (Pa. Cmwlth. 1991) (holding
that a suspension without pay is not a de facto termination).
In Kaplan, the Supreme Court stated that to “allow
compensation to a teacher who deliberately breaks the moral
law which makes him unfit to teach[ ] would result in an
absurd and unreasonable interpretation of the act.” 130 A.2d
at 680 (internal citations omitted).
****
The Acting Secretary concluded that “[b]ecause [Prieto’s]
conduct was potentially harmful to the safety of children, the
20
[School] District had the right to suspend [Prieto] without
pay pending a final decision on the recommendation to
terminate his employment.”
Prieto, slip op. at 7-8 (citations omitted) (emphasis in original).
Because Prieto’s suspension was a disciplinary action taken by the Board
to keep the School District’s children safe, we concluded that his suspension without
pay was within the constraints of due process.
Here, as in Prieto, Petitioner was accused of serious misconduct stemming
from the December 6, 2019 incident. Addressing whether a suspended teacher is
entitled to salary for the period between suspension and dismissal, the Supreme Court
stated in Kaplan:
In our view it is not an incident of such tenure that a teacher
must be given active employment pending the conclusion of
dismissal proceeding against him, or paid his full salary when
it is determined upon hearing held that cause for removal
existed. . . . The welfare of the children is the paramount
consideration. It follows from the fact that the authorities
are not required to give active employment to a teacher
pending his removal hearing, that, when his removal is
subsequently ordered, he is not entitled to receive salary for
the period during which he has not taught. The law does not
contemplate that public funds shall be expended where no
services are performed, and where not only is there no duty
to accept services tendered, but the welfare of the children
may require that they be dispensed with until a hearing can
be held.
Kaplan, 130 A.2d at 676 (quoting Gentner v. Board of Education of Los Angeles, 25
P.2d 824, 825 (Cal. 1933)) (emphasis in original).
Here, the School District found that Petitioner exhibited a loss of self-
control that was extreme, violent and severe, Petitioner choked a student until he was
unable to breath, and assaulted several other students who freed the student from
21
Petitioner’s grasp. (S.R.R. at 154b-55b.) Petitioner had previously been warned and
suspended for inappropriate physical contact with students in the past. Such facts led
to the conclusion that a very real potential of harm existed. Accordingly, we agree with
the Acting Secretary that a suspension without pay was permissible under established
case law.
4. Lack of Substantial Evidence
Turning next to the merits, Petitioner argues that the Acting Secretary
erred in finding that his conduct constituted intemperance under the School Code. He
insists that he “did not choke the student.” (Petitioner’s Br. at 29.) He maintains that
the facts show that he was assaulted by an unruly student who initiated the melee by
pushing Petitioner and grabbing him by the neck. He avers that other students joined
in and punched him. He submits that all his actions were defensive in nature. We find
Petitioner’s argument to be without merit.
In essence, Petitioner is requesting this Court to reweigh the evidence,
make different findings, and make credibility determinations based upon his version of
the incident. However, such would be in violation of our standard of review as well as
clearly against the weight of the evidence. In a case involving the dismissal of a
professional employee of a school district, as here, the Acting Secretary is “the ultimate
factfinder” with the “power to determine the credibility of witnesses, the weight of their
testimony[,] and the inferences to be drawn therefrom.” Belasco v. Board of Public
Education of the School District of Pittsburgh, 510 A.2d 337, 342 (Pa. 1986) (quoting
Grant v. Board of School Directors of Centennial School District, 403 A.2d 157, 159
(Pa. Cmwlth. 1979)).
Section 1122 of the School Code provides:
22
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 . . .
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 . . . .
24 P.S. § 11-1122(a).
It is the School District’s burden to prove that a professional employee
committed one or more of the statutorily enumerated acts. Foderaro v. School District
of Philadelphia, 531 A.2d 570, 571 (Pa. Cmwlth. 1987). The School District charged
Petitioner with “intemperance, cruelty, willful neglect 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 of directors” under
Section 1122 of the School Code. (S.R.R. at 128b-30b.)
Notably, intemperance is not defined in the School Code. Nevertheless,
this Court has explained that intemperance is a loss of self-control, which may be
inferred from the use of excessive force. McFerren v. Farrell Area School District,
993 A.2d 344 (Pa. Cmwlth. 2010).
The Acting Secretary concluded that the School District met its burden of
proof because there was sufficient support in the record for the allegation that
Petitioner’s actions constituted intemperance and cruelty justifying his termination
under the School Code. (Acting Secretary’s Opinion at 14; R.R. at 274a.) Although
Petitioner continues to reargue the facts surrounding the December 6, 2019 incident,
23
this is of no moment as the Acting Secretary did not find his testimony credible. As
stated by the Acting Secretary, he reviewed the testimony and concluded:
I find [Petitioner] not credible in all respects regarding his
description of the incidents that lead to his dismissal and the
procedure used to terminate his employment. To the extent
that [Petitioner’s] testimony is contradicted by students’
testimony at the hearing, I find the students’ statements
credible.
Id. at 13; R.R. at 273a.
Upon review of the record and the Acting Secretary’s findings, we find
there was ample evidence to support the conclusion that Petitioner’s conduct exhibited
a loss of self-control or excessive use of force. Twenty-two witnesses testified that
Petitioner choked a student, preventing him from breathing properly, and hit other
students. Even the substitute teacher in the classroom stated that Petitioner had a
student in a “neck hold.” That student had injuries around his neck consistent with
being choked. Photographs established that another student had scratches on his neck.
Because the Acting Secretary’s findings of fact are supported by substantial evidence,
we must accept those findings on appeal.
IV. CONCLUSION
For the foregoing reasons, we find the Acting Secretary’s determination
to be based on substantial evidence that supports the necessary factual findings.
Because we do not detect any error of law or constitutional violation in the School
District’s termination proceedings, we affirm the Acting Secretary’s June 16, 2022
Order.
________________________________
PATRICIA A. McCULLOUGH, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Slater, :
Petitioner :
: No. 725 C.D. 2022
v. :
:
The School District of Philadelphia :
(Department of Education), :
Respondent :
ORDER
AND NOW, this 5th day of February, 2024, the Order and Opinion of
the Acting Secretary of Education, Eric Hagerty, dated June 16, 2022, is hereby
AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge