On July 17, 2024, the Pennsylvania Commonwealth Court (the “Court”) reviewed a tenured professional employee termination case previously ruled on by the Secretary of Education (the “Secretary”). The Court reversed the Secretary’s decision, reinstating the tenured professional employee and remanding the matter to the Secretary for a determination of damages. The Court’s decision in Neal Follman, Petitioner v. School District of Philadelphia (Department of Education), Respondent, conveys the importance of complying with the procedural requirements set forth in the School Code.
Facts of the Case
Follman was as a tenured professional employee at Constitution High School during the 2020-2021 school year. Due to the COVID-19 pandemic, the District closed the school for in-person instruction from March 14, 2020 through May 10, 2021.
Planning to safely reopen the schools for in-person instruction, the District required all employees and students to be tested for COVID-19 each week, except those with medical exemptions.
When the District resumed in-person instruction in May of 2021, Follman refused to submit to the weekly COVID-19 testing, and submitted a Testing Refusal/Exemption Request form. The District notified Follman, claiming that there was an “insufficient cause” for his refusal. Follman was placed on unauthorized leave until he would agree to participate in the testing.
On May 19, 2021, the School Principal issued an Unsatisfactory Incident Report against Follman due to his refusal to participate in the testing. The Principal also made the recommendation that Follman be terminated, which resulted in a first-level investigatory conference on May 26, 2021 and a second-level hearing on June 8, 2021 (the “Hearings”).
Subsequent to the Hearings, the District School Board (the “Board”) adopted a resolution, determining that sufficient evidence supported the recommendation to terminate Follman.
The Hearing
The Board arranged for a hearing to be conducted virtually, before a hearing officer of the Board of Education, to which Follman objected. Follman’s objections were overruled, and the hearing was held on February 28, 2022. No member of the Board was present for the hearing.
Follman testified his objections to the hearing officer, which were relayed to the Board. Ultimately, the Board voted to terminate Follman.
Appeal to the Secretary of Education
The Secretary concluded that the District complied with the procedural requirements of the Public School Code of 1949 (the “School Code”) and affirmed its dismissal of Follman.
The Commonwealth Court’s Reversal
Although Follman raised several issues on appeal to the Court, it responded to said issues stating “while Follman presents several issues for our review, we need not examine each of the issues, because the District plainly violated the School Code’s procedural requirements in terminating Follman’s employment.”
The Court reversed the Secretary on the sole issue of whether a hearing officer could conduct a valid hearing to terminate a (1) tenured professional employee where no school board members were present. Relying strictly on the language of Sections 1127 and 1129 of the School Code, “such school directors . . . ”shall conduct a hearing” and “such professional employee will be given an opportunity to be heard . . . before the board of school directors,” the Court held that because “not a single member of the Board was present for [the] termination hearing we must reverse the Secretary’s . . . order discharging [the] professional employee. It has been longstanding how that failure to follow the statutory termination proceedings is fatal and requires reinstatement and restitution of the professional employee.
This case represents a repudiation of a longstanding practice of many school districts to use a hearing officer to create a record and make recommendations to the school board, who after reading this hearing transcripts could vote with impunity to terminate the employee. This practice was perfectly in accord with general principles of administrative law.
The court took pains to point out the limits of its ruling. It did not decide the question of whether the use of a hearing officer violated the School Code or whether a quorum of the board had to be present to have a valid hearing. And, significantly, the court stressed that their decision did not affect hearings involving non-tenured professional employees under Section 514 since that section did not specify a board hearing.
Although the curious quorum of one board member for tenured teacher dismissal hearings is not fully explained in the court’s opinion, it appears to relate to the provision in Section 1128 that any member of the board of directors shall have the power to administer oaths to such witnesses.
Without reference to the possible use of court reporters to record testimony at the hearing, the court poses the logically questionable conclusion: “As a result, if no members of the board of school directors attend the hearing, witnesses cannot be validly sworn in.
Bottom Line for Schools
The use of hearing officers, with or without the presence of board members, is an efficient and lawful way to provide Due Process to school employee’s facing serious discipline or possible termination.
This case creates a critical caveat to the general rule. When the hearing involves a tenured professional under Sections 1127-1129, there must be at least one school board member present at the hearing. Remaining a requirement for a valid hearing process in all employee hearings is the need for board members to record the transcript from a hearing officer conducted hearing before voting to dismiss or discipline any employee.
