Disciplinary action against a protected employee likely occurs on an almost weekly basis in some schools throughout the state. Though there are small differences in procedures, all such proceedings must incorporate certain basic constitutional protections such as Loudermill hearings.
Just recently, the Commonwealth Court had the opportunity to weigh in on the termination of a superintendent, and the various roles a School Board can play in that process.
In Purcell v. Reading School District (July 14, 2017), the Commonwealth Court found that a school board had impermissibly combined the functions of the Board by intermingling the prosecutorial and adjudicatory functions during a termination proceeding.
In Purcell, the superintendent received a Loudermill letter advising her of a pending termination, following several letters of reprimand for various alleged violations under section 1080 of the School Code including mishandling the school budget, breaching her employment contract and failing to investigate the conduct of a school principal. All these changes emanated from the School Board; two board members and the board secretary were witnesses against the Superintendent.
Eventually, a hearing was held before the Board, presided over by a private attorney representing the Board and with the Solicitor representing the School District Administration. The Court observed that the charges originated within the Board, as opposed to originating within the public, the faculty, the parents, or the students. Once the hearing occurred, the same board members who initiated the charges testified about those charges. Once the hearing closed, the same Board members voted to terminate Purcell.
Following the three day hearing in which she contested all the charges, Purcell was found guilty of all the charges by the Board and the School District affirmed the firing 12 days later. On appeal, Purcell took up three arguments, relying primarily on the argument that she was denied due process when she was removed from her public office by a School Board who acted as “complainants, indicators {sic}, prosecutors, witnesses and adjudicators of the charges against her…”
In essence, Purcell argued the results of a single government body playing multiple roles and performing a combination of functions results per se in a process that is neither fair, nor impartial.
To resolve the claim, the Commonwealth Court looked to guidance from a Pennsylvania Supreme Court decision, Lyness, where the court held that the State Board of Medicine had impermissibly commingled functions when three board members who participated in the issuance of the charges also participated in the final adjudication with two members voting to suspend the physician’s license.
Lyness specifically held, “What our Pennsylvania Constitution requires is that if more than one function is reposed in a single administrative entity, a wall of division [must] be constructed which eliminates the threat or appearance of bias”.
The Supreme Court’s standard was not a demonstration of actual bias, but rather the potential for bias or the appearance of non-objectivity. In a follow up case, Gardner, the Supreme Court noted that “a man cannot sit as judge when he is a member of a board which has brought the accusations”. The Purcell Court was unpersuaded that notice of the charges, a right to appeal or that the flexible and “inherent commingling” nature of the Pennsylvania School Code were an adequate substitute of process to protect an employee’s rights.
The Court looked backward as far as 1976 to old case law, Oxford Schools, where the Commonwealth Court previously recognized that a superintendent can testify against a teacher in a disciplinary proceeding or participate in School Board deliberations, but cannot do both against the same employee.
Bottom Line for Schools
School Boards cannot serve as investigator, prosecutor, judge and jury consistent with “Due Process.” “Walls of division” are required, and a protected employee need only prove the appearance of non-objectivity and not a stacked deck in order to prevail.
The take-away is that school boards need to keep to their role as unbiased triers of fact if their decisions are going to withstand due process challenge on appeal.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.
