IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of : Philadelphia, : Petitioner :

:

v. :

: Ellis Jones

, : No. 2150 C.D. 201 3 Respondent :

Ellis Jones, : Petitioner :

v. :

: The School Distric t of : Philadelphia, : No. 2230 C.D. 2013 Respondent : Argued: March 9, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON , Judge HONORABLE P. KEVIN BROBSON, Judge HO NORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY , Judge HONORA B L E MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE COVEY FILED: June 2, 2016

The School District of Philadel phia (District) and Ellis Jones (Jones)
petition this C ourt for rev iew of Acting Secretary of Education Carolyn C.
Dumaresq’s ( Acting Secretary) November 5, 2013 order reinstating Jones to his
position as a teacher and professional employee from August 10, 2009 to December
15, 2010, and sustaining Jones’ employment termin ation as of December 15, 2010.
The District presents six issue s for this Court’s review: (1) w hether the procedures

the District used to terminate Jones ’ employment complied with the Public School2

Code of 1949 (School Code) ; 1 (2) w hether the School Code r equires the School
Reform Commission (SRC) to resolve before the issuance of charges that evidence
existed that, if true, justified employment termination ; (3) w hether the District was required to present evidence that the SRC read or knew about the charge s or the
transcript of the employment termination hearing ; (4) w hether the August 10, 2009
letter imposed a suspension without pay upon Jones ; (5) w hether the SRC would have
violated Jones’ due process rights if it made a pre

- charge determination ; and (6) if the

Court rules that there were procedural defects, whether the proper remedy is remand.

Jones presents six issu es for this Court’s review: (1) w hether the District

failed to comply with the mandatory procedures set for th in the School Code when

th e District terminated Jones ’ employment as a teacher on August 10, 2009 without a
hearing, and then belatedly held a hearing eight months later which also did not
comply with the School Code, and finally resolved to ratify Jones ’ illegal
employment termina tion another seven months later on December 15, 201 0 ; (2)

w hether the failure of the District and the SRC to comply with the procedural
safeguards of the School Code is a Due Process Clause violation of the United States

( U.S. ) Constitution ; (3) w hether th e Acting Secretary erred when , on reconsideration,
she changed Secretary of Education Ronald J. Tomalis ’ (Secretary) decision to
sustain the illegal termination of Jones ’ employment as of December 15, 201 0 , when
there was no legal basis for such partial re versal ; (4) w hether the two year undue
delay of the Acting Secretary in issuing her re considered Opinion create d the
appearance of impropriety and fatally compromise d Jones’ due process rights by
inhibiting the im

partial ity of the tribunal ; (5) w hether the SRC met its burden of proof
to sustain a charge of immorality where the SRC presented no unbiased witness who

said that Jones ’ conduct offended the morals of the comm unity, and whether the SRC

1 Act of March 10, 1949 , P.L. 30, as amended, 24 P.S. §§ 1

- 101

– 27

- 2702.3

Chairman improperly refused to allow Jones ’ witness, Eugene Wo ehr (Woehr)

, a department head at Dobbins Area Vocational Technical School (AVTS)

, to testify
that Jones did nothing which r ose to the level of immorality within the community,

and that the allegations against Jones were, in his words, absurd; and (6) w het her the
Acting Secretary improperly took words and phrases from Jones ’ conversations with

individual students out of context and purposefully reconstructed them in an
inflammatory manner, without proper citation to the record, in order to rationalize the

r eversal of the Secretary’s decision

.

Background

The District hire d Jones as a teacher and professional employee on
September 1, 2002. J ones was a vocational teacher at AVTS for six years until the
electronics program was discontinued at that location

. During the 2008

- 2009 school
year, Jones was assigned as a math teacher at Mastbaum AVTS (Mastbaum)

. On or
about April 30, 2009, Mastbaum’s principal Mary Dean ( Dean ) received a letter

contain ing alleged statements Jones made in his classroom while teac hing. The letter

was signed by the project manager and three corps members of City Year Greater
Philadelphia (City Year) that spent time in Jones’ classroom working with him to
help his students

. City Year members include assistant teachers, tutors and m entors

.

I n the City Year letter, the corps members related specific instances of
Jones speaking unprofessionally to his students, including using foul language and
inappropriate discussion topics such as sex. See Reproduced R ecord (R.R.) at 628a

630a. Upon receiving the City Y ear letter, Dean asked a school police officer to
conduct an investigation by randomly selecting pupils from a list of Jones ’ students
and asking them to write a statement about Jo n es. Seven students prepared written

statements
, five of which confirmed the allegations set forth in the City Year letter
regarding Jones’ speaking improperly to his students.4 After Dean received the statements from Jones ’ students, she conducted
an investigatory conference on June 1, 2009, which inc luded Jones, Philadelphia
Federation of Teachers ( PFT) representative Evette Jones (PFT Jones) , and the

District’ s labor relations assistant Ted Bywalski (Bywalski)

. Jones admitted to
making some of the statements

, but asserted that they were taken out of context in

some c ases and were misinterpreted in others. H e also maintained that he was trying
to create an atmosphere of trust and rapport with his students.

After the June 1, 2009 investigatory conference, Dean prepared an
unsatisfactory incident rep ort ( SEH

- 204) and recommended that Jones ’ employment

with t he District be terminated. Jones sent a letter dated June 15, 2009 to Dean
responding to the SEH

- 204 , wherein, he apologized for his remarks and repeated that
he was trying to build trust and rapp ort with the students

, and that some remarks were

taken out of context and misinterpreted while others were inaccurate and a

m isrepresentation of what happened in the classroom. Jones further stated that since

he received the concerns from Dean and the Ci ty Year members, he immediately
changed his approach and apologized multiple times.

On June 24, 2009, Assistant Regional Superintendent James Douglass
(Douglas s ) held a second

- level conference regarding the S E H

- 204. In attendance

were PFT Jones and Bywa lski. PFT Jones spoke on Jones ’ behalf and stated that
Jones apologized, that the tactic he used to gain respect of the students was not
appropriate, that his comments were taken out of context and that he was dedicated to

his students

. After the June 24 , 2009 meeting, Douglass recommended that Jones be
discharge d from his employment with the District

.

By August 10, 2009 letter

, signed by the District Superintendent and the

SRC Chairman, Jones was notified that the charges against him constituted “ a wi llful

v iolation of or failure to com ply with the School La w s of this Commonwealth, and
other improper conduct such as to constitute cause pursuant to . . . Section [1122] of5

the [ School Code

, 24 P.S. § 11

- 1122 .]” R.R. at 727a. The letter informed Jones t hat
they would recommend to the SRC that his employment with the District be

terminated

, and that he had a right to request a n SRC hearing. I n the same letter,

J ones was told that the District’ s payroll d epartment would be advised to m ake the

necessary sa lary adjustments

. Jones requested a hearing which was held on April 16,

2010 before the SRC Chairman. 2

Thereafter, o n December 15, 2010 , t he SRC resolved to dismiss Jones,
effective August 14, 2009. Jones appealed from the SRC’s decision to the Secret ary

. On September 13, 2011, the Secretary reversed the SRC’ s decision

, reinstated Jones

and ordered payment of any compensation that he lost due to his dismissal

. On
September 28, 2011, the District filed a petition for reconsideration ( Reconsideration

P etition) of the Secretary’ s o rder pursuant to Section 35.241(a) of the General Rules

of Administrative Practice and Procedure, 1 Pa. Code § 35.241(a)

. On October 1 1,

2011, the District appeal ed from the Secretary’ s o rder to this Court

. On October 27,

201 1, the Secretary granted the District’ s Reconsideration Petition and issued a
briefing schedule

.

On December 6 , 2011, this Court denied the District ’s request to stay

this matter pending the Secretary ’ s reconsideration decision because the

Reconsiderati on Petition was a nullity. However, th is Court construed the application
for stay to inc lu d e a request to remand the matter to the Secretary , and rem anded the

case to the Secretary with d irections to consider the District’s Reconsideration

Petition within thirty days

. On December 20, 2011, the Secretary granted the

District’ s Reconsideration Petition. On November 5, 2013

, the Acting Secretary

reinstat ed Jones ’ employment from August 10, 2009 to December 15, 2010, and

2 No other SRC members participated in the hearing.6

terminat ed Jones’ employment as of De cember 15, 2010. The District and Jones
appealed to this Court. 3

Jo nes’ Non

- School Code Arguments 4

Two Year D elay
Jones argues that the two year undue delay of the Acting Secretary in
issuing her reconsidered decision create d the appearance of improprie ty and fatally
compromise d Jones’ due process rights by inhibiting the impartial ity of the tribunal

. Jones cites Lyness v. State Board of M edicine , 605 A.2d 1204 (Pa. 1992 )

, to support
his position. The District rejoins that the delay did not constitute a due process
violation because Jones did not allege harm or prejudice caused by the delay , and

cit es Kinn i ry v. Abington School District

, 673 A.2d 429 (Pa. Cmwlth. 1996).

In Lyness

, the Pennsylvania Supreme Court held: “ Whether or not any

actual bias exi sted as a result of the [b] oard acting as both prosecutor and judge is
inconsequential; the potential for bias and the appearance of non

- objectivity is
sufficient to create a fatal defect under the Pennsylvania Constitution. ” Id. at 1210
(emphasis added)

. The appearance of impropriety in Lyness was specific to the non

objectivity of the board. Here, although there may have been a delay in the decision,
the Acting Secretary was not involved in the SRC hearing or resolution

. See i d.

T hus

, because she did not act as prosecutor and judge , there is not even an

appearance of non

- objectivity . Accordingly, Lyness is inapposite.

3 “This Court’s standard of review of a decision of the Secretary of Education is limited to [the] d etermination 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).

4 We will address Jones’ argume nts first as his issues overlap the District’s issues. The opinion separates Jones’ non

- School Code and School Code arguments for clarification purposes.7 Moreover, t he Kinniry Court held:

We have previously held that a petitioner seeking to establish that his or her due process right s have been violated bears the burden of proving that some harm or prejudice to his or her interests was caused by the delay. Here, [the petitioner] alleges only that the passage of time between hearing and final adjudication was too long; he has not alleg ed that he was harmed or prejudiced in any way as a result of the delay. Although we do not condone unnecessary delay in ad judicating the fate of a person’ s livelihood, without evidence that [the petitioner] suffered any prejudice or harm as a result of t he delay, we cannot conclude that [the petitioner’s] due process rights were violated.

Id. at 433 (citation omitted; emphasis added). Kinniry controls the instant case.

Because Jones has not offered any evidence that he suffered some prejudice or harm

to his interests from the delay

, we cannot conclude that Jones’ due process rights
were violated by said delay.

Immorality

Jones next contends that the SRC failed to meet its burden of proof to
sustain a charge of immorality because the SRC presented no unbiased witness who
said that Jones’ conduct offended the morals of the community, and the SRC

Chairman refused to allow Jones ’ witness, Woehr, to testify that Jones did nothing
which rises to the level of immorality within the community

.

This Court has explained:

Immorality is not defined in the

. . . School Code. Our appellate courts have defined ‘immorality’ as conduct that ‘offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to eleva te.’ Horosko v. Sch [.] Dist [

. ] of Mt. Pleasant [ Twp. ]

, . . . 6 A.2d 866, 868 ([Pa.] 1939). To establish immorality, the school district must prove three elements:8 (1) that the alleged immoral act actually occurred; (2) that the act offends the morals of the community; and (3) that the act sets a bad example for students. The moral standards of the community will not be presumed; they must be proved by substantial evidence. Immoral conduct is something more serious than unprofessional conduct.

McFerren v . Farrell Area Sch

. Dist. , 993 A.2d 344, 353

- 54 (Pa. Cmwlth. 2010)
(citations omitted). Further,

[w]e have previously held that a school board’s finding that a professional employe [e] was guilty of offending the moral standards of the community by his act ions would not be disturbed on appeal if supported by substantial evidence. . .

. We have held, of course, that an administrative decision is supported by substantial evidence when a reasonable man, acting reasonably, would have reached the same decision.

. .

.

Central York Sch

. Dist. v . Ehrhart , 387 A.2d 1006, 1008 (Pa. Cmwlth. 1978).

Here, it is undisputed that the acts occurred. In addition, our careful
review of the record convinces us that “a reasonable man, acting reasonably” could

have reached the decision made by the Acting Secretary , whose findings represent a
fair and supportable amalgam of the whole

. Id. Several students and City Year corp s members testified at the SRC hearing to the numerous incidents of unacceptable

interaction between Jone s and his students. Moreover, City Year corp s members,

who were not students and/or agents of the school, are a fair representative of the
community and they were so offended by Jones’ behavior that they wrote the letter

that initia ted the investigation i nto Jones’ conduct . Finally, this Court cannot fathom
how a teacher repeating and joining in his students’ bad behavior can set a good
example for the students. Accordingly, the Acting Secretary properly determined that
the SRC met its burden of proving that Jones’ conduct offended the moral standards
of the community.9 With respect to Woehr’s testimony , b ecause Jones has not developed this
argument by providing case law or record evidence, we are precluded from
addressing th is issue. See In re Condemnat ion of Land for S

. E

. Cent

. Bus

. Dist

. Redevelopment Area No.1, 946 A.2d 1154, 1156 (Pa. Cmwlth

. 2008) (“ A rguments

not properly developed in a brief will be deemed waived

. ”). Notwithstanding,

Woehr’s testimony cited in Jones’ brief is irrelevant to the imm orality standard , i.e.,
in answer to the question “ [f]rom your experience working with [] Jones and
observing him, do you think he is a clear and present danger to the school children of
Philadelphia?” Woehr responded: “The idea is [a] bsurd! He is just tot ally not. He
always has had the best interests of students at heart, always[

. ]” Jones Br. at 31
(quoting Notes of Testimony April 16, 2010 at 177

- 178; R.R. at 535a

- 536a. ) The
issue is not whether Jones’ conduct is a clear and present danger to his stude nts, but

rather, whether his conduct offends the morals of the community and is a bad
example to his students. Because s ubstantial evidence supports the Acting
Secretary’s finding that Jones’ conduct constitutes immorality, we cannot disturb that
finding. 5

Out of Context

Jones also maintains that the Acting Secretary improperly took words
and phrases from Jones’ conversations with individual students out of context and
purposefully reconstructed them in an inflammatory manner, without proper citation

to the record, in order to rationalize the reversal of the Secretary’s decision.

5 In his brief, Jones attaches a progressive discipline issue to this argument, i.e., Jones’ due

proc ess rights were violated because he was not given progressive discipline. Because Jones did not develop this argument by providing case law or record evidence, we are precluded from addressing th is issue. See In re Condemnation of Land for S.E. Cent. Bus . Dist. Redevelopment
Area No.1

. Notwithstanding, we discern no merit in t his additional argument.10

Specifically, Jones contends that his discussions and joking with students were taken
out of context and improperly reconstructed to demonize him.

First, virtually all of Jones ’ statements contained in the Acting
Secretary’s findings of fact contain accurate record cit ations

, t hose that do not

, refer ence from where they were taken, i.e., the SRC hearing testimony of specific

students. More importantly

, in his brief, Jones does not deny that he made the

statements , but rather explains them and admits to their inappropriateness.
Specifically, Jones ’ counsel rationalizes :

[] Jones made the mistake that many teachers do

— he became too familiar with the students at times. They fe lt a bit too free to joke with [] Jones about such things as Viagra. That is normal in high schools because students see Viagra commercials on television and they sometimes joke with teachers. [] Jones, who is a jovial and friendly personality [sic] , was willing to re spond in a humorous
way. That may be inappropriate but it is not immorality.

Jones Br. at 31 (emphasis added)

. Jones’ statements were not mischaracterized and
supported the Acting Secretary’s decision.

Jones’ School Code Arguments
Prope rty Interest

Before we address Jones’ alleged School Code violations, this Court
acknowledges the well

- established law that a s a tenured professional employee,
Jones has a property interest in continued employment

. Andresky v. W

. Allegheny

Sch

. Dist

. , 43 7 A.2d 1075 (Pa. Cmwlth. 1981). The U.S. Supreme Court has
explained:

Property interests, of course, are not created by the

Constitution. Rather they are created and their dimensions11 are defined by existing rules or understandings that stem from an inde pendent source such as state law

— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Bd

. of Regents of State Colleges v. Roth , 408 U.S. 564, 577 (1972)

. Accordingly,

Jones has a legitimate claim to continued employment secured by state statute

. Specifically, Section 1122 of the School Code provides that the contract of a
professional employee may only be terminated for “immorality, incompetency,
intemperance, cruelty, persistent negligence, menta l derangement .

. . (or) persistent

and wilful violation of . . . school laws . . . . ” 24 P.S. § 11

- 1122. The U.S. Supreme
Court expounded in Cleveland B oar d of Educ ation v. Loudermill , 470 U.S.

532 (1985) :

If a clearer holding is needed, we provide it today. The

point is straightforward: the Due Process Clause provides that certain substantive rights

— life, liberty, and property

— cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are dis tinct. Were the rule otherwise, the Clause would b e reduced to a mere tautology. ‘ Property ’ cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process ‘is conferred , not by legislative gr ace, but by constitutional guarantee

. While the legislature may elect not to confer a property interest in [ public ] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeg uards

. ’ Arnett v. Kennedy

, . . . 416 U.S. [134,] 167 . . . [ ( 1974 ) ] (POWELL, J., concurring in part

a nd concurring in result in part) ; see id

., at 185

. . . (WHITE, J., concurring in part and dissenting in part).

Loudermill , 470 U.S. at 541 (emphasis add ed)

. Thus, although we hold that the
District has met its burden of proving immorality, and immorality is a dischargeable

offense , that ruling does not and cannot negate the District’s obligation to provide

Jones t he due process protection to which he is entitled

. Because “ no dismissal of a12

tenured professional employee can be valid unless the dismissing school district
acts in full compliance with the Code [,] ” it is our duty to review whether the

District has in fact done so in the instant case. West Sh ore Sch. Dist. v. Bowman , 409
A.2d 474, 480 (Pa. Cmwlth. 1979) (emphasis added)

.

School Code

Jones argues that the District failed to comply with the School Code’s
mandatory procedures when the District terminated his employment as a teacher
on August 10 , 2009 without a hearing, and then belatedly held a hearing eight

months later which also did not comply with the School Code, and finally resolved
to ratify Jones ’ illegal employment termination another seven months later on
December 15, 201 0

.

T he Distri ct sent Jones a letter dated August 10, 2009 which stated, in
relevant part:

Dear Mr. Jones:

This is to advise you that we shall recommend to the [SRC] that your employment with [t] he [District] be terminated effective immediately. The [District’ s ] Payro ll Department shall be advised to make the necessary salary adjustments. The charges against you constitute just cause pursuant to the collective bargaining agreement and, in addition, constitute a willful violation of or failure to comply with the School Laws of this Commonwealth, and other improper conduct such as to constitute cause pursuant to

. . . Section [] 1122 of the [ Schoo l Code , 24 P.S. § 11

- 1122 ]

.

. . . . You are entitled to request a hearing before the [SRC]

. If it is your intention to appeal this recommendation , you must contact Francis X. Bielli, Ass istant General Counsel, 440 N. Broad Street, Third Floor, Philadelphia, PA 19130 in writing, within five (5) days of receipt of this letter. Your letter should include a telephone number where y ou can be13 reached. Your hearing, if you requ est one, will be on August 21 @ 2 [:]0 0 [] p [.] m [.] at 440 N. Broad Street, First Floor, Philadelphia, PA 19130.

Failure to request a he aring in writing within the time stated will be deem ed a waiver of any and al l rights you may have to an appeal.

In the alternative, you may utilize the grievance procedure by requesting your union to follow the collective bargaining agreement grievance procedure applicable to you.

You may elect one or the other of these two appe al procedures, but not both.

R.R. at 727a

- 728a. Thereafter, Jones requested an SRC hearing which occurred on
April 1 6 , 2010. Jones’ subsequent discharge did not occur until the SRC’s December
15, 2010 resolution. Although the resolution stated that Jone s’ employment

termination was effective August 14, 2009, the Acting Secretary’s November 5, 2013

order reinstat ed Jones to his position as a professional employee from August 10,

2009 to December 15, 2010.

Section 1127 of the School Code provides:

Befo re any professional employe [ e ] 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 [e] 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 [e] setting forth the time and place when and where such professional employe [ e ] 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 shal l 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 [e] and his or14 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) . This C ourt has interpreted the above section as “requir [ing] the [school b]oard to resolve to demote the employee and to furnish him
with a written statement of the charges prior to the hearing

. ” Patchel v. Wilk i nsburg

Sch

. Dist

. , 400 A.2d 229 , 232 (Pa. Cmwlth. 1979) (emphasis added).

More importantly,

. . . [ t] he [school b]oard only need[s] to . . . pass[] a resolution that it ha [s] sufficient evidence to support its belief, to demote . . . [ the professional employee ] by some given date, and therein direct t he Secretary and President of the [school b]oard to serve notice upon [the professional employee] of this fact and to advise him of his right to a hearing.

Id. (quoting Abington Sch

. Dis t. v. Pittenger , 305 A.2d 382 , 387 (Pa. Cmwlth. 1973) )

.

In the inst ant case , other than providing a statement of charges, the
District did not comply with the mandates provided in Section 1127 of the School

Code

. Specifically, t he SRC resolution did not occur until December 15, 201 0

, and

the notice was not attest ed by th e SRC Secretary

. P ursuant to the SRC resolution, the

effective date of Jones’ employment termination was August 14, 2009. Clearly, the
April 16, 2010 SRC hearing and the December 15, 201 0 resolution do not pre

- date
Jones’ employment termination. “In no case can the effective date of the dismissal be

earlier than the date of the school board’s resolution.” Neshaminy Sch. Dist. v.
Neshaminy Fed’n of Teachers , 84 A.3d 391, 397 (Pa. Cmwlth. 2014). Accordingly,
the District failed to comply with the mandator y procedures set forth in the School

Code

.15 Due Process

Jones further asserts that the failure of the District and the SRC to
comply with the procedural safeguards of the School Code is a Due Process Clause

violation of the U.S. Constitution. The Dis trict rejoins that Jones’ employment was

not terminated until after an SRC hearing “and a public vote to terminate on
December 15, 2010.” 6 District Br. at 20. In addition, t he District contends that the
August 10, 2009 letter merely suspended Jones witho ut pay pending his potential
discharge. District Br. at 30.

Pennsylvania courts have construed Section 1127 [of the School Code] to mean that a tenured teacher can only be dismissed by a school district’ s board, not its administrative staff. Further, th e statutory procedures for dismissal must be strictly followed and . . . no material deviation therefrom is permissible. A deviation from these procedures constitutes a denial of due process.

Neshaminy Sch. Dist. , 84 A.3d at 397 (citations and quotation marks omitted;
emphasis added). Here, on August 10, 2009, the District communicated to Jones that
it “shall recommend to the [SRC] that your employment with [t]he [District] be
terminated effective immediately” and effective immediately the District cease d his

pay

. R.R. at 727a. Contrary to the District’s argument, the letter does not lend itself
to informing Jones that his employment with the District has been suspended . If that

is what the District intended then it could have so communicated. Rather, the
unambiguous words reveal finality and the District’s intent to immediately discharge

Jones

. Moreover, the District’s actions immediately after issuance of the letter in
stopping Jones’ pay with no statement beyond the words that the District

recommen ds his immediate discharge further evidences a termination, not a

6 The SRC hearing was conducted by one member of the SRC on April 16, 2010, and the “public vote” was the SRC resolution that was presented f or formal action by the 4 attending members of the S RC on December 15, 2010. District Br. at 20.16

suspension. “[A]ssuming arguendo that there was ambiguity, doubtful language is
construed most strongly against the drafter thereof.” Rusiski v. Pribonic , 515 A.2d

507, 510 (Pa. 1986)

. Th us, the letter cannot be construed as suspending Jones’
employment.

The District admits in its brief that “[u]nder Pennsylvania law, school
administrators do not have authority to terminate tenured p rofessional employees. In

the [ District ] , only the SRC has that authority. Just as plainly, school administration

may suspend a tenured professional employee without pay pending discharge.”

District Br. at 30. This acknowledgment is at complete odds with the District’s initial

argument before the Secre tary that the letter was the result of SRC action and not

administrative, and appears to be a disingenuous attempt to justify the District’s non

compliance with the School Code.

The Acting Secretary subsequently revis ed the termination date to

December 15, 2010, the date of the SRC resolution

, and ordered backpay for the time

in between. However, a retroactive order does not cure the defect. 7 As explained
above, the District did not comply with the School Code. “A deviation from these
procedures const itutes a denial of due process.” Neshaminy Sch. Dist. , 84 A.3d at

397. Accordingly, the District violated Jones’ due process rights under the U.S.

Constitution.

Partial Reversal

Jones next contends that the Acting Secretary erred when the decision of

t he Secretary, upon her reconsideration, was changed to sustain the illegal

7 Our conclusion that t he retroactive order changing the date of Jones’ employment
termination to the date of the SRC resolution cannot cure the District’s failure to a dhere to the mandatory statutory provisions is discussed more fully below.17

termination of Jones’ employment as of December 15, 201 0 , when there was no legal
basis for such partial reversal

.

In In re Swink,

. . . 200 A. 200 ( [Pa. Super.] 1938)

, a school board voted to dismiss a teacher for immorality. Thereafter, it sent her a notice stating that she could attend a hearing to convince the board of the reasons she should be reinstated. The Superior Court held that dismissing the teacher without a prior he aring violated the statutory procedure in effect at that time. [ FN ] 5 These deviations from the statutory procedures constituted ‘ fatal defects, ’ making the school board’s dismissal an ‘ illegal ’ act. Id. at 203. Accordingly, the Superior Court reversed th e school board’ s decision.

[ FN ] 5. The statute then in effect was Section 1205 of the Public School Code, Act of May 18, 1911, P.L. 309, as amended by Section 2 of the Teachers’ Tenure Act, Act of April 6, 1937, P.L. 213, formerly 24 P.S. § 1126, repealed by Section 2701 of the Public School Code of 1949. It provided as follows:

(d) Before any professional employe [e] is dismissed ... the secretary of the school district shall furnish such professional employe [e] with a detailed written statement of the c harges upon which his or her dismissal ... is based, together with a written notice signed by the president and attested by the secretary of the board of school directors of a time and place when and where such professional employe [e] will be given an oppo rtunity to be heard either in person or by counsel, or both, before the board of school directors.

* * *

(f) After fully hearing the charges or complaints and hearing all witnesses produced by the board and the person against whom the charges are pendin g, 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 or not such charges or complaints have been sustained a nd18 whether the evidence substantiates such charges and complaints, and in accordance with such determination shall discharge ... such professional employe [e] or shall dismiss the complaint.

24 P.S. § 1126(d), (f). Similar provisions are now found in Sect ions 1127 and 1129 of the [ School Code ]

. In short, a school board that does not strictly follow the statutory procedures for a teacher dismissal violates due
process. Further, a ‘fatal defect’ in the procedures followed by the school board will render i ts teacher dismissal an illegal act

. In re Swink, 200 A. at 203.

Neshaminy Sch. Dist. , 84 A.3d at 397

- 98 (citation omitted; emphasis added). In the

i n stant case, the Secretary opined in his decision:

There is no evidence in the record that the SRC, othe r than the Chairman, had seen or reviewed the charges prior to the hearing on April 16, 2010. There is no evidence that, prior
to the hearing on April 16, 2010, the SRC had resolved to dismiss [ ] Jones and had directed the Chairman and the Secretary of th e SRC to serve notice on [ ] Jones of this fact and to provide him the right to a hearing

. In addition, the hearing was held before the Chai r man of the SRC and not the entire SRC; thus, not only is there no evidence that the SRC reviewed the charges prior to the hearing and resolved to dismiss [ ] Jones, there is no evidence that the SRC even knew about the charges or the hearing. The only evidence of the SRC’ s knowledge of anything regarding [ ] Jones and his dismissal was when the SRC resolved on December 15, 2010, to dismiss him [] effective August 14, 2009.

I n the August 10, 2009 letter, the SRC Chairman and the Superintendent of the District advised [ ] Jones that they would recommend to the SRC that he be dismissed from his employment with the District im mediately. In addition, the letter stated that the payroll depar tment would be advised to make the necessary salary adjustments. The record evidences that [ ] Jones was paid for his employment with the District through the 2008

- 2009 school year but

was no longer employed by the District beyond that school year. Thus, [ ] Jones was dismissed as of, at least, August 10, 2009, without any action by the SRC. The19 dismissal was a dismissal by administrative action, not by action of the SRC. The vote by the SRC on December 15, 2010 was a ratification of [ ] Jones’ dismissal by the administration, which is not permitted. See [] Pitt [ e ] nger , 305 A.2d at 386.

Secretary September 13, 2011 Dec. at 9

- 10 (emphasis added)

. In rel i anc e on the
above, the Secretary conclude d:

Based on the dismissal procedures required under the School Code and the relevant case law interpreting those procedures, I have no choice but to find that [ ] Jones ’ dismissal was in violation of the School Code. Notwithstanding the consequences, I do not have discretion
to ignore the District’ s failure to comply with the applicable provisions of the School Code and relevant case law

. Therefore, I am obligated to find that the District’s dismissal of [ ] Jones is void and that he shall be reinstated
to his position with the District as a professional employee. In addition, [ ] Jones sha ll be reimbursed any amount of compensation he lost due to his improper dismissal.

Id. at 12 (emphasis added). This Court is constrained to agree on the well

- established

constitutional grounds of due process . The retroactive order changing the date of

Jones’ employment termination to the date of the SR C resolution cannot cure the
District’s failure to adhere to the mandatory statutory provisions because the SRC

resolved to dismiss Jones on December 15, 2010, a date after his hearing and the

same date the Acting Secretary ruled was the effective date of Jones’ employment

termination. Accordingly, due to the District’s violation of Section 1127 of the

School Code, and its consequential denial of Jones ’ due process rights, the Acting
Secretary erred in her partial reversal of the Secretary’s decision.

District’s Argument s

After disposing of Jones’ arguments, three of the District’s issues remain

which are summarized as fo llows: (1) whether the Acting Secretary misinterpreted20

Patchel and Pittenger when she determined that a pre

- charge resolution in favor of
dismissal was required prior to holding Jones’ hearing ; (2) whether the SRC would

have violated J ones’ due process rig hts if it made a pre

- charge determination; and ( 3)
if the Court finds that there were procedural defects

, whether the proper remedy is

remand.

Patchel and Pittenger

The District argues that the Acting Secretary misinterpreted Patchel and

Pittenger when s he determined that a pre

- charge resolution in favor of dismissal was
required prior to holding Jones’ hearing.

The Patchel Court explained that in Pittenger , the Court

held that in the case of a professional employee who had been demoted without a hear ing, the later decision of the [school b] oard to ratify the improper administrative action was void. The facts here, however, are easily distinguishable. In [ Pittenger ] , the hearing was not scheduled by the [school b] oard until months after the employee’ s demand for it, and the [school b] oard never saw the charges until the hearing began. There was a clear violation of Section 1127 of the School Code, 24 P.S. § 11

- 1127, which requires the [ school b ] oard to resolve to demote the employee and to furnish him with a written statement of the charges prior to the hearing

. More importantly, in [ Pittenger ] we explicitly stated the manner in which the school board could have cured the defects in its procedure:

The [school b] oard only needed to have passed a resolut ion that it had sufficient evidence to support its belief, to demote

. . . [ the professional employee ] by some given date, and therein direct the Secretary and President of the [school b] oard to serve notice
upon [the professional employee] of this fact an d to advise him of his right to a hearing.21

Patchel , 400 A.2d at 231

- 32 (bold emphasis added) (quoting Pittenger , 305 A.2d at
387). The District asserts that “[t]hose cases do not require the SRC or any other

school board in the first instance to resolve, before the issuance of charges, that
evidence exists that supports charges that, if true, would support dismissal.” District
Br. at 25. Rather, the District maintains that “the Court simply explained how a
school board might remedy a procedurally defect ive demotion, which occurs when

the administration of a school district

- as opposed to the school board

- ‘had already
accomplished the demotion’ before the board had any notice or knowledge.” Id.

The District cites Clark v. Colonial School Dist rict

, 387 A.2d 1027 (Pa.

Cmwlth. 1978) , to support its position. The Clark Court held that “[t] he School Code
clearly does not require formal school board action authorizing the initiation of
charges and the sending of notice of hearing. ” Id. at 1029. Notwith standing, after

Clark , this Court expressly interpreted otherwise in Patchel

. The Patchel Court
expressly opined that it “ was [] clear . . . Section 1127 of the School Code . . .
requires the [school b]oard to resolve to demote the employee and to furnish him with
a written statement of the charges prior to the hearing. ” Patchel , 400 A.2d at 232.

Moreover, Section 1127 of the School Code specifically requires that

[b] efore any professional employe [e] 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 [e] 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 [ e ] setting forth the time and place when and where such professional employe [e] will be given a n 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.22

24 P.S. § 11

- 1127 (emphasis added). Here, the August 10, 2009 letter was signed by

the District Superintendent and the SRC Chairman , but not attested by the SRC
Secretary. Thus, even if a resolution was not expressly required under Section 1127

of the School Code, the SRC Secretary was required to attest the written notification,

and he did not do so in the instant case

. 8 As stated by the Acting Secretary in her
opinion, “because the SRC did not issue a resolution stating that it found the charges
sufficient to support termination if proved at a hearing, there is no evidence that the

SRC ever revie wed the charges prior to the hearing that was held in April
2010[,]” as required by this Court’s interpretation of the statute. Acting Secretary

November 5, 2013 Dec. at 15 (emphasis added). Accordingly, we discern no error in
the Acting Secretary’s inter pretation of P atchel and Pittenger.

Pre

- Charge Determination

The District also asserts that it would have violated Jones’ due process
rights if it in fact had made a pre

- charge determination . Specifically, the District cites

Lyness to support its conte ntion that if the SRC had resolved to dismiss Jones prior to
Jones’ notice of the charges it would have been mixing prosecutorial and adjudicatory
functions, thus, at least by the appearance of impropriety, violating Jones’ due
process rights.

8 The District argues that the District Superintendent had the powers of the SRC Secretary at the time of the August 10, 2009 letter. It explained that “[a]lthough it [was] commo n knowledge that [the District Superintendent] was the Chief Executive Officer of the District during the time relevant to [Jones’] dismissal, it [was] not common knowledge that she also had the power and authority of the Secretary/Treasurer of the SRC.” Acting Secretary November 5, 2013 Dec. at 12.
T he District ’s Petition for Reconsideration referred to attachments to prove said authority ; however, the attachments were incomplete , i.e., the attachment contained a proposed resolution to appoint Arlene C. Ackerman as the District’s Chief Executive Officer with the powers and authority of the District’s Superintendent and the SRC’s Secretary/Treasurer, but no documentation was included evidencing that the resolution was voted thereon and approved

. Id.23 In Harmon v . Mifflin County Sch ool Dis trict , 651 A.2d 681, 686 (Pa.

Cmwlth. 1994)

, rev’d on other grounds

, 713 A.2d 620 (Pa. 1998), this Court
expressly held that “[e]ven though [the School Code] requires a school board to
terminate an employee and hear the challenge to that termination, Lyness simply
doesn’t apply because the ‘interests’ involved in the employment relationships are
totally different than an independent agency actions regulating individuals.” 9

Harmon , 651 A.2d at 686. The Harmon Court further explai ned:

We have recognized this distinction and determined that the same type of due process requirements do not apply to school boards as they do to other independent administrative agencies. In Covert v. Bensalem Township School District, . . . 522 A.2d 1 29 ( [Pa. Cmwlth.] 1987)

, this [C] ourt held that the inherent potential for bias on the part of school boards has long been recognized. We continued:

The making of the charges presupposes that the members of the board had some knowledge of the facts upon which the charges were based. Unless they had an opinion that the charges, if sustained, would warrant dismissal, they should never have been made

. . . . We do not think that anything more was required of the members of the board than that they could he ar and determine the charges against appellant on the evidence given before them, uninfluenced by other previous impressions.

[ Covert ] , 522 A.2d at 131 (quoting Lomas v. [ Bd. ] of [ Sch

. ] Directors of [ Nw

. ] Lehigh [ Sch

. ] [ Dist

. ]

, . . . 444 A.2d 1319, 1325 ( [Pa. Cmwlth.] 1982)).

Harmon , 651 A.2d at 686

- 8 7

. Accordingly, there is no merit to this argument.

9 Ly ness involved the State Board of Medicine.24 Remand
Finally, the District contends that if this Court finds that there is a
procedural defect

, the proper remedy is remand not reinstatement and comp ensation

. Specifically, the D istrict contends that: “ Here, and only here, is where [ Pitte nger ] is

relevant, because the Court stated in that case that a school board might remedy a
procedural defect by resolving that evidence existed as of a certain date that justified

termination. ” District B r. at 39. The District misconstrues the holding in Pitte nger.

T he Pitte nger Court held:

It would have been a simple matter for the [ school b ] oard to have cured the defects at the outset

. The [school b] oard only n eeded to have passed a resolution that it had sufficient evidence to support its belief, to demote [the petitioner] by some given date, and therein direct the Secretary and President of the [school b] oard to serve notice
upon [the petitioner] of this fact and to advise him of his right to a hearing. At this point, [ the petitioner ] would have had a decision to make : whether to request the hearing or consent to the demotion. The [ school b ] oard did not follow this procedure . Instead, it permitted its adminis trative staff to demote [ the petitioner ] without [ school b ] oard action , and only after [the petitioner’s] demand for a hearing, set the wheels in motion for a hearing several months later. As alluded to hereinbefore, the [school b] oard did not know the co ntents of the charges which had been promulgated by the Principal until the first day of hearing. This was improper

. Id. at 387 (emphasis added). Clearly, the Court is referring to what could have been

done prior to the hearing , not after the fact as t he District purports.

This Court in Neshaminy School District explained:

[T] he statutory procedures for dismissal ‘must be strictly followed and .

. . no material deviation therefrom is permissible.’ [ Dep ’ t ] of [ Educ

. ] v. Oxford Area [ Sch

. ] [ Dist

. ]

, . . . 356 A.2d 857, 860 ( [ Pa. Cmwlth. ] 1976). A25 deviation from these procedures constitutes a denial of due
process. Id . at 860

- 61.

In Oxford , the district superintendent recommended that a teacher who had been arrested for shoplifting be dismissed for imm orality. The superintendent testified as a witness at the school board hearing and participated in the school board’s post

- hearing deliberations. The school board voted to dismiss the teacher. This Court held that the School Code’ s requirement of ‘impar tial and unbiased’ consideration had been violated, although inadvertently, and remanded to the school board for a new hearing. Id . at 861.

In In re Swink

, . . . 200 A. 200 ( [ Pa. Super. ] 1938), a school board voted to dismiss a teacher for immorality. Th ereafter, it sent her a notice stating that she could attend a hearing to convince the board of the reasons she should be reinstated. The Superior Court held that dismissing the teacher without a prior hearing violated the statutory procedure in effect at that time. These deviations from the statutory procedures constituted ‘ fatal de fects ,’ making the school board’ s dismissal an ‘illegal’ act. Id . at 203. Accordingly, the Superior Court reversed the school board’ s decision.

Neshaminy Sch. Dist.

, 84 A.3d at 397

- 98 ( footnote omitted; emphasis added)

. This

distinction between the violations in Oxford and Swink demonstrates the proper
manner of disposition in such circumstances. In Oxford , the due process violation

occurred when the b oard failed to provide an impartial and unbias ed hearing and thus,

the violation could be cured with a remand for a new hearing

. In contrast, the
Superior Court in Swink found that the school b oard’s action i n employer dismiss ing

a tenured teacher without follow ing the statutor y procedure for employment

termination constituted a fatal defect

. The facts herein are similar to those of Swink

. Notably , the Swink Court stated:

Our appellate courts have frequently held that a valid and enforceable contract between a teacher and a sc hool district could be created only by compliance with the strict requirements of the statute. Likewise, in dismissing a teacher, an observance of the procedure prescribed is26 mandatory. The board of school directors cannot be relieved of the consequences of its failure to observe the essential statutory requirements in dismissing a teacher any more than a teacher can be relieved from showing the vital and essential elements required to make a valid and enforceable contract between the teacher and the scho ol district when such teacher seeks to enforce such contractual obligation. The procedure which the board adopted was irregular and fatally defective

. There was no required statement of charges before dismissal, no proper notice of hearing before dismiss al, and no recording on the minutes how each member voted after such hearing. The action of the board , and the affirmance of such action by the court below, must be reversed for want of compliance with the provisions

.

Id . at 204 (emphasis added)

. Failure to follow the statutory mandatory termination
procedures is fatal and requires reversal of the District’s action as opposed to
remanding (as in Oxford which involved the denial of an impartial and unbiased
hearing ). Here, the s pecific procedural defects are as follows. P ursuant to well

established case law, the District was required to pass a resolution that it had
sufficient evidence to support Jones’ employment termination prior to sending him a
notice of charges and intent to terminate his employment. The District did not do so.
Further, pursuant to the School Code, Jones’ notice was required to be attest ed by the
SRC Secretary. It was not.

Most importantly , the date of Jones’ notice of charges and hearing date
was actually the effective date of Jones’ employment termination because it expressly

stated: “ This is to advise you that we shall recommend to the [SRC] that your
employment with [ t ] he [ District ] be terminated effective immediately

. The

[ District’s ] Payroll Department shall be adv ised to make the necessary salary
adjustments

. ” R.R. at 727a (emphasis added). The fact that his pay was stopped as
of that date makes it undisputable that Jones’ employment was terminated as of that

date which is directly contrary to the School Code’s r equirement that a hearing pre

-27

date the employment termination. Indeed, the required resolution took place after the
hearing. As the Swink Court held: dismissing a teacher without a prior hearing
violated the statutory procedure in effect at that time. T hese deviations from the
statutory procedures constitute ‘ fatal defects ,’ making the school board’s dismissal

an ‘ illegal ’ act

. Id. at 203 (emphasis added). As in Swink , we find the District ’s

failure to follow Section 112 7 of the School Code prior to te rminating J ones’
employment a fatal defect mandating reversal

.

When the District discharges a professional employee without full
compliance with the School Code

, “ the employee is entitled to reinstatement

. ” West

Shore Sch. Dist. , 409 A.2d at 480 (emphasi s added)

. “We have repeatedly held that
no dismissal of a tenured professional employee can be valid unless the dismissing
school district acts in full compliance with the Code.” Id. “The only conclusion we
can reach on these facts is that [Jones’] dism issal was a nullity and that [ ] he must be
treated as if h[is] employment were never terminated.” Id. Thus , Jones is entitled to
be reinstated to his former position with back pay , minus his obligation to mitigate
damages, until the District properly term inates his employment in conformity with

the procedural due process requirements set forth in the School Code

.

Due to the District’s violation of Section 1127 of the School Code,
and its consequential denial of Jones’ due process rights, th is Court is dut y bound to reverse the Acting Secretary’s November 5, 2013 order discharging

Jones as of December 15, 2010 , and sustain the Secretary’s September 13, 2011 order
reinstating Jones . Accordingly, Jones is reinstated to his position as a professional
employee until the District properly terminates his employment in accordance

with the School Code and shall be entitled to the amount of compensation he is due

as a result of his dismissal.28 Damages
With respect to J ones’ damages , the law is well established tha t “ [a]
school teacher is not a public officer

, but is an employe [e] of the school district, and
the ordinary rules relating to damages for breach of contract of employment apply. ”

Coble v. Sch

. Dist. of Metal T w p. , 116 A.2d 113 , 115 (Pa. Super. 1955) (cit ation
omitted). “ Where a teacher is wrongfully discharged, he is to be compensated for
loss of salary during such period, but there is no requirement that the school district
pay the compensation provided in the contract regardless of set

- off or the amoun t of
damages the employe [e] has suffered. ” Id.

[W] e find no apparent reason why the ordinary rules relating to damages for breach of contract of employment should not be applied. As stated in 47 Am.Jur., Schools, § 145, p. 402 : . . . [I] n an action fo r breach of contract by one employed as a teacher, the measure of damages is the wages which were to be paid, less any sum actually earned, or which might have been earned, by the [teacher] by the exercise of reasonable diligence in seeking other similar

e mployment.

Id. at 116. More recently this Court held in Merrell v. Chartiers Valley Sch ool

Dist rict , 51 A.3d 286 (Pa. Cmwlth. 2012) :

A plaintiff has a duty to mitigate damages. Circle Bolt & Nut Co. v. Pa. Human Relations Comm’n

, 954 A.2d 1265 (Pa. Cm wlth. 2008). The duty to mitigate damages, however, ‘is not onerous and does not require success.’ Id. at 1270. All that is required to mitigate damages is to make ‘an honest, good

- faith effort.’ Id

. at 1271. The employer has the burden of proving tha t 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
oppo rtunities for a promotion, compensation and29 responsibilities. Whether the plaintiff properly mitigated damages is a factual determination to be made by the fact

finder. [ 10 ]

Merrell , 51 A.3d at 298 (citations omitted). Accordingly, we remand this matter to
the Secretary of Education to determine the amount of compensation due Jones.

Conclusion

This Court does not condone Jones’ conduct

. However, we resist the
urge to permit “ bad facts [ to ] make bad law .” Doggett v. United States , 505 U.S.

647, 659 (1992 ) (Thomas, J., dissenting) (emphasis added) ; Berg v. Nationwide Mut.

Ins. Co. , 6 A.3d 1002, 1017 n.3 (Pa. 2010) (Baer, J., concurring and dissenting)
(emphasis added) ; see also Commonwealth v. States , 938 A.2d 1016, 1028 (Pa. 2007)
(Castille, J., dissentin g). Given our conclusion that the District failed to adhere to the
mandatory provisions of the School Code when it terminated Jones’ employment, and
the precedential effect of this Court’s decision on subsequent employment actions
involving tenured profes sional employees by this and other school districts, we are
constrained to reverse the Acting Secretary’s d ecision.

The Legislature enacted the School Code and provided “explicit
procedural safeguards” that it required school boards to use when terminatin g the
employment of a tenured professional. Neshaminy Fed’n v. Nesh a miny Sch

. Dist.

, 462 A.2d 629

, 636 (Pa. 1983)

. Our Supreme Court clearly and unambiguously stated

that there mus t be full compliance with the provisions of the School Code in order to

ef fectuate employment termination of a tenured professional. Were we to affirm the
Acting Secretary’s order, allowing her review to cure the District’s non

- compliance

with the School Code, we would eviscerate the very statutory protections that the
Legislat ure afforded tenured professionals, thereby contravening legislative intent. In

10 “Jones has, since his dismissal, mitigated his damages by working in a charter school in Philadelphia, and for the Upper Darby public school district.” Jones Br. at 29 n.9.30

essence, we would be amending the statute. This we may not do. See Mohamed v.
Dep’t of Transp. Bureau of Motor Vehicles , 40 A.3d 1186 (Pa. 2012). W e may not,

and will not e ncourage school boards and other government entities whose decisions
are subject to review to disregard their mandatory statutory duties based on the belief

that their malfeasance will be cured

.

For all of the above reasons, the Acting Secretary’s order is reversed and

the matter is remanded to the Secretary of Education with the direction to reinstate
Jones and to calculate the compensation which he is due taking into consideration
Jones’ obligations to mitigate his damages

.

________________________ ___ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of : Philadelphia, : Petitioner :

:

v. :

: Ellis Jones, : No. 2150 C.D. 2013 Respondent :

Ellis Jones, : Petitioner :

v. :

: The School District of : Philadelphia, : No. 2230 C.D. 2013 Respondent :

O R D E R

AND NOW, this 2 nd day of June , 201 6

, the Acting Secretary of
Education’s November 5, 2013 order is REVERSED

. Ellis Jones is hereby reinstated
to his position as a professional employee of the School District of Philadelphia and

t he matter is REMANDED to the Secretary of Education for further pr oceedings

consistent with this O pinion

.

Jurisdiction is relinquished

.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of : Philadelphia, : Petitioner :

:

v. : No. 2150 C.D. 2013

: Ellis Jones, : Respondent :

Ellis Jones, : Petitioner :

:

v. : No. 2230 C.D. 2013

: Argued : March 9, 2016 The School District of : Philadelphia, : Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Ju dge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge

CONCURRING OPINION BY JUDGE SIMPSON FILED: June 2, 2016

I concur in the result reached by the Majority. I write separately to
reference an issue not fully developed by the parties: the consequences of de novo
review by the Secretary of Education. An argument could be made that de novo
review by the Secretary could cure certain procedural problems which occurred at
an earlier stage of teacher termination proceedings. However, the School District
does not make that argument. Accordingly, I need not address it in this case.RES

- 2

Hopefully, the result here will clar ify procedures to be followed in the future in the
Philadelphia School District when a professional employee chooses a School Code
remedy over a collective bargaining agreement remedy.

ROBERT SIMPSON, Judge

Judges Cohn Jubelirer and McCullough join in this concurring opinion.