IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Kinavey, :

: No. 1081 C.D. 2015

Appellant : Argued: April 11, 2016

:

v. :

:

West Jefferson Hills School District :

and Board of Directors of :

West Jefferson Hills School District :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 15, 2016

Terry Kinavey (Kinavey) appeals from an order of the Court of 

Common Pleas of Allegheny County (trial court) that denied her statutory appeal 

from a determination of the Board of Directors (Board) of West Jefferson School 

District (District) to remove her from the position of superintendent. The trial 

court determined there was no impermissible commingling conduct between 

prosecutorial and adjudicatory functions and that substantial evidence supported 

the Board’s determination that Kinavey failed to comport herself consistent with 

the requirements of the position of superintendent. Kinavey contends the trial 

court erred by: concluding that there was no impermissible commingling; not 

making findings of fact in support of this conclusion; and, upholding the Board’s 

dismissal of her. Upon review, we affirm. 
2

I. Background

Kinavey held the position of superintendent of the District for a fiveyear term, which she began in July 2008. On November 17, 2009, the Board 

suspended Kinavey without pay. By letter dated November 20, 2009, the District’s 

Solicitor, Ira Weiss (Solicitor), sent Kinavey a formal statement of charges and 

notice of hearing pursuant to Section 1080 of the Public School Code of 1949

(School Code).1 The statement of charges contained 15 enumerated charges for 

conduct the Board deemed “incompetence, neglect of duty, intemperance, and 

immorality” in violation the School Code. Reproduced Record (R.R.) at 14a. The 

Board cited a lack of candor and dishonesty to the Board, as well as a pattern of 

plagiarism in carrying out her duties as superintendent. 

The Board hired Michael Palumbo to serve as both special counsel to 

the Board and hearing officer (Hearing Officer) for the hearing. Solicitor’s office 

prosecuted the charges. Because Solicitor was a witness in the case, his colleague,

Al Lubelski, acted as lead prosecutor. Midway through the hearing, the Board 

replaced Lubelski with an outside law firm. Certified Record (C.R.), Vol. IV, at 

991. 

Hearing Officer held 15 public hearings to determine whether 

Kinavey should be dismissed from employment. The District presented evidence 

 

1 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §10-1080. This section provides:

District superintendents and assistant district superintendents may 

be removed from office and have their contracts terminated, after 

hearing, by a majority vote of the board of school directors of the 

district, for neglect of duty, incompetency, intemperance, or 

immorality, of which hearing notice of at least one week has been 

sent by mail to the accused, as well as to each member of the board 

of school directors.

24 P.S. §10-1080.
3

and witness testimony in support of the charges. In turn, Kinavey presented 

evidence and witness testimony on her behalf, including her own testimony. At the 

close of the hearings, both parties presented proposed findings of fact and 

conclusions of law. Based on the evidence presented, Hearing Officer issued a 

decision, containing 198 findings of fact and 37 conclusions of law, recommending 

Kinavey’s dismissal. 

The Board met in executive sessions in August and September 2010 

to deliberate and adjudicate the charges. Present at the sessions were Hearing 

Officer and most members of the Board,2except for David Graham and Shauna

D’Alessandro who served as witnesses and recused themselves from participation 

in the deliberations and adjudication. Board’s Adjudication, 9/29/10, Findings of 

Fact (F.F.) Nos. 4, 15; see C.R., Vol. I, at 7; C.R., Vol. IX, at 2263-64. The Board 

then issued an adjudication in which it adopted the findings and conclusions of 

Hearing Officer, which are summarized as follows. 

In the summer of 2009, the District posted a vacancy for an English 

Teacher/Reading Specialist, a dual certification position, for the 2009-2010 school 

year at Thomas Jefferson High School. Kinavey was involved in the interview and 

hiring process. Six candidates applied for the position. Following first-level 

interviews, two candidates did not advance, two candidates withdrew, and two 

candidates advanced to the second level. Denise Breisinger (Breisinger), who was

a resident of and a substitute teacher for the District, was one of the two candidates 

that advanced. F.F. Nos. 25, 27, 31, 33, 35, 36.

 

2

Throughout the original hearing, the Board members were Deborah Pozycki, Marianne 

Neel, Anthony Angotti, Alan Caponi, Anna Louise Lilley, Carolyn Bourgeois, Anthony Rash, 

Shauna D’Alessandro, and David Graham. F.F. No. 3; see C.R., Vol. IX, at 2257-2261

(Verifications); C.R., Vol. II, at 703. 
4

A five-person interview team, which included Kinavey, Hamsini 

Rajgopal (Rajgopal), human relations director, Timothy Hasselhoff, principal at 

the high school, Paul Ware, associate principal at the high school, and Suzan

Petersen, assistant to the superintendent, conducted second-level interviews of the 

two remaining candidates. Breisinger garnered no negative comments. Standard 

practice is for the interview team to reach a consensus as to the candidate to 

recommend to the Board by presenting a personnel sheet, commonly referred to as 

a “blue” sheet. However, the team could not reach a consensus on the candidate 

for the position. Kinavey did not tell the interview team she could not recommend 

Breisinger. F.F. Nos. 23, 24, 32, 39, 45, 46. 

Rajgopal sought advice from Solicitor, who advised her to select the 

best candidate. However, Rajgopal understood Solicitor’s advice to be that if the

team offered the job to “Candidate A” and she turned it down, the job should go to 

“Candidate B,” which was Breisinger, and she relayed this information to the team. 

The team offered the position to Candidate A, but she declined. F.F. Nos. 47-50. 

At a meeting held July 21, 2009, Kinavey stated Breisinger would be 

the candidate recommended to the Board based on Solicitor’s advice that the 

District “had to hire” Breisinger. F.F. Nos. 54. The team reached a consensus that 

Breisinger would be the candidate recommended for the position to the Board. At 

the July 24th meeting, Kinavey reiterated that Breisinger would be the 

recommended candidate. Kinavey did not indicate to the interview team that she 

was withdrawing the recommendation. While Kinavey was on vacation, team 

members acted on the assumption that Breisinger was going to be hired for the 

position, and they prepared a blue sheet containing Breisinger’s name for the 
5

Board’s approval and assigned Breisinger a teacher mentor. F.F. Nos. 24, 56, 57, 

61-66. 

However, when Kinavey returned from vacation and discovered 

Breisinger’s name on the blue sheet, she met with Solicitor and expressed her view 

that she did not recommend Breisinger. Kinavey informed Solicitor that, when 

Breisinger previously substituted for the District, she requested to have her hours 

of work altered. Kinavey also relayed that, prior to serving as superintendent, she

served on a second-level team when Breisinger unsuccessfully applied for a 

teaching position; Breisinger and her husband complained to the thensuperintendent that Kinavey did not hire Breisinger because of personal animus. 

Solicitor advised Kinavey it was her prerogative as superintendent not to 

recommend a candidate, but he warned of a “real risk” of litigation if the District 

did not hire Breisinger because she had the requisite certifications and was 

qualified for the position. On August 13, 2009, Kinavey directed the removal of 

Breisinger’s name as well as the English Teacher/Reading Specialist position from 

the blue sheet. After the meeting, the position was reposted as an English-only 

position. F.F. Nos. 72, 75, 78-80, 84, 85, 88, 89, 129. 

At the Board meeting on August 18, 2009, the Board reviewed the 

blue sheets, which did not contain Breisinger’s name or the position of English 

Teacher/Reading Specialist. Kinavey did not inform the Board that Breisinger’s 

name appeared on and was removed from the blue sheet, that she removed the 

English Teacher/Reading Specialist position from the blue sheet, or that Solicitor 

warned her of the risk of litigation if the District did not hire Breisinger. F.F. Nos. 

92-94.
6

A week later, at a public meeting of the Board, supporters of 

Breisinger questioned the Board’s decision not to hire Breisinger and spoke in 

favor of her candidacy. Although Kinavey attended the meeting, she did not offer 

any explanation regarding the removal of Breisinger’s name from the blue sheet. 

She also offered no explanation as to why the position was changed from English

Teacher/Reading Specialist, a dual certification position, to English Teacher, a 

single certification position. She did not inform the Board that the interview team 

had formed a consensus to recommend Breisinger for the position. F.F. Nos. 97-

102.

At an executive session, the Board3asked Kinavey whether 

Breisinger’s name appeared on a blue sheet. Kinavey initially responded it had 

not. She then explained Breisinger’s name was placed on a blue sheet by Rajgopal 

by default because she was the last candidate standing when Candidate A 

withdrew. Kinavey led the Board to believe Candidate A withdrew from 

consideration while she was on vacation. However, Kinavey knew Candidate A 

declined the position prior to leaving for vacation. Kinavey did not tell the Board 

that she advised the interview team that Breisinger would be the recommended 

candidate. F.F. No. 112, 113, 116, 117, 119, 126. 

The Board directed its Solicitor to conduct an investigation of 

Kinavey and the events surrounding the interview and hiring process. Solicitor 

advised the Board that his initial investigation revealed no wrongdoing and that 

 

3 All members of the Board, except for Bourgeois and Rash who were not Board 

members in 2009, participated in the executive sessions held in August and September 2009. 

See C.R., Vol. I, at 278; see also R.R. at 184a.
7

Kinavey acted within the scope of her authority when she did not recommend 

Breisinger for the position. F.F. Nos. 121, 122.

After Solicitor made his initial report, the Board directed Solicitor to 

conduct a second investigation in response to new information. Significantly, 

Solicitor’s second investigation uncovered additional facts regarding the 

circumstances surrounding the interview team’s consensus and that not all of the 

team shared Kinavey’s negative assessment of Breisinger’s capabilities. Solicitor 

also uncovered alleged acts of plagiarism unrelated to Breisinger’s hiring. 

Solicitor determined cause existed to remove her. F.F. Nos. 123-125, 167, 168. 

Ultimately, the Board found Kinavey was not truthful or forthright in 

her representations to the Board about the hiring process. The Board rejected 

Kinavey’s sworn testimony as “untruthful” because it was contradicted by District 

administrators. F.F. No. 157; see Board’s Adjudication, Conclusion of Law No. 

35. Specifically, Kinavey did not inform the Board of: the consensus to 

recommend Breisinger for hire; the removal of Breisinger’s name from the blue

sheet prior to the Board meeting; the known risk of litigation if Breisinger was not 

hired; or that she removed the English Teacher/Reading Specialist position from 

the blue sheet and posted it as English-only position. F.F. Nos. 92-94, 100-105. 

Moreover, Kinavey led the Board to believe that Candidate A 

withdrew from consideration while she was on vacation when she knew prior to 

leaving for vacation that Candidate A declined the position, leaving Breisinger as 

the last candidate. F.F. No. 116, 117. Kinavey also misrepresented a lesson plan 

that Breisinger presented during the second-level interview and led the Board to 

believe the entire interview team held a negative assessment of Breisinger, which 

was not so. F.F. No. 137. 
8

The Board found Kinavey was motivated by personal bias against 

Breisinger based on prior interactions. Kinavey used the pretenses such as an 

undersized interview pool and the need to repost the position as an English position 

as a ruse to avoid recommending Breisinger for hire. Although Breisinger was 

qualified for the position, Kinavey allowed her personal bias against Breisinger to 

adversely impact her decision-making and her communications with the Board 

about the hiring process. F.F. Nos. 129, 130, 133. 

In addition, the Board found four specific instances of plagiarism. 

Specifically, in the summer of 2009, Kinavey distributed written materials to the 

District without offering attribution to the original source of the material. Three of 

the plagiarized items were submitted by Kinavey to her secretary as handwritten 

items for typing. Kinavey copied these letters in her own handwriting to make it 

appear that she wrote the text herself. The plagiarized materials offended the 

morals of the District and set a bad example for the youth served by the District. 

F.F. Nos. 162-165, 181, 182. 

In short, the Board found that many of the charges against Kinavey

were proven. Namely, Kinavey displayed a lack of candor and dishonesty to the 

Board, and she engaged in plagiarism. The Board determined Kinavey’s conduct

constituted neglect of duty and immorality under Section 1080 of the School Code, 

and it voted to dismiss her as superintendent of the District. 

From this decision, Kinavey filed a statutory appeal with the trial 

court. Kinavey argued, among other things, that the record was incomplete 

because she was denied access to certain evidence. The trial court agreed and 

remanded the matter to the Board to make a full and complete record. Specifically, 

the trial court ordered: the production of extensive electronically-stored 
9

information; the recusal of two Board members (D’Alessandro and Graham) from 

the remand hearing; and authorization to recall D’Alessandro as a witness. The 

trial court further directed Hearing Officer to exercise his discretion in determining 

whether Hearing Officer or District’s counsel should conduct voir dire of the 

Board members. 

On remand, Hearing Officer conducted six days of public hearings, 

took additional testimony, admitted voluminous electronic evidence, and 

conducted voir dire of the Board members. Based on the additional evidence

adduced, the Board4again determined Kinavey was unfit to serve as superintendent 

by resolution dated August 20, 2013. R.R. at 105a-112a. 

Kinavey again appealed to the trial court. She claimed the Board 

violated her due process rights because Solicitor and members of the Board 

engaged in impermissible commingling conduct between the prosecutorial and 

adjudicatory functions. She also challenged the sufficiency of the evidence 

supporting her termination from employment. 

The trial court bifurcated the appeal, at Kinavey’s request, to first 

consider the issue of whether Kinavey’s due process rights were violated by the 

alleged impermissible commingling. The trial court heard oral argument on the 

issue and afforded the parties the opportunity to supplement the record with 

additional evidence. By order dated October 17, 2014, the trial court found there 

was no impermissible commingling conduct on the part of the Board or Solicitor. 

Thereafter, the trial court proceeded on the underlying merits of the 

appeal. The trial court found that the Board created a full and complete record and 

 

4 Rash did not participate in the deliberations or adjudication of the remand hearing 

because he was no longer a member of the Board. See R.R. at 184a, 554a. 
10

that the Board’s necessary findings of fact were supported by substantial evidence. 

By final order dated June 5, 2015, the trial court affirmed the determination of the 

Board to remove Kinavey. 

Kinavey filed an appeal to this Court challenging both orders.5 At the 

direction of the trial court, Kinavey filed a concise statement of errors complained 

of on appeal pursuant to Pa. R.A.P. 1925(b). The trial court filed an opinion in 

support of its orders. 

II. Issues

On appeal, Kinavey presents three issues. First, she contends the trial 

court erred by not making findings of fact in relation to the impermissible 

commingling issue, even though it took additional evidence and conducted a de 

novo hearing on the issue. Second, she claims the trial court erred in concluding 

that neither the Solicitor nor Board members engaged in impermissible 

commingling conduct such that Kinavey’s constitutional rights were violated. 

Finally, she contends substantial evidence does not support the Board’s dismissal. 

III. Discussion

A. Findings of Fact

First, Kinavey contends the trial court erred by failing to make any 

findings of fact to support its October 17, 2014, order disposing of the 

commingling issue. The trial court accepted supplemental evidence and conducted

 

5 When a trial court does not take additional evidence, our review of a local agency’s 

adjudication is limited to determining whether constitutional rights were violated, whether errors 

of law were committed or whether the decision is not supported by substantial evidence. 

2 Pa. C.S. §754(b); Spencer v. City of Reading Charter Board, 97 A.3d 834, 839 (Pa. Cmwlth. 

2014). Where the trial court considers additional evidence or conducts de novo review on a 

particular issue, our review is whether the trial court abused its discretion, committed an error of 

law or violated constitutional rights. Mento v. Board of School Directors of Montour School 

District, 35 A.3d 66, 68 n.3 (Pa. Cmwlth. 2011). 
11

a de novo review on the commingling issue. Consequently, she claims the trial 

court was required to make detailed findings of fact on the commingling issue as if 

it were an agency. Kinavey asserts the trial court merely entered an order 

declaring there was no impermissible commingling without making any findings in 

support. The trial court compounded this error when it did not include sufficient 

findings in its Rule 1925(a) opinion. 

Section 754 of Local Agency Law provides: 

In the event a full and complete record of the proceedings 

before the local agency was not made, the court may hear 

the appeal de novo, or may remand the proceedings to the 

agency for the purpose of making a full and complete 

record or for further disposition in accordance with the 

order of the court.

2 Pa. C.S. §754(a). “All adjudications of a local agency shall be in writing, shall 

contain findings and the reasons for the adjudication, and shall be served upon all 

parties or their counsel personally, or by mail.” Section 555 of Local Agency Law, 

2 Pa. C.S. §555. 

Generally, a local agency must render an opinion delineating 

sufficient findings to support its conclusions in order to provide for meaningful 

judicial review. Borough of Youngsville v. Zoning Hearing Board of Youngsville, 

450 A.2d 1086, 1089 (Pa. Cmwlth. 1982). However, “specific findings of fact are 

not required” if the opinion provides “an adequate explanation” for the resolution 

of the issues involved. Id. Moreover, “[a] court, acting de novo, has full fact 

finding functions and it is implicit in Section 754(a) that a court acting de novo is 

not restricted in its fact finding function.” Pittsburgh Board of Public Education v. 

MJN by NJN, 524 A.2d 1385, 1388 (Pa. Cmwlth. 1987), appeal denied, 541 A.2d 

1392 (Pa. 1988). 
12

Here, upon determining the Board did not make a full and complete 

record on the issue of impermissible commingling, the trial court conducted de 

novo review pursuant to Section 754 of Local Agency Law. In furtherance of that 

review, the trial court accepted additional evidence and acted as the factfinder, 

rather than as an appellate court. See Leasure v. Borough of Trafford, 531 A.2d 

559, 560 (Pa. Cmwlth. 1987). The trial court issued an opinion with findings of 

fact. 

Specifically, the trial court found there was no impermissible 

commingling conduct on the part of the Board or Solicitor. With respect to the 

Board, it found: 

[Kinavey] alleges that members of the school board 

conducted their own investigation of [Kinavey] and the 

hiring process for the English/Reading position by 

discussing the situation with administrators. [Kinavey] 

also alleges that the school board commingled their [sic]

prosecutory and adjudicatory functions by providing 

information to [Solicitor] during his investigation of 

[Kinavey]. I do not find that these actions rise to the 

level of impermissible commingling and I committed no 

error in finding so.

Trial Court Opinion, 8/17/15, at 4; R.R. at 1265a. 

With respect to Solicitor, it found: the Board was represented by and 

advised by Hearing Officer, not by Solicitor; there was no allegation that Solicitor 

was involved in the adjudication in any way; the Board retained separate counsel to 

represent it during the deliberations and in the decision-making process; and, 

Solicitor did not preside at the hearing or make evidentiary rulings, nor did he 

participate in the deliberations to terminate Kinavey. Trial Court Opinion, at 5; 

R.R. at 1266a. The trial court further found Kinavey’s due process rights were not 

violated. Id. 
13

Although the trial court set forth its findings in narrative form as 

opposed to enumerated form, we are aware of no authority specifying the stylist 

form. Upon review, the trial court’s Rule 1925(b) opinion comports with the 

requirements under Local Agency Law and provides an adequate explanation for 

the resolution of the commingling issue for appellate review. 

B. Commingling

Next, Kinavey contends her due process rights were violated because 

the Board and Solicitor engaged in impermissible commingling of investigatory, 

prosecutorial, and adjudicatory functions. According to Kinavey, the law requires 

a rigid separation between those who investigate and prosecute and those who act 

as the tribunal in an employee disciplinary case. Board members and Solicitor 

ignored the required separation of roles throughout the second investigation and 

during the original hearing when the record and findings were made. 

More particularly, Kinavey claims Board members were 

impermissibly involved in the investigation and prosecution. With regard to the 

investigation, she claims Board members not only provided information used by 

Solicitor in his investigation, but they conducted their own investigations. Board 

members directed and supervised Solicitor during the investigation. They also 

requested and received details of the investigation as well as legal advice regarding 

the potential discharge of Kinavey from Solicitor during the investigation. 

Kinavey also claims Board members were committed to the position that she 

should be discharged throughout the investigation. 

In addition, Kinavey contends that Board members: strategized with 

Solicitor to limit witnesses to be called at the hearing; engaged in ex parte

communications with District administrators, who were called as prosecution 
14

witnesses; and used their own recollection of events to evaluate the testimony. 

According to Kinavey, Board members communicated with and received advice 

from Solicitor, not Hearing Officer, after Hearing Officer was hired as counsel for 

the Board. Although the Board hired another attorney to prosecute, the Board 

allowed Solicitor to serve as a co-prosecutor throughout the original hearing and to 

testify in that hearing as one of the main prosecutorial witnesses regarding his 

communications with Kinavey. 

Due process is violated by impermissible commingling at the hearing 

or during the decision-making process. Harmon v. Mifflin County School District, 

651 A.2d 681, 684 (Pa. Cmwlth. 1994). “However, beyond the limits of the 

hearing or the decision-making process, the solicitor may act on the school board's 

behalf.” Id. The law is clear that “when a solicitor either prosecutes a case or 

conducts the hearing as an advisor to the school board, but not both, there is no 

impermissible commingling.” Behm v. Wilmington Area School District, 996 A.2d 

60, 66 (Pa. Cmwlth. 2010), appeal denied, 23 A.3d 1057 (Pa. 2011); accord 

Harmon, 651 A.2d at 684; Brown v. School District of Cheltenham Township, 417 

A.2d 1337, 1340 (Pa. Cmwlth. 1980). 

In Behm, an attorney represented the administration in the 

prosecutorial function, but he did not serve as the hearing officer, rule on 

objections to testimony or admissibility of evidence. Rather, the district solicitor 

conducted the hearing on behalf of the school board and made evidentiary rulings. 

The school board rendered the ultimate determination. As there was a clear 

distinction between prosecutorial and adjudicatory roles, we concluded there was 

no impermissible commingling. 996 A.2d at 66. 
15

Likewise, in Harmon, the solicitor fulfilled the prosecutorial function 

by presenting the administration's case against a suspended custodian, while 

counsel from the Pennsylvania School Board's Association advised the school 

board in its adjudication. There was no allegation that the solicitor was involved in 

the adjudication in any way. The mere existence of a continuing relationship 

between the solicitor and the school board did not create the appearance of 

impropriety at the hearing or during the school board's termination deliberations. 

We explained the solicitor did not act on behalf of the school board at the hearing 

by “either advising them or ruling on objections or evidentiary questions and [did] 

not advise them during those deliberations.”6 651 A.2d at 685. Thus, we found no 

constitutional violation by the solicitor's representation of the school district 

administration at the hearing on custodian’s termination. Id. 

Similarly, in Brown, a principal who was demoted, contended that it 

was improper for the solicitor of the school board to act as prosecutor and for a 

school board member to act as a legal advisor to the school board during the 

demotion hearing. We held that there was no impermissible commingling of 

functions where the solicitor only presented evidence and questioned witnesses on 

behalf of the school district and did not advise the board during the hearings or 

deliberation. 417 A.2d at 1340.

However, in Department of Education v. Oxford Area School District, 

356 A.2d 857 (Pa. Cmwlth. 1976), we found impermissible commingling occurred. 

 

6

In Harmon, this Court specifically rejected application of Lyness v. Commonwealth, 

State Board of Medicine, 605 A.2d 1204 (Pa. 1992), because “the ‘interests’ involved in the 

employment relationships are totally different than an independent agency actions regulating 

individuals.” 651 A.2d at 686. Thus, the same type of rigid due process requirements do not 

apply to school boards as they do other independent administrative agencies. Id. 
16

There, a school superintendent investigated a teacher's involvement in a shoplifting 

incident. Based upon the superintendent's recommendation, the school board 

decided to charge the teacher with incompetency and immorality. Id. at 859. At 

the dismissal hearing, the superintendent testified as an adverse witness against the 

teacher and then participated in the board's deliberations, which resulted in 

dismissal of the teacher. We concluded that the superintendent's actions did not 

reasonably safeguard the teacher's statutory right to an impartial and unbiased 

decision. Id. at 861. However, we specifically emphasized “that it is the 

[s]uperintendent's role as an adverse witness that is crucial to this case; the fact that 

he initially investigated the shoplifting incident and recommended a hearing is not, 

in our view, sufficient to indicate any bias that would render his participation in the 

adjudicatory phase objectionable.” Id.

In essence, the following principles can be gleaned from this case law:

1. An individual or [b]oard may conduct a general 

probable cause investigation and still adjudicate the case.

2. An individual may as a pro forma matter sign a 

suspension or removal letter and still adjudicate the case.

3. An individual may prepare charges and still adjudicate 

the case.

4. An individual may not prefer charges or actively 

participate in the investigation and still adjudicate the 

case.

Scalzi v. City of Altoona, 533 A.2d 1150, 1153 (Pa. Cmwlth. 1987), appeal denied, 

551 A.2d 218 (Pa. 1988); accord Behm, 996 A.2d at 67. 

Applying these principles here, the trial court did not err in 

determining no impermissible commingling occurred. As the employer of 

Kinavey, the Board followed its statutory duties by conducting a probable cause 
17

investigation regarding the charges against Kinavey, holding a hearing on those 

charges, and then terminating Kinavey based on the evidence. 

The evidence Solicitor gathered in his second investigation is that 

which would be expected to be collected in a general probable cause investigation. 

To the extent Board members participated in the investigation, such is not 

prohibited by the Board in making a probable cause determination. See Scalzi, 533 

A.2d at 1153; Lower Providence Township v. Nagle, 469 A.2d 338, 343 

(Pa. Cmwlth. 1984); Lomas v. Board of School Directors of Northwestern Lehigh 

School District, 444 A.2d 1319, 1324 (Pa. Cmwlth. 1982). To make an informed 

decision, each Board member was required to have sufficient knowledge of the 

facts surrounding each of the charges. Indeed, as this Court explained in Lomas: 

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. That a 

member of the board had an opinion at the time the 

charges were preferred against appellant would not 

disqualify him from participating in a hearing on those 

charges, or invalidate the proceedings. We do not think 

that anything more was required of the members of the 

board than that they could hear and determine the charges 

against appellant on the evidence given before them, 

uninfluenced by other previous impressions.

444 A.2d at 1325 (quoting Flannery Appeal, 178 A.2d 751, 754 (Pa. 1962)). 

Contrary to Kinavey’s assertions, there is no evidence to support that 

the Board members who adjudicated the case were committed to the position that 

Kinavey was guilty as charged throughout the investigation. The Hearing Officer 

conducted extensive voir dire of the Board members. See R.R. at 1238a-1246. 
18

Through this process, the Board members involved in the deliberative process and 

adjudication avowed they were uninfluenced by the previous impressions, and that 

they were not pre-committed to the position of Kinavey’s wrongdoing. To the 

extent some Board members witnessed some of the factual events, they testified 

they did not harbor any bias against Kinavey that would preclude them from fairly 

deciding the case. Id. Specifically, the Board members testified they did not 

prejudge the case, kept an open mind during the hearing, and limited their 

deliberations to the evidence presented at the hearings. Id. Although Kinavey 

attacks the testimony elicited at voir dire as “self-serving” and “unbelievable,”

Appellant’s Brief at 43-44, determinations as to weight of evidence and credibility 

are for the factfinder, not this Court. See East Coast Paving & Sealcoating, Inc. v. 

North Allegheny School District, 111 A.3d 220, 234 (Pa. Cmwlth. 2015). 

With regard to the alleged commingling conduct by Solicitor, the 

Board hired new counsel to serve as lead prosecutor and hearing examiner. 

Although Solicitor conducted the probable cause investigation and served as coprosecutor throughout the original hearing, he did not participate in the 

adjudicatory process. See Brown. While some Board members communicated 

with and received advice from Solicitor, such communication was not 

impermissible. A solicitor may continue to advise the Board and even prosecute 

the case as long as he is not presenting evidence in the case while at the same time 

ruling on the admissibility of that evidence. See Human Relations Commission v. 

Feeser, 364 A.2d 1324, 1327 (Pa. 1976) (finding no impermissible commingling 

where there was no evidence to support contention that counsel advised the hearing 

panel at the hearing and in the decisional process); see also Brown. Although 

Solicitor presented evidence, including his own testimony, he did not rule on the 
19

admissibility of evidence, act as the hearing officer, or otherwise participate in the 

adjudication of the case. 

Upon further review, we note that many of the Kinavey’s allegations 

of impermissible commingling involve the conduct of one Board member, 

D’Alessandro. Kinavey contends D’Alessandro commingled prosecutorial and 

adjudicatory functions when she conducted her own investigation, which led to the 

plagiarism charges; strategized with Solicitor regarding prosecution witnesses to be 

called and questions to be asked at the hearing; and engaged in ex parte

communications with counsel and third parties about the case. Although we are 

troubled by D’Alessandro’s actions, she did not participate in the deliberations or 

adjudication. D’Alessandro recused herself during the original hearing. C.R., Vol. 

IX, at 2263-64. The trial court directed her continued recusal in the remand

proceeding. Consequently, she was not involved in the deliberative or adjudicative 

process in the initial hearing or the remand hearing. 

For these reasons, we conclude the trial court did not err in 

determining there was no impermissible commingling of the prosecutorial and 

adjudicatory functions by Solicitor or Board. 

C. Substantial Evidence

Lastly, Kinavey contends the Board’s adjudication is not supported by 

substantial evidence and must be overturned. She claims the Board’s findings 

regarding the interview process were arbitrary and capricious, and the result of a 

deliberate disregard of competent testimony and evidence. Specifically, she takes 

issue with the Board’s findings nos. 123-125 regarding “new information” 

discovered after Solicitor made his initial report to the Board. The Board found 

Solicitor learned there was a consensus among the interview team that Breisinger 
20

would be the candidate recommended for the position and that not all of the team 

shared Kinavey’s negative assessment of Breisinger’s capabilities; the Board was 

not advised that the interview team reached a consensus that Breisinger would be 

the recommended candidate for the English teacher position; and, this new 

information changed the complexion of how the hiring situation was handled. 

According to Kinavey, this was not “new information.” Solicitor 

interviewed all members of the interview team in his initial investigation. Based 

on their statements to him, Solicitor concluded all members of the team agreed 

Breisinger performed poorly during her interview. The consensus that Breisinger 

would be recommended to the Board was based solely on the fact that she was the 

sole remaining candidate for the position and they operated under the belief that 

she had to be hired. Kinavey claims the Board knew of this “consensus” when 

Solicitor made his initial report. See R.R. at 245a-247a. This knowledge 

contradicts and renders unreliable any testimony to the contrary. 

In addition, Kinavey challenges numerous other findings on the 

ground that the Board capriciously disregarded evidence, namely her own 

unrefuted testimony. She also maintains the Board ignored the testimony of the 

District’s witness, Carl DeJulio, Ed. D., who testified Kinavey did not violate 

District policy. 

With regard to the plagiarism charges, she claims the conduct proved 

was not plagiarism as a matter of law because she did not deliberately and 

knowingly present another person’s original ideas or creative expressions as her 

own. Even if she made a mistake by not referencing the sources of her welcome 

letters, the Board presented no policy that plagiarism was prohibited by the 

District. Therefore, this cannot serve as a basis for discharge. 
21

It is well settled that findings of fact must be supported by substantial 

evidence. Bonatesta v. Northern Cambria School District, 48 A.3d 552, 558 

(Pa. Cmwlth. 2012). Substantial evidence is such relevant evidence that a 

reasonable mind might accept as adequate to support a conclusion. Id. When 

performing a substantial evidence analysis, the court must view the evidence in the 

light most favorable to the party that prevailed before the fact finder. Id. It is for 

the school board, not the court, to assess the credibility of the witnesses. Id. This 

Court may not reweigh the evidence or make its own credibility determinations. 

Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014). 

However, a court will “overturn a credibility determination if it is arbitrary and 

capricious or so fundamentally dependent on a misapprehension of material facts, 

or so otherwise flawed, as to render it irrational.” Bonatesta, 48 A.3d at 558

(quoting Agostino v. Township of Collier, 968 A.2d 258, 263-264 (Pa. Cmwlth. 

2009)). “A capricious disregard of evidence exists only when there is a willful and 

deliberate disregard of competent testimony and relevant evidence which one of 

ordinary intelligence could not possibly have avoided in reaching a result.” Id. at 

559 (quoting Agostino, 968 A.2d at 264). 

Here, Kinavey challenges the Board’s findings Nos. 123-125 as 

unsupported by substantial evidence. These findings provide: 

123. After [Solicitor] made his report to the Board on 

September 15, the Board was later advised that there had 

been a consensus among the interview team at the end of 

July that Breisinger would be the candidate for the 

position and that this explained why others on the 

administrative team (i.e., Ms. Rajgopal, Mr. Haselhoff) 

operated as though Breisinger was going to be hired, and 

that not all of the administrative team shared Kinavey's 

negative assessment of Breisinger capabilities. N.T. pp. 

878 -879.
22

124. [Solicitor] was first informed by Rajgopal of the 

circumstances surrounding the interview team's 

consensus regarding the hiring of Breisinger the day after 

he delivered his report to the Board. N.T. p. 682. This 

new information ‘materially changed the complexion’ of 

how the Breisinger hiring situation was handled, and was 

brought to the Board's attention. N.T. p. 682.

125. The Board was not advised that the interview team 

had come to a consensus that Breisinger would be the 

candidate recommended for the English/Reading 

Specialist position until September 16, 2009. N.T. p. 

979.

R.R. at 36a-37a. 

Our review of Solicitor’s first report to the Board confirms Kinavey’s 

assertion that Solicitor apprised the Board of the “consensus” to hire Breisinger. 

R.R. at 245a-246a. Specifically, Solicitor reported to the Board: “The consensus, 

which was not objected to, was that [Breisinger] was to be recommended to the 

Board.” Id. at 246a (emphasis added). As a result, the Board’s finding that it was 

not aware of a consensus until after the Solicitor’s report is not supported by 

substantial evidence. 

Notwithstanding, the circumstances surrounding the interview team's 

consensus was new information. When the Solicitor first reported to the Board, the 

nature of the consensus was that Breisinger was merely the candidate by default. 

See C.R., Vol. II, at 642-643. Solicitor’s initial report reflected the team’s negative 

assessment of Breisinger. Specifically, Solicitor reported “there was 

dissatisfaction with the lesson [Breisinger] used as a demonstration.” R.R. at 245a. 

He continued:

The opinion was shared that the lesson was below the 

grade level for 12th grade, using the Three Little Pigs 

story as a model with an Hispanic based comparison and 

a Venn diagram which measure the area(s) of 
23

commonality between the stories. The notes also reveal 

that [Breisinger] knew little about [response to 

intervention] as well as differentiated instruction which 

the Committee deemed to be important. She also had no 

suggestions for reading assessment models. 

Id. 

Kinavey herself testified she believed the lesson plan was “not grade 

appropriate, even for remediation, and the vocabalary [sic] words were not grade 

appropriate, they were vocabalary [sic] words you would use for 3rd grade . . . .” 

C.R., Vol. IV, at 1169. According to Kinavey, everyone agreed the lesson plan 

was not grade appropriate. Id. at 1179. 

Solicitor testified, “it appeared that there were these issues of this 

lesson and that the recommendation and the non-hiring of ... Breisinger was 

basically the result of that.” C.R., Vol. II, at 575. He thought Breisinger “had not 

performed as she should have in the process” and that there were “issues with her 

interview.” Id. at 642. The interview team was told it had to hire Breisinger. Id.

at 643. 

However, after Solicitor presented his report, he received a call from 

Rajgopal, who advised him regarding the circumstances surrounding the consensus 

to recommend Breisinger. C.R., Vol. II, at 575. Solicitor learned there was a 

consensus to hire Breisinger, not because the team had to hire her, but because she 

was “generally confirmed.” Id. at 575, 643. When Solicitor conducted his second 

investigation, he discovered not all team members shared Kinavey’s negative 

assessment of Breisinger’s capabilities or agreed her lesson plan was not grade 

appropriate or lacked rigor. 

At the hearing, Haselhoff credibly testified Breisinger’s lesson plan 

was satisfactory and the team did not express agreement that the plan was not 
24

grade-appropriate. F.F. No. 137; C.R., Vol. II, at 500. Ware, who was an English 

teacher himself as well as the Associate Principal responsible for oversight of the 

high school’s English department, testified Breisinger’s lesson plan was gradeappropriate. Ware further testified her plan was “loaded with rigor,” “very 

thorough,” and included “rationale,” “objectives” and “standards.” F.F. No. 44; 

C.R. Vol. II, at 487-488. Petersen referred to Breisinger as “very strong English 

candidate[]” and did not recall any objection to her candidacy. C.R., Vol. I, at 198-

199. Substantial evidence supports the Board’s findings that the information 

regarding the circumstances surrounding the consensus to recommend Breisinger 

was new and undermined Kinavey’s position that Breisinger was not

recommended. 

As for Kinavey’s assertions that the Board ignored or capriciously 

disregarded her testimony, the Board considered her testimony. The Board 

determined her testimony was directly contradicted by the sworn testimony of the 

District’s administrators. See F.F. Nos. 131-156. Although portions of her 

testimony were unrefuted, the Board specifically rejected her testimony as 

“untruthful.” F.F. No. 157; Conclusion of Law No. 35. Contrary to Kinavey’s 

assertions, the Board’s credibility determinations were not arbitrary or capricious. 

See Bonatesta. Thus, we will not disturb them on appeal. 

Kinavey also contends the Board willfully disregarded testimony from 

the District’s expert witness, Dr. DeJulio. Dr. DeJulio testified that Kinavey did 

not violate any District policy in the hiring process. C.R., Vol. III, at 902, 919, 

981; C.R., Vol. IV, at 1096. He further testified that the District’s professional 

employee hiring policy does not require the superintendent to inform the Board 

about a candidate the superintendent is not recommending to be hired. C.R., Vol. 
25

IV, at 1096. According to Kinavey, this testimony contradicts any evidence of any 

wrongdoing. 

However, the Board did not remove Kinavey for violating District 

policy. Rather, it removed her from office for engaging in conduct that constituted 

neglect of duty and immorality under Section 1080 of the Public School Code. 

The Board cited Kinavey’s lack of candor and dishonesty to the Board as well as 

personal bias as bases for its decision. 

In that regard, Dr. DeJulio testified that Kinavey, as superintendent,

owed the Board a duty of candor and full disclosure. C.R., Vol. III, at 930. He 

testified the charges against Kinavey, if proven, exhibited a breakdown in 

communication and represented a pattern of behavior that he considered neglect of 

duty. Id. at 902, 910, 927, 932-33. While recognizing it is a superintendent’s 

prerogative not to recommend a candidate to the Board, Dr. DeJulio questioned 

Kinavey’s action of circumventing the hiring process and unilaterally removing 

Breisinger’s name from consideration without involving the team. C.R., Vol. III, 

at 909, 928. Regarding the lesson plan, Dr. DeJulio testified the information 

obtained “from one 15 minute presentation is extremely limited.” Id. at 934. He 

was confused why anyone would put so much credence on a 15 minute lesson plan 

as opposed to Breisinger’s seven-year history working as a substitute in the 

District. Id. Contrary to Kinavey’s assertions, Dr. DeJulio’s testimony does not 

support her position. 

Finally, Kinavey’s argument that the verbatim copying of written 

works, without attribution, and passing them off as her own did not constitute 

plagiarism as a matter of law is unavailing. Plagiarism is generally defined as:

The act of appropriating the literary composition of 

another, or parts or passages of his writings, or the ideas 

or language of the same, and passing them off as the 
26

product of one’s own mind. If the material is protected 

by copyright, such act may constitute an offense of 

copyright infringement. 

BLACK’S LAW DICTIONARY 1150 (6th ed. 1990).

Kinavey does not deny she copied the materials in the letters without 

proper attribution. To the extent Kinavey alternatively claims her use of the 

material without attribution was an innocent mistake, the Board found her intention 

was to mislead and deceive because she copied three of the letters in her own hand 

and provided them to her secretary for typing. The Board found that she did this to 

make it appear that she drafted the text herself. 

Although the District did not have a formal policy prohibiting 

plagiarism, plagiarism clearly constitutes academic dishonesty that is both immoral 

and incompetent for a school superintendent to engage in. On this basis alone, the 

Board was justified in removing Kinavey from employment.

Although the record may contain evidence that would support 

findings other than those made, the proper inquiry is whether the evidence supports 

the findings actually made. See Ductmate Industries, Inc. v. Unemployment 

Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). Upon 

review, the Board’s necessary findings are supported by substantial evidence and 

support the Board’s determination that Kinavey was not fit to serve as 

superintendent of the District. 

IV. Conclusion

In sum, the trial court did not err or abuse its discretion in affirming 

the removal of Kinavey as superintendent of the District. The trial court’s opinion 

consisted of general findings and disposed of all claims for relief on the 

impermissible commingling issue in accordance with the rules. Kinavey’s 
27

constitutional rights were not violated as neither the Solicitor nor Board members 

engaged in impermissible commingling conduct. Finally, substantial evidence 

supported the Board’s grounds for removal of Kinavey as superintendent of the 

District based on Kinavey’s dishonesty and lack of candor to the Board

surrounding Breisinger’s candidacy as well as acts of plagiarism. 

Accordingly, we affirm. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Kinavey, :

: No. 1081 C.D. 2015

Appellant : 

:

v. :

:

West Jefferson Hills School District :

and Board of Directors of :

West Jefferson Hills School District :

O R D E R

AND NOW, this 15

th day of June, 2016, the order of the Court of 

Common Pleas of Allegheny County, dated June 5, 2015, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge