IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Metz, :

Petitioner :

:

v. : No. 630 C.D. 2017

: Argued: December 7, 2017 Bethlehem Area School District, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY SENIOR J UDGE PELLEGRINI FILED: January 4, 2018

Timothy Metz (Petitioner) petitions for review of the decision of the

Office of the Secretary of Education, Commonwealth of Pennsylvania (Secre tary)

denying his appeal and affirming the Board of School Directors (Board) of the

Bethlehem Area School District ’s ( School District ) terminat ion of his tenured

employment pursuant to Section 1122(a) of the Public School Code of 1949

( School Code). 1

1 Act of March 10, 1949, P.L. 30, as amended , 24 P.S. § 11

– 1122(a) . Section 1122(a) of the School Code states that a professional employee may only be dismissed for the reasons set
forth therein , including “immorality” and “wil[l]ful misconduct.” See Foderaro v. School District of Philadelphia , 531 A.2d 570 (Pa. Cmwlth. 1987 ).

The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality ; incompetency; unsatis factory teaching performance based on two (2) consecutive ratings of the employe’s teaching performance that are to include classroom observations, not less (Footnote continued on next page...)2 I.

P etitioner has been employed with the School District since 2004, and

at the time of his discharge, worked at East Hills Middle School (East Hills) as a
physical education teacher. He is tenured and a member of the teacher’s union,

Bethlehem Education Asso ciation (BEA)

. On February 4, 2016, the School

District received a copy of a letter dated January 27, 2016, which was addressed to

Petitioner’s counsel in a custody dispute and sent by opposing counsel , stating in

pertinent part :

acknowledg[ing] receipt

. . . of the Drug Test Results from Any Lab Test Now, which indicate a positive result for Cocaine Metabolites. We also received a copy of a Prescription from [Petitioner’s] Physician indicating that

(continued...)

than four (4) months apart, in which the employe’s teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wil[l] ful neglect of dutie s ; physical or mental disability as documented by competent medical evidence, which after reasonable accommodation of such disability as required by law s ubstantially interferes with the employe’s ability to perform the essential functions of his employment; advocation of or participating in un

American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefo r; persistent and wil[l]ful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe . . . .

24 P.S. § 11

– 1122(a) (emp hasis added). “It is thus apparent that the legislature intended to protect tenure except for the serious charges listed.” Lauer v. Millville Area School District , 657

A.2 d 119, 121 (Pa. Cmwlth. 1995).3 he takes prescription medication which could produce a false positive result for Marijuana.

However, I note that under the Interim Order of December 31, 2015, [Petitioner] is to undergo random drug screening through SASY [Substance Abuse Screening Services, Inc.] for a period of eight (8) weeks. We have rece ived no confirmation that [Petitioner] has complied with this provision of t his Order.

(Reproduced Record (R.R. ) at 152a.) As a result, Russell Giordano (Director

Giordano)

, the School District ’s H uman R esources Director, immediately went to

East Hills and met with Petitioner as well as his union representative . During th at

meeting, Director Giordano asked Petitioner to submit to a drug test and informed

him that if he did not, he would be placing his job in jeopardy

.

Because Petitioner refused to sub mit to th at drug test, Director

Giordano place d him on unpaid suspension

. The same day, Petitioner’s counsel

sent a letter to the School District , providing “documentation of [Petitioner] as to

his prescription medication illustrating a ‘false positive re sult’ on a drug screen.”

(R.R. at 153a.)

By letter dated February 8 , 2016, Petitioner was again directed to

submit to a drug test . That letter provides , in relevant part:

This directive is pursuant to 24 P.S. [§] 14

- 1418(c) [ 2 ] and based upon reasonabl e suspicion of [Petitioner’s] drug

2 Section 1418(c) of the School Code provides that : “School boards may require a special medical examination for any school employe at any time.” 24 P.S. § 14

- 1418.4 use in violation of School District Board Policy 451 [ 3 ] and the Pennsylvania School Code. The

3 The School District’s Policy 451, “Drug and Substance Abuse” provides, in pertinent
part:

Purpose

The Board recognizes that the misuse of drugs is a serious problem with legal, physical and social implications for the whole school community and is concerned about the problems that may be caused by employees, especially as the use relates to an employee’s safety, efficiency and productivity.

The primary purpose and justification for any district action will be for the protection of the health, safety and welfare of students, staff and school property.

* * *

Authority The Board requires that each professional employee be given
notification that, as a condition of employment, the employee will abide by the terms of this policy and notify the district of any criminal drug statute conviction for a violation occurring in the workplace no later than five (5) days after such conviction.

An employ ee convicted of deliver y of or possession of a controlled
substance with the intent to deliver shall be terminated fro m his/her employment with the district.

Delegation of Responsibility A statement notifying employees that the unlawful manufacture,
distr ibution, dispensing, possession, or use of a controlled substance is prohibited in the employee’s workplace shall be provided by the Superintendent and shall specify the actions that will be taken against the employee for violation of this policy, up

to an d including termination, and referral for prosecution

.

* * *

The district shall be responsible for taking action within thirty (30) days of receiving notice, with respect to any convicted employee. (Footnote continued on next page...)5 Administration’s reasonable suspicion is based upon information disclosing that [Petitioner] recently tested positive for coca ine metabolites. He has submitted a physician’s note indicating that he is prescribed medication that could result in a false positive result for THC; but the note did not indicate the potential to test positive for cocaine metabolites. Moreover, School District ’s third party testing administrators provide the opportunity for a confirmation test if there is a false positive.

If the test is satisfactory, [Petitioner] can meet with the HR Director (Mr. Giordano), to arrange a return to work. If he does no t comply with the aforementioned directive, the Administration will recommend his termination from employment based upon failure to comply with Administrative directives; violation of the Pennsylvania School Code; School District Policy, and willful neglec t of duties.

(R .R. at 156a ) (footnotes added). On February 9, 2016

, five days after refusing the

first drug test, Petit ioner submitted to a urinalysis drug test

.

Consistent with the custody dispute letter, Petitioner tested positive

for cocaine metabo lites. ( See R.R. at 163a.)

(continued...)

The district shall take appropriate personnel action ag ainst such an employee, up to and including termination, and may require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a federal, state or local health, law enforcement, or oth er appropriate agency.

(R.R. at 172a

- 173a.)6 The next day

, Dr. Joseph J. Roy (Superintendent Roy), the School

District ’s Superintendent

, sent Petitioner a Loudermill n otice 4 stating that he would

be discharged because he “ exhibited willful neglect of duties and immoral co nduct

in violation of

. . . School District Policy 451 and the Pennsylva nia School Code 24

[§] P.S. 11

- 1122” because he refused to take a drug test and then tested positive for

cocaine metabolites on a subsequent test

. (R.R. at 158a.) Petitioner voluntar ily

waived th at h earing.

Then, on March 7, 2016, the School District sent Petitioner a

Statement of Charges and Notice of Hearing, notifyin g him that it was

recommending his dismissal from employment and that he was being charged with

willful neglect of duties and immorality in violation of the Pennsylvania School

Cod e and School District P olicy 451 . ( See R.R. at 166a

- 167a.) Following a

continuance, a hearing was held before the Board on April 28, 2016.

4 Pursuant to the Supreme Cour t of the United States ’ decision in Cleveland Board of
Education v. Loudermill , 470 U.S. 532 (1985):

The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against

him , an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory empl oyee.

Id . at 546 (citations omitted).7 II.

B efore the Board

, Director Giordano testifie d that on February 4,

2016, he received a call from the Superintendent’ s O ffice informing him of a letter

between two attorneys in Petitioner’s custody dispute acknowled ging receipt of

Petitioner’s positive drug test result for cocaine metabolites. Based upo n that

letter, Director Giordano stated that he went immediately to East Hills to meet with

Petitioner because “anytime that we receive information that a faculty member is

potentially under the influence of an illegal substance, we have an obligation t o

r eact to that and investigate that.” (R.R. at 33a.)

Director Giordano testified that he then held a meeting with Petiti oner
and the president of the BEA, Jolene Vitalos, a s well as the principal of East Hills.

He explained that during that meeting, P etitioner “wouldn’ t look at me. Wouldn’t

shake hands with me. Was pretty hostile. ” (R.R. at 35a.)

He was slouching in his chair and you know, twisting back and forth in his chair, obviously upset. And I told him that we were in receipt of information that would require us to ask him to go for a drug screen that day.

He simply shook his head no. And again, wasn’t looking at me. Simply shaking his head no. And then I informed him that by not agreeing to go for the test, he would be placing his job in jeopardy and that I would have no choice but to put him on unpaid suspension immediately.

Mrs. Vitalis [ sic ] then said we will not be going for a drug test. And she informed me that they would grieve the suspension.8

(R.R. at 35a.) Director Giordano a lso talked to Petitioner about the Employee

Assistance Program, which is for School District employees who have problems

with drugs and alcohol, and offered him a brochure. However, Petitioner “tossed

the brochure back at [Giordano] across the table, obvi ously not interested. ” (R.R.

at 36a.) Petitioner was then placed on unpaid suspension.

Five days later , Petitioner submitted to a urinalysis drug test following

a second request by the School District . After that test came back positive for

cocaine me tabolites, the School District issued a Statement of Charges and N otice

of Hearing. Director Giordano recommend ed Petitioner’s discharge for two

reasons:

Well, number one, I think that the standards of the

district and the standards of the community are pretty clear. And I can’t imagine parents being supportive of having faculty members who have been tested positive for an illegal substance.

Number two, one of the things I remember [Petitioner] talking about in the meeting, one of the few things he said in that meeting with me

- - and I can’t remember exactly. But the sense was, “what’s the big deal? A lot of people do that. ”

And I remember saying to him, well, if a lot of people are doing it, you give me some names. And I will make sure that I invest igate that.

So I didn’t sense any

- - anything from him that told me he thought this was wrong. So if you’ve committed a crime and you don’t even think it’s wrong, how am I supposed to feel good about that, in terms of a teacher?9

(R.R. at 42a

- 43a ) (emph asis added).

Director Giordano testified that, to his knowledge, Petitioner has

never been arrested for or charged with a drug offense . When he met with

Petitioner on February 4, 2016, he did not observe Petitioner stumbling and “to the

extent that he w as speaking, I suppose he was coherent. I didn’t get much out of

him.” ( R.R. at 56a

- 57a.) As to why Director Giordano required a urinalysis drug

test, he explained:

I guess what I want to say is, that school districts have an obligation to the parents who send their children to us every day, to make certain that there is a fully functioning, certified, competent teacher in every class, every day.

People who are on drugs are likely not fully functioning every day. We have an obligation to investigate w hen evidence comes to us, that says we may have a problem; hence, the drug test.

(R.R. at 64a.)

The School District then presented Dr. Rosemary Szollas (Dr.

Szollas) , a physician and c ertified medical review officer, who testified that she

reviewed Pet itioner’s February 9, 2016 drug test and it indicated a quantitative

value of 537 nanograms of a biological metabolite of cocaine . Dr. Szollas

explained that 537 nanograms is “[d]efinitely high, . . . above the cutoff, which

would indicate use of the subs tance or some fashion, the substance was in the

individual or the living being.” (R.R. at 72a.) She further testified:10 I can state with medical certainty, that I have a positive cocaine result in front of me. I can state with medical certainty, based on scientific literature. That chronic use of cocaine would be probably present within four to five days in urine after use and with a one time use probably within two to three days after use.

(R.R. at 74a ) (emphasis added).

To demonstrate that Petition er’s conduct was immoral, 5 the School

District also presented Superintendent Roy, who testified that he has been the

S uperintendent of the School District for approximately five

- and

- a

- half years and

during that time he has resided in Bethlehem City

. He pr eviously served as the

Assistant Principal in the School District’s Liberty High School from 1992

- 1995.

Due to his employment and residency in the School D istrict, he testified that he has

a good sense of th e community morals. He explained , “I think that a teac her who

5 Under S ection 1122 of the School Code, conduct constituting “immorality” is cause for termination of a tenured professional employee. 24 P.S. § 11

– 1122. While not defined in the School Code, Pennsylvania courts h ave 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 elevate.’” McFerren v. Farrell Area School District , 993 A.2d 344, 353 (Pa. Cmwlth. 2010) (q uoting Horosko v. School District of Mt. Pleasant Township , 6 A.2d 866, 868 (Pa. 1939) )

.

To establish immorality, a school district must prove three

elements: (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 , 993 A.2d at 354.11

has tested positive for cocaine is a clear contradiction to th e expectations of the

community. ” (R.R. at 84a.) He further explained:

I think that, you know, we had reasonable suspicion. We required the drug test. The test came back posi tive. The fact that a teacher who, again, has public trust to teach our community’s children, tested positive for the use of cocaine was enough of a violation to meet the immorality clause.

* * *

So I think the context that I’m trying to provide is that we had the positive drug test. But the context of that was either the employee had enough cocaine built up in his system that he was still positive five days after he was directed to take the test, or, after he was confronted by his employer. And then s till

-- and then tested positive.

So either way, the test, in my opinion, resulted in these charges of immorality.

(R.R. at 85a

- 86a.)

Following the presentation of the School District ’s case

- in

- chief

,
Petitioner testified on his own behalf. He stat ed that he has never consume d

alcohol or any illegal drugs at work, never came to work impaired , and has never

been convicted of any drug

- related offense

. Petitioner testified that he was never

notified that he could be subjected to any type of drug testing while he was at work

under the collective bargaining agreement or the School District ’s policy

.12 Petitioner explained that he refused the first drug test upon his union

representative’s instruction and because “I felt that it was not needed.” (R.R. at

1 06 a .) Then, prior to the second drug test request but after the first request, he

admitted to taking cocaine at a Super Bowl party on February 7, 2016. 6

Notwithstanding testing positive for cocaine use on at least two separate occasions,

Petitioner denie d being a chronic cocaine user . In support of that assertion, he

provided ten drug screenings administered between February 11, 2016

, and April

20, 2016

, as part of his custody dispute, for which he tested negative for cocaine

metabolites. He admitted, h owever, that in addition to the February 9, 2016 drug

test, he tested positive for cocaine metabolites for a drug test admin istrated on

December 31, 2016. He also admitted that he would teach his own students that

cocaine is “a dangerous drug that should not be used.” (R.R. at 116a.)

On May 17, 2016, the Board issued an Administrative

Recommendation that Petitioner be terminated from his employment with the

School District effective immediately, and Petitioner appealed . Following briefing

and argument

, on April 21, 2017, the Secretary issued an order dismissing

Petitioner’s appeal and affirming the School District ’s decision to terminate his

employment because he engaged in conduct constituting immorality by ingesting

cocaine

, and because his refusal to submit to the February 4, 2016 drug test

constituted willful neglect of duty. Petitioner then filed this petition for review. 7

6 Petitioner testified that the party was on February 6, 2016 ; however, we take judicial
notice that February 6, 2016, fell on a Saturday.

7 “This Court’s standard of review of a decision of the Secretary of Education is limited to [the] de termination of whether substantial evidence supports necessary factual findings, and (Footnote continued on next page...)13 I II.

On appeal, Petitioner contends that the School District did not carry

its burden of proof in establishing that he engaged in immorality because the only

evidence the School District pre sented supporting that charge

– the February 9,

2016 urinalysis drug test

– was obtained unconstitutional ly sinc e it lacked

reasonable suspicion to order such a test.

A.

Article 1, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without descri bing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Pa . C onst. a rt

. 1, § 8. “Although Article [1] , Section 8 of the Pennsylvania

Constitution is similar in phraseology to that of the Fourth Amendment of the

United States Constitution, [ 8 ]

. . . [it] often provides greater protection since the

core of its exclusionary rule is grounded in the protection of privacy while the

(continued...)

whether an error of law or constitutional violation was committed.” Curl v. Solanco School

District , 936 A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).

8 The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV (emphasis added).14

federal exclusionary rule is grounded in deterring police miscond uct .”

Commonwealth v. Williams , 692 A.2d 1031, 1038 ( Pa. 1997) (footnote added)

.

A government employer’s

– here, a public school’s

– c ollection and

testing of urine constitutes a “search” for purposes of the Fourth Amendment and

Article 1, Section 8 of the Pennsylvania Constitution

. See Skinner v . Railway

Labor Executives’ Association , 489 U.S. 602, 616

- 17 (1989) ( holding collection

and analysis of urine samples constitutes a Fourth Amendment search).

Ordinarily, for a search by the government to be c onsidered

constitutionally “reasonable” it must be undertaken by warrant demonstrating

probable cause

. See Skinner , 489 U.S. at 619

. “ However, ‘ probable cause ’ is not

an irreducible requirement of a valid search

. . . . Where a careful balancing of

gove rnmental and private interests suggests that the public interest is best served

by a Fourth Amendment standard of reasonableness that stops short of probable

cause, we have not hesitated to adopt such a standard. ” New Jersey v. T.L.O. , 469

U.S. 325, 340

- 4 1 (1985) . This p rinciple applies equally to government employers

who have a paramount interest in assuring that employees in safety

- sensitive jobs

are free from the effects of drugs while performing their duties and whose

employees have a lower expectatio n of privacy with regard to intoxication

. See

Skinner , 489 U.S. at 633

- 34 (upholding blood and urinalysis drug screening of

railway employees involved in train accidents); National Treasury Employees v.

Von Raab , 489 U.S. 656 (1989) ( upholding urinalysis drug tests for United States

Customs Service employees seeking transfer or promotion to certain positions) ;
Copeland v. Philadelphia Police Department , 840 F.2d 1139 (3d Cir. 1988)15

(upholding the compulsory urinalysis of a police officer suspected of using illegal

drugs) ; Majewski v. Fischi , 372 F ed . App’x 300 (3d Cir. 2010) (upholding

breathalyzer test of correction s officer based on particularized suspicion).

The parties do not dispute, and we agree, that public school teachers

–
like railroad workers, corrections officers and police officers

– also hold safety

sensitive jobs and , accordingly, can be compelled to submit to drug testing based

on reasonable suspicion. See Donegan v. Livingston , 877 F. Supp. 2d 212, 221

(M.D. Pa. 2012), aff’d , 523 F ed . App ’ x 195 (3d Cir. 2013) ( “Thus, on the balance,

this sort of warrantless Breathalyzer testing of school employees based on

reasonable suspicion is reasonable under the Fourth Amendment. ”).

B.

Reasonable suspicion “ is a less demanding standard than probable

cause and requires a showing considerably less than preponderance of the

evidence [,]” yet still requires “more than an inchoate and unparti cularized

suspicion or ‘hunch’ of criminal activity .” Illinois v. Wardlow , 528 U.S. 119, 123

- 24 (2000) (citations a nd quotations omitted). Like the probable

- cause standard,

“ the totality of the circumstances

– the whole picture

– must be ta ken into

account.” United States v. Cortez , 449 U.S. 411, 417 (1981)

. Whe re, as here, a

search is based upon information obtaine d from an informant

, court s look to three

factors : the informant’s veracity, the reliability of the information

, and the basis of

knowledge. Commonwealth v. Allen , 725 A.2d 737, 740 ( Pa. 1999)

.16 In this matter, there was obviously reasonable suspicion t o compel a

urinalysis drug test. First, the School District received a letter dated a week prior

which was not by an anonymous informant but correspondence between two

identified att orneys in a custody proceeding. The fact that the parties were

identifie d must be given significance as counsel’s identity exposes him to risks of

professional and legal reprisal. See Commonwealth v. Jackson , 698 A.2d 571, 574

( Pa. 1997) (noting “ a known informant places himself or herself at risk of

prosecution for filing a false claim if the tip is untrue, whereas an unkno wn
informant faces no such risk”).

Second , the information contained in that letter appears reliable, as it

was highly specific and corroborated by additional information

. See

, e.g. ,
Commonwealth v. Barb er , 88 9 A.2d 587, 595 (Pa. Super. 2005) (holding a tipster’s

information was “sufficiently specific and reliable” to provide reasonable suspicion

for a traffic stop where the informant provided a “specific description of the

vehicle, driver, and activity a t issue”). Here , the letter describes the date of the

court order, what it pertained to, Petitioner’s drug test results, and that he may have

falsely tested positive for marijuana. The fact that the date of the le tter and

underlying order both occurred i n close proximity to the date received, and that the

letter conveys the possibility that Petitioner was not complying with an order

directing him to undergo further drug tests, lends to the conclusion that Petitioner

may have be en under the influence of dr ugs while teaching.

Moreover, subsequent events that took place prior to Petitioner’s

eventual drug test also corroborated the letter’s conveyed information. For17

instance, prior to requesting the February 9, 2016 drug test, Petitioner’s counsel

provided documentation confirming that Petitioner was on medication that could

cause a false positive drug test result for marijuana use. This information,

combined with Petitioner’s cavalier attitude at the outset of the February 4, 2016

meeting, corroborate d th e suspicion that Petitioner did , in fact, use cocaine and

may have be en under the influence while teaching.

Lastly , the information in the letter was based on personal, first

- hand

knowledge of Petitioner’s drug test, which lends to the conclusion that it should be

treated as trustworthy. See In the Interest of O.A. , 717 A.2d 490 ( Pa. 1998).

Specifically, Petitioner’s drug test results were not obtained through hearsay, but

rather because of a court order issued in a matter involving a custody dispute and

provided by opposing counsel.

Accordingly, because there was reasonable suspicion to conduct the

urinalysis test and Petitioner does not otherwise challenge the Secretary’s

determination that his conduct constituted immorality, we affirm the Secretary’s

order. 9

___________________________________ DAN PELLEGRINI, Senior Judge

9 Petitioner also contends that the Secretary erred when determin ing that he engaged in willful neglect of his professional duties. However, because of the manner in which we have resolved this appeal, we do not reach that issue. See Horton v. Jefferson C ounty

- DuBois Area
Vocational Technical School

, 630 A.2d 481

, 483 (Pa. Cmwlth. 1993) (“This court need only find one of the grounds for the dismissal valid in order to affirm the Secretary’s dismissal of Horton’s appeal.”).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Timothy Metz, :

Petitioner :

:

v. : No. 630 C.D. 2017

: Bethlehem Area School District, :

Respondent :

O R D E R

AND NOW, this 4 th day of June

, 201 8 , it is hereby ordered that the

order of the Office of the Secretary of Education, Commonwealth of Pennsylvania

,
entered on April 21 , 2017 , is affirmed.

___________________________________ DAN PELLE GRINI, Senior Judge