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 JUDGE 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 (Secretary) 

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

Bethlehem Area School District’s (School District) termination 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; unsatisfactory 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.

Petitioner 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 Association (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 duties; physical or mental disability as documented by 

competent medical evidence, which after reasonable 

accommodation of such disability as required by law substantially 

interferes with the employe’s ability to perform the essential 

functions of his employment; advocation of or participating in unAmerican or subversive doctrines; conviction of a felony or 

acceptance of a guilty plea or nolo contendere therefor; 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) (emphasis 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.2d 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 received no confirmation that [Petitioner] has 

complied with this provision of this Order.

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

Giordano), the School District’s Human Resources Director, immediately went to 

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

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 submit to that drug test, Director 

Giordano placed 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 result’ 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 reasonable 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 employee convicted of delivery of or possession of a controlled 

substance with the intent to deliver shall be terminated from his/her 

employment with the district.

Delegation of Responsibility

A statement notifying employees that the unlawful manufacture, 

distribution, 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 and 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 cocaine 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 not 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 neglect 

of duties.

(R.R. at 156a) (footnotes added). On February 9, 2016, five days after refusing the 

first drug test, Petitioner submitted to a urinalysis drug test.

Consistent with the custody dispute letter, Petitioner tested positive 

for cocaine metabolites. (See R.R. at 163a.)

 

(continued...)

The district shall take appropriate personnel action against 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 other 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 notice4stating that he would 

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

in violation of . . . School District Policy 451 and the Pennsylvania 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 voluntarily 

waived that hearing.

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

Statement of Charges and Notice of Hearing, notifying 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 

Code and School District Policy 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 Court 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 

employee.

Id. at 546 (citations omitted).
7

II.

Before the Board, Director Giordano testified that on February 4, 

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

between two attorneys in Petitioner’s custody dispute acknowledging receipt of 

Petitioner’s positive drug test result for cocaine metabolites. Based upon 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 to 

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

Director Giordano testified that he then held a meeting with Petitioner 

and the president of the BEA, Jolene Vitalos, as well as the principal of East Hills. 

He explained that during that meeting, Petitioner “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 also 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, obviously 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 metabolites, the School District issued a Statement of Charges and Notice 

of Hearing. Director Giordano recommended 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 investigate 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) (emphasis 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 was 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 when 

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 certified medical review officer, who testified that she 

reviewed Petitioner’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 substance 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 Petitioner’s conduct was immoral,5the School 

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

Superintendent of the School District for approximately five-and-a-half years and

during that time he has resided in Bethlehem City. He previously 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 District, he testified that he has 

a good sense of the community morals. He explained, “I think that a teacher who 

 

5 Under Section 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 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 elevate.’” McFerren v. Farrell Area School District, 993 A.2d 344, 353 (Pa. Cmwlth. 

2010) (quoting 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 the 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 positive. 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 still -- 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 stated that he has never consumed

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 

106a.) 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 denied 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, however, that in addition to the February 9, 2016 drug 

test, he tested positive for cocaine metabolites for a drug test administrated 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] determination of whether substantial evidence supports necessary factual findings, and 

(Footnote continued on next page...)
13

III.

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 presented supporting that charge – the February 9, 

2016 urinalysis drug test – was obtained unconstitutionally since 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 describing them 

as nearly as may be, nor without probable cause, 

supported by oath or affirmation subscribed to by the 

affiant.

Pa. Const. art. 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 misconduct.”

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

A government employer’s – here, a public school’s – collection 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 considered

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 

governmental 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, 340-41 (1985). This principle 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 expectation 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 Fed. App’x 300 (3d Cir. 2010) (upholding 

breathalyzer test of corrections 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 safetysensitive 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 Fed. 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 unparticularized 

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

24 (2000) (citations and quotations omitted). Like the probable-cause standard, 

“the totality of the circumstances – the whole picture – must be taken into 

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

search is based upon information obtained from an informant, courts 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 to 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 attorneys in a custody proceeding. The fact that the parties were 

identified 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 unknown 

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. Barber, 889 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 at 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 letter and 

underlying order both occurred in 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 been under the influence of drugs while teaching.

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

eventual drug test also corroborated the letter’s conveyed information. For 
17

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, corroborated the suspicion that Petitioner did, in fact, use cocaine and 

may have been 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 determining 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 County-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, 2018, 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 PELLEGRINI, Senior Judge