The URL can be used to link to this page

Home My WebLink About01-06841 s-"''''"~imj '-~ .-.~~~ -,,' --,-- --'''~ " , " i CODY CORMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION LAW : No. 01-6841 CIVIL 2001 v. : (Local Agency Appeal) SOUTH MIDDLETOWN SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF APPEAL AND PETITION I. PROCEDURAL HISTORY Petitioners Cody Cornman, by and through his parents, Ronald and Tanya Cornman, commenced this action against Respondent, South Middletown School District Board of Directors, on or about December 3,2001. Petitioner is a minor and a tenth grade student at Boiling Springs High School, South Middletown School District. The within matter arises from allegations that the Petitioner sold controlled substances to fellow students on campus. A formal hearing was conducted by the said school board on or about October 18, 2001. Prior thereto, and on four (4) separate occasions, Petitioner formally requested ofthe school board that the alleged witnesses to the alleged act, or acts, be present at the hearing. Said witnesses are students attending Boiling Springs High School. Petitioner's requests were denied. The school board at the October 18, 2001, hearing voted to expel the Petitioner, II. UNDISPUTED FACTS OF THE CASE The South Middletown School District Board of Directors acknowledged Petitioner's requests for witnesses to be present at the expulsion hearing. By and through their Solicitor, the Board of Directors denied Petitioner's request on the grounds that: (a) they had no duty to provide requested witnesses; and (b) they had no power of subpoena to compel the alleged witnesses to appear at the hearing. The Expulsion Hearing was conducted on or about October 18, 200 I, wherein no requested witnesses appeared for the School District, or otherwise, to offer testimony against or on behalf of the Respondent. The Petitioner was expelled from school for the remainder of the 2000 - 2001 school year and for the entire 2002 - 2003 school year. -,r.:-,~,.,_ .J"__. , -,~"7f"- ,,' ,-,___ ~,-- - ",-,rb .c, '.,-l. ~ l.,5,~'r:lTWT 'I'" , ',' ~~ -, ." " ,- , 'I~ ~ III. STATEMENT OF QUESTION PRESENTED Whether the Respondent has a duty under law, specifically under 22 P A Code ~ 12.1 et seq., Students Rights and Responsibilities, to afford the Petitioner the right to witnesses and cross-examine witnesses where such witnesses' allegations are used as a basis for expulsion. IV. LEGAL ANALYSIS The Courts have long held that the right of a pupil to a public education is a "property right" protected by the process clauses ofthe U.S. and Pennsylvania Constitutions. Within Pennsylvania, these rights have been codified in 22 P A Code ~ 12, titled Students Rights and Responsibilities. This section of the P A Code is commonly referred to as the "Students Bill of Rights." 22 PA Code ~12.8, Hearings, define the procedures to be adhered to at those hearings prior to any act of expulsion. Section 12.8 (vi) sets forth as a "Right", that any witnesses appear in person, answer questions, and be cross-examined. In Oravetz v. West Allegheny School District, 74 D. & C.2nd 733, 1975, Appeal from Suspension, the Court found that as early as 1887, State courts have ruled that where a school hearing on misconduct by a student is held, they (student) are ".. .entitled to know what testimony had been against him/her, and by whom it had been delivered, AND that the proofs be made openly and in his/her presence, with a full opportunity to question the witnesses and to call others...." Hill v. McCauley, 3 Pa.C.C. 77 (1887). In Oravetz, the Court found among other Due Process violations, that "one of the fundamental and basic reasons for a formal hearing and the procedure for cross-examination and the presentation of witnesses is to arrive at the truth." Further, that "a true hearing is more than a Round Table Discussion (emphasis added). . .but must utilize techniques that have been developed over the centuries to arrive at the truth or falsity of allegations. In a.s. v. West Shore School District, 28 D. & C.4th 465,1993, Appeal from Expulsion, this Honorable Court denoted that".. . there is a duty on our part to intervene if we conclude that Due Process has been abridged by governmental authorities. . .." Further, that these ". ..Due Process Rights have been codified...in 22 PA Code ~12.8..." and among those codified rights, "the right to be presented with names of witnesses against the student as well as copies of the statements [and] the right to cross-examine." ,,~- O"'__~ ';'.'" '-'^~~i-~~L',r::."~_ --.---,'._-,,-~~t_,,_~'1- "._". _,c.,_ ':,r- -":; . ~ - ,,- ;':;;j'J'-~--":''f'r~'_--- rt- ,c',',,"' ,'. --:r --I' ,- ,. .. i 'I v. CONCLUSION Thus, the minor Petitioner, Cody Cornman, promptly and with diligence, by and through his counsel, sought to exercise his rights as afforded in 22 P A Code 9l2.8(b)(1) (vi & vii). The Respondent chose to ignore the Petitioner's repeated requests to have requested witnesses present. The Respondent chose to deny the Petitioner's Constitutional Right to Due Process, as codified in 22 P A Code 912.8 et seq., and instead, chose to have a "Round Table" discussion whereupon Petitioner was summarily expelled. Respectfully submitted, ,-",- ,/ en R. Waltz, sq Taro Law Offices 28 South Pitt St. Carlisle, P A 17013 (717) 245-9688 ;",~'l[r '." ,-",(,~--,,-,, :~-, ''''-'--'_",J,_ "''-~'1i/-'_'''I' ' ',',,>;" r,- ." I'" - ,,- ,._ .~ ,,!!l!I'!Il!IIJ ;\,.." ;, ~-" ..'.']['! "'- ~ - ,'~,. ",' - r;' ~ "-" ,. , , CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Appeal and Petition for Review upon the following, by depositing same in the United States Mail, first class, postage pre-paid on the 1 ih day of December, 2001, from Carlisle, Pennsylvania, addressed as follows: Philip H. Spare, Esquire Snelbaker, Brenneman & Spare 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 TURD LAW OFFICES alen R. Waltz, E 28 South Pitt S et Carlisle, PA 1 13 (717) 245-9688 Attorney for Plaintiff "'~~'''i ""''"'''''"''\>~~'~''--'(})'',-dt-~~~ '''',,: ~.,,""'."~ .._~__'r.,I~~, _ -','" 'n" " ,'f"_ ,. "- - - --~ --, " - ~H!'- '--- ". --.'-'",1- ! l.AW OFFICES SNELBAKER, BRENNEMAN & SPARE '<,."-,, , DEe 3 1 2001 ,,0 CODY CORNMAN, a minor by his Parents, RONALD and TANYA CORNMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW Petitioners : NO: 01-6841 CIVIL 2001 vs. SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Local Agency Appeal Respondent RESPONDENT'S BRIEF IN SUPPORT OF ITS NOVEMBER 5. 2001 ADJUDICATION I. INTRODUCTION This Brief is submitted by the Board of School Directors of South Middleton School District in support of its Adjudication in the student discipline matter involving Cody Cornman issued November 5, 2001. This Brief is submitted pursuant to the direction of the Court as discussed during a December 21, 200 I telephone conference call between Judge Guido, Attorney Galen Waltz and the undersigned. II. STATEMENT OF THE CASE In early September 2001, administrators of the Boiling Springs High School received reports that students were buying and selling prescription medications at schooL (Transcript of October 18, 200 I Hearing, hereinafter "Transcript", p. 8) The administration conducted an investigation. At first, Cody Cornman denied selling prescription medications at schooL (Transcript, p. 9) Upon a second interview with administrators, Cody Cornman admitted selling pills at schooL (Transcript, p, 10) He identified the pills sold as the prescription medication _ { 'c _ ~_ _ _ T._~ _',_' f.", " ~I~ "'" ~""._. '" ,-. II j, i LAW OFFICES SNELBAKER, BRENNEMAN 8: SPARE ;,;;&'~ -r Adderall. Cody testified at the October 18, 2001 hearing that he asked a fellow student why he was repeatedly jumping and active and the other student told Cody that he had ADHD. Cody asked the fellow student with ADHD ifhe took any medication and the other student told Cody that he took Adderall. Cody questioned the other student about whether he ever decided to sell any Adderall and the other student agreed with Cody to do so. Cody further testified that the other student brought "the pills" to school the next day. (Transcript, pp. 31-32) The assistant high school principal, John Gallagher, testified at the October 18 hearing that he called Cody in for questioning a second time. Mr. Gallagher testified: "At that time, Cody admitted to receiving a bottle of Aderol (sic) pills from another student to sell. He admitted to selling pills to a number of students in school on or about September 6, 2001. He stated students usually paid a dollar for two pills. In addition, he stated he sold about three pain pills to another student for a dollar each. He gave some money back to the student who supplied the Aderol (sic) pills." (Transcript, p. 10) In addition to calling the student, Cody Cornman, as a witness at the October 18, 200 I hearing, counsel for Petitioners called Joseph J. Glogowski, a psychotherapist working with Cody. (Transcript, p. 46) Mr. Glogowski testified as follows regarding Cody: "Well, he came in on the advice of his attorney, and what impressed me initially was the fact that he was honest about why he was there. He had talked abut his selling Aderol (sic) and pain killers and that this lasted approximately three days." (Transcript, p. 49) Mr. Glogowski also testified that: "It appears that the selling of drugs only lasted three days. He realized that what he did was from him, quote, stupid." (Transcript, p. 50) III. ISSUES PRESENTED A. Whether the record below is "full and complete?" Suggested Answer: Yes. 2 "co, - , ~ - , " '"- it",,.;.,,,>,, "'~"'''''''=''''r.~"",",~'' -, c, ;\ I LAW OFFICES SNELBAKER. BRENNEMAN & SPARE \,~<>l_L_'er_ ,'c' ~,,,_r.<,--_,,,",,-?,,, If' UI , " B. Whether the November 5, 2001 Adjudication is in violation of the constitutional rights of Petitioner, or is not in accordance with law or that the Local Agency Law was violated in the proceedings before the Agency, or that any finding of fact made by the Agency and necessary to support its adjudication is not supported by substantial evidence? Suggested Answer: No. C. Whether the Board properly exercised its discretion in this case? Suggested Answer: Yes. IV. ARGUMENT A. The record is full alld complete. A school district is a "political subdivision" and as such is a "local agency" within the Local Agency Act. Appeals from adjudications resulting from student discipline hearings are properly addressed by the Court of Common Pleas under the Local Agency Law. Penn Hills School District vs. McDonald, 7 Pa. Cmwlth. 339,298 A. 2d 612 (1972). The Local Agency Law provides: Disposition of appeal. (a) Incomplete record. - 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. (b) Complete record - In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutionail rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure oflocal agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, tM 3 LAW OFFICES SNElSAKER, BRENNEMAN & SPARE ,':~'" . c " ,~"1'. 11 court may enter any order authorized by 42 Pa. C.S. S 706 c (relating to disposition of appeals). 1978, April 28, P.L. 202, No. 53, S 5, effective June 27,1978. 2 Pa. C.S. S 754 The Commonwealth Court of Pennsylvania has held: " The crucial aspect on appeal is whether there is a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal, and also, that the appellate court is given a sufficient record upon which to rule on the questions presented." In re: Sharp's Convalescent Home vs. Department of Public Welfare, 7 Pa. Cmwlth. 623, 628, 300 A. 2d 909, 911 (1973), cited in Springfield School District vs. Shellem, 16 Pa. Cmwlth. 306, 310, 328 A. 2d 535,538. There is no doubt that a full stenographic transcript ofthe Board's October 18, 2001 hearing was made and is properly of record before this Court. Certainly, the transcript of the October 18, 200 I Board hearing provides this Court with a sufficient record upon which it can review the proceedings before the Board to determine whether constitutional rights were violated, whether the rule oflaw was followed and whether there is substantial evidence of record to support the findings offac!. The crucial issue before this Court is whether the record below is sufficient to allow this Court to perform its function on appeal. Daniels vs. Philadelphia Fair Housing Commission, 99 Pac Cmwlth. 155,513 A. 2d 501 (1986). This Court should review the full and complete transcript of the proceedings below according to Section 754 of the Local Agency Law, 2 Pac C.S. S 754. B. The November 5, 2001 Adjudication does not violate Petitioners' constitutional rights, is based upon the rule of law and there is substantial evidence of record to support the necessary findinl!s of fact. Petitioners appear to be arguing to this Court that their constitutional and due process rights were violated by the Board of School Directors. A careful review of the record in this case will show otherwise. The fundamental requirement of due process is notice and an opportunity 4 .- " LAW OFFICES SNELBA.KER, BRENNEMAN & SPARE r I ! to be heard. Sto-Rox School District vs. Horgan, et aI., 68 Pac Cmwlth. 4,16, 449 A. 2d 796 (1982) The record in this matter indicates that proper notice of the hearing was given to the student and his parents. The parents hired an attorney, further ensuring that their due process rights would be protected. The Board of School Directors granted the continuance request submitted by counsel on behalf of the student and his parents. There is nothing of record in the transcript to suggest that the Petitioners did not have reasonable notice of the hearing. The record further indicates that the Petitioners had every opportunity to be heard at the hearing. In fact, the Petitioners' counsel presented the student as a witness and also presented a psychotherapist to testify on behalf of the student. On appeal, Petitioners have attempted to make an issue of the situation that certain other witnesses were purportedly not provided for them at the hearing. First, Petitioners were free to present any relevant witnesses at the October 18 Board hearing. Second, at the December 19, 200 I oral argument, counsel for Petitioners was given an opportunity to provide an offer of proof to this Court to identify witnesses and to explain what testimony those witnesses would offer to the Court if they were permitted to testify. The opportunity to provide this Court with such an "offer of proof' is more than sufficient to cure any alleged error before the Board. The opportunity to provide this Court with such an offer of proof was not taken advantage of. Instead, Petitioners' counsel merely submitted a letter to the Court on December 21, 2001 more like a brief than an offer of proof. Rather than listing who would testify and what they would testify to, the letter set forth vague, conclusory and unspecific topics that certain unnamed witnesses might testify to. It is now obvious that the testimony of other witnesses is not necessary to resolve this matter. It is curious to note that according to the December 21, 200 I letter from Attorney Waltz, the witnesses he wants to call to this Court's 'lttention would 5 - LAW OFFICES) SNEL8AKER. BRENNEMAN 8: SPARE ',I "produce corroborative information regarding facts in question testified to by Cody... ." Why such information would be necessary is not explained. Respondent suggests that it is not necessary for this Court to receive additional testimony corroborating what Cody has already testified to and admitted to. In student discipline matters, a school district must follow the requirements of the Public School Code of 1949, as amended. 24 P .S. S 1318. Additionally, there is a portion of the Pennsylvania Code known as the "Student Rights and Responsibilities Regulations" found at 22 Pac Code 12.1 et seq. Formal student discipline hearings are subject to the procedures set forth in 22 Pac Code 12.8. A review of the record in this matter will reveal that each of the due process requirements found in the Pennsylvania Code were followed. Notification of the charges was sent to the student's parents by certified mail. Sufficient notice of the time and place of the hearing was given. Additionally, a continuance request by the parents' attorney was granted by the Board. The hearing was held in private as requested by the parents at the hearing. The student was represented by counsel. The student was presented with names of witnesses and with copies of any statements of those witnesses in advance. Apparently, the administration decided that it was not necessary to call all of those witnesses first identified because Cody had admitted to behavior in question. It was sufficient to have the assistant principal testify at the hearing as to Cody's admission of responsibility in the matter. It is curious that the student's attorney is now arguing that the District should be required to present additional witnesses against his client. The student's own testimony at the hearing clearly indicates that he admitted to selling of prescription drugs at school and that he recognized his actions as "stupid." (Transcript, pp. 27, 30, 50, 90) In summary, Cody was given ample notice of the hearing and an 6 , ~.^ '~I>" -"-'1 ., -,-''''- '""',-,,- ,-. 'H' ~~ .~ 1JflIilMI!l W;""",;, L.AW OFFICES SNELBAKER. BRENNEMAN & SPARE L""~. II i I opportunity to be heard. He cannot now validly complain that his due process or constitutional rights were violated by the proceedings before the Board of School Directors. The Appeal and Petition For Review in this case claims that the report of the administrators' investigation was "replete with hearsay and speculative co:nclusions." (Appeal and Petition for Review, Paragraph 17) The hearsay of which Petitioners complain simply explained the background of the matter. The assistant principal explained why he conducted an investigation and why he questioned Cody. (Transcript, pp. 8-10) The Local Agency Law provides that local agencies are not bound by technical rules of evidence at agency hearings and that all relevant evidence of reasonably probative value may be received. 2 Pa. C.S. S 554 While it is true that an adjudication cannot be based entirely on hearsay evidence, such is not the case here. Kazmarek v. New Bethlehem Borough Council, 84 Pac Cmwlth. 19,478 A 2.d 514 (1984) In the case at bar, the hearsay evidence complained of was admitted to explain some of the background leading to the investigation of Cody Cornman. (Transcript, pp. 8-10) The findings offact in the Adjudication are based upon other evidence, including the student's own admissions. Thus, the substantial evidence of record relied upon in the Adjudication comports with the Local Agency Law and is not based on hearsay evidence. There is substantial evidence of record to support the findings of fact contained in the November 5, 2001 Adjudication. The Adjudication made the following pertinent Findings of Fact: "Over a period of three school days beginning on or about September 6, 2001, while at the High School, student sold 60-65 tablets of a controlled substance, the prescription medication Adderall, to other students at a price of two tablets for $1.00." The following evidence of record exists to support the findings offact. First, Assistant High School Principal, John Gallagher, testified that Cody admitted to receiving a bottle of Adderall pills from another student to sell. 7 '. .. "" <.-' -"0' -~. """"""'" ,..,,)_,,,,_.,,.,_,^ ro_ LAW OFFICES SNEL8AKER, BRENNEMAN & SPARE '"~~. c> -,' <. __~"'''O Ii ~ ~~ " II , He admitted to selling pills to a nwnber of students in school on or about September 6, 2001. He stated students usually paid a dollar for two pills. The students who Cody stated were sold pills were questioned and confirmed they received the pills from Cody. (Transcript, p. 10) Cody Cornman appeared voluntarily as a witness called by his own attorney. (Transcript, p. 26) On direct examination, Cody testified that he charged a dollar for two pills. (Transcript, p. 27) Cody testified that he "thought that he could get away with it." (Transcript, p. 28) Cody also testified as follows: "Well, all I can say is that what I did was definitely a mistake and I didn't realize the consequences. And now that I realize the consequences, it will never happen again. It was a stupid thing to do on my part, and I didn't -like I said, I didn't realize what was going to happen. It was just stupid from the start. I'm sorry, very sorry." (Transcript, pp. 29-30) Under cross-examination, the following exchange took place between Assistant Principal Gallagher and Cody: Q. First, Cody, how many pills was it that you sold? A. Around, roughly about 60-65 pills. Q. Now did _ approach you, or did you approach _ about it? A. I asked ~ about why he was, you know, repeatedly jwnping, like a lot of active stuff, and he told me he had ADHD. I asked if he took any medication, and he told me he took Aderol. And I had questioned him about ifhe ever decided to sell any, and he agreed with me. And he brought the pills the next day. Q. Was it one conversation? A. It was - well, there was one conversation. And then he said he was going to bring it the next day, and he didn't bring it. And then the next day I asked that he bring it, and he brought it in the next day. Q. And where did he give you these pills? 8 :r LAW OFFICES SNELBAKER, BRENNEMAN & SPARE ":'\1~',_"" 11 A The first time it was in the morning at his locker. He had it in his gym bag, and I got it out of his gym bag. And he gave it to me. Q. You said the first time? A Yes. There was more- Q. Did he give you more- A. Yes. Well, at the end of the day, I gave him the bottle back and he refilled it and gave it to me the next day. And it happened for three days, three days. I gave him the empty bottle, and he refilled it for three days. Q. How much money did you give him? A. There was a total of between probably 35, $40, and I gave him all the money. (Transcript, pp. 31-32) (Other student names redacted for confidentiality reasons.) This testimony under oath by the student at the October 18, 2001 Board hearing supports the findings offactmade by the Board in its November 5, 2001 Adjudication. The student's other witness, Joseph Glogowski, a psychotherapist working with Cody, also testified that Cody admitting selling Adderall. Mr. Glogowski was impressed about how honest Cody was with him. (Transcript, p. 49) Given Cody's honesty, it now seems disingenuous for Cody's representatives to be arguing that the Board of School Directors does not have substantial evidence to indicate that Cody sold Adderall and pain killers at school. Cody admitted to selling Adderall on at least three occasions on the record ofthe October 18, 2001 hearing, as explained above. The term "substantial evidence" within the law regarding the findings of fact necessary to support an adjudication has been described as: "more than a scintilla, and must do more than create a suspicion of existence of the fact to be established and mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." A P. Weaver & Sons vs. 9 ,"'1" '1"''1:' """." ,>.~ ".., __-,._ , "",,,,~,,," - - "~. r. , .~"..,,~...,~ CAW OFFICES $NELBAKER< .BRENNEMAN & SPARE '~;\-),; 'I Sanitarv Water Board, 3 Pac Cmwlth. 499, 284 A. 2d 515 (1971). The substantial evidence standard is less than a "clear and convincing" standard and is also less than a "preponderance of the evidence" standard. Kish vs. Annville-Cleona School District, 165 Pa. Cmwlth. 336, 645 A. 2d 361 (1994). It is submitted that an admission of record by the party in question appearing at least three times in the record before the agency is more than sufficient to provide a reasonable man with enough evidence to conclude what occurred. In the case at bar, the student admitted to the assistant principal that he sold Adderall. He described his interaction with the student providing the Adderall to him and he had his psychotherapist testify as to his honesty in admitting that he sold Adderall. It is thus perfectly reasonable and appropriate for the Board of School Directors to conclude that the student sold Adderall. It is true that there is no physical evidence or laboratory test result specifically identifying the substance as Adderall. However, the fact that the student admitted to the behavior on at least three occasions eliminates the need for physical evidence and is more than sufficient to allow the Board to reach its conclusion. C. The Board properlv exercised its discretion in this case. School District Policy 227 also defines "controlled substances" as including "look-alike" substances. The banning of look-alike controlled substances performs an important public policy function in a school. It is disruptive to the school process and very dangerous to allow students to buy and sell drugs and substances that look like drugs. The administrators of a school must be able to prohibit students from selling prescription drugs and substances that look like prescription drugs. A student who does not know what he is selling is even more dangerous than a student selling an identified prescription medication. It does not take much imagination to think of a disastrous situation that could result from a student selling unkhown substances to other students. Schools must have the authority to prohibit such behavior. 10 *R LAW OFFICES SNELBAKER BRENNEMAN & SPARE I' The evidence of record in this case clearly indicate that Cody admits to selling Adderall. There is no doubt that Cody intended to sell the prescription medication and controlled substance Adderali to other students. Even if it could somehow be proven that he did not actually sell Adderali, but was instead selling a look-alike substance, the Board of School Directors would be well within its discretion to impose the same discipline set forth in its November 5, 2001 Adjudication. In a hypothetical situation where a student sold substances that look like prescription drugs, it is possible that a Board could elect to impose a different penalty. However, those facts are not now before this Court and because the Board would be entirely within its discretion to impose the same penalty for a "look-alike" violation, the Adjudication must stand. A reviewing court may employ its discretion to reduce a penalty imposed by a Board of School Directors only where it conducts a de novo hearing or if an adjudication did not meet one of the four criteria established by Section 754(b) of the Local Agency Law. Kish vs. Annville-Cleona School District, 165 Pa. Cmwlth. 336, 645 A. 2d 361 (1994) In the Kish case, the Commonwealth Court held that a Court of Common Pleas may not substitute its judgment for that of a local school district unless it concludes the record below was not full and complete and decides to hold a de novo hearing or finds that the adjudication was in violation ofthe constitutional rights, contained errors of law or was not based upon substantial evidence. The final argument from Petitioners is that Cody Cornman was selectively prosecuted. There is no evidence of record to support that argument. It is the Petitioners' burden to establish a prima facie case of selective prosecution. In a criminal case, to make out a case of selective prosecution, a defendant must establish, at a minimum that: 1. He has been singled out for prosecution even though other similarly situated individuals have not generally been proceeded against, despite having engaged in conduct akin to that of which defendant is accused' c , 11 - II 1- J and 2. He has been selected for prosecution as a result of such impermissible considerations as race, religion, or desire to prevent his exercise of constitutional rights. Commonwealth vs. Van Wells, 441 Pa. Super 272,657, A. 2d 506 (1995). Even after being given the opportunity to present an offer of proof by this Court, it is clear from the record that the Petitioners have failed to present even a prima facie case of selective prosecution. Additionally, there is not even a hint of any impermissible consideration such as race, religion or a desire to prevent the student from exercising his constitutional rights as having played any role in this matter. For these reasons, the November 5, 2001 Adjudication ofthe Board of School Directors of South Middleton School District should be affirmed by this Court. V. CONCLUSION Because the record below is full and complete and because the November 5, 2001 Adjudication does not violate Petitioners' constitutional rights, was made in accordance with law and the findings offact are based upon substantial evidence of record, the Adjudication should be affirmed by this Court. Respectfully submitted, LAW OFFICES SNEL8AKER, BRENNEMAN & SPARE SNELBAKER, BRENNEMAN & SPARE, P.C. By:-4JN~ ilip . Spare, squire Pa. Supreme Court LD. No: 65200 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Respondent Board of School Directors of South Middleton School District Date: December 31, 200 I 12 c'_i., .,-' . _,-".,_ ~ , -" "~_,""_"'" I LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 'P!l'f"'i!' CERTIFICATE OF SERVICE I, PHILIP H. SPARE, ESQUIRE, hereby certify that I have on the below date, caused a copy of the foregoing Respondent's Brief in Support of its November 5, 2001 Adjudication to be served upon the person and in the manner indicated below: FIRST CLASS MAIL POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, P A 17013 Philip H. Spare, Es ire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys for Respondent Board of School Directors of South Middleton School District Date: December 31,2001 -- [:;', .r}l-~-lj") - :.,. _-1~', . - . , i CODY CORMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners ; IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION LAW : No. 01-6841 CIVIL 2001 v. : (Local Agency Appeal) SOUTH MIDDLETOWN SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF APPEAL AND PETITION I. PROCEDURAL HISTORY Petitioners Cody Cornman, by and through his parents, Ronald and Tanya Cornman, commenced this action against Respondent, South Middletown School District Board of Directors, on or about December 3, 2001. Petitioner is a minor and a tenth grade student at Boiling Springs High School, South Middletown School District. The within matter arises from allegations that the Petitioner sold controlled substances to fellow students on campus. A formal hearing was conducted by the said school board on or about October 18, 2001. Prior thereto, and on four (4) separate occasions, Petitioner formally requested of the school board that the alleged witnesses to the alleged act, or acts, be present at the hearing. Said witnesses are students attending Boiling Springs High School. Petitioner's requests were denied. The school board at the October 18, 2001, hearing voted to expel the Petitioner. II. UNDISPUTED FACTS OF THE CASE The South Middletown School District Board of Directors acknowledged Petitioner's requests for witnesses to be present at the expulsion hearing. By and through their Solicitor, the Board of Directors denied Petitioner's request on the grounds that: (a.) they had no duty to provide requested witnesses; and (b) they had no power of subpoena to compel the alleged witnesses to appear at the hearing. The Expulsion Hearing was conducted on or about October 18, 2001, wherein no requested witnesses appeared for the School District, or otherwise, to offer testimony against or on behalf of the Respondent. The Petitioner was expelled from school for the remainder of the 2000 - 2001 school year and for the entire 2002 - 2003 school year. , _^ __ 3 ~ ,_",~_,~ L-". _. _ ., < _.~ - ~"'-' - - ~, r _.,,~ -' .,,-T~".____.,,-:_, ,,__,_'_",'":R_,.l~_J" . III. STATEMENT OF QUESTION PRESENTED Whether the Respondent has a duty under law, specifically under 22 P A Code ~ 12.1 et seq., Students Rights and Responsibilities, to afford the Petitioner the right to witnesses and cross-examine witnesses where such witnesses' allegations are used as a basis for expulsion. IV. LEGAL ANALYSIS The Courts have long held that the right of a pupil to a public education is a "property right" protected by the process clauses of the U.S. and Pennsylvania Constitutions. Within Pennsylvania, these rights have been codified in 22 P A Code ~ 12, titled Students Rights and Responsibilities. This section of the P A Code is cornmonly referred to as the "Students Bill of Rights." 22 P A Code ~ 12.8, Hearings, defme the procedures to be adhered to at those hearings prior to any act of expulsion. Section 12.8 (vi) sets forth as a "Right", that any witnesses appear in person, answer questions, and be cross-examined. In Oravetz v. West Allegheny School District, 74 D. & C.2nd 733,1975, Appeal from Suspension, the Court found that as early as 1887, State courts have ruled that where a school hearing on misconduct by a student is held, they (student) are ".. .entitled to know what testimony had been against him/her, and by whom it had been delivered, AND that the proofs be made openly and in his/her presence, with a full opportunity to question the witnesses and to call others.. .." Hill v. McCauley, 3 Pa.C.C. 77 (1887). In Oravetz, the Court found among other Due Process violations, that "one of the fundamental and basic reasons for a formal hearing and the procedure for cross-examination and the presentation of witnesses is to arrive at the truth." Further, that "a true hearing is more than a Round Table Discussion (emphasis added).. .but must utilize techniques that have been developed over the centuries to arrive at the truth or falsity of allegations. In G.S. v. West Shore School District, 28 D. & CAth 465,1993, Appeal from Expulsion, this Honorable Court denoted that "...there is a duty on our part to intervene if we conclude that Due Process has been abridged by governmental authorities. . .." Further, that these".. .Due Process Rights have been codified...in 22 P A Code ~ 12.8.. ." and among those codified rights, ''the right to be presented with names of witnesses against the student as well as copies of the statements [and] the right to cross-examine." -I- .,. . . --~"~~ I ~ - ~,-,~~ " - . v. CONCLUSION Thus, the minor Petitioner, Cody Cornman, promptly and with diligence, by and through his counsel, sought to exercise his rights as afforded in 22 P A Code ~ l2.8(b)(1) (vi & vii). The Respondent chose to ignore the Petitioner's repeated requests to have requested witnesses present. The Respondent chose to deny the Petitioner's Constitutional Right to Due Process, as codified in 22 P A Code ~ 12.8 et seq., and instead, chose to have a "Round Table" discussion whereupon Petitioner was summarily expelled. Respectfully submitted, <--'" ';[~.' :J, ~ _, _,~_ ~_" .",JI'!f~ " -" ~- - , "-~= >~ , CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Appeal and Petition for Review upon the following, by depositing same in the United States Mail, first class, postage pre-paid on the 1 th day of December, 2001, from Carlisle, Pennsylvania, addressed as follows: Philip H. Spare, Esquire Snelbaker, Brenneman & Spare 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 TURO LAW OFFICES alen R. Waltz, E 28 South Pitt S et Carlisle, PA 1 13 (717) 245-9688 Attorney for Plaintiff 8T,:1jlfi!f:L,_" _ ,'~",,:< '.,<~ ,~': H ':_' , - -, -I"""~ =,' ~, .- -, .,_:~ i-r"-'~iI7f"f"~'I' .' _"'-' " . . I CODY CORNMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN)Y, PENNSYLVANIA CIVIL ACTION LAW : .No. 01-6841 CIVIL v. (Local Agency Appeal) SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent PETITIONER'S BRIEF 1. Should an analysis of due process violations be made prior to a "complete record analysis? Suggested answer: Yes. 2. Whether South Middleton District School Board's failure to provide witnesses against the Petitioner after the Petitioner demanded that the witnesses against him be present for examination and cross-examination violates the Petitioner's due process right? Suggested answer: Yes. DISCUSSION Issue #1. Petitioner's research has been unable to determine or to secure authority in support of the Court beginning its analysis whether the record is complete followed by constitutional issues; also, Petitioner has been unable to find authority opposed to that analysis. During the course of the Petitioner's investigation the Pennsylvania School Board Association was contacted and it appears that this procedural area is an extremely "gray" area. :Y~l~..,. -- .~ ^,. nlr~ '" '-':~ _ "~I""O ,",,->, . ,r. I~ '1 JI . - 11 However, it seems to defy logic to begin an analysis whether the record is complete before analyzing the due process question complained of which may serve to moot the "completeness" analysis. To require Petitioner to speculate as to what six accusing witnesses would say seems to go to the merit of the subject matter. Requiring Petitioner to provide a proffer of the eight witnesses who were not produced to testify on the Petitioner's behalf at the hearing also goes to the merit of the subject matter. To analyze the completeness of the record based upon, potential subject matter testimony of the fourteen witnesses inappropriatel)! serves to exacerbate the due process violation already alleged to have occurred against the Petitioner. Concluding that the record is complete perpetuates the very due process violation that petitioner complains about. The question of "completeness of record" cannot be entert?ined if the constitutional question of due process is not answered in the first instance. Whether the Petitioner has received due process as laid out in Pennsylvania Code, the school handbook and the Federal Constitution requires analysis before this Court attempts to determine the completeness of the record; for a record cannot be, complete if there is a violation of due process. The analysis must first begin by evaluation of the procedure that leads to the receiving of the subject matter. In other words, the due process analysis by logic and definition must be made prior to an analysis of "completeness of record." THEREFORE, Petitioner respectfully requests this Honoralble Court suspend its analysis of completeness of record in favor of a due process analysis. "~""~____r _ '_~_~"." ! ~...,~ ,j ~-l ," ~"",\,., -- --'.-" o ,'~ ._ ,'_ , - ~ - \ "~:'1'f~1, ' ~ .r._, ','_ ~ " Issue #2: Whether South Middleton District School Board's failure to provide witnesses against the Petitioner atter the Petitioner demanded that the witnesses against him be present for examination and cross-examination violates the Petitioner's due process constitutional right? By letter dated September 28, 2001 (Exhibit 5) Petitioner named specifically the witnesses the Petitioner desired to be present at the hearing for testimony. That specific listing included eight witnesses for litigation purposes on behalf of the Petitioner and the six witnesses suspected to be called by the South Middleton School District. At no time was the September 28, 2001 written request (Exhibit 5) rescinded or waived by the Petitioner. To the contrary, the School District's October 15, 2001 letter to Petitioner's counsel (Exhibit 10) indicated that the six students "named as witnesses against the student" affirmed an expectancy that those witnesses would be the only witnesses present a'nd called on behalf of the South Middleton School District. "I was expecting other witnesses. Are these the only two witnesses the District is planning to present today?" (notes of transcript at page 11) The basis for Petitioner's expectancy was corroborated at Exhibit 3 where Petitioner stated, "naturally, some of the School District witnesses, when revealed to me, may reduce the number of subpoenas requested." The October 15, 2001 South Middleton School District letter (Exhibit 10) affirmed Petitioner's belief that the only witnesses provided by the School District would be those listed at paragraph #1, which duplicated the names that were requested in Petitioner's September 28, 2001 letter (Exhibit 5). The Boiling Springs High School Handbook (Exhibit 9) at paragraph #6 states under the heading Expulsion and Due Process: "The right to demand that any such witnesses appear in person and answer questions or be cross-examined." It also states in paragraph #7 "the student's right to testify and produce ~itnesses on his/her own behalf." Page 26, at Pa. Code 912.8 under hearings ind;cat~s at subparagraph (b) (1) (vi) "the student has a right to request that any such witnesses appear in person and Ie ?" :', -", e, '"' - ~-" ". . ,< 'ch" ..". '." ,. ,- "~;''''ff'~ C' ". .,.- .'-,- n..~__ ",.>(~~i'" .- II answer questions or be cross-examined." At (b) (1) (vii) it states "the student has the right to testify and present witnesses on his/her own behalf." Both School District Handbook (Exhibit 9) and the Pa. Code mirror the right of the Petitioner to request the presence of those witnesses against him for examination and cross-examination, as well as the presence of witnesses that the student would like to produce on his/her behalf. The concept of cross-examining witnesses against the student and requesting that they appear in person to answer questions and be cross-examined is not a privilege; it is a right. Orvatiz. the West AlleQhenv School District, 74 (D) and (C) 2nd 733, (1975). Exhibit 5 and Exhibit 10, as well as page 11 of notes of transcript demonstrate that Petitioner requested not only the presence of eight witnesses believed to provide favorable testimony on Petitioner's behalf, but more importantly the six witnesses that allegedly provided testimony accusing the Petitioner of the alleged act. Due process procedures are in place to prevent the very course of conduct that has occurred in the instant case. South Middleton School District knew the Petitioner desired to have the six accusing witnesses present (Exhibit 5); the South Middleton SChool District provided a list of its witnesses against the Petitioner and created an expectancy of their attendance in response to Petitioner's demand (Exhibit 10); and the Petitioner fully expected the presence at the hearing as illustrated at notes of testimony page 11, where the Petitioner was advised for the first time that the Principal and Assistant Principal would be the only witnesses testifying on behalf of the South Middleton School District. I'. .~ " -" ~- ..,--~ - .--..,. "c , e.__" *Y "~'"F<" ,,~-. ~ - :;;;"~~,,,J,,>\1l~I, ~_ _'~ _,,_,_ , II , . South Middleton School District's failure to correct its witness list prior to the hearing, failure to advise Petitioner that its only two witnesses would be the Principal and Assistant Principal and that the six requested witnesses would not be in attendance borders bad faith. Petitioner advised the Board that it was also interested in producing the eight named witnesses to attempt to show that the Board was selectively prosecuting the Petitioner (notes of transcript at page 18, lines 19-22); that the eight requested witnesses were athletes, many of these football players at the height of the football season, served to support the issue raised by Petitioner's counsel at the hearing. The procedural safeguards mandated by Federal and Commonwealth Courts were not honored nor exercised by the South Middleton School District. Irrespective of Petitioner's attempt to exercise his constitutional right, the Board allowed no direct testimony from either adverse or collaborating witnesses. Thus, without such testimony, the record is not complete. Whether Petitioner admitted selling a substance prior to the hearing or subsequent to the hearing is not dispositive. In the case sUbjudice, the issue is whether Petitioner's right under law to confront witnesses or present witnesses was afforded to him. Entitlement to his right can only be voluntarily waived by the accused. Without such intentional relinquishment, the due process right remains and it clearly rises above "harmless error." Previously in G. S. v. West Shore School District, 28 (d) & (c) 4th 465, (1993), an appeal from expulsion, this Honorable Court noted that due process rights have been codified in 22 Pa. Code S 12.8, and among those codified rights, "the right to be presented with names of witnesses against the student as well as copies of the statement [and] the right to cross-examine." It is the right of Petitioner to cross-examine the six accusing witnesses that has been denied him; it is also Petitioner's right to produce eight witnesses on his behalf that has been denied him. . ,'I" - ~, '-~ ~ '" - ~ ;,'i:~~:'~7'" "--,':"- " i In the event This Honorable Court concurs with Petitioner, we would further request expungment of the student's record, not unlike Pervis v. LeMarque Independent School District, 466 Fed. 2nd 1054 (1962). We would request that South Middleton School District be directed to expunge Petitioner's school record of any expulsion prior to any disciplinary hearing convened by an authority. Furthermore, Petitioner requests this Honorable Court to find that the Petitioner has not been accorded the due process safeguards that have been placed within the South Middleton School District Policy Handbook, codified at 22 Pa. Code. 9 12.8 and is guaranteed under the U. S. and Pennsylvania Constitution. Finally, Petitioner requests this Honorable court vacate South Middle School District Board's decision and direct immediate the reinstatement of the Petitioner. Respectfully submitted, c en R. Waltz, Es Turo Law Offices 28 S. Pitt Street Carlisle, PA 1701.3 (717) 245-9688 cl' -"-,- ,-.." "_'1'", _~. ~o_. > ,;~"'''' '. -on " CODY CORNMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION LAW No. 01-6841 CIVIL vi. (Local Agency Appeal) SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent ORDER And now this day of , 2002, after hearing arguments: IT IS ORDERED The South Middleton School District adjudication is vacated; IT IS FURTHER ORDERED that the Petitioner be reinstated to his former student position pending further proceedings; IT IS FURTHER ORDERED that all records of disciplinary action be expunged. J. -~---~.- ,-,-,,-./,-,;,': ,.< "-;'~' 1::- , '-, ,~. ~-'''" , ..- ~- ~-II!!IIII!I!!\II -rT .1'1 -'1J~ff1liffIT '''~ ~.', - "-"~ ~ - " CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Appeal and Petition for Review upon the following, by hand delivery on the ;3/",1- day of December, 2001, from Carlisle, Pennsylvania, and addressed as follows: Philip H. Spare, Esquire Snelbaker, Brenneman & Spare 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 TURD LAW OFFICES n R. Waltz, Esquir 28 South Pitt Street Carlisle, PA 17013 (717) 245-9688 Attorney for Plaintiff . I ~, - ,,--,) <,-" > cO -"--'." ~.. '~- ""',- ~-p-~. - , SNELBAKER, BRENNEMAN & SPARE A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 P. O. BOX 318 FACSIMILE (717) 697-7681 RICHARD C. SNELSAKER KEITH Q. BRENNEMAN PHILIP H. SPARE 717-697-8528 January 4,2002 VIA HAND DELIVERY The Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 Re: Cormnan vs. South Middleton School District No: 6841 Civil 2001 Local Agency Appeal Dear Judge Guido: At the oral argument in the above-referenced matter on Monday, December 3 l, 2001, you asked counsel for authority on the issue of proving that there was a controlled substance involved. Although I did not find any specific appellate authority regarding proof of a controlled substance in a school discipline setting, I believe the case Appeal of McClellan, 475 A. 2d 867 (Pa. Cmwlth. 1984) is instructive in the pending matter. I am enclosing a courtesy copy of the McClellan case for your reference. I cite to the McClellan case for the proposition that an admission of a party is competent to sustain a factual finding by substantial evidence. In the McClellan case, the Commonwealth Court ruled that there was substantial evidence of record to find that a student was intoxicated on school property based on information provided by the police regarding the student's citation, the student's parents' testimony at the hearing and the testimony of a guidance counselor regarding what the student said to him during a meeting. As explained in the Brief submitted to your Honor on December 31, 2001, there is substantial evidence of record to sustain the findings of fact made by the Board of School Directors in this matter. In addition to the testimony of the Assistant Principal regarding the student's admission, there is the student's own testimony (a factor not present in the McClellan case) and the testimony of the student's own witness, Mr. Glaglowski, which corroborated both the testimony of the Assistant Principal and the student himself. It is not surprising that additional appellate authority on this issue is sparse. When one considers that the circumstances at bar amount to the student admitting certain prohibited ;'::,~r-,.,., C,_ >!-:",;o"C, -r""_; :~''!_''~-'_''_ .' ,-~_" _~'_I"'~~ _ ',' , '.~-" ,--,._, . .""' -~ ~ 0, _, '. ~"""I__ ,-" >'f ","-q~ r - ... ~ "~" c SNEI.BAKER, BRENNEMAN S SPARE The Honorable Edward E. Guido Cumberland County Courthouse January 4, 2001 Page Two VIA HAND DELIVERY conduct under oath at the Board hearing and then appealing the Board's findings of fact which mirror his admissions, it is not difficult to see why this scenario is indeed a rare one. PHS:jjc Enclosure cc: Dr. Patricia B. Sanker, Superintendent South Middleton School District Galen R Waltz, Esquire ",;q;!ilmw . - "^~,- ~~'-1,1g,~,:", ,- "~ -I- ". ',"'_,,,,,-,,--,_ 'c".- ",'"-,'-',,,,"-- ," --~,. Respectfully submitted, '914~ Philip H. Spare , 475 A.2d 867 17 Ed. I;.aw Rep. 857 iCite as: 82 Pa.Cmwlth. 75, 475 A.2d 867) c Commonwealth Court of Pennsylvania. In re Appeal of Suspension of Daniel McCLELLAN. Appeal ofH. Ronald McCLELLAN and Dolores Mcelellan, natural guardians of Daniel McClellan, a minor. Argued Nov. 15, 1983. Decided April 26, 1984. Parents appealed from a decision and order of the Court of Common Pleas, Lebanon County, Robert J. Eby, J., which affmned a decision of school board to expel their son from school for period of 24 calendar days. The Commonwealth Court, No. 400 C.D. 1982, Doyle, J., held that: (I) in hearing to determine whether to expel student, school board did not err in permitting evidence in record of citation for underage i1rinking and the payment of the corresponding fine, and (2) substantial evidence supported determination of school board that student was on school property under the influence of alcohol. Affirmed. Craig, J., filed dissenting opinion in which Barry, J., joined. West Headnotes ill Administrative Law and Procednre ~813 15Ak8l3 Most Cited Cases Where a complete record was developed before local agency, the court reviewing the matter on appeal must affmn local agency unless it is determined constitutional rights were violated, that an error of law was committed, that procedure before the agency was contrary to statute or that a necessary finding of fact was unsupported by substantial evidence. 2. Pa.C.S.A. & 754. ill Witnesses ~196.4 410kl96.4 Most Cited Cases (Formerly 410kl96) Conversation among assistant principal, student and his father was not privileged or confidential, and thus assistant principal could testify with respect thereto at expulsion hearing, though he had worked with Page I student on counselling, where nothing in the record suggested that he was acting as a guidance counselor during the meeting with student and his father, that the conversation was confidential, or that he was at that time acting in any role other than that of assistant principal. ill Schools ~177 345k 177 Most Cited Cases In hearing to determine whether to expel student, school board did not err in permitting evidence in record of citation for underage drinking and the payment of the corresponding fine. 18 Pa.C.S.A. & 106; 2 Pa.C.S.A. & 554. Iil Schools ~177 345kl77 Most Cited Cases Substantial evidence supported determination of school board that student was on school property under the influence of alcohol. ~ Evidence ~222(2) I 57k222(2) Most Cited Cases Hearsay testimony encompassing an admission by the party to the conduct in question was properly admitted into evidence under admissions exception to hearsay rule and was competent to sustain fmding that student was intoxicated on school property. **868 *76 David J. Brightbill, Siegrist, Koller, Brightbill & Long, David A. Kreider, Lebanon, for appellants. Timothy D. Sheffey, Egli, Reilly, Wolfson, Sheffey & Schrum, Lebanon, for appellee. Before CRUMLISH, President Judge, and ROGERS, WILLIAMS, CRAIG, MacPHAIL, DOYLE and BARRY, n. DOYLE, Judge. Before this Court is an appeal by H. Ronald and Dolores McClellan from a decision and order of the Court of Common Pleas of Lebanon County affirming a decision by the Board of School Directors of the Cornwall-Lebanon School District (Board) to expel their son, Daniel McClellap, from school for a period of twenty-four calendar days. We affIrm. Copr. @ West 2002 No Claim to Orig. U.S. Govt. Works ,wi:~io~- to' _ _ _ J ~,'~ ~I ,___' ~ -~ "'-' 475 A.2d 867 17 Ed. Law Rep. 857 '"(Cite as: 82 Pa.Cmwlth. 75, 475 A.2d 867) *77 On September 28, 1981, the student, who was fifteen years old and in the lOth grade at Cedar Crest High School at the time, and his father, H. Ronald McClellan, visited the office of the high school's assistant principal, Mr. Glenn Caufman. The purpose of this visit was to discuss the potential ramifications of the student's having been found by local police in the school's parking lot after a football game the previous Friday evening in an intoxicated condition. Following the McClellan's visit, Mr. Caufman reported the matter to the school's **869 principal, Joseph Sakalosky. Mr. Saka1osky, in turn, contacted the police department to verify what had occurred. Subsequent to this contact, on October 2, 1981, a citation was issued by the South Lebanon Township police charging Daniel with violating Section 6308 of the Crimes Code, 18 Pa.C.S. & 6308, which reads: A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or transports, any alcohol, liquor or malt or brewed beverages. A $50.00 fine and $27.53 in costs levied pursuant to the citation were paid on October 16, 1981. On November II, 1981, the student's parents were sent notice that an informal hearing was to be held for the purpose of suspending Daniel for ten days for violating Board policy regarding the possession or consumption of alcohol on school property. The specific policy of the Board at issue was: Students apprehended in possession of, having consumed, tJ:afficking in alcohol or drugs or in possession of drug related paraphernalia on school property at any time or as a participant in any school sponsored event or activity will be suspended from school. Students who enter school property after having *78 consumed alcohol or drugs will also be suspended. Furthermore, all students suspended for alcohol or drugs shall be subject to a formal hearing before the Board or a Board appointed hearing officer for the purpose of further suspension or expulsion. Final disposition rests with the Board of Education. The preliminary hearing was waived and Daniel was suspended frOtu school for a period of ten days. Thereafter, a formal hearing was conducted by an examiner appointed by the Board. Daniel's parents testified on his behalf and Mr. Caufman appeared as the sole witness for the Board. Also introduced into evidence was a copy of the citation issued to Daniel. Daniel did not testify. Based on the evidence adduced at this hearing, the examiner submitted a Page 2 recommendation to the Board which then issued a decision ordering Daniel "expelled" from school from January 4, 1982, through the end of the marking period, January 28, 1982. The McClellans appealed this decision to the court of common pleas which affIrmed the expulsion. The appeal to this Court followed. III Where, as here, a complete record was developed before the local agency, a court reviewing the matter on appeal must affirm the local agency unless it is determined that constitutional rights were violated, that an error of law was committed, that the procedure before the agency was contrary to statute or that a necessary froding of fact was unsupported by substantial evidence. Section 754 of the Local Agency Law, 2 Pa.C.s. & 754. See McKeesvort Area School District Board of Directors v. Collins. 55 Pa. Commonwealth Ct. 548. 423 A.2d 1112 (]980). The first challenge to Daniel's expulsion which we will here review, is an assertion that the Board failed to actually find that Daniel was "under the influence of alcohol on school property" as charged in his hearing *79 notice. (Emphasis added.) Instead, the Board found: 3. While in the parking lot adjacent to the Cedar Crest High Schoo~ Daniel McClellan was found in an intoxicated condition by members of the South Lebanon Township Police Department. It is emminently clear from the record that the parking lot where the incident at issue occurred was school property. At no point in the hearing before the Board's examiner was there any indication to the contrary and the argument to this Court as to this issue is rejected. Wit is next argued that Mr. Caufman, who testified at the Board hearing as to the September 28, 1981, conversation between himself, Daniel and H. Ronald McClellan, should have been prohibited from giving such testimony because the conversation was privileged and confidential pursuant to 22 Pa.Code & 12.12(a). Section 12.12(a) reads, in pertinent part:**870 Confidential communications. Ca) Information received from a student in confidence by a guidance counselor ... in public or private schools while in the course of that person's professional duties is privileged information to the extent that it cannot be divulged in any legal proceeding, civil or criminal, without the consent of the student, or if still a minor, the student's parents. Copr. ro West 2002 No Claim to Orig. U.S. Govt. Works --;~-~,--- " ~ --""'<~I' -,' ". ~~ 475 A.2d 867 17 Ed. Law Rep. 857 O(Cite as: 82 Pa.Cmwlth. 75, 475 A.2d 867) While Mr. Caufinan did indicate that he had worked with Daniel "on any disciplinary actions, counselling, etc.," nothing in the record suggests that he was acting as a guidance counselor during the meeting with Daniel and his father, that the conversation was confidential, or that he was at that time acting in any role other than that of assistant principal. Accordingly, this challenge to the Board's decision is also rejected. *80 ill The third stated ground for appeal to be addressed by this Court is that the Board erred in permitting evidence in the record of the citation for underage drinking and the payment of the corresponding fme. We disagree. In so doing we are not unmindful of the line of cases holding that "evidence of the conviction of a traffic violation or of small misdemeanors is not admissible in a civil suit for damages arising out of the same traffic violation or lesser misdemeanors." Cusatis v. Reichert. 267 Pa.Suoerior Ct. 247. 253. 406 A.2d 787. 790-91 (]979) (emphasis added), (quoting Louf!hner v. Schmelzer. 421 Pa. 283. 284-85. 218 A.2d 768. 769 (]966)). See Hurtt v. Stirone. 416 Pa. 493. 206 A.2d 624 (]965) rFNIl cert. den. Stirone v. Hurtt. 381 U.S. 925. 85 S.Ct. 1561. 14 L.Ed.2d 684 (]965). The situation in the case at bar, however, is readily distinguishable from that of the foregoing cases. Underage drinking, while a summary offense, is nonetheless a crime, not a mere traffic violation. Interest of Golden. 243 Pa.suoerior Ct. 267. 365 A.2d 157 (]976). And, as noted by Judge Hoffman in his concurring opinion in Golden, that underage drinking .should possess such a status is consistent with the intent of the Legislature as evidenced by the fact that, when adopting Section 106 of the Crimes Code, 18 Pa.C.s. & 106. it deleted from a proposed *81 version thereof language which read: "A summary offense does not constitute a crime and conviction of a summary offense shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense." Id. at 274, 365 A.2d at 160 (Hoffman, J., concurring) (emphasis deleted) (quoting Section 1.07 of Proposed Crimes Code for Pennsylvania, Joint State Government Commission (1967)). As a summary offense under the Crimes Code and hence, a crime, underage drinking may be punished by up to ninety days in prison. Section 106 of the Crimes Code. It is therefore hardly a "small" matter and, in conjunction with the fact that we are dealing with an administrative proceeding which was to detennine whether disciplinary action should be taken, not a civil trial for damages, evidence pertaining to the Page 3 citation was not excludable from the record as a matter of law. In addition, pursuant to Section 554 of the Local Agency Law, 2 Pa.C.S. & 554. the Board was not "bound by technical rules of evidence" and it was permitted to accept and consider "all relevant evidence of reasonably probative value." The citation was clearly relevant and of probative value and, absent exclusion **871 by rule of law, it was properly admitted into evidence. rFN21 FNI. The operative rationale behind this principle was expressed by the Supreme Court in Hurtt where it stated: [W]e recognize a valid existing distinction in cases involving the record of conviction of relatively minor matters such as traffic violations, lesser misdemeanors, and matters of like import. Especially in traffic violations, expediency and convenience, rather than guilt, often control the defendant's 'trial technique.' In such cases, it is not obvious that the defendant has taken advantage of his day in court, and it would be unreasonable and unrealistic to say he waived that right as to a matter (civil liability), which was probably not within contemplation at the time of the conviction. Hurtt. 416 Pa. at 499. 206 A.2d at 627. FN2. The fact that Daniel's fine was paid by third parties with the authority to act in his interest, I.e., his parents, also does not affect the admission into the record of evidence regarding the citation. Commonwealth v. James. 6 Pa. Commonwealth Ct. 493. 296 A.2d 530 (] 972). The board treated the citation as only a factor in its determination rather than as being dispositive of the question of whether Daniel was intoxicated on school property. That the fine involved was paid by his parents goes to the weight to be afforded the citation as evidence, a question for the Board to resolve, not a reviewing court. ill Finally, this Court is confronted with the question of whether there was substantial evidence to support the Board's detennination that Daniel was on school *82 property under the influence of alcohol. The elements of the record proffered by the Board in support of its decision are: (I) the infonnation provided by the police regarding Daniel's citation; Copr. <!:l West 2002 No Claim to Orig. U.S. Govt. Works ~,,~.. -, <- ''':'' ," ,". ~ I~ , - . ~ ~ 475 A.2d 867 17 Ed, Law Rep. 857 , (Cite as: 82 Pa.Cmwlth. 75, 475 A.2d 867) (2) H. Ronald McClellan's testhnony at the hearing that, other than the day in question, he had never known his son to drink; (3) Dolores McClellan's testimony, which was shnilar, and (4) Mr. Caufman's testhnony regarding what was said at the meeting between himself, Daniel and Daniel's father. The first of these items we have discussed above and found to have been properly considered. The information received from the police is also clearly supportive of the Board's c determination. With respect to the testimony of Daniel's parents, while it is corroborative of the finding that he was drinking on the night in question, it fails to support the key fmding that he was on school property. The testhnony of Mr. Caufman, however, does constitute additional support for this finding. Mr. Caufman, in response to an inquiry concerning what was said at the September 28, 1981 meeting stated: On September 28 Mr. McClellan and Daniel came to my office and at that time they were concerned that based on what had happened the weekend prior, what was the school, what action would the school take in regard to the fact that Dan had been on school property and intoxicated. And again, I don't keep verbatim records. My notes of that conversation are in generalities and that was the gist of the conversation. ill While hearsay, and objected to as such, Mr. Caufman's testimony encompasses an admission by the party to the conduct in question. Hence it was properly admitted into evidence under the admissions exception to the hearsay rule and it is competent to sustain the *83 finding that Daniel was intoxicated on school property. Kiloatrick v. Unemolovment Comoemation Board of Review. 59 Pa. Commonwealth Ct. 201. 429 A.2d 133 098]). In light of the information from the police relative to Daniel's citation and the testimony of Mr. Caufman, we are constrained to hold that the Board's fmdings are supported by substantial evidence. The decision to "expel" Daniel, while perhaps harsh based on what we have observed in the record before this Court and the ten day suspension which he has already served, must therefore be affIrmed. ORDER NOW, April 26, 1984, the decision and order of the Court of Common Pleas of Lebanon County in the above captioned matter, No. 2968, Year 1981, dated February II, 1982, is hereby affIrmed. Page 4 CRAIG, Judge, dissenting. We should reverse the adjudication of the Cornwall- Lebanon School Board because: (I) the board erred in admitting evidence of a summary offense arising from the same incident, and (2) the record does not contain substantial evidence to support the necessary finding--that the student had been intoxicated on school property. As to the first point, the board's. reliance upon the citation for the summary offense of underage drinking and his payment of fine on that charge, the cases have held that evidence of a guilty plea to a summary offense is not admissible in court in a later **872 civil case arising from the same events. IFNIl The courts have developed *84 that rule in recoguition of the fact that in cases involving relatively minor matters, such as summary offenses and lesser misdemeanors, "expedience, and convenience, rather than guilt, often control the defendant's 'trial technique' ...." See Hw-tt v. Stirone. 416 Pa. 493. 499.206 A.2d 624.628(965). FNI. Louf!hner v. Schmelzer. 421 Pa. 283. 218 A.2d 768 (966) ("traffic violation" and "smallll or "lesser" misdemeanors inadmissible, specifically wrong-side driving traffIc offense); Cusatis v. Reichert. 267 Pa.Superior Ct. 247. 406 A.2d 787 (979) (reckless driving traffIc offense inadmissible). That reasoning is equally compelling here. Although local agencies are not bound by the strict rules of evidence, IFN21 the school board erred in admitting and relying on any evidence of the student's summary offense because that evidence has no real probative value. FN2. 2 Pa.C.S. & 554. Finally, the student is correct in submitting that the record does not contain substantial evidence to support the necessary findings. The board's brief contends that the following evidence supports its key fmding, that the student was under the influence of alcohol on school property: (I) the information from the police about the arrest, (2) lhe testimony of the student's father, (3) the testimony of the student's mother, and (4) the meeting ofth.e student, his father Copr.1O West 2002 No Claim to Orig. U.S. Gov!. Works "<'-~~JI'j ",n -" '"<l'" '-'_~_',','_ -',', "'~" c .. ; '. 475 A.2d 867 ,( .17 E~. Law Rep. 857 (Cite as: 82 Pa.Cmwlth. 75, 475 A.2d 867) and school official Glenn Caufinan. The first of those items, as noted above, the board erroneously admitted. The second and third, given the broadest interpretation, indicate only that the student was drinking on the night in question. rFN3l . FN3. The relevant testimony of the parents was as follows: Q: Now, with the exception of the evening of September 20, 1981, have you ever observed your son drinking or with another alcoholic beverage? Mr. McClellan: No, sir. Record 30a, 31a. Q: Have you ever observed Danny in a condition where he had the odor of alcohol or was showing the effects of alcohol or woul<l have given you any indication that he was making use of alcohol, other than September 20, 1981, whatever this date is, September 25, 1981? Mrs. McClellan: No. Ah, there is somebody around all the time and there has been no evidence of anything prior to this. Record 35a. Q: Do you feel certain that this was the only time that Danny drank? Mrs. McClellan: Yes, I feel certain that this was the time. There was no indication as far as behavior or no odor. Record 36a. *85 The fourth, Mr. Caufinan's testimony about the meeting, as quoted in the majority opinion, is clearly hearsay. Although hearsay which is properly admissible through an exception to the hearsay rule may support an administrative finding, hearsay, outside of the recognized exceptions, is not competent to do so when, as here, objection has been made to it. rFN4] FN4. Burks v. Devartment of Public Welfare. 48 Pa. Commonwealth Ct. 6. 408 A.2d 912 (1979); Walker v. Unemvlovment Combensation Board of Review. 27 Pa. COll1ll1onwealth Ct. 522. 367 A.2d 366 (1976). The exception for party admissions is the only one potentially applicable here. An opponent may Page 5 always offer the statements of a party against him. rFN51 FN5. Beardslev v. Weaver. 402 Pa. 130. 166 A.2d 529 (196 n. However,. the single, general answer by Mr. Caufinan does not establish that either the student or his father made any specific c statement. That reference does not provide sufficient detail to qualify as an admission. Because the finding that the student was intoxicated on school property was necessary, and because nothing but Mr. Caufinan's vague hearsay statement relates to that finding, the record does not contain substantial evidence to support the board's finding that Daniel McClellan was under the influence of alcohol on school property. Accordingly, we should reverse. BARRY, I., joins this dissent. END OF DOCUMENT Copr. @ West 2002 No Claim to Orig. U.s. Gov!. Works 'o-'\1:S~"1?:~ ~_~~", ~ " -~ , ", I~-- . "~ ~~- - - " .~ , f"'~r' "-~-"'.~- <C~ ,- - - " -. , . CODY CORNMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION LAW ~ No.(Jll..{! CIVIL 2001 v. SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent : (Local Agency Appeal) . ORDER i AND NOW LJ"u~M... /,,3,. 2001, on consideration of attached Petition, it is ordered and directed 7 1. That the Petitioner be immediately restored to his full cllilssroom activities. ~.A 2. That a hearini O~hiS Petition be fixed for the n:: day of GI , 2001 at I in Courtroom No...5' . A.m. )yc. /3 . ~otJ I Date /~ _/j _/) / E'~/NA~.E. C,.do J. "/ ~ &~~"R~~ ;;i-n_"'-c;, -,^. ',,- _-'~,,~.'V_ ,_,_"~_,_1.__ H, -c' '?,-~'-'-," -1-",- - - ,~ ." J_ ,,,~;- i\1~\.~f~~~4101~ji;'4i."ffutJiiiiai:lf~li~~;;j:*M.1iil~~,,,-}j;p~~,,,,,,~~j!'li~~,.' l~, '(.n~i~t;"" -':~:o'i '-"" .i';). r !.-.-;J",,;:~t~~)):~~,-~",H~~v1! :",J;~,.M""-,--",,,-. ':" '-o,~'''''''\O'''''''F''''?,-1<', ",-'o'"",b'),- _~, '__-_~,H __<_~ . ,,,^ T-s'j['dtin--. i.~-;'"-~~Ii~;"_.- ' iT 'J"' ":\:()I=\Rf OJ i " " ,j h;,! q. '--I (J" .) : C! :!':,/i;-i,',-~'-", "" -. ,', ""I"'-''-ii'''' !-" !r'-"'\' D;:'~\rr~!-'';' - >!~-f)I\J j i j LJ\h0Yi\/":';'i\):',:\ ~.." '",', Do-k w,f; wi or DEc, 13 AM ~ :5'1 B H~h;c,k J .. ,- >, ~ < ., - " -"--,- -,' ..., 1""",.~.~ ,-~ -II '. . CODY CORNMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW No.(o~YI CIVIL 2001 v. (Local Agency Appeal) SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent APPEAL AND PETITION FOR REVIEW AND NOW comes the minor petitioner, Cody Cornman, by his parents, Ronald and Tanya Cornman, who file this appeal from the action of the South Middleton School District Board of Directors taken on November 5, 2001, and respectfully represents: 1. The minor petitioner is 16 years of age, having been born April 19, 1985, and is a student in the tenth grade at the Boiling Springs High School. 2. The Respondent's School Board is a local agency as defined in Local Agency Law, LAL, 2 Pa. C.S.A. 9101, and has responsibility of administration and of proper and lawful manner of the affairs of the South Middleton School District. 3. The basis for jurisdiction of this court is Local Agency Law, 2 Pa. C.SA 9752 and 42 Pa. C.SA 9933(a)(2). 4. On November 5, 2001, the Respondent took action to expel and exclude the minor petitioner from the South Middleton School District for the remainder of the 2001- 2002 school year and for the entire 2002-2003 school year; furthermore, the Respondent seeks to place the minor petitioner in an Alternative Education Program for the remainder of the 2001-2002 school year. Minor petition may "apply for readmission to South Middleton School District for the 2002-2003 school year conditioned upon: (a) Successful participation in the Alternative Education Program; (b) Recommendation of readmission by the Alterna~ive Education Program; and, (c) Demonstrating a sincere effort to accept and hdnor appropriate standards of behavior." (Exhibit 1 attached and incorporated herein) -~i~" c,'-.\ --'",:--,:'--, ,."~;-,,,,- ~-,-^, ~ - --"' . I" -,- -~. . - '--':-;"', ., , ,~ ,-''''''~'jj ;:"~ ,~ '-'j::-"!if!,~_I_L, -"'r q_' ~"f' !I " " 5. The statement of charges dated September 21,2001 was provided to the minor petitioner relative to the October 18, 2001 formal hearing and the charges restricted the allegations stating that the minor petitioner "did willfully engage in the selling of controlled substances on or about September 6, 2001. These actions are in violation of the rules, regulations and policies of the South Middleton School District, ~227, Controlled Substances as Duly Adopted by the Board of School Directors of Said District." (Exhibit 2, attached herein and incorporated as is fully set forth.) 6. On September 27,2001, a request was made to the Respondent to provide the identity of the alleged controlled substance involved with the alleged acts of September 6, 2001; in addition, the Respondent was elaced on notice of a need for witnesses to be subpoenaed to attend the October 18 h hearing. (Exhibit 3 attached and incorporated herein) 7. A second September 27, 2001 letter repeated the requests for witnesses and substance identification as outlined in Exhibit 2. (Exhibit 4 attached And incorporated herein). 8. On September 28, 2001, a third notice was provided to the Respondent seeking subpoenas for specifically named witnesses. (Exhibit 5 attached and incorporated herein). 9. On October 5, 2001, Respondent advised that they were unaware of any authority allowing them to issue subpoenas for the requested witnesses on behalf of the Petitioner and the Respondent ignored the Petitioner's request for an identity of any controlled substance. (Exhibit 6 attached and incorporated herein). 10. On October 15, 2001, a fourth notice was provided to the Respondent requesting attendance of named witnesses on behalf of the Petitioner. (Exhibit 7 attached and incorporated herein) 11, In a communication dated October 15, 2001, the attorney for Respondent advised that the Petitioner Attorney's letter requesting witness attendance would be forwarded to the Superintendent. (Exhibit 8 attached and incorporated herein). 12, At the October 18, 2001 hearing there was no admissible or credible evidence that the Petitioner sold a controlled substance. 13, At the October 18, 2001 hearing there was no credible or admissible evidence that the alleged controlled substance was a prescription medication Adderall. 14, There was no credible or admissible evidence of the identity of any alleged controlled substance presented at the October 18, 2001 hearing. "---"-""-'-"-'--1' o - ^. "." ~ --. ~ ~ rr ii ! 15. Petitioner made several written requests for specifically named I witnesses to attend the hearing on his behalf, and the Petitioner requested at the outset of the October 18, 2001 hearing to have the same witnesses present to testify on his behalf; the Respondent either refused to grant the Petitioner's request or ignored th~ I requests by the Petitioner and specifically violated the Petitioner's due process right! as illustrated at 22 Pa. Code Section 12.8 (b) (1) (vi) and (vii). 16. A formal hearing on the charge was held October 18, 2001 at which the Petitioner and the parents appeared. 17. The hearing was before a committee representing the South Middleton School Board and the principal and assistant principal made a report of their investigation which was replete with hearsay and speculative conclusions. 18. At a meeting of the South Middleton School Board later, a decision was rendered recommending adoption of the findings of fact and conclusions of law and finding the Petitioner guilty of certain conduct by expelling and excluding the Petitioner as a student ofthe South Middleton School District for the remainder of 2001-2002 school year and for the entire 2002-2003 school year, and by placing Petitioner in an Alternative Education Program for the remainder of the 2001-2002 school year, with other conditions. 19. The action of the committee and Board is devoid of proper evidence that the Petitioner sold a controlled substance to other students and that the alleged controlled substance was Adderall or another controlled substance and the Board's action is arbitrary capricious and abuse of discretion without authority and void. 20. The Boards findings of fact are not supported by substantial evidence. 21 . Constitutional/Statutory rights of the Petitioner were violated by Respondent. 22. The actions of the Respondent have caused the Petitioner irreparable and immediate harm in that: (a) has been segregated from his classmates; WHEREFORE, your Petitioner prays that: 1. The Court fix a hearing to require the Respondents to demonstrate that the action was based on proper evidence and that the due process rights of the Petitioner were not violated. 2. The Court impose all costs and expense of this action upon the Respondent, as well as reasonable attorney fees, since the Respondent has been forced to institute this proceeding to enforce state laws and regulations with Respondent by its obdurate and bad faith actions have ignored and defiled. ',~~~;~, '"~,":"i.~:' ~"," ,'~ !,,~ .." -"..n,,__.l~ ,''', -f.;' '", .-- ': ,". ".,~, -;" . ,=~.~"~~ :;'{",.>,~,,-~ , - " , , " 3. The court sustain this appeal and set aside the expulsion. 4. For such other additional relief as it appears right and just under the circumstances. Respectfully submitted, n R. Waltz, E Turo Law Offices 28 S. Pitt Street Carlisle, PA 17013 (717) 245-9688 '!:f~'lt..-,~_, _'_"_N__.-~ - 1 7,,__,,_"_~_, ",f\' . :___'"!;':~I -~ , - ","- , "- " INRE: CODY CORNMAN, A Student SOUTH MIDDLETON SCHOOL DISTRlCT BEFORE THE BOARD OF SCHOOL DIRECTORS STUDENT DISCIPLINE HEARING CASE NO.2 OF 2001.2002 ADJUDICATION OF BOARD OF SCHOOL DIRECTORS AND NOW, this 5th day of November, 2001, the Board of School Directors of the South Middleton School District, hereby adjudicates and decides the above matter as folIows: A. BACKGROUND As the result ofa report ofan incident on or about September 6, 2001, at the Boiling Springs High School, John Gallagher, Assistant Principal of said High School, initiated disciplinary action against Cody Cornman, a tenth grade student. An informal hearing was held by Superintendent Dr. Patricia B. Sanker, which was attended by the Assistant Superintendent Jacqueline Lesney, High School Principal Joseph Mancuso, Assistant High School Principal John Gallagher, Cody Cornman and Connie Cornman, his mother. The informal hearing resulted in the confinnation of an out-of-school suspension of Cody Cornman for ten (I 0) school days, as -- originally imposed by the High School Administration, and the referral of the case to the Board of School Directors. Dr. Patricia B. Sanker, Superintendent of the South Middleton District, initiated the formal hearing procedure by written notice of charges and hearing to Cody Cornman, Student, and his parents, Mr. and Mrs. Ronald Cornman, dated September 24, 2001, and sent by certified mail. The return receipt card for the certified mail indicates delivery on Sept~ber 26, 2001. The . c. . EXHIBIT r. '..0,,' .3 ::':::C',.,.," ' :., ..... . - : ' . .c..cc.cc.ccji. - formal hearing was originally scheduled for September 28,2001, but was contmued at the request of the Student's attorney. Members of the Board of School Directors present at the hearing included Directors Winters, Hartman, West, Kenyon, and Rose. A formal hearing was convened by the Board at 7:30 o'clock A.M. on October 18, 2001, in the Board Room of the District Administration Office. Philip H. Spare, Esquire, of the law firm ofSnelbaker, Brenneman & Spare, P.C., the District's Solicitor, presided at the hearing as Hearing Officer. The Student, his parents, Connie and Ronald Cornman, and the Student's attorney, Galen R. Waltz, Esquire ofTuro Law Firm in Carlisle attended the hearing. At the request of the Student and his parents, the Hearing Officer directed that the hearing be closed to the public. The proceedings were stenographically recorded by Rebecca Toner, a court reporter with Central i Peqnsylvania Court Reporting Service. Thei following persons also attended the hearing: Superintendent Sanker, Assistant -- Sup~tendent Jacqueline Lesney, High School Principal Joseph W. Mancuso, ill and Assistant High SchoOl Principal John Gallagher. Mr. Gallagher represented the High School admini$'ation in presenting its evidence. Tesfimony was received from John Gallagher, Cody Cornman and John J, Glogowski, a psychothe~pist with Pennsylvania Counseling Services in Carlisle. Student Exhibit 1 was admitted into the record without objection. Upon conclusion of the hearing, the Board deliberated and directed the preparation of a 71~'l'^'", ~, "_.^ -', " '_'" " , _ "" ,. XI ,>e, written adjudication for consideration at the next meeting of the Board. B. FINDINGS OF FACT Based upon the evidence produced at the fonnal hearing, the Board adopts the following findings of fact: 1. Cody Cornman ("Student") is a 16 year-old tenth grade student in the Boiling Springs High School Building. 2. Student was present at the High School on or about September 6, 2001 and for several school days thereafter during school hours. 3. Over a period of three school days beginning on or about September 6, 2001, while at the High School, Student sold 60-65 tablets of a controlled substance, the prescription medication Adderall, to other students at a price of two tablets for $1.00. 4. Over a period of three school days beginning on or about September 6,2001, while at the High School, Student sold three tablets of an unidentified paiR medication to other students at a price oU1.00 each. 5. The ~tudent admits to the behavior described in Paragraphs 3 and 4 above. Disciplinary action against the Stj1dent is warranted. C. CONCLUSIONS OF LAW The Board of School Directors concludes as follows: 1. This Board has jurisdiction over this proceeding and student Cody Cornman pursuantto Section 1318 of the Public School Code of 1949, as amended, (24 P.S. ~13-1318), The Student Rights and Responsibilities Regulation of the Pennsylvania State Board of ~HJ" '__'~_""""""'-""'_ ,., ': ,~-~ ~"I~' ~"~ ,~~,o "' ; - c "~ "i':r_rj''"~-'-'"'" ".--,. '" ,,-~. , ." Educatian (22 Pa. Cade ~12.l et seq.), and the several palicies .of the Sauth Middletan Schaal District relating ta student canduct and disciplinary actians. 2. Proper natice .of these praceedings was given ta the Student and his parents, Cannie and Ranald Carnman. 3. The canduct described in the faregaing Findings .of Fact canstitutes vialatian .of Sectians 218 and 227 .of the South Middleton Schaal District Palicy regarding passessian .of cantralled substances at schaal. 4. Such canduct may be redressed by expulsian from further attendance .of schaal pursuant ta Palicy 218 and the autharities cited in canclusian 1. above. D. DECISION AND NOW, this 5th day afNavember, 2001, an the matian .of Mrs. Shakespeare. seconded by Mrs. Wes t . and upon the affirmative vate .of 9 directars, with ~ negative vates and ~ directors abstaining (said vates being recorded upon roll-call), it is the decisian .of this Baard: 1. Ta ~t and adapt the faregaing Findings .of Fact as the findings .of this Baard; 2. Ta accept and adapt the faregaing Canclusians .of Law as the canclusians .of this Baard; 3. Ta expel and exclude Cady Carnman as a student .of the SauthMiddletan Schaal District far the remainder .of the 2001-2002 schaol year and far the entire 2002- 2003 schaal year and ta place Cody in a suitable alternative educatian pragram far the -j,i,)['~IJ;.-., '_".'< 'Ir-- -- ~ . ~.~ ~~~~'-~";'~'- ~ "he" ,<c.,--,-, - remainder of the 2001-2002. Cody may apply for readmission to South Middleton School District for the 2002-2003 school year conditioned upon: a) successful participation in the alternative education program; b) recommendation of readmission by the administrators of the alternative education program; and 'c) demonstrating a sincere effort to accept and honor appropriate standards of behavior. 4. To direct Superintendent Sanker to send forthwith to the Student, Cody Cornman and his parents Connie and Ronald COrIiman, photocopies of this Adjudication, said delivery to be made by both first-class mail and certified mail with return receipt requested. BOARD OF SCHOOL DIRECTORS OF SOUTH MIDDLETON SCHOOL DISTRICT BY:.~#~7:,-:p Robert P. Winters, President Board of School Directors ATI'EST: ~1/bk (SEAL) "'~Jr- '-'''': _, __"'~"'''_' ..^' 1"" .= , STATEMENT OF CHARGES It is alleged that Cody Cornman, a tenth grade student at Boiling Springs High school, did willfully engage in the selling of controlled substances on or about September 6, 2001. These actions are in violation of the rules, regulations, and policies of the South Middleton School District: Section 227, Controlled Substances as duly adopted by the Board.of School Directors of said District. Date ~LP~Ltf- /1 (J John P. Gallagher v . Assistant Princ1pal September 21. 200] 'E>.(t-\[EJJ1' c'c c, ..' ... :"< ccc.ccccC"\ccc cc' .~_ ..c.... = c.. .,. ,c .c C ':r.. ',110.. jJ 3, " Turo Law' Offices ,\, . ,f) b fl ,r1 ,~Ll;IT~';~~i3U:l illl' 'llij7i; ,,;'i'111t~}1~~j~~~~~Wnl ",;Zl'"fj' ~l '''(1 ahlS~ILt.Jf~lrlft:i '~,;I \'!r\ii:.!I]J<~"fl:r~~ "i.::r(~~t:'i~;~~~:: :~~! ~,' '" '~'. ;f;:~<' _. . . ",'~ ' RON TURO, Esquire ROBERT J. MULDERIG, Esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire CAROL L CINGRANELLI, Esquire GERARD J. FOULKE, Esquire , .: . www.TuroLsw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 September27,2001 Phillip H. Spare P.O. Box 318 44 West Main Street Mechanicsburg, Pennsylvania Facsimile Transmission 717 697-7681 Re: Continuance Request for Cody Cornman Dear Mr. Spare: Confirming our September 27, 2001 telephone conversation, this office represents the Cornman's in the Cody Cornman matter and I respectfully request a continuance of the Friday, September 28, 2001, 8:00am hearing scheduled to convene in the Soard Room of the District Office. The reason for the continuance request is as follows: 1. I met with Mr. And Mrs. Cornman for the first time today, September 27, 2001 at 9:30, less than 24 hours prior to the scheduled hearing 2. The identity of the names of witnesses against Cody and copies of witness statements and affidavits of those witnesses requires discovery. 3. The identity of any drug connected allegedly to Cody requires State Police identity confirmation and discovery. 4. Witnesses on Cody's behalf need to be subpoenaed. Based upon the above listing, it is impossible for me to adequately prepare and present Cody's position in less than 24 hours. Because of the urgency of this request, I will supplement this letter with a request for the issuance of subpoenas relative to securing the attendance of Cody's witnesses; naturally, some of the school district's witnesses, when revealed to me, may reduce the number of subpoenas requested. In addition, please allow this letter to serve as a request for production of the list of names of witnesses against Cody Cornman; also, please provide copies of the .c. . """',,:,,""',c.cS.c.c.,c.Tc C .c. .","""'" c. cC. ...... ......,...... . ".,.....,.,.,.,.." . ~-' .. ....".., .. ....., ... ..... ..,..,.....'............:.:..,..., t>l .::.,.:::.'....'..i:-..:'::.:.::...,..... :":" ~:'.:..:...'..:.-:'3"""........... . .:3::' ':. '.':. <-':'.'.: ':'." statements arid affidavits of those witA~s~' find' please provide 'a copy' of any confirmation of the identity of any and all substance/s that Cody is alleged to have 'sold. . My client and his parents agree to maintain the status quo of Cody's non- attendance at school if the continuance is granted. My clients shall be contacting the building principal, Mr. Joseph Mancuso, in order to secure some type of alternative home schooling. My client does not wish to fall behind in his schoolWOrk and he desires to keep up with his assignments. If there is anything you can do to facilitate his ongoing education, the family would greatly appreciate any effort expended on Cody's behalf. I have enclosed a proposed Order regarding the requested continuance. Since time is of the essence, please advise as soon as possible as to the granting of the continuance. ~ Galen R. Waltz Co: Mr. & Mrs. Cornman ;;o~~;].'H' ^'~, ^,"',~"'~"1~, ~', r- " ~~ ~~ ...- Xi' In Re: CODY CORNMAN South Middleton School District ORDER AND NOW, this day of September, 2001, after reviewing Mr. Cornman's first request for the continuance of the September 28,2001 hearing with the Board of School Directors, the request for continuance is GRANTED and the hearing in this matter is continued to . 200i at _am/pm and located at _:":::L~;8',_ -~<,,_~~, '-.'~' "-".w ", "I"" , T'"? ,^, ~. 7 ~ ",~ , ~. 1~~'~'tI._~ ~ : Turo Law Offices RON TURO, Esquire ROBERT J. MULOERIG, Esquire GAlEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire CAROL L. CINGRANELLI, Esquire GERARD J. FOULKE, Esquire . .' W_, Tur.oLaw,i:om 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 September 27, 2001 Facsimile Transmission Phillip H. Spare P.O. Box 318 44 West Main Street Mechanicsburg, Pennsylvania 717 697-7681 Cornman Re: Open Dates and Document Production Request for Cody Dear Mr. Spare: Thank you for granting the request for continuance; after checking my calendar, the follOwing three dates are the earliest that I have available in the morning: Monday, October 15, 2001, Wednesday, October 17, 2001 and Thursday, October 18, 2001. Also I appreciate your forwarding my request for information to Dr. Sanker; it is unclear to me whether my request for statements and affidavits of witnesses along with the confirmation of the alleged drug identity was also forwarded. Therefore, I attach Dr. Sanger's September 24, 2001 letter copied to you wherein she offers the Cornman's the affidavits and statements from witnesses, and I repeat my previous request as if fully set forth herein. I was just advised that the school district has indicated to Mr. & Mrs. Cornman that they shall provide a teacher to assist Cody via the School Bound Program. Thank you again for the considerations shown to the Cornman's. <~.~ Galen R. Waltz ce. Mr. & Mrs. Cornman c.c.c."~aleIT c ! .""" .jjC,'5l' Turo Law - Offices RON TURO, esquire ROBERT J. MULDERIG, esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire CAROL L. CINGRANELLI, Esquire GERARD J. FOULKE, Esquire Phillip H. Spare P.O. Box 318 44 West Main Street Mechanicsburg, Pennsylvania ,',;. fB CJ q ,n .t,"".- -"~_-",_,., ~-k rJ ;flifH.~1 ~U~~:,tuOna: , ;'if~t.?i~.::'Ji:~t~~~~..~~~ 7i1j,m~lf!fililm.kJi'1;~J!lL~. 't?~-r{?~~}i;t;:;~~"E.. , . .,.~ ~ ~, . 'f:,:. "..." > -' '~. , . ... ,I ,; www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 September 28, 2001 Facsimile Transmission 717 697-7681 Re: Subpoena request Dear Mr. Spare: I will need subpoenas, 71 P.S. Section 200, for the following list of individuals; the school has their addresses since each is a student at the high school and each can provide testimony favorable to my client: Jon Orner, Will Walters, Dom Palumbo, Cody Roush, Parker Rickert, Riclon Lindsey, Jeremy Weigle, and Brad Vico. Also, names of students previously supplied to the school will require subpoena: Kyle Smith, Greg Scullin, Jesse Stone, Dan Meals, Blake Woodward and Jeremy Lenvorsky. Not having received the names of the schools witnesses puts me at a disadvantage with this request and many of the names that I have listed may be duplicates; in the event the school intends to have present at the hearing any of the above mentioned names, those duplicate names can be stricken from my request. , Aware that the school does not want to delay this hearing, I am forwarding this request as early as possible in order that I can properly prepare. If the school is willing to discuss this issue to a point where a beneficial resolution to all parties can occur, then, I am willing to meet and discuss the matter before we reach the hearing stage. My client has suffered considerably and will continue to experience hardship from his actions just as others involved in this matter may have been caused some fonn of pain and aggravation. Cody is both contrite and remorseful for his actions. Cody is also reasonable and would like to reduce the hann and embarrassment that has already arisen and he would also like to reduce the potential for increased harm and embarrassment .to others. Should a school representative with authority to discuss and resolve this matter wish to meet at a mutually agreeable time and place, we are willing to meet. ..c....I;-"HfSIT. . .' , , ,. - ,. ell c. .....,. . i C cc cc C C .c.c.......;,fj ::.__~" ,".,w__,,,, _ .'" >_~ Thank you for your time and energy thus far eicpended in this matter. Cc: Mr. & Mrs. Cornman '>t~:J -' ^ .,_ '.c' .'. -,0 _<,', _J.. -' T - 'I __r~ ""'~ " SNELBAKER., BRENNEMAN S SPARE ^ PROFESSIONAL. CORPOttATION ATTORNEYS AT LAW 44 WEST ~ STREET MECHANICSBURG, PENNSYLVANIA 17055 RICHARD C SNELBAKER KEITH O. BRENNEMAN PHIUP H. SPARE 717-697-8528 P. O. BOX 318 FACSIMILE (717) 697-7681 October 5, 2001 Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Re: South Middleton School District Student Discipline Hearing Your Client: Cody Cornman Dear Attorney Waltz: As we discussed on the telephone, our firm serves as Solicitor for South Middleton School District and I am serving as Hearing Officer representing the Board of School Directors in the Student Discipline Hearing involving your client. You have requested that some 14 subpoenas be issued so that you may ensUre that C . some students are present to testify on your client's behalf at the hearing. Having never encountered a request for subpoenas in a student discipline matter previously, I asked for your authority for the Board of School Directors to issue subpoenas in a student discipline matter. Your letter of September 28,2001 appears to be relying upon 71 P.S. Section 200 for authority to issue subpoenas. However, the authority you cite relates to the state government administrative code and has no relation to a local school board. I have reviewed the Public School Code of 1949, as amended, and have not found any authority for issuing subpoenas under these circumstances. There is specific authority for a school board to issue subpoenas in an employee termination hearing (24 P.S. Section 11-1128). However, that authority is conspicuouslyC absent from the Code Sections regarding student hearings. Additionally, I have checked the Local Agency Law and did not find any authority for issuing subpoenas. Finally, I contacted the Pennsylvania School Boards Association and their staff attorney was not aware of any authority granting school boards the power to'issuesubpoenas in the context of a student discipline hearing. If you would like to continue legal research in an'effort to find authority for the school board issuing subpoenas, I will be happy to review the results of your "'C'iEXHIBIT .................. ..." .""........ .. ,........... . .."" cc;i:.o C '''''~<.,,,~'<-'''',"''''''''"'''-',~''',~,' ",-, ,~ ,~'" = ',- SNELBAKER. BRENNEMAN 8 SPARE Galen R. Waltz, Esquire October 5, 2001 Page Two legal research. If you provide me with the authority to do so, I will be glad to issue all of the subpoenas you have requested. Additionally, I will continue to review the law in this area to see whether I can uncover any authority for your requests. However, absent authority to do so, I will not be issuing subpoenas as you have requested. Pursuant to your request, the Board has rescheduled the hearing in this matter for Thursday, October 18,2001 at 7:30 a.m. The hearing will be held in the Board Room at the District Office located at 4 Forge Road, Boiling Springs. Very truly yours, \Vf4j~c Philip H. Spare PHS:jjc cc: Dr. Patricia B. Sanker, Superintendent . i,,,,:,J)'!'~,,, '" ,-,,;,,]. -~__~t:'_:",-'~~-"I'-. '~"" ~~''''''1~ ~ , - .., ". ~~ " Turo Law Offices RON TURO, Esquire ROBERT J. MULDERIG, Esquire GALEN R. WALlZ, Esquire JAMES M. ROBINSON, Esquire CAROL L CINGRANELLI, Esquire GERARD J. FOULKE, Esquire Philip H. Spare, Esquire Snelbaker, Brenneman & Spare 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Re: Dear Mr. Spare: . ~ www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 October 15, 2001 ~@~w South Middleton School District Student Discipline Hearing I Cody Cornman Thank you for your October 5, 2001 letter relative to the Subpoenas. It is my intention to produce a witness, Joseph J. Glogowski, Psychotherapist, who will be able to testify telephonically on or around 9:30 AM before the School Board on behalf of Cody. Since there appears to be no apparent authority to subpoena witnesses, I again request that the school provide in attendance at the hearing the following: Jon Omer, Will Walters, Dom Palambo, Cody Roush, Parker Rickert, Riclon Lindsey, Jeremy Weigle, Brad Ulco. Thank you for any consideration you are able to provide regarding the above request. Sincerely Yours, GRWljge ~ GALEN R. WALTZ, ESQUIRE GWaltz@TuroLaw.com . ,. "'." . . 11 ...c.c...c..c.c..cc.c C c, ~c j .c7 c. . . . .,. .' SNELBAKER, BRENNEMAN S SPARE A PROFE$S[ONAL CORPORATION ATTORNEYS AT LAw 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVA1'llA 17055 RICHARD C. ~NELBAKER KErTH O. BRENNEMAN PHJUP H. SPARE 717-697-8525 P. O. BOX 318 FACSIMILE (717) 697.7681 October 15, 2001 VIA FAX AND MAIL FAX NO: (717) 245-2165 Galen R. Waltz, Esquire Turo Law Offices 28 South Pitt Street Carlisle, PA 17013 Re: South Middleton School District Student Discipline Hearing/Cody Comman Dear Attorney Waltz: This is in response to your letter of October 15, 2001. First, regarding your witness, Joseph J. Glogowski, I wish to remind you that the hearing begins at 7:30 a.m. I do not know in advance how long the hearing may take, but I believe it would be prudent to have your witness available before 9:30. . Second, you requested that "the school" provide 8 witnesses in attendance at the hearing as your witnesses. I have forwarded your letter to Dr. Sanker, Superintendent, but I am not aware of any authority requiring the school administration to provide your witnesses. Please let me know if you have any authority to support your reqUest. Very truly yours, p~ PHS:jjc cc: Dr. Patricia B. Sanker, Superintendent South Middleton School District (via fax) b " '" " . EXHIBIt . ":- "'''~ OY''''_ ,'^" --"" - ., II -". 10\; _' """,' _ '---~-"'"-"<":f.-/,";2'T-"-'''''' CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the Appeal and Petition for Review upon the following, by depositing same in the United States Mail, first class, postage pre-paid on the day of , 2001, from Carlisle, Pennsylvania, addressed as follows: Philip H. Spare, Esquire Snelbaker, Brenneman & Spare 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055-0318 Patricia B. Sanker, Ed.D. Superinten(jjent South Middleton School District 4 Forge Road Boiling Springs, PA 17007 TURD LAW OFFICES - ~, ,l~- ",,--- -.. 'T" --- , -~ - .,,--.-- '" <",'l, ''',"'0:'' ,...,"" ., -~'- '" .. ~~- '" ,~ " ",-' "" .',' '0',: "'~" ,.-,,' " '" " , "iIi1Jiiir~WIIIJnll 1'1' " 7:::J (~ 0) ~ --q =il=- ~ !..A, [ " V") , , ~ C> , Q () (j (/: c..,_) - ~ -<, , , , 0 C. SJ. if' '.,. ") -l:) '.,J ~-'- ,.Lc '12J / W ~ -r ::t::::. ~~-"-: ~-) , ~ ....0 --- :t;. c'~~ .< ~~ [ Z -" ::Z :Jl 'j] 01 ,,< P - .-r f" 1.,," ." 'p~,! f..Ll. ,,~ '_<" "..J JA ')~^'Cc:"i ' -.,,, ,:nj -?" ,~,:~", ._",' .,- ,c.."-"C.. - __" ,]-,:' ,~!""",_, ~~#B:f!f~Ff;\'Af.ii;"7fi,~~;c,;;r4W',M'I!;mf,jl!i!f:t~iWi~tw%.~l.W~'iM*,Ji%I~i\iH~Jj~iW$!i$:,~~~~~;~)r LAW OFFICES SNEL8AKER, BRENNEMAN 8: SPARE /"'''':~~'-'~ '_0''':-: CODY CORNMAN, a minor By his parents, RONALD and TANYA CORNMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Petitioners CIVIL ACTION - LAW'.' J : NO: CIVIL2001-(p~"I1 {;wv" vs. SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, (Local Agency Appeal) Respondent ORDER AND NOW, this" cJ '=y of December, 2001, upon consideration of Respondent's Motion to Dispose of Appeal Pursuant to Local Agency Law, it is ORDERED and DIRECTED as follows: 1. The hearin~scheduled for December 17,2001, at 9:30 a.m. is cance1ecy e"'t~'" 1kt' C....~~ --Lot. diA.utd ... c.Jr"L~ +0 ^&It"ot. 2. This Court's Order of December 12, 2001 is rescinded and Petitioner Cody Cornman is to remain out of school pursuant to the November 5, 2001 Adjudication of the ~ Board of School Directors of South Middleton School District pending further order of Court; and ~. ThlC! 1'''11"1'1- -.u":l1 r~~+O'~H 4-1..,.., ..,..,-:-~_,.1 fifth!] 9otoB!l 18, :881 BUU.ld 11~aJ.ing J. ~ H _,'," - ,<' - - ''''~', "" ~-- -. . -,' ~ _ "'. ~~__'_-"11"" ~_ifu~;t;~~~~t~~~~~;~fulkctU4:lf.!i~,,;;tr,~i~ili,;;;I}i;;~'~~fl;fllW'""'NY'.:.i'~--' ",~;;-,.-" """'-"'<; , ' /.). /l1.C; I;). '/,/.t:'( ~14"~.~~,L!lJ,Q_~.~k.,-""i>\'''_V,!''t'''''''''~Jf''''~-;~_'''''' "ll.~''''''",'ry', _~, ~-, ",,_, -'.'i'<, -'T,,'\11'{ !i I :_~ '~l"- ~l: on 1., - (\~ ';,:i::'-,>.:, ..",-.,,-~ ,.. :'~I ?\JTY ...)\.;i'I:;)~_; :1.-'".. ,L.' t"J,~1 PEi\~~<SYLV/\N!/\ M. ~ ~ -z 71~ ~ , r.__~u, ,,~ -'''''',0/1' ~ .'.. ~,'_ ~_ ,C"1 ,"-- ,,,,,---,',, .: . ,. 4~ ~ ~ /J&/j 1: LAW OFFICES SNELBAKER. BRENNEMAN 8: SPARE ~"*:It-~?'~ ~-, " (I I 1- CODY CORNMAN, a minor By his parents RONALD and TANYA CORNMAN, Petitioners : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW v. : NO. 6841 CIVIL 2001 SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent Local Agency Appeal TO THE HONORABLE EDWARD GUIDO: MOTION TO DISPOSE OF APPEAL ON THE RECORD OF THE LOCAL AGENCY AND NOW, comes the Respondent Board of School Directors of South Middleton School District by its attorneys, Snelbaker, Brermeman & Spare, P. C. and moves as follows: 1. This Appeal of a student discipline adjudication is subject to the Local Agency Law, 2 Pa.C.S. SS 105,551-555 and 751 and 754. 2. The disposition of a Local Agency appeal is governed by 2 Pa.C.S. S 754. 3. Section 754 of the Local Agency Law provides, in its entirety: Disposition of appeal (a) Incomplete record. - In the event a full and complete record ofthe 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 ofthe court. (b) Complete record. - In the event a full and complete record ofthe proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure oflocal agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. ~ 706 (relating to disposition of appeals). 1975, Apri12S, P.L. 202, No. 53, ~ 5, effective June 27, 1975. 2 Pa.C.S. 754 4. A full and complete record of the proceedings below was made. The October IS, 2001 hearing before the committee of the Board was stenographically recorded by Rebecca Toner, a court reporter with Central Peunsylvania Court Reporting Service. 5. A true and correct copy of the transcript of the October IS, 200 I hearing ( "Transcript") is being submitted to the Court contemporaneously with this motion and incorporated by reference. The filed copy has been redacted by Respondent's Solicitor to protect the confidentiality of students as may be required by federal law. 6. The Transcript reveals the following: a. Uncontradicted testimony from John Gallagher, Assistant High School principal, indicates Cody Cornman admitted to "receiving a bottle of Aderol pills from another student to sell." "He admitted to selling pills to a number of students in school on or about September 6th, 2001." (October IS, 2001 Transcript; p. 10) (hereinafter "Transcript") b. Attorney Waltz called his client, Cody Corman, as a witness at the October lS, 2001 Board hearing. (Transcript, p. 26) c. Attorney Waltz questioned his client about the sale of the pills. (Transcript, p. LAW OFFICES SNELBAKER. BRENNEMAN & SPARE 27) -2- . " " - ~F"""- LAW OFFICES SNELBAKER, BRENNEMAN & SPARE ? .' ~- d. Under cross examination by school administrators, Cody Cornman admitted to selling 60-65 pills. He identified those pills as Aderol. (Transcript, pp. 31-33) e. Cody Cornman admitted that his behavior was stupid and expressed sorrow for his actions. (Transcript, p. 30) f. In his closing, Attorney Waltz stated: "And when you think about it, Cody was right on target when he classified his action a quite stupid." "He takes all the risk, makes all the contact, does all the work, turns all the money over to the individual that provided him with these substances. That's pretty silly when you think about it." "It's even sillier were you to believe that Cody actually knew and understood the contents ofthe policy on dmgs that is contained within the book. I think it's even sillier ifhe truly understands what the consequences are." (Transcript, p.90) 7. There is no reason for this Court to hold a hearing in this matter. 8. This Court should "hear the appeal without a jury on the record certified by the agency" pursuant to the Local Agency Law, 2 Pa.C.S. S 754(b). 9. Based upon the information contained in the transcript of the October 18, 200 I transcript now of record, the student should not be readmitted to school. 10. On December 12,2001, this Court issued an ex parte Order directing that the "Petitioner be immediately restored to his full classroom activities." II. It is not in the best interests of the District or its students to have Petitioner in school given the serious disciplinary infractions he has admitted to. -3- -,~ LAW OFFICES SNELBAKER, BRENNEMAN & SPARE "-~J ""--._e WHEREFORE, Movant/Respondent Board of School Directors of South Middleton School District respectfully requests your Honorable Court to: 1) cancel the hearing scheduled for December 17,2001 at 9:30 a.m.; 2) to hear this appeal without a jury @n the full and complete record of the October 18,2001 hearing: and 3) rescind the ex parte Order of December 12,2001 restoring Petitioner to his full classroom activities Respectfully Submitted, SNELBAKER, BRENNEMAN & SPARE, P. C. BY:~ Philip H. are, EsquIre - 44 W. Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for South Middleton School District Board of Directors Date: December 14,2001 -4- ------_._-~ LAW OFFICES SNELBAKER. BRENNEMAN & SPARE -"",,~.. ,'..' II ,- CERTIFICATE OF SERVICE I, PHILIP H. SPARE, ESQUIRE, hereby certify that I have on the below date, caused a true and correct copy ofthe foregoing Motion to be served upon the person and in the manner indicated below: FIRST CLASS MAIL, POSTAGE PREPAID, ADDRESSED AS FOLLOWS: Date: December 14, 2001 Galen R. Waltz, Esquire Turo Law Offices . 28 South Pitt Street Carlisle, P A 17013 Pliilip H. Spare, uire Snelbaker, Brenneman & Spare, P.C. 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055-0318 (717) 697-8528 Attorneys Respondent Board of School Directors of South Middleton School District ~~ ... ~l!L~ 11_~, L~_~tI_ ~.- ., ~~ ~ .~ - q- ~ ,-, '" -- _.- - ~".~.",,,,-,",,,,,,,,~,, . ""-""'--'-'. .-4--"""""""~_",,,r'h"7~--:<'-'" _'f'",p~,~~-1W~~M{~W'~J:'~'{~7"f<'im~~t'~i!I('~iJ~~~~~WJ~'gf'1~]'~~-~_:<Th~-,,[.~~ LAW OI=FICES SNEL8AKER. BRENNEMAN & Sf3ARE :~~1:.... 11 Ii CODY CORNMAN, a minor By his parents, RONALD and TANYA CORNMAN, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO: 68"/crVIL 2001 Petitioners vs. SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, (Local Agency Appeal) Respondent PRAECIPE TO THE PROTHONOTARY: Kindly accept for filing in this Local Agency Appeal a true and correct copy of the transcript of the October 18, 2001 hearing before the Board of School Directors of South Middleton School District. Certain names have been redacted from the attached transcript by the undersigned to protect the confidentiality of students as may be required by federal law. Snelbaker, Brenneman & Spare, P.C. BY:~- . PhilIp ~~r~uire 44 West Main Street P.O. Box 318 Mechanicsburg, P A 17055.0318 (717) 697-8528 Attorneys for Respondent Board of School Directors of South Middleton School District Date: December 14, 2001 -. - .... -' 1 " 2 3 4 S. 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 if 1"\"7-\~ In Re: CODY CORNMAN BEFORE THE BOARD OF SCHOOL DIRECTORS OF SOUTH MIDDLETON SCHOOL DISTRICT STUDENT DISCIPLINE HEARING CASE NO. 2001-2 TRANSCRIPT OF PROCEEDINGS Before: PHILIP H. SPARE, ESQUIRE, District Solicitor and Hearing Officer DR. PATRICIA B, SANKER, Superintendent DR. JACQUELINE J. LESNEY, Assistant Superintendent ROBERT P. WINTERS, Member HOWARD W. ROSE, Member ELEANOR L. HARTMAN, Member EILEEN M, WEST, Member GINNY J, KENYON, Member Date: October 18, 2001, 7:37 a.m. Place: South Middleton School District Administration Building 4 Forge Road Boiling Springs, Pennsylvania APPEARANCES: TURO LAW OFFICES BY: GALEN R. WALTZ, ESQUIRE FOR - CODY CORNMAN ALSO PRESENT: JOHN P. GALLAGHER, Assistant High School Principal JOSEPH W. MANCUSO, III, High School Principal RONALD CORNMAN, Student's Father TONYA CORNMAN, Student's Mother Rebecca Toner, R.P.R. Court Report~r-Notary Public _Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com t,4t,<p!I!IB\'~ _,"='" _~,",. ." ~" ,-" " '<' ? .~ ,- ~ ... 20 21 22 23 24 25 ""'~~~-=~ . '"., -~, " INDEX TO TESTIMONY 2 DIRECT CROSS REDIRECT RECROSS FOR THE ADMINISTRATION 3 John P. Gallagher 8 1 1 4 5 6 7 FOR THE STUDENT DIRECT CROSS REDIRECT RECROSS 8 Cody Cornman 43 26 31 9 Joseph J. Glogowski 46,49 53 10 11 12 13 14 15 16 INDEX TO EXHIBITS 17 NO. DESCRIPTION MARKED 18 Student 19 1 Letter from Joseph J. Glogowski to Galen R. Waltz, Esquire, and Curriculum vitae of Joseph J. Glogowski 96 Central Pennsylvania,Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "' - ~I",-' ~_,," J. ,^; ;If j ,. PRO C E E DIN G S 2 MR. SPARE: Good morning. This is the time 3 and place fixed for the formal discipline hearing in 4 the matter of Cody Cornman, a student of South 5 Middleton School District. 6 My name is Philip Spare. I'm an attorney at 7 law, and our firm, Snelbaker, Brenneman & Spare, is 8 solicitor to South Middleton School District. 9 I appear here as counsel to the board of 10 school directors and as hearing officer appointed by 11 the board. I do not represent the administration or 12 the school district. 13 This hearing is intended to be closed, or 14 nonpublic. The student has a right to have a public 15 hearing. 16 Would you like this hearing to remain 17 closed? 18 CODY CORNMAN: Keep it closed. 19 MR. WALTZ: Yes. 20 MR. SPARE: This proceeding is hereby deemed 21 to be closed to the general public. 22 In order that the record reflects the 23 identity and capacities of the persons present this 24 morning, we will note appearances at this point. 25 The board of school directors of South Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com lik~~,_" T 0:;-,_ .~ " --' ,,~ --' , - p ,. f' ',.,,\""; ,,'c, . ." , 4: j' .1 1 Middleton School District are the agency or tribunal 2 ~earing this matter pursuant to Section 1318 of the 3 Public School Code of 1949. 4 The board has delegated a committee of its 5, members to hear this case and report its findings, 6 conclusions and recommendation to the full board at a 7 meeting to held on November 5th, 2001. 8 The board committee consists of Directors 9 Winters, Kenyon, West, Rose and Hartman. Dr. Patricia 10 Sanker is present in her capacity as superintendent of 11 the South Middleton School District. Jacqueline Lesney 12 is here in her capacity as assistant superintendent. 13 The administration of the school district is 14 represented by John Gallagher, assistant high school 15 principal, and Joseph Mancuso, high school principal. 16 We recognize the presence of the student, 17 Cody Cornman. We ask the persons present with the 18 student to introduce themselves by name, address and 19 relationship to the'student. 20 MR. CORNMAN: I'm Ronald Cornman, Cody's 21 father. I live at 599 Mountain Road, Boiling Springs. 22 MRS. CORNMAN: Tonya Cornman, Cody's mother, 23 same address. 24 MR. WALTZ: My name is Galen Waltz. r'm an 25 attorney. I represent Cody and his family in this Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com :"',-;(~~"'^""-""'""''''"''''" ,,- T ~ ",', . ,-,~- -" I.' ~" ,,~ ,-, , ,~- -, ~ .. 1 ) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~, -,5:,"--~ " 51 matter. And our address is 28 South Pitt Street, Carlisle, Turo Law Office. MR. SPARE: Thank you. This hearing is being conducted by authority of Section 1318 of the Public School Code and in accordance with the student rights and responsibilities regulations of the Pennsylvania State Board of Education as those regulations appear in 22 Pennsylvania Code 12.1. This is a formal hearing under Section 12.8 of the regulations. It is being stenographically recorded by Rebecca Toner, a court reporter from Central Pennsylvania Court Reporting Services. The student is entitled to a copy of the transcript of the hearing upon request and on payment of the costs thereof. The heating procedure will be conducted in accordance with the principles of the local agency law. I will make all rulings on evidence and hearing procedure. All witnesses will be sworn or affirmed. The administration has the burden of proving the charges and will first proceed with the production of evidence. The student will have the right to cross-examine each witness. Upon conclusion of the admin~stration's case Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com '-..I- ,., ,"".'-' > 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 , - ~'-'- ~.- --,--------- -'-- 'F'"""'~~':"'""''0ry; .~,,' "-- 7 notice indicates that it was received on September 26th, 2001. A copy of the notice and charges document and the return receipt card are hereby made a part of the record of this hearing. It's my understanding that the hearing in this case was originally scheduled for the 28th of September'dbut the matter was continued at the request of the student's attorney. Is that correct? MR. WALTZ: That is correct. MR. SPARE: Do you have any questions as to my statement or the procedure we'll be following this morning? MR. WALTZ: No. MR. SPARE: We will now proceed with the taking of evidence. The administration may call its first witness. Before we get into testimony, we'll have the court reporter swear anybody in who intends to testify. JOHN P. GALLAGHER, JOSEPH W. MANCUSO, III, and CODY CORNMAN, sworn. MR. GALLAGHER: Thank you, Mr. Spare. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4~@aol.com /____...,,1::... , ."'- ~" ~._. '1,~,~~';''''''''''' . ~,~, '" < 8 1 DIRECT TESTIMONY 2 MR. GALLAGHER: On September 10th, 2001, Mr. 3 Mancuso and myself were provided information regarding 4 the presence of pills in an English class at the high 5 school. The information was that Aderol was being 6 passed by 7 MR. WALTZ: Objection. Information that 8 he's indicating is strictly hearsay. Information that 9 he received that is of a hearsay nature, we have no 10 opportunity to cross-examine whatever was the source of 11 that information. 12 MR. SPARE: Do you have any response to that 13 objection? 14 MR. MANCUSO: The parent of another student 15 that we interviewed brought the bottle to us in a 16 separate interview, and that was what was indicated to 17 us was the pill bottle in which the pill was given. 18 MR. WALTZ: Objection remains. 19 MR. SPARE: Well, we're not bound by the 20 formal rules of evidence here, And although a ~ase 21 cannot be entirely based on hearsay evidence, we can 22 allow hearsay evidence for purposes of learning some of 23 the background of the matter. 24 And it sounds like what he was explaining 25 now was just how the administration became aware. of the Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,--,'._~=""."",--c;=..-_-,---'._,- __. '~I'" - ~ .. ~"-~e ~. , .-_...... :filiIl*"~T~-S'w:;'". "'r. 9 1 problem and how they decided to investigate. So we'll 2 allow that for now. 3 MR. GALLAGHER: Thank you. 4 On September 12th, 2001, we began calling 5 the students from that class to the office. We asked 6 the students if they witnessed anybody with pills or 7 heard any information about the pills. 8 While questioning one student, Cody's name 9 came up as a student with a bottle of pills. 10 MR. WALTZ: Objection, again, hearsay. 1 1 MR. GALLAGHER: This was the reason why I 12 called Cody down for the original questioning. 13 MR. SPARE: All right. Your objection is 14 noted, and we'll allow him to proceed. 15 MR. GALLAGHER: I did call Cody to the 16 office. When Cody was questioned, he denied any' 17 involvement and stated the bottle of pills that were in 18 question that I asked him about were, in fact, a bottle 19 of Tic Tacs, although he did not have the bottle of Tic 20 Tacs with him at that time. 21 We continued questioning students. After 22 questioning another student who admitted to us that he 23 did purchase pills from him 24 MR. WALTZ: Objection, hearsay. 25 MR. SPARE: Noted, overruled, Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,. ~ . ", _,_~_o_ 10 1 MR. GALLAGHER: -- I called Cody in for more 2 questioning. At that time, Cody admitted to receiving 3 a bottle of Aderol pills from another student to sell. 4 He admitted to selling pills to a number of students in 5 school on or about September 6th, 2001. 6 He stated students usually paid a dollar for 7 two pills. In addition, he stated he sold about three 8 pain pills to another student for a dollar each. He 9 gave some money back to the student who supplied the 10 Aderol pills. 11 The students who Cody stated were sold pills 12 were questioned and confirmed they received the pills 13 from Cody. 14 In addition 15 MR. WALTZ: Objection, hearsay. 16 MR. SPARE: Noted. 17 MR. MANCUSO: One of the students that we 18 did interview was in possession of a white pill that 19 they did pass along to us that Cody was the student 20 that sold it to him. 21 MR. GALLAGHER: In addition, the student who 22 supplied Cody with the pills confirmed receiving money 23 back from Cody. 24 The state police, Cody's mother were 25 notified. Cody's father was present dur~ng the Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~~--, ~,>~'=~_'''"1l'f~_''- c ,;"__,__ 0,'-. '1-( y ~ I: '~'-", .--' ..-"-' - ~ . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ','~~-~!F" " -" ,-.,--.-, " 1 ~ questioning by the state trooper. Cody was given a superintendent hearing regarding the violation of District Policy 227 on controlled substances on September 20th, 2001 at 11:00 a,m. in the district office. Dr. Sanker presided. Cody, Mrs. Cornman, Dr. Lesney, Mr. Mancuso and myself were present. There was a recommendation from that hearing that Cody appear before the board of school directors for an expulsion hearing. Thank you. MR. SPARE: Would you like to cross-examine this witness? MR. WALTZ: Before I do, I need a question on procedure that just arose. MR. SPARE: All right. MR. WALTZ: I was expecting other witnesses. Are these the only two witnesses the district is planning to present today? MR. SPARE: I don't know that. MR. MANCUSO: Yes. MR. GALLAGHER: Yes. MR. WALTZ: Okay. Then I have questions. Thank you for answering. CROSS-EXAMINATION Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "-I"" - ",~ 0""" ~- ., .-.i~~~!JiIi\~_~ ,. 121 1 BY MR. WALTZ: 2 Q. You used the term Aderol? 3 A. Yes. 4 Q. You mentioned the term white pill? 5 A. Yes. 6 Q. Did you do or have performed a lab analysis 7 on any white pills or suspected Aderol pills? 8 MR. MANCUSO: The Pennsylvania State Police 9 are-- 10 MR. WALTZ: All I'm asking is, did you have 11 a lab analysis performed? 12 MR. SPARE: Joe, let me interrupt a second 13 and say that John was the witness during that time and 14 John is being cross-examined now. 15 And if you need to testify after John, 16 you'll get your chance. They can cross-examine you. 17 But we don't want him cross-examining two people at 18 once, 19 MR. MANCUSO: Okay. 20 MR, WALTZ: Thanks a lot. 21 THE WITNESS: The white pill, I didn't 22 mention white pill in my testimony, but there was a 23 white pill that was received from the one boy. 24 The state police have that in their 25 possession, and they are testing it. At this time, I Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " ~ ,!" . ~ " I'" > " .'" c'_' ~ :!~~*"li~. 13 have not received any information on what the makeup 2 was. 3 with the other pills, they were identified 4 only by Cody himself, by the student who provided Cody 5 the pills and by his mother. That's where we learned 6 that they were Aderol, the description. 7 We did not test those because we did not 8 have any of those pills remaining when we questioned 9 Cody, 10 BY MR. WALTZ: 1 1 Q. So today, we do not have, the school 12 district does not have in its possession any lab 13 results of any analysis relative to what any alleged 14 substances were that Cody allegedly sold. Is that 15 correct? 16 A. No. At this time -- 17 Q. That is correct then? 18 A. Right, that is correct. At this time, we 19 don't have any. 20 Q. Now, you used the term Cody said it was 21 Aderol or whatever. However, Cody, certainly you would 22 agree, is not an expert and wouldn't be able to 23 identify any pill that was given to him that it was 24 what it was represented to be. Isn't that correct? 25 A. I agree. And we did mention that with Cody, Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 'l~ DI!'i I'" ~ ,-" ,. ,- ~-I l' !Ill"'" 4l"o ~, _r: 1 .,...., 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '__n'___ __-'_" . ,_ ..---'--~- ---,--,-- ' ',1~W~""''' ~ _,~. 1 ~ that this may not have been Aderol and it could have been. However, policy 227, any look-alike drug is also the same violation. So we were looking at it as more of a violation of our Policy 227 which includes any look-alike drugs or any prescription drugs. Q. Well, I'm just looking at the statement of the charges that we received that was dated September 21st, and he's alleged to have willfully engaged in the selling of controlled substances. A. Right. For the purpose of our policy, controlled substances shall mean any dangerous controlled substance prohibited by law, all look-alike drugs also included. So when we write that controlled, that's part of our policy, However, in the policy, it's stated what's covered under controlled substances, Q. So this could actually have been an aspirin as far as we know? A. If students are selling aspirin, that is in violation of our Policy 227 also. Q. Cody, when he was interviewed by you, did he indicate that any monies he received were turned over to the individual who provided him with the pills? A. Cody did mention that. Yes, he did say that Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,. "-, '-I" " "T",,' . ..T_".?_....~.....;..I!I; , ~, ". -'5 he gave money -- Q. And do you have any reason not to believe that? A. No. Q. Okay. Were you advised during the course of your investigation that one of the individuals who purchased these pills had represented that he was going to resell them? Were you advised of that by Cody? A. One of the pills -- or one of the students that Cody sold the pills to? Q. Correct. A. Was going to resell? Q. Correct. A. Cody didn't know. He mentioned one boy and said that that was his belief, that he thought he may do that because he gave him a large number of them, but he did not know for sure. I believe the state trooper also asked him that specific question, too. Cody could not say for sure, you know, seeing, or whatever it was. Q. Did you follow up with an investigation regarding that potential allegation? A. Sure. That was one of the boys that we questioned further who did confirm that he received pills from Cody. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "'-',1 ' ," I' "' - " , ,,~. _" 1 _,. 1 6 .. , 1 He did not admit to any selling, and also we 2 did not have anybody else come forward that admitted 3 buying them from this other boy. 4 Q. Aside from this particular instance that 5 Cody has become involved in -- well, strike that. Let 6 me ask this: are you familiar with Cody's record? 7 A. Yes. 8 Q. With discipline in the school? 9 A. Yes. 10 Q. Now, aside from this instance that Cody has 11 become involved in, from your experience with other 12 kids that are in the school the same age as Cody, does 13 his record indicate to you a student that typically is 14 a violator of school policy? 15 A. Well, Cody's had his share of discipline 16 referrals in the past years. I mean, just using last 17 year, he had, you know, about 11 or 12 referrals. 18 Some of them -- I don't think this one 19 incident here necessarily is a reflection of all those, 20 and I really don't want to bring up all the other 21 referrals. 22 However, there were some that resulted in 23 suspensions from school to Saturday detentions and 24 after-school detentions. 25 Q. Well, aren't the bulk -~ what you're Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,,'_:j~r""~~il1~_~ !',-, , ~", ~~N . ,",' "-". ......----.-~~-.-._:.. i'f'>Pil'0''''~''''''1''''W-, ~.p_ 17 referring to there so that we can clarify things for the board, aren't the bulk of those simply add-on detentions for failure to serve detention? A. Seven of them were not. Q. Let me ask my question again. A. Sure. Q. Aren't there a considerable number of those that were categorized as failure to serve detention? A. Uh-huh. Well, it would be the remaining ones which would be one -- let's see. Four -- no, three. Well, I guess there was eight of them. MR. SPARE: Mr. Waltz, if I may interject for one minute here. Typically the way we proceed is to have a part of the hearing to determine whether or not the infraction occurred and then towards the end of the hearing we ask the administration for its recommendation. And at that time, the administration typically explains the past discipline record and any academic data or attendance record that might be relevant to the disposition. MR. WALTZ: So I'm premature? MR. SPARE: Perhaps. If you want to , continue this line of questioning, you may. But that's Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com u """1 ' -', ._~ "'" :.i.l1\lf~.........__~...._W~ ,~ ." ""~ ~ 118 1 typically the way we proceed, and I would expect the 2 administration would be prepared to address the 3 student's past discipline record to the extent it's 4 relevant to the disposition of today's matter. 5 MR. WALTZ: That's fine. That's fine. 6 BY MR. WALTZ: 7 During the course of your investigation, was Q. 8 there any discipline afforded to any of the individual 9 students that purchased these items? 10 MR. SPARE: I'm not sure that's relevant to 11 today's proceeding to how this matter is being handled. 12 MR. WALTZ: Well, I guess the relevancy that 13 I would show would relate in particular to the one 14 student that allegedly purchased to resell and if, in 15 fact -- you know, what was the extent of the 16 investigation relative to -- 17 MR. SPARE: We're not going to try another 18 student's discipline matter in today's hearing. 19 MR. WALTZ: Well, I guess I'm interested in 20 certainly selective prosecution as it relates to same 21 or similar events occurring at the same time. That 22 would be the purpose of questioning. 23 MR. SPARE: All right. We'll allow that for 24 a limited purpose, but we're not going to try a second 25 discipline student here today. , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol,com - :;~____J7..<-l1l__~_ 16 19 1 You may answer that question then about 2 the-- 3 THE WITNESS: Can you repeat your question, 4 please? 5 BY MR. WALTZ: 6 In particular, was Q. 7 (phonetic) disciplined in any manner? 8 Well, since we're using names here, A. 9 shouldn't we be more restricted? 10 MR. SPARE: This is a private hearing. 11 You're free to use names. 12 THE WITNESS: With , we did 13 question him. And like I had said prior, he did not 14 admit to any selling. We did not have any students 15 that admitted that they received it from.-,either. ......., he received a suspension for his 17 purchasing of pills from Cody. 18 BY MR. WALTZ: 19 20 21 22 Q. The length of the suspension was what? A. Ten days. Q. Ten days. A. And he had a hearing in front of the 23 superintendent where at that hearing, there were 24 restrictions upon his return to school in addition to 25 the ten days. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~,- " ,- I' - '"""""I~m"'f};","" 1 2 3 4 5 6 7 8 9 1 0 1 1 12 13 14 15 16 17 18 "",: 19 20 21 22 23 24 25 ;,,"~"~i'1' ~~!jll'~ ~" .._,I. I ,20 Q. There were eight additional names provided to the school district beyond the names that were provided to your investigation. Are you aware of that? A. I was aware there were eight names, but there was no indication on why we were given eight names. MR. SPARE: Could we clarify that for the board so the board knows what you're talking about, about providing other names? MR. WALTZ: Yes. MR. SPARE: Is that the names of ~~e students you asked the board to provide subpoenas for? MR. WALTZ: That is correct. MR. SPARE: Okay. MR. WALTZ: We had initially requested subpoenas for these eight individuals, and presumably those names were provided to the administrators for further investigation. Again, that's presumably. I don't know if that did occur. And that's essentially the history between Mr. Spare and myself as it relates to those eight names. BY MR. WALTZ: , Q. My question is, you were aware there were Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com -- ~,,' "~ ,W)if?f#"-"'il'''''F'!'71!l'll,1lr~::_, -"'.' , , 21 1 eight names? 2 A. Yes. 3 I assume you were aware of the identify of Q. 4 those eight names? 5 Yes. A. 6 So the next question is, did you perform any Q. 7 investigation as to any involvement those eight 8 individuals may have had relative to Cody? 9 Yes. We called all eight individuals down, A. 10 talked to them individually, Mr. Mancuso and myself, 11 and questioned them if they had any knowledge of any 12 pills being sold, did they purchase any pills. 13 And that was pretty much the extent of that 14 investigation in terms of asking those questions. 15 Q. During the course of your investigation with 16 Cody, at all times would you describe him as respectful 17 or disrespectful towards you? 18 A. Towards me, very respectful. 1 ~, ~. ',',. Q. Were you the only administrator that had 20 contact with Cody regarding the investigation of this 21 matter? 22 I'm just asking you. 23 A. Yes. I wanted to from my knowledge, I 24 questioned him. And then we brought in the state 25 trooper, and he questioned him. Mr. Mancuso did at Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com . '" , ,,~ - , I","~ ". I ,- -" 22 1 another time. I think you'd have to ask him. 2 Q. Would you categorize Cody's behavior with 3 you essentially as cooperative or uncooperative? 4 A. The beginning, uncooperative, because he did 5 come down the first time when I asked him about it and 6 denied any involvement, when he told me that it was a 7 bottle of Tic Tacs that he had taken out of class when 8 the student had seen and reported it. 9 But then the second time after I had talked 10 to some other boys that admitted to purchasing from 11 Cody, he was cooperative. 12 Q. From that point on? 13 A. From that point on he was cooperative. In 14 addition, we did ask him the other students who he sold 15 them to. I believe I asked him that and then also in 16 the presence of the state trooper, and Cody did provide 17 other names. 18 Just for the record, he did not provide any 19 of those names that were on that list, those eight, at 20 that time. He did provide us with some names, and all 21 of them were questioned. And they did confirm that he 22 did sell those. 23 Q. Now, putting aside the eight names, the 24 additional names, putting that aside, by the 25 time -- well, as Cody was cooperating, ~sn't it correct Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com :':,*f~'!'''ij!~~;~~_'M.. . ^,"-- " , '1 .~ ' ~--"1'_\ '" ~.~--.-.... j'J'*,,,,,Fit...,..o:",""';"'~- _,",IIlI..~" -', 23 that you already had the names of the individuals that 2 Cody had allegedly sold these pills to? 3 Did we already have those before he gave us A. 4 those names? 5 Correct, Q, 6 A. No. 7 Okay. So I guess what I am asking now is, Q. 8 by your receiving those names, that's just simply 9 evidence or substantiation of Cody cooperation? 10 A. Yes, I would agree with that. 11 MR. WALTZ: Okay. No more questions for 12 this individual. 13 MR. SPARE: Okay. Do any board members have 14 any questions for Mr. Gallagher? If not, we'll let the 15 administration call its next witness if it has one. 16 MR. GALLAGHER: No. We're finished, 17 MR. SPARE: You're not going to testify, Mr. 18 Mancuso? 19 MR. MANCUSO: All the questions that were 20 asked Mr. Gallagher responded to and I would testify 21 to, Mr. Spare. 22 MR. SPARE: Okay. The administration rests 23 then? 24 MR. GALLAGHER: Yes. 25 MR. SPARE: Mr. Waltz, it's your opportunity , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,~ ,-"", , .-. i..B1J@<1.-.~f.....".5 ,~, __' .~, 24 1 now to present any witnesses you may have. 2 MR. WALTZ: I'm trying to draw this out for 3 a half-hour for my next witness at 8:30. I apologize 4 for that. 5 MR. SPARE: Could we explain that to the 6 board? 7 MR. WALTZ: Pardon? 8 MR. SPARE: Could we explain that to the 9 board? 10 MR. WALTZ: Certainly. We have a witness, a 11 psychotherapist, Joseph J. Glogowski. 12 And if I may approach? 13 MR. SPARE: Absolutely. 14 MR. WALTZ: The curriculum vitae. 15 MR. SPARE: Okay. Do you have a copy for 16 the administration? 17 MR. WALTZ: I do. 18 MR. SPARE: Okay. 19 MR. WALTZ: The Co~nmans have voluntarily 20 consulted with Mr. Glogowski, as I said, a 21 psychotherapist, in attempts to write a listing, 22 possibly would be the best analogy. 23 When they were faced with this particular 24 problem, they needed direction and chose on their own 25 to pursue help through this psychotheraQist who has , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com - - .~ " 215 seen Cody since these events have transpired. 2 Now, Mr. Glogowski has agreed to testify 3 telephonically today. Unfortunately, with all the 4 cajoling, et cetera, et cetera and the pressure that 5 Mr. Spare brought to bear, I could only get him to 6 respond at 8:30. That's what I think Mr. Spare is 7 asking me to -- 8 MR. SPARE: Well, I'd like to mention for 9 the record that you're saying that with a smile on your 10 face, and I -- 11 MR. WALTZ: I wasn't -- 12 MR. SPARE: -- want to make sure that that 13 does not appear differently on the written record, that 14 what happened was you suggested to me that you wanted 15 to have a telephonic witness at 9:30, and I suggested 16 without knowing in advance how long this hearing might 17 take, you might try to arrange his testimony for 18 earlier in the day. 1'> MR. WALTZ: That is correct, And I 20 apologize for not letting the smile speak for me, but 21 you are correct. It was meant to be a kindness on the 22 part of Mr. Spare's part. 23 And we acceded to that, but Mr. Glogowski 24 couldn't give me an earlier time than 8:30. So I 25 apologize for that. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ':,.afHf-?'-'?~""'<<""-~- __ ~~_..4_ ~",,1Il 'c ~ ~" ~', ~~"""- 11 r ~ . ..---... ~~-...,~.-.=--_.. ii~~~*";~~~'~[, ,- """ ,. ~, I 26 1 MR. SPARE: Any other witnesses you plan to 2 call? 3 MR. WALTZ: Yes. However, I would like to 4 present Cody. 5 MR. SPARE: All right. 6 MR. WALTZ: Cody indicated a desire to 7 testify, and we can have Cody present his material 8 before the psychotherapist. 9 DIRECT EXAMINATION 10 BY MR. WALTZ: 11 Now, Cody, you've been through a lot in the Q. 12 last month, and you've heard the testimony that was 13 provided today. 14 In particular, you heard testimony about 15 additional names as opposed to previously known names 16 by the school district that was known as a result of 17 your cooperation. 18 So to clarify this one point, my question 19 is,wny didn't you previously provide these eight names 20 to the school district when you were asked? 21 A. Because I didn't want to see those guys get 22 in trouble for this, what's going on. 23 MR. SPARE: Some of the board members -- 24 BY MR. WALTZ: 25 Q. Okay. Can you talk a little.louder? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ," . -_? ."-,,. <1', . , 1 " 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 i.~~"I'~F-f:'", _ ar ~_ ~ "'r;"'-,~ ~ ~,_~ L / Because these folks need to hear what you have to say and so does the reporter over here. A. I didn't want to see those guys get in trouble for what I did. Q. I hear what you're saying, but you did give up some other names before those eight. So is the board to assume it's okay for these guys to get in trouble, but I didn't want to get these guys in trouble? How do you explain or reconcile that? A. Well, those guys on the list there, they were pretty much already caught, and there was no reason not to give them up. And those other three names there, I just didn't want to see those guys get out for something stupid. Q. Have you ever done something like this before? A. No. Q. How much did you charge for these pills? A. It was a dollar for two pills. Q. Now, think carefully about this question: did you really know what these pills were other than what someone represented them to be to you? A. I didn't actually know what they were. 1-- Q. That's all I was asking. A. All right. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com . .. - , .........--~. .,,,-.--,-.-, ~W_'t~~''''li''1_''''" ~ fJ, , 28 1 Q. You received money? A. Yes. Q. What did you do with the money? A. Gave it back to~ Q. You gave it -- now,_ was the person you 2 3 4 5 6 received the pills from? 7 Yes. Did you give all the money back to.....? A. 8 Q. 9 A. Yes. 10 You didn't keep any for yourself? Q. 11 A, No. 12 So now I've got to ask this question: why Q. 13 would you take such a risk, assume all the risk and 14 turn all the money back to this other person and not 15 keep any for yourself? 16 A. Well, basically I just did it to try to look 17 cool, like, make myself look more I don't know 18 popular. All it does is get me in trouble. 19 Q. When you did this, did you have the 20 slightest clue the risk that you were taking? 21 A. No. Well, through the past years, I've seen 22 other kids do it and they've gotten away with it 23 scot-free. And I was just -- I don't know why I even 24 thought about doing it. It just crossed my mind, and I 25 thought I could get away with it. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com <,...".e 7_'", ,r.f~~_ ~, ," " " :r'~lJlj~li!;~';lj""7~W;:;W~" t; _ ~ , 29 1 If you were faced with that situation today, Q. 2 if you could relive that situation, would you do this 3 over again? 4 A. Absolutely not, no, not after going through . all this. ...f', Q. Going through all this. Are you saying your 5- 6 7 8 9 10 11 can't go out like I used to. You know, it's just more 12 hostile. 13 You're talking to these folks, not to me. Q. 14 A. Just -- I don't know. It's just not the 15 same. I used to be able to go out and do stuff. Now I 16 have to ask. I can't do as much stuff as I used to, 17 more strict. It's just not the same. 18 Q. Does it seem cool now? 19. A. No. No. 20 Q. Is there anything -- I'm sure this board 21 needs some kind of sign from you or signal from you. 22 How do they know that you aren't going to do this again 23 or that you haven't learned your lesson? What can you 24 say or what can you do? 25 A. Well, I can say that what I did was I Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~ " "",,'" ~, ~~ ....--.. :;;t1Jl~,;I'?i;)9.'''-'<~'lll'ft_..~ 30 1 definitely a mistake and I didn't realize the 2 consequences. And now that I realize the consequences, 3 it will never happen again. 4 It was a stupid thing to do on my part, and 5 I didn't -- like I said, I didn't realize what was 6 going to happen. It was just stupid from the start. 7 I'm sorry, very sorry. 8 Did you ever do anything like this before? Q. 9 A. No. 10 You have met with a psychotherapist. Is Q. 11 that correct? 12 A. Yes. 13 That's, I guess, another illustration of how Q. 14 your life has changed? 15 A. Yes. 16 Q. And to the best of your knowledge, you have 17 additional appointments scheduled with the 18 psychotherapist? 19 A. Yes. 20 Q. Right now, you're receiving some type of 21 homeschooling? 22 A. Yes. 23 Q. How are you doing? 24 It's good. It's kind of hard to keep track 25 because I don't get all the notes like I would in A. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " T_, ~'" ., , '.-~ . ", ," _"~""':'n . ._~~1iii%.~(.1..l?jf<.1~ ~- ^ 31 1 regular class, but I'm trying to keep up and do my 2 work. 3 Have you created any problems with your Q. 4 visiting teacher? 5 No. A. 6 How would you like this to end, Cody? Q. 7 A, Just go back to what I used to be instead of 8 not being able to see my friends. And I don't know, 9- just be the same as it used to without all this. 10 MR. WALTZ: I have no more questions. 11 MR. SPARE: Does the administration have any 12 questions of Cody? 13 MR. MANCUSO: Yes, we do. 14 MR. SPARE: Go ahead. 15 CROSS-EXAMINATION 16 BY MR. GALLAGHER: 17 First, Cody, how many pills was it that you Q. 18 sold? 19 A. Around, roughly about 60 to 65 pills.. Now, did _approach you, or did you 20 Q, 21 approach1lllllabout it? 22 I asked..... about why he was, you know, A. 23 repeatedly jumping, like, a lot of active stuff, and he 24 told me he had ADHD. 25 And I asked if he took any m~dication, and , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol,com '~-, '^~", I~~" ~-'~---~ " ,,' ' - . tilJ!!l;'m-''!<l&''j*''",~%~""",, ',",,' 3'2 1 he told me he took Aderol. And I had questioned him 2 about if he ever decided to sell any, and he agreed 3 with me. And he brought the pills the next day. 4 Q. Was it one conversation? 5, A. It was -- well, there was one conversation. 6 And then he said he was going to bring it the next day, 7 and he didn't bring it. And then the next day I asked 8 that he bring it, and he brought it in the next day. 9 Q. And where did he give you these pills? 10 A. The first time it was in the morning at his 11 locker. He had it in his gym bag, and I got it out of 12 his gym bag. And he gave it to me. 13 Q You said the first time? 14 A. Yes. There was more 15 Q. Did he give you more 16 A. Yes. Well, at the end of the day, I gave 17 him the bottle back, and he refilled it and gave it to 18 me the next day. And it happened for three days, three 19 days. I gave him the empty bottle, and he refilled it 20 for three days. 21 Q. How much money did you give him? 22 A. There was a total of between probably 35, 23 $40, and I gave him all the money. 24 Q. Have you continued your contact withlllllf 25 A. No. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com , c~'~ , ., v < --.. <~_"""""'''l'!''''''''~~'' 33 Q. How about with any of these other, the other 2 students that you had given us their names, have you 3 continued to have any contact with them? 4 A. Well, I'm still, like, friends with _ and 5 ... They come by every once in awhile, but not 6 anybody else. 7 Q. _? 8 (phonetic) . A. and 9 MR. MANCUSO: Do you need those names 10 spelled? 1&. is 11 BY MR. MANCUSO: 12 Q. Cody, you originally stated in our 13 investigation that the reason you began to sell the 14 pills was that you were trying to helpllllllbuy a class 15 ring. Is that correct? 16 A. That is correct, for the second day that he 17 was -- after he saw how much money he made the first 18 day, he just initially wanted to do it. He told me 19 about the class ring and wanted to save money up for a 20 class ring. 21 And now today you say the only reason that Q. 22 you did that was to be cool? 23 A. Yes. That was the 24 Q, Why the change? 25 A. The first day. Well, it was ,both actually. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " I" ~~ "' I~ .................. 18 3, 1 It was pretty much both. 2 You said in the past that students have sold Q. 3 pills and gotten away with it? 4 Many times. A. 5, Have you ever seen a student that was, or Q. 6 hearsay that a student did sell pills and they got 7 caught? Have you ever heard of that happening as well? 8 A. I've heard of it happening, but none that 9 I've really talked to and know of. 10 Okay. Did you receive a student handbook at Q. 11 the beginning of this school year? 12 A. Yes, I did. 13 Q. Did you review that? 14 A. I reviewed it, yes. 15 Q. Were you aware of what the punishment is for 16 somebody distributing drugs or controlled substances on 17 school campus? A. I didn't really understand actually what 19 happened, but, yes, the basics I understood. 20 Q. So you were aware'that if you sold pills and 21 you were caught, for lack of a better word, that you 22 would receive some type of punishment for that? 'Wi!I;Wo/~_,l~ 23 24 25 ~ ,- ~-_. A. Yes. MR. MANCUSO: No further questions. MR. SPARE: Do any members o~ the board have Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ., 1. '''1f''"' , ',-., ~, ~ , ~o:'~'~. ~ ~'"', .~_rolP~"" ...T..lt!<_o." ."-'~-"":jP'~~r1~ ",5 1 any questions for Cody? You may proceed. BY MS. HARTMAN: Q. Did you take any of these pills yourself? A. I tried one of them to see what it, what the 2 3 4 5, 6 effects would be, and it didn't -- I didn't really get 7 anything off from it. 8 I beg your pardon. I can't hear you. Q. 9 I took one just to see what, you know, the A. 10 effects would be of it, and that was it. 11 You made a statement that now that you know Q. 12 there's consequences and what the consequences were, 13 you would never do it again. I assumed you were saying 14 you didn't realize you'd get into so much trouble? 15 A. Yes. 16 Q. Okay. But then I believe you alluded 17 earlier to some referrals that you had had, 11 or 12 18 problems with behavior problems or something. 19 You said they were discipline -- we call 20 t~em disciplinary things here, but you thought it was 21 after-school suspension or something. And you had 22 those? 23 A. I have never had out-of-school suspension 24 before. 25 Q. Okay. What did you have you~ problems with Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com .-""'" .~ .,~ ~". ~ ~ - .:i~~~&..>jii.t-.".l!r~..... 36 1 before? 2 Well -- A. 3 Did you not -- well, my question really is, Q. 4 if you had these problems, did you think then I'll 5 never do it again because there are consequences? 6 And now you did this, and now there are 7 consequences. So why do we believe -- why should we 8 believe the change? 9 I understand that. But most of these are A. 10 just petty things, like, you know, stuff that I 11 wouldn't try to do, but, you know, they would happen. 12 MR. SPARE: We'll get into the disciplinary 13 record, I believe, coming from the administration, and 14 then Cody will have a chance to respond to that to the 15 extent it's relevant. 16 MS. HARTMAN: Okay. 17 THE WITNESS: And none of these compare to 18 this. You know, this is just way, way beyond any of 19 these, so it doesn't even compare to any of these. 20 That's why. 21 MS. HARTMAN: Okay. Thank you. 22 MR. SPARE: Any other questions from board 23 members? 24 MR. WINTERS: Yes. 25 BY MR. WINTERS: Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,~" ' . .. . ~ ...-.------.-----~-----. ' "~'*,H,:~;o_c'","'c-w""~.r:r _'_'''';' 37 1 Cody, how old are you? Q. 2 I'm 16. A. 3 You're 16. And you've always been a student Q. 4 at South Middleton? 5 A. Yes. Q. And you've always li ved at home? A. Yes. Q. And what grade are you in? A. I'm a tenth grader right now. Q. And you've been at the high school now at 6 7 8 9 10 11 least, this is your fourth year in that building? 12 A. Yes. 13 And in those four years, you have received Q. 14 four copies of the student handbook, and you are able 15 to read? 16 A. Uh~huh. Q. And you have always lived with Mom and Dad? A. Yes. Q, And you know right from wrong? A. Yes. Q. You knew the policy on drug possession or 17 18 19 20 21 22 selling drugs or look-alikes? 23 A. I knew there was a policy, but I didn't, 24 like, you know, really look into it. 25 Q. Pardon me? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~ ^__c " I ,-_~ ec -~ . ~ ~, M 38 A. I knew there was a policy, but I didn't look into it. Q. You never looked into it? A. Yes. Q. It has never been discussed in your health classes at any time? A: lIlo. ....~.. "' .;' ".-,.-,0~." Q. It's never been discussed among your peer group? A. No. Q. If I were to hand you one of the pills that I take, would you take it? A. No. No. Q. I don't understand why you would take a pill that someone else gives you but you wouldn't take one that I gave you. Is it because you don't know me? A. Well, that, and it's prescribed to you, now that I realize that prescription drugs are prescribed to the person who takes them. They have certain prescriptions that they take. Like what you have would not be the same as another person. That's why. Q. Now, the person that provided you with the drugs, did he tell you or did they tell you that it was Aderol? A. Yes. But I was -- Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com v~-~~1<,'f'Wti'><~!"" lit. ',~"", '" '"'<, _, _ ~ ~_ < ~ ~ ' , ~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - ",,",,_'",i""""1"~--<<"~_~ ,~ I 39 Q. Did he tell you what it was meant to do? A. He didn't tell me what it was meant to do, but I've heard what other people told me what it was. Q. What was it meant to do? A. It was meant to -- well, from what I've heard, it just makes you pay attention. Q. It makes you pay attention? A. Yes, and keeps you, like, focused on stuff. Q. Are you an ADHD student? A. No. Q. I don't understand why you would take the so-called prescription drug and not know what it would do to you. A. Well, from past experience of what people have told me. Q. Just what people told you? A. Yes. Q. And you do know right from wrong? A, Yes. MR. WINTERS: I'll reserve any other questions I have, Mr. Spare. MR. SPARE: Okay. Eileen. BY MS. WEST: Q. Are you aware of the different levels of violations in the student handbook of tqose 1, 2 and 3? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com , " . " ~I ' - 1, .....~*~~ifC..~ ~"~ <,-- ^ 40 1 A. No, I'm not familiar with those actually. 2 MS. WEST: Are students required to sign an 3 acknowledgement that they have received and read the 4 student handbook? 5 MR. GALLAGHER: Yes. 6 BY MS. WEST: 7 Q. Well, if you signed an acknowledgement that 8 you not only received it but read it, as I understand 9 or as I recall the student handbook, Levels 1, 2 and 3 10 infractions are laid out in table form, and it's very 11 clear what the potential penalty is for an infraction 12 of this particular policy. 13 And yet you say that you signed that you 14 received and read the student handbook, but yet you're 15 not aware of what the penalty would be for distribution 16 of a controlled substance? 17 Like I said, I reviewed it. Like, I doubt A. 18 that, you know, I would sit there -- I reviewed it. Like, year after year, I don't read the whole thing, but, you know, I go over the topics and the main points and then sign it and hand it in. Well, I know them now. I've 19 20 21 22 23 actually after this happened, I thoroughly went over 24 it and read it a couple different times. 25 But before this, I didn't think I'd have to Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " t, <0 ~ . , .-^;."H..*......6~....-.i........-_. 6_~M"" 411 1 go through this, so I didn't really think I would need 2 to review the handbook. 3 MS. WEST: Thank you. 4 MR. SPARE: Any other questions from board 5, members? 6 MS. KENYON: No. 7 MR. SPARE: Jack, do you have any questions? 8 MR. ROSE: Yes, I have one question. 9 BY MR. ROSE: 10 If you were aware that these things, as you Q. 11 said, allow you to focus better, I guess I want to 12 understand whether or not -- you tried one yourself, 13 you said, without any effects of it. 14 If it didn't affect you, what made you think 15 it was going to affect the people you were selling it 16 to? Were you selling it to them because you thought 17 they needed to be more focused, or was it simply to 18 raise this money for the individual? And what was 19 your-- 20 MR. SPARE: One question at a time, Jack. 21 MR, ROSE: Okay. 22 MR. SPARE: Just one question at a time. 23 MR. ROSE: Okay. Sorry. 24 THE WITNESS: Well, mainly everybody I sold 25 it to, they knew what it was. They kne~ what it did, Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ". ," ~ . -~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -' ij't1~@/<~~"@-Pi,,~ w. . _ll" ~ _~' 4 so that's mainly why they bought it from me. And what was your other questions? BY MR. ROSE: Q. The other question was, was there any restitution to you for having sold these for this other gentleman? A. What do you mean by restitution? Q. Did he give you any money or anything? A. No, nothing. MR. ROSE: Okay. MS. WEST: I do have one more question. MR. SPARE: Director West has another question. BY MS. WEST: Q. How much money did you say that you returned to Kyle? A. Around, either between -- I didn't keep track of all this stuff, but between about 35 to $40. Q. So between -- and how many pills did you say you sold? A. I didn't keep track, but roughly between, like, 60 and 65 plus the three painkillers. MS. WEST: The math doesn't add up. MR. WALTZ: It does compute. MS. KENYON: It's two for a dollar. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "-'I' "r , . ,--. ,,- ;.-;;Mil!J;.~..;...;r~i!..~;...~1&I ~'.._ ~, , 43 MS. WEST: Two for a dollar. 2 MR. SPARE: It's close. 3 MS. WEST: Thank you. 4 MR. SPARE: Do you have any redirect of this 5 witness? 6 MR. WALTZ: Sure. 7 REDIRECT EXAMINATION 8 BY MR. WALTZ: 9 I'm holding in my hand the Boiling Springs Q. 10 High School handbook. Now, this has a variety of pages 11 ranging from maps to diagrams of angles, math, blank 12 pages, charts, policy, safety regulations. 13 And you were asked some questions about this 14 book, and that's what my follow-up involves. 15 Did you study this handbook at any time? 16 A. When I received it at the beginning of the 17 year, I looked over it, but I didn't review it. 18 Q, When you say you looked over it, what does 19 that mean? 20 A. Just looking at the topics and skimming 21 through it. 22 Q, Skimming through it. So did you memorize 23 any portions of this handbook? 24 A. No. 25 Q. Were you ever tested on parts of this Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com .'-.---------.--.-.-,.,-.' \' d f " ,"""""- .j_..jW~......~!?~...~.--. -~ 44 1 handbook? 2 No. A. 3 Were you ever in a class that discussed Q. 4 parts of this handbook? 5. They discussed the handbook and school A. 6 policy, but we never had, like, a big discussion about 7 it. 8 Did they ever discuss or test you on the Q. 9 drug policy in the handbook? 10 A. They discussed the drug policy, but we never 11 took a test for it. 12 Q. You were in a class where it was discussed? 13 A. Yes. 14 Q. Did they discuss the ramifications or, I 15 should say, the penalties that would be imposed in 16 detail? Did they discuss that? 17 A. No. They just told you that there would be 18 penalties. 19 Q. So until you got involved with this 20 misadventure that brought you here today, you are 21 saying you did not know the policy and the penalties 22 that were provided as they are written in the handbook 23 prior to your misadventure? 24 A. That's correct. 25 Q. Do you know what the penalti~s are now, Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " ,~~ ~1 '--, ,~ 4 1 today? 2 A. Yes. 3 You were asked a question by a boar~ member, Q. 4 would you take a pill prescribed to him? If he gave it 5 to you, would you take it? And I believe you answered, 6 no, you would not. 7 And naturally he asked, well, then -- the 8 logic extension of that question is, how do you justify 9 taking a pill prescribed for a friend or an associate 10 if not a friend, prescribed for his condition when it 11 wasn't prescribed for you? How do you reconcile that 12 answer? 13 Well, I didn't realize that when you're A. 14 prescribed that there's certain -- whatever he has, 15 it's just, it's prescribed for him. I didn't realize 16 it. I thought when you prescribe a certain pill, like, 17 it's for all types of, like, what problems that he had. 18 Q. When did this realization occur? 19 A. After all this happened. 20 Q. Did you talk to anybody that informed you 21 about this? 22 A, Well, my mom and dad. 23 MR. WALTZ: No more questions. 24 MR. SPARE: Are you ready to call the other 25 witness then by telephone? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ";~-'lO""'<\""';"_""i_'''''''fl'_b, ~ J!' y, ,", ,,' ,^ ,".'~. , . "-~~~ i._~~<fiW;rn;w::.1i7[ ~ ': ~~, ,L~ _, 4 1 MR. WALTZ: Could we place that call? 2 MR. SPARE: Let's take a two-minute recess, 3 try and get him on the phone, and then we'll reconvene. 4 (Whereupon, a break was taken from 8:32 a.m. to 8:39 a.m.) 5 6 MR. SPARE: We now have everyone reassembled 7 here at the hearing, and I understand there's a witness 8 on the telephone. 9 Can the witness on the telephone hear my 10 voice? 11 MR. GLOGOWSKI: Yes, I can. 12 MR. SPARE: We're going to ask that you be 13 sworn in, sir. 14 MR. GLOGOWSKI: Okay. 15 16 JOSEPH J. GLOGOWSKI, called as a witness, 17 being duly sworn, was examined and testified as 18 follows: 19 20 DIRECT EXAMINATION (As to Qualifications) 21 22 BY MR. WALTZ: 23 Q. Mr. Glogowski, this is Galen Waltz. You 24 and I have talked before. That is correct? 25 A. Correct. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ." ~ , , ~ , - i""'1Mf~'1\l1;"~';N\\"'"''''", " 4 Q. The board has been assembled, as was 2 indicated, and I need for you to identify yourself 3 professionally, although I have provided them with a 4 copy of the letter that you had drafted to me that is 5 undated and I also provided them with a copy of your 6 curriculum vitae. 7 Okay. A. 8 Now, you have been involved in psychotherapy Q. 9 for what length of time? 10 Approximately 25, 26 years. A. 11 And during that course of time, you have Q. 12 dealt with a considerable number of adolescents? 13 Yes, I have. A. 14 And adolescent behavior? Q. 15 Yes, I have. A. 16 Although you are not currently licensed in Q. 17 Pennsylvania, your work is reviewed by a licensed 18 individual. Is that correct? 19 A. Actually two, a licensed Ph. D. psychologist 20 and also a licensed master-level psychologist. 21 Q. And in particular, Cody Cornman came to you 22 for his first appearance the other week. Is that 23 correct? 24 A. That is correct. 25 Q. Now, the work that you have performed thus Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ;,"' >""""', , " ,~, l_ ~-" """, , ~~ !:-,~~"--",:!<~",,,,,,"'l::--,,,"-~, ~"C" ,)~,' 48 1 far with Cody has been discussed with these licensed 2 individuals that you've previously mentioned? 3 A. Yes, it has. 4 Q. And have those individuals found anything 5 missing or negative relative to the work that you have 6 done with Cody? 7 A. No. 8 Q. Now let's talk about Cody, unless -- excuse 9 me just a second. 10 MR. WALTZ: Mr. Spare, I'm trying not to 11 duplicate the curriculum vitae. It's speaks for 12 itself. If you want me to -- 13 MR. SPARE: I just want to have his full 14 name on the record and a business address and who he 15 works for. 16 MR. WALTZ: Okay. 17 BY MR. WALTZ: 18 Q. If you would please, your full name? 19 It's Joseph J. Glogowski, G-l-o-g-o-w-s-k-i, A. 20 and I am with Pennsylvania Counseling Services in the 21 Carlisle office. And that is 700 Clay, C-l-a-y, 22 Street, Carlisle, PA. 23 MR. WALTZ: Any other information you need? 24 MR. SPARE: Let me check. 25 Does the administration have ,any questions Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol,com " ,. " ~, , ~ ~~.~ 4_ about this witness, who he is or where he works? 2 MR. MANCUSO: No. 3 MR. GALLAGHER: No. 4 MR. SPARE: All right. You may proceed. s MR. WALTZ: Thank you. 6 DIRECT EXAMINATION 7 BY MR. WALTZ: 8 Q. Now, Cody presented himself to you on or 9 about October the 12th. Is that correct? 10 A. Correct, on October the 12th. 11 Q. And would you please, for the purposes of 12 the board, discuss if there is any diagnosis; if not, 13 certainly the events that took place; any prognosis, if 14 there is one; and if not, further indicate what you 15 encountered during that session? 16 A. Well, he came in on the advice of his 17 attorney, and what impressed me initially was the fact 18 that he was honest about why he was there. 19 He had talked about his selling Aderol and 20 painkillers and that this lasted approximately three 21 days. 22 Part of -- what I do, I basically do an 23 initial evaluation that goes through the history of why 24 they're there, family history, drug and alcohol 25 history. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ''':'''''M''k-"",~'''f''j'~;;>J;l_" ,-," r '.'1'-" ..... 1 ,,-.-...... 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .. ;-;ii~~~_;\\' l_,J! 50 And as part of the examination, I also met with his mother towards the end of the session. At this present time, what I've done is I've basically given Cody just a diagnosis of adjustment disorder with mixed emotional features because obviously they're stress related to what's going on right now. The thing that's impressed me as I was talking to him is actually there is not a whole lot of drug and alcohol history. I've worked with a lot of teenagers younger than him that have an amazing drug and alcohol history, and his is very, very minimal. It appears that the selling of drugs only lasted three days. He realized that what he did was from him, quote, stupid. And what also was interesting to me was the fact that he didn't even profit from it; he gave the money to, I guess, a gentleman named _. So as I was talking with him and, you know, listing and evaluating what was going on and also I was talking to his mother -- it seems to be consistent that basically this has to do more with self-esteem issues than it has to do with some kind of sociopathy. Are there other things that you would like to know? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "", - ~ 1 ,r~ I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~' ..,!",>"W-'O"'_"..-"~_0)""",,,",[[if,~_, ,'.. , ,.., :J1I Q. Yes, Mr. Glogowski. I believe we discussed recommendations? A. Correct. Q. You had recommendations that you would like to at least verbalize regarding Cody. If you would please, now would be a good time for you to take them into as much depth as you wish. A. Okay. What I think, I really believe that Cody should stay in school at this point in time. I think what he needs to do is really work in therapy, and I think that maybe a written contract between the school and he having certain contingencies could be beneficial. I have four contingencies that I was thinking. The first one has to do with him meeting with me on a weekly basis, and this will be definite for the school year, longer if needed, depending on how therapy goes in that length of time, There are also -- at some point in time, I think Cody really needs to develop healthy peer relationships as he progresses in therapy, which is something we would discuss and work at to find ways for him to develop healthy peer relationships, whether that be by various church functions, school functions or whatever it is that we discuss. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com I ~ ~ ~~~ ~, -'. 2 1 I also believe that it would be beneficial 2 for the parents to be involved in family therapy. This 3 would be in addition to Cody's individual therapy. 4 That may occur approximately once every 5 three weeks, depending on necessity. A lot of children 6 at this age basically have issues with parents, and I 7 think this involvement could be beneficial. 8 I think that it would be important for the 9 parents and for Cody to agree to random drug testing 10 for the year that he is in school. 11 Usually when I do therapy with clients, this 12 is part of the treatment plan anyway, And I think it 13 would be really important for him to make sure that he 14 also stays clean. 15 If per chance he were to flunk a test, then 16 what would occur is he would lose his driving 17 privileges, he would be grounded from school, home and 18 therapy until he had several urine tests that were 19 negative. 20 I think that's all the recommendations I 21 have, 22 MR. WALTZ: I heard them, Mr. Glogowski, and 23 that's all I have for you right now. 24 However, you will be subject to questions by 25 the administration. You'll also be sub~ect to Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,_~l,p.~~'~"" -.~ .~>, ,"'" ~~ 4...M(.......~_.w....".^.~...T::.lll..lW1 53 1 questions by the school board, Do you understand that? 2 THE WITNESS: Yes, I do. 3 MR. WALTZ: Okay. I'm going to take a seat 4 and listen at this point. 5, THE WITNESS: Okay. 6 MR. SPARE: Does the administration have any 7 questions of this witness? 8 MR. GALLAGHER: Just one. 9 CROSS-EXAMINATION 1 0 BY MR. GALLAGHER: 11 Q. How many times have you met with Cody 12 Cornman? 13 A. I have met with him once. This is just the 14 initial evaluation. And what I'm going by basically is 15 my experience in the field in terms of what my 16 assessment is at this time. 17 MR. GALLAGHER: Thank you. 18 MR. SPARE: Do any members of the board have 19 any questions for this witness? 20 MS. WEST: My name is Eileen West. I'm a 21 board member. 22 THE WITNESS: Okay. Hi, Eileen. 23 BY MS. WEST: 24 Q. And what did you say was your preliminary 25 diagnosis? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " -~. -'-~-~~"I'- ~~ r_ ~ ;~.~k._8.1."rJ\~... ,_ ~ ~,1, j,! A. Initially I gave him what's called 2 adjustment disorder with mixed emotional features. 3 What that basically means is that he's 4 having some difficulty with dealing with the current 5 stressors in his life and he's having varied kinds of 5 emotions about it. 7 Okay. Is this -- I'm trying to choose my Q. 8 words here; I'm sorry. When somebody visits you, do 9 you feel compelled to diagnose? 10 A. Do I feel what? 11 Q. Do you feel compelled to provide a diagnosis 12 for every 13 A. That is standard. I actually have to give a 14 diagnosis when using insurance. I don't really have a 15 choice in the matter. For insurance to pay for the 16 services, there needs to be a diagnosis. 17 Q. SO you are required to provide a diagnosis, 18 and in this case you provided a diagnosis that is 19 related to, if I may, post-traumatic stress? 20 No, it's not. This is a very general A. 21 diagnosis that is basically saying that there are 22 stressors in his life that he's dealing with. This 23 doesn't have to do with PTS, or post-traumatic stress. 24 Q. Okay. But the stressors that he's dealing , 25 with are related to this particular charge? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com --q-, ,'I ~, , . ~ 1 2 3 4 . 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "".y';-"~'n"'- >"'!'~""""_ ~ ,~ ~, ,Ill."" 55 A. Correct, the school issues and the fear of not being able to be in school. Q. So if he had not committed this infraction and you saw him, you would not necessarily say that there was any type of psychological issue with this young man, correct? MR. WALTZ: Objection, calling for speculation. THE WITNESS: Okay. Thank you. MR. SPARE: I'll overrule that and ask if you can answer that question. THE WITNESS: Well, there are some things that I noticed that I do not think are relevant to this hearing. BY MS. WEST: Q. We all have stressors in our lives. Do you believe that the fact that we all proceed day to day with certain stress, certain stress levels, do you A. Okay. The other thing is with Cody and one of the focuses that we're going to be working on is self-esteem, because a lot of what he did had to do with him wanting to seen -- or accepted by his peers or seen in a certain light. So a lot of it would be working on his self-esteem issues. MS. WEST: Thank you. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com >, fIT~' , .. ~'. . ~ ~"~.,." >.TnT.... ,;{._;;,,;,;.>;r"I\!lO"_'~"'< " , _ 5ts 1 MS. HARTMAN: I have a question. MR. SPARE: There's another board member who has a question for you, sir. THE WITNESS: Okay. MS. HARTMAN: Hello. THE WITNESS: Hello. MS. HARTMAN: My name is Eleanor Hartman. THE WITNESS: Hello, Eleanor. MS. HARTMAN: Hi. BY MS. HARTMAN: 2 3 4 5 6 7 8 9 10 1 1 Q. I have some questions about you. And I 12 don't mean to sound impertinent, but I need to clarify 13 something in my mind. 14 A. Okay. 15 Q. You are a psychiatrist? 16 No. I'm a psychotherapist. A. 17 Q. Which is like a psychologist? 18 A. Like a psychologist, only I can't call 19 myself that because I'm not a licensed psychologist. 20 c Okay. You're not a licensed psychologist? Q. 21 A. Correct. 22 Q. That's the next question. How long have you 23 been practicing as a counselor in Pennsylvania? 24 A. Twenty-five, 26 years. 25 Q. And why is it that you're not licensed? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ""~r," 1" """ -~~ ....;. "_'~''''^'''''"'''';;'''~''''',,-'''-m~l~N_'''1 :Ii 7 A. Well, actually when I went for -- I applied 2 to become a licensed psychologist. And the packet was 3 very, very thick, and I knew I had about six months 4 until the next exam. 5 When I took my time, trying to get 6 information, got it in, I did not know that they had 7 changed the regs, the policies and what was required 8 about four months earlier than when I got my packet in. 9 And had I gotten it in two months after I 10 got the packet, I would have been fine and under the 11 old regs. But I missed that because I had a master's 12 level and where I was in terms of my family at that 13 time, I was not in a financial place to go on for my 14 Ph.D. 15 So I was working with Harrisburg Hospital, 16 working in a, you know, professional setting. And 17 really it wasn't an issue at that time, so I just kind 18 of let it go, But with the advent of managed care, it 19 is becoming an issue. 20 Q, Yes. 21 A. But what I have done to try to supplement 22 that is I have my -- I'm a national certified 23 counselor, I'm a certified chemical abuse counselor and 24 I'm a national board certified clinical hypnotherapist. 25 Q. Okay. So this would be very similar then to Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com .. . " ""1~"~"'"'" .. ~, ..illrl.n ~" -~.. ~------------~---- , 1".<\!;!l!'",~'~~'~c.""- __,~~,_~ 513 1 an MSW? 2 They're all kind of similar, but" the A. 3 training is somewhat different. 4 Right. Q. 5 They all have certain theoretical framework A. 6 they follow that are a little bit different. r'm 7 definitely probably more collective, and I draw from a 8 whole lot of disciplines. 9 MSWs tend to be schooled more in a 10 psychoanalytical traditional approach initially, 11 although I know that has changed. And psychologists 12 have a slightly different focus. 13 But in the end, we tend to all become more 14 focused because I work with psychologists and MSWs. 15 Q. Okay. Something that you stated is that 16 Cody came to you on the advice of his attorney? 17 A. Correct '. 18 Q. And we had been told, I believe, that you 19 said that he -- the attorney told us that he came on 20 his own. 21 MR. WALTZ: Voluntarily. 22 BY MS. HARTMAN: 23 Q. Voluntarily, which implied that it was his 24 idea to go, not yours. So that, I felt, was a 25 discrepancy there; on my own, I thought. Okay. , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ._--~';'",~-_. . """"F ~ I=c" .-o".F.1j...-.<...>.."...:i<~ ~ ""'~ _ ., _ :'7'"1F~'''''-,~ ~O. ~'I', a-~- 01:1 1 I just want to say what impressed me was the A. 2 fact that he told me that. He did not have to be 3 honest with me about that, and that struck me initially 4 because he was honest about that. 5 Q. Okay. A. Do you follow me? Q. Yes, I understand. A. Okay. Q. Okay. I'm looking here. And I understand 6 7 8 9 10 your having to come up with a diagnosis quickly so 11 insurance would pay for it. So that's sort of a 12 generic 13 A. Yes. I would not normally do that, but I 14 have no choice. 15 Q. Generic diagnosis, it covers just about 16 everything. 17 When you said that -- point 4, that you 18 thought he should have random, that would be part of 19 your plan for Cody? 20 A. Correct. 21 Q. The random drug testing. To me, that 22 implied he has a history of drug abuse or you wouldn't 23 be asking for it as part of his program. 24 A. Whenever there is any kind of possible drug 25 problems or drug issues, one of the thi~gs that is part Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 1 -~ - ~ ~ ~~~ - . ~ 1 .."....iil '><fi'ti:W~C:"~"'"_~~!\!\l..~.___ Uf! 1 of policy and practice is to have random drug tests. 2 His drug and alcohol history is really 3 pretty unremarkable, but because of why he is coming 4 in, it is also felt that it's necessary. 5 So in a way, I'm kind of staying on the side 6 of conservatism. It also could kind of help Cody in 7 terms of having to deal with school. 8 If there's any kind of peer pressure to use, 9 he could simply say, you know, he's being drug tested. 10 So that could really help him. 1 1 Weekly visits Q. 12 But I've also worked an awful lot with A. 13 addiction, and at this point in time I would not put 14 him into that category. And I do have some 15 16-year-olds that clearly are alcoholic or drug addicts 16 at that age. 17 Q. Right.' And then you said you would 18 recommend weekly visits. Does he have continued 19 appointments scheduled with you? 20 A. I see him actually this evening, and at that 21 point we would be scheduling future appointments. 22 Q. Okay. But he's not on a regular weekly 23 thing that you're going to see him for, like, 12 visits 24 or whatever? 25 A. No. What I will do is I will start seeing Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com o ~~ ~I - ..... 'iT' ,-,c'~"__,'____"-''''''''M''--'''\\_~ bll 1 him weekly. As the therapy progresses and as it seems 2 that he is doing better, he may go to every other week 3 at some point in time. But it would be weekly or every 4 other week. 5. Q. And has the family therapy started? 6 A. No. I have only seen them the one time. 7 They're p'robably hearing this for the first time. 8 Q. Okay. 9 We haven't had a chance to talk about that A. 10 because I was trying to gather as much information as 11 possible. 12 MS. HARTMAN: Okay. I have no more 13 questions. Thank you very much. 14 THE WITNESS: You're welcome. 15 MR. SPARE: Any other board members have 16 questions for this witness? 17 MR. WINTERS: Yes. Bob Winters, board 18 member. 19 THE WITNESS: Hi, Bob. 20 BY MR. WINTERS: 21 Q. You mentioned that Cody has poor 22 self-esteem? 23 A. Yes. 24 Q. And also has low peer acceptance concerns? 25 A. They are some of the things that I saw in my Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com f' =< 1~-~ . , "fllIll." JI[I--' _. 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 :1 22 23 24 25 "_.-"'~""Y""";"""''''''-''''~ ','i'.""'" 62 initial evaluation. Q. But aren't these two concerns common to most teenagers at this particular age? A. Sure. Q. At one time or another? A. Yes, they are. It depends on, you know, how the teenagers handle this. And sometimes teenagers need some assistance with that; sometimes they don't. It just really depends. Q. And you think that Cody's situations are that severe that he needs continued therapy with you? A. Yes, I would say that, because the behaviors that he exhibited are saying that he is going to an extreme. That, he realized, was foolish, but at the same time, he went there. So to begin to look at the underlying motivations that Compelled him to do that, I think, is important. Q. What behaviors did he exhibit to you in your initial diagnosis that would warrant continued therapy with you? A, You know, clearly he is distressed over, you know, this situation. And I'm trying to -- what exactly are you looking for? I'm sorry. Q. I'm looking on what basis you made your Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ", ,_ ~'". 'I:"'" ,~. ~ ~~ " ,..,~ , " YlIi.....^...r...irrUllTwm - . "-"",,,"---""~',.-""'''--,_.~ 63 1 diagnosis that he has these problems based on his 2 selling drugs. 3 The one thing has to do with when a couple A. 4 times through the evaluation he had talked about 5 wanting to be seen by his friends in a better light, so 6 this is part of what I was looking at, and feeling 7 distressed that he had caused these kinds of problems. 8 I think that for him -- 9 Well, wouldn't the same problem -- Q. 10 I'm sorry. Go ahead. A, 11 Wouldn't the same condition show up if he Q. 12 ran a stop sign and hit a car and hurt someone? 13 A. Sure. 14 Q. So it's not just the drug-related or 15 drug-selling issue that caused these concerns? 16 A. No, I think -- I don't think this is about 17 drugs at this point in time. I think it really has 18 more to do with self-esteem. 19 Q. So it's more -- rather than low self-esteem, 20 it's more of a guilt complex because of his actions? 21 A, Hello, are you still there? 22 Q. Yes. 23 A. I'm sorry. Someone was -- we have call 24 waiting, so if it clicks out here, then I'm just going 25 to let that go. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "K~ .--q ,,,,~,=- K,-'_ - ~, " ~ - ~ I' '"' m.> $4 1 Yes, I see this more as a self-esteem issue. 2 I was being clicked out, so if there is 3 something, please forgive me. 4 There also has -- you know, within the 5 family dynamic, there are things there that I thought 6 could be beneficial for us to look at and talk about. 7 Q. Now, these therapy sessions will continue 8 for how long? 9 Definitely for the school year. It will A. 10 depend on how things go if it will be longer than that. 11 12 Q. And all these are covered by insurance? A. Yes. As long as they have the insurance 13 that they have, it should be covered. 14 Q. And once the insurance ends, the therapy 15 sessions will end? 16 17 18 MR. SPARE: Mr. Glogowski, are you there? THE WITNESS: Yes. MR. SPARE: I didn't know if you were still 19 there, if you heard that question. 20 THE WITNESS: About if it's covered by 21 insurance? 22 BY MR. WINTERS: 23 Q. Once the insurance coverage ends, will the 24 therapy sessions end? ^-"'""""""-YW"-""'_h'p:1.J>;iU)), .~_~ 25 MR. WALTZ: Objection. He has no way of , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " .,.. ," ~ " .~ . , -,~ . IV ...j"..<lTlilii -. ,., " 10 11 12 16 18 19 20 21 65 1 knowing whether or not if the insurance ends, whether 2 or not the parents would out-of-pocket continue 3 maintenance. And that's calling for speculation on the 4 part of this witness. 5 MR. SPARE: That's sustained. 6 MR. WINTERS: I have no questions. 7 MR. SPARE: Any other questions from the 8 board members? 9 Do you have any redirect of this witness? MR. WALTZ: None. No. Thank you. MR. SPARE: We'll excuse this witness then. MR. WALTZ: Thank you, Mr. Glogowski. I'm 13 going to terminate this conversation, if that's okay 14 with you. 15 THE WITNESS: That's fine. 17 MR. WALTZ: You have a good day. THE WITNESS: Thank you very much. MR. WALTZ: You're welcome. Bye. THE WITNESS: Bye, MR. WALTZ: We have no more witnesses. MR. SPARE: All right. I think now it would 22 be appropriate for the administration to review the 23 past discipline record and any other factors it feels 24 may be helpful to the board in deciding this case. ";"";''''''"":''Y"'',"!N~i'''~~ 25 MR. GALLAGHER: While this is, I think, an Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,L I . . "~ '.-l~~" ~ ~~I nl ~""",'.~)>_,",,,,,*''\''''''~"'1_ bib 1 isolated incident with Cody, this has brought up the 2 discipline record. 3 I'll let you know just from last year, he 4 had ten referrals -- I'm sorry, 11 referrals where 5 eight of them were for -- r'll just read down through 6 the list. 7 On some of these, I may not be able to be 8 specific because I don't have the full written referral 9 here. 10 Like I said, I don't think a lot of these 11 have a lot of weight on the incident that occurred; I 12 can admit to that. 13 MR. SPARE: To maybe save us all some time, 14 if he had a perfectly clean discipline record, would 15 your recommendation be any different? 16 MR. GALLAGHER: No. 17 MR. SPARE: I'm not sure how relevant 18 then-- 19 MR. WALTZ: I think that's -- 20 MR. GALLAGHER: I can go through 21 MR. WALTZ: I'll accept that. 22 MR. GALLAGHER: Okay. 23 MR. SPARE: Because of the nature of the 24 infraction, I'm not sure their recommendation would be 25 any different if he did have a clean record. , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~- , '"?," "11 , , --. *':'I'0'-"_,..w,,,,=,,~, ~ \li IJ>/ 1 So, therefore, I don't think it's 2 necessary, unless you want to proceed. 3 MR. WALTZ: No. No. That's why I indicated 4 I accept your comment. 5 MR. SPARE: Does the board want to hear 6 anything about his past discipline record for purposes 7 of deciding how to handle this case? 8 MR. WINTERS: I would like to know what the 9 infractions were. 10 MR. SPARE: Okay. 11 MR. GALLAGHER: The first one last year was 12 vandalism. That one I do remember some of the facts. 13 It was dealing with another student's watch. iCody had 14 found it and destroyed it. For that, he received the 15 in-school suspension. 16 Inappropriate behavior, failure to follow 17 directions 18 MR. WINTERS: Excuse me. 19 MR. GALLAGHER: Yes. 20 MR. WINTERS: What is inappropriate 21 behavior? 22 MR. GALLAGHER: For this one, inappropriate 23 behavior would be more of one that might not be deemed 24 disruptive, but it's a pretty general statement where a 25 teacher would write him up for maybe do~ng something Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com I.......~" c, , ~" ~-~ ~"', I~ ~..n ,,-,,-- O<ll 1 inappropriate in class. 2 I can't tell you right now, Mr. Winters, 3 what exactly was that incident. 4 MR. WINTERS: Teacher disrespect? 5 MR. GALLAGHER: Yes. Well, if it was 6 something like that, the teacher might write it up more 7 as disrespectful behavior. 8 MR. MANCUSO: It's something, Mr. Winters, 9 that mayor may not have disrupted the learning 10 process. 11 Disruptive behavior is something that is 12 causing the teacher during his or her lesson to have to 13 stop and address the student right there.' 14 MR. WINTERS: So we have vandalism and 15 inappropriate behavior. What else? 16 MR. GALLAGHER: Okay. He had failure to 17 follow directions. That could be that's pretty 18 general, too, what's written here. 19 Failure to serve detention. Inappropriate 20 behavior again, failure to serve another detention, 21 disrespectful behavior, tardies to class, unexcused 22 tardies to school where he just received a warning for 23 that, failure to follow directions and a failure to 24 serve detention. 25 MR. WINTERS: Now, he failed to serve Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ^'>!fii!.-''1'!':'''"-''''''fo;'''''''__-~Nl ,,"'< 'I "~ .<~~ ITTli Ilw ~ ~... '-'-"""'-"<:~;,""-"!>'-"" ~"," 6'1l 1 detention on how many occasions, three? 2 MR. GALLAGHER: Three occasions. 3 MR. WINTERS: And what happened for that? 4 If he doesn't go to the first dete~tion, he just gets 5 another one? 6 MR. GALLAGHER: He gets -- it's doubled. 7 Say, if he gets two hours, it becomes four hours. If 8 he doesn't go to the four hours, it goes to the next 9 level. 10 MR. WINTERS: This happened on three 11 occasions? 12 MR. GALLAGHER: Yes. And at one point, he 13 was assigned to a Level 2, which are the Saturday 14 detentions. He did not serve the Saturday; then that 15 one became an in-school suspension. 16 MR. WINTERS: And what do you do if they 17 don't do those things? 18 MR. GALLAGHER: It will eventually become a 19 suspension. 20 MR. WINTERS: Now, were the parents made 21 aware that he had these detentions and did not serve 22 them? 23 MR. GALLAGHER: Yes. Everything that -- all 24 these would be sent home. On some of them, if he , 25 received a suspension, there would have ,been a phone Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ", ,"-,,-..,,.,,,,,... ,-"" r," -"~ ~ ',-, , ,'~-~ "~ ~" ~" , !~r *. "j ,,,,,,,.,,.,,,_,,--':il,,,p''''''Fr''-l 710 1 call also. 2 MR. MANCUSO: There are also phone calls on 3 Friday evenings that go to the parent/guardian at home 4 when there is a Saturday detention, reminding them that 5 their child does have to be there. 6 MRS. CORNMAN: Didn't get them. 7 MR. WINTERS: So am -- 8 MR. SPARE: Do you object to him asking Cody 9 a question right now? 10 Do you want to hear the question first? 11 MR. WALTZ: Well, I was hoping we'd stay 12 with this line of questioning. 13 MR. WINTERS: Well, the line of question 14 deals with the infractions. 15 MR. SPARE: It sounds like he's not 16 interested in having his client answer questions right 17 now. Let's let the administration finish~its 18 presentation. 19 If Cody wishes to respond to the discipline 20 record discussed by the administration, he may do so. 21 And then you may question him. 22 MR. ROSE: I have one question. 23 MS. KENYON: Jack, let him finish. 24 MR. ROSE: Oh, okay. This was on the 25 follow-up to what he had. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com '~, ~",-y T""""~F-,,",~ ~ 'i' ,- ^, ~.:-~~~ C" ~~~T "-,' "f"""~~'*,~,-~'",,"i"!'!""i) Ii!!~ '1 'Ill 1 MR. SPARE: If you have a question for them, 2 now would be the time to ask. 3 MR. ROSE: For them, that's who it's 4 directed to. 5 MR. SPARE: Go ahead. 6 MR. ROSE: My name is Howard Rose. 7 In one incident there, sir, you said 8 disrespectful behavior. Can you explain that? 9 MR. GALLAGHER: For this specific one, no, I 10 couldh't tell you exactly what it was, but there was a 11 one-hour detention. 12 MR. ROSE: The other ones? 13 MR. GALLAGHER: The inappropriate behavior 14 is one where it might not be disrespectful. 15 Disrespectful could be anywhere to where he wasn't 16 listening to a teacher. 17 But, like I said, I don't feel comfortable 18 saying what it was because I don't have that right in 19 front of me, what the specific one was. 20 MR. ROSE: All right. The only reason I 21 asked is because you had two different definitions 22 there of that particular thing, and that's why I wanted 23 to understand what you were talking about. 24 MS. WEST: Can I ask a question on , 25 chronology? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com [, )U.! Y" .. ,,' ~ -~c :..u. " ;.'<"'_'-"~l",--~ "~~ .' . ~' ~'~~, 7~ 1 MR. SPARE: Of the administration, a 2 question of the administration right now? 3 MS. WEST: Yes. 4 MR. SPARE: Yes. 5, MS. WEST: I'm sorry to have you go over 6 this again, but on or about September 6th is when this 7 infraction took place? 8 MR. GALLAGHER: We questioned him on the 9 12th. They didn't know that -- well, he didn't give me 10 an exact day. They thought it was the previous 11 Thursday, and that was September 6th. 12 But as we heard today from the testimony, it 13 occurred on three different days. 14 MS. WEST: And the date of the originally 15 scheduled board hearing was September 28th? 16 MR. MANCUSO: Is that correct? 17 DR. SANKER: Yes. 18 MS. WEST: Thank you. 19 MR. GALLAGHER: Like I originally stated, 20 the inGident from this year is isolated from these in 21 that our recommendation would be pretty much based on 22 only this incident. 23 His academic, just for your information, 24 would be he is currently a sophomore. However, he's 25 repeating the tenth grade. 'Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com I" ~~ ~~~~"~~ 1-- .I.. 7B 1 He has seven and a half credits towards 2 graduation. Out of two years while being in high 3 school, you have a potential of 16 credits. So he'd 4 have seven and a half earned so far. 5 Attendance record, there hasn't been a 6 problem with attendance. 7 MS. HARTMAN: Well, you said he was tardy 8 and he was 9 MR. GALLAGHER: Last year, he had 10 MR. MANCUSO: That was last year. 1 1 MS. HARTMAN: Oh, that was last year. 12 MR. GALLAGHER: Right. This year he hasn't 13 had any problem prior to this. 14 MR. WINTERS: Mr. Gallagher, on the 15 infractions you listed, you say there were 11? 16 MR. GALLAGHER: There are 11 total. 17 MR. WINTERS: And disregarding completing 18 serving the detentions, do you feel then that Cody 19 would not accept the consequences for his negative 20 actions? 21 MR. GALLAGHER: I'm going to have to ask you 22 to repeat that one more time. 23 MR. WINTERS: Do you feel by not serving the 24 detentions that Cody refused to accept th~ consequences 25 for his negative actions? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporter::;4u@aol.com '~~"""_"""w._ _~~_. . ," !",'r"'~r''''-T'' .~, "l~r- -~, , .,-?" , hiir ,-t,;,,,!,,~,,'n-"-""""'0'~.....,~~ '7~, , 1 MR. WALTZ: Objection. That's calling for 2 speculation. 3 MR. WINTERS: No. That is not calling for 4 speculation, Mr. Waltz. 5 MR. WALTZ: Objection, argumentative. 6 MR. WINTERS: Excuse me. Your client 7 refused to accept the detention because of his actions. 8 His professional opinion as a disciplinarian is 9 important to this board. 10 MR. WALTZ: I renew my objections, and I 11 renew an additional objection on being argumentative. 12 MR. SPARE: Do you have an opinion on that 13 question, Mr. Gallagher? 14 MR. GALLAGHER: Well, it looks like on two 15 separate occasions -- there were three failure to 16 serve, but they were really from two separate incidents 17 because one was failure to serve the after-school which 18 became Saturday which became in-school. 19 In my professional opinion, there are some 20 situations where students will not want to do 21 after-school detention and Saturday and will refuse so 22 that their consequence is during the school day which 23 would be the in-school suspension. 24 MR. WINTERS: Well, he refused 25 MR. GALLAGHER: In this particular one, I Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ,~~ I ~ ""-," . ~ ~ -, ~.~ ,~", ~~~ .~ ' . ';'i>~~~'(""P"""i~.!t'lI"f.\$'I!!J~ _~ Y5 1 couldn't tell you if -- with him not serving it, yes, I 2 would feel in those situatiOns he didn't want to serve 3 the original consequences. 4 MR. WINTERS: He refused the after-school 5 detention to do this? 6 MR. GALLAGHER: Yes. 7 MR. WINTERS: On two occasions. And then he 8 refused to serve a Saturday detention as a result of 9 not serving the after-school detentions? 1,0 MR. GALLAGHER: Yes. 1 1 MR. WINTERS: Thank you. 12 MR. SPARE: Would you like to complete your 13 recommendation at this time? 14 MR. GALLAGHER: Yes. 15 As outlined in Board Policy 227, in all 16 cases involving students and controlled substances, the 17 need to protect the school community from undue harm 18 and exposure to drugs shall be recognized. 19 Cody admitted to selling 60 to 65 pills. It 20 is our position that the distribution of such a large 21 number of pills posed harm to the school community. 22 Therefore, it is the recommendation of the 23 administration of Boiling Springs High School that Cody 24 be expelled from the South Middleton School District 25 for the remainder of the 2001-2002 school year. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " 'I""' " '~'I !" , " " ."... 16 MR. SPARE: Are there any restrictions you 2 recommend on his return to school next school year? 3 MR. GALLAGHER: If the board chooses to put 4 Cody into an alternative education program, then we do 5 have some conditions upon his return, some 6 recommendations. 7 One would be successful participation in the 8 alternative education program, a recommendation of 9 readmission by the administrators of the alternative 10 education program and Cody demonstrating a sincere 11 effort to accept and honor the appropriate standards of 12 behavior of South Middleton School District. 13 MR. SPARE: But that would be an alternative 14 to expulsion. Is that correct? Is that your 15 recommendation? 16 MR. GALLAGHER: An alternative to permanent 17 expulsion. Our recommendation is he be expelled for 18 the remainder of this school year, 2001-2002 school 19 year. 20 Any return, if the board chooses to place 21 him in an alternative setting, would be by our 22 recommendation on those three conditions. 23 MR. SPARE: All right. Does the board have 24 any questions of the administration on its 25 recommendation? ',,' Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol,com "'bT"S".-_,,,,,,,",,!,,,,,,_,~.l~,,,,_,, '_ ~ t""'"""~, "", , I , , - .--=~,- 1~ -,. ~..v.;..."~".=~ <!"{!'{'jlWM,4!,__ U, p. ~ J,_' ~ -'~''''''i 7~ 1 MS. HARTMAN: I need to have you explain 2 that a little. I'm sorry. 3 You're saying permanent expulsion. To me, 4 that means all the time, or do you mean just for this 5 year? 6 MR. GALLAGHER: Our recommendation is that 7 he's going to be expelled for this school year. 8 MS. HARTMAN: For the rest of this year? 9 MR. GALLAGHER: For the rest of the school 10 year. 11 MS. HARTMAN: And then where does he get his 12 education? 13 MR. GALLAGHER: Because he is of compulsory 14 age, there would have to be an alternative education 15 program. 16 MS. HARTMAN: So alternative education could 17 be he could live there or you just go by the day? I 18 mean, I'm not sure I understand. 19. MR. MANCUSO: We can go from normally five 20 hours of homebound instruction up to the recommendation 21 that we would provide Cody with a program in which we 22 would transport him there, receive his education there 23 and transport him back home. 24 His attendance would not take place at 25 Boiling Springs High School. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "" .,' " t' .~ " .,. ~ ~J ~~"" 718 1 MS. HARTMAN: Okay. Thank you. 2 MR. SPARE: Mr. Waltz, it's now your 3 opportunity to respond to the discipline record that 4 was discussed and make any recommendations of your own. 5 MR. WALTZ: Thank you. 6 I think -- and you can see the dangers of an 7 individual reciting the content of a disciplinary 8 record as was evidenced by, with no disrespect 9 intended, Mr. winters' request for speculation as to 10 the underlying basis of what might have been on Cody's 11 mind when he failed to serve detention. 12 We don't nor will we know, ever know, 13 whether or not the basis for that was grounded in a 14 family emergency, whether or not the basis for that was 15 some other event that was beyond Cody's control. 16 Only Cody knows that particular answer, and 17 r'm only pointing out the danger of asking another 18 person to speculate or opine what may have occurred in 19 Cody's mind during that refusal to serve detention. 20 MR. SPARE: Now is your opportunity to 21 present any witnesses in response to the evidence that 22 was presented. 23 Do you plan to call any witnesses during 24 this phase, or are you just going into a recommendation 25 or argument of your own? , Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com Y<"''''<'~'W'<;',~=__" -"!,"'''~-,',". ~I c . h. ,-"<' - 'r---'" .~w 1 '"" ) 2 3 4 5 6 7 8 9 1 0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,_";-,~-<"-i',",i?"'2'''<lf,"~ 719 MR. WALTZ: Wait a minute. I didn't know I had that opportunity. Yes, I would like to have Cody testify relative to the narrow issue, failure to serve detention, which would be responsive to Mr. Winters' request for speculation. MR. SPARE: That's your option. DIRECT EXAMINATION BY MR. WALTZ: Q. Cody, you heard the recommendation from the administration, and you also heard the questions of Mr. Winters regarding failure to serve detention. And my question to you is -- let's see. I think these were dated 11/28/00, so we're asking almost a year ago. 12/11/00, that's almost a year ago; 5/17/01, six months ago. Do you remember the reason that may have motivated you for not showing up to detention on any one or all of those? Do you remember? A. Yes. Most of them was basically either I had no ride home or I had to go to work that day. Q. You had arrangements that you had to work. Is that what you're saying? A. Yes. Q. To miss work, would there have been any Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com Ill, ,~",..'" ,~ -", 'F'''''''' l~~& ' - ;-"'M1!.;';,"~."'"~"'''~ , ~ tJo 1 consequences to you? 2 Yes. You lose your hours, and -- what else? A. 3 I don't work there anymore. But as far as I know, when 4 you lose your hours, you have to make your hours up 5 sometime. And I'd have to make those up on a different 6 day. 7 Is there any threat of losing your position Q. 8 as a result of not appearing? 9 A. Yes. Yes. 10 MR. WALTZ: No more questions. 11 MS. HARTMAN: Can I ask a question? 12 MR. SPARE: The only questions we're going 13 to be asking now of this witness is limited just to the 14 testimony he just gave. 15 So if you have a question, you can ask a 16 question of this witness, Cody, right now related to 17 what he just testified to. 18 BY MR. WINTERS: 19 Q. Cody, where did you work? 20 A. I worked at Karn's Foods. 21 Q. Pardon me? 22 A. Karn's Foods. 23 Q. And Karn's says if you don't show up at, 24 say, 3:00, you have to make the time up? 25 A. Well, I usually worked from 4:30 to 7:30, Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~ 1-', '.', . - ~ , '1 ,~~~ ~r1.".. ) , I , ) ~:-,--, ;'7;'!*-""-"'\"""-'''~)'''''__ _,~ 81 1 and But if you don't show up at 4:30 -- Yes, you either have to get sqmeone to come 4 in and work for you. If you can't, then you -- 2 Q. stayed later? NO, you don't stay later. You have to make You make hours up at another time, but you 9 still get compensated for the time? 3 A. Yes, but it also goes on as a solicitation What were the hours of suspension that you 13 had to do after school? 19 than 4:00? 20 A. 5 Q. Either an hour or two hours after. So school is over at, say, 2:30? Like, around 2:45. So 2:45, you could have made up an hour of 18 detention and walked to Karn's and been there no later 6 A. Yes, but I didn't have -- Pardon me? I didn't have my attire with me. And plus, 23 most~f the failure to serve detentions were two-hour 7 hours up. 8 Q. You didn't have -- 10 A. 11 warning. 12 Q. 14 A. 15 Q. 1 6 A. 17 Q. 21 Q. 22 A. 24 detentions. 25 Q. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com '-I "., ~~ r "....- := ''''\'i''"""".,t''''''''_\'''I'''''<I,j~,4;" I 83 1 If I was going to be late, they don't let A. 2 you clock in. ' If you're seven minutes late, you can't clock in. Q. You don't drive then? A. No. Q. SO how do you get home from work? A. They come to pick me up. Q. They come to pick you up. And you just live over here on Mountain Road? 3 4 5 6 7 8 9 10 A. Yes. 11 MR. WINTERS: Okay. 12 MR. SPARE: Mr. Waltz 13 MS. HARTMAN: I have a question on that same 14 thing. 15 MR. SPARE: All right. 16 BY MS. HARTMAN: 17 Q, Cody, you say you had suspensions or 18 after-school suspensions or something, after-school 19 detentions, and you were more concerned about your job 20 at Karn's than your school, your education. 21 So it did not occur to you to explain that 22 this is why I cannot go now or ask -- can you answer 23 that? 24 A. Well, sometimes I tried to explain to Mr. 25 Gallagher about stuff. But most of the ,times, like, we Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 1--' , . ~" .. - 1~~-"'~:1l' ,- ~ " ~" 00.' ".~~H!t!";;);>-t!'""",,,*~ 84 1 have -- our hours are scheduled different every week, 2 and I wouldn't realize my hours until the next day. 3 Like, if I had a detention the next day and 4 I had to work that day, I wouldn't know until the 5 following week when they listed the hours that you had. 6 Q. But you still knew you had detention? 7 A. Yes. 8 Q. So you never told anybody at the school that 9 you couldn't do this because you had a job and you had 10 no access to a telephone to call and say to Karn's, I 11 have after-school detention; I can't do this? 12 A. Well, I could have called, but that's a risk 13 to losing my job or getting a solicitation warning, not 14 showing up for work. 15 Q. But that was the consequences. You did not 16 think I won't do something so that I have detention and 17 I wouldn't get in this mess, correct or wrong? 18 A, The reason that I wouldn't go to detentions 19 was, like, I also imagined that I could make up the 20 detentions. But the work, you get a solicitation, you 21 can't -- you know, that's always there; you can't get 22 rid of that. But the detentions you can always make 23 up. 24 Q. But did it occur to you to tell somebody I 25 cannot make this because I have a job? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~~,-, ".. --w-- --~ l~"~ "I~ - ..;m.......~.~.W...-...................".. 85 1 It occurred to me. I attempted some of the A. 2 times, but some of the times I didn't really: 3 Q. So this was more like a cavalier attitude 4 thinking, I won't -- 5 MR. WALTZ: Do you know what cavalier means? 6 THE WITNESS: No. 7 MR. WALTZ: He doesn't know what cavalier 8 means. 9 BY MS. HARTMAN: 10 Okay. In other words, you just Q. 1 1 really oh, it's right off my shoulders; I don't , 12 really care? 13 A. No. I cared about it, but I was more 14 focused with my work, job, than going to detention. 15 But you weren't focused enough to call and Q. 16 tell them that you had another commitment? 21 22 It occurred to me, but -- I don't know how 23 to explain this. It occurred, but it was more -- like, 24 a detention, like, I can go, I can get detention and " 25 then get another one and just go serve those hours, Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com 1'!!'!Il, , '~,,' R_ ~ '''' ~"'""". '. .C.JrClIl ~- .~' H ' --'--'"-~..,--"-- j''#W'WW1"",,~_.~~_~ 24 25 .. 86 1 It occurred to me that I could have called 2 someone, yes, if that's what you're trying to mean. 3 But what I'm trying to say is that I was 4 more scheduled on trying to go to work and get that so 5 I wouldn't be fired from my job than have to worry 6 about going to another hour of detention. 7 MR. SPARE: I believe Director Kenyon has a 8 question. 9 BY MS. KENYON: 10 Q. Just for clarification, when you're assigned 11 detention, do you have to serve that immediately that 12 day or the next day? 13 A. Sometimes they're scheduled for the next 14 day, but most of the time it's scheduled the next week 15 or the following week. 16 Q. The following week? 17 A. Yes. 18 Q. Has it been your experience that if you had 19 a conflict if it was given to you quickly, like the 20 next day, and you had a conflict that you explained, that they would reschedule it based on -- A. Yes. Q. a reasonable request like having to go to work the next day? 21 22 23 A. Yes, they would reschedule it. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com I"~- ~"~ "",1-.....- ~ e,', . . "C 'ee'1'>:~'-':F~"=~ _ _ ~ (17 1 That they would reschedule that for you? Q. 2 A. Yes. 3 MS. KENYON: Thank you. 4 MS. WEST: I have a couple questions. 5 MS. WEST: It has been my experience that 6 the procedure and I do know this firsthand, that the 7 procedure for an after-school detention involves a 8 written copy of the detention slip that is originally 9 sent home with the student but just in case mailed to 10 the parents. 11 And because of the lead time on that 12 mailing, detentions are not scheduled, like, the next 13 day. It's, like, the week -- 14 MR. MANCUSO: Four days. 15 MS. WEST: Four days. It's a week from the 16 date of the transaction. 17 MR. GALLAGHER: We put one detention 18 between. We have Tuesday/Thursday. If you get it on 19 Monday, it could be assigned for Thursday. You know, 20 we put it so there's enough mailing time. 21 MS. WEST: Okay. 22 BY MS. WEST: 23 Q. Given that background, was there no way that 24 you could rearrange your work schedule at Karn's to 25 serve a detention that you knew was coming? Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "I , ' --" ' 'I ~ _w.... , ~"i"".,,,"'~_h=~"~~4," ~,' << 88 1 I mean, you certainly had several days' 2 notice because of the way these detentions are 3 scheduled. 4 Yes. A. 5 They're not scheduled the next day. Q. 6 Yes. I know they're not scheduled the next A. 7 day, but the way the thing works, see, on Sunday 8 like, say I got detention the following week and then 9 it was scheduled for a Tuesday. 10 On Sunday of the next week, that's when I 11 get -- I can see that I have new hours. You get whole 12 new hours. So you get different days and different 13 hours. 14 And if I would see there that I would have 15 to work on Tuesday and I had detention on Tuesday, then 16 I would have -- 17 But if you had detention on Tuesday, you Q. 18 would have known that you were going to serve detention 19 on Tuesday before the schedule came out on Sunday. 20 So presumably you could have talked to Skip 21 or whomever at Karn's and had your work schedule 22 adjusted to accommodate that detention, correct? 23 A, Yes. 24 Q. But you, for whatever reason -- 25 A. But I chose to go to the job: Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ----" ":"'-'\P_", i___n ,~" " , ~" ,.~~~""" ...;.:...~....;>....>~~..<.w=!...~~~~~ I 89 1 Q. -- chose not to do that? A. I chose to go to my job. MS. WEST: Thank you. MR. SPARE: Mr. Waltz, it's now your 2 3 4 5 opportunity to make a 6 MR. WALTZ: Can I have a redirect? 7 MR. SPARE: Certainly. 8 I question the need to get into this detail 9 much further today, and I will restrict other questions 10 on this topic because I think it's a minor issue in a 11 rather clear case. 12 REDIRECT EXAMINATION 13 BY MR. WALTZ: 14 Q. They were inquiring about your mental 15 processes. My question is, when you reviewed 16 detention/job, were your mental processes thinking loss 17 of job is greater than missing detention? 18 A. Yes. 19 MR. WALTZ: No other questions. 20 MR. SPARE: It's your opportunity to make 21 recommendations of your own. It could be in the nature 22 of a closing statement. 23 MR. WALTZ: Thank you. 24 I would ask respectfully that the board 25 consider several factors as they relate'to Cody. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~_,."W_...,"!" ~ -~, ""'" ~,~ "~.. ~,---- r1.f."I"" "" i ,,) , ',*)l_<I:""'te,Jrf'i',~,__,~,___,^ 90 1 Number one, there is no prior history 2 deduced at this hearing regarding involvement with 3 prescription drugs or any other for that matter. 4 There was no evidence that would indicate 5 otherwise that Cody did not profit from this 6 transaction. 7 And when you think about it, Cody was right 8 on target when he classified his action as quite 9 stupid. 10 He takes all the risk, makes all the 11 contact, does all the work, turns all the money over to 12 the individual that provided him with these substances. 13 That's pretty silly when you think about that. 14 It's even sillier were you to believe that 15 Cody actually knew and understood the contents of the 16 policy on drugs that is contained within this book. I 17 think it's even sillier if he truly understands what 18 those consequences are. 19 Cody is not a user; I ask that you look and 20 realize that. I believe Cody was consistent with both 21 the psychotherapist and himself and you when he stated 22 that he is apologetic, that he is remorseful, keeping 23 in mind he's a 16-year-old. 24 I was watching with a lot of the board 25 members' examination of Cody. And although your Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com '-,' " '1-" -""-' , ~ . In :.~"~ <H*,M!,';<'*,..P-"~. . " 9~ 1 examination was well thought out and it was good, the 2 only problem I saw in it was it was the way an adult 3 thinks. 4 I mean, I was a teacher for 14 years, so I'm 5 familiar with a lot of these problems that you're 6 talking about. 7 But you also in questioning -- I understand 8 the mental adult process of examining Cody to get at 9 the truth, but I ask that you also consider that he is 10 a 16-year-old. 1 1 And I'm not using his age as an excuse, but 12 I'm using his age to illustrate the minor point that 13 Mr. Spare pointed out regarding detention/the job. 14 I think that illustrates the adult way of 15 thinking versus the instant gratification mode of a 16 16-year-old who has probably his first job. 17 It's apparent that Cody sold something. 18 It's not apparent exactly what that was. 19 It's readily apparent where -- I have to 20 take exception to innuendo or an implication. I was 21 accurate when I said Cody voluntarily saw the 22 psychotherapist. 23 I certainly could suggest to his parents, 24 you might check out counseling, but they don't have to 25 " choose to go there. They don't have to'choose to Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com "i'" . ,< ~ o_~~ 1'"""- ..j~_.....".-.....~....~-........."-- .....i'" 1 select a certain person. I made that recommendation, 2 yes, but they had to voluntarily act on that. 3 And it was an accurate representation when I 4 said that the family and Cody sought out a professional 5 and they did that on their own. 6 That they may not have thought of it and the 7 thought was placed in their head does not eradicate the 8 voluntary nature of their act. 9 I believe the parents -- I mean, Cody is not 10 separate from his parents. His parents are also 11 involved here, and it's apparent that the parents are 12 desirous of taking an active role. 13 They wouldn't be here if they didn't have a 14 concern for Cody. They wouldn't have sought out the 15 psychotherapist's services. They wouldn't have 16 selected him, and it was their choice to choose this 17 particular psychotherapist. 18 I believe the psychotherapist, although a 19 lot of you were examining his credentials, his 20-some 20 years of experience in adolescent behavior speaks more 21 highly than an individual who was licensed ten years 22 ago and doesn't deal in adolescent behavior. 23 For those of you that place a prime 24 importance on the licensing versus nonlicensing 25 distinction, let me also point out in the Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com I "-"\--"'. ~ ~ ~'"l'"~ ;..I.-I 1 psychotherapist's testimony that his diagnosis, his 2 treatment, prognosis, his plan was all discussed with a 3 licensed psychologist. 4 And he testified that that licensed 5 psychologist approved of the methodology, approved of 6 the results that were testified to today. 7 I'm only simply trying to dispel any 8 concerns you might have about the credentials of the 9 individual psychotherapist. 10 We got hung up a little bit on whether or 11 not the psychotherapist was involved with Cody's 12 emotions and psychological behavior as a result of this 13 event versus his self-esteem. 14 Sure, as the psychotherapist pointed out, 15 there may be and are a lot of teenagers his age that 16 have self-esteem issues. 17 However, they may be handling them a whole 18 lot better which is why you're not running into it in a 19 lot of these meetings, thank goodness. They're 20 handling them a whole lot better than what Cody is. 21 I believe the psychotherapist has hit upon 22 an issue. He was the individual that was able to, with 23 one, with the first session, scheduled another session 24 and wants to have repeat sessions regardless of whether 25 you folks agree with that or order that: Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com " "~~f-;<:.~,"'''''''t'= ,'"- " ~ ',' "'T d'_'_, ,_, ~~ ~-~."=~" =~!l<.~, ~,~ . . 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ""'*''-'''1",",',,,~,;,,,,,,,'W' :::Il;J; He recognized that there is a problem that preexisted the events that took place in September. In addition, we didn't really have any testimony that Cody is a bad kid today. Cody did get caught up in an event that was bad. In no way am I minimizing that. But it appears to be both the psychotherapist's and my request and my opinion, take into consideration those factors. He didn't profit, not a user. He is remorseful. He understands now what the consequences of his act happen to be. And I ask that you allow these items to serve as a form of mitigation. Yes, he deserves some punishment. But, then again, he has already suffered a good bit of punishment. Isn't he going to be suffering ongoing punishment walking the halls of the school where all of his peers are going to know what has taken place? I think that's by far, from my own experience, a worse punishment than any punishment you could elicit that would bar him from the school. In fact, barring him from the school seems to run counter. I always thought that was funny when they would suspend a kid for cutting class. Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com , , -I"""'" ., , -" ,'1' ~ , .~. ~~. ~ ~l ,,,n '"-~ . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -""~"'''''1'j,~-r~1!i,~~" ~~"" ....1..... I always thought that was sort of silly; you gave the kid everything he wanted. Now he doesn't have to be in school. You sanctioned; you said it was okay to miss school for three days, five days, ten days. Well, it seems to me that that might be counterproductive to the message you want to send both Cody, the administration and the students. I think you also realize that there are degrees, there are certain degrees of violations. And it would appear to me that although this is a bad thing for a student to do, a stupid, bad thing that a student would do, it does not rate the same type of treatment that a student who profits, uses, deals commonly in this type of thing. I ask that you listen to what the psychotherapist recommended, ongoing weekly treatment or biweekly, counseling to involve parents, random drug testing. I'm asking that you not dispel the sense of hope that may exist with Cody today. I'm asking that you promote education and your community by adopting the psychotherapist's recommendations. I would also ask that you reinstate Cody with a leash that any misstep would allow you to possibly revisit this situation and possibly -- in Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ~ -, ., . ,',' ''''"r-- ,- -~ ;;..-- , . ;i'~'1Y"l~o/l:il!!!1l'~,,,,,, 1)!r!i!H_.,~_, 1 other words, I'm asking that he be given a second 2 chance and that you not keep him from school for the 3 remainder of the school year. 4 I do thank you for your attention. I thank 5 you for your questions. I did not try to tramp on 6 anybody's toes when I objected, and I apologize if I 7 gave you that impression. 8 But I do ask that you look at the facts, do 9 they really, really warrant expulsion for the remainder 10 of the year? 11 Thank you very much. 12 MR. SPARE: Thank you. 13 I have one housekeeping matter for evidence 14 purposes. You had given me a letter from Mr. Glogowski 15 and his curriculum vitae. Do you want that admitted as 16 an exhibit? 17 MR. WALTZ: Would you please? 18 MR. SPARE: We'll mark it as three pages 19 then, as Student Exhibit 1. 20 MR. WALTZ: That would be fantastic. Thanks 21 a lot. 22 (Student Exhibif No. 1 was marked for identification. ) 23 24 MR. SPARE: All right. I'll note for the 25 record that that letter is dated, but it does begin Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com ='""'1 , "=1'T'~_O~__01 1Ir- '-'.~ . , ." I. 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 1 7 18 19 20 21 22 23 24 25 "0ft~~~~ c, ,., "...,r< 97 with the second sentence in saying that he met with Mr. Cornman on October 12 of this year. And I suspect that is 2001. MR. WALTZ: That is correct. MR. SPARE: Thank you. This will conclude today's hearing. There will be a deliberation by this committee. We will then prepare an adjudication, a recommended adjudication for consideration by the entire board. The board will consider that and vote on it in public at its November 5th meeting, which is the next public meeting of this board. The actual vote, although it will be in public, will not mention Cody by name. It will simply be Case Number 2 of 2001-2002, and copies of that adjudication will be mailed to the student and his parents. MR. WALTZ: Time and place of that? I know you said the 5th. MR. SPARE: The place is right here in this room, and it is at 7 p.m. MR. WALTZ: Thank you very much. MR. SPARE: Thank you. We'll close the hearing at this time. (Whereupon, the hearing adjourned at 9:41 a.m. ) I Central Pennsylvania Court Reporting Services (717)258-3657 or (800)863-3657 or courtreporters4u@aol.com I"~ ~~~~"". - - t:: ;"::rnC , ' Turo Law Offices RON TURO, Esquire ROBERT J. MULDER~G, Esquire GALEN Ft WALTZ, Esquire JAMES M. ROBINSON, Esquire CAROL L. CINGRANELLI, Esquire GERARD J. FOULKE, Esquire DEe 2 1 20~ www.TuroLaw.com 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 December 21,2001 The Honorable Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Cornman v. South Middleton School District Docket No. 01-6841 Dear Judge Guido: In conformity with your December 17, 2001 request, please allow this to serve as Cody Cornman's offer of proof as to what witnesses may have testified to on his behalf in the form of both aggravation testimony as well as mitigation testimony; we also responded regarding the query with respect to your authority to reinstate Cody Cornman as a student at South Middleton School District. Prior to elaborating upon what it is believed witnesses would testify to, it is imperative to restate that our position was not limited to calling eight witnesses on Cody's behalf for direct examination, but it also included our demand to be able to confront the witnesses that had been accusing Cody of these activities (see specifically September 28, 2001 letter, Exhibit 5). At no time have we waived our right to confronUcross-examine the District's six witnesses (see Exhibit 3, Exhibit 4, Exhibit 5, and Exhibit 6). ;'~\l~_ - - -" JI ,;,,_ 'S.'"" 3!J,,,-"{<\^'f_'o/'.;r "~: :Y1'..'9;- T';}-<::>'f(!'ifV~1"'''+_''_''', _",_~.<l"'___ ~1_"'''''''~''''''' .."')_ " ~."._ -""0'""_>,,",,_,, . _.,..._, =_;__ _, ,,-~ _ _ , _'__'o','C''__ ~,"_".,.,q,_'f'<"~k, P':"'_~' "-'-'-I . :,,:- t '; The Honorable Edward E. Guido December 21, 2001 Page 2 Dr. Patricia Sanker faxed on October 15, 2001 a list providing names of witnesses against the Cody. That letter created an expectancy that those witnesses would be present at the October 18, 2001 hearing and, therefore, available for cross- examination. It is evident that I relied upon Dr. Sanker's advisement that the six witnesses previously requested to be present at the hearing in Cody's September 28, 2001 communication to Mr. Spare (Exhibit 5) would be present at the hearing. "I was expecting other witnesses. Are these the only two witnesses the District is planning to present today?" (N.T. at page 11, line 17-19). Dr. Sanker's October 15, 2001 cover letter advised of the School District's witnesses "against the student." Dr. Sanker's October 15, 2001 cover letter does not indicate that any other witnesses would testify; specifically, it does not indicate that the only witnesses being called by South Middleton School District are John P. Gallagher, Assistant High School Principal and John W. Mancusco, High School Principal. The importance of the presence or absence of the six witnesses "against the student" serves as the foundation of Cody's complaint about due process violations. Because the School District failed to produce the "witnesses against the student," as requested by Cody, Cody was deprived of the ability to challenge whether K. S. actually had a controlled substance within the container purported to contain Adderal. The presence of G. S. was important in order to determine whether the only pill the District discovered in existence four days after the last time Cody may have been in contact with it had a proper chain of custody and was not in any way tampered with or substituted with another substance. As for the remaining four District witnesses, questions involving identification of a substance, chain of custody, substitution of the alleged substance, actual knowledge of the substance, and all six individuals' awareness as to contacts Cody had with his eight witnesses would be elicited. ;:'~ff"'h""~': 0-). - ,,' <,;~~"'~~__cr_~ ~~_\""'J'-_<c 0"")\>"";" _-_,?:>:,__,;."_",_~_","7i'"'fry:".h,<-,,," ,.,;;". _~,~____, ,,,,__,,,,,,,,,~,_,,_ J' --_"""_~,, ,,-,___ ,.', ,- ,c.,..., ~_ ,'_',,_' "' _'_'"~^ _,~'""''', ,"" ,," ,," ,.'_ ,,'_ __'_,. ~ _,", _~o ,_ ~ u _ _" . ,._ ~_m , l The Honorable Edward E. Guido December 21,2001 Page 3 The District witnesses could provide fact testimony regarding Cody's allegation that he was selectively prosecuted considering some of the eight witnesses in support of Cody were football players playing at the height of football season, as well as other School District athletes. (See N.T. page 18, lines 19-22.) In addition, answers relating to the witness's character, integrity and relationship to the student body would be sought. There are other mitigating areas involving Cody's character and integrity and reputation which could be requested of not only the six individuals that were named as District witnesses, but also the eight individuals that Cody sought to produce. The eight individuals that the Cody desired to call serves several purposes: They would produce corroborative information regarding facts in question testified to by Cody, they would be able to testify towards Cody's character, reputation as well as the issue raised by Cody at page 18 of Notes of Testimony with specific regard the District's possible selective prosecution in this matter in that it appears that the football players and athletes did not receive the same scrutiny under investigation as did Cody and non- athletes. Authority For Reinstatement The Court clearly has the authority to reinstate Cody as a student in South Middleton School District. Since Cody has raised constitutional concerns that his due process rights have been violated prior to and at the outset and during the hearing, it would be both unfair and unjust to provide the School District with a "second bite" of the proverbial apple in order for it to perfect a prosecution in this matter. -(._",,,U :", ,", -'f;TrJ:,-,_,~l'!N.<;'~1'-." ,__';'R"_"~,"_"0,,~,,O"",<~,,',.':~).-:,,I,p'~~_h ,,)c;.''''~'''-. :<_'--',}":'_, ,."",'i,:\!",_"__"~)_"',:-,~, _? ,:N(f__~-C;'_" /_':'''',''''_'''~ ",';',"__.-_q,,, '"_<'- _ .' ~"y.,.,,'__ ~_"",", ,~ " ___ .,_ ,~,~~__w, ,;,_".,~ __ 1~Y.---' _w ,-..'--'-' >''''~~:'.>1r'~- _"1'~'" P. , , The Honorable Edward E. Guido December 21, 2001 Page 4 In general, the courts have denoted in Expulsion matters that a student's good name, reputation and perhaps career are at stake. Thus, irreparable harm can occur as result of Expulsion. Oravitz vs. West Allegheny School District, 74 D & C, 2nd 733, (1075) involved a 17 year old high school student investigated due to allegations by another student relating to the sale of so-called "speed" pills during which time a search conducted of the student's locker produced two cigarettes alleged by school administrators to be marijuana. The cigarettes were never tested. The unidentified pills were not found on the student's person or purse and the student alleges the pills were purchased on behalf of another student. Specific content of these pills was never clearly established by the District. At the hearing, the Vice Principal related his findings. the minor student was asked various questions by Board members relating to her involvement with pill sales and use of marijuana in school. Other students who had involvement with the student in the incident were not present and did not testify. , ~~~.: ~-. _- _e_.,~: ;.':>-",.""-'1\:",,, -W_<'."~=;"Y3t!!. .,"~-_".r,_"'e'"",,,';',~_ _,I~? '8-' eo_/-, ,,-, >.._\", "" "q~c""\',,\,._,, _>'~'1;R 'H_~,~ _,~' ,_." "." ~.. ~_,," .' ,,"-M__. ,,"'-,,_"1_.""'~c._~_'i'...""'~ "._ ~". "; _~ , ,~. """,r" ','_. ,,,.. ,---- ~,. , The Honorable Edward E. Guido December 21, 2001 Page 5 The court found that the District failed to follow the mandated procedures of Chapter 12 of the Administrative Code titled Student's Rights and Responsibilities and the dismissal of the student violated these provisions as well as the due process requirements of Federal and State constitutions. In the instant case Cody, as in Oravitz has suffered irreparable harm by his three-month absence from school and that there is no adequate remedy at law. c., Cody has a legitimate property interest which is protected by the due process clause which may not be taken away for misconduct without adherence to the minimum procedures required by that clause. Oravitz. , " The Oravitz court recognized as did courts as early as 1887 that the student is entitled "to know what testimony had been given against him and by whom it had been delivered and that the proof be made openly and in his presence, with a full opportunity to question the witnesses and to call others to explain or contradict their testimony." Oravitz at page 742. Cody's good name, reputation and future career may be at stake. One of the basic and fundamental reasons for a formal hearing and the procedure of cross-examination and the presentation of witnesses is to arrive at the truth. ID at 743. : '::~hO',,::',-, . ,,' "':::-"'c-~f"\"~"'~';;'o"j:"t;':"''''""3''':"'''-1",,~._,.....__?_~f'''.,y,,';T_:~'~-I~-f< .', P_'__:_'~' _ '~<'';''~''~_-'.-^';;'-''f-f' _<,~ --'-"~C '" .,_":"~'" ,~" '. -, "" ,,",,,,' _ ""---c~_,-_..,,.__ ""''- ~",__o_,~' "_'0___~" _e~___ _'-"'~_h_' ,,,,,,,,,~~_ _,,_ '- _' .., '''', ~ _ ''''' . The Honorable Edward E. Guido December 21, 2001 Page 6 The Oravitz court ordered a remand to the District to hold a proper formal hearing in compliance with regulations of the State Board of Education. The student was reinstated as of the date of the court's order. The official record was expunged of any record of suspension or expulsion. Support for reinstatement based upon due process violations are also found at G, S. West Shore School District, 28 D & C, 4th, page 465 (1993) where Judge Hess noted where a person's reputation, honor or integrity is at stake, due process must be afforded and the court has a duty to intervene, Therefore, we ask in conformity with case law that the South Middleton School District's adjudication against Cody be vacated, that the official records of suspension/expulsion be expunged. If however, this Court deems a hearing is required, Cody requests that the Court hold any future hearings necessary to adjudicate the matter without a remand to the District. Sincerely Yours, GWaltz@TuroLaw.com GRW/jge cc: Philip Spare ;T:r'"~'-J . C ''c. ;",;'\c-!' ~~?-~"_""5:c1i::;R!""~ _"O_""~_.~__~7_' ,-,,,''-.<ry;'d.-<::,,q M _ ~''';',.._", ,_.'5"".:';. "_'"_~_ ~-" -'-'~'- "','~ "C__.,> ." ~",~. "",e. 'C_ <". __~___ _ -~~'~'_. --"'--'~,--'--"- ^ ~~-- " .~~--= "cT-1S-01 lO:Z4 FR~$OUTH "IDD"ETON SCHOO" DI$TRICT TIT2S61Z14 T-254 P.OI/O. F-gTS ""' , o s.:rJ.UQI. Bolling Springs, PA 17007 U 4 Forge Road Telephone 717-258"6484 FacslmUe 717-258-1214 FACSJMILB (717) 258-1214 'IELECO"PmR .("OVER T .1=.'l"TFR TO; Galen R. Waltz, Esquire Turo Law Offices FAX NO; (717) 245-2165 FROM: Patricia B. Sanker, Ed.D. SuperlnteDdem (717) 240-261S(Phone) (717) 258-1214 (FJIX) DATE: October 15, 2001 # OF PAGES: Cover +2 R.E: Cody Cornman COMMENTS: As stipulated in 22 Pa Code 12.8 - Hearlngs, I am providing the following: 1. Names of witnesses ftl:aiDst the student. Jeremy Lentvorsky Dan Meals Gre~ Scullin Jesse Stone Blake Woodward Kyle Smith 2. COple; or statements and affidavits of those wltuesses. PleailC note tbllt only Kyle Smith has wbmitted a written statement. ^ copy of that statement is Included with this fax. Tile discipline hearing is scheduled for Thursday, October 18,2001 at 7;30 Un. in the District Board Room located In the Iron FCll"ge EduelltiOD2l Cctller. :Dircotions to the Board Rooll1 are included with this fax. c: Pl1lIip Spare. Esquire ;'~1':':~"-:::~~,;":~::;f!~~~ . L~~~ ji.i;;<~~;li'i~:t;~";i;'~~ ,.,,;. :>;,!i,~~H~r.o",~,~;;';;~,~~ i(!~r}~?~'~~\',r;)\lir;i~t'liJf(i~/' .;:,t mmonwealth v. Browne 74D. &C, 2d 733 (1975) Oravetz v. West Allegheny Sch. Dist. 733 Wherefore, April I, 1976, defendant's motion to dismiss bill of indictment no. 1003 ofJ anuary term, 1976 is denied. that the inal statute must be . en their ing, nor does it req, 'that the ent intent must be . egarded. ede that the legislate could cer- more precise langu in defining ; statute makes c . aI, we feel onstitutionaIly obli ted to do so. statute is susceptib of a reasona- and we refuse to old it uncon- legislature is here ndemning in le mutilation seal abuse, and . dead bodies' tha ! e courts did ld this conductnishable as a sdemeanor. The1vident legisla- inotbeignoredo . 'sregarded. We U1 of ordinary . . " lligence in this ;hat ordinary f .. y sensibilities isposition of de bodies and that :leed not have' umerated these ny detail. In a ent case dealing tion against e ssive vagueness, urt observed: I . . 'rocess Clausellequires is that the nt warning th 'men may conform , as to avoid " t which is forbid- .ocke, 423 U.' '. 48, 96 S. Ct. 243, ') (1975). :he legislatur r e further beli vill certainly 'irst Amend etta, Coates ) the danger Oravetz v . West Allegheny School District as provided suffi- e that enforcement ot result in the in- nt rights that was d Papachristou, nor , bitrary and erratic Schools-Suspension of Pupil-Jurisdiction of equi- ty-Absence of regulation defining offense-Failure to ad- vise of right to counsel-Absence of notice of alleged viola- tion of regulations. . 1. The right of a pupil to a public education is a property right, protected by the due process clauses of the United States and Pennsylvania Constitutions, and may not be taken away for misconduct without adherence to the minimum procedures constituting due process ofIaw. 2. The hearing to which a pupil is entitled before being suspended for alleged misconduct is more than a round table discussion on social problems by concemed citizens, but must utilize techniques that have been developed over the centuries to arrive at the truth or falsity of allegations. 3. A pupil suspended for alleged misconduct is denied due process ofIaw where the school district has never taken action specifically to define offenses which would lead to suspension, the, pupil was not represented by counsel ~d,1n fact, had been advised by the vice-principal that it was doubtful that counsel would be required, the pupil was not notified In writing of the charges, no witnesses were present other tIum the pupil and a vice-principal testifying entirely from hearsay, no record was made and there were no fonnal findings. '-^'?~-:>~"'''''W'.''~I>:_fIlj1~''',-'ilJ:i., T ~-; I<''-''~''~~- <~C~_ c_~~ ~~~~ ~"""=~'T'''''''''' 734 Oravetz v. West Allegheny Sch. Disl. 74 D. & C. 2d 73' (l9nlo) Oravet,: v. West AUeghe Adjudication in equity. C. P. of Allegheny County, No. GD 75-10540. Frank]. Kernan, for plaintiffs. John Regis Valaw, for defendants. for the School Board of W Dis 'ct and, following said min plaintiff was excluded j 2, Ii , but permitted to tak, vario courses during the ] Notic of exclusion was by IE or sp Hie reasons for SUSj Exhib. 6.) 4. or plaintiff was inve~ tions 0 other student (uni the sa! f so-called "speed" j tiff was ed to the vice-pri vestigat S.. Du and min plaintiff' found. 6. The alleged by marijuana 7. The u scribed as . . ra'.s person that said p student. Spe clearly estab 8. Atno ti suspension di specifically d suspension or 9. At the he school board w g said investigati plaintiff agreed to purse, in which 4. While section 1318 of the Public School Code of March 10, 1949, P.L. 30, as amended by the Act of January 14,1970, P .L. 468, relating to suspension and expulsion of pupils, does not include provision for judicial review, article V. sec. 9, of the Pennsylvania Constitution provides a right of appeal from an administrative agency to a court of record, and while ordinarily it is preferable that such appeal be taken 'under the provisions of the Local Agency Law, where it is established that im- mediate deprivation of educational rights will cause the pupil irreparable hann, presenting a need for prompt and immediate relief, equity will take jurisdiction of an action to restrain the suspension or expulsion. FINKELHOR, J., May 23, 1975-Plaintiffs An- drew W. Oravetz, Doris L. Oravetz, and Debora Ann Oravetz have requested equitable relief' to reinstate minor plaintiff Debora Oravetz into the West Allegheny School District and to enjoin the school district from excluding minor plaintiff. The findings offact2 are as follows: 1. Plaintiffs Andrew M. Oravetz and Doris L. Oravetz are the parents and natura! guardians of Debora Ann Oravetz, a minor 17 years of age and a student at West Allegheny Senior High School. 2. OnMay2,1975, minorplaintiffwas temporar- ily suspended from school at the West Allegheny Senior High School. 3. On May 7, 1975, a hearing was conducted be- l. Presumably because of the need for speed in proceeding with this case, plaintiff's request for reliefis not clearly stated in the complaint. 2. The testimony has not been transcribed and the findings of fact are based on the bench notes of the chancellor. 3. During the co hearing th, as to whether the exclusion was ba: of two alleged marijuana cigarette' the upiIlsn. cigarettes were r e school adminis . garettes. dentified pills w et pills" and We" purse, and it i ere purchase! c content of 1 hed by defend prior to the he the directors e offenses Iusion fron g which, h led to tl "'.CX'"~~~r~# ~ , "," ,1 -~~.~ 'tI'!"""'fq] 1"''1\1 _~ ",- ",i"IH~o "., ._tP1~~_rJ1"'-"""'0-;""_"_ v. West Allegheny Sch. Dist. 74 D. & C. 2d 1318 of the Public School Co ; amended by the Act of J anu , suspension and expulsion 1 for judicial review, article i tution provides a right of ~'yto a court of record, an ;uch appeal be taken un y Law, where it is es of educational rights osenting a need for pro (e jurisdiction of an 'iion. f March 14, 1970; pils, does ec. 9, ofthe al from an . e ordinarily he provisions shed that im- ause the pupil and immediate to restrain the in equity. C. 75-10540. m, for plaintiffi 'aw, for defen - Plaintiffs An- etz, and Debora uitable relief'! to Oravetz into the and to enjoin the 'nor plaintiff. ollows: avetz and Doris L. atural guardians of 17 years of age and a enior High School. lain tiff was temporar- at. the West Allegheny 'ng was conducted be- e need for speed in proceeding st for feuefls not clearly stated n transcribed and the findings notes of the chancellor. i , , .:";\jil-'H-'%B;'~~!!ijoflfi>iiI';"IIIB'WI~!l",!r!<'J~II!li!i!!iiMMi!~If~1!lI1l! 1~~W"'"';;1~!l"'f; 733 (1975) Oravetz v. West Allegheny Sch. Dist. 735 I fore the School Board of West Allegheny School District and, following said hearing, on May 8th minor plaintiff was excluded from school until June 2, 1975, but permitted to take examinations in the various courses during the final week of school. Notice of exclusion was by letter without findings or specific reasons for suspension.3 (Plaintiffs Exhibit 6.) 4. Minor plaintiff was investigated due to allega- tions of another student (unidentified) relating to the sale of so-called "speed" pills and minor plain- tiff was called to the vice-principal's office for in- vestigation. 5. During said investigation, mother plaintiff and minor plaintiff agreed to the search of minor plaintiffs purse, in which two cigarettes were found. 6. These cigarettes were never tested, but it is alleged by the school administrator that they were marijuana cigarettes. 7. The unidentified pills were subsequently de- scribed as "diet pills" and were not found on Debo- ra'.s person or purse, and it is Debora's allegation that said pills were purchased on behalf of another student. Specific content of these pills was never clearly established by defendant. 8. At no time prior to the hearing which led to the suspension did the directors of the school district specifically define offenses which would lead to suspension or exclusion from school. 9. At the hearing which was conducted by the school board which led to the suspension (Plain- , 3. During the court hearing there was some disagreement as to whether the exclusion was based solely on the possession of two alleged marljuana cigarettes or also for the purchase of the "pillsH. '-~,- , "",..,,""""'" ~ -~"~ .~, "~, 1~',,"1"'" w.__ . 736 Oravetz v. West Allegheny Sch. Dist. 74 D. & C. 2d Oravetz v, West Alleghen ~ tiffs Exhibit 5), the vice-principal related his find- ings and minor plaintiff was informally aske~ vari- ous questions by members of the board relatmg to her involvement with the pill sales and the use of marijuana in the schools. The various other stu- dents who had involved Debby in the incident were not present and did not testify. 10. Minor plaintiff was not represented by coun- sel and, in fact, father plaintiff was advised ~y the vice-principal that, in view of her record, It was doubtful that counsel would be required. 11. Minor plaintiff is a good student, and has not been in previous school difficulties. 12. After the close of the hearing with plaintiffs excluded, minor plaintiff's record was examined by the board and a decision was reached to exclude minor plaintiff from school unti! June 2,1975. Plaintiffs filed a complaint in equity requesting immediate relief and a hearing was held before this court on May 15, 1975. Briefs were submitted by counsel. The basic position of plaintiffs, based upon the above facts, is that defendant school district failed to follow the mandated procedures of Chapter 12 of the Administrative Code titled Students Rights and Responsibilities: 22 Pa. Code H2.1, et seq., as promulgated by the State Board of Education, and that plaintiffs dismissal was therefore in violation of these provisions as well as the due process re- quirements of the Federal and State Constitutions. Specifically, plaintiffs argue that Chapter 12 re- quires the definition of offenses that would lead to exclusion from school. It is plaintiffs further posi- tion that minor plaintiff will suffer irreparable harm by absence from school and that there is no adequate relief at law. C ar unl tratl requi the of the de irrelev While on the a Bill of Ri question even thou Section amended b 24P.S. H3- teacher in c ily suspend proper heari While this se vision for ju Pennsylvania peal from an record: McDon Board, 7 Pa. Co (1972). In othe school districts, Local Agency La 53 P.S. ~~11302, While the court school disciplin agency law any similar local agen is defenttant's posture tl, ter 12, Students Rights: t binding upon the indivl specifically. adopted all procedure satisfied ( s. Defendant further e is an alleged violat . on of the offense by issues have been j icability of the Pel sand Responsibili t be whether equ 'sissuewasnotr 18 of the Publi, e Act of January 8 (1969), providl e of a public sc pupil, and the order a perIL of the code d I review, sect stitution pro inistrative a v. Penn Hill onwealth Ct se s in vol vi: eals have b, fDecember seq. s not belie ction shou ,e than tee ction,4 dE ';',\~,~>~"*,, . < ~",.,.l!ll!llt.!rn,fi - .~-~I . Q~ "" ~.~~--~,.,.- ~ ~ ~!'l~'1'I!iI!"",,f1'!Il"1i"","'ffl'W"!"l~1!1l1~II'IIIIlElrf"'""'''''~1~''''''"''''~!"l'' v. West Allegheny Sch. Dist. he vice-principal related aintiffwas informally as members of the board r with the pill sales and : schools. The various lolved Debby in the in id not testify. ltiffwas not represen, lther plaintiff was a It, in view of her r nsel would be req ltiffis a good stud ,chool difficultie ose of the he .... laintiff's record. lecision was r. lm school un' .. 1 complainL:!' nd a hearin !' 1975. Bri ~ I I ion of pI . 's, based upon the It defend ;1. hool district failed tated pro.! es of Chapter 12 of 3 Code ti. tudents Rights and 22 Pa. f e ~12.1, et seq., as Ie StatJ~ d of Education, and missal. ; therefore in violation s as. as the due process re- Fede . nd State Constitutions. tiffs/h e that Chapter 12 re- m oU!l enses that would lead to 1001![. s plaintiff's further posi- llaip:' ". will suffer irreparable . Prom school and that there is no law. by coun- .sed by the rd, it was d. and has not 'th plaintiffs examined by . ed to exclude ne 2, 1975. uity requesting held before this re submitted by , I I 733 (1975) Oravetz v. West Allegheny Sch. Dist. 737 ! It is defendant's posture that th~ provisions of Chapter 12, Students Rights and RElsponsibilities, are not binding upon the individual !\chool districts unless specifically adopted and that the adminis- trative procedure satisfied const~tutional pre- requisites. Defendant further argues that where the offense is an alleged violation o~criminallaw, the definition of the offense by the school board is irrelevant. While the issues have been joined by the parties on the applicability of the Pennsylvania Student Bill of Rights and Responsibilities, the threshhold question must be whether equity has jurisdiction even though this issue was not raised by the parties. Section 1318 of the Public' School Code, as amended by the Act of January 14, 1970, P.L. 468, 24P.S. U3-1318(1969), provides that a principal or teacher in charge of a public school may temporar- ily suspend any pupil, and the board may, after a proper hearing, order a permanent suspension. While this section of the code does not include pro- vision for judicial review, section 9, Art. 5 of the Pennsylvania Constitution provides a right of ap- peal from an administrative agency to a court of record: McDonald v. Penn Hills Township School Board, 7 Pa. Commonwealth Ct. 339, ~98 A. 2d 612 (1972). In other cases involvillg adjudication by school districts, appeals have been taken under the Local Agency Law of December 2, 1968, P.L. 1133, 53 P.S. ~U1302, et seq. While the court does not believe that appeal from school disciplinary action should bypass the local agency law any more than teacher dismissals or similar local agency action,4 deprivation of educa- j , I - . 4. After an examination of the existing cases on pupil ex- pulsion, the court notes that equity has taken jurisdiction: >.-1kI"l_!I~~~111~!1f\ff'11'~"!-I~-jllft""!tWll~~JII~1l~~!"_~ ~_ ".-"r;IIl1'i~;'l ~_~~"' ~ -"'I Oravetz v. West Allegheny Sch. Dist. 74 D. & C. 2d tional rights can produce irreparable harm and es- tablishes a need for prompt and immediate relief. For these reasons, the Court will take jurisdiction in order not to further delay a resolution of these proceedings. As stated, the Act of January 14, 1970, P.L. (1969) 468,24 P.S. U3-1318, provides for the sus- pension and expulsion of pupils as follows: "Every principal or teacher in charge of a public school may temporarily suspend any pupil on ac- count of disobedience or misconduct, and any prin- cipal or teacher suspending any pupil shall promptly notify the district superintendent or sec- retary of the board of school directors. The board may, after a proper hearing, suspend such child for such time as it may determine, or may permanently expel him. Such hearings, suspension, or expulsion may be delegated to a duly authorized committee of the board. March 10, 1949, P.L. 30, art. XIII, sec. 1318." The legislature did not provide an:y specific pro- cedure for the implementation of this section. On September 13, 1974, the Department of Edu- cation and the State Board of Education adopted as State policy a code of students rights and respon- sibilities: 22 Pa. Code 12. The promulgation of these regulations began late in 1971 and was com- pleted in 1974 after numerous hearings and revi- s.ions. Notice of the proposed rulemaking was pub- lished pursuant to the required procedures and these regulations became operative in October, 1974, after approval by the Department of Justice. 738 SC?tt v. Trn;dty Area School District, 53 D. 8!: C. 2d 488 (1971); ~elgerv. Milford School District, 51 D. & C. 647 (1944). In our Judgment, more appropriate relief would be an appeal under the local agency law with a petition for supersedeas. ,c _ '- <-<-"->,""""1~~~I~!I!I~~!lI!!l!!ll~I~,,",,",, !U'"~'''A~ " ~_<M . ~ ~ ~ . 7 Oravetz v. West Allegheny I se regulations, frequent!. t's Bill of Rights', includ< at all persons residinl etween the ages of si: o a free and full educ; ations further provide the exclusion of an institution and sta irectors shall defir ses that would lea phasis added.) S< ions as: 1) tempc ; or 3) expulsi< usion for a perio cipal without, . sion for a perio, ormal hearin efined as exc . g 10 schoo' ich is furth, Stu tion we entitl Ther cedure educati of scho types of school. II defines ex full suspen pension is e days by the pension is ex days after an pal. Expulsio for a period ex formal hearing 12.8. Before an e 10days-mayb be held before t duly authorized include: 1) notifi the parents or gu student; 2) suffic' hearing; 3) the ri right to be represe presented with th copies of the state nesses; 6) the ri appear in person examined; 7) the nesses; and 8) a r stenographer or t ion-i.e., c me effectiv oard of S, mittee of 1 on of char! Ian by cert notice of1 to an imp~ d by coun mes of ad ts and af to dem, answer q t to test d of the recorder I ,~'r,~~~'jj\"flFrrf1IH'IIl"-:I'rl'll~! '1' 'Ihlf-i'''''' - 1"!"''1'~"!l~''11'F<'>>'''f1'"'~~JI'>if.i''' ',I Allegheny Sch. Dlst. 74 D. & C. 2d )i -it.: Ulce irr en prompt , the Court nher delay able harm and es- immediate relief. take jUrisdiction solution of these Act of Jan , !iI3-1318, I,ion of pupil I or teacher in )rarily suspen nce or miscon suspending e district supe :l of school dire c hearing, suspe . determine, or ,arings, suspensi o a duly authoriz 10, 1949, P.L. 3 14, 1970, P.L. 'des for the sus- follows: arge of a public y pupil on ac- , and any prin- pupil shall ndent or sec- s. The board uch child for permanently or expulsion ommittee of t. XIII, sec. :lid not provide an -lementation of t 3, 1974, the Depar e Board of Educati ~ of students right Code 12. The pro ,egan late in 1971 a ~r numerous hearin , proposed ru1emaki ) the required proce became operative' tl by the Department pecific pro- ection. nt of Edu- dopted as d respon- gation of as com- d revi- as pub- es, and ctober, ustice. hool District, 53 D. & C. 2d , District, 51 D. & C. 647 (1 ,date relief would be an a 1 th a petition for supersede (1971); ). In our under 733 (1975) Oravetz v. West Allegheny Sch, Dist. 739 i I I These regulations, freql,lently referred to as the Student's Bill of Rights, include the basic proposi- tion "that all persons residing in the Common- wealth between the ages of six and 21 years are entitled to a free and full education." (Rule 12.1.) The regulations further provide in section 12.6 pro- cedure for the exclusion of any student from the educational institution and state that: "The board of school directors shall define and publish the types of offenses that would lead to exclusion from school." (Emphasis added.) Section 12.6 further defines exclusions as: 1) temporary suspension; 2) full suspension; or 3) expulsion. Temporary sus- pension is exclusion for a period up to three school days by the principal without a hearing. Full sus- pension is exclusion for a period of up to ten school days after an informal hearing before the princi- pal. Expulsion is defined as exclusion for an o~ense for a period exceeding 10 school days and requires a formal hearing, which is further defined in section 12.8. , Before an expulsion-i.e., all suspensions over 10 days-may become effective, the hearing must be held before the Board of School IDirectors or a duly authorized committee of the board, and must include: 1) notification of charges in writing sent to the parents or guardian by certified mail and to the student; 2) sufficient notice of the time and place of hearing; 3) the right to an impartial tribunal; 4) the right to be represented by counsel; 5) the right to be presented with the names of adverse witnesses and copies of the statements and affidavits of those wit- nesses; 6) the right to demand that witnesses , appear in person and answer questions or be cross- examined; 7) the right to testify and produce wit- nesses; and 8) a record of the proceeding either by . , stenographer or tape recorder. '1".I"..'.ln"I,'-.~...J!"';.fffj.,;Wfll.!I*"i~1jl!l~iijl.l1~~f"f!l'l!j~~~_~ 'Ti"""1f#>1!t' '""C~I ,~ !IIIIIm'............l...."._l!~~---"""""'.."..~-"'''''._= ~ 740 Oravetz v. West Allegheny Sch. Dist. 74 D. & C. 2d 733 (1975) Oravetz v. West Allegheny Since minor plaintiff in this case was excluded from school for a period longer than 10 days, the procedure used by the West Allegheny School Dis- trict did not meet the regulations of the State Board of Education. The State Board of Education derives its powers from the Administrative Code of June 7, 1963, as amended, 71 P.S. H18.1, 367, 368, 369. While there is no specific delegation of authority to draft procedural rules relating to exclusions from the educational institutions of the Commonwealth, the State Board or its subordinate councils may formu- late policy dealing with "admission, attendance, graduation and other separation requirements.": 71 P.S. ~369. . An examination of the regulations promulgated by the State Board demonstrates that the board did not take it upon itself to define the types of offenses leading to exclusion, and left that matter to the individual school districts, but the regulations do establish a basic policy for the procedure of exclu- sion and implementation of section 1318 of the School Code, supra. However, it is not necessary for this court to de- termine whether the so-called Student Bill of Rights promulgated by the State Board of Educa- tion was self-executing or whether it required specific adoption by the school district. The proce- dure for disciplinary action-i.e., exclusion from school by suspension or expulsion-in fact, re- states procedures that have been reiterated by Fed- eral courts in numerous cases: Dixon v. Alabama State Board of Education, 294 F. 2d 150 (CAS 1961), cert. denied 368 U.S. 930 (1961); Hagopian v. Knowlton, 470 F. 2d 201 (CA2 1972); Pervis v. LaMargue Independent School District, 466 F. 2d "T and altho~ cons~st Amorj.g 0 ogniz~ a lie edlucat tected by t not be take ence to the clause." .I\~'\ . \~ \ 1\'. . \~\~ 1~~ , ,.:~X" \.~~\ ., \\'; , '~\\ HI,,,-, '\\'\ .. ':\ ~\ ~\~\ ~.\\, ~ 'irp, \:'1ji\1. \\,:;>> \;\',!.\ '\'i~ :j\S\, ~,,\.,~j'\ -'l~ I . \}::,},~\ ."1,\\',,1' "iil,\\ 'i;\,\ 'i'j:'i,t I,;.,' 'if;i;, ~1\\1 \:,.)\] 1'; ~<\ ,-,'j '\\\\\ \'I\,\-I :H'j "V,I\ 'ij",j !:::)1: ~~;':1, ;1 U!II ;;",=H '1.'\1. I; :':h ; ;," ~;,\~ i'I\.\ 'i~ 'i~\':I, -I':. . CAS 1972); Williams v. I . , 441 F. 2d 299 (CAS 197 ummarized by the Unit 'n Goss v. Lopez, 43 22, 1975): thoritypossessed by tl ce standards of cone ncededly very broad y with constituL things, the State i, ent's legitimate eJ as a property int ue Process Cla1 way for misconc imum procedUl That court is a serious an of the suspen excluded stud tections. At th suspension, ev "must be given some kind of he Our own State the current cone where a student charge of miscon tion which is ". . . described, that he realize its gravit might come to hi [she] was entitled given against hi delivered, and tha in his ,presence, wi d that even a ossibly traum child or adol is entitled tc ery minimu fa tempora: me kind of g.": 43 L.' ts as 'early for juveniJ to have a , t he [she] y, plair e] might c d the pc er], ifit w ow wha er] and b e proofs full OPf '~~r<l;,..~~_.:_" ,-,~Ii!f!l'1'ilI~~_ "__' _~t),. """"""-'I "~ " "- , "~~._~.j!ll __= ~. _, ~"~"'~II!'1IOOlI!'!~l<-Il''=~llllfr~~'r'''1~l''~'ffil'''nlll~'''''''''''O'<<'''''''''''''',~_ ,',', 'lit Allegheny Sch. Dist. 74 D. & C. 2d II.' iff in this , 'e, iod longe :h~ West All Le :'egulation e was excluded an 10 days, the eny School Dis- the State Board 'ves its powers e 7, 1963, as , 369. While ority to draft ns from the nwealth, the may formu- attendance, . ements.": of Education :rative Code of ~118.1, 367, delegation of 'elating to excl tions of the Com ubordinate coun ; with "admissio her separation r of the regulation demonstrates that ,If to define the typ m, and left that 'istricts, but the re llicy for the procedu ntation of section 1 omulgated board did f offenses er to the tions do f exclu- of the t necessary for this c the so-called Stude I by the State Board uting or whether it 1 the school district. 'Y action-i.e., exclusi on or expulsion-in f lat have been reiterated 'rous cases: Dixon v. AI ucation, 294 F. 2d 150 368 U.S. 930 (1961); Ha an . 2d 201 (CA2 1972); Pe ~. dent School District, 466 F. 2d I I f , I I 1 733 (1975) Oravetz v. West Allegheny Sch, Dist. 741 1054 (CA5 1972); Williams v. Dade County School Board, 441 F. 2d 299 (CA5 1971). As summarized by the United States Supreme Court in Goss v. Lopez, 43 L. W. 4181, 4184 (January 22, 1975): "The authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to rec- ognize a student's legitimate entitlement to a pub- lic education as a property interest which is pro- tected by the Due Process Clause and which may notbe taken away for misconduct without adher- ence to the minimum procedures required by that clause. " That court found that even a ten-day suspension is a serious and possibly traumatic event in the life of the suspended child or adolescent and that the excluded student is entitled to constitutional pro- tections. At the very minimum, students facing suspension, even of a temporary or limited nature, "must be given some kind of notice and afforded some kind of hearing.": 43 L. W. 4181, 4185. _ Our own State courts as 'early as 1887, long before the current concern for juvenile justice, ruled that where a student is to have a school hearing on a charge of misconduct he [she] must have notifica- tion which is". . . so fully, plainly and substantially described, that he [she] might clearly apprehend it, realize its gravity and the possible harm which might come to him [her], ifit were sustained. . . He [she] was entitled to know what testimony had been given against him [her] and by whom it had been delivered, and that the proofs be made openly and in his presence, with a full opportunity to question ",_,,,",,,",,.,___",,,,,_~,'=~".''''''''''''''''",,,,,O'aIl!l!II,_~'lIll~~'__r '__'0"~ "~ - , ~ ~'"""" "- "'~~, ,",""""",,_<~_,~,,_~W,lI'~t'!\ _J'YT"'_"'''''''''''' ~ I'~ f 742 733 (1975) Oravetz v. West Alleghen' Oravetz v. West Allegheny Sch. Dist. 74 D. & C. 2d ~ the witnesses and to call others to explain or con- tradict their testimony.": Commonwealth ex reI. Hill v. McCauley, 3 Pa. C. C. 77 (1887). See also Scott v. Trinity Area School District, 53 D. & C. 2d 488 (Washington Co. 1971); Geiger v. Milford School District, 51 D. & C. 647'(Pike Co. 1944). In the instant proceeding before this court, stu- dent plaintiff was "excluded" from school for a period of approximately 30 days (as compared to 10 days in Goss v. Lopez, supra.") Based upon the tes- timony, an informal investigative hearing or meet- ing was held in the office of the vice principal to determine the student's involvement in the aIleged sale of unidentified pills in the school. At this time, the two cigarettes were discovered and minor plaintiff temporarily suspended. While exclusion of a student is not a criminal trial, nonetheless it is an adversary proceeding. The student's good name, reputation, and even future career may be at stake. In the instant proceediJ;lg, there was no testimony that minor plaintiff was a threat to the operation of the school system, requiring immediate suspen- sion. At no time was there a clear statement of the alleged violation of school regulations, no written notice was sent to the plaintiffs, parent plaintiffs were discouraged from engaging counsel, no wit- nesses were present at the hearing other, than plaintiffs, and there were no findings to support the exclusion of minor plaintiff. While the issue before the court is procedural, in the entire record of the board hearing (Plaintiff's Exhibit 5) it was nowhere established that "the at minor plaintiff " d contained a dange e two cigarettes th ained marijuana pr c and fundamental d the procedure 0 sentation ofwitnes pills' pur(!)h nor th purse of the hearin and the truth. A tru,e sion on s must u . over the allegatio to the co for posses of a dang plaintiff t though the The co school dis discipline quently vio illegal acti schools whi selfandinte However, t public educ cedures of d Commonwe Based upo of the chan Oravetz was quired either of Education tions. An ap sued. . g is more than al problems by CO] techniques that] ries to arrive at bsent notice of c hether minor pIa of a dangerous d s drug, or for t] , ght was a daJ m was of doubt is sympathetic s and school dir chools within t society. Unql s which are , threaten the e e with the edu tudents' legit is protected rocess as defil e above discu lor that mir t accorded d the regulatic the Federal riate decreE 5. While not in issue, it would appear to the court that the May 7th hearing would meet the requirements for an "informal hearing. " - '-"'5'!';,.,...,~,"", ~~ f."~1~""" ~-,..,.,-, I ",. ~,~, , -,I" ", ~ l'm!!I~flW!!'lW""""IF~I~IlIP"_'___,_",, ~._ Jl<""''''' ~ I,'st Allegheny Sch. Dist. 74 D. & C. 2d ,I I () call others to e' lain or con. "mony.": Common ealth ex reI. y : Pa. C. C. 77 (i 87). See also \Jea School District 53 D. & C. 2d m Co. 1971); Gei er v. Milford -; 1 D. & C. 647 (Pi e Co. 1944). proceeding before his court, stu- nr IS "excluded" fr~ school for a mately 30 days (a ompared to 10 l-" Jpez, supra.S) B~' upon the tes- ,al investigativ , aring or meet. he office of the', e principal to dent's involvem in the atleged 'd pills in the sc 1. At this time, es were disco d and minor ily suspended. I of a student itisanadvers me, reputation, ,take. oceeding, there Pf was a threat t " requiring im as there a clear ,f school regula , the plaintiffs, from engaging .mt at the he e were no findin plaintiff. 'efore the court f the board he nowhere estab . ot a criminal oceeding. The d even future s no testimony e operation of diate suspen- tement of the s, no written en t plaintiffs nsel, no wit- other than o support the \ rocedural, in g (Plaintiffs . d that "the e, it would appear court that the neet the requiremeIJ' r an "informal 733 (1975) Oravetz v. West Allegheny Sch. Disl. 743 I pills" that minor plaintiff was alleged to have purchased contained a dangerous drug substance nor that the two cigarettes that were found in her purse contained marijuana prohibited by law. One :f- of the basic and fundamental reasons for a formal . hearing and the procedure of cross-examination and the presentation of witnesses is to arrive at the truth. A true hearing is more than a round table discus- sion on social problems by concerned citizens, but must utilize techniques that have been developed , over the centuries to arrive at the truth or falsity of allegations. Absent notice of charges, it is not clear to the court whether minor plaintiff was suspended for possession of a dangerous drug, for the purchase of a dangerous drug, or for the purchase of what plaintiff thought was a dangerous drug, even though the item was of doubtful authenticity. The court is sympathetic to the problems of school districts and school directors in maintaining discipline in schools within a changing and fre- quently violent society. Unquestionably, there are illegal activities which are occurring within the schools which threaten the educational process it- self and interfere with the education of all students. However, the students' legitimate entitlement to public education is protected by the minimum pro- cedures of due process as defined by the laws oHbis Commonwealth. Based upon the above discussion, it is the opinion of the chancellor that minor plaintiff Debora Oravetz was not accorded due process of law re- quired either by the regulations of the State Board of Education or the Federal and State Constitu- tions. An appropriate decree will therefore be is- sued. . , t. I I t <- ~,~.,''"'''''',..,-, ""~ ,~ -., '-'-"-~"""-'""1iI "~" .~~ Jl'lI.....__.~ __ _w. 744 Minnicks v. McKeesport Area Sch. Dist. 74 D. & C. 2d 744 (1975) Minnicks v. McKeesport Are" Schools' diction of equI accused pupil to 1. While section 13 10, 1949, P.L. 30, as amen expulsion of public school pup , judicial review, article V, sec. 90 tion provides a right of appealfrom a court of record, which constitution plemented by the Local Agency Law. 2. While appeals from an action of a schoo be taken under the Local Agency Law, because'of v. McKeesport Area School District Adjudica County, No. Robert ]. Lewis ]. N which might be caused a which cannot be repaired 'subsequent reinstatement, { train such suspension or exp e course of an investigatioJ pil np,sconduct, the pupi arnmgs. . e of a hearing upon char, 'on or expulsion of a pub 'se full and complete, is aring, giving the pupil , king in due process, an' ide. suspension of a public set aside by the court tice of the hearing resu 'ssion for the pupil's a evertheless within th. PRELIMINARY DECREE And now, May 23, 1975, upon the petition of An- drew W. Oravetz, Doris Oravetz and Debora Ann Oravetz for equitable relief, it is hereby ordered, adjudged and decreed as follows: 1. the above case be remanded to the West Al- legheny School District to hold a proper formal hearing in compliance with the Regulations of the State Board of Education and this opinion within 30 days; 2. minor plaintiff be reinstated as a student in West Allegheny Senior High School as of the date of this decree; 3. the official school record of said minor plain- tiff shall be expunged of any record of suspension or expulsion in the absence of a hearing as set forth in paragraph 1 of this decree; and 4. the above decree shall become final in 30 days. ble exp even tion t 3. allege Miran 4. the sus while 0 before tll counsel, 1 must be s 5. Wh miscondu adequacy 0 refusal of ceremonies board. 6. Where and inadequ school distric regullations 0 pension has been ir otice given, the ill conduct a hearing State Board of Ed in equity. 75-10573. ension of pupil-Due process-Juris- quacy of notice of hearing-Right of a warnings. e Public School Code of March lating to the suspension and s not include provision for ennsylvania Constitu- . . strative agency to sians are im- FINKELH frey Minnicks, . nicks, has req enjoin the de superintendent school and grad an order of said for the remaind A hearing was andMay20,1975 -''''=-'}'j~='''''_."'''"'= ,,~ 1'~-~ , """""""f' , " "~ . , """""R:' ,~~ ~ J!!'!I!!ll!IIl~!I!,:r';!'lIll~r)l'7"1!II"'I11_~"1~~,-, DEe 2 0 200r0 SNELBAKER. BRENNEMAN S SPARE A PROFBSIONAL CORPORATION AITORNEYS AT LAW 44 WEST MAIN STREET MECHANICSBURG, PENNSYLVANIA 17055 RICHARD C. SNELBAKER KEITH O. BRENNEMAN PHlLtP H. SPARE 717-697-8528 P. O. BOX 318 FACSIMILE (717) 697-7681 December 20,2.001 VIA HAND DELIVERY The Honorable Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, P A 17013 Re: Cornman VS. South Middleton School District Docket No: 01-6841 Civil Dear Judge Guido: As discussed during Monday's oral argument, enclosed is a copy of District Policy #227 entitled "Controlled Substances". Very truly yours, fI2I~ Philip H. Spare PHS:jjc Enclosure cc: Galen R. Waltz, Esquire (w/enc1osures) . Qr.:;~po'" OENr'~ EXHIBIT , 12';1,1-01 Ut-'T" !:~!E,'"" ' "", ;. _"~,,,"_. .,c__ __ __>-e.__,. n ,_~ _~ ...,." _~ .._ 0_.._ ~ ~ -~ ~~ECTION: TITLE: No. 227 1. Purpose 2. Definition 42 P.S. 8337 Act 64 of 1972 Pol. 222 Pol. 210 3. Authority Title 22 Sec. 12.3 Title 22 Sec. 12.12 42 P.S. 8337 4. Delegation of Respon- sibility 42 P.S. 8337 PUPILS CONTROLLED SUBSTANCES ADOPTED: November 17, 1997 REVISED: 227. CONTROLLED SUBSTANCES The Board recognizes that the misuse of con- trolled substances is a serious problem with legal, physical and social implications for the whole school community. As the educational institution of this district, the schools should strive to prevent drug abuse. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 For purposes of this policy, controlled sub- stances shall mean all dangerous controlled sub- stances prohibited by law; all "look alike" drugs; all alcoholic beverages; tobacco and tobacco products; any drug paraphernalia; and any prescription or pat- ent drug, except those for which permission to use in school has been granted pursuant to Board policy. The Board prohibits the use, possession, or dis- tribution of any controlled substance during school hours, on school property, and at any school sponsored event. The privileged confidentiality between students and guidance counselors, school nurses, school psy- chologists, home and school visitors and other school employees shall be respected and no confidential commu- nication made to any such employee shall be required to be revealed without the consent of the student or his/her parent unless the best interests of the stu- dent can be served only by doing so. The Superintendent shall prepare rules for the identification, amelioration and control of abuse of controlled substances in the schools which shall: discourage abuse of controlled substances; establish procedures for dealing with students suspected of the possession or distribution of controlled substances in school, up to and including expulsion and referral for Page 1 of 3 -J,'0\1-,lfiji\V~.~.~ Y.'_, ~-'Y~' !~ ~ ,.. '~ 1 2 3 4 5 6 7 se 1303-a 8 (b) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4. Guidelines 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 ';}i-"~~~""1Ic~'!!'Ia1I!Ir . ....- .. '" 227. eONTR - Pg. 2 possession or distribution of controlled substances in school, up to and including expulsion and referral for prosecution~ and establish procedures for the instruc- tion and readmission to school of students convicted of offenses involving controlled substances. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~l 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Incidents of possession, use and sale of con- trolled substances and alcohol by any person on school property shall be reported to the Office of Safe Schools on the required form at least once each year. Rules developed by the Superintendent shall fol- low these guidelines: In all cases involving students and controlled substances, the need to protect the school commu- nity from undUe harm and exposure to drugs shall be recognized. No student may be admitted to a program that seeks to identify and rehabilitate the potential controlled substance abuser without the intelli- gent, voluntary and aware consent of the student and his/her parent or guardian. PROHIBITION OF, ANABOLIC STEROIDS Eligibility for participation in school athlet- ics shall be limited. No student shall be eligible to resume participation in school athletics unless there has been a medical determination that no residual evi- dence of steroids exists~ The Board may require par- ticipation in any drug counseling, rehabilitation, testing or other programs as a condition of reinstate- ment into a school athletic program. The use of steroids by students involved in ath- letics is prohibited. In addition to the prohibition of use, the Board directs the administration to devel- op educational plans regarding the use of anabolic steroids. The Superintendent shall prescribe, implement and enforce rules and regulations to prohibit the use of anabolic steroids, except for a valid m$dieal purpose, by any student involved in school-related athletics. Body building and muscle enhancement of athletic abili- ty are not valid medical purposes. Human Growth Hor- mone (HGH) shall not be included as an anabolic ste- roid under the provisions of the law. ,,0 51 52 53 Page 2 of 3 ..~,If'llf ",..,.-, "~. " -.....,~"1~"-~ . . ~~ ~.f~\ ~~.=}\ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 '3 A 25 26 27 28 29 30 31 32 33 34 35 36 PA Statute 37 42 P.S. 8337 38 39 40 41 42 43 44 45 46 47 018 3 50 51 52 53 Act 104 of 1989 42 P.S. 8337 Pol. 233 School Code 510 PA Code Title 22 Sec. 12.3, 12.12 Other Cite Act 104 of 1989 ~J)1:, ,~, ,., , ' ,-" ~~- ~ ' -'- 227. CONTROLLED SUBSTANCES - Pg. 3 Education regarding the dangers of anabolic ste- roids shall be provided in other district drug and alcohol programs. The following minimum penalties are prescribed for any student found in violation of the rules and regulations required above. Violation of rules and regulations include: 1. For a first violation, suspension from school athletics for the remainder of the season. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 2. For a second violation, suspension from school athletics for the remainder of the season and for the following season. 3. For a third violation, permanent suspension from school athletics. . Students should be made aware that anabolic steroids are classified as controlled substances and that the use, unauthorized possession, purchasing, or selling could subject them to suspension, expulsion and/or criminal prosecution. Page 3 of 3 -~ ~~ - 1)Ir{j Law Offices RON TUR.o, Esquire ROBERT J. MULDERIG, Esquire GALEN R. WALTZ, Esquire JAMES M. ROBINSON, Esquire CAROL L. CINGRANELU, Esquire GERARD J. FOULKE, Esquire D.Ee 1 7 20hl J)/ www. TuroLaw.comV 28 South Pitt Street Carlisle, Pennsylvania 17013 (717) 245-9688 (800) 562-9778 Fax (717) 245-2165 December 17, 2001 The Honorable Edward E. Guido Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Cody Cornman, a minor, by his parents Ronald & Tina Cornman vs. South Middleton School District Board of Directors Docket No. 01-6841 Civil Dear Judge Guido: Pursuant to your Directive at this morning's hearing, attached is a copy of the original cover to the Boiling Springs High School's Policy Book and pages 26 and 27. Specifically, this Exhibit represents the Petitioner's Exhibit # 9, which follows the 8 Exhibits contained within the Petitioner's Appeal. The justification for this Exhibit lies within page 26, titled "Expulsion and Due Process," at Sub-item #6 and #7: #6 -The right to demand that any such witnesses appear in person and answer questions or be cross- examined; and #7 - The Student's right to testify and produce witnesses on his or her own behalf. Thank you for allowing submission of Exhibit #9. GRW/jge Enclosure cc: Phillip Spare 'i~,_'_Jl_'1.~,~"., -<=, ""-_,_",,_w,,,,~:!I'_"'__-">"_~_~~'_~ _ .-!O '" "".""_O~. ~'N:_.__"',""I__" _on. , _", ~~_ "~.~~<__~ ,~_,~ , . . ,,(1 '" ~ :Y(1, ~ (' (' <' ~ ~n <' <'J <' <' <' <' <' n <'{<' n (' {'~~(\ \ *, ~_...~ \ - \_ ~- ~ ~. - - r 'l ~ --l -1- \- ~ -! -1 -J ~ -1\'~ l . , '- <4.J ~ (l.! r. J ~ lJ iJ 'lJ ~, S:u li L L lJ U li L L L L l; ~ t ;t IJ . "' dgg ~g-gO~~ 8as 0 OCo:l " \: ~ ~ S. S.> ;:: ~ 0'; ~.:g ~ @; .~ s=- g ft ft ~ 0 go s:. -~.g -a lo-.1:'\; Vl .j:::.. W N ...... (tI 0.. (1)_ (\1 ::1 g-;:a. ctl 0 ::I. Ci" '-'-".... '~8..~od 1:1.I"0 (b $l:I.... ~~~O~~~~z~z~. o.~~~~~~.~ ~a~~~~~"o~o~>.HS'~~~S~a= (1)p(1)~oonO"=n=_~~.o(tl~-~~~= ~a~.~~.~.::I.Q8.!g~~~.~~.~r~5.a~ ~ 'E;i:- ~ ~ o,g.. o,g.. . 0 5i '" ~ '0." 0 S '" '" ......P !l t:l ~&=~===~~l~g.~.s.[~~~~~~g ~xo~OOO~(tI ~~q ~ S~[ooo~ ;.~.rB~~-~.~fl.~~~~l~~a.~~~i angR~~~' o~S=-ctlo~'(1)(tl~ ~~(tl~ ~~~O~~~ g o~~oa~.ioa~: ! r~I~1 ~ t~r~s~~r~ri~ ~ Ei Ell 2. a ~ '" ""~. !l .0 8 C' >l ""!l ~ 0. ~ ~;:~8..5. g ~.0I:l~'E1-3a.E;~~_E~~ ~ g!;t i}~ g ~ ~ ~ i? ; "g (l @ ~ r 2. S' g' ~ ~~r~~ ~ ~]l~lr~&i?!~r & S~~W j OI:lg~~~~~~a~a~ = OO~_ . ~~oo~=oogo~5~ g ~~. g . [ ::I. g. 0.. g. a?l" ...,., g r::r c.. t :I~ ~ ~i~~[~ ~~i;~' ~ ~~J i ~~~~;~ !~~.~! ~ ~. n ~ ao.Ho~8 ~q""n~ ~. ~ n - ""'t - 0 W I:i C" o..(Jl:I o P G c 020- - ~g~i~ ~ ~ ~ 0.. ~s~o 0 ~_~ r E 9 ~ a Oa.~.~.OI:i' ~~~ ~ ~ ~ 111. S' s- S (l it 'W it 1}' tIll'!. 0. ~ ~ ~ ~ ~g~o~g ~ g5~ o ,,~ ~ =!;ti;s" ~ ~oo. ~ 0. ~ ~ " "0 ,. --a ~ ~: I ~@~t~~ ~ ~. I C' ~" ~~S"o~a~ ~ go~a I ~ r .. IW!:'% . (gi . ~ - ~. =oa~~~ a -~C" ll. ~ ::; ~g",,,a~ 0. qs.n ~. 0. a ~n"~~S' 0 "<~ o n ~ ffl~a-.oo 3 do~ ~ 0 ~. ~oo..g~a. ~ a~""'t ~. d -.~B S'S ~ ga'~ ~ f.il Po ~ r<- Si' OQ p.. ~ rn Qq 8.. bl~ld":.': "ffi .>"x >":1: ...,.:C'~ ~ =- o ::I, q - Q ! :2- = 00 E" 0. ! ~ Eo " g' a ~ C' " g- " o " q ~ S' n tIl o I ~ 00 g. o g. tl ". " $;, ~ " ~'8 !l.~" o '" ". g g..~ ~ 0.0 = '" " S<. " " '" Q ~ ....d = ..., ::::(Jl:I . 0 ~ 8' ~ ~., -cr~ .. ~ .. g.~ ~ s::r- =-: 8 =. ~ _ 0 . E." s. (I) ~ 2. JIl S- g a 0... ;~ [;l " -" - '" SA =-. 'S ~~~ 0.0C' ~ ..., (I) '_'"0 (tJ ~'Cl ~ g " n "2.~ i'Ei8.. ~n,,", "C ..tf.l g a=..., " " n " g f;i ,:,s 0 ~a~ ~ ~.15. o g. !t lil 5. (I) 0 S' 0....,,,,, ~S-o- ~ 0 s. ~ ~E a ~ [8.[ !lS-. !;t",o. S.~,"g [IJ tol ( ~ -~i- 0..2._ ~ 5'Q ,,""' e: E: ~ ~ 0. . ~~ <-<]. g' ~. 1~ ~'El .g~ ~a: ~.o 0" ~a' lP .. lfct ~ ~ 5"" o " -0 3 "" ;;;:e. '8' ~ '" '" n ~. 8- ~ ~ ~ "" g Q S o.n ~ -~~ '" ",-o.g "'."" ""'8'" ""'0 -"'0 tIl~'" ~I- _.~--~.or-\J-' n-=~~ ""..aw,,~o~- - ""~~"tf.l~ ~Ooo ~oo~~-~go~ ~~o ~~ ~ aa.g~ ~~ .~&.g'C::3 0 :::.E..'-<~ Er.o-t=:$18 ~ a..::2'f:!l..a d -'a->>""- .~=- .2.=~~. C"o~_-~~~Oi~ g~~"",0.~r~2_aa<ln=g.=~~~0S'~.> ;:;;Ie:. ~tD = u.............{/.Irtl Q..o;n ti.oR.::t. G I o~"">I~S"~~~gs:~'~o~ ~~~~~g:g~[IJ~;l1 ~~~i~~~-.~8~n'~~%r~~~~~. o~~~~> WfH[[~[;~[~~~~~fal[~~ ~r~8.f~ oo~ol~~rg~S':~:~a6:~~1~~ ~~~~~ ..s..0;;S s:-g.JIl ~G g 8 [~~S=-,,(Qo..o~"O~ g g'"~.g ~ ~ tl iil' g." a '< !l '" '" 0 "il n < .~ n 8-!l 'O!l 0\ " ] "'1 >r:l =' 2 ~ :: go g 0..:3 ~. a.. ;:1 "'0 o. "t:' PO-I::! OQ ~ -. 0. g. 0 n .z < ~ :e. t.r. p" ~ = '-< !:; Q;" ::!. g (Jl:I a o;n 0' "0. ~ "S ~. t:t. ~ ::s _ o' _. ~ 0" ~ 0 ==' . ....... ;::. 0 =:"'"0 c:: ~ ,:t". $'- .... ~. (tI 0 .... i~~~a~g.~~8~~:g~F~~~r8~. g~O~&n r--~ $ > ~ ~;- g. ~ ~.~!. g ~ ~.g. 2" 6" a. g] ~ ~ ~ Sf ~ ~ '"Oo..~~~~~ ~~~So~no~~ i~ ~~<~~ g 2" ~ i ~.g ~ ~ ~ ~ g~' ~ s..go ,[ g :.' @: ~ ~ g.. ~: 2"s ~ @~. ;::l I"JQ "C I so I:i'""'! (I) = "'0 -- ::: - c;. ::I. 0 (') 2":= 0 C" .0:: o _. __ !? 0 n t/;I w __ ..., ,. to ~...,,, 0..;...;. {/.I '< Er = c:: ::r" g sa. _. c..... -. ~ l:l: "'0 0 s::: o' c; {I'j - OQ 0 Mg'~~~5~~~g_~~~!~~~F~~~ ~~.tD~~ Q.. d -- 0... -::r-< 8.. -< Ei "'0 _.;;, --.. --:=T (\I - :1 cr (':l c.. ~ ~. ~.~ ~ ~?f 8. if @ ~ sf.g ~. @ ff s- ~~] t Jg. ~ ~ ~ ~ os~oo"" ~~~ ~-o~o_o~~ ~= s~ .~"'Og~<m~n~~O~ g~=~~.~".-- n~~~tD to ... _;::l (b ':IJ V. c;"' 0 ~::s =--,d-o._tD~n~DB.~~ =~~~~~~i o&g.~=o. 0... """""1 .-: "'-';b ('"; - = ;::r 0 0 _. = ...-: 0" 0 in tD 0 d ~ "< g- (t. = 0 .0. n. ::r' Y.l tD 0 :::l ~ ;:::I ~ gO"'o -.0:::1 -OQ;::r. to ~ ""0 ':II (tl 0 -- =- tD N':;' .Q:I {/.I n ..., '="> .. :::.0" Cll n nro~o""~~~oa~~o~OooE&~o~ng~ g~~>o MOn <_.=~~ ~~o~o~ -.~ -~O~~ ~~~~a'~~~a~~~~~8g~~~.~~~ ~~~~a g. ~ 0 S 0 c:: ::3 .." ~ ~ 00 S _ ..-:;. ~ <i g _. tl) c:. 0 ;;T 0 tj. . ~ ~ (/rJ 2.. :: 0 :- g ~ g $: g;: . ~.. _ go g.~ 0; ~ 0 ~ ~~~.."~~n~o~oo.~wn$,,S~O ~~ ~-o..~~ <: n _.::T 0'" (iI 0 0.. 0.. ~ rtl c. _ <: 1:0 ~ ;:.; S 0 0 a[~~~~~~~.'~~~~~~~~~~.a i~~~~' o ......... 0 (/r, g ~ ,0.. -, ::T .::S 0 "'0 ;;;r - Vol ~ ..... ::l V,l ~ g,ig ~.~. a e. a. ~ ~ g g-;i~ S i=~ s- S' ~ ~;;;'6 e?.'El 3eo..~ a ~ ~~~(I)conQ=="" ~e~s.o C'Sn(.r.l~9~no~n ~::O~::~':l',cno8: ~o..ng;!a.g:n ...,o~_. - ~o -~c::C"~o.."on 0 ..., ...,-. n @ 'A-~ go ~ g 9 g- g go ~ g :i E..? g- ~ Po g: ~ ~ a !3 g~ga ~c::-~ ~~~~~~~Q2.5.i ~S~~.~ " ~ '" 0..... ::: .-::: c cr,,<"" ~........ _ t-1 .." 0.. C _ - ',I'. ~ 0 0.. ...... -. ..., <.,;;". 'If.I - 0 -..... 0 0 - ~ _ C" 00 - 0 - !!. ~ g. a g;l~.:J> g (i' ~ ~ &. ~ ::::0.-. tr~'::r- ~ ~ = JZ ~ If 0.....=1:0 ....._.0_ -=-~ -. ~~8n -~~-~~ 2~~n oo~~ -=o_,_a~~o' 0 ~~~~.a ~'(1.........~ ...,:::,,'(1. O'-::=~.O_~ (ll....._(.r.I ooo!;.?.. N -> (') ......"'0 o ~ g SoO!! g<<;!:,~ 9 2..C@ a- ~ S' a i:l ~. $' 1f~"" ~8.S- l'! 00 -, 2- go 12. 0.. Q S"g i2. el-> ~S::\l s'i Sl s. go = re-~oo a-6 Ii: " -'" S'-l'l ~ n (1) =: S" ~ S. ~ S'" = g.@ . ~--s=-> ~. (1) 8 ~[~ C"g~ n _" 5 ~.g C"...., :;,: :::<o.~ o ::l _. "'s-g. ~. S. '" 0. 0 ::::s ~. C 0."'0. '" [IJ 0\ n~S' m..e. a ::;:. ~ 2. .. S' _"'0 o ct >6' ~-~ e:.. ;-o.g.~ g a ~. 0.~S' S'-~S' . " n S'."i'!S""'[IJ'<("l ~![~~~d1l .g~'~gc::.~~l _.:;:1 ~ 0 CJ,.1 "'... 8. \\ " ~: $1 ~"Il~ " 0 0 ~. '~Ei '< .g -' ii ~ en F 0 ('6 >- '" S' '" El ~ ~ ::I: o5'~g~::C~=ft ~ a '" So >t-q"g .. ~ ;::r 0 0 ~ ::s .~~O!,,~n~]'i q ,,"" 0 .. 5' a' ~ ~tA.fl:) 6::cr~:::.:s t:l ~ o' ff CfJ- ~ ~ q' S" ~ 2.lili32.8r8'ri!! ge,~'g1i."'" = -"'<~n8""'i" ~. .,.- ~ ~'o. 0. " "" o a 0 ." _ " - ~," " "~. - ,~, . - tf.l ~ ;-. 0:+ - >C :g = o. p:I fn' t;"'-= .g II r-g. 5 S'~ 5: .... '"C ..., <: p 0 p:I = ......... r::." cr o:f) :=t = ~~t:; S"~=g I ,-.(jlg ~ S- g.c..~ !;l~o""""o=ag= o ~ - no.. g, S' p' J2.g s. ~ !l oO~g.o..~~fZ !::::"" 0.. a :;::.;:tl. tf.I.. ..-! - _. n "'. =' () t3-- ~ ag.e:~~~ 0 S"a'"S~~''''' !l ~ S' $;,''0 " g- ~ "'ar"'g~~ii 0; 0. III -. "" a ell _. ~ 0 5. ~ ..., S' "s: 0 S' ~ ~. a S' = .3 CD =-- a..f;i 0 .....no..., e.o S' - 0 O! 8 q ~ci:l (ll l3 :;~:- a. 0 g.!',< g ~ g.." e, =.:: ~ ~. 0.. S<- = tf.I ~e..= gf:'l p..~ g. @ go $ ~ r s g :::.". .... r;J ~ (laE.'.sa,,-8 n o' =' ~ ~ 0. S. t::S n=,~~~(ll"""'-" _' _.. 0 0 n _ <: _.:;1" '1'> >; ...... ~ ....) o ::l (ll 0 0.. tf.l- 0.._ i , . a '" S'~ >l ;S. g.~';' ~ ~o ~ ~. 0 0. -_ }:j 0 ~ p:l g o.aS!l",li'_t:l ,,0.. ,,"'-"n.,. 5 Sl CI:lo. 0 c:. ~::5. a a e " '0 ... ... '" tfJ ~ '" ..., tA :::L(lQ g-'" li" S' g' 3 a = (\l~D(\l G'o..tIJ Ettf.lEttl)"'C.~d , " ~ e- ~ ~ S' ~ o. =.: 0. ~(Jl:I "'C g- ;: g 00. (ll ~ ~ p..n;-'f!:!$O~ .s":o 3 o' ~] S ~ ::= $I:! ~ '"C ... Efo'<og .' n>l,,~o.8..> "'g 2. a S' 2. ~~ . ~. a ~ o;:tO"'!S. .g. ~ ~ g, 5. ~ ~ a ~ ~ it ~. 2. rn>5 ~8 oq t:j. g se. C "0 '"0' c:: oo:<_~~ 0. "C 0 m l::!' '"rj 0 9 ""1: (') (') S- o.. ~ =-'06.;:t. ~ tj' 2. >l ;S. '" an" e:a.~p..~o ... - 0\ ~ ~ ~. - t:O VtI.l"C 0.. E ~ So g g. n !l>onn~"E."l S" 0 go ~ g S' S' !}8.~"O~eo = (l) p.. 0 ::r"'< 0... ::: 0. ~ S. g ~ 0 C"'~ .--a.= (iI 0 O'"C 0 ~ =:aOl:l8....,=~ ~ ~ 0 ~ !3 ~ 2.g.(ja~~g. "'8-_ C'8 tc_=--VO(1)_ .~. 0 E; E!. ~'" E ~ E:; s.t.<:: ~ a >0 ~ CfJ Otl..a 9 '"d ggS;5'0=::;,;g. ~a~(tI::Ss:-'< !\, ~ C'''il2 n g. o 8 ~ ;:1. c 2 er- " ~ fJ 8.. ~ 0. S' ~s'1!~Sl1!r - - - 9:-0 "" l"Jl 6' s:;j"'O I:::+:: ~ tf.I ;J> &. p:. I=? ~. ~ it &. -. ita~"'Cl"'g~ s~r~1!g~.a .altc..B.~o8 '< '"C _. a' p.. = ffi ~ ::2. ~ <...c:: 5' =-. .... " !l- g 6' '* "" ~ g- '" ~~"so.1:;" ~~~~lti~ii ~8gj2.!lWra. S'!i~a'g~s-g- r. !is S'O:o.if .g ;;~. ~ ~ ~ ~ ~ '"C _. IE:!:. c:: i:: ... l"Jl O'Q ""1 tI) ;;;r C'" p..:o 0" .g e.. g-,~ g =06 (tI. ~:~~ ~afg ~ [ n2.i!J"''OilJna- ~ ,;::::,i:f.~ J:).......'-< nr::.oJgg=o= ~~>-+'. c::,g:= ~ ~8~ cm~.g~ ~. ~ ~ ~ [ '6 ; Ei. g. - ~. ~'" a8 a.[ 9 g-~ ~ g 6' " J:; 0 ::I. e.(Jl:I ~ ~ ~ . ~'il ~. ~.~ (t> (5 ~ _-0 ~:~ g-'~ :a ~ 8 o g a" .., <"::I n ~ s..g- 5: ~ ~5 Q.. >-l o 0.. 5""'" if .. ~~ ~ i~ iiii !~ ~~ ..~ ~ JIi... '.. .~..IJi.. ,...... "'-.. ~,. ;'::t~j. f!!'\J ~i~l~ ~......... ~.~ '. r '. . . \ "I" a ~ fill - ~ .. tJ'i ~ ~ \~ L ~ ,... .... ~ ~ 03 -ra O. ~~ - - ~~ CJ)CJ) ~~. o S 9.. co en --" -''''_'"'!''"~_c _~ -.<- ~;i~ '~., - . < ,~~~~I'TI"I"'~I . -. ,.~ . C.C., A MINOR BY HIS PARENTS R.C. AND T.C., Petitioners : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. SOUTH MIDDLTON : NO. 2001-6841 CNIL TERM SCHOOL DISTRICT BOARD OF DIRECTORS, : CNIL ACTION - LAW Respondent IN RE: PETITIONERS APPEAL FROM ADJUDICATION OF BOARD BEFORE GUIDO, J. ORDER OF COURT AND NOW, this J.I/~ day of JANUARY, 2002, upon consideration of the appeal from the Adjudication and Decision of the Board of School Directors of South Middleton School District dated November 5, 2001, and upon review of the record created and stenographically recorded in connection therewith, the Adjudication and Decision of the Board is AFFIRMED and the Appeal is DENIED. ~e-'oo<,~l ~r>-0~<'j {/'Galen R. Waltz, Esqui:e ~ For the Plaintiff ~hilip H. Spare, Esquire For the South Middleton School District c EdWMd:;;:3J / O} :;;0; l "R~5 :sld I ~if!fl~,~T1!IJ ~ ^ ,~ ",""P. ~ '. ,~'I " &~~~.~:1ii~fil~";"-' . ',-- '~ ..._iOiI ~j:~~ "",--' . ~.4,'~':"iH![!J:i&:-*l~~mt;@Jj."'1;_f-"'~"""'" filL1 . ~', ~, -, ,- ,~, ",'"-._"~,,.,,",,~- Jl5Jij' "~oil ~'-'- ~.o_""","' ~ jL" ~~= ;'\F\}~\)\:HC\:. (':_' .q -r~ .., ',1"'>"'; ,...".t,lrl'T"')\! Jr 1,,-;-: ;,\",\,'-:,l,!',\!U ,~\Jl\ 02 J~JI2l\ Ph \: 12 CUMBf:.RU"\1~D COUNi'f PENNSYLVANIA .p,., ~"._,-,<-.-.. "d -'_~ ,,~. --",-,"-.""~,-.,,,,~.,,..,~ , -.eq ~ g I' "~-~~'"" . ,'''.- --,~,<:"'-~:~','^' ,. '"~-,-~- . C.C., a minor By his parents R.C. and T.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Petitioners : NO. 2001-6841 CML V. SOUTH MIDDLETON SCHOOL DISTRICT BOARD OF DIRECTORS, Respondent CIVIL ACTION - LAW IN RE: PETITIIONERS APPEAL FROM ADJUDICATION OF BOARD BEFORE GUIDO, J. OPINION AND ORDER OF COURT The above juvenile (hereinafter C.c.) was charged with violating South Middleton School District Policy #227 dealing with controlled substances. A disciplinary hearing in connection with the charges was held before a committee of the School Board on October 18,2001. On November 5,2001, the full Board adopted the findings and recommendations ofthe hearing committee. By unanimous vote, C.C. was expelled for the remainder of the 2001-2002 school year and for the entire 2002-2003 school year.l C.C. and his parents (hereinafter "Petitioners") have appealed the Board's action. They ask us to reverse the Board's decision to expel him for the following reasons: (1.) His due process rights were violated in that the Board failed to compel the attendance of certain witnesses at the disciplinary hearing held in connection with the charges. I However, he was emolled in an alternative education program. Furthermore, he may apply for readmission to regular classes in the 2002-2003 school year, if certain conditions aTe met. , " - ~'--'I', .. , . . ,= - NO. 2001-6841 CIVIL (2.) Certain necessary findings of fact were not supported by the record. Scope of Review. Section 754 ofthe Local Agency Law2 governs our scope ofreview in the disposition of this appeal. If the record is complete, as it is in the case at bar, we must affirm the Board's decision unless C.C.'s constitutional rights were violated, an error of law was committed, the procedure before the agency was contrary to statute, or necessary findings offact are not supported by substantial evidence. 2 P.s. S 754(b). Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129,674 A.2d 1056 (1996). FACTUAL BACKGROUND The hearing in this matter was held pursuant to Section 1318 of the Public School Law of 1949 which provides: Suspension and expulsion of pupils. Every principal or teacher in charge of a public school may temporarily suspend any pupil on account of disobedience or misconduct, and any principal or teacher suspending any pupil shall promptly notify the district superintendent or secretary of the board of school directors. The board may, after a proper hearing, suspend such child for such time as it may determine, or may permanently expel him. Such hearings, suspension, or expulsion may be delegated to a duly authorized committee of the board, or to a duly qualified hearing examiner, who need not be a member ofthe board, but whose adjudication must be approved by the board. 24 P.S. S 13-1318. The hearing in this case was conducted by a duly authorized committee of the Board. Both C.C. and his parents participated in the hearing and were represented by counsel. 22 P.S. ~ 754. 2 !i~h~", ,}~~~i([c '" _ _ _, -'""-:~ "1- -~- - -. . NO. 2001-6841 CIVIL The only witnesses to testify at the hearing were an assistant principal, C.C., and a psychologist on behalf of C.C. The assistant principal testified as follows: MR. GALLAGHER: On September 10th, 2001, Mr. Mancuso and myself were provided information regarding the presence of pills in an English class at the high schoo!.3 On September 12th, 2001, we began calling the students from that class to the office. We asked the students if they witnessed anybody with pills or heard any information about the pills. While questioning one student, C.C. 's name came up as a student with a bottle of pills. 4 I did call C.c. to the office. When C.C. was questioned, he denied any involvement and stated the bottle of pills that were in question that I asked him about were, in fact, a bottle of Tic Tacs, although he did not have the bottle of Tic Tacs with him at that time. We continued questioning students. After questioning another student who admitted to us that he did purchase pills from him - - I called C.c. in for more questioning. At that time, C.c. admitted to receiving a bottle of Aderol pills from another student to sell. He admitted to selling pills to a number of students in school on or about September 6th, 2001. He stated students usually paid a dollar for two pills. In addition, he stated he sold about three pain pills to another student for a dollar each. He gave some money back to the student who supplied the Aderol pills. The students who C.C. stated were sold pills were questioned and confirmed they received the pills from C.C.5 3 Notes of Testimony, p. 8. 4 Petitioners' counsel made several hearsay objections to portions of the assistant principal's testimony. These objections were properly overruled since the out of court statements were not offered for the truth of the matter asserted. Rather, as the assistant principal stated, they were offered to explain why C.C. was interviewed and reinterviewed regarding the incident. 5 Notes of Testimony, pp. 9-10. The hearsay objection to this last statement should have been sustained. Therefore, it cannot be used to support any findings of fact. Zajac v. A/toona Housing Authority, 156 Pa. Commonwealth 209, 626 A.2d 1271, (1993). 3 :~'i'~t'~~"~1~'--'1,. ,."" _ ,.~_,._. .- '~".j - . h:- ~,<, ,_0 , .~ NO. 2001-6841 CIVIL When called as a witness by his own counsel, C.C. freely admitted his involvement in selling the pills. His testimony included the following: Q. How much did you charge for these pills? A. It was a dollar for two pills. Q. You received money? A. Yes. Q. What did you do with the money? A. Gave it back to Q. You gave it - - now, was the person you received the pills from? A. Yes. Q. Did you give all the money back to ? A. Yes. Q. You didn't keep any for yourself? A. No. Q. SO now I've got to ask this question: why would you take such a risk, assume all the risk and turn all the money back to this other person and not keep any for yourself? A. Well, basically I just did it to try to look cool, like, make myself look - - I don't know - - more popular. All it does is get me in trouble.6 On cross examination C.C. gave more details of his involvement: Q. First, C.C. how many pills was it that you sold? A. Around, roughly about 60 to 65 pills. Q. Now, did approach you, or did you approach about it? A. I asked about why he was, you know, repeatedly jumping, like, a lot of active stuff, and he told me he had ADHD. And I asked ifhe took any medication, and he told me he took Adero!. And I had questioned him about ifhe ever decided to sell any, and he agreed with me. And he brought the pills the next day. Q. Was it one conversation? A. It was - - well, there was one conversation. And then he said he was going to bring it the next day, and he didn't bring it. And then the next day I asked that he bring it, and he brought it in the next day. Q. Did he give you more - - 'Notes of Testimony, pp. 27-28. 4 i~,J~",,~, Jr,L::.. ;-~'" ~---'-' ,- ;~',~Ic" ,-~, - " ~r~ - NO. 2001-6841 CIVIL A. Yes. Well, at the end of the day, I gave him the bottle back, and he refilled it and gave it to me the next day. And it happened for three days, three days. I gave him the empty bottle, and he refilled it for three days.7 As to C.C. 's knowledge of what he was selling, the following exchange took place: Q. Now, the person that provided you with the drugs, did he tell you or did they tell you that it was Aderol? A. Yes.s DISCUSSION Due Process Violations. The Due Process Clause of the 14th Amendment to the United States Constitution mandates that a student facing expulsion "must be given some kind of notice and afforded some kind of hearing." Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729 (1975). The minimum due process requirements for expulsion proceedings in this Commonwealth are codified in Section 12.8 of the Rules and Regulations ofthe State Board of Education.9 Petitioners contend that South Middleton's Board violated subsections b(l) (vi) and (vii) of Section 12.8, which provide as follows: Hearings. (b) A formal hearing is required in all expulsion actions. (1) The following due process requirements are to be observed with regard to the formal hearing: (vi) The student has the right to request that any (witnesses against the student) appear in person and answer questions or be cross- examined. (vii) The student has the right to testify and present witnesses on his own behalf. 'Notes of Testimony, pp. 31-32. 8 Notes of Testimony, p. 38. 922 Pa. Code S 12.8. 5 :il',$-~~r~ ""~- _-.J -'- ~." ."-" ''''I''': . I" NO. 2001-6841 CIVIL 22 Pa. Code 12.8 b(l) (vi) and (b)(1) (vii). Petitioners argue that the Board violated Section 12.8 (b )(1 )(vi) because those students to whom C.C. had allegedly sold the controlled substances were not called as witnesses. However, those students were not central to the administration's case. They merely provided the background to explain why the investigation proceeded as it did. C.C.'s own admissions to administration officials provided both the basis for the charges and the evidence upon which the adjudication was based. Petitioners have not cited any authority for the proposition that Section 12.8 (b )(1 )(vi) requires the District to call every witness to an alleged incident. The logical reading ofthat section would require the presence of only those witnesses upon whom the District relies to prove the charges. In the instant case, those witnesses were present and were subj ect to cross examination.lO Petitioners further argue that the District violated Section l2.8(b )(1 )(vii) when it failed to issue subpoenas to compel the attendance of certain students to testify on C.c. 's behalf. While that section gives the student "the right. . . to present witnesses on his own behalf' it does not require the Board to compel the attendance ofthose witnesses. Petitioners have not cited, nor could we find, any authority in support of this proposition.l] Since there is nothing in the record to indicate that the Board prevented C.C. from calling any witnesses on his behalf, we find no violation of his due process rightS.l2 10 Furthermore, the transcribed record does not contain any objection by petitioners' counsel to the absence of those wi1nesses. Therefore, the issue has been waived. Lewis v, School District of Philadelphia, 690 A.2d 814 (pa. Commonwealth 1997). 11 Nor did petitioners cite any authority for the proposition that the Board even had the power to compel the attendance of those wi1nesses by supoena. 12 The transcribed record is also void of any objection by petitioners' counsel to the absence of bis wi1nesses or bis inability to compel their attendance. Therefore, this issue has likewise been waived. Lewis v. School District of Philadelphia, supra. 6 ~~"~""':'''1'?, '. ,~. ,-..-c----~,,'~,' .'''' ,__, t.. ~I:' """,- ,- , . NO. 2001-6841 CIVIL Sufficiency of Evidence to Support Findings of Fact. Petitioners challenge the following findings of fact adopted by the Board: 3. Over a period of three school days beginning on or about September 6, 2001, while at the High School, Student sold 60-65 tablets of a controlled substance, the prescription medication Adderall, to other students at a price of two tablets for $1.00. 4. Over a period ofthree school days beginning on or about September 6, 2001, while at the High School, Student sold three tablets of an unidentified pain medication to other students at a price of'$I.OO each. They argue that those findings of fact cannot stand without scientific evidence as to the nature of the substances sold by C.C. We disagree. We must accept the Board's findings offact if they are supported by substantial evidence. "Substantial evidence has been described as 'more than a mere scintilla of evidence and that which a reasonable mind might accept as adequate to support a conclusion." Kish v. Annville-Cleona School Dist., 165 Pa. Commonwealth 336,645 A.2d 361, 364 (1994). In view of the admissions by C.C., both to the vice principal during the investigation and on the record at the hearing, the conclusion that he sold Aderol and an unidentified pain medication is supported by much more than a "mere scintilla" of evidence.! J 13 We note that the Snperior Court, applying the much more stringent standard of "beyond a reasonable doubt", upheld a defendant's conviction for possession with intent to deliver a controlled substance, even though there is no indication in the record that any controlled substance was admitted into evidence. Commonwealth v. Brown, 701 A.2d 252 (Pa.Super. 1997). The conviction was based primarily upon the testimony of two drug users who stated that defendant directed them to members of his ring, from whom they regularly purchased drugs. They also testified that defendant boasted of making "$15,000 per week from the sale of drugs." ld. at 253. Holding that the evidence was sufficient to sustain the verdict, the Superior Court noted that "The trial court obviously found (the drug users') testimony credible." !d. at 254. 7 :%f1.t~~P,k:,1_-, _ ->10"'."'. -',__'-'-,.,- _C,I",'" "f'C' ~ NO. 2001-6841 CIVIL For the foregoing reasons, we are satisfied that C.C.'s constitutional rights were not violated. Weare further satisfied that the challenged findings of fact are supported in the record by substantial evidence. Therefore, we must affirm the Adjudication and Order of the Board. ORDER OF COURT AND NOW, this 24TH day of JANUARY, 2002, upon consideration of the appeal from the Adjudication and Decision of the Board of School Directors of South Middleton School District dated November 5, 2001, and upon review of the record created and stenographically recorded in connection therewith, the Adjudication and Decision of the Board is AFFIRMED and the Appeal is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. Galen R. Waltz, Esquire For the Plaintiff Philip H. Spare, Esquire For the South Middleton School District :sld 8 ~~~~~~~1jy,-,~, --~'-' - -< ~--" -'., '",'"Ip.. ,~