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HomeMy WebLinkAbout12-6393KAREN HERTZLER, IN THE COURT OF COMMON PLEAS OF PETITIONER :CUMBERLAND COUNTY, PENNSYLVANIA V. WEST SHORE SCHOOL DISTRICT, RESPONDENT NO. 12-6393 CIVIL ORDER OF COURT AND NOW, this 18th day of October, 2012, upon consideration of Karen Hertzler's Petition for Review; IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule shall issue upon the West Shore School District to show cause why the relief requested by the Petitioner should not be granted; 2. An Answer to the Petition for Review and a legal brief in support of the School District's position shall be filed on or before November 26, 2012; 3. An argument on the matter will be held on Friday, December 14, 2012, at 9:00 a. m. By the Court, ~~ r M. L. Ebert, Jr., J. / Tara E. Fertelmes, Esquire Counsel for Petitioner / David W. Brown, Esquire _ ~L.-~ Attorney for Respondent ~ . - - (..B~~o~ C~~ M~ ~ /t.A~ /O~f 9~i~~ 2,c~ _ i, t ~, x.,~ii) CJ+.i~d-~, 1 !' ~ ~,A~-~~~,, „ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER, Petitioner vs. WEST SHORE SCHOOL DISTRICT, Respondent No. 12-6393 CIVIL RESPONDENT'S ANSWER TO PETITION FOR REVIEW AND NOW, comes the Respondent, West Shore School District, and files this Answer to the Petition for Review as directed in the October 18, 2012 Order of Court as follows: 1. Petitioner's statement that this Court has jurisdiction over this matter by reason of Section 933 of Judicial Code, 42 Pa. C.S. ~ 933(a)(ii) and 2 Pa. C.S. § 752 is a legal conclusion, which requires no response. Respondent's legal position on this issue is set forth in the accompanying brief being presented concurrently with this Answer. 2. Admitted. a. Admitted. b. Admitted. c. Admitted. 3. Denied. It is denied that the Order of the West Shore School District. Board of School Directors should be reversed: a. Denied. It is denied that the decision of the West Shore School District Board of School Directors, to uphold the unpaid suspension of Petitioner, was not based upon facts supported by substantial evidence; On the contrary, it is averred that the decision by the Board of School Directors was based upon substantial evidence of record; i. Denied. It is denied that no evidence in the record supports the finding that the results of the harassment investigation in question were subject to any confidentiality requirement. On the contrary, it is averred that there is substantial evidence in the record to support the finding that the results of the harassment investigation in question were subject to confidentiality requirements; ii. Denied. It is denied that evidence is insufficient to support the finding that Petitioner breached any confidentiality requirement. On the contrary, it is averred that there is substantial evidence of record to support the finding that Petitioner breached a confidentiality requirement. b. Denied. It is denied that the evidence was insufficient to show that Small's decision to suspend Petition was not arbitrary and capricious. On the contrary, it is averred that the evidence of record is sufficient to show 2 that Dr. Small's decision to suspend Petitioner was not arbitrary and capricious. i. Denied. It is denied that the evidence was insufficient to support the conclusion that Small's actions were motivated by any reasoning other than that which was arbitrary and capricious. On the contrary, it is averred that the substantial evidence of record supports the conclusions that Dr. Small's actions were not arbitrary and capricious. c. Denied. It is denied that the Board erred as a matter of law in determining that Small's suspension of Petitioner was not an arbitrary or capricious decision. On the contrary, it is averred that the Board's decision in upholding Dr. Small's suspension of Petitioner was not an arbitrary or capricious decision. d. Denied. It is denied that the Board's decision in upholding Petitioner's suspension was not in accordance with the law, in that its legal. determinations were not supported by facts present in the record. On the contrary, it is averred that the Board's decision in upholding Petitioner's suspension was in accordance with the law and that its legal determinations were supported by facts of record. 3 WHEREFORE, the Board of School Directors of the West Shore School District respectfully requests this Honorable Court to uphold its decision and to deny the relief requested by Petitioner. Respectfully submitted, STOCK AND LEADER Dated: November 21, 2012 By: C ~ ~ _ Philip .Spare, Esquire Supreme Court I.D. No. 65200 Gareth D. Pahowka, Esquire Supreme Court I.D. No. 309184 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17401 Telephone: (717) 846-9800 Facsimile: (717) 843-6134 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER, Petitioner vs. WEST SHORE SCHOOL DISTRICT, Respondent No. 12-6393 CIVIL CERTIFICATE OF SERVICE AND NOW, this 21St day of November, 2012, I, Philip H. Spare, Esquire, of the law firm of Stock and Leader, attorneys for Respondent, West Shore School District, hereby certify that I served Respondent's Answer to Petition for Review on the following person listed below via U.S. First Class Mail, postage prepaid: Charles E. Steele, Esquire Steele Schneider 428 Forbes Avenue, Suite 900 Pittsburgh, PA 15219 Respectfully submitted, STOCK AND LEADER, ,~ By: Philip .Spare, Esquire Supreme Court I.D. No. 65200 Gareth D. Pahowka, Esquire Supreme Court I.D. No. 309184 Susquehanna Commerce Center East Suite 600 221 West Philadelphia Street York, PA 17401 (717) 846-9800 KAREN HERTZLER, : IN THE COURT OF COMMON PLEAS OF Petitioner: CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 12-6393 CIVIL WEST SHORE SCHOOL DISTRICT, Respondent: IN RE: ARGUMENT ON PETITION FOR REVIEW ORDER OF COURT AND NOW, this 14th day of December, 2012, after initial hearing in this matter, it is hereby ORDERED AND DIRECTED that the Petitioner shall file a brief regarding her position in the case on or before January 6th, 2012. Copy of this brief will be served upon the Respondent who will be allowed to rely to the brief if he desires and request additional argument if he indicates it is necessary. By the Court, M.L. Ebert, Jr., f Tara Hansen, Esquire Charles E. Steele, :Esquire For Petitioner V' Philip H. Spare, Esquire For Respondent :mlc 1?. ?S M?,i J ? , .. C:) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER PETITIONER CASE NO. 12-6393 CIVIL V. NOTICE OF APPEAL c, WEST SHORE SCHOOL s , DISTRICT, zrn a m RESPONDENT z m Filed on Behalf of Petitioner: <C2 o KAREN HERTZLER A r> Counsel of Record for this Party: Charles E. Steele, Esquire PA I.D. No. 36583 STEELE SCHNEIDER 428 Forbes Avenue, Suite 900 Pittsburgh, PA 15219 (412)235-7682 (412) 235-7693/facsimile csteele@steeleschneider.com 00 C � 1.2-0 � Mai fed � +u;►eo� IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER PETITIONER CASE NO. 12-6393 CIVIL V. WEST SHORE SCHOOL DISTRICT, RESPONDENT NOTICE OF APPEAL Notice is hereby given that Karen Hertzler, Petitioner in above-named, hereby appeals to the Commonwealth Court of Pennsylvania from the order entered in this matter on the 26`h day of February, 2013. This order has been entered in the docket as evidenced by the attached copy of the docket entry. Res tfully subm L Ll-. Charles E. Steele, squire PA I.D. No. 36853 STEELE SCHNEIDER 428 Forbes Avenue, Suite 900 Pittsburgh,PA 15219 (412)235-7682 (412)235-7693/facsimile csteele@steeleschneider.com 1 r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER PETITIONER CASE NO. 12-6393 CIVIL V. WEST SHORE SCHOOL DISTRICT, RESPONDENT REQUEST FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure. ectfully submitt , Charles E. Steele, Esquire PA I.D. No. 36853 STEELE SCHNEIDER 428 Forbes Avenue, Suite 900 Pittsburgh, PA 15219 (412)235-7682 (412)235-7693/facsimile csteele@steeleschneider.com 2 x , x. KAREN HERTZLER, IN THE COURT OF COMMON PLEAS OF PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA V. WEST SHORE SCHOOL DISTRICT, ; RESPONDENT NO. 12-6393 CIVIL IN RE: PETITION FOR REVIEW ORDER OF COURT AND NOW this 26th day of February, 2913, upon consideration of Petitioner's Petition for Review, the briefs filed by the parties and after argument, IT IS HERESY ORDERED AND DIRECTED that Petitioner's Petition for Review is DISMISSED. By the Court, M. L. Ebert, Jr., J. Charles E. Steele, Esquire Tara E. Hansen, Esquire cY Counsel fa'r Petitioner . , 428 Forbes Avenue, Suite 990 ' ' , Pittsburgh, PA 15219 7-;. Philip H. Spare, Esquire Gareth D. Pahowka, Esquire Counsel for Respondent Susquehanna Commerce Center East, Suite 699 221 West Philadelphia Street York, PA 17401 KAREN . * 'BEST SHOWSONOOL DMTRICT J. Fi 4 On OCNOW 12; 2 Ft ww :8 we*shmo-sohl"VOWAA 1 W"441 3 Thobj x A $ � . . _ w .. n 4 F�af`1=its,P. 1 Statement of Facts Petitioner is employed as the principal at New Cumberland Middle School (hereinafter"NCMS"), located within the West Shore School District.5 Petitioner has been employed by Respondent since 2003.6 On or about October 17, 2011, Kandra Beardsley(hereinafter"Beardsley"), then a teacher at NCMS, filed an internal harassment complaint against Petitioner! On or about November 10, 2011, Beardsley filed another internal complaint against Petitioner accusing her of retaliations After receiving these complaints, Respondent conducted separate investigations of each one.e Suzanne Tabachini (hereinafter"Tabachini"), Director of Human Resources, investigated the harassment complaint, while David Zuilkoski (hereinafter"Zuilkoski"), Assistant Superintendent, investigated the retaliation complaint.10 Petitioner was informed by both Tabachini and Zuilkoski that the investigations were a confidential process." Neither Tabachini nor Zuilkoski further defined confidentiality to Petitioner.12 Additionally, Petitioner did not ask what keeping the investigation confidential meant.13 On or about December 23, 2011, Petitioner received a letter from Jerry Small (hereinafter"Small*), Superintendent for Respondent,which indicated that there was "insufficient evidence to support a violation of Board Policy 448, unlawful harassment".14 This letter was not marked as confidentiai.1s After learning the results of the s Findings of Fact,p. 1,11 Findings of Fact,p.3,129 Findings of Fact,p. 1,15 Finders of Fad,p. 1,16 Findings of Fad,p.2,17 t0 Findings of Fact,p. 1-2.12,3, 8, 12 i' Findings of Fact,p. 2;119, 13;see also A Exs. 2 and 9. 12 Tr.at 122, 139-40 '3 Finings of Fact,p.4.134-36 "Findings of Fact,p. 2,414;A. Ex. 11 '$Tr.at 25 3 MAP All, 11 her l , >, e RWP - MIMI Cpl W#djng ' fcw Sh&.W ft dSI F� of,Fes,p.2,.1 5 3., A x. 13 Dt 3. R p.3; 23 Tr. Itf 4 FWw*Vs of Fad.p.3, 4 (hereinafter"APP")job performance standards for her position.25 The APP standards applicable to Petitioner require that she "...practice competent problem analysis and resolution, and decision making in all aspects of building/department operations..."and that she exercise prudent judgment.26 Petitioner served her suspension from January 18, 2012 to January 20, 2012.27 As part of her duties as principal of NCMS, Petitioner received general training and written documentation on conducting investigations and the need for confidentiality.28 in addition to her training, Petitioner frequently faced situations which required her to maintain confidentiality, including conducting harassment investigations.29 However, Petitioner admitted that she was unsure whether it was proper to divulge the results of an investigation once it had been concluded.30 Even though she was not sure, Petitioner did not ask whether she could discuss the results of the investigaition.31 After conducting an evidentiary hearing, the Board did not find credible Petitioner's testimony that she did not believe the results were confidential and that she had a compelling professional necessity to disclose the results.32 The Board also concluded that Petitioner received the results of the investigation in confidence and therefore that Small had a rational basis for imposing the three day suspension.33 The Board upheld Petitioner's suspension. Petitioner now appeals. 23 Findings of Fact,p. 5,150 28 Findings of Fact,p. 5,145-46 27 Findings of Fact,p. 5,151 2°Findings of Fact, p.3,131 n Findings of Fact,p.3-4,930,40 30 Findings of Fact,p.3,133 31 Findings of Fact,p.4,134-36 32 Findings of Fact,p.4,137-38 33 Findings of Fact, p.6,14. 7 5 z `3 J� 4 a Al y M �I �t R+ 7 � Commoutmeattf; Court of i9magy1bania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2 100 Michael Krimmel,Esq. P.O.BOX 6918S Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185 March 22, 2013 wr.pacourts.us s rr? NOTICE OF DOCKETING APPEALS r RE: Hertzler, K v. West Shore SD C-n C) 401 CD 2013 Z Filed Date: March 18, 2013 Trial Court Docket No: Case No. 12-6393 CIVIL A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation,certification and transmission of the record. The address to which the Court is to transmit the record is set forth on the next page of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa.R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court;in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). Theaddresses to which you acwtatransmit documents to this Court are set forth on the next page offts Notice. If you have special needs, please contact this court in writing as soon as possible. Attomey Name Participant Name Participant Type Charles Ellis Steele, Esq. Karen Hertzler Appellant Gareth David Pahowka, Esq. West Shore School District Appellee Philip Haring Spare, Esq. West Shore School District Appellee .-......- .. ._ _ _ _ Address all written communications and direct all filings to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717)255-1650 Filings may be made in person between 9:00 a.m. and 4:00 p.m. (except Saturdays, Sundays, and holidays observed by the Pennsylvania courts), by mail as provided by general rules, or as otherwise permitted by general rules of court. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER PETITIONER CASE NO. 12-6393 CIVIL V. CONCISE STATEMENT OF THE WEST SHORE SCHOOL MATTERS COMPLAINED OF ON DISTRICT, APPEAL RESPONDENT Filed on Behalf of Petitioner: KAREN HERTZLER Counsel of Record for this Party: Charles E. Steele, Esquire PA I.D. No. 36583 STEELE SCHNEIDER 428 Forbes Avenue, Suite 900 Pittsburgh, PA 15219 n r•a C:; C © v1 (412) 235-7682 -0= (412)235-7693/facsimile zm --0 m zrr°- �� y --` cy csteele @steeleschneider.com c ° z o Zp Z c , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KAREN HERTZLER PETITIONER CASE NO. 12-6393 CIVIL V. WEST SHORE SCHOOL DISTRICT, RESPONDENT CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL Karen Hertzler(hereinafter, "Appellant") files the following concise statement of matters complained of on the appeal in the above matter,pursuant to the direction issued to Appellant by this Honorable Court pursuant to Pa.R.A.P. 1925(b): 1. Whether the Cumberland County Court of Common Pleas erred when it determined that there was substantial evidence to uphold the Appellant's suspension for three days without pay. 2. Whether the Cumberland County Court of Common Pleas erred when it determined that there was substantial evidence to uphold the Board's determination that the results of the relevant investigations were subject to a confidentiality requirement. 3. Whether the Cumberland County Court of Common Pleas erred when it determined that the Board did not arbitrarily or capriciously disregard evidence when it determined that the results of the relevant investigations were subject to a confidentiality requirement, despite the fact that no record evidence established that the results of the relevant investigations were confidential. 2 4. Whether the Cumberland County Court of Common Pleas erred when it upheld the Board's determination that the Appellant's testimony was not credible,regarding the fact that she did not believe the results of the investigations were confidential,in part because they were not labeled confidential. 5. Whether the Cumberland County Court of Common Pleas erred when it determined that the board did not capriciously disregard facts concerning whether the results of the relevant investigations were confidential, in light of the APP. 6. Whether the Cumberland County Court of Common Pleas erred when it determined that the Board did not capriciously disregard evidence when it ignored the fact that Beardsley, herself, disclosed details about the relevant investigations. Resp tfully submitted, Charles E. Steele, Esquire PA I.D. No. 36853 STEELE SCHNEIDER 428 Forbes Avenue, Suite 900 Pittsburgh,PA 15219 (412)235-7682 (412)235-7693/facsimile csteele@steeleschneider.com 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the CONCISE STATEMENT OF THE MATTERS COMPLAINED OF ON APPEAL has been served upon counsel via First Class, postage-prepaid U.S. Mail this 8h day of April, 2013, at the following address: Philip H. Spare, Esquire Gareth D. Pahoawk, Esquire Susquehanna Commerce Center East, Suite 600 221 West Philadelphia Street York, PA 17401 Honorable Judge M.L. Ebert, Jr. 1 Courthouse Square Carlisle, PA 17013 �C f Charles E. Steele, Esquire 4 4` KAREN HERTZLER, IN THE COURT OF COMMON PLEAS OF PETITIONER CUMBERLAND COUNTY, PENNSYLVANIA V. WEST SHORE SCHOOL ,-.- a° �' �• -*; DISTRICT, ; RESPONDENT NO. 12-6393 CIVIL 2> c3 r,� IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 (a) Ebert, J., May 1, 2013 — Petitioner, Karen Hertzler, has filed this timely appeal from the Order of Court, dated February 26, 2013, dismissing her Petition for Review and affirming the decision of the West Shore School District Board of School Directors upholding Petitioner's three day suspension. Discussion This Court previously filed a thirteen page Opinion on February 26, 2013, which deals with the factual and legal issues presented in this case at length. This Opinion is filed pursuant to Pa.R.A.P. 1925(a) to supplement the prior Opinion and more specifically address those issues raised in Petitioner's Concise Statement of Matters Complained of on Appeal. Each matter complained of on appeal is addressed seriatim: 1. Whether the Cumberland County Court of Common Pleas erred when it determined that there was substantial evidence to uphold the Appellant's suspension for three days without pay. RESPONSE: This issue was adequately addressed in this Court's Opinion and Order dated February 26, 2013. S 2. Whether the Cumberland County Court of Common Pleas erred when it determined that there was substantial evidence to uphold the Board's determination that the results of the relevant investigations were subject to a confidentiality requirement. RESPONSE: There was substantial evidence to uphold the Board's determination that the results of the investigations were subject to a confidentiality requirement. Suzanne Tabachini, Director of Human Resources, and David Zulikoski, Assistant Superintendent, investigated the complaints made against Petitioner.' Petitioner was informed by both Tabachini and Zulikoski that the investigations were a confidential process.2 Petitioner was unsure whether she could divulge the results of an investigation, but did not ask whether she could do so.3 Viewing the evidence in the light most favorable to the prevailing party, in this case, Respondent, there was sufficient evidence that Petitioner was informed the process was confidential and that process included the results of any investigations. This Court found sufficient evidence to uphold the Board's determination and did not err. 3. Whether the Cumberland County Court of Common Pleas erred when it determined that the Board did not arbitrarily or capriciously disregard evidence when it determined that the results of the relevant investigations were subject to a confidentiality requirement, despite the fact that no record evidence established that the results of the relevant investigations were confidential. Petition for Review, Ex. A: Findings of Fact and Conclusions of Law of Board of School Directors, p. 1-2; 72' 3, 8, 12, Sept. 20, 2012 (hereinafter"Findings of Fact Findings of Fact, p.2; 19, 13; See also A Exs. 2 and 9. 3 Findings of Fact, p. 3-4; ¶33, 34-36 2 RESPONSE: This issue was adequately addressed in this Court's Opinion and Order dated February 26, 2013. 4. Whether the Cumberland County Court of Common Pleas erred when it upheld the Board's determination that the Appellant's testimony was not credible, regarding the fact that she did not believe the results of the investigations were confidential, in part because they were not labeled confidential. RESPONSE: This issue was adequately addressed in this Court's Opinion and Order dated February 26, 2013. 5. Whether the Cumberland County Court of Common Pleas erred when it determined that the Board did not capriciously disregard facts concerning whether the results of the relevant investigations were confidential, in light of the APP. RESPONSE: The APP, Administrative Performance Plan, applicable to Petitioner required that she "...practice competent problem analysis and resolution, and decision making in all aspects of building/department operations..." and that she exercise prudent judgment.4 While the APP did not specifically state that results of investigations were to be confidential, the Board did not capriciously disregard that fact. There was evidence presented that as part of her training as a principal and what she was told regarding confidentiality, Petitioner did not exercise prudent judgment or decision making when she divulged the results on the investigation. This Court did not err. 4 Findings of Fact, p.5; ¶45-46 3 6. Whether the Cumberland County Court of Common Pleas erred when it determined that the Board did not capriciously disregard evidence when it ignored the fact that Beardsley, herself, disclosed details about the relevant investigations. RESPONSE: This issue was adequately addressed in this Court's Opinion and Order dated February 26, 2013. Conclusion For the reasons addressed in both the prior Opinion and this supplemental Opinion filed pursuant to Pa. R.A.P. 1925 (a), this Court did not err dismissing Petitioner's Petition for Review and upholding the Board's decision. By the Court, M. L. Ebert, Jr., J. harles E. Steele, Esquire Tara E. Hansen, Esquire Counsel for Petitioner w4hilip H. Spare, Esquire Gareth D. Pahowka Counsel for Respondent b 4 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: KAREN HERTZLER Vs. WEST SHORE SCHOOL DISTRICT 2012-6393 CIVIL TERM 401 CD 2013 The documents comprising the record have been numbered from No. I to 313, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 5/9/2013. David-D, BuW, Prot notary Alma Kostjerevac, IT""fkputy An additional copy of this certificate is enclosed. Please sign and date COPY, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full,true and correct copy of the whole record ofthe case therein stated. wherein KAREN HERTZLER Plaintiff, and WEST SHORE SCHOOL DISTRICT Defendant, as the same remains of record before the said Court at No. 2012-6393 of Civil Terrn,q01 CI).20)3 In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seat of said Court this 9TH day of MAY A, D., 2013 Pm,honotvv I. Kevin A,Hess President Judge of the Ninth Judicial District. composed of the County of Cumberland, do certify that David D.Buell . by the annexed record, certificate and attestation were made and given,and who, in his own proper handwriting,thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County,was,at the time of so doing.and now Is Prothonotary in and for said County of Cumberland in the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicature as elsewhere,and that the said record, certificate and attestation are in due form of law and made by the pro er officer. t President Judge Commonwealth of Pennsylvania County of Cumberland ss: 1. David D.Buell . Prothonotary of the Court of Common Pleas in and for he said County. do certify that the Honorable Kevin A.Hess by whom the foregoing attestation was made.and who has thereunto subscribed his name,was,at the time of making thereof,and still is President Judge of the Court of Common Pleas.Orphan'Court and Court of Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified,to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 9TH d-av of MAY A.D. 2013 Prothonotarv, n p No. Term 19 2012-6393_.0 v LT-crrn—� 401 CD 2013 KAREN HERTZLER Versus WEST SHORE SCHOOL DISTRICT EXEMPLIFIED RECORD From Cumberland County Debt, Int. from Costs Entered and Filed Prothonotary. Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county c '' Cumberland in the Commonwealth of Pennsylvania 2012-6393 Civil Term to No. 401 CD 2013 Term. 14 is contained the following: COPY OF Appearance DOCKET ENTRY KAREN HERTZLER vs. WEST SHORE SCHOOL DISTRICT **SEE CERTIFIED COPY OF DOCKET ENTERIES** L.LAUW=.L-LCL11U 1-UL111t-y r.LUL-11U11Ut-Ct1 Y - ci V.L L J-L;C 1:'CLY C is li.JJ11 Civil Case Print 2012-06393 HERTZLER KAREN (vs) WEST SHORE SCHOOL DISTRICT Reference No. . : Filed. . . . . . . . . 10/12/2012 Case Ty e. . . . . : PETITION Time. . . . . . . . . : 3:10 Judgment. . . . . . 00 Execution Date 0/00/0000 Judge Assigned: EBERT M L JR Jury Trial. . . . Disposed Desc. : Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1. : 401 CD 2013 Higher Crt 2 . : General Index Attorney Info HERTZLER KAREN PETITIONER FERTELMES TARA E WEST SHORE SCHOOL DISTRICT RESPONDENT SPARE PHILIP ,H Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 10/12/2012 PETITION FOR REVIEW - BY TARA E FERTELMES ATTY FOR PETITIONER ------------------------------------------------------------------- 10/19/2012 ORDER OF COURT DATED 10-18-12 IN RE PETITION FOR REVIEW - RULE ISSUED UPON DEFT - ANSWER SHALL BE FILE BY NOVEMBER 26 2012 - ARGUMENT SCHEDULED FOR DECEMBER 14 2012 AT 9 AM - BY THE COURT M L EBERT JR J - COPIES MAILED 10-19-12 -------------------------------------------------------------------- 11/26/2012 RESPONDENT'S ANSWER TO PETITION FOR REVIEW - BY PHILIP H SPARE ATTY FOR WEST SHORE SCHOOLDIST ------------------------------------------------------------------- 2ID-2.6-012/11/2012 PRAECIPE TO ADD DOCUMENTS TO RECORD - BY PHILIP H SPARE ATTY FOR PLFF ------------------------------------------------------------------- 251 12/20/2012 ORDER OF COURT-DATED 12-14-2012 12-20-- PETITIONER SHALL FILE A BRIEF - ML EBERT JR J COPIES MAILED 2012 ------------------------------------------------------------------- .252-26 412/26/2013 OPINION AND ORDER OF COURT - 2/26/13 PETITION FOR REVIEW - ORDERED THAT PETITION IS DISMISSED - BY THE COURT M L EBERT JR J COPIES MAILED 2/26/13 ------------------------------------------------------------------- ,266-.jq0 3/18/2013 NOTICE OF PLFF APPEAL TO COMMONWEALTH COURT - BY CHARLES E STEELE ATTY FR **MAILED TO COMMONWEALTH COURT** ------------------------------------------------------------------- abl 3/18/2013 REQUEST FOR TRANSCRIPT - BY CHARLES E STEELE ATTY FOR PLFF ------------------------------------------------------------------- .2r? 93/19/2013 ORDER OF COURT - 3/19/13 - IN RE: NOTICE OF APPEAL - CONCISE STATEMENT OF ERRORS - BY THE COURT M L EBERT JR J COPIES MAILED 3/19/13 ---------------------------------------------- --------------------- 3/25/2013 COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 401 CD 2013 ------------------------------------------------------------------- ; ,?2.-3044/09/2013 TRANSCRIPT OF PROCEEDINGS - 12/14/12 - BEFORE HONORABLE M L EBERT JR J ------------------------------------------------------------------- 30,5-3() CHARLES COARLES NCISE STASTELLE TEMENT OF THE MATTERS COMPLAINTED OF ON APPEAL - BY E ATTY FOR PLFF ------------------------------------------------------------------- 30q_31;Z 5/01/2013 IN RE OPINION PURSUANT TO PA RAP 1925 A DATED 5-1-13 - BY THE COURT M L EBERT JR J - COPIES MAILED S-1-13 ------------------------------------------------------------------- 5/09/2013 NOTICE OF DOCKET ENTRIES MAILED TO PHILIP H SPARE ESQ AND CHARLES E STEELE ESQ - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - Escrow Information Fees & Debits Beg Sal Pmts/Ad! End Sal PETITION 65.25 65 . 25 .00 TAX ON PETITION so .50 .00 SETTLEMENT 9.50 9. 50 . 00 AUTOMATION FEE S . 00 5 .00 .00 L uumoerlana uuounty Protnonotar • 2 Civil Case Print 012-06393 y s Ut�lce HERTZLER KAREN (vs) WEST SHORE SCHOOL DISTRICT Reference No. . : Case Ty?e. . . . . Judgmen " " " Filed. Judge Assigned: EBERT M L JR . 00 Time 10/12/2012 Disposed Desc. : Execution Date 3:10 ----- Case Comments --__ Jury Trial Date 0/00/0000 JCP FEE ------ DisPOsed Date. /0000 APPEAL HIGH CT 23 .50 Higher Crt 2• •' 0/00/0000 APPEAL 2013 57. 00 23 .50 . 00 ----- . 00 60 160 . 75 ------- ------------ ******************************************* **************** - End .-of.._C **************ase -Informati TRUE COPY FROM RECORD In Testimony whereof,l here unto set.my hand and the seal of'said Court of Carlisle,pa; This�_day of , 2 - ,, tary 0 CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) Commonwealth Court of PA To the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of'the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: KAREN HERTZLER Vs. C= C" WEST SHORE SCHOOL DISTRICT 2012-6393 CIVIL TERM C) 401 CD 2013 > The documents comprising the record have been numbered from No. 1 to 30, attached hereto as Exhibit A is a list of the documents correspondingly numbeRd an d-::,' identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 51912013. David D. Buell,Frothon ary Alma Kost erevac, Depu v y An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title f W IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen Hertzler, Appellant ; , ; CD V. No. 401 C.D. 2013 `J Submitted: August 16, 2013 ° West Shore School District ``' BEFORE: HONORABLE RENEE COHN .i UTBE"LIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION BY JUDGE LEAVITT FILED: October 7, 2013 Karen Hertzler appeals an order of the Court of Common Pleas of Cumberland County (trial court) that upheld her three-day suspension from her position as a school principal. The West Shore School District suspended Hertzler for sharing the news with a colleague that she had been exonerated by an investigation conducted by the School District into a teacher's charge that Hertzler had harassed her. Hertzler contends that her suspension was unfounded because the School District did not have a policy that required her to keep her exoneration a. secret, and it did not give her a specific directive to that effect. We agree and, therefore, reverse and remand. Hertzler is the principal at the New Cumberland Middle School, which is in the West Shore School District. On October 17, 2011, a teacher at that school (complainant) filed a complaint with the School District accusing Hertzler of harassment. On November 10, 2011, the teacher filed a second complaint accusing Hertzler of retaliation. The School District instituted an investigation. Two months later, Jemry Small, the School District Superintendent, advised Hertzler by letter that there was "insufficient evidence" to support either of the two charges. Reproduced Record at 231a (R.R. The letter ended with the statement, "[t]his notification to you concludes the investigations." Id. Shortly thereafter, Small called Hertzler into her office. She asked Hertzler if she had disclosed the outcome of her investigation to anyone outside her family. Hertzler responded that she had shared this news with one faculty member at the school. -On January 17, 2012, Small suspended Hertzler for three days for not keeping her exoneration a secret. Small's letter of suspension explained as follows: On Tuesday, January 10, 2012, you met with me to discuss a breach of confidentiality regarding the findings of a harassment complaint filed against you by a staff member at New Cumberland Middle School. During the meeting the following was discussed: 1. When asked if you shared the results, you stated that you had shared the results with one staff member. Upon hearing this, I confirmed with you that you were indeed told by the investigator, Suzanne Tabachini, that this process was indeed confidential and not to be shared. 2. I also questioned you about receiving a card from staff members who were attending a birthday celebration at New Cumberland Middle School; this card was congratulating you on . being acquitted of the harassment charges. Thus confirming several staff members were aware of the findings [of] the investigation. 2 r' R.R. 235a. Small concluded that in making this disclosure, Hertzler had failed to meet expectations for professional employees set forth in the School District's Administrative Performance Plan. Those expectations include abiding by laws "governing educational and civil rights of students and others;" keeping "the highest degree of confidentiality appropriate to the position;" "competent problem analysis and resolution;" and the exercise of "prudent judgment." Id. Small also charged Hertzler with a violation of the Educator's Code of Conduct, which requires professional employees to keep confidential information that is obtained in confidence. Small's letter advised: [Y]ou will be suspended without pay for a period of three (3) work days beginning Wednesday, January 18 through Friday, January 20, 2012. R.R. 236a. Hertzler served the suspension, and she appealed the suspension. She was given a hearing by the School Board. The School District's case was made principally by testimony from Small, who testified, first, about the investigation of Hertzler. She explained that Suzanne Tabachini, the School District's director of personnel, investigated the harassment complaint, and David Zuilkoski, an assistant superintendent, investigated the retaliation complaint. They each concluded that the evidence was insufficient to support the teacher's charges against Hertzler. Nevertheless, Small was left with "concerns," which she did not specify, that prompted her to meet with Hertzler on January 4, 2012. 3 r Sometime later, Robert Cox, an attorney, telephoned Small and informed her that Hertzler had informed a third party of her exoneration.' On January 10, 2012, Small confronted Hertzler with Cox's report and asked Hertzler "if she shared the results of the investigations with a member outside of her home or residence[.]" R.R. 39a. When Hertzler confirmed the report, Small decided to suspend Hertzler for violating the investigators' instruction that the "investigation process [was] to be kept confidential." R.R. 40a. This was the first time Small disciplined any employee in the School District for a breach of confidentiality. Small conceded in her testimony that there was no School District "guideline" or policy that prohibited the target of an internal investigation from revealing the favorable outcome of an investigation. Small also acknowledged that the fact of the School District's investigation of Hertzler was not a secret because 15 out of 36 employees at the Middle School had been interviewed in the course of the investigation and knew the identity of the complaining party and that her complaint concerned harassment. Given this wide-spread knowledge, Small conceded that it would have been appropriate for Hertzler to inform employees at the Middle School that the investigation was over. However, that disclosure had to be made without revealing the outcome of the investigation. . Small also conceded that the School District did not give complainants a guarantee of confidentiality. Nevertheless, Small believed that the Small did not explain whether Cox represented the complainant or the School District. Small characterized her telephone conversation as "privileged information," which suggests he represents the School District. R.R. 29a. 4 ti complaining teacher had such a guarantee and that it was compromised by Hertzler's disclosure. The School District's letter to Hertzler was not marked confidential. Nevertheless, Small believed that Hertzler should have had the good judgment to treat the letter from the School District as a confidential document. Mary Ellen Urich, a teacher at the Middle School in December 2011, testified that she learned of the investigation, initially, through school gossip. Later, the complaining teacher gave her an account of her harassment complaint against Hertzler because Urich was the union representative. Urich described. the school as "asunder with strife" because it was widely known that the complaining teacher had accused Hertzler of harassment. R.R. 71a. Other faculty members were worried that they would also be accused of wrongdoing and might be caught up in the controversy in some way. Urich testified that she advised Small that the case had dragged on for too long and people needed "some finality brought to these investigations[.]" R.R. 113a. Zuilkoski, an assistant superintendent, testified about his investigation, which was to determine whether Hertzler had retaliated against the complaining teacher for filing a harassment complaint. He recalled that he read a statement to Hertzler that the School District's investigation was considered confidential. He also testified that he "made [it] clear" to the people he questioned "about the confidential nature of the process." R.R. 124a. Zuilkoski testified that Hertzler did not ask any follow-up questions about this statement on confidentiality. 5 r. Tabachini, director of personnel for the School District, testified that she told Hertzler that "this was a confidential process, that [Hertzler] should not speak with anyone about the investigation, most especially [the complaining teacher] and ... that [Hertzler] didn't want to do anything that could be construed as retaliation...." R.R. 140x. Tabachini testified that she assumed that Hertzler understood that the need for confidentiality extended to the outcome. Hertzler was the final witness. She testified that she never received any training or directive from the School District that the fact of her exoneration was to be kept secret. The School District's letter advising her that the investigations were "concluded" was not marked confidential, and it was a practice in the School District to so mark documents that were confidential. Further, Small's letter did not instruct Hertzler to keep the outcome of the investigation a secret; rather, it stated that the investigation was over. Hertzler explained that she understood from Tabachini and Zuilkoski that she was not to speak to the complaining teacher or other School employees about the harassment matter or to interfere in any way in the investigation while it was underway. However, she did not understand that the outcome of the investigation was to be kept confidential.. In any case, the fact that she was being investigated was well known throughout the school and was a source of stress. When she received Small's letter that the investigation was over and that the evidence of harassment was insufficient, Hertzler sent Urich a text message containing one word: "Unfounded." R.R. 169a. Hertzler shared this information with Urich because she had expressed concerns to Hertzler about the impact of the investigation on school morale. Sometime later, Hertzler received a 6 thank-you card from several faculty members with a notation inside that read "Congratulations!" R.R. 234a. Hertzler had not spoken to any of the signatories about her exoneration, and the card itself made no mention of the investigation or its outcome. No one doubts, however, that it was prompted by Hertzler's exoneration. The School Board upheld Small's three-day suspension of Hertzler. It reasoned that Hertzler had the burden of proving her suspension was arbitrary and capricious and that she had not met this burden. The School.Board found that the instruction to Hertzler to keep the investigation a "confidential process" included the outcome. It agreed with Small's claim that Hertzler's disclosure could have a chilling effect upon victims of harassment who might file complaints in the future. Hertzler appealed, arguing that the School District's suspension was not supported by evidence but, rather, resulted from a capricious disregard of the evidence. The trial court did not take additional evidence; it decided the appeal on the basis of the School Board hearing. The trial court concluded that the directive to treat the investigation as a "confidential process" included the outcome of the investigation. The trial court noted that when Hertzler admitted her disclosure to Small, she failed to offer a'mitigating reason for doing so. The trial court also found it noteworthy that Hertzler had "failed" to check with the School District before making the disclosure to Urich. For these reasons, the trial court dismissed her appeal. 7 Hertzler then appealed to this Court. On appeal,2 she again argues that the record does not support her suspension because the School District never established by substantial evidence the existence of a policy or directive that her exoneration was to be kept a secret. It was arbitrary and capricious for the School District to conclude that she should have "known" that she was not permitted to share the fact of her exoneration, which was not part of the investigation. Rather, it was an event that occurred after the investigation was concluded. The Public School Code of 19493 governs the hiring and discipline of school district professional employees, including superintendents, teachers and principals. To dismiss a principal before completion of her contract, the school district has the burden to show that it has serious grounds for such action, as determined by Section 1122(a), such as immorality, felony convictions and willful 2 The Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 —27-2702, establishes a statutory procedure for review of the termination or demotion of tenured professional employees. See Section 1151 of the Public School Code, 24 P.S. §11-1151 and Section 1127 of the Public School Code, 24 P.S. §11-1127. The statutory procedure provides for a hearing before the School Board followed by an appeal to the Secretary of Education. However; discipline of professional employees that involves a sanction other than a demotion or termination is handled differently. In Rike v. Secretory of Education, 508 Pa. 190, 494 A.2d 1388 (1985), the Pennsylvania Supreme Court held that appeals of professional employee discipline that do not involve demotion or termination are reviewed by a court of common pleas in accordance with Section 754(b) of the Local Agency Law, 2 Pa. C.S. §754(b). Rike, 508 Pa. at 194, 494 A.2d at 1390. Where a complete record is made by the school board and the trial court takes no additional evidence, we affirm the school board's action unless constitutional rights were violated, an abuse of discretion occurred, an error of law was committed, or the necessary factual findings are not supported by substantial evidence of record. Bonatesta v. Northern Cambria School District, 48 A.3d 552, 557-58 n.9 (Pa. Cmwlth. 2012). 3 Act of March 10, 1949, P.L. 30,as amended, 24 P.S. §§1-101 - 27-2702. . 8 violation of school laws and school board policy.4 See, e.g., McFerren v. Farrell Area School District, 993 A.2d 344 (Pa. Cmwlth. 2010). However, the Public School Code is silent on the standards by which a school board may discipline a school principal by means other than dismissal. Section 1124 of the Public School Code provides for the suspension of professional employees.5 In Kaplan v. School District of Philadelphia, 388 Pa. 4 Section 1122(a) states, in relevant part, as follows: The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe . shall be immorality; incompetency; unsatisfactory teaching performance based on two (2) consecutive ratings of the employe's teaching performance that are to include classroom observations, not less than four (4) months apart, in which the employe's teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; physical or mental disability as documented by competent medical evidence, which after reasonable accommodation of such disability as required by law substantially interferes with the employe's ability to perform the essential functions of his employment; advocation of or participating in un-American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and wilful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe [.] 24 P.S. §11-1122(a). 5 Section 1124 states, as follows: (a) Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) substantial decrease in pupil enrollment in the school district; (2) curtailment or alteration of the educational program on recommendation of the superintendent and on concurrence by the board of school directors, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board (Footnote continued on the next page . . 9 213, 217, 130 A.2d 672, 675 (1957), our Supreme Court held that Section 1124 does not address disciplinary or "for cause" suspensions; rather, Section 1124 governs those suspensions done for financial or reorganizational reasons. Nevertheless, the Supreme Court held that a school district has authority to impose disciplinary suspensions; such authority is inherent in the school district's power to hire professional employees under Section 1106 of the Public School Code.6 As (continued . . .) agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes; or (4) when new school districts are established as the result of reorganization of school districts pursuant to Article II., subdivision (i) of this act, and when such reorganization makes it unnecessary to retain the full staff of professional employes. (b) Notwithstanding an existing or future provision in a collective bargaining agreement or other similar employment contract to the contrary, suspension of a professional employe due to the curtailment or alteration of the educational program as set forth in subsection (a)(2) may be effectuated without the approval of the curtailment or alteration of the educational program by the Department of Education, provided that, where an educational program is altered or curtailed as set forth in subsection (a)(2), the school district shall notify the Department of Education of the actions taken pursuant to subsection (a)(2). The Department of Education shall post all notifications received from a school district pursuant to this subsection on the Department of Education's publicly accessible Internet website. 24 P.S. §11-1124. 6 Section 1106 states, as follows: The board of school directors in every school district shall employ the necessary qualified professional employes, substitutes and temporary professional employes to keep the public schools open in their respective districts in compliance with the provisions of this act. Except for school districts of the first class and first class A which may require residency requirements for other than professional employes, substitutes and temporary professional employes, no other school district shall require an employe to reside within the school district as a condition for appointment or continued employment. (Footnote continued on the neat page . . .) 10 the Supreme Court later observed, "[t]he power to regulate conduct, of course, would be illusory absent a concomitant power to enforce rules through the imposition of some form of discipline." Rike v. Secretary of Education, 508 Pa. 190, 195, 494 A.2d 1388, 1391 (1985) (quoting Neshaminy Federation of Teachers v. Neshaminy School District, 501 Pa. 534, 545, 462 A.2d 629, 635 (1983)). The disciplinary suspension at issue in this case involves Hertzler's alleged violation of school policy, i.e., the Administrative Performance Plan and the Educator's Code of Conduct, and a directive regarding her. conduct during an investigation. In McFerren, 993 A.2d 344, 357, this Court explained that where a school district policy serves as the basis for a disciplinary termination, the school district "must show that the employee knew of the school district's policy in question" and chose not to comply. A principal may also be disciplined for negligent performance of a specific duty; however, "the negligent performance must be serious, not picayune." Id. at 358. The School Board found that Hertzler was "on notice that she must not divulge anything whatsoever about the investigation, including its results." School Board Adjudication, Conclusion of Law No. 6; R.R. 242a. The School Board also found that the disclosure demonstrated poor judgment in violation of the Administrative Performance Plan. It also found that Hertzler's disclosure violated the Educator's Code of Conduct, which required Hertzler "to keep in confidence information obtained in confidence unless required to be disclosed by law or by clear and compelling professional necessity as determined by the (continued . . .) 24 P.S. §11-1106 (emphasis added). 1.1 educator." School Board Adjudication, Conclusion of Law No. 10; R.R. 242a (emphasis added). Although presented as legal conclusions, factual findings are embedded in them. Hertzler challenges those factual findings.7 The relevant evidence consists of Tabachini's statement that "this was a confidential process" and Zuilkoski's statement that the investigation was "confidential" and that everyone questioned was told "about the confidential nature of the process." R.R. 140a, 124a. Tabachini and Zuilkoski explained to Hertzler that confidentiality was necessary to ensure the quality of their investigation. They were particularly concerned that conversations between Hertzler and potential witnesses could interfere with the truthfulness of the witness statements. This was why Zuilkoski told all those he interviewed not to discuss the statements they gave the investigators. First, there is no evidence that Hertzler violated this confidentiality directive. She did not disclose the name of the complainant; discuss the nature and scope of the investigation with Urich; or question witnesses about what they told the investigators at any time, either before or after the conclusion of the Substantial evidence is evidence that a reasonable mind could accept as sufficient to support a conclusion. Bonatesta, 48 A.3d at 558. When analyzing the evidence, we must consider the evidence in the light most favorable to the party that,was successful before the finder of fact. Id. The school board assesses the credibility of the witnesses, but we will "overturn a credibility determination if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Id. (quoting Agostino v. Township of Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth. 2009)). A capricious disregard of the evidence is established "when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Bonatesta, 48 A.3d at 558 (quoting Agostino, 968 A.2d at 264). 12 investigation. There is no evidence that Hertzler said or did anything to influence or undermine the investigation. Second, there is no evidence that Hertzler was "on notice" that she could not divulge the "results" of the investigation. The directives from Tabachini and Zuilkoski related to the conduct of the investigation. They told Hertzler not to discuss the investigation with anyone, lest she influence witnesses. That concern disappeared once the investigation was over. in short, the rationale for confidentiality proffered by Tabachini and Zuilkoski evidenced their understanding that the confidentiality directive applied while the investigation was on-going but not after it was over. It is noteworthy that Small asked Hertzler whether she "shared the results of the investigations with a member outside of her home or residence." R.R. 39a. Small believed, apparently, that Hertzler could disclose her exoneration to family members. Small also allowed that Hertzler could report to school employees that the investigation was over, to relieve employee anxiety. These exceptions are as vague as the so-called rule against Hertzler disclosing her exoneration. In any case, the exceptions conceded by the School District do not make sense. First, Hertzler's family members could have shared the news with others even if told by Hertzler not to. Their speech would be beyond School District control. Second, if Hertzler had announced to School employees that the investigation was over, but did not tell them there would be no hearing, it would not relieve the stress and morale problem. Employees would still be left wondering whether a hearing would occur and whether they would be called as 13 witnesses or drawn into the matter in some other way. In any case, it is unlikely that employees would settle for an incomplete explanation. If Hertzler announced that the investigation was over with a broad smile on her face, would this violate the so-called confidentiality rule? Contrary to the School Board's finding, Hertzler was not "on notice" to keep her exoneration a secret. Nothing was so stated in a general policy of the School District. The School District relied upon the Administrative Performance Plan, which articulates a need for good judgment, protecting -confidential. information and exercising competency. These general standards in. no way articulate a standard about what may be said about the outcome of investigation, and they do not restrict what the target of an investigation may say. The Educator's Code of Conduct is likewise unavailing. It extends a principal's confidentiality obligation to that "information obtained in confidence." Hertzler did not obtain the news of her exoneration in confidence. The School District notified Hertzler of her exoneration in a letter addressed to her, which was not marked confidential. The School District had the burden' of proving that it had just cause to suspend Hertzler. McFerren, 993 A.2d at 357 ("[T]he [school] district must show that the employee knew of the school district's policy in question and deliberately chose not to comply."). See also Borough of Bedford v. Department of Environmental Protection, 972 A.2d 53, 61 (Pa. Cmwlth. 2009) ("It is always the agency's burden to convince the tribunal that its interpretation of [the policy] it seeks to enforce is correct[.]"). Contrary to the School Board's belief, it was not Hertzler's burden to prove that the superintendent acted arbitrarily. Nor was it 14 Hertzler's burden to *offer mitigating reasons for her disclosure, as suggested by the trial court. The burden belonged to the School District to prove the existence of a policy or specific directive that a person exonerated by an internal investigation must keep the exoneration a secret.8 It then had to prove a violation of this policy or directive. The School District did not shoulder this burden. The School District did not direct Hertzler to keep her exoneration a secret, and it has never instructed her, in general, that targets of investigations must keep the outcome of an investigation a secret. There is no reason that Hertzler should have known that by texting the single word "unfounded'' to Urich she violated a School District directive relating to her conduct during the investigation. The School District told her that the investigation was concluded. For these reasons, the order of the trial court is reversed and the disciplinary suspension is vacated. The matter is remanded to the trial court to remand to the School Board in order to award Hertzler back pay, and any other benefits lost, due to the period of the suspension. M A R Y I T A4—kNQHH�<LE A rV1 T,T, Judge There is no evidence of a School District policy, or directive, that a person subjected to an internal investigation may not share the fact of his or her exoneration. However, such a policy, had it been adopted, is problematic. It creates a pref6rence for complainants and gives no weight to the reputation of the person subjected to the internal investigation. It tilts the balance in favor of frivolous complaints. In any case, Small's stated concern that revealing the outcome of an exoneration might discourage future complaints was purely speculative. The School District presented no evidence to support this concern. 15 t IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen Hertzler, Appellant V. No. 401 C.D. 2013 West Shore School District c� C CD sv ORDER AND NOW, this 7`" day of October, 2013, the order of the Court of Common Pleas of Cumberland County is hereby REVERSED and the disciplinary suspension VACATED. The matter is REMANDED to the trial court to remand to the West Shore School District Board of School Directors in accordance with the attached opinion. Jurisdiction relinquished. MARY LEAVITT, Judge Certified from the record OCT - 7 2013 and Order Exit �upretue Court of 3ennoptbania Irene M.Bizzoso,Esq. 601 Commonwealth Avenue,Suite 4500 Prothonotary Middle District P.O.Box 62575 Elizabeth E.Zisk Harrisburg,PA 17106 Chief Clerk (717)787-6181 November 7, 2013 www.pacourts.us RE: Karen Hertzler, Respondent v. West Shore School District, Petitioner No. 855 MAL 2013 Trial Court Docket No: Case No. 12-6393 CIVIL Commonwealth Docket Number: 401 CD 2013 r Appeal Docket No: C , —� ran Zr"Date Petition for Allowance of Appeal Filed: November 6, 2013 diC �-- Disposition: D 00 o Disposition Date: c - >C) 9w _: Reargument/Reconsideration Disposition: =,c is Reargument/Reconsideration Disposition Date: /esh cc: Buell, David D., Prothonotary �uprenre Court of Jennoptbania Amy Dreihelbis, Esq. Deputy Prothonotary Elizabeth E. Zisk Chief Clerk Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Middle District April 30, 2014 RE: Karen Hertzler, Respondent v. West Shore School District, Petitioner No. 855 MAL 2013 Trial Court Docket No: Case No. 12-6393 CIVIL Commonwealth Docket Number: 401 CD 2013 Appeal Docket No: Date Petition for Allowance of Appeal Filed: November 6, 2013 Disposition: Order Denying Petition for Allowance of Appeal Disposition Date: April 30, 2014 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /ac 601 Commonwealth Avenue, Suite 4500 P.O. Box 62575 Harrisburg, PA 17106 (717) 787-6181 www.pacourts.us IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT KAREN HERTZLER, : No. 855 MAL 2013 Respondent v. WEST SHORE SCHOOL DISTRICT, Petitioner : Petition for Allowance of Appeal from the : Order of the Commonwealth Court ORDER c7 m co =rn zr-- -G r -- <LD --i PER CURIAM AND NOW, this 30th day of April, 2014, the Petition for Allowance of Appeal is DENIED. Asf4/30abeth E. ZiskO0/214 Attest:.4.""'.-, Chief Clerk "` Supreme Court of Pennsylvania Kristen W. Brown Prothonotary 601 Commonwealth Avenue, Suite 2100 Michael Krimmel, Esq. P.O. Box 69185 Chief Clerk of Commonwealth Court Harrisburg, PA 17106-9185 www.pacourts.us Qoututontheatttj Court of Venuoptbauia Pennsylvania Judicial Center June 2, 2014 CERTIFICATE OF REMITTAUREMAND OF RECORD TO: David D. Buell Prothonotary RE: Hertzler, K v. West Shore SD 401 CD 2013 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: Case No. 12-6393 CIVIL Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Trial Court Record Remand/Remittal Date: May 20, 2013 1 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Commonwealth Court Filing Office,,` -, r -t s `1 rn C✓ -0 CD —7,1 •» IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen Hertzler, Appellant • co fes_.- r:\ -1-_---- V. : No. 401 C.D. 2013 r rn -t • Submitted: August 16, 2013 �� , West Shore School District = "' � v -, c' '- c--, c z f BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge v r', HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION BY JUDGE LEAVITT FILED: October 7, 2013 Karen Hertzler appeals an order of the Court of Common Pleas of Cumberland County (trial court) that upheld her three-day suspension from her position as a school principal. The West Shore School District suspended Hertzler for sharing the news with a colleague that she had been exonerated by an investigation conducted by the School District into a teacher's charge that Hertzler had harassed her. Hertzler contends that her suspension was unfounded because the School District did not have a policy that required her to keep her exoneration a secret, and it did not give her a specific directive to that effect. We agree and, therefore, reverse and remand. Hertzler is the principal at the New Cumberland Middle School, which is in the West Shore School District. On October 17, 2011, a teacher at that school (complainant) filed a complaint with the School District accusing Hertzler of harassment. On November 10, 2011, the teacher filed a second complaint accusing Hertzler of retaliation. The School District instituted an investigation. Two months later, Jernry Small, the School District Superintendent, advised Hertzler by letter that there was "insufficient evidence" to support either of the two charges. Reproduced Record at 231a (RR. ). The letter ended with the statement, "[t]his notification to you concludes the investigations." Id. Shortly thereafter, Small called Hertzler into her office. She asked Hertzler if she had disclosed the outcome of her investigation to anyone outside her family. Hertzler responded that she had shared this news with one faculty member at the school. On January 17, 2012, Small suspended Hertzler for three days for not keeping her exoneration a secret. Small's letterof suspension explained as follows: On Tuesday, January 10, 2012, you met with me to discuss a breach of confidentiality regarding the findings of a harassment complaint filed against you by a staff member at New Cumberland Middle School. During the meeting the following was discussed: 1. When asked if you shared the results, you stated that you had shared the results with one staff member. Upon hearing this, I confirmed with you that you were indeed told by the investigator, Suzanne Tabachini, that this process was indeed confidential and not to be shared. 2. I also questioned you about receiving a card from staff members who were attending a birthday celebration at New Cumberland Middle School; this card was congratulating you on being acquitted of the harassment charges. Thus confirming several staff members were aware of the findings [of] the investigation. 2 R.R. 235a. Small concluded that in making this disclosure, Hertzler had failed to meet expectations for professional employees set forth in the School District's Administrative Performance Plan. Those expectations include abiding by laws "governing educational and civil rights of students and others;" keeping "the highest degree of confidentiality appropriate to the position;" "competent problem analysis and resolution;" and the exercise of "prudent judgment." Id. Small also charged Hertzler with a violation of the Educator's Code of Conduct, which requires professional employees to keep confidential information that is obtained in confidence. Small's letter advised: [Y]ou will be suspended without pay for a period of three (3) work days beginning Wednesday, January 18 through Friday, January 20, 2012. R.R. 236a. Hertzler served the suspension, and she appealed the suspension. She was given a hearing by the School Board. The School District's case was made principally by testimony from Small, who testified, first, about the investigation of Hertzler. She explained that Suzanne Tabachini, the School District's director of personnel, investigated the harassment complaint, and David Zuilkoski, an assistant superintendent, investigated the retaliation complaint. They each concluded that the evidence was insufficient to support the teacher's charges against Hertzler. Nevertheless, Small was left with "concerns," which she did not specify, that prompted her to meet with Hertzler on January 4, 2012. Sometime later, Robert Cox, an .attorney, telephoned Small and informed her that Hertzler had informed a third party of her exoneration.' On January 1.0, 2012, Small confronted Hertzler with Cox's report and asked Hertzler "if she shared the results of the investigations with a member outside of her home or residence[.]" R.R. 39a. When Hertzler confirmed the report, Small decided to suspend Hertzler for violating the investigators' instruction that the "investigation process [was] to be kept confidential." R.R. 40a. This was the first time Small disciplined any employee in the School District for a breach of confidentiality. Small conceded in her testimony that there was no School District "guideline" or policy that prohibited the target of an internal investigation from revealing the favorable outcome of an investigation. Small also acknowledged that the fact of the School District's investigation of Hertzler was not a secret because 15 out of 36 employees at the Middle School had been interviewed in the course of the investigation and knew the identity of the complaining party and that her complaint concerned harassment. Given this wide -spread knowledge, Small conceded that it would have been appropriate for Hertzler to inform employees at the Middle School that the investigation was over. However, that disclosure had to be made without revealing the outcome of the investigation. Small also conceded that the School District did not give complainants a guarantee of confidentiality. Nevertheless, Small believed that the 1 Small did not explain whether Cox represented the complainant or the School District. Small characterized her telephone conversation as "privileged information," which suggests he represents the School District. R.R. 29a. 4 complaining teacher had such a guarantee and that it was compromised by Hertzler's disclosure. The School District's letter to Hertzler was not marked confidential. Nevertheless, Small believed that Hertzler should have had the good judgment to treat the letter from the School District as a confidential document. Mary Ellen Urich, a teacher at the Middle School in December 2011, testified that she learned of the investigation, initially, through school gossip. Later, the complaining teacher gave her an account of her harassment complaint against Hertzler because Urich was the union representative. Urich described the school as "asunder with strife" because it was widely known that the complaining teacher had accused Hertzler of harassment. R.R. 71a. Other faculty members were worried that they would also be accused of wrongdoing and might be caught up in the controversy in some way. Urich testified that she advised Small that the case had dragged on for too long and people needed "some finality brought to these investigations[.]" R.R. 113a. Zuilkoski, an assistant superintendent, testified about his investigation, which was to determine whether Hertzler had retaliated against the complaining teacher for filing a harassment complaint. He recalled that he read a statement to Hertzler that the School District's investigation was considered confidential. He also testified that he "made [it] clear" to the people he questioned "about the confidential nature of the process." R.R. 124a. Zuilkoski testified that Hertzler did not ask any follow-up questions about this statement on confidentiality. Tabachini, director of personnel for the School District, testified that she told Hertzler that "this was a confidential process, that [Hertzler] should not speak with anyone about the investigation, most especially [the complaining teacher] and ... that [Hertzler] didn't want to do anything that could be construed as retaliation...." R.R. 140a. Tabachini testified that she assumed that Hertzler understood that the need for confidentiality extended to the outcome. Hertzler was the final witness. She testified that she never received any training or directive from the School District that the fact of her exoneration was to be kept secret. The School District's letter advising her that the investigations were "concluded" was not marked confidential, and it was a practice in the School District to so mark documents that were confidential. Further, Small's letter did not instruct Hertzler to keep the outcome of the investigation a secret; rather, it stated that the investigation was over. Hertzler explained that she understood from Tabachini and Zuilkoski that she was not to speak to the complaining teacher or other School employees about the harassment matter or to interfere in any way in the investigation while it was underway. However, she did not understand that the outcome of the investigation was to be kept confidential. In any case, the fact that she was being investigated was well known throughout the school and was a source of stress. When she received Small's letter that the investigation was over and that the evidence of harassment was insufficient, Hertzler sent Urich a text message containing one word: "Unfounded." R.R. 169a. Hertzler shared this information with Urich because she had expressed concerns to Hertzler about the impact of the investigation on school morale. Sometime later, Hertzler received a thank -you card from several faculty members with a notation inside that read "Congratulations!" R.R. 234a. Hertzler had not spoken to any of the signatories about her exoneration, and the card itself made no mention of the investigation or its outcome. No one doubts, however, that it was prompted by Hertzler's exoneration. The School Board upheld Small's three-day suspension of Hertzler. It reasoned that Hertzler had the burden of proving her suspension was arbitrary and capricious and that she had not met this burden. The School Board found that the instruction to Hertzler to keep the investigation a "confidential process" included the outcome. It agreed with Small's claim that Hertzler's disclosure could have a chilling effect upon victims of harassment who might file complaints in the future. Hertzler appealed, arguing that the School District's suspension was not supported by evidence but, rather, resulted from a capricious disregard of the evidence. The trial court did not take additional evidence; it decided the appeal on the basis of the School Board hearing. The trial court concluded that the directive to treat the investigation as a "confidential process" included the outcome of the investigation. The trial court noted that when Hertzler admitted her disclosure to Small, she failed to offer a mitigating reason for doing so. The trial court also found it noteworthy that Hertzler had "failed" to check with the School District before making the disclosure to Urich. For these reasons, the trial court dismissed her appeal. Hertzler then appealed to this Court. On appeal,2 she again argues that the record does not support her suspension because the School District never established by substantial evidence the existence of a policy or directive that her exoneration was to be kept a secret. It was arbitrary and capricious for the School District to conclude that she should have "known" that she was not permitted to share the fact of her exoneration, which was not part of the investigation. Rather, it was an event that occurred after the investigation was concluded. The Public School Code of 19493 governs the hiring and discipline of school district professional employees, including superintendents, teachers and principals. To dismiss a principal before completion of her contract, the school district has the burden to show that it has serious grounds for such action, as determined by Section 1122(a), such as immorality, felony convictions and willful 2 The Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 — 27-2702, establishes a statutory procedure for review of the termination or demotion of tenured professional employees. See Section 1151 of the Public School Code, 24 P.S. §11-1151 and Section 1127 of the Public School Code, 24 P.S. §11-1127. The statutory procedure provides for a hearing before the School Board followed by an appeal to the Secretary of Education. However, discipline of professional employees that involves a sanction other than a demotion or termination is handled differently. In Rike v. Secretary of Education, 508 Pa. 190, 494 A.2d 1388 (1985), the Pennsylvania Supreme Court held that appeals of professional employee discipline that do not involve demotion or termination are reviewed by a court of common pleas in accordance with Section 754(b) of the Local Agency Law, 2 Pa. C.S. §754(b). Rike, 508 Pa. at 194, 494 A.2d at 1390. Where a complete record is made by the school board and the trial court takes no additional evidence, we affirm the school board's action unless constitutional rights were violated, an abuse of discretion occurred, an error of law was committed, or the necessary factual findings are not supported by substantial evidence of record. Bonatesta v. Northern Cambria School District, 48 A.3d 552, 557-58 n.9 (Pa. Cmwlth. 2012). 3 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 - 27-2702. violation of school laws and school board policy.4 See, e.g., McFerren v. Farrell Area School District, 993 A.2d 344 (Pa. Cmwlth. 2010). However, the Public School Code is silent on the standards by which a school board may discipline a school principal by means other than dismissal. Section 1124 of the Public School Code provides for the suspension of professional employees.5 In Kaplan v. School District of Philadelphia, 388 Pa. 4 Section 1122(a) states, in relevant part, as follows: The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality; incompetency; unsatisfactory teaching performance based on two (2) consecutive ratings of the employe's teaching performance that are to include classroom observations, not less than four (4) months apart, in which the employe's teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; physical or mental disability as documented by competent medical evidence, which after reasonable accommodation of such disability as required by law substantially interferes with the employe's ability to perform the essential functions of his employment; advocation of or participating in un-American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and wilful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe [.] 24 P.S. §11-1122(a). 5 Section 1124 states, as follows: (a) Any board of school directors may suspend the necessary number of professional employes, for any of the causes hereinafter enumerated: (1) substantial decrease in pupil enrollment in the school district; (2) curtailment or alteration of the educational program on recommendation of the superintendent and on concurrence by the board of school directors, as a result of substantial decline in class or course enrollments or to conform with standards of organization or educational activities required by law or recommended by the Department of Public Instruction; (3) consolidation of schools, whether within a single district, through a merger of districts, or as a result of joint board (Footnote continued on the next page ...) 9 213, 217, 130 A.2d 672, 675 (1957), our Supreme Court held that Section 1124 does not address disciplinary or "for cause" suspensions; rather, Section 1124 governs those suspensions done for financial or reorganizational reasons. Nevertheless, the Supreme Court held that a school district has authority to impose disciplinary suspensions; such authority is inherent in the school district's power to hire professional employees under Section 1106 of the Public School Code.6 As (continued ...) agreements, when such consolidation makes it unnecessary to retain the full staff of professional employes; or (4) when new school districts are established as the result of reorganization of school districts pursuant to Article II., subdivision (i) of this act, and when such reorganization makes it unnecessary to retain the full staff of professional employes. (b) Notwithstanding an existing or future provision in a collective bargaining agreement or other similar employment contract to the contrary, suspension of a professional employe due to the curtailment or alteration of the educational program as set forth in subsection (a)(2) may be effectuated without the approval of the curtailment or alteration of the educational program by the Department of Education, provided that, where an educational program is altered or curtailed as set forth in subsection (a)(2), the school district shall notify the Department of Education of the actions taken pursuant to subsection (a)(2). The Department of Education shall post all notifications received from a school district pursuant to this subsection on the Department of Education's publicly accessible Internet website. 24 P.S. §11-1124. 6 Section 1106 states, as follows: The board of school directors in every school district shall employ the necessary qualified professional employes, substitutes and temporary professional employes to keep the public schools open in their respective districts in compliance with the provisions of this act. Except for school districts of the first class and first class A which may require residency requirements for other than professional employes, substitutes and temporary professional employes, no other school district shall require an employe to reside within the school district as a condition for appointment or continued employment. (Footnote continued on the next page ...) . 10 the Supreme Court later observed, "[t]he power to regulate conduct, of course, would be illusory absent a concomitant power to enforce rules through the imposition of some form of discipline." Rike v. Secretary of Education, 508 Pa. 190, 195, 494 A.2d 1388, 1391 (1985) (quoting Neshaminy Federation of Teachers v. Neshaminy School District, 501 Pa. 534, 545, 462 A.2d 629, 635 (1983)). The disciplinary suspension at issue in this case involves Hertzler's alleged violation of school policy, i.e., the Administrative Performance Plan and the Educator's Code of Conduct, and a directive regarding her conduct during an investigation. In McFerren, 993 A.2d 344, 357, this Court explained that where a school district policy serves as the basis for a disciplinary termination, the school district "must show that the employee knew of the school district's policy in question" and chose not to comply. A principal may also be disciplined for negligent performance of a specific duty; however, "the negligent performance must be serious, not picayune." Id. at 358. The School Board found that Hertzler was "on notice that she must not divulge anything whatsoever about the investigation, including its results." School Board Adjudication, Conclusion of Law No. 6; R.R. 242a. The School Board also found that the disclosure demonstrated poor judgment in violation of the Administrative Performance Plan. It also found that Hertzler's disclosure violated the Educator's Code of Conduct, which required Hertzler "to keep in confidence information obtained in confidence unless required to be disclosed by law or by clear and compelling professional necessity as determined by the (continued ...) 24 P.S. §11-1106 (emphasis added). educator." School Board Adjudication, Conclusion of Law No. 10; R.R. 242a (emphasis added). Although presented as legal conclusions, factual findings are embedded in them. Hertzler challenges those factual findings. The relevant evidence consists of Tabachini's statement that "this was a confidential process" and Zuilkoski's statement that the investigation was "confidential" and that everyone questioned was told "about the confidential nature of the process." R.R. 140a, 124a. Tabachini and Zuilkoski explained to Hertzler that confidentiality was necessary to ensure the quality of their investigation. They were particularly concerned that conversations between Hertzler and potential witnesses could interfere with the truthfulness of the witness statements. This was why Zuilkoski told all those he interviewed not to discuss the statements they gave the investigators. First, there is no evidence that Hertzler violated this confidentiality directive. She did not disclose the name of the complainant; discuss the nature and scope of the investigation with Urich; or question witnesses about what they told the investigators at any time, either before or after the conclusion of the 7 Substantial evidence is evidence that a reasonable mind could accept as sufficient to support a conclusion. Bonatesta, 48 A.3d at 558. When analyzing the evidence, we must consider the evidence in the light most favorable to the party that was successful before the finder of fact. Id. The school board assesses the credibility of the witnesses, but we will "overturn a credibility determination if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Id. (quoting Agostino v. Township of Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth. 2009)). A capricious disregard of the evidence is established "when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Bonatesta, 48 A.3d at 558 (quoting Agostino, 968 A.2d at 264). 12 investigation. There is no evidence that Hertzler said or did anything to influence or undermine the investigation. Second, there is no evidence that Hertzler was "on notice" that she could not divulge the "results" of the investigation. The directives from Tabachini and Zuilkoski related to the conduct of the investigation. They told Hertzler not to discuss the investigation with anyone, lest she influence witnesses. That concern disappeared once the investigation was over. In short, the rationale for confidentiality proffered by Tabachini and Zuilkoski evidenced their understanding that the confidentiality directive applied while the investigation was on-going but not after it was over. It is noteworthy that Small asked Hertzler whether she "shared the results of the investigations with a member outside of her home or residence." R.R. 39a. Small believed, apparently, that Hertzler could disclose her exoneration to family members. Small also allowed that Hertzler could report to school employees that the investigation was over, to relieve employee anxiety. These exceptions are as vague as the so-called rule against Hertzler disclosing her exoneration. In any case, the exceptions conceded by the School District do not make sense. First, Hertzler's family members could have shared the news with others even if told by Hertzler not to. Their speech would be beyond School District control. Second, if Hertzler had announced to School employees that the investigation was over, but did not tell them there would be no hearing, it would not relieve the stress and morale problem. Employees would still be left wondering whether a hearing would occur and whether they would be called as 13 witnesses or drawn into the matter in some other way. In any case, it is unlikely that employees would settle for an incomplete. explanation. If Hertzler announced that the investigation was over with a broad smile on her face, would this violate the so-called confidentiality rule? Contrary to the School Board's finding, Hertzler was not "on notice" to keep her exoneration a secret. Nothing was so stated in a general policy of the School District. The School District relied upon the Administrative Performance Plan, which articulates a need for good judgment, protecting confidential information and exercising competency. These general standards in no way articulate a standard about what may be said about the outcome of investigation, and they do not restrict what the target of an investigation may say. The Educator's Code of Conduct is likewise unavailing. It extends a principal's confidentiality obligation to that "information obtained in confidence." Hertzler did not obtain the news of her exoneration in confidence. The School District notified Hertzler of her exoneration in a letter addressed to her, which was not marked confidential. The School District had the burden of proving that it had just cause to suspend Hertzler. McFerren, 993 A.2d at 357 ("[T]he [school] district must show that the employee knew of the school district's policy in question and deliberately chose not to comply."). See also Borough of Bedford v. Department of Environmental Protection, 972 A.2d 53, 61 (Pa. Cmwlth. 2009) ("It is always the agency's burden to convince the tribunal that its interpretation of Rhe policy] it seeks to enforce is correct[.]"). Contrary to the School Board's belief, it was not Hertzler's burden to prove that the superintendent acted arbitrarily. Nor was it 14 Hertzler' s burden to offer mitigating reasons for her disclosure, as suggested by the trial court. The burden belonged to the School District to prove the existence of a policy or specific directive that a person exonerated by an internal investigation must keep the exoneration a secret.8 It then had to prove a violation of this policy or directive. The School District did not shoulder this burden. The School District did not direct Hertzler to keep her exoneration a secret, and it has never instructed her, in general, that targets of investigations must keep the outcome of an investigation a secret. There is no reason that Hertzler should have known that by texting the single word "unfounded" to Urich she violated a School District directive relating to her conduct during the investigation. The School District told her that the investigation was concluded. For these reasons, the order of the trial court is reversed and the disciplinary suspension is vacated. The matter is remanded to the trial court to remand to the School Board in order to award Hertzler back pay, and any other benefits lost, due to the period of the suspension. MARY NN H LEA 'ITT, Judge 8 There is no evidence of a School District policy, or directive, that a person subjected to an internal investigation may not share the fact of his or her exoneration. However, such a policy, had it been adopted, is problematic. It creates a preference for complainants and gives no weight to the reputation of the person subjected to the internal investigation. It tilts the balance in favor of frivolous complaints. In any case, Small's stated concern that revealing the outcome of an exoneration might discourage future complaints was purely speculative. The School District presented no evidence to support this concern. 15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Karen Hertzler, Appellant v. : No. 401 C.D. 2013 West Shore School District ORDER AND NOW, this 7th day of October, 2013, the order of the Court of Common Pleas of Cumberland County is hereby REVERSED and the disciplinary suspension VACATED. The matter is REMANDED to the trial court to remand to the West Shore School District Board of School Directors in accordance with the attached opinion. Jurisdiction relinquished. MARY EAVITT, Judge