HomeMy WebLinkAbout2012-6393
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
th
AND NOW
this 26 day of February, 2013, upon consideration of Petitioner’s
Petition for Review, the briefs filed by the parties, and after argument,
IT IS HEREBY 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
Counsel for Petitioner
428 Forbes Avenue, Suite 900
Pittsburgh, PA 15219
Philip H. Spare, Esquire
Gareth D. Pahowka, Esquire
Counsel for Respondent
Susquehanna Commerce Center East, Suite 600
221 West Philadelphia Street
York, PA 17401
KAREN HERTZLER, : IN THE COURT OF COMMON PLEAS OF
PETITIONER : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
: NO. 12-6393 CIVIL
WEST SHORE SCHOOL :
DISTRICT :
RESPONDENT :
IN RE: PETITION FOR REVIEW
OPINION AND ORDER OF COURT
Ebert, J., February 26, 2013 –
On October 12, 2012, Karen Hertzler (hereinafter “Petitioner”) filed a Petition for
Review asking this Court to review and set aside the decision of the West Shore School
1
District Board of Directors (hereinafter “Board”). This Petition for Review arose when
West Shore School District (hereinafter “Respondent”) suspended Petitioner for three
2
days without pay, beginning on January 18, 2012. Petitioner appealed her suspension
and an evidentiary hearing was held on May 30, 2012, before a Hearing Officer and the
3
Board. The Hearing Officer and Board upheld the Petitioner’s suspension. Petitioner
4
now appeals that ruling. After careful consideration of the pleadings, the briefs filed by
the parties and after oral argument/hearing in the matter, Petitioner’s Petition for Review
DISMISSED
is .
1
Petition for Review, filed Oct. 12, 2012
2
Petitioner for Review, Ex. A: Findings of Fact and Conclusions of Law of Board of School Directors, p. 9,
¶ 28, Sept. 20, 2012 (hereinafter “Findings of Fact” __)
3
See, Praecipe, Ex. 2: Transcript of Proceedings, May 30, 2012 (hereinafter “Tr.” at ___ )
4
Finding of Facts, p. 1
2
Statement of Facts
Petitioner is employed as the principal at New Cumberland Middle School
5
(hereinafter “NCMS”), located within the West Shore School District. Petitioner has
6
been employed by Respondent since 2003. On or about October 17, 2011, Kandra
Beardsley (hereinafter “Beardsley”), then a teacher at NCMS, filed an internal
7
harassment complaint against Petitioner. On or about November 10, 2011, Beardsley
8
filed another internal complaint against Petitioner accusing her of retaliation. After
receiving these complaints, Respondent conducted separate investigations of each
9
one. Suzanne Tabachini (hereinafter “Tabachini”), Director of Human Resources,
investigated the harassment complaint, while David Zuilkoski (hereinafter “Zuilkoski”),
10
Assistant Superintendent, investigated the retaliation complaint. Petitioner was
informed by both Tabachini and Zuilkoski that the investigations were a confidential
1112
process. Neither Tabachini nor Zuilkoski further defined confidentiality to Petitioner.
13
Additionally, Petitioner did not ask what keeping the investigation confidential meant.
On or about December 23, 2011, Petitioner received a letter from Jemry Small
(hereinafter “Small”), Superintendent for Respondent, which indicated that there was
14
“insufficient evidence to support a violation of Board Policy 448, unlawful harassment”.
15
This letter was not marked as confidential.After learning the results of the
5
Findings of Fact, p. 1, ¶ 1
6
Findings of Fact, p. 3, ¶ 29
7
Findings of Fact, p. 1, ¶ 5
8
Findings of Fact, p. 1, ¶ 6
9
Findings of Fact, p. 2, ¶ 7
10
Findings of Fact, p. 1-2, ¶ 2, 3, 8, 12
11
Findings of Fact, p. 2; ¶ 9, 13; see also Jt. Exs. 2 and 9.
12
Tr. at 122, 139-40
13
Findings of Fact, p. 4, ¶ 34-36
14
Findings of Fact, p. 2, ¶ 14; Jt. Ex. 11
15
Tr. at 25
3
investigation, Petitioner texted the word “unfounded” to Mary Ellen Urich (hereinafter
16
“Urich”), an eighth grade teacher at NCMS. On January 4, 2012, Petitioner was given
a greeting card, signed by members of the sixth grade teaching team, congratulating
17
her for being cleared of wrongdoing. On the inside of the card was handwritten
18
“Congratulations!” and “Victory is sweet like candy”. There is no dispute that the card
19
referred to the findings of the Beardsley investigations.
Thereafter, Small learned that Petitioner may have shared the results of the
investigation and met with Petitioner and Tabachini to discuss the alleged breach of
20
confidentiality on January 10, 2012. During this meeting, Petitioner admitted that she
21
shared the results of the investigation with one staff member. Petitioner did not
explain to Small at that time who she shared the results with or why, even though she
22
believed she might be disciplined. At the Board hearing, Petitioner testified that she
divulged the results in an attempt to address a concern about employee morale at the
23
building.
On January 17, 2012, Small gave Petitioner a letter suspending her without pay
for three days for breaching confidentiality in connection with the harassment
24
investigations. Small based her decision to suspend Petitioner on the fact that she
shared the results and failed to comply with the Administrative Performance Plan
16
Findings of Fact, p. 2, ¶ 15
17
Findings of Fact, p. 2, ¶ 18
18
Findings of Fact, p. 3, ¶ 19; Jt. Ex. 13
19
Findings of Fact, p. 3, ¶ 20
20
Findings of Fact, p. 3, ¶ 21-22
21
Findings of Fact, p. 3, ¶ 23-24
22
Findings of Fact, p. 3, ¶ 27
23
Tr. at 165-67
24
Findings of Fact, p. 3, ¶ 28
4
25
(hereinafter “APP”) job performance standards for her position. 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
26
that she exercise prudent judgment. Petitioner served her suspension from January
27
18, 2012 to January 20, 2012.
As part of her duties as principal of NCMS, Petitioner received general training
and written documentation on conducting investigations and the need for
28
confidentiality. In addition to her training, Petitioner frequently faced situations which
required her to maintain confidentiality, including conducting harassment
29
investigations. However, Petitioner admitted that she was unsure whether it was
30
proper to divulge the results of an investigation once it had been concluded. Even
though she was not sure, Petitioner did not ask whether she could discuss the results of
31
the investigation.
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
32
had a compelling professional necessity to disclose the results. The Board also
concluded that Petitioner received the results of the investigation in confidence and
33
therefore that Small had a rational basis for imposing the three day suspension. The
Board upheld Petitioner’s suspension. Petitioner now appeals.
25
Findings of Fact, p. 5, ¶ 50
26
Findings of Fact, p. 5, ¶ 45-46
27
Findings of Fact, p. 5, ¶ 51
28
Findings of Fact, p. 3, ¶ 31
29
Findings of Fact, p. 3-4, ¶ 30, 40
30
Findings of Fact, p. 3, ¶ 33
31
Findings of Fact, p. 4, ¶ 34-36
32
Findings of Fact, p. 4, ¶ 37-38
33
Findings of Fact, p. 6, ¶ 4, 7
5
Discussion
There are two issues before the Court. Initially, Respondent argues that
Petitioner’s Petition for Review should be dismissed because local agency law does not
give this Court jurisdiction to review this case. Petitioner contends that this case is
properly before this Court. Additionally, Respondent maintains that the Board’s decision
was based upon substantial evidence and should be upheld. Petitioner argues that the
Board’s decision should be overturned for lack of substantial evidence. The Court now
turns to a discussion of these issues.
I. Jurisdiction
As a general rule, “[a]ny person aggrieved by an adjudication of a local agency
who has a direct interest in such adjudication shall have the right to appeal therefrom to
the court vested with jurisdiction of such appeals.” 2 Pa.C.S.A. § 752. Such appeals
fall under the jurisdiction of the courts of common pleas. 42 Pa.C.S.A. § 933(a)(2).
Respondent argues that the decision of the Board is not an adjudication under the
meaning of 2 Pa.C.S.A. § 752. Additionally, Respondent argues that Petitioner does
not have a property interest with respect to her suspension that would allow her to
appeal the Board’s decision. Petitioner maintains that the Board’s decision is an
adjudication and she has a property interest in her suspension.
A. Adjudication
An adjudication is defined as “any final order, decree, decision, determination or
ruling by an agency affecting personal or property rights, privileges, immunities, duties,
liabilities or obligations of any or all the parties to the proceeding in which the
adjudication is made.” 2 Pa.C.S.A. § 101. School boards are considered to be local
6
agencies capable of providing an adjudication. Lesoine v. Arena, 688 A.2d 802, 803
(Pa. Cmwlth. 1997). In Lesoine, the petitioner was not allowed to appeal her two day
suspension because the decision had been made only by the superintendent and was
not appealed to the school board. Lesoine, 688 A.2d at 804. Once a school board has
made a determination however, that decision is appealable. Id.
In this matter, Petitioner appealed her suspension to the Board, which held an
evidentiary hearing and issued Findings of Fact and Conclusions of Law. In fact, the
Board noted, against the objection of Counsel for the Administration, that the
Commonwealth Court would likely find that Petitioner was entitled to a hearing and “it
34
was reasonable and proper for the Board to offer her a hearing”. Therefore, this Court
finds that the Board’s decision is an adjudication.
B. Property Right
Even though the Board’s decision is an adjudication, the decision must have
affected Petitioner’s “personal or property rights, privileges, immunities, duties, liabilities
or obligations” in order to be appealable to this Court. 2 Pa.C.S.A. § 101. Property
interests are created by state statutes or regulations. Stana v. Sch. Dist. of City of
Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985). Additionally, property interests “can also
arise from written or unwritten state or local government policies or from mutually
explicit understandings between a government employer and employee”. Id. (internal
quotations omitted). The relevant inquiry to determine if a property right exists is
“whether the [petitioner] has a legitimate claim of entitlement” to it. Id. (internal
quotations omitted).
34
See Findings of Fact, p. 5, footnote 3.
7
In this case Petitioner was suspended without pay for three days. In addition to a
property interest in her pay, Petitioner contends that she has a property interest in her
seniority, which is the basis of job security in a school district due to the fact that layoffs
are to occur “in inverse order of seniority”. 24 Pa.C.S.A. § 11-1125.1. Petitioner argues
she has lost seniority because her suspension was not an approved leave of absence.
Id.
Respondent raised an objection prior to the Board’s hearing that no hearing
should be provided to Petitioner because she does not have a property interest in the
three day suspension that would warrant a hearing. As stated supra, the Board
provided Petitioner with an evidentiary hearing over the objection of Respondent
believing that Petitioner was entitled to it. Therefore, this Court finds that the Board’s
decision was an adjudication that affected Petitioner’s property rights and is properly
before this Court.
II. Board Decision
Since this Court finds that the Board’s decision is an appealable adjudication
properly before this Court, it must now undertake a review of the Board’s decision. The
Local Agency Law prescribes the standard of review for this Court. As in this matter,
where a full and complete record of the proceedings was made before the local agency,
this Court shall affirm the adjudication after a hearing unless: (1) the adjudication
violates a constitutional right of appellant, (2) the adjudication is not in accordance with
law, (3) the provisions of the Local Agency Law have been violated, or (4) any finding of
fact made by the agency and necessary to support its adjudication is not supported by
substantial evidence. 2 Pa.C.S.A. § 754(b). Petitioner argues that the Board’s decision
8
was not supported by substantial evidence and in fact amounted to a capricious
disregard of evidence. Respondent contends that the Board’s decision is supported by
substantial evidence and should be affirmed.
Petitioner has only raised the issue that the Board’s decision is not supported by
substantial evidence and does not argue that the Board’s decision violated a
constitutional right, was not in accordance with law, or violated the Local Agency Law.
This Court finds that the Board’s decision does not violate a constitutional right or Local
Agency Law and was in accordance with law. Therefore, this section will focus solely
on whether the Board’s decision is supported by substantial evidence.
A. Substantial Evidence
Substantial evidence has been defined as “such relevant evidence that a
reasonable mind might accept as adequate to support a conclusion”. Bonatesta v.
Northern Cambria School Dist., 48 A.3d 552, 558 (Pa. Cmwlth. 2012). The court must
view the evidence in the light most favorable to the party that prevailed before the fact
finder. Id. Credibility of the witnesses is determined by the school board and the court
will only overturn a credibility determination if it is arbitrary and capricious,
fundamentally dependent on a misapprehension of material facts, or flawed as to render
it irrational. Id.
Furthermore, a petitioner appealing a school board decision concerning a matter
given to the board’s discretion has a heavy burden because the courts will not interfere
with a board’s decision “unless it is apparent that the school board’s conduct is arbitrary,
capricious and to the prejudice of public interest”. Commonwealth v. Hall, 455 A.2d
674, 676 (Pa. Super. 1983). A school board’s lack of wisdom or mistaken judgment is
9
not enough to find a board’s decision arbitrary or capricious. Id. In short, the courts are
not to act as “super” school boards substituting their own knowledge for that of the
board’s. Id.
Turning to the matter at hand and viewing the evidence in the light most
favorable to Respondent, this Court finds that there is substantial evidence to affirm the
Board’s decision to uphold Petitioner’s suspension for three days without pay. The
Board, after an evidentiary hearing, made extensive findings of fact and conclusions of
35
law that are all supported by testimony from the hearing. The Board based its
decision on the fact that Petitioner admitted to sharing the results of the investigation
36
with one staff member without offering a satisfactory mitigating reason for her actions.
Since Petitioner did not explain herself at the time when she was questioned by Small
regarding the breach of confidentiality and Petitioner admitted to sharing the results
without knowing if she was in fact able to, there is substantial evidence that Petitioner
violated the confidentiality of the investigation.
Petitioner argues that the Board’s decision was not supported by substantial
evidence because it did not take into consideration the fact that Petitioner believed the
letter she received containing the results of the investigation was not confidential
because it was not stamped confidential. However, the Board did not find Petitioner’s
testimony regarding this fact credible. This Court will not disturb the Board’s credibility
findings. There was substantial evidence relating to the instructions Petitioner received
to keep the investigation process confidential. Also, Petitioner’s training as a principal
to deal with matters of confidentiality is relevant. The Board was allowed to consider
35
See, Findings of Fact
36
Findings of Fact, p. 7
10
these factors in determining that Petitioner’s testimony regarding the confidentiality of
the investigative results was not credible.
Additionally, the Board did not find the testimony of Petitioner that she had a
compelling professional necessity to disclose the results of the investigation in order to
restore morale to the building to be credible. Again, this Court will not disturb the
Board’s findings of credibility. While there was evidence presented to the Board
concerning a morale issue at NCMS, there was also substantial evidence that Petitioner
did not offer this explanation for revealing the results when Small questioned her about
breaching confidentiality. Furthermore, the Board found that there was no law
concerning restoring morale that required Petitioner to reveal the results and that
revealing the results of a harassment investigation could discourage victims of
harassment from filing a complaint. The Board’s decision to uphold Petitioner’s
suspension was based upon substantial evidence.
B. Capricious Disregard of Evidence
This Court also finds that the decision of the Board did not amount to a
capricious disregard of evidence. A school board has capriciously disregarded
evidence only where the board has willfully and deliberately disregarded “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 (holding that school
board capriciously disregarded evidence of a breathalyzer test and officer’s written
report indicating petitioner was not under the influence when it determined petitioner to
have acted immorally for driving under the influence).
11
In the current matter, the Board did not capriciously disregard evidence in
upholding Petitioner’s suspension. Petitioner argues that the Board capriciously
disregarded the fact that Beardsley also disclosed details about the investigation.
However, this fact does not amount to a capricious disregard of evidence. The hearing
held by the Board only addressed the validity of Petitioner’s suspension. Whether or
not Beardsley or anyone else may have disclosed information was not a fact necessary
for the Board to reach a result regarding Petitioner.
Petitioner further argues that the Board capriciously disregarded evidence that
the APP Petitioner was found to have violated does not specifically address the results
of investigations and there was no evidence suggesting that the results were
confidential. The Board did not capriciously disregard these facts, but simply found that
based on her training as a principal and what she was told regarding the confidentiality
of the investigation, the results of the investigation were to remain confidential and
Petitioner should have been aware of the confidentiality requirement.
This case is fundamentally different from Bonatesta, where the board failed to
consider reliable contradictory evidence such as a breathalyzer test. Here, the Board
considered all the available evidence, including Petitioner’s own admission that she
shared the results of the investigations with a staff member. As such, this Court finds
that the Board did not capriciously disregard evidence. Therefore, the Board’s decision
to uphold Petitioner’s suspension is affirmed. Petitioner is not entitled to relief.
Accordingly, the following order will be entered:
12
ORDER OF COURT
th
AND NOW
this 26 day of February, 2013, upon consideration of Petitioner’s
Petition for Review, the briefs filed by the parties, and after argument,
IT IS HEREBY 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
Counsel for Petitioner
Philip H. Spare, Esquire
Gareth D. Pahowka, Esquire
Counsel for Respondent
13