Sch. Dist. of Phila. v. Jones

• Decision Date: 02 June 2016
• Docket Number: No. 2150 C.D. 2013 , No. 2230 C.D. 2013,2150 C.D. 2013
• Citation: Sch. Dist. of Phila. v. Jones, 139 A.3d 358 (Pa. Commw. Ct. 2016)
• Parties: The SCHOOL DISTRICT OF PHILADELPHIA, Petitioner v. Ellis JONES, Respondent. Ellis Jones, Petitioner v. The School District of Philadelphia, Respondent.
• Court: Pennsylvania Commonwealth Court

139 A.3d 358

The SCHOOL DISTRICT OF PHILADELPHIA, Petitioner

v.Ellis JONES, Respondent.

Ellis Jones, Petitioner

v.The School District of Philadelphia, Respondent.

No. 2150 C.D. 2013

No. 2230 C.D. 2013

Commonwealth Court of Pennsylvania.

Argued March 9, 2016.

Decided June 2, 2016.

Reconsideration Denied July 18, 2016.

Paul J. Cianci, Huntingdon Valley, for designated petitioner The School District of Philadelphia.

Richard W. Migliore, Havertown, for respondent.

BEFORE: MARY HANNAH LEAVITT, President Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge, and MICHAEL H. WOJCIK, Judge.

OPINION BY Judge ANNE E. COVEY.

The School District of Philadelphia (District) and Ellis Jones (Jones) petition this Court for review of Acting Secretary of Education Carolyn C. Dumaresq's (Acting Secretary) November 5, 2013 order reinstating Jones to his position as a teacher and professional employee from August 10, 2009 to December 15, 2010, and sustaining Jones' employment termination as of December 15, 2010. The District presents six issues for this Court's review: (1) whether the procedures the District used to terminate Jones' employment complied with the Public School Code of 1949 (School Code);¹ (2) whether the School Code requires the School Reform Commission (SRC) to resolve before the issuance of charges that evidence existed that, if true, justified employment termination; (3) whether the District was required to present evidence that the SRC read or knew about the charges or the transcript of the employment termination hearing; (4) whether the August 10, 2009 letter imposed a suspension without pay upon Jones; (5) whether the SRC would have violated Jones' due process rights if it made a pre-charge determination; and (6) if the Court rules that there were procedural defects, whether the proper remedy is remand.

Jones presents six issues for this Court's review: (1) whether the District failed to comply with the mandatory procedures set forth in the School Code when the District terminated Jones' employment as a teacher on August 10, 2009 without a hearing, and then belatedly held a hearing eight months later which also did not comply with the School Code, and finally resolved to ratify Jones' illegal employment termination another seven months later on December 15, 2010; (2) whether the failure of the District and the SRC to comply with the procedural safeguards of the School Code is a Due Process Clause violation of the United States (U.S.) Constitution; (3) whether the Acting Secretary erred when, on reconsideration, she changed Secretary of Education Ronald J. Tomalis' (Secretary) decision to sustain the illegal termination of Jones' employment as of December 15, 2010, when there was no legal basis for such partial reversal; (4) whether the two year undue delay of the Acting Secretary in issuing her reconsidered Opinion created the appearance of impropriety and fatally compromised Jones' due process rights by inhibiting the impartiality of the tribunal; (5) whether the SRC met its burden of proof to sustain a charge of immorality where the SRC presented no unbiased witness who said that Jones' conduct offended the morals of the community, and whether the SRC Chairman improperly refused to allow Jones' witness, Eugene Woehr (Woehr), a department head at Dobbins Area Vocational Technical School (AVTS), to testify that Jones did nothing which rose to the level of immorality within the community, and that the allegations against Jones were, in his words, absurd; and (6) whether the Acting Secretary improperly took words and phrases from Jones' conversations with individual students out of context and purposefully reconstructed them in an inflammatory manner, without proper citation to the record, in order to rationalize the reversal of the Secretary's decision.

Background

The District hired Jones as a teacher and professional employee on September 1, 2002. Jones was a vocational teacher at AVTS for six years until the electronics program was discontinued at that location. During the 2008–2009 school year, Jones was assigned as a math teacher at Mastbaum AVTS (Mastbaum). On or about April 30, 2009, Mastbaum's principal Mary Dean (Dean) received a letter containing alleged statements Jones made in his classroom while teaching. The letter was signed by the project manager and three corps members of City Year Greater Philadelphia (City Year) that spent time in Jones' classroom working with him to help his students. City Year members include assistant teachers, tutors and mentors.

In the City Year letter, the corps members related specific instances of Jones speaking unprofessionally to his students, including using foul language and inappropriate discussion topics such as sex. See Reproduced Record (R.R.) at 628a–630a. Upon receiving the City Year letter, Dean asked a school police officer to conduct an investigation by randomly selecting pupils from a list of Jones' students and asking them to write a statement about Jones. Seven students prepared written statements, five of which confirmed the allegations set forth in the City Year letter regarding Jones' speaking improperly to his students.

After Dean received the statements from Jones' students, she conducted an investigatory conference on June 1, 2009, which included Jones, Philadelphia Federation of Teachers (PFT) representative Evette Jones (PFT Jones), and the District's labor relations assistant Ted Bywalski (Bywalski). Jones admitted to making some of the statements, but asserted that they were taken out of context in some cases and were misinterpreted in others. He also maintained that he was trying to create an atmosphere of trust and rapport with his students.

After the June 1, 2009 investigatory conference, Dean prepared an unsatisfactory incident report (SEH–204) and recommended that Jones' employment with the District be terminated. Jones sent a letter dated June 15, 2009 to Dean responding to the SEH–204, wherein, he apologized for his remarks and repeated that he was trying to build trust and rapport with the students, and that some remarks were taken out of context and misinterpreted while others were inaccurate and a misrepresentation of what happened in the classroom. Jones further stated that since he received the concerns from Dean and the City Year members, he immediately changed his approach and apologized multiple times.

On June 24, 2009, Assistant Regional Superintendent James Douglass (Douglass) held a second-level conference regarding the SEH–204. In attendance were PFT Jones and Bywalski. PFT Jones spoke on Jones' behalf and stated that Jones apologized, that the tactic he used to gain respect of the students was not appropriate, that his comments were taken out of context and that he was dedicated to his students. After the June 24, 2009 meeting, Douglass recommended that Jones be discharged from his employment with the District.

By August 10, 2009 letter, signed by the District Superintendent and the SRC Chairman, Jones was notified that the charges against him constituted “a willful violation of or failure to comply with the School Laws of this Commonwealth, and other improper conduct such as to constitute cause pursuant to ... Section [1122] of the [School Code, 24 P.S. § 11–1122.]” R.R. at 727a. The letter informed Jones that they would recommend to the SRC that his employment with the District be terminated, and that he had a right to request an SRC hearing. In the same letter, Jones was told that the District's payroll department would be advised to make the necessary salary adjustments. Jones requested a hearing which was held on April 16, 2010 before the SRC Chairman.²

Thereafter, on December 15, 2010, the SRC resolved to dismiss Jones, effective August 14, 2009. Jones appealed from the SRC's decision to the Secretary. On September 13, 2011, the Secretary reversed the SRC's decision, reinstated Jones and ordered payment of any compensation that he lost due to his dismissal. On September 28, 2011, the District filed a petition for reconsideration (Reconsideration Petition) of the Secretary's order pursuant to Section 35.241(a) of the General Rules of Administrative Practice and Procedure, 1 Pa.Code § 35.241(a). On October 11, 2011, the District appealed from the Secretary's order to this Court. On October 27, 2011, the Secretary granted the District's Reconsideration Petition and issued a briefing schedule.

On December 6, 2011, this Court denied the District's request to stay this matter pending the Secretary's reconsideration decision because the Reconsideration Petition was a ity. However, this Court construed the application for stay to include a request to remand the matter to the Secretary, and remanded the case to the Secretary with directions to consider the District's Reconsideration Petition within thirty days. On December 20, 2011, the Secretary granted the District's Reconsideration Petition. On November 5, 2013, the Acting Secretary reinstated Jones' employment from August 10, 2009 to December 15, 2010, and terminated Jones' employment as of December 15, 2010. The District and Jones appealed to this Court.³

Jones' Non–School Code Arguments ⁴

Two Year Delay

Jones argues that the two year undue delay of the Acting Secretary in issuing her reconsidered decision created the appearance of impropriety and fatally compromised Jones' due process rights by inhibiting the impartiality of the tribunal. Jones cites Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992), to support his position. The District rejoins that the delay did not constitute a due process violation because Jones did not allege harm or prejudice caused by the delay, and cites Kinniry v. Abington School District, 673 A.2d 429 (Pa.Cmwlth.1996).

In Lyness, the Pennsylvania Supreme Court held: “Whether or not any actual bias existed as a result of the [b]oard...