Seltzer v. DEPARTMENT OF EDUC.

• Citation: 782 A.2d 48
• Court: Commonwealth Court of Pennsylvania
• Decision Date: 06 August 2001
• Parties: Lucille SELTZER, Petitioner, v. DEPARTMENT OF EDUCATION and Professional Standards and Practices Commission, Respondent.

782 A.2d 48

Lucille SELTZER, Petitioner, v. DEPARTMENT OF EDUCATION and Professional Standards and Practices Commission, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 6, 2001.

Decided August 6, 2001.

Richard W. Rogers, Norristown, for petitioner.

Ann G. St. Ledger, Harrisburg, for respondent.

Before FRIEDMAN, Judge, FLAHERTY, Senior Judge and RODGERS, Senior Judge. FLAHERTY, Judge.

Lucille Seltzer (Educator) appeals the order of the Professional Standards and Practices Commission (Commission) which revoked her teaching certificates. We affirm.

On July 1, 1993, Educator assumed the position of Pupil Services Coordinator for the Western Montgomery Center for Vocation and Technical Studies (Center). In January 1995, the Administrative Director of the Center rated Educator as unsatisfactory in the areas of personality, preparation and student reaction for the period of June 1994 to December 1994. Also in January 1995, the Office of Auditor General's Bureau of School Audits (Auditor) conducted a regularly scheduled audit of the Center for years 1992-1993 and 1993-1994. During the course of the audit, the Auditor discovered discrepancies between student records maintained by the Center and records maintained by the local high schools, whose students attend the Center. Based on initial findings, the Auditor performed a more extensive investigation and issued a final report to the Department of Education (Department) on August 25, 1995. These initial findings also prompted the Center to conduct its own investigation of Educator.¹

The Department filed a complaint against Educator on or about August 29, 1995. Following its own investigation, the Department filed a Notice of Charges (Charges) against Educator with the Commission. These Charges alleged that Educator's conduct was immoral, negligent, intemperate and incompetent, as defined by the Commission. See 22 Pa.Code § 237 defining terms set forth in Section 5 of the former Teacher Certification Law, Act of December 12, 1973, P.L. 397, as amended, formerly 24 P.S. § 12-1255, renumbered 24 P.S. § 2070.5.² The Charges also alleged unlawful use of a professional title and sexual harassment.

Under the then-existing Teacher Certification Law, the Department was required to follow a fairly extensive process. A disciplinary proceeding against a professional educator must be initiated by the filing of complaint with the Department. 24 P.S. § 2070.9(a). The relator can be any interested party who files a complaint within one year from the date of the occurrence of the alleged action or from the date of discovery. Id. The Department must then assemble any information relevant to the complaint and conduct a preliminary review of the allegation and record. Id. § 2070.9(e). If the Department believes that disciplinary action may be appropriate or that further investigation is necessary, then the Department must forward the record and recommendations to the Chief Counsel of the Department. Id. Counsel reviews whether the complaint alleges facts, which, if true, are sufficient to require discipline. Id. § 2070.9(f). If the facts are deemed sufficient, then the educator and relator are notified. Id. § 2070.9(f)(2).

The Department must then conduct a preliminary investigation to determine whether there is probable cause to believe that grounds for discipline exist. Id. If a finding of probable cause is made, the Department notifies the educator, relator, and transmits its preliminary findings to the local school board of the school the educator is or was last serving. Id. § 2070.9(f)(3).³ The school board is required to investigate the complaint and determine whether the educator is to be subject to local disciplinary actions. Id. § 2070.11(a). This determination, together with the findings, summary of evidence and recommendations of the school board, is then reported to the Department. Id. Upon receipt of this information, the Department may dismiss the charges, determine that sufficient punishment has been imposed by the school board or initiate hearing procedures. Id. § 2070.12.

Educator contends that the Commission's decision to revoke her teaching certificate is flawed because the complaint was never remanded to the school board for investigation. We conclude that procedurally the Department erred. The record clearly states that the Department was the relator in this matter. Further, the law mandates that unless, the school board is the relator, the complaint must be remanded to the school board.

In Gow v. Department of Education, 763 A.2d 528 (Pa.Cmwlth.2000), an educator was the subject of improper conduct charges before a school district. These charges were not sustained and the educator was reinstated. Id. at 531. Thereafter, several interested parties filed a complaint with the Department. Id. The Department issued a Notice of Charges against the educator and sought to have him disciplined under the Teacher Certification Law. Id. On appeal, the educator argued that the Department was estopped from disciplining him on the same allegations of conduct that could not be sustained before the school district. Id. We rejected this argument because the matter before the school district was related to the educator's employment. Id. at 532. The subject of the Department's action, however, was the educator's teaching certification. Id. We also held that the Commission was the ultimate factfinder. Id. at 531 citing 24 P.S. § 2070.14. Therefore, the school district's findings are not binding on the Commission. Nor under Section 2070.12 is the Department required to accord any weight to the school district's conclusion not to proceed when determining whether it should proceed with certification action.

In the matter sub judice, Educator has not articulated how she was harmed by the Department's failure to comply with the statutory procedure. Neither party has suggested what the intention of the General Assembly may have been in setting forth the remand requirement. We contemplate that there may be several interpretations. First, the Legislature may have only intended the school board to be informed of the complaint and have the opportunity to discipline the Educator with respect to her employment. The second interpretation, which we find more persuasive, is that the school board was not only to be given notice of the complaint and an opportunity to investigate, but to also establish and build a record for use by the Department.

The Commission has defined the terms set forth in the Teacher Certification Law, which describe the conduct that may result in licensure discipline. See 22 Pa.Code §§ 237.1-.9. These definitions, however, are not applicable to the conduct set forth in Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122. See 22 Pa.Code§ 237.2(a). Section 1122 provides certain causes (e.g., immorality, incompetence, intemperance, cruelty, persistent negligence) for termination of a teacher's contract. Although interpretation of these terms by school boards, the courts and the Secretary of Education under the School Code is not binding on the Commission under the Certification Law, decisions regarding the interpretation of the terms under the School Code will be regarded by the Commission as persuasive authority under the Certification Law. Id. § 237.1(c). Moreover, any conduct engaged in by Educator that is prohibited by the Public School Code of 1949 may be used as supporting evidence in cases of certification suspensions and revocations. Id. §§ 235.5 and 235.6(b). We do not conclude that Educator was either harmed or prejudiced by the Department's failure to remand this complaint to the school board. On the contrary, this error was harmless since Educator was not exposed to additional school board actions under the Code, which actions the Department may have used against Educator in the licensure revocation proceedings.

Educator next contends that the Hearing Examiner denied her motion to dismiss without explanation or rationale. The merits of Educator's motion were that the allegations contained in the Notice of Charges were not from an interested party within one year of the date of occurrence. R.R. at 96a 97a. The Hearing Examiner, however, did consider this contention and concluded that the Department was an interested party and also filed a timely complaint.⁴ See Proposed Decision and Order, R.R. at 1133a. Absent evidence that the Hearing Examiner simply did not rule on the motion or did not make findings regarding the merits of the motion, we do not subscribe to Educator's argument. As with our analysis, supra, the mere demonstration of a potential procedural error, without also alleging a resulting harm, is not sufficient reason to disturb an agency adjudication.⁵

Educator next argues that the facts found by the Hearing Officer and adopted by the Commission were not sufficiently specific, lacked credibility determinations and did not indicate which evidence was accepted or rejected. Educator filed exceptions with the Commission from the Hearing Officer's proposed decision and order. Following this filing, the Commission is required to consider the exceptions and file an opinion and order either affirming, reversing or modifying the hearing officer's decision. 24 P.S. § 2017.14. The Commission did so on June 27, 2000. The Commission issued a nine-page opinion that addressed Educator's exceptions and affirmed the Hearing Officer's conclusion.

Educator's suggestion that the lack of citation to the record for the 135 findings of facts renders the decision incapable of meaningful appellate review is without merit. Although Rule of Appellate Procedure 2132 requires citations to the record, we may waive egregious violations of the Rules, including citations to the record, when such omissions do not substantially interfere with our review of the appellate record. See e.g., In re M.T.,...