9 Pa. Commw. 62 | Pa. Commw. Ct. | 1973
Opinion by
This is an appeal taken by the Board of School Directors of the Abington School District (Board) from an order of the Secretary of Education of the Commonwealth of Pennsylvania (Secretary), dated September 13, 1972, wherein the appeal of Erwin F. Albrecht, Jr. (Albrecht), was sustained. Albrecht, a professional employe of the Board, had taken an appeal to the Sec
The record establishes
In August of 1970, Albrecht had received a satisfactory rating from his superior, the Principal; but in February and June of 1971, he received unsatisfactory ratings. After his unsatisfactory ratings, Albrecht had discussions with the Superintendent of the School District and the Principal. He was advised in June, 1971, by the Superintendent, that “whatever your future in the Abington School District, it is not at North Campus.” There apparently were a number of conferences following the June unsatisfactory rating report culminating in a meeting on July 2,1971, wherein Albrecht was advised that his assignment at the North Campus School would terminate on July 9, 1971, and that he would be granted 20 days summer work at his same salary as Assistant Principal, and that commencing with the 1971-72 school year, he would be reassigned as a teacher of Social Studies at the South Campus School. In view of the fact that in the adjudications of both
Our reading of this record makes it abundantly clear that after the receipt of Albrecht’s letter, the Principal of the North Campus School prepared a list of 24 specifications or charges intended as support for the transfer of Albrecht as described above. This list of charges was signed, however, by the Superintendent, and is dated September 29, 1971. Although notice of the hearing before the Board was signed by the President and Secretary, counsel for the Board stated for the record that the Board did not see the charges until the first hearing before the Board, namely October 11,1971. It is important to note that Albrecht had already been demoted by his new assignments, effective July 9,1971. After the lengthy hearings were concluded on November 18,1971, the Board met on December 2,1971, wherein the resolution or adjudication of the Board was issued by a vote of six to two (with one intentional ab
Throughout all of these proceedings, before the Board, the Secretary, and this Court, counsel for Albrecht has registered his protest and opposition to the procedure followed by the Board. Without taking additional testimony or receiving additional evidence, the Secretary held that the procedure followed by the Board was “void ab initio” because of the failure of the Board to satisfy the procedural requirements of the Public School Code of 1949 (School Code), Act of March 10, 1949, P. L. 30, Article II, Sections 1127 and 1151, as amended, 24 P.S. §11-1127 and 11-1151.
The only question before us is whether Albrecht’s unconsented to demotion is valid when tested by the procedural aspects of the statute vis-a-vis the Board’s procedure, as disclosed by the record in this case.
Section 1151 of the School Code, 24 P.S. §11-1151 reads as follows: “The salary of any district superintendent, assistant district superintendent or other professional employe in any school district may be increased at any time during the term for which such person is employed, whenever the bowrd of school directors of the district deems it necessary or advisable to do so, but there shall be no demotion of any professional employe either in salary or in type of position, except as otherwise provided in this act, without the consent of the employe, or, if such consent is not received, then such demotion shall be subject to the right to a hearing before the board of school directors and an appeal in the same manner as hereinbefore provided in the case of the dismissal of a professional employe.”
The Board argues that the school administration was misled by Albrecht’s tacit acceptance of his new assignments or duties after July 9, 1971, and that therefore, it was not necessary for the Board to become involved in what at that time appeared to the administrative staff to be a consensual transfer. The Board also argued that because it is performing a quasi-judicial function, it would be improper for it to pass upon the demotion prior to its hearing the facts of the case and therefore, under the Board’s interpretation of the
Albrecht argued that the Secretary was correct in his adjudication because the law provides that the procedural approach to a demotion must be strictly followed by the Board.
One of the problems confronting the Board in its argument is that its main premise is deeply rooted in what the administrative staff of the Board thought was a reassignment of duties for Albrecht, not amounting to a demotion. Whereas the Board, itself, and later the Secretary, properly concluded that the intended reassignment was in fact a demotion. There is no doubt that the Legislature intended the administrators of school districts to have the power to assign its professional employes to particular classes, or to particular schools or positions in accordance with its judgment and discretion reasonably exercised. As our Supreme Court said in the case of Smith v. Darby School District, 388 Pa. 301, 306, 130 A. 2d 661, 665 (1957): “A professional employee, under the tenure provisions of the Code, does not acquire a vested right to teach in any certain class or in any certain school. Commonwealth ex rel. Wesenberg v. Bethlehem School District et al., 148 Pa. Superior Ct. 250, 256, 24 A. 2d 673. The only limitation on a school board’s general power is that the work to which a professional employee is assigned be of a rank or class equivalent to that by which his permanet status was acquired and one for which he is qualified.”
“LikeAvise, in dismissing a teacher, an observance of the procedure prescribed is mandatory.” 132 Pa. Superior Ct. at 115, 200 A. at 204. See also Snyder v. Washington Township School District, 117 Pa. Superior Ct. 448, 454, 178 A. 312 (1935). As we read the cases, where a school board undertakes to terminate a contract, dismiss or demote a professional employe, the procedure set forth in the School Code must be strictly followed, and failure on the part of the Board to comply therewith renders an attempted demotion abortive. We can find no proAdsion in the School Code conferring upon the administrative staff of a school district, whether it be the Superintendent or the Principal, the authority to demote a professional employe. By virtue of the Avell-established fact of demotion in this case, all of the proceedings prior to September 29, 1971 (the date of the letter signed by the President and Secretary of the Board addressed to Albrecht granting him the right to a hearing on his allegation of demotion) were performed by the administrative staff of the school district and not by the Board.
Our reading of Sections 1151 and 1127 of the School Code leads us to conclude that only the Board may demote a professional employe, and that such demotion must strictly follow the procedure set forth in Section 1127 for dismissal of professional employes. Our Supreme Court in Tassone v. Redstone Township School District, 408 Pa. 290, 183 A. 2d 536 (1962) (although this case involved a de novo hearing) established the principle that the hearing provided for demotions was established for the purpose of permitting the school district to present its reasons for the proposed demotion. The Court there said: “The prime function of any hearing procedure is to require the official authority to explain its action to the professional employee affected and to afford him the opportunity to present his position in light of such explanation.” 408 Pa. at 293,183 A. 2d at 538. The Court here recognized that, “The demotion, moreover, cannot become effective until after the hearing has taken place.
“ ‘Time, and again our courts have stated that the purpose of the tenure provisions of the School Code is the maintenance of “an adequate and competent teaching staff, free from political and personal arbitrary interference, whereby capable and competent teachers [might feel more secure] . . . and more efficiently perform their duty of instruction” ....’” (Emphasis in original.) Citing Smith v. Darby School District, 388 Pa. at 311, 130 A. 2d at 667. 408 Pa. at 294, 183 A. 2d at 539.
In this case, the administrative staff of the school district had already accomplished the demotion before the Board had any notice or knowledge of same. To
We repeat, the record in this case is not one where the professional employe sat back and asserted no claim .to an improper procedural defect in his demotion. Albrecht’s counsel, in every proceeding, has raised this issue. It would have been a simple matter for the Board to have cured the defects at the outset. The Board only needed to have passed a resolution that it had sufficient evidence to support its belief, to demote Albrecht by some given date, and therein direct the Secretary and President of the Board to serve notice upon Albrecht of this fact and to advise him of his right to a hearing. At this point, Albrecht would have had a decision to make: whether to request the hearing or consent to the demotion. The Board did not follow this procedure. Instead, it permitted its administrative staff to demote Albrecht without Board action, and only after Albrecht’s demand for a hearing, set the wheels in motion for a hearing several months later. As alluded to hereinbefore, the Board did not know the contents of the charges which had been promulgated
In summary, our analysis of tbe law and review of the record in this case permits us to conclude that the action of the Board violated Albrecht’s rights under the teacher tenure provisions of the School Code and therefore was void. As a result, we must affirm the adjudication of the Secretary. We therefore
Order
And Now, this 22nd day of May, 1973, the order of the Secretary of Education is affirmed, and it is hereby ordered that the appeal of the Board of School Directors of the Abington School District is dismissed, and said School Board is ordered to reinstate Erwin P. Albrecht, Jr. to the position of Assistant High School Principal.
The Board, in its “Petition To Be Excused From Printing the Record,” represented to this Court that the issues of fact “are basically uncontroverted,” and a reading of all of the briefs permits us to assume the only issues presented are questions of law.
The decision of demotion, after bearings, by the School Board was based on (1) failure to perform the duties of an assiatant principal, (2) demonstrating poor judgment, and (3) unbecoming conduct
We notice with interest in all of the cases cited by the Board, in its brief, that the board in question had taken the initial action, whether it was a dismissal or a demotion. The Board relies heavily upon the case of Mullen v. DuBois Area School District, 436 Pa. 211, 259 A. 2d 877 (1969). This citation is inapposite, as was commented upon by our Supreme Court in Nicolella v. Trinity Area School District School Board, 444 Pa. 544, 281 A. 2d 832 (1971).