88 Pa. Commw. 300 | Pa. Commw. Ct. | 1985
Opinion by
The School District of Lancaster (School District) has filed a petition for review with our Court seeking an order directing the Office of the Auditor General (Auditor General or Auditor) to conduct a hearing on the question of whether certain School District teachers had been properly certified.
The facts are not in dispute. On March 28, 1983, the Auditor General filed an audit report of the School District’s financial statements for the 1980 and 1981 school years. The report concluded that the School District had employed four improperly certified teachers in 1980 and six improperly certified teachers in 1981, and therefore recommended that the Pennsylvania Department of Education (Department) withhold $25,689.00 in future education subsidies. The School District appealed to this Court, alleging that
The School District and the Auditor General have now filed a joint brief in which they argue that, contrary to our holding in Lancaster I, an audit report is not an adjudication because it contains no final order, but merely contains recommendations subject to final approval by the Department.
In Lancaster 1, we quashed an appeal from the Department of Education’s decision upholding the recommendations of an Auditor General’s report, concluding that under our decision in Pennsylvania Auditor General v. East Washington Borough, 23 Pa. Commonwealth Ct. 382, 351 A.2d 687 (1976), it was the Auditor General’s report itself that was the final order which should have been appealed, not the decision of the De
The East Washington case dealt with the law applicable to police pension funds, under which apportionments of state revenues to local municipalities require that a warrant be drawn by the Auditor General.
If at any time the [Auditor General’s Office] shall find that any money received by any . . . public agency, has been expended for any purpose other than that for which it was paid, it shall forthwith notify the Governor, and shall decline to approve any further requisition for the payment of any appropriation, or any further portion of any State tax, to such . . . public agency, until an amount equal to that improperly expended shall have been expended for the purpose for which the money improperly expended was received from the State Treasury. (Emphasis added.)
Thus, in East Washington we reasoned:
Based upon his determination that the funds were misappropriated, the Auditor General, pursuant to the mandate of Section 403 of the Fiscal Code, declined to approve any further payment of these tax revenues by the State Treasurer to Borough. The action of the Au*304 ditor General was final, affected Borough’s property rights, and was, therefore, an “adjudication” within Section 2 of the [Administrative Agency Law]. (Emphasis added.)
23 Pa. Commonwealth Ct. at 385, 351 A.2d at 688. It is clear from this language in East Washington that its holding that the Auditor’s report was an adjudication rested upon the Auditor’s exercise of his statutory authority to decline to approve a requisition for payment.
Unlike the law applicable to East Washington, the Public School Code of 1949 (School Code)
This conclusion is further supported by the Department’s own procedure, adopted pursuant to an official management directive,
For these reasons we must conclude that our decision in Lancaster I incorrectly applied previous case law to the facts of that case. Insofar as that case holds that a report of the Auditor General reeommend
Since we have held that it is the Department of Education which has the authority to issue a final adjudication in this matter, we vacate our opinion and order óf May 9, 1984, and dismiss the present appeal from the filing of the audit report.
Order
Now, March 21,1985, the order of this Court in the above referenced matter, dated May 9, 1984, is hereby vacated. The appeal of the School District from the filing of the audit report by the Auditor General is hereby dismissed.
School District of Lancaster v. Office of the Auditor General (No. 1098 C.D. 1983, filed May 9, 1984), slip op. at 2.
Id., slip op. at 2 n.1.
Section 2(a) of the Act of June 28, 1895, P.L. 408, as amended, 72 P.S. §2262(a).
Act of April 9, 1929, P.L. 343, as amended, 72 P.S. §403.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 to 27-2702.
24 P.S. §25-2518.
Section. 2518 of the School Code states that “[t]he Superintendent of Public Instruction shall deduct [the forfeited] sum or sums from the amount of the Commonwealth appropriation otherwise due such district or intermediate unit under the provisions of this act.” Reference to the Superintendent of Public Instruction is deemed to refer to the Secretary of Education under Section 3(b) of the Act of July 24, 1969, P.L. 181, 71 P.S. §1039(b).
Management Directive No. 305.1 Amended, issued by the Governor’s Office on April 17, 1981, establishes a nine-step procedure to be followed by the Department in reviewing audit reports of local public educational agencies, and includes the creation of an Audit Review Committee.
The Department has filed an amicus curiae brief in this case arguing that neither the Auditor General nor the Department has rendered an adjudication in the present case. The Department alleges that since the School District admits that its teachers were not certified, the Department had no discretion under Section 2518 of the School Code but to withhold the School District’s subsidies. Thus, the Department characterizes its actions as purely ministerial in nature. This argument does not alter the fact, however, that it is the Department’s duty to make the factual determination as to whether the teachers were properly certified. An admission by a party on this issue does not relieve the Department from adopting findings of fact based upon such admission, and thus cannot transform a discretionary act by the Department into one purely ministerial in nature.