91 Pa. Commw. 332 | Pa. Commw. Ct. | 1985
Opinion by
This is an appeal by Erie Ward who petitions for review of an order of the Secretary of Education (Secretary) which sustained the decision of the Board of Education of the School District of Philadelphia (Board) which dismissed him as a professional employee effective June 30, 1981. We affirm.
In this appeal, Ward contends that (1) the Secretary’s findings are not supported by substantial evidence; (2) the Secretary erred as a matter of law when he held that his conduct constituted persistent negligence and willful and persistent violation of the Public School Code of 1949 (School Code) ;
We shall first examine Ward’s contention that the Secretary’s findings of fact necessary to support his dismissal are not supported by substantial evidence.
Ward also challenges two of the Secretary’s findings relating to the charge that he used improper force in ejecting a student from his classroom and was intoxicated at the time. In that the Secretary did not reach this charge when he sustained the Board’s dismissal of him, that issue is not now before us. As the Secretary affirmed the Board’s decision solely upon the abuse of sick leave charge, the findings pertaining to the other charge are irrelevant for purposes of this appeal.
We now consider Ward’s next contention which is that the Secretary erred as a matter of law when he concluded that his conduct constituted persistent negligence and willful and persistent violation of the school laws under Section 1122 of the School Code, 24 P.S. §11-1122, and a valid cause for his dismissal. We have previously held that abuse of sick leave may constitute proper grounds for dismissal of a tenured professional employee under Section 1122. See e.g., Bethel Park School District v. Krall, 67 Pa. Commonwealth Ct. 143, 445 A.2d 1377 (1982), cert. denied, 464 U.S. 851, 78 L. Ed. 2d 148 (1983); Clairton School District v. Strinich, 50 Pa. Commonwealth Ct. 389, 413 A.2d 26 (1980), aff’d, 494 Pa. 297, 431 A.2d 267 (1981), cert. denied, 456 U.S. 982 (1982); Lucciola v. Secretary of Education, 25 Pa. Commonwealth Ct. 419, 360 A.2d 310 (1976). Our review of the record satisfies us that the Secretary’s conclusion that Ward’s con
We now turn to Ward’s final contention which is that the Board violated Section 1129 of the School Code, 24 P.S. §11-1129, by failing to allow a Board member to change his vote and when it merely voted to dismiss him rather than voting on each specific charge. We disagree with both prongs of this contention.
■Section 1129 requires that a two-thirds majority vote of the school board, to be recorded by roll call, is required to discharge a tenured professional employee. If the vote to discharge is less than a twóthirds majority, the professional employee shall be retained. See also, In re Swink, 132 Pa. Superior Ct. 107, 200 A. 200 (1938). Here, after holding two hearings, the Board, on October 12, 1982, after a roll call vote, voted six to three in favor of a resolution terminating the services of Ward effective June 30, 1981. Six votes in favor of dismissal out of nine Board members constitutes the two-thirds majority necessary to dismiss a professional employee under Section 1129.
We find equally unmeritorious the second prong of Ward’s final contention, his challenge to the sufficiency of the Board’s resolution dismissing him. Ward contends that since the Board’s resolution which dismissed him did not specifically state which charges were substantiated by the evidence,
Having disposed of all of Ward’s contentions in favor of the Board, we shall, therefore, affirm the Secretary’s order.
Order
And Now, this 22nd day of August, 1985, the Order of the Secretary of Education for the Commonwealth of Pennsylvania at Teacher Tenure Appeal No. 14-82, dated May 8, 1984, which dismissed the appeal of Eric Ward and sustained the decision of the Board of Education of the School District of Philadelphia is hereby affirmed.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101-27-2702.
The findings of the Secretary which Ward contends are unsupported by substantial evidence are findings five, six, eleven, thirteen, and seventeen. Those findings read as follows:
5. When Appellant [Ward] returned to work on November 3, 1980, he had no sick leave left; it was the last day he could return before having unexcused absences, [citations to record omitted].
6. The policy of the District was that an employee who returns after a year of sick leave and uses more than five days of sick leave in- the first five months after returning may be terminated, [citations to record omitted].
11. While teaching at the Prince Hall School, Appellant used more than ten days of sick leave by April 1, 1981. [citations to record omitted].
13. On that same day [March 12, 1981], immediately after the incident [throwing a student out of his classroom], the child stated to Ms. Young [the principal of the Prince Hall School] that Appellant had used excessive physical force, [citations to record omitted].
17. The medical report from this [Health Services Office] examination revealed that Appellant was slightly un*336 der the influence of alcohol [at the time of the incident], [citations to record omitted],
“Substantial evidence” has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla of evidence or suspicion of the fact to be established. E.g., Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) ; Barnes v. Department of Justice, 70 Pa. Commonwealth Ct. 47, 452 A.2d 593 (1982).
The Board’s resolution of October 12, 1982, which dismissed Ward as a professional employee, reads as follows:
WHEREAS, Eric Ward was suspended based on charges brought against him,
WHEREAS, a hearing on those charges was conducted before the Board of Education, and
WHEREAS, the Board of Education has reviewed the notes of testimony; now, therefore, be it
RESOLVED, that Eric Ward be terminated from service effective .Tune 30, 1981.