Opinion
No. 538 C.D. 2014
12-31-2014
Elaine Cutler, Petitioner v. Bellefonte Area School District, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Elaine Cutler petitions for review of an adjudication of the Secretary of Education (Secretary) that affirmed her dismissal by the Bellefonte Area School District (School District) as Principal of the Bellefonte Area Elementary School. The Secretary held that Cutler persistently and willfully violated official directives; was persistently negligent in the performance of her duties; and willfully neglected her duties. Cutler contends that the Secretary erred by capriciously disregarding Cutler's evidence that she did her job well and that missing deadlines for administrative tasks did not warrant her dismissal. We affirm.
Factual and Procedural Background
Cutler was employed by the School District as a principal from 1998 through June 2013. At the end of the 2011-12 school year, Dr. Cheryl Potteiger, the School District Superintendent, gave Cutler an unsatisfactory performance evaluation. As a result, Potteiger, in consultation with others in the Superintendent's Office, developed an improvement plan for Cutler to be implemented in the 2012-13 school year. At the end of the 2012-13 school year, Potteiger recommended to the School Board that Cutler be dismissed.
On June 25, 2013, the School District issued a "Statement of Charges" to Cutler containing 77 allegations, later reduced to 76, upon which Potteiger's recommended dismissal was based. The Statement of Charges listed deficiencies in Cutler's performance for both the 2011-12 and 2012-13 school years. Specifically, it alleged that Cutler did not complete teacher evaluations; did not timely submit information needed for planning and budgeting; did not conduct a severe weather drill at her school on the date scheduled for the entire School District; and did not effectively communicate with teachers and parents. The School Board asserted that these factual allegations established incompetency; a persistent and willful failure to comply with directives; persistent negligence in the performance of duties; and willful neglect of duties. A hearing on the Statement of Charges was conducted by the School Board over the course of three days in July and August of 2013.
Potteiger testified about her reasons for recommending Cutler's dismissal. She explained that teacher evaluations are required by state regulations. Non-tenured teachers must be observed four times throughout the school year; twice in the first semester and twice in the second semester. They must be evaluated in January and at the end of the school year, and the results recorded on a Pennsylvania Department of Education (PDE) 426 Form. Because tenured teachers may select from several different supervision plans, their required observation varies from one to three times per year. They are evaluated once, at the end of the school year, with the results recorded on a PDE-428 Form.
Notably, the Secretary affirmed Cutler's dismissal on the basis of failure to complete classroom observations (Charges 5-30 and 64-70); failure to complete teacher evaluations (Charges 74-76); failure to submit a timely budget (Charges 43-44); failure to conduct a severe weather drill (Charges 49-50); and failure to submit a timely eComprehensive Building Plan (Charges 40-41). The appeal to this Court relates solely to these Charges; accordingly, we limit our recitation of the evidence to that relevant to the Charges affirmed by the Secretary.
In August 2011, Potteiger held a meeting with all of the school principals, including Cutler. The principals were each assigned a list of the teachers to observe. Each principal also received a spreadsheet to keep track of their observations and the timeline for their completion. Potteiger advised the principals that their most important job duty was the observation and evaluation of teachers.
Throughout the 2011-12 school year, Potteiger contacted Cutler and reminded her of the need to complete her teacher observations, which included 13 non-tenured teachers and 14 tenured teachers. Potteiger testified that at the end of the 2011-12 school year "the observations were not done at all. She didn't complete one of them." Reproduced Record at 41a (R.R. ___). By contrast, the other school principals timely completed their assigned teacher observations.
The improvement plan for the 2012-13 school year set goals for Cutler, and the principal one was the timely completion of teacher observations and evaluations. Potteiger offered to assist Cutler with time management, but Cutler declined the offer.
Throughout the 2012-13 school year, Potteiger contacted Cutler about her assigned teacher observations. On May 30, 2013, Potteiger sent Cutler an e-mail, noting that six teacher observations remained outstanding. Cutler submitted four, albeit untimely, and the other two were never completed.
In addition, Cutler was responsible for 36 teacher evaluations, which had to be delivered to Potteiger by June 12, 2013, so that she could make promotion decisions for the next school year. On Monday, June 17, 2013, Dr. Potteiger sent Cutler an e-mail noting that she had not yet submitted her teacher evaluations. That day, Cutler responded "you should have them by the end of the week." R.R. 162a. On June 25, 2013, Cutler told Potteiger that she was still working on the evaluations. At that point, Potteiger suspended Cutler.
Potteiger testified about the allegation that Cutler's proposed school budget was late. At a meeting at the beginning of the 2012 school year, Potteiger gave all administrators the deadlines for the development of the 2013-14 School District budget. Cutler's proposed budget was to be filed with the District Business Office by February 28, 2013, but it was not. Further, Cutler did not seek an extension, as did two other School District administrators. The budget deadline was extended one day, to March 1, 2013; Cutler submitted hers on March 5 or 6, 2013.
Potteiger addressed the allegation about the severe weather drill, which is required by the Pennsylvania Emergency Management Agency. Potteiger testified that the school principal is responsible to conduct the drill as scheduled by PEMA. PEMA scheduled a drill for March 5, 2013, and every school held its drill on that date, save Cutler's school. As a result, Potteiger had to request special permission from PEMA to reschedule the drill, which was then held on March 15, 2013.
Dr. Michelle Saylor, assistant superintendent, also testified. She explained that the primary purpose of Cutler's improvement plan was to have her meet the deadlines for teacher observations and evaluations. Saylor stated that the meetings with Cutler were cordial and that Cutler expressed excitement about learning new organizational techniques. Unfortunately, Cutler did not improve.
Saylor testified about the School District's eComprehensive Building Plan. Saylor explained that on October 8, 2012, she sent a letter to all of the principals setting forth the dates relevant to this matter. She explained to the principals that timely submission of data was critical for a January 24, 2013, School District committee meeting. Saylor offered to meet with the principals individually for assistance, if needed. Several principals took advantage of this, but Cutler did not.
In her meetings with Cutler on her improvement plan, Saylor specifically asked Cutler if she had any questions about the eComprehensive Building Plan. Cutler responded that "she was fine with it, she was doing what she needed to do, and she would have things done when they were due." R.R. 741a-42a. On January 16, 2013, Saylor noticed that data on Cutler's school had yet to be entered into the online template and sent Cutler a "reminder" that it needed "to be done ASAP." School District Exhibit 15, R.R. 367a. Cutler responded that she was aware the deadline was coming up and "was fine." R.R. 742a. Nevertheless, the School District committee had no information about Cutler's school building at its January 24, 2013, meeting. Out of ten principals in the school district, Cutler was the only one that did not meet this deadline. Cutler submitted the information on January 25, 2013.
Cutler presented the testimony of Timothy Miller. Prior to his retirement in 2008, Miller had been a principal at three district schools, including Bellefonte Area Elementary School. Cutler succeeded Miller. Miller explained the challenges of being a principal at this school. Younger students have family issues and there "could be four or five student meltdowns in one day." R.R. 987a. This took time away from the administrative responsibilities of the principal.
Dr. Cathy Brachbill, who retired from the School District in 2012, also testified for Cutler. She explained that she had worked in the School District as a teacher, middle school principal, high-school assistant principal and School District director of curriculum. Brachbill testified she was unaware of any "hard deadlines set" for teacher observations. R.R. 1015a. Regarding the deadlines implemented with the teacher supervision plan in 2008, Brachbill stated "we know in real life these are goals to be, you know, goal deadlines, but the earth is not going to end if they are not met." R.R. 1015a-16a. She explained that if an observation report were not completed, it was presumed that the teacher's performance was satisfactory. Nevertheless, Brachbill acknowledged that teacher observations and evaluations had to be done, particularly for non-tenured teachers because it was the only way to move towards tenure.
Cutler testified. Cutler agreed that the meeting with Potteiger and Saylor to discuss her improvement plan were cordial, and Cutler believed she could meet its objectives in the upcoming school year. Nevertheless, she was unable to complete the teacher observation reports. She explained that she never "formally [wrote] up" and submitted the observations on her iPad because she "[r]an out of time." R.R. 1051a. As to the teacher evaluations, Cutler testified that she was working on them when she was terminated and her computer was reclaimed by school personnel. She had told Potteiger that the evaluations would be done in mid-June "so that she would quit bullying [her]." R.R. 1175a.
When questioned about the eComprehensive Building Plan, Cutler agreed that the deadline for submitting data on her school building was January 24, 2013. To the best of her recollection, she believed that she submitted it on that day. She described it as one of the many things she was scrambling to get done and was "running as fast as [she] could to do what [she] needed to do." R.R. 1084a. She conceded that she may not have submitted the data until after the scheduled meeting because she remembered submitting it "later in the evening or at night." Id.
Cutler also acknowledged that her proposed budget was submitted several days late and that she did not request an extension. In prior years, if she were going to be late with the budget, she informed the district administrator and he "always said it was okay." R.R. 1097a. She explained that she spoke to him as a courtesy and was not aware that there was a requirement that she ask for permission.
Cutler testified that when PEMA announces a severe weather drill, the school conducts it on the scheduled day, if possible. However, there has "been flexibility in the past for when you can get it done. In the past it has happened on that day." R.R. 1118a. Cutler did not recall why she did not conduct the 2013 drill on the scheduled day and acknowledged that she did not seek permission to do it on another day.
The School Board found that Cutler exhibited incompetent conduct; was persistently negligent in the performance of her duties; willfully neglected her duties; and persistently and willfully failed to comply with official directives. The School Board voted unanimously to dismiss her on September 10, 2013.
Cutler appealed to the Secretary. The Secretary conducted de novo review of the evidence presented to the School Board and found that it established that Cutler did not timely complete teacher observations and evaluations; did not submit a budget on time; did not submit an eComprehensive Building Plan on time; and did not conduct a mandatory severe weather drill on the scheduled date. The Secretary concluded that these failures constituted persistent and willful violations of the School District's rules and orders as well as persistent negligence in the performance of duties. The Secretary also concluded that Cutler's failure to complete the observations and evaluations of teachers on time constituted willful neglect of duties. The Secretary did not address other charges, explaining that the School District established three separate grounds for Cutler's dismissal, and one of these provided grounds for dismissal. The Secretary denied Cutler's appeal.
In her petition for review by this Court, Cutler raises three issues. First, she argues that the Secretary erred because the evidence does not support the conclusion that Cutler persistently and willfully violated school laws. Second, the Secretary erred because the evidence does not support a conclusion of persistent negligence in the performance of her duties. Third, she argues that the evidence did not prove willful neglect of duties.
Public School Code of 1949
Cutler's dismissal is governed by the Public School Code of 1949 (School Code). Specifically, Section 1122(a) of the School Code sets forth valid causes for termination of a professional employee's contract; it states:
Act of March 10, 1949, P.L. 30 as amended, 24 P.S. §§1-101 - 27-2702.
For purposes of Section 1122(a) of the School Code, a principal is a professional school employee. See Section 1101 of the Public School Code of 1949, 24 P.S. §11-1101 (defining "professional employe" to include a "principal.").
The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality; incompetency; unsatisfactory teaching performance
based on two (2) consecutive ratings of the employe's teaching performance that are to include classroom observations, not less than four (4) months apart, in which the employe's teaching performance is rated as unsatisfactory; intemperance; cruelty; persistent negligence in the performance of duties; wilful neglect of duties; physical or mental disability as documented by competent medical evidence, which after reasonable accommodation of such disability as required by law substantially interferes with the employe's ability to perform the essential functions of his employment; advocation of or participating in un-American or subversive doctrines; conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and wilful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe....24 P.S. §11-1122(a) (emphasis added).
"[T]he purpose of Section 1122 [of the School Code] is to provide 'the greatest protection possible against dismissal.'" McFerren v. Farrell Area School District, 993 A.2d 344, 353 (Pa. Cmwlth. 2010) (quoting Lauer v. Millville Area School District, 657 A.2d 119, 121 (Pa. Cmwlth. 1995)). As explained in Lauer, the dismissal of a professional employee requires a serious reason, not "picayune and unwarranted criticisms." Lauer, 657 A.2d at 123. Therefore, the grounds for dismissal listed in Section 1122 must be strictly construed in favor of the professional employee and against the school district.
Here, the Secretary held that the evidence supported three grounds for Cutler's dismissal: persistent negligence in the performance of duties; willful neglect of duties; and persistent and willful failure to comply with school directives. "This [C]ourt need only find one of the grounds for dismissal valid in order to affirm the Secretary's dismissal of [Cutler's] appeal." Horton v. Jefferson County—Dubois Area Vocational Technical School, 630 A.2d 481, 483 (Pa. Cmwlth. 1993).
Analysis
Cutler has maintained throughout her appeals that the evidence established that she did her job as school principal in a responsible manner, but this evidence was entirely ignored. She contends that she worked to the best of her ability and that the Secretary "failed to give appropriate weight and consideration" to her testimony. Cutler's Brief at 9. The School District counters that the Secretary as fact finder, decides what weight to assign to the evidence. More to the point, the evidence was undisputed that Cutler did not timely complete the administrative tasks assigned to her.
The Secretary has "the power to determine the credibility of witnesses, the weight of their testimony and the inferences to be drawn therefrom." Grant v. Board of School Directors of Centennial School District, 403 A.2d 157, 159 (Pa. Cmwlth. 1979). In appellate review, we "view the evidence in the light most favorable to the prevailing party" and "draw all reasonable inferences that can be drawn from the evidence in support of the fact-finder's decision in favor of the prevailing party." Fisler v. State System of Higher Education, California University of Pennsylvania, 78 A.3d 30, 42 n.15 (Pa. Cmwlth. 2013). Accordingly, we lack the authority to decide, in our judgment, whether the Secretary should have given more consideration to Cutler's evidence and reach the conclusion that, overall, she performed well as a school principal.
Next, Cutler addresses, as one issue, that the School District did not prove a persistent and willful violation of school directives or persistent negligence in the performance of her duties. Cutler argues that her testimony, which was not rebutted, was that she performed to the best of her ability and, therefore, her conduct cannot be considered either willful or negligent.
To establish a valid cause to dismiss Cutler, the School District had to establish that Cutler's conduct was (1) persistent, (2) willful and (3) a violation of school law, which includes an "official directive." 24 P.S. §11-1122(a); Horton, 630 A.2d at 484. Persistency is shown by "a series of individual incidents or one incident carried on for a substantial period of time." Horton, 630 A.2d at 484. "Willfulness requires the presence of intention and at least some power of choice." Id. "Negligence" is a "continuous failure to comply with a directive of [her] supervisors." Id. at 485. Stated otherwise, the School District had to establish that Cutler's failure to comply with a directive of her supervisor consisted of a series of incidents or a single incident over time.
The Secretary found, as fact, that Cutler was warned repeatedly by Potteiger throughout the 2011-12 school year that she needed to complete the teacher observations and forms, but she did not do so. This led to her unsatisfactory performance rating and imposition of an administrative improvement plan. During the 2012-13 school year, Cutler met monthly with Potteiger or Saylor, who offered her assistance with time management. Nevertheless, Cutler did not complete seven teacher observations as scheduled, and of the 36 teacher evaluations she was assigned, only one was completed on time. Cutler acknowledged that Potteiger had directed her to do the teacher observations and evaluations on time.
Cutler's conduct with respect to teacher observations and evaluations was persistent because it was longstanding in duration and involved a number of incidents. Horton, 630 A.2d at 484. Cutler's conduct also demonstrates "willfulness" because it involved "some power of choice." Id. To wit, Cutler decided to focus her effort on the day-to-day job of running a school instead of attending to the administrative tasks that Potteiger had made a priority. Cutler's conduct was negligent simply because she did not comply with Potteiger's directive. Id. at 485.
The same is true for Cutler's lapses with respect to the eComprehensive Building Plan, the school budget and the severe weather drill. Cutler knew when information was needed and by what date, but she did not perform in a manner consistent with the expected schedule. These lapses also show persistency, negligence and an element of choice, i.e., willfulness.
Cutler agreed that she was responsible for conducting the drill and did not explain why she did not conduct the drill on the specified date. Cutler claimed that the PEMA circular gave her leeway to do it on an alternate date; it states that an alternative date was designated "should an actual event preempt the primary date." R.R. 394a. Cutler did not identify an "actual event." Cutler was aware that she had a duty to perform a task on a specified date but she did not fulfill it. --------
Cutler also argues that not completing the teacher observations and evaluation forms on time did not constitute willful neglect of duties. Cutler explains that she actually completed the observations for the 2012-13 school year; that the deadlines for the observations were not really that important; and that she should not be faulted for not completing the 2012-13 evaluations because she was still working on them when she was suspended.
Willful neglect of duties by a professional employee has been defined by the Court as follows:
[A]n intentional disregard of duties by that employee.... [T]here is no requirement of a continuous course of conduct in this charge.Williams v. Joint Operating Committee of Clearfield County Vocational-Technical School, 824 A.2d 1233, 1236, 1236 n.5 (Pa. Cmwlth. 2003) (comparing willful neglect to the standard used in unemployment cases, i.e., "negligence that is so egregious as to indicate an intentional disregard of an employer's interests or an employee's duties.")
Potteiger testified that Cutler did not conduct seven teacher observations in a timely manner, in spite of being given a calendar identifying the dates and times the teachers were to be observed. Specifically, Cutler was late in the first observation of three teachers; the second observation of two teachers; the third observation of one teacher; and the fourth observation of one teacher. R.R. 1485a. Cutler argues that she completed all of the 2012-13 teacher observations. However, Cutler was charged with failing to complete the observations "in a timely manner." R.R. 1485a.
Cutler argues that the observation deadlines were not rigid, relying on the testimony of Dr. Cathy Brachbill, a retired school administrator. Brachbill testified that when the teacher observation deadlines were put in place in 2008, they were aspirational goals and not actual deadlines. That may have been the case in 2008. However, Potteiger had a different policy agenda. Saylor testified that she gave Cutler a monthly planner with the specific time and date by which each observation was to be completed. Saylor also instructed Cutler on numerous occasions that it was important to complete the observations in a timely manner.
Cutler notes that once she was suspended, she no longer had access to her school computer. She explains that she had every intention of completing the teacher evaluations and would have completed them but for the loss of her computer. However, the evaluations were due on June 12, 2013, the official end of the school year, when Cutler still had a computer. On June 17, 2013, a Monday, when Potteiger sent Cutler an e-mail asking why the teacher evaluations had not yet been submitted, Cutler responded "[y]ou should have them by the end of the week," i.e., June 21, 2013. R.R. 483a. Cutler admitted that as of June 25, 2013, she had completed only one teacher evaluation.
The Secretary did not err in holding that Cutler's inability to complete teacher observations and evaluations on time constituted willful neglect of duties.
Conclusion
Cutler believes that she did her job to the best of her ability and placed the emphasis on the day to day challenges in her school dealing with teachers, students and parents. This chosen focus may have been satisfactory at one time in her career as principal, as Brachbill's testimony suggests. However, Potteiger decided to place a higher priority on the administrative aspects of being a school principal. Cutler was given fair warning of Potteiger's expectations but, unfortunately, she was unable to satisfy them.
For these reasons, we affirm the Secretary of Education's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 31st day of December, 2014, the order of the Secretary of Education dated March 4, 2014, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge