Opinion
Argued June 11, 1976
July 7, 1976.
Schools — Dismissal of professional employe — Persistent and wilful violation of school laws — Public School, Code of 1949, Act 1949, March 10, P.L. 30 — Misuse of personal business and sick leave — Continuing violation — Personal holiday — Notice of charges — Due process — Review by Secretary of Education — Additional evidence — Failure to object — Fair hearing.
1. Under the Public School Code of 1949, Act 1949, March 10, P.L. 30 a professional employe may be dismissed for a persistent and wilful violation of school laws. [422]
2. An intentional voluntary misuse of personal business and sick leave privileges to take a holiday is properly found to constitute a wilful violation of school laws by the professional employe involved. [423]
3. A wilful violation of school laws by absenting oneself for five days on personal holiday while asserting that the absences were caused by illness and necessary business can properly be found to be a persistent or continuing violation justifying dismissal of the offending professional employe. [423-4]
4. Notice requirements of the Public School Code of 1949, Act 1949, March 10, P.L. 30 and procedural due process requirements are satisfied where the substance of the charges furnished a professional employe refers to one of the valid statutory causes for dismissal. [424]
5. Notice to a professional employe that his proposed dismissal was for abusing personal business and sick leave for an entire school week sufficiently advised him that his proposed dismissal was based on persistent and wilful violation of the school laws. [424]
6. The Secretary of Education in reviewing action of a school board dismissing a professional employe is permitted by the Public School Code of 1949, Act 1949, March 10, P.L. 30 to consider evidence in addition to that produced before the board. [424-5]
7. A party failing to object to the consideration of an item of evidence at the time of its introduction cannot successfully assert that he was denied a fair and impartial hearing because such evidence was considered. [425]
Judge KRAMER did not participate in this decision.
Argued June 11, 1976, before Judges WILKINSON, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 1861 C.D. 1975, from the Order of the Department of Education in case of Appeal of Benjamin Lucciola, a Professional Employe, from a decision of the Board of School Directors of the Delaware Valley School District, Pike County, Pennsylvania, No. 268.
Dismissal of professional employe by Board of School Directors of the Delaware Valley School District appealed to the Secretary of Education. Dismissal sustained. Employe appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John J. Schneider, with him Kayton, Schneider, Davis and Levy, for appellant.
Patricia A. Donovan, Chief Counsel, with her Edward A. Miller, Assistant Attorney General, for appellee.
Arthur K. Ridley, with him Krawitz, Sigal Ridley, P. A., for intervening appellee.
This is an appeal from a decision of the Secretary of Education (Secretary) which upheld the dismissal of appellant as a professional employee by the Board of School Directors of the Delaware Valley School District (Board). We affirm.
During the 1974-1975 school year appellant was employed as an elementary school teacher in the Delaware Valley School District. On February 17, 1975, appellant submitted to the district superintendent a written request for personal business leave for Wednesday, Thursday and Friday of the next week, February 26, 27 and 28, for the following reasons: "Sale of my ailing father's house in the city, requiring my presence at the bank, other personal matters to be cleaned up also." The request was approved the same day. On Monday, February 24, 1975, a telephone call, on appellant's behalf, was made to the school district stating that appellant would not report for work that day or the next due to illness. Appellant, consequently, was absent the entire school week of February 24-28, 1975.
By letter dated July 8, 1975, appellant was notified that the Board was to consider his dismissal on the following statement of charges: "On February 24 and 25, 1975, you were absent from the School District for allegedly being ill; and on February 26, 27 and 28, 1975, you had requested personal business days to handle the sale of your ailing father's property in the city. Other information indicates that you were, in fact, in Vermont during the period February 24-February 28, 1975." A hearing was held before the Board on July 22, 1975, following which, by letter dated August 1, 1975, appellant was informed that the Board had voted to discharge him, effective immediately, for persistent and willful violation of the school laws. The decision of the Board was appealed to the Secretary who affirmed, concluding that appellant deliberately abused his personal business and sick leave privileges. Specifically, the Secretary found that during the week of February 24-28, 1975, when appellant was apparently on personal business and sick leave, he was actually in New England on a skiing trip with a student. Appellant is now before this Court.
Section 1122 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 11-1126, provides in relevant part: "The only valid causes for termination of a contract heretofore or hereinafter entered into with a professional employe shall be . . . persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe . . . ." Appellant argues that sufficient cause has not been demonstrated to justify his dismissal for persistent and willful violation of the school laws. We have carefully reviewed the record, as well as the pertinent caselaw arising under Section 1122 and the legislation preceding it, and must disagree.
" '[W]ilful' suggests the presence of intention, and at least some power of choice. . . ." Sinton's Case, 151 Pa. Super. 543, 548, 30 A.2d 628, 630 (1943). The Secretary's findings of fact which are properly supported by the record, clearly demonstrate that appellant intended, voluntarily, to misuse his personal business and sick leave privileges. The Secretary found that the mother of the student who was with appellant in New England submitted a written request to the school district on Friday, February 21, 1975, asking that her son be excused from school the following Monday, Tuesday and Wednesday, February 24, 25 and 26, for the purpose of taking a trip to New England; that appellant, accompanied by the student, departed for New England on Sunday, February 23, 1975; and that the student and appellant spent the entire week of February 24-28, 1975, in New England on a skiing trip. On these findings, the Secretary concluded that appellant had, through prior arrangements, planned to spend the week of February 24-28, 1975, on a New England holiday rather than on personal business and sick leave. We cannot disagree and, therefore, are compelled to hold that appellant willfully violated the school laws.
As a general proposition, "persistent" is defined as "continuing" or "constant". Sinton's Case, supra; Horosko v. Mount Pleasant Twp. School District, 135 Pa. Super. 102, 111, 4 A.2d 601, 604, rev'd on other grounds, 335 Pa. 369, 6 A.2d 886, cert. denied, 308 U.S. 553 (1939). In particular application, persistency characterizes a violation of the school laws by a professional employee where the violation occurs either as a series of individual incidents, see Johnson v. United School District Joint School Board, 201 Pa. Super. 375, 191 A.2d 897 (1963); Caffas v. Board of School Directors of Upper Dauphin Area School District, 23 Pa. Commw. 578, 353 A.2d 898 (1976); Stroman v. Secretary of Education, 7 Pa. Commw. 418, 300 A.2d 286 (1973), or as one incident carried on for a substantial period of time. See Ambridge Borough School District's Board of School Directors v. Snyder, 346 Pa. 103, 29 A.2d 34 (1942); Ganopski's Case, 332 Pa. 550, 2 A.2d 742 (1938); Commonwealth ex rel. Wesenberg v. Bethlehem School District, 148 Pa. Super. 250, 24 A.2d 673 (1942).
In the case at hand, it is clear that appellant's deliberate abuse of personal business and sick leave could be described as either five consecutive instances of abuse — one for each school day in the week of February 24-28, 1975 — or one instance covering an entire school week. By either description, appellant's violation of the school laws was of such a continuing or constant nature that it warrants being held persistent. Consequently, we conclude that sufficient cause has been demonstrated to discharge appellant as a professional employee for persistent and willful violation of the school laws.
Appellant also argues that the notice provisions under Section 1127 of the Code, 24 P. S. § 11-1127, requiring that a professional employee be furnished with a "detailed written statement of the charges upon which his or her proposed dismissal is based", were not satisfied by the statement of charges, quoted above, contained in the letter of July 8, 1975. Appellant contends that, in order to properly prepare a defense, the statement of charges required by Section 1127 must refer specifically to one of the valid causes under Section 1122, 24 P. S. § 11-1122, permitting the termination of a professional employee's contract. Since the July 8, 1975 statement did not explicitly cite him for "persistent and willful violation of the school laws", appellant concludes that he received defective notice of dismissal. We cannot agree.
As long as the substance of the charges furnished the professional employee refers to one of the valid causes for dismissal under Section 1122, statutory and constitutional procedural requirements are satisfied. West Mahanoy Twp. School District v. Kelly, 156 Pa. Super. 601, 41 A.2d 344 (1945); Batrus' Appeal, 148 Pa. Super. 587, 26 A.2d 121 (1942). In the present case, the essence of the charges contained in the July 8, 1975 letter — i.e., the abuse of personal business and sick leave for an entire school week — sufficiently informed appellant that his proposed dismissal was based on "persistent and willful violation of the school laws".
Finally, appellant argues that his right to a fair and impartial hearing was further violated when the actual written request of the student's mother — i.e., a note dated February 21, 1975 — submitted to the school district asking that her son be excused from school February 24, 25 and 26, 1975, was considered at the hearing before the Secretary although it apparently was not introduced at the hearing before the Board. Initially, we emphasize that the Secretary can take and consider evidence in addition to that produced before the Board. Section 1131 of the Code, 24 P. S. § 11-1131. More importantly, however, we have reviewed the transcript of the hearing before the Secretary, at which appellant was represented by counsel, and find that although the hearing examiner literally read aloud the contents of the note to appellant's counsel, the latter failed to raise one objection regarding the presence of the writing in the record before the Secretary. In such circumstances we cannot hold that appellant's right to a fair and impartial hearing was violated.
Accordingly, we will enter the following
ORDER
AND NOW, July 7, 1976, the order of the Secretary of Education, dated November 24, 1975, at No. 268, sustaining the dismissal of appellant as a professional employee of the Delaware Valley School District, is hereby affirmed; and the appeal of appellant is hereby dismissed.
Judge KRAMER did not participate in the decision in this case.