Opinion
No. 1369 C.D. 2014
06-05-2015
Scranton School District, Petitioner v. Gwendolyn Damiano, Respondent
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Scranton School District (District) petitions for review from an order of the Special Deputy for Adjudicatory Matters in the Office of Secretary of Education (special deputy) reversing Gwendolyn Damiano's (Damiano) dismissal and reinstating her to the position of principal at the Robert Morris Elementary School (RMES). The District argues the special deputy's opinion is not supported by substantial evidence or in accordance with the law. Upon review, we affirm.
I. Background
Damiano was the principal at RMES from August 2009 until April 2013. On April 30, 2013, District administrators held a meeting with Damiano to discuss their concerns regarding her performance. After the meeting, the administrators advised Damiano to report to Isaac Tripp Elementary School the next day and to notify RMES staff and parents that she would be leaving RMES. The following day, administrators notified Damiano to report to Neil Armstrong Elementary School.
In June 2013, the District formally advised Damiano of pending misconduct charges. In July 2013, the District sent Damiano a statement of charges, containing 10 charges against her, and a notice of hearing for the purpose of determining whether she would be dismissed from employment. The charges included: deficient content and quality of required reports; failure to submit reports; carelessness with confidential student records; failure to follow directives; failure to comply with testing and record keeping directives; inability to respond appropriately to situations; improper release of a student from class; failure to attend meetings; repeated tardiness; and, refusal to comply with superiors' directives.
At the hearings before the Scranton School District Board of Directors (board), William F. King, superintendent (Superintendent); Jessica Leitzel, supervisor of elementary education (Supervisor); Sarah Williams, Damiano's secretary (Secretary); Gina Colarossi, special education supervisor (Special Education Supervisor); Kevin Pail, an emotional support teacher (Support Teacher); Damiano; and, numerous RMES elementary teachers testified. In addition, the parties offered copious exhibits, which the board admitted into evidence.
In late November 2013, at a special meeting for personnel, the board decided by a 7-2 vote that the evidence substantiated the charges and warranted Damiano's dismissal.
From this decision, Damiano appealed to the Secretary of Education. The Acting Secretary of Education appointed the special deputy to proceed. Reproduced Record (R.R.) at 180a. The special deputy decided the matter without holding a hearing. He focused on three reasons alleged for Damiano's discharge: deficient teacher observations and evaluations; lack of security for confidential Pennsylvania System of School Assessment (PSSA) testing materials; and, the inappropriate removal of a student from school grounds.
The special deputy assigned a hearing officer to hold a hearing. Reproduced Record (R.R.) at 181a. By agreement of the parties, the hearing was cancelled and not rescheduled, and the matter was submitted on briefs. Certified Record, Item No. 2 (Hearing Officer's Ltr. to Counsel, 2/25/14).
The District also determined Damiano's alleged repeated tardiness and other miscellaneous charges constituted grounds for her dismissal. The special deputy did not make any enumerated findings regarding these allegations. Nevertheless, he found Damiano was not persistently late. Special Deputy's Op., 7/10/14, at 10-11. Although he found she engaged in some minor acts of misconduct, such as failure to attend an administrator's meeting, he determined the evidence did not support a conclusion that such conduct was persistent or willful or rose to a level that warranted her dismissal. Id. at 11. The District does not contest this portion of the special deputy's opinion on appeal.
With regard to the teacher evaluation process, the special deputy found Damiano's duties as a management team member included evaluating employees. Special Deputy's Op., 7/10/14, Finding of Fact (F.F.) No. 13. Damiano performed annual evaluations of RMES teachers. As sources of evidence for the evaluation, Damiano used classroom observations and informal classroom visits. F.F. No. 14.
With regard to the security of PSSA testing materials, the special deputy found the 2012-2013 PSSA Handbook for Assessment Coordinators (PSSA Handbook) set forth the security protocol. Specifically, the PSSA Handbook states, in pertinent part: "[a]ll paper answer and test booklets and test tickets for online assessments must be kept in a predetermined, locked, secure storage area at both the district and school levels. Secure materials must never be left unattended or in open areas." F.F. No. 15 (quoting PSSA Handbook at 19-20). Damiano kept the 2012-2013 PSSA materials organized in her office. Damiano and Secretary had access to Damiano's office during the school day. Whenever they were not in the office, the door was closed and set to lock automatically. Damiano kept PSSA testing materials in her office for the first two days of the 2013 PSSA testing. After she was informed of best practices by a Pennsylvania Department of Education official, Damiano relocated the PSSA testing materials to a locked closet. F.F. Nos. 16-18.
The special deputy took judicial notice of the PSSA Handbook, which was not offered into evidence. Special Deputy's Op., at 4 n.1. The District attached a copy the PSSA Handbook as Appendix D to its brief.
Finally, the special deputy found on April 25, 2013, Support Teacher requested Damiano's assistance with a special education student. Damiano took the student for a decompression walk around the school property as indicated on the student's IEP. The student's IEP was developed at a different District school and included a provision for a "quiet walk around the school." F.F. No. 21. The IEP did not define what is meant by "around the school," but the behavior support plan associated with the IEP allowed for a "10 minute decompression walk outside of the school with the teacher or principal." F.F. No. 21 n.3; see R.R. at 1053a. Damiano understood the student's IEP to mean the student could walk with a teacher or principal around the area of the school. This was not the first time Damiano allowed a student's decompression walk to be off school property. District administrators were aware of this practice. F.F. Nos. 19-23.
The special deputy opined, pursuant to the Public School Code of 1949 (School Code), a tenured professional employee, such as Damiano, may only be discharged for reasons set forth in Section 1122, which include: the persistent and willful violation of or failure to comply with school laws, including official directives and established policy of the board; the persistent negligence in the performance of duties; and, the willful neglect of duties. 24 P.S. §11-1122. The special deputy concluded the District presented insufficient evidence to sustain Damiano's dismissal on any of these grounds.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101-27-2702.
Specifically, the special deputy determined there was no clear policy regarding formal observations and insufficient evidence to prove Damiano's observations and evaluations were false or deficient. As for the PSSA materials, he determined there was no requirement that testing materials must be kept in a cabinet or closet or that a sign-in sheet was required when test proctors removed and returned testing materials. The District did not provide sufficient evidence to prove a charge of persistent negligence or willful neglect in connection with her administration of the PSSA. Finally, he concluded the IEP did not preclude Damiano from taking the student off school grounds for a decompression walk; her recommendation to amend the student's IEP did not violate proper protocols. Thus, the special deputy reversed the Board's decision and ordered Damiano's reinstatement to her position as principal at RMES. The District then filed a petition for review in this Court.
II. Issues
On appeal, the District contends the special deputy's opinion and order should be reversed because his findings are not supported by substantial evidence. In addition, the District contends the special deputy's opinion and order is not in accordance with the law. More particularly, it claims Damiano's actions regarding the (1) teacher observations and evaluations; (2) removal of a student from school grounds; and, (3) improper maintenance of PSSA materials, all constituted proper grounds for dismissal. According to the District, these actions demonstrate persistent negligence in the performance of duties; persistent and willful violation of, or failure to comply with, school laws; and, willful neglect, which are valid causes for termination under the School Code.
Our review is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether necessary findings of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; McFerren v. Farrell Area Sch. Dist., 993 A.2d 344 (Pa. Cmwlth. 2010).
III. Discussion
A. Substantial Evidence
First, the District challenges three of the special deputy's findings of fact as not supported by substantial evidence of record. In essence, the District challenges the special deputy's findings that: (1) the evidence was unclear regarding how "formal observations" were to be conducted; (2) a student's IEP permitted him to be taken for a decompression walk outside the school property; and, (3) sign-in sheets were not required in connection with the distribution of PSSA testing materials. According to the District, the special deputy arbitrarily and capriciously ignored uncontroverted testimony of numerous teachers who testified regarding: Damiano's failure to observe them in their classrooms; the importance of the IEP process, which did not permit a special education student to leave school premises; and, the lack of security controls during administration of the April 2013 PSSA exam.
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. McFerren v. Farrell Area Sch. Dist., 993 A.2d 344 (Pa. Cmwlth. 2010). Substantial evidence must be more than a mere scintilla of evidence or suspicion of the fact to be established. Equi v. Bd. of Ed. of Sch. Dist. of Phila., 530 A.2d 1044 (Pa. Cmwlth. 1987). When performing a substantial evidence analysis, the court must view the evidence in the light most favorable to the party that prevailed before the fact finder. Bonatesta v. N. Cambria Sch. Dist., 48 A.3d 552 (Pa. Cmwlth. 2012).
In cases involving dismissal of a professional employee of a school district, the Secretary of the Department of Education, or her designee, is the ultimate fact finder empowered to determine the credibility of witnesses, the weight accorded to the evidence, and inferences drawn therefrom. Williams v. Joint Operating Comm. of Clearfield Cnty. Vocational Tech. Sch., 824 A.2d 1233 (Pa. Cmwlth. 2003); Forest Area Sch. Dist. v. Shoup, 621 A.2d 1121 (Pa. Cmwlth. 1993). This Court will not weigh conflicting testimony or assess the weight and credibility of the evidence. Bovino v. Bd. of Sch. Dirs. of Indiana Area Sch. Dist., 377 A.2d 1284 (Pa. Cmwlth. 1977).
However, this Court will "overturn a credibility determination if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Bonatesta, 48 A.3d at 558 (quoting Agostino v. Twp. of Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth. 2009)). "A capricious disregard of evidence exists only when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result." Id. (quoting Agostino, 968 A.2d at 264).
With these principles in mind, we examine each of the challenged findings in turn.
1. Teacher Observations
First, the District argues the special deputy's finding that the District did not provide clear evidence regarding how to conduct teacher observations for evaluations is not supported by substantial evidence. The District's evidence included a memorandum on "Administrator Responsibilities/Expectations," a Department of Education Employee Evaluation form referred to as "DEBE," and a District form referred to as the local "Tool." According to the District, these documents clearly required classroom observations. In addition, the District offered witness testimony regarding the District's practice with regard to observations, claiming a formal observation required the principal's attendance for the full duration of the class. However, the special deputy's findings did not include a single statement from the many teachers that testified over the course of the hearings. The District claims the special deputy arbitrarily and capriciously ignored this uncontroverted testimony.
Upon review, the memorandum on "Administrator Responsibilities/Expectations" directed administrators to "[o]bserve and evaluate all teachers daily. Instructional I teachers 4 x per year and Instructional II teachers 2 x per year." R.R. at 1027a. Similarly, the DEBE and the local Tool listed "[c]lassroom observations" as one of the "sources of evidence used to determine the evaluation." Id. at 1056a-1062a; 1095a-1114a. However, neither the memorandum nor the forms specify the extent, duration or manner of such observation.
Contrary to the District's assertions, the special deputy considered the teachers' testimony, but found their testimony "vague and unreliable" on the topic of evaluations. Special Deputy Op., at 7. He found that, although "some teachers who testified at the hearing may have believed that formal teacher observations were required by district policy, witnesses could not identify the particular policy that expressed these requirements Id.
In opposition, Damiano testified informal observations and formal observations are used for teacher evaluations. R.R. at 824a-825a. She acknowledged there is a difference between the two. Id. at 824a-825a, 761a. She testified formal observations require an observation of the teacher in the classroom; informal observations include "blind observations" or "walk-through observations." Id. at 761a-762a. She explained she performed walk-through observations frequently. Id. at 762a. This entailed going to a classroom and observing a teacher for short period of time. Id. She testified "every single teacher was observed." Id. at 831a. She acknowledged not every teacher was "formally" observed. Id. at 828a-830a. She testified there was nothing in the School Code or District policies that required "formal" observations. Id. at 763a.
Although the record may contain evidence that would support findings other than those made, the proper inquiry is whether the evidence supports the findings actually made. See Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Upon review, the special deputy's finding that the District did not provide clear guidance as to how principals were to conduct observations of teachers is supported by substantial evidence.
2. IEP - "Around the School"
Second, the District takes issue with the finding that a special education student's IEP permitted him to be taken for a decompression walk outside the school property. The IEP, which was prepared by another school, provided on a daily basis, the student could be "taken for a quiet walk around the school." R.R. at 1048a. The District contends Damiano's interpretation was unreasonable because the IEP indicated the student's behavioral problems included "eloping of classroom" and "trying to leave through a window." Id. at 1036a. The goal of the IEP was to keep the student in the school.
In support, the District provided teacher testimony regarding their understanding of what the term "around the school" meant when used in the IEP context. Teachers testified they understood this phrase to mean on school grounds. See id. at 662a-664a, 627a, 624a, 633a.
Notwithstanding, Damiano testified regarding her understanding of the phrase. She interpreted this phrase to mean taken "around the school or around the area of the school, around the premises of the school, a walk around the school." Id. at 769a, 775a. She explained a decompression walk is an effective tool used with special students who are physically aggressive or emotional because it calms them down and enables them to return to class. Id. at 769a, 771a. On the incident in question, she walked with the student around the school within a three-block radius. Id. at 770a. After the student calmed down, he returned to class without incident the rest of the day. Id. at 771a. She testified her superiors knew the "decompression walks were outside school grounds, around the school grounds." Id. at 843a. She testified she was not told to stop this practice, and she did not receive any directive that such walks must be kept within the school premises. Id.
The special deputy credited Damiano's testimony and found her interpretation of the IEP reasonable. We conclude the special deputy's finding that the IEP permitted the student to be near but off school grounds for the decompression walk is supported by the IEP and Damiano's reasonable interpretation of it.
3. PSSA Sign-in Sheets
Third, the District challenges the special deputy's finding that it presented insufficient evidence to prove that sign-in sheets were required in connection with the distribution of PSSA testing materials.
The PSSA Handbook provides a security checklist "should be used as a tool to account for the secure material as they are distributed to the Test Administrators and to monitor the materials as they are returned to the Test Administrators." PSSA Handbook at 25 (emphasis added). It directs principals to "distribute the correct assessment booklets needed for that day's assessment to each Test Administrator as recorded on the Security Checklist." Id.
As the special deputy observed, the District never produced a policy requiring proctors to sign for their testing materials. The PSSA Handbook merely referred to the checklist as a "tool," and it did not mandate the use of the sign-in sheets. There was insufficient evidence that a sign-in sheet was required when test proctors removed and returned testing materials. Upon review, the special deputy's finding that sign-in sheets were not required is supported by substantial evidence.
B. Contrary to Law
Next, the District claims the special deputy's decision is not in accordance with the law because Damiano's actions regarding: (1) the teacher evaluation process; (2) removal of student from school grounds; and, (3) the maintenance of PSSA materials all constituted proper grounds for dismissal under the School Code.
Section 1122 of the School Code governs the termination of tenured professional employees. 24 P.S. §11-1122. Section 1122 sets forth the only valid causes for termination of a professional employee, which include: "persistent negligence in the performance of duties," "willful neglect of duties," and the "persistent and willful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors)." Id.
The purpose of Section 1122 is to provide "the greatest protection possible against dismissal." McFerren, 993 A.2d at 353 (quoting Lauer v. Millville Area Sch. Dist., 657 A.2d 119, 121 (Pa. Cmwlth. 1995)). "Stated otherwise, Section 1122 was not intended to provide a school district with an arsenal of weapons to use when it wishes to relieve itself of its contractual obligations to a professional employee." Id. "[T]o dismiss a professional employee protected by contract requires a serious reason, not 'picayune and unwarranted criticisms.'" Id. (quoting Lauer, 657 A.2d at 123). "In short, the grounds for dismissal listed in Section 1122 must be strictly construed in favor of the professional employee and against the school district." Id.
The School Code does not define "persistent negligence," "willful neglect" or "persistent and willful violation or failure." See 24 P.S. §1122; Section 1101 of the School Code, 24 P.S. §11-1101 (definitions). However, Pennsylvania courts interpret these terms based on their common and approved usage. See Bd. of Public Ed., Sch. Dist. of Phila. v. Soler, 176 A.2d 653 (Pa. 1962); Kinniry v. Abington Sch. Dist., 673 A.2d 429 (Pa. Cmwlth. 1996).
"Persistent" generally means "continuing" or "constant." Lucciola v. Com. Secretary of Ed., 360 A.2d 310, 312 (Pa. Cmwlth. 1976); accord Appeal of Bd. of Sch. Dirs. of Cass Twp., Schuylkill Cnty., 30 A.2d 628 (Pa. Super. 1943). Persistency is shown where the improper conduct is repeated in a series of separate incidents over a substantial period of time. McFerren; Horton v. Jefferson County-Dubois Area Vocational Tech. Sch., 630 A.2d 481 (Pa. Cmwlth. 1993).
"Neglect" or "negligence" is generally defined as "the failure to exercise that care a reasonable person would exercise under the circumstances." Lauer, 657 A.2d at 121. To support a charge of persistent negligence, "there must be sufficient continuity and repetition of negligent acts." Id. This can occur either as a series of individual acts or as a single act continued for a period of time. Harrison v. Captial Area Inter. Unit, 479 A.2d 62 (Pa. Cmwlth. 1984); Gobla v. Bd. of Sch. Dirs. of Crestwood Sch. Dist., 414 A.2d 772 (Pa. Cmwlth. 1980). An employee's continuous failure to comply with a directive of her supervisors may constitute persistent negligence. Horton; Harrison; see Crossland v. Bensalem Tp. School Dist., 464 A.2d 632 (Pa. Cmwlth. 1983) (a principal's continuous failure to meet relevant deadlines despite numerous reminders and warnings constituted persistent negligence).
On the other hand, "[w]illfulness requires the presence of intention and at least some power of choice." Horton, 630 A.2d at 483; accord Lucciola. While willfulness or intent can often be inferred from the nature of a particular violation, such intent is not to be presumed where facts do not so indicate. Cowdery v. Bd. of Ed. of Sch. Dist. of Phila., 531 A.2d 1186 (Pa. Cmwlth. 1987). Thus, a persistent and willful violation of or failure to comply with school laws requires three elements: persistency, willfulness and a violation of school law. See Lucciola.
"The charge of willful and persistent violation of school laws and the charge of persistent negligent performance of job duties seem often to be combined in a discharge proceeding." McFerren, 993 A.2d at 357. The same act or conduct may be used to support both charges. Id. To establish either charge, the district must show persistency.
In contrast, willful neglect does not require the element of persistency. See Williams. "Willful neglect" is "an intentional disregard of duties by [an] employee." Williams, 824 A.2d at 1236. Thus, a single act may constitute willful neglect. See Flicklinger v. Lebanon Sch. Dist., 898 A.2d 62 (Pa. Cmwlth. 2006) (principal's failure to respond to report of gun in school constituted single act of willful neglect). However, negligence alone cannot form the basis for dismissal of a professional educator. Lauer. The negligence must be persistent or willful. See 24 P.S. §11-1122.
With these principles in mind, we consider each of the charges against Damiano, starting with alleged deficient teacher observations and evaluations.
1. Teacher Observations and Evaluations
First, the District contends it was authorized to dismiss Damiano because her observations and evaluations of teachers constituted a persistent and willful failure to comply with school laws, persistent negligence and a willful neglect of duties. The District maintains Damiano was required to perform two formal observations for tenured teachers and four formal observations for non-tenured teachers. According to the District, a formal observation required the principal to observe teachers for the full duration of the class. However, Damiano failed to observe teachers in this manner over multiple years. She misrepresented on the evaluation forms that she formally observed teachers, when in fact she had not. In addition, Damiano issued identical evaluation forms for every teacher, and she requested that teachers sign blank forms. Not only did Damiano willfully violate school law, she disregarded warnings that her evaluations were not up to par, and she persistently and willfully neglected her duties in this regard. The special deputy's determination to the contrary renders teacher evaluations a meaningless exercise.
The School Code requires teachers to be rated. Section 1123 of the School Code, 24 P.S. §11-1123; see 24 P.S. §11-1122. There is no dispute evaluating teachers was part of Damiano's administrative duties. However, there is no requirement that a principal must perform two or four observations depending on tenure of a teacher for an entire class period during the school year or otherwise formal observations at any time. See 24 P.S. §11-1122; former 24 P.S. §11-1123; 22 Pa. Code §§351.1-351.28. Neither the School Code nor the regulations set forth any requirements regarding frequency or duration of observations. See 24 P.S. §11-1122; former 24 P.S. §11-1123; 22 Pa. Code §§351.1-351.28. Section 1122 of the School Code merely provides a teacher may be discharged for "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." 24 P.S. §11-1122 (emphasis added).
Section 1123 was amended by the Act of June 30, 2012, P.L., 684. It provides: "Beginning in the 2013-2014 school year, the evaluation of the effectiveness of professional employes and temporary professional employes serving as classroom teachers shall give due consideration to the following: (i) Classroom observation ..." 24 P.S. §11-1123 (emphasis added). However, the version in effect at the time of Damiano's suspension did not require classroom observations as part of the teacher evaluation process. See former 24 P.S. §11-1123; R.R. at 122a. --------
In support of its position, the District offered its memorandum on "Administrator Responsibilities/ Expectations," dated April 3, 2012, and teacher testimony regarding their beliefs concerning evaluation criteria. The memorandum directed administrators to "[o]bserve and evaluate all teachers daily. Instructional I teachers 4 x per year and Instructional II teachers 2 x per year." R.R. at 1027a. Teachers testified they expected to be observed for the duration of their class as part of a formal observation. Based on this memo and witness testimony, the District argues Damiano was required to conduct formal observations as part of her job duties.
However, the special deputy found the record did not contain any policy or sufficient evidence regarding how such observations were to be conducted. Although the Superintendent's memorandum requested principals observe certain teachers twice a year and other teachers four times a year, it did not provide any requirements regarding formal observations. Id. at 1027a. In fact, the word "formal" is not even used. See id. Superintendent, who authored the memo, testified the memo was not adopted by the board. Id. at 373a. When questioned regarding what he intended by daily observations and two or four times per year, he conceded his directive was not "worded the best." Id. at 374a. As one District witness observed, it would be impossible for a principal to perform a formal observation of every teacher every day. Id. at 712a.
Although the RMES teachers testified regarding District practice with regard to evaluations, the special deputy found their testimony on the topic was "vague and unreliable." Special Deputy's Op., at 7. Specifically, "witnesses could not identify the particular policy that expressed these requirements Id. No official policy regarding such a requirement was offered into the hearing record. Id.
In addition to asserting a violation of school law, the District maintains Damiano's conduct reflects persistent or willful negligence because she failed to comply with a directive of her supervisor. In support, Supervisor testified she had a lengthy discussion with Damiano regarding the quality of her teacher evaluations at her mid-year review. Supervisor testified she warned Damiano "that this quality of work would not be acceptable ... and that in the future all observations needed to be typewritten, free of grammatical errors, [and] the length of observations Id. at 478a. However, the special deputy found her testimony regarding her advice and direction to Damiano "vague." Special Deputy's Op., at 8. He determined it did not constitute a clear warning or directive regarding the manner in which Damiano was expected to observe teachers. Id.
In addition, the District argues Damiano willfully and persistently neglected her duties by failing to properly complete the teacher evaluation forms. The District claims Damiano falsely indicated on the forms she observed teachers in the classroom, when she did not, and she directed teachers to sign blank forms. It takes issue with the fact that the evaluation forms were filled out the same way, making it impossible for the District to accurately evaluate its employees.
However, Damiano testified regarding her understanding of the evaluation process. According to Damiano, she was to observe and evaluate teachers through blind classroom observations, teacher one-on-one meetings, small group meetings, informal discussions, and parent feedback over the course of the entire school year. R.R. at 758a-761a. She routinely conducted informal or "walk-through observations." Id. at 762a.
Damiano completed DEBE forms for tenured teachers once a year and non-tenured teachers twice a year. Id. at 758a-759a. Damiano observed every teacher prior to making her evaluation and accurately reported the same on her evaluations. Id. at 831a, 1095a-1114a. Neither the DEBE forms nor any school policy defined classroom observations as an observation lasting for a full classroom period. Id. at 1095a-1099a.
As for the blank forms, although Secretary testified she asked certain teachers to sign blank DEBE forms, she conceded Damiano did not instruct her to obtain signatures on blank forms. Id. at 894a-896a. Further, Damiano did not officially use any of the pre-signed DEBE forms. Id.
Upon review, we agree the evidence reveals no clear policy regarding observations and insufficient evidence that Damiano's teacher evaluations violated any policy. The District did not provide clear expectations or warnings regarding Damiano's observations or evaluations or provide her an opportunity to change or improve her method. There is no evidence Damiano did not properly complete the forms, that the forms were inaccurate, or that they were anything less than the standard required by law. Thus, the special deputy properly determined Damiano's actions in connection with teacher observations and evaluations did not constitute valid grounds for her dismissal.
2. Removal of student from school grounds
Next, the District contends the special deputy's decision is contrary to law because Damiano's conduct surrounding the removal of a special education student from school property constituted persistent negligence in the performance of duties, persistent and willful violation of or failure to comply with school laws, and willful neglect. According to the District, Damiano violated the student's IEP by removing the student from school grounds. Although the IEP authorized walks "around the school," when read within the context of the IEP, it was clear the student was never permitted to leave school property. Moreover, District witnesses testified they were unaware of any IEP that allowed a student to be removed from school grounds.
In addition, the District maintains Damiano compounded this violation by tampering with the student's IEP to cover up her violation after she was removed as principal. Specifically, Damiano directed the modification of the student's IEP to allow the student to walk, with adult supervision, within a three-block radius around the school after the fact, without following IEP protocol. Damiano did not obtain written permission from the student's parents before directing the modification. Relying on Montayne v. Wissahickon School District, 399 F.Supp.2d 615 (E.D. Pa. 2005), the District maintains a principal cannot unilaterally change the services provided under a student's IEP, without first obtaining written parental consent. Thus, the District maintains, Damiano's conduct clearly constituted a violation of the law justifying her dismissal.
In Montayne, the federal court upheld a teacher's termination based on the fact she provided services additional to those included in the student's IEP without first obtaining written consent from the parents. Specifically, the teacher provided therapy sessions to a student despite the fact that the student's IEP related exclusively to improving his academic skills, and it did not refer to the student's need for psychological services. By recommending and taking the student to therapy sessions, the teacher unilaterally arranged for the provision of services or treatment of the student that were not contemplated by the student's IEP. The teacher admitted she never convened a meeting of the IEP team or obtained the parents' written consent before unilaterally modifying the student's IEP to include psychological services. In so doing, the teacher violated federal special education law and the school district's IEP policies and procedures.
However, the facts in Montayne are readily distinguishable from the facts of this case. Here, the IEP provided: student "will be given a short break (taken for a quiet walk around the school ....)." R.R. at 1048a (IEP) (emphasis added). Damiano, in taking the student for a decompression walk "around the school," provided a service that was permitted or contemplated for under the student's IEP.
Although there was debate regarding what the IEP intended by "around the school," Damiano's interpretation, which included the immediate vicinity of the school property, was not unreasonable, thereby negating any claim of willful or persistent neglect.
As for any alleged violation of school law, the District did not cite any specific provision of the School Code, regulations, the collective bargaining agreement, or any provision of federal law that refutes the special deputy's finding that the IEP allowed the student to go for a decompression walk off school property.
Finally, contrary to the District's assertions, Damiano did not alter the student's IEP or ignore IEP procedures. Damiano recommended an amendment of the student's IEP to expressly permit the student to be taken on walks outside the school. In her text message to Support Teacher, Damiano advised: "make sure [the IEP] says that with adult supervision [the student] can walk within a 3 block radius around the school." R.R. at 1054a.
Damiano's recommendation to amend the IEP followed her discussion with the Special Education Supervisor. Special Education Supervisor testified Damiano discussed the incident with her. Supervisor advised Damiano to contact the parents and then revise the IEP "because obviously the behavior of the child rose to the level needing to make additional behavioral support ...." Id. at 600a.
Although Damiano requested the amendment, she did not direct Support Teacher to bypass or disregard IEP procedures. Rather, she merely requested him to take appropriate action to effect that the IEP change. Teacher himself testified Damiano never asked him to change the IEP without following proper protocol. Id. at 645a, 651a, see id. at 846a-847a. Support Teacher testified he drafted the change for the IEP team to review and approve pursuant with District policy. Id. at 603a-604a, 636a-640a. The behavior support plan associated with the IEP was legally changed in May 2013 to allow the walk to occur "outside of the school." Id. 1052a; see id. at 618a-627a. Based on this testimony, the special deputy determined Damiano did not direct or make any procedurally improper change to the student's IEP or disregard the IEP process.
Upon review, the special deputy properly determined Damiano's conduct in connection with taking the IEP student for a walk around the school did not show persistent and willful violation of or failure to comply with school law, willful neglect, or persistent negligence in the performance of her duties.
3. PSSA Exams
Finally, the District argues the special deputy's decision to reverse Damiano's dismissal is contrary to the law based on her conduct during the administration of the PSSA exams. The District claims she failed to exercise the degree of care that a reasonable person would exercise in safeguarding confidential test material. More particularly, she left sensitive test materials unattended. She did not account for and monitor the PSSA materials as they were distributed at the school through a sign-in sheet. Her secretary requested teachers to retroactively sign a sign-in sheet. In addition, Damiano failed to take the requisite PSSA training. According to the District, Damiano's behavior in this regard constituted persistent negligence in the performance of duties, persistent and willful violation of or failure to comply with school laws, and willful neglect.
The PSSA Handbook required testing materials "be kept in a predetermined, locked, storage area" and never be "left unattended or in open areas." PSSA Handbook at 19. However, there is no provision requiring the storage of these materials in a locked closet or cabinet, rather than a locked office.
Damiano testified she kept the testing materials in her office. The office was secure and attended by herself or Secretary, and when they were not in the office, the door automatically locked. When a Department official advised the school that testing materials should be kept in a locked closet, Damiano immediately complied. R.R. at 782a-783a, 891a.
As for the teacher sign-in sheets, the District offered no evidence establishing this requirement. As discussed above, the PSSA Handbook refers to a security checklist that is described as a "tool to account for the secure material as they are distributed to the Test Administrators and to monitor the materials as they are returned to the Test Administrators." PSSA Handbook at 25. It directs principals to "distribute the correct assessment booklets needed for that day's assessment to each Test Administrator as recorded on the Security Checklist." Id. But, there is no requirement that the Security Checklist must be used. Id. Rather, the PSSA Handbook merely provides the security checklist is a tool that "should be used." Id. There is also no provision requiring a teacher sign-in sheet to account for materials. Moreover, the District never warned her that her method for distributing and collecting exams was improper. Id. at 780a.
With regard to the PSSA tutorial, the District cited no school law or directive mandating her attendance. However, Damiano testified "there was an on-line [PSSA] tutorial that teachers and administrators were supposed to attend." Id. at 836a. She admitted she did not attend because of a scheduling conflict. Id. She testified she was unable to take the internet PSSA tutorial prior to administering the exams based on technical difficulties. Id. at 837a-838a. She notified her Supervisor of the problem and never heard back from her. Id. Insofar as the District argues her conduct in this regard constitutes willful conduct, Damiano's testimony undermines the argument.
Upon review, Damiano did not violate any school law or policy. She did not intentionally neglect her duties as set forth in the PSSA Handbook to monitor testing materials. Her inability to take the tutorial was not persistent or willful. Thus, the special deputy did not err in determining the District did not prove valid cause for her dismissal.
IV. Conclusion
In conclusion, the special deputy's decision is supported by substantial evidence. Damiano's behavior did not evidence a persistent and willful violation of or failure to comply with school laws, willful neglect, or persistent negligence in the performance of her duties as principal justifying the District's dismissal. We, therefore, conclude the special deputy did not err by reversing the District's dismissal and directing Damiano's reinstatement to the position of principal at the RMES.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge Judge Brobson did not participate in the decision in this case. ORDER
AND NOW, this 5th day of June, 2015, the order of the Special Deputy for Adjudicatory Matters in the Office of Secretary of Education is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge