Appeal from the Order of the Secretary of Education in case of Appeal of John L. Caffas, a Professional Employe, from a decision of the Board of School Directors of the Upper Dauphin Area School District, Dauphin County, Pennsylvania, No. 239.
Clarence C. Morrison, for appellant.
Earl R. Etzweiler, for appellee, Board.
Edward A. Miller, Assistant Attorney General, for appellee, Secretary of Education.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 23 Pa. Commw. Page 579]
The appellant, John L. Caffas, has appealed from an order of the Pennsylvania Secretary of Education sustaining the action of the Board of Directors of the Upper Dauphin Area School District terminating the appellant's contract and dismissing him from his teaching position. Mr. Caffas was charged with intemperance, cruelty, and persistent and willful violation of the school laws, any one of which offenses is a ground for termination under Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. 11-1122.
[ 23 Pa. Commw. Page 580]
The Board of School Directors after a lengthy hearing determined that all three charges had been made out. On appeal, the Secretary of Education determined that the charge of intemperance was not supported by the record but that the charges of cruelty and willful violation of school laws were.
Mr. Caffas raises three questions: (1) whether the Secretary erred in dismissing the charge of intemperance, (2) whether the Secretary erred in concluding that there is substantial evidence in the record supporting the charge of cruelty, and (3) whether there is substantial evidence in the record of persistent and willful violation of the school laws.
Since the Secretary agreed with the appellant that the charge of intemperance had not been sufficiently proved, and since there is no cross-appeal, the appellant's argument in support of the Secretary's action in this regard is, of course, no longer pertinent. The appellant, however, uses a discussion of this charge in the Secretary's opinion as a springboard for an argument that, since the charge of intemperance might have been brought to retaliate for the appellant's expression of disagreement with school board policy in violation of his First Amendment rights,*fn1 he may not be lawfully dismissed for any other reason. He says that the law is that if the termination of his contract was partially grounded on a constitutionally impressive reason, he may not be dismissed for any other reason or reasons, including cruelty and persistent and willful violation of the school laws. Reliance is placed on Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971), and Lusk v. Estes, 361 F. Supp. 653 (N.D. Tex. 1973). Neither of the cases cited support the appellant's argument. In Fluker v. Alabama State Board of Education, supra, a three judge Federal Court affirmed a District Court judge's determination that the action of
[ 23 Pa. Commw. Page 581]
a University in not renewing the contracts of non-tenured faculty members was motivated by a desire to upgrade the faculty and not for the purpose of retaliating for anti-administration activities by the teachers. In the course of the discussion, the author of the panel's opinion declared that the teachers could obtain relief if they could establish ...