Appeals from the Order of the Secretary of Education in case of Appeal of Richard C. Baker, a Professional Employee, from a Decision of the Board of School Directors of the School District of the City of Allentown, Lehigh County, Pennsylvania, No. 279.
Clayton T. Hyman and Sandor Engel, with them Coleman and Hyman, for Richard C. Baker.
William G. Malkames, Solicitor, for School District of City of Allentown.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 29 Pa. Commw. Page 454]
Appellant is a professional employe of the School District of the City of Allentown (School District). He was arrested and subsequently entered a plea of nolo contendere to the federal offense of operating an illegal gambling business in violation of 18 U.S.C.
[ 29 Pa. Commw. Page 455]
§§ 1955, 2. After a hearing the local school board, on October 9, 1975, terminated appellant's employment contract on the grounds of immorality and incompetency pursuant to Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1122. The only evidence that appellant was engaged in illegal gambling was the nolo contendere plea. Upon appeal the Secretary of Education (Secretary) affirmed the dismissal on the grounds of immorality only. Cross appeals were filed and were consolidated for argument. We affirm the order of the Secretary.
Appellant first contends that a plea of nolo contendere is not competent evidence in a civil proceeding and that a finding of immorality based solely upon such a plea cannot stand. We disagree. While a nolo contendere plea has no effect or operation in a civil action to vindicate individual rights, Teslovich v. Firemen's Fund Insurance Co., 110 Pa. Superior Ct. 245, 168 A. 354 (1933) (plaintiff recovered on fire insurance policy after pleading nolo contendere to arson), this case is controlled by State Dental Council & Examining Board v. Friedman, 27 Pa. Commonwealth Ct. 546, 367 A.2d 363 (1976). In that case, where a dentist's license was suspended for the commission of a crime involving moral turpitude, a plea of nolo contendere was admitted as evidence of an admission of the crime. Judge Mencer stated:
[W]e are not here dealing with a civil suit to enforce individual rights. Rather, we are dealing with an administrative agency of the sovereign which seeks to carry out its duty to protect the citizens of the Commonwealth by regulating the conduct of its licensees. It is the interests of many rather than the interests of few which impels the Board.
Id. at 550, 367 A.2d at 366.
[ 29 Pa. Commw. Page 456]
We find a dismissal proceeding under Section 1122 of the School Code somewhat analogous to but less onerous than a suspension-revocation proceeding under Section 3(i) of The Dental Law, Act of May 1, 1933, P.L. 216, as amended, 63 P.S. § 122. We, therefore, hold that a plea of nolo contendere is admissible as evidence of an admission of guilt in a ...