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WALTER BOEHM v. BOARD EDUCATION SCHOOL DISTRICT PITTSBURGH (06/09/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 9, 1977.

WALTER BOEHM, PETITIONER
v.
THE BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PITTSBURGH, RESPONDENT

Appeal from the Order of the Secretary of Education in case of Walter A. Boehm, Jr. v. The Board of Public Education of the School District of Pittsburgh, Teacher Tenure Appeal No. 248.

COUNSEL

John A. Bacharach, with him Eugene P. Girman, and Girman & Del Sole, for petitioner.

Persifor S. Oliver, Jr., Assistant Solicitor, with him Justin M. Johnson, Solicitor, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 30 Pa. Commw. Page 469]

This is an appeal by Walter Boehm from an order of the Secretary of Education which sustained his dismissal by the Board of Education of the City of Pittsburgh.

Boehm was a tenured professional employe of the Pittsburgh School District when, in March of 1973, he officially assumed the additional position of Treasurer of the Fifth Avenue High School Activities Fund at the high school where he was then assigned. In March of 1974, the books and records relating to the Fund were audited and it was discovered that: (1) a ledger entry which indicated a cash deposit of $1,000 in a savings account was false; and (2) Boehm was unable to locate the savings account passbook. He received a statement of charges from, and hearings before, the Pittsburgh School Board, which subsequently dismissed him for persistent negligence, as provided in Section 1122 of the Public School Code of 1949*fn1 (Code), 24 P.S. § 11-1122, inter alia, as follows:

[ 30 Pa. Commw. Page 470]

The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employe. . . . (Emphasis added.)

The Secretary of Education sustained the dismissal, and this appeal followed.

Boehm first argues that some of the school directors were not present at the hearings where evidence was presented and that they were barred from voting on the question of dismissal.*fn2 He also argues that the evidence presented at the hearings should not have been considered when the Board voted his dismissal because the Board did not have a quorum present. Addressing ourselves to the second part of this first argument, we note that Section 422 of the Code, 24 P.S. § 4-422, provides, inter alia, as follows:

A majority of the members of a board of school directors shall be a quorum. If less than a majority is present at any meeting, no business shall be transacted at such meeting, but

[ 30 Pa. Commw. Page 471]

    the members present may adjourn to some stated time. . . .

It is not contested here that: (1) the Pittsburgh School Board is comprised of fifteen members; (2) a hearing was held on August 15, 1974 at which six members of the Board were present (a seventh arriving late); (3) on August 21, 1974, the School Board attempted to hold a hearing, but, because only three members were present, it granted a continuance requested by the parties; and (4) a final hearing was held on September 18, 1974 at which eight members of the Board were present. While it is true that Section 1129 of the Code requires a two-thirds vote of the Board for the dismissal of a professional employe, it is clear that a majority of the Board, eight members here, constitutes a quorum for the purpose of transacting business. Because there was a quorum present at the last hearing held on September 18, 1974,*fn3 and because Boehm incorporated and relied upon all of the testimony taken at the two hearings in his summation to the Board, and failed to object to the absence of a quorum until such summation, we believe that the evidence was properly received in this case*fn4 and was available for consideration by all of the Board members. Moreover, because eleven members of the Board voted for dismissal after consideration of the entire record,*fn5 it is clear that the requirements of Section 1129 of the Code have been satisfied.

[ 30 Pa. Commw. Page 472]

    did consider the evidence presented whether or not all were present at all of the sessions held. And, of course, they did constitute both a quorum and a majority. We are satisfied, therefore, that no violation of the appellant's statutory or constitutional rights resulted because of the composition of the Board at the time of the final adjudication.

Boehm next argues that there was insufficient evidence in the record to support a conclusion that the missing funds entrusted to him were not deposited in the bank account and, that such a conclusion, even if adequately supported in the record, would not amount to persistent negligence as a matter of law. We disagree. The Secretary of Education found, and it is supported by the record*fn6 that: (1) the appellant did not deposit the $1,000 in question into the savings account; (2) he had been otherwise negligent in the handling of the funds; and (3) he could not account for the missing money. In Lucciola v. Secretary of Education, 25 Pa. Commonwealth Ct. 419, 423, 360 A.2d 310, 312 (1976), this Court held that

[a]s a general proposition, 'persistent' is defined as 'continuing' or 'constant.' 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, or as one incident carried on for a substantial period of time. (Citations omitted.)

We believe that the appellant's negligent handling of the funds entrusted to him as set forth in this record,

[ 30 Pa. Commw. Page 474]

    did constitute persistent negligence as set forth in Section 1122 of the Code, 24 P.S. § 11-1122, whether his actions are viewed as a series of individual incidents or as one incident carried on for a substantial period of time. Lucciola, supra.

Boehm also argues that the Board's dismissal did not include findings of fact and conclusions of law as required by the Local Agency Law, Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. § 11301 et seq. The Local Agency Law, however, was enacted to provide a forum for the enforcement of statutory rights where no procedure otherwise exists, Fatscher v. Springfield School District, 28 Pa. Commonwealth Ct. 170, 367 A.2d 1130 (1977), but Sections 1127, 1129 and 1130 of the Code,*fn7 24 P.S. §§ 11-1127, 11-1129 and 11-1130,

[ 30 Pa. Commw. Page 475]

    clearly provide a complete procedure for a professional employe to enforce the rights granted to him by Section 1122 of the Code. Smith v. Harmony Area School District, 16 Pa. Commonwealth Ct. 175, 328 A.2d 883 (1974). The requirements of the Local Agency Law, therefore, do not apply here.

Boehm's final argument is that an impermissible commingling of prosecutorial and adjudicatory functions occurred in the hearings before the Board because an assistant solicitor presented the case against the appellant, while the legal duty to advise the Board rested with his superior, the Board's solicitor. We have been unable to find any evidence of impropriety in the record (in fact it appears that the Board made its own rulings on evidentiary matters) and we believe, therefore, that the appellant was not denied either due process or a fair adjudication merely because the duty to prosecute the case and the duty to advise the Board belonged to two different attorneys within the same public office. Human Relations Commission v. Thorp, Reed & Armstrong, 25 Pa. Commonwealth Ct. 295, 361 A.2d 497 (1976).

The order of the Secretary of Education is, therefore, affirmed.

Order

And Now, this 9th day of June, 1977, the order of the Secretary of Education, dated July 20, 1976, which affirmed the dismissal of Walter Boehm by the Board of Education of the Pittsburgh School District, is affirmed.

Disposition

Affirmed.


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