Appeal from the Order of the Secretary of Education in case of Appeal of Jack Hudson, a Professional Employee, from a Decision of the Board of School Directors of the Sharon City School District, Docket No. 297.
William G. McConnell, with him Cusick, Madden, Joyce and McKay, for petitioner.
John R. DeAngelis, for respondent.
William Fearen, with him Michael I. Levin, and Cleckner & Fearen, for amicus curiae, Pennsylvania School Boards Association.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr.
[ 34 Pa. Commw. Page 279]
This is an appeal from an order of the Secretary of Education (Secretary) which reversed a decision of the petitioner school district demoting the respondent,
[ 34 Pa. Commw. Page 280]
and which further directed that the respondent be reinstated with back pay until such time as the petitioner held a hearing consistent with the Secretary's opinion. We reverse.
Respondent was an assistant principal at petitioner's junior high school for the 1973-1974 and 1974-1975 school years. Due to various considerations, particularly a large decline in enrollment, the budget adopted on June 30, 1975 eliminated the respondent's position. The respondent was informally advised of this action on or about July 2, 1975, and on July 5, 1975 he requested a private meeting with the school board and the superintendent. This meeting was held on July 9, 1975 and subsequently on July 28, 1975 the respondent was formally advised that the position of assistant principal at the junior high school had been eliminated, and that beginning with the 1975-1976 school year he would be transferred to a teaching position at the maximum basic salary for teachers. On August 4, 1975 the respondent requested a hearing. After a number of continuances requested and agreed to by both sides, the hearing was held on March 29, 1976. The school board affirmed the decision to demote, but on appeal was reversed by the Secretary. The Secretary found that the respondent had been denied due process for these reasons: (1) the school board's solicitor, Mr. McConnell, had functioned both as prosecutor and judge; (2) the petitioner should have afforded respondent a hearing prior to his demotion; (3) two school board members had misconceptions regarding their ability to reinstate the respondent once the budget had been closed. The Secretary then ordered that the respondent be reinstated with back pay pending a new hearing.
Before entering into a detailed discussion of this particular case, it is necessary to first establish the basic rules of law which govern this appeal. Under
[ 34 Pa. Commw. Page 281]
Section 1151 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11-1151, a professional employe subjected to a non-consensual demotion shall be entitled to a hearing before the board of school directors, and thereafter to an appeal in the same manner as provided for dismissed professional employes in Section 1127 of the Code, 24 P.S. § 11-1127. This hearing must afford the professional employee with due process of law. In re: Appeal of Feldman, 21 Pa. Commonwealth Ct. 451, 346 A.2d 895 (1975). Due process, in the administrative setting, requires that governmental bodies avoid not just actual ...