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HAROLD D. MCCOY v. LINCOLN INTERMEDIATE UNIT NO. 12 (09/28/78)

decided: September 28, 1978.

HAROLD D. MCCOY, PETITIONER
v.
LINCOLN INTERMEDIATE UNIT NO. 12, RESPONDENT



Appeal from the Order of the Secretary of Education in case of Appeal of Harold D. McCoy, a Professional Employee, from a decision of the Board of School Directors of the Lincoln Intermediate Unit, No. 12, New Oxford, Pennsylvania, No. 273.

COUNSEL

John D. Killian, with him Killian & Gephart, for petitioner.

Michael W. King, with him Emanuel A. Cassimatis, and Stock and Leader, for respondent.

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

Author: Blatt

[ 38 Pa. Commw. Page 31]

Harold D. McCoy (appellant) appeals here from an order of the Acting Secretary of Education (Secretary) which dismissed his appeal from his demotion by the Board of Directors (Board) of the Lincoln Intermediate Unit No. 12 (L.I.U.).

The appellant was employed by the L.I.U. as Director of Special Education. In February of 1975, a then newly appointed Executive Director, Dr. Irvin A. Karam, held a meeting with the appellant to discuss his alleged deficiencies and "lack of accountability," and his resignation was then requested, with Dr. Karam assuring him of reassignment as a School Psychologist with no reduction in pay. Several days later the appellant wrote to Dr. Karam that he would resign only if the Board could legally demonstrate sufficient cause for his removing himself as Director of Special Education. On March 25, 1975, Dr. Karam submitted a Statement of Charges to the Board recommending the appellant's demotion to the position of School Psychologist, accusing him of (1) disloyalty to the Administration, (2) insubordination, (3) disruption of staff and personnel, and (4) incompetence as an administrator. On April 1, 1975, the Board adopted a resolution demoting the appellant from Director of Special Education to School Psychologist effective May 7, 1975. The appellant was notified by a letter dated April 3, 1975, of the action taken and of his right to a hearing under the Public School Code of 1949.*fn1 He requested such hearing and the Board met twenty-six times in the course of conducting the hearing. Meanwhile, the effective date of the appellant's demotion had been continued until June 30, the first expected date of the conclusion of the hearing, and then again

[ 38 Pa. Commw. Page 32]

    until August 5, 1975. During the hearing the four original allegations were supplemented by thirty-seven additional charges, and, on August 5, 1975 the Board sustained all four original allegations and thirty-three of the supplementary charges and demoted the appellant to the position of School Psychologist. He then appealed to the Secretary of Education and, following a hearing, the Acting Secretary entered an order sustaining the Board's action and dismissing the appeal. This adjudication is now before us on appeal.

This Court's scope of review in appeals from the Secretary of Education is to determine whether or not an error of law was committed, constitutional rights were violated, or necessary findings of fact are unsupported by substantial evidence. Steffen v. Board of Directors, 32 Pa. Commonwealth Ct. 187, 377 A.2d 1381 (1977); Bovino v. Board of School Directors, 32 Pa. Commonwealth Ct. 105, 377 A.2d 1284 (1977).

The appellant maintains here that he was not demoted on any valid basis but simply because his supervisor did not like him. He argues that his demotion should be set aside because he was denied substantive due process under the Public School Code of 1949 (Code), and under the fourteenth amendment of the United States Constitution.

The Board argues initially that the appellant had no property interest in his position nor any right to a hearing or to any of the other established procedures for effecting demotions under the Code because he had no written contract of employment. It cites two cases in which we have held that public school teachers' contracts must be in writing to be valid and enforceable. Department of Education v. Jersey Shore Area School District, 23 Pa. Commonwealth Ct. 624, 353 A.2d 91 (1976) and Gordon v. Board of Directors, 21 Pa. Commonwealth Ct. 616, 347 A.2d 347 (1975). We do not believe, however, that these cases are determinative of

[ 38 Pa. Commw. Page 33]

    the professional employee status of this appellant, for they were decided under Section 1121 of the Code, which, although it specifically requires contracts of professional employees of school districts to be in writing,*fn2 does not apply to employees of an intermediate unit.*fn3 Commonwealth ex rel. Waychoff v. Tekavec, 456 Pa. 521, 319 A.2d 1 (1974).

We note, however, that Section 913A of the Code, 24 P.S. § 9-963(e), provides that all professional employees of an intermediate unit shall have the same rights of tenure as similar employees of a school district. There is no definition of "professional employee" in this Section concerning intermediate unit employees, but there is a definition provided in Section 1101 of the Code, which sets forth the procedures for demotion of professional employees, and we believe that this definition in Section 1101 would apply here. It provides that a "professional employee" shall refer to those employees who are certified as, among others, "supervisors" and "school counselors." 24 P.S. § 11-1101(1). The regulations of the State Board of Education, of course, provide that the Department of Education has the ...


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