Appeal from the Order of the Secretary of Education in case of Jeffrey Carlson v. School District of Warren County, Teacher Tenure Appeal, No. 21-78.
Joseph A. Massa, Jr., for petitioner.
Paul D. Boas, for respondent.
Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. concurs in result only. Dissenting Opinion by Judge Wilkinson, Jr.
[ 53 Pa. Commw. Page 570]
On March 16, 1978, Jeffrey Carlson (Carlson) was dismissed as a teacher by the Warren County School District (District) following a public hearing. The charge against Carlson was immorality by reason of possession of more than thirty grams of marijuana for personal use. Carlson appealed to the Secretary of Education (Secretary) who reversed the district and ordered Carlson reinstated with full pay. The instant appeal is from the Secretary's decision. We affirm.
The crux of this appeal as well as of the proceedings which preceded it is the evidentiary value of Carlson's plea of nolo contendere to the charge against him under the provisions of Section 17 of The Controlled Substance, Drug, Device and Cosmetic Act (Act), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-117. That statute provides that under certain conditions, the court may accept a plea of nolo contendere and, without entering judgment, defer the proceedings and place the defendant on probation for a specific period of time. Moreover, it is provided that if the defendant successfully completes his probationary term, such person shall be discharged and the proceedings dismissed with the following addendum: "Discharge and dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever. . . ." Section 19 of the Act, 35 P.S. § 780-119, provides that records of arrest or prosecution under the Act may be expunged when the charges are dismissed. Where such records have been ordered expunged, Section 19 provides
[ 53 Pa. Commw. Page 571]
that such record shall not be regarded as an arrest or prosecution for the purpose of " any civil or criminal proceeding or any other public or private purpose." (Emphasis added.)
The time line of the pertinent events in this case is as follows: June 24, 1977, Carlson enters a plea of nolo contendere and is placed on probation for one year; September 26, 1977, the District suspends Carlson; March 16, 1978, the District dismisses Carlson; July 6, 1978, Carlson's record of arrest and prosecution is expunged; July 7, 1978, Carlson has a hearing before a hearing examiner appointed by the Secretary of Education; and June 8, 1979, the decision of the Secretary is filed.
Additional relevant matters are that the only evidence of Carlson's misconduct submitted at the District's hearing was the testimony of the Prothonotary of Warren County concerning the criminal case against Carlson*fn1 and that no additional testimony was taken by the hearing examiner appointed by the Secretary, although a stipulation of the parties was received.
There is no doubt that the District had the statutory authority to dismiss Carlson for immorality after a public hearing. Sections 1122 and 1129 of the Public School Code, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 11-1122 and 11-1129. There seems to be no serious question in this case that the possession of more than thirty grams of marijuana would constitute immoral conduct. Testimonial evidence of this fact was presented to the District.
Although Carlson submitted several issues to the Secretary in support of his appeal, the Secretary based his reversal ...