decided: February 18, 1982.
BOARD OF SCHOOL DIRECTORS OF THE EASTERN YORK SCHOOL DISTRICT, PETITIONER
MYRON L. FASNACHT, RESPONDENT
Appeal from the Order of the Secretary of Education in case of Myron L. Fasnacht v. Eastern York School District, Teacher Tenure Appeal, No. 18-79.
Michael I. Levin, Cleckner and Fearen, for petitioner.
Thomas W. Scott, Killian & Gephart, for respondent.
President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 572]
Eastern York School District appeals an order of the Secretary of Education which reversed a decision of the Board of School Directors dismissing Myron Fasnacht, tenured professional employee.
The Superintendent of Schools had suspended Fasnacht, without pay, from his teaching position on January 4, 1979. By letter of January 12, 1979, the
[ 64 Pa. Commw. Page 573]
school board informed Fasnacht that he was charged with persistent negligence and incompetence;*fn1 after notice, the board held hearings at which Fasnacht was present and represented by counsel.
Under the negligence charge, the chief specification against Fasnacht was that of sleeping while he was supposed to be presiding over his class. The remaining specifications included (1) failure to comply with lesson plan policy, (2) inadequate preparation of individual evaluation plans (IEPs) for the mentally retarded students whom he taught, and (3) teaching subjects inconsistent with the IEPs which he had prepared.
The board's decision stated specific findings and dismissed Fasnacht on the ground of persistent negligence, based primarily upon the charge of sleeping in class. The board also found that Fasnacht had failed to submit lesson plans and had taught subjects inconsistent with his IEPs, but the board did not find any failures in the preparation, adequacy or pursuance of lesson plans, nor any inadequacy in the preparation of IEPs. The board viewed the incompetence charge as not proved.
On appeal, the Secretary of Education, without receiving any additional evidence, reviewed the record and, on the basis of newly stated findings of his own, reversed the board's dismissal action.
Although the board classed all of the specifications as relating to the negligence charge, and the Secretary (while agreeing that failure to submit plans would be negligence) viewed inadequacies of preparation and presentation as relating to competence, we need not resolve that distinction because we conclude that we
[ 64 Pa. Commw. Page 574]
must reverse the Secretary's decision on the ground that he exceeded his scope of review in overturning the board's dismissal action based upon sleeping at work.
The Pennsylvania Supreme Court clarified the scope of review accorded to the Secretary by the terms of Public School Code Section 1131*fn2 in Strinich v. Clairton School District, Pa. , 431 A.2d 267 (1981) by the statement that:
To the extent that additional testimony is taken, the Secretary may make additional findings of fact. If no such additional testimony is taken, however, the Secretary's review is limited to traditional appellate review. Compare, Jones v. Workmen's Compensation Appeal Board, 25 Pa. Commw. 546, 551, 360 A.2d 821, 824 (1976).
Pa. at , 431 A.2d at 269-70 n. 3. The meaning of "traditional appellate review" is illuminated by the Supreme Court's specific citation to the page in Jones where we stated that the reviewing administrative
[ 64 Pa. Commw. Page 575]
agency, "without taking further evidence, may not reverse . . . as to the credibility of the evidence. . . ."
Thus, when the Secretary has received additional evidence, the Secretary functions as the "ultimate fact finder" and may "determine the weight of the testimony". Warren County School District v. Carlson, 53 Pa. Commonwealth Ct. 568, 418 A.2d 810 (1980) (additional evidence, without new testimony). However, where, as here, the board makes findings of fact and the Secretary takes no new evidence, the Secretary's scope of review is limited to determining whether there is substantial evidence to support the findings of the board. Wissahickon School District v. McKown, 42 Pa. Commonwealth Ct. 169, 400 A.2d 899 (1979); and see Penn-Delco School District v. Urso, 33 Pa. Commonwealth Ct. 501, 382 A.2d 162 (1978); Landi v. West Chester School District, 23 Pa. Commonwealth Ct. 586, 353 A.2d 895 (1976).
Review of the record requires a conclusion that there is substantial evidence to support the board's findings that Mr. Fasnacht was sleeping in his classroom twice during the week ending March 10, 1977, on May 16, 1978, on October 2 and 31, 1978 and on January 3, 1979.*fn3 Supporting those findings is the aggregated testimony of four school administrators, each of whom, with respect to specific dates, related that they had observed Fasnacht asleep at his desk while in charge of his class.
The Secretary's opinion, after a very thorough review of the record, concluded that the testimony concerning sleeping was not credible; because on most of the occasions, the observers did not enter the room
[ 64 Pa. Commw. Page 576]
or attempt to wake Fasnacht,*fn4 the Secretary reasoned that:
[I]t is impossible to believe that a teacher's superior . . . would have so little regard for mentally retarded school children's safety and welfare that he would perceive their teacher to be asleep and simply return to his office without intervening in anyway to protect those children.
From other testimony, to the effect that Fasnacht's physical appearance is such that his eyes are "hooded" so as to give his eyes an appearance of being closed when they are not, the Secretary specifically found the testimony of Dr. Jenkins, the School Superintendent, to be unreliable because, at a demonstrative reenactment at the board's hearing, Dr. Jenkins, even within a distance of two feet, thought that Fasnacht's eyes were closed when they were in fact open.
However, under the scope of review noted above, where the board has received all of the evidence, the Secretary cannot substitute his judgment regarding the credibility of witnesses for that of the board.*fn5 The same is true with respect to drawing inferences from
[ 64 Pa. Commw. Page 577]
demonstrative evidence, where it was the board members who observed the reenactment.
In view of our conclusion that there was substantial evidence to support the key specification as to negligence, we need not consider the other specifications in detail.*fn6 Accordingly, we reverse the Secretary.*fn7
Now, February 18, 1982, the order of the Secretary of Education, made September 4, 1980, sustaining the appeal of Myron L. Fasnacht, is reversed and the decision of the Board of School Directors of the Eastern York School District is reinstated.
Judge Palladino did not participate in the decision in this case.
Reversed. Dismissal decision reinstated.