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decided: July 20, 1982.


Appeal from the Order of the Secretary of Education in the case of Gloria Brown and Joseph Madzelan v. Chester Upland School District, Teacher Tenure Appeal No. 20-80.


Leo Hackett, Fronefield and DeFuria, for petitioner.

No appearance for respondents.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 67 Pa. Commw. Page 541]

Chester Upland School District petitions for review of a decision by the Secretary of Education which reversed its Board of School Director's action demoting Gloria Brown and Joseph Madzelan (employees) and remanded the case with directions to reconvene the demotion hearing to consider expert testimony on alternative approaches to budget reduction.

The district had notified the employees in June of 1980 that their positions as middle-school vice-principals were to be eliminated as a result of declining enrollment, economic conditions in the district and the realignment of administrative staff. Pursuant to

[ 67 Pa. Commw. Page 542]

Sections 1151 and 1127 of the Public School Code of 1949 (Code),*fn1 the board held three meetings to consider testimony on the employees' appeal from the decision.

The employees then appealed the board's adjudication upholding the elimination of the positions to the Secretary of Education, who held that: (1) the board's decision was amply supported by the evidence and was not an arbitrary or capricious exercise of its discretion, and (2) the board considered the eliminations and reassignments individually on a consolidated basis, according the employees full opportunity to present their arguments without prejudice.

However, on review before the Secretary, the employees also claimed that they were denied a full and fair hearing because the board had sustained an objection to the testimony of their expert witness, who was not permitted to answer a question by the employees' counsel as to whether the budget cut could be accomplished in some other manner.

The Secretary of Education held that the exclusion of the proffered testimony "resulted in a detriment and unfairness to the [employees] in the presentation of their case to the School Board."

On the basis of his conclusion that the hearing did not meet the fundamental requirements of due process for demoted or dismissed professional employees, the Secretary remanded the case to the board with orders that the excluded testimony be heard.

Our scope of review 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. Nagy v. Belle Vernon Area School District, 49 Pa. Commonwealth Ct. 452,

[ 67 Pa. Commw. Page 543412]

A.2d 172 (1980). Demoted employees contesting the board's action have the burden of proving it to be arbitrary, discriminatory or founded upon improper considerations. Nagy, Lucostic v. Brownsville Area School District, 6 Pa. Commonwealth Ct. 587, 297 A.2d 516 (1972).

Although the procedural requirements for demotion hearings under the Code must be strictly followed, Jost v. Phoenixville Area School District, 267 Pa. Superior Ct. 461, 406 A.2d 1133 (1979), we cannot hold that the board's ruling sustaining the district's objection to the question*fn2 created such a substantial

[ 67 Pa. Commw. Page 544]

    defect in the proceedings as to constitute a denial of due process.

The exclusion of the offered testimony was harmless, in that it would have been merely cumulative. Our examination of the record reveals that the employees' expert witness, Dr. David Horowitz, testified extensively on a variety of issues directly related to the validity of the district's decision to eliminate the positions.*fn3 Indeed, the board admitted, without objection, the following testimony:

Q. (Attorney) If there were a situation -- as you sat through in the preceding hearings and tonight, accepting the fact that we have to cut some dollars some place, would you believe in your opinion, would you recommend to this Board, a board of education who has the best interests of the children of this district at heart, that the best place, the best place to make a cut is in vice principalships at the middle school?

A. I certainly would not advise them to do that. If I may, I would --

Q. I would like you to.

A. I would advise them, as I have done -- and I have constructed school budgets and been very directly involved in their construction and their defense, as a matter of fact -- I would advise them to seek out those items in the budget that do not -- first seek out those items in the budget that do not have a direct and/or indirect relationship to instruction, to education.

The Secretary of Education recognized the extensive record established before the board, stating:

[ 67 Pa. Commw. Page 545]

We find on review of this extensive record that the School Board received a sufficient body of evidence to warrant its decision to abolish the positions in question in this appeal. Indeed, the record shows not only economic and enrollment justification for such action, but it further demonstrates a careful study and review of the situation by the administrative staff of the School District prior to recommending abolition of the positions to the School Board. While the record does contain some testimony which supports [the employees'] position, discretion is clearly vested in the School Board to determine which set of facts or opinions it chooses to accept.

Accordingly, the order of the Secretary remanding for admission of the excluded testimony is reversed, and the decision of the board demoting the employees is reinstated.


Now, July 20, 1982, the order of the Secretary of Education dated May 8, 1981 in Teacher Tenure Appeal No. 20-80, is reversed, and the decision of the Board of School Directors of Chester Upland School District is reinstated.



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