No. 48 W.D. Appeal Docket, 1984, Appeal from the Opinion and order of the Commonwealth Court of Pennsylvania dated September 20, 1983 at No. 267 C.D. 1982 which reversed and remanded the order of the Secretary of Education at No. 21-81 dated January 7, 1982,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a dissenting opinion.
Appellee Rike was accused by a female employee of the school district where he was employed, of sexual "harassment"
in the form of comments believed by their recipient to embody unwelcome sexual invitations. Following an investigation of the complaint by the district superintendent, Rike was notified by letter that the superintendent was "considering a recommendation to the Board of Directors of the Peters Township School District that [Rike's] contract be terminated pursuant to the provisions of Section 1122 of the Public School Code of 1949 as amended."*fn* Notice of the hearing advised Rike of the charges against him; the date, time and place of the hearing; and that the hearing would be conducted in accordance with procedures legislatively prescribed in Section 1127 of the Public School Code, 24 P.S. § 11-1127 (1979), i.e., that the Board would hear testimony of the school administration and its witnesses and would afford Rike the opportunity to present testimony and cross examine witnesses, that testimony would be recorded by a disinterested public stenographer, and that Rike could have representation at the hearing. The notice further advised that the Board would fully, impartially and unbiasedly consider the charges and the evidence to determine whether Rike's employment should be continued "or whether some other discipline is warranted and if so, the type of discipline to be imposed." At the hearing, Rike admitted making the comments complained of. After the hearing, bifurcated as to the questions of fact and discipline, all eight Board members present found that Rike had committed acts of cruelty and immorality; and, by a vote of 5-3, the hearing Board suspended Rike without pay or other benefits for the remainder of the 1981-1982 school year. Later, this adjudication was ratified by a 6-3 vote of the entire Board.
Challenging the Board's action on the grounds (1) that the Board had no power to suspend under the Public School Code and (2) that no discipline could be imposed in the absence of two-thirds approval of the Board, Rike appealed to the Secretary of Education. The Secretary dismissed the appeal for lack of jurisdiction. Commonwealth Court, 77 Pa. Commw. 237, 465 A.2d 720, reversed, held the Board was without authority to impose a disciplinary suspension after a dismissal hearing where there were not enough votes to suspend, and ordered the record remanded to the Secretary with instructions to enter an order reversing Rike's suspension. The Commonwealth, Secretary of Education and the Peters Township School District were granted allowance to appeal. The Pennsylvania School Boards Association has participated in this appeal as amicus curiae. For the reasons that follow, we reverse.
School boards are local agencies, 2 Pa.C.S.A. § 101, and jurisdiction of appeals therefrom is vested generally in the courts of common pleas, 42 Pa.C.S.A. § 933(a)(2). The Public School Code provides exceptions to this appellate jurisdiction of common pleas court for decisions of school boards dismissing or demoting tenured teachers, 24 P.S. §§ 11-1131, 11-1151, and for disputes over accumulated sick leave, 24 P.S. § 11-1154. In these cases, jurisdiction of the appeals is vested in the Secretary of Education. Id. As Rike was given a disciplinary suspension without pay or other benefits for the remainder of the school year, appeal of the Board's adjudication was not within the jurisdiction of the Secretary.
Rike's argument that jurisdiction of his appeal is vested in the Secretary because the suspension was imposed for causes justifying dismissal enumerated in Section 1122 of the Code, 24 P.S. § 11-1122, and after a dismissal hearing was conducted according to the procedures mandated in Section 1127, 24 P.S. § 11-1127, when dismissal of a tenured teacher is sought, is unavailing. Simply stated, an appeal lies, not from the proceeding, but from the adjudication. Instantly, the adjudication was that Rike be suspended
for the balance of the school year. A suspension, being a temporary form of discipline, is not a dismissal, which is a complete and permanent termination of employment. As the Secretary's administratively appellate jurisdiction is limited to demotions and dismissals, the Secretary cannot have jurisdiction of appeals from orders imposing disciplinary suspensions.
Rike's argument that the Board was without power to suspend after conducting a hearing pursuant to Sections 1122 and 1127 is likewise without merit. That a board of school directors possesses the authority to impose lesser forms of discipline than complete termination of a tenured teacher's contract is by now beyond question. The general assembly, in whom our constitution reposes the responsibility of establishing the parameters of administering the education of our youth, PA CONST. Art. III, Section 14, has created school districts and imbued them with "all necessary powers to enable them to carry out the provisions of this act," 24 P.S. § 2-211, including the power to employ teachers, 24 P.S. § 11-1106. Inherent in the school district's power to employ is the power to control certain activities of teachers, Kaplan v. Philadelphia School District, 38 Pa. 213, 130 A.2d 672 (1957). As stated by Mr. Justice (now Chief Justice) Nix in Neshaminy Fed. of Teachers v. Neshaminy School District, 501 Pa. 534, 545, 462 A.2d 629, 635 (1983): "The power to regulate conduct, of course, would be illusory absent a concomitant power to enforce rules through the imposition of some form of discipline."
The procedural safeguards afforded tenured teachers are set forth in Sections 1122 through 1131 of the Code. Section 1122, supra, provides that contracts of tenured teachers may be terminated for, inter alia, immorality, cruelty and persistent and wilful violation of the school laws of this Commonwealth. When dismissal of a tenured teacher is sought on these grounds, the teacher must be afforded a hearing conducted in accordance with the procedures ...