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ERIC WARD v. BOARD EDUCATION SCHOOL DISTRICT PHILADELPHIA (08/22/85)

decided: August 22, 1985.

ERIC WARD, PETITIONER
v.
BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA, RESPONDENT



Appeal from the Order of the Secretary of Education of the Commonwealth of Pennsylvania, in case of Eric Ward v. The Board of Education of The School District of Philadelphia, Teacher Tenure Appeal No. 14-82.

COUNSEL

Gilbert E. Toll, Ominsky, Joseph & Welsh, P.C., for petitioner.

Vincent J. Salandria, for respondent.

Judges Doyle and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 91 Pa. Commw. Page 333]

This is an appeal by Eric Ward who petitions for review of an order of the Secretary of Education (Secretary) which sustained the decision of the Board of Education of the School District of Philadelphia (Board) which dismissed him as a professional employee effective June 30, 1981. We affirm.

[ 91 Pa. Commw. Page 334]

Ward was a tenured professional employee with the Philadelphia School District with twenty-one years of service. He had been employed with the District in various capacities since 1958. He was dismissed by the Board effective June 30, 1981, following two hearings on two charges. The first charge was that he had exceeded sick leave under the school district's policy, in that he had consumed one year of sick leave to which he was entitled and, after returning to duty, exceeded the ten additional days of sick leave to which he was entitled upon his return to duty. The second charge was that he had used improper force in throwing a student out of his classroom and that he was intoxicated at the time of the incident. Following two hearings, the Board held a meeting at which it voted six to three to dismiss Ward. After the vote was taken and recorded, one of the Board members desired to change his vote from dismissal to retention. A motion to reopen the vote on Ward's dismissal was made and defeated. Ward appealed his dismissal to the Secretary who affirmed the Board's decision on May 8, 1984. The Secretary upheld his dismissal solely upon the charge that he abused his sick leave. The second charge of improper force and intoxication was not reached by the Secretary. Ward then appealed the Secretary's order to this Court.

In this appeal, Ward contends that (1) the Secretary's findings are not supported by substantial evidence; (2) the Secretary erred as a matter of law when he held that his conduct constituted persistent negligence and willful and persistent violation of the Public School Code of 1949 (School Code);*fn1 and (3) the order entered by the Board dismissing him was defective in that a Board member who originally voted

[ 91 Pa. Commw. Page 335]

    for dismissal was not permitted to change his vote to retention. We shall address these issues seriatim. Of course, we are cognizant that our scope of review of the Secretary's order which affirmed a school district's dismissal of a tenured teacher is limited to determining whether an error of law was committed, constitutional rights were violated, or necessary findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. ยง 704; McCoy v. Lincoln Intermediate Unit No. 12, 38 Pa. Commonwealth Ct. 29, 391 A.2d 1119 (1978), cert. denied, 441 U.S. 923 (1979).

We shall first examine Ward's contention that the Secretary's findings of fact necessary to support his dismissal are not ...


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