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MICHAEL COWDERY v. BOARD EDUCATION SCHOOL DISTRICT PHILADELPHIA AND CONSTANCE CLAYTON (10/08/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 8, 1987.

MICHAEL COWDERY, PETITIONER
v.
BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA AND CONSTANCE CLAYTON, SUPERINTENDENT OF THE SCHOOL DISTRICT OF THE CITY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS

Appeal from the Order of the Secretary of Education, Commonwealth of Pennsylvania, in case of Michael Cowdery v. Board of Education of the School District of Philadelphia, No. 5-83, Teacher Tenure Appeal.

COUNSEL

Lon Edward Mamolen, with him, Benjamin F. Levy, Segal, Wolf, Berk & Gaines, for petitioner.

Patricia Donovan, with her, Andrew M. Rosen, for respondents.

President Judge Crumlish, Jr., Judge Colins (p.), and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 110 Pa. Commw. Page 165]

Michael Cowdery appeals an order of the Secretary of Education (Secretary) affirming a Philadelphia School Board decision dismissing him pursuant to Section 1122 of the Public School Code of 1949 (Code).*fn1 We reverse.

[ 110 Pa. Commw. Page 166]

Cowdery, a tenured high school teacher for the Philadelphia School District, was concurrently employed full-time by the Philadelphia Police Department. While recuperating from a hand injury sustained on police duty,*fn2 Cowdery worked a desk job for the Police Department and took six weeks of paid sick leave from the School District. Upon his return to the classroom, the School District informed him of his violation of its policy prohibiting outside employment during a period of sick leave.*fn3 Cowdery offered to return all sick-leave monies, but the offer was refused and he was dismissed.

The Secretary determined that Cowdery knew or should have known of the School District's policy and that his actions were sufficient to warrant dismissal for persistent and willful violation of school laws and immorality. Section 1122.

Our scope of review 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. 1 Pa. C.S. ยง 704; Ward v. Board of Education, 91 Pa. Commonwealth Ct. 332, 496 A.2d 1352 (1985).*fn4

[ 110 Pa. Commw. Page 167]

Cowdery contends that the record lacks substantial evidence to support the Secretary's finding that he was aware or should have been aware of the School District's policy. He alleges that the School District failed to take steps to advise its employees of the policy, which had been adopted approximately seven months before his sick-leave period. Cowdery argues that because the School District failed to establish the requisite elements of knowledge and intent, it has not sustained its burden of proving a Section 1122 violation.

The School District responds that the School Board permissibly determined questions of credibility in its favor and that it is unreasonable to require the School District to prove that Cowdery was personally aware of a publicly adopted policy.

This Court has interpreted a "willful" violation under Section 1122 as requiring the "presence of intention, and at least some power of choice." Lucciola v. Secretary of Education, 25 Pa. Commonwealth Ct. 419, 422, 360 A.2d 310, 311 (1976). While the element of willfulness or intent can often be inferred from the nature and extent of the particular violation, such intent is not to be presumed where the facts do not otherwise so indicate. See Clark v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 100, 428 A.2d 1038 (1981).

In this matter, it is apparent that the Secretary imputed the element of willfulness to Cowdery, based on three observations:

Given the fact that the policy was longstanding, that both of Appellant's employers had policies prohibiting, to some extent, outside employment, and that Appellant admittedly acted in a manner that kept his employment status a secret from both employers, we find that the Board acted reasonably in concluding that the Appellant

[ 110 Pa. Commw. Page 168]

    knew or should have known of the District's policy regarding sick leave.

Secretary's opinion, p. 6. Our review of the record reveals that the Secretary's findings and the inferences drawn therefrom are not supported by substantial evidence.

Initially, we note that the seven-month period between the adoption of the policy and Cowdery's alleged violation would, in most circumstances, be sufficient to impute knowledge to an employee. However, the record in this instance is devoid of evidence that the sick-leave policy was communicated to School District employees in a manner reasonably calculated to notify them of its existence.*fn5 Although there was testimony that other

[ 110 Pa. Commw. Page 169]

    policies had in the past been posted on bulletin boards, individually mailed or available for review in so-called "grey books" kept at each school, the School District presented no evidence that these notification procedures were followed in this instance. Inasmuch as the School District failed to sustain its burden of proof on this issue, we hold that it is unreasonable to infer that Cowdery knew or should have known of the sick-leave policy.

The School District further contends that a willful violation of sick-leave policy should be inferred from the Secretary's finding that Cowdery acted in a secretive manner. We disagree. While Cowdery testified that he did not inform either of his employers that he was working two full-time jobs, we do not believe that this was a material omission.*fn6 Cowdery was not asked to report nor told of his duty to inform the School District of his police employment. There is no evidence that he misrepresented his dual employment status. As a general rule, outside employment was not prohibited by the School District. The Secretary's attempt to infer a willful violation of the School District's sick-leave policy from Cowdery's apparent violation of Police Department policy is misplaced. In light of Cowdery's overall performance and apparent commitment to each of his

[ 110 Pa. Commw. Page 170]

    jobs,*fn7 we cannot say that the alleged willful and persistent violation of school laws is reasonably inferred from the facts of this case.*fn8

Based on our resolution of this matter, the record is remanded, and the Secretary is directed to reinstate Cowdery to his former position or a position commensurate therewith. The Secretary is also directed to determine to what extent Cowdery is entitled to backpay and interest.*fn9

Order

The order of the Secretary of Education, No. 5-83 dated May 10, 1984, is reversed. The record is remanded to the Secretary for proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

Disposition

Reversed and remanded.


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