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

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 ...


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