Appeal from the Orders of the Secretary of Education, in the case of Duquesne City School District and the Steelton Highspire School District v. Commonwealth of Pennsylvania, Department of Education, dated August 17, 1988.
Ira Weiss, Mistick, Sittig & Weiss, with him, Allen D. Smith, for petitioners.
Carl H. Shuman, Deputy General Counsel, with him, Mary Patricia Fullerton, Assistant Counsel, for respondent.
Christopher A. Lewis, Executive Deputy General Counsel, for amicus curiae, The Office of State Inspector General.
Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.
[ 124 Pa. Commw. Page 193]
Duquesne City School District and Steelton Highspire School District have appealed from separate but similar actions of Secretary of Education Thomas K. Gilhool, dated August 17, 1988, in which he invalidated test results, and directed retesting, with respect to specified grade levels and subjects in each of the two districts, in connection with the Testing for Essential Learning and Literacy Skills Program (TELLS) administered by the Secretary under sections 290.1 and 1511.1 of the Public School Code, 24 P.S. §§ 2-290.1, 15-1511.1,*fn1 and regulations of the Department of Education at 22 Pa. Code §§ 3.1-3.12.
[ 124 Pa. Commw. Page 194]
Both with respect to the merits of the appeal and the department's motion to quash the appeal, the threshold question in this case is whether those actions of the Secretary constituted adjudications which (1) therefore could be validly issued only pursuant to proper notice and hearing under 2 Pa. C.S. § 504, and (2) constituted final determinations subject to appeal. Mazziotti v. State Page 194} Ethics Commission, 108 Pa. Commonwealth Ct. 210, 215, 529 A.2d 594, 596 (1987).
The Secretary's actions, communicated to the school districts by letters, were not taken pursuant to any notice or hearing, nor did the letters contain findings and reasons, as 2 Pa. C.S. § 507 requires with respect to adjudications.
The Secretary's action invalidated third and fifth grade TELLS scores in reading and math in both schools, and also eighth grade scores in reading in Steelton Highspire, on the basis of administrative reports to the Secretary by the Inspector General, acting for the Governor under 4 Pa. Code §§ 1.291-1.296. Those sections, adopted by executive order, create and empower the Office of State Inspector General, within the executive office of the Governor. The purpose of the Inspector General's office, among other things, includes keeping "the heads of executive agencies and the Governor fully informed about problems and deficiencies relating to the administration of programs, operations and contracting in executive agencies." 4 Pa. C.S. § 1.292(2). The Inspector General has the duty to "[r]efer matters to the heads of executive agencies" whenever the Inspector General "determines that disciplinary or other administrative action is appropriate." 4 Pa. C.S. § 1.293(4).
In this case, the Inspector General allegedly learned that the two school districts had breached TELLS security by administering practice tests to students, in advance of actual TELLS testing, using questions from previous TELLS materials. Under 22 Pa. C.S. § 3.8, breaches of TELLS security with ...