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COOVER v. SAUCON VALLEY SCH. DIST.

February 26, 1997

JAYNE E. COOVER, Plaintiff,
v.
SAUCON VALLEY SCHOOL DISTRICT, SUSAN BAXTER, CLAUDIA GILMAN, MICHAEL KARABIN, MICHAEL LAZAR, and ROBERT OSMUN, Defendants.



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 February 26, 1997

 I. BACKGROUND

 A. Factual History

 We have before us a defense motion for summary judgment filed on September 17, 1996. Mindful of the standards of review *fn1" we will begin with the history of this matter.

 Effective October 25, 1993, Saucon Valley Board of School Directors ("School Board") entered into an employment contract with Plaintiff Jayne E. Coover ("Coover"). Under the terms of her contract, Coover was to serve as the Superintendent of Schools (a position tantamount to chief executive officer) of the Saucon Valley School District ("School District") for a term ending July 30, 1997.

 On December 5, 1994, as part of a monthly administrative staff meeting, Plaintiff arranged for Reverend Vega-Neel, a citizen of the School District (and a former School Board member), to speak to the administrators. Some of Vega-Neel's remarks focused on citizen groups that allegedly were opposed to public education. According to Plaintiff, near the end of his presentation, Vega-Neel mentioned several School Board members by name, connecting them to the groups allegedly opposed to public education. (Pl.'s Br. at 34, Defs.' Ex. G at 170-171). Plaintiff concedes that she remained silent both during and after Vega-Neel's presentation. (Pl.'s Br. at 34).

 The School Board took no action concerning the December 5, 1994 administrative meeting during the months that followed. A letter or e-mail addressed to someone other than Plaintiff written by School District Solicitor Charles E. Steele ("Solicitor Steele") on June 11, 1995 indicated that the School Board had learned of the December 1994 meeting only a week earlier. The correspondence contained a description of some of the evidence that formed the basis for charges to be made against Plaintiff. It also noted that the School Board wanted to fire Plaintiff and that a press release was being prepared to educate the public about Plaintiff's "self dealing with her political activity." An internal memo dated June 8, 1995 from Solicitor Steele noted that "Coover is being asked to investigate another Policy 321 violation. She will have to lie to avoid implicating herself."

 A letter dated June 9, 1995 from School Board President Susan Baxter and Vice President Michael Karabin gave Plaintiff a personal, nondelegable directive to investigate a violation of Policy No. 321 associated with the distribution of political material into school mailboxes by the teacher's association. The letter directed Plaintiff not to show the memorandum to anyone and to make a complete written report by June 19, 1997 detailing (among other things) "whether any other employee of the District has violated Policy 321 by using school time or property for political purposes." Plaintiff made a written response dated June 16, 1995 which reported on the incident with the teacher's association but which did not implicate herself in a violation of Policy No. 321. At a School Board meeting held on June 19, 1995, the School Board, on the advice of Solicitor Steele, voted by 5-4 to suspend Plaintiff with pay pending further investigation of charges against her. On that date the School Board voted 5-3 to order Plaintiff to leave the executive session of the School Board over her strenuous objections. The School Board majority authorized Solicitor Steele to issue a letter he had drafted suspending Plaintiff. He gave it to her immediately following the meeting. According to Plaintiff, she attempted to explain her side of the story to Solicitor Steele at that point, but was told not to say anything. The letter ordered Plaintiff to turn in her keys and directed her not to report for work.

 The letter suspended Plaintiff with pay. It informed her that she would be suspended without pay and that formal charges would be filed against her if she did not articulate a convincing reason why they should not be filed within less than three days. Specifically, the letter stated in pertinent part:

 
You are hereby notified that pursuant to Section 1080 of the Public School Code, the Board of School Directors of the Saucon Valley School District ("District") plans to consider charges for your discipline and/or dismissal from employment as District Superintendent for neglect of duty and intemperance. These charges are based upon recently discovered allegations that you were responsible for scheduling Tom Vega-Neel as a guest speaker at a regularly scheduled administrative meeting on December 5, 1994...This meeting was held during school hours in flagrant violation of District Policy No. 321 which prohibits District employees from using school time for political purposes and further provides that discipline, including dismissal, may be imposed for such violations...At 11:00 a.m. on Thursday, June 22, 1995, you and/or your legal counsel are invited to informally respond to this letter by meeting with me at my offices in Quakertown. If you do not accept this invitation to informally respond, I will assume you have elected not to communicate your position in connection with this matter. Please notify me by the end of the business day on June 21, 1995, whether you intend to meet with me on June 22, 1995...If you do not articulate a convincing reason why charges should not be filed or resign by noon on Thursday, June 22, 1995, I will present formal charges against you to the School Board. If the School Board approves charges against you, such charges will be presented or mailed to you or your identified legal counsel in anticipation of the July 17, 1995, hearing. In the event that charges are leveled against you by the School Board, you will be suspended without pay pending disposition of the same effective June 23, 1995.

 (Defs.' Ex. F-2). Plaintiff read and understood Solicitor Steele's letter of June 19, 1995. On June 21, 1995 Plaintiff's counsel sent a letter to Solicitor Steele declining the invitation to meet with him, stating that "She is innocent of the allegations made in your letter. In light of the threatened litigation, Dr. Coover will not discuss her position except in accordance with law." Neither Plaintiff nor her counsel asked for more time before meeting with Solicitor Steele, nor did they ask for the details of the evidence against her, nor for access to her office files. Solicitor Steele's deposition stated that he would have acceded to a request for more time and that he would have shared all the evidence he had with Plaintiff during the meeting. On June 22, 1995 the School Board majority issued more extensive formal charges and suspended Plaintiff without pay effective the following day. Plaintiff did not attend this public meeting. Also, on June 22, 1995, on the recommendation of Solicitor Steele, the School Board appointed attorney Merle K. Mermelstein to be legal advisor to the School Board at Plaintiff's dismissal hearing and to preside over the hearing. This hearing commenced on July 17, 1995 and continued through subsequent sessions held on July 31, August 1, August 9, August 24, and September 19, 1995. Solicitor Steele acted as the prosecutor and all members of the School Board acted as fact-finder. At the hearing, Plaintiff was represented by counsel and testified before the School Board. She exercised her opportunity to cross examine each of the witnesses presented against her. Plaintiff submitted testimonial and documentary evidence on her own behalf, including numerous documentary exhibits.

 On September 19, 1995, at the conclusion of the hearings, and after deliberation, the School Board found by a 5 to 3 vote that Coover was "guilty" of "neglect of duty" and "intemperance." This vote was along partisan lines. After giving Coover's attorney an opportunity to make a further presentation of evidence with regard to the appropriate disciplinary action, the School Board voted to dismiss Coover from her employment. On November 6, 1995, the School Board adopted a written adjudication drafted by Solicitor Steele.

 B. Postdismissal Procedural History

 On November 21, 1995 Plaintiff appealed her dismissal to the Northampton County Court of Common Pleas, in accordance with Pennsylvania's Local Agency Law, 2 Pa. C.S. § 551 et seq. She noted that she was reserving her rights to pursue her federal claims in federal court and that any constitutional claims were made under Constitution of the Commonwealth of Pennsylvania. The School District was the only respondent in that action. On the same date, she filed this action against the School District and the School Board majority that had voted against her ("Board Members") in both their individual and official capacities (collectively "Defendants"). Jurisdiction was based on 28 U.S.C. §§ 1331 and 1343. Coover made claims under 42 U.S.C. §§ 1983, 1985, and § 1988 in four counts as follows:

 
Count I (procedural due process),
 
Count II (substantive due process),
 
Count III (First Amendment), and
 
Count IV (conspiracy).

 On March 7, 1996, we denied Defendant Board Members' motion to dismiss and permitted additional discovery. On July 10, 1996 Judge Jack Panella of the Court of Common Pleas of Northampton County found that the adjudication and action in dismissing Coover as superintendent must be set aside given the "clear and convincing evidence of an appearance of bias, if not definite bias, in certain members of the Board" and a taint in the proceedings occasioned by Solicitor Steele's actions. On September 4, 1996, Judge Panella, after conducting a de novo review of the merits in accordance with Local Agency Law, entered a decision. In addition to numerous factual findings, Judge Panella concluded as a matter of law that:

 
1. The Court has properly reviewed the record as certified from the School District, and as supplemented by Dr. Coover on May 24, 1996.
 
2. Proper notice and an opportunity to defend was provided to Dr. Coover.
 
3. The evidence presented at the hearings was insufficient to establish a "neglect of duty," therefore Dr. Coover could not be dismissed pursuant to 24 Pa. Stat. Ann. sec. 10-1080. *fn2"
 
4. The meeting held on December 5, 1994 violated School Policy No. 321 and warrants a reprimand under School Policy No. 321.
 
5. Under 42 Pa. Cons. Stat. Ann. sec. 706 and School Policy No. 321 the court has the authority to issue a reprimand to Dr. Coover under the facts of this case.
 
6. Dr. Coover's request for counsel fees, costs and expenses should be denied as having no foundation in law.

 (Defs.' Ex. L-6 at 21).

 Accordingly, on September 4, 1996 Judge Panella ordered Plaintiff reinstated as Superintendent with all back pay and fringe benefits since date of suspension and also ordered a reprimand to be entered in her personnel records. The School District appealed Judge Panella's order which operated as an automatic supersedeas, preventing Plaintiff's reinstatement and payment of wages.

 On September 17, 1996 all named Defendants filed this motion for summary judgment. Plaintiff moved for an extension of time to respond to Defendants' motion on September 23, 1996. We granted this motion on October 3, 1996. Plaintiff filed her response on November 4, 1996. On November 8, 1996 we permitted Defendants to file a reply brief. After we allowed an extension of time, Defendants' reply was filed on December 4, 1996.

 II. STANDARDS OF REVIEW

 A. Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered where:

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

 Rule 56(e) further provides that, when a properly supported motion for summary judgment is made, the adverse party "must set forth specific facts showing that there is a genuine issue for trial."

 The Supreme Court has held that:

 
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof ...

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