Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Opinion BY Judge Flaherty, Judge Smith Dissents. Judge Friedman concurs in the result only. Dissenting Opinion By: Judge Kelley.
The opinion of the court was delivered by: Flaherty
OPINION BY JUDGE FLAHERTY
Kelly Jackson (Jackson) appeals from the February 29, 1996, determination of the Indiana University of Pennsylvania (IUP) and the State System of Higher Education (SSHE) (together Respondents) which suspended her for a period of two (2) years. *fn1
Jackson was a student at IUP. On February 4, 1996, Jackson was involved in a confrontation with another student on IUP's property. As a result, Jackson was charged with violating Student Behavioral Regulations "C7a Abuse," "C9a Disorderly Conduct" and "C12 Weapons." On February 21, 1996, Jackson pleaded "in violation" to "C9a Disorderly Conduct" but "not in violation" to "C7a Abuse" or "C12 Weapons."
After consideration of the evidence before it, the Residence Hall Judicial Board (Hearing Board) found Jackson in violation of all three regulations. Specifically, the Hearing Board found that Jackson, in violating regulations C7a and C9a, "threatened the well-being of [another student] by 'getting into her face' during an argument, throwing a salt shaker at her, and entering her apartment with a knife." (February 23, 1996, Hearing Board decision, p. 1). Additionally, the Hearing Board found "that it was more likely than not that [Jackson was] 'in violation' of C12 Weapons and that [Jackson] did bring a knife into [the other student's] room for the purpose of threatening her." Id.
As a result of this hearing, Jackson was: suspended from IUP until May 31, 1997; found ineligible for IUP housing until May 31, 1998; not permitted to visit IUP owned housing until May 31, 1998; and not permitted to have any contact with the other student.
IUP's regulations provide an avenue of appeal from the Hearing Board's findings. If the Hearing Board sanctions an expulsion, the appeal is taken directly to the President of IUP. In all other instances, including the present matter, the appeals are taken to the Director of Housing and Residence Life, Betsy Joseph (Director Joseph). As such, Jackson appealed the "C12 Weapons" violation to Director Joseph, who upheld the Hearing Board's determination. Jackson now appeals to this court. *fn2
On appeal Jackson questions whether the decision of the Hearing Board failed to contain the specific evidence relied upon thus violating Jackson's due process rights and whether Respondents violated the Pennsylvania Constitution and Jackson's procedural and due process rights or committed an error of law by suspending her based on a procedure which allegedly commingled prosecutorial and adjudicatory functions. *fn3
Initially, we note that the decision of the Hearing Board did contain the specific evidence relied upon; thus, no violation of Jackson's due process rights occurred. As stated in the facts above, the Hearing Board specifically found that Jackson, in violating regulations C7a and C9a, "threatened the well-being of [another student] by 'getting into her face' during an argument, throwing a salt shaker at her, and entering her apartment with a knife." (February 23, 1996, Hearing Board decision, p. 1). Additionally, the Board found "that it was more likely than not that [Jackson was] 'in violation' of C12 Weapons and that [Jackson] did bring a knife into [the other student's] room for the purpose of threatening her." Id.
Next, we hold that Jackson failed to preserve the second issue for appeal, whether prosecutorial and adjudicatory functions were commingled, because she failed to raise the matters before the governmental agency. Under Pa. R.A.P 1551(a), entitled Review of Quasijudicial Orders, "no question shall be heard or considered by the court which was not raised before the government unit . . . ." *fn4 Commingling arguments may be waived if not raised before the administrative agency below. Dowler. Here, as in Dowler, no evidence exists of record that Jackson ever presented the due process argument relating to impermissible commingling of prosecutorial and adjudicative functions during her hearing before either the Hearing Board or in her letter/appeal to Director Joseph. Indeed, in the latter, Jackson only argued that she did not have a knife and that the witnesses who testified against her lied.
We note, however, that even if Jackson had not waived these matters on appeal her arguments would fail. We note that even a mere appearance of impropriety must be viewed with a degree of skepticism. Lyness v. State Board of Medicine, 529 Pa. 535, 605 A.2d 1204 (1992). The Lyness Court held that "what our Constitution requires . . . is that if more than one function is reposed in a single administrative entity, walls of division be constructed which eliminate the threat or appearance of bias." Id. at 546, 605 A.2d at 1209. However, the Lyness Court went on to hold that "the 'mere tangential involvement' of an adjudicator in the decision to initiate proceeding is not enough to raise the red flag of procedural due process." Id. (citation omitted).
Here, the prosecutorial and adjudicatory functions of the student judicial process were separated. The dorm residence director (Ricardo Hall) investigates the incident and makes a recommendation for a hearing. The initial adjudicative function is established in the Assistant Director - Judicial/Recruitment of Housing and Residence Life, Kate Linder. Ms. Linder recruits and chairs the ...