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McFerren v. Farrell Area School Dist.

April 8, 2010


The opinion of the court was delivered by: Judge Leavitt

Argued: October 13, 2009



Lee V. McFerren petitions for review of the Secretary of Education's adjudication that affirmed the Farrell Area School District's termination of McFerren's employment as high school principal. The Secretary concluded that McFerren, who is African-American, committed an immoral act when he used the words "the white man" in the course of a disciplinary session with a high school student who was also African-American. McFerren contends that in reaching this conclusion, the Secretary misapplied the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 -- 27-2702. McFerren also contends that the Secretary erred by disregarding, without explanation, McFerren's evidence offered in defense of the District's immorality and other charges, such as, inter alia, negligent performance and dereliction of duty. Finally, McFerren contends that the Secretary's findings of fact concerned only trivial and everyday occurrences that do not rise to a level of misconduct serious enough to justify his dismissal. Concluding that the Secretary erred with respect to his application of the Public School Code and that his findings of fact do not support the adjudication's legal conclusions, we reverse.


The Farrell Area School District is located in Sharon, Pennsylvania, and serves a low-income, predominantly African-American student population. Because of the District's poor academic performance, the Department of Education placed the District under a corrective action order. Under this order, the Department assigned representatives, called "Distinguished Educators," to the District to offer guidance. To correct the academic and disciplinary issues at the high school, the District hired McFerren as principal under a five-year contract, with a term running from July 1, 2005, to June 30, 2010. McFerren's mission was to institute disciplinary measures necessary to transform the chaotic environment at the high school into one conducive to learning; to raise academic standards; to improve academic performance on standardized tests; and to improve the performance of school employees, with the expectation that non-performing teachers and other employees would be dismissed.

At the conclusion of McFerren's first year, the School Board appointed McFerren "Assistant to the Superintendent" while he continued to serve as high school principal. In November 2006, District Superintendent Richard Rubano evaluated McFerren's job performance for the 2005-2006 academic year and gave him an excellent rating of 97.5 percent, i.e., a score of 78 points out of a possible 80. McFerren met or exceeded expectations in all but two categories.*fn1

This was the only job performance evaluation McFerren ever received.

Superintendent Rubano resigned in April of 2007, at which point the School Board appointed Carole Borkowski Acting Superintendent. When it appointed Borkowski, the Board informed her that it had decided to institute termination proceedings against McFerren and directed her to gather information to support this action. In accordance with the Board's directive, Borkowski compiled what she called "anecdotal notes" about McFerren's performance, which consisted of what she observed and what others told her. Notes of Testimony, March 17, 2008, at 319-20 (N.T. ___). She placed those notes in a confidential file in her office. It was not McFerren's personnel file, and McFerren was not given the opportunity to see what was in Borkowski's file or to respond. In June 2007, McFerren was stripped of his position as Assistant to the Superintendent.

On November 2, 2007, McFerren was called before Borkowski for a pre-termination Loudermill hearing.*fn2 A second Loudermill hearing took place on February 7, 2008, after which Borkowski suspended McFerren without pay. On March 1, 2008, the District issued formal charges against McFerren, including persistent negligence in the performance of duties; persistent and willful failure to comply with the school laws of Pennsylvania; and willful neglect of duties. At the hearing, the District amended the charges to include immorality and intemperance.

The School Board conducted hearings on these charges on five different days from March through May 2008, at which numerous witnesses testified, both on behalf of McFerren and on behalf of the District. The hearing was governed by Section 1122 of the Public School Code, which states, in relevant part, as follows:

The only valid causes for termination of a contract heretofor or hereafter entered into with a professional employe shall be immorality; incompetency; . intemperance; cruelty; persistent negligence in the performance of duties; willful neglect of duties; . conviction of a felony or acceptance of a guilty plea or nolo contendere therefor; persistent and willful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors); on the part of the professional employe..

24 P.S. §11-1122(a). By a vote of 7-2, the School Board found valid cause to terminate McFerren's employment, and it did so on July 14, 2008. McFerren appealed his termination to the Secretary of Education.

The Secretary conducted a de novo review of the School Board's record, without taking additional evidence, in accordance with Section 1131 of the Public School Code, 24 P.S. §11-1131.*fn3 Oral argument was heard on September 15, 2008. The Secretary concluded, based on factual findings largely disputed by McFerren, that in the course of his employment as high school principal, McFerren: had acted immorally; had persistently failed to comply with school laws and acted with persistent negligence; had willfully neglected his duties; and had acted with intemperance and incompetence. Accordingly, the Secretary affirmed McFerren's dismissal. A summary of the Secretary's findings on each count follows.

Secretary's Finding on Immorality

In March 2007, McFerren disciplined Janeil Savage, a high school student who had earned a double detention. Specifically, McFerren forbade Savage from participating in an extracurricular activity, namely, a performance by his stomp group at a high school basketball game. In violation of this discipline, Savage participated in the performance, for which McFerren suspended him. Savage challenged the suspension with a grievance. During a meeting with Savage and his father, McFerren explained to Savage that he might think that the school was too strict, but the real world was even more demanding. McFerren expressed this view in these words: "you know what Janeil, the white man [is] going to kick your ass." Adjudication, Finding of Fact 16. All three present at the meeting were African-American. The Secretary concluded that McFerren's remark was per se immoral because of its racial content.*fn4

Secretary's Findings on Persistent and Willful Violation of School Laws and Persistent Negligent Performance of Duties

The Secretary treated the charges of persistent negligence and persistent violation of school law as one count for purposes of his findings of fact and conclusions of law. He concluded that the District proved these charges through a series of isolated incidents. The Secretary reasoned that one incident did not prove a violation of school laws or negligence, but in the aggregate they did. The relevant incidents follow.

On March 8, 2007, Superintendent Rubano called McFerren to a meeting to discuss McFerren's dispute with the girls' basketball coach that arose after McFerren disciplined a team member. In the course of this meeting, Rubano reminded McFerren that he had not attended a recent administrative meeting, to which McFerren responded, according to the Secretary, that he could do what he wanted. Rubano rejoined that he considered McFerren's statement insubordinate.

The District employed McFerren to maintain the District's website, at an annual rate of compensation of $4,000. The Secretary found that McFerren did not update the website or keep Rubano advised of problems with the website.

In a memo to McFerren of May 29, 2007, Borkowski asked McFerren to report on the number of students to be enrolled in each class for the next school year. In this memo, Borkowski stated that she had made this request of McFerren several times previously.

In May 2007, McFerren directed Lynne Powell, a District employee, to provide him with certain grant information within the hour. When Powell did not do so, McFerren attempted to discipline her, and she filed a complaint. On June 11, 2007, Borkowski sent McFerren a letter asking him to come to her office to discuss Powell's complaint. McFerren telephoned Borkowski to discuss Powell's complaint, instead of appearing in person.

McFerren took his vacation leave in July of 2007. The Secretary found that McFerren was required to obtain Borkowski's approval for vacation leave, but he did not do so.*fn5

With the 2007-2008 school year, the high school instituted a new daily schedule of eight periods instead of seven. Borkowski was advised of the change, which had been developed over the course of a year, but the Board was not advised until September when McFerren gave it a written report on the schedule change. The schedule change resulted in 19 teachers without a class assignment for 30 minutes a day. Instead, these teachers helped monitor the lunch hour in the cafeteria.

Also in the 2007-2008 school year, the high school instituted new "integrated math and integrated reading classes" to improve the performance of students who had scored "basic" or "below basic" in standardized tests. The Secretary found that because the program affected teachers' schedules, the program should have been announced by June 30, 2007, but it was not. The Secretary also found that some students were placed into the program who did not belong there because their skills were at grade level or better. Finally, the Secretary found that the integration classes had been introduced without adequate preparation.

After McFerren's first Loudermill hearing, Borkowski sent a letter to McFerren on November 5, 2007. She directed him to advise her office whenever he left the building during the school day; the reason for leaving; and when he expected to return. McFerren admitted that he did not always follow the directive with respect to his lunches. He had been encouraged by Rubano to leave the building for lunch and was always available by cellphone.

The Secretary found that McFerren allowed teachers to leave 30 to 45 minutes early on December 21, 2007, the last day of school before Christmas vacation, and he did not advise Borkowski.

McFerren held staff meetings at the beginning of the day, setting a late start for high school students. Parents complained. The late start caused a loss of $800 on one day because an unnecessary breakfast had been prepared for students. The Board expected staff meetings to take place at the end of the day.

The collective bargaining agreement established four extended development days for professional staff. As of December 20, 2007, McFerren had not planned the days, according to the Secretary.

During an executive session of the School Board to discuss McFerren's performance, McFerren responded to a Board member's questioning by turning his back on the Board member. When ordered by other Board members to turn around, he did so.

The Secretary concluded that these incidents, when viewed collectively, if not separately, demonstrated McFerren's persistent negligence in the performance of his job duties and his persistent and willful failure to comply with school laws.

Secretary's Findings on Intemperance

The Secretary found four incidents of intemperance by McFerren.

At a March 2006 meeting to discuss grants that was attended by McFerren, Rubano and Powell, Rubano admonished McFerren for his conduct, telling him to sit down and be quiet at least three times. This incident pre-dated McFerren's excellent performance evaluation and did not result in a reprimand from Rubano.

On August 30, 2006, a meeting was called by Rubano to consider the reinstatement of an employee who had been suspended for being insubordinate to the assistant principal at the high school. McFerren, frustrated by the progress of the meeting, left before it concluded, slamming the door on his way out. Rubano issued a written reprimand to McFerren for his conduct at this ...

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