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Hetherington v. Rogers

September 27, 2010

BURTON HETHERINGTON, JULIAN MILEWSKI, DAVID ZIENKIEWICZ, CYNTHIA ZIENKIEWICZ, JASON MILEWSKI, PEGGY FORGOTCH, JOSEPH CLEWS, KELLY MORAN, DAVID SERESKY, GRACE GLOWACKI, CHARLES HAMPTON, ANNA MARIE HAMPTON, JOHN ANCSARSKI, JOSEPH CLEWS, RAYMOND SMITH, CYNTHIA SMITH, DAVID HAMPTON, LYNN LENTES, DEBRA HAMPTON, JOHN UROSKIE, DAVID BANNING, ROBERT WISE, BARBRA WISE, DALE KIMMEL, LENA KIMMEL, JOHN RUMBEL, MICHELLE RUMBEL, CATHY SHOUP, ROGER SHOUP, RAYMOND MISHLANIE, CAROL MISHLANIE, DEBRA GROW, ROBERT O. ORORCO, ALBERT BREZNIK, JR., LEON TRUSKY, HALEY DUNLAP, MARY ANCZARSKI, LEON LOWANDOWSKI, NANCY STAUFFER, DAVID BRIGGS, EDWARD GLEMBOCKIE, MARGRET HUNSINGER, JAMES AMBROSE, SUSAN BRIEL, EILEEN TEETER, DENNIS TEETER, MARY MILOSH, MELISSA MCGRUFFIE, BOBBIE JO EDMONSON, EDWARD SANCHEZ, JOSEPH E. FAUST, JR.
v.
WILLIAM ROGERS, PRESIDENT, NSSB, JANE RAPANT, VICE PRESIDENT, NSSB, CHRISTINE HEYER, TREASURER, NSSB, ROBERT WETZEL, FORMER PRESIDENT, NSSB, PHIL RAPANT, ROBERT ORTH, JOHN MOTSNEY, EDWARD BALKIEWICZ, JOHN MISIEWICZ, AND ATTORNEY MARK SEMANCHIK
APPEAL OF: JOHN MISIEWICZ
BURTON HETHERINGTON, JULIAN MILEWSKI, DAVID ZIENKIEWICZ, CYNTHIA ZIENKIEWICZ, JASON MILEWSKI, PEGGY FORGOTCH, JOSEPH CLEWS, KELLY MORAN, DAVID SERESKY, GRACE GLOWACKI, CHARLES HAMPTON, ANNA MAE HAMPTON, JOHN ANCZARSKI, JOSEPH CLEWS, RAYMOND SMITH, CYNTHIA SMITH, DAVID HAMPTON, LYNN LENTES, DEBRA HAMPTON, JOHN UROSKIE, DAVID BANNING, ROBERT WISE, BARBARA WISE, DALE KIMMEL, LENA KIMMEL, JOHN RUMBEL, MICHELLE RUMBEL, CATHY SHOUP, ROGER SHOUP, RAYMOND MISHLANIE, CAROL MISHLANIE, DEBRA GROW, ROBERT O. ORORCO, ALBERT BREZNIK, JR., LEON TRUSKY, HALEY DUNLAP, MARY ANCZARSKI, PENNY BROUSE, ROBERT WOLLYUNG, LEON LOWANDOWSKI, NANCY STAUFFER, DAVID BRIGGS, EDWARD GLEMBOCKIE, MARGRET HUNSINGER, JAMES AMBROSE, SUSAN BRIEL, EILEEN TEETER, DENNIS TEETER, MARY MILOSH, MELISSA MCGRUFFIE, BOBBIE JO EDMONSON, EDWARD SANCHEZ, AND JOSEPH E. FAUST, JR.
v.
WILLIAM ROGERS, JANE RAPANT, CHRISTINE HEYER, ROBERT WETZEL, PHIL RAPANT, ROBERT ORTH, EDWARD BALKIEWICZ, JOHN MOTSNEY, JOHN MISIEWICZ, AND MARK SEMANCHIK, ESQ.
APPEAL OF: WILLIAM ROGERS, JANE RAPANT, CHRISTINE HEYER, ROBERT WETZEL, PHIL RAPANT, EDWARD BALKIEWICZ, JOHN MOTSNEY, AND MARK SEMANCHIK, ESQ.
BURTON HETHERINGTON, JULIAN MILEWSKI, DAVID ZIENKIEWICZ, CYNTHIA ZIENKIEWICZ, JASON MILEWSKI, PEGGY FORGOTCH, JOSEPH CLEWS, KELLY MORAN, DAVID SERESKY, GRACE GLOWACKI, CHARLES HAMPTON, ANNA MAE HAMPTON, JOHN ANCSARSKI, JOSEPH CLEWS, RAYMOND SMITH, CYNTHIA SMITH, DAVID HAMPTON, LYNN LENTES, DEBRA HAMPTON, JOHN UROSKIE, DAVID BANNING, ROBERT WISE, BARBRA WISE, DALE KIMMEL, LENA KIMMEL, JOHN RUMBEL, MICHELLE RUMBEL, CATHY SHOUP, ROGER SHOUP, RAYMOND MISHLANIE, CAROL MISHLANIE, DEBRA GROW, ROBERT O. ORORCO, ALBERT BREZNIK, JR., LEON TRUSKY, HALEY DUNLAP, MARY ANCZARSKI, PENNY BROUSE, ROBERT WOLLYUNG, LEON LOWANDOWSKI, NANCY STAUFFER, DAVID BRIGGS, EDWARD GLEMBOCKIE, MARGRET HUNSINGER, JAMES AMBROSE, SUSAN BRIEL, EILEEN TEETER, DENNIS TEETER, MARY MILOSH, RUTH MILOSH, MELISSA MCGRUFFIE, BOBBIE JO EDMONSON, EDWARD SANCHEZ, JOSEPH E. FAUST, JR.
v.
WILLIAM ROGERS, JANE RAPANT, CHRISTINE HEYER, ROBERT WETZEL, PHIL RAPANT, ROBERT ORTH, JOHN MOTSNEY, EDWARD BALKIEWICZ, JOHN MISIEWICZ, AND ATTORNEY MARK SEMANCHIK
APPEAL OF: WILLIAM ROGERS, JANE RAPANT, CHRISTINE HEYER, ROBERT WETZEL, PHIL RAPANT, JOHN MOTSNEY, EDWARD BALKIEWICZ AND ATTORNEY MARK SEMANCHIK



The opinion of the court was delivered by: Senior Judge Friedman

Argued: March 15, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

John Misiewicz, William Rogers, Jane Rapant, Christine Heyer, Robert Wetzel, Phil Rapant, Edward Balkiewicz, John Motsney and Mark Semanchik, Esq., (together, Ex-Directors) appeal from: (1) the June 23, 2009, order of the Court of Common Pleas of Schuylkill County (trial court), which granted a petition to remove the Ex-Directors from their positions on the North Schuylkill School District (School District) School Board pursuant to section 318 of the Public School Code of 1949 (Code);*fn1 and (2) the trial court's June 25, 2009, order, which amended the June 23, 2009, order by appointing four individuals*fn2 to replace four of the Ex-Directors on the School Board.*fn3 We affirm.

On April 19, 2007, Dr. Robert Franklin, School District Superintendent, submitted his resignation, effective June 29, 2007, to the School Board. At a meeting on May 30, 2007, the School Board appointed Dr. Gerald Nesvold as Acting Superintendent.*fn4 From June 15, 2007, through June 17, 2007, the School District advertised for applicants for the position of Superintendent, requiring candidates to have an earned doctorate with extensive knowledge and experience in labor relations and school law.

The School Board received eight applications during the period from June 25, 2007, to September 18, 2007. Among the applicants were Dr. Regina Palubinsky, Dr. Michael Baird, Dr. Donald Golden and Dr. Sandra Reed. All were certified to hold the position of Superintendent, and all but Dr. Palubinsky had received their doctorates. Dr. Palubinsky had completed requirements for a doctorate and was merely awaiting formal issuance of the degree. All had more than six years teaching experience, more than three years supervisory or administrative experience and had completed graduate programs in education that included leadership standards required by statute.*fn5 The School Board never contacted any of the applicants.

Instead, at a meeting on June 27, 2007, the School Board approved the submission of a Mandate Waiver Application to the Pennsylvania Department of Education (Department), requesting that the Department waive the Superintendent eligibility requirements and allow the School Board to name its Solicitor, Mark Semanchik, as the School District's Superintendent.*fn6

Specifically, the School Board sought waivers from the eligibility requirements set forth in sections 1003(2), (3) and (4) of the Code and in 22 Pa. Code §§49.172(a)(1) and (3).*fn7 (Appellee's R.R., Item 13.)

By letter dated September 6, 2007, the Department denied the Waiver Application, stating that it is the Department's policy to waive the eligibility requirements for superintendents only where: (1) the school district is designated as an Empowerment District or Distressed District; or (2) the school district provides documentation that the individual to be appointed has completed training in lieu of certification of eligibility. (Appellee's R.R., Item 14.)

On September 20, 2007, without contacting the applicants for the vacant Superintendent position to determine whether it was impossible or impracticable to immediately fill the vacancy with one of the qualified persons, the School Board appointed Semanchik as Acting Assistant Superintendent, effective October 1, 2007, for the balance of the school year at a salary of $82,500 and benefits.*fn8 After October 1, 2007, Acting Superintendent Nesvold only came to his office one day each week.

Semanchik ran the School District. Although the School Board passed no resolution and took no public vote on the matter, at some point, the School Board agreed to pay for Semanchik to acquire a graduate degree in education.*fn9

Although the graduate degree requirement could not be waived absent appropriate training, at a meeting on February 21, 2008, the School Board approved an Amended Mandate Waiver Application, seeking a waiver of that requirement and others. The School Board stated that Semanchik "assumed full responsibility for the operation of the [School District] as the Acting Assistant Superintendent as of October 1, 2007.." (Appellee's R.R., Item 17.) The School Board promised that Semanchik would report his progress in fulfilling the eligibility requirements and that Semanchik would complete a graduate degree and Letter of Eligibility Program within two years. Id. The application contained an Affirmation stating that the School Board's Solicitor, i.e., Semanchik, reviewed the application and determined that the requested waivers would not violate any state law.*fn10 Id.

By letter dated April 24, 2008, the Department denied the School Board's Amended Mandate Waiver Application, stating:

As the Department indicated in its prior letter to the district, Mark Semanchik, the superintendent candidate at issue in the waiver application, has not completed a Letter of Eligibility program approved by the Department. We also note that Mr. Semanchik is not a full-time school administrator or employee. Because Mr. Semanchik has not completed an approved program and does not have relevant experience as a school administrator, a waiver is not appropriate at this time.

(Appellee's R.R., Item 18) (bolding added) (italics in original).

Although the School Board failed to obtain a waiver for Semanchik through its patently meritless Waiver Application, at a meeting on May 15, 2008, the School Board approved the appointment of Semanchik as Acting Superintendent, effective July 1, 2008, for the following school year at a salary of $110,000 and benefits. Prior to doing so, the School Board did not contact any of the applicants for the Superintendent position to determine whether it was impossible or impracticable to immediately fill the Superintendent vacancy with a qualified person.

On April 29, 2009, the School Board approved a third Mandate Waiver Application. The School Board stated that Semanchik had successfully completed the requirements for a graduate degree in education and the requirements for a letter of eligibility for appointment as a district superintendent.*fn11 The School Board sought a waiver from section 1003(2) of the Code and 22 Pa. Code §49.172(a)(3), which require six years of teaching, including three years in supervisory or administrative positions. The School Board pointed out that Semanchik now had experience as an Acting Assistant Superintendent and Acting Superintendent. (Appellee's R.R., Item 20.)

A petition for removal of the Ex-Directors was filed with the trial court pursuant to section 318 of the Code. The trial court concluded that the Ex-Directors failed to elect a properly qualified Superintendent, a mandatory duty under section 1071(a) of the Code. The trial court stated:

Two years have passed since the [School District] has had a qualified superintendent and, during that time period, the School Board has been engaged in a conflicted journey in an attempt to seat an as-yet unqualified individual lacking teaching experience and supervisory educational experience into the educational leadership position of that school district. The acting superintendent/solicitor is in a conflicted position of providing legal advice to the School Board, he being a non-voting member of that Board, in a matter in which he has a direct pecuniary interest. Attorney Semanchik has placed himself in a position where he is giving himself and voting members of the School Board advice in a matter involving his own personal interests.

(Trial ct. op. at 3) (emphasis added).

Today, more than two years after being informed that Dr. Franklin was resigning as District Superintendent, the North Schuylkill School Board remains without a qualified school superintendent because of the [School Board's] failure to comply with the mandate of Section 10-1071 of the School Code. Rather than doing so, the evidence presented to this Court demonstrated a conflicted relationship between the then-Solicitor, who was seeking to ascend to the position of superintendent, and the Board, in an attempt to ultimately seat Mr. Semanchik as Superintendent. The efforts of the school board to seat a qualified superintendent were nonexistent....

[T]he Board, in concert with the school Solicitor, embarked upon a course of action to avoid appointment of a qualified superintendent and to elevate the Solicitor to that position. Although the Board did author an advertisement for a superintendent during June of 2007, that action in terms of seeking a properly qualified superintendent was a nullity. To begin, the advertisement itself was structured to meet the personal background of Attorney Semanchik.. Thus, the advertising for a superintendent at the earliest moments of the vacancy was illusory as it was written not to attract a properly educated and qualified educator, but rather the unqualified board solicitor.

(Trial ct. op. at 15-17) (emphasis added). As for the Waiver Applications, the trial court stated:

The application[s] for mandate waivers by the school board further demonstrate the conflicted relationship between the Board and their solicitor/acting assistant superintendent/ acting superintendent. The first application . was actually presented to the Department . through the law office of Attorney Semanchik.. Each application affirmed that the school board's solicitor had reviewed the application and determined that the waiver did not violate any court order or state or federal law[,] the same solicitor who was seeking the very waiver to become the school superintendent. At the very least, an appearance of impropriety existed with regard to that process.

The [School Board Members] have yet to comply with their mandatory duty under section 10-1071, leaving this Court with no ...


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