July 13, 2012
NORTHERN CAMBRIA SCHOOL DISTRICT, APPELLANT
The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: January 6, 2012
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
Northern Cambria School District appeals an order of the Court of Common Pleas of Cambria County (trial court) reversing its decision to suspend a district elementary school teacher, Patricia Bonatesta, for immoral conduct. The trial court concluded that the School Board‟s critical factual finding that Bonatesta had operated a vehicle while intoxicated was not supported by substantial evidence, leaving no basis for any discipline. Discerning no error, we affirm the trial court.
The School District‟s disciplinary action was prompted by its understanding of an event that took place the night of March 11, 2009, when Bonatesta‟s vehicle was stopped. Her vehicle was driven by Bonatesta‟s then boyfriend, David Mikitko, who had picked her up after she completed her shift as a cook at her parents‟ restaurant and bar. At approximately 9:00 p.m., Officer Ronald Schilling of the Susquehanna Township Police stopped Bonatesta‟s vehicle because he recognized Mikitko and knew that he was not allowed to operate a vehicle that was not equipped with an ignition interlock device. After receiving back-up from Officer Jason Owens of the Northern Cambria Borough Police, Schilling searched the vehicle and found a pistol registered to Bonatesta.*fn1 Because he found marijuana and drug paraphernalia in the vehicle, Schilling charged Mikitko and Bonatesta with possession of drugs and drug paraphernalia. Mikitko was separately charged for an interlock violation. Neither was charged with driving under the influence, and the officers allowed Bonatesta to drive the vehicle away from the scene. Reproduced Record at 181a (R.R. ___).
In response to this incident, the School District suspended Bonatesta without pay. In May 2009, the School District initiated a termination proceeding against Bonatesta pursuant to Section 1122 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1122.*fn2
The School District charged Bonatesta with immorality, based on her alleged possession of drugs, drug paraphernalia and a firearm. The termination proceeding was stayed, pending the outcome of the criminal charges.
On August 19, 2009, a suppression hearing was held before the trial court‟s criminal division at which Officers Schilling and Owens testified. Schilling testified that he found marijuana and drug paraphernalia in Bonatesta‟s vehicle and that Mikitko smelled of marijuana. He acknowledged that Mikitko was not tested for driving under the influence. Because Bonatesta had been working at a bar just before the traffic stop, Schilling asked Owens to give her a portable breathalyzer test. Schilling allowed Bonatesta to drive the vehicle away from the scene after Owens assured him that Bonatesta had passed the breathalyzer test.
Owens testified and contradicted Schilling‟s testimony. Owens testified that he did not see either drugs or drug paraphernalia in Bonatesta‟s vehicle; further, he did not observe Bonatesta to violate the law in any way. Owens confirmed that he administered a portable breathalyzer test to Bonatesta, and it showed that her blood alcohol level fell within the legal limits.
As a result of the suppression hearing, the criminal drug charges against Bonatesta and Mikitko were dismissed. However, Mikitko pleaded guilty to operating a vehicle without an interlock device.
On April 22, 2010, Bonatesta was called before the School District‟s superintendent and human resources director for a pre-termination Loudermill hearing.*fn3 At the time, Bonatesta had been teaching elementary school for 17 years and had never received a negative evaluation. The hearing was recorded.
Bonatesta explained that Mikitko picked her up in her vehicle at 9:00 p.m. on March 11, 2009, after she completed her shift at her parents‟ restaurant. Mikitko "seemed all right" to Bonatesta, and it did not appear to her that Mikitko was under the influence of drugs or alcohol. R.R. 199a, 201a. Bonatesta stated that she had not been drinking that evening. However, after reflection, she stated that she may have had one drink.*fn4 Bonatesta denied being intoxicated and pointed out that she had passed the breathalyzer test and was allowed to drive her vehicle home. Bonatesta acknowledged that she had a gun in the car, for which she has a permit. She had placed it in her car because she and Mikitko were planning to go camping and wanted to have the gun with them for protection. Bonatesta explained that she never drove to school with the gun in the car.
Following the Loudermill hearing, the School District issued amended termination charges, which alleged that: Bonatesta had allowed Mikitko to drive her car while he was intoxicated; Bonatesta was so intoxicated that she could not safely operate the vehicle; and Bonatesta had made a false statement at the Loudermill hearing by claiming that she had imbibed no more than one drink on March 11, 2009. Based on the amended charges, the School District sought Bonatesta‟s termination.
On June 10, 2010, the School Board conducted a hearing on these charges.*fn5 Bonatesta appeared and briefly testified. Bonatesta clarified that she could not be sure whether she had one drink or two drinks after finishing her shift on March 11, 2009, but it was definitely no more than two drinks. Bonatesta testified that "I definitely was not intoxicated when I left work that night." R.R. 56a. Bonatesta reiterated that she had no reason to believe Mikitko was under the influence when she got in the car with him or during the short time they were driving before being pulled over. Bonatesta explained that Mikitko had brought his children to the restaurant for pizza earlier that evening, where she had seen him drinking only soda. Because Mikitko had his children that evening, she did not believe he would be under the influence of anything.
Officer Owens appeared and testified at the School Board hearing. He explained that Schilling had contacted the Northern Cambria Borough Police when he spotted Mikitko in Northern Cambria Borough in a vehicle without an interlock device. Because Schilling did not respond to the Northern Cambria‟s dispatcher‟s calls to him, Owens was sent to the scene. Owens testified that he believed Mikitko was intoxicated because he was having "trouble standing on his own."
R.R. 60a. Owens testified that he believed Bonatesta was also intoxicated.
Specifically, he testified as follows:
School District's counsel: And based on [the breathalyzer] test and [your] observation of Miss Bonatesta, did you conclude whether or not she was intoxicated at the time?
Officer Owens: Yeah, she shouldn‟t have been driving. School District's counsel: So, you say she was intoxicated? Officer Owens: Yeah.
R.R. 62a. Owens explained that because he was outside his jurisdiction and merely providing back-up, he could not prevent Bonatesta from driving away, even though driving under the influence is a violation of the law.*fn6 According to Owens, it was strictly "Officer Schilling‟s call" to allow Bonatesta to drive away from the scene. R.R. 66a.
On cross-examination, Owens admitted that he had testified under oath at the suppression hearing that Bonatesta (1) had passed the breathalyzer test,
(2) was fine to drive, and (3) was not seen to violate the law in any way. Owens also admitted that he did not do any field sobriety tests on Bonatesta, such as the horizontal gaze nystagmus test or having her recite the alphabet. Owens acknowledged that his police report about the incident did not record that Bonatesta was intoxicated and should not have been allowed to drive that evening.
Owens testified that Bonatesta‟s breathalyzer showed a .04 blood alcohol level, which is half Pennsylvania‟s legal limit of .08.*fn7 Owens also acknowledged that he had been instructed by his superiors to document all interactions involving Officer Schilling because there had been numerous complaints about Schilling watching bars outside his jurisdiction, planting evidence and attempting to set people up.
In addition to this testimony, the School District submitted the transcript of the suppression hearing into evidence. The School District also submitted Owens‟ police report into evidence. Officer Schilling did not make a police report and did not testify before the School Board.
The School Board credited Owens‟ testimony that Mikitko was so intoxicated that he could not stand up without assistance and that Bonatesta was intoxicated and should not have been permitted to drive. The School Board further found that because Bonatesta was intoxicated, she had lied at her Loudermill hearing where she stated she had at most one alcoholic drink prior to the traffic stop. Based on these findings, the School Board determined that Bonatesta engaged in immoral behavior, which offended the morals of the community and served as a bad example to her students. The School Board cited four instances of immorality:
(a)[Bonatesta] knowingly occupied a motor vehicle operated by a driver (Mikitko) who was intoxicated to the point that he had difficulty standing without assistance;
(b)she was visibly intoxicated during the traffic stop according to the credible testimony of Officer Jason Owens;
(c)while intoxicated, she and an intoxicated driver traveled through the community with a gun in the vehicle which, according to her testimony, she did not intend to use until several days later during a camping trip; and
(d)she was not truthful during her Loudermill interview regarding her alcohol consumption or intoxication during the traffic stop on March 11, 2009.
Adjudication, Finding of Fact
¶20(a)-(d). Any one of the above-listed incidents, standing alone, would justify a termination. However, the School Board unanimously voted to suspend Bonatesta without pay until August 25, 2010, and not to terminate her employment.
Bonatesta appealed, and the trial court reversed. It concluded that the School Board‟s decision was arbitrary and capricious because it was not founded upon substantial evidence. Specifically, the factual findings that Bonatesta and Mikitko had been intoxicated and that Bonatesta had been untruthful about her alcohol consumption were based solely on Owens‟ testimony at the School Board hearing, which was contradicted by Owens‟ own testimony at the 2009 suppression hearing. The finding was also contradicted by all other evidence, which the Board had willfully and deliberately disregarded. The trial court concluded that no reasonable person would accept Owens‟ testimony, i.e., "yeah," as adequate to support a finding that Bonatesta was intoxicated where her breathalyzer test result of .042 was consistent with a 120-pound female consuming one drink. The test confirmed that Bonatesta was not intoxicated. The trial court reasoned that Owens‟ testimony at the suppression hearing, which was given close in time to the incident, was more reliable than his revised version given at the School Board hearing. The latter was "likely flawed by poor memory." Trial Court Opinion at 7. The trial court found Owens‟ testimony that he, a sworn law enforcement officer, would allow an intoxicated person to drive away was "completely incredible." Id. Finally, the trial court found there was absolutely no evidence in the record that Bonatesta knew she was entering a vehicle operated by an intoxicated driver or that Mikitko was actually intoxicated. Id.
The trial court concluded that because the Board‟s findings of fact were not supported by substantial evidence, there was no basis for concluding that Bonatesta had engaged in immoral behavior. The trial court also concluded that it was not immoral for Bonatesta to have a gun in her vehicle because gun ownership is widely accepted in Cambria County. The trial court ordered the School District to pay Bonatesta back pay for the period of her suspension.
The School District appealed to this Court.*fn8 On appeal,*fn9 the School District raises two main issues for our consideration. First, the School District argues that the trial court erred in concluding that the School Board‟s factual findings were not supported by substantial evidence. Second, the School District argues that the trial court erred by holding that the School District was required to prove immorality in order to suspend Bonatesta.
We begin with a review of Section 1122(a) of the School Code, 24 P.S. §11-1122(a), under which Bonatesta was charged.*fn10 Section 1122(a) names immorality as one of the valid causes for terminating a teacher under contract. The School Code does not define immorality, but Pennsylvania courts have defined immorality "as conduct that "offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate.‟" McFerren v. Farrell Area School District, 993 A.2d 344, 353 (Pa. Cmwlth. 2010) (quoting Horosko v. School District of Mt. Pleasant Township, 335 Pa. 369, 372, 6 A.2d 866, 868 (1939)). To establish immorality, the school district must prove three elements: (1) that the alleged immoral act actually occurred; (2) that the act offends the morals of the community; and (3) that the act sets a bad example for students. McFerren, 993 A.2d at 353-54 (citing Kinniry v. Abington School District, 673 A.2d 429, 432 (Pa. Cmwlth. 1996)) (emphasis added).
The School Board based its charges of immorality on four specific factual findings: Bonatesta‟s intoxication the evening of March 11, 2009; allowing Mikitko, who was intoxicated, to drive her car; keeping a gun in her car while it was operated by intoxicated drivers; and lying at her Loudermill hearing that she was not intoxicated on the evening in question. Adjudication, Finding of Fact ¶20(a)-(d). The School Board‟s suspension for immoral conduct hinges on these factual findings.
Findings of fact must be supported by substantial evidence. Monaghan v. Board of School Directors, 618 A.2d 1239, 1244 (Pa. Cmwlth. 1992). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988) (emphasis added). When performing a substantial evidence analysis, the court must view the evidence in the light most favorable to the party that prevailed before the fact finder. Agostino v. Township of Collier, 968 A.2d 258, 269 (Pa. Cmwlth. 2009). It is for the school board, not the court, to assess the credibility of the witnesses. Hickey v. Board of School Directors of Penn Manor School District, 328 A.2d 549, 551 (Pa. Cmwlth. 1974). However, a court will "overturn a credibility determination if it is arbitrary and capricious or so fundamentally dependent on a misapprehension of material facts, or so otherwise flawed, as to render it irrational." Agostino, 968 A.2d at 263-64. "A capricious disregard of evidence exists only "when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result.‟" Agostino, 968 A.2d at 264 (quoting Station Square Gaming L.P. v. Pennsylvania Gaming Control Board, 592 Pa. 664, 673, 927 A.2d 232, 237 (2007)).
The School District argues that Owens‟ testimony at the School Board hearing constitutes substantial evidence to support all its critical findings. The School District contends that the School Board did not ignore evidence that favored Bonatesta; rather, it decided that Owens‟ School Board hearing testimony was more reliable than that other evidence. Further, the School Board witnessed Owens‟ live testimony, and reviewing courts may not substitute their own credibility determinations for that of the factfinder. Finally, the School Board argues that Bonatesta‟s breathalyzer test results cannot be used to contradict Owens‟ testimony because breathalyzer test results are not admissible in court. Bonatesta responds that to reverse the trial court would require this Court to ignore the overwhelming and documentary evidence that neither Bonatesta nor Mikitko was intoxicated on the evening in question.
The sole evidence that Bonatesta was intoxicated on the night of March 11, 2009, was Owens‟ testimony at the School Board hearing. The complete sum and substance of that testimony was his statement that "she shouldn‟t have been driving" and a reply of "yeah" in response to a leading question from counsel for the School District. R.R. 62a. Owens did not describe anything in Bonatesta‟s conduct or appearance to support his "yeah" she was intoxicated, even though he had been close enough to Bonatesta to administer a breathalyzer test. Owens admitted that he did not do any field sobriety tests, and Owens did not mention Bonatesta‟s purported intoxication in his police report.
Bonatesta was given a breathalyzer test and allowed to drive her vehicle home. The School District is correct that preliminary breathalyzer test results are not admissible in a criminal trial to prove that an individual was driving under the influence. Commonwealth v. Stanley, 629 A.2d 940, 941-42 (Pa. Super. 1993). However, that does not mean that the results are irrelevant in all civil proceedings. See, e.g., Schindler v. Department of Transportation, Bureau of Driver Licensing, 976 A.2d 601, 605-06 (Pa. Cmwlth.), appeal denied, 603 Pa. 706, 983 A.2d 1250 (2009) (preliminary breathalyzer test results were admitted for the purpose of determining whether officer had reasonable grounds to believe licensee was intoxicated). The trial court did not err in relying upon the breathalyzer test, as one among several items of evidence that undermined the reliability of Owens‟ testimony at the School Board hearing.
Further, Owens‟ hearing testimony that Bonatesta was intoxicated was contradicted by his own prior testimony under oath in a court of law at the suppression hearing. There, Owens had testified that he did not see Bonatesta violate the law in any way; that Bonatesta‟s breathalyzer test showed that she was fit to drive; and that he and Schilling allowed Bonatesta to drive away from the scene. Owens completely contradicted his own account of what happened on the night of March 11, 2009, and offered no explanation for his about face.
Further, as aptly observed by the trial court, Owens‟ conduct on the
night of March 11, 2009, undermines his testimony before the School
Board that Bonatesta was intoxicated. It means that while on duty, he
stood by and allowed Bonatesta to take control of her vehicle in an
intoxicated state, risking her life, her passenger‟s life and the
lives of innocent third parties. Further, Owens was not correct that
he lacked authority to act in another jurisdiction to prevent or
respond to criminal acts outside his own township.*fn11
Owens advised Schilling that Bonatesta was able to drive from
the scene because she was not intoxicated.
Owens‟ single word, "yeah," in response to a question from the School District‟s counsel, forms the entire basis for the Board‟s finding that Bonatesta was intoxicated on the evening of March 11, 2009. Against that vague and unexplained conclusory remark, an avalanche of other evidence showed that Bonatesta was not intoxicated. This other evidence consists of Owens‟ own testimony given under oath five months after the incident; Owens‟ own written report of the incident; and Owens‟ conduct on the night in question. Owens‟ testimony at the School Board hearing is not evidence that a reasonable mind would accept as adequate to support a finding of fact. The School Board willfully, and capriciously, disregarded all other conflicting evidence, including that provided by Owens himself.
We affirm the trial court‟s conclusion that Owens‟ opinion testimony, abbreviated and unexplained, is not substantial evidence that can support a finding that Bonatesta was intoxicated on the evening of March 11, 2009. The School Board‟s credibility determination was arbitrary, capricious and so flawed as to render it irrational. Agostino, 968 A.2d at 263-64. This is the rare instance where a credibility finding may be set aside on judicial review. Id.
The Board‟s finding that Bonatesta acted immorally by allowing her vehicle to be driven by an intoxicated driver is likewise not supported by substantial evidence.*fn12 This finding was based on Owens‟ testimony at the hearing that Mikitko had trouble standing on his own. Mikitko was not charged with DUI, and he was not tested at the scene to see if he was intoxicated. Further, the School District presented no evidence that Bonatesta believed Mikitko was intoxicated. To the contrary, it was her uncontradicted testimony that she believed he was not intoxicated.
This leaves the Board‟s holding that Bonatesta acted immorally by having her gun in a car while she and Mikitko were intoxicated. The School District agrees that Bonatesta‟s gun ownership was lawful, but it faulted her for placing her gun in the presence of two intoxicated individuals. Because there is no substantial evidence that either Bonatesta or Mikitko was intoxicated, the Board‟s conclusion lacks a factual foundation.
Finally, the Board found that Bonatesta was untruthful during her Loudermill hearing about her intoxication on March 11, 2009. Again, in the absence of substantial evidence of intoxication, it does not follow that Bonatesta was untruthful when she denied being intoxicated on that evening. Bonatesta expressed some doubt about what she had to drink that evening because of the passage of time. However, she acknowledged that she may have had one drink.*fn13
Before the School Board, she clarified that she had at most two drinks. She testified unwaveringly and with absolute certainty at both hearings, however, that she was not intoxicated. This was supported by all evidence, including Owens‟ sworn testimony at the suppression hearing until he inexplicably changed his testimony before the School Board. There is no substantial evidence that Bonatesta lied at her Loudermill hearing.
In sum, there is no substantial evidence to support the Board‟s finding that Bonatesta was intoxicated on the evening in question. Accordingly, there is no factual foundation to the Board‟s conclusion that Bonatesta committed immoral conduct. The trial court correctly reversed the District‟s suspension and awarded back pay to Bonatesta.
The School District argues, however, that it was not required to prove immorality under the School Code because that applies to a firing and Bonatesta was only suspended. Under Battaglia v. Lakeland School District, 677 A.2d 1294, 1299 (Pa. Cmwlth. 1996), the School District argues that it has inherent managerial authority to suspend or demote a teacher. Further, courts may not revisit the soundness of a managerial decision unless it is arbitrary, capricious or discriminatory. The School District‟s argument misses the mark. The discipline in this case was based upon findings of fact that are not supported by substantial evidence. The Board lacked any basis for discipline, even a suspension.*fn14
For these reasons, the order of the trial court is affirmed.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Patricia Bonatesta : v. Northern Cambria School District, : Appellant :
No. 827 C.D. 2011
AND NOW, this 13th day of July, 2012, the order of the Court of Common Pleas of Cambria County dated April 5, 2011, in the above captioned matter is hereby AFFIRMED.
MARY HANNAH LEAVITT, Judge