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Hertzler v. West Shore School District

Commonwealth Court of Pennsylvania

October 7, 2013

Karen Hertzler, Appellant
v.
West Shore School District

Submitted: August 16, 2013

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

MARY HANNAH LEAVITT, Judge

Karen Hertzler appeals an order of the Court of Common Pleas of Cumberland County (trial court) that upheld her three-day suspension from her position as a school principal. The West Shore School District suspended Hertzler for sharing the news with a colleague that she had been exonerated by an investigation conducted by the School District into a teacher's charge that Hertzler had harassed her. Hertzler contends that her suspension was unfounded because the School District did not have a policy that required her to keep her exoneration a secret, and it did not give her a specific directive to that effect. We agree and, therefore, reverse and remand.

Hertzler is the principal at the New Cumberland Middle School, which is in the West Shore School District. On October 17, 2011, a teacher at that school (complainant) filed a complaint with the School District accusing Hertzler of harassment. On November 10, 2011, the teacher filed a second complaint accusing Hertzler of retaliation. The School District instituted an investigation. Two months later, Jemry Small, the School District Superintendent, advised Hertzler by letter that there was "insufficient evidence" to support either of the two charges. Reproduced Record at 231a (R.R. __). The letter ended with the statement, "[t]his notification to you concludes the investigations." Id.

Shortly thereafter, Small called Hertzler into her office. She asked Hertzler if she had disclosed the outcome of her investigation to anyone outside her family. Hertzler responded that she had shared this news with one faculty member at the school. On January 17, 2012, Small suspended Hertzler for three days for not keeping her exoneration a secret. Small's letter of suspension explained as follows:

On Tuesday, January 10, 2012, you met with me to discuss a breach of confidentiality regarding the findings of a harassment complaint filed against you by a staff member at New Cumberland Middle School. During the meeting the following was discussed:
1. When asked if you shared the results, you stated that you had shared the results with one staff member. Upon hearing this, I confirmed with you that you were indeed told by the investigator, Suzanne Tabachini, that this process was indeed confidential and not to be shared.
2. I also questioned you about receiving a card from staff members who were attending a birthday celebration at New Cumberland Middle School; this card was congratulating you on being acquitted of the harassment charges. Thus confirming several staff members were aware of the findings [of] the investigation.

R.R. 235a. Small concluded that in making this disclosure, Hertzler had failed to meet expectations for professional employees set forth in the School District's Administrative Performance Plan. Those expectations include abiding by laws "governing educational and civil rights of students and others;" keeping "the highest degree of confidentiality appropriate to the position;" "competent problem analysis and resolution;" and the exercise of "prudent judgment." Id. Small also charged Hertzler with a violation of the Educator's Code of Conduct, which requires professional employees to keep confidential information that is obtained in confidence. Small's letter advised:

[Y]ou will be suspended without pay for a period of three (3) work days beginning Wednesday, January 18 through Friday, January 20, 2012.

R.R. 236a. Hertzler served the suspension, and she appealed the suspension. She was given a hearing by the School Board.

The School District's case was made principally by testimony from Small, who testified, first, about the investigation of Hertzler. She explained that Suzanne Tabachini, the School District's director of personnel, investigated the harassment complaint, and David Zuilkoski, an assistant superintendent, investigated the retaliation complaint. They each concluded that the evidence was insufficient to support the teacher's charges against Hertzler. Nevertheless, Small was left with "concerns, " which she did not specify, that prompted her to meet with Hertzler on January 4, 2012.

Sometime later, Robert Cox, an attorney, telephoned Small and informed her that Hertzler had informed a third party of her exoneration.[1] On January 10, 2012, Small confronted Hertzler with Cox's report and asked Hertzler "if she shared the results of the investigations with a member outside of her home or residence[.]" R.R. 39a. When Hertzler confirmed the report, Small decided to suspend Hertzler for violating the investigators' instruction that the "investigation process [was] to be kept confidential." R.R. ...


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