Argued June 20, 2014.
[Copyrighted Material Omitted]
Appealed from No. CAB 2012-01. State Agency: Charter School Appeal Board.
James E. Ellison and Stepen Moniak, Harrisburg, for designated petitioner Coatesville Area School District.
Brian H. Leinhauser, Malvern, and Scot R. Withers, West Chester, for respondent Graystone Academy Charter School.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.
ANNE E. COVEY, Judge
Graystone Academy Charter School (Charter School) petitions this Court for review of the State Charter School Appeal Board's (CAB) August 2, 2013 order affirming the Coatesville Area School District's (District) Board of Directors' (Board) decision to revoke the Charter School's charter. The District cross-petitions this Court for review of CAB's June 18, 2012 order dismissing its motion to quash the Charter School's appeal to CAB as untimely. There are nine issues before the Court: (1) whether CAB committed an error of law in dismissing the District's motion to quash; (2) whether William Harner (Harner), the Secretary of Education (Secretary) nominee, had the authority to call to order, preside over and/or participate in the CAB meeting during which CAB voted to revoke the Charter School's charter and to execute an order memorializing CAB's decision; (3) whether the District is estopped from challenging the Charter School's changes to the Charter School's education program; (4) whether CAB and the District erred when they determined that the Charter School's charter includes by incorporation the Charter School application (Charter Application); (5) whether CAB and the District erred when they determined that the Charter School materially deviated from its charter; (6) whether CAB and the District erred when they determined that the Charter School failed to meet the student performance requirements; (7) whether the Charter School suffered disparate treatment; (8) whether CAB and the District erred when they determined that the Charter School failed to meet generally-accepted standards of fiscal management; and (9) whether CAB and the District violated the Charter School's due process rights.
In 2000, the District issued a three-year charter to the Charter School pursuant to the Charter School Law (CSL). The District subsequently voted to extend the charter two years and, in 2006, the District renewed the Charter School's charter for
another five years, starting July 1, 2007. In 2011, after the Charter School prematurely sought to renew its charter, the District initiated a comprehensive five-year review. Since the charter would not lapse until 2012, and the District wished to terminate the charter prior to that date, it issued a Notice of Revocation to the Charter School on March 16, 2011. The Notice of Revocation set forth five revocation grounds with each containing multiple reasons. The five categories were: material violations of the charter; failure to meet student performance standards; failure to meet standards of fiscal management; failure to provide the District certain reports and records; and, violations of law.
The Board appointed hearing officer James E. Prendergast (Prendergast) to preside over the revocation proceedings which consisted of thirteen days of hearings. On November 22, 2011, after receiving public comment, the Board voted unanimously to revoke the Charter School's charter. The Charter School appealed to CAB on January 24, 2012, and the District filed a motion to quash the appeal. On June 18, 2012, CAB dismissed the District's motion to quash. On August 2, 2013, CAB issued its adjudication, concluding that the evidence supported revoking the Charter School's charter on three separate grounds: (1) material charter violations; (2) failure to meet student performance standards; and (3) failure to timely submit audit reports. On August 7, 2013, the Charter School filed a petition for review and motion for stay with this Court. By August 15, 2013 order, this Court denied the Charter School's motion for stay. On August 20, 2013, the District filed a cross-petition for review. On September 16, 2013, the Charter School filed a petition for review with the Pennsylvania Supreme Court to overturn this Court's denial of its motion for stay. By October 11, 2013 order, our Supreme Court denied the Charter School's petition for review.
Motion to Quash
The District's cross-petition contains a threshold issue which we will address first. The District argues that CAB committed an error of law in dismissing the District's motion to quash because the Charter School did not appeal from the Board's revocation of its charter to CAB for 63 days.
Although the Board voted to revoke the Charter School's charter on November 22, 2011, the District did not send the Charter School a copy of the decision and order until December 7, 2011. The Charter School received the Board's decision and order on December 9, 2011, and filed its
appeal therefrom on January 24, 2012, 44 days thereafter.
In dismissing the District's motion, CAB stated in its decision: " The [CSL] is silent on this issue, and CAB has not by way of regulation, informal guidance or through its decisions clearly established the time within which the appeal of a decision to revoke or non-renew a charter must be filed." CAB June 18, 2012 Dec. (CAB(1) Dec.) at 2. CAB specifically held: " [W]e have not set a specific appeal time from decisions to revoke or non[-]renew charters. Having not done so, we will not penalize [the Charter School] for an appeal filed 46 days after [the Board's] decision." Id. at 4.
The District maintains that Germantown Settlement Charter School v. Philadelphia School District (CAB 2008-06) ( Germantown ), controls the outcome here, and requires that an appeal be filed within 30 days of the revocation decision. However, in Germantown, CAB erroneously relied on Section 5571 of the Judicial Code, which directs:
(a) General rule.--The time for filing an appeal, a petition for allowance of appeal, a petition for permission to appeal or a petition for review of a quasi-judicial order, in the Supreme Court, the Superior Court or the Commonwealth Court shall be governed by general rules. No other provision of this subchapter shall be applicable to matters subject to this subsection.
(b) Other courts.--Except as otherwise provided in subsections (a) and (c) and in [S]ection 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.), an appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order.
42 Pa.C.S. § 5571 (emphasis added). Because the Charter School appealed from the Board to CAB, not " to a court or from a court," Section 5571 of the Judicial Code does not control in the instant action. Further, in Germantown, CAB specifically held as a Conclusion of Law that " CAB acted within its discretionary authority when it granted the Motion to Quash." Germantown, Slip Op. at 3, Conclusion of Law (COL) 6 (emphasis added). Moreover, although CAB found the appeal in Germantown untimely, it decided the appeal in In Re: Wonderland Charter School (CAB 2002-07), wherein, the appeal was filed over 30 days after the district denied
the charter school's renewal. See also In Re: Ronald H. Brown Charter School (CAB 2005-08) (appeal decided although filed beyond 30 days). Thus, Germantown is not dispositive.
The Charter School contends CAB's website establishes that the time for appeal is 60 days; however, the website does not so state. Rather, CAB's website refers to the 60 day time period for gathering signatures to appeal from a denial of an original charter school application or a resubmitted application. See Reproduced Record (R.R.) at 250a. Thus, CAB's website is not dispositive.
Pursuant to Section 1721-A(b) of the CSL, CAB
shall meet as needed to fulfill the purposes provided in this subsection. A majority of the members of [CAB] shall constitute a quorum, and a majority of the members of [CAB] shall have authority to act upon any matter properly before [CAB]. [CAB] is authorized to establish rules for its operation.
24 P.S. § 17-1721-A(b) (emphasis added). Further,
[w]ell-settled precedent establishes that courts defer to an administrative agency's interpretation of its own regulations unless that interpretation is unreasonable. The task of the reviewing court is limited to determining whether the agency's interpretation is consistent with the regulation and with the statute under which the regulation was promulgated. The United States Supreme Court has referred to this deference as the interpretive lawmaking power of administrative agencies and has characterized it as a 'necessary adjunct' of the authority to promulgate and enforce regulations.
Marshall v. Commonwealth, 41 A.3d 67, 77 (Pa. Cmwlth. 2012) (emphasis added) (quoting Dep't of Envtl. Prot. v. N. Am. Refractories Co., 791 A.2d 461, 464-65 (Pa. Cmwlth. 2002) (citations omitted)). Here, CAB never established rules denoting the time period from which to appeal a local school district board's decision to revoke or non-renew charters to CAB. While reluctant to leave the time for appeal open-ended, this Court will not usurp CAB's authority by specifying the appeal period. Accordingly, CAB's order denying the District's motion to quash is affirmed.
This Court acknowledges the continued confusion that will persist in the absence of a rule establishing an appeal time period from a local school district board's decision to revoke or non-renew charters to CAB. The inconsistency of CAB's prior decisions on this issue demands that CAB use the authority bestowed upon it through Section 1721-A(b) of the CSL to set forth the number of days for which an appeal must be commenced. Thus, we strongly urge CAB to promulgate and steadfastly enforce such a rule.
Authority of Department of Education Secretary Nominee
Having disposed of the issue raised in the District's cross-petition, we will now address the Charter School's issues. The Charter School first argues that Harner did not have the authority, absent confirmation by the Pennsylvania Senate, to call to order, preside over and/or participate in the CAB meeting during which CAB revoked the Charter School's charter and executed the order memorializing CAB's decision. However, as nominee to fill the vacancy in the Secretary of Education position, Harner was Acting Secretary for the Department of Education at all relevant
times during the proceeding before CAB involving this case. Harner withdrew his nomination on August 27, 2013, before being confirmed by the Pennsylvania Senate which date was after the order issued and appealed from in the instant matter.
The District retorts that the Charter School waived this issue because although it could not be raised below since Harner did not withdraw his name for consideration until August 27, 2013, the Charter School had 30 days from CAB's August 2, 2013 order to amend its petition for review to include this issue. On August 26, 2013, the Charter School moved to amend its petition for review to include three additional issues which this Court granted. The Charter School's Motion to Amend its Petition for Review did not include this issue. On September 17, 2013, the Charter School filed a Second Motion to Amend its Petition for ...