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Whalen v. Department of Education

Commonwealth Court of Pennsylvania

May 8, 2017

James C. Whalen, Petitioner
v.
Department of Education, Respondent

          Argued: April 4, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge

          OPINION

          PATRICIA A. McCULLOUGH, Judge

         James C. Whalen (Petitioner) petitions for review of the June 29, 2016 order of the Department of Education's Professional Standards and Practices Commission (Commission), which denied Petitioner's exceptions to the proposed report and order of a hearing officer and immediately revoked his professional educator certification and eligibility to be employed as a charter or cyber charter school staff member or a contracted educational provider staff member.

         Facts and Procedural History

         The underlying facts of this case are not in dispute. Petitioner holds an Instructional II teaching certificate in the area of Mathematics 7-12. From the fall of 1991 through June, 2001, Petitioner was employed as a teacher in the W.T. Woodson High School within the Fairfax County (Virginia) Public Schools. Petitioner commenced his employment with the Peters Township School District (District) in McMurray, Pennsylvania in the fall of 2006. On September 2, 2012, the District received a letter from R.B., who had been a student of Petitioner when he taught in Virginia, alleging that Petitioner had engaged in an inappropriate and sexual relationship with her while she was his student. On September 5, 2012, the District's high school principal met with R.B. to discuss her allegations. (Commission's Findings of Fact Nos. 1-5.)

         R.B.'s allegations to the District triggered a mandatory report to the Department of Education (Department) pursuant to section 9.1(a)(3) of the then-titled Professional Educator Discipline Act (PEDA).[1] The Department received the District's mandatory report on September 18, 2012. The allegations in the mandatory report involved conduct occurring between January 1, 1998, and December 31, 2001, when R.B. was between the ages of 14 and 16 and a student at W.T. Woodson High School in Virginia. At the time the allegations were brought to the District's attention in 2012, R.B. was 28 years of age. (Commission's Findings of Fact Nos. 6-9.)

         Educator Misconduct Complaint and Notice of Charges

         On September 20, 2012, two days after receipt of the mandatory report, the Department filed an educator misconduct complaint against Petitioner.[2] By letter dated October 25, 2012, the Department notified Petitioner that a legally sufficient educator misconduct complaint had been filed against him and that the Department had determined that probable cause for discipline existed. On May 14, 2014, the Department filed a notice of charges against Petitioner with the Commission. (Commission's Findings of Fact Nos. 10-12.)

         In its notice of charges, the Department charged Petitioner with immorality, negligence, and intemperance, and sought revocation of his professional educator certification and employment eligibility, based on the following allegations:

4. As set forth more fully below, between approximately January 1, 1998 and December 31, 2001, [Petitioner] engaged in unprofessional conduct. More specifically, [Petitioner] engaged in an inappropriate relationship with a female student ("RB") beginning when she was 14 years of age that included comments on her physical appearance, letters, emails, online chats and handwritten notes indicating his desire to start, and then continue, a romantic and sexual relationship. [Petitioner] escalated the relationship to include deeply romantic letter writing, spending time alone with the student, and physical and sexual contact beginning when the student was 16 years of age. The sexual contact included countless instances of physical intimacy including kissing and touching, multiple instances of oral intercourse and one occasion of vaginal intercourse. In his written and verbal communication, [Petitioner] indicated that RB was not the first student or significantly underage woman he'd developed strong feelings for nor the first with whom he'd acted on such feelings with.
5. Written correspondence that [Petitioner] has already admitted to writing to RB contains statements such as "love you deeply", "I am yours for keeps", and (regarding their relationship) "I know it's not correct but I don't care".
6. In addition, RB discovered that [Petitioner] accessed pornography while in his classroom, using his District-issued computer. This pornography depicted females dressed like school-girls and other images of young girls. [Petitioner] admitted, both to RB and in a letter to her, that he [has known he's had] "a problem with pornography for a while". The letter goes on to reference his "inability to control [his] desires for women and girls".

(Commission's Finding of Fact No. 13; Notice of Charges at ¶¶4-6; Reproduced Record (R.R.) at 7a-8a.)

         On June 11, 2014, Petitioner filed a motion to stay the deadline to answer the notice of charges and a petition for a declaratory order, arguing that the limitation on filing of complaints set forth in section 9(a) of the PEDA, formerly 24 P.S. §2070.9(a), [3] barred prosecution of the matter and requesting dismissal of the notice of charges. The Commission granted Petitioner a stay to file an answer to the notice of charges and scheduled consideration of Petitioner's petition for a declaratory order for its July 14, 2014 meeting. The Commission heard oral argument at this meeting and issued an order dated July 17, 2014, finding that in the absence of either an express or implied grant of power to provide declaratory relief, it was without authority to consider Petitioner's request. (Commission's op. at 2.)

         On August 4, 2014, Petitioner filed an answer to the notice of charges with new matter and a motion to dismiss reiterating that the charges brought against him were barred by the time limitation of section 9(a) of PEDA, to which the Department filed a reply. The Commission heard oral argument at its September 15, 2014 meeting, and subsequently denied Petitioner's motion, finding that the charges were not barred by this time limitation. (Commission's op. at 2-3.)

         Proposed Report of Hearing Officer

         On January 30, 2015, the Commission appointed a hearing officer and a hearing was held on July 30-31, 2015. (Commission's op. at 3.) R.B. explained at these hearings that "she delayed reporting [Petitioner's] misconduct because it took many years to come to an understanding that her relationship with [Petitioner] was not one of equals and that it was inappropriate." (Commission's Finding of Fact No. 14.) She also explained that she harbored guilt and shame about the relationship and initially did not want to destroy Petitioner's life. Id. R.B. testified that she did disclose the relationship to her former debate coach, Timothy Stroud, sometime in 2002-03. (Commission's Finding of Fact No. 15.)

         Following this disclosure, Stroud reported the allegations to the Iowa Department of Health and Human Services, mistakenly believing that Petitioner was teaching in Iowa, as well as the Fairfax County Public Schools. A representative of the latter informed Stroud that there was nothing it could do as he was no longer a teacher in their district. R.B. was unaware that Stroud had reported her allegations to either entity. Further, there was no evidence presented at the hearings that Petitioner affirmatively disclosed his alleged misconduct at any time. (Commission's Findings of Fact Nos. 16-19.)

         In his proposed report, the hearing officer credited the testimony of R.B., and noted a significant amount of documentary evidence, such as notes, cards, and a letter from Petitioner to R.B., which corroborated R.B.'s allegations regarding an inappropriate relationship with Petitioner. The hearing officer noted that R.B.'s credible testimony further established that Petitioner accessed pornography on his school-issued computer. The hearing officer concluded that the credible testimony of R.B., coupled with the documentary evidence, established that Petitioner had engaged in conduct constituting immorality, intemperance, and negligence, which warranted revocation of Petitioner's educator certification and employment eligibility. (Commission's Finding of Fact No. 20.)

         Petitioner's Exceptions

         Petitioner thereafter raised the following four exceptions to the hearing officer's proposed report, none of which related to the hearing officer's findings and conclusions that he engaged in an inappropriate and sexual relationship with R.B. or that he accessed pornography on a school-issued computer:

1. The Hearing Officer's proposed report omits key facts regarding [Petitioner's] statute of limitations defense.
2. The Hearing Officer's Proposed Report inappropriately adopted the Commission's interpretation of the Statute of Limitations contained in their [sic] Memorandum and Order dated October 15, 2014, issued in response to [Petitioner's] Motion to Dismiss.
3.The Hearing Officer denied [Petitioner] his due process rights by failing to address the statute of ...

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