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Burnett v. School District of Philadelphia

Commonwealth Court of Pennsylvania

July 12, 2017

Ronald Harrison Burnett, III, Petitioner
School District of Philadelphia, Respondent

          Argued: May 1, 2017



          RENÉE COHN JUBELIRER, Judge.

         Ronald Harrison Burnett, III (Burnett) petitions for review of the Order of the Secretary of Education (Secretary) finding Burnett's reassignment from high school chemistry teacher to middle school general science teacher by the School District of Philadelphia (District) was not a demotion in "type of position" and, therefore, there was no error in District's denying his request for a hearing pursuant to Section 1151 of the Public School Code of 1949 (School Code), [1] 24 P.S. § 11-1151. On appeal, Burnett argues he is entitled to a hearing on his claim he was demoted, and because he did not receive a hearing, it was error for the Secretary to render a decision. He further asserts the Secretary's Adjudication did not comply with Section 507 of the Administrative Agency Law, 2 Pa. C.S. § 507, because it did not include findings of fact or conclusions of law on all the issues he raised in his appeal.[2] Because a school district must strictly follow the procedures set forth in the School Code when a professional employee claims to be demoted, and District did not do so here, we reverse the Secretary's Order and remand the matter to the Secretary for further remand to District's School Reform Commission (SRC) for a hearing.

         Burnett, who is certified to teach chemistry and general science for grades 7-12, worked as a teacher for District from 1995 to 1999, teaching high school physics and chemistry. After teaching in another school district, he returned to the District and eventually began teaching chemistry at Central High School. In 2013, while teaching chemistry at Central High School, Burnett applied for and received a professional development sabbatical leave for the period from September 1, 2013, through June 30, 2014. In May 2014, while still on sabbatical, District notified Burnett he would be force transferred to another school. Burnett initially was assigned, over his objections, to a middle school, but ultimately was sent to Northeast High School to teach chemistry. In April 2015, District notified Burnett he would be force transferred from Northeast High School. Despite Burnett's objections, he was assigned to teach general science full time at Clemente Middle School with no change of salary or benefits for the 2015-2016 School Year. Burnett reported to the position, but he requested a hearing before the SRC pursuant to Section 1151, claiming he had been demoted.

         The SRC advised Burnett, by letter dated October 1, 2015, that a hearing would be scheduled on his alleged demotion. On October 14, 2015, the SRC notified Burnett that District needed to reschedule the hearing, but no new hearing was ever scheduled. District's assistant general counsel sent Burnett's counsel a letter on November 3, 2015, indicating that District was "rejecting [Burnett's] request for a hearing" because it was in District's "judgment [that] the case law clearly establishes that . . . Burnett was not demoted." (R.R. at 53a.)

         Burnett appealed to the Secretary pursuant to 22 Pa. Code § 351.5(a).[3]Secretary assigned a hearing examiner and requested the parties forward, among other things, "the record of the proceedings before the [SRC] concerning [Burnett] (including all exhibits)" to the Department of Education's (Department) Chief Counsel's Office. (Letter from Secretary to Parties' Counsel (November 19, 2015), Certified Record (C.R.) at 8.) Burnett filed a pre-hearing brief, asserting, in relevant part, that he was demoted in his "type of position" when he was force transferred to Clemente Middle School to teach general science, and District erred in denying him a hearing pursuant to Section 1151. Burnett also submitted a "Specifications in Support of Request for Hearing, " which he had filed with the SRC, containing facts he believed relevant to his asserted demotion. District filed a brief and exhibits. District argued, inter alia, that, pursuant to Appeal of Santee, 156 A.2d 830 (Pa. 1959), and Appeal of Wesenberg, 31 A.2d 151 (Pa. 1943), Burnett's transfer was not a demotion as a matter of law and, therefore, it was not required to hold a hearing pursuant to Section 1151. It further asserted that, given the state of the District and the number of teachers it has had to force transfer due to decreasing enrollment, even if the transfer was a demotion, no pre-demotion hearing would have been required under these circumstances per School District of Philadelphia v. Twer, 447 A.2d 222 (Pa. 1982). At the hearing, Burnett asked to testify, but the hearing examiner denied the request, choosing instead to accept only the written submissions and oral argument.

         Based on the argument at the hearing and his review of the documents submitted, Secretary found, citing Wesenberg and Santee, that Burnett's transfer to a full-time position teaching younger students was not a demotion because such position is of "'no less importance, dignity, responsibility, authority, prestige or compensation.'" (Secretary Op. at 3 (quoting Santee, 156 A.2d at 832).) Secretary further noted there is nothing in the School Code that distinguishes between the status of professional employees in junior and senior high schools and that how "a cha[n]ge of position might affect the sensibilities or peculiar tastes or talents of an individual teacher, " did not render the change a demotion. (Id. at 3-4 (quoting Wesenberg, 31 A.2d at 153).) Concluding "[t]he record contains no factual allegations that, if proven, would support a conclusion that the position to which [Burnett] was reassigned . . . is not the equivalent in rank and class to his former position, " Secretary declined to remand the matter for a hearing and dismissed Burnett's appeal. (Id. at 4; Order.) Burnett now petitions this Court for review.[4]

         On appeal, Burnett argues as follows. Section 1151 explicitly gives a professional employee who claims he has been demoted the right to a hearing to determine whether a demotion, in fact, occurred, and this right is well-supported by precedent. It is the employee's claim of a demotion that triggers the right to a hearing, regardless of whether a demotion has, in fact, occurred. Patchel v. Bd. of Sch. Dirs. of Wilkinsburg Sch. Dist., 400 A.2d 229, 231 (Pa. Cmwlth. 1979); Dep't of Educ. v. Charleroi Area Sch. Dist., 347 A.2d 736, 738 (Pa. Cmwlth. 1975). Accordingly, the SRC erred in denying his hearing request, and the Secretary's dismissal of Burnett's appeal, despite that error, requires reversal and a remand to the SRC for a hearing.

         District responds as follows. Burnett does not have a vested right in any particular teaching position, and his reassignment to a new grade and/or a new school is not a demotion "in type of position" as a matter of law because he remains a full-time teacher within the District. (District's Br. at 6-8 (citing Santee, 156 A.2d at 831; Wesenberg, 31 A.2d at 154).) Because Burnett's reassignment was not a demotion, there was no need for the SRC to hold a hearing. To hold otherwise, would "interfere with the efficient conduct of the high school system, " Wesenberg, 31 A.2d at 154, and is contrary to the Supreme Court's decision in Twer.

         We begin with the School Code, which addresses the requirements for demotion of a professional employee in Section 1151, as follows:

there shall be no demotion of any professional employe either in salary or in type of position, except as otherwise provided in this act, without the consent of the employe, or, if such consent is not received, then such demotion shall be subject to the right to a hearing before the board of school directors and an appeal in the same manner as hereinbefore provided in the case of the dismissal of a professional employe.

24 P.S. § 11-1151 (emphasis added). We have defined a "demotion [a]s a reassignment to a position which has less importance, dignity, authority, prestige or salary." Walsh v. Sto-Rox Sch. Dist., 532 A.2d 547, 548 (Pa. Cmwlth. 1987). A school board may demote a professional employee so long as the demotion is not arbitrary or discriminatory. Tassone v. Sch. Dist. of Redstone Twp., 183 A.2d 536, 539 (Pa. 1962) (citing Smith v. Darby Sch. Dist., 130 A.2d 661, 666 (Pa. 1957)). The school board's action is presumptively valid, and it is the demoted employee who "has the burden of proving [that the demotion was] arbitrary, discriminatory or founded upon improper considerations . . . ." Brownsville Area Sch. Dist. v. Lucostic, 297 A.2d 516, 518 (Pa. Cmwlth. 1972) (citing Smith, 130 A.2d at 666; Lakeland Joint Sch. Dist. v. Gilvary, 283 A.2d 500, 502 (Pa. Cmwlth. 1971)).

         Although a professional employee does not have "a vested right to teach in any certain class or in any certain school, " we have held the provisions involving a "teacher's tenure, as found in the School Code require[] strict compliance." Bd. of Sch. Dirs. of Abington Sch. Dist. v. Pittenger, 305 A.2d 382, 385 (Pa. Cmwlth. 1973) (emphasis added). For example, in Pittenger, a school district reassigned an assistant principal as a classroom teacher without following the procedures set forth in the School Code. The employee appealed to the Secretary, who reversed holding the school district's procedure was void ab initio because it had not satisfied the procedural requirements mandated by the School Code. On further appeal, this Court affirmed concluding "the procedure ...

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