Opinion
No. 240 C.D. 2013
04-30-2014
Joseph Cambria, Appellant v. Board of School Directors of Exeter Township School District
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Joseph Cambria (Appellant) appeals from the April 5, 2013 order of the Court of Common Pleas of Berks County (trial court), which affirmed the decision of the Board of School Directors (Board) of Exeter Township School District (District) to terminate Appellant's employment under section 514 of the Public School Code of 1949 (Code).
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §5-514. Generally, section 514 of the Code provides a school district authority to remove an employee for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct, after giving notice, the reasons for the discharge, and a hearing if requested.
Facts and Procedural History
The facts as found by the Board are essentially as follows. Appellant became employed as the head coach for the District's senior high girls' basketball team in 2009. The coaching job was an annual position and Appellant entered into a new contract each year. On April 19, 2011, for reasons not stated in the record, Appellant received a disciplinary letter from the District superintendent, which provided that "[a]ny further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate our athletes will be treated with zero tolerance" and stated that he would be "monitored closely over the next year." (Reproduced Record (R.R.) at 143a; Board's Finding of Fact No. 12.)
In relevant part, the April 19, 2011 letter from the superintendent states as follows:
The Administration has reviewed and reconsidered its recommendation to post the position of Girls' basketball coach for the coming year and will allow you to continue as coach next year. . . . Your continued employment is subject to the following conditions:
No inappropriate use of language in the presence of students and team members. No errors in communication that could reflect a stereotypical depiction of race . . . comments about . . . weight or eating habits. . . .
(R.R. at 143a.)
Any further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate our athletes will be treated with zero tolerance. You are responsible for the behavior of your coaching staff; supervise them accordingly. Their behavior will impact your performance evaluation, if not handled appropriately.
Your performance as a coach and manager of your assistant coaches will be monitored closely over the next year by the Athletic Director and the High School principal. Periodic reports will be made by them to the Superintendent. Any violation, including but not limited to the above, will be viewed with zero tolerance, and will be cause for an immediate recommendation to the Board of School Directors for your dismissal.
The Board most recently approved Appellant's appointment as head coach on October 16, 2012, for the 2012-13 school year. (Board's Finding of Fact No. 2.) The incident giving rise to the present appeal occurred on October 24, 2012. (Board's Finding of Fact No. 3.) On that evening, Appellant ran an optional practice for the girls' basketball team in the high school gym at the same time that the District hosted a "Safe Halloween" event at the school. (Board's Finding of Fact No. 4.) One of the female basketball players, 16-year-old S.S., was not at practice but attended the Halloween event in a "Batgirl" costume. (Board's Finding of Fact No. 5.) As she passed Appellant, Appellant called to her saying he wanted to take her picture with his cell phone camera. (Board's Finding of Fact No. 6.) Although S.S. said "no, don't take my picture," Appellant nevertheless took her picture with his cell phone camera. (Board's Finding of Fact No. 7.) "S.S. was haunted" by Appellant's actions, and she contacted Athletic Director Thomas Legath (Legath). (Board's Finding of Fact No. 8.)
Although this student's full name appears in the Reproduced Record, the Board's Findings of Fact refer to her as S.S. and we do the same.
Thereafter, Legath and human resources director Elizabeth Weber (Weber) conducted an investigation. The Board found that during an interview with Weber and Legath on November 13, 2012, Appellant admitted that he took a photograph of S.S. with his cell phone despite her request that he not do so. (Board's Finding of Fact No. 11.) As a result of the investigation, Legath and Weber determined that Appellant had taken S.S.'s photograph with his cell phone despite her request not to do so, and that "S.S. was emotionally distraught over the incident." (Board's Findings of Fact Nos. 9-10.)
As a result, the District administration suspended Appellant and recommended his termination to the Board. Appellant requested a hearing, and, by letter dated November 21, 2012, the District notified Appellant of the hearing date, set forth the grounds for his termination, and advised him of his rights. (R.R. at 140a-42a.) The Board held a hearing on December 11, 2012.
Legath testified that S.S. emailed him about the incident on November 1, 2012. (R.R. at 44a.) He immediately called her at home and spoke with her mother, who repeated S.S.'s account. (R.R. at 46a.) According to Legath, S.S. claimed that Appellant yelled to her at the Halloween event, said he wanted to take her picture, and took her picture despite her telling him not to do so. (R.R. at 47a.) Legath said he then spoke with Weber regarding the appropriate procedures to follow. (R.R. at 47a.) Legath testified that he held a meeting with S.S., her mother, and the principal; conducted interviews; and prepared a memorandum on the matter. (R.R. at 48a-49a.)
On cross-examination, Legath acknowledged that during his most recent evaluation, dated March 12, 2012, he gave Appellant satisfactory ratings, the highest rating possible, on twenty-two out of twenty-four categories. (R.R. at 56a.) Legath also admitted that coaches are not responsible for school policies before they receive a copy. (R.R. at 62a.)
Weber testified that she met with S.S., who recounted her experience and told Weber that she had a nightmare about it. (R.R. at 20a-21a.) Weber said that her conversation with S.S. was consistent with the information contained in Legath's memorandum. (R.R. at 20a-21a.) Weber stated that she and Legath met with Appellant on November 13, 2012, at which time Appellant said that he took S.S.'s picture with his cell phone, that she said no, and that his action was innocent. Weber testified Appellant was very shocked and surprised when she explained how S.S. interpreted his actions, saying that S.S. and her family had been to his home and eaten his food. (R.R. at 22a, 24a). Weber acknowledged that she never saw any of the pictures allegedly taken, and she said that Appellant told her he had deleted them. (R.R. at 41a.)
Weber stated that S.S. mentioned another man who had previously been in trouble for taking inappropriate pictures of young women. Weber stated that she informed Appellant of this reference by S.S. so that Appellant would understand why S.S. interpreted the taking of a picture seriously. (R.R. at 24a.)
Weber added that Appellant said he was unaware of the District's policies prohibiting such actions. (R.R. at 25a-29a.) Weber stated that, based on the investigation, she concluded that Appellant's conduct violated District Policies 815 (prohibiting the inappropriate use of cameras, including taking anyone's picture without his or her consent), 815.2 (prohibiting employees' use of cell phone cameras for personal reasons unrelated to work), and 517.1 (prohibiting employees from communicating with students in a manner that is unprofessional and thereby inappropriate). (R.R. at 26a-28a.)
District Policy 815, adopted in January 1996 and revised in June 2012, prohibits "the inappropriate use of cameras and/or digital recording devices on school grounds." The definition of "inappropriate use" includes "taking anyone's picture or videotaping without their [sic] consent." District Policy 517.1, adopted in February 2012, prohibits unprofessional/inappropriate communication with students, such as by personal letters or emails or by texting. District Policy 815.2, also adopted in February 2012, prohibits employee use of cameras for personal reasons unrelated to the workplace, including camera phones. (Board's Findings of Fact Nos. 13-15.)
On cross-examination, Weber acknowledged that when she asked S.S. if there were any witnesses to the alleged incident, S.S. indicated only that a young man was present. Weber testified that S.S. did not identify any basketball players and, as a result, Weber had not spoken with any of them. (R.R. at 38a.)
Consequently, Weber sent Appellant a letter on November 14, 2012, (R.R. at 29a), which referenced the April 2011 letter of reprimand, summarized the complaints made by S.S. as well as Appellant's response, and concluded that the incident reflected poor professional judgment on his part. The November 14th letter noted prior concerns, cited Appellant's use of his personal cell phone to take a picture of a female student despite her objection, and informed Appellant that the administration was recommending his dismissal to the Board. Weber testified that Appellant, on advice of his attorney, refused to meet with her to receive and discuss the letter and instead requested a hearing with the Board. (R.R. at 30a.)
C.S., S.S.'s mother, testified that S.S. told her about the incident and was very upset by it. (R.R. at 71a.) C.S. stated that, after the incident, her daughter had difficulty sleeping and would wake up from nightmares. (R.R. at 71a.) She reported that S.S. has seen the high school counselor and another counselor since the incident and that both counselors validated S.S.'s feelings about the situation. (R.R. at 73a.) According to C.S., S.S. now has a difficult time with basketball, and many of her teammates will not speak to her. (R.R. at 72a.) C.S. testified that she and her husband thought that it would be inappropriate for S.S. to attend the hearing, so S.S. was not present to testify. (R.R. at 70a.)
Appellant testified that earlier in the evening on October 24, the principal came down to the gym, told him about the Halloween event, and asked if Appellant could end practice early. Appellant said he agreed, and, after practice, went into the hall. Appellant testified that hundreds of people were there, including children in costume and their parents. (R.R. at 84a, 87a.)
Appellant stated that his phone was new and he was not very familiar with it. (Id.) Appellant stated that he asked one of his players to use his phone to take pictures of the Latin display to show his wife, who is a Latin teacher at another school. (R.R. at 83a-84a.) Appellant said that the student took some pictures for him, gave the phone back, and tried to instruct him on how to use it. (R.R. at 85a.) He explained that he was taking pictures when S.S. walked by and he said he was going to take her picture. According to Appellant, S.S. said no in a joking, laughing manner, and then Appellant made a clicking sound with his voice, mimicking a camera sound. (R.R. at 85a, 88a.)
Appellant explained that when Weber and Legath questioned him three or four weeks after the incident, he was taken off guard. (R.R. at 87a.) He stated that he initially admitted to taking the picture, and later deleting it, because he took so many pictures that night he assumed that he had taken S.S.'s picture. (Id.) He testified that after some reflection, he remembered that he did not know how to work his phone camera well that night and that he had made a clicking sound with his voice when S.S. walked passed him. (R.R. at 88a.) Appellant also stated that there was no picture of S.S. on his phone when he checked. (Id.)
In addition, Appellant testified that he believed that the "zero tolerance" referred to in the April 2011 letter was not part of his 2012-13 contract. (R.R. at 80a.) He added that during his most recent evaluation with Legath in March 2012, Legath gave no indication that Appellant was acting improperly in any manner. (R.R. at 78a-79a.) Appellant also testified that the first time he saw the school policies regarding cell phone use was at a coaches' meeting on November 12, 2012, after the October 24th incident. (R.R. at 81a.) Appellant noted that he was not aware that such policies are posted on the District website after they are adopted. (R.R. at 94a.)
Two students, L.D. and B.L., testified on Appellant's behalf and stated that they overheard a friend of S.S. express a desire to have Appellant fired in the spring of 2012. (R.R. at 100a-02a.) B.L., who was not a member of the basketball team, testified that she witnessed the incident on October 24th, and she did not think that Appellant actually took a picture of S.S. (R.R. at 102a.)
Vaughan O'Neill, Appellant's former assistant coach, also testified on Appellant's behalf, stating that S.S. was playful when Appellant asked to take her picture. (R.R. at 108a.) O'Neill stated that S.S. was walking so quickly that he did not think Appellant could have taken her picture. (R.R. at 108a.)
N.G., the mother of one of Appellant's former players, said she was present at the October 24th event and did not see Appellant take pictures of S.S. (R.R. at 112a.) Three of Appellant's former players, M.C., M.P., and J.C., testified that Appellant's phone screen was black, and thus he could not have taken a picture at the time S.S. walked past him. (R.R. at 113a, 116a, 119a.) J.C. further testified that Appellant did not know how to use his camera phone and had asked her to take some pictures for him. (R.R. at 119a.)
The Board accepted the testimony of Legath and Weber as credible and rejected the testimony of Appellant and his witnesses as not credible. In relevant part, the Board found that Appellant took S.S.'s picture without her permission and in violation of District policies and school law. (Board's Findings of Fact Nos. 6-7, 25-32.) Specifically, the Board found that Appellant "disregarded directives from the Superintendent to avoid any further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate our athletes despite the directive of April 19, 2011 that there would be zero tolerance for such violations." (Board's Finding of Fact No. 26.) The Board also concluded that: Appellant's conduct violated Policy 815 by taking the student's picture without her consent; Appellant violated Policy 815.2 by using his cell phone for personal reasons unrelated to the workplace; Appellant violated Policy 517.1 by engaging in unprofessional communication, including treating students as peers; and Appellant exercised poor judgment regarding student-athlete boundaries. (Board's Findings of Fact Nos. 27-31.) The Board concluded that, on October 24, 2012, Appellant remained subject to the zero tolerance condition of the April 19, 2011 letter and that his actions constituted a violation of school law and improper conduct under section 514 of the School Code. (Board's Finding of Fact No. 32; Board's Conclusions of Law Nos. 2-3.) The Board terminated Appellant's employment on December 18, 2012.
Thereafter, Appellant filed a complaint in mandamus, a request for peremptory judgment, and a request for a preliminary injunction. During argument on January 7, 2013, Appellant withdrew his request for a preliminary injunction. By order dated February 5, 2013, the trial court affirmed the Board's decision. In its opinion, the trial court concluded that the Board's termination of Appellant was supported by substantial evidence. The trial court stated that Appellant's conduct was improper and that his admission of that conduct provided the grounds for his termination. (Trial court op. at 6.) Appellant then appealed to this Court.
Appellant initially sought reinstatement to his position as the 2012-13 basketball coach, as well as damages. However, the 2012-13 basketball season has ended, and Appellant now seeks $6,966 in damages, the amount of the unpaid contract. (Brief for Appellant at 30; R.R. at 145a.)
On appeal, Appellant argues that: (1) the grounds set forth in the November 21, 2012 letter are legally insufficient to support his termination under section 514, and any grounds not stated within the November 21, 2012 letter are waived; (2) the Board relied on impermissible hearsay testimony to reach its decision; (3) the Board capriciously disregarded the testimony of Appellant and his witnesses; and (4) the Board's decision is not supported by substantial evidence.
When reviewing school board decisions, our scope of review is limited to determining whether the board committed an error of law, abused its discretion, or violated constitutional rights. Blascovich v. Board of School Directors of Shamokin Area School District, 410 A.2d 407 (Pa. Cmwlth. 1980).
The Board responds that it properly dismissed Appellant under section 514 because Appellant engaged in improper conduct and violated school laws. Because section 514 does not define the term "school law," the Board relies on section 1122 of the Code, which in relevant part states that professional employees may be dismissed for "failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors)." 24 P.S. §11-1122. Relying on this definition, the Board asserts that Appellant's violation of the directives in the superintendent's April 2011 letter is a violation of school laws, as is his violation of the District's policies. The Board also contends that "improper conduct" may include a "breach of trust" or a "misuse of power," Barhight v. Board of Directors of Bradford Area School District, 689 A.2d 327, 329 (Pa. Cmwlth. 1997), and asserts that Appellant's actions constituted poor judgment and invasions of student-athlete boundaries. Finally, the Board notes that Appellant never denied that he violated the terms of the April 19, 2011 letter or that he violated District policies 815.2 and 517.1.
24 P.S. §11-1122.
Discussion
Section 514 of the Code states as follows:
The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its officers, employees, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct.24 P.S. §5-514.
Appellant first asserts that the basis for his dismissal is confined to the reasons set forth in the November 21, 2012 letter, and he argues that none of the grounds listed therein are legally sufficient to support his termination under section 514.
The November 21st letter, addressed to Appellant's counsel, states in relevant part as follows:
Please accept this letter as notification that pursuant to Section 514 of the Public School Code, the [District] will recommend to the [Board] that your client . . . be removed and dismissed from employment as girls basketball coach. . . . Your client is being charged by the School District Administration with violation of school law and improper conduct growing out of his alleged commission of the following:
1. while attending a Safe Halloween event on October 24, 2012 at the school, he took a photograph on his personal cell phone of a student-athlete in her "Batgirl" Halloween costume, despite her request that he not take the picture;
2. disregard of directives from the Superintendent to avoid "any further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate our
athletes" (April 19, 2011 letter), despite the directive that there would be zero tolerance for such violations;(R.R. at 140a-41a.)
3. violation of the District's Acceptable Use policy (Policy 815) by inappropriate use of cameras and/or digital recording devices on school grounds, in taking the student athlete's picture without her consent;
4. exercising poor judgment regarding student-athlete boundaries; and
5. inappropriate invasion of student-athlete boundaries.
Initially, we note that nonprofessional public school employees have a property right in their expectation of continued employment, and a school board must comply with procedural due process safeguards when dismissing them for cause. Lewis v. School District of Philadelphia, 690 A.2d 814, 817 (Pa. Cmwlth. 1997). As reflected in section 514, those procedural due process safeguards include notice of the reasons alleged to be cause for dismissal as well as a hearing, if requested. Thus, we agree that the grounds for Appellant's dismissal are limited to the reasons provided in the November 21st letter. Because school policies 815.2 (no cell phone camera use for personal reasons) and 517.1 (no unprofessional communication with students) were not mentioned in the November 21, 2012 letter, these arguments are waived and cannot support the Board's decision concerning Appellant's dismissal. Lewis.
Additionally, Appellant argues that even if the specific policies 815.2 (camera use) and 517.1 (unprofessional communication) had been cited in the November 21st letter, the Board's reliance on these policies as a basis for his dismissal would still have been improper because the policies were not adopted by the Board until February 21, 2012, and Appellant did not receive a copy of these policies until after his alleged misconduct. Appellant argues that his termination cannot be based on a violation of a policy of which he had no notice, and, under the circumstances, we agree. Although a termination may be upheld even in the absence of a policy proscribing or requiring certain conduct, see Barhight, 689 A.2d at 329, where a school district relies on a policy violation as the basis for an employee's termination, the district must show that the employee knew of the policy in question and chose not to comply. Hertzler v. West Shore School District, 78 A.3d 706 (Pa. Cmwlth. 2013).
We address the five grounds for dismissal set forth in the November 21st letter in ascending order.
Preliminarily, we conclude that neither "inappropriate invasion of student-athlete boundaries" nor "exercising poor judgment regarding student-athlete boundaries," falls within any of the grounds for dismissal set forth in section 514, absent any evidence that a clarification of this vague language exists or was ever provided to Appellant.
With respect to Appellant's alleged violation of Policy 815 (inappropriate use of cameras), Appellant asserts that, because the policy was not presented to him until a coaches' meeting on November 12, 2012, after his alleged misconduct, the Board's reliance on this revised policy was misplaced. We agree. Where a school district relies on a policy violation as the basis for an employee's termination, the district must show that the employee knew of the policy in question and chose not to comply. Belasco v. Board of Public Education of the School District of Pittsburgh, 510 Pa. 504, 507, 510 A.2d 337, 339 (1986) (where teacher who had not been informed that giving a student a love tap with a wooden paddle violated the school district policy against corporal punishment, the teacher's conduct was not a willful violation of school law); Hertzler v. West Shore School District, 78 A.3d 706 (Pa. Cmwlth. 2013) (suspension of principal based on alleged violation of school policy not supported by substantial evidence).
In Hertzler, a school district suspended a school principal for sharing with a colleague news that the principal had been exonerated by an investigation into charges that she had harassed a teacher. The principal appealed, contending that the 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. Relying on McFerren v. Farrell Area School District, 993 A.2d 344, 357 (Pa. Cmwlth. 2010), we held that the suspension was not supported by the record where there was no evidence of a school policy and no evidence that the principal was directed to keep the investigation's results confidential.
In this case, although the District's policies are available online, (Board's Finding of Fact No. 17), the administration did not allege that a part-time coach had a duty to check for updated policies, and Legath admitted that coaches are not responsible for school policies before they receive a copy. (R.R. at 62a.) The record establishes that Appellant had no actual or constructive knowledge of Policy 815, and, therefore, the alleged violation of this policy cannot support the termination of his employment under section 514. Hertzler.
The second basis for Appellant's discharge provided in the November 21st letter was a "disregard of directives from the Superintendent to avoid 'any further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate our athletes' (April 19, 2011 letter), despite the directive that there would be zero tolerance for such violations." (R.R. at 141a.) The April 19, 2011 letter advises Appellant that his "performance as a coach and manager of [his] assistant coaches will be monitored closely over the next year by the Athletic Director and the High School principal. . . . Any violation, including but not limited to the above, will be viewed with zero tolerance, and will be cause for an immediate recommendation to the [Board] for your dismissal." (R.R. at 143a) (emphasis added).
Appellant challenges the Board's reliance on the April 19, 2011 letter as a basis for his termination on the grounds that the letter was not a part of Appellant's 2012-13 contract and did not proscribe actions that would be considered inappropriate. We first conclude that the use of the phrase "over the next year" forecloses an interpretation of the letter as announcing an open-ended period of zero tolerance for "such violations," to the extent they are defined.
More important is the absence of a clear directive concerning the taking of photographs in the letter. The Board argues that Appellant violated the "directives" in the April 19, 2011 letter from the District Superintendent to avoid "further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate" student athletes, and, asserts that by doing so, Appellant violated "school laws of this Commonwealth," a basis for discharge under section 514 of the Code. However, and significantly, the language of the April 19, 2011 letter does not contain a directive prohibiting the taking of students' pictures with cell phones or other cameras. Mindful that non-professional employees have a property interest in their continued employment, we conclude that, as with a discharge based on a violation of school policy addressed in Hertzler, where dismissal is based on failure to comply with an official directive, that directive must be clear and must be communicated to the employee. For these reasons, we reject the Board's contention that Appellant's alleged violation of the April 19, 2011 letter provides an independent ground for terminating his employment.
The remaining basis for Appellant's discharge given in the November 21st letter is his taking of a photograph on his personal cell phone of a student-athlete in her "Batgirl" Halloween costume, despite her request that he not take the picture. (R.R. at 141a.) We now consider: (1) whether the Board's Finding of Fact No. 7, that Appellant took S.S.'s picture despite her objection, is supported by substantial, competent evidence; and (2) if so, whether this action, in and of itself, constitutes "other improper conduct" under section 514.
Appellant argues that the Board relied on impermissible hearsay evidence to support his dismissal. Specifically, Appellant maintains that the Board relied on hearsay evidence concerning statements made by S.S. to support its findings. Appellant further asserts that the hearsay statements concerning a different and unrelated incident, S.S.'s nightmares, her decision to seek counseling, and her counselor's validation of her feelings are all unfairly prejudicial. Appellant complains that the Board's counsel allowed these statements over his objections because the Board's counsel erroneously characterized the hearsay rule as a technical rule of evidence.
"Hearsay" is defined as a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Pa.R.E. 801.
The Board responds that Appellant's initial admission that he had taken S.S.'s picture without her consent served as the primary basis for its decision to terminate Appellant's employment, and the Board notes that it specifically cited Appellant's admission that he took a photograph of S.S. with his cell phone despite her request that he not do so in its opinion. (Board's Finding of Fact No. 11.) The Board asserts that even though Appellant's initial admission did not occur during the hearing, it was an admission by a party and thus is an exception to the rule against hearsay. The Board also argues that the testimony of C.S. was not inadmissible hearsay because it was her description of the present physical condition of S.S. Further, the Board asserts that any other hearsay that was admitted, specifically by Legath, served as background information and was not necessary or relied on by the Board as a basis for its ultimate conclusion.
The due process to which Appellant is entitled as a nonprofessional employee requires an opportunity to confront and cross-examine adverse witnesses. Lewis, 690 A.2d at 817. However, local agencies are not bound by technical rules of evidence, and "all relevant evidence of reasonably probative value may be received." Section 554 of the Administrative Agency Law, 2 Pa.C.S. §554. Hearsay evidence "may be admitted in cases made out by circumstantial evidence, if not inconsistent with the undisputed facts, for the additional light it may throw on the matter." Bleilevens v. State Civil Service Commission, 312 A.2d 109, 111 (Pa. Cmwlth. 1973). Significantly, an administrative agency's adjudication may not be founded wholly on hearsay evidence. Id. We emphasized in Bleilevens that "[t]he Hearsay Rule is not a technical rule of evidence but a basic, vital and fundamental rule of law which [ought] to be followed by administrative agencies at those points in their hearings when facts crucial to the issues are sought to be placed on the record." Id. In Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976), addressing the effect of hearsay in an administrative hearing, this Court set forth the following rule: (1) hearsay evidence, properly objected to, is not competent evidence to support a finding of fact; (2) hearsay evidence admitted without objection will be given its natural probative effect and may support a finding of fact if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand.
In Bleilevens, the Fayette County Board of Assistance (BOA) removed an employee from his position as public welfare administrator for bad judgment, failure to implement and comply with policies, conduct unbecoming a state official, and insubordination. The State Civil Service Commission (Commission) sustained the BOA's removal of the employee, but, on appeal, this Court held that the Commission's adjudication was not supported by substantial evidence. In so doing, we determined that two of the BOA's witnesses based their testimony on hearsay statements and evidence obtained from persons and sources that were not in the record.
In this case, S.S. was not present at the hearing, and the testimony by all three of the District's witnesses, Legath, Weber, and C.S., as to statements made to them by S.S. is indisputably hearsay and was admitted over Appellant's objection. The Board erred in relying on that hearsay testimony as sole support for its findings that Appellant yelled to S.S. and called her "Batgirl," that S.S. was "haunted" by the taking of her picture, and that she was "emotionally distraught over the incident." (Board's Findings of Fact Nos. 6, 8, and 10.)
Weber's testimony that Appellant said he took S.S.'s picture with his cell phone and that she said no (R.R. at 22a), is not excluded by the rule against hearsay because Appellant's statements are statements by an opposing party. Pa.R.E. 803(25)(A). During the hearing, Appellant acknowledged that he told Weber he took S.S.'s picture, (R.R. at 85a), and Appellant also testified that, at the event on October 24th, "[S.S.] came walking by. And I said, I'm going to take your picture. And she said, No, no, no, but in a joking, laughing manner." (Id.) The Board found the hearing testimony of Appellant and his witnesses who corroborated this testimony not credible. We conclude that, although improperly considered hearsay testimony influenced the Board's decision to dismiss Appellant from his employment, Blielevens, the Board's finding that Appellant took S.S.'s picture with his cell phone after she said "no," albeit edited to delete Appellant's statement that she said "no" jokingly, is supported by competent evidence. (Board's Finding of Fact No. 7.)
Pa.R.E. 803(25)(A) provides as follows:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
* * *
(25) An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity[.]
Appellant maintains that the Board's finding that S.S. objected to his taking of her picture was not supported by substantial evidence because the only non-hearsay evidence concerning S.S.'s objection was from Appellant's witnesses, who all testified that S.S. said "no" in a joking manner. Appellant further contends that there is no evidence that he actually took S.S.'s picture and that his admission was based on an incorrect assumption during a meeting with the school's administration that took place three weeks after the alleged incident. In response, the Board again asserts that Appellant's admissions prior to the hearing constitute sufficient competent evidence to support its findings, and again, we agree.
Appellant further asserts that the Board capriciously rejected his testimony and that of his witnesses as not credible. Appellant complains that the Board disregarded testimony by five eyewitnesses who provided similar accounts of the incident and notes that the District did not present any meaningful cross-examination to impeach them.
On appeal, the Board states that it found Appellant's testimony at the hearing not credible. Ultimately, the Board correctly notes that it is charged with being the fact-finder in its administrative adjudications, and that this Court is bound by the Board's credibility determinations. In re Nevling, 907 A.2d 672, 674 (Pa. Cmwlth. 2006) (a reviewing court must accept the credibility determinations made by the local agency that hears the testimony, evaluates the credibility of witnesses, and serves as fact-finder.)
Finally, we must decide whether a coach's taking a picture with his cell phone camera of a student athlete at a school-sponsored Halloween costume event after the student said "no," in and of itself constitutes "improper conduct" under section 514 of the Code. The parties acknowledge that few appellate cases offer guidance on this question.
In Rice v. Board of Directors of Easton Area School District, 495 A.2d 984 (Pa. Cmwlth. 1985), we referenced Webster's Third New International Dictionary 1137 (1986), which defines "improper" as "not in accord with propriety, modesty, good taste or good manners," and we observed that the appellant's conduct in making harassing telephone calls to a fellow employee clearly fell within that definition. The appellant in Rice was a school district employee who was charged by police with making anonymous and harassing telephone calls to another district employee. While the criminal charges were pending, the school district discharged the appellant pursuant to section 514, and, following a hearing, the school board upheld his dismissal. On appeal to this Court, the appellant argued that his termination for allegedly making harassing telephone calls to a fellow employee was not supported by substantial evidence, and, alternatively, that even if proven, such conduct was insufficient to support his dismissal. After concluding that substantial evidence supported the school board's findings, we rejected the appellant's claim that the conduct was insufficient under section 514. See also Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers, AFL-CIO, 610 A.2d 506 (Pa. Cmwlth. 1992) (holding that an arbitrator erred in converting the discharge of non-teaching assistant to a suspension where the arbitrator found that the employee committed sexual misconduct against a student and such conduct clearly fell within the definition of "improper conduct" set forth in Rice).
Appellant asserts that appellate decisions that involve an employee's discharge for "improper conduct" under section 514, including Rice and Board of Education of the School District of Philadelphia, are factually distinguishable from the present matter and involve conduct that is far more egregious than the conduct at issue here. See Bolden v. Chartiers Valley School District, 869 A.2d 1134 (Pa. Cmwlth. 2005) (unintentionally bringing a loaded weapon onto school property and lying about it during an investigation); Barhight (using school district employees and supplies for personal services); Board of Education of the School District of Philadelphia (verbal sexual harassment of a student); DeShields v. Chester Upland School District, 505 A.2d 1080 (Pa. Cmwlth. 1986) (possession of 115 grams of marijuana); School District of Philadelphia v. Puljer, 500 A.2d 905 (Pa. Cmwlth. 1985) (off-duty possession of controlled substances); Rice (making harassing phone calls to a fellow employee).
The Board does not cite the dictionary, but the Board cites Barhight and contends that facts which establish a "breach of trust" or "misuse of power" are sufficient as a matter of law to constitute improper conduct under section 514. In addition, the Board notes that in defining grounds for termination, the phrase used in section 514 actually is "other improper conduct;" the Board asserts that the use of the word "other" indicates that the phrase "improper conduct" equates with incompetency, intemperance, neglect of duty, and violation of school laws, the immediately preceding grounds set forth in section 514. We agree with the Board's assertions, but we conclude that they undermine the Board's argument in this appeal.
In Barhight, the court described the employee's misappropriation of personnel services and supplies as "involving a serious breach of trust and a misuse of power by one with supervisory authority over the employees whose services he used for his own services." Id. at 329.
Appellant further asserts that, as evidenced by language in Barhight, reviewing courts consider "improper conduct" a question of law and give no deference to the agency's determination. However, in Puljer we stated that a school board "has discretion in deciding what conduct is improper for its employees who act as adult models for school children." Id. at 907.
See Barhight, 689 A.2d at 329 ("we hold that Barhight's actions constitute improper conduct within the scope of Section 514 of the Code").
In Puljer, a district employee was arrested at school and charged with possession of a controlled substance. The arrest was based on drugs found during a search of the employee's apartment. The employee was assigned to an accelerated disposition program and placed on six-months non-reporting probation. After a hearing, the school board adopted a hearing officer's recommendation to dismiss the employee. On appeal, the trial court reversed, holding that the language of section 514 was intended to cover only conduct that occurred on or near school property or involved school business or activities. On further appeal, this Court reversed. We stated that a decision limiting the discretion of the school board because of the location or effect of the conduct at issue was unreasonable and inconsistent with this Court's case law. See e.g. Lesley v. Oxford Area School District, 420 A.2d 764 (Pa. Cmwlth. 1980) (teacher's dismissal for shoplifting at a supermarket upheld as immoral conduct). Puljer, 500 A.2d at 907. Thus, we concluded in Puljer that "whether improper conduct takes place on or off school property or whether it affects job performance is irrelevant. The only question presented to the Board was whether [the employee's] possession of controlled substances constituted improper conduct. We hold that it did." Id.
Resolving this question, our consideration of the relevant appellate decisions leads us to conclude that a school board has discretion to determine what conduct is improper for its employees and that this discretion is limited by the language of section 514. We further conclude that, although no specific prohibition of the conduct at issue is required to establish improper conduct in order to support a dismissal under section 514, Bolden, there must be evidence that the conduct is not in accord with established school district standards, and the conduct must be such as to be fairly considered equivalent to incompetency, intemperance, neglect, or violation of school laws.
In this case, the record reveals that, during a Safe Halloween event held at the high school, Appellant took a picture with his cell phone camera of a high school student wearing a "Batgirl" costume after she said not to, and that these acts were not in violation of any prohibitions specifically communicated to Appellant or of any District policies that were known to him. Further, there is no evidence that an employee's taking of pictures of students at school events was generally discouraged.
We emphasize that, on appeal, we neither condone nor condemn Appellant's conduct, as we are not called to do so in undertaking our appellate review. Indeed, we are expressly restricted by both statute and binding precedent to apply the law only to the issues raised by the parties on appeal and only to those findings of fact supported by the record. Having dutifully reviewed the record in accordance with those limitations, we are compelled to conclude that the due process required under section 514 was not provided in this case.
Conclusion
Because a nonprofessional employee is entitled to procedural due process, including notice of the reasons for his removal from employment, the purported grounds for Appellant's discharge are limited to those set forth in the November 21st letter. The letter's vague assertions of "poor judgment regarding student-athlete boundaries" and "inappropriate invasion of student-athlete boundaries" are insufficient to provide the notice required by due process and section 514 of the Code. In addition, because the record reflects that Appellant had no actual or imputed knowledge of Policy 815, an alleged violation of that policy cannot support a termination of his employment. Similarly, because the April 19, 2011 letter does not advise Appellant that the taking of students' photographs is prohibited, his alleged violation of the terms of that letter do not support his termination under section 514.
Section 514 of the Code does not authorize the removal of a non-professional employee for violation of an established policy of the board of school directors. By contrast, section 1122 of the Code authorizes the termination of employees for "valid cause," which includes "persistent and willful violation of or failure to comply with school laws of this Commonwealth (including official directives and established policy of the board of directors) . . . ." 24 P.S. §11-1122. Here, the Board failed to appreciate the difference between sections 514 and 1122 in citing Policy 815. --------
Further, after distilling all of the procedural deficiencies from the school board hearing, including hearsay properly objected to throughout the proceedings and improperly relied upon by the Board, thus denying Appellant the right to confront or cross examine witnesses, we are left with Appellant's statement that he took S.S.'s picture with his cell phone after she said "no" in response to his query to do so. He also stated at the hearing that she said "no" in a joking manner. No witness contradicted Appellant's hearing statement, in part or in whole, although the Board rejected Appellant's testimony at the hearing.
That issue simply cannot be determined from the remnants of the record that may be properly considered in light of the procedural deficiencies noted, in particular the hearsay that permeated the school board hearing. Whether or not this statement establishes improper conduct so as to give rise to a termination of employment depends upon circumstances that were not addressed by the Board's decision. We cannot conclude, based on the procedurally defective record before us, whether Appellant's conduct can be characterized as being equivalent to incompetency, intemperance, neglect, or violation of school laws.
Accordingly, we vacate the trial court's order, and we remand to the trial court with instructions to vacate the Board's decision and to order the Board to reweigh the evidence after discarding the improperly relied on hearsay testimony and the April 2011 letter, and assess whether Appellant's action constituted willful, deliberate misconduct on par with the standards of incompetency, intemperance, neglect, or violation of school duties as applied to a non-professional employee under section 514.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 30th day of April, 2014, the order of the Court of Common Pleas of Berks County (trial court), dated April 5, 2013, is hereby vacated and the matter is remanded to the trial court for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge