Opinion
C.A. No. S 10A-10-002.
Submitted: January 6, 2011.
Decided: April 11, 2011.
On Appeal from the Board of Education of the Sussex Technical School District: REVERSED.
Kathleen M. Jennings, Esquire, Phillips, Goldman Spence, P.A., Wilmington, Delaware.
David H. Williams, Esquire, James H. McMackin, III, Esquire, Allyson M. Britton, Esquire, Morris James LLP, Wilmington, Delaware.
Dear Counsel,
Pending before the Court is Rosalind DeLuca's appeal from the September 27, 2010, decision and order of the Sussex Technical School District Board of Education ("the Board") terminating Ms. DeLuca's employment. For the reasons stated herein, that decision is reversed.
NATURE AND STAGE OF THE PROCEEDINGS
On April 20, 2010, the Sussex Technical School District ("the District") notified Ms. DeLu ca that the District intended to terminate her, pursuant to 14 Del. C. § 1411, due to reduction in the number of teachers required as a result of decreased enrollment. Ms. DeLuca requested a hearing as provided by 14 Del. C. § 1413. That hearing was held on August 9, 2010, and the hearing officer subsequently recommended the District terminate Ms. DeLuca due to decreased enrollment. On September 27, 2010, the District terminated Ms. DeLuca. Ms. DeLuca filed a timely appeal in this Court.
STATEMENT OF FACTS
Ms. DeLuca graduated from East Stroudsburg University, with certifications in elementary education and theater. She is licensed in the areas of Early Childhood Development, Early Childhood Special Education, Child Development Specialist, Elementary K to 6, and Technical and Industrial. Ms. DeLuca was employed by the District as a teacher in Children's Education and Services ("Child Ed") for nine years when she was notified in April of 2010 that she would be terminated. Specifically, Ms. DeLuca was employed as a co-teacher in Child Ed at Sussex Technical School ("Sussex Tech"). Sussex Tech is a technical high school that serves all of Sussex County, Delaware. In addition to core curriculum classes, Sussex Tech offers technical training. Incoming freshmen choose six out of the fourteen technical majors offered at Sussex Tech to explore. As a freshman, a student spends four-and-a-half weeks in each of the six areas selected. The student then decides upon a major in February or March of his or her freshman year. The balance of the freshman year is spent in the student's chosen major.
Ms. DeLuca and another teacher split the responsibility of teaching freshmen, sophomores, juniors and seniors in Child Ed. The students spend time learning core skills in the classroom and then practice using these skills in the day care center located on the premises. At any given time, the students were split between the two locations, i.e., the classroom and the day care center. Ms. DeLuca generally oversaw the students at work in the day care center, filling out observation reports on the students and overseeing and guiding their performance.
The District makes staffing decisions for the upcoming school year in the beginning of April. In so doing, the District administrators review data on the number of students who have chosen to major in each technical area. The data is collected in March of each year. The ninth grade data represents the incoming tenth grade class, etc. The data concerning the outgoing senior students is not considered in making staffing determinations. Incoming freshmen select six majors to explore and the District reviews this data as well. The resulting compilation of student interest in particular areas is then used for staffing determinations for the following school year.
There is no data comparing the areas the students choose to explore and the major they ultimately select.
The District submitted to the hearing officer information regarding historical interest in Child Ed To reiterate, this information is collected in March of the preceding school year for the following year, so the information for the 2005-2006 school year was collected in March of 2005. The following data is in evidence:
School Year 2005-2006 2006-2007 2007-2008 2008-2009 2009-2010 2010-2011 Child Ed Enrollment (Grades 9- 89 110 106 105 102 73 12; Grade 9 including those who have just selected Child Ed as a major in February or March) 9th Grade Initial Choices N/A N/A N/A N/A N/A 160 9th Grade Actual Child Ed 20 31 29 30 18 N/A Enrollment Total 9th Grade Population 305 344 329 329 347 N/AThe number 73 in the 2010-2011 column does not include the number of incoming freshmen who might choose Child Ed as a major: it is the number of total enrollment from the 2009-2010 school year less the number of graduating seniors. The figure reflecting total enrollment for the 2010-2011 would not become final until the data was collected in March of 2011. The data for the 2010-2011 school year also reflects that 160 incoming freshmen elected to explore Child Ed. Information regarding the number of incoming freshmen who chose to explore Child Ed as a major for previous years was not presented at the hearing.
Patrick Savini, the District Superintendent, testified that there was an overall increase in enrollment for the District but a projected decrease in enrollment for Child Ed. Dr. Savini also testified that there was a need for an additional teacher in the technical area of Athletic Health Care ("AHC") due to increased enrollment. The District intended to use the funds available by terminating Ms. DeLuca to hire a new teacher for AHC without increasing the District's budget.
Ms. DeLuca was sent notice of her termination on April 20, 2010 ("Notice").
DISCUSSION Standard of Review
This Court reviews the Board's decision pursuant to 14 Del. C. § 1414, which states, in pertinent part: "The Court shall decide all relevant questions of law and all other matters involved, and shall sustain any board action, finding and conclusions supported by substantial evidence." Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is the responsibility of the Board, as the fact-finder, to weigh the evidence, determine credibility of witnesses, resolve issues of fact and to draw reasonable conclusions and inferences therefrom. If substantial and credible evidence was presented to support the charges and there was a fair administrative hearing, the Court cannot substitute its judgment for the judgment of the school authorities. Questions of law are reviewed de novo.
Squire v. Board of Educ. of the Red Clay Consol. Sch. Dist., 2006 WL 3190337, at *2 (Del.) (citation omitted).
Atkinson v. Sussex County Vocational Tech. Sch. Dist., 1997 WL 127976, at * 7 (Del. Super.).
Id.
14 Del. C. § 1414.
Merits
Ms. DeLuca raises two arguments on appeal. First, Ms. DeLuca contends the hearing officer erred as a matter of law because he applied an incorrect standard when finding that Child Ed had a reduction in enrollment sufficient to require termination under 14 Del. C. § 1411. In the alternative, Ms. Deluca asserts the record lacks substantial evidence to support the finding that Child Ed suffered a decrease in enrollment sufficient to warrant the termination of Ms. DeLuca. Because I agree with Ms. DeLuca that the record lacks substantial evidence to support the finding that there was a decrease in enrollment sufficient to require the termination of Ms. DeLuca, I reverse.A. The Notice was insufficient to put Ms. DeLuca on notice that a reason for her termination was a decrease in educational services.
The District argued before the hearing officer that the evidence would show that a decrease in the level of educational services provided in the Child Ed program.
The hearing officer concluded as a matter of law:
The notice of termination was not defective because it did not state that the reduction in force resulted from a decrease in educational services. A reduction in force resulting from decreased enrollment amounts to a decrease in educational services even if the course or program continues to be taught after the reduction.
In essence, the hearing officer determined that a decrease in program enrollment necessarily results in a decrease in education services. The hearing officer appears to have so determined in order to take into account Dr. Savini's testimony as to the need for an additional instructor in the AHC program. In fact, much of the testimony of Dr. Savini's testimony concerned the enrollment in the Child Ed program as compared to the enrollment in the AHC program. I find the hearing officer erred as a matter of law in concluding that the Notice was sufficient to put Ms. DeLuca on notice that the reason for her termination was a decrease in educational services.
The Tenure Teacher Act ("the Act") applies. Section 1411 of the Act provides:
14 Del. C. § 1401, et seq.
Termination at the end of the school year shall be for 1 or more of the following reasons: Immorality, misconduct in office, incompetency, disloyalty, neglect of duty, wilful and persistent insubordination, a reduction in the number of teachers required as a result of decreased enrollment or a decrease in education services. The board shall have power to suspend any teacher pending a hearing if the situation warrants such action.
The Notice reads, in pertinent part:
This letter is to notify you that the Board of Education of the Sussex Technical School District intends to terminate your services as a teacher at the end of the 2009-2010 school year pursuant to Chapter 14 of Title 14 of the Delaware Code due to reduction in force as a result of decreased enrollment in the Children's Education technical area. For this reason, at its April 19, 2010 meeting the Board exercised its right to send you notice of its intention to terminate your services prior to the May 15 deadline for providing such notice.
Letter from Patrick Savini to Ms. DeLuca, dated April 20, 2010 (emphasis added).
The Board is restricted to pursuing the rationale for termination set forth in the Notice. Otherwise, the purpose of providing notice in the first place is thwarted. The District and the Board (collectively, "Appellees") argue the Notice substantially complied with 14 Del. C. § 1411 and Delaware case law holds that substantial compliance therewith is sufficient. The cases cited by Appellees, however, are distinguishable. The Delaware Supreme Court has commented on the notice requirement contained in the Act thusly:
See Board of Pub. Educ. in Wilmington v. Delaney, 155 A.2d 51 (Del. 1959); Brumbley v. Board of Educ. of the Polytech Sch. Dist., 1998 WL 283378 (Del. Super.).
We are mindful of the fact that teacher-tenure acts are intended to furnish protection to the public school teacher and that their provisions in respect of dismissal must be substantially complied with. But substantial compliance is enough. What is the underlying purpose of our statute? Plainly, to accord to the teacher the right to a notice if his services are intended to be terminated, and the right to a hearing if he is unwilling to accept the intention to terminate as final.
Delaney, 155 A.2d at 54-55.
Section 1410 requires three things: (1) the Board mail written notice of intent to terminate; (2) the notice must state the reasons for the teacher's termination; and (3) the notice must include a copy of the Act. In Brumbley v. Board of Education of the Polytech School District, the Board included only a portion of the Act, specifically the portion that informed the affected teacher that she had a right to a hearing on the Board's intention to terminate. The Superior Court observed that the teacher subsequently (a) learned that she had not been given a complete copy of the Act (and presumably therefore obtained one) and (b) filed a timely request for a hearing. Therefore, the teacher was not prejudiced by the Board's failure to include a copy of the entire Act. In Delaney, the Delaware Supreme Court concluded the language of the notice was sufficient to put the affected teacher on notice that the Board intended to terminate him because of decreased enrollment even though the notice did not contain the words "decreased enrollment." Because Delaney did not challenge the notice but acted upon it, the Supreme Court concluded he had waived whatever right to object he had. The case at bar is clearly distinguishable from both of these cases.
Brumbley, 1998 WL 283378, at *1.
Teacher tenure acts are designed to protect the rights of tenured teachers and have been generally strictly construed against school boards. Moreover, "[i]t is clearly established that tenured teachers have a constitutional interest in their continued employment." Ms. DeLuca came to the hearing prepared to fight the Board's intention to terminate with evidence and argument that enrollment in Child Ed had not decreased in a manner that required her termination. As a matter of law, she was not on notice that she need to counter the District's position that her termination was required because Sussex Tech planned to scale back its Child Ed services due to an increase in enrollment in a different technical area. The statutory language requires notice of the reasons for termination to avoid prejudice to the tenured teacher. The inability to prepare for a meaningful hearing on the reason for her termination due to the omission of the reason in the Notice resulted in prejudice to Ms. DeLuca. The Board improperly relied upon the argument that Ms. DeLuca's termination was required as a result of a decrease in education services.
New Castle County v. Board of Educ. of the New Castle County Vocational Tech. Sch. Dist., 1986 WL 9923, at *3 (Del. Super.).
Id. (citing Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
New Castle County, 1986 WL 9923, at *3.
B. The record lacks substantial evidence to support the hearing officer's finding that there has been a "substantial decrease" in the number of children enrolled in Child Ed
The stated reason for the Board's decision to terminate Ms. DeLuca was a decrease in Child Ed enrollment. The hearing officer made several findings of fact. Among those findings is the finding, "There has been a substantial decrease in the number of students enrolled in the Child Ed program." Much of the testimony before the hearing officer focused on enrollment in the Child Ed program as compared to enrollment in the Athletic Health Care program. Any evidence concerning the Athletic Health Care program is irrelevant to the decision of whether enrollment in the Child Ed program decreased, the basis for Ms. DeLuca's termination per the Notice. The Court reviews the Board's findings with this fact in mind.
The Act provides, in pertinent part, "Termination . . . shall be for 1 or more of the following reasons: Immorality, misconduct in office, incompetency, disloyalty, neglect of duty, willful and persistent insubordination, a reduction in the number of teachers required as a result of decreased enrollment or a decrease in education services." Ms. DeLuca urges the Court to adopt Pennsylvania's standard, which is to require a "substantial" decrease in enrollment before termination is appropriate. I decline to do so. However, I conclude the use of the word "require" in the 14 Del. C. § 1411 means the Board must find something more than a trivial decrease in enrollment to justify the termination of Ms. DeLuca. In interpreting statutory terms, the Court "must give them a reasonable and sensible meaning in light of their intent and purpose." As noted, supra, the purpose of the Act is to protect the rights of teachers and, to do so, it is generally strictly construed.
14 Del. C. § 1411 (emphasis added).
Angstadt v. Red Clay Consol. Sch. Dist., 4 A.3d 382, 390 (Del. 2010) (citation omitted).
New Castle County, 1986 WL 9923, at *3.
In this case, the only solid numbers presented reflect a decline in enrollment in Child Ed from 105 students in the 2008-2009 school year to 102 students in the 2009-2010 school year. There is evidence that the rising junior class in March of 2010 had 30 students while the rising sophomore class contained only 18. However, there is no evidence that this one-year decline in enrollment was a "trend." Nor is there a projection as to how the initial exploratory choices made by the incoming freshmen might pan out and influence the overall enrollment numbers. The evidence presented was not sufficient to sustain the hearing officer's finding of fact that a "substantial" decrease in enrollment had been shown.
C. The record lacks substantial evidence to show that Ms. DeLuca's termination was required due to a decrease in education services.
Assuming, arguendo, that the Notice was sufficient to place Ms. DeLuca on notice that she was being terminated due to a decrease in education services, the record is devoid of any evidence to support this argument. The testimony at the hearing below focused on the District's attempt to deal with an increase in enrollment in the AHC technical area, an area that had previously been serviced by only one teacher. Dr. Savini testified matter-of-factly that the District was attempting to move teachers around in a manner that would avoid an additional expenditure of money. There was no evidence presented that, absent this desire to hire a teacher in another area, the Child Ed program would be run differently: that is, the program would continue to have the same number of classes and the classes would continue to consist of both lecture and work at the onsite daycare center. While the Court sympathizes with the District's attempt to save money while handling the increase in overall student enrollment and the evolving interests of the collective student body, Ms. DeLuca's termination was simply not required due to a decrease in education services in the Child Ed department.
CONCLUSION
For the reasons stated herein, the Board's decision to terminate Ms. DeLuca is REVERSED.IT IS SO ORDERED.