Opinion
No. 1418 C.D. 2011
05-02-2012
Leroy McClain, Appellant v. Harrisburg School District
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE OLER
Leroy McClain (McClain) appeals from an order of the Court of Common Pleas of Dauphin County (Common Pleas) affirming McClain's furlough by the Harrisburg School District (District).
The history of this matter appears clear based on the trial court's opinion and the parties' arguments, and we shall not reiterate that history at the outset, but rather proceed to McClain's first issue on appeal.
Agency Record
McClain argues that Common Pleas erred in failing to review the certified record pursuant to 2 Pa.C.S. §754. That section provides as follows:
§754. Disposition of Appeal
(a) Incomplete record. - In the event a full and complete record of proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.
(b) Complete record. - In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not support by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. §706 (relating to disposition of appeals) (Emphasis added).
The District counters that any error in this regard is harmless inasmuch as Common Pleas reviewed the "entire record" in the form of transcripts, exhibits and adjudication provided by McClain and attached to his request for reconsideration of Common Pleas' order.
Initially, we note that the purpose of 2 Pa.C.S. §754 is to provide a full and complete record of the agency proceedings on appeal to both Common Pleas and to the appellate courts in the event of a further appeal. Absent a record, this Court cannot review the matter, as our scope of review is limited to whether the school district committed an error of law, violated appellant's constitutional rights, or whether findings of fact necessary to support its adjudication are not supported by substantial evidence. Monaghan v, Board of School Directors of Reading School District, 618 A.2d 1239 (Pa. Cmwlth. 1992).
We are constrained to agree with the District that McClain's act of providing what appears to be the entire record to Common Pleas as part of his motion for reconsideration, coupled with the District's apparent concurrence that the record provided is complete and accurate, is sufficient to allow this Court to perform its appellate role. Although a certified record in the traditional sense is not before us, for the sake of judicial economy, we conclude that the remaining issues raised by McClain may be reviewed by this Court based on the uncontested "record" before us, which consists of transcripts, exhibits and the District's adjudication, and which will be cited from McClain's Reproduced Record (R.R.).
We also note that McClain requests this Court to review the "record" to determine whether there is substantial evidence to support the furlough. McClain's brief at 15, n.5.
Background
McClain was hired as an assistant principal at the William Penn Building of the Harrisburg School District (District) in August, 2008 and received emergency certification for that position. R.R. at 48a. McClain was furloughed on June 30, 2010 with approximately 200 other district employees, including some 23 to 25 administrators and over 100 teachers. R.R. at 15a-16a.
McClain contested the furlough, and a hearing was held before a hearing examiner on September 23, 2010. The hearing examiner initially concluded that McClain was not subject to Sections 1124 or 1125.1 of the Public School Code (Code) as he was not a permanently certificated administrator. Hearing Examiner adjudication, Conclusions of Law Nos. 3 and 4, R.R. at 93a-94a.
Act of March 10, 1949, P.L. 30, as amended, 25 P.S. §§11-1124 and 11-1125.1. Section 1125.1 was added by the Act of November 20, 1979, P.L. 465, as amended.
McClain eventually received his permanent certification on July 20, 2010, retroactive to July 1, 2010.
Having found that McClain was not entitled to the protections of Sections 1124 or 1125.1, the hearing officer made few findings of fact or conclusions of law as to the merits. The hearing examiner did find, however, that enrollment had declined by 9% over 5 years (R.R. at 92a, Finding of Fact No.15.1) and that the District was forced to consider staffing cuts "as the result of decline in enrollment and other financial issues." Id., Finding of Fact No. 15.3. The hearing examiner also found that the District had closed two buildings, including the William Penn Building where McCain served as assistant principal. Id. at 90a, Finding of Fact No. 5. Finally, the hearing examiner concluded that there was sufficient evidence to conclude that the termination at issue was made "due to a decline in student enrollment, serious budgetary shortfalls and other valid reasons". Id. at 93a, Conclusion of Law No. 2.
McClain appealed to Common Pleas, which affirmed the hearing officer. Common Pleas disagreed with the hearing officer's conclusion that McClain was not a "professional employee" because of his emergency certification. Common Pleas instead concluded that McClain was a "temporary professional employee" entitled to protection under Section 1124 of the Code.
The District does not raise the trial court's disposition of the Section 1124 issue in its brief and, accordingly, it is not before this Court for review.
Although Common Pleas disagreed with the hearing examiner's conclusion that McClain was not entitled to the protections of Section 1124 and 1125.1, it nonetheless denied McClain's appeal. Common Pleas found that substantial evidence existed to support the hearing examiner's finding of a substantial decrease in enrollment. Common Pleas additionally concluded that substantial evidence supported the hearing examiner's finding of a consolidation of schools, and that the hearing examiner had properly considered McClain's emergency certificated status.
Section 1124 provides an exclusive list of reasons for suspension or furlough of tenured professionals. Hritz v. Laurel Highlands School District, 648 A.2d 108 (Pa. Cmwlth.), petition for allowance of appeal denied, 540 Pa. 632, 658 A.2d 797 (1994). These reasons include a substantial decrease in pupil enrollment in the district and consolidation of schools when such consolidation makes it unnecessary to retain the full complement of professional employees. The District's notice of suspension to McClain dated July 13, 2010 cited as reasons "economy and fiscal hardship, particularly including substantial decrease in pupil enrollment in the School District." R.R. at 79a.
McClain's Emergency Certificated Status
McClain argues that Common Pleas erred in considering his emergency certificated status, which the parties and Common Pleas refer to as "Certification Staffing Policies and Guidelines 13" (CSPG 13). This argument is a cogent one. The hearing examiner concluded that McClain's emergency certificated status removed him from the protections of Sections 1124 and 1125.1 of the School Code. Common Pleas disagreed with that analysis, but nonetheless found that McClain's emergency certificated status was a proper consideration in his furlough. As noted earlier, Section 1124 of the School Code contains an exclusive list of reasons for suspension or furlough of professional employees. The status of possessing an emergency certificate is not listed in Section 1124. We also agree with McClain that CSPG 13, by its very terms, in inapplicable here.
CSPG 13 appears to be a document promulgated by the Department of Education expressing staffing policies and guidelines. While the document was discussed before the hearing examiner, the document does not appear to have been introduced into evidence at the hearing, and the parties appear to assume, without discussion, that it is a binding regulation. R.R. at 8a-10a; 27a-30a. --------
CSPG 13 provides that "in the event of a permanent opening (vacant position), the school entity must continue to make every effort to fill the vacancy with a fully and properly certificated professional employee . . . ." R.R. at 169a. Here, the question is whether McClain's furlough was proper for one of the reasons expressed in Section 1124, not whether McClain was or should have been considered for a permanent opening in the district.
Substantial Evidence of Decrease in Enrollment
Substantial decrease in student enrollment is a valid reason for the furlough of a professional employee pursuant to Section 1124. Both the hearing examiner and Common Pleas found substantial evidence of record to support a finding of a substantial decline. McClain now asserts that no such substantial evidence can be found in the record.
"Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept to support a conclusion of law." Miller v. Pennsylvania Board of Probation and Parole, 522 A.2d 720, 721 (Pa. Cmwlth. 1987).
The only witness for the School District at the hearing was Mark Holman, who was identified as the Director of Human Resources of the Harrisburg School District. R.R. at 5a-6a. Mr. Holman testified that the District had experienced "an approximate 9 percent decrease in enrollment." R.R. at 10a. On cross-examination, Mr. Holman reiterated the "9 percent decrease," but admitted that he did not know how the decrease was calculated. R.R. at 37a. Mr. Holman further admitted that he could not testify as to the actual numbers regarding enrollment, nor as to whether, if shown the enrollment numbers, would be able to confirm that the numbers were accurate. R.R. at 39a.
This Court has held that there are two means by which a school district can prove substantial decrease in enrollment sufficient to justify a suspension or furlough. The district may present evidence of a general, cumulative enrollment decline over a reasonably justifiable period of time or it may present evidence of a decrease from one year to the next that is so prominent as to not require inclusion of statistics of additional years. Newell v. Wilkes-Barre Area Vocational Technical School, 670 A.2d 1190 (Pa. Cmwlth. 1996); Colonial Education Association v. Colonial School District, 645 A.2d 336 (Pa. Cmwlth.), petition for allowance of appeal denied, 539 Pa. 696, 653 A.2d 1234 (1994). Here, the hearing officer found that there was a 9% decrease over a five-year period. Finding of Fact No. 15.1, R.R. at 92a. Common Pleas also concluded that the district had experienced a 9% decrease over a 5-year period. Common Pleas opinion at 4. Our careful review of the transcript, however, fails to reveal the delineation of any period of time over which the 9% decrease is purported to have occurred. Rather, the sole evidence is Mr. Holman's statement that a 9% decrease had occurred, coupled with his admission that he did not know how that decrease had been calculated and could not testify as to actual enrollment numbers. Accordingly, there is at least arguable merit to the proposition that substantial evidence does not exist in the record to support a finding that a substantial decrease in enrollment had occurred.
Consolidation of Schools
Finally, McClain argues that the trial court's finding that the furlough was proper based on a consolidation of schools is also not supported by substantial evidence. The hearing examiner found that two buildings, including the William Penn building, would be closed by the district. Finding of Fact No. 5, R.R. at 90a. Common Pleas similarly concluded that the closure of the William Penn Building constituted a consolidation of schools. Common Pleas opinion at 5.
McClain argues that because the sole testimony relating to the closure of William Penn cited "budgetary reasons," which themselves are insufficient to justify the furlough of a professional employee, there is no substantial evidence upon which to conclude that a consolidation occurred. We do not agree.
The evidence of record relating to the closure of William Penn, although scant, establishes that the district closed Steele Elementary School and the William Penn facility. R.R. at 11a. We have held that "consolidation" occurs when schools are brought together in the same building. Bricillo v. Duquesne City School District, 668 A.2d 629 (Pa. Cmwlth. 1995). Section 1124 allows for a furlough or suspension caused by consolidation of schools, "when such consolidation makes it unnecessary to retain the full staff of professional employees."
Mr. Holman testified that "there was a meeting with all of the district administrators where Dr. Utley laid out the district's plan for reduction in staff. Included in that presentation was the reduction of school administrators." R.R. at 14a. Mr. Holman further testified that such reduction was due to budget concerns. R.R. at 15a-16a.
While general budgetary concerns are not a valid reason for suspension of a professional employee pursuant to Section 1124, consolidation of a school that makes it unnecessary to retain the full staff of professional employees is a valid reason. Here, substantial evidence of record supports the conclusion that the closure of the William Penn facility, along with a reduction in school administrators, constitutes a "consolidation" as contemplated by Section 1124. The fact that budget concerns may, and probably did, underlie such consolidation is not dispositive or even relevant pursuant to the statutory framework. See Bednar v. Butler Area School District, 15 Pa. D. & C. 3d 555 (1979), aff'd, 410 A.2d 922 (Pa. Cmwlth. 1980) (finances and economy may be motivating and controlling factors in suspension if any of the causes set forth in section 1124 is present).
Accordingly, the order of the Court of Common Pleas of Dauphin County is affirmed.
/s/_________
J. Wesley Oler, Jr., Senior Judge
ORDER
AND NOW, May 2, 2012, the order of the Court of Common Pleas of Dauphin County is affirmed.
/s/_________
J. Wesley Oler, Jr., Senior Judge