Opinion
No. 1663 C.D. 2012
06-18-2013
Richard W. Migliore, J.D., Petitioner v. The School District of Philadelphia, School Reform Commission, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Richard W. Migliore appeals from August 3, 2012, order of the Secretary of Education. The Secretary found that the Philadelphia School District (District) did not demote or constructively discharge Migliore from his assistant principal position, but that he voluntarily retired, and thus he denied Migliore's appeal from the action of the Philadelphia School Reform Commission (SRC). Migliore raises five issues for this Court's review: 1) whether the District's administrative officers demoted Migliore in July 2009 in violation of the mandatory tenure provisions of the Public School Code of 1949 (Code); 2) whether the Code required the SRC and the Secretary to render a determination regarding the charges against Migliore; 3) whether the Secretary properly concluded that Migliore was not constructively discharged; 4) whether Migliore's due process rights were violated; and 5) whether SRC Commissioner Joseph A. Dworetzky's dual responsibilities as hearing officer in the Migliore matter and the Department's legal counsel on matters not involving the District constituted a conflict of interest or an appearance of impropriety, thereby violating Migliore's due process rights. We affirm.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 - 27-202.
Migliore was employed by the District as an assistant principal at Mastbaum Area Vocational Technical School from the 2006/2007 school year through the 2008/2009 school year. Mary Sandra Dean was Mastbaum's principal during that time period. During Migliore's employment, Dean issued several disciplinary "write-ups" against Migliore and held related investigatory conferences with him. On May 29, 2009, Dean issued an unsatisfactory job performance for Migliore and recommended that he be demoted from his assistant principal position. The disciplinary action was sent to Assistant Regional Superintendent for the District's North Region, James Douglass. On June 25, 2009, Douglass held a secondary conference with Migliore on the disciplinary action. On June 29, 2009, Douglass issued a recommendation that Migliore be demoted from his assistant principal position. Lucy Feria, Regional Superintendent for the North Region, also recommended that Migliore be demoted.
Migliore testified that in a conference on June 22, 2009, Dean told him to turn in his keys and to vacate his office, which he did. Migliore's description of this conference is not mentioned in the Secretary's opinion, and it is unclear from the transcript if this is actually the same conference referenced in the opinion as having occurred on June 25, 2009.
On July 23, 2009, the District's Office of Professional Staffing sent an email to Migliore stating that it had been notified of his demotion and that he should contact the Staffing Office to arrange for an appointment to select his new school location. Migliore responded by July 27, 2009 email regarding potential open positions, and indicated that he wanted to make an informed decision. An Assignment Introduction sheet was provided to Migliore, stating that he was assigned from "Mastbaum to non-public as an administrative transfer, special assignment." Reproduced Record (R.R.) at 38a. On July 29, 2009, Migliore emailed the Staffing Office that he did not wish to choose a position at that time because the demotion could not be effective until after an SRC hearing.
By letter dated August 14, 2009, SRC Chairman Robert L. Archie and District Superintendent Arlene C. Ackerman notified Migliore that they would be recommending to the SRC that he be demoted based upon charges of incompetence, insubordination, violation of Commonwealth school laws, and other sufficient cause. The letter informed Migliore that he was entitled to request an SRC hearing, and stated that if a hearing was requested, it would occur on August 25, 2009. By letter dated August 18, 2009, Migliore requested an SRC hearing. On August 21, 2009, the SRC notified Migliore that the hearing would be postponed and rescheduled. On September 2, 2009, the District's Department of Human Resources Retirement Office received a Notification of Retirement/Resignation form from Migliore completed, signed and dated August 31, 2009, reflecting that he was retiring and that his last day of work was June 30, 2009. Migliore was paid through his June 30, 2009 retirement date, and he did not report to work as a teacher thereafter.
Although Migliore had retired, the SRC conducted a hearing on May 25, 2010 before SRC Commissioner Dworetzky. At the hearing, it was agreed that the matters at issue were whether Migliore was demoted, and if so, the merits of the demotion; and, if Migliore was not demoted, whether he was constructively discharged. Commissioner Dworetzky limited testimony on May 25 to the issue of whether a demotion had occurred. By letter dated July 22, 2010, SRC counsel Adrian Moody informed both parties that Commissioner Dworetzky had concluded that Migliore was not demoted and that a hearing needed to be scheduled on the issue of constructive discharge.
Migliore appealed from this letter directly to the Secretary, docketed at Teacher Tenure Appeal No. 02-10. Thereafter, Acting Secretary of Education Thomas E. Gluck (Secretary Gluck), in an August 30, 2010 letter, disclosed to the parties:
Commissioner Dworetzky and his law firm represent the [Department] and the [Secretary] in his official capacity in various legal matters that do not involve [the District] and have nothing to do with teacher tenure matters generally. Notwithstanding this legal representation, I believe that I am able to decide the Petition of Appeal in a fair and unbiased manner. However, any party having concerns in this regard may request a pre-hearing conference with the hearing officer to discuss the matter.R.R. at 113a.
A pre-hearing conference was held with the Department's hearing examiner. By letter dated September 22, 2010, Migliore's counsel stated:
Thank you for your kind consideration during our pre-hearing conference which we had requested after Secretary Gluck's disclosure that SRC Commissioner Dworetzky and his law firm represent the [Department] on some matters not specifically related to the present appeal. We very much appreciate the Secretary's candor in advising of this.R.R. at 114a. On December 21, 2011, Secretary Gluck found that the July 22 letter could not be considered a final appealable action of the SRC. Thus, he granted the District's motion, and dismissed Teacher Tenure Appeal No. 02-10 as premature.
. . . .
I agree that . . . viable alternatives do not seem to exist, and, indeed, the appeal that we have filed is certainly the type of issue that is properly within the Secretary's responsibilities. We trust that his impartiality will not be influenced by that relationship and that he can issue a ruling that is purely based on the law as applied to the facts of this case.
The appeal which we have filed is one which we believe can be decided by an objective analysis of the evidence.
Further, hearings were held before Commissioner Dworetzky on September 14, 2010, September 29, 2010, and January 6, 2011 on the issue of Migliore's constructive discharge. Thereafter, Commissioner Dworetzky recommended that the SRC dismiss the matter because Migliore had not been demoted or constructively discharged. By resolution dated June 13, 2011, the SRC concluded that Migliore retired from the District effective June 30, 2009, and adopted Commissioner Dworetzky's Findings of Fact and Conclusions of Law.
Migliore appealed from the SRC's decision to the Secretary. That appeal was docketed at Teacher Tenure Appeal No. 03-11. After conducting a de novo review, the Secretary, by order dated August 3, 2012, found that Migliore was not demoted or constructively discharged, but rather that he had voluntarily retired. Thus, he denied Migliore's appeal. Migliore appealed to this Court.
Based on the issues raised, the scope of our review is limited to a determination of whether or not the Secretary's adjudication was in accordance with law or whether the petitioner's constitutional rights were violated. We exercise plenary review over these questions.
Migliore first argues that the Secretary erred when he concluded that Migliore had not established that he was demoted.
Migliore had the burden of proving that the action taken against him constituted a demotion. Dep't of Educ. v. Kauffman, 343 A.2d 391 (Pa. Cmwlth. 1975).
The ultimate determination as to whether this [action] was a demotion is a legal conclusion which must be drawn from the underlying factual circumstances. Of course, the Secretary is the ultimate fact-finder in such matters. However, as our Supreme Court has previously noted, such ultimate conclusions -- sometimes called 'ultimate facts' -- are legal conclusions and are always subject to appellate review.Joyce v. Spring-Ford Area Sch. Dist., 600 A.2d 1302, 1305 (Pa. Cmwlth. 1991) (citation and quotation marks omitted).
The Secretary's opinion concluded that:
[a]lthough the administration had recommended that Mr. Migliore be demoted, Mr. Migliore retired before a demotion was effectuated. The SRC had not voted on a demotion prior to Mr. Migliore's retirement and Mr.
Migliore had not received any notification from the SRC of a demotion. Mr. Migliore knew that a hearing was to be scheduled with the SRC regarding the recommended demotion. However, before the hearing was scheduled, Mr. Migliore retired. Thus, Mr. Migliore was not demoted prior to his voluntary retirement.Secretary's Op. at 11 (footnote omitted). Migliore argues that he was demoted in fact when his supervisors removed him from his position and reassigned him. He asserts that the demotion was legally ineffective because the SRC did not hold a hearing prior to his demotion. We agree.
"A demotion is 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). Section 1151 of the Code states:
The salary of any district superintendent, assistant district superintendent or other professional employe in any school district may be increased at any time . . . but 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. That provision applies to demotions of professional employees in salary or in type of position and requires that the process be governed by Section 1127 of the Code.
Section 1127 of the Code describes the necessary process:
Before any professional employe having attained a status of permanent tenure is dismissed by the board of school directors, such board of school directors shall furnish such professional employe with a detailed written statement of the charges upon which his or her proposed dismissal is based and shall conduct a hearing. A written notice signed by the president and attested by the secretary of the board of school directors shall be forwarded by registered mail to the professional employe setting forth the time and place when and where such professional employe will be given an opportunity to be heard either in person or by counsel, or both, before the board of school directors and setting forth a detailed statement of the charges. Such hearing shall not be sooner than ten (10) days nor later than fifteen (15) days after such written notice. At such hearing all testimony offered, including that of complainants and their witnesses, as well as that of the accused professional employe and his or her witnesses, shall be recorded by a competent disinterested public stenographer whose services shall be furnished by the school district at its expense. Any such hearing may be postponed, continued or adjourned.
In Patchel v. Board of School Directors of Wilkinsburg School District, 400 A.2d 229 (Pa. Cmwlth. 1979), this Court recognized that a demotion in fact could occur even before a hearing, although a hearing was required to lawfully effectuate the demotion. In that case, the Court stated:
[I]t is true that a demotion of a professional employee may not become effective until after a hearing is held as required by Section 1151 of the Code. Furthermore, the fact that a school district does not characterize the action as a demotion, and that the professional's salary and title may be unchanged is not dispositive. When a professional employee claims that he has been in effect demoted, it is the Board's duty to conduct a hearing and to determine whether there has in fact been a demotion in either the type of position or in the salary. Because a demotion is relative, the appropriate inquiry must be centered around whether or not there has been a change in authority, prestige or responsibility. In its findings here, the Board failed to resolve the question as to whether or not the petitioner actually had been demoted prior to the Board's hearings. The Secretary concluded, therefore, that the uncontradicted evidence that the petitioner was relieved of his duty . . . [b]efore the hearings, supports the petitioner's contention that a demotion had in fact occurred.Id. at 231 (citations and footnote omitted). Having found that after the demotion in fact the Board properly followed the procedure under the Code, this court reinstated Patchel to his former position as principal up until the date the Board held hearings and passed a resolution to demote him.
As in Patchel, a review of the facts reveals that Migliore met his burden of establishing that he was demoted in fact. There is more than sufficient evidence that the District took action against Migliore effecting a change in his authority, prestige and responsibilities before any hearing by the SRC. Unlike in Patchel, however, we need not inquire whether the District's subsequent procedures were effective to cure the prior improper demotion, because before the SRC could reschedule its hearing Migliore aborted the process by retiring. A similar situation faced this court in Arnold v. Pittsburgh Board of Public Education, 415 A.2d 985 (Pa. Cmwlth. 1980). After receiving two unsatisfactory performance ratings, Arnold, a temporary professional employee, was advised that she had the option of either resigning or being discharged. She submitted her resignation. Thereafter, while working as a substitute teacher, she made repeated requests for reinstatement as a temporary professional employee. Those requests were rejected. Approximately four years after submitting her resignation, Arnold filed a complaint in mandamus against the school board to compel it to grant her a hearing on the unsatisfactory performance ratings. The trial court dismissed her complaint, concluding that since she had voluntarily resigned, she was not entitled to a hearing. On appeal, this Court affirmed the trial court, stating:
The circumstances surrounding the appellant's resignation presented a factual question which was resolved by the court below. It found that she voluntarily resigned in order to avoid the adverse consequences of being discharged; it rejected her testimony that she was induced to resign by misrepresentations on the part of the personnel officer. The testimony of the witnesses was, as the appellant
emphasizes, conflicting, but the fact-finder is the arbiter of credibility. There is substantial evidence in the record to support the court's findings, and we must therefore accept them.Arnold, 415 A.2d at 986-87 (citations omitted; emphasis added).
The appellant's contention that she was in reality discharged is similarly unavailing. Had she indeed been discharged, she clearly would have been entitled to a hearing, but the findings of the court below compel the conclusion that she voluntarily resigned her employment. Having done so she cannot now complain that she did not receive the hearing to which she would have been entitled had she been discharged. In effect, therefore, the appellant waived her right to a hearing on the unsatisfactory-performance ratings and her impending dismissal when she voluntarily resigned.
Migliore attempts to distinguish Arnold, contending that Arnold was not a tenured professional employee, that she resigned without asking for a hearing, that she had unsatisfactory teacher ratings and that it was only after she resigned that she sought to contest the unsatisfactory performance ratings. However, the Court clearly noted that Arnold would have been entitled to a hearing but for her resignation. The resignation resulted in a waiver of her right to a hearing. Similarly, Migliore's retirement, if voluntary, resulted in a waiver of any rights he may have had to a hearing.
Similarly, in Appeal of Wesenberg, 346 Pa. 438, 31 A.2d 151 (1943), Wesenberg, a high school principal, was reassigned by the school board to be the principal of a new proposed junior high school. Wesenberg declined to accept the new assignment contending that it was a demotion. After being warned by the school board that his refusal would be construed as insubordination, he was discharged from his position. He appealed to the trial court which reversed his discharge. The school district appealed to the Pennsylvania Supreme Court. The Wesenberg Court stated:
If the new assignment was a proper one, failure to undertake it constituted a valid ground for his dismissal[.] The amendment dealing with tenure of office . . . provides that 'there shall be no demotion of any professional employe, either in salary or in type of position, without the consent of the said 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 (or Board of Public Education), and an appeal in the same manner as hereinbefore provided in the case of the dismissal of a professional employe.' Appellee did not invoke that remedy and ask for a hearing on the question of demotion. If he had done so and at the same time assumed the new assignment until final disposition of the question, he could have safeguarded his rights under the statute and avoided the risk of dismissal. He chose to refuse to assume any duties as principal of the new high school, although holding himself ready, willing, and able to act as principal of the [existing] High School.Id. at 441, 31 A.2d at 153 (citation omitted; emphasis added).
In the instant matter, Migliore requested a hearing. However, he failed to assume the new assignment to preserve his employment until the hearing was held and the demotion issue was resolved. Instead, he retired from his position. In accordance with Arnold, if his retirement was voluntary, he waived his right to further relief when he terminated his employment.
Notwithstanding his demotion in fact, Migliore was paid as an assistant principal until the date of his retirement, and that retirement was from the position of assistant principal. Therefore, there is no need to order reinstatement up to the date of retirement.
Migliore contends that his retirement was involuntary - that he was constructively discharged. Our Supreme Court has held that:
In the employment discrimination context, the Supreme Court has stated, "Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign?" Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) (citation omitted). "[T]o establish 'constructive discharge,' the plaintiff must . . . show that the abusive working environment became so intolerable that her resignation qualified as a fitting response." Id. at 134.
The [Code] establishes the [Secretary] as the ultimate fact finder in cases of this nature and with this status goes the power to determine the credibility of witnesses, the weight of their testimony and the inferences to be drawn therefrom.... From [the record of the hearing before the
Board] the Secretary proceeds to a decision which to him appears just and proper. In discharging his duty to reach a just and proper order, the Secretary may make findings of fact, with or without taking additional testimony.Belasco v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, 510 Pa. 504, 513-14, 510 A.2d 337, 342 (1986) (citation and quotation marks omitted).
In the instant case, the Secretary considered the facts and concluded:
Based on the documents and testimony provided in this case, a reasonable person in Mr. Migliore's situation would not have felt compelled to resign. Any stress Mr. Migliore felt working at Mastbaum would not have been present in the 2009-2010 school year if he had accepted a teaching position because it would not have been at Mastbaum. Mr. Migliore apparently believed that if he accepted a teaching position it would have amounted to an acceptance that Ms. Dean's charges against him were valid; thus, in Mr. Migliore's mind accepting a teaching position was intolerable. However, I do not accept that argument because Mr. Migliore clearly knew that even if he accepted a teaching position he was still entitled to have a hearing regarding the recommended demotion; thus, there is no basis for his position that accepting a teaching position would have meant that he agreed that Ms. Dean's charges against him were valid. Mr. Migliore knew that he could have reported to work in a teaching position for the 2009-2010 school year and that if a decision regarding the recommended demotion was in his favor, he would have been reinstated to an Assistant Principal position with back pay.
Although Mr. Migliore requested a leave with pay so he could properly prepare for his defense, the District was under no obligation to grant his request. Mr. Migliore was not required to defend himself; he made that choice. In addition, after Mr. Migliore retired, he hired counsel to provide his defense. Mr. Migliore's decision to retire was his voluntary decision. Mr. Migliore testified that family considerations contributed to his retirement. In addition, Mr. Migliore repeatedly testified that he retired to avoid the loss of retirement funds in the event a ruling about the recommended demotion was not in his favor. In other words, Mr. Migliore wanted to challenge the recommended
demotion by seeking a hearing before the SRC; but he only wanted to be bound by the decision of the SRC on his recommended demotion if the decision was in his favor. Mr. Migliore, by retiring, did not want to have to live with the consequences of less retirement money if the decision about the recommended demotion was not decided in his favor.Secretary's Op. at 19-20.
Thus, the Secretary found that a reasonable person in Migliore's situation would not have been compelled to resign from his position. As fact-finder, the Secretary was entitled to reach that conclusion so long as it was based upon substantial evidence. Belasco. Because there is substantial evidence to support the Secretary's conclusion, the findings may not be disturbed. Given the Secretary's finding that Migliore was not constructively discharged and had instead voluntarily resigned, he was not entitled to a determination regarding the charges against him. Therefore, this Court concludes that the Secretary properly denied Migliore's appeal on the basis that Migliore waived his right to further relief when he voluntarily retired from his position as assistant principal.
Migliore next asserts that he had a right to continued employment as an assistant principal, and that the District violated his due process rights by forcing him to accept a teaching position as a prerequisite to being given a hearing to contest the charges against him. We disagree.
"It is well settled that the essential elements of due process in an administrative proceeding are notice and an opportunity to be heard." McFadden v. Unemployment Comp. Bd. of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). Migliore points to the Pennsylvania Supreme Court case of Smith v. School District of the Township of Darby, 388 Pa. 301, 130 A.2d 661 (1957), for the proposition that it is improper for a school board to arbitrarily conclude that an employee was not demoted and deny a hearing on that basis. However, in Smith, the school board declined to hold a hearing for the employee. Here, Migliore was offered a hearing and, rather than utilizing the established hearing process, voluntarily terminated his employment before a hearing could be held. Further, even if Migliore's retirement had not resulted in a waiver of his rights, he was ultimately afforded a hearing at which he was represented by counsel. Thus, Migliore was afforded due process.
As noted by the Secretary, if Migliore had not retired and had prevailed at the hearing, he would have been entitled to reinstatement and back pay. --------
Finally, Migliore argues that Commissioner Dworetzky's role presiding over the hearing was tainted by his simultaneous representation of the Department and Secretary, and gave the appearance and threat of bias to the proceedings. In response, the District contends that Migliore waived his argument because he failed to raise the issue on appeal to the Secretary. We agree. This Court has held that where a party "fail[s] to raise [an] issue before the Secretary, it may not be considered for the first time on judicial review and we must consider that issue as waived." Ward v. Bd. of Educ., 496 A.2d 1352, 1356 (Pa. Cmwlth. 1985). It is clear from this record that although concerns were raised at the second hearing before Commissioner Dworetzky regarding his role as counsel for the Department, the matter was not raised on the appeal to the Secretary now before the court. Indeed, in Teacher Tenure Appeal No. 02-10 (the first appeal in this matter that was dismissed as premature), Migliore's counsel expressed confidence that the Acting Secretary of Education could impartially decide that appeal despite concerns regarding Commissioner Dworetzky's potential conflict. See R.R. at 114a. Accordingly, Migliore's argument is waived.
For all of the above reasons, the order of the Secretary is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
ORDER
AND NOW, this 18th day of June, 2013, the Office of the Secretary of the Department of Education's August 3, 2012 order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
24 P.S. § 11-1127. Although the August 14, 2009 letter provided a detailed discussion of Migliore's alleged misconduct upon which the demotion recommendation was to be based, the letter did not satisfy the technical requirements of Section 1127 of the Code because it was not issued by the SRC, but rather by SRC Chairman Archie and District Superintendent Ackerman, and it informed Migliore that the demotion would be recommended to the SRC.