Summary
holding that the school board had discretion in deciding what conduct is improper for its employees who act as adult models for school children where school custodian was charged with possession of a controlled substance and received ARD and a non-reporting probation of six months.
Summary of this case from Altemus v. Unemployment Comp. Bd.Opinion
Argued June 4, 1985
October 21, 1985.
Schools — Dismissal of employe — Scope of appellate review — Violation of constitutional rights — Substantial evidence — Error of law — Public School Code of 1949, Act of March 10, 1949, P.L. 30 — Possession of controlled substance — Off-premises misconduct — Improper conduct.
1. Review by the Commonwealth Court of Pennsylvania of school board action, where the lower court takes no additional evidence, is to determine whether the decision of the board violated constitutional rights, was unsupported by substantial evidence or was affected by an error of law. [331]
2. Under provisions of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, a school board is empowered to remove an employe for incompetence, intemperance, neglect of duty, violation of school laws or other improper conduct, and the possession of controlled substances off school premises, as well as on school premises, may properly be found to constitute improper conduct justifying dismissal of the employe. [331]
Argued June 4, 1985, before Judges ROGERS, BARRY and PALLADINO, sitting as a panel of three.
Appeal, No. 1051 C.D. 1983, from the Order of the Court of Common Pleas of Philadelphia County in case of Scott Puljer v. School District of Philadelphia, No. 4406 June Term, 1981.
Custodian terminated by school district. Custodian appealed to the Court of Common Pleas of Philadelphia County. Custodian to be reinstated as of date of dismissal. GELFAND, J. School board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Board decision reinstated.
Eugene F. Brazil, General Counsel, for appellant.
Jack J. Bulkin, for appellee.
The School District of Philadelphia (District) appeals from a decision of the Court of Common Pleas of Philadelphia (trial court) which reversed a decision of the District's Board of Education (Board) dismissing Scott Puljer (Appellee) from his position as Custodian I. For the reasons set forth below, we reverse the trial court and reinstate the dismissal.
Appellee worked as a custodian at the Mayfair School, which is part of the District. On June 18, 1980, Appellee was arrested at the school and charged with the possession of a controlled substance. This arrest was based upon a search of Appellee's apartment during which a number of items were discovered, among them Methamphetamine, a Schedule II controlled substance and Methyprylon, a Schedule III controlled substance. Appellee was assigned to the Accelerated Rehabilitative Disposition (ARD) program and placed on non-reporting probation for six months.
See Section 4 of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P. S. § 780-104.
The District notified Appellee that it was recommending the termination of his employment as a result of the charges brought against him. A hearing was held before the Board's hearing officer who recommended that Appellee be dismissed in accordance with Section 514 of the Public School Code of 1949, because of his possession of a controlled substance. The Board adopted the decision of the hearing officer.
Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 5-514.
On appeal, the trial court did not take any additional evidence. It reversed the decision of the Board, holding that the language in Section 514 was "intended to cover only conduct on or about school property or which pertains to school business or activities." Because Appellee's possession of controlled substances was neither on school property nor affected his conduct as an employee, the trial court ordered Appellee to be reinstated. This appeal followed.
Our scope of review in a local agency appeal where the trial court takes no additional evidence is limited to determining whether the Board's decision violated constitutional rights, was not supported by substantial evidence, or whether the Board committed an error of law. 2 Pa. C. S. § 754.
Section 514 provides that a board of school directors has "the right at any time to remove any of its officers, employes, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct."
We vigorously disagree with the trial court's interpretation of this section. The trial court's holding that improper conduct must occur on or about school property is wholly without foundation in the statutory language. No qualification is attached to the phrase "other improper conduct". The School Board has discretion in deciding what conduct is improper for its employees who act as adult models for school children. To limit this discretion because of the location or effect of the conduct is not reasonable, and is inconsistent with this Court's case law. See, e.g., Lesley v. Oxford Area School District, 54 Pa. Commw. 120, 420 A.2d 764 (1980) (teacher's dismissal for shoplifting at a supermarket upheld as immoral conduct).
We hold 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 Appellee's possession of controlled substances constituted improper conduct. We hold that it did.
The Board found that Appellee was in possession of controlled substances. This finding is amply supported by testimony in the record. This finding supports the Board's dismissal of Appellee for improper conduct. See Warren County School District v. Carlson, 53 Pa. Commw. 568, 418 A.2d 810 (1980).
Having found no error of law, violation of constitutional rights or lack of evidence to support the Board's decision, we reverse the trial court and reinstate the Board's dismissal of Appellee, Scott Puljer.
ORDER
AND NOW, October 21, 1985, the decision of the Court of Common Pleas of Philadelphia, at No. 4406 June Term 1981 is reversed. The decision of the Board of Education of the School District of Philadelphia dismissing Appellee Scott Puljer is reinstated.