         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph P. Moffitt,                                   :
                      Petitioner                     :
                                                     :
               v.                                    : No. 258 M.D. 2017
                                                     : Argued: June 7, 2018
Tunkhannock Area School District                     :
and the Tunkhannock Area School                      :
District Board of School Directors,                  :
                   Respondents                       :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                                FILED: August 13, 2018

               Before this Court is the Petition for Review filed by Joseph P. Moffitt
(Moffitt) from the May 9, 2017 order of the Pennsylvania Secretary of Education
(Secretary) denying his appeal from the decision of the Tunkhannock Area School
District (School District) and the Tunkhannock Area School District Board of
School Directors (Board) (collectively, the Appellees) to terminate his employment.1
Moffitt was an employee of the School District when he was arrested in June 2010
for driving under the influence (DUI); his criminal charge was resolved via entry
into an accelerated rehabilitative disposition program in Wyoming County.


1
  Moffitt filed his Petition for Review in both this Court’s original and appellate jurisdiction.
Appellees filed preliminary objections, seeking dismissal only of the original jurisdiction counts.
Appellees argued that this Court lacked jurisdiction over Moffitt’s original jurisdiction claims -
seeking declaratory relief, mandamus, and injunctive relief – because such action would not
involve any Commonwealth respondents. See Section 761(a)(1) of the Judicial Code, 42 Pa. C.S.
§ 761(a)(1). By order dated August 29, 2017, this Court sustained the preliminary objections and
dismissed the first three counts of Moffitt’s Petition for Review.
(Reproduced Record (R.R.) at 249a-251a.) In April 2014, Moffitt was arrested again
for DUI and pled guilty in October 2015; in addition to the suspension of his driver’s
license for twelve months, he received 90 days of house arrest, fines, and probation
for a maximum of five years. (R.R. at 252a-258a.) At the time he committed both
offenses, Moffitt served as the principal of two elementary schools, Evans Falls
Elementary School and the Mill City Elementary School, located seven miles apart.
(Opinion and Order of Secretary, Findings of Fact (F.F.) ¶ 2, R.R. at 434a-435a.)
On February 11, 2016, the School District afforded Moffitt a pre-disciplinary
hearing, at which he was represented by counsel; the hearing was conducted by the
Acting School District Superintendent. (Id., F.F. ¶¶ 9-10, R.R. at 435a-436a.) By
letter dated March 11, 2016, the Board: (a) notified Moffitt that the School District
had recommended his dismissal from employment; (b) provided Moffitt with a
written statement of the charges that served as the basis of the recommended
dismissal; and (c) advised Moffitt that an evidentiary hearing would be held to
determine whether he would be dismissed. (R.R. at 5a.) Moffitt was suspended
without pay as of March 14, 2016 pending official action by the School Board.
             Evidentiary hearings took place before the Board on May 26 and June
9, 2016. (May 26, 2016 Hearing Transcript, R.R. at 9a-26a; June 9, 2016 Hearing
Transcript, R.R. at 27a-184a.) Additional testimony was taken via depositions in
July 2016. (Deposition Transcripts, R.R. at 211a-247a.) During the evidentiary
hearings and via deposition, a number of witnesses testified in support of the School
District’s position including the Acting Superintendent, who testified that he
believed the two DUI offenses caused irreparable damage to Moffitt’s reputation and
ability to lead the two schools; that his behavior was contrary to the School District’s
attempts to discourage students from drinking and driving; and that allowing him to
return to his position would send mixed messages to School District students. (June
                                           2
9, 2016 Hearing Transcript, R.R. at 49a-86a.) It was stipulated that the Assistant
Superintendent and the newly-appointed Superintendent would provide substantially
similar testimony to that of the Acting Superintendent. (Id., R.R. at 84a-86a.) A
School District teacher and resident testified that she believed Moffitt’s two DUI
offenses constituted immorality, and expressed her thoughts concerning the bad
example his conduct has set for students. (Id., R.R. at 86a-107a.) The former
Educational Services Program Director for the School District, now serving as acting
principal of the two elementary schools where Moffitt had been principal, testified
that as a School District educator and resident, she believed Moffitt’s actions
constituted immorality because they set a bad example for School District students
and he could not serve as an effective role model. (Id., R.R. at 108a-131a.) A School
District parent testified that Moffitt’s actions constituted immorality because they
set a bad example for students regarding responsibility, character and integrity. (Id.,
R.R. at 131a-145a.) A School District middle school principal testified that anyone
who has had two DUIs in a principal position could not be a good role model.
(Deposition Transcripts, R.R. at 211a-230a.)        Another School District parent
testified by deposition that Moffitt’s actions were unacceptable and rendered him
unable to be a good role model – and that his actions went beyond impacting the
children and their future choices, and impacted the morale of the school. (Id., R.R.
at 236a-247a.)
             The Board voted at its September 8, 2016 public meeting to dismiss
Moffitt from School District employment, and so notified him by letter dated
September 12, 2016. By letter dated September 27, 2016, the Board’s hearing officer
forwarded Moffitt an Adjudication that provided factual analysis, discussion of legal
issues, and reasons for the termination decision. (Adjudication, R.R. at 329a-340a.)
On October 11, 2016, Moffitt appealed the School Board’s Adjudication to the
                                          3
Secretary and on December 16, 2016, a hearing was held before a Hearing Officer
appointed by the Secretary. On May 9, 2017, the Secretary issued an order denying
Moffitt’s appeal and affirming the decision of the School District to terminate his
employment. (Order, R.R. at 446a.) The Secretary found that the School District
had established grounds for termination by a preponderance of the evidence, stating:

              A tenured professional employee, such as [Moffitt], may
              only be dismissed for the reasons set forth in Section 1122
              of the Public School Code.2 Foderaro v. School District of
              Philadelphia, 531 A.2d 570, 571 (Pa. Cmwlth. 1987).
              Section 1122 of the School Code provides in pertinent
              part:
                     [t]he only valid causes for termination of a
                     contract heretofore or hereafter entered into
                     with a professional employee shall be
                     immorality; incompetency…; intemperance;
                     cruelty; persistent negligence in the
                     performance of duties…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); on the part of the
                     professional employee[.] 24 P.S. §§ 11-
                     1122.
              Pursuant to Section 1122 of the School Code, [Moffitt]
              was charged with immorality due to his two, recent DUI
              offenses, which occurred in 2010 and 2014, respectively.

(Secretary’s Opinion, R.R. at 441a-442a.) The Secretary noted the unrebutted
testimony provided by eight witnesses, all of whose testimony he found credible,
and each of whom supported the conclusion that Moffitt’s two DUI offenses
offended the morals of the community and set a bad example to the youth whose

2
 Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S.
§ 11-1122(a).

                                              4
ideals he was supposed to foster and elevate; the Secretary further noted that Moffitt
presented no competent, credible evidence to rebut the School District’s
presentation, over the course of several days, notwithstanding the fact that he had
numerous opportunities to do so. (Id., R.R. at 442a-443a.)
               Before this Court,3 Moffitt contends that the Secretary erred because
there was insubstantial evidence to support the necessary factual findings. We do
not agree. Section 1122(a) of the School Code states that a professional employee
may only be dismissed for the reasons set forth therein. 24 P.S. § 11-1122(a). This
statutory section provides that a professional employee may be terminated, among
other reasons, for “immorality.” Id. Although not defined in the School Code, the
Pennsylvania Supreme Court has defined “immorality” as “a course of conduct that
offends the morals of a community and is a bad example to the youth whose ideals
a professional educator is supposed to foster and elevate.” Horoski v. School District
of Mount Pleasant Township, 6 A.2d 866, 868 (Pa. 1939); Dohanic v. Department
of Education, 533 A.2d 812, 814 (Pa. Cmwlth. 1987). This Court has established
that the involved school district bears the burden of establishing the following
criteria in employment matters alleging immorality: (1) the conduct actually
occurred; (2) the conduct offends the morals of the community; and (3) the conduct
is a bad example to the youth whose ideals the educator is supposed to foster and



3
  This Court’s standard of review of a decision of the Secretary of Education is limited to the
determination of whether substantial evidence supports necessary factual findings, and whether an
error of law or constitutional violation was committed. Curl v. Solanco School District, 936 A.2d
183, 185 n.1 (Pa. Cmwlth. 2007). The Secretary conducts a de novo review and makes the
determination whether the teacher’s conduct offends the moral standards of the community, but
this is a legal determination and will only be sustained if it is legally correct and supported by
substantial evidence. Kinniry v. Abington School District, 673 A.2d 429, 432 (Pa. Cmwlth. 1996).



                                                5
elevate. Kinniry v. Abington School District, 673 A.2d 429, 432 (Pa. Cmwlth. 1996).
We find that the Secretary had substantial evidence to support each of the criteria.
             Here, there is no dispute that the conduct occurred; Moffitt argues only
that the Secretary lacked substantial evidence that such conduct offended the morals
of the community. He contends that the majority of the witnesses’ testimony
received focused not on whether his conduct offended the morals of the community
and served as a bad example to youth, but rather on whether the loss of his driver’s
license created an impossibility of completing his job functions. However, the
lengthy hearing testimony and depositions of the witnesses contained in the record
clearly demonstrate otherwise. The question of whether Moffitt’s course of conduct,
with a second DUI offense, was tantamount to immorality is a difficult one; the
Secretary did not find, as this Court did in another school district employee
termination matter, that his conduct amounted to a per se justification for dismissal
in all cases involving similar misconduct. In Zelno v. Lincoln Intermediate Unit No.
12 Board of Directors, 786 A.2d 1022 (Pa. Cmwlth. 2001), where a teacher’s
conduct resulted in three drunken driving convictions and two additional convictions
for driving without a license, we opined that a third DUI indicated “not a single act
of misjudgment, but rather a pattern of conduct that is not only damaging to [the
teacher], but also puts the public in serious danger.” 786 A.2d at 1025. In Zelno,
we considered both the teacher’s pattern of conduct and the testimony of five
members of the community within the jurisdiction of the school district, each of
whom stated that her conduct offended the morals of the community and set a bad
example for her students; as in the matter sub judice, the teacher failed to put forward
any witnesses of her own to rebut this position.
             In a case involving the dismissal of a professional employee of a school
district, the Secretary is the ultimate factfinder with the power to determine the
                                           6
credibility of witnesses, the weight to be accorded the evidence, and the inferences
to be drawn therefrom. Williams v. Joint Operating Committee of the Clearfield
County Vocational-Technical School, 824 A.2d 1233, 1237 (Pa. Cmwlth. 2003).
Here, the Secretary found that Moffitt’s conduct offended the morals of the
community and was a bad example to youth based on the testimony of community
parents and teachers. We are constrained to find that in these circumstances, given
the weight of evidence presented by parents and teachers in the community that
Moffitt’s conduct involving drinking and driving set a bad example for students and
was offensive to the morals of their community, the Secretary’s decision to dismiss
Moffitt for immorality under the School Code must be affirmed.
                Further, we find no merit in Moffitt’s additional arguments that the
School District’s actions were an unlawful retaliation for Moffitt’s actions in
bringing an unrelated federal civil rights lawsuit against it; that the School District
violated the Americans with Disabilities Act4 by terminating him with knowledge
that he was in treatment for the disease of alcoholism; that the decision to terminate
his employment is contrary to past practice by the Commonwealth’s Professional
Standards and Practices Commission (PSPC) (wherein Moffitt’s certification as
teacher was not revoked in the course of the disciplinary process as a result of his
second DUI offense, and he received a public reprimand); that his conduct did not
violate any of the serious offenses set forth in the Code of Professional Practice and
Conduct for Educators; and that he was not intoxicated during school hours or
operating a School District vehicle while under the influence of alcohol.5 We find

4
    Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213.
5
  Moffitt also challenges the constitutionality of his Loudermill hearing. Under Cleveland Board
of Education v. Loudermill, 470 U.S. 532 (1985), a public employee has a property interest in his
employment and must be afforded, by virtue of the due process clause, at least notice and a pre-
termination hearing. We reject this argument; it is clear from the record that the pre-disciplinary
                                                7
no basis in the record to conclude that Moffitt’s employment was terminated for any
other reason than that enunciated by the School Board and the Secretary, nor is there
evidence that he was discriminated against due to his alcoholism or the fact that he
engaged the School District in unrelated litigation. It is equally clear that the PSPC’s
process in Moffitt’s certification matter, involving different record evidence and
entirely different legal standards is simply not relevant here, where the sole question
is whether the School District has established grounds for its employment
termination action and whether the Secretary’s decision was proper and should be
upheld. Accordingly, the decision of the Secretary denying Moffitt’s appeal from
his dismissal for immorality under the School Code is affirmed.




                                          ______________________________________
                                          JAMES GARDNER COLINS, Senior Judge




process provided him with notice of his alleged misconduct and the opportunity to present his side
of the story, and no violation of his due process rights occurred.


                                                8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Joseph P. Moffitt,                           :
                     Petitioner              :
                                             :
            v.                               : No. 258 M.D. 2017
                                             :
Tunkhannock Area School District             :
and the Tunkhannock Area School              :
District Board of School Directors,          :
                   Respondents               :



                                      ORDER


            AND NOW, this 13th day of August, 2018, the Order of the Secretary
of Education, of the Department of Education dated May 9, 2017, at TTA No. 03-
16, is AFFIRMED.




                                      ______________________________________
                                      JAMES GARDNER COLINS, Senior Judge
