                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of                    :
Philadelphia,                             :
                           Petitioner     :
                                          :
               v.                         :
                                          :
Ellis Jones,                              :   No. 2150 C.D. 2013
                           Respondent     :

Ellis Jones,                              :
                           Petitioner     :
               v.                         :
                                          :
The School District of                    :
Philadelphia,                             :   No. 2230 C.D. 2013
                           Respondent     :   Argued: March 9, 2016


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge


OPINION BY
JUDGE COVEY                                   FILED: June 2, 2016


               The School District of Philadelphia (District) and Ellis Jones (Jones)
petition this Court for review of Acting Secretary of Education Carolyn C.
Dumaresq’s (Acting Secretary) November 5, 2013 order reinstating Jones to his
position as a teacher and professional employee from August 10, 2009 to December
15, 2010, and sustaining Jones’ employment termination as of December 15, 2010.
The District presents six issues for this Court’s review: (1) whether the procedures
the District used to terminate Jones’ employment complied with the Public School
Code of 1949 (School Code);1 (2) whether the School Code requires the School
Reform Commission (SRC) to resolve before the issuance of charges that evidence
existed that, if true, justified employment termination; (3) whether the District was
required to present evidence that the SRC read or knew about the charges or the
transcript of the employment termination hearing; (4) whether the August 10, 2009
letter imposed a suspension without pay upon Jones; (5) whether the SRC would have
violated Jones’ due process rights if it made a pre-charge determination; and (6) if the
Court rules that there were procedural defects, whether the proper remedy is remand.
               Jones presents six issues for this Court’s review: (1) whether the District
failed to comply with the mandatory procedures set forth in the School Code when
the District terminated Jones’ employment as a teacher on August 10, 2009 without a
hearing, and then belatedly held a hearing eight months later which also did not
comply with the School Code, and finally resolved to ratify Jones’ illegal
employment termination another seven months later on December 15, 2010; (2)
whether the failure of the District and the SRC to comply with the procedural
safeguards of the School Code is a Due Process Clause violation of the United States
(U.S.) Constitution; (3) whether the Acting Secretary erred when, on reconsideration,
she changed Secretary of Education Ronald J. Tomalis’ (Secretary) decision to
sustain the illegal termination of Jones’ employment as of December 15, 2010, when
there was no legal basis for such partial reversal; (4) whether the two year undue
delay of the Acting Secretary in issuing her reconsidered Opinion created the
appearance of impropriety and fatally compromised Jones’ due process rights by
inhibiting the impartiality of the tribunal; (5) whether the SRC met its burden of proof
to sustain a charge of immorality where the SRC presented no unbiased witness who
said that Jones’ conduct offended the morals of the community, and whether the SRC

      1
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.


                                                2
Chairman improperly refused to allow Jones’ witness, Eugene Woehr (Woehr), a
department head at Dobbins Area Vocational Technical School (AVTS), to testify
that Jones did nothing which rose to the level of immorality within the community,
and that the allegations against Jones were, in his words, absurd; and (6) whether the
Acting Secretary improperly took words and phrases from Jones’ conversations with
individual students out of context and purposefully reconstructed them in an
inflammatory manner, without proper citation to the record, in order to rationalize the
reversal of the Secretary’s decision.


                                        Background
             The District hired Jones as a teacher and professional employee on
September 1, 2002. Jones was a vocational teacher at AVTS for six years until the
electronics program was discontinued at that location. During the 2008-2009 school
year, Jones was assigned as a math teacher at Mastbaum AVTS (Mastbaum). On or
about April 30, 2009, Mastbaum’s principal Mary Dean (Dean) received a letter
containing alleged statements Jones made in his classroom while teaching. The letter
was signed by the project manager and three corps members of City Year Greater
Philadelphia (City Year) that spent time in Jones’ classroom working with him to
help his students. City Year members include assistant teachers, tutors and mentors.
             In the City Year letter, the corps members related specific instances of
Jones speaking unprofessionally to his students, including using foul language and
inappropriate discussion topics such as sex. See Reproduced Record (R.R.) at 628a-
630a. Upon receiving the City Year letter, Dean asked a school police officer to
conduct an investigation by randomly selecting pupils from a list of Jones’ students
and asking them to write a statement about Jones. Seven students prepared written
statements, five of which confirmed the allegations set forth in the City Year letter
regarding Jones’ speaking improperly to his students.
                                            3
             After Dean received the statements from Jones’ students, she conducted
an investigatory conference on June 1, 2009, which included Jones, Philadelphia
Federation of Teachers (PFT) representative Evette Jones (PFT Jones), and the
District’s labor relations assistant Ted Bywalski (Bywalski).      Jones admitted to
making some of the statements, but asserted that they were taken out of context in
some cases and were misinterpreted in others. He also maintained that he was trying
to create an atmosphere of trust and rapport with his students.
             After the June 1, 2009 investigatory conference, Dean prepared an
unsatisfactory incident report (SEH-204) and recommended that Jones’ employment
with the District be terminated. Jones sent a letter dated June 15, 2009 to Dean
responding to the SEH-204, wherein, he apologized for his remarks and repeated that
he was trying to build trust and rapport with the students, and that some remarks were
taken out of context and misinterpreted while others were inaccurate and a
misrepresentation of what happened in the classroom. Jones further stated that since
he received the concerns from Dean and the City Year members, he immediately
changed his approach and apologized multiple times.
             On June 24, 2009, Assistant Regional Superintendent James Douglass
(Douglass) held a second-level conference regarding the SEH-204. In attendance
were PFT Jones and Bywalski. PFT Jones spoke on Jones’ behalf and stated that
Jones apologized, that the tactic he used to gain respect of the students was not
appropriate, that his comments were taken out of context and that he was dedicated to
his students. After the June 24, 2009 meeting, Douglass recommended that Jones be
discharged from his employment with the District.
             By August 10, 2009 letter, signed by the District Superintendent and the
SRC Chairman, Jones was notified that the charges against him constituted “a willful
violation of or failure to comply with the School Laws of this Commonwealth, and
other improper conduct such as to constitute cause pursuant to . . . Section [1122] of
                                           4
the [School Code, 24 P.S. § 11-1122.]” R.R. at 727a. The letter informed Jones that
they would recommend to the SRC that his employment with the District be
terminated, and that he had a right to request an SRC hearing. In the same letter,
Jones was told that the District’s payroll department would be advised to make the
necessary salary adjustments. Jones requested a hearing which was held on April 16,
2010 before the SRC Chairman.2
               Thereafter, on December 15, 2010, the SRC resolved to dismiss Jones,
effective August 14, 2009. Jones appealed from the SRC’s decision to the Secretary.
On September 13, 2011, the Secretary reversed the SRC’s decision, reinstated Jones
and ordered payment of any compensation that he lost due to his dismissal. On
September 28, 2011, the District filed a petition for reconsideration (Reconsideration
Petition) of the Secretary’s order pursuant to Section 35.241(a) of the General Rules
of Administrative Practice and Procedure, 1 Pa. Code § 35.241(a). On October 11,
2011, the District appealed from the Secretary’s order to this Court. On October 27,
2011, the Secretary granted the District’s Reconsideration Petition and issued a
briefing schedule.
               On December 6, 2011, this Court denied the District’s request to stay
this matter pending the Secretary’s reconsideration decision because the
Reconsideration Petition was a nullity. However, this Court construed the application
for stay to include a request to remand the matter to the Secretary, and remanded the
case to the Secretary with directions to consider the District’s Reconsideration
Petition within thirty days.        On December 20, 2011, the Secretary granted the
District’s Reconsideration Petition. On November 5, 2013, the Acting Secretary
reinstated Jones’ employment from August 10, 2009 to December 15, 2010, and




      2
          No other SRC members participated in the hearing.
                                                5
terminated Jones’ employment as of December 15, 2010. The District and Jones
appealed to this Court.3


                          Jones’ Non-School Code Arguments4
                                       Two Year Delay
              Jones argues that the two year undue delay of the Acting Secretary in
issuing her reconsidered decision created the appearance of impropriety and fatally
compromised Jones’ due process rights by inhibiting the impartiality of the tribunal.
Jones cites Lyness v. State Board of Medicine, 605 A.2d 1204 (Pa. 1992), to support
his position. The District rejoins that the delay did not constitute a due process
violation because Jones did not allege harm or prejudice caused by the delay, and
cites Kinniry v. Abington School District, 673 A.2d 429 (Pa. Cmwlth. 1996).
              In Lyness, the Pennsylvania Supreme Court held: “Whether or not any
actual bias existed as a result of the [b]oard acting as both prosecutor and judge is
inconsequential; the potential for bias and the appearance of non-objectivity is
sufficient to create a fatal defect under the Pennsylvania Constitution.” Id. at 1210
(emphasis added). The appearance of impropriety in Lyness was specific to the non-
objectivity of the board. Here, although there may have been a delay in the decision,
the Acting Secretary was not involved in the SRC hearing or resolution. See id.
Thus, because she did not act as prosecutor and judge, there is not even an
appearance of non-objectivity. Accordingly, Lyness is inapposite.




       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 Sch. Dist., 936
A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).
       4
         We will address Jones’ arguments first as his issues overlap the District’s issues. The
opinion separates Jones’ non-School Code and School Code arguments for clarification purposes.
                                                6
            Moreover, the Kinniry Court held:

            We have previously held that a petitioner seeking to
            establish that his or her due process rights have been
            violated bears the burden of proving that some harm or
            prejudice to his or her interests was caused by the delay.
            Here, [the petitioner] alleges only that the passage of time
            between hearing and final adjudication was too long; he has
            not alleged that he was harmed or prejudiced in any way as
            a result of the delay. Although we do not condone
            unnecessary delay in adjudicating the fate of a person’s
            livelihood, without evidence that [the petitioner] suffered
            any prejudice or harm as a result of the delay, we cannot
            conclude that [the petitioner’s] due process rights were
            violated.

Id. at 433 (citation omitted; emphasis added). Kinniry controls the instant case.
Because Jones has not offered any evidence that he suffered some prejudice or harm
to his interests from the delay, we cannot conclude that Jones’ due process rights
were violated by said delay.


                                    Immorality
            Jones next contends that the SRC failed to meet its burden of proof to
sustain a charge of immorality because the SRC presented no unbiased witness who
said that Jones’ conduct offended the morals of the community, and the SRC
Chairman refused to allow Jones’ witness, Woehr, to testify that Jones did nothing
which rises to the level of immorality within the community.
            This Court has explained:

            Immorality is not defined in the . . . School Code. Our
            appellate courts have defined ‘immorality’ as conduct that
            ‘offends the morals of the community and is a bad example
            to the youth whose ideals a teacher is supposed to foster and
            to elevate.’ Horosko v. Sch[.] Dist[.] of Mt. Pleasant
            [Twp.], . . . 6 A.2d 866, 868 ([Pa.] 1939). To establish
            immorality, the school district must prove three elements:

                                         7
             (1) that the alleged immoral act actually occurred; (2) that
             the act offends the morals of the community; and (3) that
             the act sets a bad example for students. The moral
             standards of the community will not be presumed; they
             must be proved by substantial evidence. Immoral conduct
             is something more serious than unprofessional conduct.

McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 353-54 (Pa. Cmwlth. 2010)
(citations omitted). Further,

             [w]e have previously held that a school board’s finding that
             a professional employe[e] was guilty of offending the moral
             standards of the community by his actions would not be
             disturbed on appeal if supported by substantial evidence. . .
             . We have held, of course, that an administrative decision is
             supported by substantial evidence when a reasonable man,
             acting reasonably, would have reached the same decision. . .
             .

Central York Sch. Dist. v. Ehrhart, 387 A.2d 1006, 1008 (Pa. Cmwlth. 1978).
             Here, it is undisputed that the acts occurred. In addition, our careful
review of the record convinces us that “a reasonable man, acting reasonably” could
have reached the decision made by the Acting Secretary, whose findings represent a
fair and supportable amalgam of the whole. Id. Several students and City Year corps
members testified at the SRC hearing to the numerous incidents of unacceptable
interaction between Jones and his students. Moreover, City Year corps members,
who were not students and/or agents of the school, are a fair representative of the
community and they were so offended by Jones’ behavior that they wrote the letter
that initiated the investigation into Jones’ conduct. Finally, this Court cannot fathom
how a teacher repeating and joining in his students’ bad behavior can set a good
example for the students. Accordingly, the Acting Secretary properly determined that
the SRC met its burden of proving that Jones’ conduct offended the moral standards
of the community.



                                          8
               With respect to Woehr’s testimony, because Jones has not developed this
argument by providing case law or record evidence, we are precluded from
addressing this issue. See In re Condemnation of Land for S.E. Cent. Bus. Dist.
Redevelopment Area No.1, 946 A.2d 1154, 1156 (Pa. Cmwlth. 2008) (“Arguments
not properly developed in a brief will be deemed waived.”).                       Notwithstanding,
Woehr’s testimony cited in Jones’ brief is irrelevant to the immorality standard, i.e.,
in answer to the question “[f]rom your experience working with [] Jones and
observing him, do you think he is a clear and present danger to the school children of
Philadelphia?” Woehr responded: “The idea is [a]bsurd! He is just totally not. He
always has had the best interests of students at heart, always[.]” Jones Br. at 31
(quoting Notes of Testimony April 16, 2010 at 177-178; R.R. at 535a-536a.) The
issue is not whether Jones’ conduct is a clear and present danger to his students, but
rather, whether his conduct offends the morals of the community and is a bad
example to his students.             Because substantial evidence supports the Acting
Secretary’s finding that Jones’ conduct constitutes immorality, we cannot disturb that
finding.5


                                         Out of Context
               Jones also maintains that the Acting Secretary improperly took words
and phrases from Jones’ conversations with individual students out of context and
purposefully reconstructed them in an inflammatory manner, without proper citation
to the record, in order to rationalize the reversal of the Secretary’s decision.


       5
         In his brief, Jones attaches a progressive discipline issue to this argument, i.e., Jones’ due
process rights were violated because he was not given progressive discipline. Because Jones did
not develop this argument by providing case law or record evidence, we are precluded from
addressing this issue. See In re Condemnation of Land for S.E. Cent. Bus. Dist. Redevelopment
Area No.1. Notwithstanding, we discern no merit in this additional argument.


                                                  9
Specifically, Jones contends that his discussions and joking with students were taken
out of context and improperly reconstructed to demonize him.
             First, virtually all of Jones’ statements contained in the Acting
Secretary’s findings of fact contain accurate record citations, those that do not,
reference from where they were taken, i.e., the SRC hearing testimony of specific
students. More importantly, in his brief, Jones does not deny that he made the
statements, but rather explains them and admits to their inappropriateness.
Specifically, Jones’ counsel rationalizes:

             [] Jones made the mistake that many teachers do — he
             became too familiar with the students at times. They felt a
             bit too free to joke with [] Jones about such things as
             Viagra. That is normal in high schools because students see
             Viagra commercials on television and they sometimes joke
             with teachers. [] Jones, who is a jovial and friendly
             personality [sic], was willing to respond in a humorous
             way. That may be inappropriate but it is not immorality.

Jones Br. at 31 (emphasis added). Jones’ statements were not mischaracterized and
supported the Acting Secretary’s decision.


                           Jones’ School Code Arguments
                                   Property Interest
             Before we address Jones’ alleged School Code violations, this Court
acknowledges the well-established law that as a tenured professional employee,
Jones has a property interest in continued employment. Andresky v. W. Allegheny
Sch. Dist., 437 A.2d 1075 (Pa. Cmwlth. 1981).          The U.S. Supreme Court has
explained:

             Property interests, of course, are not created by the
             Constitution. Rather they are created and their dimensions

                                             10
              are defined by existing rules or understandings that stem
              from an independent source such as state law—rules or
              understandings that secure certain benefits and that support
              claims of entitlement to those benefits.

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Accordingly,
Jones has a legitimate claim to continued employment secured by state statute.
Specifically, Section 1122 of the School Code provides that the contract of a
professional employee may only be terminated for “immorality, incompetency,
intemperance, cruelty, persistent negligence, mental derangement . . . (or) persistent
and wilful violation of . . . school laws . . . .” 24 P.S. § 11-1122. The U.S. Supreme
Court expounded in Cleveland Board of Education v. Loudermill, 470 U.S.
532 (1985):

              If a clearer holding is needed, we provide it today. The
              point is straightforward: the Due Process Clause provides
              that certain substantive rights—life, liberty, and property—
              cannot be deprived except pursuant to constitutionally
              adequate procedures. The categories of substance and
              procedure are distinct. Were the rule otherwise, the Clause
              would be reduced to a mere tautology. ‘Property’ cannot be
              defined by the procedures provided for its deprivation any
              more than can life or liberty. The right to due process ‘is
              conferred, not by legislative grace, but by constitutional
              guarantee. While the legislature may elect not to confer
              a property interest in [public] employment, it may not
              constitutionally authorize the deprivation of such an
              interest, once conferred, without appropriate
              procedural safeguards.’ Arnett v. Kennedy, . . . 416 U.S.
              [134,] 167 . . . [(1974)] (POWELL, J., concurring in part
              and concurring in result in part); see id., at 185 . . .
              (WHITE, J., concurring in part and dissenting in part).

Loudermill, 470 U.S. at 541 (emphasis added). Thus, although we hold that the
District has met its burden of proving immorality, and immorality is a dischargeable
offense, that ruling does not and cannot negate the District’s obligation to provide
Jones the due process protection to which he is entitled. Because “no dismissal of a
                                          11
tenured professional employee can be valid unless the dismissing school district
acts in full compliance with the Code[,]” it is our duty to review whether the
District has in fact done so in the instant case. West Shore Sch. Dist. v. Bowman, 409
A.2d 474, 480 (Pa. Cmwlth. 1979) (emphasis added).


                                     School Code
             Jones argues that the District failed to comply with the School Code’s
mandatory procedures when the District terminated his employment as a teacher
on August 10, 2009 without a hearing, and then belatedly held a hearing eight
months later which also did not comply with the School Code, and finally resolved
to ratify Jones’ illegal employment termination another seven months later on
December 15, 2010.
             The District sent Jones a letter dated August 10, 2009 which stated, in
relevant part:
             Dear Mr. Jones:

             This is to advise you that we shall recommend to the [SRC]
             that your employment with [t]he [District] be terminated
             effective immediately. The [District’s] Payroll Department
             shall be advised to make the necessary salary adjustments.
             The charges against you constitute just cause pursuant to
             the collective bargaining agreement and, in addition,
             constitute a willful violation of or failure to comply with the
             School Laws of this Commonwealth, and other improper
             conduct such as to constitute cause pursuant to . . . Section
             []1122 of the [School Code, 24 P.S. § 11-1122].
             ....
             You are entitled to request a hearing before the [SRC]. If it
             is your intention to appeal this recommendation, you must
             contact Francis X. Bielli, Assistant General Counsel, 440 N.
             Broad Street, Third Floor, Philadelphia, PA 19130 in
             writing, within five (5) days of receipt of this letter. Your
             letter should include a telephone number where you can be

                                           12
            reached. Your hearing, if you request one, will be on
            August 21 @ 2[:]00[]p[.]m[.] at 440 N. Broad Street, First
            Floor, Philadelphia, PA 19130.
            Failure to request a hearing in writing within the time stated
            will be deemed a waiver of any and all rights you may have
            to an appeal.
            In the alternative, you may utilize the grievance procedure
            by requesting your union to follow the collective bargaining
            agreement grievance procedure applicable to you.
            You may elect one or the other of these two appeal
            procedures, but not both.

R.R. at 727a-728a. Thereafter, Jones requested an SRC hearing which occurred on
April 16, 2010. Jones’ subsequent discharge did not occur until the SRC’s December
15, 2010 resolution.    Although the resolution stated that Jones’ employment
termination was effective August 14, 2009, the Acting Secretary’s November 5, 2013
order reinstated Jones to his position as a professional employee from August 10,
2009 to December 15, 2010.
            Section 1127 of the School Code provides:

            Before any professional employe[e] 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[e] 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[e]
            setting forth the time and place when and where such
            professional employe[e] 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[e] and his or

                                         13
            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.

24 P.S. § 11-1127 (emphasis added). This Court has interpreted the above section as
“requir[ing] the [school b]oard to resolve to demote the employee and to furnish him
with a written statement of the charges prior to the hearing.” Patchel v. Wilkinsburg
Sch. Dist., 400 A.2d 229, 232 (Pa. Cmwlth. 1979) (emphasis added).

            More importantly, . . . [t]he [school b]oard only need[s] to .
            . . pass[] a resolution that it ha[s] sufficient evidence to
            support its belief, to demote . . . [the professional employee]
            by some given date, and therein direct the Secretary and
            President of the [school b]oard to serve notice upon [the
            professional employee] of this fact and to advise him of his
            right to a hearing.
Id. (quoting Abington Sch. Dist. v. Pittenger, 305 A.2d 382, 387 (Pa. Cmwlth. 1973)).
            In the instant case, other than providing a statement of charges, the
District did not comply with the mandates provided in Section 1127 of the School
Code. Specifically, the SRC resolution did not occur until December 15, 2010, and
the notice was not attested by the SRC Secretary. Pursuant to the SRC resolution, the
effective date of Jones’ employment termination was August 14, 2009. Clearly, the
April 16, 2010 SRC hearing and the December 15, 2010 resolution do not pre-date
Jones’ employment termination. “In no case can the effective date of the dismissal be
earlier than the date of the school board’s resolution.” Neshaminy Sch. Dist. v.
Neshaminy Fed’n of Teachers, 84 A.3d 391, 397 (Pa. Cmwlth. 2014). Accordingly,
the District failed to comply with the mandatory procedures set forth in the School
Code.




                                          14
                                       Due Process
             Jones further asserts that the failure of the District and the SRC to
comply with the procedural safeguards of the School Code is a Due Process Clause
violation of the U.S. Constitution. The District rejoins that Jones’ employment was
not terminated until after an SRC hearing “and a public vote to terminate on
December 15, 2010.”6 District Br. at 20. In addition, the District contends that the
August 10, 2009 letter merely suspended Jones without pay pending his potential
discharge. District Br. at 30.

             Pennsylvania courts have construed Section 1127 [of the
             School Code] to mean that a tenured teacher can only be
             dismissed by a school district’s board, not its administrative
             staff. Further, the statutory procedures for dismissal
             must be strictly followed and . . . no material deviation
             therefrom is permissible. A deviation from these
             procedures constitutes a denial of due process.

Neshaminy Sch. Dist., 84 A.3d at 397 (citations and quotation marks omitted;
emphasis added). Here, on August 10, 2009, the District communicated to Jones that
it “shall recommend to the [SRC] that your employment with [t]he [District] be
terminated effective immediately” and effective immediately the District ceased his
pay. R.R. at 727a. Contrary to the District’s argument, the letter does not lend itself
to informing Jones that his employment with the District has been suspended. If that
is what the District intended then it could have so communicated.              Rather, the
unambiguous words reveal finality and the District’s intent to immediately discharge
Jones. Moreover, the District’s actions immediately after issuance of the letter in
stopping Jones’ pay with no statement beyond the words that the District
recommends his immediate discharge further evidences a termination, not a


      6
         The SRC hearing was conducted by one member of the SRC on April 16, 2010, and the
“public vote” was the SRC resolution that was presented for formal action by the 4 attending
members of the SRC on December 15, 2010. District Br. at 20.
                                            15
suspension. “[A]ssuming arguendo that there was ambiguity, doubtful language is
construed most strongly against the drafter thereof.” Rusiski v. Pribonic, 515 A.2d
507, 510 (Pa. 1986). Thus, the letter cannot be construed as suspending Jones’
employment.
              The District admits in its brief that “[u]nder Pennsylvania law, school
administrators do not have authority to terminate tenured professional employees. In
the [District], only the SRC has that authority. Just as plainly, school administration
may suspend a tenured professional employee without pay pending discharge.”
District Br. at 30. This acknowledgment is at complete odds with the District’s initial
argument before the Secretary that the letter was the result of SRC action and not
administrative, and appears to be a disingenuous attempt to justify the District’s non-
compliance with the School Code.
              The Acting Secretary subsequently revised the termination date to
December 15, 2010, the date of the SRC resolution, and ordered backpay for the time
in between. However, a retroactive order does not cure the defect.7 As explained
above, the District did not comply with the School Code. “A deviation from these
procedures constitutes a denial of due process.” Neshaminy Sch. Dist., 84 A.3d at
397. Accordingly, the District violated Jones’ due process rights under the U.S.
Constitution.


                                      Partial Reversal
              Jones next contends that the Acting Secretary erred when the decision of
the Secretary, upon her reconsideration, was changed to sustain the illegal



       7
          Our conclusion that the retroactive order changing the date of Jones’ employment
termination to the date of the SRC resolution cannot cure the District’s failure to adhere to the
mandatory statutory provisions is discussed more fully below.
                                               16
termination of Jones’ employment as of December 15, 2010, when there was no legal
basis for such partial reversal.

             In In re Swink, . . . 200 A. 200 ([Pa. Super.] 1938), a school
             board voted to dismiss a teacher for immorality. Thereafter,
             it sent her a notice stating that she could attend a hearing to
             convince the board of the reasons she should be reinstated.
             The Superior Court held that dismissing the teacher without
             a prior hearing violated the statutory procedure in effect at
             that time.[FN]5      These deviations from the statutory
             procedures constituted ‘fatal defects,’ making the school
             board’s dismissal an ‘illegal’ act. Id. at 203. Accordingly,
             the Superior Court reversed the school board’s decision.

                [FN]5. The statute then in effect was Section 1205 of
                the Public School Code, Act of May 18, 1911, P.L.
                309, as amended by Section 2 of the Teachers’ Tenure
                Act, Act of April 6, 1937, P.L. 213, formerly 24 P.S. §
                1126, repealed by Section 2701 of the Public School
                Code of 1949. It provided as follows:

                 (d) Before any professional employe[e] is dismissed
                 ... the secretary of the school district shall furnish
                 such professional employe[e] with a detailed written
                 statement of the charges upon which his or her
                 dismissal ... is based, together with a written notice
                 signed by the president and attested by the secretary
                 of the board of school directors of a time and place
                 when and where such professional employe[e] will
                 be given an opportunity to be heard either in person
                 or by counsel, or both, before the board of school
                 directors.

                                         ***

                 (f) After fully hearing the charges or complaints and
                 hearing all witnesses produced by the board and the
                 person against whom the charges are pending, and
                 after full, impartial and unbiased consideration
                 thereof, the board of school directors ... shall by a
                 two-thirds vote of all the members thereof, to be
                 recorded by roll call, determine whether or not such
                 charges or complaints have been sustained and

                                           17
                 whether the evidence substantiates such charges and
                 complaints, and in accordance with such
                 determination shall discharge ... such professional
                 employe[e] or shall dismiss the complaint.

                24 P.S. § 1126(d), (f). Similar provisions are now
                found in Sections 1127 and 1129 of the [School Code].

             In short, a school board that does not strictly follow the
             statutory procedures for a teacher dismissal violates due
             process. Further, a ‘fatal defect’ in the procedures
             followed by the school board will render its teacher
             dismissal an illegal act. In re Swink, 200 A. at 203.

Neshaminy Sch. Dist., 84 A.3d at 397-98 (citation omitted; emphasis added). In the
instant case, the Secretary opined in his decision:

             There is no evidence in the record that the SRC, other than
             the Chairman, had seen or reviewed the charges prior to the
             hearing on April 16, 2010. There is no evidence that, prior
             to the hearing on April 16, 2010, the SRC had resolved to
             dismiss [] Jones and had directed the Chairman and the
             Secretary of the SRC to serve notice on [] Jones of this fact
             and to provide him the right to a hearing. In addition, the
             hearing was held before the Chairman of the SRC and not
             the entire SRC; thus, not only is there no evidence that the
             SRC reviewed the charges prior to the hearing and resolved
             to dismiss [] Jones, there is no evidence that the SRC even
             knew about the charges or the hearing. The only evidence
             of the SRC’s knowledge of anything regarding [] Jones and
             his dismissal was when the SRC resolved on December 15,
             2010, to dismiss him[] effective August 14, 2009.
             In the August 10, 2009 letter, the SRC Chairman and the
             Superintendent of the District advised [] Jones that they
             would recommend to the SRC that he be dismissed from his
             employment with the District immediately. In addition, the
             letter stated that the payroll department would be advised to
             make the necessary salary adjustments. The record
             evidences that [] Jones was paid for his employment
             with the District through the 2008-2009 school year but
             was no longer employed by the District beyond that
             school year. Thus, [] Jones was dismissed as of, at least,
             August 10, 2009, without any action by the SRC. The
                                           18
             dismissal was a dismissal by administrative action, not
             by action of the SRC. The vote by the SRC on
             December 15, 2010 was a ratification of [] Jones’
             dismissal by the administration, which is not permitted.
             See[] Pitt[e]nger, 305 A.2d at 386.

Secretary September 13, 2011 Dec. at 9-10 (emphasis added). In reliance on the
above, the Secretary concluded:

             Based on the dismissal procedures required under the
             School Code and the relevant case law interpreting those
             procedures, I have no choice but to find that [] Jones’
             dismissal was in violation of the School Code.
             Notwithstanding the consequences, I do not have discretion
             to ignore the District’s failure to comply with the applicable
             provisions of the School Code and relevant case law.
             Therefore, I am obligated to find that the District’s
             dismissal of [] Jones is void and that he shall be reinstated
             to his position with the District as a professional employee.
             In addition, [] Jones shall be reimbursed any amount of
             compensation he lost due to his improper dismissal.

Id. at 12 (emphasis added). This Court is constrained to agree on the well-established
constitutional grounds of due process. The retroactive order changing the date of
Jones’ employment termination to the date of the SRC resolution cannot cure the
District’s failure to adhere to the mandatory statutory provisions because the SRC
resolved to dismiss Jones on December 15, 2010, a date after his hearing and the
same date the Acting Secretary ruled was the effective date of Jones’ employment
termination. Accordingly, due to the District’s violation of Section 1127 of the
School Code, and its consequential denial of Jones’ due process rights, the Acting
Secretary erred in her partial reversal of the Secretary’s decision.


                                 District’s Arguments
             After disposing of Jones’ arguments, three of the District’s issues remain
which are summarized as follows: (1) whether the Acting Secretary misinterpreted


                                           19
Patchel and Pittenger when she determined that a pre-charge resolution in favor of
dismissal was required prior to holding Jones’ hearing; (2) whether the SRC would
have violated Jones’ due process rights if it made a pre-charge determination; and (3)
if the Court finds that there were procedural defects, whether the proper remedy is
remand.


                                Patchel and Pittenger
             The District argues that the Acting Secretary misinterpreted Patchel and
Pittenger when she determined that a pre-charge resolution in favor of dismissal was
required prior to holding Jones’ hearing.
             The Patchel Court explained that in Pittenger, the Court

             held that in the case of a professional employee who had
             been demoted without a hearing, the later decision of the
             [school b]oard to ratify the improper administrative action
             was void. The facts here, however, are easily
             distinguishable. In [Pittenger], the hearing was not
             scheduled by the [school b]oard until months after the
             employee’s demand for it, and the [school b]oard never saw
             the charges until the hearing began. There was a clear
             violation of Section 1127 of the School Code, 24 P.S. §
             11-1127, which requires the [school b]oard to resolve to
             demote the employee and to furnish him with a written
             statement of the charges prior to the hearing. More
             importantly, in [Pittenger] we explicitly stated the manner
             in which the school board could have cured the defects in
             its procedure:
                The [school b]oard only needed to have passed a
                resolution that it had sufficient evidence to support
                its belief, to demote . . . [the professional employee]
                by some given date, and therein direct the Secretary
                and President of the [school b]oard to serve notice
                upon [the professional employee] of this fact and to
                advise him of his right to a hearing.



                                            20
Patchel, 400 A.2d at 231-32 (bold emphasis added) (quoting Pittenger, 305 A.2d at
387). The District asserts that “[t]hose cases do not require the SRC or any other
school board in the first instance to resolve, before the issuance of charges, that
evidence exists that supports charges that, if true, would support dismissal.” District
Br. at 25. Rather, the District maintains that “the Court simply explained how a
school board might remedy a procedurally defective demotion, which occurs when
the administration of a school district - as opposed to the school board - ‘had already
accomplished the demotion’ before the board had any notice or knowledge.” Id.
            The District cites Clark v. Colonial School District, 387 A.2d 1027 (Pa.
Cmwlth. 1978), to support its position. The Clark Court held that “[t]he School Code
clearly does not require formal school board action authorizing the initiation of
charges and the sending of notice of hearing.” Id. at 1029. Notwithstanding, after
Clark, this Court expressly interpreted otherwise in Patchel. The Patchel Court
expressly opined that it “was [] clear . . . Section 1127 of the School Code . . .
requires the [school b]oard to resolve to demote the employee and to furnish him with
a written statement of the charges prior to the hearing.” Patchel, 400 A.2d at 232.
            Moreover, Section 1127 of the School Code specifically requires that

            [b]efore any professional employe[e] 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[e] 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[e] setting forth the time and place when and where
            such professional employe[e] 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.


                                          21
24 P.S. § 11-1127 (emphasis added). Here, the August 10, 2009 letter was signed by
the District Superintendent and the SRC Chairman, but not attested by the SRC
Secretary. Thus, even if a resolution was not expressly required under Section 1127
of the School Code, the SRC Secretary was required to attest the written notification,
and he did not do so in the instant case.8 As stated by the Acting Secretary in her
opinion, “because the SRC did not issue a resolution stating that it found the charges
sufficient to support termination if proved at a hearing, there is no evidence that the
SRC ever reviewed the charges prior to the hearing that was held in April
2010[,]” as required by this Court’s interpretation of the statute. Acting Secretary
November 5, 2013 Dec. at 15 (emphasis added). Accordingly, we discern no error in
the Acting Secretary’s interpretation of Patchel and Pittenger.


                                 Pre-Charge Determination
               The District also asserts that it would have violated Jones’ due process
rights if it in fact had made a pre-charge determination. Specifically, the District cites
Lyness to support its contention that if the SRC had resolved to dismiss Jones prior to
Jones’ notice of the charges it would have been mixing prosecutorial and adjudicatory
functions, thus, at least by the appearance of impropriety, violating Jones’ due
process rights.



       8
          The District argues that the District Superintendent had the powers of the SRC Secretary at
the time of the August 10, 2009 letter. It explained that “[a]lthough it [was] common knowledge
that [the District Superintendent] was the Chief Executive Officer of the District during the time
relevant to [Jones’] dismissal, it [was] not common knowledge that she also had the power and
authority of the Secretary/Treasurer of the SRC.” Acting Secretary November 5, 2013 Dec. at 12.
The District’s Petition for Reconsideration referred to attachments to prove said authority; however,
the attachments were incomplete, i.e., the attachment contained a proposed resolution to appoint
Arlene C. Ackerman as the District’s Chief Executive Officer with the powers and authority of the
District’s Superintendent and the SRC’s Secretary/Treasurer, but no documentation was included
evidencing that the resolution was voted thereon and approved. Id.
                                                 22
               In Harmon v. Mifflin County School District, 651 A.2d 681, 686 (Pa.
Cmwlth. 1994), rev’d on other grounds, 713 A.2d 620 (Pa. 1998), this Court
expressly held that “[e]ven though [the School Code] requires a school board to
terminate an employee and hear the challenge to that termination, Lyness simply
doesn’t apply because the ‘interests’ involved in the employment relationships are
totally different than an independent agency actions regulating individuals.”9
Harmon, 651 A.2d at 686. The Harmon Court further explained:

               We have recognized this distinction and determined that the
               same type of due process requirements do not apply to
               school boards as they do to other independent
               administrative agencies. In Covert v. Bensalem Township
               School District, . . . 522 A.2d 129 ([Pa. Cmwlth.] 1987),
               this [C]ourt held that the inherent potential for bias on the
               part of school boards has long been recognized. We
               continued:

                    The making of the charges presupposes that the
                    members of the board had some knowledge of the
                    facts upon which the charges were based. Unless
                    they had an opinion that the charges, if sustained,
                    would warrant dismissal, they should never have
                    been made . . . . We do not think that anything more
                    was required of the members of the board than that
                    they could hear and determine the charges against
                    appellant on the evidence given before them,
                    uninfluenced by other previous impressions.

               [Covert], 522 A.2d at 131 (quoting Lomas v. [Bd.] of [Sch.]
               Directors of [Nw.] Lehigh [Sch.] [Dist.], . . . 444 A.2d 1319,
               1325 ([Pa. Cmwlth.] 1982)).

Harmon, 651 A.2d at 686-87. Accordingly, there is no merit to this argument.



      9
          Lyness involved the State Board of Medicine.
                                                23
                                        Remand
             Finally, the District contends that if this Court finds that there is a
procedural defect, the proper remedy is remand not reinstatement and compensation.
Specifically, the District contends that: “Here, and only here, is where [Pittenger] is
relevant, because the Court stated in that case that a school board might remedy a
procedural defect by resolving that evidence existed as of a certain date that justified
termination.” District Br. at 39. The District misconstrues the holding in Pittenger.
The Pittenger Court held:

             It would have been a simple matter for the [school b]oard
             to have cured the defects at the outset. The [school
             b]oard only needed to have passed a resolution that it had
             sufficient evidence to support its belief, to demote [the
             petitioner] by some given date, and therein direct the
             Secretary and President of the [school b]oard to serve notice
             upon [the petitioner] of this fact and to advise him of his
             right to a hearing. At this point, [the petitioner] would have
             had a decision to make: whether to request the hearing or
             consent to the demotion. The [school b]oard did not
             follow this procedure. Instead, it permitted its
             administrative staff to demote [the petitioner] without
             [school b]oard action, and only after [the petitioner’s]
             demand for a hearing, set the wheels in motion for a hearing
             several months later. As alluded to hereinbefore, the
             [school b]oard did not know the contents of the charges
             which had been promulgated by the Principal until the first
             day of hearing. This was improper.
Id. at 387 (emphasis added). Clearly, the Court is referring to what could have been
done prior to the hearing, not after the fact as the District purports.

             This Court in Neshaminy School District explained:
             [T]he statutory procedures for dismissal ‘must be strictly
             followed and . . . no material deviation therefrom is
             permissible.’ [Dep’t] of [Educ.] v. Oxford Area [Sch.]
             [Dist.], . . . 356 A.2d 857, 860 ([Pa. Cmwlth.] 1976). A

                                           24
            deviation from these procedures constitutes a denial of due
            process. Id. at 860-61.
            In Oxford, the district superintendent recommended that a
            teacher who had been arrested for shoplifting be dismissed
            for immorality. The superintendent testified as a witness at
            the school board hearing and participated in the school
            board’s post-hearing deliberations. The school board voted
            to dismiss the teacher. This Court held that the School
            Code’s requirement of ‘impartial and unbiased’
            consideration had been violated, although inadvertently, and
            remanded to the school board for a new hearing. Id. at 861.
            In In re Swink, . . . 200 A. 200 ([Pa. Super.] 1938), a school
            board voted to dismiss a teacher for immorality. Thereafter,
            it sent her a notice stating that she could attend a hearing to
            convince the board of the reasons she should be reinstated.
            The Superior Court held that dismissing the teacher without
            a prior hearing violated the statutory procedure in effect at
            that time. These deviations from the statutory procedures
            constituted ‘fatal defects,’ making the school board’s
            dismissal an ‘illegal’ act. Id. at 203. Accordingly, the
            Superior Court reversed the school board’s decision.

Neshaminy Sch. Dist., 84 A.3d at 397-98 (footnote omitted; emphasis added). This
distinction between the violations in Oxford and Swink demonstrates the proper
manner of disposition in such circumstances. In Oxford, the due process violation
occurred when the board failed to provide an impartial and unbiased hearing and thus,
the violation could be cured with a remand for a new hearing. In contrast, the
Superior Court in Swink found that the school board’s action in employer dismissing
a tenured teacher without following the statutory procedure for employment
termination constituted a fatal defect. The facts herein are similar to those of Swink.
Notably, the Swink Court stated:

            Our appellate courts have frequently held that a valid and
            enforceable contract between a teacher and a school district
            could be created only by compliance with the strict
            requirements of the statute. Likewise, in dismissing a
            teacher, an observance of the procedure prescribed is

                                          25
            mandatory. The board of school directors cannot be
            relieved of the consequences of its failure to observe the
            essential statutory requirements in dismissing a teacher any
            more than a teacher can be relieved from showing the vital
            and essential elements required to make a valid and
            enforceable contract between the teacher and the school
            district when such teacher seeks to enforce such contractual
            obligation. The procedure which the board adopted was
            irregular and fatally defective. There was no required
            statement of charges before dismissal, no proper notice
            of hearing before dismissal, and no recording on the
            minutes how each member voted after such hearing. The
            action of the board, and the affirmance of such action by
            the court below, must be reversed for want of compliance
            with the provisions.

Id. at 204 (emphasis added). Failure to follow the statutory mandatory termination
procedures is fatal and requires reversal of the District’s action as opposed to
remanding (as in Oxford which involved the denial of an impartial and unbiased
hearing). Here, the specific procedural defects are as follows. Pursuant to well-
established case law, the District was required to pass a resolution that it had
sufficient evidence to support Jones’ employment termination prior to sending him a
notice of charges and intent to terminate his employment. The District did not do so.
Further, pursuant to the School Code, Jones’ notice was required to be attested by the
SRC Secretary. It was not.
            Most importantly, the date of Jones’ notice of charges and hearing date
was actually the effective date of Jones’ employment termination because it expressly
stated: “This is to advise you that we shall recommend to the [SRC] that your
employment with [t]he [District] be terminated effective immediately.            The
[District’s] Payroll Department shall be advised to make the necessary salary
adjustments.” R.R. at 727a (emphasis added). The fact that his pay was stopped as
of that date makes it undisputable that Jones’ employment was terminated as of that
date which is directly contrary to the School Code’s requirement that a hearing pre-


                                         26
date the employment termination. Indeed, the required resolution took place after the
hearing. As the Swink Court held: dismissing a teacher without a prior hearing
violated the statutory procedure in effect at that time. These deviations from the
statutory procedures constitute ‘fatal defects,’ making the school board’s dismissal
an ‘illegal’ act. Id. at 203 (emphasis added). As in Swink, we find the District’s
failure to follow Section 1127 of the School Code prior to terminating Jones’
employment a fatal defect mandating reversal.
             When the District discharges a professional employee without full
compliance with the School Code, “the employee is entitled to reinstatement.” West
Shore Sch. Dist., 409 A.2d at 480 (emphasis added). “We have repeatedly held that
no dismissal of a tenured professional employee can be valid unless the dismissing
school district acts in full compliance with the Code.” Id. “The only conclusion we
can reach on these facts is that [Jones’] dismissal was a nullity and that []he must be
treated as if h[is] employment were never terminated.” Id. Thus, Jones is entitled to
be reinstated to his former position with back pay, minus his obligation to mitigate
damages, until the District properly terminates his employment in conformity with
the procedural due process requirements set forth in the School Code.
             Due to the District’s violation of Section 1127 of the School Code,
and its consequential denial of Jones’ due process rights, this Court is duty-
bound to reverse the Acting Secretary’s November 5, 2013 order discharging
Jones as of December 15, 2010, and sustain the Secretary’s September 13, 2011 order
reinstating Jones. Accordingly, Jones is reinstated to his position as a professional
employee until the District properly terminates his employment in accordance
with the School Code and shall be entitled to the amount of compensation he is due
as a result of his dismissal.




                                          27
                                       Damages
             With respect to Jones’ damages, the law is well established that “[a]
school teacher is not a public officer, but is an employe[e] of the school district, and
the ordinary rules relating to damages for breach of contract of employment apply.”
Coble v. Sch. Dist. of Metal Twp., 116 A.2d 113, 115 (Pa. Super. 1955) (citation
omitted). “Where a teacher is wrongfully discharged, he is to be compensated for
loss of salary during such period, but there is no requirement that the school district
pay the compensation provided in the contract regardless of set-off or the amount of
damages the employe[e] has suffered.” Id.

             [W]e find no apparent reason why the ordinary rules
             relating to damages for breach of contract of employment
             should not be applied. As stated in 47 Am.Jur., Schools, §
             145, p. 402: . . . [I]n an action for breach of contract by one
             employed as a teacher, the measure of damages is the wages
             which were to be paid, less any sum actually earned, or
             which might have been earned, by the [teacher] by the
             exercise of reasonable diligence in seeking other similar
             employment.
Id. at 116. More recently this Court held in Merrell v. Chartiers Valley School
District, 51 A.3d 286 (Pa. Cmwlth. 2012):

             A plaintiff has a duty to mitigate damages. Circle Bolt &
             Nut Co. v. Pa. Human Relations Comm’n, 954 A.2d 1265
             (Pa. Cmwlth. 2008). The duty to mitigate damages,
             however, ‘is not onerous and does not require success.’ Id.
             at 1270. All that is required to mitigate damages is to make
             ‘an honest, good-faith effort.’ Id. at 1271. The employer
             has the burden of proving that substantially comparable
             work was available and that the plaintiff failed to exercise
             reasonable due diligence in seeking alternative
             employment. The substantially comparable or equivalent
             work refers to employment which affords virtually identical
             opportunities for a promotion, compensation and

                                           28
              responsibilities. Whether the plaintiff properly mitigated
              damages is a factual determination to be made by the fact-
              finder.[10]
Merrell, 51 A.3d at 298 (citations omitted). Accordingly, we remand this matter to
the Secretary of Education to determine the amount of compensation due Jones.


                                         Conclusion
              This Court does not condone Jones’ conduct. However, we resist the
urge to permit “bad facts [to] make bad law.” Doggett v. United States, 505 U.S.
647, 659 (1992) (Thomas, J., dissenting) (emphasis added); Berg v. Nationwide Mut.
Ins. Co., 6 A.3d 1002, 1017 n.3 (Pa. 2010) (Baer, J., concurring and dissenting)
(emphasis added); see also Commonwealth v. States, 938 A.2d 1016, 1028 (Pa. 2007)
(Castille, J., dissenting). Given our conclusion that the District failed to adhere to the
mandatory provisions of the School Code when it terminated Jones’ employment, and
the precedential effect of this Court’s decision on subsequent employment actions
involving tenured professional employees by this and other school districts, we are
constrained to reverse the Acting Secretary’s decision.
              The Legislature enacted the School Code and provided “explicit
procedural safeguards” that it required school boards to use when terminating the
employment of a tenured professional. Neshaminy Fed’n v. Neshaminy Sch. Dist.,
462 A.2d 629, 636 (Pa. 1983). Our Supreme Court clearly and unambiguously stated
that there must be full compliance with the provisions of the School Code in order to
effectuate employment termination of a tenured professional. Were we to affirm the
Acting Secretary’s order, allowing her review to cure the District’s non-compliance
with the School Code, we would eviscerate the very statutory protections that the
Legislature afforded tenured professionals, thereby contravening legislative intent. In

       10
         “Jones has, since his dismissal, mitigated his damages by working in a charter school in
Philadelphia, and for the Upper Darby public school district.” Jones Br. at 29 n.9.
                                               29
essence, we would be amending the statute. This we may not do. See Mohamed v.
Dep’t of Transp. Bureau of Motor Vehicles, 40 A.3d 1186 (Pa. 2012). We may not,
and will not encourage school boards and other government entities whose decisions
are subject to review to disregard their mandatory statutory duties based on the belief
that their malfeasance will be cured.
             For all of the above reasons, the Acting Secretary’s order is reversed and
the matter is remanded to the Secretary of Education with the direction to reinstate
Jones and to calculate the compensation which he is due taking into consideration
Jones’ obligations to mitigate his damages.


                                        ___________________________
                                        ANNE E. COVEY, Judge




                                          30
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


The School District of                         :
Philadelphia,                                  :
                            Petitioner         :
                                               :
               v.                              :
                                               :
Ellis Jones,                                   :   No. 2150 C.D. 2013
                            Respondent         :

Ellis Jones,                                   :
                            Petitioner         :
               v.                              :
                                               :
The School District of                         :
Philadelphia,                                  :   No. 2230 C.D. 2013
                            Respondent         :



                                         ORDER

               AND NOW, this 2nd day of June, 2016, the Acting Secretary of
Education’s November 5, 2013 order is REVERSED. Ellis Jones is hereby reinstated
to his position as a professional employee of the School District of Philadelphia and
the matter is REMANDED to the Secretary of Education for further proceedings
consistent with this Opinion.
               Jurisdiction is relinquished.


                                          ___________________________
                                          ANNE E. COVEY, Judge
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The School District of                    :
Philadelphia,                             :
                           Petitioner     :
                                          :
               v.                         :   No. 2150 C.D. 2013
                                          :
Ellis Jones,                              :
                           Respondent     :

Ellis Jones,                              :
                           Petitioner     :
                                          :
               v.                         :   No. 2230 C.D. 2013
                                          :   Argued: March 9, 2016
The School District of                    :
Philadelphia,                             :
                           Respondent     :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge


CONCURRING OPINION
BY JUDGE SIMPSON                          FILED: June 2, 2016

               I concur in the result reached by the Majority. I write separately to
reference an issue not fully developed by the parties: the consequences of de novo
review by the Secretary of Education. An argument could be made that de novo
review by the Secretary could cure certain procedural problems which occurred at
an earlier stage of teacher termination proceedings. However, the School District
does not make that argument. Accordingly, I need not address it in this case.
Hopefully, the result here will clarify procedures to be followed in the future in the
Philadelphia School District when a professional employee chooses a School Code
remedy over a collective bargaining agreement remedy.




                                ROBERT SIMPSON, Judge


Judges Cohn Jubelirer and McCullough join in this concurring opinion.




                                      RES - 2
