           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Timothy Metz,                              :
                     Petitioner            :
                                           :
              v.                           : No. 630 C.D. 2017
                                           : Argued: December 7, 2017
Bethlehem Area School District,            :
                 Respondent                :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
SENIOR JUDGE PELLEGRINI                           FILED: January 4, 2018


              Timothy Metz (Petitioner) petitions for review of the decision of the
Office of the Secretary of Education, Commonwealth of Pennsylvania (Secretary)
denying his appeal and affirming the Board of School Directors (Board) of the
Bethlehem Area School District’s (School District) termination of his tenured
employment pursuant to Section 1122(a) of the Public School Code of 1949
(School Code).1

       1
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 11–1122(a). Section 1122(a) of
the School Code states that a professional employee may only be dismissed for the reasons set
forth therein, including “immorality” and “wil[l]ful misconduct.” See Foderaro v. School
District of Philadelphia, 531 A.2d 570 (Pa. Cmwlth. 1987).

              The only valid causes for termination of a contract heretofore or
              hereafter entered into with a professional employe shall be
              immorality; incompetency; unsatisfactory teaching performance
              based on two (2) consecutive ratings of the employe’s teaching
              performance that are to include classroom observations, not less
(Footnote continued on next page…)
                                                I.
               Petitioner has been employed with the School District since 2004, and
at the time of his discharge, worked at East Hills Middle School (East Hills) as a
physical education teacher. He is tenured and a member of the teacher’s union,
Bethlehem Education Association (BEA).                 On February 4, 2016, the School
District received a copy of a letter dated January 27, 2016, which was addressed to
Petitioner’s counsel in a custody dispute and sent by opposing counsel, stating in
pertinent part:

               acknowledg[ing] receipt . . . of the Drug Test Results
               from Any Lab Test Now, which indicate a positive result
               for Cocaine Metabolites. We also received a copy of a
               Prescription from [Petitioner’s] Physician indicating that


(continued…)

               than four (4) months apart, in which the employe’s teaching
               performance is rated as unsatisfactory; intemperance; cruelty;
               persistent negligence in the performance of duties; wil[l]ful
               neglect of duties; physical or mental disability as documented by
               competent medical evidence, which after reasonable
               accommodation of such disability as required by law substantially
               interferes with the employe’s ability to perform the essential
               functions of his employment; advocation of or participating in un-
               American or subversive doctrines; conviction of a felony or
               acceptance of a guilty plea or nolo contendere therefor; persistent
               and wil[l]ful 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
               employe . . . .

24 P.S. § 11–1122(a) (emphasis added). “It is thus apparent that the legislature intended to
protect tenure except for the serious charges listed.” Lauer v. Millville Area School District, 657
A.2d 119, 121 (Pa. Cmwlth. 1995).




                                                2
             he takes prescription medication which could produce a
             false positive result for Marijuana.

             However, I note that under the Interim Order of
             December 31, 2015, [Petitioner] is to undergo random
             drug screening through SASY [Substance Abuse
             Screening Services, Inc.] for a period of eight (8) weeks.
             We have received no confirmation that [Petitioner] has
             complied with this provision of this Order.


(Reproduced Record (R.R.) at 152a.) As a result, Russell Giordano (Director
Giordano), the School District’s Human Resources Director, immediately went to
East Hills and met with Petitioner as well as his union representative. During that
meeting, Director Giordano asked Petitioner to submit to a drug test and informed
him that if he did not, he would be placing his job in jeopardy.


             Because Petitioner refused to submit to that drug test, Director
Giordano placed him on unpaid suspension. The same day, Petitioner’s counsel
sent a letter to the School District, providing “documentation of [Petitioner] as to
his prescription medication illustrating a ‘false positive result’ on a drug screen.”
(R.R. at 153a.)


             By letter dated February 8, 2016, Petitioner was again directed to
submit to a drug test. That letter provides, in relevant part:

             This directive is pursuant to 24 P.S. [§] 14-1418(c)[2] and
             based upon reasonable suspicion of [Petitioner’s] drug


      2
         Section 1418(c) of the School Code provides that: “School boards may require a
special medical examination for any school employe at any time.” 24 P.S. § 14-1418.



                                           3
                 use in violation of School District Board Policy 451[3]
                 and the Pennsylvania School Code.                 The

        3
            The School District’s Policy 451, “Drug and Substance Abuse” provides, in pertinent
part:

                 Purpose
                 The Board recognizes that the misuse of drugs is a serious problem
                 with legal, physical and social implications for the whole school
                 community and is concerned about the problems that may be
                 caused by employees, especially as the use relates to an
                 employee’s safety, efficiency and productivity.

                 The primary purpose and justification for any district action will be
                 for the protection of the health, safety and welfare of students, staff
                 and school property.

                                                 ***

                 Authority
                 The Board requires that each professional employee be given
                 notification that, as a condition of employment, the employee will
                 abide by the terms of this policy and notify the district of any
                 criminal drug statute conviction for a violation occurring in the
                 workplace no later than five (5) days after such conviction.

                 An employee convicted of delivery of or possession of a controlled
                 substance with the intent to deliver shall be terminated from his/her
                 employment with the district.

                 Delegation of Responsibility
                 A statement notifying employees that the unlawful manufacture,
                 distribution, dispensing, possession, or use of a controlled
                 substance is prohibited in the employee’s workplace shall be
                 provided by the Superintendent and shall specify the actions that
                 will be taken against the employee for violation of this policy, up
                 to and including termination, and referral for prosecution.

                                                 ***

                 The district shall be responsible for taking action within thirty (30)
                 days of receiving notice, with respect to any convicted employee.
(Footnote continued on next page…)

                                                   4
              Administration’s reasonable suspicion is based upon
              information disclosing that [Petitioner] recently tested
              positive for cocaine metabolites. He has submitted a
              physician’s note indicating that he is prescribed
              medication that could result in a false positive result for
              THC; but the note did not indicate the potential to test
              positive for cocaine metabolites. Moreover, School
              District’s third party testing administrators provide the
              opportunity for a confirmation test if there is a false
              positive.

              If the test is satisfactory, [Petitioner] can meet with the
              HR Director (Mr. Giordano), to arrange a return to work.
              If he does not comply with the aforementioned directive,
              the Administration will recommend his termination from
              employment based upon failure to comply with
              Administrative directives; violation of the Pennsylvania
              School Code; School District Policy, and willful neglect
              of duties.


(R.R. at 156a) (footnotes added). On February 9, 2016, five days after refusing the
first drug test, Petitioner submitted to a urinalysis drug test.


              Consistent with the custody dispute letter, Petitioner tested positive
for cocaine metabolites. (See R.R. at 163a.)


(continued…)


              The district shall take appropriate personnel action against such an
              employee, up to and including termination, and may require the
              employee to participate satisfactorily in a drug abuse assistance or
              rehabilitation program approved for such purposes by a federal,
              state or local health, law enforcement, or other appropriate agency.

(R.R. at 172a-173a.)




                                               5
               The next day, Dr. Joseph J. Roy (Superintendent Roy), the School
District’s Superintendent, sent Petitioner a Loudermill notice4 stating that he would
be discharged because he “exhibited willful neglect of duties and immoral conduct
in violation of . . . School District Policy 451 and the Pennsylvania School Code 24
[§] P.S. 11-1122” because he refused to take a drug test and then tested positive for
cocaine metabolites on a subsequent test. (R.R. at 158a.) Petitioner voluntarily
waived that hearing.


               Then, on March 7, 2016, the School District sent Petitioner a
Statement of Charges and Notice of Hearing, notifying him that it was
recommending his dismissal from employment and that he was being charged with
willful neglect of duties and immorality in violation of the Pennsylvania School
Code and School District Policy 451. (See R.R. at 166a-167a.) Following a
continuance, a hearing was held before the Board on April 28, 2016.


       4
        Pursuant to the Supreme Court of the United States’ decision in Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985):

               The essential requirements of due process . . . are notice and an
               opportunity to respond. The opportunity to present reasons, either
               in person or in writing, why proposed action should not be taken is
               a fundamental due process requirement. The tenured public
               employee is entitled to oral or written notice of the charges against
               him, an explanation of the employer’s evidence, and an
               opportunity to present his side of the story. To require more than
               this prior to termination would intrude to an unwarranted extent on
               the government’s interest in quickly removing an unsatisfactory
               employee.

Id. at 546 (citations omitted).




                                                6
                                          II.
             Before the Board, Director Giordano testified that on February 4,
2016, he received a call from the Superintendent’s Office informing him of a letter
between two attorneys in Petitioner’s custody dispute acknowledging receipt of
Petitioner’s positive drug test result for cocaine metabolites. Based upon that
letter, Director Giordano stated that he went immediately to East Hills to meet with
Petitioner because “anytime that we receive information that a faculty member is
potentially under the influence of an illegal substance, we have an obligation to
react to that and investigate that.” (R.R. at 33a.)


             Director Giordano testified that he then held a meeting with Petitioner
and the president of the BEA, Jolene Vitalos, as well as the principal of East Hills.
He explained that during that meeting, Petitioner “wouldn’t look at me. Wouldn’t
shake hands with me. Was pretty hostile.” (R.R. at 35a.)

             He was slouching in his chair and you know, twisting
             back and forth in his chair, obviously upset. And I told
             him that we were in receipt of information that would
             require us to ask him to go for a drug screen that day.

             He simply shook his head no. And again, wasn’t looking
             at me. Simply shaking his head no. And then I informed
             him that by not agreeing to go for the test, he would be
             placing his job in jeopardy and that I would have no
             choice but to put him on unpaid suspension immediately.

             Mrs. Vitalis [sic] then said we will not be going for a
             drug test. And she informed me that they would grieve
             the suspension.




                                           7
(R.R. at 35a.) Director Giordano also talked to Petitioner about the Employee
Assistance Program, which is for School District employees who have problems
with drugs and alcohol, and offered him a brochure. However, Petitioner “tossed
the brochure back at [Giordano] across the table, obviously not interested.” (R.R.
at 36a.) Petitioner was then placed on unpaid suspension.


              Five days later, Petitioner submitted to a urinalysis drug test following
a second request by the School District. After that test came back positive for
cocaine metabolites, the School District issued a Statement of Charges and Notice
of Hearing.     Director Giordano recommended Petitioner’s discharge for two
reasons:

              Well, number one, I think that the standards of the
              district and the standards of the community are pretty
              clear. And I can’t imagine parents being supportive of
              having faculty members who have been tested positive
              for an illegal substance.

              Number two, one of the things I remember [Petitioner]
              talking about in the meeting, one of the few things he
              said in that meeting with me -- and I can’t remember
              exactly. But the sense was, “what’s the big deal? A
              lot of people do that.”

              And I remember saying to him, well, if a lot of people are
              doing it, you give me some names. And I will make sure
              that I investigate that.

              So I didn’t sense any -- anything from him that told me
              he thought this was wrong. So if you’ve committed a
              crime and you don’t even think it’s wrong, how am I
              supposed to feel good about that, in terms of a teacher?




                                           8
(R.R. at 42a-43a) (emphasis added).


             Director Giordano testified that, to his knowledge, Petitioner has
never been arrested for or charged with a drug offense.          When he met with
Petitioner on February 4, 2016, he did not observe Petitioner stumbling and “to the
extent that he was speaking, I suppose he was coherent. I didn’t get much out of
him.” (R.R. at 56a-57a.) As to why Director Giordano required a urinalysis drug
test, he explained:

             I guess what I want to say is, that school districts have an
             obligation to the parents who send their children to us
             every day, to make certain that there is a fully
             functioning, certified, competent teacher in every class,
             every day.

             People who are on drugs are likely not fully functioning
             every day. We have an obligation to investigate when
             evidence comes to us, that says we may have a problem;
             hence, the drug test.


(R.R. at 64a.)


             The School District then presented Dr. Rosemary Szollas (Dr.
Szollas), a physician and certified medical review officer, who testified that she
reviewed Petitioner’s February 9, 2016 drug test and it indicated a quantitative
value of 537 nanograms of a biological metabolite of cocaine.               Dr. Szollas
explained that 537 nanograms is “[d]efinitely high, . . . above the cutoff, which
would indicate use of the substance or some fashion, the substance was in the
individual or the living being.” (R.R. at 72a.) She further testified:


                                          9
              I can state with medical certainty, that I have a positive
              cocaine result in front of me. I can state with medical
              certainty, based on scientific literature. That chronic use
              of cocaine would be probably present within four to
              five days in urine after use and with a one time use
              probably within two to three days after use.


(R.R. at 74a) (emphasis added).


              To demonstrate that Petitioner’s conduct was immoral,5 the School
District also presented Superintendent Roy, who testified that he has been the
Superintendent of the School District for approximately five-and-a-half years and
during that time he has resided in Bethlehem City. He previously served as the
Assistant Principal in the School District’s Liberty High School from 1992-1995.
Due to his employment and residency in the School District, he testified that he has
a good sense of the community morals. He explained, “I think that a teacher who

       5
         Under Section 1122 of the School Code, conduct constituting “immorality” is cause for
termination of a tenured professional employee. 24 P.S. § 11–1122. While not defined in the
School Code, Pennsylvania 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.’” McFerren v. Farrell Area School District, 993 A.2d 344, 353 (Pa. Cmwlth.
2010) (quoting Horosko v. School District of Mt. Pleasant Township, 6 A.2d 866, 868 (Pa.
1939)).

              To establish immorality, a school district must prove three
              elements: (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, 993 A.2d at 354.




                                              10
has tested positive for cocaine is a clear contradiction to the expectations of the
community.” (R.R. at 84a.) He further explained:

            I think that, you know, we had reasonable suspicion. We
            required the drug test. The test came back positive. The
            fact that a teacher who, again, has public trust to teach
            our community’s children, tested positive for the use of
            cocaine was enough of a violation to meet the immorality
            clause.

                                       ***

            So I think the context that I’m trying to provide is that we
            had the positive drug test. But the context of that was
            either the employee had enough cocaine built up in his
            system that he was still positive five days after he was
            directed to take the test, or, after he was confronted by
            his employer. And then still -- and then tested positive.

            So either way, the test, in my opinion, resulted in these
            charges of immorality.


(R.R. at 85a-86a.)


            Following the presentation of the School District’s case-in-chief,
Petitioner testified on his own behalf. He stated that he has never consumed
alcohol or any illegal drugs at work, never came to work impaired, and has never
been convicted of any drug-related offense. Petitioner testified that he was never
notified that he could be subjected to any type of drug testing while he was at work
under the collective bargaining agreement or the School District’s policy.




                                        11
              Petitioner explained that he refused the first drug test upon his union
representative’s instruction and because “I felt that it was not needed.” (R.R. at
106a.) Then, prior to the second drug test request but after the first request, he
admitted to taking cocaine at a Super Bowl party on February 7, 2016.6
Notwithstanding testing positive for cocaine use on at least two separate occasions,
Petitioner denied being a chronic cocaine user. In support of that assertion, he
provided ten drug screenings administered between February 11, 2016, and April
20, 2016, as part of his custody dispute, for which he tested negative for cocaine
metabolites. He admitted, however, that in addition to the February 9, 2016 drug
test, he tested positive for cocaine metabolites for a drug test administrated on
December 31, 2016. He also admitted that he would teach his own students that
cocaine is “a dangerous drug that should not be used.” (R.R. at 116a.)


              On     May      17,   2016,     the    Board     issued    an    Administrative
Recommendation that Petitioner be terminated from his employment with the
School District effective immediately, and Petitioner appealed. Following briefing
and argument, on April 21, 2017, the Secretary issued an order dismissing
Petitioner’s appeal and affirming the School District’s decision to terminate his
employment because he engaged in conduct constituting immorality by ingesting
cocaine, and because his refusal to submit to the February 4, 2016 drug test
constituted willful neglect of duty. Petitioner then filed this petition for review.7


       6
          Petitioner testified that the party was on February 6, 2016; however, we take judicial
notice that February 6, 2016, fell on a Saturday.

       7
          “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
(Footnote continued on next page…)

                                               12
                                             III.
              On appeal, Petitioner contends that the School District did not carry
its burden of proof in establishing that he engaged in immorality because the only
evidence the School District presented supporting that charge – the February 9,
2016 urinalysis drug test – was obtained unconstitutionally since it lacked
reasonable suspicion to order such a test.


                                             A.
              Article 1, Section 8 of the Pennsylvania Constitution provides:

              The people shall be secure in their persons, houses,
              papers and possessions from unreasonable searches and
              seizures, and no warrant to search any place or to seize
              any person or things shall issue without describing them
              as nearly as may be, nor without probable cause,
              supported by oath or affirmation subscribed to by the
              affiant.


Pa. Const. art. 1, § 8.      “Although Article [1], Section 8 of the Pennsylvania
Constitution is similar in phraseology to that of the Fourth Amendment of the
United States Constitution,[8] . . . [it] often provides greater protection since the
core of its exclusionary rule is grounded in the protection of privacy while the


(continued…)

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).

       8
         The Fourth Amendment of the United States Constitution guarantees “[t]he right of the
people to be secure in their persons . . . against unreasonable searches and seizures.” U.S.
Const. amend. IV (emphasis added).



                                             13
federal exclusionary rule is grounded in deterring police misconduct.”
Commonwealth v. Williams, 692 A.2d 1031, 1038 (Pa. 1997) (footnote added).


            A government employer’s – here, a public school’s – collection and
testing of urine constitutes a “search” for purposes of the Fourth Amendment and
Article 1, Section 8 of the Pennsylvania Constitution. See Skinner v. Railway
Labor Executives’ Association, 489 U.S. 602, 616-17 (1989) (holding collection
and analysis of urine samples constitutes a Fourth Amendment search).


            Ordinarily, for a search by the government to be considered
constitutionally “reasonable” it must be undertaken by warrant demonstrating
probable cause. See Skinner, 489 U.S. at 619. “However, ‘probable cause’ is not
an irreducible requirement of a valid search. . . . Where a careful balancing of
governmental and private interests suggests that the public interest is best served
by a Fourth Amendment standard of reasonableness that stops short of probable
cause, we have not hesitated to adopt such a standard.” New Jersey v. T.L.O., 469
U.S. 325, 340-41 (1985). This principle applies equally to government employers
who have a paramount interest in assuring that employees in safety-sensitive jobs
are free from the effects of drugs while performing their duties and whose
employees have a lower expectation of privacy with regard to intoxication. See
Skinner, 489 U.S. at 633-34 (upholding blood and urinalysis drug screening of
railway employees involved in train accidents); National Treasury Employees v.
Von Raab, 489 U.S. 656 (1989) (upholding urinalysis drug tests for United States
Customs Service employees seeking transfer or promotion to certain positions);
Copeland v. Philadelphia Police Department, 840 F.2d 1139 (3d Cir. 1988)



                                        14
(upholding the compulsory urinalysis of a police officer suspected of using illegal
drugs); Majewski v. Fischi, 372 Fed. App’x 300 (3d Cir. 2010) (upholding
breathalyzer test of corrections officer based on particularized suspicion).


             The parties do not dispute, and we agree, that public school teachers –
like railroad workers, corrections officers and police officers – also hold safety-
sensitive jobs and, accordingly, can be compelled to submit to drug testing based
on reasonable suspicion. See Donegan v. Livingston, 877 F. Supp. 2d 212, 221
(M.D. Pa. 2012), aff’d, 523 Fed. App’x 195 (3d Cir. 2013) (“Thus, on the balance,
this sort of warrantless Breathalyzer testing of school employees based on
reasonable suspicion is reasonable under the Fourth Amendment.”).


                                          B.
             Reasonable suspicion “is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of the
evidence[,]” yet still requires “more than an inchoate and unparticularized
suspicion or ‘hunch’ of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 123-
24 (2000) (citations and quotations omitted). Like the probable-cause standard,
“the totality of the circumstances – the whole picture – must be taken into
account.” United States v. Cortez, 449 U.S. 411, 417 (1981). Where, as here, a
search is based upon information obtained from an informant, courts look to three
factors: the informant’s veracity, the reliability of the information, and the basis of
knowledge. Commonwealth v. Allen, 725 A.2d 737, 740 (Pa. 1999).




                                          15
             In this matter, there was obviously reasonable suspicion to compel a
urinalysis drug test. First, the School District received a letter dated a week prior
which was not by an anonymous informant but correspondence between two
identified attorneys in a custody proceeding.       The fact that the parties were
identified must be given significance as counsel’s identity exposes him to risks of
professional and legal reprisal. See Commonwealth v. Jackson, 698 A.2d 571, 574
(Pa. 1997) (noting “a known informant places himself or herself at risk of
prosecution for filing a false claim if the tip is untrue, whereas an unknown
informant faces no such risk”).


             Second, the information contained in that letter appears reliable, as it
was highly specific and corroborated by additional information.             See, e.g.,
Commonwealth v. Barber, 889 A.2d 587, 595 (Pa. Super. 2005) (holding a tipster’s
information was “sufficiently specific and reliable” to provide reasonable suspicion
for a traffic stop where the informant provided a “specific description of the
vehicle, driver, and activity at issue”). Here, the letter describes the date of the
court order, what it pertained to, Petitioner’s drug test results, and that he may have
falsely tested positive for marijuana. The fact that the date of the letter and
underlying order both occurred in close proximity to the date received, and that the
letter conveys the possibility that Petitioner was not complying with an order
directing him to undergo further drug tests, lends to the conclusion that Petitioner
may have been under the influence of drugs while teaching.


             Moreover, subsequent events that took place prior to Petitioner’s
eventual drug test also corroborated the letter’s conveyed information.            For



                                          16
instance, prior to requesting the February 9, 2016 drug test, Petitioner’s counsel
provided documentation confirming that Petitioner was on medication that could
cause a false positive drug test result for marijuana use.                   This information,
combined with Petitioner’s cavalier attitude at the outset of the February 4, 2016
meeting, corroborated the suspicion that Petitioner did, in fact, use cocaine and
may have been under the influence while teaching.


               Lastly, the information in the letter was based on personal, first-hand
knowledge of Petitioner’s drug test, which lends to the conclusion that it should be
treated as trustworthy. See In the Interest of O.A., 717 A.2d 490 (Pa. 1998).
Specifically, Petitioner’s drug test results were not obtained through hearsay, but
rather because of a court order issued in a matter involving a custody dispute and
provided by opposing counsel.


               Accordingly, because there was reasonable suspicion to conduct the
urinalysis test and Petitioner does not otherwise challenge the Secretary’s
determination that his conduct constituted immorality, we affirm the Secretary’s
order.9


                                             ___________________________________
                                             DAN PELLEGRINI, Senior Judge


       9
         Petitioner also contends that the Secretary erred when determining that he engaged in
willful neglect of his professional duties. However, because of the manner in which we have
resolved this appeal, we do not reach that issue. See Horton v. Jefferson County-DuBois Area
Vocational Technical School, 630 A.2d 481, 483 (Pa. Cmwlth. 1993) (“This court need only find
one of the grounds for the dismissal valid in order to affirm the Secretary’s dismissal of Horton’s
appeal.”).



                                               17
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Timothy Metz,                             :
                   Petitioner             :
                                          :
             v.                           : No. 630 C.D. 2017
                                          :
Bethlehem Area School District,           :
                 Respondent               :




                                     ORDER


             AND NOW, this 4th day of June, 2018, it is hereby ordered that the
order of the Office of the Secretary of Education, Commonwealth of Pennsylvania,
entered on April 21, 2017, is affirmed.



                                          ___________________________________
                                          DAN PELLEGRINI, Senior Judge
