            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Petition of The Gateway              :
School District to Approve The              :
Arming of School Police Officers            :
Pursuant to 24 P.S. Section 7-778,          :
et seq.                                     :
                                            : No. 1627 C.D. 2016
Appeal of: Gateway School District          : Submitted: January 13, 2017


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: February 15, 2017


               This is an appeal by the Gateway School District (School District)
from a decision of the Court of Common Pleas of Allegheny County (trial court)
denying its petition seeking permission to employ armed school police officers
purportedly as required by Section 778 of the Pennsylvania School Code (School
Code).1      Because, under that provision, the trial court had no discretion to
determine whether a school district should implement a program to employ armed
school police officers but only to determine whether individuals the School District
proposes to hire have the requisite training and possess the character to serve, relief
that the School District did not seek, we vacate the trial court’s order.




      1
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §7-778.
             On June 21, 2016, the School District enacted a Resolution directing
its Solicitor to present a petition with the trial court for approval to “designate
school police officers . . . [and] authorizing the arming of School Police Officers
with . . . the power to arrest, issue citations for summary offenses, and/or detain
students until arrival of local law enforcement pursuant to the Pennsylvania School
Code, specifically 24 P.S. §7-778.” (Reproduced Record (R.R.) at 9a.)


             In accordance with the Resolution, the School District Solicitor filed a
“Petition to Approve the Arming of School Police Officers pursuant to 24 P.S. 7-
778, et seq.” with the trial court. (R.R. at 2a.) The School District requested the
trial court to issue an order allowing:

             6. Gateway School District seeks to arm all future School
             Police Officers based upon the extensive training
             received in accordance with 24 P.S. §7-778 as well as the
             Pennsylvania State Police Academy.

             7. Gateway School District also desires that such School
             Police Officers have the power to arrest, issue citations
             for summary offenses and/or detain students until the
             arrival of local law enforcement in accordance with 24
             P.S. §7-778[.]


(R.R. at 2a-3a.) No approval was sought for specific individuals to be hired as
school police officers. On August 21, 2016, a hearing was held on the petition.


             At that hearing, school board member Mary Beth Cirucci (Cirucci),
the board member behind the creation of the school police force, testified that
before the Resolution was enacted, a committee of school board members was

                                          2
created to examine whether the School District should employ police officers. She
testified that the committee consulted with Human Resource Manager Patricia
Crump (Crump) and two retired police officers, Bryan Key (Key) and Jonathan
Pawlowski (Pawlowski), who were both ultimately hired by the School District.
She also contacted other school districts that had hired police officers to determine
what advantages and disadvantages there were to having School District police.


              Cirucci also testified that there are already two police officers in the
School District from Monroeville Borough, but the current proposed program
would be more expansive and save the $75,000 per police officer now being paid
to Monroeville. She explained that only those who were honorably retired from
other municipal or state police work with a minimum of 25 years of service would
be hired. She believed that this requirement would relieve the School District of
providing health insurance coverage for these officers.2 (R.R. at 100a-102a.)


              Another school board member, Chad Stubenbort, testified that police
officers were needed in the School District’s schools to insure the safety of its
students, teachers and staff in order to respond to horrific events such as those that
occurred at Sandy Hook and in a neighboring school district.




       2
         Section 778(g) of the School Code, 24 P.S. §7-778(g), provides “When acting within
the scope of this section, school police officers shall, at all times, be employes of the school
entity or nonpublic school and shall be entitled to all of the rights and benefits accruing
therefrom.”



                                               3
                Key and Pawlowski each testified that all applicants receive the
required training set forth in Section 778(b.1) of the School Code, 24 P.S. §7-
778(b.1). Pawlowski also testified about a support program for this kind of project
referred to as ALICE - an acronym for a federal program providing a 40-hour
module of specialized training for school police officers. Pawlowski had not taken
that program but intended to and to use it to train other officers who would be
hired.3


                On September 16, 2016, the School District sought expedited
consideration because it “believes that it is imperative that a decision be made
without much further delay as the safety of its students are of the Petitioner’s
utmost concern and it is their [sic] belief that this proposed police force would not
only provide for another layer of defense and protection but may deter or prevent
potential catastrophic attacks at their [sic] schools.” (R.R. at 141a-142a.)


                To that request for expedited consideration, the School District
attached a proposed order that reiterated the relief it requested in its original
petition requiring the School District make annual reports to the Department of
Education as well as implementing policies regarding the responsibilities of its
school police officers.4 It also, for first time, identified 11 individuals who the



       3
        Crump testified about the training requirements and Department of Education resources
and reporting requirements regarding school police officers.

       4
           Those paragraphs of the proposed order are:

(Footnote continued on next page…)
                                                 4
school board had approved as school police officers. It did not seek trial court
approval nor were they mentioned at the hearing.


                  The trial court denied the petition. While recognizing that school
districts have the right to create their own police force, it found that the
implementation of that authorization is given over to the judiciary. It went on to
explain that it denied the petition because more thought was needed as to whether a
school police force should be created, as well as what type of training is needed for
school police officers who would be armed. The trial court also stated its concern
that once this police force is approved and put into place, it can never be disbanded
except by extraordinary efforts by succeeding school boards, and that it had not
seen any evidence that the existing police forces serving the School District are not
up to the task. It also lamented that the Department of Education failed to offer
proper guidance on the issue and that it believed “broad police powers would
clothe these new private police with super discipline powers in the school . . . .”
(R.R. at 152a.) It also took exception to the fact that the School District did not


(continued…)

                  5. Gateway School District shall comply with the annual reporting
                  to Department of Education, Office of Safe Schools, in accordance
                  with the Public School Code.

                  6. Gateway School District will at its discretion develop and
                  implement policies, procedures and rules regarding the
                  responsibilities and duties of these officers in accordance with the
                  law of the Commonwealth of Pennsylvania.

(R.R. at 144a.)



                                                   5
involve an educator, mental health professional, school psychologist or child
development specialist in deciding to create a school police force.         It also
expressed concern that students would steal guns from the School Police as a
prank. Finally, the trial court found that more study was needed to determine
whether giving full police power to what it characterized as independent private
police is a good idea because it can lead to abuses, stating:

             [T]he politically charged atmosphere surrounding this
             issue leads me to conclude that these private police may
             be used to further particular School Board goals and
             desires beyond child safety. In the event of a labor
             dispute between the School District and any of its
             collective bargaining units, picket lines would be a sharp
             focus of these private police to the detriment of picketers
             and serve to chill collective bargaining.


(R.R. at 152a-153a.)


             The School District then filed this appeal contending that the trial
court abused its discretion by adding additional standards and requirements not
found in Section 778 of the School Code, 24 P.S. §7-778, and substituting and
applying its knowledge and life experience in denying the School District’s request
to have armed police officers.


             We are nonplussed on how to approach this appeal because we do not
agree that a court of common pleas is required under 24 P.S. §7-778 to approve the
creation of a school police department or has any role in how it is to be
implemented. Section 778(a) of the School Code provides that:


                                          6
             (a) Any school entity or nonpublic school may apply to
             any judge of the court of common pleas of the county
             within which the school entity or nonpublic school is
             situated to appoint such person or persons as the board
             of directors of the school entity or administration of the
             nonpublic school may designate to act as school police
             officer for said school entity or nonpublic school. The
             judge, upon such application, may appoint such person,
             or so many of them as he may deem proper, to be such
             school police officer and shall note the fact of such
             appointment to be entered upon the records of the court.
             The judge may, at the request of the school entity or
             nonpublic school, grant the school police officer the
             power to arrest as provided in subsection (c)(2), the
             authority to issue citations for summary offenses or the
             authority to detain students until the arrival of local law
             enforcement, or any combination thereof.


24 P.S. §7-778(a) (emphases added.)


             Under this subsection, the School District may request that a “person
or persons” that the trial court approve to be appointed as a police officer be given
the power to arrest and detain students, “or any combination thereof.”            Id.
Subsection (c) in some ways is a repeat of what is set forth in subsection (a), but
sets forth as to what powers a school police officer is given by the trial court. It
provides:

             (c) Such school police officer so appointed shall
             severally possess and exercise all the following powers
             and duties:

                   (1) To enforce good order in school buildings, on
             school buses and on school grounds in their respective
             school entities or nonpublic schools. For purposes of this
             clause, the term “school bus” shall include vehicles
             leased by the school entity or nonpublic school to
                                         7
               transport students and vehicles of mass transit used by
               students to go to and from school when the school police
               officer is responding to a report of an incident involving
               a breach of good order or violation of law.

                     (2) If authorized by the court, to exercise the same
               powers as are now or may hereafter be exercised under
               authority of law or ordinance by the police of the
               municipality wherein the school property is located.

                      (3) If authorized by the court, to issue summary
               citations or to detain individuals until local law
               enforcement is notified.


Section 778(c) of the School Code, 24 P.S. §7-778(c) (emphasis added.)


               Under Section 778 of the School Code, 24 P.S. §7-778, the trial judge
does not approve the creation of a school police force but approves the
appointment of each police officer “as he may deem proper” that a school district
desires to employ. It also allows the school district various options as to the
powers that each school police officer has from only allowing that person to
“enforce good order”5 to give a school police officer full police powers,6 or
somewhere in between by limiting the police officer’s powers to issuing summary
citations only, similar to powers of a code enforcement officer and, for other
crimes, detain them until local law enforcement arrives. Section 778(c)(3) of the
School Code, 24 P.S. §7-778(c)(3). Presumably, a school district would make that
request based on the scope of powers that a school district wants all of its police

      5
          Section 778(c)(1) of the School Code, 24 P.S. §7-778(c)(1).

      6
          Section 778(c)(2) of the School Code, 24 P.S. §7-778(c)(2).



                                                8
officers to have. The trial court decides whether it is “proper” for that individual to
serve as a school police officer within the powers the school district proposes for
that person to have.


             Now to the School District’s request that its school police officers be
armed. Subsection (b.1) is the only provision dealing with the arming of school
police officers. It provides:

             Every school police officer who has been granted powers
             under subsection (c)(2) or (3) or has been authorized to
             carry a firearm must, before entering upon the duties of
             his office, successfully complete training as set forth in
             53 Pa.C.S. Ch. 21 Subch. D or have graduated from the
             Pennsylvania State Police Academy and have been
             employed as a State trooper with the Pennsylvania State
             Police.


Section 778(b.1) of the School Code, 24 P.S. §7-778(b.1) (emphasis added.)


             Under this subsection then, the trial court does not approve the arming
of school police officers.      The statute only provides that if a school district
authorized an individual to carry a firearm or the trial judge has granted that
individual police officer the powers set forth subsections (c)(2) or (3), then the
school police officer must have the training this subsection sets forth.


             To summarize: Section 778 of the School Code, 24 P.S. §7-778,
provides that only the trial judge is to determine if it would be “proper” to approve
a school district’s request to hire a particular individual who is to have the powers


                                          9
that the school district requests that individual have – keep peace, issue citations or
have full police powers. It is not within the trial court’s discretion to approve or
disapprove whether there should be a school police force or what powers that
school police force should exercise. However, who the trial court “deems proper”
to serve as a school police officer, after examining the character, competency and
integrity of the person for which approval is sought, is within the trial court’s
discretion.7

       7
         An example of what should be in the petition to approve a person to be appointed as a
school police officer to aid the trial court in making that determination is outlined in Monroe Co.
R.C.P. 206.8(b), which provides, in relevant part:

               (2) Application for School Police.

                      (i) An Applicant [School District] or the Solicitor on behalf
               of   Applicant     (hereafter    “Applicant/Solicitor”),    seeking
               appointment of school police officers pursuant to the Public School
               Code of 1949, as amended, 24 P.S. § 7-778 (hereafter “The School
               Code”), shall file an original and one copy of a Petition for
               Appointment of School Police with the Prothonotary.

                      (ii) Applicant must comply with all requirements set forth
               in The School Code and the Petition shall contain the following
               information:

                              (a) The name, address, social security number, date
               of birth, and dates of Act 34 [Section 111 of the Public School
               Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24
               P.S. § 1-111] clearance and the FBI investigation clearance for the
               Appointee(s) to be employed as a school police officer.

                              (b) The fingerprints of the Appointee(s).

                              (c) A report issued by the Federal Bureau of
               Investigation, United States Department of Justice, Investigation
               Division(“FBI”) indicating that the Appointee(s) has no arrest
               record.
(Footnote continued on next page…)
                                               10
             Accordingly, because the School District did not ask the trial court to
approve specific individuals to be appointed as school police officers and the trial
court did not have the authority to inquire into how a school district implemented a
program to hire school police officers, the order of the trial court is vacated.



                                                 ______________________________
                                                 DAN PELLEGRINI, Senior Judge




(continued…)


                             (d) A copy of the Request for Criminal History
             Record Check issued by the Pennsylvania State Police (PSP)
             indicating that the Appointee(s) has no arrest record.

                            (e) A statement by the Applicant representing that
             Appointee(s) is of good character and repute.

                            (f) A statement by the Applicant that the
             Appointee(s) has not resided outside the Commonwealth of
             Pennsylvania in any other jurisdiction since the FBI and PSP
             issued the reports verifying that the Appointee(s) does not have a
             criminal record.


                                            11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Petition of The Gateway           :
School District to Approve The           :
Arming of School Police Officers         :
Pursuant to 24 P.S. Section 7-778,       :
et seq.                                  :
                                         : No. 1627 C.D. 2016
Appeal of: Gateway School District       :




                                     ORDER


            AND NOW, this 15th day of February, 2017, the order of the Court of
Common Pleas of Allegheny County in the above-captioned matter is vacated.


            Jurisdiction relinquished.



                                              ______________________________
                                              DAN PELLEGRINI, Senior Judge
