          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert S. Fadzen, Jr.,                 :
                                       :
                           Appellant   :
                                       :
                   v.                  : No. 50 C.D. 2018
                                       : Argued: October 15, 2018
Pittsburgh Public School               :
District                               :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: April 4, 2019


             Robert S. Fadzen, Jr. (Fadzen) appeals the December 8, 2017 order of
the Court of Common Pleas of Allegheny County (trial court), which affirmed its
prior order upholding the Board of Public Education of the School District of
Pittsburgh’s (Board) decision to terminate Fadzen from his position as Chief of
School Safety. We affirm.


                                  I. Background
             At all relevant times, Fadzen was employed by the Pittsburgh Public
School District (District) as Chief of School Safety. Board’s Finding of Fact (F.F.)
No. 3.1 On July 22, 2011, two NorthWest EMS (NW EMS) employees, Raul
Sidhu and Emma Shaul, were commuting by ambulance back to the NW EMS base
in McKees Rocks, Pennsylvania, after completing a hospital transport. F.F. Nos.
45-46. As they entered the downtown Pittsburgh area, Sidhu, the driver, made
consecutive wrong turns onto Tenth Street and Fort Duquesne Boulevard. F.F. No.
47.      To correct this mistake, Sidhu and Shaul agreed to briefly engage the
emergency lights to safely execute a U-turn onto Fort Duquesne Boulevard. F.F.
No. 48. Sidhu made this U-turn directly in front of Fadzen, who was driving a
white SUV in the opposite direction.2 F.F. No. 49.
                  Fadzen began to closely follow Sidhu and Shaul and attempted to peer
inside the cab of the ambulance.3 F.F. No. 50. After some time, Fadzen engaged
his emergency lights and conducted a traffic stop just before the West End Bridge

         1
             Fadzen is also licensed to practice law in the Commonwealth of Pennsylvania. F.F.
No. 9.

         2
         After executing the U-turn, Sidhu disengaged the emergency lights and allowed the
other vehicles that had pulled over to pass him. F.F. No. 48.

         3
         At the public hearing, Sidhu testified that after he executed the U-turn, Fadzen pulled up
next to the ambulance, glared at him and mouthed words angrily toward him and Shaul, yelled
and clenched the steering wheel, and appeared to be enraged. F.F. No. 50. Sidhu stated that
Fadzen approached the ambulance wearing a white polo-shirt without insignia and that Fadzen
did not produce credentials exhibiting any authority to execute the traffic stop. F.F. Nos. 58, 59.
Sidhu testified that Fadzen spoke at a loud volume and interacted with him and Shaul
aggressively, both in words and in body language. F.F. No. 53. Sidhu said that Fadzen was
extremely angry, profane, and relatively out of control. Id.

        Shaul’s testimony corroborated Sidhu’s testimony. She also stated that Fadzen followed
the ambulance so closely that they would have been rear-ended had they needed to come to a
quick stop. F.F. No. 54. Shaul testified that Fadzen yelled profanities and obscenities, and
threatened to revoke Sidhu’s license and pursue further action by obtaining a warrant. F.F. No.
57.

                                                2
exit. F.F. Nos. 50, 55. Fadzen, who was not in uniform, identified himself as a
City of Pittsburgh (City) police officer. F.F. No. 58. While executing the traffic
stop, Fadzen used profane and offensive language; displayed aggressive
mannerisms; and behaved inappropriately and unprofessionally. F.F. Nos. 56, 57.
              After the traffic stop, Fadzen phoned the NW EMS base, spoke with
shift supervisor, Kevin Early, and reported that he had pulled over two employees
for executing an illegal U-turn with the emergency lights engaged.4 F.F. Nos. 60-
61, 70-71. While speaking with Early, Fadzen again used profanity, identified
himself as a City police officer, was inappropriate and unprofessional, and also
threatened to revoke Sidhu’s driving license and issue other citations.5 F.F. Nos.
68-74.
              Upon learning of the traffic stop, George Dudash, NW EMS owner,
investigated the incident and interviewed Sidhu, Shaul, and Early. F.F. Nos. 77-
82.6,7 On July 25, 2011, Dudash submitted a letter, with incident reports from
Sidhu, Shaul, and Early, to the Superintendent of Pittsburgh City Schools, Dr.


       4
         Sidhu and Shaul also phoned the NW EMS base to report the incident and spoke with a
dispatcher while Early was on the phone with Fadzen. F.F. Nos. 62, 75.

       5
         Early testified that although Fadzen initially appeared to be rational, Fadzen became
increasingly irate and aggressive. F.F. Nos. 68-69, 72. Early stated that by the end of their
conversation, Fadzen was yelling and Early could barely understand him. F.F. No. 73.

       6
         NW EMS employees discovered by internet research that Fadzen was actually a school
police officer and reported this information to Dudash. F.F. No. 83.

       7
          Dudash testified that Sidhu and Shaul both seemed frightened by Fadzen’s behavior
after the traffic stop. F.F. No. 81. Dudash stated that Fadzen’s reaction seemed over-the-top,
especially considering the minor infraction of making a U-turn with emergency lights engaged.
F.F. No. 85.

                                              3
Linda Lane.     F.F. Nos. 84-85.      In the letter, Dudash expressed concern for
Fadzen’s “road rage” behavior during the traffic stop and suggested the possibility
of Fadzen attending anger management classes. F.F. No. 27. Upon receipt of this
letter, the District hired Gretchen Love, Esq., and the firm of Campbell, Durrant,
Beatty, Palombo & Miller, P.C., to conduct an independent investigation of the
incident. F.F. Nos. 31-32. In the course of this investigation, Attorney Love
interviewed all persons involved in the traffic stop and gathered extrinsic evidence
to support or refute the allegations made in Dudash’s July 25 letter. F.F. No. 33.


                           A. District Meetings and Charges
              On September 16, 2011, Attorney Love and Director Jody Spolar, the
District’s Executive Director of Employee Relations and Organizational
Development, interviewed Fadzen to obtain his version of the events. F.F. No. 90.
Fadzen participated in the meeting with his union representative, id., and admitted
to pulling over the NW EMS ambulance on July 22, 2011, and contacting Early
afterwards, but denied acting in the inappropriate manner alleged in Dudash’s
letter. F.F. Nos. 94-95.
              Fadzen stated that when he first noticed the ambulance, he was sitting
in a school safety SUV parked at the local high school on Fort Duquesne
Boulevard. F.F. Nos. 91, 93. Fadzen explained that he was studying traffic
patterns at the direction of Board member Mark Brentley when he observed the
ambulance driving erratically. F.F. Nos. 92, 94. He stated that he conducted a
textbook traffic stop and that he was extremely polite and extremely respectful
when interacting with the NW EMS employees. F.F. No. 94. Fadzen denied using
threatening or profane language, misrepresenting himself as a City police officer,

                                          4
or being out of uniform at the time of the traffic stop. Id. Specifically, Fadzen said
that he could not have lost his temper with the NW EMS employees because he
had a medical condition and a history of health problems. F.F. No. 100. He also
claimed that a few days after the traffic stop, an unknown caller from NW EMS
contacted him and asked that he “go easy” on Sidhu. F.F. No. 96. Fadzen did not
document the results of his traffic study, the traffic stop, or any phone calls that he
received after the incident. F.F. Nos. 98-99. Following the meeting, Fadzen was
suspended without pay while the District continued its investigation. F.F. No. 101.
              Shortly thereafter, Fadzen hired counsel and then disputed the date of
the incident. F.F. No. 102. On October 26, 2011, Fadzen was afforded a second
meeting to clarify this inconsistency, which again was also attended by Attorney
Love, Director Spolar, and Fadzen’s counsel. F.F. No. 128. At the meeting,
Fadzen claimed that the traffic stop could not have occurred at the time or date
previously alleged because he was seeking treatment at the hospital during that
time.8 F.F. No. 129. Fadzen stated that on July 22, he went to lunch with his son
around 1:30 p.m., drove himself home once he began to feel ill, and rested at home
until driving himself to the hospital around 4:00 p.m. or 4:30 p.m. Id. Fadzen did
not notify anyone that he was leaving work early on July 22 or report any sick days
in July. F.F. No. 130.
              To determine the correct chain of events, Attorney Love reviewed cell
phone records, NW EMS records, Allegheny County emergency dispatch records,
and District employee sick records. F.F. No. 110. The investigation revealed that
on July 22, 2011, Fadzen observed the NW EMS ambulance make a U-turn around

       8
         Fadzen also provided unprompted details of his personal medical history that led to his
July 22 hospital visit. F.F. No. 129.

                                               5
4:40 p.m.; pursued the ambulance and conducted a traffic stop around 4:55 p.m. to
5:00 p.m.; called information for NW EMS’s dispatch number at 5:03 p.m.; called
the NW EMS dispatcher at 5:07 p.m.; drove to the hospital; and called his wife
once he had arrived at the hospital at 5:32 p.m. F.F. No. 121.
              The investigation into the July 22 traffic stop also revealed that
Fadzen had a history of excessive use of his authority as Chief of School Safety.
F.F. No. 144.9 The Board summarized this history as follows.
              On September 18, 1997, Fadzen conducted an illegal search outside of
school property.     F.F. No. 147.      The criminal case involving the search was
appealed to our Superior Court, which held that Fadzen did not have policing
authority outside of school property. Id. See Commonwealth v. Williams, 749
A.2d 957, 963 (Pa. Super. 2000).
              On March 1, 2000, Fadzen brought several unarmed school police
officers to “assist” in stopping a mass shooting in Wilkinsburg, Pennsylvania,
outside of school property. F.F. No. 149. By written reprimand, the then-District
superintendent warned Fadzen that he did not have police authority beyond school
boundaries without first obtaining her explicit permission. F.F. Nos. 150-51.
              On March 26, 2002, Fadzen received a second directive from the
District’s then-solicitor stating that although Board policy authorized school police
officers to operate within 1,000 yards of school property, Section 778 of the Public




       9
         Throughout these proceedings, Fadzen insisted that his police authority extended to
within 1,000 yards of school property. F.F. No. 145.


                                             6
School Code of 1949 (Public School Code)10 only granted school police officers
the authority to act on school property. F.F. No. 156.


       10
           Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §7-778 (repealed). The repealed
Section 778 of the Public School Code in effect at the time of Fadzen’s actions herein formerly
stated, in relevant part:

               (a) Any school district may apply to any judge of the court of
              common pleas of the county within which the school district is
              situated to appoint such person or persons as the board of directors
              of the school district may designate to act as school police officer
              for said school district. The judge, upon such application, may
              appoint such person . . . 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 district,
              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.

                                              ***

               (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 districts . . . .

               (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.

               (d) Such school police officer shall, when on duty, severally wear
              a metallic shield or badge with the words “School Police,” and the
              name of the district for which appointed. Such shield shall always
(Footnote continued on next page…)
                                                7
              On May 17, 2005, Fadzen was sitting in the driveway of his residence,
when a speeding car drove past him. F.F. No. 158. Fadzen pulled the car over in
Greentree, Pennsylvania, and took possession of the driver’s credit card and other
items but did not return them. F.F. No. 159. Fadzen mailed the driver three
citations, but failed to cite any supporting authority. F.F. No. 160. Fadzen did not


(continued…)

              be worn in plain view when on duty except when employed as
              detective.

24 P.S. §7-778. See now Section 1302-C of the Public School Code, added by the Act of June
22, 2018 P.L. 327, 24 P.S. §13-1302-C.

       As this Court has explained:

              Under [the former] Section 778 of the School Code, 24 P.S. §7–
              778 [(repealed)], 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” [under repealed Section 778(c)(1),
              24 P.S. §7-778(c)(1) (repealed),] to give a school police officer full
              police powers [under repealed section 778(c)(2), 24 P.S. §7-
              778(c)(2)(repealed)], 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)[(repealed)]. Presumably,
              a school district would make that request based on the scope of
              powers that a school district wants all of its police 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.

In re Gateway School District, 154 A.3d 886, 890 (Pa. Cmwlth. 2017).

                                                8
document or report the traffic stop to anyone at the District. F.F. No. 164. On
appeal, a magisterial district judge dismissed the citations based on Fadzen’s lack
of authority beyond school property. F.F. Nos. 161-62. The driver subsequently
filed a lawsuit against Fadzen and the District for malicious prosecution and false
arrest. F.F. No. 163. In 2007, the District’s then-solicitor learned of the 2005 case
and met with Fadzen and his union representative on October 26, 2007, to address
Fadzen’s lack of authority beyond school property and caution him, as the Chief of
School Safety, from engaging in non-school related activities. F.F. Nos. 166, 167-
78.
             Thus, the investigation demonstrated that Fadzen was warned on
numerous occasions that his authority did not extend beyond school property. F.F.
No. 246. Fadzen was also warned about using profane and offensive language.
F.F. No. 250. On June 18, 2009, after an altercation with a subordinate, Director
Spolar issued a written reprimand prohibiting Fadzen from, among other things,
using profane or offensive language, making threats, or engaging in other
misconduct toward employees. F.F. No. 207.
             The District completed its investigation of the July 22 incident and
issued charges against Fadzen by November 14, 2011 letter. F.F. No. 13. The
District concluded that Fadzen misused and exceeded his authority by executing
the traffic stop, and did so in direct contravention of orders from his superiors. Id.
The District emphasized that as a District employee, Fadzen is required to be
truthful, but his account of the traffic stop varied significantly from the version of
events as provided by the NW EMS employees, his own materially inconsistent
statements at the two meetings, and the documentation gathered during the internal
investigation. Id.

                                          9
                               B. Board Hearing
            Fadzen appealed the District’s charges to the Board and was
represented by counsel at all relevant times. A hearing officer convened a hearing
on behalf of the Board over eight sessions from January to March 2012,
encompassing nearly 80 hours of testimony. F.F. Nos. 10, 15. Sidhu, Shaul, Early,
and Dudash each testified that the traffic stop occurred on July 22, 2011, and that
Fadzen behaved inappropriately. F.F. Nos. 50, 53-54, 57-59, 68-69, 72-73, 81-85.
            Fadzen testified that the traffic stop could have occurred on July 20th
or 21st, but not on July 22. F.F. No. 134. Fadzen admitted that he originally told
Director Spolar and Attorney Love that the traffic stop occurred on July 22, but
later remembered he had been at the hospital at that time. Id. By the time Fadzen
testified, he realized that it would not have been possible to see the ambulance
from where he claimed to have been sitting at the nearby high school. F.F. No.
137. At the hearing, Fadzen testified for the first time that he was walking on the
Ninth Street Bridge when he first noticed the ambulance and that he walked over
one-half block back to the high school to get to his SUV and initiate pursuit. F.F.
Nos. 138-40.
            Fadzen presented several witnesses to testify at the hearing: a District
principal testified about his supervising relationship with Fadzen during the mid-
1990s; Fadzen’s son testified that his father left their lunch early on July 22
because he felt sick; Fadzen’s neighbor testified that he observed Fadzen near his
residence on the afternoon of July 22 and watched him leave later in the day in a
white SUV; and the District’s former Chief Financial Officer (CFO) testified
regarding interactions between Director Spolar and Attorney Love during previous


                                        10
investigations, and that Director Spolar had requested Fadzen’s termination on
numerous occasions before July 22. F.F. Nos. 226, 231-32, 235.
              During the public hearing, Director Spolar and Attorney Love each
testified that Fadzen’s recount of the traffic stop differed greatly between the first
and second meetings and that Fadzen was unable to resolve the discrepancy in his
story.11 F.F. Nos. 130-31, 136. In the course of the public hearings, two local
citizens, Caroline Mitchell and Laura Hillock, who had previous interactions with
Fadzen, volunteered their testimonies after reading about the current proceeding in
the news. F.F. No. 170.12
              Mitchell testified regarding an incident in April 2002, during which
she temporarily maneuvered around an illegally double-parked car that was
blocking the lane and was pulled over by Fadzen. F.F. Nos. 187-91. Mitchell
stated that when she asked why he had pulled her over, Fadzen became visibly
agitated, turned red, and started yelling. F.F. No. 192. Mitchell said that she was
familiar with heart condition symptoms and became concerned that Fadzen’s
reaction would arouse a cardiac issue. F.F. No. 192.
              Similarly, Hillock testified that in September 2005 she was involved
in a minor traffic accident, following which Fadzen sped past her and jumped the
curb in front of her; repeatedly told her to shut up; accused her of fleeing the scene
when she was attempting to exchange information with the other driver; and


       11
         Attorney Love stated that during their September 16 meeting, Fadzen shared that he
had conducted thousands of traffic stops, which was of particular concern to her. F.F. No. 169.

       12
          The Board considered Mitchell and Hillock’s testimony only for the limited purpose of
judging Fadzen’s credibility, who maintained that he did not and would not act in the manner
described by the NW EMS employees. F.F. No. 171.

                                              11
threatened to arrest her. F.F. Nos. 176-79. Hillock described his behavior as
outrageous, extremely inappropriate, hysterical, obnoxious, rude, and verbally
threatening. F.F. No. 179.


                                C. Board Decision
             Ultimately, the hearing officer issued a decision setting forth the
findings summarized above. The Board examined the hearing officer’s findings
and conducted an independent review of the record. By an August 22, 2012 order,
the Board adopted the hearing officer’s findings and concluded that Fadzen’s
behavior was unprofessional and unsuitable for the position of Chief of School
Safety. Citing Fadzen’s inconsistent statements, the Board found his testimony not
credible. The Board accepted the testimony of NW EMS employees concerning
the traffic stop, finding that the relevant events occurred on July 22 and that
Fadzen had behaved in the inappropriate manner they had described. The Board
credited the testimonies of both Mitchell and Hillock. The Board found that during
the July 22 traffic stop, Fadzen misidentified himself as a City police officer, used
profane and offensive language, lost his temper, and exhibited threatening and
intimidating behavior.
             The Board accorded de minimis weight to the testimony of Fadzen’s
witnesses, finding that they did not offer any testimony relevant to the July 22
incident, the investigation, or the charges. Specifically, the Board rejected the
former CFO’s testimony that Director Spolar was biased, noting, inter alia, that the
former CFO was no longer employed by the District, he had exchanged
information with Fadzen without the District’s permission, and he took no efforts
to document his allegations.

                                         12
                 The Board determined that because the traffic stop was outside of
school property and did not involve school students, Fadzen had exceeded the
scope of his authority as Chief of School Safety in direct contradiction of
instructions from numerous supervisors. The Board also noted that Fadzen’s use of
profanity when interacting with the NW EMS staff would be a sufficient basis
alone for dismissal based on a past directive to refrain from using profane and
vulgar language in the future.
                 The Board emphasized the particularly egregious nature of Fadzen’s
actions, considering that he had been reprimanded numerous times by District
administrators, and his behavior as Chief of School Safety had created legal
ramifications on more than one occasion. The Board stated that the totality of
Fadzen’s conduct provided further justification that the hearing officer’s
recommendation for dismissal was proper. The Board concluded that Fadzen’s
actions on July 22, 2011, demonstrating appalling, unprofessional, and
inappropriate behavior, constituted sufficient basis to uphold his dismissal under
Section 514 of the Public School Code.13




       13
            Section 514 states, in pertinent part:

                 The board of school directors in any school district, . . . shall after
                 due notice, giving the reasons therefor, and after hearing if
                 demanded, have the right at any time to remove any of its officers,
                 employes, or appointees for incompetency, intemperance, neglect
                 of duty, violation of any of the school laws of this Commonwealth,
                 or other improper conduct.

24 P.S. §5-514.

                                                     13
                                      D. Trial Court Appeal
                 Fadzen filed a timely petition for review with this Court. However,
by a September 28, 2012 order,14 we denied the District’s motion to dismiss and
remanded the case to the trial court because the trial court, rather than this Court,
had jurisdiction over Fadzen’s appeal of the Board’s decision pursuant to Section
933(a)(2) of the Judicial Code, 42 Pa. C.S. §933(a)(2).15
                 Before the trial court, Fadzen argued that the Board impermissibly
delegated its authority to conduct the hearing to a hearing officer, and alternatively,
if such delegation was permissible, that the Board erred in denying him the
opportunity to voir dire the Board members. Fadzen also asserted that he had
jurisdictional authority to issue the July 22, 2011 traffic stop.
                 On November 2, 2017, the trial court determined that the Board’s
findings were supported by substantial evidence. The trial court also relied on
Lewis v. School District of Philadelphia, 690 A.2d 814, 817 (Pa. Cmwlth. 1997), to


       14
         Fadzen v. Pittsburgh Public School District (Pa. Cmwlth. No. 1806 C.D. 2012, filed
August 28, 2012).

       15
            Section 5103(a) of the Judicial Code provides, in relevant part:

                   If an appeal or other matter is taken to or brought in a court . . . of
                 this Commonwealth which does not have jurisdiction of the appeal
                 . . . the court . . . shall not quash such appeal or dismiss the matter,
                 but shall transfer the record thereof to the proper tribunal of this
                 Commonwealth, where the appeal or other matter shall be treated
                 as if originally filed in the transferee tribunal on the date when the
                 appeal. . . was first filed in a court . . . of this Commonwealth.

42 Pa. C.S. §5103(a).


                                                   14
determine that the Board had complied with Fadzen’s due process rights. The
court affirmed the Board’s decision to terminate Fadzen’s employment. Fadzen
asked for reconsideration, arguing that the Board improperly delegated its
authority, and requested a factual hearing on the merits.16                   However, by a
December 8, 2017 order, the trial court affirmed its November 2, 2017 order, and
Fadzen filed the instant appeal.17


                                     II. DISCUSSION
                                       A. Due Process
               On appeal to this Court,18 Fadzen first contends that the Board’s
appointment of a hearing officer for the task of conducting hearings was not

       16
          Fadzen claimed that because the transcript was 3,106 pages in length and more than
250 exhibits were introduced, a hearing was necessary to resolve a serious question of fact.
However, he does not point to a specific factual issue but, rather, argues that the Board’s
delegation to a hearing officer violated statutory authority and that he was entitled to an
evidentiary hearing concerning whether the Board adequately reviewed the hearing officer’s
findings. As explained infra, this assertion is meritless.

       17
           Fadzen also seeks to supplement the record with two documents: (i) his counsel’s
November 22, 2011 letter to Superintendent Dr. Lane, and (ii) an email submitted from the
hearing officer to counsel for both parties. However, “[a]n appellate court is limited to
considering only those facts that have been duly certified in the record on appeal. For purposes
of appellate review, that which is not part of the certified record does not exist.” B.K. v.
Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citations omitted). We
will not consider, and Fadzen may not supplement the certified record with, documents that were
not made part of the record below. Nevertheless, we reject any assertion that his allegations of
error have been waived and will consider his appellate claims on the merits.

       18
           Our scope of review of a trial court’s order affirming a school board’s dismissal of an
employee under Section 514 of the Public School Code is limited to considering whether
constitutional rights were violated, whether the board committed an error of law, and whether the
board’s findings of fact are supported by substantial evidence. School District of Philadelphia v.
Puljer, 500 A.2d 905, 907 (Pa. Cmwlth. 1985).

                                               15
authorized by the Public School Code. We have previously considered whether
such a delegation by the board to a hearing officer was an infringement upon an
individual’s due process rights.
             In Lewis, a district administrator notified a custodian that his
termination had been recommended to the school board.            Two disciplinary
hearings were held before two hearing officers concerning the proposed discharge.
The school board adopted the hearing officers’ findings and recommendations that
the custodian be terminated due to improper conduct under Section 514 of the
Public School Code. The custodian appealed to the common pleas court, which
remanded to the board for an additional hearing to afford him an opportunity to
address the ultimate fact-finding tribunal, the board.
             On appeal, this Court observed that as a nonprofessional public school
employee, the custodian had a property right in the expectation of continued
employment and was entitled to procedural due process when being dismissed for
cause. To determine the process that was due, we considered the processes of
other Commonwealth agencies such as the Unemployment Compensation Board of
Review, the State Employees’ Retirement Board, and the Pennsylvania State
Police.   We noted that these agencies serve as the ultimate arbiters of fact;
“[h]owever, the hearings are conducted by referees or fact-finding boards who
make recommendations which the decision-making tribunals choose either to
follow or to disregard.” 690 A.2d at 817, n.13. We concluded that the board, like
many other Commonwealth agencies, “has broad discretion to delegate to hearing
officers the task of conducting hearings.” Id. at 817. We ultimately held that a
board satisfies the due process rights of a nonprofessional public school employee
by:

                                          16
                 (1) appointing a hearing officer to hold a hearing at
                 which Lewis was represented by counsel and had the
                 opportunity to cross-examine witnesses; (2) reviewing
                 the officer’s findings of facts, conclusions of law and
                 recommendation; and (3) making an independent ruling
                 based on the entire record.
Id.19
                 In an attempt to distinguish this controlling precedent, Fadzen
maintains that unlike the appellant in Lewis, his argument asserts a violation of
statutory authority, not of due process rights. Fadzen argues that the Board was
not authorized by Section 514 of the Public School Code to delegate the task of
conducting hearings to a hearing officer. As stated above, Section 514, governing
the removal of employees, provides that the Board has “the right at any time to
remove” Fadzen “after due notice, giving the reasons therefor, and after hearing if
demanded,” based on “incompetency, intemperance, neglect of duty, violation of
any of the school laws of this Commonwealth, or other improper conduct.” 24 P.S.
§5-514.
                 Relying on Section 1318 of the Public School Code,20 Fadzen argues
that the Board only possesses this delegated authority in student misconduct

        19
          In its analysis, the Lewis court also relied on this Court’s opinion in Puljer, 500 A.2d at
905, where we upheld the dismissal of a school district employee in a case in which a board
adopted the hearing officer’s recommendation without conducting an additional hearing.

        20
             24 P.S. §13-1318. Section 1318, concerning the suspension and expulsion of students,
provides:

                 Every principal or teacher in charge of a public school may
                 temporarily suspend any pupil on account of disobedience or
                 misconduct, and any principal or teacher suspending any pupil
                 shall promptly notify the district superintendent or secretary of the
(Footnote continued on next page…)
                                                  17
hearings.    He contends that the absence of similar language in Section 514
indicates that the Board is only authorized to delegate to hearing officers the task
of conducting hearings involving students, but not employees.21 Fadzen maintains
that absent express statutory authority under Section 514, the Board’s delegation of
hearing authority to a hearing officer was impermissible. We disagree.
             Section 1318 of the Public School Code authorizes the Board to
delegate to a hearing officer both the authority to conduct a hearing and the
authority to decide whether or not to suspend or expel a student. By contrast,
Section 514 of the Public School Code only authorizes the Board to delegate to a
hearing officer the authority to conduct a hearing, and it is the Board, not the
hearing officer, that makes the final decision of whether or not to terminate an
employee. The Board is afforded greater delegation authority under Section 1318
of the Public School Code, but it is nonetheless permitted to delegate its authority
to conduct a hearing to a hearing officer under Section 514 of the Public School
Code.
             We rejected a similar argument in Kaczmarcik v. Carbondale Area
School District, 625 A.2d 126, 130 (Pa. Cmwlth. 1993). In that case, the appellant,

(continued…)

             board of school directors. The board may, after a proper hearing,
             suspend such child for such time as it may determine, or may
             permanently expel him. Such hearings, suspension, or expulsion
             may be delegated to a duly authorized committee of the board, or
             to a duly qualified hearing examiner, who need not be a member
             of the board, but whose adjudication must be approved by the
             board. (Emphasis added.)

        21
         Fadzen states that this is likely because of the far greater number of students by
comparison to employees in school settings.

                                            18
a vice principal, was transferred to the position of teacher, which constituted a
“demotion” under Section 1151 of the Pubic School Code, 24 P.S. §11-1151. The
school board appointed a hearing officer to conduct a hearing and later voted to
accept the hearing officer’s recommendation that the appellant failed to prove that
the demotion was arbitrary.        The appellant argued that the appointment of a
hearing officer to conduct hearings violated Section 1151, which states that, “such
demotion shall be subject to the right to a hearing before the board of school
directors . . . .” 24 P.S §11-1151 (emphasis added), and Section 1127, which
provides that, a “board . . . shall conduct a hearing . . . where such professional
employe will be given an opportunity to be heard either in person or by counsel, or
both, before the board of school directors.” 24 P.S. §11-1127 (emphasis added).
              Relying on Acitelli v. Westmont Hilltop School District, 325 A.2d 490
(Pa. Cmwlth. 1974), we considered both the board’s and the appellant’s
involvement in the hearing. We found that the appellant had the opportunity to
present evidence and cross-examine witnesses. Additionally, we noted that six
board members attended the hearing, all nine members voted on the resolution, and
a majority of the votes were in favor of adopting the hearing officer’s
recommendation. We determined that there was nothing to suggest that the board
failed to conduct an independent review of the record and held that the
appointment of a hearing officer was not in violation of the Public School Code or
the appellant’s due process rights.22


       22
         In Kaczmarcik, this Court focused on the number of board members present at the
hearing. We explicitly stated that we would not decide the issue of whether the delegation of
hearing authority to a hearing officer was authorized when no board members attended the
hearing. Rather, our analysis concerned whether the appointment of a hearing officer violated
(Footnote continued on next page…)
                                             19
               Alternatively, Fadzen argues that if the Board’s delegation to a
hearing officer was authorized by statute, he was entitled to voir dire each member
concerning the Board’s process of making an independent review of the hearing
officer’s findings. We rejected this argument in Graham v. Mars Area School
District, 415 A.2d 924, 925 (Pa. Cmwlth. 1980), where a school district’s physical
education instructor asserted his right to voir dire board members at the public
hearing concerning his dismissal. We recognized that voir dire serves to assist
counsel in seating a fair and impartial jury and noted that the “differences between
the process of selecting and the functions of juries on the one hand, and
administrative agencies with quasi-judicial powers on the other are too plain to
require our exposition.” 415 A.2d at 926. This Court held that “[v]oir dire is not
available to test members of administrative bodies engaged in adjudicated issues
committed to their decision.” Id.



(continued…)

the Public School Code or due process rights when each board member voted on the hearing
officer’s recommendation and a majority of board members were present at the hearing.

        Here, Fadzen raised the issue of Board member hearing attendance before the trial court.
In his application to supplement the record before this Court, he also argues that a quorum of
board members are statutorily required to appear at the hearing; however, he fails to cite any
authority to support this assertion. Unfortunately, because Fadzen did not raise this issue in his
statement of errors on appeal, the issue is waived for our review under Pa.R.A.P. 1925(b)(4)(vii).

       Notably, even if this issue was preserved on appeal, Fadzen’s argument nonetheless
would fail. In Lewis, we held that the board’s delegation of hearing authority to a hearing officer
is permissible as long as the board satisfies a three-part test to comply with an individual’s due
process rights. Lewis is silent as to any requirement that board members attend the hearing.
Absent any statutory guidance on this issue, Lewis, which was decided several years after
Kaczmarcik, is controlling.

                                                20
               While there is no recognizable statutory or constitutional right to voir
dire board members, Fadzen contends that the denial of his voir dire request
violated his due process rights under Lewis, which obligates the Board to conduct
an independent review of the hearing officer’s findings. However, Fadzen cites no
evidence to support his contention that the Board failed to independently review
the hearing officer’s findings in the present matter.
               Moreover, in determining whether an individual’s employment should
be terminated, the Board’s review of matters such as previous knowledge and prior
discussions concerning the individual’s employment does not infringe upon the
fairness of the members.          415 A.2d at 926.         Rather, there must be a “great
possibility” of “actual bias” for a violation of an individual’s constitutional rights.
Department of Insurance v. American Bankers Insurance Company of Florida, 387
A.2d 449, 455 (Pa. 1978) (finding that actual bias may be established by a
“concrete showing of direct participation in prosecutorial and adjudicatory
functions giving rise to inherent unfairness”).
               Here, Fadzen was present for the hearings in their entirety,
represented by counsel at all relevant times, and had the opportunity to raise
objections, testify, and present witnesses.           Accordingly, Fadzen’s due process
rights were satisfied under Lewis. Absent a showing of “actual bias,”23 we cannot

       23
          Fadzen argued before the Board and the trial court that the charges against him were
pretextual because the District had a preexisting goal of getting him fired and former
Superintendent Mark Roosevelt, Director Spolar, and Attorney Love each harbored bias against
him. Specifically, Fadzen stated that former-Superintendent Roosevelt wanted Fadzen
terminated due to their different ideas about school policing and that Director Spolar and
Attorney Love were prejudiced against him from previous internal investigations within the
District. The Board, as the judge of credibility, did not credit any allegations of perceived bias
by former-Superintendent Roosevelt, Director Spolar, or Attorney Love, and we will not disturb
(Footnote continued on next page…)
                                               21
find that the Board’s denial of Fadzen’s request to voir dire each board member
violated his rights to due process.
                             B. Merits of Board’s Action
              On the merits, Fadzen contends that the July 22, 2011 traffic stop was
authorized under former Section 778 of the Public School Code, because he pulled
over the NW EMS ambulance within 1,000 yards of school property. However,
the relevant question before this Court is not whether Fadzen was within 1,000
yards of school property when conducting the July 22, 2011 traffic stop. Instead,
we must determine whether substantial evidence supports the Board’s finding that
Fadzen    was    dismissed     because     his   actions   constituted    “incompetency,
intemperance, neglect of duty, violation of any of the school laws of this
Commonwealth, or other improper conduct.” 24 P.S. §5-514.
              The Board rejected Fadzen’s testimony and accepted the NW EMS
employees’ and owner’s rendition of the events surrounding the traffic stop. The
Board found that Fadzen misidentified himself as a City police officer, acted in an
unprofessional and inappropriate manner when speaking with the NW EMS
employees, and ignored numerous directives from his superiors not to conduct
police activity outside of school property. See, e.g., Williams, 749 A.2d at 960-62
(holding that Fadzen and other school officers acted without authority under the
former Section 778(c)(1) of the Public School Code when they opened a student’s


(continued…)

this determination on appeal. See Barhight v. Board of Directors of the Bradford Area School
District, 689 A.2d 327, 329 (Pa. Cmwlth. 1997) (“Credibility determinations are the sole
province of the Board and may not be reviewed by this Court on appeal. Hickey v. Board of
School Directors of Penn Manor School District, [328 A.2d 549 (Pa. Cmwlth. 1974)].”).

                                            22
vehicle which was parked on a city street, off school property, and searched its
interior, seizing weapons and turning them over to City police, because they were
only empowered to enforce order in school buildings, on school buses, and on
school grounds, and they were not within these delineated areas when they
conducted the search and seizure of student’s vehicle).
              The Board also found that in conducting the traffic stop, Fadzen
violated a supervisory order to refrain from using profanity. Additionally, as Chief
of School Safety, Fadzen was aware of an obligation to conduct himself with
professionalism and decorum in public. As this Court has explained:

              The trial court’s holding that improper conduct must
              occur on or about school property is wholly without
              foundation in the statutory language. No qualification is
              attached to the phrase “other improper conduct.” The
              School Board has discretion in deciding what conduct is
              improper for its employees who act as adult models for
              school children. To limit this discretion because of the
              location or effect of the conduct is not reasonable, and is
              inconsistent with this Court’s case law.

                    We hold that whether improper conduct takes
              place on or off school property or whether it affects job
              performance is irrelevant. The only question presented to
              the Board was whether [the former employee’s]
              possession of controlled substances constituted improper
              conduct. We hold that it did.
School District of Philadelphia v. Puljer, 500 A.2d 905, 907 (Pa. Cmwlth. 1985)
(citation omitted).24

       24
          See also Barhight, 689 A.2d at 329-330 (holding that a school district supervisor
engaged in “improper conduct” under Section 514 by appropriating school district personnel
services and resources for his personal use even where the school district had no specific rule
prohibiting such conduct because the diversion of property and personnel services to his personal
use was by definition wrongful).

                                               23
             Therefore, even if Fadzen had the enumerated authority under the
repealed Section 778 of the Public School Code to conduct the July 22 traffic stop,
his dismissal was nonetheless authorized under Section 514 of the Public School
Code. We find that there is substantial evidence to support the Board’s findings
that Fadzen was dismissed from his position for neglect of duty, other improper
conduct, and violation of the statute in effect at that time and the prior directives of
his supervisors, under Section 514 of the Public School Code.
             Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                          24
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert S. Fadzen, Jr.,                  :
                                        :
                           Appellant    :
                                        :
                   v.                   : No. 50 C.D. 2018
                                        :
Pittsburgh Public School                :
District                                :

                                       ORDER


             AND NOW, this 4th day of April, 2019, Robert S. Fadzen, Jr.’s
application to supplement the record is hereby DENIED and the December 8, 2017
order of the Court of Common Pleas of Allegheny County is AFFIRMED.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
