              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Carlinda Purcell,                   :
                   Appellant            :
                                        :   No. 1164 C.D. 2016
            v.                          :
                                        :   Argued: June 5, 2017
Reading School District                 :



BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                         FILED: July 14, 2017


            Dr. Carlinda Purcell (Purcell) appeals from a June 21, 2016 order of the
Court of Common Pleas of Berks County (trial court), which affirmed an adjudication
of the Reading School District (District) terminating Purcell from her position as
District Superintendent.


                           Facts and Procedural History
            On March 28, 2012, the District appointed Purcell to a five-year term as
Superintendent commencing July 1, 2012. (Reproduced Record (R.R.) at 292-300,
835, 858.) That appointment was confirmed in a contract between the District and
Purcell dated April 11, 2012. (R.R. at 292-300.) Purcell, however, began her duties
as Acting Superintendent after March 28, 2012, on a per diem basis. (R.R. at 835.)
On February 1, 2013, at the request of the District’s School Board (Board), Assistant
District Solicitor John Stott sent Purcell a letter about the Board’s “concerns with
your performance.”      (R.R. at 442-43.)       Discipline was neither threatened nor
mentioned; the letter concluded with “an offer to work together to achieve your goals
for the Reading School District.” (R.R. at 443.)
             On May 20, 2013, Mr. Stott sent Purcell another letter, styled as a
“written reprimand,” focusing on different concerns from the previous letter, this time
homing in on the District’s budget process and alleging that Purcell was not
complying with Board directives regarding the budget. (R.R. at 444-45.)
             On July 3, 2013, Mr. Stott sent Purcell a second letter of reprimand,
voicing more concerns about the budget process and suspending her without pay for
the period of July 8 through July 12, 2013, with a direction that Purcell meet with the
Board Evaluation Committee on July 15, 2013. (R.R. at 446-47.)
             Subsequently, the Board sent Purcell and/or her legal counsel
“Loudermill” letters, that is, written letters notifying Purcell of pending discipline and
of her right to appear before the Board and respond, pursuant to the mandate of the
United States Supreme Court in Cleveland Board of Education v. Loudermill, 470
U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).             Those letters were dated
September 5, 2013 (for a hearing on September 12, 2013), and October 16, 2013 (for
a hearing on October 23, 2013). (R.R. at 168, 276-77.)
             The letter of November 1, 2013 (for a hearing on November 5, 2013),
was not a Loudermill notice but rather constituted a Notice of Right to Hearing and
Statement of Charges, along with a recommendation to terminate. (R.R. at 160-62.)
             After Purcell and her lawyer did not appear for the hearing which had
been set for November 5, 2013, the Board continued the hearing to a date not
specified in the record, but neither Purcell nor her lawyer was able to attend that
rescheduled hearing. The Board denied the request for another continuance, held a
hearing on November 19, 2013, and terminated Purcell “on or about November 26,
2013.” (Trial court op. at 2.)

                                            2
                 Purcell appealed to the trial court, which issued an order on April 22,
2014 (entered the following day), holding that the Board improperly denied Purcell’s
request for a continuance, and remanding to the Board to conduct a new hearing.
(R.R. at 163.)
                 New hearings were convened on August 26, September 11, and October
2, 2014. The three days of hearings were presided over by Attorney Jon Malsnee, a
sole practitioner from Wyomissing, who represented the Board, while Mr. Stott
represented the District.
                 Purcell was charged initially under section 508 of the Public School
Code, 24 P.S. §5-508,1 because of allegations that she entered into contracts with the
District without a vote of the Board where the amount involved exceeded one
hundred dollars. The allegations here were that Purcell authorized two consultants to
present at a District retreat. The obligations to the two consultants were subsequently
ratified by a Board vote and the consultants were later paid. (R.R. at 45-47, 334-40,
838.) This became Charge 1(a).
                 Purcell was also charged under section 1080 of the School Code, 24 P.S.
§10-1080, on the grounds of neglect of duty, incompetency, and immorality. (R.R. at
838.)
                 The first of the charges under section 1080 was based on the testimony
of former Board member James Washington, who said that the Board told Purcell that
three schools within the District needed building principals on a permanent basis
before the start of the 2013-14 school year, but that Purcell appointed two District
employees to fill two of the vacancies, without Board approval, which is also in
violation of section 580 of the School Code. Ultimately, none of the positions were


        1
            Section 508 of Act of March 10, 1949, P.L. 30, No. 14, as amended, 24 P.S. §5-508.



                                                   3
filled in a timely manner, according to Mr. Washington. (R.R. at 23-24, 350-53,
839.) This became Charge 1(b).
             An additional charge under section 1080 was Purcell’s alleged
humiliation and embarrassment of the Board during 2013-14 public budget meetings.
Specifically, after the Board decided to lay off a number of District employees in an
effort to balance the budget, Purcell commented at a public meeting that she was
going to find the funding to bring back one of the furloughed employees, the Director
of Communications, but said nothing about the other employees. (R.R. at 32, 839.)
This became Charge 2.
             The Board next charged Purcell with breaching section 13 of her
employment agreement. That agreement required Purcell to “promptly file time off
and written requests with the Board Secretary for sick leave, vacation and personal
leave days. Such records shall remain in the custody of the Board Secretary. The
Board President shall be responsible to approved [sic] and sign the time off requests.”
(R.R. at 297.) Board Secretary Linda Greth testified that she never received any such
requests from Purcell between July 1, 2012, and July of 2013 despite days taken off
by Purcell. (R.R. at 33, 47-48, 50, 354-62, 839-40.) This became Charge 3.
             The Board also charged Purcell with failing to meet multiple deadlines
concerning the self-evaluation portion of Purcell’s overall evaluation. This charge
was supported by testimony of former Board member Karen McCree. (R.R. at 14-
15.) This became Charge 4.
             The next charge alleged that Purcell failed to investigate the conduct of a
building principal about whom the Board was concerned was mishandling funds,
failing to compensate teachers for individual education plan (IEP) meetings, and
failing to submit teacher evaluations to the District’s human resources office. In July
of 2013, the Board alleged, Purcell finally investigated the allegations, which resulted



                                           4
in the resignation of that principal. (R.R. at 17-18, 363-71, 840.) This became
Charge 5.
              The Board charged Purcell with error in laying off the assistant director
of food service because she was unaware that the food service budget was separate
from the general District budget. Purcell’s failure here, the Board charged, resulted
in an unnecessary layoff in her effort to balance the general District budget. (R.R. at
34-36, 400-06, 840-41.) This became Charge 6.
              Purcell was charged by the Board with generally mishandling the budget
process in 2013, caused by her lack of understanding of the entire budget process for
Pennsylvania public schools. Specifically, the Board faulted Purcell concerning the
timing of the budget process imposed by Pennsylvania statutes and regulations, in
that Purcell supposedly believed that a school board should get its first preliminary
budget in March, with preliminary adoption in May, and final approval of the budget
in June. (R.R. at 11, 841-42.) The Board argued that Purcell was or should have
been aware that Pennsylvania law requires school districts to exercise an option either
to adopt a preliminary budget, including a schedule of proposed tax increases, no
later than ninety days prior to the primary election immediately preceding the start of
the upcoming fiscal year (which starts July 1 of every year) or to forgo those tax
increases. Section 311(a) of the Taxpayer Relief Act,2 53 P.S. §6926.311(a). (R.R.
at 841-42.)
              The Board also contended that Purcell knew or should have known that
in lieu of a preliminary budget, school districts have the option of adopting a
resolution indicating that any tax increase will not be above the index for that tax,
which resolution must be adopted 110 days prior to the same primary election day.

      2
        Act of June 27, 2006, P.L. 1873, No. 1 (Spec. Sess. No. 1), as amended, 53 P.S.
§6926.311(a).



                                           5
Section 311(d) of the Taxpayer Relief Act, 53 P.S. §6926.311(d). (R.R. at 841-42.)
That index number is published the prior September. Section 333 of the Taxpayer
Relief Act, 53 P.S. §6926.333. (R.R. at 842.) By March, the Board believed that
many important budgetary decisions should have been completed.           The primary
election that year occurred on May 21, 2013. Between 100 and 110 days prior would
have been approximately between January 31 and February 10, 2013. Further, the
Board charged that Purcell did not know the difference between a “preliminary
budget proposal” (which must be passed no later than 90 days prior to that primary
election day, or by approximately February 20, 2013, if the District intended to apply
for an exception allowing a greater tax increase under Sections 311(a) through (c) of
the Taxpayer Relief Act, 53 P.S. §6926.311(a) through (c)) and a “proposed budget”
(required to be adopted at least thirty days before the final budget under Section 687
of the Public School Code, 24 P.S. §6-687). At best, the Board concluded in its
charge, Purcell was confused about the budget process. (R.R. at 112, 842.)
             Next, the Board charged Purcell with an untimely budget that failed to
comply with Board directives. Former Board member Washington and current Board
member Cooper testified that the budget problems were ongoing and that they
conveyed a projected $8 million shortfall. (R.R. at 26-27, 842-43.) They testified
that on April 29, 2013, the Board told Purcell it wanted her recommendations about
closing the gap in the budget, with significant detail, but that the Board never
received the line-item budget it sought. (R.R. at 27.)
             Purcell was also charged with failing to provide requested information
and materials in advance of a budget workshop held on June 15, 2013. (R.R. at 27,
393-99.)
             Next, the Board charged that after a Board budget meeting on June 26,
2013, the Board believed that it was close to a balanced budget, but found on June 28
that it remained far away from a balanced budget, so that the Board ordered Purcell to

                                           6
provide a list of programs and positions which the Board wanted to be eliminated.
(R.R. at 25-29, 372-74, 446-47, 842.) According to state law, the budget needed to
be balanced that year by June 29, 2013, and the Board did not have a balanced budget
by that date. (R.R. at 28, 375-78.)
               Finally, the Board charged that it had adopted a resolution that Purcell
was to provide a balanced budget by end of day on July 17, 2013, but that Purcell
failed to do so until the following August or September. (R.R. at 28-29, 375-78, 400-
06, 842-43.)
               All of these budget concerns were incorporated into, and became the
basis of, Charge 7.
               Related to the budget process, the Board charged Purcell with failing to
supervise and discipline the Finance Director for misconduct at public meetings.
(R.R. at 37-38, 171, 240-42, 301-33, 843.) This became Charge 8.
               Purcell was charged by the Board under section 1080 with failing ratings
in her job evaluation performed by the Board, (R.R. at 19-22, 407-29, 843.) This
became Charge 10.
               The Board charged Purcell with seeking reimbursement of mileage after
July 1, 2012, and vacation days and car allowance before July 1, 2012, in violation of
her employment agreement. (R.R. at 7-8, 10-13, 292-93, 297, 430-40, 843-44.) This
became Charge 11.
               Finally, the Board charged Purcell with failing to provide an
organizational chart the Board had directed her to provide. (R.R. at 30-31, 161, 832-
33, 844.) This became Charge 12.3

       3
           The Board did not pursue Charges 9 and 13 during the hearings, the District did not
mention these charges in its adjudication, and the trial court did not deal with these charges in its
order or its opinion.




                                                 7
             Purcell contested all the charges at the three days of hearings.
Concerning Charge 1(a), regarding the arrangements with the presenters for a District
retreat, Purcell argued that the District had appropriated the funds for the retreat well
in advance of the 2013 date.         When Purcell contacted the two presenters, she
contends that they sent her contracts, which were reviewed and approved by the
District’s solicitor. She stated that the contracts were placed on the Board’s agenda
for approval prior to the retreat but the contract approval vote was inadvertently taken
off that agenda. The presenters came to the retreat even though their contracts had
not been approved.       Those contracts were approved later in August, and in
September, the contracts were signed and the presenters were paid. (R.R. at 97-98.)
             Concerning Charge 1(b), Purcell argued that she had authority under her
employment agreement to transfer professional employees, and that she transferred
District employees into two of the three vacant principalships in advance of the
school year. She argued that the only reason the positions remained vacant was
Board interference in the form of the Board’s insistence that these transfers could not
have been made without Board approval. (R.R. at 99-100, 543-44.) Purcell argued
that hiring was subject to Board approval under her employment agreement but
transfers were not. (R.R. at 294.)
             With regard to Charge 2, Purcell argued that she had an obligation under
section 1081 of the School Code, 24 P.S. §10-1081, to speak on all matters before the
Board, and that her public statement concerning finding funds for the
communications director was justified because Purcell knew that, two days after the
communications director’s job was eliminated, the District’s websites would be shut
down for conversion to a new computer platform. According to Purcell, that director
was the only person with training to effect the change. (R.R. at 101-02, 143-44.)
             Concerning Charge 3, Purcell argued that there was no allegation that
she misused her leave time, and that, after she assumed the superintendency, Purcell

                                            8
became aware that the Board President did not regularly visit the administration
building where Purcell had her office, so she asked the Board President if she could
e-mail the requests to the Board President, who agreed. (R.R. at 104, 558-64.)
             Regarding Charge 4, Purcell argued that her employment agreement did
not require any self-evaluation but that when Board member McCree extended the
deadline for submission of the self-evaluation materials to August 9, 2013, Purcell
submitted them the evening of that date, for an evaluation on August 10. Because
there was no duty to provide the materials and because the submission was only
minimally late, Purcell argued that there was no neglect of duty.
             Concerning Charge 5, Purcell argued that this charge was baseless but,
even if true, was too insignificant to constitute neglect of duty. Further, Purcell
asserted that any evidence regarding the investigation of the building principal was
based upon inadmissible hearsay in the form of after-the-fact e-mail statements by a
Board member who did not testify. (R.R. at 18, 106, 565, 567-80.)
             Concerning Charge 6, regarding the food service budget and the general
budget, Purcell argued that there was no evidence that she knew of the error or
misunderstanding regarding the two budgets. Further, she alleged that the position
was eliminated by the Board on June 28, 2013, and when a Board member asked
Purcell unilaterally to reinstate the furloughed employee, Purcell refused because,
first, the Board had eliminated the position by public vote, and, second, the employee
was related to a Board member. (R.R. at 35, 109, 393.)
             Charge 7 occupied the lion’s share of the Board’s concerns and so it did
for Purcell, who contended that the Board’s charges and findings concerning the
budget and the budget process were enlarged by the District’s solicitor but that the
admissible evidence shows that Purcell simply followed the specific directions of the
Board between June 28 and July 17, 2013. Once the District learned it was receiving
$1 million more than expected from the Commonwealth of Pennsylvania, the budget

                                           9
had to be amended in July.        When the District’s finance director asked the
Pennsylvania Department of Education (PDE) if it wanted the District to submit the
June 28 budget, PDE responded that all school districts should wait to submit their
budgets until after the budgets were amended to reflect the additional state money.
The Board amended its budget, submitted it to PDE, and was not penalized by PDE.
(R.R. at 59-60, 121.)
             Concerning Charge 8, regarding discipline for the finance director,
Purcell argued that there is no evidence of the finance director acting rudely to the
Board or the public, and there is a verbatim transcript of the exchange in question.
(R.R. at 322-33.) Moreover, there is nothing in the record to support any idea of a
“Board directive;” rather, individual Board members questioned the attitude of the
finance director, and Purcell stated on the record that she would address the Board’s
concerns with the finance director. (R.R. at 122, 322.)
             Concerning Charge 10, regarding the self-evaluation, Purcell argued that
there were performance goals to be established mutually by Purcell and the Board,
contrary to section 6 of Purcell’s employment agreement. (R.R. at 295-95.) Purcell
argued that evaluation forms are not performance goals and that a Board member
testified that the Board hired a person to compile a summary evaluation based on the
individual submissions, which were not in evidence.         Purcell argued that the
conclusions in the Board’s evaluation are devoid of data. Indeed, one Board member
stated in the comment section of the evaluation, “I am not capable of adequately
evaluating Dr. Purcell’s performance . . . because I have not been provided with
performance data . . .” (R.R. at 410.) Section 6 of the employment agreement
delineated a specific evaluation procedure, which was not followed at all, concluded
Purcell regarding this charge.
             Concerning Charge 11, dealing with mileage after July 1, 2012, and
vacation days and car allowance before July 1, 2012, Purcell argued that she

                                          10
submitted her requests to the Board president, who approved the request so that
Purcell could be reimbursed. (R.R. at 134, 794.) She was reimbursed for minimal
amounts in what, at worst, amounted to a mutual mistake by Purcell and the Board
president.
              Concerning Charge 12, Purcell argued that there was no “directive” to
complete any organizational chart, and that, moreover, the charge was false in that
Purcell provided at least five such charts to the Board. (R.R. at 820-33.)
              In an adjudication dated November 14, 2014, the District found Purcell
guilty of all charges they had pursued at the hearings, and found that this conduct
arose to grounds under section 1080 of the School Code which justified termination
of Purcell’s contract with the District. Accordingly, the District affirmed the Board’s
firing of Purcell on November 26, 2013.
              Purcell appealed to the trial court, which took no additional evidence but
which accepted briefs and oral argument. (Trial court op. at 3.) The trial court
rejected Purcell’s objections regarding due process and affirmed the District’s
adjudication by order of June 21, 2016. That order was supplemented by an opinion
dated September 14, 2016.
              On appeal to this Court, Purcell has set forth three arguments: (1)
whether “the Superintendent [was] denied due process of law when she was removed
from her public office by a school board that acted as complainants, indictors [sic],
prosecutors, witnesses and adjudicators of the charges against her. . . ;” (2) whether
the trial court erred “by failing to find that the charges against the Superintendent,
even if true, do not meet the statutory standard for removal from office set by §1080
of the Public School Code, 24 P.S. §10-1080. . . ;” and (3) whether the trial court
erred “by finding that the findings of fact are supported by substantial evidence and
that there was no capricious disregard of competent, material evidence. . . .”
(Purcell’s brief at 4.)

                                           11
                                        Discussion
             To the extent that the present case involves questions of law under the
School Code or the Pennsylvania Constitution, the standard of review is de novo and
the scope of review is plenary. Pennsylvania State Education Association ex rel.
Wilson v. Commonwealth of Pennsylvania, 50 A.3d 1263, 1270 (Pa. 2012).
             Also, to the extent that the present case involves an interpretation of the
employment agreement between the District and Purcell, the standard of review is de
novo and the scope of review is plenary. Currid v. Meeting House Restaurant, Inc.,
869 A.2d 516, 518-19 (Pa. Super.), appeal denied, 882 A.2d 478 (Pa. 2005).
             Finally, to the extent that the present case involves review of findings of
fact, separate from any concerns about violations of the constitutional rights of
Purcell or whether the trial court abused its discretion, the standard of review is
whether the findings of fact adopted by the District and affirmed by the trial court in
the absence of additional evidence were (1) supported by substantial competent
evidence, and (2) not in capricious disregard of competent material evidence. Leon
E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d
478, 487 (Pa. 2002).


                                   Due Process Rights
             Purcell argues that the Board’s combination of functions amounted to a
deprivation of her due process rights. Specifically, she argues, when the Board serves
as “indicters, prosecutors, witnesses-for-the-prosecution, credibility-determiners, and
judges,” this results per se in a process that is neither fair nor impartial. (Purcell brief
at 13.)   Purcell relies upon our Supreme Court’s decision in Lyness v. State
Department of Medicine, 605 A.2d 1204 (Pa. 1992). There, the lawyer for the State
Board of Medicine investigated the allegations and presented them to the board for


                                            12
disposition. Eight board members considered the evidence presented and decided to
issue formal charges. The hearing was conducted by a hearing officer but the board
conducted a de novo review and issued an adjudication. Three of the board members
who participated in issuance of the charges also participated in the final adjudication,
and two voted to suspend the physician’s license. 605 A.2d at 1205-06.
             This Court affirmed the board’s revocation of a physician’s license but
the Supreme Court reversed, holding the board’s process to have constituted “an
unconstitutional intermingling of the prosecutorial and adjudicatory functions in a
single entity.”   Id. at 1210.    “What our [Pennsylvania] Constitution requires,”
reasoned the Supreme Court, “however, is that if more than one function is reposed in
a single administrative entity, walls of division [must] be constructed which eliminate
the threat or appearance of bias.” Id. at 1209. The Supreme Court’s concern was not
any demonstration of actual bias; rather, “the potential for bias and the appearance of
non-objectivity is sufficient to create a fatal defect under the Pennsylvania
Constitution.” Id. at 1210. Finally, the Supreme Court cited its decision in Gardner
v. Repasky, 252 A.2d 704, 706 (Pa. 1969), when it noted proverbially, “A man cannot
sit as judge when he is a member of a board which has brought the accusations.” 605
A.2d at 1208.
             Accordingly, argues Purcell, applying Lyness to the case at bar compels
this Court to reverse the trial court’s affirmation of the Board’s adjudication because
the Board “heard, defined, and issued the charges, as in Lyness, but [B]oard members
were the chief, and sole substantive witnesses against [Purcell].” (Purcell’s brief at
16.)
             The District argues that Purcell’s constitutional rights were observed;
she had “sufficient process to protect her rights.” (District’s brief at 31.) The District
distinguishes Lyness from the case at bar because Purcell had notice of the charges
against her and a right to appeal from any adjudication. Moreover, the “simple

                                           13
reality” is that due process in these settings has been modified by the School Code.
(Id. at 34.) Indeed, the District cites the Supreme Court’s decision in Burger v. Board
of School Directors of McGuffey School District, 839 A.2d 1055, 1062 (Pa. 2003),
for the proposition that “due process is a flexible concept.” There, a superintendent
was suspended without pay pending the convening of a formal hearing concerning the
charges against him. The superintendent sought relief in mandamus, and received it
in the trial court, which rescinded the suspension. This Court reversed, but was then
reversed by the Supreme Court, which dealt solely with “interim suspensions with or
without pay in appropriate circumstances in the face of allegations of serious
misconduct on the part of a superintendent . . . .” Id. Accordingly, the Supreme
Court did not reach the specific due process arguments about that school board’s
procedures. Id.
            The Supreme Court did reach those concerns later in Burger v. School
Board of McGuffey School District, 923 A.2d 1155 (Pa. 2007). By that time, the
High Court was faced by a direct appeal from the trial court, which had held section
1080 of the School Code, 24 P.S. §10-1080, to have been unconstitutional and in
violation of Article VI, section 7, of the Pennsylvania Constitution. 923 A.2d at
1157. The Supreme Court reversed, holding:
             It is undisputed that the office of school superintendent is
             not expressly provided for in our [Pennsylvania]
             Constitution; nor does the Constitution expressly prohibit
             the General Assembly from enacting provisions relating to
             school superintendents. The office is a statutory creation
             and, as such, Article VI, [s]ection 1 authorizes the General
             Assembly to enact provisions governing appointment and
             removal. Section 10-1080 [sic], therefore, plainly is
             constitutional. Moreover, . . . the reasons why the General
             Assembly would wish to establish a modicum of job
             security for this particular office are readily apparent,
             given the potential for conflict between superintendents
             and their school boards.

                                          14
Id. at 1164. The Supreme Court then remanded the case to the trial court to consider
the merits of the superintendent’s claims under section 1080 of the School Code. Id.
at 1165-66.
               Further, the District argues that the present case is governed by Horosko
v. School District of Mt. Pleasant Township, 6 A.2d 866 (Pa. 1939). There, a teacher
worked at her husband’s restaurant and bar, at which were pinball and slot machines,
along with regular dice games. 6 A.2d at 868. The teacher was found to have
demonstrated the gaming devices in front of school children, so that her firing was
upheld by the Supreme Court. Id. at 869-70.
               The District also argues that there is an inherent amount of commingling
of functions in public school disciplinary proceedings, which have been recognized
by this Court. Stroudsburg Area School District v. Kelly, 701 A.2d 1000, 1003 (Pa.
Cmwlth. 1997).         Thus, the District asserts, due process in this setting “is a
continuum,” citing a decision by this Court, Harmon v. Mifflin County School
District, 651 A.2d 681, 685-86 (Pa. Cmwlth. 1994), which was later reversed at 713
A.2d 620 (Pa. 1998). The focus there was the invocation of Fifth Amendment 4 rights
during questioning by school officials of a custodian. The trial court reversed the
school board’s termination of the custodian, and was in turn reversed by this Court at
651 A.2d 681. Upon remand, the trial court again reversed the school board and
reinstated the custodian. Again, this Court reversed, at 684 A.2d 651 (Pa. Cmwlth.
1996).     This Court found that invocation of the right against self-incrimination
constituted substantial evidence of improper conduct. The Supreme Court reversed,
calling for an “insistence upon the presence of independent, probative evidence to
support an inference drawn when one invokes the protection of the Fifth Amendment

      4
          U.S. CONST. amend. V.



                                           15
. . . .” 713 A.2d at 624-25. The Court concluded, “Difficulty of proof has never been
allowed as an excuse for dispensing with it.” Id. at 625 (citations omitted). The
Supreme Court in Harmon confronted a much narrower issue than the issues in the
present case, but in any event held solidly for due process of law rather than any
“continuum” of processes.
                Finally, the District argues that its actions complied “with the flexible
concept of due process.” (District’s brief at 36.) The District appeals to what it styles
as common sense when it asserts, “It would be incongruous with Pennsylvania
statutory laws, reality, and public policy to require a school board to bring in an
outside party any time that it sought to remove a district superintendent . . . .” Id.
Such an “incongruity” is at the heart of the District’s arguments.
                In the present case, the trial court did not deal with a suspension pending
final hearing and possible termination of a superintendent. Rather, the trial court
reviewed an adjudication by the District which finalized the discharge of Purcell from
her office. Our Supreme Court has dealt with an array of administrative proceedings
in which due process has been challenged, in both the public school setting and in
other arenas.
                The modern concepts of administrative due process in Pennsylvania
begin with Lyness. There, the Board of Medicine’s decision was overturned because
the Board’s lawyer investigated the charges and also presented them to the Board for
possible referral for discipline. Eight of the eleven Board members considered that
preliminary evidence and voted to issue formal charges. Then the Board of Medicine
as a whole conducted a hearing to consider the evidence, and subsequently
adjudicated the case. 605 A.2d at 1206.
                The Court left no doubt that “due process is fully applicable to
adjudicative hearings involving substantial property rights . . . .”          Id. at 1207
(citations omitted).     Moreover, in setting the history of due process under the

                                             16
Pennsylvania Constitution, the Court found roots in the Magna Charta, and noted that
“when it comes to commingling prosecutorial and adjudicatory functions[,] [t]here is
a strong notion under Pennsylvania law that even an appearance of bias and partiality
must be viewed with deep skepticism.” Id. (emphasis in original). The Supreme
Court recognized the realities of a society that increasingly disposes of significant
rights in administrative settings that may be more casual than formal judicial tribunals
in the courts. Accordingly, the Court held, “What our [Pennsylvania] Constitution
requires, however, is that if more than one function is reposed in a single
administrative entity, walls of division be constructed which eliminate the threat or
appearance of bias.” Id. at 1209. Because the process before the Board of Medicine
involved “unconstitutional intermingling of the prosecutorial and adjudicatory
functions in a single entity” with no protective “constitutional buffer,” the Board’s
decision was vacated and remanded. Id. at 1210-11.
             Shortly after its decision in Lyness, our Supreme Court addressed an
administrative proceeding that met the requirements of due process. In Office of
Disciplinary Counsel v. Duffield, 644 A.2d 1186 (Pa. 1994), the individual was a
lawyer facing disbarment and the agency was the Office of Disciplinary Counsel
(ODC). The lawyer made allegations of violations of due process but his arguments
were rejected by the High Court, which found that the system there involved: (1) the
decision to file formal charges is made by ODC after approval by a reviewing
member of the Hearing Committee of the Disciplinary Board; (2) that Disciplinary
Board member has no further involvement in the case; (3) the case is assigned by the
Secretary of the Disciplinary Board to a Hearing Committee, which acts as a trial
court; (4) the actions of the Hearing Committee are then reviewed de novo by the
Board as a whole; so that, (5) the Board does not become involved in the adjudication
until the Hearing Committee files its report with the Secretary of the Disciplinary
Board. The Court concluded, “This procedure does not involve commingling of

                                          17
prosecutorial and adjudicative functions. Due process is therefore not violated.” 644
A.2d at 1188. The Court reaffirmed Lyness as an accurate statement of law but found
the lawyer’s reliance on that case to have been “misplaced,” specifically because the
Disciplinary Board had in place the “walls of division” necessary to “eliminate the
threat or appearance of bias.” Id.
             The District argues that Lyness has no applicability here, that Purcell has
no case so long as she received “sufficient due process,” which the District identifies
as notice coupled with “full and complete appellate options through her contract and
state law . . . .” (District’s brief at 31.) In support of its arguments, the District cites
Parratt v. Taylor, 451 U.S. 527, 539 (1981), which recognized that “either the
necessity of quick action by the State or the impracticality of providing any
meaningful pre-deprivation process, when coupled with the availability of some
meaningful means by which to assess the propriety of the State’s action at some time
after the initial taking, can satisfy the requirements of procedural due process.”
Parratt, however, was focused on state action in a civil rights claim brought by a
prisoner, and did not have to do with the increasingly active administrative branches
of government, at the local, state, or national levels. Moreover, there was in the
present case no “necessity of quick action” by the District, which stretched out the
process, taking over nine months from the first letter to Purcell until the November
26, 2013, hearing. Parratt has nothing to do with the facts of the present case.
             Indeed, the present case is more similar to what this Court addressed in
Department of Education v. Oxford Schools, 356 A.2d 857 (Pa. Cmwlth. 1976).
There, the superintendent testified against a teacher in a disciplinary hearing, and then
participated in the school board’s deliberations. This Court held that although the
superintendent could have performed either one of the functions, it was improper for
him to wear both hats. Id. at 861.



                                            18
             There is no ground of either precedent or reason for this Court to fail to
apply the mandate of Lyness and its progeny to the case at bar. “Sufficient process”
is argued by the District but what really occurred was deficient process, or no due
process at all. Purcell does not need to prove a stacked deck to prevail; rather, all she
needs to establish is that the District’s process was infected with “the appearance of
non-objectivity.” Lyness, 605 A.2d at 1210. The charges originated within the Board
as opposed to originating with the public, the faculty, the parents, or the students.
Once the hearings occurred, the same Board members who initiated the charges,
testified about the charges. Once the hearings closed, the same Board members voted
to terminate Purcell.
             There were no “walls of division” that are required if a public entity
wants to discipline or fire a professional employee, especially one protected by the
School Code. Id. at 1209. Here, the District did not even pretend there was anything
to prevent the egregious commingling of investigative and adjudicatory functions;
although due process seems “incongruous” to the District, it remains the law of this
Commonwealth.


                        Sufficiency of Reasons for Termination
             In her second and third arguments, Purcell essentially contends that the
District’s charges are so picayune that they fail to warrant dismissal based on any one
charge or even altogether. Referring to the charges as “trumped-up allegations,”
Purcell cites Antonini v. Western Beaver School District, 874 A.2d 679 (Pa. Cmwlth.
2005). (Purcell brief at 28.) In Antonini, a superintendent was suspended pending
the filing of formal charges and the convening of a hearing. The superintendent
sought mandamus relief after he was suspended with pay for lack of progress in




                                           19
construction of a handicap-access restroom, transfer of Title I5 funds from one
defined purpose to another defined purpose, the amount of Title I funds used to
reimburse teachers, and inadequate notice to school board members before interviews
of prospective employees. 874 A.2d at 680-81. The trial court concluded that none
of the allegations constituted “serious misconduct” that would excuse compliance
with section 1080 of the School Code. On appeal, this Court affirmed the trial court,
holding that the charges were not “serious” within the guidelines of our Supreme
Court in Burger, 839 A.2d at 1061. This was so, concluded this Court in Antonini,
because “the conduct does not immediately threaten the public trust.” 874 A.2d at
684-85.
             The present case, argues Purcell, consists of allegations of similarly
vague concerns which, even if true, do not rise to the level of “misconduct,” serious
or otherwise.
             The District argues that because of the few precedential cases in
Pennsylvania regarding discipline of superintendents, that teacher discipline cases
should be applied where the holdings fit the four grounds for removal from office set
forth in section 1080 of the School Code, namely, neglect of duty, incompetency,
intemperance, or immorality.    The District argues that “immorality” reflects the
“morals of the community.”      (District’s brief at 40.)   Accordingly, Charge 11
(requests for mileage after July 1, 2012, and vacation days and car allowance prior to
that date), according to the District, amounted to immorality because it was akin to
theft.
             The remaining charges (except for Charges 9 and 13, which were
withdrawn) fall under both “incompetency” and “neglect of duties,” the District
argues. The District’s charges in these categories under section 1080 can be classed

         5




                                         20
into three groups: (1) allegations of personal shortcomings, such as Charge 3 (failure
to submit leave requests to the Board secretary), Charge 4 (failure to submit self-
evaluation on time), Charge 5 (failure to investigate conduct of a building principal in
a timely manner), Charge 10 (unsatisfactory rating and a failure to meet performance
goals), and Charge 12 (failure to complete an organizational chart); (2) allegations
concerning the budget process, such as Charge 2 (embarrassing the Board and laid off
employees when Purcell publicly said she would find funds to keep the
communications director), Charge 6 (providing false information to the Board
regarding the Food Services part of the budget), Charge 7 (failure to follow the
Board’s directive to balance the budget and submit it to the Pennsylvania Department
of Education on time), and Charge 8 (failure to supervise and/or discipline the
Director of Finance for his conduct during the budget process); and, (3) general
allegations of misconduct, such as Charge 1(a) (extending contracts for outside
speakers at a leadership retreat) and Charge 1(b) (failure to staff all buildings with
principals in advance of the school year).
             Purcell contends that the charges are false but, even if true, fall squarely
within the definition of actions or omissions which are not misconduct under Antonini
(which found for the superintendent) or even Horosko (which found against the
teacher).
             The District replies that the charges seriously call into question Purcell’s
conduct under three of the four specified grounds in section 1080, but of critical
importance to the District was the alleged conduct during the budget process, which
has become more cumbersome, complicated, and time-driven as the result of recent
legislative mandates on local school districts, the boards of which (unpaid volunteers)
increasingly count on administrative personnel to craft the budgets that fund public
education in the Commonwealth.



                                             21
               The allegations of personal shortcomings (Charges 3, 4, 5, 10, and 12),
even if true, appear to lack any support under any of the four factors set forth in
section 1080 as grounds for termination.
               Charge 6 (allegations of providing false information to the Board
regarding the food services contract), appears to have some evidence to support it but
lacks specific testimony or evidence apart from testimony of present or past Board
members.
               Charges 7 and 8 are where the ground is muddied, namely, who had
responsibility for what during the budget process. The District points to how the
whole budget process has changed for public schools in Pennsylvania because of
changes in what the Legislature now requires to pass a timely budget. Purcell points
to vacillation and contradictory votes and statements by the Board during the budget
process. Whether the District or Purcell is correct, the matter should be remanded for
specific findings regarding who had responsibility for what, and when tasks should
have been completed, including not just the budget process generally but also
responsibility for the comments of the finance director.
               Regarding the other charges before the Court, Charges 1(a), 1(b), 2, and
11 do not appear to have competent evidence to support them.


                                       Conclusion
               The impermissible commingling of functions by the Board raises serious
constitutional concerns relating to the required due process in administrative
proceedings.
               Accordingly, this Court reverses in part the decision and order of the
trial court insofar as it affirmed the District’s termination of Purcell as to Charges
1(a), 1(b), 2, 3, 4, 5, 6, 10, 11, and 12, and vacates the District’s termination in part as
to Charges 7 and 8. The matter is remanded to the trial court, with specific direction

                                            22
to remand to the Board, to conduct a due process hearing consistent with the
Pennsylvania Constitution as amplified by Lyness, on the sole issues of Charges 7 and
8, relating to the budgetary process for the District.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                            23
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Carlinda Purcell,                        :
                   Appellant                 :
                                             :    No. 1164 C.D. 2016
             v.                              :
                                             :
Reading School District                      :


                                      ORDER


             AND NOW, this 14th day of July, 2017, the order of the Court of
Common Pleas of Berks County (trial court), dated June 21, 2016, is reversed
insofar as it affirmed the Reading School District’s (District) termination of Purcell
concerning Charges 1(a), 1(b), 2, 3, 4, 5, 6, 10, 11, and 12. The order of the trial
court is vacated insofar as it affirmed the District’s termination of Purcell
concerning Charges 7 and 8. The matter is remanded to the trial court, with
specific direction to remand to the Board, to conduct a due process hearing
consistent with the Pennsylvania Constitution as amplified by Lyness v. State
Department of Medicine, 605 A.2d 1204 (Pa. 1992), on the sole issues of Charges
Nos. 7 and 8.
             Jurisdiction is relinquished.




                                                 ________________________________
                                                 PATRICIA A. McCULLOUGH, Judge
