Propel Charter Schools v. Commonwealth of PA, State Charter School Appeal Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Propel Charter Schools, : Petitioner : : v. : : Commonwealth of Pennsylvania, : State Charter School Appeal Board, : No. 1827 C.D. 2019 Respondent : Argued: October 13, 2020

BEFORE: HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: November 20, 2020

Propel Charter Schools (Propel) petitions this Court for review of the State Charter School Appeal Board’s (CAB) November 27, 2019 order (Order) denying Propel’s Motion to Allow Vote of 3-1 in this Matter as Proper (Motion). There are two issues before this Court: (1) whether CAB’s Order is an appealable collateral order; and (2) whether CAB’s 3-1 vote is proper. Propel is a Pennsylvania nonprofit corporation that operates a number of individual charter schools in Pennsylvania. On May 4, 2018, Propel filed an Application for Consolidation (Application) with the School District of Pittsburgh (District), wherein Propel sought to consolidate eight Propel charter schools1 as a single Multiple Charter School Organization (MCSO), pursuant to Section 1729.1-A

1 The individual schools are: Propel Charter School - Homestead; Propel Charter School - East; Propel Charter School - McKeesport; Propel Charter School - Montour; Propel Charter School - Sunrise (operating as Propel Charter School - Braddock Hills); Propel Charter School - Northside; Propel Charter School - Pitcairn; and Propel Charter School - Hazelwood.

of the Charter School Law (CSL),2 24 P.S § 17-1729.1-A. On June 19, 2018, the District issued a letter denying Propel’s Application. On June 25, 2018, the District issued a formal Notice of Denial and a resolution of the District’s Board of Public Education Denying the Application. On July 16, 2018, Propel appealed from the denial to CAB. The Pennsylvania Department of Education (PDE) Secretary appointed a Hearing Officer in the matter. On January 18, 2019, the District filed a Motion to Supplement the Record (Motion to Supplement). On January 23, 2019, Propel filed its Brief in Opposition thereto. On March 19, 2019, the Hearing Officer granted the District’s Motion to Supplement. On March 28, 2019, Propel filed a direct appeal to CAB from the Hearing Officer’s order allowing the record to be supplemented. Both the appeal of the Hearing Officer’s decision to permit the District to supplement the record and the direct substantive appeal were argued before CAB on May 21, 2019. CAB voted 4-0 to deny Propel’s appeal from the Hearing Officer’s order allowing the record to be supplemented, and the matter proceeded to argument. CAB consists of seven members: “the [PDE] Secretary . . . and six [] members who shall be appointed by the Governor by and with the consent of a majority of all the members of the Senate.” Section 1721-A(a) of the CSL, 24 P.S. § 17-1721-A(a). However, due to a long-standing vacancy, there are currently only six sitting CAB members. Consequently, because the CSL defines a quorum as “[a] majority of the members of [CAB],” 24 P.S § 17-1721-A(b), four members constitute a quorum. At CAB’s June 18, 2019 meeting, CAB Member Lee Ann Munger (CAB Member Munger) recused from the vote because she has children that attend Propel.

2 Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of June 19, 1997, P.L. 225, 24 P.S. §§ 17-1701-A - 17-1751-A. Section 1729.1-A of the CSL was added by Section 10 of the Act of November 6, 2017, P.L. 1142.

In addition, the PDE Secretary recused himself from the vote, leaving four CAB members, which was sufficient to constitute a quorum. CAB voted 3-1 to deny Propel’s substantive appeal from the District’s denial of Propel’s Application. However, CAB tabled the matter because CAB determined, in accordance with its interpretation of the CSL, that the 3-1 vote did not constitute a valid CAB action, since a majority of the six CAB members did not vote unanimously. CAB tabled the matter for a revote at the next CAB meeting in July. On July 24, 2019, with the PDE Secretary’s and CAB Member Munger’s recusals, the same four CAB members again voted on the substantive appeal resulting in another 3-1 vote, which CAB did not recognize as a valid CAB action. CAB once more tabled the matter. On September 6, 2019, Propel filed a Motion to Permit CAB Member Lee Ann Munger to Vote (Motion to Permit CAB Member Munger to Vote). CAB counsel held a conference call with all of the parties to discuss Propel’s Motion to Permit CAB Member Munger to Vote. On September 16, 2019, the District filed its response in opposition thereto. Propel withdrew its Motion to Permit CAB Member Munger to Vote on September 25, 2019. Also on September 25, 2019, Propel filed the instant Motion. On October 7, 2019, the District filed its response thereto. At the October 22, 2019 CAB meeting, the Motion was argued and voted upon by the same four participating CAB members, who voted 4-0 to deny Propel’s Motion resulting in the Order.3 Propel appealed to this Court.4 By January 16, 2020 order, this Court directed the parties to

3 CAB issued its written decision on November 27, 2019. 4 “Our review of [] CAB’s decision is limited to determining whether constitutional rights were violated, whether [] CAB committed an error of law, or whether [] CAB’s decision is supported by substantial evidence.” Insight PA Cyber Charter Sch. v. Dep’t of Educ., 162 A.3d 591, 594 n.3 (Pa. Cmwlth. 2017).

address the appealability of the November 27, 2019 Order in their principal briefs on the merits or other appropriate motion.5 The issues before this Court in the instant matter are identical to those before the Court in Propel Charter Schools v. Pennsylvania Department of Education & State Charter School Appeal Board, ___ A.3d ___ (Pa. Cmwlth. No. 1826 C.D. 2019, filed November 20, 2020). For the reasons set forth in Propel Charter Schools, this Court reverses CAB’s November 27, 2019 Order. Propel shall have 30 days from the date of this Court’s Order to appeal from CAB’s denial of Propel’s substantive appeal.

___________________________ ANNE E. COVEY, Judge

5 No other motion was filed.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Propel Charter Schools, : Petitioner : : v. : : Commonwealth of Pennsylvania, : State Charter School Appeal Board, : No. 1827 C.D. 2019 Respondent :

ORDER

AND NOW, this 20th day of November, 2020, the State Charter School Appeal Board’s (CAB) November 27, 2019 order is reversed. Propel Charter Schools (Propel) shall have 30 days from the date of this Court’s Order to appeal from CAB’s denial of Propel’s substantive appeal.

___________________________ ANNE E. COVEY, Judge