Burger v. Board of School Directors of McGuffey School District

OPINION BY Judge LEADBETTER. In this mandamus action, the.McGuffey School District (District) and its Board of Directors (Board) appeal from the December 1, 2000, order of the Court of Common Pleas of Washington County (trial court). At issue is whether the District violated Section 1080 of the School Code1 when it suspended District Superintendent Dr. Anthony Burger (Dr. Burger) pending a removal hearing on grounds that he was sexually harassing employees. For reasons that follow, we conclude that mandamus does not lie and, therefore, we reverse. In 1998, Dr. Burger was duly elected by the District to be the superintendent of schools for a five year term expiring August 4, 2003.2 The following day, Dr. Burger and the District entered into a contract governing his employment for the term. Although the chronology presented by the record is not precise, it appears that shortly after Dr. Burger began to serve as superintendent, allegations of sexual harassment began to surface. Dr. Burger’s secretary, Sheryl A. Fleck, complained that Dr. Burger engaged in a pattern of inappropriate sexual behavior and retaliation. Specifically, in a letter directed to the District, Fleck alleged the following: Within less than one (1) week of working with Ms. Fleck, Dr. Burger expressed his attraction to her and encouraged her to acknowledge a mutual attraction. [[Image here]] Ms. Fleck attempted to work amicably with Dr. Burger and explained to him that she was otherwise committed, and did not want to mix business with pleasure. During the fall of 1998, Dr. Burger made repeated advances to Ms. Fleck, including but not limited to inap [665] propriate physical touching of Ms. Fleck during the course of business meetings and in encounters within the school facilities. At the end of 1998, Ms. Fleck finally responded very briefly to those advances. She thereafter sought counseling and advised Dr. Burger very adamantly and clearly that she wanted nothing to do with him personally. That discussion occurred in January 1999. Initially, Dr. Burger would not be rebuffed. He demanded that Ms. Fleck attend a variety of out-of-school functions with him. He required her to meet him at his home in order to travel with him to the functions. He continued to touch her inappropriately, rub against her and assert to her that “I will have you; I get what I want.” R.R. at 165a-66a. Fleck further alleges that after she continued to rebuff Dr. Burger, he engaged in a course of retaliatory conduct that included, inter alia, demoting her, requiring unreasonable relocation, added job responsibilities, undermining her professional reputation, and personally interfering with her day-to-day work. After receiving Fleck’s letter, the District retained attorney Bruce Campbell to investigate her allegations. Thereafter on August 14, 2000, the District suspended Dr. Burger with pay as Campbell continued investigating. As part of his investigation, Campbell held an informal hearing during which he questioned Dr. Burger, with his counsel present, about Fleck’s allegations. Based on his investigation and the hearing, on October 26, 2000, Campbell reported to the District that sufficient evidence existed to warrant removing Dr. Burger pursuant to Section 1080.3 Thereafter on November 2, 2000, the District suspended Dr. Burger without pay via Board Resolution 00-01-01 (resolution). The District further provided in the resolution for a formal dismissal hearing 4 and that Fleck be granted intervenor status therein. On November 17, 2000, Burger filed a complaint in mandamus and a motion for peremptory writ seeking reinstatement and/or reinstatement of his salary and benefits, and further that any persons alleging sexual harassment be barred from participating in the hearing. After considering arguments, the trial court entered an order granting the peremptory writ in mandamus, rescinding Dr. Burger’s suspension and restoring his compensation and benefits. It is from this order that the District now appeals.5 The District argues first that the trial court erred by granting mandamus relief for the performance of a discretionary act, and second that mandamus is inappropriate because Dr. Burger’s exclusive remedy is an appeal pursuant to local agency law. [666] “Mandamus is an extraordinary-writ which will issue ‘to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy.’ ” Shaler Area Sch. Dist. v. Salakas, 494 Pa. 630, 636, 432 A.2d 165, 168 (1981) (quoting Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 494, n. 11, 387 A.2d 425, 430, n. 11 (1978)). If any one of the foregoing elements is absent, mandamus does not he. In the case at bar, we agree with the District that Dr. Burger has an adequate statutory remedy. Section 1080 of the School Code (the Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 10-1080, provides for the removal of superintendents as follows: District superintendents and assistant district superintendents may be removed from office, after hearing, by a majority vote of the board of school directors of the district, for neglect of duty, incompetency, intemperance, or immorality, of which hearing notice of at least one week has been sent by mail to the accused, as well as to each member of the board of school directors. From an adverse final decision of the board, the superintendent may appeal to the court of common pleas, pursuant to the Local Agency Law, 2 Pa.C.S. § 752. If common pleas finds that the board lacked substantial evidence to find grounds enumerated in § 10-1080, the removal can be reversed, and the superintendent awarded reinstatement and back pay. This remedy is complete and adequate. Where the Local Agency Law provides an adequate remedy, an action in mandamus is precluded. See Wagonhoffer v. Philadelphia Bd. of License and Inspection Review, 35 Pa.Cmwlth. 440, 386 A.2d 622, 624 (1978); Hutnik v. Sch. Dist. of the City of Duquesne, 8 Pa.Cmwlth. 387, 302 A.2d 873 (1973). Nonetheless, Dr. Burger relies on this court’s opinion in. Burns v. Uniontown Area Sch. Dist., 748 A.2d 1263 (Pa.Cmwlth.2000) to argue that mandamus relief is appropriate here. We believe that Dr. Burger reads Burns too expansively. In Bums, the superintendent’s contract was rescinded by an incoming board of school directors that was dissatisfied with the choice made by its predecessor. None of the grounds for which Section 1080 permits removal were alleged, and under those circumstances, we held removal to be per se unauthorized.6 In contrast, the suspension here was pursuant to and for grounds enumerated in Section 1080. Dr. Burger argues that, like removal at the pleasure of the Board, suspension without pay prior to a full due process hearing is per se unlawful, even for cause set forth in the School Code.7 We disagree. It is true that while Section 1080 provides the exclusive method for remov [667] ing superintendents, it is entirely silent with respect to suspension. However when serious charges of misconduct are raised, suspension pending removal is an inherent managerial prerogative.8 See Sch. Dist. of Philadelphia v. Kushner, 109 Pa.Cmwlth. 120, 530 A.2d 541, 542-43 (1987), citing Kaplan v. Sch. Dist. of Philadelphia, 388 Pa. 213, 130 A.2d 672 (1957); Eastern York Sch. Dist. v. Fasnacht, 64 Pa.Cmwlth. 571, 441 A.2d 481 (1982). In the appeal of a disciplinary suspension, our Supreme Court rejected arguments strikingly similar to those raised by Dr. Burger. In Rike v. Secretary of Education, 508 Pa. 190, 494 A.2d 1388, 1390-91 (1985), a teacher was accused of sexual harassment. The applicable provision of the School Code, Section 1129, mandated that after hearing, “[I]f less than two-thirds of all of the members of the board vote in favor of discharge, the professional employe shall be retained and the complaint shall be dismissed.” 24 P.S. § 11-1129.9 After a hearing, the school board found unanimously that Rike had committed the acts in question and suspended him without pay for the remainder of the school year, but by a vote of less than two thirds of its members. The teacher argued first that although the board had the express power to terminate his employment under the Code, the board lacked the lesser power of suspension, as to which the Code was silent. In rejecting this argument, the court stated: Rike’s argument that the Board was without power to suspend after conducting a hearing pursuant to Section 1122 and 1127 is likewise without merit. That a board of school directors possesses the authority to impose lesser forms of discipline than complete termination of a tenured teacher’s contract is by now beyond question ... Inherent in the school district’s power to employ is the power to control certain activities of teachers, Kaplan v. Philadelphia School District, 388 Pa. 213, 130 A.2d 672 (1957). As stated by [Chief Justice] Nix in Neshaminy Fed. Of Teachers v. Neshaminy School District, 501 Pa. 534, 545, 462 A.2d 629, 635 (1983): “The power to regulate conduct, of course, would be illusory absent a concomitant power to enforce rules through the imposition of some form of discipline.” Rike, 508 Pa. at 195, 494 A.2d at 1390-91. Next, Rike argued that, “it was improper for the Board to impose a suspension by vote of less than the number required to [668] effect a dismissal.” The court rejected the argument as meritless. It noted: In contrast to the clear expression of legislative intent that the most drastic form of discipline be accomplished only with the approval of two-thirds of the entire board, the Public School Code is totally silent as to what protections must be afforded tenured teachers prior to [suspension]. If the legislature intended to require two-thirds approval of the board every time a teacher is disciplined, they could have inserted such a provision in the Code. Their not having done so we cannot add it.... Id. at 196-97, 494 A.2d at 1391. Although Rike and the other cases cited above arose in the context of professional employees rather than a superintendent, such employees are afforded similar statutory protection from removal under Section 1122 of the Code, 24 P.S. § 11-1122 (specifying the grounds for removal),10 as well as Section 1129. Thus we believe the principles adhered to in these decisions are fully applicable here. Accordingly, we reverse the trial court’s order. ORDER AND NOW, this 21st day of August, 2002, the order of the Court of Common Pleas of Washington County in the above captioned matter is REVERSED. Footnotes [1] Section 1080 of the School Code (the Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 10-1080. [2] Section 1073 of the Code, 24 P.S. 10-1073, provides that the board of school directors must elect a superintendent to serve a term of three to five years. [3] Campbell reported only the existence of evidence supporting removal. At this stage in the process Campbell did not reveal to the District the nature of the evidence. [4] Counsel advised us at oral argument that Dr. Burger was removed following the subsequent formal hearing before the Board. [5] This case was first argued before a three judge panel of our court. The case was then re-listed and argued before our court en banc on May 8, 2002. We note the District and the Board also appealed the November 28, 2000 order of the trial court concerning Fleck's intervenor status. However, the issues raised by that order are moot and therefore we shall not address them. We also note that contrary to the trial court’s assertion, we have jurisdiction over this matter pursuant to Pa. R.A.P. 311(a)(5), which specifically allows for an appeal as a matter of right from an order granting peremptory judgment in mandamus. [6] Specifically, we stated: Finally, the School Code provides only one mechanism for the removal of a duly elected superintendent. That mechanism is limited to a due process hearing with notice and removal for only one of four stated reasons. There is no dispute that the Board in this case did not follow that statutory scheme to remove Superintendent by votes to "rescind” both the election and the contract without any authority after he was duly elected to a new term and had executed a new contract. There is no authority in the School Code for the action of rescission by the reorganized 1997 Board. Burns v. Uniontown Area Sch. Dist., 748 A.2d 1263, 1267-68 (Pa.Cmwlth.2000) (footnote omitted). [7] Essentially, his position is that the statutory remedy is inadequate because he could not obtain back pay if the charges were ultimately proven to be well founded. [8] Exercise of this prerogative is, of course, subject to the employee's Loudermill rights, at least if the employee, like the superintendent here, has a protected property right in continued employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (where an individual has a property right in employment, he may be suspended prior to a full due process removal hearing, but only after he has been afforded notice of the charges and an opportunity to respond.) Here, the Board did not suspend Dr. Burger without pay until after the hearing conducted by counsel, which fully complied with Loudermill. [9] Section 1129 provides, in more complete pertinent part: After fully hearing the charges or complaints and hearing all witnesses produced by the board and the person against whom the charges are pending, and after full, impartial and unbiased consideration thereof, the board of school directors shall by a two-thirds vote of all the members thereof, to be recorded by roll call, determine whether such charges or complaints have been sustained and whether the evidence substantiates such charges and complaints, and if so determined shall discharge such professional employe. If less than two-thirds of all of the members of the board vote in favor of discharge, the professional employe shall be retained and the complaint shall be dismissed. Section 1129 of the Code, 24 P.S. § 11-1129. [10] Section 1122 provides, in pertinent part: The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be immorality, incompetency, intemperance, cruelty, persistent negligence, mental derangement, advocation of or participating in un-American or subversive doctrines, persistent and wilful violation of the school laws of this Commonwealth on the part of the professional employee. Section 1122 of the Code, 24 P.S. § 11-1122.