Rossi vs. Lebanon School District

 

  ROSSI vs. LEBANON SCHOOL DISTRICT

Schools – Local Agency Law – Appeal from Removal of Assistant Superintendent by School Board – Condition of Record – Standard of Review – Affirmation of Local Agency by Court – Exceptions to Affirmation by Court – Grounds for Removal – Immorality – Lying to Superintendent – Community Standards – Bad Example to Youth – Substantial Evidence.

1. The Local Agency Law provides that any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals.
2. Our Commonwealth Court has determined that a school district/school board is a local agency within the Local Agency Act.
3. A school district is a political subdivision, and, at least to the extent that a school board’s decisions determine or affect private rights, privileges, immunities or obligations by adjudication, such decisions are appealable under the Local Agency Law.
4. When considering an appeal from a local agency, a court’s standard of review is determined by the condition of the record created before that local agency.  In the event the proceedings before the local agency fail to establish a full and complete record, the court of common pleas may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.
5. Where a full and complete record is made before the local agency, a reviewing court shall hear the appeal on the record supplied, and shall affirm the local agency’s adjudication unless it violates constitutional rights, the local agency committed an error of law, the decision violates the provisions of the Law, or necessary findings of fact are not supported by substantial evidence.
6. If a full and complete record of the proceedings before the agency was made such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless allowed by the court upon due cause shown.
7. The Court must affirm the adjudication unless it finds one of the following:  (1) the adjudication is in violation of the constitutional rights of Plaintiff; (2) the adjudication is not in accordance with law; (3) the provisions of local agency law have been violated in the proceedings before the Board; or (4) any finding of fact made by the Board and necessary to support its adjudication is not supported by substantial evidence.
8.   Based upon its review of the record, the Court found that there was nothing that suggested that the adjudication was in violation of the constitutional rights of Plaintiff; that there was nothing that hinted that the adjudication was not in accordance with law; and further, that there was nothing that indicated that the provisions of local agency law had been violated in the proceedings before the Board.
9. The Court also concluded that the Board’s findings were supported by substantial evidence in the record so that the Court was left to determine whether Plaintiff’s actions were immoral under the Public School Code and whether the School District met its burden.
10. 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.
11. Immorality has been defined as a course of conduct as offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate.
12. Immorality under the School Code may include lying or making false statements to school district staff.  Questions of morality are not limited to sexual conduct, but may include lying.
13. To demonstrate immorality, which is cause for termination of a tenured professional employee, a school district must establish that:  (1) the conduct claimed to constitute immorality actually occurred; (2) such conduct offends the morals of the community; and (3) the conduct is a bad example to the youth whose ideals the teacher is supposed to foster and elevate.
14. The Court determined that it was clear from reviewing the record that the conduct claimed to constitute immorality actually did occur.  Therefore, it was left to determine if the conduct offended the morals of the community, and if the conduct was a bad example to the youth whose ideals the administrator is supposed to foster and elevate.
15. The determination of community standards is made by the school board, and thus a finding of the board that a professional employee was guilty of offending the moral standards of the community by his actions will not be disturbed on appeal when supported by substantial evidence.  Such substantial evidence necessary to justify dismissal is determined by whether a reasonable person acting reasonably might have reached the same decision as the board.
16. Since the Board found that Plaintiff’s actions offended the morals of the community, the Court would not substitute its judgment for that of the Board.  The Court further noted that given its limited scope of view, it could be said that a reasonable person acting reasonably would have reached the same decision.  Further, the Court did not see how one could seriously argue that lying and asking another individual to lie for you is not a bad example to the youth.  Accordingly, the Court found that the Board’s findings were supported by substantial evidence.
17. The Court affirmed the Board’s adjudication and entered an Order consistent with its findings.

Notice of Appeal.  C.P. of Lebanon County, Civil Action-Law, No. 2011-02593.

Christian L. Hausner, Esquire, for Plaintiff

Rebecca A. Young, Esquire, for Defendant

ORDER OF COURT

            And now, to wit, this 10^th day of August, 2012, upon consideration of the Plaintiff’s Notice of Appeal, the parties’ briefs in support of their positions, oral argument, and the record of the case, we hereby AFFIRM the November 30, 2011 decision of the Lebanon School District’s School Board.

 

OPINION, KLINE, J., AUGUST 10, 2012

Before the Court is Plaintiff’s (hereinafter “Rossi”) appeal of the decision of the Lebanon School District’s School Board (hereinafter “the Board”), where the Board terminated her employment as Assistant Superintendent with the Lebanon School District (hereinafter “the School District”).  For the reasons set forth herein, we affirm the decision of the Board, as specified below.

FACTS AND PROCEDURAL HISTORY

On December 29, 2011, Rossi filed her Notice of Appeal of the November 30, 2011 decision of the Board to terminate her employment as Assistant Superintendent with the School District.  The Board determined that Rossi engaged in deceptive conduct because she lied to the Superintendent, and she solicited a subordinate employee to cover up the lie on her behalf.  The Board found that such deceptive conduct satisfied the charges of immorality brought against her under Section 1080 of the School Code, and it found that immediate termination of her employment was appropriate.  The Board also found that Rossi’s conduct did not satisfy the charges of neglect of duty and incompetency under Section 1080 of the School Code, and it took no action on these charges.

On January 23, 2012, the School District filed Preliminary Objections to the Notice of Appeal.  The School District argued that Rossi’s statutory appeal made various requests that she was not entitled to in the appeal.  Oral argument was heard on March 30, 2012.  On April 13, 2012, this Court sustained in part and overruled in part the Preliminary Objections, and we set forth our standard of review for disposing of the appeal.  At oral argument, the parties stated that they intended for the appeal to be decided based on the certified record.  Therefore, we directed the parties to stipulate to the existence of a complete record and to file it within 30 days.

The certified record was filed on May 2, 2012.  The case was listed for the June 2012 Term of Argument Court.  Rossi filed a brief in support of her position on June 11, 2012.  In her brief, Rossi makes three arguments in support of her appeal.  First, Rossi argues that the School District did not meet its burden to establish that Rossi committed immorality within the meaning of the Public School Code.  Second, Rossi contends that the record does not contain substantial evidence sufficient to support the findings of fact and adjudication that she committed acts of immorality justifying and supporting the termination of her employment.  Finally, Rossi contends that the Board’s determination was not in accordance with the law of what constitutes immorality within the meaning of the Public School Code.

The School District filed a brief in support of its position on June 22, 2012.  Oral argument was heard on June 29, 2012.  The case is thus before us and ripe for disposition.

DISCUSSION

As an initial matter, we note that the following individuals are the relevant parties to the facts of the case and will be discussed throughout this Opinion.  At all times pertinent to this dispute, Dr. Marianne Bartley (hereinafter “Bartley”) was the Superintendent of the Lebanon School District.  Dr. Evelyn Rossi (hereinafter “Rossi”) was the Assistant Superintendent of the Lebanon School District.  Melanie Warner (hereinafter “Warner”) was Rossi’s assistant.  Mary Garrett-Giovino (hereinafter “Garrett-Giovino”) was the middle school principal.  Debra Gross (hereinafter “Gross”) was Garrett-Giovino’s secretary.

Findings/Conclusions of Law of the Board

            We begin our analysis by stating the Findings of Fact/Conclusions of Law of the Board. We set these forth in detail.[1]

Bartley asked Rossi to contact Garrett-Giovino, in connection with the scheduling of job interviews for a special education consultant, and Rossi said she would.  (Finding of Fact 7).  At around 3 PM on October 17, 2011, in response to Bartley’s inquiry, Rossi said she left a phone message with Garrett-Giovino regarding the interviews but had not received a return phone call.  (Finding of Fact 8).  Rossi had not called or left a message with Garrett-Giovino prior to the 3 PM conversation with Bartley.  (Finding of Fact 8a).  Shortly after her 3 PM conversation with Bartley, Rossi called the middle school for Garrett-Giovino and left a message with the secretary at approximately 3:25 PM on October 17, 2011.  (Finding of Fact 8b).  After learning later that day that Garrett-Giovino had not received a phone message from Rossi prior to 3 PM, Bartley asked Rossi for an explanation.  (Finding of Fact 8c).  Rossi clarified that her assistant, and not herself, called the middle school for Garrett-Giovino prior to 3 PM (Finding of Fact 8d).  Neither Rossi nor her assistant had called Garrett-Giovino or left any message for Garrett-Giovino prior to 3 PM on October 17, 2011.  (Finding of Fact 8e).

On October 18, 2011 around 7 AM, Rossi solicited her assistant to lie on her behalf.  (Finding of Fact 9).  Rossi asked her assistant to say that she called Garrett-Giovino the prior day if anyone asked her if she did.  (Finding of Fact 9a).  Thereafter, Rossi sent Bartley an email shortly before 8 AM on October 18, 2011, saying that her assistant had called for Garrett-Giovino the prior day, but had not left a message asking Garrett-Giovino to return the call.  (Finding of Fact 9b).  Later that morning, Bartley called the assistant and asked whether she had called Garrett-Giovino on October 17; Rossi’s assistant lied and told Bartley that she had done so.  (Finding of Fact 9c).  Bartley asked Rossi’s assistant to come to her office to meet with her.  (Finding of Fact 9d).  At this meeting, Rossi’s assistant admitted to having lied when saying that she had called Garrett-Giovino the prior day.  (Finding of Fact 9e).  Rossi’s assistant explained that Rossi had asked her to lie about the matter earlier that morning. (Finding of Fact 9e).

Around 9:15 PM on October 18, 2011, Rossi sent Bartley an email apologizing for her actions.  (Finding of Fact 10). Rossi started by saying she had not deliberately lied on October 17, and at that time she truly thought her assistant had placed the pre-3 PM call to Garrett-Giovino.  (Finding of Fact 10).  Rossi then acknowledged she “tried to lie it away today.” (Finding of Fact 10).  In her testimony, Rossi admitted that she (a) asked her assistant on October 18^th to lie about having called Garrett-Giovino on October 17, and (b) lied in her email to Bartley sent shortly before 8 AM on October 18, which

stated that her assistant had made such a phone call.  (Finding of Fact 10).

Bartley testified that as a result of the foregoing incidents, she could not ever again trust Rossi, and without such trust their working relationship would be irretrievably broken.  (Finding of Fact 11).  Further, trust is a paramount consideration with respect to Rossi’s job duties and her working relationship with Bartley, and Rossi’s continued employment would be detrimental to the School District.  (Finding of Fact 11).  The Board found Bartley’s testimony to be credible.

The Board concluded that the allegations of deception in the

Statement of Charges against Rossi, lying to Bartley about having contacted another administrator regarding the scheduling of interviews for job candidates, and asking her own assistant to help cover up the lie by also lying to Bartley about the same situation, had been proven.  (Conclusion of Law 13).  The Board concluded that Rossi’s conduct did not satisfy the charges of neglect of duty and incompetency under Section 1080 of the School Code, and it took no action on these charges.  (Conclusion of Law 14).  However, the School Board concluded that the conduct did satisfy the charges of immorality under Section 1080 of the School Code. (Conclusion of Law 15).

The Board stated that “immorality” is not defined in the School Code, but has been defined by Pennsylvania Courts.  (Conclusion of Law 15a).  The Board stated that the Pennsylvania Supreme Court has described immorality as “a course of conduct that offends the morals of the community and is a bad example to the youth whose ideals a professional educator is supposed to foster and elevate,” citing Horosko v. School District of Mount Pleasant Township, 6 A.2d 866, 868 (Pa. 1939). (Conclusion of Law 15b).  The Board stated that lying and other acts of deception can constitute immorality under the School Code. (Conclusion of Law 15d).

The Board concluded that it offended the morals of the School District’s

community, and is a bad example to the School District’s students, for the Assistant Superintendent to lie to the Superintendent, and to also solicit a subordinate employee to cover up the lie by lying to the Superintendent on the same matter. (Conclusion of Law 15e).  The Board concluded that Rossi soliciting a subordinate employee to lie on her behalf was extraordinarily disturbing, and based on Bartley’s testimony, it permanently ruptured the trust that is essential for the School District’s top two administrators to have an effective working relationship.  (Conclusion of Law 15f).  Having found that Rossi was guilty of immorality under Section 1080 of the School Code, the Board concluded that the immediate termination of her employment was appropriate and was in the best interests of the School District, its students, staff, parents, and taxpayers.  (Conclusion of Law 15g).

We will set forth the relevant law to review the Board’s decision.

Standard of Review

            Local agency law provides, “Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” 2 Pa.C.S.A. § 752.  Our Commonwealth Court has determined that a school district/school board is a local agency within the Local Agency Act.  The Commonwealth Court stated,

The Local Agency Law concerns appeals from any ‘local agency’, and defines this term in s 2(2), 53 P.S. s 11302(2) as: ‘(A)ny department, departmental board or commission, independent administrative board or commission, officer or other agency of a Political subdivision now in existence or hereafter created, empowered to determine or affect private rights, privileges, immunities or obligations by adjudication, but shall not include a court of record, a magistrate, alderman, justice of the peace, nor an ‘agency’ as defined in the act of June 4, 1945 (P.L. 1388), known as the ‘Administrative Agency Law. “ (Emphasis added.) The term ‘political subdivision’ is defined in s 101(88) of the Act of May 28, 1937, P.L. 1019, as amended, 46 P.S. s 601(88) in this manner: ‘The following words and phrases, when used in any law hereafter enacted, unless the context clearly indicates otherwise, shall have the meanings ascribed to them in this section: . . . (88) ‘Political subdivision,’ any county, city, borough, incorporated town, township, School district, vocational school district and county institution district.’ (Emphasis added.)

 

It is clear, therefore, that a school district is a political subdivision, and, at least to the extent that a school board’s decisions ‘determine or affect private rights, privileges, immunities or obligations by adjudication,’ such decisions, therefore, must be appealable under the Local Agency Law.

 

School Bd. of School Dist. of Penn Hills Tp. v. McDonald, 298 A.2d 612, 613-614 (Pa. Cmwlth. 1972).

The Local Agency Law provides as follows,

§ 754. Disposition of appeal

 

(a) Incomplete record.–In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.

 

(b) Complete record.–In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency. After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).^[2]

 

2 Pa.C.S.A. § 754.

Furthermore, our Commonwealth Court has stated,

When considering an appeal from a local agency, a court’s standard of review is determined by the condition of the record created before that local agency. In the event the proceedings before the local agency fail to establish a full and complete record, the court of common pleas may hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making a full and complete record or for further disposition in accordance with the order of the court.

 

Where a full and complete record is made before the local agency, however, a reviewing court shall hear the appeal on the record supplied, and shall affirm the local agency’s adjudication unless it violates constitutional rights, the local agency committed an error of law, the decision violates the provisions of the Law, or necessary findings of fact are not supported by substantial evidence.

 

Here, it is undisputed a full and complete record was made before Borough Council. Indeed, the parties stipulated to the existence of a complete record. Moreover, the trial court considered the record complete as evidenced by its decision not to accept additional evidence and to resolve the matter based on Borough Council’s record. Under these circumstances, the proper standard of review is set forth in Section 754(b) of the Law.

 

Pursuant to Section 754(b), a reviewing court may look only to the evidence relied on by the fact-finder, here Borough Council. “Nowhere in Section 754 is the reviewing court given general authority to make its own findings of fact and conclusions of law when the local agency has developed a full and complete record….”

 

A reviewing court, such as the trial court here, must accept the credibility determinations made by the local agency which hears the testimony, evaluates the credibility of the witnesses and serves as fact-finder. The reviewing court is not to substitute its judgment for that of the local agency. Assuming the record demonstrates the existence of substantial evidence, the court is bound by the local agency’s findings.

 

In re Nevling, 907 A.2d 672, 674 (Pa. Cmwlth. 2006). (citations omitted).

Our scope of review is also limited to only those matters brought before the Board.  The Local Agency Law also provides, in relevant part:

…if a full and complete record of the proceedings before the agency was made such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless allowed by the court upon due cause shown.

 

2 Pa.C.S.A. § 753.

The parties submitted to the Court the record of the hearing before the Board to decide the appeal.  Therefore, this Court is bound by the standard of review as set forth in 2 Pa.C.S.A. § 754(b).  We must affirm the adjudication unless we find one of the following: (1) the adjudication is in violation of the constitutional rights of Rossi, (2) the adjudication is not in accordance with law; (3) the provisions of local agency law have been violated in the proceedings before the Board; or (4) any finding of fact made by the Board and necessary to support its adjudication is not supported by substantial evidence.

We now turn to the Certified Record submitted by the parties.

Review of the Record

Bartley provided the following testimony at the hearing.  On October 17, 2011, Bartley asked Rossi to contact Garrett-Giovino and Chris Danz, the high school principal, regarding special education interviews. (N.T. 16-17).  Rossi agreed that she would. (N.T. 17).

Shortly before 3 PM on the afternoon of October 17, 2011, Rossi came to Bartley’s office, and Bartley asked her if she contacted Garrett-Giovino about the interviews.  (N.T. 18).  Rossi stated, “I called, but she was in with a parent, and she didn’t get back to me.” (N.T. 18).  Thereafter, Rossi left Bartley’s office, and Bartley’s administrative assistant then told her that Garrett-Giovino called Bartley. (N.T. 18).  Bartley called Garrett-Giovino back, and during the conversation, Bartley asked her if Rossi called her. (N.T. 19).  Garrett-Giovino told Bartley that Rossi did not contact her. (N.T. 20).  The conversation between Garrett-Giovino and Bartley ended, and Bartley was planning to address the issue with Rossi.  (N.T. 20).  Garrett-Giovino then called Bartley back to tell her that Rossi just called her and talked to her secretary.  (N.T. 20).  Rossi contacted Garrett-Giovino at approximately 3:25 in the afternoon. (N.T. 21).

On October 17, 2011 at 3:50 PM, Bartley wrote Rossi the following email,

Right after you left my office, I called Mary because she called me about…I mentioned that you had tried to call her earlier that day but that you were in with a parent.  She told me that she did not get any message that you called.  She does not believe her staff received your call.

 

Then, I understand you did call her at 3:25.

 

If you did call someone, with whom did you speak?

 

If no, I do not understand why you would not tell me the truth.  There is no reason to lie to me.  Your thoughts?

 

(Exhibit No. 3).

Rossi responded to this by emailing Bartley back on October 17, 2011 at 4:01 PM and she stated,

I did not call personally, My [sic] staff did.  I will check tomorrow to see with whom she spoke.  You are correct, there is no need to lie and there wasn’t one.  When I called this afternoon, she was not available again, so I left a message to confirm who would be in attendance and left the dates & times with Debbie.  I still have not received a confirmation.

 

(Exhibit No. 4).

Gross emailed Bartley at 3:31 PM on October 17, 2011 to tell her that Rossi just called Garrett-Giovino at 3:25 PM regarding the interviews.  (Exhibit No. 5).

On October 18, 2011 at 7:54 AM, Rossi sent Bartley an email stating,

I checked with the secretary first thing.  She called for me to talk to Mary.  When she was told Mary was unavailable she did not leave a message to call me back because I was leaving for another meeting & thought we would call again when I returned.  I hope this clarifies the matter.

 

For the record, I still have not received a confirmation from

Mary from my message yesterday afternoon regarding

attendance at the interviews.

 

(Exhibit No. 6).

On October 18, 2011 at 9:11 AM, Bartley wrote Rossi the following email,

Two things:

 

Which secretary?

 

Secondly, Mary’s secretary did not tell her that you wanted confirmation.  According to her secretary, you did not request or ask for any return confirmation or acknowledgement; you told her to give Mary the dates and times.

 

(Exhibit No. 8).

Rossi responded to this on October 18, 2011 at 10:19 AM by emailing Bartley and stating,

That is BS.  I spoke to Debbie.  When she told me Mary was not available. [sic] I asked her to tell Mary dates & times for interviews and confirm who would be there from the MS in case Mary wad [sic] not able.  I will put everything in writing from now on.  I hate the twisting of info and deemed guilty without the oppty to defend first.  One day your perception will change.

 

(Exhibit No. 11).  On October 18, 2011 at 11:15 am, Gross wrote Bartley an email stating Rossi told her she did not want Garrett-Giovino to call her back but Gross was just to give her the message about the interviews. (Exhibit No. 14).

On Tuesday, October 18, 2011 at 9:15 PM, Rossi wrote Bartley an apology email stating,

I needed to contact you to apologize.  I did not lie to you yesterday.  I honestly thought the phone call was made.  I just wanted a trivial matter to go away, so I compromised my principles and tried to lie it away today.  Everything I told you about my conversation with Debbie was gospel truth.  I never lied to you before although your words to others made me aware you thought I did.  Now I gave you a reason.  I wanted to tell you face to face at the end of today how sorry I am and plead for forgiveness.  I completely forgot about the principals’ meeting because I was consumed with guilt.  Truthfully, It [sic] was better for me because I am too embarrassed at this point to look you in the eye, but the reality is our eyes must meet sometimes.  I expect to see your disappointment and I will work hard to regain your trust.  Please find it in your heart to forgive me.  I promise you will never be given another time to doubt my word.  Sincerely and with much regard, Evvie.

 

(Exhibit No. 10).

Subsequently, Bartley asked Warner on the telephone if she called the middle school for Rossi.  (N.T. 28).  Warner sounded tentative when questioned, and Bartley asked Warner to come talk to her.  (N.T. 28).  When Warner met with Barley, Warner told her that she never called the middle school and Rossi did not ask her to call.  (N.T. 29).  Further, Rossi told Warner that if somebody asked her about it, that she was supposed to lie. (N.T. 29-30).

Rossi was placed on paid administrative leave.  (N.T. 34).  Bartley testified that it was her opinion that based on the events, Rossi could not function as an effective Assistant Superintendent. (N.T. 34).  Bartley testified that trust is a main component of Rossi’s job, and that a trusting relationship with Rossi was breached beyond repair. (N.T. 13, 39).

Garrett-Giovino also testified at the hearing, and her testimony reflected the following facts.  On October 17, 2011, Garrett-Giovino was having a telephone conversation with Bartley, Bartley asked her if she had received a phone call from Rossi at any point during the day regarding the interviews.  (N.T. 48).  Garrett-Giovino had not received a phone call from anyone regarding the interviews.  (N.T. 48).  Garrett-Giovino did not have any meetings with any parents on October 17, 2011. (N.T. 50).  Prior to 3:25 PM, Garrett-Giovino had not received any communication from Rossi about the interviews.  (N.T. 52-53).

Gross provided the following testimony at the hearing.  On October 17, 2011 before 3:25 PM, she did not receive any telephone calls from Rossi or Warner.  (N.T. 57).  Further, she did receive any telephone calls from anyone in Human Resources or the District office that were to be directed to Garrett-Giovino before 3:25 PM on October 17, 2011.  (N.T. 57).  Prior to 3:25 PM on that date, Gross never informed anyone that Garrett-Giovino was in a meeting with a parent and could not make a phone call.  (N.T. 58).  Rossi called at 3:25 PM and asked for Garrett-Giovino.  (N.T. 58).

Warner provided the following testimony.  On October 17^th, she did not know anything about phone calls that were to be made concerning the interviews. (N.T. 61-62).  On the morning of October 18^th, Rossi called Warner into her office.  (N.T. 62).  The following occurred when she went to Rossi’s office:

Warner: [Rossi] asked me to cover for her and that if somebody called me I was supposed to say that I called Mary—I was supposed to say that I called Mary Garrett for her, but that she wasn’t available, and I didn’t leave a message.

 

(N.T. 63).  Rossi was referring to the events of October 17^th. (N.T. 63).  Warner never did make any call on October 17^th.  (N.T. 63).  Later that morning, Bartley called Warner and asked her if she called the middle school for Rossi.  (N.T. 64).  Warner first said that she did, but then she stammered, and Bartley asked her to come to her office.  (N.T. 64).  In Bartley’s office, Bartley asked Warner if she did make the call, and Warner said she did not.  (N.T. 64).  Warner told Bartley that Rossi asked her to say that she did call.

(N.T. 64).

Rossi also testified at the hearing.  Rossi does not contest that the incident occurred.  (N.T. 74).  Rossi actually thought that she did ask Warner to call Garrett-Giovino.  (N.T. 87).  Rossi also testified that she did ask Gross for confirmation back from Garrett-Giovino. (N.T. 95).  Rossi also admitted to asking her assistant to cover for her. (N.T. 92).  Rossi testified that she was not being truthful in the email marked as Exhibit No. 6 at the time she sent it.  (N.T. 98).  Rossi believes that the termination of her employment is too severe a punishment for what occurred.  (N.T. 78).

Review of the Board’s Decision

            The Court will commence our review of the Board’s decision by first stating that we are not sitting as the fact finder; therefore, we cannot find new facts.  Neither can we reweigh the credibility of the witnesses.  It is not this Court’s position to substitute our judgment for that of the Board.  Although argument can be made, as Rossi suggests, that the sanction imposed upon her is somewhat severe, this Court cannot base our disposition on whether the proper sanction was imposed.  Rather, this Court is guided by the relevant law and the facts of this case when disposing of this appeal.  As stated, we are bound by the standard of review set forth in 2 Pa.C.S.A. §754(b).

As already stated that section provides, in relevant part,

After hearing the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter B of Chapter 5 (relating to practice and procedure of local agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.

 

2 Pa.C.S.A. §754(b). (emphasis added).  Therefore, since this Court has a full and complete record of the proceedings that was stipulated to by the parties, we must affirm the Board’s adjudication unless it violates constitutional rights, the local agency committed an error of law, the decision violates the provisions of agency law, or the necessary findings of fact are not supported by substantial evidence.  The statute does not give this Court the discretion to affirm the decision.  The language does not state that we should affirm the adjudication or we can affirm the adjudication.  Rather, the statute is clear that we are compelled to affirm the adjudication.

Based upon review of the record, we find that there is nothing that suggests that the adjudication is in violation of the constitutional rights of Rossi.  There is nothing that hints that the adjudication is not in accordance with law.  Further, there is nothing that indicates that the provisions of local agency law have been violated in the proceedings before the Board.

Therefore, we are left to determine if the Board’s findings and adjudication is supported by substantial evidence.  The record indicates that on October 17, 2011, Rossi was instructed by Bartley to contact Garrett-Giovino regarding the scheduling of certain interviews.  Shortly before or at approximately 3 PM on that date, Bartley asked Rossi if she contacted Garrett-Giovino.  Rossi stated that she did; however, Rossi had not contacted Garrett-Giovino at this time.  Shortly thereafter, Bartley and Garrett-Giovino were engaged in a phone conversation when Bartley learned from Garrett-Giovino that Rossi had not contacted her.  When Bartley later questioned Rossi about this, Rossi stated that a member of her staff had made the call.  At approximately 3:25 PM on that date, Rossi called Garrett-Giovino’s secretary about the interviews.  On the morning of October 18, 2011, Rossi asked her assistant to cover up and lie for her.  Specifically, Rossi asked her assistant that if anyone asked her about the incident, she was to say that she did contact Garrett-Giovino on October 17^th, but she was not available and she did not leave a message.  Rossi does not contest that she did this.

As already stated, Rossi was terminated for immorality under Section 1080 of the Public School Code, which provides,

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.

 

24 P.S. §10-1080.[3]

As stated, Rossi makes three arguments in support of her appeal.  First, Rossi argues that the School District failed to meet its burden that Rossi committed immorality within the meaning of the Public School Code.  Second, Rossi argues that the record of the proceedings does not contain substantial evidence to support the findings that Rossi committed acts of immorality.  Finally, Rossi argues the Board’s determination is not in accordance with the law establishing what constitutes immorality within the meaning of the Public School Code.  We already concluded that the Board’s findings are supported by substantial evidence in the record; therefore we are left to determine whether Rossi’s actions where immoral under the Public School Code, and whether the School District met its burden.

As the Board stated in its report, “immorality” is not defined in the Public School Code; however the term has been defined by the courts.  Immorality has been defined as, “…a course of conduct as offends the morals of the community and is a bad example to the youth whose ideals a teacher is supposed to foster and to elevate.” Horosko v. School Dist. of Mount Pleasant Tp., 6 A.2d 866, 868 (Pa. 1939).  The Commonwealth Court stated in the more recent case, Reifer v. Williamsport Area School Dist., 2008 WL 4479168 (Pa. Cmwlth. 2008), “To demonstrate “immorality,” which is cause for termination of a tenured professional employee, a school district must establish that: (1) the conduct claimed to constitute “immorality” actually occurred; (2) such conduct offends the morals of the community; and (3) the conduct is a bad example to the youth whose ideals the teacher is supposed to foster and elevate.”

We note that all these cases dealt with the termination of teachers.  However, the definition of immorality has been applied to the termination of assistant principals in Brownsville Area School Dist. v. Alberts, 260 A.2d 765 (Pa. 1970).  Therefore, we see no reason why this definition of immorality would not apply here, and we have not come across any cases saying that it should not be applied to the termination of an assistant superintendent.

Furthermore, immorality under the School Code may include lying or

making false statements to school district staff.  Riverview School Dist. v. Riverview Educ. Ass’n, PSEA-NEA, 639 A.2d 974 (Pa. Cmwlth. 1994).  “…[Q]uestions of morality are not limited to sexual conduct, but may include lying.”  Bethel Park School Dist. v. Krall, 445 A.2d 1377, 1378 (Pa. Cmwlth. 1982).

It is clear from reviewing the record that the conduct claimed to constitute “immorality” actually did  occur.  Therefore, we are left to determine if the conduct offends the morals of the community, and if the conduct is a bad example to the youth whose ideals the administrator is supposed to foster and elevate.

At oral argument, counsel for Rossi made three arguments in support of her position that her conduct does not fall under the definition of immorality: (1) her actions were not a course of conduct and it is not comparable to other case law; (2) her actions do not offend the morals of the community; and (3) her actions are not a bad example to the youth.  We do not agree.

First, Rossi’s actions are a course of conduct.  The case law clearly tells us that the definition of “immorality” can include lying and making false statements to school district staff.

Next, the Commonwealth Court also stated,

The determination of community standards is made by the school board, and thus a finding of the board that a professional employee was guilty of offending the moral standards of the community by his actions will not be disturbed on appeal when supported by substantial evidence.  Such substantial evidence necessary to justify dismissal is determined by whether a reasonable person acting reasonably might have reached the same decision as the board.

 

Bethel Park School Dist., 445 A.2d at 1378-1379. (citations omitted).  The

Board concluded that it offended the morals of the School’s District’s community, and it was a bad example to the School District’s students, for Rossi to lie Bartley and for her also to solicit a subordinate employee to cover up the lie.  The Board found that in particular, Rossi soliciting Warner to lie on her behalf was disturbing to the Board.  Further, it found that trust between Bartley and Rossi was permanently ruptured, based on Bartley’s testimony.

The Board found that the Rossi’ actions offended the morals of the community, and we will not substitute our judgment for that of the Board.  Given our limited scope of view, it can be said that a reasonable person acting reasonably could have reached the same decision.  In today’s day and age, what one person considers to be immoral may not be considered immoral by another.  However, the facts of this case are clear.  What started out with an initial lie about making a phone call escalated into a worse situation insofar as Rossi asked her assistant to lie for her to help her cover up the lie.  A reasonable person could very well view these incidents to be immoral.  Therefore, we cannot conclude, as Rossi argues, that her actions do not offend the morals of the community.

Finally, this Court does not see how one can seriously argue that lying and asking another individual to lie for you is not a bad example to the youth.  Although unfortunately lying persists in today’s age, our youth, who are the future of our society, should be taught the importance of honesty.

In Bethel Park School District, supra., the Commonwealth Court concluded that  although a teacher’s unexcused absences might have been considered in the context of “persistent willful misconduct,” at least her misrepresentations as to the reason for absences were properly the subject of an immorality charge.  Therefore, the school board properly found that the teacher’s conduct was immoral and warranted her discharge.  In Balog v. McKeesport Area School District, 484 A.2d 198 (Pa. Cmwlth. 1984), the Commonwealth Court concluded that a teacher making false statements to school district staff was immoral, and the teacher’s dismissal was warranted. Although Rossi contends that the case law is not comparable to this case, it appears that the cases are handled on a case by case basis on the specific facts of that case, and we cannot substitute our judgment for that of the Board.

Accordingly, we find that the Board’s findings are supported by substantial evidence.  The School District did meet its burden showing that Rossi did engage in immoral conduct.  The record supports the Board’s conclusions that Rossi lied to Bartley about having contacted another administrator regarding the scheduling of interviews for job candidates, and that Rossi solicited her assistant to help her cover up the lie.  Therefore, we are constrained to affirm the Board’s adjudication.  We will enter an Order consistent with the foregoing.