Commonwealth Court Throws "Illegal Procedure Flags" in Teacher Termination Cases

By Sean A. Fields, Co-chair of the School Law Group

School Law Snapshot

The Big Picture...

In two recent decisions, the Commonwealth Court reminded public school employers that the failure to follow procedural requirements for dismissing a tenured employee may result in the reinstatement of that employee. In the cases of New Kensington-Arnold School District v. New Kensington Arnold Education Association and School District of Philadelphia vs. Jones, the Commonwealth Court's rulings resulted in the reinstatement of a teacher who was terminated for using inappropriate language with students and a teacher who was dismissed following an arrest for possession of a "sawed off" shot gun, marijuana and drug paraphernalia.

The New Kensington-Arnold and Jones decisions provide school employers with the following important points:

  • The suspension of a tenured employee without pay requires a Loudermill hearing, which is a pre-termination hearing that is required by due process under the U.S. Supreme Court's decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
  • A school board's resolution to terminate an employee cannot be retroactive.
  • A public school employer's failure to follow the procedures for dismissal in Section 1127 of the School Code may result in the reinstatement of a terminated tenured employee.
  • Prior to the dismissal of a tenured employee, Section 1127 requires school employers to:
  1. Provide the employee with a detailed written statement of the charges that form the basis of the proposed dismissal;
  2. Provide the employee with a written notice by registered mail of the time and place of a hearing that is signed by the board president and is attested to by the board secretary;
  3. Conduct a hearing no sooner than 10 days and no later than 15 days after the written notice.

The Close Up...

In New Kensington-Arnold, Melnick, a band director with tenure, was terminated following his arrest for the possession of a sawed-off shot gun, 90 grams of marijuana and drug paraphernalia. The District scheduled a Loudermill hearing prior to Melnick's criminal preliminary hearing. Ultimately, Melnick was convicted of the charges for possession of marijuana and drug paraphernalia. After the Bargaining Unit requested a continuance for the Loudermill hearing, Melnick was suspended without pay and ultimately terminated. Affirming the lower court, the Commonwealth Court opined that Melnick's suspension without pay and without a hearing violated his constitutional right to due process. The court also ruled the District violated the School Code by failing to provide a valid statement of charges or notice of a hearing  because the Superintendent issued the charges instead of the School Board and the notice did not set forth a hearing date, but simply stated that the right to a hearing would be waived if Melnick did not request it. Therefore, the Commonwealth Court affirmed the decision of the lower court and the arbitrator's award to reinstate the teacher.

In the Jones decision, a teacher was terminated by the School District of Philadelphia for making inappropriate statements to students. The School Reform Commission (SRC) adopted a resolution that made the termination retroactive. The SRC also failed to provide Jones with a notice that it had sufficient evidence to terminate his employment. Finally, the notice of charges lacked the required attestation of the SRC Secretary. Ultimately, the court's decision reinstated Jones and the matter was remanded to PDE to determine the award of compensation.

The New Kensington-Arnold and Jones decisions serve as a reminder to school districts about the importance of following the procedural requirements of the School Code when it is necessary to dismiss a tenured employee. Even in cases where a district has legal cause to terminate an employee, the failure to follow legal procedural requirements may result in a wasted effort by the employer and the employee may ultimately return to work.