IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Medina, :
Appellant :
:
v. :
: No. 494 C.D. 2021
Harrisburg School District : Argued: December 13, 2021
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: March 16, 2022
Kenneth Medina (Medina) appeals from an order of the Court of
Common Pleas of Dauphin County (trial court). The trial court affirmed a decision
of the Harrisburg School District (District) by which, according to the trial court’s
characterization, the District removed Medina from his position as its Business
Administrator. Upon review, we affirm the trial court’s order, but on different
grounds from those on which the trial court based its decision.1
1
This Court may affirm a trial court based on a differing rationale. See Slusser v. Black
Creek Twp. Zoning Hearing Bd., 124 A.3d 771, 772 (Pa. Cmwlth. 2015) (stating this Court may
affirm the decision of the trial court on any grounds); see also FP Willow Ridge Assocs., L.P. v.
Allen Twp., 166 A.3d 487, 496 (Pa. Cmwlth. 2017), appeal denied, 178 A.3d 106 (Pa. 2018)
(stating this Court may affirm on other grounds where grounds for affirmance exist).
I. Background
A. The District’s Reassignment of Medina
The District hired Medina as its Business Administrator in August
2016. He received a satisfactory performance review in February 2017, but
thereafter, the District became concerned about various aspects of Medina’s
performance. The parties dispute the extent to which the District raised these
concerns directly with Medina prior to June 2017. However, on June 29, 2017, the
District’s Superintendent handed Medina a letter of reprimand (June 2017 Letter)
listing several concerns regarding Medina’s job performance:
• You have failed to demonstrate leadership of Business
Department staff, contractors, building maintenance
and payroll function, resulting in payroll and invoice
errors; bills not being paid timely; and unacceptable
facilities cleanliness and maintenance.
• Consistent payroll errors and failure to administer the
TCP/AESOP[2] systems. Recent reconciliation audit
was not communicated to employees prior to
employees[’] pay being impacted. Employees[’] pay
were [sic] significantly impacted creating financial
hardship and ill will with employees.
• Disastrous implementation of TCP, contract approvals
and payroll changes [D]istrictwide; ineffective
communication with administrators, departments and
staff; generating confusion and misunderstanding
resulting in compensation and account payment delays.
• Incomplete budget analysis of existing expenses,
projection of anticipated income for the 2017 – 2018 .
. . District budget. Your projection failed to provide a
2
These acronyms appear to refer to TimeClock Plus and Automated Educational Substitute
Operator systems.
2
complete and accurate assessment of the [D]istrict’s
financial issues, concerns and impact on future labor
expenses. You failed to adequately present immediate
financial revenue to meet future financial needs.
Reproduced Record (RR) at 600.3 The June 2017 Letter also informed Medina that
“[a]nother breach of confidence in carrying out any of [his] expected managerial
roles [would] result in additional disciplinary action up to and including employment
termination.” Id. at 601.
On July 27, 2017, the District’s Human Resources Director sent Medina
a letter (July 2017 Letter) notifying him of possible disciplinary action based on the
following allegations:
1) Failure to notify the Superintendent of a large vehicle
loss.
2) Submitted Budget to [the Pennsylvania Department of
Education] with incorrect totals and figures.
3) Failure to schedule and execute building renovations at
John Harris and other [D]istrict properties[.]
4) Failure to provide leadership, execution and
implementation of business related responsibilities and
duties as stated in Letter of Reprimand dated June 28,
2017 [sic].
5) Failure to make arrangement for mail pickup and
delivery at the [D]istrict’s properties.
RR at 597. The July 2017 Letter informed Medina of the District’s position that the
accusations, if proven, involved conduct that “may constitute incompetency,
intemperance, neglect of duty, violation of any of the school laws of this
3
The page numbers in the reproduced record do not comply with the requirements of Pa.
R.A.P. 2173. For ease of reference, this opinion cites the page numbers as listed in the reproduced
record.
3
Commonwealth or other improper conduct.” Id. The July 2017 Letter also placed
Medina on administrative leave and notified him of a Loudermill4 hearing to occur
on August 7, 2017, concerning the notice of allegations. Id. at 597-98.
At the August 2017 Loudermill hearing, Medina contended the charges
against him were too vague and made a response difficult, but he nonetheless
explained his position regarding each of the allegations. See generally RR at 505-
79. On August 25, 2017, the District sent Medina a letter, captioned as a notice of
discipline, informing him that the District’s administration had concluded that he
had engaged in the alleged conduct and that the administration was recommending
to the School Board (Board) that it reassign Medina to the position of Program
Grants Administrator, with a substantial salary reduction. RR at 885-86.
B. The Board’s Adjudication
Medina requested a hearing before the Board, either pursuant to Section
1089 of the Public School Code of 1949 (School Code),5 24 P.S. § 10-1089, or
pursuant to Board Policy 326.6 The Board granted Medina’s request,7 heard
4
In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the United States
Supreme Court held that a public education employee has a limited pretermination right to notice
of charges against him and an opportunity to respond. See Antonini v. W. Beaver Area Sch. Dist.,
874 A.2d 679, 686 (Pa. Cmwlth. 2005) (quoting Loudermill). On appeal to this Court, Medina
does not challenge the sufficiency of the Loudermill hearing.
5
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702. Section 1089(c)
was added by the Act of July 8, 1989, P.L. 253, and authorizes removal of a Business Administrator
following notice and a hearing.
6
Board Policy 326 provides a complaint procedure. Reproduced Record (RR) at 858-59.
7
The Board’s decision did not indicate the basis on which it initially granted Medina’s
hearing request. However, as set forth below, the Board ultimately concluded that Medina had not
been entitled to a hearing on any basis. See RR at 858-59.
4
evidence over three days in October 2017, and received a number of exhibits from
the parties. See generally RR at 3-846. The Board then issued an adjudication.
The Board found as facts that Medina had no written employment
contract and was not covered by a collective bargaining agreement. RR at 851. The
Board further found that its policy did not require any evaluation of Medina’s
performance as Business Administrator as a prerequisite to reassigning him to
another position. Id. at 858.
The Board further found that Medina failed to follow through on
various assigned tasks, implement a Board decision to purchase a golf cart for use at
the high school, obtain signed contracts regarding work on one of the District’s
buildings and a consortium agreement with Dauphin County Technical School, track
execution of a contract for special education services, direct timely payments to
contracted special education professionals and a District employee, make timely
fund transfers for the District’s Explorer Program, timely track a maintenance
program regarding a school playground, timely act on a sports consultant contract,
maintain effective communication with Business Department staff, timely respond
to information requests from the Board, function effectively in the budgeting
process, timely pay bills and invoices including insurance premiums, timely resolve
a teacher overpayment, timely implement the District’s TimeClock Plus program,
timely fund a trust in payment of a special education student settlement, timely notify
the Superintendent of a large vehicle loss, and generally provide the leadership,
execution, and implementation required by his position as Business Administrator.
RR at 853-57. The Board further found that Medina improperly acted against a
parent/teacher school cleanup project without authority to do so and presented
budget documents with incorrect figures. Id. at 855.
5
The Board credited the Superintendent’s testimony that she had
repeated meetings with Medina concerning his inadequate performance and
attempted to work with him to improve his performance, but that he failed to improve
his performance. RR at 856. The Board also credited the Superintendent’s
testimony that she had meetings with Medina concerning a possible reassignment to
Operations Manager and that he initially agreed to the reassignment and
acknowledged he was having difficulty performing his duties as Business
Administrator. Id. at 855, 856 & 858. However, he later refused to accept a
proffered revised and reduced job description. Id. at 857. The Board then assigned
him a position as Program Grants Administrator. Id.
The Board expressly found as a fact that Medina’s change of position
constituted a “reassignment from the position of Business Administrator to the
position of Program Grant[s] Administrator.” RR at 857. The Board concluded that
Section 1089 of the School Code, which relates to removal of a Business
Administrator, was inapplicable because Medina’s reassignment did not constitute a
removal under the School Code. Id. at 859. Accordingly, the Board concluded that
although it provided Medina with a hearing, none was required under the School
Code. Id.
Nonetheless, the Board determined that even if Section 1089 applied,
Medina received an adequate notice and opportunity to be heard and the District
presented sufficient evidence to meet its burden of showing that Medina engaged in
conduct that constituted willful neglect of his job duties and violation of school laws,
including failure to follow directives and other improper conduct. RR at 860. The
Board observed that willful neglect of duties, willful failure to follow school laws,
and improper conduct all constitute separate valid grounds for dismissal or other
6
discipline and that the Board had discretion to reassign Medina as a lesser form of
discipline. Id. at 860-61. The Board stated there is no legal requirement for
progressive discipline of a Business Administrator. Id. at 861.
Regarding Board Policy 326, the Board explained that the policy
“provides for a complaint procedure and defines ‘complaint’ as any unresolved
problem concerning application or interpretation of [f]ederal or [s]tate laws and
regulations, Board policies, rules, procedures, and written administrative
regulations.” RR at 860. The Board concluded that Medina’s reassignment “does
not fit the complaint definition or scenario in that it does not constitute a violation
of any [f]ederal or [s]tate laws and regulations, Board policies, rules, procedures, or
written administrative regulations.” Id.
Based on its findings and conclusions, the Board issued its adjudication
adopting the District’s recommendation to reassign Medina from the position of
Business Administrator to Program Grants Administrator, effective November 29,
2017. RR at 862.
C. The Trial Court’s Decision
Medina petitioned for review in the trial court, which affirmed the
Board’s adjudication without taking additional evidence.8 Unlike the Board, the trial
court opined that Medina’s reassignment constituted a removal from his position as
Business Administrator and, accordingly, that Section 1089 required notice and a
hearing before the reassignment. Memorandum Opinion and Order (Dauphin Cnty.,
8
The trial court initially remanded the Board’s decision for a new adjudication and later
amended its remand order to eliminate any additional hearing requirement on remand.
Accordingly, the Board issued a revised adjudication without taking additional evidence.
References to the Board’s decision herein relate to the revised adjudication.
7
No. 2018 CV 216 MD, filed Mar. 31, 2021), slip op. (Trial Ct. Op.) at 6. However,
although troubled by the Board’s reliance on hearsay evidence, the trial court
observed that Medina did not raise hearsay objections and that “Medina and his
counsel were well prepared to address the charges and presented a thorough,
vigorous[] defense through cross examination and presentation of Medina’s case in
chief.” Id. at 11. Accordingly, the trial court concluded that Medina received
sufficient notice and hearing to satisfy due process requirements. Id.
The trial court also determined the Board’s decision was supported by
substantial evidence. Viewing the evidence in the light most favorable to the District
as the prevailing party before the Board, the trial court declined to overturn the
Board’s credibility determinations. Trial Ct. Op. at 12. The trial court explained
that not every finding of fact must be supported by substantial evidence, but rather,
only those facts necessary to support an adjudication. Id. at 13 (quoting 2 Pa. C.S.
§ 754(b); Monaghan v. Bd. of Sch. Dirs. of Reading Sch. Dist., 618 A.2d 1239, 1243
(Pa. Cmwlth. 1992)). Moreover, because the District asserted multiple bases for
reassigning Medina, the trial court needed only to “determine that substantial
evidence exist[ed] to support the findings of fact necessary to support one of the
specific charges warranting dismissal.” Trial Ct. Op. at 13 (citing Monaghan). The
trial court observed that the bases of the District’s reassignment of Medina included
incompetency, intemperance, neglect of duty, violation of school laws, and other
improper conduct. Id. at 13-14.
The trial court explained:
The courts have upheld a finding of neglect of duties by a
Business Administrator where the evidence supported the
findings that the administrator failed to correctly deduct
from the wages of teachers, make correct health insurance
8
payments, [and] recommended a budget which contained
inaccurate figures. “Violation of school laws” has been
held to include violations of rules and orders of the
employee’s superior. “Improper conduct” has been
defined as conduct not in accord with propriety, modesty,
good taste, or good manners.
Trial Ct. Op. at 13-14 (internal citations omitted). Although recognizing that Medina
offered evidence in opposition to the District’s assertions of neglect of duty, the trial
court explained that it could not substitute its judgment for that of the Board
regarding credibility of the evidence. Trial Ct. Op. at 15. The trial court listed 22
findings of failings by Medina that it concluded were sufficient to demonstrate
neglect of duties, violation of school laws, and improper conduct.9 Id. at 15-16.
Accordingly, the trial court affirmed the Board’s decision. Medina then
sought review in this Court.
II. Issues
Medina raises three issues for review by this Court.10 First, he asserts
he was denied the due process notice and hearing required by Section 1089 of the
9
We note that the trial court cited the Board’s findings concerning Medina’s errors in
paying the wages of teachers, failing to make insurance payments, and recommending a budget
containing inaccurate figures, all of which were found to constitute neglect of duty by a school
district’s Business Administrator in Lukacs v. Plum Borough School District, 952 A.2d 1225,
1233-34 (Pa. Cmwlth. 2008). The Board’s findings also revealed multiple instances of failure to
follow orders of superiors, which constituted violations of school laws in Harris v. Secretary of
Education, 372 A.2d 953, 957 (Pa. Cmwlth. 1977), and Johnson v. United School District, 191
A.2d 897 (Pa. Super. 1963). However, this Court is unable to discern from the trial court’s opinion
which findings of the Board indicated improper conduct defined as “conduct not in accord with
propriety, modesty, good taste, or good manners” as found in Rice v. Board of Directors of Easton
Area School District, 495 A.2d 984 (Pa. Cmwlth. 1985).
10
Where a local agency has developed a complete record and the trial court has taken no
additional evidence, our scope of review is limited to determining whether the local agency’s
9
School Code because he received only a vague and inaccurate list of charges and
because the Board relied largely on hearsay evidence at the hearing. Second, he
argues the Board’s decision was not supported by substantial evidence, and the trial
court failed to make an independent determination of the sufficiency of the evidence.
Third, he contends the District failed to tie any of its charges to removable offenses
under Section 1089.
III. Discussion
Medina’s arguments are interrelated, in that they all depend on the
application of Section 1089 of the School Code. We disagree with the trial court’s
conclusion that Medina’s reassignment constituted a removal under Section 1089.
Instead, we agree with the Board that a reassignment is not a removal and,
consequently, that Section 1089 does not apply.
Section 1089(c) provides:
Unless otherwise specified in an employment agreement,
the governing board shall, after due notice, giving the
reasons therefor, and after hearing if demanded, have the
right at any time to remove a [B]usiness [A]dministrator
adjudication violated any constitutional rights, constituted an error of law, or lacked substantial
evidence in support of findings of fact necessary for the adjudication. 2 Pa. C.S. § 754(b);
Monaghan v. Bd. of Sch. Dirs. of Reading Sch. Dist., 618 A.2d 1239, 1241 (Pa. Cmwlth. 1992)
(additional citation omitted). To the extent that a case involves review of findings of fact, separate
from any concerns about violations of constitutional rights or whether the trial court abused its
discretion, our 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. Purcell
v. Reading Sch. Dist., 167 A.3d 216, 222 (Pa. Cmwlth. 2017) (citing Leon E. Wintermyer, Inc. v.
Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 (Pa. 2002)). However, to the extent
that a case involves questions of law, our standard of review is de novo and our scope of review is
plenary. Purcell, 167 A.3d at 222 (citing Pa. State Educ. Ass’n ex rel. Wilson v. Dep’t of Cmty. &
Econ. Dev., 50 A.3d 1263, 1270 (Pa. 2012)).
10
for incompetency, intemperance, neglect of duty, violation
of any of the school laws of this Commonwealth or other
improper conduct.
24 P.S. § 10-1089(c) (emphasis added). The trial court relied largely on Monaghan,
which applied Section 1089 to the suspension and termination of a school district’s
Business Administrator. See generally 618 A.2d 1239. The trial court reasoned that
in order to be reassigned, Medina had to be removed from his position as Business
Administrator, thus triggering application of Section 1089. Here, however, Medina
was not terminated, but was reassigned to another position. Therefore, Monaghan
is inapt.
Unlike a dismissal, a reassignment to a position with less power,
prestige or pay is a “demotion” under the School Code. Hritz v. Laurel Highlands
Sch. Dist., 648 A.2d 108, 109-10 (Pa. Cmwlth. 1994) (citing Filoon v. Middle Bucks
Area Voc.-Tech. Sch., 634 A.2d 726, 729 (Pa. Cmwlth. 1993); Walsh v. Sto-Rox Sch.
Dist., 532 A.2d 547, 548 (Pa. Cmwlth. 1987)). Here, Medina was reassigned to
another position in the District at substantially less pay. Accordingly, he was
demoted within the meaning of the School Code.
Like Section 1089, Section 514 of the School Code governs “removal.”
24 P.S. § 5-514. Section 514 applies generally to “officers, employes, or appointees”
of a school district. Id. Section 1089, which is specifically applicable to Business
Administrators, is closely analogous to Section 514 and uses removal language
virtually identical to the general language of Section 514. Compare 24 P.S. § 5-
514(c), with 24 P.S. § 10-1089(c); see Knox v. Bd. of Sch. Dirs., 888 A.2d 640, 648-
49 (Pa. 2005). Section 514 was part of the School Code as originally enacted in
1949, while Section 1089 was added in 1989. Notably, the legislature later amended
11
Section 1089 in 2019, but did not change the removal language.11 Because Sections
514 and 1089 use the same language concerning removal, we conclude that the
legislature intended “removal” to have the same meaning in both sections. See City
of Harrisburg v. Prince, 219 A.3d 602, 612 (Pa. 2019) (defined term used in older
statute was presumed to have the same meaning in later statute); City of Phila. Fire
Dep’t v. Workers’ Comp. Appeal Bd. (Sladek), 195 A.3d 197, 206 (Pa. 2018) (by
using the same language in two sections of a statute, the legislature intended the
same interpretation to apply to both).
Section 514’s “removal” language has been deemed not applicable to
demotions. See Miller v. Quakertown Cmty. Sch. Dist., 18 Pa. D. & C. 3d 416, 419-
20 (1981) (“[S]ection 514 of the [School Code] refers to the removal (dismissal) of
a nonprofessional employe and not to the demotion of such an employe.”).12 We
agree with this conclusion. Thus, because we have determined that the legislature
intended “removal” to have the same meaning in Section 1089 as in Section 514, we
conclude that Section 1089 is likewise inapplicable to a demotion. Accordingly,
because Medina was demoted and not removed, he was not entitled to exercise any
hearing rights under Section 1089.
A review of the School Code reveals no other provisions applicable to
Medina’s demotion. The only provision relating to demotion is Section 1151, under
which a demotion of a “professional employe” is subject to a school board hearing.
24 P.S. § 11-1151. Thus, Medina had no hearing right under Section 1151 unless he
was a professional employee within the meaning of the School Code. Similarly,
11
See Act of October 30, 2019, P.L. 460.
12
Although a common pleas decision is not binding authority, we cite it as persuasive.
12
unless Medina was a professional employee, his demotion was not subject to a right
of appeal to the Secretary of Education. See 24 P.S. §§ 11-1131 & 11-1151.13
Section 1101(1) of the School Code provides:
(1) The term “professional employe” shall include those
who are certificated as teachers, supervisors, supervising
principals, principals, assistant principals, vice-principals,
directors of career and technical education, dental
hygienists, visiting teachers, home and school visitors,
school counselors, child nutrition program specialists,
school librarians, school secretaries the selection of whom
is on the basis of merit as determined by eligibility lists
and school nurses.
24 P.S. § 11-1101(1) (emphasis added). Article X, titled “Supervisors,” currently
contains only Section 1089, relating to Business Administrators. Arguably,
13
Section 1131 of the School Code provides;
In case the professional employe concerned considers
himself or herself aggrieved by the action of the board of school
directors, an appeal by petition, setting forth the grounds for such
appeal, may be taken to the Secretary of Education at Harrisburg.
Such appeal shall be filed within fifteen (15) days after receipt by
registered mail of the written notice of the decision of the board. A
copy of such appeal shall be served by registered mail on the
secretary of the school board.
24 P.S. § 11-1131 (emphasis added). Section 1151 provides:
[T]here shall be no demotion of any professional employe
either in salary or in type of position, except as otherwise provided
in this act, without the consent of the employe, or, if such consent is
not received, then such demotion shall be subject to the right to a
hearing before the board of school directors and an appeal in the
same manner as hereinbefore provided in the case of the dismissal
of a professional employe.
24 P.S. § 11-1151 (emphasis added).
13
therefore, the School Code facially classifies Business Administrators as supervisors
and, accordingly, as professional employees as defined in Section 1101(1).
However, the sine qua non of professional employee status under the
School Code is certification in one of the listed categories of Section 1101(1). See
Davenport v. Dep’t of Educ., 850 A.2d 802, 804 (Pa. Cmwlth. 2004) (observing that
“[p]ossession of a certificate is ‘by statute, fundamental to classification as a
professional employee’”) (quoting Occhipinti v. Bd. of Sch. Dirs. of Old Forge Sch.
Dist., 464 A.2d 631, 632 (Pa. Cmwlth. 1983)); McCoy v. Lincoln Intermediate Unit,
391 A.2d 1119, 1122 (Pa. Cmwlth. 1978) (stating that the term “professional
employe” under the School Code includes those certified as supervisors). The
Department of Education’s policies provide both standards for certification and a list
of subjects for which certification is available. See Gertrude I. Duncan, Ed. et al.,
Policies, Procedures and Standards of Certification of Professional School
Personnel [in Pennsylvania] (1970).14 Certification for “supervisors” under Part
IIB.4 of the standards is available only for supervision of educational personnel:
supervisory “certificates are issued to persons who are qualified for supervisory
responsibilities in a specific instructional or educational specialist area.” Id. at 99
(emphasis added).15
14
Available online at https://files.eric.ed.gov/fulltext/ED099372.pdf (last visited Mar. 15,
2022).
Notably, Part IIB.4 of the standards, relating to “[s]upervisory [c]ertificates,” lists the
15
only subjects for which such certificates may be issued. They are agriculture, art, business,
communication arts, distributive education, elementary, environmental education, foreign
languages, health and physical education, home economics, industrial arts, library science,
mathematics, music, reading, school food services, school guidance services, science, social
studies, special education, and vocational education. Gertrude I. Duncan, Ed. et al., Policies,
Procedures and Standards of Certification of Professional School Personnel [in Pennsylvania]
(1970).
14
Although a Business Administrator may supervise some other
administrative personnel, that position is not directly involved in education or other
student services. Moreover, the position of Business Administrator is not within the
Department of Education’s list of supervisory positions for which certification may
be available. Accordingly, we conclude that a Business Administrator is not
certificated as a supervisor within the meaning of Section 1101(1) and, thus, is not a
professional employee under the School Code. Therefore, we conclude no provision
of the School Code entitled Medina to a hearing concerning his demotion.
Additionally, we observe that in Hritz v. Laurel Highlands School
District, our Supreme Court explained that “[d]emotions are presumptively valid and
an employee seeking to overturn a demotion has the burden of proving the action
was arbitrary, discriminatory or founded on improper considerations.” 648 A.2d at
110 (citing Reed v. Juniata-Mifflin Cnties. Area Voc.-Tech. Sch., 535 A.2d 1229,
1233 (Pa. Cmwlth. 1988)). The arguments Medina raises on appeal here do not
relate to those issues.
IV. Conclusion
Based on the foregoing discussion, this Court concludes that Medina
was not a professional employee as defined in the School Code and that his
reassignment was not a removal, but a demotion. As such, it was not subject to any
15
hearing requirement under the School Code.16 Accordingly, we affirm the trial
court’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
16
There was, likewise, no right of appeal to the Secretary of Education. See 24 P.S. §§ 11-
1131 & 11-1151.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kenneth Medina, :
Appellant :
:
v. :
: No. 494 C.D. 2021
Harrisburg School District :
ORDER
AND NOW, this 16th day of March, 2022, the order of the Court of
Common Pleas of Dauphin County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge