J.P. Moffitt v. Tunkhannock Area SD and the Tunkhannock Area SD Board of School Directors

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph P. Moffitt, :

Petitioner :

:

v. : No. 258 M.D. 2017

: Argued: June 7, 2018

Tunkhannock Area School District :

and the Tunkhannock Area School :

District Board of School Directors, :

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

SENIOR JUDGE COLINS FILED: August 13, 2018

Before this Court is the Petition for Review filed by Joseph P. Moffitt

(Moffitt) from the May 9, 2017 order of the Pennsylvania Secretary of Education

(Secretary) denying his appeal from the decision of the Tunkhannock Area School

District (School District) and the Tunkhannock Area School District Board of

School Directors (Board) (collectively, the Appellees) to terminate his employment.1

Moffitt was an employee of the School District when he was arrested in June 2010

for driving under the influence (DUI); his criminal charge was resolved via entry

into an accelerated rehabilitative disposition program in Wyoming County.

1

Moffitt filed his Petition for Review in both this Court’s original and appellate jurisdiction.

Appellees filed preliminary objections, seeking dismissal only of the original jurisdiction counts.

Appellees argued that this Court lacked jurisdiction over Moffitt’s original jurisdiction claims -

seeking declaratory relief, mandamus, and injunctive relief – because such action would not

involve any Commonwealth respondents. See Section 761(a)(1) of the Judicial Code, 42 Pa. C.S.

§ 761(a)(1). By order dated August 29, 2017, this Court sustained the preliminary objections and

dismissed the first three counts of Moffitt’s Petition for Review.

(Reproduced Record (R.R.) at 249a-251a.) In April 2014, Moffitt was arrested again

for DUI and pled guilty in October 2015; in addition to the suspension of his driver’s

license for twelve months, he received 90 days of house arrest, fines, and probation

for a maximum of five years. (R.R. at 252a-258a.) At the time he committed both

offenses, Moffitt served as the principal of two elementary schools, Evans Falls

Elementary School and the Mill City Elementary School, located seven miles apart.

(Opinion and Order of Secretary, Findings of Fact (F.F.) ¶ 2, R.R. at 434a-435a.)

On February 11, 2016, the School District afforded Moffitt a pre-disciplinary

hearing, at which he was represented by counsel; the hearing was conducted by the

Acting School District Superintendent. (Id., F.F. ¶¶ 9-10, R.R. at 435a-436a.) By

letter dated March 11, 2016, the Board: (a) notified Moffitt that the School District

had recommended his dismissal from employment; (b) provided Moffitt with a

written statement of the charges that served as the basis of the recommended

dismissal; and (c) advised Moffitt that an evidentiary hearing would be held to

determine whether he would be dismissed. (R.R. at 5a.) Moffitt was suspended

without pay as of March 14, 2016 pending official action by the School Board.

Evidentiary hearings took place before the Board on May 26 and June

9, 2016. (May 26, 2016 Hearing Transcript, R.R. at 9a-26a; June 9, 2016 Hearing

Transcript, R.R. at 27a-184a.) Additional testimony was taken via depositions in

July 2016. (Deposition Transcripts, R.R. at 211a-247a.) During the evidentiary

hearings and via deposition, a number of witnesses testified in support of the School

District’s position including the Acting Superintendent, who testified that he

believed the two DUI offenses caused irreparable damage to Moffitt’s reputation and

ability to lead the two schools; that his behavior was contrary to the School District’s

attempts to discourage students from drinking and driving; and that allowing him to

return to his position would send mixed messages to School District students. (June

2

9, 2016 Hearing Transcript, R.R. at 49a-86a.) It was stipulated that the Assistant

Superintendent and the newly-appointed Superintendent would provide substantially

similar testimony to that of the Acting Superintendent. (Id., R.R. at 84a-86a.) A

School District teacher and resident testified that she believed Moffitt’s two DUI

offenses constituted immorality, and expressed her thoughts concerning the bad

example his conduct has set for students. (Id., R.R. at 86a-107a.) The former

Educational Services Program Director for the School District, now serving as acting

principal of the two elementary schools where Moffitt had been principal, testified

that as a School District educator and resident, she believed Moffitt’s actions

constituted immorality because they set a bad example for School District students

and he could not serve as an effective role model. (Id., R.R. at 108a-131a.) A School

District parent testified that Moffitt’s actions constituted immorality because they

set a bad example for students regarding responsibility, character and integrity. (Id.,

R.R. at 131a-145a.) A School District middle school principal testified that anyone

who has had two DUIs in a principal position could not be a good role model.

(Deposition Transcripts, R.R. at 211a-230a.) Another School District parent

testified by deposition that Moffitt’s actions were unacceptable and rendered him

unable to be a good role model – and that his actions went beyond impacting the

children and their future choices, and impacted the morale of the school. (Id., R.R.

at 236a-247a.)

The Board voted at its September 8, 2016 public meeting to dismiss

Moffitt from School District employment, and so notified him by letter dated

September 12, 2016. By letter dated September 27, 2016, the Board’s hearing officer

forwarded Moffitt an Adjudication that provided factual analysis, discussion of legal

issues, and reasons for the termination decision. (Adjudication, R.R. at 329a-340a.)

On October 11, 2016, Moffitt appealed the School Board’s Adjudication to the

3

Secretary and on December 16, 2016, a hearing was held before a Hearing Officer

appointed by the Secretary. On May 9, 2017, the Secretary issued an order denying

Moffitt’s appeal and affirming the decision of the School District to terminate his

employment. (Order, R.R. at 446a.) The Secretary found that the School District

had established grounds for termination by a preponderance of the evidence, stating:

A tenured professional employee, such as [Moffitt], may

only be dismissed for the reasons set forth in Section 1122

of the Public School Code.2 Foderaro v. School District of

Philadelphia, 531 A.2d 570, 571 (Pa. Cmwlth. 1987).

Section 1122 of the School Code provides in pertinent

part:

[t]he only valid causes for termination of a

contract heretofore or hereafter entered into

with a professional employee shall be

immorality; incompetency…; intemperance;

cruelty; persistent negligence in the

performance of duties…persistent and willful

violation of or failure to comply with school

laws of this Commonwealth (including

official directives and established policy of

the board of directors); on the part of the

professional employee[.] 24 P.S. §§ 11-

1122.

Pursuant to Section 1122 of the School Code, [Moffitt]

was charged with immorality due to his two, recent DUI

offenses, which occurred in 2010 and 2014, respectively.

(Secretary’s Opinion, R.R. at 441a-442a.) The Secretary noted the unrebutted

testimony provided by eight witnesses, all of whose testimony he found credible,

and each of whom supported the conclusion that Moffitt’s two DUI offenses

offended the morals of the community and set a bad example to the youth whose

2

Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S.

§ 11-1122(a).

4

ideals he was supposed to foster and elevate; the Secretary further noted that Moffitt

presented no competent, credible evidence to rebut the School District’s

presentation, over the course of several days, notwithstanding the fact that he had

numerous opportunities to do so. (Id., R.R. at 442a-443a.)

Before this Court,3 Moffitt contends that the Secretary erred because

there was insubstantial evidence to support the necessary factual findings. We do

not agree. Section 1122(a) of the School Code states that a professional employee

may only be dismissed for the reasons set forth therein. 24 P.S. § 11-1122(a). This

statutory section provides that a professional employee may be terminated, among

other reasons, for “immorality.” Id. Although not defined in the School Code, the

Pennsylvania Supreme Court has defined “immorality” as “a course of conduct that

offends the morals of a community and is a bad example to the youth whose ideals

a professional educator is supposed to foster and elevate.” Horoski v. School District

of Mount Pleasant Township, 6 A.2d 866, 868 (Pa. 1939); Dohanic v. Department

of Education, 533 A.2d 812, 814 (Pa. Cmwlth. 1987). This Court has established

that the involved school district bears the burden of establishing the following

criteria in employment matters alleging immorality: (1) the conduct actually

occurred; (2) the conduct offends the morals of the community; and (3) the conduct

is a bad example to the youth whose ideals the educator is supposed to foster and

3

This Court’s standard of review of a decision of the Secretary of Education is limited to the

determination of whether substantial evidence supports necessary factual findings, and whether an

error of law or constitutional violation was committed. Curl v. Solanco School District, 936 A.2d

183, 185 n.1 (Pa. Cmwlth. 2007). The Secretary conducts a de novo review and makes the

determination whether the teacher’s conduct offends the moral standards of the community, but

this is a legal determination and will only be sustained if it is legally correct and supported by

substantial evidence. Kinniry v. Abington School District, 673 A.2d 429, 432 (Pa. Cmwlth. 1996).

5

elevate. Kinniry v. Abington School District, 673 A.2d 429, 432 (Pa. Cmwlth. 1996).

We find that the Secretary had substantial evidence to support each of the criteria.

Here, there is no dispute that the conduct occurred; Moffitt argues only

that the Secretary lacked substantial evidence that such conduct offended the morals

of the community. He contends that the majority of the witnesses’ testimony

received focused not on whether his conduct offended the morals of the community

and served as a bad example to youth, but rather on whether the loss of his driver’s

license created an impossibility of completing his job functions. However, the

lengthy hearing testimony and depositions of the witnesses contained in the record

clearly demonstrate otherwise. The question of whether Moffitt’s course of conduct,

with a second DUI offense, was tantamount to immorality is a difficult one; the

Secretary did not find, as this Court did in another school district employee

termination matter, that his conduct amounted to a per se justification for dismissal

in all cases involving similar misconduct. In Zelno v. Lincoln Intermediate Unit No.

12 Board of Directors, 786 A.2d 1022 (Pa. Cmwlth. 2001), where a teacher’s

conduct resulted in three drunken driving convictions and two additional convictions

for driving without a license, we opined that a third DUI indicated “not a single act

of misjudgment, but rather a pattern of conduct that is not only damaging to [the

teacher], but also puts the public in serious danger.” 786 A.2d at 1025. In Zelno,

we considered both the teacher’s pattern of conduct and the testimony of five

members of the community within the jurisdiction of the school district, each of

whom stated that her conduct offended the morals of the community and set a bad

example for her students; as in the matter sub judice, the teacher failed to put forward

any witnesses of her own to rebut this position.

In a case involving the dismissal of a professional employee of a school

district, the Secretary is the ultimate factfinder with the power to determine the

6

credibility of witnesses, the weight to be accorded the evidence, and the inferences

to be drawn therefrom. Williams v. Joint Operating Committee of the Clearfield

County Vocational-Technical School, 824 A.2d 1233, 1237 (Pa. Cmwlth. 2003).

Here, the Secretary found that Moffitt’s conduct offended the morals of the

community and was a bad example to youth based on the testimony of community

parents and teachers. We are constrained to find that in these circumstances, given

the weight of evidence presented by parents and teachers in the community that

Moffitt’s conduct involving drinking and driving set a bad example for students and

was offensive to the morals of their community, the Secretary’s decision to dismiss

Moffitt for immorality under the School Code must be affirmed.

Further, we find no merit in Moffitt’s additional arguments that the

School District’s actions were an unlawful retaliation for Moffitt’s actions in

bringing an unrelated federal civil rights lawsuit against it; that the School District

violated the Americans with Disabilities Act4 by terminating him with knowledge

that he was in treatment for the disease of alcoholism; that the decision to terminate

his employment is contrary to past practice by the Commonwealth’s Professional

Standards and Practices Commission (PSPC) (wherein Moffitt’s certification as

teacher was not revoked in the course of the disciplinary process as a result of his

second DUI offense, and he received a public reprimand); that his conduct did not

violate any of the serious offenses set forth in the Code of Professional Practice and

Conduct for Educators; and that he was not intoxicated during school hours or

operating a School District vehicle while under the influence of alcohol.5 We find

4

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213.

5

Moffitt also challenges the constitutionality of his Loudermill hearing. Under Cleveland Board

of Education v. Loudermill, 470 U.S. 532 (1985), a public employee has a property interest in his

employment and must be afforded, by virtue of the due process clause, at least notice and a pre-

termination hearing. We reject this argument; it is clear from the record that the pre-disciplinary

7

no basis in the record to conclude that Moffitt’s employment was terminated for any

other reason than that enunciated by the School Board and the Secretary, nor is there

evidence that he was discriminated against due to his alcoholism or the fact that he

engaged the School District in unrelated litigation. It is equally clear that the PSPC’s

process in Moffitt’s certification matter, involving different record evidence and

entirely different legal standards is simply not relevant here, where the sole question

is whether the School District has established grounds for its employment

termination action and whether the Secretary’s decision was proper and should be

upheld. Accordingly, the decision of the Secretary denying Moffitt’s appeal from

his dismissal for immorality under the School Code is affirmed.

______________________________________

JAMES GARDNER COLINS, Senior Judge

process provided him with notice of his alleged misconduct and the opportunity to present his side

of the story, and no violation of his due process rights occurred.

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph P. Moffitt, :

Petitioner :

:

v. : No. 258 M.D. 2017

:

Tunkhannock Area School District :

and the Tunkhannock Area School :

District Board of School Directors, :

Respondents :

ORDER

AND NOW, this 13th day of August, 2018, the Order of the Secretary

of Education, of the Department of Education dated May 9, 2017, at TTA No. 03-

16, is AFFIRMED.

______________________________________

JAMES GARDNER COLINS, Senior Judge