The opinion
FRIEDMAN, Judge,
dissenting.
I must respectfully dissent from the majority opinion because I believe the hearing of September 5, 1991 violated §§ 1127 and 1151 of the School Code.
This court has previously held that “where a school board undertakes to terminate a contract, dismiss or demote a professional employe, the procedure set forth in the School Code must be strictly followed, and failure on the part of the Board to comply therewith renders an attempted demotion abortive.” Abington School Board v. Pittenger, 9 Pa.Commonwealth Ct. 62, 69, 305 A.2d 382, 386 (1973) (emphasis added). Here, the school board did not strictly follow the procedures required by §§ 1127 and 1151.
*304 Under § 1127 of the School Code, Kaczmarcik was entitled to a hearing within 15 days of receiving written notice of his demotion. Kaczmarcik agreed to extend this time requirement and re-schedule the hearing for the specific date of August 27, 1991. He did not agree that the school directors could unilaterally reschedule the hearing a second time for any date they wished.
The majority quotes that portion of the letter in which Kaczmarcik agreed to reschedule the hearing “at the convenience of both parties” (R.R. at 138a) (emphasis added). The majority believes that “[t]his waiver could reasonably be construed to allow the School Directors to reset the hearing date.” (Opinion at 128.) To reach this conclusion, the majority would have us interpret the words “unilateral” and “mutual” as synonymous. I cannot agree and, therefore, fail to see the reasonableness of this construction, particularly because the school directors unilaterally re-scheduled the hearing date a second time “over Kaczmarcik’s specific objection.” Id.
The majority opinion then concludes that, in any event, the school directors complied with the timeliness requirement of § 1127 because the second re-scheduled date, September 5, was less than 15 days after August 27. However, § 1127 requires the hearing be held within 15 days of Kaczmarcik receiving written notice of his demotion. The parties’ agreement to extend the 15-day time period does not change the date on which Kaczmarcik received written notice. Thus, when the parties agreed to extend the 15-day time period to August 27, August 27 became the new “fifteenth day.” The parties’ agreement did not re-start the 15-day time period as of August 27. Accordingly, I see no basis for the majority’s conclusion that a hearing held within fifteen days of August 27 complies with § 1127.
In addition to being untimely, Kaczmarcik’s hearing violated § 1151 of the School Code. Both § 1127 and § 1151 of the School Code require that Kaczmarcik receive a hearing “before the board of school directors.” This is not what he received. Instead, Kaczmarcik received a hearing before a hearing examiner appointed by the school directors without *305 his participation or consent. School directors are elected officials obligated by §§ 1127 and 1151 to conduct hearings in certain matters, including demotions contested by professional employees. The School Code provides no authority for the school directors to appoint a non-director to preside over such hearings. To do so was an improper delegation of their power.
The majority excuses this improper delegation of power, relying on Acitelli v. Westmont Hilltop School District, 15 Pa.Commonwealth Ct. 214, 325 A.2d 490 (1974). However, Acitelli is inapplicable to the case before us. Acitelli dealt with the propriety of school directors’ voting on final disposition of the case when they had not attended every hearing. In Acitelli , we determined that school directors could vote under these circumstances as long as a quorum attended each hearing, and all board members had access to transcripts of the complete record before they voted.
The majority argues that, under Acitelli , Kaczmarcik’s hearing was proper because six out of nine board members attended the hearing and observed all that occurred before the hearing examiner. Were we deciding their right to vote, Acitelli would control. However, that is not the issue here. Unlike the situation in Acitelli , a non-board member substituted for a board member to preside over the hearing. The propriety of appointing a non-board member to preside over the hearing in a position of authority presents policy considerations which are entirely different from those in Acitelli . Although six out of nine members of the board were present for at least part of the hearing, the presence of an outside hearing examiner precluded these six board members from assuming an active role in the hearing and from questioning the witnesses themselves. Furthermore, there is danger that the board members may have been unduly influenced by the hearing examiner’s individual bias and apparent authority. This is especially true because the hearing examiner submitted recommendations to the board, and the directors merely voted on whether to accept or reject those recommendations. Had the board members been actively involved in making *306 their own findings of fact and conclusions of law, they might have reached the opposite conclusion.
Because the hearing in this matter was untimely and improperly conducted by a non-board member, the School Board’s actions were void. I would reverse and order the School Board to reinstate Kaczmarcik to his former position.