J.J. Sweda v. Upper Bucks County Technical School (Dept. of Ed.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Sweda, :

Petitioner :

:

v. :

:

Upper Bucks County Technical :

School (Department of Education), : No. 282 C.D. 2023

Respondent : Argued: April 11, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: May 20, 2024

John J. Sweda (Sweda) petitions for review of the February 28, 2023

decision and order of the Pennsylvania Secretary of Education (Secretary) affirming

the dismissal by the Joint Operating Committee (Committee) of Sweda as Executive

Director of the Upper Bucks County Technical School (School). Sweda also seeks

review of the May 17, 2022 order issued by a hearing officer for the Secretary, which

denied Sweda’s request to provide additional testimony.1 Upon review, we affirm.

1

The hearing officer for the Secretary also denied Sweda’s request for a pre-hearing

conference. Reproduced Record (R.R.) at 978a. Sweda does not challenge this aspect of the order,

and the denial of his request to submit additional testimony is addressed infra on pages 19 to 20.

We observe that although Sweda failed to identify the May 17, 2022 order by date in his

petition for review, his petition nevertheless includes the basis of his objection to the order. See

Petition for Review at 15, ¶ 123 (asserting that “[he] should have been allowed by the [] Secretary

to pursue and make a record on the issue of ‘pretext,’ the ‘real’ reason he was fired”); Pa.R.A.P.

1513(d)(4), (5) (providing that “[a]n appellate jurisdiction petition for review shall contain . . .

reference to the order or other determination sought to be reviewed, including the date the order

I. Background

Sweda was employed by the School as a tenured professional employee

for approximately three and one-half years, during which he held the title of

Executive Director. Secretary’s Decision & Order, 2/28/23 (Secretary’s Decision),

Finding of Fact (F.F.) 1-2. The School is operated by the Committee. F.F. 4. At

some point prior to Sweda’s dismissal, the School hired William Gerhard (Gerhard)

as Building and Grounds Supervisor pursuant to Sweda’s recommendation. F.F. 9.

Gerhard failed to satisfactorily discharge various aspects of his position, and Sweda

repeatedly advised him to remedy his poor job performance. F.F. 22-23. The School

proposed demoting and/or suspending Gerhard on the basis of his poor job

performance. F.F. 24. The School ultimately issued a notice of intent to dismiss

Gerhard for neglect of duty, after Gerhard yelled profanities at Sweda. F.F. 25-26.

On November 8, 2021, Gerhard voluntarily quit his employment and submitted a

letter of resignation containing allegations against Sweda. F.F. 27 & 161-62. The

School placed Sweda on administrative leave the following day. F.F. 5 & 163.

The Committee retained special counsel to perform an independent

investigation of the allegations. F.F. 164. On or around December 16, 2021, Sweda

received a letter indicating the possibility of disciplinary measures, up to and

including discharge. F.F. 170. The letter also stated that Sweda’s initial statements

during the investigation were “not totally correct,” and Sweda conceded that his

responses were “occasionally inaccurate.” F.F. 171-72. A public statement of

or other determination was entered,” as well as “a general statement of the objections to the order

or other determination”). Further, we note that Sweda reproduced the text of the May 17, 2022

order in the “Orders in Question” section of his appellate brief and attached a copy of the order to

the brief. See Sweda’s Br. at vii; Pa.R.A.P. 2115(a) (stating that “[t]he text of the order or other

determination from which an appeal has been taken or which is otherwise sought to be reviewed

shall be set forth verbatim immediately following the statement of jurisdiction”).

2

charges was drafted on December 27, 2021, and Sweda was suspended without pay.

F.F. 6 & 173-75. On January 3, 2022, the Committee adopted the following charges:

incompetency, intemperance, persistent negligence in the performance of duties,

willful neglect of duties, and willful failure to comply with school laws (including

official directives and established policy of the Committee). F.F. 7; R.R. at 78a

(citing Section 1122 of the Pennsylvania Public School Code of 1949 (School

Code),2 24 P.S. § 11-1122). At a special meeting on January 3, 2022, members of

the public commented on Sweda’s alleged conduct. F.F. 178. The Committee

approved the statement of charges by roll call vote and directed its secretary and

president to advise Sweda of his right to a hearing. F.F. 179. Sweda thereafter

requested, and received, a private hearing pursuant to Section 1126 of the School

Code, 24 P.S. § 11-1126.3 F.F. 180-81. Testimony offered by both parties over the

course of the six-day hearing established the following facts. F.F. 182.4

In April 2021, Sweda used the “‘F-bomb’ a couple of times” in front of

students and asked “what the hell’s going on?” in the school cafeteria while

expressing his displeasure with the state of preparations for a National Technical

2

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.

3

“All hearings, under the provisions of this article or any other provision of the school

laws pertaining to the dismissal or the termination of contracts of professional employes, shall be

public, unless otherwise requested by the party against whom the complaint is made.” Section

1126 of the School Code, 24 P.S. § 11-1126.

4

Sweda submitted a request for a pre-hearing conference and to provide additional

testimony, which a hearing officer for the office of the Secretary denied by order dated May 17,

2022. R.R. at 978a; see also Section 1131 of the School Code, 24 P.S. § 11-1131 (providing that

“[t]he Secretary . . . shall review the official transcript of the record of the hearing before the board,

and may hear and consider such additional testimony as he may deem advisable to enable him to

make a proper order”).

3

Honor Society banquet. F.F. 96, 99, 101-02 & 104. Sweda was displeased that the

tablecloths appeared to be unlaundered and that the arrangement of tables violated

restrictions in place at the time due to the COVID-19 pandemic. F.F. 97-98. Sweda

placed the tablecloths in the wash himself and declared his frustration that he had to

do “everybody’s f***ing job.” F.F. 101. The students were surprised by Sweda’s

outburst and were escorted out of the cafeteria by an administrative assistant. F.F.

103-04.

Sweda also used profane or abusive language with employees on

numerous occasions, including: talking to the assistant director in a loud and

unprofessional voice multiple times while using the “F-bomb,” yelling, for example,

“what the f*** are you doing,” “why do you have a hard-on for the culinary

instructor,” and “this is your f***ing problem”; repeatedly yelling “f*** you” at the

assistant director “on many occasions”; raising his voice with Gerhard at least once

per week and using the “F-bomb” during such conversations “from time to time”;

calling one employee a “meathead”; and referring to an unidentified individual as a

“f***ing lesbian.” See F.F. 106-09, 113, 115-16, 119 & 120-23; see also Committee

Decision at 36. On another occasion, a small engine instructor stated that he “wasn’t

feeling the love” from Sweda, intending to reference the perceived toxic work

environment. F.F. 153 & 155. Sweda responded, “What, do I have to f***ing kiss

you to show you the love?” F.F. 154 (brackets omitted).

Prior to his termination, Sweda disciplined employees for using profane

or abusive language, thereby indicating his awareness of Committee policy. For

instance, Sweda supported suspending the purchasing secretary for one day without

pay after she slammed her office door and said “f*** you” to her supervisor. F.F.

157-60; Secretary’s Decision at 26; see also Committee Decision at 36.

4

Nevertheless, Sweda insisted that as “blue collared guys,” it was appropriate for a

subordinate employee to yell at him and for Sweda to yell back. F.F.152.

Following the hearing, on or about April 20, 2022, the Committee

dismissed Sweda for dishonesty and for the persistent and willful violation of or

failure to comply with school laws, including official directives and established

policy of the Committee. F.F. 8 & 83. The Committee concluded that Sweda’s

deliberate violation of policy “over an extended period of time and through multiple

incidents” warranted dismissal. Committee Decision at 43. The Committee noted

that its “Policy 317”5 (Policy 317) specifically prohibits the use of profane language

and determined that Sweda understood that such language was forbidden at the

School. Id. Citing the lack of a “clear standard” in caselaw evaluating intemperance

under Section 1122 of the School Code, 24 P.S. § 11-1122, the Committee concluded

that while Sweda’s use of profanity, “particularly in an abusive manner toward [his

assistant director]” may have been intemperate, it was more clearly a “persistent”

and “willful” violation of Committee policy. See id. at 42-43. Further, the

5

Pursuant to Policy 317,

[w]hen engaged in assigned duties, employees shall not participate

in activities that include but are not limited to the following:

1. Physical or verbal abuse, or threat of harm, to anyone;

...

6. Use of profane or abusive language;

...

10. Violation of [Committee] policies, administrative

regulations, rules or procedures;

....

R.R. at 613a-14a.

5

Committee determined that Sweda had willfully neglected his duties. Id. The

Committee predicated Sweda’s violations of Section 1122 of the School Code, 24

P.S. § 11-1122, on his conduct in ignoring the bidding process, misappropriating

School property for personal use, directing an employee to turn off a security camera,

and his use of profanity, all of which supported his dismissal. Id. at 44.6

On May 2, 2022, Sweda appealed his dismissal to the Secretary. R.R.

at 847a. By letter dated May 13, 2022, Sweda submitted to the Secretary a request

to provide additional testimony on several issues, including his assertion of pretext.

Id. at 929a. Specifically, Sweda requested the opportunity to testify before the

Secretary regarding

the “real reason” he sees the [Committee] has targeted

him, his seeking response from the PDE[, presumably

referencing the Pennsylvania Department of Education,]

on the infirm mask compliance proposal made by

prominent [School] board members, including the now

current Board Chair, to have parents sign off on masks.

The timing of his activity was as school opened in the

2021-2022 school year. He was prevented from testifying

on pretext as it allegedly was not relevant to the

proceedings. . . . However, it explains the weakness of the

charges and the bias of the [Committee] and particularly

its Chair.

Id. at 929-30a.

6

We agree with the Committee that “Sweda’s additional argument that he only cursed in

front of ‘the guys’ was, to be generous, a curious argument. As counsel for the administration

pointed out in cross-examination, there is no such exception in Policy 317, nor would the

Committee ever endorse such a distinction.” Committee Decision at 37. Further, the Committee

noted that while it was outside the scope of charges, Sweda’s gendered distinction “raise[d] a

broader concern under Title IX,” presumably referencing Title IX of the Education Amendments

of 1972, 20 U.S.C. §§ 1681-89, asserting that “[i]t is not acceptable for an Executive Director to

explicitly impose different standards of behavior for men and women.” Id. at 37 n.7.

6

On February 28, 2023, the Secretary affirmed Sweda’s dismissal solely

on the basis of his use of profane or abusive language.7 See Secretary’s Decision at

20, Conclusion of Law (C.L.) 1-13; see also id. at 28. The Secretary determined that

the publication of Sweda’s name in connection with the statement of charges in the

School’s public agenda prior to the private hearing did not violate Sweda’s due

process rights. Id. at 24-25 (citing Highlands Sch. Dist. v. Rittmeyer, 243 A.3d 755

(Pa. Cmwlth. 2020)). Regarding Sweda’s assertion that the disclosure of his identity

generated bias, the Secretary emphasized that he conducted a de novo review of the

record. Id. at 25.

The Secretary deemed Sweda credible “in all respects” regarding his

admission to using “profane or abusive language directed to other employees.”

Secretary’s Decision at 25. The Secretary also found credible employee testimony

that Sweda yelled and addressed employees with profane or abusive language by

regularly using the “F-bomb,” and when he told employees, “What, do I have to

f***ing kiss you to show you the love?,” “what the f*** are you doing,” “this is

your f***ing problem,” and “f**k you.” Id. at 25-26 (brackets omitted). Further,

the Secretary determined that Sweda’s prior enforcement of Committee policy

against profane or abusive language indicated his awareness of thereof, citing

Sweda’s decision to warn and, thereafter, to suspend a subordinate employee who

7

Specifically, the Secretary determined that the following alleged actions did not justify

dismissal: (i) Sweda’s supervision of and actions in connection with Gerhard; (ii) Sweda’s use of

the log splitter; (iii) Sweda’s use of paver bricks; (iv) Sweda’s purported taking of School fuel for

personal use; (v) Sweda’s use of spray cleaning services; (vi) Sweda’s actions regarding the

removal and return of a stainless-steel table; (vii) Sweda’s mistake in submitting an incorrect grant

application; (viii) Sweda’s alleged request to turn off a School security camera; (ix) Sweda’s

alleged relationship with a female employee; (x) Sweda’s actions towards the purchasing

secretary; and (xi) Sweda’s contact with School employees during the pendency of the

investigation. C.L. 1-12. The Secretary also concluded that the Committee failed to establish

dishonesty as an additional basis for Sweda’s dismissal. Secretary’s Decision at 26.

7

told her supervisor, “f*** you,”8 and Sweda’s recommendation for dismissal of

another employee who had told Sweda, “f*** you.” Id. at 26.

Accordingly, the Secretary concluded that a preponderance of the

evidence established that Sweda committed the persistent and willful violation of

Committee policy “by repeatedly using profane or abusive language in the presence

of employees . . . and directed to employees,” thereby warranting his dismissal. Id.

at 26-27. The Secretary, therefore, affirmed the Committee’s decision to terminate

Sweda’s employment as a tenured professional employee pursuant to Section 1122

of the School Code, 24 P.S. § 11-1122. Id.

Sweda petitioned this Court for review.

II. Issues

Before this Court, Sweda argues9 that the Secretary erred in analyzing

his use of profanity as a persistent and willful violation of school laws, rather than

as intemperance.10 See Sweda’s Br. at 30-31 (citing Section 1122 of the School

Code, 24 P.S. § 11-1122). Further, Sweda contends that the instances of profanity

in question did not constitute intemperance, which has been defined as “a loss of

8

Notably, in an e-mail to the supervisor recommending suspension without pay of the

subordinate employee, Sweda wrote, “I am so sorry you have to go through this. I will back you

100 percent on this. No one should have to deal with this type of behavior.” R.R. at 618a.

9

“This Court must affirm the order of the Secretary unless there was a violation of

constitutional rights, an abuse of discretion, an error of law, or if a necessary finding of fact is

unsupported by substantial evidence.” Gobla v. Bd. of Sch. Dir. of Crestwood Sch. Dist., 414 A.2d

772, 774 (Pa. Cmwlth. 1980).

10

Sweda asserts that “[w]hile [he] disagrees with the findings, for the purposes of this

[a]ppeal, he does not challenge the findings themselves but whether they rise to the level of a

Section 1122 termination.” Sweda’s Br. at 35.

8

self-control or self-restraint, which may result from excessive conduct.” See id. at

31 (quoting McFerren v. Farrell Area Sch. Dist., 993 A.2d 344, 360 (Pa. Cmwlth.

2010)). Thus, Sweda maintains that the Secretary erred in affirming his termination,

as “[t]here has never been a case where this Court has upheld a dismissal on grounds

of intemperance under Section 1122.” Id. at 32 (quoting McFerren, 993 A.2d at

362).

Sweda insists that “the evidence shows that [the School] was never

troubled by [his] very rare use of public profanity and the private use of profanity,

most of it with male colleagues of executive rank in private, until [the School]

wanted to get rid of him,” highlighting his “totally clean record” prior to dismissal.

Sweda’s Br. at 32, 42 & 46 (citing McFerren). Sweda maintains that “the incidents

of public11 profanity were only on 2-3 rare occasions” and were not “directed . . . at

an individual” and that the remaining instances of profanity occurred in his office.

Id. at 32-33. Sweda claims that “[o]ther individuals used profanity too.” Id. at 34.

Sweda also asserts that the incident at the honors program banquet occurred months

before the renewal of his contract in July 2021. Id. at 34. Sweda contends that the

investigation “turned [] into a ‘get Sweda at all costs’ attack and expanded the scope

of the investigation to include profanity, the false imputation of an affair, and other

alleged issues.” Id. at 35. Insisting that his “was a pretextual termination that

occurred for another reason,” Sweda asserts that his use of profanity was merely

“one of many convenient non-existent or low-grade offenses [used] to fire [him].”

Id. at 37.12 Thus, Sweda maintains that “[p]rofanity [was] a convenient retroactive

11

Sweda presumably references instances of profanity occurring outside his office.

12

Sweda alleges:

9

gimmick to fire [him] and will be one to fire other administrators and teachers

retroactively in the future.” Id. at 38.13 Sweda urges this Court to “ardently resist

. . . opening the door to drastically lightening the burden for a terminable offense

under Section 1122 as presented by an offense of profanity where not even a warning

or counseling has occurred, much less [] discipline, particularly where the entity

involved subscribed to . . . [p]rogressive [d]iscipline.”14 Id. at 37-38.

Moreover, Sweda argues that the conduct in question did not constitute

a persistent and willful violation of school law and policy. Sweda’s Br. at 38. Sweda

posits that while “[p]rofanity[] is, regrettably something that occurs, . . . [s]ocietal

norms permit freer use in private, among a small coterie of similarly situated workers

Starting in late August[] 2021, and through October[] 2021, [the

School] was undergoing a controversy where the [Committee]

wanted to go “mask optional” which allowed parents to sign off that

masks were medically unnecessary for their children. [Sweda] was

not allowed to develop this line of questioning as he wanted to

testify that the [Committee’s] displeasure at his opposition was the

pretextual reason why he was truly being fired. It is currently at

issue in [f]ederal [c]ourt litigation, where [Sweda] recently

overcame a Motion to Dismiss. See Memorandum Opinion, John

Jeffery Sweda v. Upper Bucks County Technical School, United

States District Court for the Eastern District of Pennsylvania,

Docket 2:22-cv-1787 (filed August 21, 2023).

Sweda’s Br. at 7.

13

Sweda speculates that “[t]here [is] a subset of [] attorneys in the Commonwealth who

specialize in representing [s]chool [d]istricts,” and who “constantly advocate for lowering the

Section 1122 bar because it is a convenient way to get rid of their client’s [sic] employees who are

really being fired for other reasons.” Sweda’s Br. at 48.

14

Sweda also asserts that “[t]here is no indication in [Policy] 317 what is the penalty for

[a] violation [involving profanity]. In the exact same policy, the [Committee] announces a

Progressive Disciplinary Policy, with various gradations of penalty, the lightest being reprimand.”

Sweda’s Br. at 11-12 (citing R.R. at 613a-15a).

10

(males versus females), particularly of the same sex.” Id. at 40. Sweda also

“submit[s] that some profanity may be more prevalent in [] trade and vocational

school[s] among teachers and administrators” than in “other places.” Id. Moreover,

Sweda emphasizes that “[t]he accusations mainly involve[d] alleged profanity in

private, in his office, among two male leaders in the school, his Assistant

Superintendent and the School Principal.” Id.

Sweda cites this Court’s statement in Erdlen v. Lincoln Intermediate

Unit No. 12 (Pa. Cmwlth., No, 1435 C.D. 2016, filed July 13, 2017), that “a willful

violation of a school law can be summed up as a form of direct defiance of an

order[.]” Sweda’s Br. at 41 (quoting Erdlen, slip op. at 24). Thus, Sweda maintains

that he did not willfully defy an order, because he had no knowledge that his conduct

was prohibited, asserting that he did not receive even a “‘friendly warning’ from a

Human Resource representative.” Id. at 41-42. Sweda, therefore, insists that the

School should have subjected him to “progressive discipline” in accordance with

“Section 300, Code 326”15 (Policy 326) before terminating his employment. Id. at

43 (citing R.R. at 613a-15a). Sweda also asserts that Policy 317 establishes a system

of “progressive penalties, including verbal warning, written warning, reprimand,

suspension, demotion, or pursuit of civil and criminal sanctions.” Id. at 45. Sweda

explains that “he was not attempting to be insubordinate, but to try to make the

school run optimally.” Id. at 45. Thus, Sweda maintains that “[t]he application of

the persistent and willful violation of [s]chool laws formulation seems incredibly

harsh here and ignores the obvious factual context of the multiple, diverse, and

15

The record contains the following information pertaining to the cited portion of

Committee Policy: Book – Policy Manual, Section 300 – Employees, Title – Complaint Process,

Code – 326, Status – Active, Adopted – October, 16, 2018. R.R. at 99a.

11

ramshackle charges the Secretary dismissed as not reaching Section 1122 level.” Id.

at 44.

Next, Sweda argues that the publication of his name in connection with

the charges and on the agenda, and the allowance of public comment at the hearing

regarding charges, tarnished his right to a private hearing under Section 1126.

Sweda’s Br. at 48 (citing Highlands, 243 A.3d at 763-64). Sweda contends that “no

provision of the Sunshine Act16 mandates that [a school board resolution initiating

the disciplinary process] must entail public disclosure of the name of the employee

subject to discipline.” Id. at 50 (quoting Highlands, 243 A.3d at 764). Sweda

maintains that publishing his name in connection with the charges caused the case

to become “sensationalized” and “the talk of [the School] and the Upper Bucks

community,” thereby “unfairly prejudicing the climate for a decision.” Id. at 53.

Sweda posits that school board bias and pressure from parents and the media is “a

well-known phenomenon.” Id. at 54 n.10. Further, Sweda insists that “[t]he inherent

potential bias of School Board members has long been recognized by our courts.”

Id. (citing Vladimirsky v. School Dist. of Phila., 144 A.3d 986, 1001 (Pa. Cmwlth.

2016); Katruska v. Bethlehem Ctr. Sch. Dist., 767 A.2d 1051, 1056 (Pa. 2001);

Harmon v. Mifflin Cnty. School Dist., 651 A.2d 681, 686 (Pa. Cmwlth. 1994); Covert

v. Bensalem Twp. School Dist., 522 A.2d 129, 131 (Pa. Cmwlth. 1987)). Sweda also

asserts that the Secretary “mischaracterized” his “statutory claim of entitlement . . .

to a fair hearing” as a due process claim. Id. at 52.

Sweda also contends that he “should [have been] allowed to testify and

call witnesses on the pretextual or ‘real’ reason he believes he was fired, which was

[his] First Amendment protected public opposition to the anti-mask decisions of the

16

65 Pa.C.S. §§ 701-716.

12

[Committee],” and that the denial of this opportunity violated his due process rights.

Sweda’s Br. at 56.17 Sweda, therefore, requests a remand “with an appropriate legal

standard of test to guide the Secretary in addressing issues of low-level violations of

policy that appear to be pretextual.” Id. at 56.

Further, Sweda asserts that the Committee erred in suspending him

without pay during the pendency of disciplinary proceedings stemming from charges

that were not “serious.” Sweda’s Br. at 57 (citing Burger v. Bd. of Sch. Dirs. of

McGuffey Sch. Dist., 839 A.2d 1055, 1061 (Pa. 2003); Antonini v. W. Beaver Area

Sch. Dist., 874 A.2d 679 (Pa. Cmwlth. 2005)). Sweda maintains that “serious

misconduct” is “rare” and occurs, for instance, when a teacher engages in a physical

altercation with a student. Id. at 57-58 (citing Prieto v. The Sch. Dist. of Phila.

(Dep’t of Educ.) (Pa. Cmwlth., No. 144 C.D. 21, filed Dec. 28, 2022)).

Accordingly, Sweda requests reinstatement and the issuance of

backpay, benefits and full pension rights. Sweda’s Br. at 55. Sweda also requests a

declaration of the meaning of a “private hearing” for purposes of Section 1126 of

the School Code, 24 P.S. § 11-1126. Id. at 55. Additionally, Sweda asks this Court

to remand the matter to the Secretary to render further factual findings regarding the

“novel” issue of whether the “common human flaw of occasional use of profanity”

may constitute the persistent and willful violation of school laws under Section 1122

of the School Code, 24 P.S. § 11-1122. Id. at 55-56. As an alternative to

reinstatement, Sweda asks this Court to remand the matter for further factual

findings and testimony. Id. at 58.18

17

Sweda claims that he “sought to bring testimony on how his was a pretextual termination

that resulted from his C[OVID]-19 activities.” Sweda’s Br. at 6 (citing R.R. at 929a-31a).

18

The School also submitted an appellate brief.

13

III. Discussion

A. Persistent and Willful Violation of Committee Policy

Sweda asserts that his use of profanity did not constitute a persistent

and willful violation of Committee policy. See Sweda’s Br. at 38-45. We disagree.

“In determining whether a persistent and wil[l]ful violation of school

law has occurred, three elements must be examined: persistency, wil[l]fulness and

a violation of a school law.” Horton v. Jefferson Cnty.-Dubois Area Vocational

Tech. Sch., 630 A.2d 481, 484 (Pa. Cmwlth. 1993).

“[P]ersistency is shown where the improper conduct is repeated in a

series of separate incidents over a substantial period of time.” McFerren, 993 A.2d

at 357 (citing Horton, 630 A.2d at 484). Here, the Secretary deemed credible

employee testimony exposing Sweda’s regular use of profane or abusive language

with numerous subordinates and, on one occasion, in the presence of students.19 See

F.F. 96, 99, 101-02, 104, 106-09, 113, 115-16, 119 & 154. Sweda does not challenge

these findings. See Sweda’s Br. at 40. Further, as all of the incidents involved

Sweda’s use of profane or abusive language with employees and students, they were

sufficiently similar for purposes of the “persistency” requirement. See McFerren,

993 A.2d at 359 (explaining, “[t]here can be no repetition where the acts or

omissions in question are unrelated to one another; the acts in question must be the

same or very similar to be persistent”). Thus, Sweda’s repeated use of profane or

abusive language “over an extended period of time and through multiple incidents”

qualifies as persistent for purposes of Section 1122 of the School Code, 24 P.S.

§ 11-1122. Committee Decision at 43; see also McFerren, 993 A.2d at 359 (holding

that “[t]he essence of persistency is repetition”).

19

We note that Policy 317 “requires employees to maintain professional, moral and ethical

relationships with students at all times.” R.R. at 613a.

14

The next element of “[w]il[l]fulness requires the presence of intention

and at least some power of choice.” Horton, 630 A.2d at 484. “For a violation of a

school law to be willful, the district must show that the employee knew of the school

district’s policy in question and deliberately chose not to comply.” McFerren, 993

A.2d at 357. Here, Sweda’s habitual use of profane or abusive language was a matter

of voluntary, personal choice. See Cowdery v. Bd. of Educ. of Sch. Dist. of Phila.,

531 A.2d 1186, 1188 (Pa. Cmwlth. 1987) (reasoning that “the element of willfulness

or intent [for purposes of Section 1122 of the School Code, 24 P.S. § 11-1122,] can

often be inferred from the nature and extent of the particular violation”).

Nevertheless, Sweda maintains that the absence of any previous

disciplinary action against him and his “totally clean record” prior to dismissal

preclude finding that he had the requisite knowledge that his language violated

Committee policy. See Sweda’s Br. at 34-34 & 42 (citing McFerren). In McFerren,

we held that a school district failed to prove that a school principal had knowledge

of his infractions, and that “[i]n the absence of this knowledge, the [school d]istrict

[could not] demonstrate that his conduct constituted willful violation of school

law[.]” McFerren, 993 A.2d at 359. However, unlike the school principal in

McFerren, here, Sweda’s support for the unpaid suspension of one employee and

his recommendation for the dismissal of another on the basis of the employees’ use

of profanity evidenced his awareness of Committee policy.20 See Secretary’s

Decision at 26; F.F. 157-60; see also Committee Decision at 36. Sweda, therefore,

20

Sweda had used language identical to that which formed the basis of the employees’

discipline “on many occasions.” Compare F.F. 121 to Secretary’s Decision at 26. Notably, Policy

317 mandates that “[Committee] policies[ and] administrative regulations, rules and procedures”

shall be “applied fairly and consistently.” R.R. at 613a (emphasis added).

15

demonstrated willfulness for purposes of Section 1122 of the School Code, 24 P.S.

§ 11-1122.

Regarding the third and final element, “violation of a school law, the

school district must point to an adopted policy or order that was deliberately

violated.” McFerren, 993 A.2d at 358. Here, the Committee determined that Sweda

violated the proscription against “profane or abusive language” contained in Policy

317, and the Secretary affirmed. See R.R. at 613a-14a; Committee Decision at 43;

Secretary’s Decision at 26-28. We agree that Policy 317 clearly prohibits profane

and abusive language.

Nevertheless, Sweda insists that “[o]ther individuals used profanity

too,” that “some profanity may be more prevalent in [] trade and vocational

school[s]” than in “other places,” and that “[t]he accusations mainly involve[d]

alleged profanity in private, in his office, among two male leaders in the school[.]”

Sweda’s Br. at 32-33 & 40. This reasoning does not negate the fact that the

Committee expressly forbids the use of profane or abusive language. See R.R. at

613a-14a. As this Court has explained,

[i]t is clear that such persons (employed or seeking

employment in the public schools) have the right under our

law to assemble, speak, think and believe as they will. . . .

It is equally clear that they have no right to work for the

State in the School system on their own terms. . . . If they

do not choose to work on such terms, they are at liberty to

retain their beliefs and associations and go elsewhere.

Bovino v. Bd. of Sch. Dirs. of Indiana Area Sch. Dist., 377 A.2d 1284, 1289 (Pa.

Cmwlth. 1977) (quoting Adler v. Bd. of Educ. of City of New York, 342 U.S. 485,

492 (1952)). Thus,

16

[t]he Legislature can proscribe certain types of behavior

[among teachers] which are not conducive to a healthy

environment for the students in public school systems.

Section 1122 does not infringe on [] the right to free

speech in any protected areas. The intendment of this

section is not to curtail free speech but to protect an

extremely vulnerable and sensitive segment of our society

(students).

Id. Moreover, Sweda’s attempted normalization of profanity does not address the

abusive aspect of his violation. See Committee Decision at 42 (determining that

Sweda directed “abusive profanity” at his assistant director); Secretary’s Decision at

26 (concluding that “credible evidence” supported that Sweda “violat[ed] [] [the

Committee’s] policy against profane or abusive language”).

We, therefore, agree with the Secretary that Sweda’s use of profane or

abusive language in violation of Policy 317 constituted the “persistent and wil[l]ful

violation of . . . school laws” under Section 1122 of the School Code, 24 P.S. § 11-

1122.21

21

As Sweda fails to establish that the Secretary erred in affirming his dismissal on the basis

that he committed the persistent and willful violation of Committee policy, his insistence that his

language did not rise to the level of intemperance is immaterial. See Williams v. Joint Operating

Comm. of Clearfield Cnty. Vocational Tech. Sch., 824 A.2d 1233, 1236 (Pa. Cmwlth. 2003) (citing

Horton, 630 A.2d at 483) (explaining that this Court need address only one basis for termination

under Section 1122 of the School Code, 24 P.S. § 11-1122, to affirm the dismissal of a professional

employee). We further note that the Committee declined to opine whether Sweda’s language rose

to the level of intemperance, citing a lack of clarity in applicable caselaw, and the Secretary did

not address the issue. See Committee Decision at 42; Secretary’s Decision at 26-27.

Moreover, in light of our disposition of the present matter, we reject Sweda’s request for a remand

for further factual findings regarding whether the use of profanity may constitute the persistent and

willful violation of school law under Section 1122 of the School Code, 24 P.S. § 11-1122. See

Sweda’s Br. at 55-56.

17

B. Progressive Discipline

Sweda maintains the School should have subjected him to “progressive

discipline” in accordance with Policies 317 and 326 before instigating dismissal

proceedings. Sweda’s Br. at 37-38 & 41-43. Policy 317 provides that “[t]he

Executive Director[, i.e., Sweda,] or [his] designee shall develop and disseminate

disciplinary rules for violations of [Committee] policies, administrative regulations,

rules and procedures that provide [for] progressive penalties, including but not

limited to verbal warning, written warning, reprimand, suspension, demotion,

dismissal, or pursuit of civil and criminal sanctions.” R.R. at 614a. Significantly,

Sweda does not allege that, as Executive Director, he developed or disseminated any

system of “progressive penalties.” Id. Moreover, Policy 326 does not outline a

progressive disciplinary scheme, but rather establishes a process for the filing and

resolution of employee complaints. See R.R. at 99a-101a (expressing the

“[Committee’s] intent to establish reasonable and effective means of resolving

complaints among employees,” and to facilitate “communication between

supervisory personnel and employees for situations not covered by the terms of a

collective bargaining agreement”). Thus, we disagree that the Committee was

obligated to implement progressive discipline prior to Sweda’s dismissal.

C. Due Process

Sweda asserts that the denial of his request to offer evidence of pretext

contravened his due process rights. See Sweda’s Br. at 56. “Demonstrable prejudice

is a key factor in assessing whether procedural due process was denied.” D.Z. v.

Bethlehem Area Sch. Dist., 2 A.3d 712, 721 (Pa. Cmwlth. 2010) (citing State Dental

Council & Examining Bd. v. Pollock, 318 A.2d 910 (Pa. 1974)); see also Belle

18

Vernon Area Sch. Dist. v. Gilmer, 415 A.2d 121, 122 (Pa. Cmwlth.1980) (stating

that “[d]ue process guarantees apply to administrative as well as judicial

proceedings”). Here, Sweda baldly contends, without further elaboration or

supporting legal authority, that his “was a pretextual termination that occurred for

another reason,” and that his use of profanity was merely “one of many convenient

non-existent or low-grade offenses [used] to fire [him].” Sweda’s Br. at 37. Sweda’s

bare assertions fail to demonstrate prejudice, thereby precluding further

consideration of Sweda’s due process claims. D.Z., 2 A.3d at 733 (“reject[ing] [the

petitioner’s] bald allegations of error,” explaining that “[w]ithout a clear explanation

of what testimony [the petitioner] wished to elicit or what evidence she sought to

present, and how that evidence may have changed the result, it is impossible to

discern any prejudice resulting from the [h]earing [o]fficer’s evidentiary rulings”).

Further, the sparseness of Sweda’s due process claim renders it

vulnerable to waiver. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)

(citations omitted) (“[W]here an appellate brief fails to provide any discussion of a

claim with citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived. It is not the obligation

of [an appellate court] . . . to formulate [a]ppellant’s arguments for him.”). Sweda’s

due process claim predicated on the denial of the opportunity to present evidence of

pretext is also waived due to its omission from the “Statement of Questions

Involved” portion of his appellate brief. See Sweda’s Br. at 1-2; Pa.R.A.P. 2116(a)

(stating, “[n]o question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby”); Twp. of Concord v. Concord

Ranch, Inc., 664 A.2d 640 (Pa. Cmwlth. 1995) (holding that failure to comply with

Pa.R.A.P. 2116(a) results in waiver of the issue). Moreover, although Sweda

19

contended in the “Summary of Argument” portion of his brief in support of his

petition for appeal to the Secretary that “[t]his matter is really about pretextual firing

for other protected conduct he did in early-mid September 2021 which [he] seeks to

produce evidence on in this proceeding,” see R.R. at 947a, the remainder of Sweda’s

brief is devoid of any discussion regarding this assertion, see R.R. at 958a-69a, and

the Secretary did not address the issue, see Secretary’s Decision at 1-27.

Moreover, we disagree with Sweda that the Secretary erred in

construing as a due process claim his assertion that the disclosure of his name in

connection with the statement of charges and the allowance of public comment at

the hearing regarding the charges sensationalized proceedings and “unfairly

prejudice[ed] the climate for a decision, thereby violating his statutory right to a

private hearing. See Sweda’s Br. at 52-53; see also Muma v. Pa. Dep’t of Health,

Div. of Nursing Care Facilities, 223 A.3d 742, 749-50 (Pa. Cmwlth. 2019 (reasoning

that “[a] request for a hearing is a request for an opportunity to be heard, which

necessarily implicates due process”); Gilmer, 415 A.2d at 122 (agreeing with the

trial court that a superintendent’s specific allegations of bias against the school board

“support[ed] [a] finding of prejudice, or at least an appearance of bias,” thereby

implicating the superintendent’s right to a “due process hearing”). Thus, similar to

Sweda’s first due process claim, we conclude that Sweda’s generalized aspersions

regarding Committee bias and pressure from parents and the media fail to

demonstrate the requisite prejudice. See Sweda’s Br. at 53-54 & 54 n.10; D.Z., 2

A.3d at 722 & 733.22

22

We acknowledge Sweda’s assertion that “[t]he inherent potential bias of School Board

members has long been recognized by our courts.” Sweda’s Br. at 54 n.10 (citing Vladimirsky v.

School Dist. of Phila., 144 A.3d 986, 1001 (Pa. Cmwlth. 2016); Katruska v. Bethlehem Ctr. Sch.

Dist., 767 A.2d 1051, 1056 (Pa. 2001); Harmon v. Mifflin Cnty. School Dist., 651 A.2d 681, 686

20

D. Suspension Without Pay

Sweda contends that he was entitled to pay and benefits during the

pendency of the disciplinary proceedings absent a determination that he was faced

with “serious charges”; thus, he seeks back-payment of salary and benefits. Sweda’s

Br. at 57-58 (citing Burger; Antonini; Prieto). Sweda raised this issue on appeal to

the Secretary, see R.R. at 946a & 956a-57a, but the Secretary did not address it.

Nevertheless, as the parties have briefed this purely legal question, in the interest of

judicial economy, we will dispose of it now rather than remand to the Secretary. See

Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 531 and 531

n.11 (Pa. 2005) (citing Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418,

435 n.12 (Pa. 2001); Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, 754

A.2d 1255, 1262 (Pa. 2000); Pa. Game Com’n v. State Civ. Serv. Comm’n (Toth),

747 A.2d 887, 891-92 (Pa. 2000)); see also Baker v. Moon Area Sch. Dist., 2:15-

CV-1674, 2018 WL 4627153, at *14 (W.D. Pa. July 2, 2018), report and

recommendation adopted in part, rejected in part, CV 15-1674, 2018 WL 4057179

(W.D. Pa. Aug. 27, 2018) (stating that “[w]hether the misconduct of which [the

employee was] accused constitute[d] “serious misconduct,” thereby justifying his

suspension without pay prior to the formal hearing required for removal of

(Pa. Cmwlth. 1994); Covert v. Bensalem Twp. School Dist., 522 A.2d 129, 131 (Pa. Cmwlth.

1987)). However, Sweda fails to disclose that in each of the cited cases, the Court went on to

reject any concerns regarding bias. In Katruska, our Supreme Court acknowledged “an inherent

potential for bias on the part of school boards” due to “the dual function they serve in acting as

both prosecutor and as judge in proceedings involving professional employees,” but concluded

“that the Secretary[’s] de novo review of the decision of a school board ensures that the

requirements of due process are satisfied.” 767 A.2d at 1056; see also Covert, 522 A.2d at 131-

32 (holding that de novo review by the Secretary satisfied any due process concerns resulting from

the “inherent potential for bias on the part of school boards”). Similarly, here, in rejecting Sweda’s

assertion that the disclosure of his identity generated bias, the Secretary emphasized that he

conducted a de novo review of the record. Secretary’s Decision at 25.

21

superintendents, [was] a question of law for the Court to decide”); Penn-Delco Sch.

Dist. v. Urso, 382 A.2d 162, 168 (Pa. Cmwlth. 1978) (“consider[ing] a question

raised by the [r]espondent,” a professional employee of the school district, that “was

raised on appeal to the Secretary but was not discussed in the Secretary’s opinion,”

ultimately concluding that the record did not support the respondent’s claim).

“Pennsylvania courts have long permitted suspensions pending

dismissal for public employees, including teachers.” Slater v. Sch. Dist. of Phila.,

309 A.3d 1144, 1156 (Pa. Cmwlth. 2024) (quoting Prieto, slip op. at 14) (citing

Burger). In Burger, this Court acknowledged the “implied authority [of school

boards (in this case, the Committee)] to suspend [] officials accused of serious

misconduct, even without pay and benefits, within the constraints of procedural due

process.” 839 A.2d at 1061 (emphasis added). We clarified in Antonini that “[i]t is

the seriousness of the misconduct alleged that forms the necessity for the implied

power.” 874 A.2d at 683 (quotation marks omitted). We, therefore, held that “resort

to procedures beyond those specified in the School Code is the exception rather than

the rule, reserved for allegations of ‘serious misconduct.’” Id.23 Thus, whether

Sweda is entitled to back-payment of salary and benefits for the period of his unpaid

suspension hinges on whether he was charged with serious misconduct. See id.

23

We note that Burger and Antonini involved suspensions of superintendents, who are

governed by a separate dismissal provision. See Burger, 839 A.2d at 1056; Antonini, 874 A.2d at

680; see also Section 1080(a) of the School Code, 24 P.S. § 10-1080(a) (providing that “[d]istrict

superintendents and assistant district superintendents may be removed from office and have their

contracts terminated, after hearing, by a majority vote of the board of school directors of the

district, for neglect of duty, incompetency, intemperance, or immorality . . . .”). Nevertheless, we

note that the points of law cited above in Burger and Antonini pertain to “officials” and are not

limited to superintendents. See Burger, 839 A.2d at 1061; Antonini, 874 A.2d at 683. Moreover,

this Court has recognized the authority of school boards to suspend school employees other than

superintendents, including teachers. See, e.g., Slater, 309 A.3d 1144, 1156 (citing Burger); Prieto,

slip op. at 14 (citing Burger).

22

In Antonini, we declined to “define the phrase ‘serious misconduct’”

for purposes of whether a suspension without pay was warranted under Burger,

reasoning that “[i]t [w]as sufficient for present purposes to contrast the nature of the

misconduct alleged in Burger with that alleged here.” 874 A.2d at 683. Likewise,

here, we refrain from offering a blanket definition of the term.

Sweda insists that “serious misconduct” is “rare.” Sweda’s Br. at 57-

58 (citing Prieto). In Prieto, a teacher was suspended without pay, though with

health benefits, and was ultimately dismissed after his loss of self-control in throwing

a book at a student and participating in a fistfight in the classroom was found to

constitute intemperance under Section 1122 of the School Code, 24 P.S. § 11-1122.

See Prieto, slip op. at 6-7 & 12. We concluded that the charge of serious misconduct

warranted suspension without pay pending dismissal proceedings, emphasizing that

“[t]he welfare of the children is the paramount consideration.” Id., slip op. at 15

(quoting Kaplan v. Sch. Dist. of Phila., 130 A.2d 672, 676 (Pa. 1957)). Likewise,

here, Sweda’s habitual use of profane or abusive language constituted serious

misconduct by compromising student welfare, whether indirectly by fostering a

toxic environment at school or directly through the outburst witnessed by students.24

Moreover, although Sweda’s violations of Committee policy did not involve

physical violence, it is vital to emphasize that serious misconduct is not limited to

only the most egregious examples. See Baker, 2018 WL 4627153, at *14 (“find[ing]

that there [was] no suggestion in the Burger decision that serious misconduct [was]

limited to accusations of sexual misconduct,” and determining that the alleged

24

As noted above, the Secretary’s factual findings include an employee’s statement that

Sweda’s language created a toxic work environment and recount how an administrative assistant

escorted surprised students out of the cafeteria following Sweda’s outburst before the honors

banquet. See F.F. 103-04, 153 & 155.

23

misconduct against the superintendent, who was suspended without pay pending

dismissal proceedings, “raise[d] concerns regarding [his] fiscal accountability and

management ability, affecting the public trust,” and “should be considered serious”).

IV. Conclusion

For the foregoing reasons, we affirm the February 28, 2023 decision

and order of the Secretary.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

24

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Sweda, :

Petitioner :

:

v. :

:

Upper Bucks County Technical :

School (Department of Education), : No. 282 C.D. 2023

Respondent :

ORDER

AND NOW, this 20th day of May, 2024, the May 17, 2022 and February 28,

2023 orders of the Pennsylvania Secretary of Education are AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge