Hamburg v. North Penn School District

484 A.2d 867, 86 Pa. Commw. 371, 1984 Pa. Commw. LEXIS 2079
CourtCommonwealth Court of Pennsylvania
DecidedDecember 7, 1984
DocketAppeal, No. 382 C.D. 1984
StatusPublished
Cited by8 cases

This text of 484 A.2d 867 (Hamburg v. North Penn School District) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamburg v. North Penn School District, 484 A.2d 867, 86 Pa. Commw. 371, 1984 Pa. Commw. LEXIS 2079 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Williams, Jr.,

Bernice I. Hamburg (Hamburg) seeks review of an Order of the Secretary of Education (Secretary), dated January 9, 1984, which affirmed the decision of the School Board of the North Penn School District (North Penn) to terminate her employment on the ground of incompetency. Hamburg contends that two [373]*373unsatisfactory mid-year ratings used to support her discharge were invalid and that the findings of fact found by the Secretary to be supported by substantial evidence do not support her termination for incompetence. We affirm.

Hamburg was a tenured second grade classroom teacher employed for some twelve years at North Penn. During the 1978-1979 school year, she received two unsatisfactory mid-year ratings as well as an unsatisfactory year-end rating. Due to these unsatisfactory ratings, North Penn proposed to terminate her employment as a professional employee on the basis of incompetence as set forth in Section 1122 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1122. Between July 1979 and the end of November 1979, twenty-three evidentiary hearings were held. North Penn’s adjudication dismissing Hamburg for incompetency contained fifty-eight findings of fact.

Hamburg appealed her dismissal to the Secretary. The Secretary affirmed her dismissal in an adjudication dated September 19, 1980 containing thirty-three findings of fact. In his 1980 adjudication, the Secretary did not consider the two unsatisfactory 1978-1979 mid-year ratings because of the absence of numerical scores, but relied on the rating Hamburg received at the end of the 1977-1978 school year. North Penn had not based its decision on the 1977-1978 rating. The Secretary carefully avoided the issue of the validity of the two mid-year 1978-1979 ratings. Hamburg appealed the Secretary’s September 1980 order to this Court. In that appeal, we remanded the matter to the Secretary for a determination of whether North Penn’s findings of fact were supported by substantial evidence and whether Hamburg’s discharge was valid without consideration of the 1977-1978 rating. Ham[374]*374burg v. Department of Education, 73 Pa. Commonwealth Ct. 225, 458 A.2d 288 (1983) (Hamburg I).

On January 9, 1984, after remand, the Secretary determined that forty-six of North Penn’s factual findings were supported by substantial evidence. The Secretary also determined that Hamburg’s two unsatisfactory mid-year ratings for 1978-1979 were valid despite the lack of numerical scores, and that Hamburg’s discharge was valid. Hamburg appealed the Secretary’s January 1984 adjudication to this Court, where she challenges the validity of the two mid-year 1978-1979 ratings and the Secretary’s conclusion that the forty-six findings of fact are sufficient to support her discharge for incompetence.

Our scope of review, where the Secretary has taken no additional evidence, is to review the decision of the school board and determine whether that decision contains any necessary factual findings which are not supported by substantial evidence, is in accordance with law, and whether any constitutional rights of the appellant were violated. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Strinich v. Clairton School District, 494 Pa. 297, 431 A.2d 267 (1981), cert. denied, 456 U.S. 982 (1982); Hamburg I, 73 Pa. Commonwealth Ct. at 228, 458 A.2d at 289.

We will first examine Hamburg’s contention that her two unsatisfactory mid-year 1978-1979 ratings were invalid due to the absence of numerical scores. If those two mid-year ratings are invalid, North Penn would have only one unsatisfactory rating, the year-end 1978-1979 rating, to 'Support Hamburg’s discharge. That would render her discharge invalid; because the regulations dealing with teacher tenure and ratings require two consecutive unsatisfactory ratings to dismiss a professional employee on the ground of incompetency. 22 Pa. Code §351.26.

[375]*375Section 1123 of the School Code, 24 P.S. §11-1123, requires that the services of professional employees be rated by an approved rating system in accordance with the standards and regulations for such scoring. Pursuant to 24 P.S. §11-1123, the Secretary has promulgated regultions, found at 22 Pa. Code §§351.21 & 351.22, which establish a rating form, the DEBE333, as well as standards for its use. Our review of those regulations indicate that the DEBE-333 was intended to be used with numerical scores. The regulation dealing with unsatisfactory ratings, 22 Pa. Code §351.26, requires only that unsatisfactory ratings be approved and signed by the district superintendent or intermediate unit director and be supported by anecdotal records. There is no requirement in 22 Pa. Code §351.26 that unsatisfactory ratings contain numerical scores.

In English v. North East Board of Education, 22 Pa. Commonwealth Ct. 240, 348 A.2d 494 (1975), we addressed this precise issue where we rejected a teacher’s challenge to the validity of her unsatisfactory ratings which lacked numerical scores but were supported by anecdotal records. We held that the ultimate determination of whether a teacher is rated satisfactory or unsatisfactory is unrelated to any numerical score. The important, indeed vital, portion of any unsatisfactory rating is the accompanying anecdotal records. Id. at 245, 348 A.2d at 496. It is well-settled that an unsatisfactory rating must have accompanying anecdotal records to be valid. Mullen v. DuBois Area School District, 436 Pa. 211, 213 n.3, 259 A.2d 877, 879 n.3 (1969).

On remand, the Secretary held that the regulations do not require the invalidating of teacher ratings where the only technical defect is the failure to use numbers. The Secretary noted that 22 Pa. Code §351. [376]*37626 does not require numbers to sustain an unsatisfactory rating, only anecdotal records, and concluded that:

The numbers are .significant in relation to an unsatisfactory rating because they trigger the rater’s responsibility to prepare anecdotal records. If the rater prepares careful anecdotal records, then the teacher is informed of the deficiency to be corrected. Without the accompanying anecdotal records, the numbers do not have independent significance.
... When the anecdotal records support the reasons for an unsatisfactory rating and the only defect in the use of the form is the failure to use numbers, the Secretary will not invalidate the rating based on the lack of numbers.

An agency’s interpretation of its own regulations, unless clearly erroneous or inconsistent with the statutory mandate, is normally entitled to controlling weight. Wiley House v. Scanlon, 502 Pa. 228, 465 A.2d 995 (1983).

We do not find the Secretary’s present interpretation of the regulations either erroneous or inconsistent with the mandate of the School iCode.

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484 A.2d 867, 86 Pa. Commw. 371, 1984 Pa. Commw. LEXIS 2079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamburg-v-north-penn-school-district-pacommwct-1984.