Hetherington v. Rogers

6 A.3d 6, 2010 Pa. Commw. LEXIS 523

• Court: Commonwealth Court of Pennsylvania
• Decided: September 27, 2010
• Status: Published

Opinions

OPINION BY

Senior Judge FRIEDMAN.

John Misiewicz, William Rogers, Jane Rapant, Christine Heyer, Robert Wetzel, Phil Rapant, Edward Balkiewicz, John Motsney and Mark Semanehik, Esq., (together, Ex-Directors) appeal from: (1) the June 23, 2009, order of the Court of Common Pleas of Schuylkill County (trial court), which granted a petition to remove the Ex-Directors from their positions on the North Schuylkill School District (School District) School Board pursuant to section 318 of the Public School Code of 1949 (Code);¹ and (2) the trial court’s June 25, 2009, order, which amended the June 23, 2009, order by appointing four individuals² to replace four of the Ex-Directors on the School Board.³ We affirm.

On April 19, 2007, Dr. Robert Franklin, School District Superintendent, submitted his resignation, effective June 29, 2007, to the School Board. At a meeting on May 30, 2007, the School Board appointed Dr. Gerald Nesvold as Acting Superintendent.⁴ From June 15, 2007, through June 17, 2007, the School District advertised for applicants for the position of Superintendent, requiring candidates to have an earned doctorate with extensive knowledge and experience in labor relations and school law.

The School Board received eight applications during the period from June 25, 2007, to September 18, 2007. Among the applicants were Dr. Regina Palubinsky, Dr. Michael Baird, Dr. Donald Golden and Dr. Sandra Reed. All were certified to hold the position of Superintendent, and all but Dr. Palubinsky had received their doctorates. Dr. Palubinsky had completed requirements for a doctorate and was merely awaiting formal issuance of the degree. All had more than six years teaching experience, more than three years supervisory or administrative experience and had completed graduate programs in education that included leadership standards required by statute.⁵ The School Board never contacted any of the applicants.

Instead, at a meeting on June 27, 2007, the School Board approved the submission of a Mandate Waiver Application to the Pennsylvania Department of Education (Department), requesting that the Department waive the Superintendent eligibility requirements and allow the School Board to name its Solicitor, Mark Semanchik, as the School District’s Superintendent.⁶ Specifically, the School Board sought waivers from the eligibility requirements set forth in sections 1003(2), (3) and (4) of the Code and in 22 Pa.Code §§ 49.172(a)(1) and (3).⁷ (Appellee’s R.R., Item 13.)

By letter dated September 6, 2007, the Department denied the Waiver Application, stating that it is the Department’s policy to waive the eligibility requirements for superintendents only where: (1) the school district is designated as an Empowerment District or Distressed District; or (2) the school district provides documentation that the individual to be appointed has completed training in lieu of certification of eligibility. (Appellee’s R.R., Item 14.)

On September 20, 2007, without contacting the applicants for the vacant Superintendent position to determine whether it was impossible or impracticable to immediately fill the vacancy with one of the qualified persons, the School Board appointed Semanchik as Acting Assistant Superintendent, effective October 1, 2007, for the balance of the school year at a salary of $82,500 and benefits.⁸ After October 1, 2007, Acting Superintendent Nesvold only came to his office one day each week. Semanchik ran the School District. Although the School Board passed no resolution and took no public vote on the matter, at some point, the School Board agreed to pay for Semanchik to acquire a graduate degree in education.⁹

Although the graduate degree requirement could not be waived absent appropriate training, at a meeting on February 21, 2008, the School Board approved an Amended Mandate Waiver Application, seeking a waiver of that requirement and others. The School Board stated that Semanchik “assumed full responsibility for the operation of the [School District] as the Acting Assistant Superintendent as of October 1, 2007.... ” (Appellee’s R.R., Item 17.) The School Board promised that Semanchik would report his progress in fulfilling the eligibility requirements and that Semanchik would complete a graduate degree and Letter of Eligibility Program within two years. Id. The application contained an Affirmation stating that the School Board’s Solicitor, i.e., Semanchik, reviewed the application and determined that the requested waivers would not violate any state law.¹⁰ Id.

By letter dated April 24, 2008, the Department denied the School Board’s Amended Mandate Waiver Application, stating:

As the Department indicated in its prior letter to the district, Mark Sem-anchik, the superintendent candidate at issue in the waiver application, has not completed a Letter of Eligibility program approved by the Department. We also note that Mr. Semanchik is not a full-time school administrator or employee. Because Mr. Semanchik has not completed an approved program and does not have relevant experience as a school administrator, a waiver is not appropriate at this time.

(Appellee’s R.R., Item 18) (bolding added) (italics in original).

Although the School Board failed to obtain a waiver for Semanchik through its patently meritless Waiver Application, at a meeting on May 15, 2008, the School Board approved the appointment of Sem-anchik as Acting Superintendent, effective July 1, 2008, for the following school year at a salary of $110,000 and benefits. Prior to doing so, the School Board did not contact any of the applicants for the Superintendent position to determine whether it was impossible or impracticable to immediately fill the Superintendent vacancy with a qualified person.

On April 29, 2009, the School Board approved a third Mandate Waiver Application. The School Board stated that Semanchik had successfully completed the requirements for a graduate degree in education and the requirements for a letter of eligibility for appointment as a district superintendent.¹¹ The School Board sought a waiver from section 1008(2) of the Code and 22 Pa.Code § 49.172(a)(3), which require six years of teaching, including three years in supervisory or administrative positions. The School Board pointed out that Semanchik now had experience as an Acting Assistant Superintendent and Acting Superintendent. (Appel-lee’s R.R., Item 20.)

A petition for removal of the Ex-Directors was filed with the trial court pursuant to section 318 of the Code. The trial court concluded that the Ex-Directors failed to elect a properly qualified Superintendent, a mandatory duty under section 1071(a) of the Code. The trial court stated:

Two years have passed since the [School District] has had a qualified superintendent and, during that time period, the School Board has been engaged in a conflicted journey in an attempt to seat an as-yet unqualified individual lacking teaching experience and supervisory educational experience into the educational leadership position of that school district. The acting superintendent/solicitor is in a conflicted position of providing legal advice to the School Board, he being a non-voting member of that Board, in a matter in which he has a direct pecuniary interest. Attorney Semanchik has placed himself in a position where he is giving himself and voting members of the School Board advice in a matter involving his own personal interests.

(Trial ct. op. at 3) (emphasis added).

Today, more than two years after being informed that Dr. Franklin was resigning as District Superintendent, the North Schuylkill School Board remains without a qualified school superintendent because of the [School Board’s] failure to comply with the mandate of Section 10-1071 of the School Code. Rather than doing so, the evidence presented to this Court demonstrated a conflicted relationship between the then-Solicitor, who was seeking to ascend to the position of superintendent, and the Board, in an attempt to ultimately seat Mr. Sem-anchik as Superintendent. The efforts of the school board to seat a qualified superintendent were nonexistent....

[T]he Board, in concert with the school Solicitor, embarked upon a course of action to avoid appointment of a qualified superintendent and to elevate the Solicitor to that position. Although the Board did author an advertisement for a superintendent during June of 2007, that action in' terms of seeking a properly qualified superintendent was a nullity. To begin, the advertisement itself was structured to meet the personal background of Attorney Semanchik.... Thus, the advertising for a superintendent at the earliest moments of the vacancy was illusory as it was written not to attract a properly educated and qualified educator, but rather the unqualified board solicitor.

(Trial ct. op. at 15-17) (emphasis added). As for the Waiver Applications, the trial court stated:

The application^] for mandate waivers by the school board further demonstrate the conflicted relationship between the Board and their solicitor/acting assistant superintendent/acting superintendent. The first application ... was actually presented to the Department ... through the law office of Attorney Sem-anchik. ... Each application affirmed that the school board’s solicitor had reviewed the application and determined that the waiver did not violate any court order or state or federal law[,] the same solicitor who was seeking the very waiver to become the school superintendent. At the very least, an appearance of impropriety existed with regard to that process.

The [School Board Members] have yet to comply with their mandatory duty under section 10-1071, leaving this Court with no alternative other than their removal.[¹²]

(Trial ct. op. at 18) (emphasis added). Therefore, on June 23, 2009, the trial court removed the Ex-Directors from their positions on the School Board. On June 25, 2009, the trial court amended the order by appointing four persons to replace four of the Ex-Directors. On July 22, 2009, the trial court denied a motion for reconsideration and a motion to amend the pleadings. The Ex-Directors now appeal to this court.

The Ex-Directors argue that the trial court abused its discretion in removing them under section 318 of the Code for neglecting to elect a qualified person as Superintendent under section 1071(a) of the Code. The Ex-Directors maintain that, given the lack of a timeframe for the election of a qualified person in section 1071(a) of the Code, the ability to appoint an unqualified person as acting superintendent under section 1079 of the Code, and the Mandate Waiver Program in section 1714-B of the Education Empowerment Act, the Code does not contain a clear mandatory duty to elect a qualified person as superintendent within a specific period of time. We disagree.

Section 1071(a) of the Code provides that a school board shall elect a properly qualified person as district superintendent. 24 P.S. § 10-1071(a). Certainly, by itself, section 1071(a) of the Code sets forth a mandatory duty to elect a qualified person as district superintendent.

Section 1079 of the Code provides that, when a school board finds it impossible or impracticable to immediately fill a vacancy for superintendent, the board may appoint an acting district superintendent to serve not longer than one year from the date of the appointment. 24 P.S. § 10-1079. Reading the section 1071(a) mandate in pari materia with section 1079 of the Code,¹³ the school board must elect a qualified person immediately to fill a vacancy for superintendent unless the school board finds that it is impossible or impracticable to do so, in which case the school board may appoint an acting superintendent to serve one year.

Section 1714-B(a) of the Education Empowerment Act allows a school board to apply for a mandate¹⁴ waiver for the superintendent eligibility requirements if the waiver will enable the school district to improve its instructional program or operate in a more effective, efficient or economical manner. 24 P.S. § 17-1714-B(a). Reading sections 1071(a) and 1079 of the Code in pari materia with section 1714-B of the Education Empowerment Act, a school board’s mandatory duty under the Code is to immediately elect a qualified person unless the school board finds it impossible or impracticable to do so, in which case the school board may appoint an acting superintendent to serve one year, or unless the school board has obtained a mandate waiver with respect to the superintendent eligibility requirements, in which case the school board may elect the person for whom it has obtained the mandate waiver.

Here, the School Board never obtained a mandate waiver for Semanchik, so the School Board was not excused from performing its mandatory duty on that basis. Moreover, inasmuch as the School Board never attempted to contact any of the qualified persons who applied for the position, the School Board had no basis for finding it impossible or impracticable to fill the vacant Superintendent position with a qualified person. Absent circumstances that excuse the performance of the duty, the School Board was required to immediately elect a qualified person as Superintendent but failed to do so. Thus, we conclude that the trial court did not abuse its discretion in removing the Ex-Directors under section 318 of the Code.

In reaching this conclusion, we reject the Ex-Directors’ argument that the mandate waiver program allowed them to postpone their statutory duty until they obtained a mandate waiver for Semanchik when qualified persons had applied for the Superintendent position. Submitting an application for a mandate waiver is not the same as obtaining a mandate waiver. The mandate exists until a school board has obtained a waiver, and, as this case demonstrates, submitting an application does not guarantee obtaining a waiver. Moreover, suspending a mandate simply because a school board has submitted a waiver application leads to an absurd result.¹⁵ Indeed, if we were to construe the mandate waiver program to permit the suspension of a mandate upon the filing of an application, a school board could avoid performing mandatory duties forever simply by filing serial applications that have no merit.

Furthermore, in construing the provisions of the Code, we presume that the General Assembly intended to favor the public interest in having a qualified person as Superintendent as against any private interest that an unqualified person, like Semanchik, might have in being the Superintendent. See Section 1922(5) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(5). In fact, section 1714-B of the Education Empowerment Act allows school boards to apply for a waiver of superintendent qualifications only if the waiver will enable the school district to improve its instructional program or operate in a more effective, efficient or economical manner. 24 P.S. § 17-1714-B. Significantly, the trial court believed that the School Board did not seek a waiver to improve the School District’s instructional program or to have a more effective, efficient or economical operation. Rather, the trial court believed that there was a conflicted relationship between the School Board and Semanchik, such that the School Board sought a waiver only to give the position of Superintendent to Seman-chik.¹⁶

Accordingly, we affirm.

Judge BROBSON did not participate in the decision in this case.

ORDER

AND NOW, this 27th day of September, 2010, the orders of the Court of Common Pleas of Schuylkill County, dated June 23, 2009, and June 25, 2009, are hereby affirmed.

1 .Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 3-318. Section 318 of the Code states, in pertinent part, that, if the board of school directors in any district "refuse[s] or neglect[s] to perform any duty imposed upon it by the provisions of this act,” resident taxpayers in the district may present a petition in writing setting forth the facts, and the court "shall grant a rule upon the school directors to show cause why they should not be removed from office.” Id.

If ... the court shall be of the opinion that any duty imposed on the board of school directors, which is by the provisions of this act made mandatory upon them to perform, has not been done or has been neglected by them, the court shall have power to remove the board, or such of its number as in its opinion is proper, and appoint for the unexpired terms other qualified persons in their stead....

24 P.S. § 3-318. The trial court concluded that the Ex-Directors failed to perform their statutory duty to "elect a properly qualified person as district superintendent_” Section 1071(a) of the Code, 24 P.S. § 10-1071(a).

2 . The four individuals had "won election in both the Democratic and Republican primary elections to replace [four of the] removed school board members effective January, 2010.” (Trial ct.'s 6/25/09 order n. 1.)

3 . The Ex-Directors, except for Misiewicz, also filed an appeal from the July 22, 2009, order of the trial court, which denied a motion for reconsideration and a motion to amend pleadings. We note, however, that an order denying a motion for reconsideration is not an appealable order. Thom v. Newman, 113 Pa.Cmwlth. 642, 538 A.2d 105 (1988).

4 . Section 1079 of the Code states, in pertinent part, as follows:

Whenever a board of school directors finds it impossible or impracticable to fill immediately any vacancy occurring in the position of district superintendent or assistant district superintendent, the board may appoint an acting district superintendent or an acting assistant district superintendent to serve not longer than one year from the time of his appointment.

24 P.S. § 10-1079.

5 .Section 1003 of the Code states, in pertinent part:

No person shall be eligible for election or appointment as a district, or assistant district superintendent, unless—

(2) He has had six (6) years' successful teaching experience, not less than three of which shall have been in a supervisory or administrative capacity;

(3) He has completed in a college or university a graduate program in education approved by the Department of Education that includes the Pennsylvania school leadership standards under section 1217 [of the Code, 24 P.S. § 12-1217], Completion of the program shall not be subject to waiver under section 1714-B [of the Education Empowerment Act, Act of March 10, 1949, P.L. 30, added by section 8.1 of the Act of May 10, 2000, P.L. 44, as amended, 24 P.S. § 17-1714-B,] unless the candidate provides to the Secretary of Education evidence that the candidate has successfully completed an equivalent leadership development program that addresses the school leadership standards under section 1217. (4) Provided that in school districts of the first class, five (5) years of administrative experience at the level of assistant, associate or deputy superintendent, may be substituted for prescribed graduate administrative courses....

24 P.S. § 10-1003 (emphasis added).

6 . Section 1714-B(a) of the Education Empowerment Act states that, "[e]xcept as otherwise provided by this section, the board of school directors may adopt a resolution to apply for a waiver to any provision of this act ... if the waiver will enable the school district to improve its instructional program or operate in a more effective, efficient or economical manner.” 24 P.S. § 17-1714-B(a).

7 . The regulation states:

(a) The Department will issue the appropriate letter of eligibility for consideration for appointment as a district superintendent or an assistant district superintendent to an applicant who:

(1) Has completed a Pennsylvania approved graduate level program of educational administrative study for the preparation of chief school administrators.... (3) Has provided evidence of 6 years of certified service in the basic K-12 schools and, for the superintendent’s letter, including at least 3 years of satisfactory certified service in supervisory or administrative positions.

22 Pa.Code § 49.172(a)(1) & (3).

8 . According to Dr. Nesvold, there 'are no requirements for an interim position and a school district could hire "Mickey Mouse” or the "janitor” for a year. (R.R. at 206a, 210a.) We note that: (1) Semanchik was not eligible to be an Assistant Superintendent because he did not meet the eligibility requirements set forth in section 1003 of the Code for Assistant Superintendents; and (2) the School Board could not have obtained a mandate waiver for Semanchik to serve as Assistant Superintendent because the requirement for a graduate degree in education in section 1003(3) of the Code cannot be waived absent appropriate training in leadership development.

9 . In its Mandate Waiver Application, the School Board suggested that it could not afford to hire a qualified person as Superintendent, stating that hiring Semanchik would "relieve the [School Board] of costs associated with suitably qualifying a traditional candidate.” (Appellee's R.R., Item 13.) However, the School Board did not indicate that it was expending money to qualify its nontraditional candidate, Semanchik.

10 .However, granting a waiver of the graduate degree requirement, which is not subject to waiver absent appropriate training, arguably would violate section 1003(3) of the Code. We note that, despite the Affirmation, Semanchik testified that he actually did not review the document for legality. (R.R. at 345a-46a.)

We also note that, under section 1103(a) of the Public Official and Employee Ethics Act (Ethics Act), 65 Pa.C.S. §§ 1103(a), no public employee shall engage in conduct that constitutes a conflict of interest, which is defined in section 1102 of the Ethics Act, 65 Pa.C.S. § 1102, to include use of one’s employment for the private pecuniary benefit of himself. In P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 723 A.2d 174 (1999), our Supreme Court held that a solicitor is subject to the conflict of interest provisions of the Ethics Act.

11 . Semanchik could not have possessed a letter of eligibility for appointment as a district superintendent because he lacked one of the requirements, i.e., six years of certified service in the basic K-12 schools, including three years of satisfactory certified service in supervisory or administrative positions. See 22 Pa.Code § 49.172.

12 . The Ex-Directors, except for Misiewicz, argue that the trial court erred in believing that it had a mandatory duty, rather than discretion, to remove them. However, the trial court stated in a subsequent order that it was aware that it had discretion to remove the Ex-Directors. (Trial ct. order of 7/27/09 at 3 n.l.)

13 . Parts of statutes are in pari materia when they relate to the same things, and such shall be construed together, if possible. Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932.

14 . The use of the word "mandate” to describe the waiver program makes clear that a school board seeking a waiver has a mandate and, but for a waiver, the school board must fulfill its mandate.

15 .We presume that the General Assembly did not intend a result that is absurd. Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1).

16 . The Ex-Directors argue that, under In re Fahey, 344 Pa. 267, 25 A.2d 158 (1942), the trial court was required to find that the Ex-Directors acted in bad faith or that they willfully neglected their statutory duty. However, it is clear that the trial court rejected the Ex-Directors' claim that they acted in good ' faith and that they honestly thought they were complying with the Code.

If a trial court rejects testimony based on the demeanor of the witness, an appellate court cannot review that credibility determination. Koppel Steel Corporation v. Board of Assessment Appeals, 849 A.2d 303 (Pa. Cmwlth.2004). Here, the trial court had the opportunity to view the demeanor of each of the Ex-Directors as they testified. Thus, as an appellate court, we cannot review the trial court’s rejection of their testimony about their intentions.

To the extent that the Ex-Directors argue pursuant to In re Kline Township School Directors, 353 Pa. 91, 44 A.2d 377 (1945), that the trial court erred in removing them for malfeasance or misfeasance, we reject the argument. The trial court removed the Ex-Directors for non-feasance, i.e., not functioning as a school board with respect to its mandatory duty to elect a qualified person as Superintendent.