H. Prieto v. SD of Phila. (Department of Ed.) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hugo Prieto, :
Petitioner :
: No. 144 C.D. 2021
v. :
: Argued: November 15, 2022
The School District of Philadelphia :
(Department of Education), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 28, 2022
Hugo Prieto (Prieto) petitions for review of the January 29, 2021 order of
the Acting Secretary of Education Noe Ortega1 (Acting Secretary) that affirmed a
decision of the Board of Education (Board) of the School District of Philadelphia
(District) dismissing him from his position as a tenured professional employee. The
Acting Secretary affirmed Prieto’s dismissal for two reasons. First, the Acting
Secretary concluded that Prieto received due process because the District complied
with the procedures required by the Public School Code of 1949 (School Code).2
1
Acting Secretary Ortega resigned from office effective April 29, 2022. Governor Wolf
named Eric Hagarty as Acting Secretary to replace Mr. Ortega. To date, Mr. Hagarty remains
Pennsylvania’s Acting Secretary of Education.
2
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-XXX-XX-XXXX.
Second, the Acting Secretary concluded that the District met its burden of showing a
valid cause to terminate Prieto. Upon review, we affirm.
I. FACTS AND PROCEDURAL HISTORY
This case stems from an incident that occurred on December 7, 2018,
between Prieto and a student. (Acting Secretary’s Op., Findings of Fact (FOF) ¶ 5.)
There is no dispute that at that time Prieto was a tenured professional employee of the
District and was employed as a chemistry teacher for the 2018-2019 academic school
year. During a “hall sweep,” three students entered Prieto’s classroom at the start of
class, sat in the back of the room talking to friends, and refused to leave when Prieto
directed them. (FOF ¶ 5.) Prieto called the District’s main office and used a walkie-
talkie to seek assistance. (FOF ¶ ¶ 6-7.) Assistant Principal Albert Sniezevage
(Sniezevage) responded to Prieto’s walkie-talkie call and entered the classroom, had
Prieto identify the students in question, and proceeded to usher the students out of the
classroom. (FOF ¶ 8; Hr’g Tr. at 8, Reproduced Record (R.R.) at 23a.)
Sniezevage testified as follows. Prieto picked up a hardbound chemistry
textbook from the floor and threw it at one of the students who was exiting the room,
hitting the student in the lower back near the waistline. (Hr’g Tr. at 11, R.R. at 24a.)
The student shouted an expletive at Prieto and became agitated. (Hr’g Tr. at 13, R.R.
at 24a.) Sniezevage stepped between Prieto and the student and told Prieto to leave the
classroom. (Hr’g Tr. at 13, R.R. at 24a.) Sniezevage attempted to restrain the student
but the student evaded Sniezevage and confronted Prieto who put his hands up and
began to exchange punches with the student. (Hr’g Tr. at 13, R.R. at 24a.) Sniezevage
again stepped between Prieto and the student and ordered Prieto to leave the room.
(Hr’g Tr. at 13-14, R.R. at 24a-25a.) Prieto slowly walked to the door and while doing
so, the student broke free, and again confronted Prieto. (Hr’g Tr. at 14, R.R. at 25a.)
Prieto offensively fought the student again. (Hr’g Tr. at 14-15, R.R. at 25a.) A cell
2
phone video recorded part of the fight between Prieto and the student. (FOF ¶ ¶ 19-20;
Hr’g Tr. at 25, R.R. at 27a.) Thereafter, Sniezevage and another student were able to
step between Prieto and the student, and Sniezevage ordered Prieto to leave the room;
Prieto, in response, stepped into the storage room at the front of the classroom. (Hr’g
Tr. at 32, R.R. at 29a.)
After the fight ended, School Principal Lillian Izzard entered the room and
escorted the student to her office to be questioned by school police. (Hr’g Tr. at 16,
R.R. at 25a.) That same day, Sniezevage memorialized the incident in a written
statement and prepared a Form 204 Unsatisfactory Incident report. (FOF ¶ 26; Hr’g
Tr. at 118-20, R.R. at 26a, 54a-58a.) School safety officers interviewed Prieto the day
of the incident. (Hr’g Tr. at 33, R.R. at 29a.) As of December 10, 2018, Prieto was
removed from his classroom and reassigned to the District’s main building. (R.R. at
65a.) As of December 11, 2018, Prieto was reassigned to the Education Center and,
while at the Education Center, he was not given any work. (R.R. at 67a.) On January
3, 2019, Sniezevage held an investigatory conference to discuss the incident. (R.R. at
62a-63a.) On April 15, 2019, Prieto again met with Sniezevage at a second-level
conference. (Hr’g Tr. at 33, R.R. at 29a.)
On April 25, 2019, the District’s Board approved a resolution finding that
there was sufficient evidence to issue a Statement of Charges and recommend
disciplinary action be taken against Prieto. (R.R. at 52a.) On May 6, 2019, the Board
provided Prieto with a written notice that included a statement of charges, informed
Prieto of his right to a hearing, and scheduled a hearing before the Board on May 15,
2019 at 10:00 a.m. (R.R. at 16a-18a.) The May 6, 2019 statement of charges indicated
that Prieto was suspended on the grounds of intemperance, incompetency, and cruelty
under section 1122 of the School Code. 24 P.S. § 11-1122; R.R. at 17a. On May 16,
2019, Prieto’s counsel, Richard W. Migliore, Esq., emailed the District to reschedule
3
the hearing, which request the District granted and indicated it would send prospective
hearing dates. (R.R. at 74a-75a.)
The Board hearing was held on August 25, 2020, and Prieto appeared with
counsel by Zoom. (FOF ¶ 34.) Both counsel for Prieto and the District had full
opportunity to call and question witnesses, cross-examine the other party’s witnesses,
introduce evidence, and object to evidence offered by the opposing party. (FOF ¶ 35.)
Both parties submitted briefs following the hearing. The hearing officer issued findings
of fact and conclusions of law on October 14, 2020, recommending that the Board
terminate Prieto’s employment. (FOF ¶ ¶ 36-37.) On October 22, 2020, the District’s
Board adopted a resolution terminating Prieto’s employment. (FOF ¶ 38.)
Thereafter, Prieto appealed to the Acting Secretary. A hearing was held
virtually before hearing officer Robert Tomaine on December 10, 2020. (R.R. at 123a-
152a.) On January 29, 2021, the Acting Secretary issued a decision and order affirming
the District’s dismissal of Prieto. (R.R. at 162a.)
Subsequently, Prieto appealed to this Court.
II. ISSUES
Before this Court,3 Prieto presents four issues for review.4 First, Prieto
argues the Acting Secretary erred in finding that his actions on December 7, 2018,
constituted intemperance, thereby justifying his dismissal under the School Code.
3
Our review of the Acting Secretary’s order is limited to determining whether an error of law
was committed, constitutional rights were violated, or necessary findings of fact were unsupported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; McCoy v.
Lincoln Intermediate Unit No. 12, 391 A.2d 1119, 1121 (Pa. Cmwlth. 1978). An administrative
decision is supported by substantial evidence “when a reasonable man, acting reasonably, would have
reached the same decision.” Central York School District v. Ehrhart, 387 A.2d 1006, 1008 (Pa.
Cmwlth. 1978).
4
We have reordered and paraphrased the questions presented for clarity and ease of
discussion.
4
Prieto also argues the Board violated his due process rights as the District did not follow
the School Code’s requirements for termination. He further contends he was
effectively terminated without a hearing and that suspensions without pay pending
termination are not permitted under the School Code.
III. DISCUSSION
A. Prieto’s Intemperance
Prieto first argues that the Acting Secretary erred in finding that his
conduct constituted intemperance under the School Code. Prieto argues “[i]n a ‘reflex
action’ [he] ‘grabbed the book and tapped the student in the back of his leg.’” (Prieto’s
Br. at 10.) In doing so, Prieto has attempted to reargue facts relating to his perspective
of the incident and “the actual [t]ruth of the [m]atter.” (Prieto’s Br. at 12-13.) In
essence, Prieto is requesting this Court to reweigh the evidence, make different
findings, and make credibility determinations based upon his version of the incident.
(Prieto’s Br. at 12-13, 18-19, 40-46.)
Section 1122 of the School Code provides:
The only valid causes for termination of a contract heretofore
or hereafter entered into with a professional employe shall be
immorality; incompetency; unsatisfactory teaching performance
based on two (2) consecutive ratings of the employe’s teaching
performance that are to include classroom observations, not less
than four (4) months apart, in which the employe’s teaching
performance is rated as unsatisfactory; intemperance; cruelty;
persistent negligence in the performance of duties; wilful neglect
of duties ... persistent and wilful 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 employe ....
24 P.S. § 11-1122 (emphasis added). It is the District’s burden to prove that a
professional employee committed one or more of the statutorily enumerated acts.
5
Foderaro v. School District of Philadelphia, 531 A.2d 570, 571 (Pa. Cmwlth. 1987).
Here, the District charged Prieto with incompetency, intemperance, and cruelty, which
are expressly provided for in section 1122 of the School Code. (R.R. at 82a.) The
Acting Secretary concluded that the District had met its burden of proof because there
was sufficient support in the record for the allegation that “[Prieto’s] actions
constitute[d] intemperance justifying his termination under the School Code.” (Acting
Secretary’s Opinion at 9; R.R. at 161a.)
Notably, intemperance is not defined in the School Code. Nevertheless,
this Court has explained that intemperance is a loss of self-control, which may be
inferred from the use of excessive force. McFerren v. Farrell Area School District,
993 A.2d 344 (Pa. Cmwlth. 2010); Belasco v. Board of Public Education of School
District of Pittsburgh, 510 A.2d 337 (Pa. 1986). Upon review of the record and the
Acting Secretary’s findings, we agree that there was ample evidence to the support the
conclusion that Prieto’s conduct exhibited a loss of self-control or excessive use of
force.
It is undisputed that on December 7, 2018, Prieto engaged in two fist fights
with a student. The Acting Secretary additionally found that Prieto threw a textbook
at the student as the student was leaving the classroom. In the Acting Secretary’s
words:
[Prieto] testified that the book hit the student on the calf rather
than on his back. He also testified that he did not throw the book
at the student, but rather that the student kicked the book as
[Prieto] was reaching for it, causing the book to hit [Prieto’s] toe.
[Prieto] testified: ‘I opened my arms and I tapped him as a reflex
action on the calf . . . with the flat part of the book.’ [Prieto’s]
version of events was directly contradicted by Assistant Principal
Sniezevage’s testimony. Sniezevage testified that he witnessed
[Prieto] intentionally throw a book at and exchange punches with
a student. I find the testimony of Sniezevage to be credible. I
do not find [Prieto’s] testimony to be credible. I find credible
6
that [Prieto] intentionally threw a book at a student and
participated in a fistfight in his classroom on the day in
question.
(R.R. at 161a.) (internal citations omitted) (emphasis added). The Acting Secretary is
the ultimate factfinder when he makes findings of fact. Balog v. McKeesport Area
School District, 484 A.2d 198, 200 (Pa. Cmwlth. 1984). As the ultimate factfinder, the
Acting Secretary renders credibility determinations of the witnesses’ testimony.
Rhodes v. Laurel Highlands School District, 544 A.2d 562, 565 (Pa. Cmwlth. 1988).
Although Prieto continues to reargue the facts surrounding the December 7, 2018
incident, this is of no moment as the Acting Secretary did not find his testimony
credible. As stated by the Acting Secretary, he reviewed the testimony of Sniezevage
and determined that Sniezevage’s testimony was credible. (Acting Secretary’s Opinion
at 9; R.R. at 161a.) The Acting Secretary accepted Sniezevage’s testimony that Prieto
threw the textbook at the student and engaged in two fist fights with the student. (FOF
¶ ¶ 9-18, 21; Hr’g Tr. at 11, R.R. at 24a.)
The record supports the Acting Secretary’s findings. Sniezevage testified:
As the students were leaving, I observed Mr. Prieto pick up the
chemistry book and throw it at a student as the student was
leaving the room.
Q: He threw it at one of the exiting students?
A: Yes.
Q: And you say he threw it at the student. Did the book hit the
student?
A: Yes, it did. It struck him in the lower back, right around the
waistline, like lower back right above his buttocks.
Q: And you say a chemistry book, are we talking just a typical
text or hardbound textbook or –
7
A: We are talking about your 500-plus page hardback chemistry
textbook.
(Hr’g Tr. at 11, R.R. at 24a.) Sniezevage further testified that as the student became
agitated, he instructed Prieto to leave the room, which Prieto did not. (Hr’g Tr. at 12-
13, R.R. at 24a). Sniezevage stated the student got around him and started exchanging
punches with Prieto. (Hr’g Tr. at 13, R.R. at 24a.) Sniezevage testified that he stepped
between the student and Prieto and again ordered Prieto to leave the room, but “[Prieto]
again did not move with any urgency.” (Hr’g Tr. at 13-14, R.R. at 24a-25a.)
Sniezevage stated that “[m]aybe to my recollection it was the third or fourth time where
I told him to leave the classroom that he began to move towards one of the exits.”
(Hr’g Tr. at 14, R.R. at 25a.) Sniezevage noted: “Again, the student got free, and Mr.
Prieto was still in the classroom, and they went for a second round of punch exchange,
which took place at the front of the classroom.” (Hr’g Tr. at 14, R.R. at 25a.) Because
the Acting Secretary’s findings of fact are supported by substantial evidence, we must
accept those findings on appeal. Balog, 484 A.2d at 200.
Upon review of the Acting Secretary’s findings, which are supported by
substantial evidence in the record, the Acting Secretary appropriately concluded that
Prieto’s conduct demonstrated a lack of self-control, and, therefore, constituted
intemperance. Thus, the District met its burden of showing valid cause to terminate
Prieto from his employment pursuant to section 1122 of the School Code.
B. Prieto’s Procedural Arguments
Next, Prieto argues the Board did not follow the School Code’s
termination procedures, and thus, violated his due process rights. (Prieto’s Br. at 3, 17-
19.) Although we have determined the Board met its burden proving intemperance,
that ruling does not and cannot negate the District’s obligation to provide Prieto with
8
the due process protection to which he is entitled. Therefore, we address Prieto’s due
process issues in turn.
1. Procedure for Termination
First, Prieto cites Vladimirsky v. School District of Philadelphia, 144 A.3d
986 (Pa. Cmwlth. 2016), and School District of Philadelphia v. Jones, 139 A.3d 358(Pa. Cmwlth. 2016), to support his assertion that “[t]he District’s administrative staff
suspended [his] pay and effectively terminated his employment as of the date of May
6, 2019, without the mandatory prior school hearing” required by the School Code.
(Prieto’s Br. at 20.)
Section 1127 of the School Code provides the following procedure for
termination of a professional employee:
Before any professional employe having attained a status of
permanent tenure is dismissed by the board of school directors,
such board of school directors shall furnish such professional
employe with a detailed written statement of the charges upon
which his or her proposed dismissal is based and shall conduct a
hearing. A written notice signed by the president and attested by
the secretary of the board of school directors shall be forwarded
by registered mail to the professional employe setting forth the
time and place when where such professional employe will be
given an opportunity to be heard either in person or by counsel,
or both, before the board of school directors and setting forth a
detailed statement of the charges. Such hearing shall not be
sooner than ten (10) days nor later than fifteen (15) days after
such written notice. At such hearing all testimony offered,
including that of complainants and their witnesses, as well as that
of the accused professional employe and his or her witnesses,
shall be recorded by a competent disinterested public
stenographer whose services shall be furnished by the school
district at its expense. Any such hearing may be postponed,
continued or adjourned.
9
24 P.S. §11-1127 (emphasis added). This Court has interpreted the above section as
“requir[ing] the [school b]oard to resolve to demote the employee and to furnish him
with a written statement of the charges prior to the hearing.” Patchel v. Wilkinsburg
School District, 400 A.2d 299, 232 (Pa. Cmwlth. 1979). As we further noted in
Patchel, the school board only needs to pass a resolution that it has sufficient evidence
to support its belief to demote the professional employee, and then, direct the secretary
and president of the school board to notify the professional employee of this fact and
advise him of his right to a hearing. 400 A.2d at 232 (quoting Abington School District
v. Pittenger, 305 A.2d 382, 387 (Pa. Cmwlth. 1973)).
In the instant case, Prieto’s reliance on Vladimirsky and Jones is
misplaced. In Vladimirsky, this Court reversed the termination of a tenured employee
because the letter terminating his employment sent by the school district was not
authorized by the School Reform Commission (SRC) but rather was sent by the school
district administrator, which violated section 1127 of the School Code. Specifically,
the letter in Vladimirsky stated: “This is to advise you that we shall recommend to the
[SRC] that your employment with [the school district] be terminated effective
immediately.” Id. at 992 (emphasis added). Subsequent to receiving the letter, the
employee had a hearing before the SRC, and then later the SRC passed a resolution
formally terminating the teacher. We held the school district’s termination was
procedurally defective. We determined the school district erred because: (1) an
administrator sent the teacher a letter recommending that he be terminated effective
immediately; (2) the statement of charges was not issued as the result of the passage of
a resolution by the SRC; (3) and the SRC did not vote by roll call to determine whether
the charges had been sustained. Id. at 994-995.
Similarly, in Jones, this Court reversed the termination of a tenured
employee because the school district failed to follow the procedural requirements for
termination found in the School Code. Additionally, the employee received a letter
10
stating his “employment with [t]he [school district would] be terminated effective
immediately” and his pay was stopped as of that date of the letter. Jones, 139 A.3d at
367. This Court in Jones faulted the school district for (1) having an administrator and
the SRC chairman send the employee a letter recommending that he be terminated; (2)
issuing a statement of charges but not as the result of the passage of a resolution by the
SRC; and (3) approving a resolution in December 2010 terminating the employee
retroactively to August 2009. Id. at 368.
Here, unlike Vladimirsky and Jones, the District complied with the
mandates provided in section 1127 of the School Code as the Board initiated the
termination rather than its administrative staff. On April 25, 2019, the Board passed
the following resolution:
RESOLVED, that there is sufficient evidence to support the
recommendation of the Superintendent and/or his designee to
terminate the employment, from the [District], of the following
professional employee:
1. [Prieto]
and be it,
FURTHER RESOLVED, that the [s]ecretary and [Board]
[p]resident are directed to advise these professional employees
of the action item and their right to a hearing.
(R.R. at 104a.) Prieto’s notice and statement of charges were dated May 6, 2019, which
is clearly after the resolution. (R.R. at 16a-18a.) The Board’s meeting minutes further
support that the resolution was not Prieto’s termination, but instead, the Board’s
approval of the administration’s recommended termination of Prieto. (R.R. at 90a.)
Moreover, in the meeting minutes, a breakdown of the 9-0 vote indicates how each
Board Member voted in favor of the resolution. (R.R. at 90a.) The resolution for the
approval of Prieto’s recommended termination is also distinguishable from any other
action item at the same Board meeting as “Administration’s Recommended
Termination of Professional Employee.” (R.R. at 89a-90a.)
11
As required, the statement of charges set a date for a timely hearing to
determine whether Prieto should be terminated.5 (R.R. at 84a.) Moreover, the
statement also specifically included, “This is not a final determination on the status
of your employment….You remain suspended without pay, but with health
benefits, pending a final decision on the School District recommendation of
dismissal.” (R.R. at 83a-84a) (emphasis added). The letter Prieto received cannot be
construed as terminating his employment effective immediately as Prieto remained
suspended from May 2019 until his hearing in August 2020. Unlike the tenured
employees in Vladimirsky and Jones, Prieto was not terminated effective immediately
and was instead suspended pending a final decision on the recommendation for his
dismissal.
Furthermore, Prieto was not terminated by Board resolution until October
22, 2020, by a 6-0 vote. (R.R. at 120a.) Significantly, Prieto’s termination date was
effective immediately on October 22, 2020 – not the date of the Board’s resolution that
there was sufficient evidence to support Prieto’s termination in April 2019. Id.
Moreover, Prieto was terminated after his hearing before the Board’s hearing officer
on August 25, 2020. (R.R. at 22a-50a.) The hearing officer issued findings of fact and
conclusions of law on October 14, 2020, recommending that the Board terminate
Prieto’s employment. (R.R. at 163a-188a.) The October 22, 2020, resolution to
terminate Prieto specifically states:
RESOLVED, that … PRIETO be dismissed from his
employment as a professional employee by the [District],
effective immediately, and be it
FURTHER RESOLVED, that the Hearing Officer’s Findings of
Fact and Conclusions of Law are adopted as the reasons for this
decision,
5
The record shows that the hearing before the Board was scheduled on August 25, 2020, after
a “mutually agreed upon postponement.” (R.R. at 163a.) However, we note, Prieto has not argued
that he suffered prejudice or harm to his interests from the delay in the hearing.
12
and be it
FURTHER RESOLVED, that this decision was made in
accordance with the [School Code], as amended, following an
independent review of the record by the individual members of
the [Board].
(R.R. at 117a.) Because Prieto’s termination was not backdated and occurred after his
Board hearing, the District complied with the procedural requirements of section 1127
of the School Code.
Therefore, we find the Acting Secretary did not err in upholding Prieto’s
dismissal.
2. Dismissal Without a Hearing
Next, Prieto argues that he was effectively dismissed on May 9, 2019, the
date of his suspension, without a hearing, which is an “illegal act.” (Prieto’s Br. at 27.)
We must note, however, that Prieto was not terminated on May 9, 2019, but rather was
suspended on that date. Therefore, we review this issue as to whether Prieto was
entitled to a hearing before his suspension.
It is well settled that suspension for cause without a hearing is permissible
where the teacher’s conduct is potentially harmful to the safety of the children or the
teacher is unable to maintain order in the classroom creating a possibility for harm.
Kaplan v. Philadelphia School District, 130 A.2d 672 (Pa. 1957); Board of Education
of School District of Philadelphia v. Kushner, 530 A.2d 541 (Pa. Cmwlth. 1987); Board
of School Directors of the Eastern York School District v. Fasnacht, 441 A.2d 481 (Pa.
Cmwlth. 1982).
Here, Prieto lost control when he threw a book at a student and used
physical force on a student. Prieto’s actions presented a very real harm to the children.
This alone justifies his pre-hearing suspension. Prieto’s use of physical force on a
student would have allowed the District to suspend him without any hearing or
13
investigatory conference. However, the District held an investigatory conference on
January 3, 2019, and a second-level conference on April 15, 2019, both of which were
opportunities for the District to investigate the facts and for Prieto to hear the
allegations against him and respond. Importantly, Prieto was not suspended until the
conclusion of both conferences on May 9, 2019, by Board action. Nevertheless, in this
case, no pre-hearing was required for Prieto’s suspension due to his intemperate
conduct.
Accordingly, we hold the Acting Secretary did not err in concluding the
District complied with the School Code.
3. Suspensions Without Pay
Lastly, Prieto argues that his pay could not be constitutionally stopped
until after the termination hearing. Prieto asserts that a suspension without pay pending
dismissal is effectively a termination and a violation of Vladimirsky and Jones.
(Prieto’s Br. at 24, 31-34.) Prieto contends that his suspension without pay amounts to
a termination and is an effort to “circumvent the procedural safeguards of the School
Code.” (Prieto’s Br. at 24.)
Pennsylvania courts have long permitted suspensions pending dismissal
for public employees, including teachers. See Burger v. Board of School Directors of
McGuffey School District, 839 A.2d 1005 (Pa. 2003) (upholding suspension without
pay of school district superintendent in instance of serious charges of misconduct);
Kaplan, 130 A.2d at 676 (permitting suspension without pay for a teacher pending
dismissal); City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 592 A.2d
779, 783 (Pa. Cmwlth. 1991) (holding that a suspension without pay is not a de facto
termination). In Kaplan, the Supreme Court stated that to “allow compensation to a
teacher who deliberately breaks the moral law which makes him unfit to teach[] would
14
result in an absurd and unreasonable interpretation of the act.” 130 A.2d at 680
(internal citations omitted).
Here, Prieto was not terminated effective immediately as the employees
in Vladimirsky and Jones were. Instead, Prieto was suspended by Board resolution
which indicated the Board had sufficient evidence to substantiate the charges against
Prieto. Prieto was suspended without pay but with health benefits pending his
termination proceedings. The Acting Secretary concluded that “[b]ecause [Prieto’s]
conduct was potentially harmful to the safety of children, the District had the right to
suspend [Prieto] without pay pending a final decision on the recommendation to
terminate his employment.” (Acting Secretary’s Op. at 7, R.R. at 159a.)
In Kaplan, the Supreme Court stated:
The welfare of the children is the paramount consideration. It
follows from the fact that the authorities are not required to give
active employment to a teacher pending his removal hearing,
that, when his removal is subsequently ordered, he is not entitled
to receive salary for the period during which he has not taught.
Kaplan, 130 A.2d at 676 (quoting Gentner v. Board of Education of Los Angeles, 25
P.2d 824, 825 (Cal. 1933)) (emphasis in original).
Prieto was accused of serious misconduct stemming from the December
7, 2018 incident. After investigating the incident, the Board determined it had
sufficient evidence to resolve to terminate Prieto. Pending the disposition of his
termination proceedings, the Board suspended Prieto without pay but with health
benefits. Prieto’s suspension was a disciplinary action taken by the Board to keep the
District’s children safe and was within the constraints of due process.
Therefore, we find the Acting Secretary did not err in finding the District
did not violate Prieto’s due process rights by suspending him without pay as his
intemperance was potentially harmful to the safety of children.
15
IV. CONCLUSION
For the foregoing reasons, we find the Acting Secretary’s determination
to be based on substantial evidence that supports the necessary factual findings.
Because we do not detect any error of law or constitutional violation in the District’s
termination proceedings, we affirm the Acting Secretary’s January 29, 2021 Order.
________________________________
PATRICIA A. McCULLOUGH, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hugo Prieto, :
Petitioner :
: No. 144 C.D. 2021
v. :
:
The School District of Philadelphia :
(Department of Education), :
Respondent :
ORDER
AND NOW, this 28th day of December, 2022, the January 29, 2021
Order of the Department of Education is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge