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Vol. 53, No. 12

Cornwall-Lebanon School District v. Cornwall-Lebanon Education Association, No. 2015-01556 (C.C.P. Lebanon County 2016).

     Essence Test • Public Policy Exception

The trial court vacated the arbitration award in this case involving an inappropriate relationship between a male basketball coach and a female student.
      Luke Todd Scipioni, a tenured social studies teacher and basketball coach, became close to one of his high school basketball players, A.H., who was experiencing problems at home. During the last half of A.H.’s senior year, the two had significant communications and interactions, including communications about a sexual relationship after graduation, which culminated in a sexual encounter on the night of A.H.’s graduation ceremony (in 2004). The sexual/romantic relationship continued throughout the summer.
      Rumors of the relationship circulated amongst the school community for many years and resulted in Scipioni not getting appointed as the head boys’ basketball coach (in 2010). When asked by the high school principal about the rumors of his relationship with a former player, Scipioni denied that he had ever done anything with A.H. Four years later (in 2014), an anonymous caller offered to provide the superintendent with information regarding the relationship between A.H. and Scipioni. In the ensuing investigation, A.H. admitted to having a sexual relationship after her graduation and her 18th birthday, but Scipioni refused to answer questions related to the nature of their relationship. Based on his lack of cooperation, the superintendent suspended him without pay and arranged to have his district-issued computer searched for evidence of the relationship.
      The district subsequently terminated the employment of Scipioni for the following: downloading illegal songs onto his district-issued computer; the receipt, retention, and forwarding of emails containing disturbing language and images on his district-issued computer; an inappropriate relationship with a student; and a lack of candor when questioned by district officials about the inappropriate relationship.
      The association filed two grievances after Scipioni was suspended and subsequently terminated from his employment, arguing the district did not have just cause to suspend and fire him.    
      The arbitrator determined that the district failed to establish just cause for his termination and mitigated the remedy to a year-long suspension without pay, then reinstating him to his position without back pay and without district contributions to his employment benefits during the time of suspension. The arbitrator found that Scipioni should be penalized for four of the emails (which he found unprofessional, but not immoral) and his dishonesty during the investigation, but not for the inappropriate relationship with A.H. because it occurred after her graduation.     
      On appeal to the local trial court, the district argued that the award should be vacated because “it contravenes a well-defined, dominant public policy, as ascertained by reference to laws and legal precedents, and poses an unreasonable risk that the public policy will be undermined if the award is implemented.” The court agreed with the arbitrator that: “the obligation to protect students and regulate teacher/student interaction includes the right to investigate alleged incidents and question its employees,” a public employee owes a duty of loyalty and honesty to his employer, and “it is a well-defined public policy of this Commonwealth that a school district must ensure the safety of its students, including protection from inappropriate sexual/romantic behavior by its teachers.”
      With regard to the inappropriate relationship, even though the sexual encounter did not occur until after her graduation, “the prior planning of a sexual/romantic tryst to occur shortly after the conclusion of the graduation ceremony conflicts with the District’s interest and obligation to protect its students from being ‘groomed’ and prepared for future sexual conduct by District personnel.” Moreover, his failure to be truthful with district officials “directly compromised the ability of the District to implement the public policy imposed upon it to protect its students and to fully investigate allegations of this nature.”
      With regard to the emails, which “humorized and trivialized smoking, domestic violence, crimes of luring and kidnapping, pornography, referenced offensive sexual activities and ‘cybersex,’ depicted homosexuality and lesbianism in an unbecoming light, and made light of taking advantage of and engaging in sexual conduct with young females,” viewed in context of the surrounding circumstances, evidenced “Scipioni’s rather cavalier attitude as to the type of behavior required of a public employee and the respect and protection owed to district students…” The court noted on more than one occasion that Scipioni failed in his role as mentor.
      Consequently, the court concluded the arbitrator erred in mitigating the penalty, since Scipioni’s actions deserve more than a suspension.           
      Editor’s Note: This decision was appealed to Commonwealth Court, 814 C.D. 2016.
Click here for the full decision.


New Kensington-Arnold School District v. New Kensington-Arnold Education Association, PSEA/NEA, 2016 WL 3223671 (Pa. Cmwlth. 2016)

      Essence Test • Public Policy Exception
      Defective Statement of Charges Loudermill Hearing
      Section 11-1127 • Termination Procedures

Commonwealth Court affirmed the trial court’s denial of the district’s petition to vacate the arbitration award.
      On April 3, the day after Joseph Melnick, a middle school music teacher and assistant high school band director, was arrested for possession of a sawed-off shot gun, 90 grams of marijuana, and drug paraphernalia, the superintendent placed him on unpaid leave pending further investigation and a final determination on the criminal charges. On April 10, the superintendent scheduled a Loudermill hearing for April 17, which he postponed until after the criminal trial, at the request of the association. After finding Melnick not guilty of possession of a prohibited weapon but guilty of possession of marijuana and drug paraphernalia, the court sentenced him to “Probation Without Verdict” (meaning if he successfully completes probation, the charges are dismissed without an adjudication of guilt or conviction).
      A few weeks after his sentencing, a Loudermill hearing was held, wherein the superintendent recounted the criminal charges and Melnick discussed the unfortunate circumstances which led to his arrest. A month later, Melnick received a letter from the superintendent, which stated that the district was seeking to have him dismissed by the board of school directors due to his convictions and that he had the right to demand a hearing. Melnick informed the district that he would proceed by grievance arbitration, and the board subsequently terminated him for immorality.
      Before the arbitrator, the association argued that the district violated his constitutional rights when it suspended him without pay without a prior hearing, and that the board did not give him a valid statement of charges or notice of hearing. The arbitrator concluded that the district violated his due process rights by suspending him without pay without first giving him a Loudermill hearing, awarding back pay from the date of his suspension until the date he asked to postpone the Loudermill hearing. The arbitrator also concluded that the statement of charges was defective because it was issued by the superintendent, not the board, and because it did not specify a time and place for a hearing, reinstating him to his former position as of the date he had to exercise his right to a board hearing.
      The trial court denied the district’s petition to vacate the arbitrator’s award, noting that the district’s deviation from the procedures mandated by the School Code violated the collective bargaining agreement (CBA).
      On appeal, Commonwealth Court discussed the applicable statutory language and case law, noting that the only way to cure a failure to follow the dismissal procedures set forth in Section 1127 of the School Code is a “do over.” Here, the arbitrator did not hold that Melnick could not be dismissed for his criminal convictions; instead, the arbitrator reinstated him because the district deprived him of the mandated procedural safeguards. Moreover, the district’s argument that the arbitrator’s award reinstating Melnick contravened a well-defined, dominant public policy failed because there is no such policy against reinstating a teacher who was dismissed in violation of due process and the School Code.
      Therefore, since the arbitrator’s award drew its essence from the CBA and Melnick’s reinstatement did not violate public policy, the court affirmed the trial court’s denial of the district’s petition.                
Click here for the full decision.


In Short

Kinavey v. West Jefferson Hills School District, No. 1081 C.D. 2015 (Pa. Cmwlth. 2016). OPINION NOT REPORTED. Commonwealth Court affirmed, concluding the trial court did not err or abuse its discretion in affirming the removal of the superintendent. In the formal statement of charges sent to Terry Kinavey, superintendent of the district, the school board cited a lack of candor and dishonesty to the board (related to the hiring process) and plagiarism (related to copying materials for letters without proper attribution). The board hired special counsel to serve as the hearing officer and one of the solicitor’s colleagues acted as lead prosecutor. After the hearing, pursuant to the recommendation of the hearing officer, the board voted to dismiss Kinavey as superintendent, finding her conduct constituted neglect of duty and immorality. Kinavey appealed. After the trial court remanded the case back to the board to make a full and complete record, the board held additional hearings and again determined that she was unfit to serve as superintendent. On appeal, she claimed the board violated her due process rights because the solicitor and members of the board engaged in impermissible commingling between the prosecutorial and adjudicatory functions. The trial court found there was no impermissible commingling conduct. Commonwealth Court concluded that the trial court did not err in determining no impermissible commingling occurred, noting that the board had some knowledge of the facts prior to the hearing on the charges, but “there is no evidence to support that the Board members who adjudicated the case were committed to the position that Kinavey was guilty as charged throughout the investigation.” With regard to the solicitor, the court noted that although the solicitor conducted the probable cause investigation, communicated with board members, and testified, he did not otherwise participate in the adjudicatory process. Kinavey also argued that the board’s decision was not supported by substantial evidence. The court determined that the board’s necessary findings were supported by substantial evidence.                
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value, but may be cited in legal proceedings for persuasive value.
Click here for the full decision
Millcreek Township School District v. Wegmans Food Markets, Inc., 2016 WL 3223682 (Pa. Cmwlth. 2016). Commonwealth Court vacated the trial court’s order, and remanded this tax assessment appeal for further proceedings. Wegmans owns two properties in Millcreek Township. In 2004, the district filed tax assessment appeals with the Erie County Board of Assessment Appeals, seeking to increase the assessed values of the properties. The board denied the appeals, and the district appealed to the trial court. At the trial, the district (through Robert Glowacki) and Wegmans (through Douglas Herold) presented testimony on the proposed value of each property – the appraisers used different approaches and had different proposed values. Over the objection of Wegmans, the trial court admitted the appraisal reports of another appraiser (Barry Polayes), who was retained by Wegmans in 1998 to prepare a report for both locations. The trial court relied on Polayes’ reports to discredit Herold’s testimony, and ultimately, assessed each property at a value closest to what the district’s appraiser proposed. On appeal, Commonwealth Court concluded that the trial court erred in admitting Polayes’ reports, and the admission of the reports was prejudicial to Wegmans.       
Click here for the full decision.


Cornwall-Lebanon School District v. Cornwall-Lebanon Education Association

Ralph H. Colflesh Jr., Esq., arbitrator
Aug. 16, 2015

     1. Just Cause

Editor’s Note: See the case summary above for a discussion of the arbitrator’s decision and award.  
Click here for the full opinion and award.


Harrisburg City School District v. Harrisburg Education Association

Mark Lamont, arbitrator
June 6, 2016
  1. Past Practice
The arbitrator denied the grievance. The association filed a grievance, challenging the districts outsourcing of the Alternative Education Program (AEP). Up until the 2011-12 school year, the district had an in-house AEP. In early 2011, plans to enter into agreements with multiple external providers were discussed at several public board meetings attended by the association president. Ultimately, the school board contracted with several different services providers for school years 2011-12 through 2014-15. On June 15, 2015, the board entered into an agreement with another service provider who, unlike the other providers, ran the AEP in leased district property and utilized other district resources, but used its own teachers. The association viewed this new contract as an in-house AEP, which it argued was not consistent with past practice. Furthermore, this contract replaced bargaining unit teachers with employees of a private company, a blatant outsourcing of bargaining unit work. The district argued it has consistently contracted with outside contractors for AEP for at least the last four years, and the new contract is a continuation of this established past practice. The arbitrator noted that although the association’s president spoke out against the board’s decisions, the association never filed a timely grievance or an Unfair Labor Practice. Consequently, the outsourcing plan became a past practice and the determination of AEP is now a matter of management prerogative.   
Click here for the full opinion and award.

The Public Sector Arbitration publication is not possible without the efforts of solicitors and superintendents who send us new arbitration decisions. PSBA would like to thank those individuals who have contributed arbitration decisions. If you would like to make such a contribution, please send a scanned copy of the decision to or mail a hard copy to PSBA, Attn: Katherine Fitz-Patrick, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.

Pennsylvania School Board Solicitors Association

School Solicitors Symposium, July 14-15, 2016, Nittany Lion Inn, State College, PA – Plan now to be at the 2016 School Solicitors Symposium, presented by PSBA and Pennsylvania School Board Solicitors Association. Get up to speed on recent developments in school law, anticipated trends public school clients are likely to be dealing with soon, and valuable strategies that can help school boards stretch scarce resources. Get ahead of the learning curve on cutting-edge issues likely to confront your school clients in the near future! For more details and registration, click here.


In Other News

Chronic absenteeism – The U.S. Department of Education recently released data that shows chronic absenteeism (a student is chronically absent, if the student misses at least 15 days of school in a year) impacts students in all parts of the country and is prevalent among all races, as well as students with disabilities. A new, interactive website contains information on this “hidden educational crisis.”
Equal pay and pregnancy discrimination – On June 14, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) released the following new resource documents that address the equal employment opportunity rights of women in the workplace:
•     Equal Pay and the EEOC's Proposal to Collect Pay Data
•     Legal Rights for Pregnant Workers under Federal Law
•     Helping Patients Deal with Pregnancy-Related Conditions and Restrictions at Work
Fact Sheet: Troubling Pay Gap for Early Childhood Teachers – On June 14, 2016, the U.S. Departments of Education and Health and Human Services released a report, which “shines a spotlight on the gap in pay for early education teachers – 97 % of whom are women – and the impact that inequity has on schools’ ability to attract and retain experienced, high-quality staff with higher levels of education.” The press release is available here.   
Gender equity in career and technical education – On June 15, 2016, the U.S. Department of Education’s Office for Civil Rights (OCR) and Office of Adult, Career, and Technical Education released a Dear Colleague Letter, in order to “make clear that all students, regardless of their sex, must have equal access to the full range of career and technical (CTE) programs offered.” The press release is available here.

Mark Your Calendars

July 14-15, 2016 – Solicitors Symposium, State College, PA
Thursday, Oct. 13, 2016 – School Law Workshop, Hershey, PA

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For questions about this publication, contact Katherine Fitz-Patrick, Tel: (717) 506-2450, ext. 3414

School Board Solicitors Association Officers
    Carl N. Moore Esq., Erie, President   

    Patrick J. Fanelli Esq., Duncansville, President-Elect
    Erin D. Gilsbach Esq., Bethlehem, Secretary
    Kristine Marakovits-Roddick Esq., Bethlehem, Immediate Past President


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The School Law Information Exchange & Public Sector Arbitration is a biweekly publication of the Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA). This publication is distributed to members of the Solicitors Association and administrators who have purchased the comprehensive subscription package. Except for distribution within the school entity or law office, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or otherwise, without the prior written permission of PSBA. This material cannot be shared with other school entities or law firms. All inquiries about reprint permission should be sent to Katherine Fitz-Patrick, Deputy General Counsel, Member Services and Editor.

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